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Crime and Courts Bill [HL]

Volume 741: debated on Wednesday 12 December 2012

Report (4th Day)

Schedule 17 : Deferred prosecution agreements

Amendment 116DA

Moved by

116DA: Schedule 17, page 262, line 43, at end insert—

“( ) The Code shall not come into effect until it has been laid before Parliament, and debated by both Houses.”

My Lords, I cannot claim the prophetic prescience of my biblical near-namesake, so it is entirely fortuitous that the three amendments to which I speak will be debated the day after the announcement of what the media have described as a $1.9 billion, or £1.2 billion, fine imposed by the US authorities on HSBC in relation to charges of money laundering and sanctions busting. I observe in parenthesis that the financial penalty on the company, like those imposed on other banks, is in reality a penalty inflicted on its shareholders and, arguably, its customers. Be that as it may, the relevance of yesterday’s news is that the fine was imposed by way of a deferred prosecution agreement, which embodied other terms, including greater scrutiny of the bank’s affairs—and the involvement of a monitor to be appointed to that effect—and restrictions on bonuses for its top executives.

All three amendments touch on issues that relate to how such matters might be dealt with in the UK once this Bill is enacted. I referred before to the need to carry public opinion with us as we embark on this significant change to the legal system and the way that we deal with corporations whose activities attract breaches of the law and the possibility of substantial proceedings. Amendments 116DA and 116DB facilitate that by requiring a code of practice for prosecutors and any amended code, drawn up, as they will be, by the Director of Public Prosecutions and the director of the Serious Fraud Office, to be laid before Parliament and debated by both Houses. Again I stress that I am not proposing, as I did in Committee, that the code should be subject to the affirmative procedure, merely that it should be debated. I agree with the Minister’s assertion in his letter to me of 7 November that:

“The fundamental principle of prosecutorial independence means that it is appropriate for the code to be issued by the DPP and DSFO rather than it being put on a statutory footing in regulations by a government Minister”.

My concern is that Parliament should be able to contribute to the consultation that the directors have undertaken to conduct rather than that the code should be included after the event in the DPP’s annual report to the Attorney-General. Given the scale of the wrongdoing in the HSBC case and the amount of the financial penalty, this seems to be a sensible way forward, since the public will obviously draw comparisons between what is likely to happen in this country and what happened in America. It reinforces the similar suggestion that I made, but did not press to a vote, in relation to the Sentencing Council’s guidelines on financial penalties. It will be interesting to learn in due course whether the approach adopted under this measure is likely to leave open the possibilities of penalties approaching the scale recorded in the HSBC case. Perhaps the Minister will indicate, without pre-empting the role of the Sentencing Council, what his view is. I do not intend to seek a vote on these amendments, but I hope that the Government will give further consideration to this issue, especially in the light of these recent developments.

The third amendment stems directly from the American experience and legal system. I am indebted to my honourable friend Emily Thornberry, the shadow Attorney-General, for the information that she supplied before and after a recent visit about the practice of the US Justice Department. I spent 35 years briefing counsel, and it has been a unique and pleasant experience to have undergone this role reversal.

Amendment 119A seeks to adopt the practice and wording set out in the United States Attorneys Manual. It is a probing amendment. The US law on corporate criminal liability enhances the prospects of successful prosecutions for fraud because corporations are deemed to be vicariously liable for offences committed by their employees during the course of their duties. Here, by contrast, the prosecution must prove that, to quote the legal phrase, the “directing mind and will” of the company was guilty of the offence, and the concept of the directing mind would imply that a board member or senior manager was involved in the illegality.

I assume that the noble Lord, Lord Green, in his former role as chairman and chief executive of HSBC would, of course, have never countenanced, let alone been involved in, the activities that were the subject of the deferred prosecution agreement in America. I assume that the same will be true of other directors of the company and its managers. In this country, a criminal prosecution of the company would have been much more difficult to mount and the incentive to reach a DPA correspondingly reduced if that principle of the directing mind had been applied.

For this reason, Jonathan Fisher QC of Policy Exchange stated in an article in the Times following the publication of the Government’s consultation paper that:

“it is crucial that the proposed legislation provides that a company is vicariously liable for the acts of employees where a prosecutor can show there was fault or dishonesty by the employees concerned. Unless the Government addresses this critical point, the DPA initiative will be a damp squib”.

There is a precedent for making exceptions to the directing mind principle in the analogous field of bribery law. The Bribery Act 2010 establishes strict liability on a company whose employees or associated persons commit an offence in order to obtain business or a commercial advantage for the company. The company can plead by way of a defence that it has adequate systems and controls to prevent the bribery. There are, of course, other examples where companies could be held liable for breaches of statutory duty.

I should perhaps add that the American experience reinforces the view propounded by my noble and learned friend Lord Goldsmith, who is not in his place this afternoon, that the deferred prosecution agreement procedure should apply to individuals, although I would remain reluctant to see such an extension initially, otherwise than in cases where this might facilitate the application of DPAs to cases of economic crime and fraud.

The outcome of the HSBC case throws into stark relief the difference between the US system and what the Bill in its present form envisages, let alone the current state of the law. In particular, of course, there is every incentive in the US system for a corporation to come to terms on a deferred prosecution agreement because there is the ultimate sanction of a criminal prosecution on the basis of vicarious liability if it does not take that course. Since we all wish to see a sufficient incentive to facilitate the introduction of this new system, I hope that that will appeal to Ministers.

It is asking too much of the Minister to come back with a considered response either today or in the very limited time available before Third Reading, but I hope that the Government will take the opportunity to review and, if need be, to consult further on this issue during proceedings in the House of Commons. The proposal would extend beyond the realm of economic fraud but, as has been demonstrated in America, it can contribute to the success of the innovation which the Bill seeks to create. I beg to move.

My Lords, I support the change in position made by the noble Lord, Lord Beecham, between Committee and today regarding allowing Parliament to discuss the prosecution code without it being incorporated in a statutory instrument. It might help the Director of Public Prosecutions, the director of the Serious Fraud Office and the prosecuting authorities generally to have the views of Parliament expressed in a debate in Parliament before the code is finally adopted.

My Lords, Amendments 116DA and 116DB revisit an issue that we considered in Committee: namely, parliamentary scrutiny of a code of practice for prosecutors to support the DPA scheme. However, as the noble Lord, Lord Beecham, said, the issue has changed somewhat. In providing for a code of practice for prosecutors in relation to DPAs, the Government have been clear that the intention is to ensure consistency with other statutory provisions relating to guidance for prosecutors on operational matters. The noble Lord, Lord Beecham, referred to HSBC and the related US experience. As has been said previously, the DPA is a new addition to the UK system, and we will be looking to apply it at a future point. However, for now the Government’s position has been made clear.

The code of practice for DPAs, in the same way as the code for Crown prosecutors, will provide guidance on the exercise of prosecutorial discretion in making decisions and on key procedural and operational matters concerning DPAs. The independence of prosecutors is fundamental to the effective operation of DPAs. Therefore, it is entirely appropriate for the code for DPAs to be issued by the Director of Public Prosecutions and the director of the Serious Fraud Office. The Government have absolute confidence in the directors.

I hear what my noble and learned friend Lord Mackay mentioned in support of the points made by the noble Lord, Lord Beecham. However, the Government do not consider it necessary to make the code subject to parliamentary scrutiny. As DPAs become enshrined in UK law, I am sure that we will return to these issues. Indeed, the opportunity remains for any noble Lord to raise this issue through appropriate parliamentary procedures, be they QSDs or any other.

The approach to publication of the code provided in the schedule is wholly consistent with that under Sections 9 and 10 of the Prosecution of Offences Act 1985 in respect of the code for Crown prosecutors. The code of practice for DPAs, both the first and any future versions, will be provided to the Attorney-General by way of the Director of Public Prosecutions’ annual report, and he will in turn lay it before Parliament. The Delegated Powers and Regulatory Reform Committee did not raise any concerns about this proposed approach for the code of practice. The code is an operational document that needs to be responsive to the context in which it operates. The proposed amendments would, in particular, restrict the directors’ ability to amend or update the code as necessary to reflect timely changes in the law or lessons learnt having utilised the DPA process. The key elements of a DPA are clearly set out in the Bill. The code of practice will support the operation of the process, and the directors have committed to consult on its contents.

Amendment 119A would introduce a new and very broad basis for corporate criminal liability. Currently, there is a statutory basis for dealing with specific offending on the part of corporate bodies, for example, statutory provisions exist for dealing with corporate manslaughter, bribery and regulatory offending, such as health and safety rules. There is, however, no legislation which expressly creates general criminal liability for companies. Wider corporate liability is founded upon common law rules which attribute liability to a corporate body where the conduct is on the part of the directors, officers and those who occupy roles at the corporate centre. However, reliance is often placed on individual liability where there are many punishments and sanctions available to deal with economic or financial wrongdoing. This is, to a degree, due to the fact that corporate prosecutions are much more difficult and complicated than individual prosecutions and furthermore cases often involve lengthy and costly investigations.

The noble Lord, Lord Beecham, also referred to this point in relation to the Bribery Act 2010. The extent to which the current law of corporate criminal liability can be improved upon by employing the new “failure to prevent” formulation incorporated in the Bribery Act 2010—which the noble Lord’s amendment seeks loosely to emulate—is a matter for long-term examination. As I am sure the noble Lord, Lord Beecham, appreciates, the Bribery Act has been in force for less than 18 months. It is appropriate to allow the provision in the Act to bed down before we examine the extent to which the formulation could be usefully rolled out into other areas. However, I assure the House that the Government are committed to ensuring that investigators, prosecutors and the courts have the right tools to address financial and economic crime effectively, as is evidenced by Schedule 17.

DPAs have been specifically designed to ensure that corporate bodies are held responsible for alleged financial or economic wrongdoing on their part by providing an alternative means of disposal and a broader scope of sanctions. We remain satisfied that it is correct for the Government to focus on offering an additional route for holding to account organisations that are willing to engage in the process or otherwise face prosecution rather than on the basis of the liability itself. The noble Lord, Lord Beecham, also asked me to speculate on any level about the Sentencing Council and what it may arrive at. I am sure he appreciates that it would be totally inappropriate for me to speculate in that regard. In light of my explanations, I hope that the noble Lord, Lord Beecham, will withdraw his amendment.

My Lords, I find that slightly disappointing. The Minister did not address the issue of incentivising the DPA process, which is precisely what Amendment 119A would achieve. However, as I indicated, this is a probing amendment. The probe does not seem to have gone in very far, but in the circumstances, I prefer to withdraw both it and the amendment.

Amendment 116DA withdrawn.

Amendment 116DB not moved.

Amendment 116E not moved.

Amendment 117

Moved by

117: Transpose Schedule 17 to before Schedule 14

Amendment 117 agreed.

Amendment 118

Moved by

118: Before Clause 26, insert the following new Clause—

“Immigration cases: appeal rights; and facilitating combined appeals

(1) In section 84(1)(b) of the Nationality, Immigration and Asylum Act 2002 (grounds of appeal: decision unlawful because of race discrimination etc by Northern Ireland public authority) after “1997” insert “or by virtue of section 29 of the Equality Act 2010 (discrimination in the exercise of public functions etc) so far as relating to race as defined by section 9(1) of that Act”.

(2) In section 99 of that Act (pending appeals lapse on issue of certificates)—

(a) in subsection (1) (list of provisions under which certificates may be issued) omit “96(1) or (2),”, and(b) in the title, for “96 to” substitute “97 and”.(3) For section 47(1) of the Immigration, Asylum and Nationality Act 2006 (decision that person is to be removed from the United Kingdom may be made while person can bring appeal) substitute—

“(1) Where the Secretary of State gives written notice of a pre-removal decision to the person affected, the Secretary of State may—

(a) in the document containing that notice,(b) in a document enclosed in the same envelope as that document,(c) otherwise on the occasion when that notice is given to the person, or(d) at any time after that occasion but before an appeal against the pre-removal decision is brought under section 82(1) of the Nationality, Immigration and Asylum Act 2002,also give the person written notice that the person is to be removed from the United Kingdom under this section in accordance with directions given by an immigration officer if and when the person’s leave to enter or remain in the United Kingdom expires.(1A) In subsection (1) “pre-removal decision” means—

(a) a decision on an application—(i) for variation of limited leave to enter or remain in the United Kingdom, and(ii) made before the leave expires,(b) a decision to revoke a person’s leave to enter or remain in the United Kingdom, or (c) a decision to vary a person’s leave to enter or remain in the United Kingdom where the variation will result in the person having no leave to enter or remain in the United Kingdom.””

My Lords, I shall speak also to Amendment 124, which is in the group.

The new clause to be inserted by Amendment 118 makes three separate changes to the legislation governing immigration appeals. The first two respond to amendments tabled in Committee by my noble friend Lord Avebury.

Subsection (1) of the new clause will reinstate a ground of appeal against an immigration decision on race relations grounds. Such a ground of appeal existed prior to the commencement of the Equality Act 2010, but was removed by the consequential amendments made under that Act. The Government’s stated policy remains that there should be a ground of appeal on race relations grounds and we have therefore brought forward this amendment to reinstate a ground of appeal on those grounds.

Subsection (2) of the new clause corrects an anomaly in Section 99 of the Nationality, Immigration and Asylum Act 2002 identified by my noble friend Lord Avebury in Committee. Sections 96 and 99 of that Act are designed to stop repeated appeals being used to frustrate the immigration system. Where the Secretary of State makes an immigration decision that carries a right of appeal, she may also certify that decision on the basis that the application relies on issues that were, or could have been, raised earlier or dealt with at a previous appeal. The effect of certification is to prevent an appeal being brought. However, there is a lack of clarity within the 2002 Act about the effect of certification on appeals that are already under way.

Section 96(7) of the 2002 Act states that a certificate has no effect in relation to an appeal that is already under way, but Section 99, which makes provision for the interaction between certification and appeals in progress, states that a certificate would cause the appeal to lapse. It is government policy that a decision to certify should not cause an appeal that is already under way to lapse, and the contradiction needs to be resolved so that the effect of the legislation is clear. This technical amendment to Section 99 of the Nationality, Immigration and Asylum Act 2002 therefore seeks to clarify that certifying a decision under Section 96 of that Act does not cause a pending appeal to lapse. I thank my noble friend Lord Avebury for bringing that issue to the attention of the House.

Subsection (3) of the new clause will clarify when a decision to remove a person from the United Kingdom can be given in relation to a decision to refuse to vary leave, to curtail leave or to revoke leave. As noble Lords will be aware, this House has considered this issue before. In 2006, the House supported an amendment which then became Section 47 of the Immigration, Asylum and Nationality Act 2006. It provided a power to make immigration removal decisions where a person has statutorily extended leave to remain in the United Kingdom. Statutorily extended leave is leave which continues where an appeal can be brought against a decision to refuse to vary, to curtail or to revoke leave.

The intention behind Section 47 was that decisions should be made simultaneously, thereby allowing any appeal against removal to be heard at the same time as the appeal against the variation or curtailment decisions.

