House of Lords
Tuesday, 24 April 2012.
Prayers—read by the Lord Bishop of Bath and Wells.
Transport: Automatic Number Plate Recognition
My Lords, the police use automatic number plate recognition to spot vehicles that are being used without insurance or with no registered keeper. Under the continuous insurance enforcement scheme, the DVLA has powers to issue fixed-penalty notices, clamp a vehicle or prosecute offenders who keep a vehicle with no insurance. Contractors for DVLA are able to wheel-clamp uninsured vehicles, and have access to ANPR. The DVLA also has its own ANPR equipment to detect unlicensed vehicles.
Does the Minister agree that the estimated loss to ordinary insured drivers is £500 million a year in higher premiums? Has he seen the reports about forecourts saying that they will not let you buy petrol if you are unregistered? Has there been any increase in the effectiveness of enforcement where people are uninsured or unregistered?
My Lords, the cost of uninsured drivers is considerable. Uninsured drivers are also vulnerable to legal difficulties. The situation is highly undesirable, which is why we are taking steps to reduce the level of uninsured driving. The idea of using ANPR on petrol forecourts is innovative and being considered, but further work is needed to establish how it will work in practice alongside existing enforcement measures.
Will my noble friend take this fact away? ANPR is cutting-edge technology. It is very capable and can detect uninsured or stolen vehicles, people who are wanted by the police, and myriad other things. However, the legal system, which is in the hands of the Home Office, is not keeping pace. I have been on ANPR checks that have had to be stood down after about an hour because all the available space in a police station to process the prisoners has been quite overwhelmed.
My Lords, my noble friend is right about the advantages of ANPR technology. It detects a considerable number of unlicensed vehicles. I was out with the police last week and we caught an uninsured driver. It is not the only technique available. Under continuous insurance enforcement, the DVLA is able to issue fixed-penalty notices to anyone who operates a vehicle that is not insured and not declared to be off the road. That will also be a very effective deterrent.
My Lords, if we have so many facilities for tracking these people and bringing them to charge, why is the system not operating? What will the Government do to use the facilities properly? Will they not consider employing people who are unemployed to chase these people, which will make the system cost-effective at the same time?
My Lords, I said that I was out with the police very recently using this technology and we detected an uninsured driver. However, we need to be careful that when we interfere with motorists, and possibly seize or clamp their vehicles, the people doing that work are properly trained and qualified to do so.
My Lords, the noble Lord is absolutely right about the use of ANPR. I cannot give examples because I am not briefed on them, but when I went out with the police, I was in an unmarked police car and the police were interested in all types of crime, not just vehicle crime.
We note that the Minister has been closely involved with the police and has been helping them with any inquiries which they make, and I am very glad to see him back in his place today. Will he address his mind to the fact that the cost of motor insurance, which, after all, encourages those of a less respectable bent to try to avoid it, went up by 14 per cent last year? For young people getting their first car, if it is of a fairly clapped-out variety, insurance could be twice the cost of their vehicle. What are the Government going to do about that?
Museums and Galleries
My Lords, the Secretary of State for Culture, Media and Sport announced funding plans for national museums and galleries as part of the spending review in 2010. There are no plans to review the status of national museums and galleries. The Government remain committed to maintaining free admission to national museums and galleries. We believe that in the current difficult economic climate it is important that national museums remain free and continue to provide an important cultural and educational resource that is available to all.
My Lords, many of your Lordships will know of and appreciate the invaluable contribution of the noble Lord, Lord Sheldon, to the All-Party Parliamentary Arts and Heritage Group: he is its president, and a very fine one. We share his deep appreciation of national museums and galleries in England and their contribution to public life. Our national museums and galleries are among the finest in the world. I reassure him that their trustees and directors set an admirably high standard of collections care, exhibitions and public programmes. The Department for Culture, Media and Sport shows its confidence in them by providing four-year funding settlements.
My Lords, as a former trustee of national museums and galleries of Liverpool, and given that the Liverpool museums and galleries are the only national museums and galleries outside London, can my noble friend reassure me that there is absolutely no question of any change in this unique status, especially considering the enormous development and improvement there has been to those museums and galleries?
My Lords, as a trustee of the Science Museum, I express my appreciation for what the noble Baroness said in her first answer about the role of trustees and the contribution that they make. Her commitment to maintaining free admission is very important and will also be welcome. Does she agree that that is not only an important ingredient in attracting record numbers of visitors—which certainly all the museums in the Science Museum group can now claim—but is a way of levering in private finance to assist with particular projects?
Yes, the noble Lord is absolutely right. Seven out of the top 10 UK visitor and tourist attractions are free, DCMS-sponsored national museums. Since the introduction of free admission in 2001 that he mentioned, visits to museums which previously had charged increased by 128 per cent, rising from 7.2 million to 16.3 million in 2009-10.
My noble friend will be aware of the huge importance of museums to our heritage, tourism and economy. She will also be aware that some museums have unique national collections but are not designated national museums. The director of National Museums Liverpool, which the noble Baroness, Lady Hooper, alluded to, has called on the Government to consider developing a museum strategy. Will the Government consider that?
My Lords, most of the UK’s national museums and galleries were originally founded through the contributions, substantial in many cases, of individual philanthropists. Today, most rely heavily on donations to compensate for the cuts being made in public funding to maintain their buildings and to acquire original artefacts and artworks. What assessment have Her Majesty’s Government made of the financial implications for our cherished national museums and galleries of the Government’s plan to cap tax relief on charitable donations? Can the Minister comment on where this leaves the Secretary of State’s 10-point plan, which I understand was intended to “catalyse and facilitate” individual and corporate giving?
The noble Lord, Lord Stevenson, practically makes this a topical question. Given the macroeconomic climate, fundraising will continue to be a challenge and the Secretary of State will continue to drive the entire charitable giving agenda to help museums and galleries maximise their funds so that they are able to continue to raise money from generous benefactors. The Government, DCMS and all of us want to recognise the profound generosity of donors and benefactors.
My Lords, is the Minister aware of the extent to which, on the world stage, the unique character of our national museums, including their existence as proper public spaces, has contributed not only to cultural growth but to significant economic success, but that that economic success will be threatened by long-term cuts?
The economic success of galleries and museums is foremost in the mind of the Secretary of State. As for the aspects of the present taxation policy, what goes into the Budget will be the prerogative of the Chancellor. I am afraid that I cannot go into detail in your Lordships’ House regarding discussions between Ministers, but the Government will keep open all options regarding the point raised by the noble Earl, Lord Clancarty.
My Lords, can my noble friend tell the House whether these national museums will be affected by the changes announced in the Budget to charge VAT on alterations to listed buildings? I declare my interest as president of the Sulgrave Manor trust—a Tudor manor house and the ancestral home of George Washington which now operates as a museum. These museums are very old buildings. Will they be protected?
I am not embarrassed by the many productive points established by DCMS. The Government’s consultation on the detail of these policies and their implementation will be published in the summer. I shall give some examples from April 2012. The inheritance tax rate was reduced from 40 per cent to 36 per cent for estates where 10 per cent or more is left to charity. We are committed to an online filing system for charities to claim gift aid, which is planned for 2013. We are also working with the sector to develop a gift aid database for charities as well as implementing several other suggestions.
House of Lords: Reform
The Minister of State, Ministry of Justice (Lord McNally): My Lords, the Government have carefully considered their proposals for reform of this House and will continue to do so, particularly in the light of the Joint Committee’s report published yesterday, which supported a mainly elected House. We believe that this House will continue to perform its role as an effective scrutinising and revising Chamber.
My Lords, does characterising House of Lords reform in exchange for House of Commons boundary changes as coalition civility risk an erosion of confidence in democracy, as the people of our country are coming to terms with the spectacle of one party in coalition attempting better to control the House of Commons in exchange for the other party trying to achieve control of a future elected second Chamber, all being pushed through using the Parliament Act in what would amount to a monumental gerrymander?
That is a rather harsh judgment on the Government. It is right that the case for boundary reform and House of Lords reform are judged on their merits. The Government put them through this House for scrutiny separately. They are not interlinked but are part of the Government’s and the coalition’s overall commitment to constitutional reform.
My Lords, the noble Lord has said that the Government will carefully consider the recommendations of the Joint Select Committee. He may have observed that the committee did not achieve exact unanimity in its conclusions. But the one issue on which all members seem to be agreed is that Clause 2 of the Bill will not do. Will the noble Lord say what the Government’s response will be? Will he also respond to the evidence given by the noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Pannick, in relation to the Parliament Act 1911, in which they say it is very clear that that Act was introduced to govern the relationship between an elected and an unelected House?
My Lords, less than 24 hours after the publication of a carefully considered report, it would be impudent of me to start pronouncing on some of these issues. As to the opinions of the noble Lord and the noble and learned Lord on the 1911 Act, the strength and the powers of the 1911 and 1949 Parliament Acts were recently tested in court.
My Lords, can my noble friend tell the House whether the Government have made an assessment of the risks of not proceeding with legislation for the reform of this House? For example, does he appreciate that if each incoming Prime Minister wished to rebalance the party representation in this House, we would soon exceed 1,000 Members? Does he also recognise that the public at the moment are more in favour of abolition of your Lordships’ House—by a very considerable margin—than retaining the all-appointed element?
My Lords, the best thing this House can do for its own reputation is now to deal with the issue of Lords reform, aided and assisted by the report we have just received and by our normal process of debate. I do not think the country will be satisfied with a House of Lords that seems self-confidently smug about its own rectitude—and that groan of noble Lords will, I suspect, only confirm the country’s opinion of that. Let us proceed with dignity and responsibility. If we allow the status quo to develop—which I do not want to see because I love this House of Lords—the House will drift into public contempt because of its lack of reform.
I have no intention of going down the road to a written constitution. This country has probably for 300 years been extremely successful in adjusting its constitution to the age in which it is there to serve the people. Now, in the 21st century, the time has come for the House of Lords to make a similar adjustment.
I have not yet read that report. Yesterday I was fully engaged in the fruitful debates on the Legal Aid, Sentencing and Punishment of Offenders Bill. However, I can assure my noble friend that I have a box by the side of my desk marked “weekend reading” which has in it that report and the main report. I look forward to reading both over the weekend. I cannot compel other Ministers as to their reading but I hope that all Members will take this issue forward with a sense of responsibility and a sense of the dignity of this House.
My Lords, in response to the supplementary question from the noble Lord, Lord Kakkar, the Minister said that the AV and boundary legislation requiring a second vote by the House of Commons and passage of the House of Lords Reform Bill were two entirely separate and distinct issues. Does this mean that the noble Lord, Lord McNally, publicly disowns the comments freely made by many of his Lib Dem colleagues that the two of them go together and that without the one there would not be the other?
No. Every time I open my newspaper, there is some new, exciting story about some Minister or somebody in the other place taking a position one way or the other. What I said was that those two Bills had been presented to Parliament quite properly, and debated separately. They stand on their merits. However, over the next few months, we will have to get used to all kinds of scaremongering, rumours and the rest. That is why it is important that we all keep calm—and noble Lords will know how good I am at keeping calm.
Value Added Tax: Listed Places of Worship
My Lords, the Budget removes a VAT distinction, which is notoriously difficult to apply in practice, between alterations to protected buildings, which include listed places of worship, and repairs to all buildings. The listed places of worship grant scheme, which makes grants towards the VAT incurred on works of repair and maintenance for listed places of worship, currently allocates £12 million a year. We are exploring options with the church authorities, including committing more money to the scheme, so that listed places of worship are not adversely affected by the Budget proposal.
My Lords, I declare an interest as chairman of my local listed church restoration committee. What progress was made at the meeting yesterday between church leaders and the Treasury to mitigate the reported £20 million VAT effect of these measures for listed churches, which is causing concern for church building projects throughout the land?
I am grateful to my noble friend for pointing out that there was an important meeting on this topic yesterday, led by the right reverend Prelate the Bishop of London and my right honourable friend the Chancellor of the Exchequer. My understanding is that they had a very open and constructive discussion. The Chancellor made it clear that the £5 million which the Government have committed to the listed places of worship grant scheme in the Budget is on top of the £12 million which the scheme already had. We accept, having seen the churches’ numbers, that the VAT change will indeed be more than £5 million and that we need to commit more money, and discussions will continue next week to look at what the projected numbers and our commitment should be.
My Lords, does the Minister acknowledge that the VAT changes are particularly damaging to projects that are already under way? For example, for a project in Kingston, the church reckons that it may have to pay as much as £400,000 additional VAT as a result of this change, when it has already raised several million pounds. Can the Government, at the very least, give a commitment that schemes that are already under way and on which there has already been significant fundraising will not be disadvantaged by the more general proposals in the Budget?
My Lords, I confirm that there are indeed transitional arrangements in place for approved alterations to listed buildings, which cover contracts in place before Budget day. Contracts in place on that day will retain the zero rate if the work is performed by 20 March 2013. Our consultation paper specifically asks for comments on whether the transitional period is sufficient. We will of course listen to any reasonable comments about these transitional arrangements and will consider whether any more generous arrangements could be implemented.
My Lords, of the 563 churches in my diocese, 503 are listed—some 89 per cent. Their upkeep relies almost entirely on voluntary fundraising and support from their congregations. In promoting the big society, many wish to open those buildings to wider community use. What incentive does the Minister believe is being created for congregations to do so by making them pay VAT up front only to claim it back through a scheme that is not adequately funded? Would not a simpler and real incentive for local churches to improve their buildings be to retain the current exemption on VAT?
The right reverend Prelate raises some important points. I can give him only partial comfort, or the answer that he wants, in respect of some of his question. First, as I have already explained, we intend to make sure that the compensation number fully reflects the additional costs of the Budget change. The element that troubles us most is that under the previous VAT arrangements the incentivisation worked in favour of alterations of listed buildings as opposed to repair and maintenance. We do not want to see anything that incentivises people against repairing and maintaining and therefore preserving the core heritage features of the property, so we think that it is right to put alterations, repairs and maintenance on an even basis. Therefore, although I cannot give the right reverend Prelate the comfort that we intend to revisit that issue, I stress again that we want to make sure that the churches are fully protected against the impact of the Budget change.
My Lords, is this a good time to reduce demand for the construction industry? In January this year, its output fell by 14 per cent. It is true that there was a slight improvement in February, but in the first quarter of this year output from the construction industry is certain to fall, with all the implications that that has for economic growth. Can the Minister look at this issue again?
My noble friend was perhaps being excessively charitable to the noble Lord, Lord Davies of Oldham, in saying that he was always right on matters. I am afraid that on this one he has not got it right. As I explained, the Government are fully compensating churches for the changes in VAT so that there will be just as much money available to listed places of worship before and after the change for them to put into something that we want to protect—the ongoing repair and maintenance of our listed places of worship.
Procedure of the House
Motion to Agree
Relevant document: 17th 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 Scotland 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.
In moving that the Bill be now read a third time, I wish to inform your Lordships' House that since the Report stage of the Bill the Scottish Parliament has given its full support to the legislative consent Motion in favour of the Bill, with no Division required. The Government welcome the Scottish Parliament’s support for the Bill.
Clause 12 : The Scottish Government
1: Clause 12, page 7, line 18, leave out first “the”
My Lords, these minor and technical amendments, which are a cue for those who wish to leave to do so, will ensure that all references to “Scottish Executive” in Section 44 of the Scotland Act are amended to “Scottish Government”. Clause 12 of the Bill renames the Scottish Executive as the Scottish Government. This clause was included in the Bill following increasing use of the term Scottish Government by the Scottish Administration, indeed by the UK Government and the public as well. Clause 12 will ensure that the use of its legal and public name is consistent. The current clause does not encapsulate every mention of the Scottish Executive within Section 44 of the Scotland Act and these amendments will ensure that the policy intention underlying Clause 12 is fully implemented. I beg to move.
My Lords, I am not going to make a speech about the relevance of the definite article, but I wonder whether my noble and learned friend might help me by giving some understanding of why it was felt necessary to change the name of the Scottish Executive to that of the Scottish Government, but not at the same time to change the name of First Minister to that of Prime Minister. Given that we apparently have a Scottish Government and a Scottish Cabinet, why has he not felt it necessary to make a change to the title of the leader of that Government? I ask that question not in order to make mischief but to underline the point as to what is going on here.
The Scottish Executive were called the Scottish Executive with very good reason: in order to demonstrate that power devolved is power retained, and that we did not have competing governments in a unitary system. If you are going to have separate governments, you have to have separate roles within some kind of federal structure. I do not know whether my noble and learned friend even considered changing “First Minister” to “Prime Minister of Scotland”. Looking at the behaviour of the First Minister in Scotland, Prime Minister is probably not a grand enough title—there may be other titles which would be more appropriate, given the all-encompassing role which he carries out—but in order not to delay proceedings, I will not elaborate on that matter. I would be most grateful if my noble and learned friend could explain to me why it was thought necessary to change just this aspect of the nomenclature of the Scottish Administration.
My Lords, as ever, I am grateful to my noble friend for raising a pertinent point. As I explained in moving the amendment, the term Scottish Government, albeit technical, is widely used publicly. Indeed, I think I am right in saying that it was first ever used by the Scottish Administration in a document which I rather suspect the late Donald Dewar and I co-signed in 1999 or 2000. It is not only used by the Scottish Administration but has been used by the UK Government, and is used widely within the public. We therefore think it makes sense to amend the Act to reflect this public perception and avoid the potential for confusion, if indeed the popularly used name differs from the one required for legislation, contracts and legal matters.
As I am sure my noble friend will agree, while there have been regular references to the Scottish Government as opposed to the Scottish Executive, the term “First Minister” is one which has stuck. There has been no attempt or suggestion to use the term “Prime Minister”, or any public use of it, to refer to the person who holds that office and there is a clear distinction between the two. I hope that I am not giving anyone encouragement, or they might start to use the term “Prime Minister”. Clearly, that has not happened. We are seeking here to bring into line the public perception and the legal requirements. On that basis I hope that your Lordships’ House will agree to these amendments.
Amendment 1 agreed.
2: Clause 12, page 7, line 18, leave out second “the”
Amendment 2 agreed.
Clause 21 : Speed Limits
3: Clause 21, page 13, line 31, after “of” insert “regulations under section 86 or”
My Lords, during the Committee and Report stages my noble friend Lord Forsyth of Drumlean tabled amendments to give Scottish Ministers the power to make regulations to make provision for regulating the speed of all classes of vehicle on special roads in Scotland. We had some spirited and interesting debates on this topic and at Report stage I indicated that the Government’s position was to accept the principles underlying my noble friend’s amendment and I committed to bring forward amendments at Third Reading so that the amendments properly deliver the desired effects that my noble friend set out. In particular, I highlighted that the amendment would require redrafting to ensure that the power to set different speed limits for different classes of vehicle applied to all roads except those covered by the 30 mph limit, not just special roads, which are effectively motorways in this context. That is what the Government have done and what Amendments 3 to 7 achieve.
The Government have included powers in Clause 21 of the Scotland Bill to allow Scottish Ministers to determine the national speed limit on roads in Scotland, and a power to make regulations to specify traffic signs to indicate that limit. The powers currently set out in the Bill are limited to cars, motorcycles and vans under 3.5 tonnes. We listened carefully to the arguments presented by my noble friend and other noble Lords on the Benches opposite. Together with the case made by the Scottish Parliament and the Scottish Government for the Bill to provide for the devolution of powers to set different speed limits for different classes of vehicles, we decided to accept the position put forward by my noble friend.
Amendments 3 to 7 will give Scottish Ministers the power to make regulations regulating the speed of all classes of vehicle on roads in Scotland and will make some consequential amendments. This will enable Scottish Ministers to set a national speed limit that is different for different classes of vehicle. On that basis, I ask noble Lords to accept the amendments. I beg to move.
My Lords, I am most grateful to my noble and learned friend for tabling this amendment and for accepting the principle of the amendments that, as he indicated, I tabled at an earlier stage of the Bill. After I do not know how many thousands of words that I have spoken on the Bill on all the issues that have been raised, he will realise that it is a matter of great comfort to me to know that I have extended the powers of the Scottish Parliament to enable it to set speed limits for caravans and lorries. That no doubt will be my epitaph in respect of the consideration of the Bill. Just to ensure that this is on record, I think that it is ridiculous to have different speed limits north and south of the border, but if we are going to go down that track then clearly it is essential that there should be consistency.
I am grateful to my noble and learned friend and to the Secretary of State for Scotland, who I know may have had to press the Department for Transport a little in order to ensure this minor victory for extra powers to the Scottish Parliament.
Amendment 3 agreed.
Amendments 4 to 6
4: Clause 21, page 13, line 33, after “the” insert “regulations or”
5: Clause 21, page 13, line 40, at end insert—
“( ) Section 86 (speed limits for particular classes of vehicles) is amended as follows.
( ) For “Secretary of State” in each place substitute “national authority”.
( ) After subsection (6) insert—
“(7) The national authority in this section—
(a) as respects the driving of vehicles on roads in England and Wales, is the Secretary of State;(b) as respects the driving of vehicles on roads in Scotland, is the Scottish Ministers.(8) Regulations made by the Scottish Ministers under this section are subject to the affirmative procedure.
(9) Before making any regulations under this section the Scottish Ministers must consult with such representative organisations as they think fit.””
6: Clause 21, page 14, line 21, at end insert—
“( ) In section 134(4) (provision as to regulations under sections 86 and 140) after “Regulations made” insert “by the Secretary of State”.”
Amendments 4 to 6 agreed.
Clause 22 : Speed limits: supplementary
7: Clause 22, page 14, line 28, leave out paragraph (b) and insert—
“(b) omit paragraph (f) (sections 86(2) and 88(1) and (4)).”
Amendment 7 agreed.
Clause 35 : References of compatibility issues to the High Court or Supreme Court
8: Clause 35, page 27, line 34, at end insert—
“( ) The Lord Advocate or the Advocate General for Scotland, if a party to criminal proceedings before a court consisting of two or more judges of the High Court, may require the court to refer to the Supreme Court any compatibility issue which has arisen in the proceedings otherwise than on a reference.”
My Lords, the amendments that I tabled in Committee reflected some of the points made in Committee and the agreement that had been reached between the Government and the Scottish Government to ensure that a legislative consent Motion in support of the Bill was tabled in the Scottish Parliament. The amendments at that stage included provision for compatibility issues to be referred to the higher courts in certain circumstances to allow these issues to be dealt with quickly.
On Report, I said that I was still considering whether the law officers should be able to refer certain compatibility issues to the Supreme Court without the permission of the High Court, and what the role of the High Court should be. I also indicated that I would continue to discuss these matters with the Lord Advocate.
The amendments that I have tabled extend the powers of the law officers and allow certain compatibility issues to be ultimately considered by the Supreme Court where the law officers consider it appropriate to do so. The Lord Advocate is content with these amendments.
