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Grand Committee

Volume 737: debated on Wednesday 13 June 2012

Grand Committee

Wednesday, 13 June 2012.

Arrangement of Business

Announcement

My Lords, welcome to this session of the Grand Committee. It is possible that there will be a Division in the House. If there is, we shall of course adjourn for 10 minutes.

Health Research Authority (Amendment) Regulations 2012

Motion to Take Note

Moved by

That the Grand Committee takes note of the Health Research Authority (Amendment) Regulations 2012 (SI 2012/1108).

My Lords, I should start by declaring interests as the chair of a foundation trust, as a consultant in the health service and as a trainer with Cumberlege Connections Ltd.

As well as moving this Motion, I shall also speak to my second Motion, which also relates to the Health Research Authority.

On the face of it, the regulations and order are unexceptionable and they passed through the Secondary Legislation Scrutiny Committee without comment. They provide for the board to be reconstituted with independent non-executives and an independent chair.

The responsibility that falls to the members of the authority is indeed weighty. The noble Earl, Lord Howe, has a long-standing record of commitment to health research, which is considerably reassuring to all those with an interest in this area. I have no doubt at all that health research is as important to the economy of this country as it is to the quality of patient experience and outcome. Indeed, embraced with the high quality of life sciences in the UK, it is crucial that we prioritise health research to the fullest extent possible. Certainly my experience in chairing the Pharmaceutical Industry Competitiveness Task Force some years ago convinced me of the essential link between the health of the person, the health of the NHS and the health of the economy, and that is why I think it is so important for the National Health Service to support health research. Our debates during the passage of the Health and Social Care Bill indicated the strength of support for research and for the Secretary of State’s responsibility for it to Parliament.

The HRA has been set up to protect and promote the interests of patients and the public in health research. The aim is to lead to the creation of a unified approval process and to promote consistent and proportionate standards of compliance and inspection. The HRA has a number of functions, including being the appointing authority for research ethics committees in England, and it provides the National Research Ethics Service. Also, by agreement with the devolved Administrations, it supports a UK-wide system for ethical review in the UK. It has an important ongoing programme of work and it also provides the integrated research application system through which applications for regulatory and governance approvals of health research are made in the UK. It also agrees plans to provide a platform for the unified approval process from the IRAS, as it is known.

I turn to the details of the regulations and order. I ask the noble Earl whether it is intended that the non-executives should be a majority on the board. I should also like to ask him about the Government’s intention regarding the publication of draft clauses to establish the HRA as a non-departmental public body. I do not know whether he can give any indication at all about the timing of and commitment to the eventual legislation that has been promised. Will he also comment on the Government’s approach to, and policies for, enhancing health research in the UK?

How are we to ensure that we make the most of the excellence of our life sciences? Can the Minister give some reassurance about the priority to be given to research by the NHS Commissioning Board? Does he believe that academic medicine is given sufficient support by the National Health Service? Is he confident that the HRA has the capacity to streamline research application processes? That point has been made to me by a number of organisations that have been interested in the order and in our debate.

The noble Earl will be aware of the continuous debate over probably the past decade about the bureaucracy involved in the application processes and a feeling that the UK has lost its competitive edge because of that. I know that the previous Government and this one have continued to do work in this area and I wonder whether he can report any further progress. I should like him to comment on whether he believes that the UK will be able to maintain a competitive edge in research in the years to come and whether he believes that the intention is to maximise large-scale patient recruitment.

Alongside that is the importance of site selection and the question of whether it is going to be easier for applicants in the future to conduct multi-centre research. My understanding is that one of the problems is that applications for multi-centre research have to go to the individual institutions concerned, which can sometimes hold up approval. My understanding is that there is going to be a concerted attempt to speed up that process. Again, if the noble Earl could give some comfort there, it would be much appreciated.

It is also important that the National Health Service recognises the importance of its role in supporting, developing and encouraging research. That is partly to do with the appointment of academic clinicians within the National Health Service, partly about a willingness to accept that it is important for clinicians to take part in research and also about the importance of ensuring that individual bodies in the NHS have good processes for offering opportunities for clinical trials. Any positive messages that the noble Earl could give on that would be appreciated.

On the private sector, if the Government are to develop a market in the NHS, what obligation will there be on private companies to maintain and support research if they win contracts to provide services to patients? I attended the launch of the Clinical Practice Research Datalink, at which the noble Earl spoke and which I thought was very impressive. How does he think this will link to the work of the Health Research Authority? I was very taken with the potential to use such a wide database of anonymised information, which the NHS can provide. The issue that arose from that debate and that launch is whether we are really able to make the most of the opportunity that is being given.

My final point brings me to value-based pricing. My understanding is that the Government still intend to introduce value-based pricing. I express again to the noble Earl my reservations about the impact of that on flexibility within the pharmaceutical industry and the pricing structure, which might then have an impact on their willingness to invest in R&D in this country. The Department of Health, I understand, is still a sponsor of the pharmaceutical industry. It is, of course, always torn; there is always a tension between the cost of drugs to the NHS and sponsorship of the industry. I hope that we are not going to see short-term decisions taken in relation to the cost of drugs at the expense of long-term investment in R&D in this country. Value-based pricing is a quite complex and technical subject, but it is important that there is transparency about the decisions that lie behind a move to value-based pricing and its likely impact on the UK as a whole, and not just the cost of drugs to the NHS. I beg to move.

My Lords, the development of the Health Research Authority has been extremely welcome and the research community is very grateful that we have it; it has a number of very important roles in relation to the research ethics committees.

My questions relate to the extension of those functions as it plays out, because, of course, the Academy of Medical Sciences report expected this to apply to rather more than just the ethics committee; they relate to what is planned for it as it moves along. In particular, when is it likely that the ethical approval for the use of patient data—not anonymised data but unanonymised data, if there is such a word—which are currently with the Secretary of State, will come under the jurisdiction of the new authority? My noble friend Lord Hunt referred to the major hurdle that is put in the way of research and which takes time: the problem of getting approval from several health authorities or trusts. At that level, it is unclear whether the Health Research Authority will have any power over that process. I would like to hear more about what is intended for the future, now that we have it set up. I know that there are intentions and I would like to hear more about them.

My Lords, my apologies to the Minister. I was not quick enough to get up. First, I welcome this order, which establishes the Health Research Authority. Like the noble Lords who have already spoken, I ask when we will have further legislation defining all the roles of the Health Research Authority. Can the noble Earl also confirm that this new authority will be required to give ethical approval to all research, no matter how it was funded? I am particularly keen to find out whether research that might be funded by individual trusts or, for that matter, by the department will also come under the ethical scrutiny of the Health Research Authority. Will the authority at this point be promoting research from the NHS, as the new NHS Act requires the foundation trusts and the commissioners to do?

My Lords, I start by thanking the noble Lord, Lord Hunt of Kings Heath, for setting out so helpfully the intended roles for the Health Research Authority, which, I think by common consent, is a very positive move forward. It has got off to a solid start. I am grateful to him as well for giving us the opportunity to debate these instruments. They are the second of three steps in the establishment of the Health Research Authority. They amend instruments, laid last year, that established the Health Research Authority in December 2011 as a special health authority with an executive board. That was the first step in fulfilling the Government’s commitment in the March 2011 Plan for Growth to create a new body to streamline the approvals for health research, following an independent review of health research regulation and governance by the Academy of Medical Sciences.

The Health Research Authority was initially constituted with an executive-only board to allow it to begin work quickly on its important agenda. We were able to make suitable interim ex officio appointments from among the initial staff who transferred in.

The instruments that we are debating today provide for the Health Research Authority to have a chair and non-officer members as well, so that it has greater independence and credibility to perform its functions for the purpose of protecting and promoting the interests of patients and the public in health research. That is the second step.

From this point, the Health Research Authority will have stronger leadership, governance and oversight to steer its strategy and help it to fulfil its purpose of protecting and promoting patient and public interests, so that it can take forward work that calls for leadership and governance. That will involve an independent chair and non-executive directors if it is to command patient and public confidence in its performance of that work—as it must, in particular, in its forthcoming engagement strategy, including the important component of public and patient involvement.

The third step is to establish the Health Research Authority as an executive, non-departmental public body, to give it even greater independence and stability. The noble Lord, Lord Hunt, asked me about that. We will publish clauses to this end for pre-legislative scrutiny as part of the draft care and support Bill announced in the Queen’s Speech last month. I anticipate that those clauses will be published later this year. In the mean time, the Health Research Authority already has substantive functions as a special health authority, in addition to activities related to the National Research Ethics Service. They cover, in particular, co-operating with a range of other bodies to create a unified approvals process for health research and to promote consistent, proportionate standards for compliance and inspection.

The Health Research Authority’s role in rationalising processes and standards for health research approvals is intended to help make decisions about research proposals more timely and reduce the regulatory burden on research-active businesses, universities and the NHS. That will improve the cost-effectiveness of delivering health research in this country, increasing opportunities for patients here to benefit.

Noble Lords covered a good many issues, and I shall attempt to address as many as I can now; those that I cannot, I will happily follow up in writing. It is worth my setting out first how I see the potential of the HRA to improve the research environment generally—a theme rightly emphasised by the noble Lord, Lord Hunt. Alongside continuing to provide the National Research Ethics Service, the HRA has been taking forward work on its other functions. It recently published its business plan for 2012-13, setting out its business objectives and key performance indicators for the year.

In addition to its business plan, the HRA has also published the planned deliverables for its programme of work to provide a unified approval process for research and to promote proportionate standards for compliance and inspection. That sets out a number of deliverables for this summer, with further milestones for winter 2012—for example, to provide a single application package through the integrated research application system, the IRAS—with one set of declarations. The plan also identifies a number of areas for immediate attention to define deliverables, and makes a number of recommendations for future consideration.

