House of Lords
Monday, 12 March 2012
Prayers—read by the Lord Bishop of Newcastle.
Death of a Member: Lord Wedderburn of Charlton
EU: Economic and Financial Issues
My Lords, the Government hold high-level talks with all our European Union partners on economic and financial issues at the regular European Union Economic and Financial Affairs Councils. The next Economic and Financial Affairs Council—ECOFIN—is taking place tomorrow, Tuesday 13 March.
I thank my noble friend for that Answer and wish him well for that meeting. Can he explain carefully to the House why, since we had achieved—with some skill—all our objectives on the innovation, investment and growth programme of the EU at the recent meeting of all the member states, we did not therefore show solidarity by signing the fiscal compact treaty as well, alongside every other member apart from the Czech Republic?
My Lords, the fiscal compact intergovernmental treaty was discussed at the European Council on 8 and 9 December. As has been discussed on a significant number of occasions, the UK did not get the safeguards it was looking for and is not a party to that treaty, which is why we did not sign it in the fringes of the European Council on 1 and 2 March.
My Lords, will the noble Lord accept my congratulations to the Government on following the previous Government’s agreement not to join the euro? Nevertheless, would it not be as well to admit that because of that, unfortunately, the whole question of the survival of the euro is discussed mainly among eurozone Finance Ministers? Why will he not admit it?
Well, I have not been asked the question in those terms before. It is for the eurozone members to bear the brunt of sorting out the eurozone. That is exactly what they are getting on with doing, which is why we welcome the fiscal compact intergovernmental treaty as a necessary step towards the remorseless logic that with currency union comes much closer fiscal union. We keep close to it. Meanwhile, we are working with many like-minded states on an ambitious pro-growth agenda, which is what Europe also desperately needs.
The Minister referred in reply to the original Question to the failure to satisfy all our negotiating points. Is he yet in a position to share with the House what specifically were the negotiating objectives and which ones in particular are not satisfied by the financial compact?
My Lords, a Written Ministerial Statement was issued earlier today about the ECOFIN meeting in which it was argued with respect to the financial transaction tax that,
“the proposal will have significant negative impacts on jobs and growth”.
No evidence is provided for that statement. Perhaps the noble Lord can tell us what is the negative impact on jobs and growth of the current stamp duty on share transactions?
I believe that the effect of UK stamp duty on jobs and growth is negligible. The European Commission conducted its own assessment of the effect of the financial transaction tax, which is what I think is relevant, and the numbers that have been produced by others indicate the range of negative impacts. We think that it makes no sense to introduce a financial transaction tax on the basis of Europe going it alone without the rest of the world being there.
That seems to be popular in an unusual quarter of the House. Can the Minister perhaps tell us how, the previous strategy having failed on 9 December, the Government will set about protecting Britain’s national interests in the area of financial regulation in the current situation in which those proposals are as dead as a dodo?
My Lords, the strategy did not fail on 8 and 9 December. We did not sign up to a treaty which it would have been wholly wrong for the UK to sign up to on the terms that were offered. What is happening now and is very positive is that we are working with a significant number of like-minded countries to drive forward the growth agenda. My right honourable friend the Prime Minister was one of 12 Heads of Government who signed up to a letter very much led by us. We have regular meetings with 16 like-minded countries to define and drive forward the pro-growth agenda.
My Lords, perhaps the Minister will enlighten us on one thing. Given that the Liberal Democrats are traditionally Europhiles and the Tory party is at present packed in both Houses with Europhobes, how can we get a rational approach to anything to do with the European economy at all?
My Lords, I believe that the coalition is driving forward our agenda on Europe with great coherence. As I have explained, the UK is leading the way not just on the single market and competitiveness issues but issues including Iran, Burma and many other areas on which we are very much at the forefront and lined up with many of our European partners.
Police and Crime Panels
My Lords, we are committed to funding police and crime panels to do the job set out for them in the Police Reform and Social Responsibility Act. We will be providing annual funding of £53,300 per panel as well as an additional £920 per panel member per annum for expenses.
I thank the Minister very much for his response. One of the few things we all agreed on when the police and social responsibility Bill was before the House was the need for these panels to be strong and to operate as effectively as possible under the new governance arrangements for the policing landscape. Does the Minister not agree that these panels will want to meet regularly, probably at least once every other month; that they will have extensive legal and financial needs; that they will need good financial and legal advice; that they will certainly have extensive training requirements in the first year to enable them to operate effectively and cohesively; and that, therefore, the sums he mentioned are totally inadequate to get these panels operating as we would like in the first year?
My Lords, I do not agree with the noble Baroness at all. As the Bill went through, we made the function of the panels quite clear: it should be that of a light-touch approach. We then announced how much money would be available for them, which was £38,300 per year each. We have reviewed that figure in the light of various amendments made to the Bill, particularly some that originated this House. The figure, as I have just announced, has been increased to £53,300. We think that that is enough for the panels to do their job. The noble Baroness ought to remember that these panels are not replacing police authorities; their job is to review the actions of police and crime commissioners.
My Lords, I am sure that politics will not come into this, but there will be some people who will stand under party colours. However, that does not mean they will necessarily bring politics into this matter. The noble Lord is going slightly wide of the Question, which is about the panels. The important point is to differentiate the job of the police and crime panels from that of the police and crime commissioner.
My Lords, even with a light touch, the panels will have to get to grips with a lot of paperwork and information, and undertake a lot of discussion in order to carry out their job of scrutiny properly. If the amount that is to be provided is insufficient, will members be expected to look to their own stretched local authorities for professional and technical back-up?
My Lords, as I said in answer to the first supplementary question, we have increased by some 40 per cent the amount available to the panels in the light of discussions and thoughts we have had following the passage of the Bill. We believe that it will be sufficient. If individual local authorities wish to spend more, it will be for those authorities to make that decision themselves.
My Lords, the noble Lord will be aware that the police and crime panels are the only check and balance on the potential politicisation of our police forces through elected police commissioners. This is not wide of the Question. Will he respond to reports that Mr Kit Malthouse sought to interfere in the Metropolitan Police’s actions in investigating phone hacking? That is but one example of the risk to this new system, in which the police and crime panels are the only defence but the Government are not going to fund them properly.
My Lords, I have made it quite clear that we are going to fund the panels properly. I am not going to respond to the specific allegation made by the noble Lord, but if necessary—if I think it appropriate—I will write to him. What I am making clear is that we think we are providing appropriate funding for the panels to do the job that was set out in the police Bill last year. We think that they can do that because their job is to look at what the PCCs are doing.
My Lords, the experience in London is that so far the only information to have emerged from the Mayor’s Office for Policing and Crime, which is a surrogate police and crime commissioner, is a series of listed decisions on the website. How on earth is a police and crime panel outside London going to get to grips with the detail underlying that and the issues determined by the police and crime commissioner, with money that is insufficient to employ more than one or two people in support of busy local authority councillors who will have many other roles in addition to that on the panel?
My Lords, I think that the noble Lord misunderstands—dare I say it?—how local authorities work. Obviously, the funding will be available to provide for some staffing to assist that panel, but within that local authority there will be other officers doing other jobs who will also be able to assist in that role. That does not require the extra funding that he described. However much money the Government offered, no doubt he and others would say that it was inadequate. We made an announcement on how much it would be. Having reviewed it, we have since increased it. We think that it will be sufficient.
Energy: Voltage Optimisation
My Lords, energy efficiency is the cheapest way of cutting emissions and cutting bills for customers. My department launched the Energy Efficiency Deployment Office, EEDO, earlier this year to drive energy efficiency across the UK economy. EEDO will build on our existing policies, which are already encouraging the uptake of energy efficiency measures such as voltage optimisation.
My Lords, I thank the Minister for his response. However, is he aware that voltage optimisation is not receiving all the support that it is due because of its exclusion from the energy efficiency rating system of buildings, known as SAP? This effectively excludes it from many policies that support energy efficiency and is an example of how we adopt an extraordinarily bureaucratic approach to energy efficiency, which is hampering innovation in this area. I hope that he will pledge to do all he can to remedy the situation so that voltage optimisation receives the support that it deserves.
I am glad that that finds favour with your Lordships. As on a previous occasion, I am grateful to Wikipedia for supplying this valuable information. It states:
“Voltage optimisation is an electrical energy saving technique which is installed in series with the mains electricity supply to give an optimum supply voltage for the site's equipment”—
in other words, as has been done in No. 10, to which the noble Baroness rightly pointed, and in our department, where we have put in this optimisation technique for reducing our own electricity demand. Therefore, it is very worthy of consideration. The problem with it is that it does not have a universal remit and is not necessarily applicable for domestic use. However, we would certainly encourage all commercial property to use it.
My Lords, will the Minister also encourage the development and use of direct-current ring mains in office buildings? This would mean that transformers could be done away with and inverters placed on the tops of buildings to be air-cooled, which would dramatically reduce the amount of energy. The problem with all new technologies is making sure that they meet the energy ratings. I hope that EEDO will look at this, because the department has an obligation under the Climate Change Act 2008 to bring down the amount of emissions coming from the built environment; last year, they went up.
This is already turning into a very technical Question. My noble friend asks a very relevant question: how can we aggregate electricity usage and reduce it by a central technique? That is what the eco-design directive from the EU is encouraging. It is looking at this as an efficiency measure as we speak and I am hopeful that the outcome will be positive.
I am tempted to shoot an admiral every now and then, although not of course the noble Lord, who has distinguished service. This is all part of the Government’s policy. I shall not rehearse all our marvellous policies at the moment—I am not saying that shooting the admiral is part of the Government’s policy—but clearly the Green Deal is part of them. We reduce demand on electricity and energy by not using it, and we have to find ways of not using it and educate people so to do. That is the only way out of these spiralling upward prices.
I congratulate the Minister on his reply, which is accurate—Wikipedia generally is. Admirals might be electrocuted as well as shot if they do not understand some of these problems clearly. This is a very complex subject with many factors, including the cost of retrofitting a lot of equipment. I looked at some of the data over the weekend and it struck me that the experiment that is being carried out in No. 10 might be quite useful. Can the Minister tell me what efficiency gain No. 10 got and how much it cost?
This is the first question I have been asked. The overall reduction in energy consumption and carbon reduction in No. 10 was 10 per cent. That was in line with government demand. I can tell the noble Lord that we achieved 13.8 per cent over government, but I am afraid I cannot answer his question about specific costs. I shall be happy to write to him on that subject.
My Lords, the Minister said that he was no scientist and I have to say that I share that with him; I am certainly no scientist. However, I fail to understand his answer to the noble Baroness, Lady Worthington. Is or is not the voltage optimisation scheme that she is recommending part of the energy reduction that the Government are trying to promote?
The Government are not here to take on all sorts of design that come in, although we are obviously keen to promote any reduction in electricity demand or supply, particularly in demand—and voltage optimisation is one such thing. It is already in existence. We have led by example, as I have indicated, in our department and No. 10. We encourage all people to look at it on a commercial basis because it saves on electricity demand. I hope that that answers the noble Baroness’s question. I repeat for her benefit that I am not entirely clear whether it is of benefit in domestic situations. I have asked my department to organise a workshop on the Green Deal in the next month to study it carefully.
My Lords, is my noble friend aware that in 1757, after the unfortunate death of Byng, a French admiral wrote to Voltaire and said that in similar circumstances he would have done exactly the same thing as Byng. I hope that my noble friend is pleased to have French support in these matters.
My Lords, I share with the noble Lord the fact that I am not quite scientific either. However, notwithstanding Wikipedia, all we are talking about is being as conscientious about energy efficiency coming into a building as we are about using energy in the building or losing it through poor insulation. The noble Lord has made several references to the Green Deal. Is he aware that currently voltage optimisation us not eligible under the Green Deal for commercial or domestic buildings? When he holds his workshop it would be helpful if he could look at changing the rules of the Green Deal. DECC has saved £19,000 a year on its energy bills, and many businesses would find that advantageous.
I am grateful to the noble Baroness, as always, for her support on the Green Deal and for the work that she has carried out on it. As I said, the reason for the workshop is to look very carefully at the issue to see whether it can form part of the Green Deal. When we have come to our conclusions, I will be very happy to share them with her and with the noble Baroness, Lady Worthington.
My Lords, the Government believe that the independent review done by Sir Desmond de Silva QC will be the quickest and most effective way of revealing the truth and answering the Finucane family’s questions about what happened to Pat Finucane. The British and Irish Governments continue to work together on a wide range of issues of mutual interest—for example, the economy, commemorations and security matters.
My Lords, does the Minister agree that demands for a full inquiry into the murder of Pat Finucane have been going on for years? They have come from the United Nations, the European Court of Human Rights, the Dáil, the Irish Government, the US Senate and the House of Representatives. Will he confirm that on 11 October last year at a meeting in No. 10 Downing Street with the Finucane family and their lawyers, the Prime Minister confirmed that he accepted that there has been collusion in the murder of Pat Finucane? Will the Government not accept that they will soon run out of excuses and that until there is a full inquiry into this tragic murder, the world will think that the British Government have something to hide?
My Lords, first, I commend the noble Lord, Lord Dubs, in his efforts to celebrate British-Irish relations in the St Patrick’s Day gala reception that will take place later today.
On the noble Lord’s question, yes, many people have an appetite for an inquiry, but we have to accept that there are two features about inquiries: first, the enormous cost; and, secondly, the enormous delay. Indeed, were an inquiry to have been commenced and were it to take as long as the Bloody Sunday inquiry, it would be 2023 before we might expect a result, which in itself is 34 years after the very sad death of Pat Finucane. Certainly, I can confirm what the Prime Minister said in Downing Street, but Sir Desmond de Silva has been appointed to do his independent review. He has been on the job for five months and we are to expect a report—he has eight months to go.
My Lords, it is important for us to address very tragic and, in the past, worrying individual incidents, such as the horrible murder of Pat Finucane. However, my noble friend agree that instead of encouraging individual families to deal with individual incidents now that it is well over a decade and a half since the Troubles came to a close, we should increasingly try to find ways in which the community as a whole in Ireland, north and south, and the many thousands of individuals who have suffered bereavement and trauma—and, as is evidenced, a generation of young people growing up with trans-generational effects on them because of the experience of the previous generation—should be our focus for attention and for the limited resources that can be made available to deal with the trauma of the Troubles?
My Lords, I agree with my noble friend that it is important to look at the many. The Historical Enquiries Team, a devolved matter dealt with by the Police Service for Northern Ireland, was set up in September 2005 to investigate some 3,259 unsolved deaths. To date the team has looked into 2,423, which is three-quarters of the deaths on which the team has either done the job or is getting on with the job at present. Clearly, that is very important work. Yes, there is more important work to be done, and work continues to be done in discussions between the Secretary of State and the devolved Assembly.
My Lords, I met the Finucane family to discuss their call for an inquiry into Mr Pat Finucane’s outrageous death. The family told me that they had no intention of accepting an inquiry held under the 2005 legislation, even though other inquiries promised at the Weston Park negotiations were in part held under that legislation. Will the Minister confirm that government policy remains that there will be no more open-ended and expensive inquiries? If he cannot confirm this, I must call upon him to initiate inquiries into the tragedies at the La Mon House Hotel, the Kingsmill massacre, Omagh, and many more.
My Lords, it is indeed the Government’s position that we should not go in for further lengthy, costly inquiries. We want to see this work continued, as I mentioned to my noble friend, with the Historical Enquiries Team and with other work that can proceed.
But my Lords, I am not aware that in the case of Pat Finucane anybody has been asking for an open-ended, expensive inquiry along the lines of the Bloody Sunday inquiry that the Minister mentioned. Noble Lords will recall that the agreement between the British and Irish Governments at Weston Park had commitments from both Governments as part of a package of measures to implement the Good Friday agreement, including on inquiries and other matters such as police and security. In that agreement, a decision was taken to appoint a judge of international standing from outside both jurisdictions to undertake a thorough investigation of allegations of collusion in a number of murders, including that of Pat Finucane. This was not a stand-alone inquiry but part of a package of measures agreed by the British and Irish Governments, on which the Irish Government have fulfilled their part, while the British Government have pulled back on just one of the inquiries, having had the other. Does the Minister understand how this impacts on trust between the two Governments, given that agreement made in 2001 between them? I appreciate that he may be constrained in his response, given that there is a judicial review on this decision at the moment, but it also gives the Government a breathing space in which to think again. I urge the Minister to take that space and do so.
The response I would make to the noble Baroness is that there was an agreement in 2001, and we had got to 2010 and nothing had happened. We had a Government in office who had had nine years, and it was not possible: the noble Lord, Lord Empey, referred to what the family was willing to accept, and so forth. When the new Government came in, one of the first things that the new Secretary of State did was to meet the family and discuss things, then eventually to come to a view on whether there is another way forward. As I indicated, Sir Desmond de Silva has been at work now for five months; let him finish the task.
Health and Social Care Bill
Private Notice Question
To ask Her Majesty's Government, in light of the decision of the information tribunal last week, whether they will publish the risk register associated with the Health and Social Care Bill before that Bill completes its Report stage in this House.
My Lords, the tribunal has agreed that the department should not publish its strategic risk register but has upheld the Information Commissioner’s initial decision notice on the transition risk register. However, we await the full judgment, which will contain the detailed reasoning for the decision. This makes it extremely difficult to make a decision on whether the Government wish to appeal this decision. I hope very much that the tribunal will give its full judgment as soon as possible.
My Lords, the primary purpose of this House is to scrutinise and improve legislation. I know that the Minister would agree with me on that. In the next 10 days, Parliament has to make critical decisions about the future of the National Health Service. Without the information in the risk register or the transitional risk register, Parliament will be less well informed than it otherwise would be. The information tribunal last week instructed the Government to release the transitional risk register immediately, as I understand it, because the Bill is still under consideration. Why are the Government therefore preventing Parliament from having the best possible information on the NHS so that it can make the best possible decisions about the NHS?
My Lords, many of the risks associated with the Government’s reform programme, as the noble Baroness knows, have already been extensively aired—not least in the impact assessment, in my statement of 28 November last and, indeed, in the whole passage of this Bill—but I fully recognise the concern that we should respond swiftly to the tribunal’s decision. We are making every effort to update noble Lords on our intention as soon as we possibly can. However, as I have always said, this is not a decision for the department alone and any way forward has to be agreed and signed off across Government. I cannot make a decision without agreeing it with my fellow Ministers in other departments and I am sure noble Lords will appreciate that we have only just received the tribunal’s decision.
My Lords, I am dismayed by the Minister’s answer. Surely it must be the case that Parliament would be assisted by seeing the objective assessment of what the risks are to the National Health Service from the Bill becoming law. I understand that he is saying that the Government have already said what many of them are, but if that is the case then what is the harm in disclosing the list of risks that the objective assessment by civil servants gives of the introduction of the Bill? Surely Parliament would be assisted by having as much information as possible. It cannot be the fault of the information tribunal that we are getting no answer at all from the Department of Health.
My Lords, no Government have routinely made risk registers available. This is a matter of principle. It is not just that the issues associated with the Health and Social Care Bill have been extensively aired—as I said, they have been—but it is a point of principle whether a risk register that is integral to the formulation of policy should be published.
The tribunal agreed with our assertion that the strategic risk register should not be published but disagreed when it came to the transition risk register. Our difficulty is that the case that we made for both documents, which are of a similar structure and have similar content, was based on essentially the same arguments, which makes it extremely difficult to make a decision on whether or not to appeal the decision. I hope, as I say, that the tribunal will give its reasons for the judgment as soon as possible so that we can determine the right way forward.
My Lords, surely this is not about the routine publication of risk registers but about the publication of a risk register for a specific Bill in front of your Lordships’ House and Parliament that is causing extreme concern in the country. Why is it not possible on an exceptional basis? I believe that no less a person than Simon Hughes—if such a thing were possible—has advocated to the Government that the risk register should be put into the public domain so that Parliament can look at the implications properly.
My Lords, I beg to differ with the noble Lord; this is an issue about routine release. I think I am right in saying that the department has received several dozen requests to release the risk register. If this were to become routine, as some people appear to wish it to become, policy formulation in any department would become virtually impossible.
I am grateful to my noble friend because I do not believe that there were any. The Opposition sometimes point to the risk register relating to the third runway at Heathrow, but the key difference with that was that it was to do with policy implementation rather than policy formulation. Once you know what you want to do, there are risks associated with rolling a policy out. It is a very different matter when civil servants wish to have safe space to think the unthinkable and then advise Ministers.
My Lords, the Minister said that the details of the risks had been well canvassed in this House. If that is the case then in the absence of proper information, with the best will in the world, the discussions must be based on hearsay. That cannot be the right way to go about discussing business.
Presumably, part of the need for urgency is the Government’s scheduling of the Third Reading of the Bill. I know that we are close to the end of an unprecedentedly long Session of Parliament but it would be an intolerable situation if the information were finally published after the Bill had become an Act and the information were then judged to have been such that many Members who had voted in favour of Third Reading would regret it within weeks. Surely the very least that the Government could do is to postpone the Third Reading debate until the last possible date before the end of the Session.
My Lords, I am the first to acknowledge the concern among noble Lords to be fully and properly informed about the risks associated with the Health and Social Care Bill. As I say, we have done as much as we can to implement that intent without transgressing what we still see as a point of principle regarding risk registers. My answer to the noble Lord is that I do not believe it is necessary to postpone Third Reading but we clearly have to debate the Motion in the name of the noble Lord, Lord Owen. At that point, the House will decide whether it is content to give the Bill further consideration.