Clause 35 already makes provision for the law officers to require a lower court to refer a compatibility issue to the High Court. This can be done before the trial is concluded. On receiving the referral, the High Court can either decide the compatibility issue itself or refer it to the Supreme Court. We expect the High Court, in making this decision, to take account of the views of the law officers.
Amendment 9 ensures that if the High Court decides to determine the compatibility issue itself, then the law officers will have a right to appeal the compatibility issue to the Supreme Court once it has been determined by the High Court. In these circumstances, the law officers will not need the permission of the High Court or the Supreme Court to appeal. This means that where one of the law officers refers a compatibility issue to the High Court then either law officer can ensure that the issue is ultimately considered by the Supreme Court, should the High Court decide to look at the issue itself.
In addition the Bill already allows the High Court to refer a compatibility issue to the Supreme Court, where the compatibility issue has not been referred to it by a lower court and the High Court is considering the issue on an appeal. Amendment 8 extends this power, by allowing the law officers to require the High Court to refer the compatibility issue to the Supreme Court. Law officers can only do this if the compatibility issue has not been referred to the High Court by a lower court, and the High Court is considering the issue on an appeal. Referring the issue will enable the Supreme Court to decide on it earlier, which will be helpful where the compatibility issue will have implications for other cases. These amendments improve the Bill and enable compatibility issues to reach the Supreme Court more quickly, where this is appropriate, while respecting the importance of the role of the High Court in relation to these issues.
As I said in our earlier debates, we have come a long way in reaching agreement on the role of the Supreme Court in Scottish criminal proceedings, and I am grateful for the contributions made to the debate, including those made by the expert group that I set up chaired by Sir David Edward, by the review group led by the noble and learned Lord, Lord McCluskey, and by other members of your Lordships’ House. I trust that all who have been involved in this work consider that the provisions in the Bill will result in improvements to the way in which convention and European Union law issues are dealt with in Scottish criminal proceedings. I beg to move.
My Lords, I welcome both Amendment 8 and Amendment 9, which, I understand, are being taken together. As for Amendment 8, I wrote to the noble and learned Lord the Attorney-General for Scotland some time ago suggesting that this would be an appropriate power to be included in the Criminal Procedure (Scotland) Act 1995. My view, which he has echoed, is that this power, used when thought necessary, could sometimes be useful to speed up cases going through the courts. It is clear that the two law officers, the Advocate-General and the Lord Advocate, can be trusted to use this power only in circumstances where it would serve the interests of justice, namely by preventing delay.
I believe I understand the purpose of this amendment and of Amendment 9, but could the noble and learned Lord explain one or two matters? The first is the exception made in the words that conclude Amendment 8,
“otherwise than on a reference” .
Could he explain precisely the purpose of those words? The second point relates to Amendment 9, to Clause 36. This disapplies subsection (5) to certain appeals taken by either of the two law officers. Why is this particular subsection disapplied? The answers will assist those practitioners who may have been confused by the considerable changes that have taken place, both in the Bill itself initially, and in the proceedings in this House to what is now Part 4 of the Bill.
Would the noble and learned Lord also explain under what circumstances and at whose instance a criminal case might be referred to the Supreme Court before the stage at which the facts of the case have finally been determined, and before the case itself has been finally determined by the court below? May I ask in particular, with regard to the commencement provisions in this Bill, when it is envisaged that Part 4 of the new Act will be brought into force? In asking that, I recognise that the Lord Justice-General—the Lord President—will have a considerable amount of work to do in preparing an act or acts of adjournal to cover the new matters. I have no doubt that he will have to consult widely on that; however, I hope that it could be done within months, rather than in any longer period. When is it envisaged that Part 4 will be brought into force?
I made an error in speaking to the Committee some time ago. I referred at that stage to the judges who had been consulted by the noble Lord, Lord Hamilton, before he put in his written representations. I mentioned that one of them was the noble and learned Lord, Lord Phillips of Worth Matravers. In fact, the two judges referred to were the Lord Chief Justice of England, the noble and learned Lord, Lord Judge, and the Lord Chief Justice of Northern Ireland, Sir Declan Morgan. I apologise to the noble and learned Lord, Lord Phillips, for that mistake.
Finally, I express my thanks to the Advocate-General for Scotland for the very careful and considerate way in which he has dealt throughout with the Bill and all the representations he has received. Two groups made a considerable contribution to the shape of the Bill and I shall mention them in a moment. The Advocate-General said that he would listen, which he undoubtedly did. He also made judgments with which I am happy to say that I agree. The two bodies are those mentioned by him. The group led by Sir David Edward, known as the expert group, made a substantial contribution to analysing the problems. Secondly, there was the group of experts that I had the honour to chair. We could not call ourselves the expert group because that name had already been appropriated by Sir David Edward’s group, so we called ourselves “the Supremes”. However, we kept that name to ourselves for reasons of modesty and to avoid confusion with the pop group of the same name. Between us and with the help of others in your Lordships’ House, we now have in the Bill a scheme for appeals on human rights issues in criminal cases in Scotland in the Supreme Court, and for other compatibility issues, that is greatly superior to the one that somehow found its way unannounced into the Scotland Act 1998. Time will show whether I am right.
My Lords, for the reasons set out in his initial remarks by the noble and learned Lord, Lord McCluskey, I also support these amendments. They improve the provisions of the Bill, to which my noble and learned friend Lord Boyd of Duncansby has made a significant contribution over time, as have those others mentioned by the noble and learned Lord, Lord McCluskey. I understand that the exercise of a power of this nature has proved beneficial in the past to the administration of justice in Scotland and that it would be to the detriment of the powers if it were not included in the provisions of the Bill.
My Lords, I thank the noble and learned Lord and the noble Lord, Lord Browne, for their welcome for these amendments. As I indicated, they reflect listening and working together, not only between the various groups but between the Lord Advocate and me and the respective officials in the United Kingdom and Scottish Governments. The noble and learned Lord, Lord McCluskey, made the point that the amendments will allow an opportunity for cases to be expedited in certain circumstances. Very often, these are circumstances in which a number of cases are waiting for a determination before they can be resolved.
The noble and learned Lord asked why the words,
“otherwise than on a reference”,
appear in Amendment 8. As I sought to explain, these relate to circumstances in which a case is being heard by the High Court on appeal. Therefore, it is different from a situation in which the High Court deals with a case on referral. Those words apply to an issue that comes up on an appeal that should be referred to the Supreme Court.
The disapplication of subsection (5) is the subject of Amendment 9. As I tried to explain in speaking to the amendment, it is anticipated that if there has been a referral from a lower court to the High Court on appeal, it will be possible for either law officer then to refer to the Supreme Court without a requirement for leave from either the Supreme Court or the High Court of the Justiciary. I hope that explains it.
The noble and learned Lord also asked when it is anticipated that these changes will come into effect. I cannot give him a clear date but I share his expectation and hope that it can be done in a matter of months. As he rightly points out, there is considerable preparatory work to be done. I strongly suspect that an act of adjournal will be required, which will need work by the Lord Justice-General, the Lord Justice Clerk and the court authorities in Scotland. However, we hope to make good progress in implementing this.
Before the noble and learned Lord sits down, will he reflect on this debate and draw the attention of his colleagues in government to the fact that the considerable improvements that have been made to the criminal justice appeals system in Scotland were achieved in a Bill discussed in this House by unelected Members who made all the necessary changes, including those that he made? There is perhaps a lesson there for those who are considering what changes to make to the constitution and powers of this House.
The noble and learned Lord is, I suspect, going slightly wider than the Bill, but I am sure there will be many lessons learnt from the way that the Bill has progressed—not least the way in which we have dealt with it. I pay tribute to those within your Lordships’ House who have contributed in debates and representations, as well as to others outside your Lordships’ House who have contributed too. What we have at the end is something worth while, given that some months ago we did not have the easiest circumstances. I obviously wish to confirm that although the group that I set up was referred to as the expert group, that in no way detracts from the expertise of the group chaired by the noble and learned Lord, Lord McCluskey. I was very conscious that when he, along with Professor Sir Gerald Gordon and Sheriff Charles Stoddart, came to see me, I was in the presence of the two people who had taught me criminal law in the late 1970s. I certainly listened very carefully to what they and the noble and learned Lord said, and I am pleased that the position we have reached appears to command support across the House. I therefore commend the amendment.
Amendment 8 agreed.
Clause 36 : Convention rights and EU law: criminal appeals to the Supreme Court
9: Clause 36, page 29, line 5, at end insert—
“( ) Subsection (5) does not apply if it is an appeal by the Lord Advocate or the Advocate General for Scotland against a determination by the High Court of a compatibility issue referred to it under section 288ZB(2).”
Amendment 9 agreed.
Clause 45 : Short title
10: Clause 45, page 33, line 22, leave out “Scotland Act” and insert “Scottish Income Tax, Enabling of Scottish Taxation and Borrowing, and Miscellaneous Provisions (Scotland) Act”
My Lords, I am not terribly keen on this Bill, but I do think it is appropriate that it should say on the tin what is contained in the Bill. The title “Scotland Bill” is somewhat bland, replicates the previous Scotland Bill and gives no indication whatever as to what it is about. I was struck the other day—in the way that one is struck when reading the Sunday papers in Scotland—to read an article by the shadow Secretary of State for Scotland in the other place, Margaret Curran, in which she said that it was ridiculous that no one in Scotland had acknowledged how much was in the Scotland Bill. She also said that although the Scottish Parliament had finally given—what a surprise—its legislative consent to a Bill that was actually enormous in terms of its implications and the powers it transferred to the Scottish Parliament, no one had gone out and explained to people how much was contained in the Bill.
I come from a slightly different side of this argument, but I entirely agree that it is a matter of extraordinary surprise to me that the Scottish media and the Scottish people seem to be completely ignorant of what is contained in the Bill. What my amendments—I am also happy to move Amendment 11—do is change the title from the “Scotland Act” to the “Scottish Income Tax, Enabling of Scottish Taxation and Borrowing, and Miscellaneous Provisions (Scotland) Act”. It is a modest proposal. It meets all the rules in terms of Bill titles, and I am sure that in the way that my noble and learned friend has shown such generosity of spirit in respect of caravans and the speed with which they travel on our roads, he will not have the slightest difficulty in accepting the amendment because it will help Margaret Curran and others who believe that by appeasing nationalism we will avert the catastrophe of the balkanisation of Britain and the break-up of the United Kingdom. It will help them to show just what has been achieved, and it may also warn the electorate of what it is about to face. Nothing in all the discussions that we have had on the Bill and all the amendments has really changed the potential damage that the Bill could do.
The provisions in respect of Scottish taxation need to be highlighted in the Title. In order to increase expenditure by 8.5 per cent, the Scottish Parliament will need to increase the basic rate of income tax by 25 per cent. We are back with the poll tax and local government capping where, in order to achieve comparatively small increases in revenue, very large increases in taxation are required because of the gearing effects. Despite my best efforts and those of a number of other noble Lords, the coalition Government have refused to have any kind of referendum procedure or lock on the use of these powers. At the very least, we ought to make it clear that the Bill is introducing for the first time since 1707 a separate Scottish income tax which can be set at any level and where the revenue from it, relative to the baseline expenditure of the Scottish Parliament, is such that very large increases in tax will be required to achieve comparatively small increases in expenditure.
It is also important that the Title lets people know that the really big issues arising from devolution and the instability created by the creation of the Scottish Parliament without addressing the West Lothian question or the Barnett formula—I am sorry that the noble Lord, Lord Barnett, a man who has been forced to travel through life bearing the burden of a formula named after him with which he profoundly disagrees, is not in his place—have not been addressed. There is the whole issue of moving to a needs-based system of funding before introducing a taxation plan. None of those things is included in the Bill. Therefore, to call it the Scotland Bill is misleading because it is clearly not dealing with the key issues arising for Scotland as a whole; it is concerned mainly with tax.
I resisted the temptation to table any further amendments. I regret that my noble friend Lord Sassoon is not in his place. I received a copy of a letter which he sent to the noble Lord, Lord Browne, concerned with those sections of the Bill which create the extraordinary power for this Parliament by Order in Council to create new taxes thought up by the Scottish Government. That is a huge, monstrous constitutional step, but these days they come along every day. We have to deal with them, not least in our domestic environment in this House. A huge constitutional innovation is being made.
My noble friend Lord Sassoon sent me the copy of the letter. I saw it just after the deadline to table amendments, which is probably just as well, because I might have been tempted. I can only assume that the people who drafted the letter in the Treasury were the same people who thought that they could change the tax regime for charities and that it would go through without any difficulty. In the letter, my noble friend says that there is nothing to worry about in respect of the exercise of these powers because the Treasury will have a code, a set of criteria as to what taxes Mr Alex Salmond and the Scottish Parliament can ask this House and the other place to pass on a secondary legislative procedure. That is startling in its naivety. It will mean that from the moment the Bill receives Royal Assent, which is before any referendum campaign on independence, the Scottish Parliament and its First Minister will be able to exploit its provisions to create mischief. If the Scottish Parliament decided that it wanted a window tax or something even more disastrous—perhaps a tax on salmon fishing or estates owned by landlords who are not resident in Scotland, or to introduce a local income tax or any other kind of tax—the notion that the Treasury would be able to say, “Actually, it doesn’t meet the relevant criteria so we’re not going to put those measures through on secondary legislation in both Houses”, is startling in its political naivety and opens up a whole new area of conflict between Westminster and Edinburgh in the area of taxation which should not arise.
Therefore, at the very least we should make it clear in the Title of the Bill that it is enabling of Scottish taxation. That is very important because the tax powers that the Scottish Parliament enjoys—the variable rate and the limited ability to change only the basic rate of income tax by 3 pence in the pound—are abolished by this Bill. What people voted for in a referendum is being abolished. The Government have repeatedly refused to allow a referendum to bring in these new additional sweeping powers. At this late stage, exhausted by my efforts, I plead with my noble and learned friend at the very least to put in the Title of the Bill some indication of what he is about to explode unexpectedly on the hard-working people of Scotland. There is an issue here because the Bill also provides for additional borrowing powers, and borrowing is simply tax deferred. Therefore, Scotland’s yet unborn will have to pay higher taxes on the back of these borrowing powers.
I know that people say, “Ah well, these are only powers. They may not be used”, but anybody who has read Alex Salmond’s manifesto will know that the chances of these powers not being used are pretty remote. They are about as great as the Deputy Prime Minister deciding that he is not going to put Lords reform in the Queen’s Speech. It would require a damascene conversion and a huge change, and it is not going to happen. To be fair to the First Minister, the numbers are against him. The Chancellor gave the Scottish Parliament a free ride in the run-up to the Scottish elections—which shows how generous of spirit he is—meaning that it did not have to make any reductions in expenditure to deal with the budget deficit. That has meant that in year two it has had to make two years’ worth of reductions.
Alex Salmond is making all kinds of additional promises. If the noble Lord, Lord Barnett, gets his way and Scotland is funded on a needs basis, according to Professor Bell at Stirling University the Scottish block budget will be reduced by £4.5 billion. As it happens, on current yield, the entire product of Scottish income tax which can be raised on this 10p rate comes to the same amount—£4.5 billion. Therefore, if Scotland were funded on the same basis as the rest of the United Kingdom and if the gap were made up by increasing taxation, you would have to double the basic rate of income tax. That might make Alex Salmond a bit unpopular at the polls and he might lose the election, but I suspect that he will make use of these arguments and point to the inequity of the Bill. The Bill provides a means of funding on too narrow a tax base. I agree with Alex Salmond and the nationalists when they say that you cannot fund a country on that basis. If you are going to go down this road, you need to broaden the tax base available to Scotland.
In short, in the brilliant image put forward by my noble friend Lord Lang, this Bill is a Trojan horse. It creates further instability and will not be the last word. It is another step down the slippery slope. When I was Scottish Secretary, my shadow, George Robertson—now the noble Lord, Lord Robertson of Port Ellen—issued the immortal judgment that devolution would kill nationalism stone dead. I am sorry that he is not here to enjoy his triumph as we take yet another step down this road of appeasing nationalism, which in my view will simply add to more and more demands for powers. On this new journey on which we are embarking, the case for additional taxation powers will be valid because of the very narrowness of the tax debate.
I am just thinking of the arguments that my noble and learned friend might use against this amendment. I guess he will say that there are important changes to the judicial system and important other changes. The ones that Mrs McTavish will notice when the Bill is enacted and when the powers are available to the Scottish Parliament are the ones that will hit people in their pockets. It is a foolish measure and one that, like devolution itself, will disadvantage Scotland in the long run. Prior to devolution, Scotland had a voice at the centre of government and was able to influence affairs as they affected Scotland. Now we have the Prime Minister and the First Minister meeting occasionally under a picture of constituencies showing how many had been won by the SNP.
We used to have a system in which the Secretary of State for Scotland was able to see the Prime Minister three or four times a week and be involved in all key committees. I do not seek to re-engage in that whole debate, but we have lost influence. We have had the advantage, in a way that the Germans do not understand with regard to Greece and other countries in the European Union, of having a system of fiscal transfers within one unitary state. This is unravelling it, and it is a great mistake. At the very least, there should be a warning on the tin and my noble and learned friend should accept my amendment. I beg to move.
My Lords, I suspect that the amendments tabled by my noble friend Lord Forsyth are a substitute for what would in the House of Commons be a debate on Third Reading of the Bill, which we do not have in this place. I have four things to say about the Bill’s passage.
First, I echo strongly what the noble and learned Lord, Lord McCluskey, said a few moments ago about the significance of the amendments that we have debated in this House against the relatively skimpy progress that the Bill made through the other place. He made a serious point, although he did so with his typical good humour. It demonstrates again the value of this House as a revising Chamber that has done very serious work on the Bill.
Secondly, I express my thanks and, as I am sure that the whole House agrees, I pay tribute to the Advocate-General, my noble and learned friend Lord Wallace of Tankerness, for the skilful, attentive and good-humoured way in which he has piloted this Bill through all its stages. He has been a model of how a Minister should react and I am very grateful to him. My mind goes back to the days when I stopped him being the prospective Liberal candidate for Dumfries to make way for an SDP candidate. He was slightly cross at the time but I think it was the best thing I ever did for him as he has done extremely well since then. I thank him warmly for his role as Minister on this Bill.
Thirdly, picking up a point made by my noble friend Lord Forsyth, it is interesting that the SNP Government have given their consent to the passage of the Bill despite earlier having called it everything from a poisoned pill to a dog’s breakfast. In other words, they have suddenly realised, late in the day perhaps, that this UK Government—London Government as they like to say—are doing something constructive and useful for the people of Scotland, and not just in the area of criminal law, to which the noble and learned Lord, Lord McCluskey, referred, but in the area of taxation. Although I pay tribute to my noble friend Lord Forsyth for the assiduous way in which he has tabled a whole series of amendments and enlivened our debates, I fundamentally disagree with him in his pessimistic view of the role of the Bill, shortly to be Act. First, it sets the requirements of the Scottish Parliament not only to spend money on services for the people of Scotland but to take some responsibility for raising that money. We should support that objective.
My noble friend may have a legitimate point in suggesting that the tax base is too narrow but, as I have said on previous occasions, I am quite sure that this Bill is not the end of the story. There will probably have to be other devolution measures on taxation matters in the future, but this is a substantial first step. This issue will not just affect the Parliament. In my view, it should affect the whole level of political debate in Scotland because there will not only be an obligation on each of the political parties to spell out to the electorate what they would like to do in education, health, employment and all the other things for which they are responsible, but they will also have to say how they will raise the money and how much they will ask the citizens to pay.
Far from being pessimistic about this, as my noble friend is, I am optimistic about it. I believe that it will enliven and should certainly deepen political discourse. For all those reasons I welcome the Bill and I look forward to it being an Act of Parliament very shortly.
I strongly endorse and echo what the noble Lord, Lord Steel of Aikwood, said in tribute to the Minister. His patience has been exemplary; he has had to exercise it a lot. I promise that I shall not test him very much this time.
I agree with the noble Lord, Lord Forsyth of Drumlean, about the Title of the Bill but for slightly different reasons. It is a bit of a ragbag Bill, as it includes Antarctica, speed limits and so on, and I think the miscellaneous provisions bit of his Title would have been quite appropriate. However, I do not press the point. I am more concerned that under the Title “Scotland Bill” one would expect to see the great issues dealt with. My feeling is that we have missed an opportunity to deal with the great issues. It seems to me that we have not, as the noble Lord, Lord Forsyth, said, addressed the real accountability deficit issue, particularly because the tax changes permitted in the Bill are so small, and although we have debated its merits and demerits, we have not addressed the problem of the Barnett formula at all. I have also discovered—I am sure everyone else knew this before—the extraordinary animal, the no detriment principle, which seems to reduce greatly the accountability of the Scottish Parliament.
If we are to have, as we probably will have, an option in the referendum for further devolution, it seems a great pity that we have not defined its parameters and its ground rules in the Bill, with a sunrise clause. I would have liked it to do that because I am Scottish and Scots like to know what things mean. I am sure that between now and the referendum date, there will be definitions of further devolution. I am sure that the position taken by the Prime Minister in his speech in Scotland—that there will be no definitions until after the Scots have said no to independence, and that further devolution will be on offer but will not be defined until later—is unsustainable. I hope it is unsustainable as I think it is a very dangerous position. It would lack credibility in Scotland—and does lack credibility. People do not know whether he means it.
There is a need to define what we mean by it. If the option means complete fiscal autonomy—and the Scottish consultation document suggests that this is in the mind of the Scottish Government—surely the ground rules need to be spelt out in advance. If we see Scotland as the Athens of the north—and of course it is—we need to take great care to ensure that we are not building in a relationship similar to that today between the other Athens and Berlin, Frankfurt and Brussels. How would we reconcile fiscal autonomy for Scotland with the continuing monetary integration of the United Kingdom? What changes would we need to make to arrangements in London? Would the composition of the Monetary Policy Committee of the Bank of England need to be changed to ensure that there was a voice on it responsible for representing the distinct interests of the Scottish economy?
Conversely, would there not need to be some ground rules constraining fiscal autonomy in Scotland that were similar to the failed stability and growth pact in the European Union that did not save the real Athens? These issues need examination and I am sorry that we have not done that during these debates. However, perhaps we are not the right people to do it. The debates in this House have been of a very high standard, but on the whole the participants have been advocates, principally of the status quo. Unfortunately we have not had among our number a single representative of the advocates for independence.
What we need for our own education and the education of the Scots before a referendum is not advocacy but analysis. Therefore, although I agree with most of the arguments made today by the noble Lord, Lord Steel of Aikwood, I do not think that the kind of continuing debate that he hopes will take place—he claimed that we had not heard the end of the story—will necessarily be very satisfactory. As he said, it will be conducted by the political parties, and there is a fair degree of cynicism out there about the parties. And to an extent it is justifiable, since the majority party up there favours not further devolution but independence, and down here there are strong voices, such as that of the noble Lord, Lord Forsyth, expressing concern about this degree of devolution, let alone any more.