However, the Upper Tribunal in the recent case of Ahmadi concluded that secondary legislation prevents the simultaneous service of these two decisions. It concluded that the removal decision cannot be made until written notice of the decision to refuse to vary a person’s leave to remain has been given to that person. The impact of this decision is that Section 47 no longer works as it was intended, with the consequence that a removal decision can only be made after the initial appeal against a refusal to vary leave, or a decision to curtail leave or revoke leave, had been heard. The removal decision itself would then generate a second right of appeal. The effect will be to add in unnecessary, and indeed unacceptable, delays and costs into the appeals and removal process.

We are challenging the Upper Tribunal’s decision before the Court of Appeal but we have concluded that we should act swiftly to put the effect of Section 47 beyond doubt and restore the construction of that section which Parliament intended when enacting the 2006 Act. The consequential amendment to Clause 33 ensures that the provisions made by the new clause can be extended to any of the Channel Islands or the Isle of Man by Order in Council. I beg to move.

My Lords, I am most grateful to the Government for considering the matters raised in my Amendments 148B and 148D in Committee, and for coming up with this new clause which addresses them—as the Minister has explained—in subsections (1) and (2). It appears that subsection (3) of the new clause deals with the problems identified by the Upper Tribunal in the case of Ahmadi, as my noble friend the Minister said, and also that of Adamally and Jaferi. In Ahmadi, Upper Tribunal judge Mr Lane said:

“It would clearly be possible for Parliament to amend s.47 of the 2006 Act, so as to enable the respondent to make simultaneous decisions ... Unless and until that is done ... In practice ... the present usefulness of s.47 is highly questionable”.

This is, I suggest, a good example of the complexity of our immigration law, and the risks incurred by getting the language wrong. If the original Section 47(1) of the Immigration, Asylum and Nationality Act 2006 is being amended, it has taken senior judges and Parliament six years to remedy the flaws that made this particular section unworkable so that it was impossible to remove the persons concerned who had no right to remain in the UK.

We do not even know whether it is indeed the original Section 47(1) that we are amending because the website that is intended to provide your Lordships with the text of Acts as amended carries the warning message:

“There are outstanding changes not yet made by the editorial team to Immigration, Asylum and Nationality Act 2006”.

This is an unsatisfactory situation, which does not apply only in this instance, and I hope that my noble friend might say something about the steps being taken to ensure that is brought up to date, so that your Lordships and another place know what they are being asked to amend.

My Lords, perhaps I may add to what my noble friend has just said. My wife is an immigration and asylum judge and from time to time she and her colleagues are sent for training in order to try to understand what the Home Office is producing. I hope that she does not mind my mentioning this, but she and her colleagues find themselves in a quite terrible situation in trying to understand the Kafkaesque material that flows out of the Home Office. There are two people in the Chamber who will understand these amendments—one is the Minister and the other is my noble friend Lord Avebury. I do not understand them. For me to understand them I would have to read the three different Acts of Parliament, all of which are put in play in these amendments, and I would have to listen to and read again what has been said by the Minister. The net result would be that we will continue to have a network of regulations that it is quite impossible for ordinary men and women, including Members of this House, to understand unless and until the Home Office does what we have repeatedly asked it to do for the past many years—to consolidate the legislation into a single measure that can be understood by users, whether they be would-be immigrants, refugees or asylum seekers, or lawyers, NGOs or the public. At the moment it is almost incomprehensible and lacks, therefore, legal clarity. I very much hope that, when I do understand these amendments, what I have just said may be listened to by the Home Secretary and other Ministers who will instruct their officials, please, to come up with consolidating legislation that we can understand.

My Lords, I would like to comment on that because one of my responsibilities within the Home Office is regulatory reform. I agree with my noble friend that no area is more complex than the whole business of the Immigration Rules and the procedures surrounding them. The noble Lord, Lord Curry of Kirkharle, is aware of my involvement in this—indeed, the Better Regulation Executive is seeking to support the Home Office in this endeavour. I will bear in mind the comments of my noble friends because I am a great believer in the law being as simple and as clear as possible so that people can understand and operate it in the most effective way. I note very much what my noble friend has said. I hope he will understand that these amendments are designed to achieve the purpose of clarifying the law in areas of ambiguity.

Amendment 118 agreed.

Clause 26 : Appeals against refusal of entry clearance to visit the UK

Amendment 118ZA

Moved by

118ZA: Clause 26, page 23, line 26, at end insert—

“(6A) After section 50(2)(c) of the 2006 Act (procedure), insert—

“(2A) In respect of any application or claim in connection with immigration (whether or not under the rules referred to in subsection (1) or any other enactment) the Secretary of State may make provision for the communication of an immigration officer with the applicant before a decision is taken in respect of that application or claim.

(2B) Provisions under subsection (2A) may include communication with the individual so as to obtain additional information relevant to their application or claim.”

(6B) Before the coming into force of this section, the Secretary of State must make provision for communication between an immigration officer and the applicant for the purposes of obtaining further necessary information not included in the original application, as provided for under section 50(2A) and (2B) of the 2006 Act.”

My Lords, perhaps this is a timely amendment in the context of the debate that we have just had and the comments from the noble Lord, Lord Lester of Herne Hill, about having some sort of common-sense approach so legislation could be easily understood. I have called Amendment 118ZA the common-sense amendment, which I hope encourages noble Lords to support it. As the noble Lord, Lord Lester of Herne Hill, says, there is sometimes precious little common sense in how we look at legislation.

This amendment would require the Secretary of State to set in place a procedure to allow for entry clearance officers to communicate—I know that that is a radical step—with applicants during the application process, particularly if the applicant has not provided all the information needed in applying or if there is a need to clarify what may be a minor technical detail. The amendment was inspired by the details of the many cases of visa applications that have been sent to me by individuals over the past few months following debates we have had in this House, and indeed in Committee, on immigration issues.

Many of those who have contacted or written to me have been exasperated by their experience with the UK Border Agency. Whether or not their case has merit, and whether or not their case has been or will be successful, the bureaucracy that should be in place to create logic and order to the process can have the opposite effect. Ministers have said that one of the reasons for the changes they are proposing to the legislation is that applicants do not provide all the information that they should be aware of. However, the fact is that, for the vast majority of people who make such applications, there is confusion and a lack of clarity around the rules. This means that applicants can be refused on the most minor of technicalities or simply because they have not included a single document.

The Independent Chief Inspector of Borders and Immigration, John Vine, raised this very point in his review last year. His report, Entry Clearance Decision-making, noted that in 16% of the cases won on appeal that he reviewed, applicants had been refused on the basis of failure,

“to provide information which they could not have been aware”,

was required at the time of making their application. Even though Ministers consider that they should have been aware, clearly they were not aware. That is a definite example of the lack of clarity about what is required. For further evidence as to why clarity is required, in 33% of the successful appeals that John Vine reviewed, the entry clearance officer had not properly considered the evidence that had been submitted.

Family members of British citizens who want to come over for a visit—perhaps for a wedding or to visit a sick or ailing relative—are being refused entry because of poor decision-making and a lack of clarity over the application process. The Government’s proposal to scrap the right of appeal leaves applicants without any indication of how they should amend their application the second time around, or even whether the same errors of omission or mistakes will continue to be made. That will do nothing to address the problems that the Government have identified. It is also difficult to see how it will reduce costs.

The Government have also conceded this argument. The former Minister for Immigration, now the Minister for Crime and Policing, the right honourable Damian Green, based the argument for scrapping appeals for family visas on the fact that 63% of appeals,

“are lost entirely because of new evidence introduced at the appeal stage”.

Obviously, if the applicant had been clear in the first place as to what was required, he or she would have submitted that information or evidence the first time round. Applicants do not want their application delayed or the uncertainty increased; they want to provide the accurate information. They have not provided it only because of a lack of clarity about what is required.

This problem has got worse. The success rate of appeals against family visit refusals has risen from 19% in 2004 to 37% in 2010. The latest report from the independent chief inspector about the backlog of 147,000 immigration and asylum claims at the UK Border Agency shows that at one point there were 100,000 items of unopened post, including 14,800 recorded delivery letters. This is a shocking state of affairs. It shows that the information being sent on is not being examined adequately.

I stress that I am not laying the blame on entry clearance or immigration officers. I have enormous sympathy with them; they are under huge strain. The Government have cut 5,000 staff from the UK Border Agency, so the workload of individual officers is increasing. The increasing backlog is putting on additional pressure. However, instead of seeking to deal with the chronic problems in the decision-making process, the Government have chosen to scrap appeals entirely. It could be argued that this is an easy option, rather than an effective one. One of the things that I was most struck by in the letters and e-mails I have received—and there have been a very large number of them—is that so many of those errors could have been sorted out relatively easily and more straightforwardly through better communication between the UK Border Agency and the applicant.

I have permission to give an example from one man who has contacted me. I will call him Mr H. However, I can give the Minister the details—he has had information from this gentleman previously. He is an intelligent and articulate British citizen, married to a lady from overseas. They could not understand why their application had been rejected, because they had passed the many hurdles that had been set for them, including the language test. They are now desperate to be living together as man and wife. It was only after I passed the information to the Minister’s office—for which I am grateful; he passed it on to the Minister for Immigration, and the noble Lord, Lord Avebury, also took up this particular case—that Mr H was told what information he had not included. He has since submitted that. However, the lack of clarity about what exactly was required meant that before he received that clarification—and he sent numerous e-mails to the UKBA asking for clarification of what was required—he scanned and sent hundreds of pages because he was so nervous about not including the correct information. He wanted to ensure that the right information was received but he could get no guidance from the UK Border Agency. He then wrote to me that the border agency had lost the appeal. I am pleased to say that it has now been found and he is hoping for a decision before 22 December, when he is returning home to the UK. He hopes that his wife will be able to return with him. Not only has that whole process involved a great deal of stress and worry for him and his wife, but think of the pressure on the overworked immigration officers who have had to consider his first application, deal with his inquiries about what was required for the appeal, and then consider the appeal, which apparently included hundreds of pages of unnecessary information because no one told him what information was required, and he was anxious so he included far too much. His frustration about the whole process is very clear.

Would it not have been easier and cheaper for all concerned if the entry clearance officer had been in a position to contact Mr H originally to let him know what information was missing and give him a certain number of days in which to supply it? That is why we call this a common-sense amendment—it would save time, money and stress.

One of the reasons why so many people are so concerned about the scrapping of the appeal process is that by appealing the decision the applicant can keep the case alive with the UK Border Agency, and that often allows them to get the support of their Member of Parliament who can communicate with the Home Office on their behalf to get to the bottom of a refusal decision and why it has been made. The noble Baroness, Lady Hamwee, made this very same point in Committee:

“Are there no mechanisms for additional information, or for clarification of information, to be requested without an application being rejected? It seems common sense that the mechanisms should allow for some simple process of that sort”.—[Official Report, 4/7/12; col. 696.]

The amendment seeks to implement such a mechanism before appeals for family visit visas are scrapped altogether by the Government. I understand that they are looking to cut the cost of the process, but I am concerned that they are just taking the easy way out without dealing with the chronic problems crippling UKBA’s decision-making. The amendment seeks to ensure a fairer and more accurate system so that when appeals have been scrapped, applicants can feel confident that they will not be refused out of hand for simply failing to include one document or for a simple error on a form, but rather there will be a process by which they can talk to someone, or someone else can contact them and tell them what the problem is, and it can be far more easily resolved. I beg to move.

My Lords, I agree with the noble Baroness. A great many of the refusals of applications for leave to enter have been due to misunderstandings about what information is required, and there ought to be a simple procedure for rectifying elementary omissions. I think that I recognise the particular case that she mentioned, because that person has already been in touch with me as well. He made every effort by sending numerous e-mails to the people dealing with the case to try to find out exactly what omission he was guilty of, but was never successful in establishing what further information he needed to provide.

Clause 26 removes the right of appeal against the refusal of a visa to visit family members, except where the appeal is brought on racial discrimination or human rights grounds. I had hoped that in the five months since we considered this matter in Committee, and in the light of the arguments that we advanced then, the Government would have had second thoughts about this clause. It is disappointing to see no sign of that on the Marshalled List.

I shall explain why we felt the need to return to this matter. The Government’s hostility to the right to family life is exemplified by the making of new Immigration Rules making it far more difficult and expensive for spouses and elderly dependent relatives to join heads of households in the UK, reducing the number by an expected 35%, over which the Immigration Minister is already crowing. Clause 26 turns the screw further by preventing appeals that would have been successful under the law as it now stands. I pointed out in Committee that if the argument for Clause 26 was that the number of appeals had risen to far greater levels than were expected when the right of appeal was restored in 2000, as was argued before the Home Affairs Select Committee, the obvious remedy was to get UKBA’s decisions right in the first place. Almost one-third of them are overturned, according to my noble kinsman Lord Henley in Committee, involving the taxpayer in a great deal of unnecessary expense. My noble kinsman said that taking away the right of appeal would lift the burden of processing 50,000 appeals from visa staff, but that was based on the assumption that officials would continue to reject bona fide applications at the same rate as they have in the past. We are told constantly that UKBA is undergoing processes of reform, which will enable them to be more accurate in the first decisions that they make.

After the case of Alvi, which your Lordships have discussed, the information required to be submitted with the visa application is now set out in detail in the rules themselves, so that in theory, there should be fewer cases where an applicant has omitted a particular document. However, considering the volume and complexity of the rules, which was mentioned by my noble friend Lord Lester on the previous amendment, it is inevitable that some applications will be refused for that reason. The Government suggest that persons who have omitted a document should put in a new application rectifying the omission at a cost of £78. That may be a trivial sum to my noble friends on the Front Bench, but it is a lot of money to a poor farmer in Gujarat or Sylhet.

I take the point that a new application is less expensive and faster than an appeal; but where the decision-makers have made an obvious mistake, I do not accept that a genuine family visitor should have to pay twice, and suffer the complications affecting future travel, because the refusal has to be declared not only in the UK but to any other intended destinations to which the applicant may travel. Therefore, it is a blot on the person’s copybook that he will want and need to remove if he is to go anywhere without hindrance.

If a person wins the appeal, it is likely that the tribunal will make a costs order against the Secretary of State, so that the appeal will be free in the end. Moreover, if the refusal was due to disbelief that the applicant would return home at the end of the visit, it is only too probable that a fresh application would yield the same result. Only by appealing can the person attack the errors that led to the original refusal, and it was for that reason that I advised Mrs N from Beirut—whom I think was the person that the noble Baroness was talking about a few minutes ago and whose case I mentioned in Committee—to appeal as well as to ask for the original decision to be reviewed.

Therefore, I am afraid that the reasons that were given by my noble kinsman for thinking that an appeal may not be the best remedy for an unjustified refusal do not hold water. I hope that in the light of that consideration, there should be a simple process that would enable the applicant to lodge supplementary evidence supporting the validity of any document or statement which is challenged, rather than having to start again from scratch.

My Lords, many years ago, in 1967, I did the first case in Strasbourg against the United Kingdom: a case called Mohamed Alam & Mohamed Khan. Sir Roy Wilson had produced his report advocating an appeal system. It was as a result of the Strasbourg case and Sir Roy Wilson’s report that the immigration appeals system was first introduced —a system which has gone on until now. I strongly support the explanations and powerful speeches given by the noble Baroness, Lady Smith, and my noble friend Lord Avebury.