Can we go back to first principles, which the noble Earl raised? I speak as someone who has been an adviser. Is he saying that officials would not give their honest view of the risks that policies might incur if their advice was made public? If you believe in open government—certainly, if you believe as an official that your duty is to advise Ministers as best you can and, therefore, you will outline the risks—is that not altogether a good thing? It is not a principle that the Government ought to espouse, rather than say that they do not want to go down that path?
My Lords, civil servants may not wish to put in jeopardy a policy that they are working on by using language that could be—indeed, is certain to be—misinterpreted or sensationalised, or that could cause embarrassment if exposed to the public gaze. Without full candour, risk registers across government would become bland and anodyne. Effectively, they would cease to be of practical value. That is the fear that has been expressed across government.
Localism Act 2011 (Consequential Amendments) Order 2012
Parish Councils (General Power of Competence) (Prescribed Conditions) Order 2012
Motions to Refer to Grand Committee
Insolvency Act 1986 (Disqualification from Parliament) Order 2012
Motion to Refer to Grand Committee
Protection of Freedoms Bill
Relevant document: 20th Report from the Constitution Committee.
My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Bill, has consented to place her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
Clause 38 : Judicial approval for directed surveillance and covert human intelligence sources
1: Clause 38, page 33, line 41, at end insert—
“32C Evidence gathered by non-public bodies using directed surveillance and covert human intelligence sources
Public bodies shall not adopt for the purpose of a prosecution evidence of offences which attract a maximum custodial sentence of six months or less gathered by non-public bodies using directed surveillance or covert human intelligence sources.”
My Lords, Amendment 1 is grouped on its own. As I am on my own, I will wait for the House to evacuate before I continue.
The amendment follows on from the Private Member’s Bill which I introduced into your Lordships' House and which was passed, which said that people should not be able to go into other people’s homes and property without permission or a court order. At that time we also looked at loitering and the nervousness that was caused by people loitering outside properties, surveillance by television cameras, observance from afar and spying in general, but that was left out.
When we recently dealt with the Bill in Grand Committee, it was suggested to me that certain other areas needed to be dealt with. One related to the amendments to RIPA proposed in the Protection of Freedoms Bill which are designed to address the concern about the use of RIPA powers by public authorities to investigate minor offences. The Minister—the noble Lord, Lord Henley, whom I sometimes regard as being a little bit like “Stonewall” Jackson or Cool Hand Luke, who plays a bat and will not let things go past him—confirmed at that time that he accepted the proposals in the Bill would ban the use of covert surveillance by public bodies to gather evidence of non-serious offences and should be amended to ensure that those public bodies could not then get round the law by adopting evidence obtained by covert means by third parties.
When I introduced an amendment to deal with this loophole in Committee on 13 December, I was encouraged at the time by the words of my noble friend Lord Henley, who agreed to look at this issue to,
“see whether we might come forward with some suitable change”.—[Official Report, 13/12/11; col. GC 329.]
He has not come forward with any suitable change, but I gather that he has it still in the back of his mind. The great thing with my noble friend is to take things from the back of the mind and try to get them as near the front as possible.
It seems that my amendment was what the “pros” call too widely drawn. When it was suggested that I put down another one, I went, as always, to the Public Bill Office. I learnt that you do not put down amendments at Third Reading unless you can demonstrate that the Minister had undertaken to do something and had not done it. I had forgotten about that. We checked the matter very carefully and this amendment was the result. I hope that it can be accepted.
I would like to ask my noble friend about other issues that I raised in Committee. I asked whether, since we had the Powers of Entry Bill, he would be kind enough to take the 1,200 powers of entry that we had identified, print them and put them in the Library. He said that that was not necessary because everything could be done electronically. I have a slight conflict of interest here in that, as a member of the Information Committee, I can tell noble Lords that half your Lordships are not electronically enabled, if that is the phrase. Therefore, they like to think back to:
“Abstract nouns in -io call
Feminina one and all;
Masculine will only be
Things that you can touch or see”.
Your Lordships like to feel pieces of paper from time to time. Therefore, I asked my noble friend whether he would agree to put the list of powers of entry in the Library. He said that he might think about it.
Other matters came up. One of the difficulties with Private Members’ Bills is that Ministers are here today, gone tomorrow and back the next day. A code of conduct was proposed. The Minister said that the Bill would induce a code of conduct. I asked him why it could not be stated. I do not think that he said he would think about that. I understand fully that matters such as powers of entry were tacked on to the Protection of Freedoms Bill. However, some aspects of it seem to me that they might even reduce people’s freedom. We should debate this matter further. I beg to move.
My Lords, I strongly support my noble friend. He is absolutely right to bring back points that have not been answered by the Home Office. The purpose of Parliament in general and your Lordships’ House in particular is to scrutinise legislation and ask questions—and to ask for answers to questions. It is the obligation of the Government to come back with suitable answers that give details as to why particular proposals should not be agreed, rather than to give just a blanket refusal. I am very glad that your Lordships’ House decided to pass my amendment that is now part of Clause 40 and that we now have a much better understanding of the need to constrain powers of entry.
However, my noble friend referred to RIPA, which extended the powers of the police to enter without warrant. That is probably justified in terrorist matters. I accepted that, which is why, in my amendment that the House has accepted, I excluded from the need to have a warrant those powers that RIPA had recently given to the police under subsection (5)(b). On the other hand, it is important that we should be absolutely clear and precise on the extent to which powers of entry or surveillance are used. It is not at all desirable that general powers of surveillance, particularly by non-government bodies, could be used to provide evidence, because the way in which the surveillance is constructed is quite likely not to have been properly supervised and defined.
We must realise that the object of the Bill is to extend the freedoms of this country. It is high time to do that, and I therefore hope the Minister will give a good reply to my noble friend, particularly on the code of conduct, and publish—more clearly than the information that has been published only on computers—the huge list of existing powers of entry.
My Lords, I should like to make two brief points. The first arises from something I have noticed in the way that we run our procedures, which has changed a lot over the many years I have been here. In the old days, matters often used to be pushed at Committee stage to decide in principle whether we wanted to change something; it was then tidied up on Report; and very little was therefore done at Third Reading. Unfortunately, because nothing is now pushed in Committee, it is pushed first on Report; and we are therefore relying more and more on the Minister or someone else tidying up or fulfilling an obligation at Third Reading. That is much later than used to be the case. We have a rod with which we are beating our own back. We see this happen to other Bills on which we have Committee-style debates on Report, which in reality should be an occasion for tidying up what we have pushed through in Committee. I highly recommend that we return to our old procedure, and we might then spend less time debating some of the other Bills that are going through interminably and tediously.
Secondly, the amendment is fair and it is right that it has been brought forward. It is an interesting and probably good amendment, because it will discourage local authorities or other bodies from doing one of the things that all these provisions were rightly introduced in the Bill by the Government to tackle—to discourage these bodies from using strong powers in order to enforce what we consider to be trivial offences by members of the general public. The amendment is a good generic way of dealing with the problem in principle. It is a sensible amendment that should be passed.
I should add as a minor point that we are watching the same thing happen as regards the power to fine people for littering. The other morning, I heard how a lady in her 70s was fined £80, or whatever the statutory amount is, because a thread fell out of her glove on to the ground. I listened to the local authority trying to defend its action—a thread is not meant to be on the ground and is therefore defined as litter. The case was quite horrific, and I can see exactly the same problem happening in similar cases. I therefore hope that this Government will continue to do what they have done in the Bill. They have made a good first move as regards giving citizens back some rights in certain other areas. This amendment helps in the right direction.
My Lords, I will try to keep my response to the point of the original amendment moved by my noble friend Lord Selsdon, tempted although I am to proceed down routes raised by the noble Earl about procedure of the House and littering, which are matters for another occasion, but I will try also to respond to a couple of the points made by my noble friend about powers of entry, because he gave me notice of them.
My noble friend has returned to an issue that he raised in Committee, and I apologise for not getting back to him on it, about the use of covert surveillance by non-governmental organisations or private individuals. In Committee, I said that I would look further at that issue. We have given that matter serious consideration, but we have concluded that amending the provisions of the Regulation of Investigatory Powers Act as they apply to public authorities is not the answer to protect landowners from trespassers or people who do damage on private land. I could go on, but I just want to make it clear that I do not think that what my noble friend suggests in the amendment would be appropriate for this Bill at this stage.
My noble friend then raised the point about powers of entry and asked when the code of practice will be available. We intend to consult on a draft powers of entry code of practice in the summer with a view to its coming into force in the autumn. I will certainly ensure that my noble friend receives a copy of the draft code when that goes out to consultation and look forward to his comments on that in due course.
My noble friend then asked for a list of all the powers of entry. He originally asked for that to be in the Bill—I have explained on a number of occasions why that is not appropriate—but has since asked whether it could be made available in the Library or somewhere else. I have made it clear to my noble friend on a number of occasions that it will be available on the Home Office website. My noble friend is worried that most noble Lords—I think he said 50 per cent of them—cannot access the Home Office website to get hold of such things. In practical terms, for a department to make such things available on its website is normally the best way. If any noble Lords have any problems in accessing that, they can always get assistance from the House authorities—in particular, the Library, which works wonders in providing noble Lords with access to such things.
We have published a list of all the powers of entry that we have identified. We are committed to keeping it up to date. We will continue to keep it up to date on our website. I will certainly consider whether it could be made available on one occasion in the Library, but thereafter, it is best that it is kept up to date on the Home Office website, and my noble friend can then get further copies either through the website, if he can access it, or through the Library. I hope that, with those explanations, my noble friend will feel able to withdraw his amendment.
I am most grateful to my noble friend for that, but, as he knows me well by now, he would obviously have expected me to have consulted the Library before speaking. The Library would like to have a hard copy because, as we know, some of the equipment in the Library does not work regularly. There is a shortage of wi-fi throughout the Palace. I hope that he will at least consider printing something out and putting it there. I pay tribute to my noble friend for dealing with such a complex Bill. If I had my way, it would be in three or four parts; it is an enormous Bill to absorb. From the research that I have done outside, it is extraordinarily confusing to what we might call lay people. They are not sure what it is about. It seems in a strange way to restrict freedoms. I am very happy to have been able to raise this issue, and I beg leave to withdraw my amendment.
Amendment 1 withdrawn.
2: Before Clause 64, insert the following new Clause—
“Protection from stalking
(1) The Protection from Harassment Act 1997 is amended as follows.
(2) In section 2 (offence of harassment), for subsection (2) substitute—
“(2) A person guilty of an offence under this section is liable on summary or indictable conviction to imprisonment for a term not exceeding five years, or a fine not exceeding the statutory maximum.”
(3) For section 4 (putting people in fear of violence) substitute—
“4 Offence of stalking
(1) A person (“A”) commits an offence, to be known as the offence of stalking, where A stalks another person (“B”).
(2) For the purposes of subsection (1), A stalks B where—
(a) A engages in a course of conduct,(b) subsection (3) or (4) applies, and(c) A’s course of conduct causes B to suffer fear, alarm, distress or anxiety.(3) This subsection applies where A engages in the course of conduct with the intention of causing B to suffer fear, alarm, distress or anxiety.
(4) This subsection applies where A knows, or ought in all the circumstances to have known, that engaging in the course of conduct would be likely to cause B to suffer fear, alarm, distress or anxiety.
(5) It is a defence for a person charged with an offence under this section to show that the course of conduct—
(a) was authorised by virtue of any enactment or rule of law,(b) was engaged in for the purpose of preventing or detecting crime, or(c) was, in the particular circumstances, reasonable. (6) In this section—
“conduct” means (inter alia)—
(a) following B or any other person,(b) contacting, or attempting to contact, B or any other person by any means,(c) publishing any statement or other material—(i) relating or purporting to relate to B or to any other person,(ii) purporting to originate from B or from any other person,(d) monitoring the use by B or by any other person of the internet, email or any other form of electronic or other communication, or making improper use of public electronic communications networks or leaving messages of a menacing character,(e) entering any premises,(f) loitering in any place (whether public or private),(g) interfering with any property in the possession of B or of any other person,(h) giving anything to B or to any other person or leaving anything where it may be found by, given to or brought to the attention of B or any other person,(i) watching or spying on B or any other person,(j) acting in any other way that a reasonable person would expect would cause B to suffer fear or alarm, and“course of conduct” involves conduct on at least two occasions.
(7) For the purposes of this section, a person makes improper use of an electronic communications network of electronic communications service or other social media if—
(a) the effect or likely effect of use of the network or service by A is to cause B, another person, unnecessarily to suffer annoyance, inconvenience or anxiety, or(b) A uses the network or service to engage in conduct, the effect or likely effect of which is to cause B, another person, unnecessarily to suffer annoyance, inconvenience or anxiety.(8) The Secretary of State may by regulation add further forms of conduct to subsection (6)(b).
(9) A person convicted of the offence of stalking is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding 5 years, or to a fine, or to both,(b) on summary conviction, to imprisonment for a term not exceeding 12 months, or to a fine not exceeding the statutory maximum or to both.(10) Subsection (9) applies where, in the trial of a person (“the accused”) charged with the offence of stalking, the jury or, in summary proceedings, the court—
(a) is not satisfied that the accused committed the offence, but(b) is satisfied that the accused committed an offence under section 2.(11) The jury or, as the case may be, the court may acquit the accused of the charge and, instead, find the accused guilty of an offence under section 2.””
My Lords, it is of enormous significance that today we are debating amendments that would create a new criminal offence of stalking. At Second Reading, I said that this Bill presented us with an opportunity to address an important loophole in our law that meant that those subject to the sustained and harrowing experiences of stalking were not receiving the recognition and protection that they needed and deserved. I therefore warmly welcome the fact that the Government now accept that the law needs changing.
This change in policy is a tribute to campaigners—in particular, the National Association of Probation Officers and Protection against Stalking, as well as the members of the independent parliamentary inquiry, chaired by the right honourable Member for Dwyfor Meirionnydd, Elfyn Llwyd, whose report has been so influential, and, most importantly, the victims. I refer to women such as Tracey Morgan, Sam Taylor and Claire Waxman, who have shown the most extraordinary courage in speaking out for reform. I am grateful to the Minister for meeting me on Thursday last week to inform me of the amendments, although at that stage I was not able to see them. Now, having looked at them, I am concerned that there are some deficiencies.
A specific criminal offence of stalking is not just about raising awareness. Indeed, ensuring that stalking is named as a crime and that specific examples of stalking behaviour are set out in statute are certainly part of the solution. It will mean that police officers and prosecutors who use the 1997 Act as their operational framework will be able better to recognise and respond to cases of stalking. However, that is only part of the problem. The other, perhaps most significant, issue is that, even when stalking is identified, the police are unable to bring successful prosecutions against stalkers that will result in adequate sentences. The overwhelming evidence from the independent inquiry showed that the law is currently a barrier to just sentencing because the evidence required for stalking to be tried as an indictable offence is, in practice, too difficult to provide.
The two new offences proposed by the Government do not seek to remedy that. In fact, they perpetuate this key deficiency in the 1997 Act by continuing the distinction between what they consider low-level stalking offences, as in proposed new Section 2A, which are subject to a maximum sentence of six months, and serious cases of stalking, as in proposed new Section 4A, for which it must be proved that the victim suffers a fear of violence. However, we already have this distinction in the 1997 Act between Section 4—putting a person in fear of violence—which was originally intended to cover cases of stalking and carries a maximum of five years’ imprisonment, and the Section 2 offence of harassment, which covers lower-level offences and has a maximum sentence of six months. As noble Lords will know, Section 4 is very rarely used by the police because fear of violence is in practice very difficult to prove. As a result, cases of stalking are usually prosecuted under the Section 2 offence, meaning that most convicted stalkers come away with a sentence of just a matter of days or no custodial sentence at all and are free to continue to traumatise their victims and, in some terrible cases such as those of Clare Bernal and Jane Clough, to murder them. Of the estimated 120,000 cases of stalking in the UK per year, in 2009 just 786 people were found guilty under the existing Section 4, which concerns putting people in fear of violence, with only 170 given a custodial sentence, most of no more than weeks.
I am therefore extremely concerned that, by simply creating two new offences as an addendum to the existing Section 2 and Section 4 offences, we will continue to see prosecutors unable to prove fear of violence opting to jail stalkers who have waged sustained and terrifying campaigns against their victims under new Section 2A, the basic offence of stalking, with a maximum of six months in prison.
Two women, both victims, who met the Prime Minister last Thursday—International Women’s Day—were given an assurance that things would be changed, but they then found out that their circumstances would not be covered by Section 4A as currently drafted, as it would not be possible for the police to prove that they were in fear of violence, yet both women were stalked for six and 10 years respectively and have suffered terrible psychological trauma. Both suffered mental breakdowns, both have sought medical treatment for extreme stress and anxiety, and both have little or no confidence in the criminal justice system, which has consistently let them down.
Under the amendments, the perpetrators would still be tried in the magistrates’ court and, even if they received the maximum sentence of six months, they would be released automatically at the halfway point and would be back in the community after four weeks if tagged. Because of the near impossibility of proving fear of violence, perpetrator after perpetrator has been given ludicrously lenient sentences in the magistrates’ court and has consistently broken restraining orders, with none receiving treatment or rehabilitation. The independent parliamentary inquiry, expert witnesses from the police, the National Association of Probation Officers, Protection against Stalking and victims are all absolutely united in the view that Section 4A must be amended to “fear, alarm, distress or anxiety” so as to apply explicitly to cases where severe psychological damage has been caused but no explicit threat of violence or physical attack has been made.
It is staggering that the Government are proposing to retain the fear of violence distinction, despite such evidence. It is also staggering because in Scotland we have a clear legal precedent for a single offence of stalking without fear of violence. The Criminal Justice and Licensing (Scotland) Act, which was introduced in 2010, created a single offence of stalking, triable either way, with a maximum sentence of five years’ imprisonment. It is then up to prosecutors and the courts to decide at what level the case should be heard.
My Amendments 2 and 3, on protection from stalking, would replicate the Scottish model of a single offence of stalking, listing types of stalking conduct, triable either way, and would replace a duty on the Secretary of State to ensure adequate training and support for implementation. However, in the event that the Government are not willing to accept this alternative proposal, I have also tabled amendments to their amendments. With the inclusion of these amendments, I believe that we can ensure that the two stalking offences that the Government propose would deliver adequate sentencing of offenders and protection for victims.
Amendments 10, 11 and 12 make changes to proposed new Section 4A that would widen the scope of the offence to apply to cases causing the victim to suffer fear, alarm, distress or anxiety. That would ensure that for cases such as Claire’s, where it is impossible to prove fear of violence, where the victim has suffered years of psychological trauma the stalker will be eligible for the maximum sentence of five years. Amendment 9 would allow cases tried under the basic offence of stalking, created by proposed new Section 2A, to be referred up to the Crown Court for sentencing, if magistrates deem it appropriate: for instance, when new evidence came to light to suggest a sentence higher than six months were required. If theft can be tried either way, we believe that it is wrong to set such limitations in a trial of stalking.
Amendments 7 and 8 make changes to the list of examples of acts that should be considered in certain cases as amounting to stalking in order to allow for the addition of other forms of conduct in the future. I know that the Government will wish to argue that proposed new Section 2A states that these are examples and that therefore flexibility is already provided, but it is important to understand that the police will look to what is contained within the law for their operational framework. Therefore, we think that it is important to make it clear that the list is not exhaustive and provides for the addition of new types of behaviour, such as cyberstalking, that may arise in the future.
Finally, Amendment 14 would mean that, if an individual had been arrested for stalking, the police would have the power to enter their property without a warrant in order to prevent any evidence being destroyed. It would in fact return the power that previously existed in cases of harassment but that was removed as an unintended consequence of the Serious Organised Crime and Police Act 2005.
Too many women have already died at the hands of their stalkers and I am glad that the Government agree that we must act now to provide greater protection for the women and men who have had their lives stolen from them by this harrowing crime. It is for the sake of these and future victims of stalking that we believe that it is vital that we get the changes right. We must address the problems of the existing law in full. Therefore, I strongly urge the Government to listen to the experts and victims and to support these amendments to their proposals today.
My Lords, it might be convenient if I intervene at this stage, partly because I have government amendments in this group—Amendments 6, 13, 16, 18, 29 and 32—partly so that I can explain what we are intending and partly to deal with some of the concerns raised by the noble Baroness and to pre-empt some of the debate, particularly as we are at Third Reading. I shall also speak at the end of the debate to deal with any points that have been made.
I am very grateful to the noble Baroness not only for her explanation of four of the amendments but because she has raised this issue throughout the passage of the Bill, as she was quite right to do. She was also right to pay tribute to Elfyn Llwyd, to his inquiry in another place and for all that that has done, for which we are grateful.
The noble Baroness referred to the comments from my right honourable friend the Prime Minister last Thursday on International Women’s Day. The Government made the point that:
“Stalking is an issue which affects many lives, often in devastating ways. That is why we are taking it seriously and introducing these new offences”—
my right honourable friend made it clear that we would bring forward amendments to the Bill—
“Offenders need to know that they will be brought to justice for making others’ lives a misery. We will do all we can to protect victims of stalking more effectively and to end this appalling crime”.
“we’ve got to make sure that as a separate criminal offence, it’s combined with: better training for the police; better training for the probation service; better training for our courts; better action by technology, telephone and digital companies, so we stamp out this evil”.
Throughout the House we agree that tough action needs to be taken, that new offences need to be introduced and that sentences must reflect the severity of the crime. The only thing that we disagree on is the drafting on how to achieve this aim.
