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Lords Chamber

Volume 741: debated on Wednesday 12 December 2012

House of Lords

Wednesday, 12 December 2012.

Prayers—read by the Lord Bishop of Bristol.

Driving: Blood Alcohol Limit


Asked by

To ask Her Majesty’s Government whether they will consider introducing a 50 milligram blood alcohol limit for drivers aged under 21.

My Lords, the Government have no plans to introduce a lower blood alcohol limit. The North review did not support a lower limit for drivers under 21 and the Government endorsed this. The Department for Transport is considering several options to ensure that newly qualified drivers drive safely.

As the Minister will be aware, I have shifted my position considerably in the spirit of Christmas. I have moved away from a demand for zero tolerance to what seems to be a reasonable compromise to move forward. I am sorry that in his first response he said that the Government will not move, but at least they are prepared to consider some movement for younger drivers. All the evidence indicates that this is required. Will the Minister confirm to the House that the number of drink-driving deaths went up last year for the first time in a number of years, and that we need to take action in the near future?

My Lords, I confirm that there was some unwelcome news on the number of casualties. However, if one looks at the graph, there continues to be a welcome downward trajectory. None the less, across the House, we all need to work hard to continue that downward trajectory.

My Lords, will the Minister tell the House how many fatalities per year the department believe to have any connection with drink-driving among people under 21?

My Lords, I am not sure regarding those under 21. The key figure is 280 drink-related fatalities per year.

My Lords, will the Minister explain what the measures are to improve the safety of young drivers which he alluded to in his first response?

My Lords, we are considering all possible options at the moment to continue the downward trend.

Will the Minister comment on the increasing and worrying trend of people driving under the influence of drugs? Will he tell the House when it is likely that a device will be approved for roadside testing in this regard?

My Lords, during the passage of the Crime and Courts Bill this afternoon we will be taking the drug-driving provisions through. There are two pieces of equipment to be approved: the station-based drug testing equipment, which is on track to be approved by the Home Office shortly, and the roadside drug testing equipment, which is a little more difficult; we need to wait for the outcome of the expert panel which is looking at the appropriate levels before we can set its specification.

My Lords, how long does it take for the blood alcohol level to return to zero from 80 milligrams when the alcohol disperses naturally?

My Lords, I do not know, but the key point is that there is no safe limit of alcohol in the blood when driving a vehicle. Therefore, we advise that the best option is not to drink at all.

My Lords, I note that the noble Earl told us that there was a downward trajectory. Will he give us the figures for the number of fatalities in the past year and for the year before that to demonstrate that? What stance are the Government taking on the BMA’s recommendations on this matter?

My Lords, the casualty figures were distorted slightly by the number of casualties in 2010, which were slightly lower; we believe that that was due to the bad weather. The key point is that the figures for 2011 were still better than those for 2009.

My Lords, will the Minister tell us how the United Kingdom’s blood alcohol limit compares with those of the rest of Europe?

My Lords, many European countries have a 50 milligram blood alcohol limit. However, they also have lower penalties at that level. Our policy is to have an 80 milligram limit but very severe penalties if you exceed the limit. This seems to have the right effect because our safety record is better than that on the continent.

My Lords, if the noble Earl is saying that 80 milligrams is the correct level for us, what about Scotland and Wales? Presumably they will decrease their level to 50 milligrams.

My Lords, the noble Viscount is quite right; Scotland has the power to set a lower limit. However, it cannot change the penalties. If it does change its limit, it will be very interesting to see what the effect will be on casualties.

My Lords, in France it is now compulsory by law to carry a breathalyser kit in one’s car. Is the UK considering anything like that?

My Lords, absolutely not. The difficulty with that idea is that it would enable drivers to drink more while believing that they were below the limit. Our policy is that there is no safe level of alcohol in the blood when driving. Therefore, we do not support the compulsory carrying of breathalysers by drivers.

My Lords, when the Minister gave the figures for the number of fatalities involving drink, did all of those incidents involve blood alcohol levels above the current limit? My recollection is that one problem with the issue was that no statistics were kept for accidents involving drinkers who were below the 80 milligram limit but above the 50 milligram limit. Is that information now available?

My Lords, it may well be available but I am not aware of it. However, my point is that there is no safe blood alcohol level when one is driving a vehicle.