What is the situation at the moment? Instead of there being a proper process at first instance before there is an appeal—a process of proper decision-taking based upon the kind of common-sense approach that the noble Baroness, Lady Smith, is advocating—mistakes are made quite frequently. When the appeal comes to someone who is an immigration and asylum judge, often no presenting officer is produced by the Home Office to present the government case or there is no one to represent the applicant. My wife will come home at the end of the day and say, “I have now for the first time to take a proper decision myself as though I were doing it at first instance because I have nobody to help me on either side and I find that the initial decision is defective. I now, on appeal at great public expense, have to correct mistakes which should not have been made in the first place at first instance. The only way in which those mistakes can be corrected is by having an appeal system. It is the only safeguard”.

The system now resembles the fairy story, The Little Prince, which noble Lords may remember, in which the boa constrictor swallows a sheep. One sees the lump of the sheep passing along the boa constrictor. The sheep is the process of taking decisions in this area. Instead of the process being properly determined at first instance and making the need for appeals rare, a great lump, the creature, passes along the snake, which leads to a first-instance appeal, an upper-tier appeal and judicial review.

The remedy is simply the common-sense one. One has at first level as much information as possible for a well informed decision. The advantage of the amendment tabled by the noble Baroness, Lady Smith, is that it would at least enable proper communication between the officer and the applicant or the applicant’s representative. I can see no argument against that, especially if we were to abolish appeals, which I very much hope will not be the case.

My Lords, I will address Amendment 118ZA in the name of the noble Baroness, Lady Smith. Before I do so, perhaps I may say that I understand that the contributions made by the noble Baroness and my noble friends Lord Avebury and Lord Lester are designed to build a more efficient system. In my response, I hope that I can demonstrate that that also is the Government’s intention.

The UK Border Agency publishes supporting documents guidance specifically for family visitors. It provides extensive guidance in several languages on the type of documents that customers should consider submitting. Perhaps I may elaborate on that. The UKBA provides guidance on how to fill in the visa application form. It is translated into six languages—Arabic, Chinese, Hindi, Russian, Thai and Turkish. Improvements are also being made to the online visa application process, which will be completed in May 2013. All that is available on UKBA’s website for those wishing to make applications. I should also tell noble Lords that if a refused application is received, the UKBA writes to the refusee to tell them what is missing from their documentation. I believe that this is a valuable way to make sure that the process is as user friendly as possible.

If the amendment in the name of the noble Baroness, Lady Smith, was successful it would put a significant resource burden on entry clearance officers to make inquiries with the minority of applicants—it is a minority of applicants—who do not provide sufficient information with their application. The Government have not been persuaded by the noble Baroness that this is right. Of course there is work to do on continuing to improve the application process. However, the onus must be on applicants to satisfy visa officers that they meet the requirements of the Immigration Rules and to ensure that they have prepared the application properly before submitting it.

As drafted, the amendment would not just affect visit visa applications, but all applications, including those where the claimant still has the full right of appeal. That would place an unreasonable burden on the UK Border Agency and would have the effect of transferring the costs of incomplete applications on to the taxpayer. I hope that the noble Baroness will also be informed by my comments on the amendments proposed by my noble friend Lord Avebury.

It is important that I stress that the Government understand that family visit visas can help maintain family links, which is why we granted around 370,000 family visit visas in 2011. However, I do not agree that Clause 26 should be removed from the Bill. For a start, the appeal right is not of great benefit when people seek to come to the UK for specific family events. Based on the short-term nature of the visa, it seems logical that a large proportion of applications will be for specific family events. The appeal process at present can take up to eight months to be concluded, by which time that event is more than likely to have passed. In contrast, a reapplication procedure to the UK Border Agency will typically result in a decision within 15 days. Furthermore, every refusal is accompanied by a detailed letter, as I have said, which sets out the reasons for that refusal, and which can be addressed in a reapplication. As long as no deception was involved, each subsequent application is treated entirely on its own merits.

The amounts involved are considerable. For the taxpayer, removing the full right of appeal will result in savings of £107 million over 10 years from enactment. It will free up resource in the UK Border Agency and in Her Majesty’s Courts and Tribunals Service, allowing greater priority to be given to cases that have far-reaching impacts for the individuals involved and for society in general, such as asylum claims or the deportation of foreign criminals.

In Committee, and today, noble Lords have said that this appeal right should be retained because decision-making by entry clearance officers is poor. As my noble friend Lord Henley pointed out in Committee, we do not accept that this reflects our performance on family visa visit cases. Our analysis suggests that the vast majority—over two-thirds—of family visit visa appeals that were allowed were successful partly on the basis of new evidence submitted after the original application was made.

Quite simply, the tribunal makes a different decision based on different information. That is not a sensible or proportionate use of the appeals system, which is more time-consuming and protracted than a fresh application system. If applicants have additional information that they wish to provide in support of a visa application, they should reapply. The appeals system should not be used as a second application, not least as it is more time -consuming, as I have said, and can be more expensive.

Will my noble friend deal with the point I made? The exercise of the right of appeal is not only for the purpose of getting the decision reversed but to prevent there being a blot on a person’s record, which may seriously hinder their future ability to travel anywhere?

I do not accept that at all. If someone’s application to visit this country is refused, then I regret to say that it must be because either they have failed to fill in the application correctly or there are substantial reasons why they should not be allowed to make that visit. I cannot accept the premise of my noble friend’s argument.

The Government are not persuaded by the case for my noble friend’s Amendment 118A. To accept it would introduce a right of appeal for people who have, for example, practised criminal or other dishonest behaviour, while those who have acted honestly would not have an appeal. It cannot be right that that type of behaviour is rewarded.

Regardless of whether an application is refused, relying on a general ground of refusal, the applicant is free to re-apply setting out why the previous refusal was unjustified. All refusals on general grounds are authorised or reviewed by entry clearance managers before being served. If refused under general grounds, it is also open for an applicant to make a fresh application by providing new evidence which an entry clearance officer will take into account. A refusal under paragraph 320 of the Immigration Rules may also be challenged by a judicial review. Prior to making decisions, all entry clearance officers have to pass a three-week training course, part of which focuses on making decisions using paragraph 320 of the Immigration Rules. There is also an e-learning package specifically relating to the sub-paragraphs of paragraph 320 that may lead to an applicant’s future applications being automatically banned. This package is completed by entry clearance officers during their induction training on arrival at their decision-making post.

I think I have demonstrated that the process is thorough and that there will be considerable advantage to the efficiency of the system and, indeed, to applicants themselves if the Government’s proposals are approved. I trust that I have been able to satisfy my noble friend.

My Lords, the Minister has always been generous with his time and courteous in his response, but I am sad that he is also disappointing. He seems to have relied on existing guidance being adequate and user-friendly. I thought that my comments that the genuine mistakes that are made could be more easily rectified than they are under the current process or the process proposed by the Government indicated that it is not quite user-friendly. No matter how many languages are used, if people do not understand what is required of them they cannot provide it. Perhaps the Minister thinks the guidance is adequate. If it were adequate, applicants would submit all the information required. There is no interest for applicants to make a mistake or not to supply something that they should.

It beggars belief and is against natural justice that the appeal process can be scrapped and that the Government are not taking steps to improve the original decision-making when the figures show that 37% of appeals are successful.

The allegation that we are not taking steps to improve the original decision-making has been refuted by what I said in my response to the amendments. I do not want to make an argument out of this issue, but the Government are very much focused on trying to ensure that the decision-making process is efficient and fair to applicants, as well as to taxpayers.

I do not doubt that that is the Minister’s intention, but when we hear that the success rate of appeals against family visit visa refusals has risen from 19% in 2004 to 37% in 2010, that does not sound as if the system is getting more efficient, rather that the system is less efficient.

The point I am making is about removing the appeal process at that time. We heard from Sir John Vine about the huge backlog of cases that are currently in the system. There are 100,000 envelopes unopened, including 14,000 containing recorded delivery information. I think that our amendment is a common-sense approach. Remarkably, even the noble and learned Lord, Lord Lester of Herne Hill, who takes a legal approach to these things, agrees with me on this point. I am seeking to be helpful to the Minister and the Government. He may think there are times when I am not, but on this occasion I am seeking to be helpful.

The Minister spoke of the letter which is sent to applicants on reasons for refusal. That reason for refusal may be one very minor, technical matter that can easily be resolved via a phone call. I am extremely disappointed by the Minister’s response. I hope he will take this away and consider further the points that I have made. I beg leave to withdraw the amendment.

Amendment 118ZA withdrawn.

Amendments 118A and 118B not moved.

Clause 27 : Restriction on right of appeal from within the United Kingdom

Amendment 118C

Moved by

118C: Clause 27, page 24, line 17, at end insert—

“(4) This section does not apply if—

(a) the person concerned is stateless,(b) the person concerned has previously made an asylum claim or a human rights claim and been granted leave on that basis, or(c) the person concerned asserts in his or her grounds of appeal an asylum claim or a human rights claim.”

My Lords, leaving out this clause would ensure that a person who is outside the country when his or her leave is cut short by the Secretary of State retains the right to return to the UK within the time limit for appeal and thus the right to exercise an appeal in country. At issue are cases where a person’s leave is cut short by the Secretary of State under Section 82(2)(e) of the Nationality, Immigration and Asylum Act 2002 when he is outside of the UK at the time of the refusal.

It happens frequently and not by accident that the Secretary of State takes advantage of a person’s absence to issue the notice, knowing that that person will not be able to return to the UK to exercise the right of appeal. At the moment, that person has an in-country right of appeal against refusal. The courts have had to consider what happens when an individual is outside the UK at the time of the refusal. As I say, these circumstances will not arise by chance. The Secretary of State will have waited until the person is outside the country to serve the notice cancelling their leave. The courts have held that the person has the right to return to the UK and to lodge an appeal within the time limit for appealing if he had been within his previous leave to remain.

Clause 27 provides that such a person will be given no opportunity to return to the UK, reversing the decision of the court in the case of MK. I referred to this case in Committee so there is no reason to repeat the details now. I simply remind your Lordships that MK was a Tunisian refugee in the UK, but was in Italy when his status was revoked by the Home Secretary. His right to contest that decision in the UK was upheld by the court. It is that decision which is reversed by Clause 27.

The clause has been amended to restrict the Secretary of State’s power to exclude an in-country right of appeal to those cases where she exercises the power before the person brings his or her appeal. However, this does not address the fundamental injustice in the clause. In Committee, my noble kinsman said that it was,

“wholly reasonable that judicial scrutiny of the decision should be carried out while the individual remains outside the United Kingdom”.—[Official Report, 4/7/12; col. 719.]

He ignored the fact that a person stranded abroad without access to legal advice and unable to consult face-to-face with his lawyers or to approach witnesses who might testify on his behalf is generally going to be at an overwhelming disadvantage in challenging the Home Secretary’s decision. My noble kinsman said that legal aid would remain available for most applications for judicial review of immigration decisions, and I would be grateful if the Minister would confirm that it will be available in these cases as well.

I mentioned also the Court of Appeal’s finding in the case of MK that the right to an in-country appeal was “valuable” and the fact that pursuing an appeal that turns on character may depend critically on how the litigant appears in court. I submit that it is wholly unreasonable for persons who may have resided in the UK for many years to be put in this position. We are not seeking to undermine what my noble kinsman referred to as,

“the operational integrity of the Home Secretary’s power to exclude an individual from the United Kingdom”.—[Official Report, 4/7/12; col. 721.]

We simply seek to ensure that in exercising this power to change someone’s life drastically for the worse, the Home Secretary must abide by the rule of law.

If the repercussions of Clause 27 are serious for those to whom it applies in general, they would be exceptionally so for stateless persons, refugees and persons granted humanitarian protection. Therefore, retaining for these persons the right to return to the UK within the time limit for appeal and to exercise an appeal in country is only fair. They will find themselves, and possibly their families also, stranded outside the UK and with no other country to which they can legally resort in safety if this clause goes through.

My noble kinsman said in Committee in response to this amendment that it could provide every individual refused under the provision with an in-country right of appeal, as they would merely need to raise human rights or asylum grounds in their appeal. Proposed new subsection (4)(c) would have this consequence, but of course the appeal would succeed only if the asylum or human rights claim was found on appeal to be justified.

The Government are proposing a hugely oppressive measure of stripping a person of their leave to remain while they are outside the UK and leaving them in limbo. They must accept the need to put in place safeguards. It may not be possible to ensure that no one other than those in genuine need of the safeguards benefit, but if that is the only objection to the amendment, my noble friend should say so and we can preserve at least proposed new subsections (4)(a) and (4)(b) on Third Reading. Those who are already stateless or who have been granted leave to remain on the basis of an asylum or human rights claim are surely not to be deprived of a meaningful right of appeal against a decision that will ruin their lives for ever. I beg to move.

My Lords, I support the noble Lord, Lord Avebury. As he said, it is very difficult effectively to pursue an appeal from abroad. As I understand the clause that the noble Lord seeks to amend, the Secretary of State may take advantage of the temporary absence abroad of an individual. He or she may wait for the individual to go abroad, and may act even though the individual may be abroad—as often happens—for compassionate reasons such as the ill health of a child or an aged relative. The clause is very unjust and very arbitrary.

My Lords, when the noble Lord, Lord Avebury, raised this issue in Committee, I raised with the Minister some questions about the process that the Government were seeking to introduce. Like the noble Lord, Lord Avebury, I was not entirely satisfied with the replies I received. In fact, I did not receive responses to some of the questions that I raised. I hope that in the time that has expired since 4 July this year the Home Office has been able to provide some answers to those questions.

The point was raised about someone’s leave to remain being cancelled while they were out of the country. I am still unclear—because I have not had a satisfactory response—about the criteria for cancelling someone’s leave to remain while they are out of the country. Is it a purely administrative decision because the decision-making time has come up for that person—they were going to be denied leave to remain and they happened to be out of the country—or is it the case, as the noble Lords, Lord Pannick and Lord Avebury, suggested, that the Home Secretary will lie in wait for somebody to leave the country, possibly on compassionate grounds, whereupon their leave to remain will be cancelled? It would be helpful to know what the criteria will be and how the decision will be made.

It would also be useful to have information on what proportion of cancelled leave to remain is cancelled when the subject is outside the country as opposed to when the subject is in the country. I asked that in July in Committee and did not receive an answer. There has been some time since July to get that information; I hope that the noble Lord will have it available.

Another issue is the definition of “public good”. The legislation refers to a decision on removing the right to remain as being taken,

“wholly or partly on the ground that it is no longer conducive to the public good for the person to have leave to … remain”.

Is there a definition of when the public good is no longer there, or when it should be decided that there is no public good and that leave to remain should be withdrawn? The Government need to answer questions on this. I was disappointed not to get responses from the previous Minister—I am not suggesting that the present Minister did not answer me in July—and I hope to get some responses today.

My Lords, the noble Baroness described me as “noble and learned”. I should not be described in that way because I am not a former law officer or Law Lord—and I am not sure about being noble. However, it is true that I look at matters as a lawyer. I cannot help that; it is a problem that comes with 40 years of doing it.