Yesterday, the HRA hosted an event announcing its plans for the electronic submission of applications to take forward the IRAS to develop it as the platform for creating a unified approval process. In addition to the responsibilities that the HRA already has, we intend to give it the function of approving the processing of patient information and research purposes by April 2013—a subject to which the noble Lord, Lord Turnberg, alluded. That will allow for a managed transition between now and next April, when the National Information Governance Board—the NIGB—is abolished.

Noble Lords will know that the NIGB currently provides advice to the Secretary of State on the appropriate use, sharing and protection of patient and service user information. In particular, it has set up an ethics and confidentiality committee for the purpose of its advice on the processing of patient information, including confidential patient information under the Health Service (Control of Patient Information) Regulations 2002. Confidential patient information may be processed under those regulations only where the processing has been approved by the Secretary of State and, in the case of medical research, also by a research ethics committee. It is intended that the HRA will take on the Secretary of State’s role in approving the processing of such information for research by next year as part of its role in streamlining approvals for health research.

On its establishment in December, the HRA brought together functions relating to research ethics committees previously performed by the Secretary of State, the National Patient Safety Agency and strategic health authorities. The authority has substantive functions. As I have said, it will combine and streamline approvals for health research. It operates a single system for researchers to apply for approval to research ethics committees and trusts, the MHRA, the National Information Governance Board and the Administration of Radioactive Substances Advisory Committee. By April 2013, as I have said, it will bring in the functions that are currently performed by the Secretary of State and advice from the NIGB.

In general, we see the authority as having necessarily to work closely with all the bodies that I have referred to, as well as bodies such as the Care Quality Commission, the Human Tissue Authority, the National Institute for Health Research, which is playing its own part in streamlining research in the NHS, the NHS Information Centre and the NHS Commissioning Board, with a view to co-ordinating relevant functions, standards and processes. Where primary legislation is required to consolidate functions and develop the role of the HRA, we intend to introduce it at the earliest opportunity following pre-legislative scrutiny of the draft provisions, as I have referred to.

The noble Lord, Lord Hunt, asked me whether we intend there to be a majority of non-execs on the board. We do; the board will have one non-executive chair, whom we have just appointed, two to three other non-executive members and two to three executive members, including the chief executive. The chair has the casting vote if the executive and the non-executive membership is equal.

The noble Lord also asked me about the priority given to research by the NHS Commissioning Board, and I agree this is a very important area for the board. The document published by Sir David Nicholson in his role as chief executive designate of the board, Developing the NHS Commissioning Board, sets out the initial proposals for the operation and organisation of the board. It states explicitly that one of the board’s most important functions will be to support,

“a culture which promotes research and innovation”.

With regard to the board’s structure, the document proposes that tasks should be organised at national level within six broad functional portfolios, each organised under a director reporting to the board’s chief executive. It proposes that the commissioning development portfolio would include,

“the development of commissioning tools and commissioning guidance ensuring that patient care is commissioned so as to support the conduct of research in the NHS”.

That is a very clear statement of intent, and I am advised that work is proceeding along those lines.

The noble Lord, Lord Hunt, also asked me about the HRA’s capacity to streamline bureaucracy generally. I have referred to a number of ways in which it will do that, but it is interesting to note that the devolved Administrations wish the Health Research Authority to take on some functions on their behalf under the Medicines for Human Use (Clinical Trials) Regulations 2004, and to take on some functions of the devolved Administrations in relation to their research ethics committees. Arrangements to this effect have been made under various statutory powers between the authority and the devolved Administrations.

The Department of Health has asked the Social Care Institute for Excellence to be the appointing authority for the national Social Care Research Ethics Committee. Many studies deal with both health and social care, so it makes sense for the systems for health and social care to remain consistent. We expect the SCIE to continue to work with—and the national Social Care Research Ethics Committee to continue to operate in a way that fits with—the system that the Health Research Authority is operating.

The noble Lord, Lord Hunt, asked me a series of questions about the CPRD, which is a major step forward in making this country uniquely attractive as a base for research, and about its link to the HRA. On that theme and on a number of others that bear upon making the UK the base of choice for inward investors in health research, I will, if he will allow me, write him a letter, which I will copy to noble Lords present.

On value-based pricing, about which I will also write, there is no evidence that the pricing of medicines in this country acts as an influence one way or the other on decisions whether to invest in this country for research purposes. It is clear that pharmaceutical companies look for the speedy uptake of innovative treatments when assessing the UK as a worthwhile place in which to launch products, but that is a rather different issue from the research investment question. However, one of the driving philosophies behind value-based pricing is to ensure that patients gain access to innovative treatments on the NHS. That means that we want pharmaceutical companies to appreciate that innovation matters to us, to the economy and to patients.

To that extent, we have always said that we wish to encourage pharmaceutical companies to invest in areas of research that address unmet need and therapeutic benefit for patients and that, if they do so, they can expect to be fairly rewarded for it. A price that a medicine commands in the National Health Service will reflect the value that it brings to patients and to wider society. I believe that that general concept is welcomed by industry. There is much to do to work out the detail of the system, but if we can get it right, it is a win-win for the NHS and the industry.

I agree with a great deal of what the noble Lord, Lord Hunt, said about the need to tackle the loss of competitive edge that the UK has undoubtedly suffered during the past few years in attracting inward investment for research. We are starting to reverse that. If nothing else, industry appreciates that the Government are serious about reversing it and that we have taken a number of steps—not only through setting up the HRA but through our report, Innovation, Health and Wealth, and the growth strategy generally—to ensure that we turn the tide. We are working with the industry, as the noble Lord, Lord Hunt, successfully did when he was in office, to make sure that there are good channels of communication and proper understanding between government and industry on what the problems are.

I share his view that academic medicine is a key part of this. We must incentivise academic medicine properly and ensure that we have sufficient numbers to provide the clinical leadership in research that we so badly need. However, we must not forget that in this country we are very fortunate in having a number of assets on which we can capitalise, including our excellent universities and a very high standard of scientific education. We have the charitable sector as well as industry and multifunded research at all levels—from basic research to translational research to clinical research—in a way that few other countries have. We also have the advantage of the National Health Service as a platform for those trials.

I think that I have covered most of what I am able to cover today. Perhaps I may say to the noble Lord, Lord Hunt, who raised the question of maximising patient recruitment, that the clinical research network of the National Institute for Health Research is very much focused on increasing recruitment to high-quality research. For instance, one in three cancer patients now participates in a clinical trial, which is a considerable achievement compared to a few years ago.

Finally, the noble Lord, Lord Patel, asked me whether the HRA would deal with all ethical approvals however the research is funded. Yes, it will. Where research ethics committee approval is required, the HRA will provide for those committees, irrespective of the funder of the research.

I hope that those remarks are helpful and serve to put these statutory instruments into their proper context. The purpose of the HRA is to protect and to promote the interests of patients and the public in health research. It protects patients from unethical research while enabling them to benefit from participating in research by simplifying the processes around it. I hope I have reassured noble Lords that the amendment order and regulations that we have debated make a significant contribution to the fulfilment of this purpose. They provide for the HRA to have a non-executive majority board that can credibly balance the protection of patient and public interests with their promotion. I commend these instruments to the Committee.

My Lords, the conversation today has been limited to medical and health research. During the passage of the Bill, we had long debates about multiprofessional involvement being included in the research. I am very concerned that the conversation has been very much geared towards medical and health research and has not mentioned the fact that there are healthcare professionals other than those involved with medicine.

The noble Baroness is right to draw attention to that omission in my coverage of these instruments. Of course, she is right that there are many different kinds of research that will involve the HRA in one form or another. I have emphasised only the medical and pharmaceutical elements of the HRA’s remit, because these matters were high up on the agenda of the Academy of Medical Sciences when it produced its report in the context of UK plc.

However, the noble Baroness should bear in mind my remarks about joining up health research and social care research. The HRA will co-operate with various bodies for the purposes of creating a unified approval process, not just for health research but to promote a consistent national system for research governance generally. Where this includes a social care or nursing element, the HRA will work closely with the relevant bodies to promote processes and standards that are consistent with the NHS and social care elements.

My Lords, I thank the Minister for his positive response. I also thank the noble Baroness, Lady Emerton, the noble Lord, Lord Patel, and my noble friend Lord Turnberg for taking part in this interesting debate. I believe that the appointment and development of the HRA is a positive move forward, and of course we support the appointment of a majority of non-execs. The Minister mentioned the appointment of a chair. I do not know whether that is yet in the public domain or whether he has the name to hand, but it would be helpful to know.

I welcome the publication of draft clauses on the establishment of the HRA as a non-departmental public body in due course.

My Lords, I am happy to inform the Committee, for noble Lords who were unaware of it, that Professor Jonathan Montgomery was appointed chair of the HRA on 11 June, that interviews for non-exec directors will be held on Friday, that interviews for the substantive chief executive were held on 11 June, and that the other executive members will be appointed by the rest of the new board as soon as possible.

My Lords, that is very helpful. On the question of the reduction of the regulatory burden and the Minister’s reference to improving the cost-effectiveness of the whole process of approvals, that of course is welcome so long as patient consent and confidentiality are maintained and research is ethical. There is common agreement on that. I welcome his commitment to streamlining the approach in general for health research. I also welcome the decision by the devolved Administrations to encompass some of the work within the HRA, particularly the work of research ethics committees, which I assume will mean that cross-UK multi-centre trials will be subject to the streamlined process that the Minister has referred to.

On the role of the National Health Service in encouraging research, I take the noble Lord’s point about the NHS Commissioning Board’s statement of intent. I have no doubt that at that level Sir David and his colleagues will wish to support research. I am more concerned about the individual organisations in the NHS. I do not think that all NHS bodies quite realise the importance of research not only to patients but to UK plc. Anything that can be done to encourage the NHS to recognise that importance is vital. Sometimes that might mean the practicalities of recognising that their clinicians need time to take part in research activities. At a time when the NHS is having to find large efficiency savings, that may not always be welcome to chief execs of NHS organisations or to clinical commissioning groups. None the less, it would be disastrous if practising clinicians in particular were dissuaded or prevented from taking part in research activities. Again, messages on that matter from Ministers and the NHS Commissioning Board are vital.