My Lords, my noble friend referred to options and the noble Baroness, Lady Finlay, asked him if he could specify some of the options. Can he give us at least two of them?

My Lords, one option—and it is only an option—would be to deal with the problem of tragic accidents where several youngsters are killed in one vehicle. These are very distressing accidents and we need to consider whether we should allow a young driver to carry several youngsters. However, there is a contrary argument, which noble Lords opposite articulated when they were Ministers, that that could have an economic effect. It could mean that the system of one sober driver might not work. So we need to consider carefully what the options are to make sure that there are no unintended consequences.

My Lords, will the Minister tell your Lordships’ House which drugs will be detected if the detection equipment is found to be reliable?

My Lords, we are shortly going to be publishing the review of the expert panel which will tell us which drugs and what levels for each drug will be detected, based on scientific evidence, and the risk associated with them.

Lobbyists: Register


Asked by

The consultation document Introducing a Statutory Register of Lobbyists was published earlier this year to gather evidence from experts in the field and members of the public. It asked a number of specific questions, the multiple answers to which are informing policy developments in this area.

Well, my Lords, it does not sound like much action has been taken. Given that the coalition promised to regulate lobbying through a statutory register—in case the noble Lord needs reminding—can he tell us whether it is going to move on this or is it going to wait for the next big scandal before it does so?

My Lords, we are certainly intending to move on this but as the noble Baroness will appreciate if she has looked through the replies to the consultation document and the companion report of the Political and Constitutional Reform Committee in the other place, there is a quite remarkable dissensus among respondents. The Government’s summary of replies to the consultation document remarks at one point, in effect, that a lot of those consulted regard themselves as a legitimate part of the political process but regard everyone else as lobbyists. That is part of the problem. The paid lobbyists are a small part of those with whom we are talking, and they wish charities, think tanks, trade unionists and others also to be included on any register of lobbyists.

My Lords, does my noble friend agree that the overriding objective must surely be greater transparency? In that regard, while we must obviously avoid excessive complexity because the information has to be accessible and digestible, does he agree that all we really need to know is who is lobbying who about what? The register only goes so far in that respect.

My Lords, the Government have moved some way towards greater transparency in terms of who members of the Government meet. I am amazed by the detail in which I have to account quarterly for who I have met over the previous three months, so at one end we are already being more transparent. Part of the origin of the proposals for a lobbying register during the previous Government was the question of how much money was being paid to these specialist lobbying companies to influence Government. That was the origin of the inquiry. For the first time in my life, I sympathised enormously with the evidence given by the TaxPayers’ Alliance to the inquiry in which it said a narrower definition would be rather better.

When the noble Lord fills in the form that he talks about within the department, does he draw a distinction between official and unofficial engagements and does he register them both?

Yes, and we have discussed whether I should put down everyone I meet at a party conference. There comes a point where almost the entire political process becomes lobbying. For example, the secretariats of most all-party groups are supported by outside bodies. Are those lobbyists? Is that proper? Should we do away with them? One gets into very deep water quite early on in this field.

My Lords, would journalists in the press gallery, who are therefore registered journalists, be allowed also to be registered lobbyists? In other words, could they hold two occupations?

I have to admit that I do not know the answer to that question and will have to write to the noble Lord.

Does my noble friend agree that if we restricted the activities of lobbyists and it resulted in fewer all-party groups, that would be a very good idea?

There might be no more cakes and wine, I am afraid. Let us be clear: lobbying is an entirely legitimate part of the political process, which would be poorer if we did not have lobbying. The problem is that we have lobbying from professional companies, advocacy groups—many of which are also charities—the CBI, trade unions and others. It is a very complicated area to try to pin down to a single statutory register.

My Lords, when you get a company lobbying, would it be helpful if it were to register on whose behalf it was lobbying, so that when it writes to us, we know who it is lobbying for?

My Lords, that is the narrowest definition and where the Government started. The replies to the consultation have taken us much wider than many of us originally intended to be taken. Certainly, the concern—and I am very struck by this in the documents that I am looking at—and perception that there is undue lobbying is very much about large sums of money being paid to professional companies, very often by foreign Governments.

My Lords, on the question of all-party groups, does the Minister agree that if professional lobbyists insinuate themselves into all-party groups, that is a breach of the standards that we ought to expect, both as regards this House and the wider public? Although we have had several goes at cleaning this up, there is a lot still to be done.