I am interested to know what the Minister’s response would be to the remark made by the noble Lord, Lord Pannick, when he described this as “arbitrary”. That seems to be a correct way of describing it. Can the Minister explain why, if the amendment tabled by the noble Lord, Lord Avebury, were rejected, the Government would not be highly vulnerable to a legal challenge in our courts or, I dare say, the European Court of Human Rights?

My Lords, we set out in Committee the reasons for Clause 27. It demonstrates a current anomaly in legislation that allows high-harm individuals to return here to appeal the decision to cancel leave, despite being excluded from the United Kingdom by the Secretary of State.

Exclusion from the United Kingdom is a key tool in tackling those who seek to cause harm to the United Kingdom. Exclusion is used to tackle a range of conduct including terrorist-related activity, serious criminality and engagement in unacceptable behaviours. The exclusion power is used sparingly and is reserved for those who are considered to be the highest-harm cases. It is therefore crucial that once the Secretary of State makes such a decision, it is given full and immediate effect. It should not be undermined by a separate immigration decision, taken only to give effect to the exclusion, and the accompanying rights of appeal.

Of course any such decision by the Secretary of State should be open to challenge and review by the courts. No one is denying that. However, the Government believe that, given the nature of these cases, it is wholly reasonable that judicial scrutiny of the facts should be carried out while the individual remains outside the United Kingdom. When noble Lords consider the type of conduct that has led to these decisions by the Secretary of State, it seems to be an entirely reasonable and proportionate proposition.

The point has already been made in this debate that if such an appeal is made, the appellant is put at a very grave disadvantage as a result of difficulty in communicating with counsel and in speaking to witnesses who may have something to say that is relevant. The rule of law cannot be properly discharged if the Minister cannot find more support for the absence of the appellant.

I tend to disagree with the noble Lord. I cannot see why it should be possible to allow somebody whom the Secretary of State for the Home Department has decided to exclude to return to this country purely to pursue an appeal against that decision. I do not accept that that is reasonable and that is why we have included this clause in the Bill.

I am grateful to the noble Lord. Is not the point that however reprehensible the allegations against the individual, if they are present in this country then they are entitled to remain and pursue an appeal? The question is whether, because of the accident that they may be abroad for a day or two for entirely understandable compassionate reasons and because the Secretary of State takes advantage of that absence to make a decision, they should then be unable to pursue an appeal while within the United Kingdom.

I think we disagree on that. Noble Lords will understand the premise on which the Government are basing their decision. It cannot be right to allow someone to return to this country when the decision has already been made by the Secretary of State that that person is considered to be undesirable to admit to this country and that is the reason for their exclusion. I should perhaps help the debate by giving some figures. Since 2005, 426 individuals have been excluded on the grounds of national security, unacceptable behaviour, serious criminality or war crimes. Annual figures have varied over the years from 111 in 2007 to 40 last year. Incidences of the decision to exclude an individual with an accompanying decision to cancel leave have totalled 30 over that period. The most was seven in one year and the fewest was two. This year to date: nil. I hope that helps noble Lords to put this matter in perspective. The Government have a responsibility for the security of the country and I hope that will carry some weight with noble Lords in this argument.

I will now carry on with what I was intending to say. Clause 27 seeks to provide the Secretary of State with a certification power where she decides that the decision to cancel leave under Section 82(2)(e) of the Nationality, Immigration and Asylum Act 2002 was taken on the grounds that the individual’s presence in the United Kingdom would not be conducive to the public good. The individual must be outside the United Kingdom at the time of the decision for the Clause 27 provision to have effect, the effect being that on certification the in-country right of appeal under Section 92 of the Nationality, Immigration and Asylum Act 2002 no longer applies to such a decision, which means that the person has an appeal from outside the United Kingdom. To be clear, the individual will still have a full merits appeal but that will be exercisable from outside the United Kingdom instead of from within the United Kingdom. We accept that the power to remove appeal rights from the United Kingdom to abroad must be reserved for highest-harm cases. This is why we have restricted the application of the certification power to individuals where the decision to cancel their leave is based on the Secretary of State’s assessment that their presence in the United Kingdom is not conducive to the public good. We have also expressly stated that this applies only to individuals outside the United Kingdom at the time of that decision.

Such cases have been, and will remain, the exception rather than the norm. Clause 27 seeks to maintain the operational integrity of the Secretary of State’s power to exclude an individual from the United Kingdom. Such decisions are not taken lightly and are reserved for the highest-harm individuals. It is therefore imperative that such a decision remains operationally effective, pending judicial scrutiny. For these reasons I cannot support Amendment 118D, which seeks to remove Clause 27 from the Bill. Similarly, Amendment 118C could seriously undermine the Government’s ability to secure our borders against individuals who pose a threat to the United Kingdom. The amendment would exclude from Clause 27 those individuals who are stateless, those who have previously been granted leave to enter, those who remain based on a successful asylum or human rights claim, and those who raise human rights or asylum issues in their grounds for appeal. As previously stated, it is right that we provide protection to those in need and the Government remain committed to their international obligations to such individuals. However, the Government also have an important obligation to protect the public from high-harm individuals whose actions pose a threat to national security or the rule of law.

I am sorry to interrupt the Minister but I am now genuinely bemused. We know from the Chahal case that the Special Immigration Appeals Commission was set up so that appeals could be dealt with through closed material proceedings, protecting national security and the interests of justice. I welcomed that because I care about national security as well as justice, and that scheme had to be introduced because the European court said so. Now we are in a position where the Government concede that, if the high-harm person is within this country, they should have the necessary right of appeal. The noble Lord, Lord Pannick, made the point that if the high-harm person happens to be abroad for compassionate reasons, it is arbitrary and irrational that that person should not be in as good a position as if he were in this country. Simply using the Home Secretary’s power to say that someone’s presence is not conducive to the public good, which is what happened in Chahal, is arbitrary. That is what is bewildering us. We cannot understand why the interests of national security should not, at this point, understand the needs of the rule of law.

I am not a lawyer but I am, I hope, filled with common sense. It strikes me as being quite nonsensical to allow an individual back into this country to pursue an appeal against exclusion. The exclusion decision, if I may say so, is taken on grounds that the noble Lord has admitted may well include protecting national security. Indeed, criminality and protecting national security are the only grounds on which high-harm individuals may be pursued. Their right of appeal is not removed. The question is whether they should be readmitted to this country to pursue that appeal. I suggest that is nonsensical and I cannot accept the noble Lord’s position on the matter.

I was explaining that for many of these cases the primary objective is to protect the public from individuals where credible evidence suggests involvement in terrorist-related activity or serious criminality. In other cases, it is to protect the public from individuals intent on inciting others to commit crime or on creating divisions between communities. Therefore, the legislative proposal is designed to target the highest-harm cases, and it is proportionate, for the protection of the public, to ensure that any appeal for which a full-merits appeal right still exists is from outside the United Kingdom.

Amendment 118C would potentially provide every individual refused under this provision with an in-country right of appeal as they would simply need to raise human rights or asylum grounds in their appeal. That cannot be right and for that reason we are unable to support the amendment. I hope that, in the light of my remarks, my noble friend Lord Avebury will understand the drivers behind this clause and why the Government have to ask him to withdraw his amendment.

I have been listening to this debate without any particularly strong views either way. However, perhaps the Minister can assist with this question. On the assumption that a stateless person, for instance, or indeed anyone else who has been refused a return, is outside the country somewhere, how on earth does he or she actually continue an appeal?

My Lords, the process of appeal is open to anybody and the circumstances in which they have found themselves is a matter for them. This country and its Government have decided that their presence in this country is not conducive to the public good, which I think is a reasonable decision for the Government to make. It is open to challenge through the judicial process and that individual still has a right of appeal. It is not for me to suggest the details of ways in which that appeal should be processed.

I, too, have been listening very closely to this debate, with no expertise whatever. However, I take on board the concerns of various noble Lords. Could not the matter be satisfactorily resolved by placing on the person making a decision the requirement to let the individual under suspicion know when a decision is going to be taken?

I think that would be counterproductive. If the noble Lord thinks through the circumstances of that question, he will understand that.

Am I right in thinking that this form of appeal from outside the country has been part of the immigration process for a substantial period? In addition, is it not the case that it can be a written process and that forms can be used for the purposes of the appeal?

My Lords, just before my noble friend sits down, I would like to understand the position. Somebody is outside the country having had leave to remain in it previously; the Secretary of State gets information to suggest that that person would be dangerous to the country if he or she returns; and the Secretary of State decides, on that information, that that is so. Is the position then that, in order to comply with the amendment of the noble Lord, Lord Avebury, the Secretary of State would have to allow that person, whom he or she believes to be a dangerous person to the security of the country, back to lodge an appeal? Why should that be? Why should the Secretary of State allow somebody, whom he or she thinks to be a danger to the country, to come back into the country solely for the purpose of appealing against that judgment? If he does come back into the country, there is at least a risk that his activities will not be confined to appealing but may include doing what the Home Secretary has considered constitutes the possibility of danger to the country.

My Lords, the crux of the matter is that the Minister suggests that credible evidence exists for the Home Secretary to have made this decision that the person has been involved in serious criminality, terrorism and so on. The Secretary of State waits until the person goes abroad for some reason, whether it be for compassionate reasons, as the noble Lord, Lord Pannick, has suggested, or for any other reason, and then pounces—

I realise we are on Report, but I will just say to the noble Lord that it may be that the conduct that leads to the Home Secretary making this decision takes place while this individual is abroad. I think the notion that this is a premeditated trap is false. It is more to do with the possibility that the individual, while abroad, makes contact with someone, or evidence comes to light as to their true intent, or what they might do when they return to this country becomes apparent, and the Home Secretary wishes to deal with the problem.

I do not know. The noble Lord has raised this for the first time. It has often been suggested that the Home Secretary does pounce when somebody is abroad for personal reasons. In the case of MK, which I quoted in Committee and mentioned again briefly during this debate, those acting on behalf of MK certainly believed that the Home Secretary deliberately waited until he was abroad before exercising this power.

The Minister was relying on the Home Secretary having credible evidence of this person’s activities being in the nature of serious criminality, terrorism and so on. One has to take that on trust. In nine cases out of 10, this individual is not going to be able to appeal. The individual will be stateless, as the noble and learned Baroness has just suggested, and that was the case with MK. He was a recognised refugee in this country when he went to Italy, I think. He was in Italy when the Home Secretary made the order against him, making it virtually impossible for him to exercise a worthwhile right of appeal.

I know of cases where it has been alleged that somebody’s presence in the United Kingdom is non-conducive to the public good. I had long correspondence with successive Secretaries of State trying to discover the issue in a particular case—that of the leader of the Jammu Kashmir Liberation Front, who was formally a refugee in this country and was declared by the Home Secretary to be non-conducive to the public good after he had been arrested on charges of terrorism and acquitted. Nevertheless, he was sent packing and has not been readmitted to the United Kingdom since then. I made great efforts to persuade Secretaries of State that he is no danger to the public in this country and that his activities as the leader of the Jammu Kashmir Liberation Front have been peaceful, but I have never been able to get behind the decision. The decision that somebody’s presence is non-conducive to the public good is one that the Secretary of State exercises by his or her absolute authority, and it is difficult to challenge.

I am grateful to the noble Lord, Lord Pannick, and my noble friend Lord Lester for the support that they have given to this amendment. I was thinking of testing the opinion of the House. I have decided at this stage not to, but to think further about what my noble friend has said in reply and to consider what methods we have for dealing with this situation. It is a serious flaw in our procedures to force somebody, who is in exile and has no access to lawyers or to witnesses, as my noble friend has just said, to attempt to refute allegations of which he may be only dimly aware. For the time being, I beg leave to withdraw the amendment.

Amendment 118C withdrawn.

Amendment 118D not moved.

Clause 29 : Drugs and driving

Amendment 118E

Moved by

118E: Clause 29, page 28, line 24, leave out “controlled” and insert “psychoactive”

I shall speak also to Amendment 118GA and shall not speak to Amendment 118G. I also wish to register my support for Amendment 118J, tabled by the noble Baroness, Lady Hamwee.

The aim of Amendment 118E is to clarify in law that Clause 29 is seeking to improve road safety and that whether a drug is controlled is irrelevant in this context. The Government aim to treat driving under the influence of drugs and alcohol on the same basis is to be applauded, but if it is irrelevant to road safety that alcohol is uncontrolled, why should it be relevant whether a stimulant or other drug is controlled? Surely the important point is whether the stimulant is affecting the driver’s safety behind the wheel.

I can illustrate the irrationality of the clause as it stands with an example. We know that when a controlled drug, such as ecstasy, is heavily contaminated, young people will switch to a similar, but uncontrolled drug, a powder, bought over the internet, probably from China. If there are two drivers, one driving dangerously because of the level of ecstasy in their body and the other driving dangerously because of the same level of the legal stimulant in their body, there is no difference in terms of traffic safety between the two drivers. Both are equally dangerous and surely should be charged, presumably for dangerous driving. I ask the Minister either to accept the amendment or to explain to the House why an intoxicated driver on a psychoactive substance, which the authorities simply have not yet had the time to ban—or perhaps they will never get around to it, as it takes them many years—should be treated more leniently than his friend on the same quantity of a controlled but no more intoxicating drug.

Amendment 118GA deals with my second concern: that drivers should not be arbitrarily stopped and tested for drug use, any more than they should be for alcohol use, if there is no reason to believe that their driving is impaired. I am aware that Section 4 of the Road Traffic Act 1988 covers this point to some degree. However, we know from the expert technical panel advising the Government that:

“There is no universal agreement on how to measure impairment”.

Certainly impairment differs for different classes of drugs, for stimulants, depressants and hallucinogens, for example. I am concerned that if impairment is difficult to identify or measure, the assumption that evidence of impairment must be present before a driver can be stopped could be overridden by this legislation. I ask the Minister to make clear in his response that the intentions of Amendment 118GA will apply; that is, that the requirements before a driver is stopped are that the driver has been involved in a road traffic accident or in a moving traffic offence, or that he is in charge of a vehicle and the roadside evidence suggests that he is impaired due to alcohol or any drug. There is an issue about medicines, which we will come to.

I want to move on to the stage where a driver has been stopped, the required conditions, I hope, having been met. I refer to a recommendation in the Home Affairs Select Committee report in relation to the appropriate maximum permissible level of concentration of a drug in a person’s blood or urine under Clause 29 of this Bill. The Home Affairs Select Committee says,

“the appropriate maximum permissible level of concentration in a person’s blood or urine … should be set to have the equivalent effect on safety as the legal alcohol limit”.

I understand that the Home Affairs Select Committee wants a level playing field between the treatment of those driving with alcohol or drugs and that a zero tolerance approach should be avoided for all these categories of driver. Will the Minister assure the House that the department will not abandon the concentration limits aligned with those for alcohol? If the expert panel concludes that it is too difficult to set such limits, what action do the Government propose to take? One of our difficulties in these debates is that the expert panel has not yet reported and we do not what its recommendations will be so, in a sense, we are having this debate without the key information that we need.

Another matter about which I would be grateful for clarification concerns the expert technical panel’s work. Is that panel considering psychoactive substances that are not medicines? On page nine of its presentation to parliamentarians, it refers to establishing the,

“level of use of illicit drugs and psychoactive medicines by driving population”.