Academic health science networks, particularly those outside London, are an important development. They will, I am sure, enhance research efforts. Again, the more support that can be given to them, the better. However, it is important that those networks focus on research—there has been some indication that almost everything about their intent is being put into the bath. One needs to come back to the fact that they are about enhancing our research capacity in the interests of the quality of patient services.

I agree with the Minister that the CPRD is a major step forward. We are uniquely attractive, but can we translate that into research money coming to the UK for what undoubtedly can be offered?

The Minister knows that I have always been sceptical about value-based pricing. He said that there was much to do. I urge him and his department to take their time on this matter. The PPRS allows industry flexibility to set the price within a profits cap. Although the UK is not a great purchaser of branded pharmaceuticals globally, the fact that it is able to set a price has an influence on price throughout Europe. My concern is that taking that away might have an impact on industry’s willingness to invest in R&D in this country, given that we so are slow to take up innovative new medicines. We developed NICE to encourage the health service to do that, and it is still a struggle because unfortunately the default position of the NHS and of clinicians is to be slow to invest in and agree to innovation.

If value-based pricing can encourage the NHS towards innovation in the way that the Minister suggests, that is of course to be welcomed. However, looking more generally at the impact of research, we do not seem yet to have a philosophy that goes hard on innovation where it can definitely improve the quality and outcome of patient care. That is to do partly with the conservative nature of clinicians in the UK and partly, probably, with the mindset of finance directors in the NHS. I know that the noble Earl is the Minister for Innovation and that he is wrestling with those issues. It is very important when we look at both research and value-based pricing that we encourage the NHS as both commissioner and provider to do everything that it can to take advantage of the huge amount of innovation that takes place in this country on the back of a fantastic resource in life sciences, in our universities and in the medical devices industry. Overall, we have had a very good debate and I am glad to support these statutory instruments.

Motion agreed.

Health Research Authority (Establishment and Constitution) Amendment Order 2012

Motion to Take Note

Moved by

That the Grand Committee takes note of the Health Research Authority (Establishment and Constitution) Amendment Order 2012 (SI 2012/1109).

Motion agreed.

Gambling Act 2005 (Amendment of Schedule 6) Order 2012

Considered in Grand Committee

Moved by

That the Grand Committee do report to the House that it has considered the Gambling Act 2005 (Amendment of Schedule 6) Order 2012.

Relevant documents: 1st Report from the Joint Committee on Statutory Instruments.

My Lords, the legislation that we are considering here this afternoon is concerned with Schedule 6 to the Gambling Act 2005, which lists the sports governing bodies and regulatory bodies with which the Gambling Commission may exchange information. The order under scrutiny is intended, first, to add a number of new organisations to the list so as to widen the range of sports covered, and, secondly, to update the list.

The British general public is well accustomed to betting on sport. Sophisticated legal betting markets currently operate through traditional outlets such as bookmakers and betting shops, and by remote means through the internet and by telephone. The main responsibility for the collection and collation of intelligence relating to suspicious sports betting rests with the Gambling Commission, specifically through its sports betting intelligence unit. The commission undertakes investigations into suspected criminal activity in its own right and in collaboration with the police, and it has a range of investigative powers to enable this work.

Exchange of information between the Gambling Commission and sports governing bodies is essential to the fight against sports betting corruption, which is harmful both to sport itself and to the associated sports and betting markets, as it allows suspicious betting patterns to be identified and dealt with in order to avoid or prevent match fixing. The mechanism for this is provided by the Gambling Act 2005, where Schedule 6 lists a range of sports governing bodies and regulatory organisations for the purpose of exchanging information with the Gambling Commission. Information can be exchanged with organisations not included in Schedule 6, but such cases require individual legal opinions that take time and are expensive. Unless the organisations are listed on the schedule, there is also a limit to the information the Gambling Commission can pass on in such cases.

The order under scrutiny this afternoon adds to the list of sports governing bodies with which the Gambling Commission can exchange information, so as to widen the scope of its coverage and strengthen its response to sports betting integrity threats wherever the need should arise. There is also some simple tidying work to update the list to reflect changes in the organisational structure and names of some sports and regulatory organisations that are currently on the schedule but are no longer correct.

I do not propose to list the changes here—these are evident in the order—but I shall briefly set out the broad rationale behind the changes. Before I do, though, let me just say that I fully appreciate the strong feelings that some noble Lords may have about sports integrity and betting corruption. There are, of course, many wider concerns raised by this subject, all of which deserve thorough examination, but that must be for another time. Given the time constraints on us today, I fear that we would not be able to do these concerns justice.

The impetus for this review stems from the International Olympic Committee’s request that it be added to Schedule 6 in advance of the London 2012 Games in case threats to betting integrity should arise during the Games. I stress that no specific illegal betting threat to the Games has been identified, but the Government agreed with the IOC that it was sensible to take such a precaution. Should such an incident occur, it could be most damaging to the reputation of both the United Kingdom and the 2012 Olympic Games.

As the list of sports governing bodies in Schedule 6 has not been updated since the Gambling Act was drafted, now is also a good time to add other relevant national and international governing bodies in order to ensure better coverage of the main sports in the UK and to better reflect the sports governing bodies with which the Gambling Commission now regularly deals.

The amendments that we are looking at today include a range of UK sports governing bodies covering bowls, darts, squash, hockey, motor sports and the London marathon. Your Lordships may not immediately associate these sports with the possibility of betting corruption, and I stress again that there is no immediate concern in these areas. This is really an exercise in crystal ball gazing and trying to anticipate where any risk to sports integrity might arise in the future. The inclusion of these governing bodies is based on the advice of the Gambling Commission, which has undertaken a thorough risk analysis that draws greatly on the experience and knowledge of its Sports Betting Intelligence Unit.

Noble Lords will also note that the amendments include a number of international sports governing bodies. These go beyond just the International Olympic Committee to cover football, rugby, tennis, snooker, cricket and athletics, among others. Again, their inclusion is based on the advice of the Gambling Commission. Its Sports Betting Intelligence Unit has up to now liaised with a lot of the international sports governing bodies’ equivalents—for example, FIFA, UEFA and the ICC—on betting integrity cases. It therefore makes sense to include these bodies in the list. The sports they govern should be represented by domestic sports governing bodies; it would none the less be useful to have their international equivalents included.

Finally, it is very sad that betting provides an opportunity and incentive to corrupt sport. This may result in the inappropriate use of inside information or interference with the outcome of an event. In turn, this can have an impact on the public’s confidence in the fairness of sporting results. As the betting market develops and the range of betting opportunities increases, it is right that we look to the future to make certain that the response mechanism is fit for purpose and addresses such threats, should they arise. These amendments are a proactive means of strengthening this response mechanism. The ability of the commission and a sports governing body to respond to a sports betting integrity threat at a faster pace is crucial. We sincerely hope that this will result in a lower incidence of gambling corruption and a more managed response to any match-fixing scandal that occurs. This, in turn, can give the public the reassurance they need about the fairness of any sporting contest.

I look forward to the debate and to your Lordships’ contributions. I commend the order to the Committee.

My Lords, I thank the Minister for her explanation of the proposed changes to Schedule 6. In response, I begin by making it clear that we absolutely share the Government’s determination to crack down on illegal gambling and to work with the Gambling Commission to root out organised criminal behaviour and illegal payments to sports men and women. The UK currently has an unrivalled reputation for high standards of integrity in sport and it is in all our interests to keep it that way.

We also acknowledge the important role that legitimate UK betting companies play in creating jobs and contributing to the economy. With this in mind, we understand that the lists of individual sports and the sports governing bodies covered by the requirements to exchange information with the Gambling Commission will need to be updated and refreshed from time to time. We also support this approach, which is in keeping with the spirit of the Act, rather than the alternative option, which was to introduce broad classifications of those covered by the Act.

However, I have a couple of questions that I hope the Minister will be able to deal with. First, as a general point, she said that she did not want to talk about wider gambling issues, but we know that the sports betting industry is increasingly moving offshore and online, with an estimated value globally of over £200 billion. The steps that we are taking today with this schedule mean very little if we do not effectively regulate the global online gambling market. I know that the Minister, John Penrose, announced in July last year that proposals would be brought forward to legislate on remote gambling, so can the Minister update us on the progress of these proposals and when we are likely to be able to consider them in this House?

Secondly, with the London Olympics imminent and the obvious need to maintain the reputation of British sports as relatively corruption-free, we do not have a problem with adding the International Olympic Committee to the list of organisations with which the Gambling Commission will liaise, but how will these new links work alongside any information that is already shared with LOCOG and the British Olympic Committee? Will the IOC have a responsibility to alert them to any investigations that it is pursuing, and is there a clear demarcation in responsibilities between the umbrella sports bodies and the individual sports governing bodies? How will they ensure that they are all kept in the loop?

Is it clear who has the prime responsibility for investigating allegations of betting corruption and illegal payments? Will it be made clear to the new bodies that are being added to the schedule that they will need to have a list of betting rules in place to enable them to investigate and take action against those breaching the rules? Has any thought been given to the additional resources that those individual sports will need to police their sports effectively, particularly during the intense period of the Olympic Games themselves?

After the Olympics are over, what will be the ongoing relationship between the Gambling Commission and the IOC as preparations are made for the next Games in 2016? Will the commission’s jurisdiction continue to be limited to activities within the UK’s borders, or will it be expected to play a wider role in sharing global information in the run-up to Rio? Moreover, I understand the need to form links with the international sports bodies, but are the relationships and responsibilities formally set out in some kind of agreement? Inevitably, the more bodies that are added to the Gambling Commission’s list of organisations that it liaises with, the more scope there is for confusion between the roles. Will the Minister reassure me that these are clearly defined?