Some of my arguments could also be applied to the independence option. How would fiscal autonomy work? What is the likely depletion rate from the North Sea? It is a function of the likely world oil and gas price. The political parties are not best placed to produce credible estimates of the range of possible prices of North Sea oil and gas five or 10 years ahead. What is the likely assumption about the price of electricity? If the Scots go ahead with their renewables programme, and if the coal-fired power stations are closed down after the nuclear ones, Scotland will presumably—I do not know; I am not an advocate—become an importer of electricity. What would be the price of that electricity?
In short, what are the economics of autonomy? What would the tax take have to be to make the books balance, assuming no Barnett formula? I do not think that the electorate will take an answer that comes from politicians. Quot homines tot sententiae. Politicians will not produce a single answer. I hope that the Minister will reflect on whether we do not need, as a complement and a supplement to the very useful debates that he has conducted so well on this Bill, to encourage an agreement between London and Edinburgh on the establishment of some kind of independent commission to look at fiscal autonomy, in both possible scenarios.
My Lords, the noble Lords, Lord Kerr and Lord Forsyth, raised a series of questions about the significance of the Bill that are perhaps taking us further than the Government intended this afternoon. I want to add one comment to what has been said. If the discussions of the consequences of this Bill, let alone of a referendum that includes a so-called devo-max question, are to be spread to other political parties and other political views, they should also be spread to the people of the rest of the United Kingdom because this Bill makes the West Lothian question more pointed and full fiscal autonomy would certainly make the West Lothian question more pointed. It is pointing towards the federalisation of Great Britain, which is not a question for the Scots alone. It is a question for the whole of the UK.
My Lords, I agree entirely with what the noble Lord has just said. First, I have two past interests: as an MSP for eight years and as a member of the Calman commission. I note with pleasure that all five Members of this House who served on the Calman commission are in their place. We had the support of a significant number of very highly qualified academics who gave us some expert advice during the time we sat, which was well over a year, when a great deal of evidence was taken. I particularly remember evidence being taken in the constituency of the noble Lord, Lord Forsyth, as well as in many other parts of Scotland. What was very significant was that a decisive majority welcomed the Scottish Parliament and believed that it had been a success.
I think the Minister should be strongly congratulated on his handling of the Bill, which has not been altogether simple or straightforward, but I think he has done it with tremendous skill. One point I would make is that it has been overshadowed, to some extent undeservedly, by endless arguments about the processes needed for the Scottish Government’s planned referendum. It is very welcome that the noble Lord, Lord Forsyth, has put down this amendment giving us this opportunity for this debate because the Bill produces the largest transfer of fiscal power from Westminster since the union.
The noble Lord, Lord Kerr of Kinlochard, said that there is an accountability deficit. I submit that the Calman commission and this Bill in particular address that deficit and make it very clear that—to sum it up in one sentence—if there is a reduction in the block grant from Westminster, there should be the opportunity for substitution. More than that, the elephant in the room throughout our discussions on the Calman commission was that there is a possibility that if a needs-based grant replaces the Barnett formula, the provision for Scotland might be greatly reduced, and if that were the case, it would be very necessary for the Scottish Parliament to have the flexibility to find the best level between essential services and taxation. I have to say that if a Government cut essential services far too far or raise taxes far too far, they will be voted out of office. The sanction is, of course, electoral and of the people. Certainly for me—and, I think, all members of the Calman commission—the two principles that weighed were accountability and equity. I mention equity because if in future there are proposals that go further than the Calman commission, it is extremely important that the representatives of all parts of the United Kingdom be consulted and thoroughly involved because it would have implications for their countries as well.
The Scotland Bill, so titled, is important because its very existence demonstrates that the present devolution settlement is not set in stone and can be adjusted to meet Scottish aspirations without destroying the United Kingdom. I note the sentiments expressed by the Prime Minister in his speech in support of the union, which he made in Edinburgh earlier this year. In that address he made a point of saying that the changes made by the Scotland Bill need not necessarily be,
“the end of the road”.
He went on to say:
“When the referendum on independence is over, I am open to looking at how the devolved settlement can be improved further. And, yes, that does mean considering what further powers could be devolved. But that must be a question for after the referendum, when Scotland has made its choice about the fundamental question of independence”.
My noble friend is putting into my mouth words that are not there. I am not making any such suggestion, but if he listens to what I have to say, he will see the logic of my argument. As the Prime Minister said, let us hold the referendum, preferably on a less dilatory timetable than the Scottish Government are proposing, with a single question—to that extent, I disagree with the noble Lord, Lord Kerr of Kinlochard—asking whether or not the Scots wish to leave the United Kingdom. Time should also be given for the implementation of the new powers and to see how they work. That is the answer to my noble friend Lord Forsyth.
Any moves beyond the terms of this Scotland Bill would be bound to affect the constitutional future of England, Wales and Northern Ireland, and MPs and other representatives in other professions would have to be very fully involved in any future discussions. I thought we got the balance right when we were on the Calman commission. We took an enormous amount of evidence; we considered it very thoroughly, and at the end of it all the commissioners came to a unanimous conclusion. I certainly stand by what was expressed by that commission, and I believe that all the other commissioners do as well, including the other four who are with us this afternoon.
A great many will advocate the clear merits of Scotland remaining as part of the long-standing, extremely successful partnership that is the United Kingdom. I do not believe that a unionist stance is in any way incompatible with giving support to the increased powers granted to the Scottish Parliament in the legislation that we have been debating.
I welcome the fact that the Scottish Parliament has agreed that the UK Parliament should consider the proposals in this Bill and, by passing that Motion unanimously, has given it its backing. I checked this morning, by ringing the Scottish Parliament Information Centre, SPICe, whether this had gone through unanimously, and it did; there was no vote. I say to my noble friend Lord Forsyth that that includes the Conservative group of 15 MSPs, and I welcome that.
We have before us a very significant and substantial reordering of devolution. It should be enacted in timely fashion and, in my humble opinion, the title should be kept in place.
My Lords, it was not my intention to speak on this. Briefly, it was with great pleasure that I listened to the noble Lord, Lord Forsyth, use the term “poll tax” instead of “community charge”. He actually proved the point that the Minister—who has done an excellent job, I have to say—made in the very first debate this afternoon, that if something becomes the common parlance, it should be used as the common parlance.
The real point is that there has yet again been confusion—the noble Lord, Lord Kerr of Kinlochard, did it—between devolution, the democratic process of devolution and independence. They are not the same thing. That is why, although I support what this Bill is doing, I am not sure that this is the right time to do it. I am not at all sure that we should not, first, have had the referendum on independence in order for Scottish people to make up their minds as to whether they want to be an independent country totally separate from the rest of the United Kingdom or they want further devolution. We should let them decide on that first. The second question is just a confusion. There should be one question—independence or nothing else. For me, devolution was always about democracy and not about the separation of the Scottish state.
I have to say to the noble Lord, Lord Forsyth, who made great play of the fact that he sat in the Cabinet and could talk to the Prime Minister when he was Secretary of State, that that is fine. Perhaps he could but he did not represent the people of Scotland when he did so because he did not have the majority of Members of Parliament in Scotland when he was putting Scottish legislation through.
I am most grateful to the noble Lord for pointing out my role as opposition while in government. Is it not precisely because his party used that kind of language—of people not having a mandate in one part of the United Kingdom—that the Labour Party now finds itself wiped out by the nationalists in Scotland? It was a very foolish thing to do and by doing so as unionists the Labour Party undermined its own position.
That may or may not be the case. It will be shown in both the independence referendum and in future elections after that. The fact is that separate Scottish legislation was passed through this Parliament without the mandate of the people in Scotland for that legislation. If it had been part of the same United Kingdom, there may have been a case for it but it was not. It was for separate Scottish legislation passed through Parliament by a party and a Government with no mandate in Scotland to push that legislation through. There is no better example than the poll tax, which the noble Lord himself first raised.
I support what this Bill is doing but I wish that we had waited until we had had the referendum on independence so that that could be put out of the way before we move on to see what further action can be taken on devolution.
My Lords, it had not been my intention to speak in this debate but the nature of our discussion since the noble Lord, Lord Forsyth, introduced his amendment has spurred me to my feet. A lot of the debate we are having today is the debate we have been having in Scotland for the past 50 years. The argument for devolution began at the time of the Act of Union. Had the Act of Union been framed in a different way, there would have been no need for devolution. The noble Lord was Secretary of State for Scotland some years before I held that post. When he was Secretary of State for Scotland he oversaw the equivalent of 13 different government departments because of the nature of the legislative settlement post the Act of Union and the growth of Scottish legislation; namely, everything from the nature of the Scottish church to the nature of the Scottish legal system to the nature of Scottish education, and then some.
I am a committed devolutionist. I came to it rather later than some of my colleagues, such as my noble friend Lord Robertson of Port Ellen. I came through the trade union movement and looking at some of the issues that affected trade unionists in Scotland and the history of the very distinctive Scottish Trades Union Congress, which has very different origins from the Trades Union Congress. It is rooted in communities rather than in organisations and its history grew from that. Out of that I became committed to devolution.
I have to say that I have been extremely sceptical about this legislation. I do not disparage the work of the Calman commission. I pay tribute to it. In another time and place, it would have been appropriate to have this legislation. But I have to say that the people of Scotland are not remotely interested in it because there is a bigger debate. There is a more significant debate that we need to enter into. Some of it has been touched on today and it is unfortunate that, in this kind of forum, very little of it will be disseminated to the people of Scotland.
Yesterday in this Chamber we saw the start of a debate about the future of this House which has a devolution relevance. If we were in a situation where we were looking, not in a haphazard way, at the development of the British constitution, we would be looking at the role that this Chamber can have as part of devolution, not only for Scotland, Wales, Northern Ireland and London but how the regions of England fit into it as well. However, we have not gone about our constitutional change in a coherent way: we have done it in a piecemeal way and now we are running to catch up.
I have been a parliamentarian for a number of years—although not as long as many people in this House—and my major regret about the Bill is that there is a real sense of, “Well, we have started so we have got to finish”. When this Bill began its process the debate in Scotland was different in nature from the debate that we are having today. I would do nothing to prevent this Bill from reaching the statute book—whom am I, an unelected representative, to do so?—but I regret that, in looking at the issues involved, we did not properly address matters such as the Barnett formula. As the noble Lord, Lord Kerr of Kinlochard, said when he was talking about the consequences of fiscal autonomy, we keep parking the Barnett formula.
I hate to admit it but I was around when the Barnett formula was drawn up, together with the noble Lord, Lord Donoughue, and the redoubtable Joe Haines, in the late 1970s. No one envisaged that all these years later the Barnett formula would still be the hook that gets us out of trouble. We have to be consistent and coherent, as the noble Lord, Lord Barnett, has been, when looking at the Barnett formula. It is unfortunate that, while we have included within this legislation fiscal, taxation and other changes, we have not taken the opportunity to look properly at the Barnett formula.
I join with others in commending the work of the noble and learned Lord, Lord Wallace of Tankerness. Since I came into this Chamber I have discovered that every time there is an intractable problem it tends to be the noble and learned Lord who is put up to the Dispatch Box to deal with it. It is a measure of his skill and good humour that we have got to where we are today.
It is inevitable that we will be revisiting these issues because the world in which we are coming to our conclusions today is so different from the world in which we started this process with the Calman commission and in the other place. We have learnt a lot from this debate but, like my noble friend Lord Maxton, I believe it should perhaps have been done in a different time and in a different way.
My Lords, those who have been engaging in our deliberations on the Bill and following its process cannot have failed to notice that not only have we been able to consider it today—a Tuesday—but that we have not had to wait until the fag end of the day’s business to do so. Of course the deep irony is that this is the day on which we least needed to get on early to consider the matters before us. However, we are moving through the Bill at a pace, and as we are nearing the end of our consideration of it I think it appropriate for me to make a few remarks.
I do not think that anyone could disagree that the Bill has been subject to rigorous scrutiny during its passage through this House, and I am confident that it is a better Bill because of that scrutiny. At least two Members of the House—my noble friend Lord Foulkes of Cumnock and the noble Lord, Lord Wallace of Drumlean—have made significant contributions.
I am sorry—it is Lord Forsyth of Drumlean. On this occasion I cannot even give the excuse that I am tired. In Committee and at Report these two noble Lords paid assiduous attention to almost every detail of the Bill and ensured that we all had the opportunity to scrutinise it rigorously.
I also want to thank the noble and learned Lord the Minister. I extend my thanks beyond him to the Bill team and to officials in the Treasury who have shown me the greatest courtesy. In a sense they have supported me by giving me access to substantial amounts of information on the Bill. Throughout this process they have engaged with our Benches and with my noble and learned friends Lord Davidson and Lord Boyd of Duncansby, and my noble friend Lord Eatwell, who have shared the responsibility for our Front-Bench work on the Bill. They have engaged with us very positively and I am exceptionally grateful to them for that: it has made my job much easier. I think that we have improved the Bill particularly on the issue of references to the Supreme Court—a process in which my noble and learned friend Lord Boyd of Duncansby has been intimately engaged. The process has been wholly satisfactory and I think that we can all be satisfied with the final result.
I feel duty bound to inform noble Lords of the conversations with the Government that have taken place since Report on the issue of the conditions for using the extraordinary power to add new devolved taxes that is now contained in, I think, Clause 23. There was significant consensus across the House that it would be valuable to place in the Bill the conditions for using this extraordinary power—first, to safeguard its use by the Executive, and, secondly, as a way of obtaining the buy-in of the Scottish Parliament on these criteria. As I was substantially responsible for encouraging that consensus across the House, I have a responsibility for, in a sense, disappointing the House at this stage in the debate.
As I have also been very careful to say at all stages of the Bill, we have to be mindful of the political realities that we currently face. We have been treated to some interpretation of those political realities in our rather extended and diverse debate on the Bill, but one has become used to that in considering some of its aspects. The political realities are such that the Government’s commitments at Report were unsatisfactory, as I said in the debate. In essence, a year after enactment they are to bring forward a report on implementation of the financial provisions which will make specific reference to the list of conditions for using this power. That is the issue that exercised my and other noble Lords’ minds. Significantly, we have learnt since Report stage that the report will also be submitted to the Scottish Parliament, which will have an opportunity to thoroughly debate and agree to the provisions. That at least provides the opportunity for the engagement of the Scottish Parliament that I sought. However, it is not guaranteed to happen and I am not overplaying it.
Those additional facts, combined with the clear priority of the LCM—the legislative consent Motion, which was to be debated before we came to Third Reading—were, on balance, enough for it to be considered unwise to bring forward further amendments on this issue. With some reluctance I accepted that conclusion, despite being aware that I was disappointing the expectations of many noble Lords, and noble and learned Lords, in the House. I had encouraged those expectations, so to that extent I apologise. If it has in any way damaged my relationship with noble Lords or reduced their view of my worth to this House then I shall have to endeavour over the course of the coming months and years to remake that. However, that is where we are.
I turn now to the amendments of the noble Lord, Lord Forsyth of Drumlean, as somebody has to. I do so with some reluctance because I know how it encourages him to come back.
I start off by saying that I have sympathy with his analysis of the paucity of understanding of the full implications of this Bill in Scotland. I agree with him that we ought to ensure that the Bill is better understood in Scotland. I almost immediately part company with him thereafter, for two reasons—first, because renaming the Bill will do little to address that deep-seated problem for which many of those in devolution parties have to take responsibility. It is inappropriate to expect those who do not support devolution but seek independence for Scotland to trumpet the opportunities and potential benefits of a piece of legislation that reinforces devolution. Although it will probably never settle the argument of Scotland’s relationship with the rest of the United Kingdom, for some people in Scotland—and I expect this to continue throughout the rest of my life—if properly understood, it will strengthen the union.
The responsibility lies with us. It is potentially helpful, but not the answer, to simply change the Long Title of the Bill. I understand why the noble Lord, Lord Forsyth, seeks to do that, but you do not have to listen to him for very long to realise that it is a vehicle for him to articulate arguments that he has been articulating to the people of Scotland for some time in the confident knowledge that, if he lives long enough, some day he will be proved correct. The fact of the matter is, with all due respect to the noble Lord, that although we listen to him intently and I enjoy immensely his ability to make an argument, the people of Scotland stopped listening to him a long time ago. It is unfortunately true and I am sorry about it, because they would be better informed, perhaps, if on occasion they did listen to him—but they stopped listening to him a long time ago. That is part of the problem. The British tourist abroad, speaking slowly and loudly, does not work any longer with Scotland. Those of us who put ourselves forward for political office have an obligation to make our arguments in a much more sophisticated way and go with the grain of people’s expectations. Of course, we all have responsibility for generating those expectations, as indeed I did—and disappointed expectations at Report on this Bill. Those of us who believe in the union all have our DNA to some degree in the state of the Scottish scene at the moment, and we have a responsibility to deal with the issues and challenges generated from that.
This is a good Bill, and I fundamentally disagree with the noble Lord, Lord Forsyth, in that regard. It is a constitutionally significant Bill, and the new tax-raising and borrowing powers are worth in the order of £5 billion to £6 billion, marking an historical development in the financial accountability and autonomy of the Scottish Parliament. Furthermore, measures such as the devolution of drink-driving and speed limits as well as the regulation of air weapons ensures that the devolution settlement continues to respond to the needs and aspirations of the people of Scotland.
In recent months, much reference has been made to a new, notional devolution settlement, or maximum devolution, which for the most part has taken the form of a fill-in-the-blanks exercise. But ultimately politicians are kidding themselves if they think that the people of Scotland are interested in some esoteric debate about devo-max versus devo-plus versus the status quo. This Bill is the consequence of a sensible process; its origins lie in the Calman commission, and I repeat my thanks to those Members of this House and others who served on that commission. The work that they did has not been given the credit that it deserves, and it is well worth revisiting the argumentation for the recommendations that gave rise to the Bill. The Bill presents the people of Scotland with a clear and concrete vision for the future of devolution, a vision that is evidence-based, thanks to the Calman commission; has the support of Scottish business, Scottish civic society, experts and academics; and will when properly understood and implemented support the future prosperity and aspirations of Scotland within the union.
The fundamental reason why we need to deliver this Bill is that we promised it in all of our manifestos to the Scottish people, and the worst thing that we can do for the union at this stage is to fail to keep our word. That would be the most persuasive evidence that those who want to break up the union could have that we cannot be trusted to keep our word. Regardless of whether we think in retrospect that the time is not now right for this, in dealing with the people of the United Kingdom, and in particular with the people of Scotland in the current environment, the time is always right to keep our word. We have to keep our word to the people of Scotland, and then we have to move on.
We know what we have to move on to do: we have to address the issues that will be debated in Scotland. That will involve what I think will be the greatest political challenge of my political lifetime—Scotland’s future in the union, an issue which is about to come to a head. Having kept our word to the people of Scotland, we can with credibility move forward to make the arguments for why Scotland is better off staying in the union, and why it is better for the union of the United Kingdom for Scotland to continue to be part of it. As I have said before, I agree with the noble Lord, Lord Kerr of Kinlochard, that that debate needs to be informed by independent analysis and research so that nobody can say that the facts being put forward have been filtered through some sort of political process or other.
Many of us would like not to have to face that battle, but we have to do it. We in this House and from this Parliament can hold our heads high and say that we delivered what we promised to the people of Scotland in response to a process which was logical, supported by them and analysed and understood at the time—and that we can be trusted to keep our word in the future. I hope that as we pass the baton for this legislation back to the other place, those who manage the business there will allow our elected representatives sufficient time to do what they have prevented them doing until now—to debate this Bill in a way that explains to the Scottish people what its potential is. I suspect, however, that that will be another hope that will be dashed by the way that we manage business.
I am not entirely sure whether our scrutiny of this Bill proves the case for the status quo as far as your Lordships’ House is concerned. However, as a recently introduced Member of this House who has come from the other place, it has proved to me that this place certainly does a better job of debating the details of legislation. I have immensely enjoyed the quality of the debate. I may not have always been able to persuade your Lordships of the rightness of my argument, but I thank all those who took part in our debates for their contribution to them.
My Lords, I thank my noble friend Lord Forsyth of Drumlean for introducing these amendments. I will try to say something about them but, as my noble friend Lord Steel of Aikwood said, they have also provided your Lordships’ House with an opportunity to have something more akin to a House of Commons Third Reading debate, which has been very useful. I am very grateful for the comments that have been made from all parts of your Lordships’ House and wish to express my appreciation for the kind personal words that have been said.
I hope that I can do justice to a number of the comments that were made, but perhaps I may start by referring to the amendments. I understand and know where my noble friend comes from, and I would wish to join others who have paid tribute to him for his diligence in our proceedings on the Bill. He has highlighted a number of issues, and while I know that he will not always necessarily have been satisfied with the replies, he has at least prompted consideration and detailed scrutiny of the Bill, which is one of the purposes of your Lordships’ House. His amendments give him a hook to hang a number of points on. I know that he is not happy with the Bill, and I suspect that we will disagree on this just as we disagreed 14 or 15 years ago on devolution. Nevertheless, I respect the view that he has maintained over a long period.
In tabling the amendment, my noble friend sought to improve the drafting of the Bill, which is a criterion for getting an amendment accepted at Third Reading. I am sorry to say that I do not think the amendment meets that test. One learns interesting things in dealing with these Bills. The purpose of the Short Title of the Bill is that it must give sufficient indication of the content in a way that is not misleading; it cannot be argumentative or a slogan; it becomes the Short Title of the Act when passed, so it needs to be helpful to users and not unwieldy; and, above all, it must be short. With due respect, my noble friend’s amendment does not meet that test.
I accept one part of his argument. It is important that people in Scotland, as well as in other parts of the United Kingdom, recognise what the content of the Bill is because these are important and profound changes. It is up to all the political parties to ensure that the knowledge is there and that debate in the Scottish Parliament now focuses on how these powers will be used. There are important powers relating to airguns and speed limits but also with regard to taxation, as well as the fact that stamp duty on land transactions will be disapplied in Scotland in 2015. When it comes to forward planning, the Scottish Parliament cannot sit around for very long before we start to get the colour and shape of how it will use these new powers and how it can do so imaginatively in a way that has not been done across the UK as a whole. I hope that, in taking forward these powers, there will be debate about their use.
On the issue mentioned by my noble friends Lord Selkirk of Douglas and Lord Steel of Aikwood, the purpose of the legislation following on from the Calman commission was indeed to increase the accountability and responsibility of the Scottish Parliament. I think that it was in his Donald Dewar lecture that my noble friend Lord Steel reflected on just how unsustainable it would be for a Parliament to persist over a long period almost wholly dependent on a grant voted to it by another Parliament. That, and the need to increase the accountability of the Scottish Parliament, are things that those of us who sat on the Calman commission were very conscious of. We also sought to get to a balance, as my noble friend Lord Selkirk said, between accountability and risk. Within a social union, many of these risks are shared, and better shared across a union of 60 million people than 5 million.