There is no mention here of new psychoactive substances, albeit that more and more young people will be driving under the influences of those substances.

Another issue arising from Clause 29 concerns young people taking cannabis, perhaps weeks prior to being apprehended for driving when suspected of being under the influence of alcohol or drugs. The risk in these circumstances is that the young person will reveal cannabis in their body, yet be unimpaired. In a conversation with officials, I was given some assurance on this point. It was suggested that the testing equipment will be geared to testing the THC level rather than the level of cannabis in the body. I understand that THC remains in the body for a relatively short period, and this could substantially overcome the problem. Can the Minister reassure the House on these points? Will the technical equipment be able to identify the level of THC present and is the Minister aware of how long THC remains in the body?

I want to add my support to Amendment 118J, tabled by the noble Baroness, Lady Hamwee, which seeks to give some protection to patients on long-term medication from the considerable stress of arrest, testing and potential prosecution. I hope that the Minister can agree to the noble Baroness’s amendment. I hope that the Minister can provide further assurance on the Floor of the House about patients with chronic illnesses who need medication long term. Napp Pharmaceuticals rightly points out that such patients should not be placed in the position of having to satisfy an onerous burden of proof that they are indeed safe to drive. I understand from Dr Wolff’s letter that the position is not straightforward, certainly with regard to benzodiazepines, that patients on these drugs are at an increased risk of an RTA when compared with drivers who are not under the influence of benzodiazepines, and that the risk is particularly increased when these drugs are consumed in combination with alcohol. Clearly, patients need to be fully informed about those risks.

In relation to morphine, I understand that the panel is considering a limit which is significantly above the average concentrations of morphine in blood found in cancer patients receiving long-term steady-state doses of morphine. That is some reassurance, but again if the Minister can elaborate, it would be helpful. The point made by Napp Pharmaceuticals is that the defence in the legislation as it stands applies only once the case has progressed. It will not protect innocent patients on prescribed medications from the stress of arrest and further testing at the start of the process. Does the Minister agree that Clause 29 needs to be amended to cover drivers who are able to show that they have not taken alcohol and who can explain that they are on prescribed medication? Will the Minister consider bringing forward a government amendment to this effect at Third Reading? It would be helpful to be given some reassurance. A zero tolerance approach would be very serious for these chronic patients who need their medication and can drive safely while taking it. I beg to move.

My Lords, semaphore signals made across the Chamber are always excessively polite. I do not want to take too much of your Lordships’ time on these amendments, but that is not to say that I do not think they are important. However, I am aware that some noble Lords may be hoping to get on to another amendment soon.

The letter which some noble Lords have received from the noble Earl, copying us in and updating us—if I can put it that way—on the findings of the expert panel was extremely helpful. However, it confirms not only some of the points to which the noble Baroness referred but that this is very much still a work in progress. At the previous stage, the Minister referred to the vast array of drugs which needed to be considered. That is certainly the case given the existence of controlled, uncontrolled, traditional and designer drugs. Drugs are not as easy to deal with—if that is the right word —as alcohol. The Department for Transport has not yet published the expert panel’s report, which may be more relevant to the next group of amendments, but it has provided some reassurances, albeit they are not yet in the public domain in the normal sense of the word.

I support what the noble Baroness said about looking at the effect of drugs rather than assessing whether they are classed as controlled drugs. Dr Wolff’s very helpful presentation, which some of us were able to attend, explained that the panel’s work is based on an assessment of risk. That, it seems to me, is absolutely at the heart of what the noble Baroness has said. We are all aware that, as regards psychoactive drugs which are not yet controlled and may never be, chemists around the world are looking at old pharmacopoeia and designing new drugs. They will always be ahead of the rest of us in terms of the proper control of these substances.

I support Amendment 118K. I am impressed that the noble Baroness, Lady Smith, has managed to incorporate “knowingly” in the amendment by drafting another paragraph. I struggled to find a way of incorporating “knowingly”. My approach was not as ambitious as hers. My Amendment 118J would insert “substantially” to make paragraph (b) read:

“D took the drug substantially in accordance with any directions given”.

This provision refers to prescribed medicines. I am aware that it is very easy to forget to take a prescription medicine at precisely the right time. I have done that, and I am sure that most other noble Lords have done it. The medicine may state that it should be taken with a meal, but you might have missed the meal. Patients are human, and they forget. They do what they think is best in catching up with the daily dose. The panel said that it was important to strengthen medical information but warned individuals about the risks of consuming the relevant drug and driving, particularly if alcohol is also consumed. It recommended that healthcare practitioners should be better informed about these risks. I am sure that that is right and admirable, but I do not think that it wholly meets the point. As has been said, road safety is involved in this matter. The balance between protection and having the flexibility required to take account of human imperfections is difficult to strike. Again, we are talking about inappropriate risk.

Amendment 118M was suggested by the Joint Committee on Human Rights and concerns spiked drinks. Its report refers to the,

“apparent increase in recent years of incidents of spiking drinks in public places, in particular with so-called ‘date-rape drugs’ … We are also anxious about the impact of strict liability criminal convictions on individuals’ CRB checks, even where disqualification from driving may have been avoided through a special reasons hearing”.

The committee states earlier in its report that the point may have been made that a drink has been spiked. It is not impressed by the Government’s objection to permitting a “spiked drinks” defence. The committee states that,

“the Government’s objection does not hold good if such a defence imposed the legal burden of proof, as opposed to the evidential burden of proof, on the defendant: that is, if the Bill provided for a defence only if the defendant can prove that the drug was present in their body due to the intervention of a third party without the defendant’s knowledge or consent. We are concerned that the new strict liability offence as presently drafted is incompatible with the presumption of innocence in the absence of a spiked drinks defence which casts the legal burden of proof on the defendant”.

Therefore, the committee recommended this amendment to your Lordships and, indeed, to Parliament.

My Lords, I wish to speak briefly in relation to this group of amendments and Clause 29, largely in order, I hope, to receive reassurance from the Minister.

A number of medical bodies and a pharmaceutical company have drawn to my attention the possibility that this legislation and the testing systems could mean that patients taking legal medication for chronic pain might well face prosecution. Patients with chronic pain well established on a stable dose of prescription or over-the-counter opioid analgesics may have levels of metabolites in their system well above any threshold used for roadside or police station testing, even though such levels of these metabolites would not in any sense impair their ability to drive. Patients driving while taking these remedies might then be subjected to the threat of criminal prosecution or, at the very least, might face stressful allegations and the onerous burden of proving that they were not impaired and that there was no other reason why they should not be driving.

The defence included in the legislation is welcome. Subsection (3) of proposed new Section 5A states:

“the specified controlled drug had been prescribed or supplied to D for medical or dental purposes”,

and that,

“D took the drug in accordance with any directions given by the person by whom the drug was prescribed or supplied”.

That is very helpful, but the concern that has been drawn to my attention is that, although that defence sounds absolutely solid, it would be available only once a case has progressed. It might therefore not protect innocent patients from the stress and inconvenience of arrest, further testing and potential prosecution. The wording of the defence does not put the burden of proof on the prosecution; the onus is on patients to show that they took the prescribed medication in accordance with instructions. This might well prove to be a difficult task, and it would be unjust to criminalise an innocent patient as a result of a technicality. Will the Minister reassure me that this particular clause is strong and solid enough to avoid that problem?

My Lords, I shall speak to Amendments 118H, 118K and 118L. I say to the Minister at the outset that we totally support what the Government seek to achieve here. We appreciate that this is not a drugs amendment, it is a road safety measure, but the Minister will have heard from the comments already made that there is support for the Government’s intention but also some concerns about how it would operate in practice against those who are not the legislation’s targets. Drug-driving is a problem that we are all incredibly keen to see addressed. I refer to a case that the Minister will know well, of 14 year-old Lillian Groves, who was run over and killed by a driver who had taken drugs. This illustrates the importance of ensuring that the police have every tool available to tackle those who take illegal drugs and then drive, creating a danger to themselves and others. My concerns are not about the principle of what the Government seek to achieve, but—as the noble Lord, Lord Walton, and the other noble Baronesses have said—its implementation. We need to ensure that the legislation hits the right target and does not affect the innocent on prescribed medication. We have to get it right.

I thank the Minister for the briefings that he has provided and for the opportunity to meet him and his officials. I hope he can say enough today to satisfy us that the drafting of these clauses will not unnecessarily impact on those whom it is not intended to affect. The amendments I have put forward largely replicate those tabled in Committee and seek to strengthen the defence for individuals on prescription drugs who, through a simple error and no fault of their own, have been found above a certain limit. Amendment 118H would delete the existing new Section 5A(3)(b) of the Road Traffic Act, which requires individuals on prescription medication to “show that” they took the prescribed drug in accordance with any and all instructions, both from the doctor and manufacturer. There are serious concerns that requiring positive proof that the individual complied with all advice is pretty onerous. Instead we propose Amendment 118K, which would mean that individuals could not use their prescription as a defence if it was proved that they had taken the dosage knowingly —the point made by the noble Baroness—contrary to any advice given by a doctor or supplier. That additional wording in brackets picks up on the points about manufacturer’s instructions being required to be considered as part of the prescriber’s or supplier’s advice, rather than placing the burden on the patient to read and understand all and any such instructions. The noble Lord, Lord Walton of Detchant, made the same point. We share his concern about how fair it is for patients on long-term pain medication to find themselves in such a situation and having to show that they have complied with absolutely every medical requirement.

We are worried that we risk criminalising individuals on medication on the basis of a technicality, simply for failing to correctly interpret an element of the patient information leaflet. It could be a slight, insignificant deviation from the instructions. The noble Baroness, Lady Hamwee, made the point about the timing of when a medication could be taken. What if the advice from a doctor differs from that on the manufacturer’s small print? Under the proposed new subsection (4)(a), patients would have to have done something positive, contrary to the instructions they had received, rather than have to positively prove that they acted in accordance with advice. It changes the emphasis of the proof.

New subsection (4) also focuses on what is probably the main medical aspect of the period when the body is getting used to the prescribed drug in the system. This has been mentioned by other noble Lords. Deleting new subsection (3)(b) and the use solely of the caveat in new subsection (4) then fits more appropriately with the evidential requirements of new subsection (5). Patients would be able to show that they have a prescription. They could take a copy of it or carry a letter from the prescriber. Evidence could be produced at a police station. However, the evidential burden of new subsection (3)(b) on patients if they had to “show that” they followed any and all instructions would be considerable. Clearly we are not seeking to protect anyone who is unfit to drive, but although the Government intend this new offence to mirror drink-driving limit offences, taking prescription medication that would otherwise be illegal does not automatically make someone unfit to drive; I am thinking specifically about pain medication.

As an example of why I am concerned, and to take what could happen to somebody sequentially, if an individual on medication has perhaps been rear-ended through no fault of their own, the police would arrive and, currently, breathalyse both drivers. Under the new legislation, they would “drugalyse”, or drug test, both drivers. The test might indicate that they are over the limit, but it does not tell the officer undertaking the test how far over the limit they are. So what would happen next to that individual? If they say that they have a prescription for the medication they are taking but do not have the prescription with them, how can they prove that they have taken medication in accordance with medical advice and not taken illegal drugs? Would they be taken to the police station, where obviously at some point they would be able to prove that they have a prescription? That would clearly be an inconvenience and could be particularly distressing. We do not want to reach a situation where individuals are deterred from taking their medication—again I am thinking specifically about long-term pain relief—because some individuals would be more of a hazard without their pain-relief medication than if they were on it.

The Home Office has been developing roadside “drugalyser” tests for the past 10 years. Without these, the individual would have to be taken to a police station for testing. When do the Government expect roadside drug tests to be available to the police? Do the Government intend to implement the new offence before roadside drug tests are available? How often would they expect the test to be used? Considering their high cost, I presume that the police would undertake a breathalyser test first. How often would the Government expect roadside drug tests to be used in the same cases as a breathalyser? Also, looking through the information that has been supplied, any assessment of the proportion of cases in which the Government expect to find individuals below the alcohol limit but above the limit for a certain concentration of controlled substance was missing.

Despite the good intentions—which we support—what concerns me is that the details of how it will work in practice have not been worked through for those on prescription medication. I am grateful to the Minister for sending me the letter from the chair of the drug-driving panel, Dr Kim Wolff, which the noble Baroness, Lady Meacher, has also referred to. However, I am extremely disappointed that the expert panel has not been able to publish its interim report before this stage of the Bill, though I think Ministers indicated we would be able to get it. Clearly, the levels that the panel is likely to recommend—particularly in the case of prescribed drugs—and the rationale behind the recommendations would have been a huge help in our deliberations today. They may have clarified a number of the issues that I and other noble Lords have raised. What is encouraging is Dr Wolff’s assurance in her letter that:

“In considering what limits should be set for common prescription medication, the Panel has looked at normal therapeutic ranges used in prescriptions, compared to those found in addicts misusing medicines”.

In relation to morphine, she said that the panel,

“are considering a limit that is significantly above the average concentrations of morphine in blood found in cancer patients receiving long-term steady-state doses of morphine”.

However, Dr Wolff also states that the panel’s primary consideration is,

“clear scientific evidence of risk of road traffic accidents”,

and that in the case of, for instance, prescribed benzodiazepine drugs:

“risk is especially high during the first four weeks of treatment and is particularly increased when benzodiazepines are consumed in combination with alcohol”.

Here, Dr Wolff outlines the inherent difficulties in setting a blanket limit in the case of medicated drugs, because tolerance can change over time and is subject to variation by other factors. I suspect that the Minister will be unable to answer at this stage whether the panel, on the evidence so far, will set a limit for benzodiazepine much lower than the average level for someone on long-term drug use, because of the increased risk in the first four weeks of medication. However, that is an important consideration in the implementation of these clauses.

Much of how this will be implemented will hang on the recommendations that the panel makes, which we do not have available. How will it factor in the effects of mixing drugs with alcohol? Will it feel compelled to set the limit a lot lower than the average dosage because of the risk of increased road safety problems when the drug is mixed with alcohol—even a quantity of alcohol below the legal limit? Someone could be below the legal limit on drugs and below the legal limit of alcohol but still be a danger to themselves and other road users, because the Government’s offence does not provide—understandably, because we have not yet had the report of the panel—for a combined alcohol and drug limit for certain controlled substances.

We all want all drug drivers who are a danger taken off the roads. We totally support the Government’s aims. However, we need to ensure that we are going after the right people. I hope that the Minister can give some assurances that he will look again to reassure himself and this House about the defence in this group of clauses for people on prescription medication, to ensure that it is appropriate and fair; that he will not shut the door on ensuring that the legislation hits the right note; and that he will take away the comments made today.

I hope that the Minister can answer my final question clearly. Can he confirm that the Government would not consider it appropriate for any action to be taken against those on prescribed medication, unless it is clear that their driving is impaired?

My Lords, I recognise that the amendments relate to concerns about the Government’s approach to drug-driving and, in particular, how the new offence will affect drivers who take prescription or over-the-counter medicines. I am grateful to the noble Baroness, Lady Smith, for her recognition of the problem. I will try as hard as I can to reassure the House that your Lordships’ fears will not materialise.