Perhaps I may go through the government amendments. The new offence set out in government Amendment 6 will introduce two new, free-standing offences of “stalking” and “stalking involving fear of violence” that will sit alongside the existing harassment offences in the Act and will attract the same maximum penalties. The new offence of stalking under new Section 2A will be tried in the magistrates’ court, with a maximum penalty of six months’ imprisonment or a fine of up to level 5 on the standard scale—currently £5,000—or both. The new offence of stalking involving fear of violence under new Section 4A may be tried either way, in the magistrates’ court or the Crown Court. If tried in the Crown Court it will have a penalty of up to five years’ imprisonment or an unlimited fine, or both.
The noble Baroness tabled a number of amendments to Amendment 6. I will deal briefly with each of them. Amendments 7 and 8 relate to the list of examples of acts or omissions that may be associated with stalking. The list of behaviours is designed to provide examples of the core behaviours associated with stalking. This is a non-exhaustive list and will therefore cover forms of behaviour not yet developed. That is why it states, “for example”. For this reason there is nothing to be gained from adding the words “inter alia” as proposed by Amendment 7. The relevant subsection is already explicit that the list of acts or omissions provides examples only. Moreover, the use of the word “examples” has the advantage of being in English and so will be clear to police and prosecutors, who might not understand “inter alia”—although I imagine that they normally do.
Amendment 8 seeks to add a catch-all of,
“acting in any other way that would cause a reasonable person to suffer fear or alarm”,
as well as a power to add to the list of behaviours by order. As I indicated, the list provided is designed to be a non-exhaustive list of core behaviours associated with stalking. As such, it is not a definitive list of behaviours and so would cover other stalking behaviour that would cause a reasonable person to suffer fear or alarm. Moreover, given that the list is indicative, it is not necessary to take a power to add to it. Should it prove necessary to do so, we can issue guidance to the police to inform them of other behaviours that might be equally applicable. We want to ensure that we do not give stalkers an excuse to try to circumvent this legislation.
Amendment 9 seeks to make the new Section 2A offence an either-way offence with the same maximum penalty—five years’ imprisonment—as the new Section 4A offence. We need to take into account the behaviours criminalised by the new offence of stalking. Given that such behaviours fall short of putting someone in fear of violence, we believe that it is appropriate that this should be a summary-only offence attracting the usual maximum penalties for such offences.
The new Section 4A offence will be an either-way offence that may be tried in either court, and will attract higher penalties when tried on indictment. In this regard, it is worth pointing to the government amendment to Schedule 9, which adds the new offence of stalking involving fear of violence to the list of violent offences in Schedule 15 to the Criminal Justice Act 2003. The effect of this is that a conviction for such an offence can attract a public protection sentence which, under proposals in the LASPO Bill, will be an extended sentence. Such a sentence will see offenders serve at least two-thirds of their sentence in prison and be subject to longer periods of supervision on licence. We can therefore make a real distinction between lesser and more serious cases. We will accompany these offences with guidance and training for the police and prosecutors so that they understand this too. I believe it would be wrong to muddy the water between these two offences. If the concern is that the existing Section 2 offence is not being properly dealt with at present, and, together with the new Section 2A offence, will not be in future, then it is the practice on the ground that we must tackle, not the offence itself.
Amendments 10, 11 and 12 seek to extend the new Section 4A offence of stalking involving fear of violence. The suggestion appears to be that this offence will be difficult to prove because of the requirement to show that the alleged victim was in fear of violence. The noble Baroness, Lady Royall, has suggested that her Amendment 2 is preferable as the test there is whether the alleged victim suffered fear, alarm, distress or anxiety. Our approach with these two new offences, as with the existing harassment offences and many other areas of the criminal law, is to have a tiered approach which reflects the seriousness of the offending behaviours. Alarming a person or causing them distress would be caught by the summary offence of stalking. As such, an individual who stalked a person so as to cause them alarm or distress would be rightly charged with that offence.
If more serious behaviours were present, and those behaviours made the victim fear that violence would be used against them, then that would rightly attract the more severe penalties available for the Section 4A offence. I recognise that fear of violence may not of itself fully cover the trauma suffered by victims in the more serious cases of stalking. Such victims may not always be in fear of physical violence but they none the less suffer serious psychological harm. I recognise that we need to include this concept in our new Section 4A offence.
Having put down this amendment only late on Thursday last week, I accept that it is rather difficult to make manuscript amendments at Third Reading, but I ask the noble Baroness not to press her Amendments 10 and 12 on the understanding that the Government will bring forward amendments to the new Section 4A offence to import a reference when the Bill returns to the House of Commons next Monday. One could take any form of words: “severe alarm”, “severe distress”, “serious psychological harm” or similar wording. I do not want to get bogged down on the precise wording at this stage. We are still considering the precise formula, but it is important that I make an assurance that we are very keen to make sure that serious psychological harm gets included within that amendment.
I have asked my officials to meet Napo, which has played a key role in the independent inquiry conducted by Elfyn Llwyd on stalking, later this week to discuss the appropriate wording. I know that it has been speaking to a number of your Lordships—including, no doubt, the noble Baroness—and that it shares the concerns about the psychological impact that stalking has on victims. I also undertake to share the wording of the further amendment that we would bring forward in another place with the noble Baroness, and others, in advance of tabling it. Obviously, we will have to move fast later this week but, as she is aware, we have been capable of nimble footwork in the past.
Government Amendment 13 will introduce a new search power—I appreciate that search powers are somewhat controversial on occasions—exercisable by warrant for the lower-level stalking offence to allow the police to search for equipment used to stalk and to gather the evidence necessary to secure convictions and prevent stalking behaviour escalating. There is already a power of entry for the Sections 4 and 4A offences. Amendment 14 to government Amendment 13 seeks to add a further power of entry exercisable by a constable without a warrant or the consent of the occupier. This further power would apply to both the new stalking offence and the existing harassment offence.
We take the view that only those offences serious enough to be tried on indictment, such as our new Section 4A offence, should attract entry and search powers exercisable without a warrant following arrest. The new Section 2A offence, as a summary-only offence, is by definition less serious, and we consider that requiring a warrant for a search under new Section 2B represents an appropriate balance between protecting people from stalkers and respecting the rights of those who, at the point of the search, are unconvicted and therefore innocent in the eyes of the law.
Amendment 3, tabled by the noble Baroness, Lady Royall, introduces a requirement on the Secretary of State to ensure that serial stalking offenders are flagged on the police national database. I assure her that whenever someone has been convicted or cautioned for a stalking offence, as with any other recordable offence, that conviction or caution will be so recorded. If a local police force has information that a person may be a stalker but there is insufficient evidence to charge them, that information would be recorded on local police systems and reflected on the police national database, which can be accessed by all UK forces.
The police national database is an important new development, allowing greater visibility of all local records for investigative and policing purposes, and should be fully operational within the next 12 months. The management of all police information, national and local, is obviously a matter for chief officers, including whether information is or should be flagged up on the PNC. None the less, any such information held on local systems may, if relevant, be disclosable on an enhanced criminal record certificate.
The second part of Amendment 3 requires the Secretary of State to lay before Parliament an annual report on the implementation of an offence of stalking. Again, I am not persuaded that there is a need to impose a statutory duty to this effect. However, I can assure the noble Baroness that we will keep the new offences under review, and I am confident that the Government will face pretty thorough scrutiny on this issue as time goes on—as they should—and will, as a result, report to Parliament on these matters from time to time.
We hope that creating specific offences of stalking, along with a new search power, will raise the profile of this crime and ensure that more stalkers are brought to justice. However, we recognise that a change in the law alone is not enough. The Government’s revised action plan, Call to End Violence against Women and Girls, published only last Thursday, includes several actions to raise awareness of stalking and improve the training and guidance given to both police and prosecutors.
We believe that the government amendments deliver the outcomes sought by campaigners on this issue. They strengthen the law by providing for two new offences of stalking. We take this issue very seriously. If we did not, the Prime Minister would not have focused his speech on International Women’s Day on this subject.
On this basis, I hope that after we have had a debate the noble Baroness will feel able not to press her amendments, on the understanding that we will bring forward changes to the government amendments in another place to address her point about the psychological harm suffered by the victims of stalking. If she insists in pressing her amendments, I invite the House to reject them and support the Government’s alternative proposals.
My Lords, briefly, I congratulate the noble Baroness on her amendment, which has filled a gap in criminal law. I also congratulate the Government on giving an assurance that they will deal with its implementation, which they need to think of with care because it is not going to be so easy to implement.
My Lords, I am very grateful to the Minister for the Government’s considerable progress on stalking law reform since Report and for the government amendments laid before your Lordships’ House. I am also grateful for the amendments tabled by the noble Baroness, Lady Royall, which help to clarify some of the issues that many of us believe remain outstanding.
I am particularly grateful for the Minister’s clear response to the noble Baroness, Lady Royall, on her Amendments 10 to 12 which amend government Amendment 6. The issue around the Government’s new Section 4A and the insertion of the words “fear, alarm, distress or anxiety”, in whatever form that might take, as proposed by the noble Baroness, Lady Royall, really concern those of us who have been involved in stalking law reform for some time. There seems to have been confusion in some of the discussions outside your Lordships’ House. As long as “serious” and “severe” relate only to the psychological issues and not to fear of physical violence, that is a very helpful clarification. I am looking forward to the Commons consideration of Lords amendments next week.
The omission of those words in the government amendments today has caused complete consternation among victims, their families and the organisations working for stalking law reform. Those of us parliamentarians on the People’s Inquiry into Stalking Law Reform made it absolutely clear in our report that the serious psychological effects of stalking can be as devastating as violence. Often, the consequences are more long term—long after the physical bruises and the scars have diminished.
Last Thursday, three courageous victims—Tracey Morgan, Sam Taylor and Claire Waxman—who have all campaigned for stalking law reform for many years, discussed the need for reform and related it to their own cases. In his very welcome speech launching the reform on International Women’s Day, the Prime Minister made the point about long-term psychological damage to victims such as Tracey, Sam and Claire. I really hope that it was an oversight in the speed to get the government amendments out that these key and vital words were omitted from new Section 4A.
Last week, many victims and their families were talking at No. 10. They were initially overjoyed and relieved that at last the scourge of stalking would be recognised for the horrible and serious crime that it is and no longer lumped in, as we have said before in this House, with neighbourhood disputes. Many victims are diagnosed with post-traumatic stress disorder and others have breakdowns, all of which fits well with the description read out by the Minister.
Given the time that I have taken up in your Lordships’ House outlining the need for training and guidance throughout the criminal justice system, I was particularly pleased with the Prime Minister’s speech last week from which my noble friend quoted earlier in this debate. I am also pleased that another place will have the opportunity to discuss this key reform, as all the debate on stalking and the Protection of Freedoms Bill to date has been in your Lordships’ House. In particular, this will give Elfyn Llwyd MP, the chair of the People’s Inquiry into Stalking Law Reform, the opportunity to comment on these very welcome government amendments, even if some minor details need to be sorted out. The inquiry team, Protection against Stalking and the National Association of Probation Officers have worked cross-party and tirelessly to influence the Government. It has been a privilege to be a small part of that team.
I want to end by endorsing the Government’s amendments with the words of Tracey Morgan which seem particularly pertinent today. She said:
“The victims I hear from are saying the same things I was 15 years ago—what’s changed? We need to do more. This is about murder prevention”.
It is wonderful news that the Government are doing more and I know that that will prevent murder and other serious crimes against innocent victims of stalking. I hope that those who have long championed the change in the law will, at last, be able to hand the problem over to those in the criminal justice system, which is where it should be.
My Lords, as one of those who have taken part in the inquiry, I congratulate the Government on what they have come around to; that is, a serious awareness of the horrendous crime of stalking. In many cases the advent of the internet has been very valuable, although it is now quite often used for cyber stalking and this horrendous crime. It has to be tackled.
I also congratulate the noble Baroness, Lady Royall, on her attempt to produce the right form of words for this part of the Bill. On this point, I have one sadness, and that is that there is not a completely separate Bill on stalking. We all know how crowded our agendas are, but that would have been an important step. An actual Bill dedicated to stalking would stand out and attract everyone’s attention. In the mean time, I hope the Government will agree to the amendment tabled by the noble Baroness, Lady Royall. Picking up the threads, it sounds as if there really is a basis for giving the other place an opportunity to debate this important subject because I think that some of them are hardly aware of the issue. That would be an added plus.
There must be a clear understanding that what must be discussed are the horrendous psychological effects of this crime, which have been very well set out by the noble Baroness, Lady Brinton, who is an expert in the field. It is a form of psychological violence that may not be as visible as physical violence against women but, my goodness, the long-term effects are huge. With my fingers crossed, I hope that the right conclusions will be reached not just between all these Benches but between both Houses.
My Lords, the Government are indeed to be congratulated on having moved so positively and with such comparative speed following the report and their own consultation. I also congratulate the members of the parliamentary group and the individuals who have so bravely spoken out. I have one point to put and one question to ask.
The point is to encourage the Minister—not that I think he needs to be encouraged—with regard to the terminology, “fear, alarm, distress or anxiety”, as well as violence. I want to mention to the House that last week during the Report stage of the Legal Aid, Sentencing and Punishment of Offenders Bill, my noble friend Lord McNally, the Minister at the Ministry of Justice, put forward a definition of domestic violence that was agreed. It covers,
“threatening behaviour, violence or abuse whether psychological, physical, sexual, financial or emotional”.
As I say, I do not think that my noble friend needs encouragement, but if that is useful ammunition to pass on to those who are doing the drafting and who might be a little resistant to the extension, I hope he can use it. My question is about remedies. There is a provision in Section 3 of the 1997 Act for a restraining order. When the Act is amended, will that section remain available for use by a victim of an offence under either of the new sections? I am sorry that I did not give my noble friend notice of my question, but it only occurred to me during the first speech in this debate. Would Section 3 have to be used or is there an inherent right in the courts? I am thinking of an extreme situation, although they are all extreme, where someone is given a custodial sentence, but there is also a concern that he should stay away when he comes out of prison. I am particularly prompted in this because of the provision in Schedule 1 to the legal aid Bill which allows for civil legal aid services to be provided in relation to an injunction made under Section 3 of the Protection from Harassment Act 1997. I hope that everything which needs to be can be swept in the last knockings of this issue.
My Lords, I congratulate my noble friend on having brought forward these amendments. I was the subject of stalking for four or five months and a truly terrifying experience it is, too. I was stalked by a woman who rang me at all hours of the day and night and who I believed did not know where I lived. However, the day that I moved house and returned from the other place to my new home, I found a note through the door, saying, “I hope that you will be very happy in your new home”. Such an experience leaves you with an impression that there is somebody out there, waiting for you and watching for you. I am very pleased that the Government have moved on this because it is a very serious social problem.
My stalker was in the end revealed to be much more harmless than many, in the sense that her real name was Anita Hodgson—that is why she had appealed to me. She called herself Anita Windsor and believed that she had been married to Prince Charles and that people were denying her rights to join the Royal Family.
Perhaps I may say a word on Amendments 13 and 14, Amendment 13 already having been referred to by my noble friend the Minister as a government amendment and Amendment 14 being in the name of the former Leader of the House. I support both amendments and rejoice that Amendment 13 sets out exactly the right conditions and constraints on powers of entry. In the first instance, it requires a warrant; in the second, following your Lordships’ amendment on Report, it points out that premises may be entered without the agreement of the occupier in cases where the authority using the power can demonstrate that the aim and use of the power would be frustrated if a warrant or agreement were sought. That is very neatly replicated in the government Amendment 13. I am glad that the Government are at last taking an approach that should be used for all powers of entry. I totally support the Leader of the Opposition’s Amendment 14. Again, it will ensure that the amendment proposed by your Lordships' House on Report is perfectly consistent with all matters connected with the Bill. They are worthwhile changes, as well as dealing with the serious problem of stalking.
My Lords, my noble friends Lady Brinton and Lady Hamwee were absolutely correct about getting the wording right. That is why I wanted to make it quite clear that I could not give the precise words at this stage and why it is very important that we have further discussions, as I promised, with Napo, which will take place this week. I along with other colleagues in the ministerial team will make sure that we get the wording right.
I also note the point made by my noble friend Lady Hamwee about the importance of consistency of language between one piece of legislation and another, and what she said about the legal aid Bill. The danger of inconsistency is that when legislation comes to be interpreted by the courts they have to think why Parliament has used different words on different occasions. So I note what my noble friend had to say and we will discuss it during the week. However, I cannot give any cast-iron guarantees at this stage other than what I have said. My noble friend Lady Brinton said how happy she was that the amendments would now give an opportunity for another place to discuss these matters.
The noble Baroness, Lady Howe, said that she would prefer a completely separate Bill. However, in the nature of these things, that is not always possible. My right honourable friend the Prime Minister recognised that here is an opportunity where we can do something, particularly in the light of the earlier discussions we had had on the Bill—I again pay tribute to the noble Baroness, Lady Royall—and the commitments I had given on Report. I hope that we can make some progress on that front but, obviously, it cannot be the Bill that the noble Baroness would like in an ideal world. This is not always an ideal world and we sometimes have to make use of what we have.
My noble friend Lady Hamwee also asked about remedies, particularly in relation to the point she made about the restraining order. I can assure her that the restraining order is contingent on Section 1. It remains unchanged and therefore will be incorporated into the stalking offences. I understand that it can be used for the offences under proposed new Sections 2A and 4A. If I am wrong about that, I shall get back to my noble friend and all other noble Lords as quickly as possible.
The point made by my noble friend Lord Hodgson about having been a victim of stalking some years ago was a useful intervention. It reminded the House that this offence does not necessarily affect only women but can affect people of either sex. We have to remember that point even though, in the main, victims tend to be women. That is why my right honourable friend the Prime Minister made his announcement on another day.
I hope that both in this brief intervention and in my earlier remarks I have satisfied most of the points raised by the noble Baroness. I will listen with care to what she has to say and then it will be for the House to make up its own mind.
I am grateful to the Minister and to all noble Lords who have participated in this short but excellent debate.
I understand what the noble Baroness, Lady Howe, said about ideally having a separate Bill. However, I am delighted that the noble Lord has taken the opportunity to introduce these offences into the Bill. It means that more women and men will be protected in the very near future. Who knows how long a separate Bill would take to get onto the statute book.
On the amendments I have tabled, I well understand that the House would not be behind Amendments 2 and 3 and I accept that. On Amendments 7 and 8, I hear what the Minister said about his words being merely examples and I reluctantly accept that. However, the police in Gloucestershire would certainly understand “inter alia”, even if the police in Cumbria would not.
I was disappointed by the Minister’s response to Amendment 9 for two reasons. From time to time, cases are discussed by a magistrates’ court but, in the course of the proceedings, it becomes clear that the evidence shows there is more to a case than at first seemed. It would then be entirely appropriate for the court to decide that the case should be tried in a Crown Court so that an offender could be given the maximum sentence if necessary. I am also very concerned about repeat offenders. As we know, in the past there has been a problem for victims who have suffered from people who have offended time and time again. Under the proposals put forward by the noble Lord, if someone repeats a minor offence, he or she will continue to be tried in a magistrates’ court—it will be a summary offence—and on each occasion they will be eligible for a maximum sentence of six months. I do not think that that is enough.
The key amendments are clearly Amendments 10, 11 and 12. I hear what the Minister says and am grateful for his assurances that the Government will bring forward new wording that will take into account serious psychological harm, which can be absolutely devastating, as the noble Baroness, Lady Brinton, said. In fact, in some ways it can be even worse than the fear of physical violence. The words in my amendment are those proposed by the independent inquiry, the victims and the experts, and are tried and tested words that have been proven to get results in Scotland. Why will the Minister not accept my amendment and then, if necessary, look at the matter more closely before it is discussed in the other place? I am glad that the other place will, in any event, have an opportunity to debate these very important issues. Although I fully accept the Minister’s proven good intentions as well as those of the Prime Minister, I am slightly concerned that throughout the very welcome process that we have undergone as a result of the deliberations in this Chamber, at each stage there has been a slight impediment to the progress that could properly and better be made. I am concerned that we will not get the wording that we in this House and everybody deems necessary. Therefore, I would feel much more comfortable if the Minister could say that he accepted my amendment and would then act accordingly in the House of Commons.
I also have some concern about Amendment 14. Under current legislation, those arrested for relatively minor drugs or theft offences can have their premises searched on the advice of a police inspector that a warrant is not required. That makes the whole issue relating to stalking seem to be less important. As we know that cyber-criminals are becoming more and more active, I am worried that if people have to wait for a warrant the necessary material in the house could disappear before a warrant is obtained and the premises properly searched. Therefore, I have concern about Amendment 14.
I am very grateful to the Minister for having come as far as he has come. I know that he is pushing the boundaries to ensure that we get the right results in the end with the appropriate wording in the Bill. However, I urge the Minister at this late stage to accept Amendment 11. I am withdrawing my amendment with a slightly heavy heart because I want to be confident that the Bill is absolutely right to guarantee the safety of men and women and ensure that perpetrators of stalking are not only apprehended but imprisoned and given the right treatment where necessary. I would also like to withdraw the amendment knowing that we will have a further opportunity briefly to consider and vote on these issues in the consideration of Commons amendments at the next stage in this House. Will the Minister accept Amendment 11, the key amendment with the key wording, which is of such importance to victims, campaigners and all those involved in these issues?