I agree that we have to be very careful about all-party groups. It is a matter for both Houses as much as anything else. However, one might not want to say that Universities UK for example, which happens to assist the All-Party Group for Further Education, Skills and Lifelong Learning, is a lobbying company and should not be allowed to support that group. There is a gradation here; one has to think about what is proper and what is not.

My Lords, when the Minister writes to the noble Lord, Lord Martin, will he also place a copy in the Library?

My Lords, when we have a register of lobbyists, will it be illegal for those not on the register to lobby?

There is a voluntary register of public relations companies, which was established in the wake of an earlier inquiry in 2009. However, one of the three bodies that joined that register has now left it. Even within the public relations industry, they disagree among themselves as to who exactly one should be regulating.

My Lords, does my noble friend agree that there is nothing wrong whatever with people and organisations lobbying Members of Parliament and, indeed, lobbying Members of your Lordships’ House, much as though many Members of this House might prefer it not to happen? The important thing is absolute transparency and clear rules about the use of money.

I agree very strongly. We all need to defend the usefulness of representational groups, advocacy groups, think tanks and others in contributing to our information. We all get lots of e-mails from those groups as we approach legislation and other things. That is a desperately important part of the open, democratic political process—so long as we are sure that we know what is going on and that it is transparent.



Asked by

To ask Her Majesty’s Government whether they will take steps to encourage giving to the United Kingdom charitable sector in the light of the recent report UK Giving 2012 that reported a drop in donations of 20 per cent in real terms.

My Lords, I beg leave to ask the Question standing in my name on the Order Paper and draw attention to my charitable interests as listed in the register.

My Lords, the report does suggest a worrying drop in giving. However, this is yet to be confirmed as a trend, and there is some debate within the sector about whether this is what charities are experiencing on the ground. The Government remain committed to taking action to ensure that Britain continues to be a generous country, in giving both money and time.

The Minister is right that there is some dispute about the figures, but I wonder whether he is familiar with the latest report by the Charities Aid Foundation that one in six charities think that they will have to close over the next year and that half are already using their reserves because of a fall in donations, cuts in public spending and much increased demand for their services. How do the Government think that this will impact on their vision of the voluntary sector and charities being a vital part of the delivery of public services and, indeed, on the Prime Minister’s hopes for the big society?

My Lords, I have also seen that report and looked at it in some detail. It is interesting, incidentally, that as of September this year there were 2,000 more charities registered than there had been three years before so the trend has not, so far, been downwards, but it is worrying. From my experience of the charities sector, and I have visited a large number of additional charities since I took over this post, I am shaken by some that I meet in Yorkshire that are almost entirely dependent on public funds. That seems unwise. I strongly approve of those that raise some of their money through their own activities. The social enterprise model is very much part of what charities should be doing. The Government are doing a whole range of things to encourage the new generation to give more of their time and money. The National Citizen Service is one of them.

My Lords, given that the number of donations being given online and by text is increasing, does the Minister agree that charities are losing out, because gift aid is not yet fully digitised? Does he agree that it is imperative that the Government help charities to achieve a universal declaration of gift aid so that online giving can be much more beneficial than it is now?

My Lords, I strongly agree with the noble Baroness. We are also looking at the difficulties of payroll giving. The Government want to encourage it. A small number of, by and large, large companies make that easy for their employees. We would like to see an expansion of payroll giving. The figures suggest that older people are now much more generous than the younger generation, and we do not entirely know the reasons. Again, that is not entirely fitting. I trust that all Members of this House are giving at least 10% of their income to charity.

My Lords, I spent some years living in the United States. I was always struck there by the efficacy of the system that they have, in which where contributions to charities are fully deductible. The US Treasury seems to have worked out that the more that is given by individuals, the less the eventual burden on the taxpayers because they are taking up a lot of the strain from the taxpayers. This is not rocket science. Successive Governments here never seem to look at this as a serious proposition. Why not?

I do not entirely agree with the noble Lord, Lord Grenfell. I have a relative in the United States who managed, by making donations of various sorts to his university library, to avoid paying almost any tax the previous year. One wants to encourage people to be generous. The Small Charitable Donations Bill, which we will be dealing with next week, is part of that. We need to consider how one asks for larger donations and makes them tax-beneficial. I remind people that legacies are also important, but a charity which I was talking to last week said that the problem with legacies is that people offer them to you, then stick around for many years.