First, I emphasise that any passengers would not be screened for drugs following a vehicle being stopped by the police and the driver being tested for drugs. The noble Baroness asked me a number of very good questions, and I will answer them first, before going into detail. She asked, in effect, how much discretion a policeman has to arrest for drug-driving. Whether an officer decides to arrest and continue an investigation, including carrying out an evidential blood test, once someone has proved positive in a drug screening test, will depend on the facts of a particular case. Officers will be aware of the statutory defence of taking a specified controlled drug in accordance with medical advice and prescription.

As for the CPS, in reaching a decision as to which cases to prosecute, Crown prosecutors must take into account the Code for Crown Prosecutors. The code includes a requirement that prosecutors should swiftly stop cases where the public interest clearly does not require prosecution. I will return to that in a moment.

The noble Baroness also asked me about publication of the expert panel report. The expert panel is independent of government. It is important that it takes the time that it needs. Advising on which drugs the new offence should cover and on limits to set for driving purposes are complicated issues which require careful consideration. The expert panel has considered a wide range of drugs and has needed to reconcile the available evidence from the UK and abroad. This means that it has taken longer than we anticipated for the panel to report. The Government intend to publish a copy of the report of the expert panel on drug-driving as soon as we are able after the report is finalised. Of course, we will not proceed further with the secondary legislation until we have the expert panel’s report.

The noble Baroness also asked me about roadside drug tests. The Government expect roadside drug test equipment to be available in 2014, when we anticipate bringing the new offence into force. We would expect breath tests to be conducted first, as they are quicker and easier. We cannot speculate on how many tests would be taken, as that is an operational matter for the police.

On Amendment 118E, in the name of the noble Baroness, Lady Meacher, I must emphasise that the North review recommended that the new offence focused on controlled drugs as defined in the Misuse of Drugs Act 1971. Focusing on controlled drugs limits the scope of the offence to a specific category of drugs. This category of drugs is considered to be sufficiently harmful to warrant restricting its availability under the Misuse of Drugs Act 1971. Within the category, the Government will set limits only for drugs which are known to affect road safety.

The noble Baroness asked about cannabis. Broadly, she is right. Yes, we expect to set limits for THC, the active ingredient in cannabis. Scientific advice is that, for the purpose of drug detection, the window of opportunity for the detection of THC after a single dose would be less than nine to 12 hours.

It is important to remember that a person driving under the influence of a drug which is not controlled under the Misuse of Drugs Act 1971 could still be prosecuted under the existing offence in Section 4 of the Road Traffic Act 1988. If there was evidence that, for example, the use of a particular type of “legal high” was impacting on road safety, consideration could be given to classifying it as a controlled drug under the Misuse of Drugs Act 1971 and therefore potentially bringing it within the scope of the new offence. I expect that the same could apply to the issue of parallel drugs, to which the noble Baroness, Lady Meacher, referred.

The noble Baroness’s amendment would mean that the Government could set limits in respect of a much wider group of drugs. The Government do not consider that that change is necessary. Consideration has been given to which drugs the independent panel must consider. Its task has not been easy and it would not be a good use of resources to assess drugs that are not thought to be a significant problem. As I said, if they become a significant problem, they can be brought into scope.

Amendments 118G and 118GA, also in the name of the noble Baroness, Lady Meacher, are intended to restrict the circumstances in which a person can be found guilty of a drug-driving offence to where a driver, or the person in charge of a vehicle, has been involved in an accident or to where there is evidence of impairment.

A police officer may only require a person to co-operate with a preliminary drugs test in certain circumstances. Preliminary testing can be required only if the officer suspects that a driver is under the influence of a drug or has a drug in his body; if the driver has committed a moving traffic offence; or if the driver has been involved in a road traffic accident.

That is the same as the drink-driving regime. The existing drug-driving offence in Section 4 of the Road Traffic Act requires proof of impairment and is difficult to use. There have been few successful prosecutions, as identified in the North report. The new offence is designed to improve enforcement against drug-impaired drivers and to deter them. It is specifically intended to avoid the need to prove impairment, in order to enable more effective enforcement action to be taken against drug-drivers.

The amendments would enable the new offence to be used only where an accident had taken place, or where there was evidence of impairment. This would significantly reduce its deterrent effect and usefulness. The independent panel looked at the degree of risk of an accident, rather than the level of impairment of the driver. This was explained to your Lordships when Dr Kim Wolff, who leads the panel, addressed your Lordships at a meeting.

On the issue of spiked drinks, following the Joint Committee on Human Rights’ report into the Crime and Courts Bill, the noble Baroness, Lady Hamwee, in Amendment 118M, has proposed introducing a defence for a person who has unwittingly consumed a drug as a result of a third party’s intervention—in other words their drink was spiked. The Joint Committee suggests that such a defence would mitigate against the impact of strict-liability criminal convictions on individuals’ CRB checks, even where disqualification from driving may have been avoided through a special reasons hearing. A strict liability offence is one committed regardless of any intention, recklessness or knowledge on the part of the individual.

The rules on special reasons are set out in Section 34(1) of the Road Traffic Offenders Act 1988. This provides for a mitigation of sentence by a court where it considers there are “special reasons” not to disqualify a driver convicted of an offence that carries an obligatory disqualification. The Government consider that Section 34(1) operates effectively and has not resulted in any injustice with regard to the existing offences in Sections 4 and 5 of the Road Traffic Act 1988. It is worth remembering that the problem identified by my noble friend already exists. If a spiked drinks defence was included in the new offence but not in Sections 4 and 5 of the Road Traffic Act 1988, this would create a two-tier system with no apparent logic for this.

Prior to amending existing legislation—which would need to include Sections 4 and 5 of the Road Traffic Act 1988, if a similar defence was to be included in those provisions—we would have to consult with stakeholders. We have no such plans at this stage. Additionally, there would need to be a similar consideration in respect of other modes of transport, whose drink and drug-driving legislation relies on, or closely mirrors, the provisions in the Road Traffic Act 1988. Therefore, we do not consider that Clause 29 requires adjustment to include a spiked drinks defence.

As we have heard, a number of noble Lords are concerned about the impact which this legislation could have on patients taking prescription medication and have tabled Amendments 118GA, 118H, 118J, 118K and 118L to address this issue. It is to no one’s benefit for drivers who are innocent of any wrongdoing to be arrested. The new offence is intended to target those who drive after taking illicit drugs or prescription drugs which are being misused and therefore give rise to road safety risks. The Government have therefore included a defence so that a person who has taken their medication in accordance with medical advice would not be guilty of an offence.

The noble Baroness, Lady Smith, asked me what happens if the doctor’s advice conflicts with the advice on the leaflet supplied with the drugs. Proposed new Section 5A(3)(b) says:

“so far as consistent with … directions”.

A doctor’s instructions therefore take precedence over the patient information leaflet, so the doctor trumps the leaflet.

In answer to the noble Lord, Lord Walton of Detchant, the medical defence itself provides considerable protection to those taking properly prescribed or supplied medical drugs. The noble Lord asked me about metabolites. Drugs can be broken or metabolised into other substances called metabolites. Where the metabolites are controlled drugs themselves, the Government could set limits for them. The Government have no plan to amend the legislation to include metabolites not controlled in the scope of the offence.

My Lords, I am sorry to intervene but I just want the noble Earl to clarify the point about the instructions. Proposed new Section 5A(3)(b) says that D, the person who has been arrested,

“took the drug in accordance with any directions given by the person by whom the drug was prescribed or supplied, and with any accompanying instructions (so far as consistent with any such directions) given by the manufacturer or distributor of the drug”.

Is the Minister absolutely clear in his comments today that the doctor’s instructions with the drugs would always override any manufacturer’s instructions and that that would be a defence in law?

My Lords, as I understand it, the doctor’s instructions will trump the leaflet. If I am wrong on that I will write. Also, the leaflet normally refers to the doctor’s advice so the leaflet would give the trumping authority to the doctor.

The medical defence places what is known as an “evidential” burden on a person accused of committing the offence. This means that the accused person must simply put forward enough evidence to “raise an issue” regarding the defence that is worth consideration by the court, following which it is for the prosecution to prove beyond reasonable doubt that the defence cannot be relied on.

I know that the noble Baroness, Lady Smith, and my noble friend Lady Hamwee are concerned that a patient who inadvertently deviates slightly from the recommended dosage might be unable to rely on the medical defence. I want to reassure the House that the Government and the independent panel will take into account the normal therapeutic ranges for medication when considering what limits should be set for drugs. This will reduce the risk of patients who take medical drugs correctly being affected by this legislation. The panel will be well aware of the risks pointed out by my noble friend Lady Hamwee. I would also like to point out that in the terms of reference, term 6 is:

“To establish the likelihood of whether these concentrations would be exceeded through prescribed or otherwise legally obtained drugs (as distinct from illicit drugs)”.

A small minority of individuals taking long-term medication at elevated concentrations could be in excess of the specified limit for a particular drug, as was so well explained to the House by the noble Lord, Lord Walton of Detchant. In most cases such users would only come to notice if their driving is impaired—when they can be dealt with under the existing offence in Section 4 of the Road Traffic Act 1988—or for some other reason requiring police action. Another point to note is that the Code for Crown Prosecutors specifically states that prosecutors “should swiftly stop cases”, as I have already mentioned.

Furthermore, the Government expect that the courts will take a sensible approach to the operation of the new offence. For example, a defendant seeking to rely on the medical defence may be afforded more or less leeway depending on the facts of a particular case, such as the nature of the medical advice provided, including the wording of any leaflet accompanying the medicine.

Finally, in Amendment 118GA the noble Baroness, Lady Meacher, has also proposed that primary legislation should include requirements for testing to be reliable and for the Government to set limits that are linked to road safety. We do not consider it necessary to set these requirements in legislation. First, the preliminary testing devices currently being developed would undergo a rigorous type approval process before being used for enforcement purposes. This type approval process is so rigorous that it is taking some time to secure approval and I have raised this issue with my right honourable friend the Secretary of State because we need this equipment in operation. However, it is vital to the integrity of our system of justice that the courts can rely on the evidence of the new equipment. Furthermore, evidentially testing using blood or urine specimens is already carried out for the enforcement of the existing drink and drug-driving offences without any express requirement for the testing to be reliable.

Secondly, we are clear that the purpose of the new offence is to improve road safety, as I have already stressed, so careful consideration will be given to the advice received from the expert panel and to the responses to the public consultation before setting any specified limits and regulations. The regulations would then need to be specifically approved by Parliament using the affirmative procedure. The new offence is intended to enable more effective law enforcement and to improve road safety by deterring drug-impaired driving and bringing more drug-impaired drivers to justice. In light of the points I have raised I hope the noble Baroness, Lady Meacher, will agree to withdraw her amendment and that my noble friend Lady Hamwee and the noble Baroness, Lady Smith, will not press their amendments. I have been asked many detailed questions. Where I have not answered them I will write, and no doubt another place will look very carefully at these provisions.

I thank the Minister for his response. I remain completely unconvinced that there is any logic at all in differentiating between controlled and uncontrolled drugs. I would submit that the North committee, to which the Minister referred, had no awareness of the incredible flood of new substances coming into this country. It is a vast number. There were 65 new substances this year, 49 last year and 41 the year before. That changes the entire environment within which we work and Ministers may come to regret the idea that this legislation should also fail to take account of those changes.

My Lords, we asked the expert panel to consider the drugs that we thought were causing a road safety problem but the last thing we said was that it should consider any other drugs that it thinks necessary.

I know that noble Lords do not want me to take any more time because people need to move on. My only other small point is that the Minister referred to risk as being the main indicator of the need for action rather than impairment. I would suggest that the two are incredibly closely related. The importance of impairment is to avoid discrimination against certain groups and the stopping of drivers in particular communities when there may be no indication of an impairment of driving. It is those matters which we should be aware of. That said, at this stage anyway, I will withdraw the amendment although I may come back at Third Reading because we still await the outcome of the expert panel’s deliberations.

Amendment 118E withdrawn.

Amendment 118F had been withdrawn from the Marshalled List.

Amendments 118G to 118M not moved.

Amendment 118N

Moved by

118N: Clause 29, page 29, line 23, at end insert—

“( ) Before regulations under subsection (8) are laid before Parliament, the Secretary of State shall publish a report regarding the controlled drug proposed to be specified and the limit proposed to be specified.”

My Lords, I hope to be very brief on this amendment and on Amendment 118P. These amendments deal with the regulations which, as the noble Earl has assured the House, will not be proceeded with until a good deal more work is done. My first amendment would provide for a report from the Secretary of State about the,

“drug proposed to be specified and the limit proposed to be specified”,

before laying regulations. Like all other noble Lords who have taken an interest in this, I am very keen that the decision should be made on the basis of evidence. This amendment is to suggest that the evidence base should be in the public domain and easily accessed before we are asked to deal with regulations.

I said a few minutes ago that there is a huge array of drugs. I was quoting the noble Lord, Lord Henley, when I said that but, having seen that remark in Hansard, it struck me that it may be difficult to decide whether to support regulations that cover more than one drug or where there is concern about the limit applying to a particular drug. It would be very helpful to have regulations made a drug at a time so that the vote can be very clear when the matter comes before both Houses of Parliament. Following the points that have been made about the importance of controlling drug-driving, I hope that the House would be able to vote for the inclusion of a particular drug without jeopardising the inclusion of another if there is concern about one which is on a list or the limit for one which is on the list. I beg to move.

My Lords, I would point out first that these are very important clauses and it is right that the House looks carefully at them. I know that these amendments relate to concerns around how the Government will implement the new offence. Amendment 118N proposes that the Government should be required to publish a report regarding the controlled drugs and limits to be specified in regulations before such regulations are laid before Parliament. The Government do not consider that such a requirement is needed. Clause 29 already requires the Government to consult before specifying in regulations the drugs and limits for the new offence. The Government also intend to publish a copy of the report of the expert panel on drug driving shortly. I have already provided an explanation to the House on the reasons for its delay. The consultation will set out the evidence base for specifying particular controlled drugs and limits in regulations.

Amendment 118P proposes that individual sets of regulations should be drafted for each controlled drug to be covered by the new offence. I recognise the importance of considering carefully the specified limits for each controlled drug. That is why we will consult on the drugs to be included in the offence and the limits which should be specified. It will be open to anyone to respond to that consultation and their response will be considered carefully. Drafting a new set of regulations for each controlled drug would be time-consuming for the Government to prepare and for Parliament to consider, and would be likely to involve much unnecessary repetition. It could also make it more difficult for those seeking to use the legislation since there would be multiple sets of regulations to refer to, making the relevant law unnecessarily complex.

The Government therefore believe that it would be better for all concerned for a single set of regulations to be produced following consultation. In the event that the regulations were not approved by Parliament due to the inclusion of a particular specified drug or limit, the Government would amend the regulations and lay a further draft before Parliament for approval. In the light of the points I have raised, I hope that the noble Baroness, Lady Hamwee, will be willing to withdraw her amendment.

My Lords, for speed, I will not comment on that other than to thank the noble Earl. I beg leave to withdraw the amendment.

Amendment 118N withdrawn.

Amendment 118P not moved.