My Lords, I made it clear to the noble Baroness that I could not accept Amendments 10, 11 or 12—all three go together. The point I was trying to make is that we want to get this wording right, and I do not want to be bound by precisely those words. We have moved pretty fast since the end of our consultation and the end of the independent inquiry. We have brought forward this amendment, which we announced last week. I then made it clear that we would have further discussions with NAPO on this matter. That is what I want to do. I do not want to bind us before we have those discussions by accepting the precise wording of those amendments. That is why I made it clear in my opening speech that we wanted to address the spirit behind them but that we wanted to discuss these matters further. I cannot accept Amendments 10, 11 or 12, but the noble Baroness has heard the commitment I have made. With that, I hope that when we finally get to those amendments—I appreciate that we have one or two debates to go before then—she will feel it is not necessary to move them. We can discuss them after another place has discussed them.
Amendment 2 withdrawn.
Amendment 3 not moved.
Clause 64 : Restriction of scope of regulated activities: children
4: Clause 64, page 53, line 9, at end insert “and includes the monitoring of verbal, sign language and written communication between the supervised person and such children”
My Lords, this group of amendments deals with the vetting and barring of people working with children. I am grateful to the Minister for the meeting that took place with a number of your Lordships to consider these complicated and difficult issues. The breadth of attendance at that meeting indicated that this is a widespread, non-political concern about trying to get this part of the Bill to be as good as we can get it.
The Government are trying to reduce the number of people and individuals who have to be subjected to a vetting process before they can be employed. That general objective of reducing the numbers who go through this process is entirely laudable, but the balance has to be struck between that desire to reduce numbers and ensuring that children and young people can safely take part in activities, knowing that the adults who are working with them are proper individuals who can be trusted with children. The legislation would include certain categories automatically, in an expectation that they would be subjected to the vetting arrangements. Yet volunteers and others may not be subject to such vetting if they are under day-to-day supervision, which the Government have defined within the amendments considered at the previous stage of this Bill. I do not believe that the question of day-to-day supervision, however defined and however much additional guidance is issued, will automatically be a helpful distinction.
I think that many of your Lordships will have received a very helpful briefing from the children's charities, which have highlighted why this is an issue. They say that Clause 64,
“revises the definition of regulated activity which includes all the positions covered by vetting and barring arrangements. If positions are not included in regulated activity employers will not have to check people who work in these roles and even if they do, they will not be told if the individual is barred from working with children or vulnerable adults”.
The situation is that as the legislation stands, people who are subject to day-to-day supervision do not need to be checked. Even if they are checked, the information that will emerge from CRB and enhanced CRB checks may not necessarily include the barring information showing that incidents have occurred in previous employments, or whatever else may be the case. That is where there is a serious loophole. Indeed, the briefing goes on to say:
“We are concerned that the proposed definition of regulated activity does not cover some groups of people who have frequent and close contact with children. This creates risks for children. Those who seek to harm children can be predatory and manipulative. If certain types of work are exempt from vetting and barring, in some sectors or settings, but not in others, dangerous adults are likely to target those organisations with weaker arrangements”.
Let us be clear: this is not about activities that take place in a supervised environment. Obviously, you would trust any organisation to have arrangements to ensure that a child is not abused in a classroom or changing room. The risk is in the relationship that may build up between a child and someone who is in a supervised setting but who is a volunteer and has not been subject to proper vetting where the child and their parents will assume that that is a trusted person, someone who is safe. The risk is that the undesirable contact will not happen in school, at the after-school club or in the sports facility; it will happen separately and elsewhere because there has been an assumption that that person is trusted.
At an earlier stage the Minister talked about the role of parents and said that they also had a duty to protect their children. No one is denying that, nor is anyone suggesting that it is possible with these arrangements to protect every child from every adult who may have malign intent towards them. However, this is about trying to ensure that you can protect children appropriately under the circumstances. I ask noble Lords to put themselves in the position of having a child in a setting that they assume is secure and where they assume that staff are properly vetted, only to be told after some appalling event, “Well, we checked but we didn’t have access to all the information about that individual because it was on the barred list and not included in the extended CRB check”, or, “We didn’t need to check because the individual was subject to day-to-day supervision”.
At an earlier stage the Minister promised us that guidance was going to be issued about the nature of day-to-day supervision and about what could and could not be applied for. The purpose of my Amendment 4 is to try to make it clear how difficult it will be to frame that guidance appropriately. It is trying to say that, unless you are supervising the relationship between that adult and that child to the extent that you know the nature of all the conversations and the contact taking place between them, you do not know whether you may have created an environment in which the adult may abuse the child outside that setting. It is so easy for a helper to say, “Oh, I’ve got the latest version of such-and-such a computer game at home; if you want to see it, friend me on Facebook and I will make the arrangements”. Unless day-to-day supervision prevents those conversations, that is where the vulnerability occurs. That is why there is a risk around this issue. I would love it if the Minister could stand up and tell us how the guidance would prevent those situations from happening. I hope that with this amendment I have clarified that that is the sort of thing that needs to be covered within that guidance.
There are a number of alternatives here. One would be for a school, a club or whatever to say to children and parents, “We have got proper vetting information about the following people who your child will encounter, but we are not able to obtain full vetting information about all the others”. That is not a satisfactory arrangement for the adult who is included in the second list, and it is certainly not an adequately safe arrangement.
I am not clear how guidance on the issue of supervision is going to protect children. That is why I put my name to Amendment 5, which tries to move the argument on to say that it is important that organisations that are engaging volunteers and so on have the right to be given all that information. You are put in an appalling position if you run a youth club and have tried to do everything that you can, so you have run a CRB check, but you do not know, because you are not allowed to know, that the individual concerned is in fact barred from contact with children. However much day-to-day supervision there is, and however well specified it is in the Government’s guidance, that situation will not be remedied.
In responding to these amendments, I hope that the Minister will demonstrate how the Government will take on board the real concerns expressed by your Lordships from all four corners of the House, and make sure that Parliament is not inadvertently creating an appalling loophole that will put children at risk in the future. I beg to move.
My Lords, I will speak to Amendment 5, which is in my name. Since it is a complex issue, I hope your Lordships will bear with me while I explain precisely what is in that amendment. Inevitably, I may trespass on some of the ground that the noble Lord, Lord Harris, has already touched on.
Essentially, the amendment has four components. The first provides that anyone who permits an individual to work regularly and closely with children, in whatever setting and even if the activity is not regulated, can obtain an enhanced criminal record certificate, which will disclose any convictions and any intelligence held by the police about that individual and which is relevant to that employment. It is important to note that the responsibility for deciding whether such a check is necessary would in future rest with the employer and not be required by law. The employer would be the person who makes a judgment on whether such a check is needed, based on their knowledge of the activity and the local circumstances concerned.
The second component provides that the Secretary of State will offer guidance on what is meant by “regular and close contact”, which will help employers to make their decision.
The third part provides that the guidance should also recommend that enhanced criminal record checks be made where individuals work regularly and closely with children.
The fourth part of the amendment would ensure that the enhanced criminal record checks should also give access to suitability information relating to children under the provisions of the Police Act 1997. Put simply, this would give access to information about individuals who are barred from working with children or vulnerable adults in a regulated activity, and whose names therefore appear on one or other of the so-called barring lists.
The Minister may well find this last component of the amendment difficult. It might be argued that information that causes an individual to be barred from working with children in a regulated activity is not relevant to their working with children under supervision in a non-regulated activity, even if the contact is close and regular. I take a contrary view to that argument for the following reasons.
First, anyone working with a child in situations in which they have an opportunity to develop a bond of trust can groom that child and then exploit the bond of trust when they are not being supervised. No amount of supervision, however intensive, can prevent that bond of trust being established. We all know that the opportunities to exploit it are increasingly available, not least via social networking sites.
The second reason why I do not accept that argument, which was touched on by the noble Lord, Lord Harris, is that children build trust with individuals who work with them in, for example, youth clubs, colleges or sports clubs. However, that trust is not exclusive to those settings. If they encounter that adult on other occasions, they are likely to invest the same trust in them and therefore be vulnerable to them. That is why the issue for me is not, and never has been, the quality of supervision, but rather whether the adult might pose a risk to the child. If someone is on a list which bars them from working with children in unsupervised situations, it seems to me that that information should be made available to employers who are considering whether or not to allow those persons regular and close access to children. Not all noble Lords will be aware that one in five of the people on the barring list has not come in contact with the police; they are there because of information that has been provided—for example, by previous employers.
I ask noble Lords to envisage the circumstances whereby an individual is allowed to work with children on a close and regular basis following a CRB check, that individual then abuses a child and the employer subsequently discovers that the individual was on a barred list but that this information had not been made available to them because of this legislation at the time they took the decision to employ that person. That would be very difficult to justify and explain to the employer, the parent, or indeed to the public at large.
This amendment is not about allowing more CRB checks to be made; it is for employers to take that decision. It is not about the state requiring employers to do something which some might regard as unnecessary. It is simply about giving employers the data which are available and which will help them to make an informed decision. I have sought in this amendment to produce a system which is simple and proportionate. Therefore, I have avoided distinguishing between settings such as colleges, schools and clubs. Instead the amendment refers to “regular and close contact” wherever it occurs. I have left the final decision with the employer. I accept that the current arrangements are not proportionate and are too bureaucratic, but we must ensure that any revised arrangements are comprehensible, consistent across settings and place the safety of the child above all other considerations.
My Lords, I welcome hugely the amendment in the name of the noble Lord, Lord Harris, and that in the name of the noble Lord, Lord Bichard. I particularly welcome them because I firmly believe that they need to be accepted as they would strengthen the Bill and make it a much safer document.
From the point of view of the churches, other faith groups and voluntary organisations, the amendments have the great advantage of making it possible for the first time within the Bill for there to be CRB checks for volunteers. To my mind, without these amendments, there is a serious omission in that regard. By broadening out that eligibility, the amendments would allow the churches to have CRB checks for Sunday school teachers, youth workers or perhaps organists who have the role of musical director for children’s choirs.
This is a complex area regarding how we within the churches, and therefore within the church communities, have been able to check using eligibility that has until now conferred by either the broad understanding of regulated activity as it has been hitherto, or having to use the concept of regulated positions from the Criminal Justice and Court Services Act 2000. However, there has until now been no recognition in the Bill of the role of the volunteers; hence, my welcome for the two amendments in the group.
Amendment 5 in the name of the noble Lord, Lord Bichard, specifically includes making those responsible for the employment and appointment of people who meet the definition eligible to make enhanced CRB checks and obtain suitable information, which we understand, and hope will be understood, to mean the vetting and barring information to which the noble Lord has made reference. However, I would make a slight qualification to what he said. He used the term “employer” throughout most of his speech, although his amendment does not do so. I want that term to be understood to include, say, a church that has volunteers, and for “employer” not necessarily to mean paid employees. Provided it is understood to include volunteers, we would be of one mind on this.
The amendment gives space, as we have been told and as the wording makes clear, for the Secretary of State to define what is meant by the phrase “regular and close contact”. Those words could be a little slippery. It is difficult for us within our churches to be specific as to what “regular” means, and we commend the approach used in Scotland, where the protection of vulnerable groups scheme also requires regular contact, but “regular” is defined there as a core part of the role rather than by a weekly or even monthly requirement. I ask noble Lords to picture a situation, perhaps in one of our village churches in our diocese of Hereford, where there might be only a monthly Sunday school or family service and where the key adults have regular but only monthly contact. Or, perhaps in one of our more urban situations, there might be a holiday play scheme whereby the adult workers, although they may regularly be involved each year, would be there for only four or five days a week in the summer holidays. However, in all those situations, the workers get to know the children well and, as the noble Lords, Lord Harris and Lord Bichard, said, the point is about access.
However, I would add a further dimension to what they said. This is also about the authority that we the church give if these workers are used, and known to be used, as volunteers within the life of the church. It makes the child think, “That is the nice Mr So-and-so who I know from church, so he is safe”. That is the assumption made. We are responsible for giving that authority, and that is part of what concerns me so strongly and why I welcome this amendment. It recognises that when such volunteers take a role, even if it is not frequent but is nevertheless regular, it is possible to build up authority and therefore trust, as well as access. That access is not about just the supervised range of the activity. The access exists outside; and that is the crucial part for me. We have been reminded that access is there within social networking, but it should be recognised, please, that access is available in lots of other ways. Half the population of the diocese of Hereford, which includes south Shropshire as well as Herefordshire, live in villages of 500 people or less. If you live in a village of 500 people, your family knows all the other families, and there is therefore trust and access. You are bound to see people at other times. It is inevitable, and that is the nature of community and village life. To say that because the regulated activity is safe, everything else is safe, is frankly not sufficient. We are responsible by giving authority and access. Therefore, it is crucial that we can also have the CRB checks.
I emphasise my strong welcome for the amendment; I would love it to be extended from just children and young people to vulnerable adults, because we could have had the same debate on the same issues there.
My Lords, I support the amendment of the noble Lord, Lord Bichard. It may be moderate and proportionate but has the potential to close a dangerous loophole in the Bill. Both he and the noble Lord, Lord Harris, have explained clearly the issues of secondary access, so, it being Third Reading, I do not intend to repeat them.
I do not support the amendment of the noble Lord, Lord Harris of Haringey. As he hinted, it is intended to highlight the fact that it is impossible for any employer or organiser of volunteers, however conscientiously they supervise a person working with children, to supervise them when they are off the premises. That leads us to the point that we have to ensure that the people who are on the premises working with children are safe to do so.
I hope that my noble friend will be able to assure the noble Lord, Lord Bichard, that his amendment is unnecessary. I hope that he will give him 100 per cent assurance, not just 80 per cent assurance. By that I mean that barring information will be made available to conscientious volunteer organisers or employers of paid employees.
We should cast our minds back to when the Safeguarding Vulnerable Groups Act was introduced. It was brought in because it was discovered that paedophiles were working in schools. At that time, the hapless Minister was made responsible. As a result, we set up an Act of Parliament to put in place a committee of experts to decide whether the information available made it possible to say whether that person was safe to work with children.
As the noble Lord, Lord Bichard, pointed out, only 80 per cent of the people who have been decided by the expert panel to be unsafe are known to the police. I point out that the enhanced CRB check contains information about not just charges and convictions but other information only if the police, at their discretion, think it is relevant to release it.
That expert committee has barred one in five people not as a result of police information but because of other information that the police do not know and therefore could not release even if they wanted to. Those experts believe that the information passed to them is serious enough to bar that person from working with children. Given that you cannot supervise a person 100 per cent even on the premises, and you certainly cannot supervise a person off the premises, it is only right that conscientious employers who want to do the right thing for the young people in their charge should be able to have that information—not just the police information but the information from the expert committee, which we as a Parliament have set up, and which believes that that person is not safe to work with children.
That is particularly important given that we are taking away certain roles from regulated work. That means that organisations such as FE colleges cannot under the Bill get that information about some of their employees. That beats me. I cannot for the life of me figure out why the Government feel that it is appropriate to treat young people in colleges differently from those very same children when they go to a school for the rest of the week. However, that is beside the point, because the amendment of the noble Lord, Lord Bichard, would allow employers in colleges to obtain the information that they are crying out for to enable them to protect young people in their charge. I hope that my noble friend will be able to give us a 100 per cent assurance that those risks and loopholes will be closed.
My Lords, everyone is singing from the same hymn sheet on this matter. These are very well meaning amendments and I thoroughly approve of the sentiment behind them but I should like to strike a note of caution: I am not sure that they will necessarily work in the real world because rules do not protect people.
I think that we are going to get the same problem as arises with the Health and Safety Executive. I know that applying for CRB information is supposed to be voluntary but colleges will protect themselves defensively by automatically asking for checks on everyone. Such requests will become standard and we will be back where we were. The purpose of the Bill is partly to try to reduce the number of checks being carried out, as they have been blocking perfectly good and well known people working in situations where they might come into contact with children or whatever. We were going so far overboard that something had to be done to roll the situation back, and we have to be careful that we do not end up back where we were.
The other thing is that we must think about how effective all this checking is. We know that several thousand records are incorrect, with people having a black mark against their name because the name given is wrong or whatever, but the trouble is that we do not know who they are. They are being criminalised when they are not criminals at all and have never been in contact with children in any way. They are not even victims of hearsay.
The second problem is that 20 per cent of the people on the register, I am horrified to say, are there as a result of unverified hearsay. That may be perfectly all right, as I expect that a large proportion of those people will have done something wrong. However, what about those who cannot do anything about it because they do not know that someone—possibly for a thousand and one reasons—has given information which could be blocking them?
My final point is about keeping our eyes open. It has to be remembered that in many instances someone without a criminal record will just be someone who has not yet been caught. Therefore, just because they do not have a criminal record does not mean that they are okay, and that is why I think that we have to start keeping our eyes open. The trouble is that we trust too much in box-ticking, and that then also constrains the people who are trying to protect the children—the governors and teachers. My wife is a senior school governor and was recently involved in a case where she had to go to court because the school in question was trying to fire a teacher. This is an example of something happening off the premises. It involved a friend of the teacher who was behaving inappropriately towards the children. The teacher’s union defended the teacher’s right to continue to work at the school, despite the teacher having shown appalling judgment. The school was terrified of losing the case. My wife spent a huge amount of unpaid voluntary time in her busy day learning about the law and how to deal with the case in court and so on because she was going to have to attend the hearing. If she got it wrong, the teacher would be allowed to continue to be in close contact with the children. Therefore, you need to keep your eyes open.
We can often detect the bad eggs but the problem is that employment law does not let us do anything about it. I think that we need to look at how employment law restricts our ability to protect children, because you cannot say to someone, “You don’t fit in. Your face doesn’t fit—we think there’s something wrong about it”; you have to continue employing them. Although it may not be a matter for this Bill, I think that some effort should be made in that direction, rather than just trying to tick more boxes. The databases are inaccurate and, on their own, will not protect children.
My Lords, I support the amendment of the noble Lord, Lord Bichard, and I understand why the noble Lord, Lord Harris, has tabled his amendment as an example. I say to the noble Earl who has just spoken that I, too, live in the real world—having spent more years in it than I am prepared to admit—dealing with victims and abusers. That is why I believe it is crucial that the Government listen very carefully to what is said on this amendment. It is only describing close and regular contact, and that is the absolute key.
This week, the Lucy Faithfull Foundation celebrates 20 years’ work. As the noble Lord will know, Lucy was a very eminent Member of his Benches. During that time, the foundation undertook all the background work that has led to the understanding of grooming. Other organisations have picked up that work and developed it, but the basic work was developed and continued by that foundation. That work informs the knowledge of grooming and how children develop relationships and trust in adults whom they get to know in settings where they believe that they are safe. Indeed, I remind the noble Lord that some children are seriously abused within those settings. I cite the example of a teacher who regularly abused a number of small children in a classroom, until he was found out. These people are clever; they are totally able to deceive; and we have to recognise that the law has to be as clever as they are.
I accept, as the noble Lord, Lord Bichard, said, that some of the regulations have not been appropriate. I recognise that the stewards who are to look after the Jubilee run in my local village now have to be checked, but they should not be checked because they will not have close and regular contact. The general public became very concerned and anxious about the fact that ordinary folk, doing an odd bit of volunteering, might be caught by the checks.
The other difficulty is that, if you work in a number of voluntary organisations, you have to be checked for each of them. The actual system has never really caught up with modern life. You do not want to know how many police checks I have. They are in a little folder and they have to be updated regularly. That is bureaucratic nonsense. Those are the kind of issues to which the Government should turn their minds and not to removing the protection of children.
Like the noble Lord, I too accept that something needs to be done about employment tribunals, but that is a totally different issue. The fact that the disciplinary procedure that takes people through schools and other organisations is protracted is bad for children as well as adults. I have known children who have been dragged through places for months, not knowing what is going to happen, before even the main case comes to court. That is an issue but it is not the same issue and it should not allow your Lordships to be distracted from the main point, which is protecting children.
I pay huge tribute to the noble Lord, Lord Bichard, who has carefully set out his points, which is why I am not trying to go through his intellectual arguments. I am simply trying to appeal to your Lordships’ consciences in relation to where we are in protecting children in this country, which is a good place. The noble Baroness, Lady Walmsley, has played her part in getting us to this place. Many noble Lords have worked towards it. Remember, the noble Lord, Lord Bichard, like many of us who work in this area, knows about the pain. Soham taught him a great deal about the pain that is caused if you do not pay attention to this. Soham concerned someone who was previously known but who was not properly checked before he worked in the school.
I have dealt with the stories of children and families that you would not wish to hear: from those whose children’s lives have been totally destroyed to those who have lost children. Therefore, all we are asking the Government to do is to ensure that when someone is in close and regular contact with children—not the steward and not a parent who goes on a group trip once a year—they are checked and that those checks are given to employers.
The church is another very good example. I have worked with people in churches who have had to deal with situations where wonderful people, as they are described, turned out to be serial and serious abusers. The Lucy Faithfull Foundation staff work not with nasty-looking people in raincoats but with respectable, professional, well meaning, well presented adults, who turn out to be the most horrendous predatory paedophiles. We must remember that and protect our children.
My Lords, I regret that I was not able to be present for the debate on Report, and I am therefore glad to have this opportunity to make brief comments on the progress that has been made on this part of the Bill. In the long innings of the Bill, I started off as an attacking batsman working with the sports and recreation sector in seeking to knock certain aspects of it out of the ground. I am now sufficiently reassured to play a steady, forward-defensive, strong and resolute stroke against the proposed amendment.