I cannot help speculating about the need to include bowls in the list of sports with which the Gambling Commission will exchange information in future. The Minister said that there were no obvious or known incidents of corrupt betting in all the organisations that are going to be added, but is there any regular betting at all in bowls? Has the bowling governing body signed up to being regulated in this way? Inevitably, after all, this has responsibilities and implications for that body, if only in the filling out of regulatory forms and so on. It all seems a long way from the rather gentle image of local bowls clubs up and down the country that we know and love.

Those are my only questions, which are points of detail. I reiterate that we broadly support the thrust of what the order and the revised schedule seek to achieve, and I look forward to hearing the Minister’s response.

My Lords, I thank the noble Baroness, Lady Jones, for her thoughtful contribution on the amendment to Schedule 6. I shall start by trying to answer the several relevant and constructive questions that she asked. She mentioned the remote gambling proposals, which Mr John Penrose announced in Parliament last July. As noble Lords are only too aware, the legislative programme is very full and we are pursuing all options, but I reassure the noble Baroness that the Government are committed to these proposals. I am sure she understands that I cannot give her an exact date.

The noble Baroness asked several questions about the process involved for the London Olympic Games in July 2012 and the new links. The responsibility for betting issues in the Games will come under the Joint Assessment Unit, which consists of the IOC, the Gambling Commission and the Metropolitan Police. LOCOG will not be part of the assessment process but will be involved in any communication activity involving the media.

On investigations, the information disclosed to the BOA, LOCOG and anyone else involved will be on a case-by-case basis and will depend on the nature of the incident and the assessments carried out by the Joint Assessment Unit. Once it becomes clear that an incident is likely to be reported in the media, the IOC will lead the communications strategy on sports betting integrity issues.

As with all cases, the Gambling Commission will inform the relevant national or international sports governing body. All domestic sports governing bodies have responsibility for issues within their remit, but if the investigation becomes cross-border it is likely that the international body will intervene. For example, FIFA has intervened on match-fixing issues in several European football leagues.

If a potential threat is identified, the Joint Assessment Unit will support the IOC or the police in deciding whether further action is justified. If an investigation is required, the Joint Assessment Unit will decide who will take the lead. It is possible that both a criminal investigation and a sports investigation will run simultaneously, depending on the nature of the potential incident.

The noble Baroness, Lady Jones of Whitchurch, was concerned about the future. Looking beyond London 2012, the Gambling Commission’s jurisdiction extends only to Great Britain, but the addition of the IOC to Schedule 6 will continue to allow the sharing of appropriate information in the run-up to the 2016 Games in Rio, which the noble Baroness asked about, and beyond. The Gambling Commission’s sports betting integrity unit will be involved with the new sports governing bodies that are added to Schedule 6 and will advise them of the need to have some form of betting rules in place, although there is no obligation to do so.

The sports betting integrity unit has developed good working relationships with several international sports governing bodies, including FIFA, UEFA and the ICC. Memoranda of understanding have been set up to facilitate information sharing, but these are subject to Data Protection Act rules and are not legally binding. Finally, I am not certain whether the noble Baroness is a bowls player but there has been a sports betting integrity case in relation to bowls and it was therefore included in the schedule. No additional resources will be required by the sports governing bodies.

These amendments are not just about making certain that the Government fulfil the International Olympic Committee’s request that sports betting should be included in Schedule 6 to the Gambling Act. It is a wider commitment; the Gambling Act is the principle mechanism through which the sports betting market can be monitored for irregular betting patterns, allowing the relevant enforcement authorities to tackle criminal sports corruption effectively. There might be concerns from some noble Lords here today about potential burdens arising from an expansion of the list, so I seek to reassure the noble Baroness and other noble Lords that no new burdens will be created by these amendments. In fact, these amendments will reduce the burden on the Gambling Commission, as costly legal advice will no longer need to be sought in relation to the organisations in Schedule 6, and the process of dealing with such cases will be speeded up considerably.

Following the noble Baroness’s contributions today, I sense that we are united in trying to make the world of sport a fairer place. The amendments to Schedule 6 will further the ultimate aim of protecting the integrity of sport, as well as the sports market and sports gambling market interests associated with it. They will continue to make sport enjoyable both for those participating in it and for those watching it.

Motion agreed.

Community Right to Challenge (Fire and Rescue Authorities and Rejection of Expressions of Interest) (England) Regulations 2012

Considered in Grand Committee

Moved by

That the Grand Committee do report to the House that it has considered the Community Right to Challenge (Fire and Rescue Authorities and Rejection of Expressions of Interest) (England) Regulations 2012.

Relevant documents: 1st Report from the Joint Committee on Statutory Instruments.

My Lords, the regulations extend the definition of “relevant authority” to include fire and rescue authorities in provisions in the Localism Act relating to the community right to challenge. They also set out the grounds on which an authority may reject an expression of interest. The community right to challenge allows voluntary and community groups, parish councils and authority staff to submit an expression of interest to take over provision of local authority services.

I shall speak first to Regulation 3, which adds fire and rescue authorities as relevant authorities. The Localism Act specifies relevant authorities as,

“a county council in England … a district council … a London borough council, or … such other person or body carrying on functions of a public nature as the Secretary of State may specify by regulations”.

Some fire and rescue authorities already fall within the definition of “relevant authority” by virtue of being a county council. These regulations provide consistency by adding fire and rescue authorities as relevant authorities.

The Government consulted on the detail of the community right to challenge between February and May 2011, saying that they were minded to extend the definition of “relevant authority” to include fire and rescue authorities. Fifty-eight per cent of those who responded agreed with this proposal. Of those who did not agree that fire and rescue authorities should be added as relevant authorities, the most frequently expressed concerns were the risks to people’s safety, the quality of service, and losing strategic overview. Relatively few responses were received from fire and rescue authorities. In light of this, further discussions were held with fire sector representatives. The sector was broadly supportive. The main concerns were that many aspects of fire provision might be less efficient and more costly if they were subject to challenge.

We have carefully considered the responses to the consultation as well as views gathered from further discussions with fire sector bodies. Many aspects of fire provision are functions rather than services and are therefore outside the scope of the community right to challenge. Fire and rescue authorities will remain the body accountable for the discharge of their functions. They will therefore be able to make appropriate provision during the procurement exercise and, in agreeing contractual arrangements, to ensure that relevant services are delivered to appropriate standards and quality. The community right to challenge will not override other legislation such as the Fire and Rescue Services Act 2004, which requires, for example, those carrying out certain core activities to be firefighters.

A second aspect of these regulations is that they make provision for a relevant authority to reject an expression of interest if it considers that the relevant body would not be suitable to deliver the service, or if the authority considers that acceptance of the expression of interest is likely to lead to a contravention of an enactment or other rule of law or a breach of statutory duty.

Regulation 4, as implied in the title, specifies grounds on which an expression of interest may be rejected. The Localism Act 2011 states that an expression of interest may be rejected only on one or more grounds specified in regulations. These regulations relate to the requirements for expressions of interest contained in the Community Right to Challenge (Expressions of Interest and Excluded Services) (England) Regulations 2012, which have been laid and are subject to the negative procedure. In the consultation exercise, which was discussed earlier, the majority of respondents agreed with the proposed grounds for rejection. The grounds listed in these regulations are broadly the same as those consulted upon and the changes proposed in the policy statement deposited in the House Library on 8 September 2011.

Ground 5, which allows for the continued integration of relevant services and NHS services where this is critical to the well-being of persons, and Ground 8, which allows for the continuation of a process towards mutualisation of services, are new and I shall explain them further in a moment.

Regulation 4 specifies the grounds on which an authority may reject an expression of interest. There are 10 but I shall not go through them all in detail. Ground 1 is perfunctory and is that the expression of interest does not comply with the requirements in the Act.

Ground 2 is designed to ensure that authorities have sufficient information to reach a decision on an expression of interest and that the information in an expression of interest is accurate. These requirements include, for example, information about the body’s financial resources and its ability to provide the service, and how the outcomes it proposes to deliver promote or improve the social value of the authority area and meet service user needs. They also require information about the relevant service sufficient to identify it. Authority employees must also detail how they propose to engage other employees affected by the expression of interest.

Ground 3 allows for an expression of interest to be rejected if, based on the information requirements for expressions of interest, an authority considers that a relevant body is not suitable to provide the relevant service. The determination of whether a group is a suitable body to provide a service is restricted to the information in expressions of interest, which I have read out.

A number of grounds allow established processes to continue to fruition or decisions to be implemented. They include: where the authority has taken a decision, evidenced in writing, to stop providing a service; where a procurement exercise is already under way; where the relevant authority and a third party have entered into negotiations for provision of the relevant service; and where the relevant authority has published its intention to consider the provision of the relevant service by a body that two or more specified employees of that authority propose to establish. Those are Grounds 6, 7 and 8.

Ground 5 provides a right for a relevant authority to exercise discretion in such cases of integrated provision of health and social care services where continued integration is critical in order to protect the service user.

Finally, Grounds 9 and 10 safeguard against authorities having to carry out procurement exercises if the authority considers that an expression of interest is frivolous or vexatious or if acceptance is likely to lead to a breach of another rule of law or statutory duty.

The new community right to challenge provided for in the Localism Act 2011 is an important part of this Government’s decentralisation agenda. It is intended to hand the initiative to voluntary and community groups, parish councils, charities and authority staff who believe they can run authority services differently and better, giving their good ideas a fair hearing and, provided those ideas stand up to scrutiny, giving them a chance to bid to take over the running of those services.

It was this Government’s view that although these groups can wait until authorities carry out procurement exercises and bid according to pre-specified requirements, that was not community empowerment. This new right is not simply about transferring service provision from one body to another but about handing the initiative to communities to put forward their ideas for how they could run services in ways that are different or better.

Finally, these regulations, together with the Community Right to Challenge (Expressions of Interest and Excluded Services) (England) Regulations 2012, will complete this coalition Government’s promise to introduce a community right to challenge. They will allow relevant authorities to reject expressions of interest on the specified grounds. They also provide for continuity across fire and rescue authorities that are already relevant authorities, by virtue of being local authorities, and those that are not. I commend these regulations to the Grand Committee.