Amendment 119

Moved by

119: After Clause 29, insert the following new Clause—

“Public orderPublic order offences

(1) The Public Order Act 1986 is amended as follows.

(2) In section 5(1) (harassment, alarm or distress) for “, abusive or insulting” in the two places where it occurs substitute “or abusive”.

(3) In section 6(4) (mental element: miscellaneous) for “, abusive or insulting” in the two places where it occurs substitute “or abusive”.”

My Lords, in introducing Amendment 119 I have in the front of my mind the words attributed to Voltaire as far back as 1759:

“I may disagree with what you say, but I will defend to the death your right to say it”.

That is what it is all about tonight. The amendment seeks to curb what I believe is an increasing misuse of the criminal law so as to curb or prevent the proper exercise of free speech. The amendment intends that the word “insulting” should be taken out of Section 5 of the Public Order Act 1986 and that Section 6 of that Act should be similarly amended to take account of the earlier change.

It might help your Lordships if I examine the history of the inclusion of the word “insulting” in legislation to illustrate how and why we have arrived at the current state of affairs—a state of affairs that, I would venture to suggest, is wholly unacceptable. In the mid-1930s, there was a progressive increase in severe public disorder on the streets of east London and in other great cities of this country, when supporters of Mosley’s black-shirted fascists were clashing with both moderate left-wing and extreme left-wing opponents. The law then was proving inadequate to deal with the problem and, as a result, the Public Order Act 1936 was enacted. It did a number of things. It introduced a number of very serious new measures: for example, to authorise or ban public marches and demonstrations; to ban quasi-military organisations; to outlaw the wearing of political uniforms in public; and so on.

At a much less serious level, Section 5 of that Act introduced the now familiar words whereby it became a criminal offence to use “threatening, abusive or insulting” words or behaviour in a public place or at a public meeting whereby a breach of the peace was occasioned or likely to be occasioned. I would ask your Lordships to fasten on to the important words there: “threatening, abusive or insulting” and “breach of the peace”. That legislation stood the test of time, and the police regularly resorted to arrests for breaches of Section 5 in what might loosely be described as disorderly or hooligan behaviour on a typical Friday or Saturday night.

Fifty years later, as part of a general tidying-up of the law that deals with public disorder, the Public Order Act 1986 reflected much of the thinking that lay behind the old Section 5. It re-enacted the legislation that made it a criminal offence to use,

“threatening, abusive or insulting words or behaviour”,

and extended it to circumstances covering displays of any writing or sign in a public or private place within the hearing or sight of a person likely to be caused harassment, alarm or distress. It removed the reference to breach of the peace and it did not require any intent to cause harassment. Clearly, the intention of the new Act was to require a greater degree of particularity in the statute so as to increase protection for vulnerable individuals.

So far, so good, and the new Section 5 also appeared to work well for a time; but not for very long. With the wisdom of hindsight, it is clear that there has been a steady increase of cases where the words “insulting words or behaviour causing distress” were being misapplied in circumstances where individuals or organisations disagreed with comments made about their own sexual orientation, general beliefs or objectives, and where the criminal sanction offered by Section 5 was used by them deliberately to curb or suppress the proper exercise of free speech, either by prosecution, or by utilising the undoubted chilling effect of a threat of prosecution.

There are numerous examples, and some of them are enshrined in the folklore that has grown up round this subject. For example, the student arrested in a demonstration for suggesting that a police horse was “gay”; the street preacher arrested for saying that he regarded homosexuality as “sinful”; the 16 year-old boy arrested for holding up a placard that read “Scientology is a dangerous cult”; the pensioner threatened by police with arrest for putting a sign in his window that read “Religions are fairy stories for adults”; and the man arrested and charged after he growled at a dog, even though the dog owner did not wish to prosecute. There was no mention of what the dog wanted. There were the animal rights activists who were threatened with police action useless they removed little models of seals from public view; seals that had been red-painted to represent blood. The list goes on and on, and I will not weary your Lordships with more examples.

Whose fault is it? Who should we blame? Obviously, on occasions the police are to blame. They have not exercised always the degree of common sense and discretion that would properly have resulted in a blind eye being turned to the conduct in question. Often, however, the police have been manipulated by those whose tactic has been to complain to the police on the spot and insist on police intervention, with the express or implied threat of a complaint against them unless action is taken. A now often risk-averse police service, and sometimes risk-averse prosecutors as well, have found it safer to mount a prosecution and leave the courts to adjudicate.

If change is in the air—the change that is projected into Amendment 119—how much support is there for it? I remember the Committee stage of the Counter-Terrorism Bill in 2008 when I tabled the amendment to prevent the then Government from extending the limit on pre-charge detention of terror suspects from 28 days to 42 days. As with this debate about freedom of speech, that issue was concerned with a major constitutional freedom. As with this issue today, there was a long run into the debate. But in 2008, opinions were divided. I was confronted then with all the alternative arguments: in person, in your Lordships’ House and outside, by letter and e-mail. There were debates on the radio, on television and in the press. There were arguments for and against, before the amendment was carried with a majority of 191.

But what a contrast that was with the current situation. With only one exception—I will refer to that later—I have not heard a word in argument for the retention of “insulting” in Section 5. There have been no personal approaches to me, either here or outside; no letters or e-mails; no telephone calls. Every comment in the media is supportive. I understand from colleagues in the House that they have been the recipients of a flood—or is it a blizzard?—of letters from people outside in all walks of life supporting the amendment. There appears on that basis to be little or no opposition. I wait with interest to see what is voiced tonight.

And look at the support. The noble Lord, Lord Macdonald of River Glaven, until recently the Director of Public Prosecutions, has signed the amendment and written a detailed opinion that I have circulated individually to Members of your Lordships’ House. It gives a brilliant resumé of the substantial legal arguments supporting this change. The noble Baroness, Lady Kennedy of The Shaws, an eminent QC and chairman of Justice, and the noble and learned Lord, Lord Mackay of Clashfern, one of the most respected Lord Chancellors of recent years, have also signed the amendment. I am very grateful to all three for their interest and support.

But there is much more, and from individuals or organisations that do not always work harmoniously one with the other. The National Secular Society and the Christian Institute are often at odds, but here they stand shoulder to shoulder supporting the amendment. I should like to record my warm thanks to the staff of the Christian Institute for the administrative help that they have given me prior to this debate. There are also the Peter Tatchell Foundation; the Bow Group; the Freedom Association; the Equality and Human Rights Commission; and the Joint Committee on Human Rights, which reported as recently as 20 November, saying:

“We understand the sensitivities with certain communities on this issue, but nonetheless we support an amendment to the Bill which reduces the scope of s. 5 Public Order Act … on the basis that criminalising insulting words or behaviour constitutes a disproportionate interference with freedom of expression”.

Justice fully supports the amendment, writing:

“It is essential for the progress of society that we do not ossify public views by censoring debate on matters of current public controversy”.

Liberty would scrap the whole of Section 5, not just one word; but it has pledged wholehearted support, saying:

“The amendment would herald a very significant victory for freedom of expression”.

I will not go on; there are other organisations, and perhaps they will forgive me for not adding to this very long list and taking time tonight.

Where do the police stand in all of this—for it is front-line officers who are so often caught up in the practical application of these laws? The Association of Chief Police Officers has declared that it is not opposed to the change. Only the Police Federation expressed reservations; it is the one organisation that I know has doubts about this. The Police Federation fears that the amendment would reduce the powers of police in dealing with disturbances on the street that were low- level but nevertheless troublesome. I suggest that those fears are misplaced. Most of us know that the federation is feeling bruised at the moment. Change is not at the top of its agenda. But it might well take heart from the letter that the current DPP, Keir Starmer QC, wrote to me only last week, in which he said:

“The issue has been the subject of consultations by the Home Office in both 2009 and 2011. On both occasions, the CPS responded confirming that we are not in favour of a legislative amendment to remove the word ‘insulting’ from section 5. However, having now considered the case law in greater depth, we are unable to identify a case in which the alleged behaviour leading to a conviction could not properly have been characterised as ‘abusive’ as well as ‘insulting’. I therefore agree that the word ‘insulting’ could safely be removed without the risk of undermining the ability of the CPS to bring prosecutions”.

That is a very significant message indeed, and from a very significant player. As noble Lords will readily appreciate, we now have the current DPP and his predecessor both saying that the amendment can and should be carried.

This amendment, if carried, would not leave a hole in the law. Section 5 in its curtailed form would still allow prosecution for “threatening or abusive behaviour”, and there are tougher and more targeted laws, such as incitement to racial hatred, and a range of aggravated offences where hostility to the group to which the individual belongs is taken into account. Along with general laws, such as public nuisance and breach of the peace, these give the police all the powers they need to protect minority groups. It is minority groups that the law needs to look at particularly, and they would not be left out. The “abusive” limb of Section 5 covers most, if not all, genuine cases of public disorder. I will not go into the judgment in Southard v DPP, but one could find that explored there in some detail. Any repeated harassment of an individual is caught by the Protection from Harassment Act while those who, for example, burn poppies on Remembrance Sunday would be caught by Section 4A of the Public Order Act, which outlaws intentional harassment, alarm or distress.

Having tried to deal with a brief resumé of how we are where we are, looked at the abuse of Section 5 and examined some of the relevant legal provisions, I have to ask: is there any reason why this amendment should not have a clear run up the final straight to the finishing tape? Almost inevitably, as happens in life, one problem remains—a fly of fairly considerable proportions in this particular jar of ointment—and I have to say that it concerns the Home Office. The Home Office launched a public consultation on 13 October last year that sought views on three issues. Two of those are of no interest in this debate today, but one examined the possibility of removing “insulting” from Section 5. I think, though without proof, that that is the consultation that the DPP referred to before he changed his view. That consultation closed on 13 January this year. As noble Lords will know, the guidance is that the Government should respond to a public consultation within three months—that is to say, in this case, some time in April this year. To date, we have not heard a word.

At Second Reading of the Protection of Freedoms Bill in November 2011, and again on the fourth day of the debate on the Queen’s Speech in May this year, I declared that, but for the consultation period, I would have tabled an amendment to delete “insulting” from Section 5. In winding-up that latter debate, the Minister asked for patience. On 4 July this year, when the noble Lord, Lord Mawhinney, raised the issue again, the Minister again requested that we remain patient. Still there is silence. It is now over 14 months since the consultation was launched, over 10 months since it closed and over five months since the Minister asked for a little more time to consider the matter. What is going on? Is it procrastination, prevarication or bureaucratic incompetence? I do not know but, whatever the answer, I suggest very strongly that we should not and cannot wait any longer.

I opened this debate with a quotation, and I finish with another. Echoing the judgment of the European Court of Human Rights in Handyside v UK, Lord Justice Sedley, when he allowed the appeal of a street preacher for an offence under Section 5 in Redmond-Bate v DPP, said:

“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having”.

In short, the removal of “insulting” from Section 5 will ensure that where words are not abusive and, importantly, where there does not exist any evidence of intent to harass, alarm or cause distress, nor any likelihood of fear of violence or actual violence, then those words will not be illegal, even though they may insult. You do not have to agree with the sentiments expressed—only with the right of the proposer to voice them in benign circumstances. You can be reassured that the remainder of the criminal law in this area will continue to protect all groups and individuals who are intentionally insulted.

I put it one last way. To oppose this amendment is to support and to play into the hands of those whose sole aim is to suppress views with which they do not agree, come what may. I ask this House to recognise the current abuse of the criminal process, to reflect on the need to protect basic freedoms under the law, to remember that freedom of speech is one of the most important civil liberties—some would argue, the most important civil liberty—and to support the amendment. I beg to move.

My Lords, I support the amendment. I will not take long because I hope that we will move to a vote very quickly. I am the chair of Justice, the legal organisation, and I can say with confidence that that organisation, which represents the legal profession up and down the country, is wholehearted in its support of this amendment. The stories that the noble Lord, Lord Dear, has told of ridiculous cases being brought before the courts could be replicated in robing rooms and courtrooms throughout the land, and I am afraid that it really is time that we put a stop to this.

A very famous American judge once spoke about the importance of the marketplace of ideas, which means listening to views that sometimes one does not like, sometimes, as Lord Justice Sedley said, are irritating, sometimes are provocative, sometimes are heretical and sometimes might upset us. However, that is what democracy is all about, and we should take pride in it.

I wholeheartedly support the noble Lord, Lord Dear, in this amendment, and I hope that all noble Lords who are here will see the importance of this. Unfortunately, the thin-skinned are not serving our democracy well by seeking to have these cases brought. I pity the police who are put into this difficult position, and I am glad to see that both the former Director of Public Prosecutions and the current one recognise that the law is there to deal with truly offensive behaviour or that would lead to further crime and disorder. I hope that noble Lords will support the amendment.

My Lords, as the third string, it seems to me that freedom of expression is an extremely important part of our democratic heritage, and it has not been won without quite important sacrifices by many people who have gone before us. It is a criterion for seeing whether democracy is supported that freedom of speech is supported strongly.

Some matters connected with freedom of speech are very topical at present with regard to the public press, but the notion that freedom of speech can be tampered with without serious consequences to our democracy is a considerable mistake. The amendment would be an important step in clearing our situation regarding freedom of speech. There is no menace in an insult. Abusive or threatening language is different. It is menacing to people and, rightly, is subject to criminal law. An insult, though, is in no way threatening, except as a challenge to what I am saying. Surely we have all had one or two challenges to what we say, and we are usually the better for it, sometimes by strengthening our argument in favour of what we are saying and sometimes leading to wise reconsideration and withdrawal. I suppose that all of us have had such experiences.

I support very strongly the amendment moved by the noble Lord, Lord Dear, and I hope that if the Government are going to finish their consultation, they will do so in the right direction. It seems to me that they have taken a long time. Often that is necessary in order to clear up some issues, but I am sure my noble friend will explain tonight exactly what the position is in relation to this consultation. Why has the result not been given within the timescale that the Government themselves set?

I rise briefly in support of the masterly way in which the noble Lord, Lord Dear, has introduced and covered every aspect of this amendment. I just want to say three things. First, freedom of speech is essential. There is always a tendency for there to be well intended restrictions, and then there are unintended consequences. This is what has happened in this particular sphere.

Secondly, it is crucial that the Director of Public Prosecutions has changed his mind. I have a great respect —having been the Attorney-General and responsible for the Director of Public Prosecutions—for the experience and wisdom of the director, whoever he happens to be. In this case, he has said—and I repeat what has already been said,

“we are unable to identify a case in which the alleged behaviour leading to conviction could not properly be characterised as ‘abusive’ as well as ‘insulting’”.

He said the word “insulting” could “safely be removed”. I think we should pay regard to that opinion. The correspondence we have heard of and received describes excess of zeal by a particular officer, which has led to the distress of those who have been prosecuted. The last example given by the noble Lord, Lord Dear, concerned the causing of distress to a pair of Labradors by saying “woof woof” in the hearing of a policeman. That is true; it happened, it was prosecuted and the person was convicted and fined £50. Fortunately, that conviction was quashed on appeal. I will not go on; I think the case is proved.