In previous debates, my sporting colleagues and I, including my noble friend Lord Addington, highlighted the concerns voiced by the sport and recreation sector, which has more volunteers than any other sector in the United Kingdom—no fewer than 2 million. The central concern was that the term “day-to-day supervision” was not workable for organisations that safeguard children in a wide range of specialised and unique environments. However, I very much welcome the clarity provided by the amended qualitative description of supervision, and was greatly encouraged by the assurance given by the Minister on Report that sports organisations would have precisely the discretion that they need in determining the appropriate level of checking for voluntary roles.
In counteracting the arguments put forward by the noble Lord, Lord Harris, I am grateful to the Government for having listened and responded in this way. My sentiments are echoed by the England and Wales Cricket Board, the Football Association and other members of the Sport and Recreation Alliance, which represents more than 300 governing bodies. The Government have struck the right balance and arrived at a proportionate place, and I look forward to hearing what the Minister will say today.
The governing bodies of sport are keen for this receptive dialogue to continue, and I welcome the Minister’s other assurances on Report that his department will work alongside the sport and recreation sector to develop guidance and implement the new safeguarding framework, including in the further education sector. The noble Baroness, Lady Walmsley, spoke about that. Organisations that administer sport and recreation will need to plan well in advance of changes to ensure that the new system is implemented effectively. Therefore, anything that the Minister can say to reassure the hard-working staff of these governing bodies about the timeline and the process of the consultation will be greatly appreciated.
In conclusion, my key point, having had several in-depth meetings with the Minister and his team, and consulted very widely with national governing bodies of sport, is that we have been assured that safeguarding children will always be a priority of this Government. Safeguarding is the responsibility of everyone—the Government, employers, voluntary organisations and communities. The Government can ensure proper eligibility for criminal record disclosures for those working with vulnerable groups. However, it is also the responsibility of employers and voluntary organisations to ensure that they have in place proper, risk-based safeguarding mechanisms that protect children, and that they do not rely solely on a criminal record or barred-list check. Additionally, taking some supervised work out of regulated activity will give employers and administrators scope to make the appropriate judgment, and will reduce the burden on employers and encourage volunteering.
We in the sector that I represent have been assured that statutory guidance on supervision will be provided. The Bill makes it clear that supervision must be reasonable in all circumstances for protecting the children concerned. People working closely with children but not within regulated activities will be eligible for enhanced criminal record certificates. It is not right to provide barred-list information on enhanced criminal record certificates that does not relate to regulated activity. The information is not relevant to employers who are not providing regulated activities, and could lead to too many people being barred from work in which barring is not relevant. This action could significantly expand the scope of the scheme, possibly to greater numbers than proposed by the old scheme. With this proportionate and balanced understanding and government assurances, I feel it would be unwise to support Amendment 5 because it would take the regime back to something that would be disproportionate and would discourage volunteering across all sectors of life.
My Lords, I very much support what the noble Baroness, Lady Howe, said from her enormous experience. I suggest that the House and particularly the Minister should take very careful account of it. Saying that means that I very much support what the noble Lord, Lord Bichard, said about his amendment, which I also support. I do not at the moment think that I support what the noble Lord, Lord Harris of Haringey, said. The amendment tabled by the noble Lord, Lord Bichard, is the one that matters.
The important point is regular and close contact with children. I listened with some dismay to the noble Baroness, Lady Heyhoe Flint, because I am not sure that she is talking about what we are talking about. I do not believe that what she said is really what we are concerned with on this amendment. I am a school governor—I am going to a governors’ meeting tomorrow—and I have been CRB checked, but I cannot see for what reason I should be CRB checked because I never see a child without someone else there. Even when I go around the school, I am always accompanied. That is not what this amendment is about. It is about regular and close contact with children, as I said, and that is the point on which noble Lords should concentrate.
My Lords, I thank the noble Lord, Lord Bichard, for putting forward this amendment. His huge experience and understanding of this issue give this amendment strength across the Chamber. Noble Lords will be aware that in the earlier stages of the Bill I put down amendments in relation to further education in particular. From the start, I have been very concerned that the Government’s vision of the world of education is just too neat and tidy and has clear demarcation lines. In practice, life is not like that. The Association of Colleges, which represents the colleges, shares those concerns. It suggested that further education and sixth-form colleges should be placed in the same category as schools. The amendment tabled by the noble Lord, Lord Bichard, uses a form of words that takes a different, but appropriate, approach. It is a subtle, flexible approach that is suitable across a variety of settings, not just in further education or the world of education as a whole but in the church, voluntary organisations, leisure activities and so on.
In practice, young people develop relationships of trust with people to whom they can directly relate and who are helpful to them. Indeed, they often fight shy of relating to, liaising with or trusting the people who are formally in charge of a situation. Very vulnerable young people will instinctively shy away from figures of authority, so very often they develop a bond of trust with the lady in the canteen who gives them a extra-large helping, the IT technician who helps them sort out their computer, the lady in the library who does not give them a fine when they bring a book back late, or even the groundsman who has found them smoking secretly in a corner and has not told people in authority. Therefore, it is not easy to define that situation.
I was concerned because I believed the Government had overlooked the fact that tens of thousands of 14 to 16 year-olds are educated in further education colleges. It is important to remind ourselves that children are under 18 and that two-thirds of A-levels in this country are taken in further education colleges—many, of course, by adults but also a very large number by 16 to 18 year-olds.
In addressing our remarks, perhaps the Minister could refer to vulnerable adults. There are many of those in further education colleges, but also in a variety of leisure settings, which could be covered by the definition in the amendment tabled by the noble Lord, Lord Bichard. The Government need to address that situation.
Finally, I very much welcome the fact that Amendment 5 puts the onus on employers. It makes it clear that good and responsible employers will be expected to seek that information. The noble Earl, Lord Erroll, referred to risk. It is important that we accept that we cannot rule out risk. Risk will always exist, but this amendment puts the onus on good employers to act in this appropriate manner.
I look forward to the Minister’s response and I very much hope that he will be able to reassure us that the Government have taken the purpose of this amendment to heart.
My Lords, I participated in the Second Reading debate in November. I have not participated in the stages since, although I have read the proceedings in Hansard with some care. I intend to ask my noble friend to reject these amendments but, before I turn to the substance of my remarks and because this is such a difficult and emotional subject, I hope the House will permit me a brief diversion.
At Second Reading, I made it clear that I thought the activities of those who preyed on children—or vulnerable adults, as the noble Baroness has just said—were repulsive. That was the word I used then and I use it again this afternoon. I went on to argue for the need for proportionality and the measurement of effectiveness and impact and so forth. Therefore, I was very disappointed when the noble Lord, Lord Rosser—I am pleased to see him in his place on the Front Bench—said in his winding-up remarks:
“It is all very well wanting to reduce regulation, as clearly the noble Lord, Lord Hodgson of Astley Abbotts, does, but not if it is at the expense of someone else’s safety”.—[Official Report, 8/11/11; col. 219.]
I regard that as a cheap shot. I am happy to be told that my judgment is wrong, that my understanding of the law is wrong or that the practical implications of what I am proposing are wrong, but I am not prepared to be told that I put the reduction of the regulatory burden before the safety of children. That was unfair.
The noble Baroness, Lady Howarth, gave the House a graphic explanation of her work in this area. I will just add my own few words. My wife’s cousin is a forensic pathologist, and he undertakes for the noble Lord’s department post-mortems of the most searing kind. I talked to him about his work and I asked him if he did not find it rather macabre. He said, “Not really, because I am a detective. Some detectives will crawl across the carpet looking for clues in the fibres. I am finding the clues in people, and I am therefore able to convict the guilty and let the innocent go free”. Because I am squeamish, I also say, “Isn’t it rather strange to be dealing with corpses?”. He said, “By the natural order of things you get used to it but when we have a child brought into our post-mortem room, there is a palpable change in the atmosphere, the tension and the behaviour of the team”. Whatever I am saying about the need to not accept these amendments, it is not because I think that children should not be protected. That forensic pathologist’s stories of the things he has seen are harrowing beyond belief.
On 6 February 2012, the second day on Report, in moving his amendment, the noble Lord, Lord Bichard, said,
“first, that we cannot create a risk-free society; secondly, that the steps we take to minimise risk should be proportionate. For those reasons, I very much sympathise with and support the Government in seeking to strike the right balance in this very difficult area”.—[Official Report, 6/2/12; col. 107.]
I say amen to that. I entirely agree with the noble Lord. I further agree that getting the balance right is exceptionally difficult.
However, I argue that to some extent the Government have already got the balance right, which is why I shall ask my noble friend to resist this amendment. I do so for three reasons: first, it changes the relative importance of judgment as opposed to process; secondly, there is a bandwagon effect in this whole area, which will result from some of the wording of the noble Lord’s amendment; and, thirdly, there is the danger that this amendment will contribute to the further atomisation of our society.
On judgment versus process, I follow some of the remarks made by the noble Earl, Lord Erroll. When I was taking evidence on the preparation of the report Unshackling Good Neighbours, it was astonishing how many people saw the official check as the beginning and end of the matter. There is health and safety, and other areas, as well as the CRB. Too often, individuals did not wish or saw no reason to use or trust their individual judgment. My fear is that the more we push the process forward, the less people will feel that they need to use their judgment and intervene, because they feel that it is someone else’s responsibility.
Strangely, in the briefing we received from Fair Play for Children, some of that attitude reveals itself. It states:
“We also point out the possibility that the person, in applying for another post within the organisation, might find himself subject to scrutiny against the barred list, and barring revealed. That places employers at that stage in an invidious position of having had such a person working for them with children and then having to comply with statute to refuse the new job”.
I cannot for the life of me see what is “invidious” about this. It is about a proper, disciplined and clearly run business. If a person changes his job and has different responsibilities involving further exposure and involvement with children, at that point the employer is entitled to say, “I am afraid this is not something which you can become involved with because of the role you are now undertaking”. When I read that the,
“day to day supervision is a reference to such day to day supervision as is reasonable in all the circumstances for the purpose of protecting any children concerned”,
I believe that the Government have got the balance about right.
On the bandwagon effect, subsection (4) of the new clause proposed under Amendment 5 in the name of the noble Lord, Lord Bichard, states:
“Guidance produced for the purposes of subsection (3) … shall recommend that such organisations as described, should seek to obtain a relevant enhanced criminal record certificate as a matter of best practice”.
The noble Lord may think that he will cut down the number of criminal records checked but, faced with the matter of best practice, individuals running charities, voluntary groups and sports clubs will face ever greater pressure to obtain an enhanced criminal record certificate. It will be argued that this is needed to be on the safe side. Charities have groups of people which depend on CRB checks, so they are not going to say it is not needed; rather they will say that, for access, it is best practice.
We saw lots of examples in the evidence given to us before we completed our report, Unshackling Good Neighbours. It is tragic to see how many people, rightly or wrongly, are put off from volunteering because they do not want to be CRB-checked. In many cases they did not need to be CRB-checked, but the authorities thought they should be in order to be on the safe side. The University of Oxford has advertised for students to help invigilate in its museums. The job requires sitting in a room or corridor and watching the exhibits so that visitors cannot remove or destroy them. But they now have to be CRB-checked. It is hard to see how the job falls within the requirements of a CRB check but, to be on the safe side, that is what the university wants to do.
Last, I turn to the atomisation effect. Social scientists say that our society is becoming atomised, as they call it, and social media mean that we live increasingly isolated lives. The noble Lord, Lord Bichard, in an interesting article in the House Magazine this week, talks about how social media provide the opportunity for grooming, and I agree with him absolutely on that. I said in my speech at Second Reading that this is one of the most difficult areas we have to tackle going forward. However, if we are not careful, we will enhance the selfish gene which lies within all of us. People say that they see no reason to help their town, village, street or community. To reverse this trend and encourage people to reconnect and get involved, we need to welcome them, not treat them as criminals.
It is a fact, thank goodness, that a fractional minority of people seeks to prey on children. The overwhelmingly vast majority of our fellow citizens are decent, law-abiding and want to do their best. It is with these people in mind that I urge my noble friend not to accept these amendments.
I cannot prove a negative, and that is one of the difficulties of arguing either for or against any form of regulation. You cannot prove what will happen. I suspect that there will be no net increase in the risk to children. I suspect that but I cannot prove it, just as the noble Lord cannot prove the contrary.
My Lords, I rise to speak very briefly. Would my noble friends on the Front Bench explain one point? I dealt with a series of amendments that were quite well received by the government Front Bench—“better than half a loaf” was how I described it. Can they explain to the House the process of giving guidance to individual groups so that they know how the process of getting information from the group works and what guidance they will be given as to what they are supposed to do? A little more information about this might help.
I have come to the conclusion that everyone thinks the world they are talking about is totally unique. Sports bodies think that they are totally unique, as do schools. We now ask representatives from sports governing bodies to go into schools, which is an extension of good practice because when people get involved in a club early, that produces the best coaching, the most enthusiasm and the lowest drop-out rates in a sport. It is good for public health and everything else. Putting representatives of sports governing bodies into schools makes, I hope, for a better and more rounded system. Indeed, we tried something similar under the previous Government. There must be an interchange between these two groups.
I hope that my noble friend will tell me that we are talking to all these groups so that they know what they are doing and are having an effective interchange. If we do that, many of the concerns being expressed here will start to become, shall we say, more realistic. Moreover, there is no perfect system, and that is something we have to take into account. I call upon my noble friend to give us a little more insight into the process that the Government want to initiate because there is a great deal of chasing of shadows and fears being expressed in this area. Some of those fears are real and some are not, while some of them are potential fears. We cannot deal with them all, and we never have been able to. It does not matter how many checks you have if you have not caught that one person yet. Can my noble friend give us an idea about the ongoing structure that will be needed for this, because surely that is going to be the best way forward? We are all on the side of the angels, so let us not fight over which angels.
My Lords, under the Bill, it will be possible for people who have not been subject to the barring arrangements to work regularly with children or be in regular contact with children. Such a situation could arise if individuals concerned were being supervised by someone else. Employers in this situation will not be prohibited from requesting CRB checks on individuals who apply for “unregulated posts”, but they will not be legally required to do so after the Bill is passed. However, crucially, employers will no longer be able to see the “barred status” of an individual for posts which fall outside regulated activity.
It will be not be possible to ascertain whether the Independent Safeguarding Authority has ever made a judgment that the individual in question should be barred. Instead, it will be left to the organisation or body concerned to seek any information in the Criminal Records Bureau check and make its own judgment, but it will be unable to find out what conclusions the Independent Safeguarding Authority may have come to despite the fact that one would expect it to have some expertise in this area.
The Independent Safeguarding Authority collates and assesses information from a wide range of sources in order to come to a decision on whether an individual should be barred from working in regulated activity. Enhanced CRB checks, on the other hand, disclose only information held by the police and do not take into account the wider pool of evidence. Yet, as has already been said in the debate, roughly 20 per cent of the people on the barred list have never been in contact with the police and the evidence that has led to their being barred has come directly from employers and other sources. Surely, the objective should be to ensure that if one organisation or authority is aware that an individual has a record of abuse of others of whatever age, another authority or organisation engaging that person, either as an employee or a paid volunteer in work with vulnerable people, should not do so in ignorance of that individual’s previous record of abuse, including any assessments that have been made.
It has already been said that serious and potentially serious sexual offenders are all too often very good at covering their tracks and their activities. The Government have maintained that adults who have been “barred” by the Independent Safeguarding Authority from regulated work with children should be allowed to work under “supervision” with children. They have, unfortunately, not yet listened to children’s charities, voluntary organisations, schools and parents who tell them that however close the supervision it cannot prevent bonds of trust being formed between adult and child that could be exploited outside the supervised context and environment.
It is all very well wanting to reduce regulation on those who work regularly with children and have close contact with them, but we need to take care that it does not unnecessarily put at risk someone else’s safety or, in extreme cases, their life. I do not regard that comment as a cheap shot but as a realistic attempt to address the question of balance and proportion in considering this very serious issue.
The Government say that they are committed to giving organisations more responsibility to determine the appropriateness of checks for different roles. Therefore, surely they should not deny organisations which wish to benefit from the expert judgment of the Independent Safeguarding Authority and the full extent of information held by it from doing so if they consider it appropriate. If the Government are determined to remove obligations to check many thousands of individuals, they must at least allow employers and organisations using the services of adults to work regularly and in close contact with children, in whatever settings, to apply independently not only for enhanced CRB checks but also for the “barred status” of individuals and to recommend this as good practice.
We support the amendments, including that to which the noble Lord, Lord Bichard, has put his name. That amendment addresses the issues to which I and many others have referred in this debate and places an additional requirement on the Government to recommend in guidance the routine checking of non-regulated individuals as best practice, which takes us closer to an appropriate position on ensuring the safety of our children.
My Lords, as always, I am grateful to the noble Lords, Lord Bichard and Lord Harris, for introducing their amendments. As always, I am grateful, too, to all those who have spoken in this debate, though at times it felt not like a debate on the amendment but more like a Second Reading debate on the general principles. I should remind the House that we are at Third Reading. I make that point because we have gone way beyond day-to-day supervision, which is the subject of the amendment of the noble Lord, Lord Harris, and way beyond children, which is the matter of the substantive amendment. We have got on to such things as vulnerable adults, which is another matter and not relevant to what we are discussing today. I want to discuss the particular amendments, of which there only two, Amendments 4 and 5, and respond to them in due course.
I start with the simpler amendment, from the noble Lord, Lord Harris, because I think that he received very little support for it other than from his Front Bench—I am not even sure that he supported his own amendment, because he pointed out the inadequacies of it. The amendment would require anyone in a school supervising a volunteer who looks after children to monitor communication between that volunteer and the children. It specifies types of communication they must monitor, including sign language. As I think the noble Lord accepts, it is too prescriptive. We have more faith in the common sense and good judgment of managers in schools than seems to be implied by the amendment.
No doubt the noble Lord will make up his own mind about what to do with the amendment. He has had very powerful support from his noble friend Lord Rosser, but I am not sure that he has had it from others. Therefore, at this stage, the important thing to do would be to move on and deal with the substantive amendment in this group of two, which is that in the name of the noble Lord, Lord Bichard. If the House wanted to come to a conclusion on these two amendments, I would hope that it would come to a conclusion on that in the name of the noble Lord, Lord Bichard, and not that in the name of the noble Lord, Lord Harris. I make that purely as an introductory point.
The noble Lord, Lord Bichard, seeks four things; first, that enhanced criminal record certificates be available where someone is working regularly and closely with children; secondly, that the Government issue guidance on what “regular and close” means; thirdly, that the guidance will recommend it as best practice to obtain an enhanced certificate; and, fourthly, that those certificates contain information about a person’s barred status, which could also be obtained by a direct barred-list check. I shall deal with those four points in that order. I hope that the House will listen to me carefully and remember that it is with those four things that we are dealing and not wider aspects in relation to the CRB and so on.
On that first point, I am happy to confirm that all those people who work regularly and closely with children will remain eligible for enhanced criminal record certificates. People who remain within regulated activity will be eligible for them for that reason alone. People no longer within regulated activity will remain eligible for them, as I have confirmed before and can do so again. In view of those assurances, I hope that the noble Lord will agree that it is not necessary to place that provision in the Bill.
On the second issue, that the Government should produce guidance on what regular and close contact means, we are already meeting the substance of this proposal. Clause 77 already commits the Government to publishing statutory guidance on the meaning of day-to-day supervision. We must be careful to avoid introducing two sets of statutory guidance about similar subjects, which would create confusion and lead to unnecessary additional burdens on businesses and voluntary organisations. Therefore, while we cannot meet the form of the noble Lord’s proposal in this area, I believe that we are already meeting the substance.
Thirdly, the amendment states that the Government should recommend that obtaining enhanced criminal record certificates is best practice for those who work closely and regularly with children. Again, here I can offer some reassurance to the noble Lord and others who have spoken. I can confirm that the statutory guidance on supervision, which we are already committed to introducing, will recommend that it is good practice to obtain an enhanced criminal record certificate when employees or volunteers are new or unknown to the organisation or if checks are needed for new posts or staff moves. Where existing employees are concerned, I hope that the House would agree that it is properly a matter for employers and voluntary organisations to judge whether periodic checks are helpful or whether to use the new updating service which helps make these criminal records more portable.
The final proposal of the noble Lord, Lord Bichard, is that employers should be able to discover whether those of their employees who work, or will be working, regularly and closely with children are barred from working with children, either via an enhanced criminal record certificate or via a direct barred-list check. Barring information will be available in relation to posts within regulated activity and a few compelling exceptions such as those applying to foster or adopt a child, but the Government cannot agree to release barring information in other circumstances.
At this juncture, it might be worth going back to the review of the vetting and barring scheme which we published a little over a year ago. The context of the review was to achieve a better balance between public protection and civil liberties: to achieve a system which is, to use a word which Ministers have much deployed during debates on the Bill in this place and another place, proportionate. The protection of vulnerable groups, including children, is paramount. That is why the review concluded that a central barring scheme should be maintained.
However, there are other important principles which need to be balanced with this, not least the civil liberties of individuals, and that is why these measures are included within the Bill. Those viewpoints have received somewhat less airing—I am grateful that some have—in this House but they are very real and widespread. It is not proportionate for barred people to have their barred status communicated to employers when it is not relevant. It is relevant in the case of a post falling within regulated activity because the person is prohibited from working in that role and the prospective employer must know that. Otherwise, it is not proportionate to pass on that information because bars relate only to regulated activity. Passing on barring information would tell employers that a person is barred from another area of work. However, despite that, many employers will not engage someone if they see the word “barred” even if the bar is not relevant to that role. To introduce this change would be greatly to expand the number of people subject to barred-list checks and it would undermine our efforts to reduce the scope of regulated activity and to make the barring arrangements more proportionate.