Perhaps the most important change relates to income tax. As Calman commissioners, the evidence that we received suggested very much that income tax was the tax that most people could recognise as having the most direct personal impact on them and therefore the one most likely to deliver that accountability.
I do not accept that the changes are too small; I believe that they will lead to greater accountability. The noble Lord, Lord Kerr of Kinlochard, suggested that we should have gone much further and had a debate during the passage of the Bill on some of the wider powers that have been discussed in the media and political forums over recent weeks and months. However, as the noble Lord, Lord Browne, said in welcoming the Calman commission, it was the consequence of a considered process. If one looks back at the constitutional convention that sat in the 1990s, which led ultimately to what was in the Scotland Act 1998, and the provisions suggested by the Calman commission, which deliberated and then led to the legislation before us today, we see a process whereby political parties—sometimes not as many as we would like—have joined in and reached a consensus without reflecting their own concerns and viewpoints. We have then been able to take that consensus forward, present it to voters in an election and subsequently go forward to legislation. I do not think that that would have been at all possible with regard to some of the perhaps more far-reaching issues that the noble Lord, Lord Kerr, referred to in terms of dealing with this legislation.
I say to the noble Lord, Lord Maxton, and the noble Baroness, Lady Liddell, that I recognise there are judgment calls about whether the timing is right. However, I share the view of the noble Lord, Lord Browne of Ladyton, that the manifestos of the Conservative Party, the Liberal Democrats and the Labour Party at the last election each made a promise. We do not need to be terribly imaginative to write the script of those who wish to advance the cause of independence and say, “Look, they promised you that and Westminster has not been able to deliver it. How much more can you actually trust Westminster?” That is a script that we will not let them write. It is right and proper that we have proceeded with this Bill.
My noble friend Lord Forsyth was sceptical about whether, if at a future date the Scottish Government or Scottish Parliament espoused devolving a particular tax, Westminster would be able to stand up to them. Let us recall—
My Lords, similar arguments apply whether it is for a new tax or the devolution of corporation tax, which is not a tax that the Scottish Parliament currently has. The more general point is that the Scottish Government actually asked for devolution of excise duties and corporation tax and the United Kingdom Government did not believe that the case had been made. This Government made it clear that we would not devolve further taxes unless there was evidence presented and a case made. In these particular examples, we took the view that no case had been made. There was no evidence and therefore it was resisted.
There is a distinction between creating a completely new tax and devolving an existing tax. Corporation tax is an established tax in the Finance Bill. If Alex Salmond thinks of a completely new tax, all that is required for it to be imposed is for an Order in Council to go through both Houses of Parliament. That is a completely new and novel procedure and quite different from an argument about who will administer or levy an existing tax.
I apologise if I misrepresented what my noble friend said. However, the response is similar. Having identified criteria, whether in the Bill or not—we have had debates on that—the point I wish to make is that there are criteria there and the United Kingdom Government have shown that they are not a pushover. We set out criteria regarding devolution of existing taxes; we stood by that and I have no reason to doubt that, having set out criteria regarding the devolution of any future tax, we would have to be satisfied before bringing forward to this and the other House an order to devolve further taxes.
Could I pick up the point of the noble Lord, Lord Kerr of Kinlochard, and the noble Baroness, Lady Liddell? She said that a different debate was going on. The two debates are not mutually exclusive. The difference is that while there has been a lot of talk by the Scottish Government about change, this Bill actually delivers change. However, many of us want to get on to the wider debate. Inevitably there will have to be a debate on process—the shorter the period devoted to it the better—but there are important issues. The noble Lord, Lord Kerr of Kinlochard, clearly set out at least one of them: fiscal autonomy and its relationship to monetary policy. The conclusion of the Calman commission was that there was not much difference between fiscal autonomy and full independence. Clearly these are questions that will be debated in a much wider forum in the lead-up to a referendum.
There is an important issue about Europe and an independent Scotland’s relationship with the European Union. I respectfully suggest that a person with the knowledge and expertise of the noble Lord, Lord Kerr, free from any party-political baggage, could give a view on that which people would listen to and would be an important contribution to a debate. I hear what is said about an independent commission. It might be a triumph of hope over experience, but I hope that there will be opportunities for independent think tanks and people with expertise and renown in their specific fields to come forward and express their views on the issues that will inevitably emerge in any referendum debate.
Having two questions was suggested by the noble Lord, Lord Kerr. I do not believe that that is sustainable. There is a clear difference between a debate on independence and a debate on the democratic processes for further devolution, as the noble Baroness, Lady Liddell, said. They are two different things and to put the two on the one ballot paper would be mistaken, not least because of the point made by the noble Lord, Lord Sutherland, and my noble friend Lord Selkirk. Whether one aspires ultimately to a federal United Kingdom or not, further devolution involves other parts of the United Kingdom. It will not be possible in 18 months to get the kind of consensus that would give a buy-in from other parts of the United Kingdom as we were able to achieve through the work of the convention and manifestos in 1997, which led to the original Scotland Act and, for that matter, the Wales Act. We have established a process to take forward a package of proposals that has already been put to the people in parties’ respective manifestos and has now been legislated for by this Parliament. That is why the Government believe that we should go for a single clear question about whether Scotland should remain part of the United Kingdom. Our view is very clear that it should.
My point was not about process—I do not want to get into questions of process—but the distinction is one without a difference. If Scotland had full independence on the prospectus in the Scottish Government’s consultation paper, it would still be using the United Kingdom currency. In my judgment, when the Scots applied for membership, the European Union would not insist that they adopt the euro forthwith, but it would probably ask for some sort of undefined commitment at a future date. Therefore, there would still be the problem of fiscal autonomy alongside continuing monetary integration. That problem would exist in a scenario of either devo-max or independence, so it needs to be addressed.
I do not dispute that. It needs to be addressed. It is one of the key issues that those who advocate ultimate fiscal autonomy or independence must address. I do not think that the noble Lord is suggesting that it would be suitable for inclusion in the Bill, but it is an important issue that has to be properly and fully addressed in the debate that we will undoubtedly have on the independence referendum.
For the sake of getting things on the record, I am very heartened to hear the Minister say that he is keen on having one question alone on the ballot paper. For the record, is that the policy of the Government or will there be a situation in which the Prime Minister may say something different?
My Lords, it is fair to say that in the consultation paper that we launched on 10 January it was made clear that a single question was the preferred position of the United Kingdom Government. I am happy to say that the responses that we have received to that consultation give great support to that position.
In conclusion, I again acknowledge the benefit to the Bill of consideration and thorough scrutiny in your Lordships’ House, and not just in those areas where amendments have been made as a result of our debates. Through our debates we have explored many of the issues that we will continue to face as we move to the next important phase of implementing legislation. I echo the thanks not only to those who have taken part in the debates but to those who have supported me and my noble friend Lord Sassoon in them. While there have clearly and importantly been divisions—it would be very boring and impossible to achieve total consensus—it is not usual for a Bill to be supported by all three United Kingdom parties. However, there has been a note of consensus, which has been welcome. I also welcome the scrutiny. Whether noble Lords were supporters of devolution back in 1998 or support every clause here, I hope we recognise that we are stronger within a United Kingdom in which we devolve powers to the appropriate level and work together to pool resources and risks across the country for the benefit of all. That is what the Bill seeks to advance. It is part of developing and continuing support to maintain the United Kingdom, of which all noble Lords and I are very proud. I ask my noble friend to withdraw his amendment.
My Lords, I am devastated by that response. I am very disappointed in my noble and learned friend. I actually understood the criteria for the Short Title of a Bill, but I remember having a great struggle with the Scottish Office, which wanted to call a Bill the “Criminal Justice (No. 3)(Scotland) Bill” and I wanted to call it the “Crime and Punishment (Scotland) Bill”. I think that in the end I won that particular argument, but the legislation was promptly repealed by the Scottish Parliament, only to be reintroduced later as a populist measure in the same terms.
I do not accept that the Short Title I propose is too long. That was the only argument against the amendment that my noble and learned friend advanced in his interesting and helpful speech. One of the criteria is that the Short Title should not indicate advocacy or a point of view. I resisted that, although I was tempted. My draft suggested a Bill “to ensure that Scotland becomes the highest taxed part of the United Kingdom”, but the Public Bill Office felt that that did not meet the criteria. However, it would at least have warned people about what was coming down the legislative track.
As my noble and learned friend guessed, I tabled the amendment because I suspected that under our rules we do not normally make speeches when we are considering a Motion that a Bill do now pass. I suspected that people would want to get a few things off their chest. I shall resist the temptation to respond to all the points that were made, but I am also devastated by the remarks of the noble Lord, Lord Browne, who tells me that the people of Scotland stopped listening to me some time ago. I should be very grateful if he could tell me afterwards when it was that they were listening to me.
I have to say to my noble friend Lord Selkirk of Douglas, who said that I should note that the Scottish Parliament, including the Conservatives, had unanimously approved the Bill, he should note that the Scottish Parliament’s committee came forward with 45 different amendments to the Bill, which would have amounted pretty well to independence, and which the committee said it would insist upon. What my noble friend should note is that the Scottish Parliament seems to change its mind very radically very quickly. When people change their mind very radically very quickly on important constitutional issues, alarm bells should start ringing and people should start thinking about what is going on here. I have to say to the noble Lord, Lord Browne, who gave a romantic picture of the genesis of the—
Is my noble friend aware that in the Scottish Parliament there has been a great debate within the SNP as to whether the Bill is a block or a wedge? The SNP decided to agree to the legislative consent Motion. Is that not very much a step in the right direction?
Only if you believe everything they say in the Scottish Parliament. It is perfectly clear what has happened here. One of the extraordinary things about this whole issue of devolution is that for a long time one of my allies in opposition to devolution was the First Minister, Alex Salmond. He refused to join the constitutional convention, and when he went back to Scotland to be a—I am sorry, I nearly said something that I would have regretted—to take a leading role in the SNP in the Scottish Parliament, having stood on a platform in 1998 with Donald Dewar to campaign for the Scottish Parliament, he denounced devolution as a complete disaster. Now he goes around presenting himself as the champion of those people who want devo-max. When you look around, there does not seem to be anybody who wants devo-max, or who can at least explain what it is.
I have to say to my noble friend that the nationalists have been completely opportunistic about devolution. In the beginning, they thought, like the noble Lord, Lord Robertson, that it would kill nationalism stone dead. When they realised what my noble friend Lord Lang and others, including our previous Prime Minister, Sir John Major, were warning—that it would be a slippery slope that would lead to their objectives—they changed their position in order to get it. Then they flip-flopped. At each point where further concessions have been made, they have put them in their pocket, which is why they voted unanimously, and moved the agenda on. What the noble Baroness, Lady Liddell, said, is absolutely right: the Bill is completely out of time. It is as relevant as the Daleks to youngsters nowadays—although I believe they are making a comeback. I have no doubt that devolution in another Bill will be coming back in due course.
The noble Lord, Lord Browne, says that this has all been part of some great process. I was devastated by the remarks of the noble Lord, Lord Maxton. The fact is that this Bill’s genesis was a deal put together by the unionist parties after, very bravely, Wendy Alexander, who was then the leader of the Labour Party in the Scottish Parliament said, “We ought to have a referendum on independence and Alex Salmond needs to put his case to the Scottish people”. She was right then, but the rug was pulled out from under her by Gordon Brown as Prime Minister because he had an attack of the jitters that the referendum might go the wrong way. As a result, the Labour Party was left with no policy, so it said, “We’ll set up a commission”—does this sound familiar?—“because we are not sure what we’re going to do next”. It set up a commission and, very foolishly, the Conservative Party and other parties joined in a commission to rescue it.
That is the genesis of the Calman commission. It was to come up with something that would stop Alex Salmond winning the subsequent election, which everybody accepted—did they not?—was impossible because the rules of election to the Scottish Parliament had been devised by the very clever Donald Dewar and other clever people to ensure that no party would ever be able to get an overall majority. Just like the notion that devolution would kill nationalism stone dead, that turned out to be another myth. The result is that we are now faced with a nationalist majority committed to an independence referendum. The noble Baroness, Lady Liddell, is absolutely right: that is the issue now. The Bill has been left stranded as an orphan that is not even discussed in the Scottish media.
Although the noble Lord, Lord Kerr, and I disagree on the objectives here, he is absolutely right when he criticises the fact that the Prime Minister went up to Scotland and spelt out in a brilliant speech the case for the union but then went on to say, “Of course, after you have voted against independence, we will discuss more devolution”, without saying what that would be. That was a huge error because of course, once again, Alex Salmond picked that up, put it in his pocket and now, as far as he is concerned, the debate is about what extra devolution we are going to get. At some point, those of us who are unionists have to stop sliding down the slippery slope, define what the issues are and give the people of Scotland an opportunity to determine them. No doubt that will happen in due course.
I just wanted to say—
For a man who made a whole speech on my amendment without even mentioning it, I think the noble Lord is skating on thin ice—not for the first time, I may add. My speech in support of my amendment was in perfect order, but I can see that I am beginning to irritate the noble Lord, which is the last thing I want to do.
I say one thing in tribute to my noble and learned friend Lord Wallace of Tankerness, who is the Kate Adie of the House of Lords, and my noble friend Lord Sassoon, who is, sadly, not here—I thought he enjoyed our debates on the Scotland Bill. I guess that I have probably not made their life particularly easy. I think that the whole point of this place is that it challenges legislation. That is increasingly important. The Bill illustrates that. As the noble Lord, Lord Browne, said, this Bill sailed through the House of Commons without any proper discussion whatever because it was guillotined. In the manifesto of the Conservative bit of the Government—I know that we have put a lot of emphasis on our manifesto promises—we promised that would end the automatic guillotining of Bills in the other place. We have not done so, as exemplified by this Bill.
I should also like to say how much I appreciate the work of officials in the Treasury and the Scottish Office. I do not think that they have had a particularly easy time but, having produced a Bill such as this, I do not think that they deserved a particularly easy time. This House has shown its worth in respect of this Bill.
At the end of all those hours of work, nothing has changed other than the wretched speed limits. So what have we achieved? I hope that in considering the implementation of the Bill, not least on the very unusual tax-raising powers, my noble and learned friend will at least think about how to avoid some of the pitfalls, which I believe were seen on all sides of the House. I have very great pleasure in begging leave to withdraw my amendment.
Amendment 10 withdrawn.
In the Title
Amendment 11 not moved.
Bill passed and returned to the Commons with amendments.
Protection of Freedoms Bill
Commons Reason and Amendments
That this House do not insist on its Amendments 16, 17 and 18, to which the Commons have disagreed for their Reason 18A.
18A Because the Commons consider that the imposition of general restrictions of this nature on the exercise of powers of entry could undermine actions to protect public safety.
My Lords, the House will recall that Amendments 16 to 18 provide that powers of entry may be exercised only either with the agreement of the occupier of the premises in question or on the authority of a warrant unless the authority using the power,
“can demonstrate that the aim of the use of the power would be frustrated if a warrant or agreement were sought”.
This restriction would be disapplied where the power of entry was exercised by a trading standards officer, a constable or a member of the Security Service, or in pursuance of the protection of a child or a vulnerable adult.
As I indicated on Report, we do not disagree with the sentiment behind these amendments. Indeed, we share their objective of seeking to roll back intrusive state powers and ensure that, where such powers are needed, they are subject to appropriate safeguards. However, although the amendments are well intentioned, we remain firmly of the view that they could hinder effective enforcement and, in so doing, undermine action to protect public safety. This view was shared by the House of Commons, which, following a reasonable debate, disagreed with your Lordships’ amendments without a Division. I note that during that debate in the Commons David Hanson said from the opposition Front Bench:
“My colleagues in another place supported the amendments, so that we could have this debate today … The Opposition will not support the amendments because we do not feel they are valuable”.—[Official Report, Commons, 19/3/12; cols. 531-32.]
As I have previously indicated, it is not what the amendments seek to achieve but the blanket approach that they adopt that creates the problem. They start off with a catch-all requirement that in all cases powers of entry may be exercised only with the consent of the occupier or on the authority of a warrant. They then go on to provide blanket exceptions to this rule.
The result is that the exemptions are either too narrow, in that they fail to capture important powers of entry that help to bring offenders to justice or save life and limb, or they are too broad. In particular, we are not persuaded that trading standards officers should in all circumstances, regardless of their motives for entry, be able to enter any premises, including people’s homes, without having either secured the consent of the occupier or obtained a warrant.
My noble friend has attempted, in part, to address the concerns that I set out on Report by seeking to add to the list of exemptions, which now includes an officer of the Serious Organised Crime Agency and by conferring on the Secretary of State a power to add further exemptions by order. In some respects we are offered an amendment in lieu that adds little to the existing provisions in Clause 40. The clause already contains an order-making power to enable additional safeguards, such as the requirement for a warrant or consent, to be added to the exercise of particular powers of entry. We do not need another delegated power to achieve a similar outcome.
In conceding that further exemptions are needed, my noble friend appears to accept that a case-by-case assessment of each power of entry is needed. That is what we are committed to doing. In conducting the review, the rebuttable presumption will be that for any powers of entry in respect of people’s homes, these should indeed be exercised only with consent or on the authority of a warrant. Where exceptions are fully justified, they will be applied on a case-by-case basis and not across the board for particular categories of state official. The review of all powers of entry will be completed, as we have made clear, within two years, and we will report to Parliament on progress at six-monthly intervals, as my honourable friend the Parliamentary Secretary made clear in another place.
The review of powers of entry will enable us to deal with the current stock of powers—the 1,300 or so powers that people complain about. Similarly, the gateway that has been established by the Home Office limits the creation of further new powers and is already making significant progress. For instance, greater safeguards have been added to all powers considered to date, including in respect of domestic dwellings, a requirement that entry is obtained either with the consent of the occupier or on the authority of a warrant, and a number of powers of entry have also already been repealed. I hope that that reassures the House that this Government are serious about dealing with the proliferation of powers of entry that we have seen over recent years and ensuring that they are subject to appropriate safeguards. When taken together, the measures that we have brought forward in this Bill and in the new gateway process will strengthen the rights and privacy of homeowners and businesses, provide greater legal certainty and ensure that legitimate law enforcement is not impeded in its duty to protect the public.
In outlining our approach, I have also set out why we cannot, in every case, demand that entry is effected only with the consent of the occupier or on the authority of a warrant and why providing a power to add exemptions simply underlines why a blanket approach will not work. I remind the House again that the Commons disagreed to these amendments after considerable debate without a vote and without seeking to offer any of its own amendments in lieu. Given that, it is time to bring this debate to a close and get on with implementing the provisions of the Bill. I commend Motion A to the House and invite my noble friend not to press his Motion A1.
Motion A1 (as an amendment to Motion A)
16B: Page 33, line 33, at end insert—
“(3) Further safeguards shall be that—
(a) unless explicitly provided for in the statute providing for the power of entry, all powers of entry shall be exercised by agreement with the premises occupier or by warrant; and
(b) that, notwithstanding the statute providing for the power of entry, a power of entry may only be used without warrant, or without agreement with the occupier of the premises to be entered—
(i) in cases where the authority using the power can demonstrate that the aim of the use of the power would be frustrated if a warrant was sought; or
(ii) by persons specified in regulations made by the Secretary of State when acting under any legislation which permits such a person to exercise such a power.
(4) The persons specified in regulations made under subsection (3)(b) may include, but need not be limited to, any one or more of the following—
(a) a constable;
(b) a member of the Security Service;
(c) an officer of the Serious Organised Crime Agency;
(d) a Trading Standards Officer; and
(e) any person acting in pursuance of the protection of a child or a vulnerable adult.
(5) Regulations made under subsection (3)(b)(ii) shall be subject to approval by resolution of both Houses of Parliament.”
My Lords, when the Prime Minister exhorted his Ministers yesterday to raise their game, I suddenly realised that that is exactly what I am trying to do today. That is why I am bringing back this amendment, now redrafted, which noble Lords on all sides supported in February and which found favour with the House by a majority.
When I was very young I worked with Ernest Marples, who in his day was one of the political celebrities of the Conservative Party because he had such a talent for getting things done. It was he who, under Harold Macmillan as Housing Minister, fulfilled the Tory pledge to build 300,000 homes, a pledge which Aneurin Bevan, another political star with an outstanding talent for oratory and whom we would salute every day as the architect of the National Health Service, had denounced as a cruel deception and an election trick. What was Marples’ secret? He had his own saying that it is the method paragraph that counts. That was how he built the houses.
The election pledge that this Bill seeks to address is to cut back on the intrusive powers of entry into homes. The Government’s method paragraph is to set up a two-year study in the Home Office to review each of the 1,300 powers of entry and to decide what, if anything, should be done about each of them. One of the things that Karl Marx got right was that people will always do what they see to be in their interest. That is invariably right; that is how they are motivated. I do not want to cast aspersions, but bureaucrats seek power as their currency, and of course they want to use it for the public good. The wider the powers the more they can achieve. That is the philosophy. They are also unlikely to give up voluntarily their totally untrammelled 1,300 powers of entry, which are enshrined in statute, and until very recently that is why there has been a growing fear of such powers.
The Minister has told us how the Home Office leads in the creation and the removal of such powers. It has a gateway through which all such powers must pass. A week or so ago, my noble friend gave me a Written Answer to my request that he list the 19 applications in the year from March 2011 to create, amend or re-enact powers of entry that have passed through the Home Office gateway. All but one of those 19 came from Defra and now every one of these new powers is to be made subject to agreement or warrant. I congratulate the Government as that shows what can be done and it illustrates the change in the culture since the Bill was initiated. But—and it is a big but—there were 19 in a year, with 1,300 needing to be processed and a target time of two years. We can all do the arithmetic. The reputation of the Home Office is not at such a pinnacle that it can easily command all other departments, and of course it does not have that useful currency of power which the Treasury has: extra money.
There are rivalries and jealousies well outside the influence of the Home Office. When I first introduced my amendment, it was most enthusiastically welcomed and endorsed by the Trading Standards Institute. Its policy officer, Sylvia Rook, wrote to the noble Baroness, Lady Royall, with a copy to me, on 3 February, saying:
“The Trading Standards Institute is delighted that Lord Marlesford has recognised the important work done by trading standards professionals around the country, and has amended his proposals accordingly … The new proposals, if accepted, will ensure that trading standards professionals can continue the essential work that they do using the powers afforded to them within existing legislation and subject to existing legal constraints”.
In other words, the trading standards people are very happy that this amendment in no way interferes with them. Subsequently, they appeared to change their tune. Not only do I understand why, but it illustrates why it is quite important that it is not left to those with the powers of entry to decide whether they should be modified.