My Lords, I thank the Minister for her very full explanation of this order. As the noble Baroness has said, this is in a sense an affirmative order, which has come before us in parallel with a negative order. I have a couple of questions on that order, which I am going to tuck away at the end of my presentation, and I hope that she will be able to deal with them. In a way, this is a return to the Localism Act, which I thought was going to be just a happy memory but clearly is not. I have some questions for the Minister, which is how I would like to deal with this matter.

First, have any other bodies or persons been specified, or are they planned to be specified, under Section 81(2)(d) of the Localism Act 2011? This affirmative order, as the noble Baroness has said, is about the fire and rescue authorities, some of which are already included because they are county councils. I would like to understand a little better the relationship between functions and services and excluded activities. Perhaps I can take her back to paragraphs 2.4, 2.5 and 2.6 of the consultation to which she referred.

Paragraph 2.4 says that certain services are required,

“to be delivered by the authority. These will not be subject to the Community Right to Challenge, and will be listed as excluded services in regulations”.

Paragraph 2.5 says:

“For example, in relation to Fire and Rescue, the 2004 Fire and Rescue Services Act effectively requires that certain core activities are specifically delivered by employees of Fire and Rescue Authorities, some of which are the County Council … The following activities will be excluded from the Community Right to Challenge”.

Those activities concern employing,

“firefighters to put out fires and undertake rescues from fires”,

and how,

“Fire and Rescue Authorities respond to road accidents—fire-fighters undertake this role, jointly with fire fighting”.

Can we have some clarity as to whether these activities are excluded because they are specified in some regulation or because they are deemed to be functions and therefore outwith the right to challenge in the first place under the primary legislation?

Paragraph 2.6 states:

“There may also be other reasons why there is a case for excluding particular activities from the Community Right to Challenge. This may relate to those integrated with services that are excluded due to existing legislation, such as Fire and Rescue Authorities responding to other emergencies, including collapsed buildings and hazardous materials”.

Again, is that within the scope of the community right to challenge under this order or is it excluded? If it is excluded, is that because it is specifically excluded somewhere or because it is deemed to be a function and therefore not within the scope of the primary legislation?

All this is leading me to try to get a much clearer idea of the services that are likely to be within the scope of the order. If these other activities, one way or another, are excluded, what is included? Perhaps the noble Baroness can give us one or two more specific examples of that. If the issue of fire and rescue authorities dealing with emergencies such as collapsed buildings and hazardous materials are not automatically outwith the scope of the order and are therefore potentially within the operation of the community right to challenge, can the noble Baroness specify why those particular activities have been included? It was clearly thought during the consultation that they would be excluded. They are obviously very important and, in some respects, highly technical services.

On grounds for rejection, the noble Baroness referred to paragraph 3. What happens if there are changes in the consortium or changes in subcontractors during the course of a contract? Is that simply a matter that has to be dealt with within the contractual arrangements, or are there other provisions which enable a rethink or review in those circumstances?

Paragraph 5, to which the Minister referred, is something with which we instinctively agree, but can we hear a little more about the specific type of services which are envisaged being excluded under that paragraph?

Paragraph 7 is, presumably, in part about making sure that what is being conducted is evidenced. It talks about it being committed in writing. Would the position not be the same if, although not actually committed in writing, there was some other evidence that suggested that there was a negotiation under way?

What is the position if a community right to challenge involved, as might well happen, the disproportionate cost of a procurement activity? I can see nothing specific in the order which would take that, of itself, outside the scope. Similarly, what about repeated challenges? Each one might not, of itself, be frivolous or vexatious; indeed, they might come in a succession of challenges from different organisations or consortia. Is there not, or should there not, be provision, which says: enough is enough, we have had, within this time period, too many challenges under these provisions and this is consuming a lot of important and valuable time? I understand that there is no appeals process, because a lot of this is the judgment of the relevant authority, and I think that that is the right thing to do, but presumably it does not preclude the authority from acting reasonably, because there would be other legal challenges if it did not.

The noble Baroness referred to the consultation and the paucity of responses from fire and rescue sector respondents. I think that only six responded positively in favour of these authorities becoming relevant authorities. The noble Baroness referred to consultation with representatives of the sector. Was the Fire Brigades Union one of the consultees in that process?

I refer finally to the negative order which has been brought out in parallel, because the clock is ticking, if we are to do something by way of a take note or other Motion; we have to think carefully about that. Paragraph 7.18 of the Explanatory Memorandum, refers to the exclusion from community right to challenge of,

“services that are: jointly commissioned by a relevant authority and the NHS; that are commissioned pursuant to a partnership arrangement between the NHS and a relevant authority; or are commissioned by the NHS on behalf of a relevant authority”.

That is only until 1 April 2014, as the Explanatory Note to the order says—namely, during the critical period of major changes to the NHS commissioning architecture. My specific question is on what basis it is considered that the deadline of 1 April 2014 is sufficient for those other arrangements to bed in.

Paragraph 7.10 talks about the requirement to carry out a procurement exercise if the relevant authority accepts an expression of interest. I do not think that anywhere in the arrangements the cost itself—I refer to it in relation to the other instrument—would be a reason in itself for rejecting an expression of interest from a relevant authority. I would be grateful if the Minister could deal with those matters. Our full support for these instruments depends in part on understanding the scope of what remains within them for fire and rescue authorities and what is outside for one reason or another.

My Lords, I thank the noble Lord for his usual searching questions and being well briefed. I start with the provision that fire and rescue services and any other public body could be included, but they are not at the moment. Beyond the fire and rescue authorities, other public bodies could be included if that seemed right, but that would have to come through in regulations. We would consider such an extension, which could also include an extension to central government services; so this could be widened. We know that a number of respondents to the consultation supported the extension to implement the right as currently constituted. I hope that that covers that.

On what would be subject to challenge, as I am sure the noble Lord appreciates, fire and emergency services are subject to primary legislation, part of which says that fires must be fought by recognised firefighters. Anything that would be suitable for a contract or a bid would be outside that, unless some form of mutualisation were being considered. That would mean something such as procurement and the maintenance of fire appliances, training, emergency call handling, IT or administration. Those are the areas where the challenge could be effective and could take place.

The noble Lord asked whether the Fire Brigades Union was a consultee. The consultation was open to all interested parties, which included the union. It did not respond, but as I said in my opening remarks, because it did not the department went out to further consultation with the fire brigades and their representatives, and they were broadly supportive of what was being considered.

On the reasons for rejection, vexatious rejections can include expressions of interest on the grounds of being frivolous or vexatious, and that can be interpreted quite widely. If something was considered to be being put forward without very good grounds, it could probably be rejected on that basis.

Right at the end of his remarks, the noble Lord asked whether costs could be taken into account once a bid had been put forward. My gut reaction is that it is only an expression of interest at that stage; it is not a bid with a fully worked-out contract. If there is an application or consideration that a voluntary organisation could do the job better, having put forward the bid, as it is entitled to do, at the next procurement, either triggered by that or at the normal stage, it would be invited to put a bid forward and the costs would then have to be taken into account. Clearly, if it was not competitive, it would not win the bid.

As I understand it, if there is an expression of interest, the relevant authority has either to accept it or to reject it on some grounds. If there are no grounds for rejection but the cost of a procurement exercise might be wholly disproportionate to the service sought, that of itself does not seem to be a reason to reject the offer. If it is, perhaps the noble Baroness can explain within which of the provisions it is covered.

As I understand it, the cost to the authority of accepting a bid is not covered, because this is a challenge that triggers a procurement exercise, and the procurement exercise would include other bids from other people; so it would be a normal tendering process. The cost of that would be normal expenditure. Am I missing the point?

With respect, if the bid were rejected in the first place, procurement costs would not arise. That is the point that I am pressing. If there are no other reasons to reject the bid and there therefore has to be a procurement exercise incurring costs, the pass is sold. Should the potential costs of procurement themselves be a reason to be able to reject the offer?

The answer to that, on projected costs, is no, because, as I said at the outset, the initial challenge is on the standard or quality of service. The question of cost would come subsequently when the bid was being considered. I am hearing much from my officials behind me. Is that correct? They think that it is, unless I misunderstood the noble Lord’s question. If that is not correct, I will come back to it.

This note gives me the other side of the story. The procurement exercise might actually lead to savings for the authority. We are still on the same level. Any cost to the authority comes if and when the procurement process takes place. The cost to the bidder or the local authority at the challenge stage is not taken into account. I think that that is all right.

The noble Lord also asked whether, once a bid has been put in process and contracted by a consortium, any change to the consortium would affect the contract. As with any other contract, it would jeopardise the contract. It cannot just change people mid ship. I think that one issue behind this is concern that a voluntary organisation could put forward a bid and then end up being hijacked or taken on by a bigger company. The answer is no, we have to take it as it starts. If there were any changes to that, the contract would have to be dealt with.

On the National Health Service and the 24-month time-limited exemption, only a short deferral to 2014 is being asked for to enable the new National Health Service commissioners—both the clinical commissioners and the NHS commissioning boards—sufficient time to bed in, because they are not bedded in yet. Subsequently, contracts will need to be considered and, if need be, retendered. The NHS also needs to develop relationships, including with co-commissioners and providers or potential providers. That time gap will enable it to do that. Without it, the NHS may not have the capacity to do everything that is being asked of it and there could be considerable disruption to the system if a procurement exercise has to be undertaken within that period. That is the reason for the delay.

Any social care or health-related service provided by a relevant authority in its own right will be included as services. That includes children and adult mental health services, including those associated with dementia and learning disabilities. If they are integrated with health services, continued integration is critical. Therefore, they can be challenged as well. I hope that that covers the noble Lord’s questions.

On potential repeat processes under the community right to challenge from different people but in succession, does there comes a point whereby the accumulation of having to deal with them of itself ought to be a reason to say, “Look, hang on. There ought to be a pause. We cannot forever go through this process.”?