However, I can offer the noble Lord some reassurance in this area. While we do not think it right to communicate that someone is barred in these cases, it can be useful to pass on the information which led to the bar. This is more valuable information for an employer. In most cases this will be visible on an enhanced certificate anyway, not just in the four-fifths of bars which follow automatically from a criminal conviction or caution but in many of the one-fifth of bars which derive from other information. As I have said before, we will encourage regulated activity providers to report information to the police where appropriate, as well as to the Independent Safeguarding Authority.
I can offer one further measure. Section 50A of the Safeguarding Vulnerable Groups Act allows the Independent Safeguarding Authority to provide any information to the police, which could include the information which led to a bar. While the existing purposes for which this information can be passed to the police do not include the purposes of disclosing information on an enhanced criminal record certificate, Clause 77(3) of the Bill allows the Secretary of State to prescribe new purposes. I can confirm that we will include a new purpose for providing information for disclosure on enhanced criminal record certificates. We will introduce this alongside the new definition of regulated activity. This will allow the ISA or the Disclosure and Barring Service to give to the police information which led to a bar and, if the police judge it relevant to the post applied for, the police may disclose it on an enhanced certificate. This is a better solution than telling an employer that someone is not barred. Indeed, providing the information that led to a bar will be of far more benefit to a prospective employer than simply providing the word “barred”, allowing the employer to make an informed choice.
The noble Lord, Lord Bichard, said on Report:
“I would like to think that we could say quite simply that all organisations employing adults, whether paid or unpaid, to work regularly with children, in whatever setting, should be able to carry out enhanced CRB checks, and that should be recommended by the department as good practice”.—[Official Report, 15/2/12; col. 798.]
I have made it clear to the House that we are committed to delivering on both these points. Indeed, I hope noble Lords will agree that I have gone further in undertaking to provide for the police to include the reasons for a barring decision on an enhanced certificate where such information is relevant to the post in question, but only where it is. On that basis, I hope the noble Lord, Lord Bichard, will agree that I have satisfied the points that he raised on Report and will agree not to move his amendment.
I am seeking clarification in order to be helpful. Am I hearing from the Minister that in future the barring authorities will make available to the police the information on which they have made their decision, but not necessarily the decision, and the police can then decide whether that is relevant information to make available to employers who carry out a criminal record check? To be clear, is that what is now being said?
This dialogue cannot and will not go on for ever but, of course, under the current arrangements, the police make a decision about whether the information they have on convictions is relevant. Therefore the Minister is suggesting that they would make the same decision about information they receive from the barring authorities about individuals. Is that correct?
I am grateful to noble Lords who have contributed to the debate. I was particularly struck by the contributions of the noble Lord, Lord Bichard, the right reverend Prelate the Bishop of Hereford, the noble Baronesses, Lady Walmsley and Lady Howarth, and the noble and learned Baroness, Lady Butler-Sloss.
The issue is to protect children. While we, as parents, warn our children against stranger danger, we are talking here about individuals who are not strangers. These are people who have been put into a position where it looks as though they are trusted individuals. That is why these complicated discussions we are having about what checks should be done on individuals who are supervised and the nature of the supervision are extremely important.
Because of the developing thinking that has taken place in your Lordships’ House through the Committee stage, Report and now at Third Reading, my amendment was almost a Committee stage probing amendment to try to understand the nature of the guidance the Government are envisaging and what day-to-day supervision would look like. However, we have heard that the Government do not think it will be possible to provide sufficient guidance on day-to-day supervision to give the reassurance we are looking for. That is why the amendment proposed by the noble Lord, Lord Bichard, refers to guidance on,
“regular and close contact with children”.
Quite properly, the issue is whether the relationship between the adult and child is one where the contact will create that position of trust.
The Minister talked about the circumstances in which information that has led to an individual being barred is provided to the police. In my 26 years in local government, to which the Minister referred earlier as being insufficient to have acquired adequate judgment about these things, I chaired on a number of occasions disciplinary panels to decide whether individuals should be dismissed for inappropriate behaviour with children. Those individuals were not reported to the police but would have been put on a barred list. Now I am a trustee of a charity, for which I have been CRB-checked, which has volunteers working with children to put on theatrical productions, and so on. As a trustee or a parent I would be appalled if some of those volunteers could not be checked to see whether they had been barred previously from working with children, whatever the circumstances.
It is a strange way to go about the business that, rather than the simple information on which the authority has decided that an individual should be barred, it should now rely on that information being passed to the police and the chief officer of the police deciding whether it is relevant. It is a very convoluted way to do something when most of your Lordships—I accept not all—believe that there is a more sensible way.
The substantive issue is explored in Amendment 5 and in a moment we will hear what the noble Lord, Lord Bichard, intends to do with that amendment. In the mean time, partly because I have not received the clarification that suggests to me that day-to-day supervision can appropriately be defined in guidance—my amendment could not do so either, I suspect because it is impossible to provide adequate reassurance about day-to-day supervision—I beg leave to withdraw my amendment.
Amendment 4 withdrawn.
5: After Clause 64, insert the following new Clause—
“Voluntary application for relevant information: children
(1) The Secretary of State shall by regulation ensure that any person who permits, or is considering whether to permit, an individual to engage in any form of work, for gain or otherwise, which involves regular and close contact with children, may be permitted to obtain a relevant enhanced criminal record certificate.
(2) In this section “relevant enhanced criminal record certificate” means an enhanced criminal record certificate issued under section 113BA of the Police Act 1997, which includes by virtue of that section, suitability information relating to children.
(3) The Secretary of State shall produce guidance on the interpretation of the terms “regular and close contact with children” under subsection (1) of this section.
(4) Guidance produced for the purposes of subsection (3) of this section shall recommend that such organisations as described, should seek to obtain a relevant enhanced criminal record certificate as a matter of best practice.
(5) In table 1 of Schedule 7 to the Safeguarding Vulnerable Groups Act 2006, at end insert—
“20. Person who permits, or is considering whether to permit, B to engage in any form of work, for gain or otherwise, which involves regular and close contact with children, but does not fall within Part 1 of Schedule 4. Children””
“20. Person who permits, or is considering whether to permit, B to engage in any form of work, for gain or otherwise, which involves regular and close contact with children, but does not fall within Part 1 of Schedule 4.
I thank the Minister not just for the discussion today but for discussions before today with other Members as well as myself. I thank, too, all those who have participated in this debate, which has on occasions lapsed into criticising the existing arrangements. I agree with those who say that we have too many checks too often and that they deter people from volunteering. There is no question about that, which is why the Government have put forward those proposals. My amendment accepts the Government’s fundamental position and, let us be clear, does not produce more bureaucracy or ticking of boxes. It concerns only those adults working regularly and closely with children, not those who just happen to have some contact with children on an irregular basis.
At the end of the day, what matters is that employers who will now make the decision have the information that we have to enable them to make the best possible decision. As someone said, that will not guarantee that children will not continue to be abused, because you cannot guarantee that; but it is very difficult for us to justify a situation in which information is available but not made available to those who will make the decision.
The question therefore comes down to whether or not the undertakings given today are sufficient to enable me not to press the amendment to a Division. I am conscious that in this House a lot of people feel very passionately about this issue and are very concerned about this vote. I agree with the noble Lord, Lord Harris, that the proposal made in the Bill is convoluted; it is not one that I would have thought was the obvious way forward. On the other hand, it ensures that the information that society has available about an individual is available to the person who makes the decision if the police make their own decision that it is relevant. It is difficult for me to pursue the amendment purely because we are not giving information that an individual has been barred or not barred from regulated activity. On the basis that the information that led to the barring or not barring is available to the police, who can then make a decision about whether it should be made available to the employer, I shall not press my amendment.
Amendment 5 not moved.
6: After Clause 110, insert the following new Clause—
“StalkingOffences in relation to stalking
(1) After section 2 of the Protection from Harassment Act 1997 (offence of harassment) insert—
“2A Offence of stalking
(1) A person is guilty of an offence if—
(a) the person pursues a course of conduct in breach of section 1(1), and(b) the course of conduct amounts to stalking.(2) For the purposes of subsection (1)(b) (and section 4A(1)(a)) a person’s course of conduct amounts to stalking of another person if—
(a) it amounts to harassment of that person,(b) the acts or omissions involved are ones associated with stalking, and(c) the person whose course of conduct it is knows or ought to know that the course of conduct amounts to harassment of the other person.(3) The following are examples of acts or omissions which, in particular circumstances, are ones associated with stalking—
(a) following a person,(b) contacting, or attempting to contact, a person by any means,(c) publishing any statement or other material—(i) relating or purporting to relate to a person, or(ii) purporting to originate from a person,(d) monitoring the use by a person of the internet, email or any other form of electronic communication,(e) loitering in any place (whether public or private),(f) interfering with any property in the possession of a person,(g) watching or spying on a person.(4) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 51 weeks, or a fine not exceeding level 5 on the standard scale, or both.
(5) In relation to an offence committed before the commencement of section 281(5) of the Criminal Justice Act 2003, the reference in subsection (4) to 51 weeks is to be read as a reference to six months.
(6) This section is without prejudice to the generality of section 2.”
(2) After section 4 of that Act (putting people in fear of violence) insert—
“4A Stalking involving fear of violence
(1) A person (“A”) whose course of conduct—
(a) amounts to stalking, and(b) causes another (“B”) to fear, on at least two occasions, that violence will be used against B,is guilty of an offence if A knows or ought to know that A’s course of conduct will cause B so to fear on each of those occasions. (2) For the purposes of this section A ought to know that A’s course of conduct will cause B to fear that violence will be used against B on any occasion if a reasonable person in possession of the same information would think the course of conduct would cause B so to fear on that occasion.
(3) It is a defence for A to show that—
(a) A’s course of conduct was pursued for the purpose of preventing or detecting crime,(b) A’s course of conduct was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or(c) the pursuit of A’s course of conduct was reasonable for the protection of A or another or for the protection of A’s or another’s property.(4) A person guilty of an offence under this section is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both, or(b) on summary conviction, to imprisonment for a term not exceeding twelve months, or a fine not exceeding the statutory maximum, or both.(5) In relation to an offence committed before the commencement of section 154(1) of the Criminal Justice Act 2003, the reference in subsection (4)(b) to twelve months is to be read as a reference to six months.
(6) If on the trial on indictment of a person charged with an offence under this section the jury find the person not guilty of the offence charged, they may find the person guilty of an offence under section 2 or 2A.
(7) The Crown Court has the same powers and duties in relation to a person who is by virtue of subsection (6) convicted before it of an offence under section 2 or 2A as a magistrates’ court would have on convicting the person of the offence.
(8) This section is without prejudice to the generality of section 4.””
Amendment 7 (to Amendment 6)
7: After Clause 110, line 21, at end insert “inter alia”
I shall not move this or the other related amendments, because I am confident that the Minister will ensure that the discussions between the Bill team, Napo and other experts in the coming week will encompass issues wider than those relating to the wording of the new offence under new Section 4A, because I know that the Minister, like his right honourable friend the Prime Minister, will want to ensure that all the commitments that they have made in the last weeks can be adhered to.
Amendment 7 (to Amendment 6) not moved.
Amendments 8 to 12 (to Amendment 6) not moved.
Amendment 6 agreed.
13: Schedule 1, page 125, line 5, at end insert—
“Clinical negligence(1) Civil legal services provided in relation to the obtaining of one or more expert reports in clinical negligence proceedings.
(2) In this paragraph—
“clinical negligence proceedings” means proceedings which include a claim for damages in respect of clinical negligence;
“clinical negligence” means breach of a duty of care or trespass to the person committed in the course of the provision of clinical or medical services (including dental or nursing services);
“expert report” means a report by a person qualified to give expert advice on all or most of the matters that are the subject of the report;
“proceedings” includes any sort of proceedings for resolving disputes (and not just proceedings in court), whether commenced or contemplated.”
Amendment 14 (to Amendment 13) not moved.
Amendment 13 agreed.
Clause 117 : Extent
15: Clause 117, page 103, line 18, at end insert—
“( ) section 53 and Schedule 3,”
In moving Amendment 15, I shall also speak to Amendments 17, 26, 27, 28, 30 and 31. However, I shall not detain your Lordships as these are technical amendments, so unless a noble Lord wishes to raise a point, to which of course I shall be willing to respond, I beg to move.
Amendment 15 agreed.
Amendments 16 to 18
16: Clause 117, page 103, line 25, leave out “(8)(l)” and insert “(8)(ja) and (l)”
17: Clause 117, page 104, line 32, leave out “Schedule 2” and insert “section 53 and Schedules 2 and 3”
18: Clause 117, page 104, line 40, at end insert—
“(ja) the amendments of Schedule 1 to the Criminal Justice and Police Act 2001, and Schedule 5 to the Sexual Offences Act 2003, in Part 10A of Schedule 9,”
Amendments 16 to 18 agreed.
Clause 118 : Commencement
19: Clause 118, page 105, line 4, at end insert—
“( ) No order under subsection (1) appointing a day for section 103 to come into force shall be made until—
(a) the Secretary of State has produced and laid before both Houses of Parliament a response to any recommendations made in the post-legislative scrutiny review of the Freedom of Information Act;(b) both Houses of Parliament have given legislative effect to any recommendations arising from that review which require legislation to take effect; (c) the Secretary of State has laid before both Houses of Parliament any revisions to the code of practice issued under section 45 of the Freedom of Information Act 2000 (issue of code of practice by Secretary of State) made in pursuance of paragraph (da) of subsection (2), or of subsection (2A) of that section of that Act; and(d) both Houses of Parliament have passed a resolution affirming support for any such revisions to the code of practice.”
My Lords, the amendment addresses a range of issues on which we have had long discussions at Second Reading, in Committee and on Report, on the clauses dealing with proposed extensions of the application of the Freedom of Information Act 2000 to research data sets.
I thank the Minister especially for his agreement at Report to delay implementation of this part of the Bill until the completion of the post-legislative review of the workings of the Freedom of Information Act. Delay alone is not, however, enough, but it may be fruitful if used actively to deal with issues that have been raised in the course of the passage of this Bill. Amendment 19 sets out some conditions for a process for using this delay constructively. I hope that it builds upon the Minister’s indication at Report that the delay would be used.
So far amendments proposed to this part of the Bill have mainly met a uniform response that the exemptions in Freedom of Information Act already cover the case. In some instances perhaps they do, but it has not been easy to see that they do. There have been very few detailed explanations of how they do so, and no arguments that they can continue to do so in the world in which we find ourselves. That is a world in which new players, often in the Far East, combine high-quality IT with ambitions to be scientific and technological innovators, yet do not respect others’ IP and are protected by jurisdictions that provide no remedies for IP violations. These circumstances mean that arguing that there have been few requests for research data in the past is no adequate guide to the future.
I ask the Minister for assurances that the code of practice that will be revised will address the range of problems discussed, and take account of the results of post-legislative scrutiny, the Government’s response to that scrutiny and other relevant evidence. In particular, the process needs to take account of some questions that have been raised repeatedly. The first is that of timing, a point raised successively in Committee and at Report by the noble Baroness, Lady Brinton. Will the code clarify the point at which data sets that are either incomplete or have not been checked must be released? This matters for individual researchers and research teams.
Secondly, on costs, I am grateful to the Minister for his clarity at Report about the costs of locating data. He said:
“The Freedom of Information Act, passed by the previous Government, provides that where it would cost more than a certain amount to locate information that has been requested, there is no obligation to provide it”.—[Official Report, 15/2/12; col. 837.]
Will the code of practice to be introduced before implementing this extension of the 2000 Act provide comparable clarity about dealing with certain other costs? How will the IT costs of rendering data reusable—for example, if non-standard software has been used or if data sets are massively large—affect obligations to provide data, and how will the redaction costs of removing personal identifiers from data sets work? In each case, costs can run to very large sums. Will researchers be able to refuse to release data if these costs exceed a set threshold? I believe the matter has remained unclear, both in Committee and at Report.
Thirdly, there is the question of licences for reuse. The Minister said at Report that,
“the Bill provides that public authorities, when making their data sets available for reuse, must use one of the specified licences which will be set out in the code of practice in due course … Published licence terms will provide clarity, certainty and consistency as to how information and data can be reused”.—[Official Report, 15/2/12; cols. 835-36.]
It is hardly surprising that a requirement to use licences yet to be specified has raised fears among UK researchers and among the institutions in which they work, not to mention in those companies that might otherwise wish to fund research in UK universities. What steps will the Minister take to ensure that these licensing requirements do not damage UK research? Is the office of the Information Commissioner equipped to judge specifications in licences that are likely not to be respected in certain jurisdictions? Can the office judge the reliability with which the conditions in the licences are likely to be respected?
I would not want these arguments to be misinterpreted as opposition to data sharing, but there are many models for that in addition to the freedom of information model. Some are already in regular use in a range of scientific communities. Examples include: the conditional, regulated access to data used by the genomics community; the use of so-called data safe havens, for example by the Scottish Health Informatics Programme; and the use of a trustee model for data access, as for example by the UK Biobank. Freedom of information is a model of information sharing that is at one extreme end of a spectrum, since it requires publication to the entire world. That is why it threatens the capacity of institutions to commercialise their research. In the long march from work that first assembles data to the point at which it becomes feasible to file for a patent, others will be entitled to obtain researchers’ data and may file prior patents—or patents that prevent researchers from filing for those patents they would otherwise seek.
If we do not see a convincing code before implementation, we shall be committed to policies that will undermine two government initiatives for which I have great respect. The first and more general of these initiatives—which was introduced by the previous Government—is that universities and other publicly funded research institutes are now required and incentivised to commercialise their research. Yet here we see provisions to regulate them in ways from which their commercial competitors will be exempt. The second is the Government’s Strategy for UK Life Sciences, published on 5 December last year, which is predicated on quite a different approach to data sharing. The right honourable David Willetts, writing in the spring 2012 issue of Science in Parliament spoke of,
“launching a new secure service to link primary and secondary care data at an unidentifiable … level”—
in effect, a safe-haven approach. It may be thought that this is quite another matter because we are talking about patient data rather than scientific data, but the life sciences strategy is about using patient data for research, and biomedical research draws not only on patient data but on a range of wider socioeconomic and biological and demographic data.
If we want the life sciences strategy—an admirable strategy—to succeed and to benefit the UK biotech industries, we shall need a code that incorporates robust responses to the results of post-legislative scrutiny of the Freedom of Information Act, which may require further legislation. We shall also need a code that achieves a high degree of clarity about the conditions under which research data must be disclosed to the entire world, and the conditions under which they may not be disclosed. Amendment 19 seeks to set out steps by which these objectives might be achieved. I beg to move.
My Lords, I have added my name to this amendment. I think it is widely accepted that when the freedom of information legislation was originally conceived, little or no thought was given to the effect that it might have on universities. In the event, this is of less importance today because since that time there have been major changes in the role of universities, but it means that the new legislation should reflect those changes—and frankly, this has not happened. The purpose of this amendment is to ensure that the outcomes of post-legislative scrutiny are taken fully into account before the relevant parts of the Bill come into force. Unless they are, there is a risk of serious damage to our university system. It is damage that will not make tabloid headlines. It will be slow and incremental, but it will be certain.
Under current legislation, universities are regarded as “publicly owned companies” and carry the concomitant Freedom of Information Act disclosure obligations. This is in spite of the fact that they now receive more of their income from private sources than from the Government—a greater proportion, in some cases, than private companies. This comparison is relevant because, following the policies of successive Governments, universities are now expected to behave as private bodies, collaborating and/or competing with private industry in commercialising their research. They are also in competition for students with each other, with overseas universities and with private universities. Under the legislation as it stands, they cannot do any of this on equal terms because details of their plans, costings and research activities may have to be disclosed.
On the matter of university/industry collaboration, the present disclosure arrangements, to which my noble friend Lady O’Neill has referred, are deeply unattractive to business because of the belief, right or wrong, that the confidentiality of collaborative work may depend on discretionary exemptions that can be challenged. Such collaborations are difficult enough to set up in the first place, and uncertainty over the implications of FOI can cause the company simply to walk away.
One of the first questions that have to be addressed by scrutiny is whether the current definition of a publicly owned company is satisfactory. Another is whether there is a presumption in favour of disclosure of all the information held by such a body, or whether there is a class of competition-relevant information for which the presumption might be non-disclosure. This problem is not addressed by the current system of exemptions. It may be worth pointing out, and this relates to the cost question raised by my noble friend, that there is a recent example of a university incurring massive legal fees of over £250,000 in a case in which it believed that the release of data requested would put its staff at risk from animal rights activists.
Another serious question is whether there should there be any qualification of the right of access to public body information. At present, anyone anywhere in the world can exercise that right. Should the right be restricted to UK citizens and bodies? To offer an example, a British university was conducting a study for Cancer Research UK into the factors that influenced the behaviour of young people smoking tobacco. An FOI request for the data was received from a foreign tobacco company. It is clear that the funders of the research would not have wished the data to be released to the company and, to pick up an earlier point, might well not have funded the work at the university had they regarded this as a possibility.
A final area that requires attention and clarification is the conflict that can arise between the requirements of FOI legislation and obligations under other laws. There are examples of conflicts with the Data Protection Act, the Animals (Scientific Procedures) Act and environmental information regulations. The purpose of our amendment is therefore to ensure that full weight is given to the outcome of the scrutiny and that Parliament has the opportunity to confirm that it is satisfied with the Government’s response.