My Lords, like many other people, I received a large number of e-mails and letters all going one way in support of the noble Lord’s amendment. I would just like to tell the House about one letter I received. In my very untidy desk, I have lost it, but it was about a lay preacher who preaches on the street and preaches on Sundays in church. He happens to subscribe to a literal form of the Old Testament with which I do not agree, but he was preaching on his literal interpretation in the street. Someone complained to the police, and he was arrested and spent seven hours in the police station. He was placed on police bail on the order that he was not allowed to preach. If that is not an abuse of the freedom of speech, I do not know what is. I cannot understand why the Minister and the Government are not supporting this amendment.

My Lords, I was hoping that my noble friend Lord Macdonald would be in his place as he was a little earlier. I hope he is not stuck in a lift or something. I want to put on record on his behalf, on my behalf and on behalf a number of people who are becoming quite vocal, my wholehearted support for this amendment, and I speak for a number of colleagues. I put my name to the equivalent amendment at the previous stage and, as I recall it, the noble Lord, Lord Mawhinney, said, “For heaven’s sake, even the Liberal Democrats have this as party policy”. Well, we do; we would have gone further, but we are happy to go as far as is before us tonight.

My Lords, as we have heard, it is nearly a year since the Government launched their consultation on public order policing and whether the word “insulting” should be removed from Section 5 of the Public Order Act. In the Committee on this Bill—a good five months after the close of the consultation—the Minister said that he hoped that at Report stage, the Government,

“will be able to put forward the Government’s considered view to the House”.—[Official Report, 4/7/2012; col. 781.]

Since then, the Government had a further five months to come to a decision, and yet—unless the Minister is going to make an announcement this evening—even at this stage, we still have not had a public announcement from the Government about their position, or about the findings and evidence from the consultation which your Lordships’ House has asked for.

I say to the Minister that this is typical of this Bill. From the National Crime Agency framework document, the debate we had earlier and the panel report on drug driving, evidence that would have assisted this House in consideration of the Bill and been welcomed by noble Lords for scrutiny has not been available to your Lordships’ House. It does this House, and those proposing the amendment today, a grave disservice that the Government are so tardy bringing forward information that is crucial to this debate. I share the frustration of the proposers at the Government’s failure to provide this information for the debate today. Are the Government finally able to state their considered position now or will we have more evasion and more waiting for a consultation that closed many months ago?

I understand some of the difficulty for Ministers; it lies in the nature of coalition Government. The Liberal Democrats, at their spring conference this year, passed a motion to repeal this part of the legislation. We also know from names on the amendment that a number on the Conservative Benches—as we heard this evening—also support removal. The campaign is led in the other place by David Davis MP. If there is so much interest in this issue, why have the Government not brought forward the results of the consultation in order to have a proper, informed debate on the merits of the issue, rather than leaving it to campaigners?

I am not suggesting for one moment that the law as it stands is perfect in its application; we have heard numerous examples why it is not. I appreciate that there are grave concerns that there are cases where its use by the police and the CPS has been disproportionate and, indeed, ridiculous at times. There is a very strong argument for better guidance on the application of this clause to ensure that its use is always appropriate and effective.

However, we are concerned that the evidence of the need for its removal has not been presented to your Lordships’ House. We do not want to risk removing a useful tool which currently enables the police to address homophobic and religiously offensive issues. There is still a huge grey area when it comes to these issues.

Many of your Lordships have said that they received no correspondence in favour of “insulting” remaining; I did receive such correspondence. I tried to look at it in balance with the other correspondence I had. YouGov polling estimates that over 400,000 lesbian, gay and bisexual people a year experience homophobic insults, abuse and harassment. Furthermore, 77% of victims of homophobic crimes and incidents do not report them to the police because they have no confidence that the police will or can do anything. I question whether it is right to take tools away from the police which they could use properly to address these sorts of hate crimes and what message that will send. We need a proper debate on whether the existing law is the right approach. It has to be done on an evidential basis, which is why I find it totally unacceptable that the Government apparently have evidence which they are not bringing forward.

We have heard examples of disproportionate and ridiculous use of the legislation, but there are also examples of its proportionate use. I have been sent these by Stonewall. I am not normally shy and retiring or very modest in my approach, but I am loath to read out the insults and the behaviour that was hurled at a Mr Braithewaite, when he intervened for a fellow passenger on his train, Heather Williams, who had been accosted by a third passenger—the defendant—for being transsexual. The language that was used and the behaviour towards them led to a prosecution and a successful conviction under Section 5 of the Public Order Act. I do not believe anybody in this House would want to tolerate or allow that kind of behaviour to go unpunished.

If there are to be changes in the law, there should be a full examination of the evidence. We want to ensure that people like that are properly punished for their crimes. The letter today from the Director of Public Prosecutions should be fully considered in the light of what he has to say, and the Government’s response to their consultation.

Perhaps I may ask my noble friend whether the word “abusive” would deal with that. The law is there to deal with it. The example that my noble friend has just given could be met with the law in the way being proposed by this amendment.

My Lords, it may well be. The answer is that I do not know. There has to be a proper examination of the evidence. If I was absolutely clear, and if we could be absolutely confident that this poor woman, Miss Williams, who was abused on a train, would be covered without the word “insulting”, I would move forward on this. I think that we could accept that. Until we have evidence from the Government that allows us to be absolutely clear that we are protecting people who are subject to abuse and insult—

If my noble friend wants evidence, would she not take into account the views of the Director of Public Prosecutions who is in charge of all prosecutions and has reached the view that without this word there are sufficient grounds to prosecute in this kind of instance?

My Lords, I would absolutely take that view on information from the Director of Public Prosecutions. However, that also has to be seen in line with the consultation that the Government have undertaken. A letter produced today does not give me confidence that we would protect those people. I do not know whether the Director of Public Prosecutions has looked at the case of Mr Braithewaite and Heather Williams, if that is what he has in mind. If the DPP could give an assurance on that case and other successful prosecutions, it would give me a lot of reassurance that we are not removing protection.

My noble friend must have regard to the fact that the director is the head of the prosecution service. He is in charge of the Crown Prosecution Service. It is the CPS which takes the decision on whether a prosecution should take place. From his long experience at the Bar and in the law, I am sure that he has taken into account the views of all his colleagues in the service. Is that to be disregarded?

My Lords, I am not disputing that. I am disputing that that should be taken in context with the other information. We have been waiting for almost a year for the Government’s consultation response. It is a disgrace that it has not been made available to the House. It is for the Government to justify that and not me.

We would not sully our ears with the expressions used in the instance that the noble Baroness has given. Was it not abusive? Was it not threatening? Was it merely insulting?

My understanding of the case concerning Mr Braithewaite and Miss Williams is that the defendant was charged and convicted of a Section 5 Public Order Act offence for the homophobic insults. There were other offences as well, but homophobic insults were a significant part of that prosecution. It is for the Government to bring forward what they intend to do. I am not against change or further discussion on this but, on the evidence today, I want to see the evidence from the Government in much greater detail and to know exactly what the outcomes and the consequences would be for those who the law currently protects.

My Lords, I understand the interest that has been shown in this debate. I thank the noble Baroness, Lady Smith, for at least demonstrating that the issues that the House has to consider are perhaps a little more complicated than some of the speeches have implied. It is important to stress that there was a further sentence to the letter of which the noble Lord, Lord Dear, kindly sent me a copy. After the comments about the ability to prosecute, the letter continued:

“However, I appreciate there are other policy considerations involved”.

He is right that the Government have to consider the full implications of this amendment.

Let us make it clear: the Government are not seeking to change the law. It is this debate and this amendment that are seeking to change the law. The law has existed and has protected free speech, and incidents have been demonstrated. But we need to be properly considerate before we change the law in this area.

As the noble Lord, Lord Dear, has explained, the amendment would repeal as an offence the use of insulting words or behaviour that are likely to cause “harassment, alarm or distress”. As has been mentioned, the House will recall that a similar amendment was put forward by my noble friend Lord Mawhinney in Committee. At that point, he agreed to withdraw his amendment to allow the time for the Government to fully consider their response. After all, they had a public consultation, as the noble Baroness has mentioned, on possible reform of the whole of Section 5. I am grateful to my noble friend, who I do not think is in his place.

The Government have completed their consideration of the consultation responses. The consultation produced a polarisation of views—I do not think that that will surprise noble Lords—between those seeking removal of the word “insulting” and those wishing to retain it. The number of responses—there were more than 2,900—the strength of feeling and the complex issues raised by respondents, on both sides of the debate, make this a far from straightforward decision. If it were easy, I certainly would try to make it easy.

The task falling to Government on this issue is to carefully balance the right of people in a democratic society to express themselves freely with the Government’s responsibilities to protect the rights of others to go about their lawful business without being caused harassment, alarm or distress. Therefore, it is important that the debate on this issue is properly informed.

Section 5 does not make it an offence for one person simply to insult, abuse or even threaten another. That is the law. For the offence to be committed the words or behaviour used, or the insulting writing or picture displayed, must be within the sight or hearing of a person likely to be caused harassment, alarm or distress. It is perfectly possible for a person lawfully to express views in public, which are considered by others to be insulting, abusive or threatening without being likely to cause harassment, alarm or distress, and therefore not to contravene Section 5.

The courts have held, in the case of Percy v the Director of Public Prosecutions, that Section 5 is proportionate and satisfies the necessary balance between the right of freedom of expression and the rights of others to go about their business without being subject to behaviour likely to cause harassment, alarm or distress.

However, the Government recognise the strong arguments on both sides of this issue. Some feel that the “insulting” limb of Section 5 has a chilling effect on freedom of expression—we have heard speeches to that effect—and a disproportionate impact in relation to religious groups who practise their religion by preaching in public. It has further been argued that insults should not be a criminal matter and it is not for the police and the courts to decide what constitutes an insult.

Some believe that removing the word “insulting” from Section 5 would affect only very low-level disorder and would have no material effect on our ability to prosecute serious public order offences. They feel that offences such as poppy burning could be captured by the “abusive” limb of Section 5 or by other provisions such as Section 4A of the Public Order Act, which covers intentional harassment, alarm or distress.

The Government have also listened to the police and other criminal justice agencies, and the concerns they have about ensuring that the police have the powers they need to protect the public and to maintain public order. The police have said that Section 5 is a key early intervention tool that allows them to deal with a wide variety of public order and anti-social behaviour offences at the earliest opportunity. From that point of view, the “insulting” limb of the offence gives them the flexibility they need to respond to hate crime and to defuse tension quickly in public order situations.

Some argue that reform of Section 5 could reinforce perceptions that it is acceptable to disrespect or even swear at police officers. While swearing is not itself an offence, it can be covered by Section 5, which applies not only to members of the public but to public officials, including police officers who are sworn at in the course of their duties. It is also argued that removing the “insulting” limb of the offence could impact on the ability to prosecute successfully cases such as the burning of poppies on Remembrance Day and the desecration of monuments or symbols of national significance, such as flags and war memorials.

The Government have carefully considered the legitimate concerns and strongly held views of respondents to the consultation. There are good arguments on both sides. However, I must inform the House that the Government strongly holds the view that the word “insulting” should be retained in Section 5 of the Public Order Act.

The Government have a responsibility to protect the public so that communities and law-abiding citizens can live in peace and security. The police must have the powers they need to meet this responsibility. We have considered this matter—

I am sorry, but I am not prepared to give way. I want the House to hear the argument that has gone through the Government.

We have considered this matter at great length—for too long, as the noble Baroness has suggested—and we have reached the firm view that Section 5 should not be reformed. There is insufficient evidence that the removal of the word “insulting” would be beneficial overall. I regret that this decision will not be welcomed by everyone, but I assure the House that it has been given careful consideration. I regret to say that should the noble Lord, Lord Dear, seek to test the opinion of the House, I will urge noble Lords—

Would the noble Lord like to comment on the fact that the Director of Public Prosecutions has changed his mind? How do the Government respond to and answer that change of decision?

The letter is available, no doubt, from the noble Lord, Lord Dear, in full. I suggest that noble Lords read the full text of the letter, not just selective quotations.

In so far as I understand the term “abusive”—most noble Lords will understand that term—can the Minister define in legal terms the word “insulting”? I have not heard in anything that he said tonight a proper definition of “insulting”. I have heard it defined by the Opposition Front Bench. I shall leave my question at that. Can the Minister define “insulting”?

My Lords, I shall respond to one thing. Lest there should be any doubt that I might have been concealing something in the letter from Keir Starmer QC, the DPP, having safely said that you can take “insulting” out of the section, in the last line he says:

“However, I also appreciate there are other policy considerations involved”.

I am bemused. I think that he probably knew something that I did not: that the Government are confused.

I hope that noble Lords on both Front Benches will allow me to say that I am totally confused by their attitude. We have a picture on the one hand that everything is well, despite the fact that the current DPP, the ex-DPP and the ex-Lord Chancellor—a plethora of legal minds in this House—have said that “insulting” can and should come out. The law is not leaving a hole in its place; “abusive” will cover it. There is the safety net of Section 4A, what is left of Section 5 and other legislation. I am deeply disappointed. I had hoped that the Government would support this, with the wide-ranging, voluminous support that there is on all sides of the House, from people who have much better experience than me.

The signals that have been sent tonight—indeed, that have been sent to all of us in the preceding few days—show that many noble Lords have put themselves about very considerably to hear this debate, travelling from the far corners of this country; I do not use those words lightly. We have waited far too long for this. Although I regret to have to say so, I beg leave to test the opinion of the House.

Amendment 119A not moved.

Clause 30 : Orders and regulations

Amendments 120 and 120A

Moved by

120: Clause 30, page 30, line 43, after “30” insert “or 30A”

120A: Clause 30, page 31, line 6, at end insert—

“( ) an order under paragraph 76E of Schedule 12;”

Amendments 120 and 120A agreed.

Amendment 120B not moved.

Clause 33 : Short title, commencement and extent

Amendments 121 and 122

Moved by

121: Clause 33, page 32, line 41, after “17” insert “and 18”

122: Clause 33, page 32, line 41, after second “to” insert “11, 12 and”

Amendments 121 and 122 agreed.

Amendment 122A

Moved by

122A: Clause 33, page 33, line 1, leave out “Section 21(2) comes” and insert “Sections 21(2) and (Abolition of scandalising the judiciary as form of contempt of court) come”

Amendment 122A agreed.

Amendment 122AA

Moved by

122AA: Clause 33, page 33, line 16, at end insert—

“( ) section (Appeals relating to regulation of the Bar);”

Amendment 122AA agreed.

Amendment 122B

Moved by

122B: Clause 33, page 33, line 17, at end insert—

“( ) section (Abolition of scandalising the judiciary as form of contempt of court);”

Amendment 122B agreed.

Amendments 122C to 124

Moved by

122C: Clause 33, page 33, line 33, at end insert—

“( ) Subsection (11) applies to section (Use of force in self-defence at place of residence) only so far as the provisions amended extend to England and Wales or apply in relation to service offences.”

123: Clause 33, page 33, line 34, after “apply” insert “to amendments made by section (Disclosure of information to facilitate collection of fines and other sums)(13) and (14) or”

124: Clause 33, page 33, line 38, after “section” insert “(Immigration cases: rights of appeal; and facilitating combined appeals),”

Amendments 122C to 124 agreed.