A series of bids would automatically trigger a procurement process so that they could be taken into account.

We will go through that again. I think that I have answered most questions but if I have not got the right emphasis on anything, I will come back to the noble Lord.

Motion agreed.

Terrorism Act 2000 (Codes of Practice for the Exercise of Stop and Search Powers) Order 2012

Considered in Grand Committee

Moved by

That the Grand Committee do report to the House that it has considered the Terrorism Act 2000 (Codes of Practice for the Exercise of Stop and Search Powers) Order 2012.

Relevant documents: 2nd Report from the Joint Committee on Statutory Instruments.

My Lords, in moving this Motion, I shall speak also to the next three Motions standing in my name on the Order Paper, which I shall move in their proper place at the appropriate time. I will explain, in turn, all the orders, which were laid before Parliament on 10 May 2012.

The Terrorism Act 2000 (Codes of Practice for the Exercise of Stop and Search Powers) Order 2012 reflects a recommendation in the Government’s review of counterterrorism and security powers, published in January 2011. The review recommended that stop and search powers under Sections 44 to 47 of the Terrorism Act 2000, which allowed police officers to stop and search persons without any reasonable suspicion that the person was a terrorist, should be repealed and replaced with a more focused power.

Section 47A of the Protection of Freedoms Act 2012 provides for a considerably more stringent test to be met before a police officer of ACPO rank may authorise the exercise of powers to stop and search persons and vehicles without reasonable suspicion. In effect, the Act places the powers provided by the Terrorism Act 2000 (Remedial) Order 2011 on a permanent footing. The Protection of Freedoms Act 2012 also amends the counterterrorism stop and search powers in the Terrorism Act 2000, which require reasonable suspicion to enable searches of vehicles or their occupants.

The codes of practice, which govern the use of terrorism stop and search powers in Great Britain and Northern Ireland, set out detailed requirements for the making of an authorisation and the exercise of the powers. They reflect the significantly greater thresholds for the use of the powers and reflect lessons from the experience of the now repealed Section 44 powers.

The new stop and search powers, and the robust statutory framework provided by these codes, provide the police with the powers they need to protect the public while ensuring that there are robust safeguards to prevent a return to the previous excessive use of stop and search without suspicion.

The next two orders—the Counter-Terrorism Act 2008 (Code of Practice for the Video Recording with Sound of Post-Charge Questioning) Order 2012 and the Terrorism Act 2000 (Video Recording with Sound of Interviews and Associated Code of Practice) Order 2012—also reflect a recommendation from the Government’s review of counterterrorism powers. That review recommended that the provisions contained in the Counter-Terrorism Act 2008 which enable the post-charge questioning of terrorist suspects should be commenced. This could help in individual prosecutions and may encourage terrorists who have been arrested and charged to assist investigations. The Act requires that any post-charge interviews of suspects must be video-recorded with sound and that a code of practice must be issued to provide guidance on that recording. It also provides that the relevant PACE codes of practice must make provision for post-charge questioning.

Accordingly, we are revising the relevant PACE codes and introducing a new code of practice for the video-recording with sound of interviews of individuals detained in respect of terrorism or terrorism-related offences. We have decided, as an additional safeguard, to require that interviews conducted pre-charge under Section 41 of the Terrorism Act 2000 should also be video-recorded, as should interviews under Schedule 7 to that Act. This reflects a commitment made by the previous Government during the passage of the Counter-Terrorism Act 2008. If the House approves these codes, we will commence the substantive powers shortly afterwards.

Lastly, the Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Codes C, G and H) Order 2012 is also before the Committee. This order makes changes to the PACE codes of practice relating to detention, treatment and questioning in Code C, power of arrest in Code G, and the detention, treatment and questioning of suspected terrorists in Code H.

Other than the changes to Code H relating to post-charge questioning, which I have already alluded to, the most significant changes to Codes C and H relate to two areas: increasing safeguards in the procedure to be followed by the police where a detainee changes their mind about wanting legal advice, and clarifying what the custody officer can delegate to other staff in order to help the efficient operation of custody suites, along with a number of other changes to reduce the administrative burden on custody officers and staff.

There are a number of other technical changes to Codes C and H which I do not propose to go through individually, but, obviously, if the noble Baroness— I do not see any other noble Lords here—wishes to ask any more detailed questions on them, I will deal with them in due course.

The changes to Code G, alongside what is now Section 149 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, deliver on three coalition commitments by giving to police officers who are considering making an arrest guidance on deciding whether an individual was acting in self-defence, to protect another or to maintain discipline in a school. There is further guidance to police officers on arresting those who have attended voluntarily for questioning.

The revised PACE codes were published in draft format on 1 November for statutory consultation in accordance with Section 67 of PACE, in parallel with the consultation on the new video-recording code of practice. A summary of consultation responses and a detailed table of the changes for each code were attached to and published alongside the Explanatory Memorandum.

These codes of practice provide invaluable guidance to both police officers and the public on how the police should use their powers fairly and effectively. Furthermore, the video-recording codes will provide an important safeguard that will enable the post-charge questioning powers provided by the Counter-Terrorism Act 2008 to be commenced. I commend the orders and their attendant codes of practice to the Committee. As I said, I will move the other three orders in due course once we have dealt with this one.

My Lords, I am grateful to the Minister for his explanation and for information on the four orders before us today. For most of my research on this matter, I felt at a distinct disadvantage. I hope that the comments that I am about to make do not become a regular feature of our debates in Grand Committee or on the Floor of the House, but I have to say that the Home Office website really is a disgrace. I understand that it has not been accessible since we returned from Recess. I have been unable to access via the website either the codes of practice or the consultation; nor have I been able to respond to the consultation. My questions will therefore have to reflect the paucity of information that I have been able to obtain.

I know that the Minister likes to be helpful and his private office contacted me to say that it would look into this matter, for which I was grateful. I was grateful, too, to the parliamentary adviser at the Home Office, who was able to send some information to us. However, he was unable to access it until today—it came over at 1.55 pm. There were 356 pages. I can read pretty fast, but not that fast. I hope that the Minister can take my comments back, because it would have been helpful to have information on the significant changes being made, albeit in a digested form, and a summary of responses to the consultation. It would be helpful to have that information always made available if it is not going to be available on the website. I hope that some mighty experts will resolve this matter; otherwise, as I have threatened previously, I will phone the Minister on a Sunday afternoon to get the information that I need while I am working on these issues.

We agree with tighter restrictions on stop and search. As I think the Minister knows, and as my colleagues have said in the other place, the powers were being used more widely than originally intended in the legislation. Indeed, former Home Secretary Alan Johnson had already taken some action in that area and provisional data had shown quite a significant drop in the number of stop-and-search cases from 2009 to 2010. We support sensible measures that will bring the legislation more closely into line with the original intention behind stop and search.

I have some specific questions—as I said, I was unable to obtain a copy of the consultation and have only the Explanatory Notes to work from. If the Minister does not have answers to them, I will be very happy for him to write to me with the information. The noble Lord said that there were 11 responses in the Explanatory Notes, of which the majority were in favour. Who were these responses from, since some but obviously not all of them were listed, and which organisations were not in favour or had objections to the changes being made? What issues did they raise with their concerns and what changes were made to the draft order following the consultation responses that came in?

Turning to the other two orders on counterterrorism and video recording, again, can the Minister say something about the issues raised in the consultations? I have the consultation responses on the code of practice on Codes C, G and H but not specifically on video recording, although there is some information in there. There is obviously a crossover. However, if other issues were raised, by whom were they raised and what changes were made to these two specific orders on video recording as a result of the consultation responses?

On the Police and Criminal Evidence Act order, I would like to commend those who were able to get some good information for the shadow Ministers who are looking at these issues. I was pleased to see a number of points being taken on board, particularly when potentially vulnerable people are being questioned and on mental health issues. A lot of the representations that were made in response to the consultation were taken on board. I hope the Minister understands that I feel rather limited, given the lack of information available. If that could be resolved for future orders and if he can answer my questions either now or in writing, that would be appreciated.

My Lords, I start with an abject apology on behalf of both myself and the Home Office in response to the noble Baroness’s complaints about the website. I have raised it within the department but I will now go back to it. The first thing I had better do is find out which of us five junior Ministers has responsibility for the website, if any at all, and make sure that one of us looks personally at these problems to ensure that we can sort it out. Obviously, the noble Baroness should not have to wait until 1.55 pm today to get the information that she needs to deal with these matters.

It might also be worth my while offering the noble Baroness my home and mobile numbers so that she can get hold of me in Cumberland on a Sunday afternoon. I will tell her whether I will be available on future Sundays on an ad hoc basis, so that she can occasionally discuss these things. Again, I hope that the noble Baroness will get hold of me in my office whenever she is going to have specific problems because, as she knows from her own extensive experience in government, these matters can very often be resolved by talking about them beforehand. Similarly, if she comes through my office I am always more than happy to arrange a briefing for her to make sure that these things happen. This is a complete apology with my and the department’s mea culpa. We will try to resolve these matters.

Having said that, I was grateful for what I suspect is her and the Official Opposition’s general support for the line down which we are going on these matters. However, I appreciate that she has a number of fairly detailed questions about how we adjusted things as a result of the consultation, who was in favour and who opposed and, on the video recording, the responses to the consultation and what changes we made. On stop and search, the changes were limited as we had previously consulted on a similar remedial code of practice order. These changes related to removing references to random searches, and there was further advice on photography issues.

At this stage, it would probably be better for me to offer to write in greater detail to the noble Baroness, Lady Smith of Basildon, giving fuller, further and better particulars of these matters so that we can get all this right. I note the Official Opposition’s general support for what we are doing, but obviously we have to resolve many more detailed points. Having said that, I hope the noble Baroness will allow me to move this order, and to offer, first, my apology again and, secondly, the guarantee that I will write to her with fuller and better details on the consultation.

Motion agreed.