Some of the points that I have made have already been made and submitted in evidence to the scrutiny group by Universities UK and the Russell Group in their submissions to the scrutiny process. I strongly support all the points made by my noble friend in her speech.
My Lords, the speeches that we have heard from two very senior practitioners in relevant fields make a powerful case. I shall not run through their arguments again, nor the ones that I put forward during the previous stage of the Bill. I simply underline the fact that if people of this calibre are expressing concerns and those concerns could be dealt with by using the government procedure of post-legislative scrutiny to inform practice, that is a very reasonable request and I hope that the Minister will feel free to accede to it.
My Lords, I, too, spoke about this danger at an earlier stage of the Bill, and I think the amendment is sensible. Sometimes there are unintended consequences when we make rules, but in this case, because people have seen that there are almost certainly going to be some adverse consequences for UK research establishments, it is sensible to delay implementing this part of the Bill until we have thought about it a little harder and seen some results from other places.
My Lords, I want to add to the comments about the complexities of the data sets, which the noble Baroness, Lady O’Neill, outlined earlier. I am grateful for the Minister’s comments about addressing this after post-legislative scrutiny. Does he have any idea when that is likely to conclude and therefore when there might be a review? I thank the noble Lord, Lord McNally, for his agreement to meet me and my noble friend Lady Hamwee outside the legislative process to see whether we can get some clarity on the whole vexed issue of exemptions with the advice to higher education institutions of the Information Commissioner.
My Lords, I understand all the concerns that have been expressed by a number of noble Lords in the course of this debate, at earlier stages and in the large number of meetings that I have held with the noble Baroness, Lady O’Neill, and others over the preceding months. We want to address those points.
We understand the worries of the noble Lord, Lord Oxburgh, when he talks of the risk of serious damage to universities resulting from the Freedom of Information Act. I remind him that that Act was passed 10 years or so ago and came into effect some five years ago, and so far that damage has not happened. We understand his concerns, though, and will continue to try to address them, and I will continue to give assurances today, as I have done on earlier occasions.
The amendment—it is always important at Third Reading to discuss the amendment, not wider issues—seeks to delay the commencement of Clause 103 until the concerns of the noble Baroness and others about the reuse of data sets are addressed through the revised code of practice under Section 45 of the Freedom of Information Act, and more generally about the cost of FOI requests and the adequacy of exemptions. The noble Baroness asked me to comment on those last two, but that really ought to wait until we have dealt with that post-legislative scrutiny. The noble Baroness is right to highlight these by way of amendments, but we are agreed that putting them into the Bill is not the appropriate way forward. I hope therefore that she will find the following comments of some use.
I turn first to the Section 45 code of practice, through which we intend to provide guidance about the data-set provisions in the Bill—for example, on licensing conditions. Neither Clause 102 nor Clause 103 will be commenced before the revised code has been put in place. We will consult, as is required under Section 45, the Information Commissioner in drawing up the revised code before it is laid before Parliament.
We must develop guidance that ensures that the application of Clause 102 on data sets is understood and clear in order to ensure that the perceived problems described over recent months are avoided and that clarity is provided. Clearly, the views of experts working with data sets will be important in developing that guidance, and those will be taken account of to ensure that we get the guidance right.
I shall say a little more about post-legislative scrutiny of the Act. That assessment, which is under way now, of the operation of the Act is the best way of addressing more general concerns. Given that the Freedom of Information Act applies to a very wide range of bodies, it is important that comprehensive evidence is collated from a wide range of interested parties before deciding what changes might usefully be made. Once again, I can provide some reassurances.
On the timing, I do not anticipate the committee taking so long to publish its recommendations that there is any significant likelihood of Clause 103, or for that matter Clause 102, being commenced first.
However, I must exercise a little caution over subsequent legislation to implement any recommendations. We all understand that secondary legislation is relatively quick to bring forward and revised guidance even quicker. However, I am sure noble Lords understand that enacting primary legislation would necessarily take somewhat longer and could therefore delay the enhancement of the right to data for a considerable time. I am sure the House of Lords will also understand that I cannot pre-empt the outcome of the deliberations of the Justice Select Committee, sitting under Sir Alan Beith, which are being informed in part by evidence submitted by the higher education sector. Therefore, I cannot predict exactly what action the Government will consider it necessary or appropriate to take as a result.
However, I can reassure the noble Baroness, Lady O’Neill, that we do not intend to drag our feet following publication of that post-legislative scrutiny. Whatever actions are deemed appropriate in the light of the Justice Select Committee’s recommendations will be taken as quickly as possible. It is important for public authorities and users of the Freedom of Information Act alike that it functions as effectively as is appropriate. Therefore, the Government will consider the evidence collated during post-legislative scrutiny, including that presented by the higher education sector, as they ensure that this is the case.
As I have already indicated several times, we certainly want to maintain, protect and enhance the leading position of the United Kingdom research sector. That is why I hope that, given my assurances about timing and what post-legislative scrutiny will involve, the noble Baroness will withdraw her amendment. I assure her that the review will continue and that we will act on it as quickly as we can once we have the results of the scrutiny.
My Lords, I thank the Minister for listening to what the process set out in Amendment 19 is. I understand his reluctance to make any commitment under the heading of introducing changes that may be recommended by Sir Alan Beith’s committee but that require primary legislation. For that reason, I shall withdraw the amendment.
However, on other matters this has been like sweeping a very long and dusty floor with all the dust still in front of us. We will need to look with great care at the codes of practice. A code of practice is often a fragile instrument and these data sets are of very high value. We have to be careful in what we do, lest we wish we had done something else at the end of it. With those assurances, I thank the Minister for his sustained attention to these less than thrilling issues and beg leave to withdraw the amendment.
Amendment 19 withdrawn.
Schedule 1 : Amendments of regimes other than PACE
20: Schedule 1, page 117, line 18, after “held” insert “for the purposes of national security”
My Lords, in moving Amendment 20, I will speak also to Amendments 21 to 25. On Report, I gave notice to the House that the Government were considering whether it would be helpful to clarify further the scope of the regime for retention and destruction of material under Section 18 of the Counter-Terrorism Act 2008, as substituted by Part 3 of Schedule 1 to the Bill. We have concluded that new Section 18 of the 2008 Act, as currently drafted, is too broad and requires further clarification so that the intended scope of the provisions properly provides that crime scene material is excluded from any destruction regime.
To this end, Amendment 20 provides that new Section 18 applies only to biometric material that is held by a law enforcement authority under the law of England, Wales or Northern Ireland that is not subject to existing statutory restrictions and is held for the purposes of national security. Amendments 21 to 23 and Amendment 25 provide that material taken under a number of other statutory regimes is subject not to the destruction regime in the Counter-Terrorism Act but to the rules in those enactments. Amendment 24 corrects a minor drafting error regarding the relevant section of the Intelligence Services Act 1994 to be included in the list of existing statutory restrictions. I beg to move.
Amendment 20 agreed.
Amendments 21 to 25
21: Schedule 1, page 118, line 10, at end insert—
“( ) paragraph 18(2) of Schedule 2 to the Immigration Act 1971;”
22: Schedule 1, page 118, line 12, at end insert “and any corresponding provision in an order under section 113 of that Act”
23: Schedule 1, page 118, line 15, leave out from beginning to end of line 16
24: Schedule 1, page 118, line 18, leave out “1(2)” and insert “2(2)”
25: Schedule 1, page 118, line 18, at end insert—
“( ) paragraphs 20(3) and 20A to 20J of Schedule 8 to the Terrorism Act 2000;( ) section 56 of the Criminal Justice and Police Act 2001;( ) paragraph 8 of Schedule 4 to the International Criminal Court Act 2001; ( ) sections 73, 83, 87, 88 and 89 of the Armed Forces Act 2006 and any provision relating to the retention of material in an order made under section 74, 93 or 323 of that Act;”
Amendments 21 to 25 agreed.
Schedule 8 : Disclosure and Barring Service
Amendments 26 and 27
26: Schedule 8, page 171, line 21, at end insert—
“( ) is a person in relation to whom a moratorium period, under a debt relief order made under Part 7A of the Insolvency Act 1986 or Part 7A of the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I.19)), applies,”
27: Schedule 8, page 171, line 25, at end insert—
“( ) is the subject of a debt relief restrictions order or an interim debt relief restrictions order under Schedule 4ZB to the Insolvency Act 1986 or Schedule 2ZB to the Insolvency (Northern Ireland) Order 1989,”
Amendments 26 and 27 agreed.
Schedule 9 : Consequential amendments
Amendments 28 and 29
28: Schedule 9, page 184, line 10, at end insert—
“41A (1) Section 120A (refusal and cancellation of registration on grounds related to disclosure) is amended as follows.
(2) In subsection (3A) omit paragraphs (b) and (c).
(3) Omit subsections (3B) and (3C).
(4) In subsection (3D)—
(a) for “subsections (3A) to (3C)” substitute “subsection (3A)”,(b) for “those subsections” substitute “that subsection”, and(c) omit the words from “, except” to the end of the subsection.”
29: Schedule 9, page 196, line 28, at end insert—
“Part 10AStalkingProtection from Harassment Act 1997141A (1) The Protection from Harassment Act 1997 is amended as follows.
(2) In section 1(2) (circumstances in which a person ought to know that a course of conduct amounts to harassment) after “this section” insert “or section 2A(2)(c)”.
(3) In section 4 (putting people in fear of violence)—
(a) in subsection (5) after “section 2” insert “or 2A”, and(b) in subsection (6) after “section 2” insert “or 2A”.Crime and Disorder Act 1998141B (1) Section 32 of the Crime and Disorder Act 1998 (racially or religiously aggravated harassment etc.) is amended as follows.
(2) In subsection (1)—
(a) in paragraph (a)—(i) after “section 2” insert “or 2A”, and(ii) for “offence of harassment” substitute “offences of harassment and stalking”, and (b) in paragraph (b)—(i) after “section 4” insert “or 4A”, and(ii) after “violence” insert “by stalking or otherwise”.(3) In subsection (5) for “the basic offence” substitute “either basic offence”.
Criminal Justice and Police Act 2001141C In Part 1 of Schedule 1 to the Criminal Justice and Police Act 2001 (powers of seizure to which section 50 of that Act applies), after paragraph 63, insert—
“Protection from Harassment Act 199763A The power of seizure conferred by section 2B(2) of the Protection from Harassment Act 1997 (seizure of material relevant to stalking).”
Sexual Offences Act 2003141D In Schedule 5 to the Sexual Offences Act 2003 (relevant offences for the purposes of notification and orders)—
(a) in paragraph 56A—(i) after “section 2” insert “or 2A”, and(ii) for “offence of harassment” substitute “offences of harassment and stalking”, and(b) in paragraph 57—(i) after “section 4” insert “or 4A”, and(ii) after “violence” insert “by stalking or otherwise”.Criminal Justice Act 2003141E In Part 1 of Schedule 15 to the Criminal Justice Act 2003 (sentencing of dangerous offenders: specified violent offences), in paragraph 57—
(a) after “section 4” insert “or 4A”, and(b) after “violence” insert “by stalking or otherwise”.”
Amendments 28 and 29 agreed.
Schedule 10 : Repeals and revocations
Amendments 30 and 31
30: Schedule 10, page 198, line 40, at end insert—
“( ) the Milk (Cessation of Production) Act 1985,”
31: Schedule 10, page 201, line 14, at end insert—
“In section 120A— (a) subsection (3A)(b) and (c), (b) subsections (3B) and (3C), and (c) in subsection (3D), the words from “, except” to the end of the subsection.”
“In section 120A— (a) subsection (3A)(b) and (c), (b) subsections (3B) and (3C), and (c) in subsection (3D), the words from “, except” to the end of the subsection.”
Amendments 30 and 31 agreed.
In the Title
32: In the Title, line 11, after first “and” insert “about stalking;”
Amendment 32 agreed.
My Lords, I am very grateful to the noble Lord, Lord Ponsonby. I know that he has waited very patiently all afternoon. It may be of assistance to the House for me to remind noble Lords that, at Bill do now pass, once the Motion has been moved formally, as it just has, it may be opposed and reasoned or delaying amendments to it may be moved. However, in other circumstances it is not normally debated.
My Lords, I wish to raise a new issue, which came to my attention at the end of last week. I was advised by the Public Bill Office that I should take the slightly unusual step of raising this new issue on this Motion. I also informed the Minister’s office that I intended to do this.
It is the intention of the Bill to adopt the Scottish model for protections for the DNA database, and therefore to find an equivalent to the Scottish sheriff courts in England and Wales. As currently worded, the Bill requires the hearings to be before a district judge from the magistrates’ court. This is too restrictive; all that is necessary is for the application to be made to a magistrates’ court. Whether to put the matter before a district judge or a lay bench of magistrates can then be decided locally. This may be a small point but it is one of principle and practicality.
The point of principle is that lay benches have exactly the same powers as district judges. There is only one exception to that, which is in the matter of extradition. Beyond that, it is a point of principle in magistrates’ courts in England and Wales that lay benches have exactly the same powers as district judges.
The point of practicality is that limiting applications to district judges will mean unnecessary inconvenience to citizens. There will be delay and there may be extra costs. The reason for that is that district judges tend to sit in large cities and may be less readily available than lay benches.
I realise that this matter is being raised at a very late stage. I have given the noble Lord notice of it and I look forward to his response.
My Lords, I shall speak for a moment in the hope that my noble friend Lord Dholakia will get here. I know that he has raised this matter with the Government as well. It is welcome to have unusual procedures available to make sure that we get the final product right. Someone is telling me that my noble friend is not here. I merely wanted to record that he has raised the same matter. I am sure he will be grateful to the noble Lord, Lord Ponsonby, for raising it now.
My Lords, I will respond briefly in light of the remarks of my noble friend. The noble Lord, Lord Ponsonby, gave me notice of this issue and raised the question of which judicial body is appropriate to hear applications, under Clause 3, to extend the retention of DNA for those charged with a serious offence but not convicted.
As the House will be aware, this procedure is modelled closely on the system that has been in place in Scotland since 2006. In Scotland, these applications are heard by sheriffs, who, as the noble Lord will be aware, are full-time judicial officeholders, rather than by justices of the peace. In adopting the protections of the Scottish model, we have merely sought to replicate the position in Scotland. I would like to take this opportunity to reassure the noble Lord and other noble Lords—I think that the noble Lord is a lay magistrate—that this is not intended in any way to diminish the valuable work which lay magistrates do every day in dealing with the vast majority of cases before magistrates’ courts across England and Wales. However, as we have discussed previously, we expect these applications to be comparatively rare and we judge that, as in Scotland, it makes sense to put them before a professional judge rather than the lay magistracy.
Bill passed and returned to the Commons with amendments.
Legal Aid, Sentencing and Punishment of Offenders Bill
Report (3rd Day)
Relevant documents: 21st Report from the Constitution Committee, 22nd Report from the Joint Committee on Human Rights
Schedule 1 : Civil legal services
74: Schedule 1, page 140, line 8, leave out from “Kingdom” to end of line 39
My Lords, at 29 minutes to seven of the evening, I move my Amendment 74, and it is a great pleasure to do so.
Immigration law is a very complex area of the law, is highly regulated and immigration practitioners need, of course, to be qualified. The giving of general advice by non-legal professionals—for example, by not-for-profit organisations—is prohibited and, indeed, can be a criminal offence unless it comes within the Immigration Service’s Commissioner’s scheme. The point of providing legal aid for immigration matters is not to help fat-cat lawyers and it is not necessarily always to help immigrants themselves, although, of course, it ensures that those fleeing persecution and those wishing to be reunited with their loved ones—their wives and children—are able to do so. The main point of providing legal aid for immigration matters is to ensure that this complex, sensitive and highly regulated system functions. A radically deprofessionalised immigration system would collapse quickly under its own weight within a short period.
Last week in the case of Lamichhane, in the lead judgment in the Court of Appeal, Lord Justice Stanley Burnton referred to an observation of Lord Justice Jackson in the Sapkota case. Lord Justice Jackson’s name has occasionally been heard in this House and will no doubt be heard again in the next few days. Lord Justice Jackson observed that,
“this area of immigration law has now become an impenetrable jungle of intertwined statutory provisions and judicial decisions, with the result that reasonable differences of opinion … are now perfectly possible. There is an acute need for simplification so that both immigrants and immigration officers may have a clearer understanding of their responsibilities and rights.
Lord Justice Stanley Burnton said:
“In my judgment, if anything Lord Justice Jackson understated the problems. I could easily have reached contrary conclusions in this case, and given respectable reasons for doing so. There is an urgent need for a simply-stated and clear codification of statute law on immigration rights, restrictions, administrative procedures and appeals”.
Therefore, legal aid is necessary to ensure justice in an overly complex system.
The Administrative Justice and Tribunals Council responded to the consultation put out by the Ministry of Justice with regard to the forerunner of this Bill, citing this very complexity. The council cannot be attacked in the way that lawyers and others have been attacked as simply being concerned to protect its own self-interest. The AJTC also notes the extraordinary complexity of immigration law and takes issue with the assertion that,
“individuals will generally be able to represent themselves”.
As the consultation document acknowledges, these are cases where important issues arise, including the right to family life. The AJTC says:
“It is essential that appellants are properly advised and prepared before facing a highly complex process with potentially life-changing consequences. As with other areas of administrative justice, immigration raises matters of fundamental concern. The issues faced by appellants may be more important to them than anything else. At the same time, the system is flawed and mistakes are often made by initial decision-makers. Legal aid in immigration is a cost-effective means of correcting systemic injustice. … Removal of legal aid will leave vulnerable people even more prey to unregulated and illegal advisers than they are already”.
I submit that this is pretty powerful stuff which any Government should not easily and comfortably reject.
Another point worth making is that the Government envisage a system in which immigration law is not covered but asylum cases are. Can anyone see the possible end result of such a system? Spurious asylum case after spurious asylum case will flood into the immigration and tribunal system. In my experience immigrants do not simply choose to come to the UK in the same way as one makes a consumer choice. Refugees come here for various reasons; for example, to escape tyranny and oppression. They come to this country as it represents a beacon of freedom, tolerance and justice. They miss their homes and their families, whether the latter are in India, Australia, the United States, Nigeria or anywhere else in the world. This House accepts that immigrants to the United Kingdom are not a drain on the United Kingdom, despite what some would have us believe. Every economic study shows the net benefit they bring to our country. Indeed, they and their descendants are now part of the fabric, and a very valued part.
Anyone who watched the television coverage of Her Majesty the Queen’s visit to Leicester last week may have seen the same scene that I did, which showed an Asian woman being interviewed while waving a small Union Jack. She was asked why she was waving the Union Jack and had come to see the Queen. She said quite simply, “Because this is my country and she is my Queen”. I do not think one could get a better example of the way in which immigration has benefited this country rather than the opposite.
By making the system less fair and by making it nearly impossible to reunite families and allow people the right to stay, we will probably create a chaotic system. The wrong people will end up staying here for years waiting for their hearings; the right people will end up in limbo, when they might be contributing to our nation’s success. Worse still, the impact on women and girls will be severe. They will face an immigration system without receiving any advice or assistance. In the measure’s current form there will be no provision for legal aid for trafficked victims to resolve an immigration problem other than to make an asylum application. They will not be able to obtain advice on the implications of being referred to the national referral mechanism. As such, their informed consent for referral would be questionable. Nor will they be able to challenge decisions on whether or not they are victims of trafficking.
Last week, to their credit, the Government pledged that they would sign up to the Council of Europe convention on preventing and combating violence against women and domestic violence. However, this sits slightly askew from the Government’s position on this Bill, despite their recognising that without legal aid women are at much greater risk of being trapped in an abusive relationship when their immigration status is dependent on their abuser, or when a woman’s insecure immigration status is used as a means of control by an abuser. These matters were brought up by noble Lords on all sides of the House in Committee, but the Government have not responded satisfactorily to the points that were then made.
This policy is the worst of both worlds. It will disadvantage all applicants, force communities in Britain to house desperate people who are unable to work for longer and longer periods as the tribunal system creaks further, and will mean that many people with considerable merit cannot stay and contribute to Britain. If we do not rectify this change now, it will lead to chaos, greater expense and negative consequences for all of us.
I conclude as follows: with immigration advice and representation regulated—and quite rightly regulated because of the scandal of advisers in the past—I ask the Minister, from where are people going to get advice when legal aid is gone? There just will not be the availability of advice, let alone representation. A commonsense forecast would be that people will be forced to revert to second-rate, greedy and corrupt advisers keen to extend for as long as they can the existence of the case, and who will often fleece what money they can out of the client and then leave them high and dry. That is not an appealing scenario, and it is certainly a step backwards from the situation today, which is hardly satisfactory. We ask the Government in the amendment to think again about taking immigration out of scope. I beg to move.
My Lords, I support the amendment. I am concerned that in the Minister’s letter dated 1 March to all noble Lords he said that the Government were removing legal aid for what he called “routine” immigration matters. I have to say to him that there is nothing routine about many of the cases for which legal aid would be denied.
Many of these cases have two important characteristics. First, they concern issues of fundamental importance to the individuals concerned, as well as to society. There are few issues as vital to an individual as whether they should be deported from this country, or whether members of their family should be able to join them in this country. The second characteristic is that many of these cases are of extreme legal complexity. The noble Lord, Lord Bach, has already quoted what the Court of Appeal said last week; and those words would be equally true of very many areas of immigration law. Yet legal aid would not be available for appeals to the immigration judge, or on points of law to the Upper Tribunal, the Court of Appeal and the Supreme Court. The UK Border Agency will of course have the benefit of lawyers to argue its case on such appeals.