The Local Government Association was unhappy not to be one of the exceptions. Indeed, the association wrote to me some weeks ago pointing out that it, too, sometimes found its untrammelled powers useful and although it did not use them, it always felt that it might have to use them in the future and that they might come in handy. Of course, trading standards is closely linked with local government and is part of the LGA. I know that the LGA was upset that trading standards had agreed a deal whereby it had an exemption and the LGA did not. I am told that the LGA never thought that the amendment would pass and so decided not to devote any resources to telling us that parts of it should be included. In the name of solidarity—we all respect that—trading standards was persuaded to withdraw its enthusiasm. However, today I spoke to trading standards, which confirmed that it was happy to have been given the exemption, which remains in my amendment.
This is exactly why I believe that this very moderate step of requiring powers of entry to be exercised either by agreement or with a magistrate’s warrant should in general be taken by Parliament and not left to be decided by those who enjoy them. This brings me to the crux of the difference between the position that the House took when it passed the original amendment on 6 February and the Government’s position; it is that the Home Office still believes that it should decide which of the 1,300 powers of entry should be modified or removed. Our amendment would mean that all powers of entry would remain in existence but would all be subject to agreement with the occupier or to a warrant, with the exceptions provided by the amendment.
I remind your Lordships that the exceptions cover, first, cases where the local authority with power of entry can demonstrate that the use of the power would be frustrated if consent or a warrant were sought. This would cover, for example, entry by the emergency services or another person to deal with something such as a gas leak, or by the fire brigade or an ambulance crew. I was interested that the Minister indicated that I had not provided adequate protection for the saving of lives. My second example concerns a police constable. Normally, the police always require a warrant. However, certain changes made as a consequence of terrorism removed that requirement, and I did not wish to interfere with the steps that Parliament had recently taken.
I added to the Security Service, which I put in the original amendment, an officer of the Serious Organised Crime Agency. As a former member of Sub-Committee F, I had the opportunity two weeks ago of visiting SOCA. I was extremely impressed by its work, and clearly it is absolutely right that it should be included as an exception. I have already referred to trading standards officers. Finally, and very importantly, the amendment refers to,
“any person acting in pursuance of the protection of a child or a vulnerable adult”.
Obviously, we do not want in any way to risk creating a problem in fulfilling those duties.
Having been accused of taking a blanket approach—this charge was included in my noble friend’s letter to all Peers and referred to again by the Minister in another place—I redrafted the amendment. It is slightly different from how my noble friend described it. It would allow the Government, by an order that would be subject to the approval of both Houses, to remove the constraints that my amendment would impose on any particular power of entry where, in the light of the experience, the constraints had been found by the Government to be inappropriate or counterproductive. I emphasise that I do not seek to remove any powers of entry. All I say is that in general, with exceptions, the powers should be subject either to agreement with the occupiers of the premises or, where that cannot be achieved, to a warrant. We will retain these exceptions. This is an entirely non-party proposal, but one that the legislation gives us an ideal opportunity to enact.
Finally, I will say that I was always perfectly ready to collaborate with the Government on any necessary drafting changes. Sadly, the message that I received was that the Home Office had no wish to negotiate, with the implication that its legislation is for it to draft and is none of my business. On that I will let your Lordships decide. However, I do not believe that leaving the review to the Whitehall machine, with the Home Office in the lead, would produce acceptable results in an acceptable timescale. I beg to move.
My Lords, I rise to support the proposed amendment. It relates to the circumstances in which a statutory instrument or legislation can give authority to regulators—not the police as their powers are enshrined in statute and are not in question—to enter private property without the consent of the owner or occupier of the property or the authority of a warrant granted by a judge.
This goes to the view that one takes of the importance of the rule of law in considering what powers the Executive ought to have to interfere with rights of private property. Clause 40 provides that the Government may place fetters on rights to enter private property. That is a discretionary power that the Government may or may not exercise, and in relation to a number of statutory instruments that I have seen, some quite recently, the safeguard provided by Clause 40 has not been adopted. The obligation on government to obtain the consent of the owner or occupier or to obtain a warrant ought, in my opinion, to be the rule.
Of course, there may be exceptions. The noble Lord’s amendment provides for them. I suggest that they are ample and adequate, but the rule ought to be that the consent of the occupier or a warrant is obtained and that the case has to fall within one of the recognised exceptions. At the moment, the legislation is the other way round so that the rule makes the addition of safeguards to protect the rights of property dependent on the discretion of the Government. That is not acceptable as a basis on which rights of property can be interfered with.
I do not wish to take up your Lordships’ time by repeating what I said during previous debates on this topic and, moreover, today is my wife’s birthday and I have agreed to take her out to dinner at 6 pm. I hope, therefore, that the Minister will forgive me if I do not stay to hear his reply to this amendment.
My Lords, I, too, rise to support the amendment. I do it on the basis of practical experience. I do the Government the credit of saying that their heart is in the right place on this. Indeed, on all sides of the House, it would be agreed that powers of entry without permission or warrant should be kept to a minimum. However, as the noble Lord, Lord Marlesford, said, the crux is where the initiative for reviewing these regulations should lie.
Here, I speak on the basis of long experience in the Cabinet Office and successive initiatives to reduce regulation in government. Those who have been Ministers will be familiar with this. In this matter, the Cabinet Office was on the side of the angels. It wanted to see —indeed, it was a duty imposed on it by Governments—that regulations were reduced. There were successive deregulation bodies. The Minister in another place, Mr Francis Maude, led one of them. The experience of asking departments to make the case for the existence of regulations showed that doing it that way round was not successful because they could always make a case that the regulation might at some time be necessary or useful. For that reason, I was always in favour of having a sunset clause on regulations, a provision that from time to time a department that wanted to maintain regulations should have to make the case for them again. That is what, in effect, the amendment proposed by the noble Lord does. If the Government want to make progress in this, the onus should be on departments to make the case for the power to be renewed. Otherwise, the power should lapse. I am quite sure that if the onus is left as it is and the regulations are reviewed by the departments, very little progress will be made.
I support the noble Lord’s amendment particularly because, as he has said previously, this is a historic opportunity for the Government to set a sunset clause on these powers and oblige departments to make the case anew. I am not sure whether the noble Lord’s amendment is technically correct, but it would be wise for the Government, whose heart, I believe, is in the right place, to think about this again. I hope that they will do so. I am afraid that if they do not, the objectives that they seek to achieve will not be effectively achieved.
My Lords, I am a member of the Joint Committee on Human Rights that reported on this matter. In paragraph 116 of our report, we welcomed,
“the recognition in the Bill that powers of entry should be strictly limited to those circumstances in which such a power is justified, necessary and accompanied by appropriate safeguards”.
I would be grateful for acknowledgement by my noble friend the Minister that it is common ground that these powers should be in existence and exercised only where the power is,
“justified, necessary and accompanied by appropriate safeguards”.
When this matter was raised previously by the noble Lord, Lord Marlesford, I spoke critically of his amendment and what he was seeking to do on the grounds that the matter was already covered by the European Convention on Human Rights and the Human Rights Act. On reflection, not only having listened to the debate so far but having looked at the Commons Reason for disagreeing, I am now tending to be much more supportive of this amendment. With respect, I cannot understand how the other place can disagree, in considering that,
“the imposition of general restrictions of this nature on the exercise of powers of entry could undermine actions to protect public safety”.
That seems an extraordinary statement.
The purpose of the amendment moved by the noble Lord, Lord Marlesford, is to write into this important Bill a constitutional safeguard, which, for example, in the American Bill of Rights, is contained in the Fourth Amendment: the prohibition on unreasonable search and seizure. Within the past three months, the American Supreme Court gave a judgment on that guarantee, referring to English doctrine against unreasonable search and seizure, which, of course, we in this country trace back in common law to the great case of Entick v Carrington. The noble Lord, Lord Marlesford, is seeking to use not just the European Convention or the Human Rights Act but the statute itself to contain a general restriction against the abuse of powers of entry by the retention of unnecessary powers.
I perfectly appreciate that the Government have undertaken to carry out a two-year review of the detail, and that is highly desirable and has been welcomed by the Joint Committee on Human Rights. However, I cannot see any objection to a general constitutional restriction against the retention or use of unnecessary powers of search or seizure. I shall listen carefully to how this is dealt with in reply, but at the moment, like others who have spoken so far, I have become much more sympathetic to this than I was on the previous occasion.
My Lords, I rise to speak, as I did on a previous occasion, in support of the general principles of which the noble Lord, Lord Marlesford, has spoken. In particular, he has done a service to this House, and indeed to the other place in enabling it to undergo an exercise of looking at and debating the whole matter of powers of entry. Nobody suggests that powers of entry are always justified; or that they are never justified. The noble Lord, Lord Marlesford, has raised public safety and the House of Commons has raised it as a key factor to consider alongside whether powers of entry should exist.
As I see it, the difficulty is that the noble Lord, Lord Marlesford, has wanted to clarify the law, of which one surely must be in favour. But he has also—I am afraid that it is still in his amendment before us today—picked on particular bodies, such as trading standards officers, and given them a blanket okay for their powers of entry. It so happens that I am an honorary vice-president of the Trading Standards Institute and I should declare an interest. The institute may wonder whose side I am on because I am saying that it is wrong for the law—it is a question of whether the law should be changed in the direction of the proposal in the name of the noble Lord, Lord Marlesford—to pick on a particular public official or group of public officials and say, “They are in the clear. They can have powers of entry because they go into car dealers’ premises and people’s premises, including businesses, and so on to investigate whether there is something in there that suggests a criminal offence. That is okay but it is not okay necessarily for other people”.
Perhaps I may repeat myself here, but in, I think, the last debate, I asked, “What about environmental health officers who are concerned with public safety? Why are they not mentioned?”. I noticed that Members of the other place referred to inspectors on behalf of gas companies going into premises to ensure that there will not be an explosion or, if there has been an explosion, to look at how to deal with it. What about firefighters? They have been mentioned but are not specifically mentioned in the amendment in the name of the noble Lord, Lord Marlesford. Some people may think that they should be.
I do not think that it is right to isolate or separate one group of officials from another and to take a preconceived view that one lot are always in the right and doing what is proper while others are not mentioned.
I am puzzled by the principle that the noble Lord, Lord Borrie, is enunciating. Is he not aware that throughout a whole swathe of legislation lines have to be drawn? Parliament is responsible for drawing the line where it thinks that it is right and sensible. His argument that you cannot draw any line at all and that, therefore, you should allow the bureaucracy to do what it wants untrammelled by Parliament seems slightly unconvincing.
I am most grateful for the intervention of the noble Lord, Lord Lawson, because I entirely agree with what he said. I am concerned that this notion of picking out one group of officials has been made by a private Member of the House of Lords proposing this amendment without any examination of why that group should be supported and not others. As I understand it, the Home Office, over a period of months, intends that there should be a thorough review of the across-the-board powers of entry of numerous officials connected with various departments and that it should not be a question of suddenly determining that a particular group of officials should be specially mentioned in legislation and not others. That is my concern and I am most grateful to the noble Lord, Lord Lawson, for bringing the matter out.
It is not suitable for us now without any review of across-the-board powers of entry to isolate one set of officials against another. The review emphasised by the noble Lord, Lord Henley, which was mentioned by Ministers in the debate in the other place, is vital before one starts getting into the detail of what powers of entry should be permitted and what should not.
My Lords, we should take this opportunity, which follows the vote on a previous occasion when the House by a majority voted in favour of the amendment in the name of the noble Lord, Lord Marlesford. We now have a revised and better version of his amendment. But it has not been treated with enormous respect in the other place, which had a debate but no vote. We have had a letter from the noble Lord, Lord Henley, dated 27 March. The letter says that the amendment is “well intentioned” —so the majority of the House had good intentions when it came forward with this little bright idea. The letter states that these proposals, if legislated for,
“could hinder rather than help … Our issue with the amendments is not with their underlying aim, but with the blanket approach they adopt”.
It is about time that something is done. There could be a two-year inquiry—that could be doubled or quadrupled —and no pending Bill in front of the House. We have a Bill. Let us take some action, follow the amendment, repeat what happened last time and send it back again to the other place.
My Lords, I strongly agree with the noble Lord, Lord Neill. With this very convenient amendment at this late stage, it seems to me that the time has come for the Government, if necessary, to come forward with a sensible amendment that could be produced extremely quickly. They absolutely do not need two or four years, as the noble Lord, Lord Neill of Bladen, said, to come up with a situation that is obviously not sensible.
I have come from a meeting of the Select Committee on the Merits of Statutory Instruments where we discussed an order on green bananas, which has a provision to deal with the rights of entry. As it happens, it does not deal with the criminal part of that but Regulation 6 says that there may be an application to a magistrate for a warrant. It does not refer to the circumstances but I assume that they are those in which force is required. At the moment, I cannot see why you have to have a right of entry for green bananas when you can perfectly well get a magistrate’s warrant if it is absolutely necessary. What I am telling your Lordships’ House is that it is going on now and that it is time to stop it.
My noble friend is probably old enough —I certainly am—to remember the days when an Englishman’s home was always referred to as his castle. Castles are besieged by mice. What worries me about this is that the officers who will have powers to enter my castle and your Lordships’ castles—mine is a very small place—vastly outnumber the number of mice who are able to do so. The mice are undercontrolled and so, in present legislation, are very large numbers of these officials. I do not think that they should be and noble Lords probably do not think that they should be either.
My noble friend has suggested a simple and elegant way to control the situation. The noble Lord, Lord Borrie, who shakes his head, happens to be a fellow honorary vice-president of the Trading Standards Institute. I was hearted by what he said, although he may not have intended that. He said that the removal of the powers suggested by the noble Lord, Lord Marlesford, does not go far enough. I join others who think that the provision could be further improved with consideration by the other place. Some of us have been Ministers and have had legislation that we wanted passed. It is ludicrous to leave this legislation as it and to entrust the matter to a departmental inquiry, of all things, in the expectation that it will sort it out within a time limit or achieve something worth while.
My Lords, perhaps I may make a brief and slightly croaky intervention—I go one up on my noble friend Lord Borrie—as president of the Trading Standards Institute. I thank the noble Lord, Lord Marlesford, for engaging so closely with trading standards over the past number of months since first introducing his amendment in February. Indeed, trading standards officers would rather have been included in his amendment than not and therefore I do not decry them for their enthusiasm. However, after much discussion with partners in the intervening months, I should inform the noble Lord that, on behalf of trading standards, I shall not be able to follow him into the Lobby on his amendment.
My reasons are twofold. First, following on from the point made by my noble friend Lord Borrie, the provision made to include trading standards in the list of exceptions does not give enough scope to ensure consumer protection from rogue traders, money launderers and scammers of all types across all sectors. In difficult economic times—and we certainly live in difficult economic times—consumers are more and more vulnerable to these crooks and opportunists. Therefore, the legislation we bring forward to protect consumers must be very carefully enacted and leave no gaps in that protection.
Secondly, Motion A1 allows for an exemption only if provided for by the Secretary of State through regulation. Trading standards officers are extremely concerned that if the Motion is carried they would lose their existing powers of entry—they have been protecting us, as consumers, for over 100 years—until such time as they may be reinstated by statutory instrument. That uncertainty is not in the best interests of today’s vulnerable consumers.
My Lords, I had not intended to take part in this debate but one matter does strike me. In the eight years in which I was a Minister in the Administration of my noble friend Lady Thatcher, whenever a Minister said that something would take a particular period of time, she used to say, “Well, just think what was achieved in time of war during that kind of timescale”. We have been told that this review will take two years. I do not understand why the Minister does not simply say to the Home Office, “You have got to do it in a year”. Why will it take two years to carry out a review? If we were in a time of war, it would be dealt with much more quickly.
I put to the Minister exactly the retort of my noble friend Lady Thatcher. Set a timescale that is reasonable and achievable and, if the review is completed in the next year, there would be an opportunity for any necessary legislative change to take place within the present Parliament. As it is, I feel that we will get beyond 2015 and nothing will have been done.
My Lords, I share with many in the Chamber the deep concern about the erosion of our freedoms. If our forebears were listening today and hearing that more than 1,000 organisations and, through them, probably tens of thousands of officials have the right of entry into the Englishman’s castle, his home, they would be horrified.
I am comforted by the emollient words of the Minister, who says that what we are trying to do is helpful but he would rather leave it to his own officials to take two years to work out the position. I suggest that we put the clause the other way round and that he says to his officials, “I am going to accept the latest amendment of the noble Lord, Lord Marlesford, and if you have not reviewed your position and come up with a satisfactory conclusion within two years, by default the noble Lord’s amendment will stand”. That would surely put a boot behind the consideration of these matters by the various departments and help achieve what we all want to achieve. Perhaps in his reply the Minister will say whether that idea has any grains of usefulness.
My Lords, picking up on the point of the noble Lord, Lord Butler, I think everyone’s heart is in the right place on this matter but that we are struggling to articulate what is in our hearts in the right way. I am with those who, as the debate goes on, increasingly see complexity in this matter and a need for us to be very careful in the way we do what we are all trying to do.
We have reached a point in the procedure where what we agree to in the wording has got to be very precise and correct. Some noble Lords have said, “Send this back to the Commons and it can sort it out”. However, we know that in practical terms that would be very difficult within what is now almost a matter of hours. To be rather boring, perhaps necessarily so, on the drafting, I said on the previous occasion that I find the term “demonstrate” very difficult. It is not one which I am accustomed to seeing in legislation and I do not know where it rests in the evidential hierarchy, if that is the right way of expressing it. I am worried about the possibility of judicial review around “demonstrate” within new subsection (3)(b)(i).
I am also quite puzzled. I think I am correct in saying that what the Government are proposing in Clause 40(1) is discretionary, and so could come within the review; that Clause 40(2) is not exclusive; and that we, as a House, would be asked to consider what is proposed in particular instances through the statutory instruments procedure. Sometimes, notwithstanding the Merits of Statutory Instruments Committee, of which I am a member—I was not there this afternoon but I read the green bananas order realising that it might have some application today—it is incumbent on all of us, as a House, to be very diligent with what is coming before us via statutory instruments. However, if there is discretion—I think the proposals of the noble Lord, Lord Marlesford, are not mandatory but discretionary—then, in a sense, what is proposed is something and nothing. However, we are talking about them as if they are mandatory.
As to noble Lord’s reference that, essentially, future Parliaments may say, “Notwithstanding that a statute says X, Y, Z, it shall be something else”, again that may be something or nothing. However, I wonder what implication it has because no Parliament can bind its successors, as we know.
This brings me back to thinking that we need the review which has not only been promised but is required. I am entirely with those noble Lords who say that two years is too long given the demands that we are all making. It is easy to ridicule departmental inquiries. As I had understood it—I have never been in government —it is the departments that do all the work, with Ministers being advised by them. So we should not be too dismissive of the departments. However, the work needs to be done more quickly than under the timetable the Government are currently setting, and I for one would urge my noble friend on. If the Government can see their way to a quicker exercise, that might take the sting out of this.
I ought to say, finally, that I am vice-president of the Chartered Institute of Environmental Health. However, I have not been briefed by it, or even discussed it with it, and it has not been in my mind as in any way influencing what I have said.
My Lords, I find myself in a very difficult position, having begun this subject in 1975 and taken three Private Members’ Bills through the House. I am extremely grateful to my noble friend Lord Marlesford, who has a much more aggressive and attacking attitude than I do, being a man who has journalistic abilities. I am a simple person who simply says that there is a logic here.
First, you have to find out how many powers of entry there are. We began by asking questions of Ministers, none of whom knew what their powers of entry were. We worked out together that there were 584 and then made a joint arrangement with the Home Office to conduct a review, which took 18 months. We got up to 800 and then to 1,100. Finally, with the support of the Home Office, we found there were 1,200. However, this was not enough, because individual Ministers still did not know what their powers of entry were. All powers of entry relate to individual ministries, whether to Defra or any other ministry. I suggested this to my noble friend in Committee but did not want to speak again because one says the same things again and again. Even though some of your Lordships have passed on and some have never heard what one has said, repetitive Peers are not good creatures.
I therefore suggested to my noble friend that he put the latest list of powers of entry in the Library. He was rather reluctant to do this and said that we could see them on the Home Office website. However, that is quite difficult to access. Fifty per cent of your Lordships are not what I would call electronified and therefore do not know how to access websites. My noble friend wrote to me the other day and said that it would be placed in the Library. I am on the Information Committee and it is not yet there. Perhaps it could get there quite quickly.
My objective today is not to suggest anything. The help that I had was from the party opposite, which in the beginning was slightly cynical about all this. However, it went out of its way to say that this was a non-party issue and that we needed first to define what those powers of entry are and secondly to make sure that each ministry and Minister knows what their powers are and how they could be applied. There was then a separate exercise in respect of a code of conduct. That was going to take a further period to review, although we worked one out in a simple morning sitting around a table. You would say please and thank you and identify who you were. You might wear a uniform. It was not a very difficult exercise.
I am not saying that the Government are prevaricating in any way. I find this very difficult. Trying to be non-party on this, I should probably not vote for or against anything. However, the Minister should do what he can to reassure the House that this matter is under control. There is no need for another two-year review. I could get it done by the private sector pretty quickly.
I am very grateful to my noble friend for showing the attitude that he has. The noble Lord, Lord Marlesford, does not give up once he is on to something and does not lose the scent. I am very grateful to him for doing this today. I do not want to go against any party Whips, but I did say to my own party Whip that there might be an occasion when I could once more be a little bit independent for a short period. However, I urge him to take matters further.
My Lords, the noble Lord, Lord Marlesford, has explained that his amendment seeks to address the objections that were raised by the Government to his original amendment, which was passed by your Lordships’ House but did not find favour in the other place. As the noble Lord has said, the amendment seeks to address what he has described as the “blanket approach” criticism and has sought to meet points raised in the other place by including officers of the Serious Organised Crime Agency and members of the Security Service in the exceptions.
The amendment provides that,
“a power of entry may only be used without warrant, or without agreement with the occupier of the premises to be entered … in cases where the authority using the power can demonstrate that the aim of the use of the power would be frustrated if a warrant or agreement were sought; or … by persons specified in regulations made by the Secretary of State when acting under any legislation which permits such a person to exercise such a power”.
The amendment goes on to say which persons may be specified in such regulations, but also says that it,
“need not be limited to”
I wish to refer, as an example, to trading standards officers, who are one of the five persons specified in the noble Lord’s amendment. Trading standards officers do not currently have, and have never had, a routine power of entry into premises used solely as a private dwelling place. If the trading standards officer is dependent on the first criterion—the power of entry without a warrant or the agreement of the occupier—the difficulty arises from the fact that the breadth of their work is considerable and there are many and varied reasons why such an officer may wish to visit a business.
The first criterion means that any time an officer entered a business without a warrant or without the agreement of the occupier of the premises because they believed that the use of that power of entry would be frustrated if a warrant was sought, they could then be open to a legal challenge and the need to prove a negative: namely, that they could not have achieved their objective if they had applied for and obtained a warrant. That could be difficult to prove and would certainly be time-consuming when trading standards officers are already under pressure. It would probably result in trading standards officers entering premises unannounced much less frequently, to the detriment of their vital public protection role. Without having a power of immediate entry into business premises, trading standards officers would find it more difficult to carry out their basic day-to-day functions of protecting the public and their local communities, since they could have the barrier of possible legal challenge every time they sought to act swiftly.