My Lords, have the Government assessed whether the decline in charitable giving is connected to an increasing rise in the practice of charity mugging, commonly called chugging, where members of the public are approached by representatives, who may be working for agencies, to sign a direct debit? In particular why is it that if they are holding a cash tin they need a licence from the local authority, but if they make an approach for a direct debit they do not?

My Lords, the noble Lord, Lord Hodgson, dealt with chugging in his review of the Charities Act. We wish to encourage a broader base for giving among small donors. Chugging has been with us for some time. It is not a new phenomenon.

My Lords, in terms of the giving of time through volunteering, as well as the giving of money, it is good news that the Government are supporting more volunteering for sports as part of the legacy from those wonderful games makers at the Olympics. Will that same support for volunteering be extended beyond just sporting activity to other kinds of volunteering, such as the work that the WRVS is currently doing in sending volunteers in to help people who are living alone and suffering from loneliness?

My Lords, the Government’s join in scheme is very much intended to take on the spirit of the Olympics and extend it to a whole range of other activities. I visited a National Citizen Service course this summer. I had been relatively sceptical about National Citizen Service until then, but I was completely bowled over by the young people who were taking the course who were learning how to go out, raise money, help people and develop schemes. I would like to see many more people have the opportunity to learn how they can contribute more actively to society. It was a bunch of people from one of the poorer areas of Bradford, and it was delightful to see that they were learning to give their time and were managing to raise money.

My Lords, during the noble Lord’s wide-ranging visits to different areas and charitable organisations, what assessment has he made of the impact of the current economic crisis, particularly on BME women’s organisations, given the Government’s commitment to empowering women and those dealing with domestic violence and increased reports of forced marriages and honour-based violence?

My Lords, what happens to different charities depends partly on how heavily they depend on public funds and what their donor or social enterprise base is. I am aware of several charities in Yorkshire that deal particularly with women. Their current trajectory is very different depending on their funding base.

NHS: Clinical Networks


Asked by

To ask Her Majesty’s Government how they will address any shortfall in the funding of clinical networks.

My Lords, national funding for clinical networks has been maintained at £33.6 million since 2009. Forty-two million pounds has been allocated by the NHS Commissioning Board to support strategic clinical networks and clinical senates in 2013-14. It is for local health communities and the board to determine the number and size of networks, based on patient flows and clinical relationships, and to deploy their resources appropriately.

I thank the Minister for that Answer. His boss, the Secretary of State, is on the record as saying that clinical networks funding is increasing and will continue, yet on Monday a freedom of information survey revealed severe cuts to budgets and staff in clinical networks, so I wonder who is right. Cancer networks are cut by 26% and stroke and cardiac by 12% in the same period—2009-13—with the loss of hundreds of experienced and motivated staff. Do the figures that the Minister has given to me also cover clinical senates? Will those cuts be restored? What incentives are the Government putting in place to ensure that local health organisations contribute to the additional funding of cancer networks? Indeed, how will the local diabetes networks be supported in the new commissioning regime? We know that these networks work.

My Lords, I agree with the noble Baroness’s last comment. These networks are extremely valuable. I confirm that the figure I gave her in my Answer of £42 million covers clinical senates as well. It is perfectly correct that the share of the pot which cancer networks will be able to avail of is likely to be smaller next year than it is this year. However, I can categorically confirm that, as I said in my Answer, national funding has not been cut to date and is going up next year very considerably. Furthermore, we should recognise that the Commissioning Board’s announcement amounts to a ringing endorsement of the value of networks in improving patient outcomes. Not only will funding be increased but for the first time there will be nationally supported networks for mental health, dementia and neurological conditions as well as maternity and children’s services. I say to the noble Baroness that recruitment to the networks is proceeding very smoothly and encouragingly.

My Lords, I declare an interest as a lay member of a cancer network lung cancer group. I know the Minister is aware that our survival scores for lung cancer need improvement and that early diagnosis is the key to that improvement. In the light of that, what steps are being taken to make absolutely certain that any reduction in the number, staff or funding of cancer networks does not damage the efforts to improve early diagnosis?