I understand the need for cuts in public expenditure, but this proposal to remove legal aid in immigration matters is proceeding on the fundamental misapprehension that these cases are somehow routine—they are not.
I will not detain the House for long, but recall only too well the situation posed when I was an MP conducting surgeries on Friday nights. There were many occasions when I had to go to Heathrow to see people who were being deported. They were desperate. They had no alternative. I would not like the situation to be repeated, but I fear that it will be. The Government have to convince this House that desperate people are not to be accommodated at all. That situation is impossible to defend. The proposals being put forward by the Government today are so reckless that they ought to be defeated. It is absurd that ordinary people who are so desperate should have no alternative. That situation should not be encountered at all.
My Lords, perhaps I may intervene briefly and almost reluctantly, because, having been rather rebellious last week on the Bill, I have been struggling to find good reasons for not being rebellious this week. I have to say that it is very uphill work. Certainly, when I read all the briefing on this debate from various quarters—the Immigration Law Practitioners’ Association, which in turn quoted the Administrative Justice and Tribunals Council, to which I shall return in a moment, and a variety of other bodies—the Government’s case got thinner and thinner with every word I read. My view has been reinforced by the points made this afternoon.
The mantra is that all this is necessary because we have such a big debt. I have said several times, as the noble Lord, Lord Pannick, said, that I entirely understand the need to tackle the country’s financial problems. It does not necessarily follow that this of area of legal aid has to bear an equal share. Certainly, my recollection of the rhetoric of the coalition agreement was that we would tackle the debt problem while seeking to protect the poor, the weak and the vulnerable from the worst effects of the country’s difficulties. I am bound to say that I found it very difficult to square that rhetoric with some of the stuff in the Bill.
I shall say something even more uncomfortable to my noble friends on the Front Bench. The conclusion to which I am being forced, given some amendments, particularly those on welfare benefits and on this matter, is that—and this is not the first time in history—a department, in this case the Ministry of Justice, has either acquiesced in or been coerced into a settlement that is bordering on inconsistency with the fulfilment of its objectives in terms of the promotion of justice in this country. I find that very sad, particularly when I look at some of the things for which the Government have managed to find money like a rabbit out of a hat on one or two occasions that it might be tendentious for me to quote. There is therefore a tension with the overall position of the coalition on what we are doing here.
I shall refer only briefly to some other matters, because they have all been touched on. I think that the House is well aware from earlier discussions that for a decade I was chair of the Administrative Justice and Tribunals Council and its predecessor, the Council on Tribunals, until I became time-expired. I had nothing to do with the council’s comments on this proposal, but it would not surprise anyone to know that I agree with it. Perhaps it is therefore even less surprising that the Government appear to be hell-bent on abolishing that council, because they do not really like anybody who—I am sorry, I should not say that. They are not very happy with people who make comments that they do not welcome. As the AJTC and the judges quoted by the noble Lord, Lord Bach, have said—two or three of whom are senior judges—the whole thing is so impenetrable that they cannot, in effect, understand it and could reach different conclusions on any given case, and that the whole thing needs to be clarified and sorted out. What is the answer to that?
We have heard references to how advice workers can help, but we have also heard—and it is the situation—that under the regime of the Office of the Immigration Services Commissioner, CAB people, for example, are largely prohibited from offering a good range of advice in this field. I think that I have got that right, and it is certainly what the briefing appears to say. Where do we stand on that? Again, if I have correctly read what I have been sent, there is a suggestion that social workers might advise people in certain circumstances. I doubt that they are qualified at the moment. I doubt that they feel qualified. Are they going to be trained as legal advisers in place of lawyers? A lot of further thought is needed before we go down this path. I will listen with interest to the Minister, but at the moment the case has not been made for the proposition that is opposed by the amendment.
My Lords, I shall concentrate on the issue of trafficking, which noble Lords will have heard me mentioning from time to time. First, I congratulate the Government, as I have done on several occasions, on their strategy on human trafficking, but I remind the Minister that Article 12.1 of the Council of Europe trafficking convention, which I am delighted that the Government have signed, states that each party should provide assistance to trafficked persons that should include at least,
“counselling and information, in particular as regards their legal rights and the services available to them, in a language that they can understand”.
That is four square within what the noble Lord, Lord Bach, proposes. The Government will be allowing a dramatic gap in their strategy if they do not allow legal advice to trafficked victims.
I am extremely grateful to the noble and learned Lord, Lord Wallace, for supporting, at least in principle, an amendment which I tabled on domestic servitude and women claiming in the employment tribunal legal advice until the door of the court. Of course, to know that they have a claim, they need to be able to stay in this country to make it, so they will need a residence permit. Unless they are seeking asylum—and a large number of domestic workers will not—they will not be able to claim a residence permit. They may or may not go through the national referral mechanism; but they will be deported and they will lose their legal rights and claims.
What I have had from the Government is only the second part. What is needed is the first part, to enable those people who are victims of trafficking, the most vulnerable, deprived and traumatised of all people, who have the misfortune to be brought to this country for reasons over which they have no control. They will need help. The only way that they can get that help is to seek help from NGOs or whoever. As the noble Lord, Lord Newton of Braintree, said, and as I am informed, immigration advice is regulated. Consequently, NGOs and other organisations will not be able to give immigration advice to trafficked people, so they will be completely stuck. They will not be allowed to get legal aid and they will not be allowed to have immigration advice, which would lead to being able to deal with their immigration problems. That means either that NGOs will break the law or that those vulnerable people will be stranded without any ability to cope and, almost certainly, not having much grasp of the English language.
Many domestic workers, in particular, but also other workers, have legitimate claims, such as an application to the employment tribunal, for which they require a residence permit at least for a certain period. I believe that residence permits last for up to about one year. I understand that the police are prepared to seek residence permits, but only if the trafficked victims are prepared to give evidence in the criminal court. There is a gap here which the Government must fill, or they will be in breach of the convention obligations which they have signed.
My Lords, like others, I have been aware of the paradox that some senior lawyers have commented on the complexity of immigration law, but that if those extraordinarily senior lawyers had attempted to give advice they would be committing a criminal offence.
I do not want to repeat all the powerful points made in this debate, but an obvious point to me is that so many of the not-for-profit organisations which are not approved to give advice in this field work on something less than a shoestring. We have seen some of them folding not so long ago. Those which are approved are very stretched. They may not survive if legal aid in this area does not remain available. I do not suppose that the financial criteria for being granted legal aid under any part of the scope will be that generous—one's means must be very low to qualify. Like the noble and learned Baroness, I very much welcome the announcement that victims of trafficking will be eligible to receive legal aid. I wait to see the detail on that.
I just wanted to make two points. First, not everyone who wants to stay either wants to or can apply for asylum—I recognise that that will remain in scope. Secondly, their very difficulty with immigration status restricts many trafficked victims from seeking help to escape from their traffickers. Their passports will have been taken away. To many of them, that amounts to their identity being taken away. That leaves such control with their traffickers that I find it a difficult notion that they will not be able to get advice under a legal aid scheme.
My Lords, if the House was today being given a choice between the amendment proposed by my noble friend Lord Bach, to bring within scope the immigration laws and advice that is needed by so many people to get through the impenetrable weight and mass of immigration law, and simplifying and reducing the impenetrability of immigration law, many of us might go for the second.
I remind your Lordships that many branches of administrative law—or what is nowadays called that—were created by the welfare state, post-Beveridge, after the end of World War II. The idea was that there would be a law which need not be dealt with by the courts but could be dealt with by a mix of lay men and lawyers in administrative tribunals. I recall that the TUC used to say: “No more law, no more lawyers”, when dealing with industrial injury and other matters which were to go to tribunals. Of course, we all know that during the past 50 or 60 years the law relating to the welfare state and immigration has increased. It has expanded. Many times during debates on this Bill in the past few weeks, mention has been made of the vast quantity of material contained within the 1,000 pages-plus of the law relating to welfare. Many lawyers know, as many of your Lordships have said this afternoon, that that is the case with immigration law. There is a mass of detail.
If I were given the choice between simplifying that and my noble friend’s amendment, I would probably prefer a scheme to start on the major task of simplification. We do not have that choice today. The choice today is how to deal with the present Bill. Whatever we may do as Parliament in due course, today and tomorrow, in the immediate future, there is a real need for people to have proper advice from authorised persons about the detail of immigration law. That can be done only if we agree to the amendment to enable relevant people to come within scope of legal advice and legal aid.
My Lords, rightly, we have heard a lot about victims so far in this debate and, if this amendment is not accepted, we are going to create another victim—the justice system. Government after Government have struggled to find ways of curtailing the ability of those who seek to justify their presence in this country by excluding them through legislation that Parliament has passed in a series of Bills—legislation which has made the law into the state in which it is now and which has already been vividly described.
In those attempts, there is normally strong support in the other place and probably in this House because it is thought that often the legislation has popular appeal. Those who said that the Government were creating a situation which would be difficult, if not impossible, to administer and adjudicate upon were not listened to. So far as I recollect, the only occasion when a Government were forced into reverse was when it was said that the legislation they were proposing sought to prevent access to the courts. The previous Government realised that that accusation, made in various quarters, was justified. To their credit, they realised that, because of the seriousness of the criticism, they had to withdraw, as the legislation would indeed have prevented admission to the courts. Of course, the issue that we are now considering is not quite as dramatic as that but I can tell the House, based on my experience, that the consequence of removing legal aid altogether—I emphasise “altogether” because we are talking about taking it out of scope—could have very serious consequences for the administration of justice.
If you go along to the Strand, where you will find our most senior court apart from the Supreme Court, you will see that much of the time of the Royal Courts of Justice is spent dealing with the problems of immigration law. The Supreme Court, in its short existence, has found that a sizeable proportion of its diet again involves immigration. I urge the House to think about the consequences for the legal system of depriving those who desperately need legal assistance of the ability to get that assistance. Without it, the task of the courts will become even more difficult than it already is, as amply confirmed by the statements from senior courts to which the House has been referred. I urge the Government to think very seriously about this amendment because it is of great importance to the legal system of this country.
My Lords, the noble and learned Lord has reminded us very powerfully of the damage that can be done to our whole system of the administration of justice. Perhaps I may briefly make two wider points arising from that. One is that the Government are always telling us how they seek to play a constructive and powerful part in the deliberations of the international community in finding the solutions that matter for humanity as a whole. I can think of no more calculated way of undermining the respect in which we are held and the influence that we bring to bear than if there seems to be specific, mean action of the kind proposed. I do not want to exaggerate, as it would be quite wrong and irresponsible to do so, but I sometimes get very vexed. We all recognise the importance of joined-up government and we all recognise that we want to build a stable and secure world, but how does it help if there are increasing numbers of embittered and frustrated people having a bad experience at the hands of our legal administration in this country? How does that help to build international security and stability? I say no more.
My Lords, perhaps I may mention one point which has not been raised so far. I refer to the effect of this provision on the workload of Members of Parliament in another place and of some of your Lordships in this House. Many of us already get letters, e-mails and personal approaches from immigrants asking for advice. Obviously, we are exempt from the provisions that apply to other not-for-profit agencies. Under the rules that determine who is legally able to do so, we cannot say that we are not qualified to give advice, but people will no longer be able to go to, for example, citizens advice bureaux. I know from personal contact with the citizens advice bureau in Southwark that it has one person who is trained to give advice at level 3 on immigration cases and it has very few lower down who are even able to advance advice to their clients on level 1 cases.
Do your Lordships not think that the consequence of the Bill, when enacted, will be that, as people will not be able to get advice elsewhere, they will come in their droves to the doors of Members of Parliament, they will clog up the advice bureaux and they will turn to your Lordships? We will be completely overwhelmed by the volume of cases, as well as being unable to deal with the complex cases to which the noble Lord, Lord Bach, referred in his introduction. We all know that some immigration cases are simple and can be dealt with very easily by a person acting on his own behalf, but that does not apply to the vast majority of cases, as we have heard today. I think that there is enormous merit in the amendment proposed by the noble Lord, Lord Bach, and I certainly hope that my noble and learned friend on the Front Bench will have been thinking carefully about how he is going to reply at the end of this debate.
My Lords, I have listened with interest to this debate as a lay person who has not been much engaged on the Bill in the past. However, like my noble friend Lord Avebury, I had constituency experience and was always impressed by the complexity of the cases brought to me. I am also impressed by the volume of evidence and comment made, not least because I currently happen to be one of the officers of the All-Party Parliamentary Group on Migration. I am not in any sense taking its brief but I feel that this matter needs very careful and continuing consideration.
I well understand that there have been cases of abuse in the past. These may have involved overt or self-styled professionals, and they may have involved bad practices by others, including third parties, who run the immigration cases. I also well understand the point about the cost that the Minister has already made to us in correspondence. I would go beyond that to comment that we really cannot meet all the objectives which his department needs to meet in order to balance its budget if we make wholesale concessions on every single aspect of concern where pressure is developed.
These are complex cases. My difficulty in saying that we need to keep them within scope is—thinking aloud—in determining how one would find a basis for doing so without, as it were, pre-hearing the merits of the cases and without necessarily being able to predetermine the degree of legal complexity in those cases unless and until they had been examined. I know that those are difficulties and I know that the cost is a difficulty, but I say to my noble and learned friend that I do not spend my life rebelling and I do not intend to do so tonight for some of the general reasons that I have given about the need for rigour as we take this Bill through. However, I think that these cases are particularly difficult. If he takes them out of scope now, I think that he will need to keep the whole area under review. In future, he may need to consider at least some residual discretionary fund which can be applied to cases of particular interest or importance or where justice is most engaged. It is on that qualified basis, but in anticipation also of his response, that I may be prepared to tender my vote in his Lobby tonight.
My Lords, the amendment moved by the noble Lord, Lord Bach, as indicated by many contributors to this debate, would bring legal aid within scope for all immigration cases. I readily understand why noble Lords have put forward the amendment and I am sure the noble Lord will accept, as I think he indicated in his remarks, that just because we seek to take many immigration cases out of scope does not mean that we do not value the contributions that immigrants have made. I think the noble Lord, Lord Bach, acknowledges that we certainly do.
To make a change to the Bill in a way proposed by this amendment causes us to look at the rationale and the basic structure of what underlines this legislation at a time of limited resources. As my noble friend Lord Boswell has just said, this is a time when difficult decisions have had to be taken and when there has been a need to focus legal aid on those who need it most in the most serious cases. My noble friend said that he hoped we would consider it. It can be taken as read that, in an area as sensitive as this, for the reasons that have been advanced by many of your Lordships in contributions to this debate, this is obviously a matter which has been given serious consideration. I am confident that all who took part in the debate will appreciate that this is not a blanket exclusion of immigration cases. We have made it clear in the immigration sphere that we are retaining legal aid for asylum cases, which we believe is absolutely essential because the issues at stake can, at times, be as serious as life or death. It is important, too, to recognise that we will protect legal aid for immigration detention and where there is domestic violence. We are also keeping legal aid for most immigration judicial review cases, which are very often the most complex cases.
This approach means that under our reforms we will continue to spend £70 million of the current £90 million budget in relation to immigration cases. My noble friend Lord Newton talked about a disproportionate share. I think that our reform, with an expectation that some £70 million out of the current £90 million budget will continue to be spent, is an indication that this has been examined in some detail.
However, the corollary of protecting legal aid, particularly in the key areas to which I have just referred, is that it is necessary to be more far reaching in others. At a time when our fiscal difficulties have been acknowledged by a number of contributors, I do not see how it is always possible to justify the extended use of limited resources; for example, for foreign students who may wish to study here but who do not have a connection with the United Kingdom. When difficult choices have to be made sometimes it is very easy to accept the principle that those choices are necessary but it is more difficult when you try to translate them into specific areas.
I shall pick up specific points made by a number of contributors, not least by the noble and learned Baroness, Lady Butler-Sloss, who acknowledged the accession to the convention that was recently confirmed. The noble and learned Baroness knows, because we debated it in Committee, that the Government provide £2 million per annum for support to trafficked victims to help to rebuild their lives and that can include information about legal rights. I think it is known by your Lordships that that £2 million is distributed by the Salvation Army. The convention requires legal counselling, including information about people’s rights. There are no immigration applications as such that trafficking victims need to make. They are automatically granted 40 days' leave; then they may be granted 12 months’ leave if they are assisting the police, or up to three years’ leave if there are compelling circumstances to do so. That is decided on the known facts of the case and they do not need to apply for it.
As was acknowledged by the noble and learned Baroness and by the noble Lord, Lord Bach, we debated an element of trafficking last week when the Government accepted, in principle, much of what the noble and learned Baroness proposed in her amendment. We have agreed to return at Third Reading with amendments dealing with advice for victims of trafficking and we will certainly consider the points raised in this debate about including immigration advice with that. I think I indicated last week to the noble and learned Baroness that there will be engagement between her and officials in the Ministry of Justice.
In general, we believe that many immigration cases—I think my noble friend Lord Boswell touched on this—are relatively straightforward and individuals should be capable of dealing with their applications without the assistance of a lawyer. The issues raised are often not complex legal ones. I hear what the noble Lord, Lord Bach, said in reference to that. I do not have before me the details of that or whether it might fall into one of the exceptions that would be within scope. Often they are about whether the facts of a particular case meet the Immigration Rules.
We have a tribunals system in this country where appeals are heard and interpreters are provided as necessary. Sharing some of the initial comments of the noble Lord, Lord Borrie, I hope that we have not lost sight of the original point of tribunals which was precisely to allow the resolution of disputes by individuals without the need for complex and expensive legal advice. Indeed, when the noble Lord, Lord Bach, was making his case, I had a similar thought to the one that the noble Lord, Lord Borrie, expressed that perhaps one answer to this would be to simplify the legislation. However, as he rightly points out, that is not on offer today and I cannot make any commitment on that. I think that the noble and learned Lord, Lord Woolf, said something very similar. It is something on which we, in Government, would do well to reflect. I am sure that many areas of administrative law—not just immigration—have grown in complexity over the years, as one layer of legislation has been laid on another.
I, too, agree that coming to or staying in the United Kingdom is of vital interest to those concerned, but practical, general advice and guidance can be available to help them. As we have already indicated, the Chancellor of the Exchequer will include details of substantial new funding for the advice sector when he announces the Budget. At a time of austerity, specialist legal advice on top of that is simply not justified. My noble friends Lord Newton and Lord Avebury spoke about the position of the citizens advice bureaux and the stringent regulations that were brought in by the previous Government. It is my understanding that the citizens advice bureaux can give immigration advice to level 1, which is low-level advice and assistance. Similarly, we will work with the Office of the Immigration Services Commissioner with a view to seeing whether we can exempt local authorities from regulation so that they can offer low-level advice and assistance as well.
My Lords, will the Minister acknowledge that part of the reason for introducing the Office of the Immigration Services Commissioner was the poor quality of the advice that people were getting at these tribunals from people who simply did not know what they were doing? The new service was designed to ensure that they would get proper advice, and we should think very carefully before going back to the preceding regime.
My Lords, we are not proposing to abandon the regime. As the noble Lord, Lord Bach, pointed out, immigration advice is tightly regulated by the OISC, to which complaints can be made.
Substantial savings are required. The change that we propose will save an estimated £20 million a year out of a total of £90 million spent in this sphere of law. It is important to show a balance; it is not just a case of taking immigration cases out of scope. Cases affecting some of the most vulnerable people will remain in scope. I do not for a moment doubt the motivations behind the amendment. However, I assure noble Lords that the matter has been given careful consideration. My noble friend Lord Boswell asked about complex law being kept under review. He will be aware that the power to add, within scope, that has been proposed for Clause 8 is a safety net that could be used if, in the light of experience, the somewhat apocalyptic scenario described by the noble Lord, Lord Bach, came to pass. Of course, there will be a post-implementation review after five years.
I hope that noble Lords will recognise that in a very difficult area we have sought to strike the right balance in cases that are particularly demanding and that particularly affect asylum seekers, such as cases of domestic violence and where people are being held in detention, and that we are addressing some of the most difficult cases in the immigration field. However, we had to draw the line somewhere. It could never be in the right place for all noble Lords. I can only assure them that it was done with some care and thought, and ask the noble Lord to withdraw his amendment.
My Lords, I am very grateful to all noble Lords who spoke in this important debate, and not least to the Minister, who in his usual reasonable way explained the Government’s position. I am afraid that I cannot accept the explanation. To save £20 million in order potentially to set back the system by many years and to cause difficulties for so many people is not a sensible saving of money.
The noble Lord, Lord Newton, talked about other expenditure the Government had found. He was too polite to say what I will say. My example is the £250 million the Government found to make fortnightly bin collections weekly. It is absurd to save £20 million here but spend £250 million there—such an absolutely wrong sense of priorities—that any satirist would have enormous fun writing a story about it. Jonathan Swift should be living at this hour.
I will simply ask the House to recall the comments of two of our most distinguished judges: the noble and learned Lord, Lord Woolf, and the noble and learned Baroness, Lady Butler-Sloss. Their words a few minutes ago gave the lie to the argument that this was a sensible move by the Government. Almost all other noble Lords who spoke said that the measures were not worth taking and were wrong in themselves. I ask the House to ask the Government to think again. I beg to test the opinion of the House.
74A: Schedule 1, page 141, line 3, at end insert—
“Debt management and relief or remedyCivil legal services in relation to any debt management relief or remedy available under Part 5 of the Courts, Tribunals and Enforcement Act 2007.”