Unfortunately, the second criterion, which is new, would leave it up to the Secretary of State to decide whether to give trading standards officers and any other officials the right of power of entry without a warrant or the agreement of the occupier of the business premises, unlike the noble Lord’s previous amendment, which gave such power full stop without being dependent on or waiting for the Secretary of State. If the Secretary of State does not, by regulation, give that power—and no one knows which way a particular Secretary of State would jump—it would make it much more difficult than now for trading standards officers to carry out their role of protecting the public and local communities. It would also make it harder to resist a legal challenge under the first criterion, on the grounds that trading standards officers were seeking to exercise a power that the Secretary of State had declined to give them by regulation. My understanding is different from that of the noble Lord, Lord Marlesford, on the position of the Trading Standards Institute on his amendment.
We understand the intentions and objectives behind the noble Lord’s amendment and the safeguards in relation to powers of entry that he is seeking to achieve. For that reason, we will not oppose his amendment if it is taken to a vote. However, we do believe, for the reasons I have mentioned, that in some instances the noble Lord’s new amendment may well make it more difficult for people such as trading standards officers to carry out their vital public protection role. For that reason, if his amendment is taken to a vote, we will abstain on it.
My Lords, I start by saying to my noble friend Lord Marlesford and other noble Lords that I am grateful for the fact that he acknowledges that we are at least on the same side in that we seek to reduce the number of powers of entry and make sure that existing powers of entry have the appropriate safeguards where necessary.
I begin with a very brief history lesson. At the time when the noble Lord, Lord Butler, was Secretary to the Cabinet, I can remind him and the House that we had something of the order of 500 or 600 powers of entry. As my noble friend Lord Selsdon said, it was difficult to know exactly how many there were. Over the years, mainly after the noble Lord ceased to be Secretary to the Cabinet, we saw a rather dramatic growth in the number of powers of entry. Something of the order of about 700 new powers of entry crept in between 1997 and 2010. I am sure that there were very good reasons for many of them and that all of them went through both Houses of Parliament, because all of them would have needed primary legislation in one form or another to get them.
It might be that Parliament nodded in its duty and did not provide the appropriate safeguards and checks and balances when considering all those powers of entry. Because of the dramatic growth that we saw over those 13 years, the new coalition Government in 2010 made a commitment that we would review all existing powers of entry and do what we could to reduce those that were unnecessary, bringing in appropriate safeguards—a warrant or consent—where necessary. That is why we brought forward the provisions in this Bill in Clauses 39 to 46.
I make it clear to the House that those proposals were in respect of the existing stock of the 1,300 or so powers of entry that we had. On top of that, there is always the danger—because Governments do this—that new powers might creep in. That is why we brought in the new gateway approach in the Home Office, to be adopted by all other departments, to look at any new powers of entry that might come in and make sure that they were properly scrutinised and that Parliament looked at them appropriately as they came through in Acts of Parliament. I am grateful that my noble friend Lord Marlesford at least commended that gateway approach to the new powers, but we are largely talking about the existing powers and how we want to look at the existing stock and do what we can to reduce it.
My noble friend brought forward his amendment before. It went to the Commons, where they looked at it—and I have to say to the noble Lord, Lord Neill, that they did not look at it with a lack of respect. They gave it a very good hearing and debated it for some 45 minutes, and the fact that they did not divide on it was obviously a sign that they thought that there was sufficient agreement. It is not for the Government to decide whether matters are divided on. Certainly, considerable respect was shown to the amendment and it was debated in considerable detail in another place.
My noble friend in his amendment seeks to create a blanket approach to what should be dealt with and then accepts that that approach is wrong—and he admits it is wrong because he then brings in a blanket exemption, which surely contradicts the whole point of what he is trying to do. We are trying to conduct a review of the whole process, which will closely examine all the powers that we have and those that are necessary while adding further safeguards to others. That is the important thing. There might be some powers that we do not need—right, we will get rid of them. There might be some that we do need but which do not have the appropriate safeguards, and in that case we will look at them. We have made it clear that in conducting our review the default position will be that any powers that require entry to people’s homes must require their consent or be by warrant only. This amendment provides only a blanket rule across the board, which we do not think is the right approach.
I accept that there have been criticisms—
Can the Minister confirm that we are not in a vacuum while the review is taking place in that, if there were unnecessary and disproportionate searches or seizures, the Human Rights Act would require our legislation to be read properly to prevent them from being classified as unlawful searches or seizures?
My noble friend is a great expert on the Human Rights Act and the House always defers to him when we discuss such matters. If there was a case of the sort that he implies, I am sure the courts would look at it in a manner that he thinks appropriate.
I am trying to make clear that we want to conduct a review over two years. I accept that there has been criticism from a number of colleagues, including my noble friend Lady Hamwee, who asked whether we could do it more quickly. The noble and learned Baroness, Lady Butler-Sloss, and my noble friend Lord Lawson also implied that we should do it more quickly. We will try to do it as quickly as possible but, as my honourable friend said in another place, we will also update Parliament on a six-monthly basis about how we are getting on. We think that this approach is the better one—to go through all the powers one by one, from department to department. Obviously, some departments will have a bigger workload than others. I understand that my old department, Defra, has rather a lot of powers. No doubt we will encourage them to work harder, and I and my colleagues in the Home Office will encourage them to do that. I think that is the better approach, and my noble friend’s approach—to bring in a blanket approach, accept that it is wrong and then bring in blanket exemptions—is not the right way forward.
I would hope that, as and when each power of entry is looked at, we will remove it as appropriate. I can assure my noble friend that we have already moved about 30 or so as part of the review. Most of those will require only secondary legislation to do that. It will be an ongoing process. As I made clear earlier, we will give a six-monthly update to Parliament on how we are doing this. At the end of that process I cannot give a commitment as to exactly what we will do. Certainly I am sure that my noble friend and others will hold us to account if we do not keep to that two-year programme. As I said, we want to do it more quickly if we can.
My Lords, I agree with a great deal of what the Minister has said, but would the Government’s objectives not be better achieved if they proceeded on the basis that powers would lapse unless a positive case could be made for them, rather than that they should remain unless a case is made to remove them?
My Lords, I am a great fan of sunset clauses, and I would be more than happy to do that. It is a matter for Parliament; with any new power that comes in, Parliament must decide whether a sunset clause should be brought in. It is not within the scope of what we are debating now to bring in a sunset clause for all 1,300 powers of entry that exist. That is not the aim of my noble friend’s amendment, and it is not an idea that has been put forward by anyone else. I am sympathetic to sunset clauses, and I know that the noble Lord is sympathetic, but let us consider that with new powers that come in. It is not something that we can debate at this stage.
With those assurances about what we are doing and with the assurance that we will continue to update Parliament on how we are getting on with this, I hope that my noble friend feels able to withdraw his amendment.
My Lords, I am most grateful to all noble Lords who have taken part in the debate. The House of Lords is always quite impressive, but the quality of the experience, knowledge and wisdom that have been shown by noble Lords speaking has been terrific. There has been a psychological thing that probably happens to all of us: there are those who want to do something and get on with it and those who say, “Well, let’s wait”. There is a place for both. However, on this question of how long it would take for a review, when my noble friend Lord Selsdon says that it took 18 months just to count the powers, I just wonder how far they will get in examining each of the 1,300 powers in 24 months.
I want to emphasise just one or two things. The first is that we are not aiming to remove any powers of entry. All we are saying is that we believe that the powers of entry, with certain exceptions, should be subject to agreement or to warrant as far as the occupier of the premises is concerned. The second—and this is where the amendment has changed—concerns what is found or felt about the provision before the powers have all been examined. My amendment does not interfere at all with the Bill’s current provision for a review. That provision will continue and it will be good to have it—I wish it godspeed, and we shall look forward to getting the reports. In the meanwhile, however, we will have achieved something. We will also have given the Government an opportunity so that if it transpires that a power has been trammelled by being subject to agreement or warrant and that has been counterproductive or undesirable in the public interest, the Government will be able to come back ad interim with an order to correct it. That is what I mean in describing the way that I have removed the blanket imposition.
In view of the comments of people such as the noble Lord, Lord Butler, and the noble and learned Baroness, Lady Butler-Sloss, I think that the general tenor is really such that the Government could do better. I would like to see whether the opinion of the House supports that approach.
Motion A agreed.
51A: Line 40, at end insert “or serious alarm or distress”
51B: Line 43, after “(b)” insert “either—
51C: Line 44, at end insert “or
(ii) causes B serious alarm or distress which has a substantial adverse effect on B’s usual day-to-day activities,”
51D: Line 46, at end insert “or (as the case may be) will cause such alarm or distress”
51E: Line 51, at end insert—
“(2A) For the purposes of this section A ought to know that A’s course of conduct will cause B serious alarm or distress which has a substantial adverse effect on B’s usual day-to-day activities if a reasonable person in possession of the same information would think the course of conduct would cause B such alarm or distress.”
My Lords, I shall speak also to Commons Amendments 133A to 133C. The House will recall that at Third Reading in this House the Bill was amended to introduce two new specific offences of stalking and stalking involving fear of violence. These new offences are set out in new Sections 2A and 4A of the Protection from Harassment Act 1997. I acknowledged at the time that the new Section 4A offence needed better to reflect the psychological trauma experienced by victims. I indicated that the Government would bring forward further amendments to address this point when the Bill returned to the Commons to consider the Lords amendments.
These additional amendments were duly approved by the Commons on 15 March and it now falls to your Lordships’ House to agree to them. The amendments made in the Commons to Amendment 51, which I brought forward at Third Reading, widen the new Section 4A offence so that a course of conduct amounting to stalking that causes serious alarm or distress, which has a substantial adverse effect on a victim’s usual day-to-day activities, is also captured. These changes will mean that when a stalker’s course of conduct causes their victim to, for example, change where they socialise or to ask their friends or family to pick up their children from school because they are afraid of running into their stalker, the Section 4A offence could be made out and therefore, on conviction, result in a sentence of imprisonment of up to five years. I am confident that through these changes we have further strengthened the protection of victims of stalking. We are also sending a clear message to perpetrators that this behaviour will not be tolerated.
I am convinced that we now have workable and effective laws to bring the perpetrators of stalking to justice. Elfyn Llwyd, who chaired the recent independent inquiry on stalking, said in the debate in the Commons that the new provisions,
“show that the Government have carried out a listening exercise, and we will now have firm laws. They will prevent lives from being ruined and, crucially, from being lost”.—[Official Report, Commons, 19/3/12; col. 553.]
Before bringing forward these amendments in the Commons, my officials discussed them with the National Association of Probation Officers and Protection Against Stalking. These organisations share the concerns raised here at Third Reading about the psychological impact that stalking has on victims. As many of your Lordships will know, both NAPO and PAS have said that they support the changes we have made.
I know that that view was widely shared on all sides of this House, but it is clear that the noble Baroness, Lady Royall, has some lingering doubts, if I may put it that way, that have prompted her to table two further amendments to the Commons amendments. I seek to reassure her that those amendments are unnecessary.
The noble Baroness’s amendment to Amendment 51C seeks to include a further limb to new Section 4A to cover cases where a stalker causes a victim to fear for their personal safety or that of another. I can assure the House that where such stalking behaviour causes the victim serious alarm or distress such that it substantially affects their day-to-day activity, then it could meet the threshold for the Section 4A offence. The threshold would also be met where the behaviour causes the victim to fear violence. A third party who is made to fear for their safety could also have recourse through the existing criminal and civil law, including by pursuing an injunction or a restraining order in appropriate cases.
The Government consider that the Section 4A offence should be reserved for cases where a stalker causes the victim to fear, on at least two occasions, that violence will be used against them or where a stalker causes their victim,
“serious alarm or distress which has a substantial … effect”
“usual day-to-day activities”.
It is right that this offence, carrying a maximum sentence of five years’ imprisonment, is reserved for those stalking behaviours that are more serious and have greater impact on their victim. Of course, all cases of stalking are serious and can wreck lives, but it is important that we maintain a clear distinction and escalation between the two new offences. Prosecution under Section 4A should be reserved for the worst cases. Such cases should already be captured in the Section 4A offence and adding this limb could lower the threshold too far. If the stalking behaviour does not cause the victim to experience one of the effects as set out in Section 4A(1), a prosecution under Section 2A would be more appropriate.
Again, officials have discussed this amendment with NAPO, Protection Against Stalking and with the Association of Chief Police Officers’ stalking lead. We have expressed our view that such cases could be captured in the existing Section 4A offence as amended in the Commons, and that this should be highlighted in police training. To ensure that this issue is properly understood by police and prosecutors, officials will involve ACPO, NAPO, Protection Against Stalking and others in developing training and guidance. Officials will meet them soon to agree how to work together. I am convinced that this issue can be addressed without further changes to the legislation. We now need to get the Bill on the statute book and to work with partners to ensure that these new offences are fully effective in protecting the victims of stalking and bringing offenders to justice.
I end by saying that I am indebted to all Members of the House who have worked with us to shape this legislation. Together, we have across all parties developed workable legislation that will support the police and the courts in eradicating this awful crime. This will make a real difference to victims. I again pay tribute to noble Lords on all sides of the House, including the noble Baroness, Lady Royall, the noble Baroness, Lady Howe, who is not in her place, and my noble friend Lady Brinton, for their tireless efforts in raising these issues and ensuring that stalking victims will be properly protected by these new laws. I commend Motions B and C to the House and invite the noble Baroness not to press her Motions B1 and B2. I beg to move.
Motion B1 (as an amendment to Motion B)
51F: Line 3, at end insert “or
(iii) causes B to fear for B’s personal safety or the safety of another”
My Lords, today we are almost there: a new law on stalking, for which Parliament rather than Government has been in the driving seat. Over the past six months, a staggering amount of progress has been made, much of it due to the advocacy of noble Lords on all Benches. Like the Minister, I pay special tribute to the noble Baroness, Lady Brinton, and the noble Baroness, Lady Howe, along with my noble friends on these Benches. The progress is also testament to the campaigners, the excellent parliamentary inquiry, and most of all to the survivors and their families that we will soon achieve proper protection in law for the victims of stalking. I also pay tribute to those women who have shown extraordinary courage in the face of this harrowing crime: women like Claire Waxman, Tracey Morgan, Sam Taylor, Tricia Bernal and Claudia Miles, whose lives were stolen by their stalkers, but all of whom are utterly determined to make sure that future victims get the justice and protection that they deserve.
The Commons amendments that we are considering today are concessions that the Government made following serious concerns raised at Third Reading about their initial proposals. I thank the Minister and the Bill team for the work they have done. We support the amendments brought forward and warmly welcome them as far as they go. However, it is disappointing that the Government did not heed calls from experts to strengthen the proposals on police powers and to allow for cases prosecuted under the new Section 2A offence to be referred up to the Crown Court should new evidence emerge.
As the Minister said, government Amendments 51A to 51E add a new set of criteria to the more serious Section 4A stalking offence in order to ensure that those cases where a stalker never makes an explicit threat of violence towards their victim are still liable for the maximum penalty of five years’ imprisonment where their course of conduct has caused the victim to suffer sustained and serious distress or alarm which forces them significantly to change their day-to-day activities. However, the stalking charities Protection Against Stalking and the Network for Surviving Stalking, as well as criminal justice professionals such as the National Association of Probation Officers and senior criminal barristers, are all concerned about a small number of serious cases where victims refuse significantly to alter their daily routine in the face of the stalker’s actions but fear for their personal safety or that of another person close to them. The more serious Section 4A offence as currently drafted would not be sufficient to enable a successful prosecution.
Mary Porter, for example, started to receive offensive e-mails and texts from a colleague about five years ago. The behaviour soon escalated to criminal damage to her property and silent phone calls. Although she feared for her safety, no specific threat of violence was ever made. Mary took a conscious decision not to react to his behaviour by changing her routine or work patterns. However, the stalking took its toll. She developed muscular strain through stress, which affected her mobility. She also reported having great difficulty sleeping, having nightmares and being unable to get his behaviour out of her mind. Eventually she discovered the identity of the stalker. She kept records and a log of his behaviour, which she was able to present to the police, but after several months of sustained harassment, he was given a short custodial sentence which was suspended for 12 months. Why should someone like Mary, who refused to let her stalker affect her daily routine, not have the same right to protection?
My amendments would ensure that women like Mary, who have serious concerns about their personal safety as a result of their stalker’s actions—even if explicit threats of violence are not made—would be covered by the same protection under the Section 4A offence. The amendment also makes reference to the safety of another, as it is well known that stalkers can often target loved ones, particularly children, to get to their victims. Sally Evans separated two years ago from her abusive partner. He then commenced a campaign of threats and intimidation, including vandalism to her car on three occasions, as well as invading her website, sending offensive messages, texts and photographs to her employer and following her in the car. He used the family courts to obtain contact with the children and, fearing the consequences of his escalating activity, Sally decided to co-operate. She was frightened and worried about her personal safety and that of her children, but at this time there was still no overt threat of violence. The police told her that they were powerless to intervene unless he made a physical attack. It was only recently, when he threatened to kill her in front of one of the children, that the police finally acted.
In reference to my amendments, the charities Protection Against Stalking and the National Association of Probation Officers stated that:
“Following discussions with police, lawyers and others, PAS and NAPO support an amendment which would expand the definition beyond fear of violence to include causing a person to fear for their personal safety or the safety of another, for example a child or relative”.
Similar support has been pledged by the charity Network for Surviving Stalking, and Dr David James, consultant forensic psychiatrist at the National Stalking Clinic, has stated that:
“The proposed amendment to the Bill regarding the specification of fear for personal safety or that of another as a parameter is very important, given the psychological damage that stalkers inflict and seek to inflict. The amendment would substantially strengthen the legislation and we would encourage peers to adopt it”.
My amendments do not make significant textual changes, but they are changes that would make a significant difference to the lives of victims in a small number of serious cases like those of Sally Evans and Mary Porter. We are tantalisingly close to achieving our new law on stalking. However, we must make sure that when it reaches the statute book, we end up with the best possible version. No doubt the Government will argue that at this stage it is too late to bring forward further changes and the Minister said that he thought that all cases would be reasonably covered by the amendments being proposed by the Government today. However, I believe that while we have the opportunity to ensure that victims like Sally Evans and Mary Porter could be properly covered by legislation, we have a duty to ensure that they are served by the most comprehensive law possible. I would therefore urge noble Lords to think of those two women in our debate and to support my amendments. I beg to move.
My Lords, last Wednesday was the second annual National Stalking Awareness Day and two events were held simultaneously here and in the Scottish Parliament. They differed radically from the event held one year before because all those present in London were able to celebrate the introduction of this Bill, promoted on a cross-party basis in both Houses of this Parliament. One year ago, the people’s inquiry into stalking was just being created. It was ably chaired by Elfyn Llwyd MP and supported in every possible way by the National Association of Probation Officers and Protection Against Stalking, which had come together in their absolute determination to persuade Parliament that we needed legislation that recognised the scourge of stalking. It needs naming, appropriate sentencing, support for victims and, importantly, treatment for perpetrators. Some members of that inquiry were sceptical about the need for change but the evidence bravely given by the victims, survivors, families of murdered victims, police and others in the criminal justice system made it undeniably evident that change was needed.
Last month the Home Secretary, speaking in the Commons debate, confirmed the need for change. Turning to the amendments before us now, she made it much clearer and plainer that the behaviour of those in the criminal justice system had to change, too, to recognise the seriousness of the case, even if it could not be specifically identified in every exemplar. She specifically said:
“Those amendments will widen the section 4A offence to incorporate behaviour that causes the victim serious alarm or distress that has a substantial effect on his or her day-to-day life. This change will mean that when a stalker causes their victim, for example, to take alternative routes to and from work, when the victim is afraid to leave the house or when they have to ask their friends or family to pick up their children from school because they are afraid of running into their stalker, this could count as behaviour that attracts the more serious section 4A offence and therefore, on conviction on indictment, a maximum five-year sentence. The message could not be clearer—anyone who ruins someone’s life with their stalking should expect to be severely punished”.
The Secretary of State went on to say that legislation will be kept,
“under review. The last thing we want to do is to find that the legislation is being misinterpreted”.
She had set out examples,
“to send a message to people that that is all they are”.—[Official Report, Commons, 19/3/12; col. 546-47.]
Some of the examples to do with changing the culture are absolutely vital within the system. Frankly, that change should start with the renaming of the department in the Home Office that deals with stalking. It is currently called—I am not making this up—“Death and Violence”. One small but significant change such as this will signal a key change in how the Government, the Civil Service and the criminal justice system are starting to treat stalking. This is about human beings and how they are treated.
I give one illustration from the courts today. The result of Elliot Fogel’s case was due to be heard this morning—the latest chapter in his stalking of Claire Waxman over the past 20 years. He was imprisoned for two years in January for breaching a lifetime restraining order; this was after a 16-week sentence for the original stalking offence two years ago. He wanted his sentence reduced. Shockingly, the case was adjourned from this morning to this afternoon because the CPS had again forgotten its evidence and files on his repeated breaching of previous restraining orders. A further problem was that the CPS had consistently not prosecuted breaches of restraining orders, so the court was able to look only at three out of the many that had been taken to court. This presents a very different picture for the judges but it is one that they were forced to use. I am pleased to say that the court finally made its decision this afternoon and Fogel’s sentence remains.
Every single court case in Claire Waxman’s long and difficult experience of being stalked has been adjourned at least once because the CPS arrived without key papers or because of other unbelievable acts of incompetence. As with domestic violence cases, these delays, caused entirely by administrative errors, can be physically dangerous to victims and their families. The court is often stuck without effective means of prosecution. The only way to get around this is through training and guidance on stalking, its perpetrators and its victims. Until this happens, victims stand no chance of a fair trial or even a voice.
We have debated the detail of this at length and gained, I understand, unusual consensus on the need for stalking legislation. The time has come to accept the Secretary of State’s clear intention on this and for the Home Office and the Ministry of Justice to begin the vital work of changing the culture around the treatment of these offences to make it clear that the scourge of stalking is no longer acceptable in England and Wales.
My Lords, what we have heard today emphasises the need for training for the police and maybe other agencies, and the need to be alert to behaviour that may escalate, having started as apparently comparatively innocent. I was relieved to hear my noble friend say that these amendments are unnecessary and grateful for his explanations. Reading them earlier today, it seemed to me that they were covered in both senses. The two sets of behaviour described, of which individual B was the subject, would fit within the new sections. As regards a third party, it is likely, depending on the degree of seriousness, for other criminal offences to be involved.
As I say, I am glad to know that the amendments are unnecessary and that such behaviour will be covered. If legislation is adequate, it is important that it is not expanded to cover explicitly this sort of example because matters that are not explicitly included might then be thought to be excluded. Therefore, if the legislation covers, perhaps in a fairly technical way, the behaviours that are of concern, it could be damaging in a wider sense to spell out those behaviours in the legislation.