My Lords, I am grateful to my noble friend. As regards cancer, it is important to look at what the Government are doing across the piece. As the noble Lord may recall, the cancer strategy that we published a while ago is backed by more than £450 million of investment. This is specifically to target earlier diagnosis of cancer; to give GPs increased access to diagnostic tests; to allow for the increased testing and treatment costs in secondary care; to support campaigns; and so on. That is a large sum of money and it is committed.

Does the Minister envisage a role for the to-be-designated academic health science networks in delivering clinical networks in the future? I declare my interest as chair for quality, University College London Partners academic health science partnership.

My Lords, yes. National guidance is being produced by the NHS Commissioning Board, setting out the different areas of focus for academic health science networks, health and well-being boards, local education and training bodies and clinical senates. The defined geographies of the 12 network support teams have been developed precisely to gain close alignment and therefore promote close relationships and co-operation with the other structures in the new system—including academic health science networks.

My Lords, in some cases, yes, but we anticipate that many members of existing networks will be transferred across into the new ones.

My Lords, the people with CFSME were greatly heartened in 2008 when the Chief Medical Officer ring-fenced £8 million to set up clinical networks on their behalf. They have become disillusioned as the funding of these networks has gradually been cut. There is also no provision for children in the clinical networks. What priority is given to CFSME?

My Lords, strategic clinical networks are only one category of network in the new system. There is nothing to stop professional groups coming together to share best practice and support professional development. In addition, clinical commissioning groups may well wish to establish networks to support local priorities and ways of working; and providers may use a network model to enable the joint delivery of a service, such as pathology. The noble Baroness, Lady Thornton, rightly referred to the extent to which local providers and commissioners already support strategic clinical networks. So there is a variety of ways of doing this.

Does the Minister recognise that reducing funding for cancer networks will lead to a reduction in staff and therefore a reduction in the effectiveness of cancer networks?

My Lords, Professor Sir Mike Richards, the national cancer director, said the other day:

“Although cancer networks will have a smaller proportion of the budget in the future, there are still backroom efficiencies that can be made to make things work more effectively. Increasing the footprint of each network will make them more cost-efficient”.

I have spoken to him personally and he is confident that the available budget can still be used to ensure that there is at least equal cost-effectiveness of networks.

North Korea

Private Notice Question

Asked by

To ask Her Majesty’s Government what is their assessment of the impact on regional and world security of North Korea’s recent missile launch.

My Lords, I beg leave to ask a Question of which I have given private notice. I declare a non-pecuniary interest as the chairman of the All-Party Group on North Korea.

My Lords, we condemn North Korea’s satellite launch. This test of its ballistic missile technology is in clear violation of UN Security Council Resolutions 1718 and 1874. This provocative act will only serve to increase regional tensions and undermine prospects for peace in the peninsula. The UK is urgently consulting with the UN Security Council and we have urged North Korea to return to constructive international negotiations.

My Lords, I am grateful to the Minister for her response. Is not this highly provocative act, coming a week before South Korea’s elections, an attempt to undermine any attempts at peaceful moves for reconciliation and progress? It is also a wicked waste of resources, estimated at some $800 million. That is enough to feed the entire population of North Korea for a year, in a country where malnutrition and starvation are commonplace. Will the Minister tell the House whether the Government have called in the North Korean ambassador and, if so, what will they say to him? Does she welcome China’s statement this morning, in advance of the Security Council meeting, that,

“Pyongyang should … abide by relevant UN Security Council resolutions … which demands the DPRK not to conduct ‘any launch using ballistic missile technology’ and urges it to ‘suspend all activities related to its ballistic missile programme’”?

I agree with the noble Lord. I think that the timing of this testing is indeed important and relevant, so soon after the US elections and the transfer of power in China and just before the elections in Japan and South Korea. We are looking at the timing of this matter in some detail. I also agree with the noble Lord that for a country with extreme poverty to be using resources on developing what we feel to be further nuclear missile technology is not an appropriate use of funds.

I can confirm that the North Korean ambassador to the UK was called to the Foreign and Commonwealth Office today—indeed, possibly as we speak, he is in a meeting with the Permanent Under-Secretary.