Counter-Terrorism Act 2008 (Code of Practice for the Video Recording with Sound of Post-Charge Questioning) Order 2012

Considered in Grand Committee

Moved By

That the Grand Committee do report to the House that it has considered the Counter-Terrorism Act 2008 (Code of Practice for the Video Recording with Sound of Post-Charge Questioning) Order 2012.

Relevant documents: 2nd Report from the Joint Committee on Statutory Instruments.

Motion agreed.

Terrorism Act 2000 (Video Recording with Sound of Interviews and Associated Code of Practice) Order 2012

Considered in Grand Committee

Moved by

That the Grand Committee do report to the House that it has considered the Terrorism Act 2000 (Video Recording with Sound of Interviews and Associated Code of Practice) Order 2012.

Relevant documents: 2nd Report from the Joint Committee on Statutory Instruments.

Motion agreed.

Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Codes C, G and H) Order 2012

Considered in Grand Committee

Moved by

That the Grand Committee do report to the House that it has considered the Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Codes C, G and H) Order 2012.

Relevant documents: 2nd Report from the Joint Committee on Statutory Instruments.

Motion agreed.

Safeguarding Vulnerable Groups Act 2006 (Controlled Activity and Prescribed Criteria) Regulations 2012

Considered in Grand Committee

Moved by

That the Grand Committee do report to the House that it has considered the Safeguarding Vulnerable Groups Act 2006 (Controlled Activity and Prescribed Criteria) Regulations 2012.

Relevant documents: 2nd Report from the Joint Committee on Statutory Instruments.

My Lords, the measures in these draft instruments flow in the main from the changes to the barring arrangements in the Protection of Freedoms Act, which received Royal Assent at the end of the previous Session. The second Motion, the draft order, does three things. First, it revokes previous provisions on the definition of regulated activity that are no longer meaningful in view of the new definition of regulated activity. In 2009, Ministers specified that those who provide treatment to a child or vulnerable adult, but not as the main purpose of their contact with that person, would not be within regulated activity. Such activity will not be within the new definition of regulated activity, so the exception is no longer required. The draft order also revokes a previous exception to the definition of “vulnerable adult”, because the definition of “vulnerable adult” is removed by the Protection of Freedoms Act.

Secondly, the draft order revokes a number of transitional arrangements that were specified in the fifth commencement order of the Safeguarding Vulnerable Groups Act. That order set out three transitional periods, all with reference to the commencement of registration and monitoring requirements. As the Protection of Freedoms Act repeals registration and monitoring, those arrangements are no longer required.

Thirdly, as a result of that revocation, the draft order creates two time-limited transitional arrangements, both of which will operate until the new direct check of the barred list in new Section 30A of the Safeguarding Vulnerable Groups Act is introduced. The first allows for the continuation of the provisions that permit the Independent Safeguarding Authority to provide information that a person is barred to someone who can demonstrate that they have a legitimate interest in knowing that fact. Legitimate interest must be related to safeguarding.

The second provides for the continued operation of the ISA Adult First service. This allows certain organisations that provide regulated activity relating to adults and that request an enhanced criminal record certificate with a barred list check to receive an early notification of whether that person is barred. That system enables organisations in the health and social care sectors to function effectively. We plan to commence the new definition of regulated activity and the repeal of registration and monitoring this September, so these provisions will be needed in line with that.

The draft regulations do two things. First, they revoke the 2010 regulations, which state that a controlled activity provider must ascertain whether a person is barred before deciding whether to engage that person in controlled activity. Controlled activity is work that involves less contact with vulnerable groups than regulated activity, or access to their records such as that required by hospital records clerks. The Protection of Freedoms Act repeals the concept of controlled activity. Again, that will commence in September, so those regulations are no longer necessary.

Secondly, the draft regulations make some changes to the list of criminal offences that lead to a person being barred automatically from working in regulated activity. The draft regulations add 11 new offences to both the children and adults lists, including new offences relating to people trafficking and offences under the Female Genital Mutilation Act. They remove from the lists three mental health offences which we consider do not meet the criteria for automatic barring. They also add several offences from the Sexual Offences (Scotland) Act 2009, which updated Scottish sexual offences legislation and post-dated the original regulations. Each offence from that Act will be added to the list on which the corresponding offence in England and Wales is now placed. The draft regulations also make a number of minor and technical changes.

These instruments help to ensure that our scaling back of the barring arrangements to more proportionate levels can be properly realised, and also help to simplify some of the complex legislation in this area.

My Lords, first, I apologise to my noble friend for missing the first half-minute of his presentation. He managed to polish off the previous group much more quickly than the Government Whips’ Office had predicted and caught several of us by surprise. I hope that he will forgive us.

My noble friend will recall that our main concern about the section of the Protection of Freedoms Act to which the orders relate was not the matter that we are discussing today. Given that the Act has come into law, we recognise that the regulations are needed and therefore support the Government.

However, I take this opportunity to raise a very closely related matter and ask my noble friend whether he would kindly agree to a meeting to talk about it further. In brief, my concern is about the draft statutory guidance to chief officers of police, which has been released to a limited number of relevant stakeholders. The Minister will remember that, following the removal of the controlled activity category, my colleagues and I supported the noble Lord, Lord Bichard, in his amendment to ensure that employers—for example, colleges of further education—could obtain the information they need to enable them to make safe appointment decisions about posts other than those involving regulated activity. The issue is that, following the passage of the Act, employers will not be informed whether applicants for posts that are not regulated are on either of the barred lists.

On 12 March my noble friend the Minister promised that the statutory guidance,

“will allow the ISA or the Disclosure and Barring Service to give to the police information which led to a bar and, if the police judge it relevant to the post applied for, the police may disclose it on an enhanced certificate”.—[Official Report, 12/3/12; col. 53.]

This assurance encouraged the noble Lord, Lord Bichard, to withdraw his amendment. It is now crucial that the final version of the statutory guidance appropriately fulfils this undertaking from the Dispatch Box, which I am sure my noble friend gave in good faith. Sadly, the draft that has been circulated is not considered by some of those stakeholders to be adequate guidance for police officers to understand the nature of the Minister’s undertaking and the consequences of their decision-making. The guidance must make clear through a specific reference that the ISA and the DBS can inform the police about the information that led to the bar, and that the police should request such information from them. This is particularly important where there was no criminal charge in the case.

Secondly, there needs to be clarity about circumstances where the post applied for does not fall under regulated activity but the employer is entitled to receive enhanced criminal records information, including the information to which I have just referred that led to a bar, if the person is indeed on a barred list. I am sure the Minister will agree that to carry out Ministers’ undertakings, statutory guidance needs to assist those for whom it is meant. I hope therefore that he will be so kind as to agree to a meeting to discuss the detail of this draft guidance.

My Lords, I will make a contribution, although I feel doubly constrained, partly because I was not here at the beginning of the debate for the same reason as the noble Baroness, Lady Walmsley, and partly because I should actually be in the Chair shortly, although I suspect that by the time I am there this will be completed. I merely rise to say that I hope the Minister will concede to a meeting, because I share the concerns that have been expressed. That is all I need to say today.

My Lords, I put on record my comments from the previous debates, and I am grateful to the Minister for his offer of briefings from his department. Those would be very helpful, particularly on some of these more complex orders. I also find it difficult when going through an order if many of the references are to other legislation and you have to hunt through that legislation to find out exactly what they relate to. The Explanatory Notes are quite inadequate to address the issues that have been raised. However, his department has been quite helpful. I have spoken to officials at the Home Office and received some more information that has helped me with the comments that I wish to make today.

The issue covered by the first order was a contentious one during debate on what is now the Protection of Freedoms Act, and we were pleased by the government concessions that were made. I think that originally the Government had intended that there would be no automatic barring but that there would be an application and a process by which people could be barred. The Government changed that, and the process by which there is an automatic bar but a right to appeal is a better one.

During debate in your Lordships’ House, the noble Baroness, Lady Stowell, made it clear that the Government had,

“listened carefully to the concerns raised in this House and by organisations such as the NSPCC”,

and had,

“concluded that where someone has been convicted of a crime on the list of the most serious offences—that is, an offence that leads to an automatic bar without the right to make representations—the Independent Safeguarding Authority should bar that person whether or not they … intend to work in regulated activity. An automatic bar without representation would apply to convictions for the most serious sexual and violent offences, such as, in the case of the children’s barred list, the rape of a child. In these cases, there are no conceivable mitigating circumstances—that is why representations are not permitted—and there can be no question that the person is a risk to vulnerable groups”.—[Official Report, 15/2/12; col. 804.]

That seems to be saying that the test for someone who has been automatically barred to have the right of appeal to that barring could be mitigating circumstances. I asked the Home Office for a list, as there has to be a strong justification for removing someone from automatic barring through a process by which they can be barred but may appeal against that barring.

My understanding of the current position is that if someone is automatically barred, they have a right of appeal and the bar can be removed. Under the Protection of Freedoms Act, it is the other way round. If someone is going to be automatically barred, they have a right to appeal first and must do so within a period of eight weeks. That appeal has then to be considered. If the information that I have been given by the Home Office is correct, there could be a considerable period before someone who was subject to an automatic barring with appeal could be given that barring order.

I am grateful to the Minister and his officials for providing me with a list of the offences that are changing. I am pleased to say that rape, sexual assault by penetration, the rape of a young child and sexual assault on a young child by penetration all remain offences that will be subject to an automatic bar. Where I struggle is with offences that, although they are said to be subject to an automatic bar, have a right of appeal. The noble Baroness, Lady Stowell, has said in the House on a previous occasion that there would have to be mitigating circumstances for an appeal against the bar to be allowed. Can the Minister explain what he or his officials think is a conceivable mitigating circumstance that would allow someone to appeal against the bar?

One of the offences is in Section 20 of the Sexual Offences (Scotland) Act 2009: sexual assault on a young child—that is, a child under the age of 13. I am told by officials at the Home Office that, although only sexual assault is referred to, it has to be sexual assault with penetration. I find it difficult to understand any conceivable circumstance where someone who has been convicted of a sexual assault against a young child with penetration could be allowed to appeal against a bar. I presume, because the offence has been included in the list before us today, that the Government think that there are mitigating circumstances.