My Lords, I can respond relatively briefly and will deal, I hope, with most of the points. First, to protect the honour of the Home Office, I correct just one point made by my noble friend Lady Brinton. She talked about there being a department in the Home Office known as “Death and Violence”. I can assure her that that is not the case. The Home Office team that leads on this is called Interpersonal Violence, which I hope my noble friend will accept is a better name than the suggestion that she put forward.
I thank the noble Baroness, Lady Royall, for accepting that this matter has been driven by Parliament. It has been cross-party and I pay tribute to all those in this House and another place—the right honourable Elfyn Llwyd and others—who have led the work on this. Perhaps I may also say how important it is that we work with others; and that is why we will continue to talk to NAPO, Protection Against Stalking and ACPO about how we bring in the right training. As the noble Baroness will be aware, my right honourable friend the Prime Minister made it clear on International Women’s Day that training will be provided, and we will work with those bodies to develop that training. It is because we are providing it that we do not believe that the noble Baroness’s amendments are necessary or appropriate. It is because we believe that we have come to a considerable degree of consensus on this that now is the moment to move on and get this Bill on the statute book.
All that I want to do at this point is respond to one matter in the example that the noble Baroness gave regarding Mary and the problems she faced. The noble Baroness said that Mary did not change her daily routine and therefore would not be captured by new Section 4A. As the noble Baroness made clear, Mary on that occasion kept records of her stalker, she did not sleep and had to speak to the police. All those are examples of day-to-day activities being affected. Therefore, new Section 4A certainly could apply in that case, and that is why it is important that we provide the police with exactly the right training, and is why I am trying to give the commitment that we will work with the bodies that we have been talking about to make sure that the right training is evolved.
I should also take on the point made by my noble friend Lady Brinton about the need within the Home Office and Ministry of Justice to make sure we change the culture appropriately—that obviously also applies to the police—in terms of understanding the importance of these matters and ensuring that prosecutions are, when appropriate, pursued with vigour, if necessary at the higher level provided by new Section 4A, or by new Section 2A in much more minor cases. I dealt with the example given by the noble Baroness because I wanted to make it clear that new Section 4A could apply even in that case.
I therefore feel that the noble Baroness’s amendments are not necessary. I hope that she will not press them and that the Bill can move on to the statute book with due speed.
My Lords, my understanding and what I was trying to get over is that, with the introduction of appropriate training in how the police prosecute in these matters, her amendment is not necessary. I therefore think I am right in saying that what I have said would be covered by my noble and learned friend’s point.
I, as always, speak for Her Majesty’s Government when I am at this Dispatch Box, but on this occasion I cannot honestly answer for the Ministry of Justice. All that I was trying to do was clear the name of my department, but I am sure that other Justice Ministers will in due course be able to respond to my noble friend’s point.
My Lords, I am grateful to the Minister and to the noble Baronesses who participated in this debate. The Minister and the noble Baroness, Lady Brinton, quite rightly spoke of the critical value of training for the police and other members of the criminal justice system. It is clear that in the case cited by the noble Baroness, that of Claire Waxman, training that will bring about a change of culture is an absolutely necessary and vital part of ensuring that in future the perpetrators of stalking are truly brought to book and the new offence that we are introducing is properly used against them.
I realise that the Minister says that the case of Mary would be covered by the amendments being brought forward by the Government, and he says that my amendments are not therefore necessary. The intervention of the noble and learned Lord, Lord Mackay, is of course extremely valuable because the Minister has clearly said that it is his interpretation of the government amendments and the Bill as it stands that those cases would be covered. However, a lot of what the Minister has rightly said—and I, too, am glad about the consensus that we have achieved on the Bill—depends on the quality of the training that will be provided to the people involved in the criminal justice system. I am glad that ACPO, NAPO and Protection Against Stalking will be involved in the discussions on training but, frankly, the words of my amendments are almost belt and braces. We are often told by Bill teams and parliamentary counsel that one should not include in a Bill matters that are otiose, but I do not regard the words that I propose as otiose. It is belt and braces to ensure that while training is important, should it fall down for whatever reason, those words will be in the Bill to ensure that people such as Mary, Sally Evans and others mentioned to me by NAPO, ACPO and other charities are properly covered. Before us is a great opportunity. I pay tribute to all Members of this House and indeed the Government for moving as far as they have gone in this Bill. The consensus that we have achieved is terrific. However, I should like to ensure that the belt and braces are there, and I therefore seek the opinion of the House.
Motion B2 not moved.
Motion B agreed.
133A: Line 22, leave out “by stalking or otherwise” and insert “and stalking involving fear of violence or serious alarm or distress”
133B: Line 41, leave out “by stalking or otherwise” and insert “and stalking involving fear of violence or serious alarm or distress”
133C: Line 46, leave out “by stalking or otherwise” and insert “and stalking involving fear of violence or serious alarm or distress”
Motion C agreed.
My Lords, I beg leave to repeat in the form of a Statement the Answer given by my honourable friend the Parliamentary Under-Secretary of State for Crime and Security to an Urgent Question in another place. The Statement is as follows:
“It is a matter of deep regret that it took 19 years to achieve convictions for the murder of Stephen Lawrence. In the years since he was murdered, the Lawrence family fought tirelessly for justice and, without their efforts, it is unlikely that either Gary Dobson or David Norris would have been convicted. I hope that the verdicts in January are able to finally deliver some comfort to the Lawrence family.
Allegations of corruption in the murder investigation have been looked at on two previous occasions. They were examined by the Macpherson Inquiry, which concluded that,
‘no collusion or corruption is proved to have infected the investigation of Stephen Lawrence’s murder’.
They were also looked at by the Independent Police Complaints Commission in 2006, which again was unable to find any corruption in the original murder investigation.
Following the convictions of Gary Dobson and David Norris, further allegations of corruption have come to light. As a result, the solicitor acting on behalf of Mrs Lawrence has written to my right honourable friend the Home Secretary asking her to set up a public inquiry.
Allegations of police corruption must always be taken seriously and investigated thoroughly. It is essential that we ensure that the actions and behaviours of any corrupt police officers do not undermine public confidence in the police’s ability to respond to, investigate and fight crime. The Metropolitan Police is currently carrying out an internal review into these corruption allegations and we await its findings. I would like to reassure Members that my right honourable friend is treating these issues with the utmost seriousness. She is currently considering her decision and has offered to meet Doreen Lawrence to discuss these issues further. She will keep the House updated”.
My Lords, that concludes the Statement.
My Lords, first, I thank the noble Lord, Lord Henley, for repeating the Urgent Question in another place as a Statement in your Lordships’ House. I echo his remarks and regret that it has taken so long to achieve convictions for the murder of Stephen Lawrence. Like the noble Lord, I also pay tribute to the Lawrence family for their tireless efforts to seek justice.
The House will know that during the investigation by the Metropolitan Police five suspects were arrested but not convicted. During the investigation many suggested that the murder was racially motivated and that the handling of the case by the police and the Crown Prosecution Service was affected by issues of race. After widespread concern, a public inquiry was held, led by Sir William Macpherson. This examined the original Metropolitan Police investigation and concluded that the force was institutionally racist.
As the Minister said, allegations of corruption in the murder investigation have been looked at on at least two previous occasions. They were looked at first by the Macpherson inquiry itself, which concluded that no collusion or corruption was proved to have infected the investigation of Stephen Lawrence’s murder. Then in July 2006 the IPCC announced that it had asked the Metropolitan Police to look into alleged claims of police corruption that may have helped to hide the killers of Stephen Lawrence. In 2007, the IPCC said that it had found no evidence to substantiate these allegations. However, within weeks of the convictions earlier this year, the issue of corruption in the Lawrence case surfaced again when the Independent made allegations about a detective in the Lawrence case which had previously been made in the Guardian in 2002 and by the BBC in 2006.
Doreen Lawrence has called on the Home Secretary to order a second public inquiry into the police investigation of the murder of her son. The call for a Macpherson 2 comes as the Metropolitan Police has said that it has been unable, after a month of investigation, to establish whether it passed potentially crucial files detailing investigations by its anti-corruption command to the police inquiry into Stephen Lawrence’s death held in 1998.
Those are some of the contexts in which we consider the Government’s response today, and I should like to ask the noble Lord a number of questions. He said that the Metropolitan Police is currently carrying out an internal review into these corruption allegations. Can he give me any indication of when that review is likely to be concluded? In view of the need for public confidence in any internal inquiry before consideration is given to a wider public inquiry, given that it is currently an internal review and given the current state of concern about these issues in relation to the Metropolitan Police, does the Minister consider that some assistance from HMIC might be appropriate? Does he accept that only an independent inquiry is ultimately likely to give the public confidence?
We understand that the Home Secretary is, as the Minister said, considering this matter at the moment but there has been an indication that one of her concerns is cost. Can the noble Lord assure me that cost will not be a factor when the Home Secretary comes to order an inquiry? Does he also accept that there are very powerful reasons for holding such an inquiry, including the seriousness of the allegations, the fact that they have recurred on a number of occasions and that the Inquiries Act 2005 states that inquiries should be held if particular events have caused or are capable of causing public concern? I suggest that that threshold may well have been reached.
If there is to be an inquiry—either a continuation of Macpherson or a new public inquiry—I should also like to ask the Government whether they will consider adding to its terms of reference consideration of progress made by the Metropolitan Police following the Macpherson finding of institutional racism and whether further changes need to be made in the light of more recent racism allegations, which I think will be the subject of an Oral Question in your Lordships’ House very soon.
Perhaps I may also refer the Minister to a number of comments made by my right honourable friend Yvette Cooper in relation to the wider allegations of alleged racism involving Metropolitan Police officers reported in recent weeks. It is very important that the IPCC carries out a swift investigation of this. She has also suggested an urgent referral to the IPCC of new information regarding alleged corruption at the time of the original police inquiry into the murder of Stephen Lawrence. I should also say that we on these Benches give full support for the efforts of the commissioner and commend his response to the recent allegations, including operational changes. There would, I think, be some real benefit if one saw Macpherson reconvened with the specific remit of investigating the corruption but also looking at the progress that the Met has made in tackling racism in the light of recent allegations and in the context of the stance that the commissioner has taken in recent weeks.
My Lords, I am grateful to the noble Lord for his support for the commissioner in these matters, and I am also grateful that he stressed that we have already had two reports—from Macpherson and the IPCC—both of which were unable to find any corruption in the original inquiry. However, obviously that does not mean that we should not look again at these matters and that is why in this Statement, made in response to a Question, we made it clear that initially the Met will hold an internal review. The noble Lord asked when it will conclude. Obviously I cannot give him an answer to that. If it is to be an internal review, it would not be appropriate for me, the Home Secretary or any other Home Office Minister to say how it should be done and when it should report or whether at this stage any assistance from HMIC might be appropriate, as the noble Lord suggested. As the Statement makes clear, my right honourable friend is treating these issues with the utmost seriousness and is currently considering her decision on these matters. It would be wrong for me to try to pre-empt that decision. That is why the Statement makes it clear that she offered to meet Doreen Lawrence to discuss these matters and that she will keep the House updated as and when appropriate.
The noble Lord then asked whether an independent inquiry was the only solution or whether we should have a continuation of Macpherson, and whether cost would influence us in these matters. I can give him an assurance that, within limits obviously—we do not want another Saville inquiry, which the noble Lord will remember cost something of the order of £100 million or £200 million—we will not let cash constrain or limit us too much.
The noble Lord went on to ask whether we would consider the terms of reference for any new inquiry. Again, until we decide whether we will have an inquiry, which is a decision for my right honourable friend, I cannot speculate on that on this occasion.
I have tried to answer every question that the noble Lord has put to me, but I have given him no answers whatever because this is not the moment or stage at which to do so. However, my right honourable friend is considering these matters and they are being taken very seriously indeed. She will consider them in due course.
My Lords, while one obviously regrets the need for such a Statement, I thank the Minister for giving it. Among one’s reactions, one can only imagine the frustrations of the many good officers who have been involved in this whole case, and, of course, the feelings of the Lawrence family. I also welcome the Home Secretary’s agreement to meet Mrs Lawrence. Does the Minister agree that the whole case confirms the wider importance of the involvement of, and information being given to, the family of victims as well as, when it is not a murder case, to the victims themselves? We have moved a long way, though there is further to go, from the days when the victim was little more than a witness. The role of the family is important in this day and age.
My Lords, I totally agree with my noble friend about understanding the importance of victims and their needs, which is something that I hope we always manage to do. I also endorse what she said about the frustration of what she described as the vast majority of officers. I should like to make it clear to the House at this stage that there is no evidence from the two inquiries we have had. So I should like to refer to the frustration of all officers, on the basis of the basic presumption in English law that all are innocent until shown to be otherwise. However, I accept what she means about the frustration of those who feel that they have been tarnished by the actions of what we hope is not even a tiny minority—we hope that it does not exist at all.
I also thank the Minister for his Statement. I have both a personal and a previous interest in this as I was Home Secretary when the IPCC established its inquiry into this question of corruption. As a former Home Secretary—other former Home Secretaries will no doubt verify this—I understand the difficult and dangerous job that the police do and the general debt of gratitude that we owe them for our security and safety. That is all the more reason why when there are allegations or prima facie indications of corruption within the police force it is not only a source of frustration, it tarnishes the reputation of British policing.
As the Minister will know, on this occasion not only is there recurrently a swirl of allegations around this case, but it is happening in the context, as my noble friend Lord Hunt said, of other allegations of racism. There is also at present an inquiry into at least allegations that the police did not judiciously and as assiduously as possible follow up investigations into wider issues connected with the press. That is all the more reason, in addition to the concerns of the family itself, that the Minister should be able to answer two questions. First, can he assure us that when the internal police inquiry is finished—and it is proper that the Home Secretary waits until that operation is finished, as it is an operational matter for the police—the Home Secretary or another government representative will report back to the House within a reasonable time on their considerations? Secondly, will the Government not rule out the possibility of conducting a public inquiry into this matter in order to allay the concerns and fears of the wider public should those remain following the internal police inquiry?
My Lords, I think that I made it pretty clear when repeating the Statement that my right honourable friend has made it quite clear that she is not ruling out an inquiry, and I repeat that assurance to the noble Lord. I also make it clear that she has promised to keep the House updated as a matter of course. I cannot promise precisely how and when she will do that or whether she will do something before the internal inquiry ends, but there might be other occasions. The precise timing and method by which she keeps the House updated obviously will be a matter for her.
I thank the noble Lord—who I think is the only former Home Secretary in the Chamber at the moment—for his intervention, and particularly for what he said about the police and the debt that we owe them. Let us hope that all these allegations prove to be unfounded as far as possible.
I lived with the Lawrence inquiry for something like 16 years, and I had the honour this year to be invited to give the first Stephen Lawrence inaugural lecture. Like many others, I pay tribute to the Lawrence family, and Doreen Lawrence in particular.
I suggest that the Home Secretary is taking a very sensible line on this matter. When I read the Independent a month or so ago regarding these allegations I was surprised at how many of those allegations I had heard before—how many had been in the investigation by the Guardian in 2002 and by the IPCC, and how many were known to those of us who had worked on the case. My concern now is to distinguish, as statisticians do, between coincidence and causation. The original Macpherson inquiry clearly did not say that there was no corruption, but it could not find any connection between corruption and the failures of the first investigation. I think that that is probably the situation that we still sit with.
I commend the idea that if an inquiry is necessary we should pursue it with absolute vigour. I also commend the view of the noble Lord, Lord Hunt, that perhaps the Metropolitan Police’s internal inquiry should be given the support of an independent position from HMIC. This case has so many layers that we should take it very slowly, as the Home Secretary suggests, and very carefully, before we rush to judgment.
I am very grateful for the intervention of the noble Lord, Lord Blair, who knows more than anyone about these issues. I am also very grateful for the support that he offers to the Home Secretary as regards taking this very carefully. I think that my right honourable friend will also note in particular his comments on the possible assistance that HMIC may wish to give to the Met in this instance.
My Lords, a recent After the Riots report from the Riots Communities and Victims Panel drew on statistics that one in three people think that the police are corrupt and an IPCC survey stated that 43 per cent of black people felt that a complaint against the police would not be dealt with impartially compared with 31 per cent generally. As much as one is encouraged by the comments of the new Metropolitan Police Commissioner and the new leadership at the IPCC, this is the level of public confidence in those bodies. Will the Minister consider what, in essence, I believe Doreen Lawrence is asking for, which is some level of independence and impartiality in this inquiry because, in effect, you have a police investigation into the police? I ask the Minister to comment on the converse side of that: in the current context, is there not a danger that there might be a temptation for the Metropolitan Police to be too hard on past conduct to allay present connected concerns about racism, which also would not be a just resolution to this matter? Would introducing independence and impartiality achieve the best way of establishing the truth of what has happened and would improving public confidence in the police be best for the police themselves and especially for the Lawrence family?
My Lords, on occasions, I have heard allegations that one in three people think that the police are corrupt, but other surveys seem to show relatively high levels of satisfaction with the police, both in the white community and in the BME community. It is much the same for both groups, although it varies once one gets into sub-groups. I note what my noble friend said about the need for a new independent inquiry. That has not been ruled out and it is a matter that my right honourable friend the Home Secretary will consider in due course. As the noble Lord, Lord Blair, put it, at the moment it is right for the Met to conduct and complete its internal review and for this to move on in the appropriate way. I think he was also right to stress the need not to rush on too fast in these matters.
My Lords, public confidence in the police is extremely important. If there is an underlying feeling that the police, either in these circumstances or in others when allegations have been made, have acted in a way that is not with full integrity and is corrupt, is the Home Office satisfied with the current arrangements within the police service for monitoring and reassuring the public about the integrity of officers? What steps does the Home Office envisage putting in place to ensure that priority is given to this work when the new regime of police and crime commissioners comes into force later this year?
My Lords, the noble Lord is absolutely right to talk about the importance of public confidence in the police. If we do not have public confidence in the police, we move to a rather different form of policing and one which neither he nor I would ever wish to see. I shall not go wider into the debate on police and crime commissioners at this stage as I appreciate that there are differences of view between the noble Lord and myself about them. We believe that they will bring greater accountability and that, in future, we shall have better policing as a result. As I made clear in the Statement, my right honourable friend takes all allegations of this sort extremely seriously. If any allegation, and particularly this one, is proved to be true, that can undermine public confidence in the police force which he and I and everyone else in the House considers so important.
Sunday Trading (London Olympic and Paralympic Games) Bill [HL]
My Lords, I am grateful for the opportunity to debate Sunday Trading in connection with the 2012 Olympic and Paralympic Games. The Games begin in just over three months and, on all sides of the House, we are determined to make a success of this once-in-a-lifetime opportunity. Both occasions will draw a significant number of visitors from home and abroad to the events themselves, to our tourist attractions, to our pubs and restaurants, and also to our shops.
This is an opportunity for our runners, swimmers and cyclists to showcase their talents. They will be seeking to emulate the achievements of the noble Baroness, Lady Grey-Thompson, and of the other distinguished Olympians and Paralympians in this House. It is also an occasion to show the rest of the world that the UK is open for business. We will be showcasing everything that the UK has to offer at a time when the world’s attention is on us, and that includes our retail sector. The Games offer a unique chance for everyone to sample the UK’s superb retail outlets. We have to do everything we can to fully exploit this unique opportunity in a way that fits with the schedule of the Games.
At present, however, the Sunday Trading Act 1994 limits the opening times on Sundays of certain shops with a relevant floor area of more than 3,000 square feet. In particular, the Act restricts them to opening on a Sunday for a maximum six-hour period between 10 am and 6 pm. Just imagine the situation: it is the evening of Sunday 5 August, at 10 pm, and Usain Bolt has just won the 100 metre final; or a week earlier, on Sunday 29 July, and Becky Adlington has just set a new record in the 400 metres freestyle. Thousands of spectators, pumped up with pride and with the Olympic spirit, stream out of the stadium to purchase their souvenirs or their celebratory Olympic mascot, only to find that a host of shops are in fact closed. Under the current rules, only shops of up to 3,000 square feet are open. One square foot over that and they are closed, unless of course they are in a specially exempt sector. Try explaining that to visitors from Germany, Russia, China, India or Japan, let alone the millions of British spectators at the Games, or think about the thousands of spectators at big screens up and down the country who will not be able to do their regular Sunday shopping before or after these events. That is why my right honourable friend the Chancellor of the Exchequer announced in the Budget that we will remove this restriction during the Olympic and Paralympic Games, starting on Sunday 22 July and concluding on 9 September.
The Bill that we are discussing today will give shops the opportunity, should they wish to take it, to open for longer to make the most of the economic benefits of the Games. It presents retailers with a chance to increase sales, shop workers with a chance to earn some extra money, consumers the flexibility to shop when they want to and it could help to increase temporary employment. It will be good for the Games and good for the economy in these challenging times.
I recognise that the use of the fast-track procedure for this Bill is not ideal. However, I believe that exceptional use of this procedure is justified given the imminence of the Games. We do not want hundreds of thousands of visitors to be welcomed to the UK with closed signs across our shopping centres, and not just here in London.
My Lords, many arrangements needed to be put in place for the Games. This is an important one, as are many others. We are putting this in place now and it also follows the introduction of a Bill dealing with Sunday trading in another place, which helped to prompt some of the thinking that this is an additional measure to round out what will be spectacularly successful Games with everything laid on. Yes, I have said that it is not ideal that we are dealing with this now. The Government believe that it is important and there is appropriate time for your Lordships to debate what is a relatively simple measure over two days this week.
The Government believe that the Bill should apply to all of England and Wales. The Games are for the whole of the UK, not just for London. Indeed, many of the Olympic and Paralympic events are based outside London. There will be football in Manchester, Newcastle and Coventry; sailing in Weymouth; mountain biking in Essex; rowing at Eton; and canoe slalom in Hertfordshire. In all those sports there will be events on Sundays, including Paralympic sailing and rowing.
Big screens will be put up in towns and cities around the country to enable people to get together to watch the Olympic and Paralympic Games. We want tourists and visitors to those events also to take advantage of longer shop opening hours in the vicinity of those locations. Of course, tourists may travel to other parts of the UK during the Games. We want families, whether they are in east London, the East Midlands or the north-east, to have the flexibility to plan their weekends around local and national events.
However, we recognise that the Bill causes concern for important groups. We have worked with the Opposition, unions and retailers to make sure that the concerns are addressed. In particular, there was concern that shop workers would not have sufficient time after Royal Assent to opt out of Sunday working in time for the start of the suspension period, should they wish to do so. This is because the usual notice period for opting out is three months, and there will be less than three months between Royal Assent in early May—subject of course to the agreement of your Lordships and of another place—and the start of the suspension of the restrictions on 22 July. It is of course important that shop workers in large shops that are affected by the temporary suspension in the Bill who wish to exercise their right to opt out of Sunday working during this period should be able to do so. Although they can give their opting-out notice before Royal Assent—and those who object to Sunday working will generally have opted out already—we recognise the concern that they should be able to do so after Royal Assent.
This right to opt out of Sunday working is already a unique employment protection that is not shared by almost any other sector of the working population, including, for example, the catering sector. The Bill will not diminish the rights that are set out in law. However, in recognition of this concern, we have brought forward an amendment to the Bill that temporarily reduces the three-month opting-out notice period to as little as two months for shop workers in large stores that are affected by the Bill. I will move that amendment in Committee on Thursday. On top of that, and very importantly, shortly after Royal Assent the Government will publish guidance on the implications of the Bill for employers and employees.
I am pleased to see that many large shops are taking a sensible attitude to working with their staff to take advantage of this opportunity. Morrisons, for example—one of the many stores that we spoke to—told us that it will speak to its employees so that they understand the proposals and any impact that they might have on their working hours. It also said that,
“whilst it represents an opportunity for them to earn extra money, it is also important that any of them who do not wish to work on Sundays will still have the right to opt-out”.
That is characteristic of the sensitive approach that large retail groups are taking.
Furthermore, the Government are very mindful that for many people Sunday has a particular religious significance as a day set aside for worship, and a day that is different from the rest of the week. The Government consulted with the church in advance of the Bill to ensure that it was recognised that this is emphatically a temporary measure for the period of the London Olympics and Paralympics only. I make it clear that this is not a test case or Trojan horse for a future permanent relaxation of the rules. The Bill is time-limited in its effect and contains a clear sunset clause. The suspension will be in effect from 22 July 2012, the Sunday before the opening ceremony of the London Olympics, to 9 September 2012, the date of the closing ceremony of the Paralympic Games. If the Government ever wanted to look at a permanent relaxation of the rules, new legislation would be required and consultation would be undertaken. Parliament would also have the opportunity fully to debate the issue. This Bill does not indicate any new government policy on the wider issue of Sunday trading restrictions.
I will also address the potential impact of the Bill on small shops, which has been highlighted. It is not clear whether, how, and to what extent small shops will be affected. However, both the Opposition and the Federation of Small Businesses have asked the Government to carry out an assessment of the impact of the temporary suspension. I assure the House that were the Government ever to decide to look at a permanent relaxation of Sunday trading restrictions, a full impact assessment would be carried out. As part of that, they would of course consider any evidence of the impact that the temporary suspension had had on relevant businesses, large and small.
We listened to the concerns raised about the Bill. We made every effort to consult and to work with a range of interested parties. We spoke to large businesses, including supermarkets and other retailers; to representative organisations such as the CBI, the British Retail Consortium and the British Council of Shopping Centres. We spoke to representatives of small businesses such as the Association of Convenience Stores, the National Federation of Retail Newsagents and the Federation of Small Businesses, which I mentioned. We also spoke to trade unions including USDAW and Unite. As I mentioned, we spoke to the Church of England, the Church in Wales and the Roman Catholic Church.
We also offered briefing sessions on the Bill to all Peers and Members of another place. We had numerous discussions and exchanges with the Opposition. They agreed several weeks ago to the use of the fast-track procedure for the Bill, subject to us considering employees’ notice periods for opting out of Sunday working. As I explained, I brought forward amendments that I believe will deal with precisely that point. Despite that, and despite further letters from me and my right honourable friend the Secretary of State for Business at the end of last week, we have not yet had confirmation from the Opposition that they will fully support the Bill. I hope that the noble Lord, Lord Davies of Oldham, is about to give us that confirmation. After all, it was the party opposite that secured the Olympics for the UK, and it was a great achievement for all concerned with the bid. It would be a huge shame if it was now not to support a temporary measure aimed at ensuring that the UK can make the most of the opportunity that the Games will give us. I hope that we can demonstrate to the world in a small way through this debate that we are pulling constructively together to put in place a further measure that will ensure the success of the Games.
As I said, the Games are an opportunity to showcase the UK’s skills, talents and businesses to the rest of the world. They will be an occasion for unparalleled entertainment, and we want to make sure that everyone can enjoy them to the full. Allowing extended Sunday trading for UK retailers will be a small change that could have a significant impact on the enjoyment of the Games, on our national economy and on our international image. It is one that has been done elsewhere on similar occasions. It may surprise noble Lords to learn that even Germany, with its notoriously tight restrictions on Sunday opening—far tighter than ours—eased its opening hours restrictions during the football World Cup in 2006 and then reimposed them. If Germany could do it, I am sure that we in the UK can and should. The Bill will give employees, consumers and businesses the opportunity fully to seize the vast opportunities that will come from this once-in-a-lifetime event. I commend the Bill to the House and beg to move.
My Lords, when I first saw this Bill, I found it quite perplexing. It raised a number of questions in my mind. The first was the question that the noble Lord, Lord Cormack, has already raised: why has it taken seven years since we were allocated the Olympics for someone, with fewer than 100 days to go to the Games, to realise that there is a bit of a problem? When talking to people, it has been suggested to me that it was only because the retailers on and adjacent to the Olympic park realised that they were not going to be able to be open to sell souvenirs on a Sunday. If that is indeed why this is coming forward at this time, someone in the Olympic organisation has been pretty incompetent. Even if one accepts, as seems perfectly reasonable, as the Minister said, that the shops on and adjacent to the park itself and other major Olympic venues should be open for the full duration of sessions of the Games, it seems a very big leap to get to the provisions of the Bill. Why should a B&Q in Carlisle or a Comet in Margate be able to stay open all hours on eight Sundays just because we want attendees at Olympic events to be able to buy a T-shirt on their way home?
It could be argued that actually it does not really matter and that this is a storm in a teacup. No one could argue that this is the most significant problem facing the nation, but it seems to me that it matters for two reasons. The first relates to the public debate about Sunday trading. The current Sunday trading laws are the product of years of debate, and I believe that they reflect a broadly settled view of an acceptable balance between the right to shop at virtually any time of the day or night and the recognition that Sunday, whether you are religious or not, Christian or not, is a separate and special day, and we should retain at least a vestige of that specialness because it benefits individuals and families. It is also the case that the restrictions on larger stores on Sundays go some way to halt the ever-onward march of the bigger boys against small shopkeepers. Therefore, I very much welcome the Minister’s assurance that this is not a Trojan horse, the thin end of the wedge, or whatever analogy one would like to use, to change the settled view of the country on Sunday trading.
The second reason why this is of greater significance is that shops are not machines. They need people to run them and, to put it mildly, the people who run them are less keen than the Government on this legislation. No doubt a number of noble Lords will have seen the representations from USDAW about the views of its members. Admittedly, they are USDAW members, not an absolute representation of everyone who works in a shop, but when you ask 20,000 shop workers what they think, and 78 per cent are opposed to longer working hours for the Olympics and 73 per cent believe that the Bill will lead to more pressure on them to work on Sundays against their will, it is a matter of concern.
I heard what the Minister said about Morrisons. In the nicest possible way, it would say that, wouldn’t it? I believe that many people who do not want to work additional hours on Sundays, whatever the rules about them being able to request an exemption, will be pressurised to work on Sundays and, in the current climate, will feel that they have to work on Sundays for longer hours against their will.
I very much welcome the Government’s planned amendments to make it easier for people to opt out if they do not want to continue working longer hours or to have longer hours on Sunday. I just question how effective in reality, on a shop-by-shop basis, that will be.
If I am pretty grumpy about the timing of the Bill and its geographic extent and implications for shop workers, what are the reasons why I might adopt a more balanced view and even support it? The first is that it is obvious that the Olympics are a unique event. They are a global festival. The eyes of the world are going to be on the UK and, as we have done with so many other things to do with the Olympics, whether it is the cost of the stadiums and ancillary facilities or accepting that we have special lanes for the cars of Olympics officials, we have accepted that you do not do the Olympics in a half-hearted way. That is the right approach to take. To a large extent, one is bound by the rules of the organisers, and in assessing how to run the Olympics one must have in one’s mind how other countries have done it and how we can be seen to do at least as well as many other countries that have had the Olympics. In many ways, the preparations for the Olympics in the UK have been extremely well organised, and while I am being grumpy about this issue, in many other respects the organisation, the planning and the construction work have been exemplary.
The other thing that flows from that is the Minister’s point about how other countries have approached Sunday trading. It is quite extraordinary that in Germany the rules on Sunday trading were relaxed to the extent they were because Germany has a much stronger view about Sundays and their role than we do. It is very interesting that the academic research done about the positive and negative impacts of the World Cup in Germany showed that, in aggregate, the economic impact was as near zero as made no difference, but the great impact was that people in Germany felt better about Germany to a quite considerable extent. That is clearly a very positive benefit. Despite meeting other grumpy people, who in some cases are grumpy because they do not want to be involved in the Games at all, I have no doubt that I, like most people in the country, will be absolutely captivated by them, and I suspect that on the middle Sunday of the Games, I will be glad that there are no people grumbling that the shops are shut.
My Lords, my only reservation about this Bill is the sunset clause. The relaxation, or normalisation, of Sunday shopping hours lasts only from 22 July to 9 September. Of course it is welcome, but now that we are debating it, one cannot help but notice what is inconsistent, protectionist and, indeed, sexist about our Sunday shopping laws. Is it not odd that the restrictions affect only large shops over 3,000 square feet in size? This immediately sweeps away any rational objection to Sunday trading. It cannot be argued that there should be time for families to be together and go to church when non-large shops are open.
Not only are small shops open, but we all expect to be served on Sunday by those who work and support, at varying hours and seamlessly, in TV, radio and cinemas. The clergy and, no doubt, their wives are busy on Sunday. The pubs are open. Concerts are held. Sport and health clubs go on. Hospitals and medical services are fully staffed. Would we not be shocked if we were told that all married people in hospital service were going home to feed their families? Care homes are, of course, open. Museums, the police and the fire service are working. Restaurants are open, no doubt selling pasties. Garages are open. Traffic wardens are at work. The AA and the RAC are out there working to rescue us. Transport is more or less fully functional. Flights are flying. Swimming pools are open, and so are gyms and hotels. The telephone, electricity and gas are working with people behind the scenes to support them. The stately homes are open, as are the markets and the funfairs. The newspapers are being printed and sold. Garden centres and farm shops are open. No doubt that list could be added to. There are no such restrictions in Scotland, hardly a less religious or family-oriented nation than England.
More and more people, especially women, are in employment and find it impossible to fit in all the chores in normal shopping hours during the week. Indeed, it is my view that banks, post offices, hairdressers and dry cleaners need to be open on Sundays. Since there is—and remains—no compulsion on a worker to work on Sunday and since we are a multicultural society, there is no threat to religious freedom here.
Family togetherness is threatened now by the opening of pubs and the availability of sports on Sunday. In any case, a favoured family togetherness activity is, precisely, shopping. If convenience stores are accepted, why is there no concern for the family togetherness of their owners? Is it perhaps protectionism at work? Noise concern is misplaced because there is noise already from the various activities that I have mentioned.
There is something—dare I say—a bit snobbish about controlling supermarkets and big stores when none of the other activities and outlets that I have mentioned is controlled. A YouGov poll in March this year revealed that 35 per cent of adults wanted a permanent relaxation of Sunday hours; 31 per cent supported the temporary relaxation that we are discussing this evening; only 27 per cent were opposed. Forty-six per cent of Scots supported permanent relaxation—and they should know because they already have it. The hours apply, as has been said, only to England and Wales. A OnePoll survey in February this year showed that 33 per cent want a permanent relaxation and 22 per cent want Sunday closure. A Sunday Telegraph poll in March of 1,000 adults showed that 37 per cent wanted permanent relaxation, and that 63 per cent of women did.
The existing six-hour allowance is a bit of a nuisance. A large shop is typically open only from, say, 10 am to 4 pm. There is not really enough time before lunch if you are preparing it, or indeed after lunch if it has been a good lunch, to get to the supermarket for the necessary hour and a half or two hours. The Government have shown great enthusiasm for the Mary Portas-led study of how to revive the high street. The high street is dead on a Sunday. If more shops were open there, they would rival the out-of-town shops.
I mentioned sexism. The sexism here is that objections to longer Sunday opening hours appear to come mostly—but not always—from men. They are quite happy to have the pub, sport and the garage on Sunday as usual, but I suppose they do not want their wives out when they might be required at home to make lunch. Cooking, visiting relatives, laundry and childcare are all taken for granted for very long hours on Sundays. Would it not be wonderful if all women downed tools at home on Sunday on the grounds that it was a day of rest? What working women want, quite apart from the Olympics period, is a day when they can catch up with the tasks impossible to perform during the working week—number one: shopping, preferably with another family member.
So here’s to the success of the longer Sunday opening hours—not only good for the Olympics but good for family activities and very good for women.
My Lords, it will not surprise the House that the Church of England, like most Christian churches, is no great enthusiast for Sunday training, notwithstanding the most excellent speech that we have heard from across the Chamber. Just as the Olympic ideals promote the principle that the Olympic Games are about much more than the games themselves, so the way the working week is ordered says some powerful things about the priorities of a flourishing society.
There is a danger of contradictory messages here, of the desire to create a better and more wholesome society and having the time to do so, and finding a natural space within a week in which that can be encouraged somewhat further. I stress to your Lordships that the church’s reluctance to enthuse about Sunday trading is not about its own institutional self-interest. Our churches offer ministry seven days a week, every week of the year, but Sunday remains the one day of the week when most people, by and large, are able to share common time for their own pursuits. The work/life balance is not merely an individual concern, where the life part of the equation cannot be shared with a wider spectrum of other people. Our whole society, I believe, begins to break down if we do not have something that reflects that value.
The number of people who can share a common day of leisure forms a critical mass below which many of our voluntary institutions cannot survive. Too often in debates on Sunday trading we have heard about the virtues of shopping as a shared leisure activity. But for people to shop, others must work. Very significant numbers of people, including high proportions of women and men with family responsibilities, are employed in retailing and distribution, and a great many other people in other walks of life are obliged to work when the shops are open. We are all consumers, but if Sunday trading was to become an unfettered norm, we would pretty soon all be workers too, and the rich associational life of our nation—its charities, amateur sports, extended family life and, yes, its churches—which is already desperately fragile, would crumble.
I cannot warmly commend this Bill, although I suspect it will pass. None the less, I thank the Ministers concerned for their careful consultation with my colleagues at Church House, and for their assurances that this Bill is prompted solely by the unique circumstances surrounding the Olympic Games, which will have an impact on many of our communities for the duration of the events—although I beg leave to doubt that the traders of Shepton Mallet will see much change in their normal footfall.
I am grateful that the Bill contains an unequivocal sunset clause, but no Government can have complete control over the way in which events may be used to support other arguments in the future. I am grateful to the Minister for his assurances that this is no stalking-horse for future deregulation of shopping hours, and I trust that this Bill will do precisely what it says on the tin.
However, I give notice that the church will be on guard against arguments from any quarter that try to insinuate that this Olympic experiment has been so successful that it must be extended in the future. An exceptional measure for an exceptional period in time is not replicable and it will give us no worthwhile economic indicators about deregulation in general. In the past, the calls for greater deregulation have not come from across the whole retail industry but from the chains, which saw an opportunity to steal a march on their competitors. I gather that the present proposal is not universally welcomed across the industry and that many stores will not be availing themselves of its provisions. However, competitive pressure has already forced Sunday opening on some firms that did not want to open on Sundays and we must be wary lest this permissive Bill becomes a covert lever for wider deregulation later.
I remind your Lordships, as the noble Lord, Lord Newby, has also done, of the rights of shop workers to opt out of Sunday working if they so wish. These rights were part of the reason the Sunday Trading Act 1994 finally made it on to the statute book after earlier attempts at deregulation by Mrs Thatcher’s Government had been roundly defeated. They were a crucial concession and yet they have not proved to be all that robust in practice. I am glad that we shall see an amendment to this Bill that regularises the opt-out for staff, but it must be a robust amendment, which does what it says on the tin. If the Olympic period is such an exceptional opportunity for British business, it is only right that those whose labour makes that possible—on all days of the week—are properly protected.
It would be extremely churlish of me not to conclude by saying that I believe and hope that the Olympic Games will be a resounding success for our country, and that if this Bill is to be passed, it will be limited to simply that period of time.
Fuss, fuss, fuss, my Lords. I cannot for the life of me understand why a small Bill covering a very short period of time should be used by USDAW in this unnecessary and provocative way. Incidentally, I entirely agree with the right reverend Prelate that this Bill should never be used to increase Sunday trading hours. I have been associated with the opening and closing hours of shops since the Shops Bill in 1986, continuing with the Sunday Trading Bill in 1993. Not many of us are left, although it is worth mentioning that my main opponent, the noble Lord, Lord Graham of Edmonton, who at that time I regarded as the enemy but whom I now think of as a good old boy, is still around. I am very sorry that the noble Baroness, Lady Turner, is not speaking today. As far as I know, she is the only other remaining noble Lord from that time.
The right reverend Prelate the Bishop of Bath and Wells may be interested, in case he missed this information in 1994, that the then right reverend Prelate the Bishop of Norwich in debate in this House stated that,
“in the two years since Sunday trading has, quite illegally, become common, church attendance has risen”.—[Official Report, 29/3/94; col. 1011.]
The argument of the noble Lord, Lord Graham, against Sunday trading was somewhat dented by the fact that I was able to tell him that the Co-op in Scotland was already trading on Sundays. Indeed, as has been mentioned, Sunday trading in Scotland has never been enormously prolific but always legal. In 1994, I said that I was grateful to Lord Harris of High Cross for saying that I was the grandmother of Sunday trading. As such and so many years later, I wish this Bill God-speed.
My Lords, it is a great privilege to speak after the grandmother of Sunday trading, having survived so long since 1994. It is not without reason that there was a long debate about this subject prior to 1994 in which the grandmother played a very important part. However, when it came to debating the Bill in Parliament, Divisions arose. They were on a free vote because matters of conscience were thought to be involved in the subject matter of the Bill. In due course, these reasons were elaborated. The principal religious reason was the basis for a weekly day of rest, which was clearly set out in an article in the Times not long ago by our colleague, the noble Lord, Lord Sacks, the Chief Rabbi. Of course, religious days of rest are not exclusively Christian by any means. Other religions that embrace such days of rest also have them as a precious part of their heritage. In the Christian tradition, Sunday of course is referred to in connection with the commemoration of the resurrection of our Lord.
Since 1994, Governments have raised the question of whether the restrictions in the 1994 Act should be altered. The Labour Government consulted on this matter and I remember Alistair Darling saying that it had found no appetite for change. This Government have also consulted on at least two occasions—first, in the retail review and, secondly, in the red tape review. On both occasions it appears that no appetite for change was revealed. On the great deliberation with which the Sunday trading provisions had been reached in Parliament, I must say that I found it slightly insensitive that they should have been regarded as red tape.
As the right reverend Prelate has mentioned, other aspects include family life. There are few occasions in the nature of our routines when families have the freedom to get together. On the whole, Sunday is certainly the day on which that is more possible than on most other days. Again, as the right reverend Prelate has said, that is a very important part of the structure of our society. I for one would not wish to have anything to do with arrangements that make that more difficult to carry on.
As has been said, the opening of large shops is what, after great deliberation, was prohibited or restricted by the 1994 Act. It was on the basis that small shops should be allowed to carry on. That has been the balance of our Sundays ever since.
Many people will come from countries that have their own restrictions on Sunday trading. Indeed, as the Minister said, Germany has quite strict restrictions on Sunday trading. It did, of course, relax them—it was not said exactly to what extent—in connection with the World Cup. That is a factor to be taken into account. Many people will be coming from other countries to our country for the Olympics. We hope that they will come in great numbers and that the whole event will be a complete success. Those people—some with restrictions of their own, some without—will see the normal balance of life still flourishing all the way through the Olympics.
I join the noble Lord, Lord Newby, and others in saying that the general arrangements for the Olympics have been extremely good. Some of the arrangements will still be tested—the traffic arrangements, in particular, will be tested very severely, I have no doubt—but the organisation that has been responsible for planning the Olympics has done so extremely well and I hope that the event will reward it through the extent of its success.
The idea that this should happen for eight Sundays has only recently been raised. As my noble friend Lord Cormack said during the Minister’s opening address, it is not as though the date of the Olympics has been unknown until the Budget. It reminds me of the story of the man who saw a boy running for the train. He said, “You are running fast enough now, but did you start early enough?”. We seem to have left that part out of the equation. This matter requires sensitive treatment in the ways of time as well as in the other ways to which the Minister referred. The Bill as introduced has now shown itself as requiring amendment and the Government propose to amend it.
As to the issue of workers in large shops, my noble friend Lord Newby has given the figures. One of the disturbing figures from the survey of 20,000 workers is that many of those who do not wish to work on Sunday feel pressured to do so and will feel increased pressure on the Sundays of the Olympics. After all, the family is an important unit in relation to the Olympics as well as to every other successful event in a similar situation.
The question of what good, if any, this will be for the economy is a matter of speculation. Your Lordships will have no doubt carefully studied the Explanatory Notes that have been printed on the Bill. They tell us that an impact assessment is not necessary. Notwithstanding that, my noble friend Lady Wilcox’s department has in fact carried one out and the report is at appendix C. Your Lordships might be surprised that it is hard to find appendix A and appendix B, but it is even harder to find appendix C because it is not there at all. So the impact assessment from the department is, so far, private.
The idea that the opening of big shops will be a signal that Britain is open for business strikes me as bizarre because it is a temporary measure. After the eight Sundays have passed, will that be a signal that Britain is shut for business? I certainly hope not. We need all the business that we can get, but that does not mean that we need to destroy or damage our own way of life in order to achieve it.
The procedure used in connection with the Bill distresses me considerably. It is a pity that we should have to look at this matter in a rushed way on this occasion. The workers in the industry, as well as everyone else, have to be taken into account, and I strongly feel that the letter that we have received from the union that represents the principal number of workers in the industry has to be taken into account. As I say, I am distressed by the way this has happened. Deep considerations underlie the arrangements that we have had in this country for some time—when I say “this country”, I mean England and Wales—and I am distressed that these arrangements should not be on display for people who come to visit us for the Olympics.
Notwithstanding that, I hope the Olympics will be very successful. However, I am not sure that this Bill will contribute to that particularly.
My Lords, it might help if I just explain that I think in Recesses some things do not get checked as carefully as they would normally, and there were no annexes A and B. Indeed, the advice was that the economic impact is very difficult to assess because of the nature of this Bill and the nature of the assessment that could reasonably be made. However, I am happy to make sure that we publish the impact assessment and make it available tomorrow ahead of the Committee stage. I stress to noble Lords that it does not strictly need to have been published, but in the name of full disclosure of information ahead of further consideration of the Bill, I am happy to make sure that it is available to noble Lords ahead of Committee.