The same goes for an offence such as causing a young child to participate in a sexual activity. What conceivable mitigation can there be for someone to appeal against a bar if they were convicted of that offence? The list also includes: causing a person to engage in sexual activity without consent; trafficking people for sexual exploitation; and even female genital mutilation—an individual convicted of that offence would be allowed to appeal against the bar. I struggle to understand why that should be so. Given, as I have said, that the Protection of Freedoms Act allows a person to appeal against a bar being imposed in the first place, there could be a period of several months where someone convicted of some of the most serious sexual offences against adults or young children under the age of 13 might not be subject to a bar.

I would be grateful if the Minister could answer those questions, because I remain dissatisfied. I may have the wrong information or have misunderstood something, so if the Minister is able to reassure me, it would be helpful. If he is not, I may want to pray against the order so that we might tease out further explanation from the Government. At the moment, on the basis of the information that I have been given, the order gives me enormous cause for concern.

My Lords, perhaps I may begin by addressing the problems that the noble Baroness, Lady Smith, has had with the way in which orders are dealt with generally. I appreciate that it is often difficult for the Opposition to cope with difficult orders such as this, which require a lot of cross-referencing from one to another. Even as a lawyer, I find all these things, particularly when one is amending one Act that has consequences on another, always very difficult. As an anecdote, I can tell the noble Baroness that the late Lord Underhill, whom she will remember fondly, had a wonderful technique whereby, if in doubt on some difficult order, he would read out the Explanatory Memorandum and say to the Minister, “Now explain that”. It worked quite well, causing great confusion for a number of Ministers who thought that they had grasped everything but had not looked at the simple Explanatory Memorandum, which was probably not as simple as it should have been. I note what the noble Baroness says about that. If noble Lords come to us in advance to let us know, we will, as always, be happy to offer briefing. I also take up the point that I made earlier about the Home Office website, which is probably going to be engraved on my heart for many years to come.

I will now deal with the points put by the noble Baroness, Lady Walmsley, and the noble Lord, Lord Bichard, on the passage of the Protection of Freedoms Act and the various assurances that I gave at the Dispatch Box on statutory guidance, which at that time was not available. The simplest thing I can say is that I am more than happy to have a meeting with my noble friend, the noble Lord, Lord Bichard, and no doubt one or two other Peers, should they wish to have one. Whether the meeting should be with me or with one of my colleagues is another matter. However, I gave the assurance at the Dispatch Box and it is probably right that I should hold that meeting. I hope that we can deal with noble Lords’ concerns about the statutory guidance. We need the guidance and it must go out to chief officers of police to make sure that the order operates as we would wish. I hope that my office will be in touch with both noble Lords to arrange that in due course.

I turn to the points raised by the noble Baroness, Lady Smith, concerning appeals and so on. I am very grateful to her, first, for her acceptance that the Government moved during the passage of the Bill—now the Protection of Freedoms Act—and for the fact that she was pleased about the concessions that we made. However, she had detailed concerns about the whole appeals structure and about whether there should still be an automatic right of appeal after being barred. It was and still is the case that there is a right of appeal to the tribunal after the bar, and that is as it should be. We are now allowing representations, separate to the appeals, to be made about automatic bars before the barring decision—not after it, as now—and I hope that that deals with her concerns.

The noble Baroness also quite rightly asked what “mitigating circumstances” would be, and she then gave some examples, including from the Sexual Offences (Scotland) Act 2009. She was right to pick out, for example, Section 20 concerning sexual assault on a young child, which, as she explained, has to involve penetration. In those circumstances it is rather difficult to think what the mitigating circumstances might be. However, I think she would be the first to accept that there might be mitigating circumstances in, for example, Section 28, which concerns having intercourse with an older child who is very near the age of consent or whatever. That might be one of those borderline cases.

However, I accept that it can be difficult to think what the mitigating circumstances might be, and we are obviously going to be very careful about which offences are in the “without representation” lists. Those lists are short and currently account for only about 7% of all bars, apart from some of the new Scottish offences, which correspond to England and Wales offences already on that list. However, we are not making any amendments to the mitigating circumstances. Difficult though it might be to think of any—and at the moment I cannot—speaking as a lawyer, I can say that one has to accept that there might be occasions when there are mitigating circumstances. I think the noble Baroness has all the things listed in, for example, the Sexual Offences (Scotland) Act and other legislation. In some it is quite easy to see where the mitigating circumstances are, although in others it is exceedingly difficult. In fact, one has difficulty—

My Lords, I have the advantage of some other Members of the Committee in having taken part in the passage of the Act. I well remember that some Members on the same Benches as the noble Baroness, Lady Smith, agreed that where the ages of the perpetrator and victim are very close and where the age of the perpetrator is very young, there may be mitigating circumstances.

That was why I referred to Section 28 of the Sexual Offences (Scotland) Act 2009, which concerns having intercourse with an older child where the ages of the perpetrator and victim are very close and it is marginal.

I was trying to say that if you take the more extreme example, rightly given by the noble Baroness, of sexual assault on a younger child, it is very difficult to see where there might be mitigating circumstances but, in law, one must accept that there might be. I would rather the noble Baroness did not ask me to explain what they might be. It is possible that there could be mitigating circumstances, although it is very unlikely, other than in the sort of case to which the noble Baroness refers. In those circumstances, we ought to leave the law as it is, because it would be for the appropriate authority to decide whether there were or were not mitigating circumstances. The noble Baroness wishes to intervene.

I am grateful to the Minister. He tried very hard to think of mitigating circumstances and has been unable to do so. The noble Baroness, Lady Walmsley, refers to the age difference. I am very well aware of that. As the noble Lord said, Section 28 of the Sexual Offences (Scotland) Act refers to sexual intercourse with an older child. If someone is convicted, we are not talking about a borderline offence where the police do not know whether to prosecute. If someone is convicted of sexual assault on a young child with penetration, I cannot understand what mitigating circumstance there could be.

There are other offences here, such as causing a person to engage in sexual activity without consent or trafficking people for sexual exploitation, where I do not understand what the mitigating circumstances might be. Given that regulated activity is now more tightly drawn, we should be more careful to ensure that those who are convicted of such serious sexual and violent offences cannot work with vulnerable people. Female genital mutilation is another example where I find it hard to conceive that there could be mitigating circumstances in which that person could undertake a regulated activity. It is not just violent and sexual offences; there are others. I wonder whether the balance has moved too far. I understand that the Government did not want so much automatic barring but we seem to have moved a little too far in the wrong direction. I entirely accept the Minister’s comment that there are greyer areas where there may be some mitigation, but there are others where I struggle to understand what the mitigation might be.

On the other point I raised about the changes under the Protection of Freedoms Act—that people can appeal before they are barred—that creates an additional delay before the barring takes place. An individual convicted of such an offence has up to eight weeks to lodge an appeal against being barred. I understand from the Home Office that, once they make that appeal to the ISA—or the Disclosure and Barring Service, as it will become—that will take some time and the ISA may have to go back for additional information before it can make a decision. Therefore, we could be talking about several months before someone is barred. The current position, as the noble Lord rightly stated, is that the bar is immediate and then there can be an appeal against it, which seems to me a much fairer way to proceed. Given that the Government have changed from that to the new position, where there will be a delay, every caution should be taken to protect young and vulnerable people from those who are convicted of serious sexual offences. I am not convinced that the order gets the balance right. That is my concern.

I appreciate all the comments that the Minister has made, but he has not really done enough to satisfy me that the correct balance is reached. If there is anything else that he can say, I shall be happy to hear from him, but there are a number of offences here. He has the same list that the Home Office helpfully supplied to me, and I look at it and worry that there are people convicted of these offences who will not be subject to a bar because they have the right to appeal.

I suspect that we are again getting into detail that might be more easily discussed in a meeting with the noble Baroness and possibly others. For example, she went into the various offences in the Sexual Offences (Scotland) Act 2009, and we talked about Section 20 concerning sexual assault on a young child. My understanding, certainly under the English rules, is that the sexual assault of a young child with penetration is auto-barred without representation—that is in draft regulation 3(3)—but sexual assault involving sexual touching is with representation and therefore is treated slightly differently.

At this stage there is a danger of getting into a state of confusion about this, which is why I am saying: “Can we go ahead with this Motion at the moment?”. In due course we will have to put it to the House because that is the proper process, but before we do that it might be worth the noble Baroness having a further conversation with me. I assure her that there is no need for her to pray against the Motion; these are affirmative regulations so there is nothing to pray against as the Motion has to go to the House. However, we could delay the next stage until we have a further discussion about this, which might be the proper way to go ahead. I want to give the appropriate assurances to the noble Baroness that her concerns are being dealt with. Would that meet her requirements? We move this at the moment so that the Committee has considered it; we put off the next stage for a week or so, otherwise we will be moving it next week; and we have a meeting and make sure that we get things straight in such a manner that the noble Baroness is happy with what we are doing and there are the appropriate safeguards that she wishes to see.

I am grateful to the Minister for the offer. I think it would be helpful to meet before this goes before the House. I had already suggested to the Government Whips Office that they might not want to put it before the House tomorrow because that would be rather too soon, but the opportunity to discuss the areas of concern in detail is very welcome and I am grateful for that offer.

My Lords, since we seem to have reached a degree of agreement on this, I will formally move the regulations at this stage and then move the order.

Motion agreed.

Safeguarding Vulnerable Groups (Miscellaneous Amendments) Order 2012

Considered in Grand Committee

Moved By

That the Grand Committee do report to the House that it has considered the Safeguarding Vulnerable Groups (Miscellaneous Amendments) Order 2012.

Relevant document: 2nd Report from the Joint Committee on Statutory Instruments

Motion agreed.

Committee adjourned at 6.14 pm.