My Lords, does the Minister agree that in a country where there is so much human suffering, it would behove North Korea rather more to make a priority of alleviating suffering, as well as seeking dialogue and reconciliation, and that this provocative act, as she described it, damages both those targets? Will she ensure that we do not lose sight of the human rights violations in a country where the United Nations estimates that 200,000 people are held in prison camps?

The right reverend Prelate is right. In a country where both resource and energy could be spent on so much, whether on alleviating poverty or on human rights, this does not appear to be an act which is in the interests of its own people.

My Lords, I am grateful to the noble Lord, Lord Alton, for raising the Question today, because we share the concern that this missile test will be destabilising regionally and for the world, and may well provide the grounds for a regional arms race and proliferation.

There have been reports today that part of the missile project has been conducted jointly with Iran. Have the Government any further information on that? Will the process that we will go through on the Security Council resolutions have the same characteristics as were announced about an hour and a quarter ago by the United States: that there should be a full head of steam behind the approach to the United Nations, potentially calling for similar sanctions to those in force on Iran?

I can confirm, my Lords, that discussions are ongoing as to how the United Nations Security Council proceeds in this matter: whether it is by way of a further resolution or a presidential statement; whether further sanctions could be applied; and the nature of those sanctions. On the noble Lord’s question about Iran, I do not have any further information at this stage, but if it is something that I can write to him about, I will.

My Lords, this has been the third serious provocation in less than four years by North Korea. The noble Baroness referred to the potential of the UN Security Council meeting. Will she assure the House that in the conversations that will be had with China with respect to potential Security Council sanctions against North Korea, the energy dependence of North Korea on China will be discussed, and that China will be pressed not to continue to provide oil to North Korea?

My Lords, having been to North Korea reasonably recently and had less than satisfactory conversations with politicians and the military there, I think that we ought to realise that the one thing that unites North Korea is hatred of the United States. We should do everything that we possibly can to try to get the United States to have a better dialogue with North Korea. Wherever you go in North Korea they remember the Korean War—the monuments are all around the country. It is taught to children from the very first year they go to school. I hope that we can try to influence the Americans to understand this, and they could make a big difference. The Korean War was 60 years ago.

The noble and gallant Lord clearly speaks from experience in relation to his own visit and his own dialogue. I can only speak on behalf of our Government. Even in very difficult circumstances we felt it was appropriate to continue our dialogue and our discussions in whatever opportunities present through our embassy in North Korea.

Can the Minister tell us a little more about the way we are trying to draw China into a longer and deeper discussion about how we deal with North Korea? China has an enormous problem on its own border, not just because of the military side but also because of starving refugees trying to get across that border. Surely a large part of this must be our attempt to get China more fully engaged in a longer-term proposal as this regime is one of the most awful and most dangerous in the world.

I agree with the noble Lord that China has to be part of the solution in relation to North Korea. The noble Lord will be aware that it is part of the six-nation discussions, which of course also include the United States, Russia and Japan.

My Lords, does my noble friend agree that the only long-term solution to the untold misery of the people of North Korea, and the ending of the serious menace that that state poses to regional and indeed world peace, is its absorption into South Korea? Does she agree that the Chinese would not necessarily be averse to that solution?

My Lords, it is good news that the ambassador of North Korea has been called in. I have not heard many people mentioning South Korea—the Republic of Korea—in this exchange. Are Her Majesty’s Government speaking to the South Koreans to urge them not to try to take any kind of unilateral action and that whatever they do, it should be done through the United Nations?

As the noble Lord will appreciate, this was a Private Notice Question. I am not sure if any discussions have taken place immediately, certainly within the past 24 hours, on the specific point that the noble Lord raises. We are, however, in general discussions with the South Koreans on this matter and, as I said earlier, they form part of the six-nation dialogue.

Is it not the wish of the Government now to consult with America and China on how to deal with this situation? We cannot deal with it single-handed.

My noble friend is right. This is not a matter which the UK would seek to deal with in any way single-handedly.

Statute Law (Repeals) Bill [HL]

Order of Recommitment Discharged

Moved by

My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of recommitment be discharged.

Motion agreed.

Patrick Finucane


My Lords, I would now like to repeat a Statement that was made by the Prime Minister earlier this afternoon in the House of Commons on the murder of Patrick Finucane.

“The murder of Patrick Finucane in his home in North Belfast on Sunday 12 February 1989 was an appalling crime. He was shot 14 times as he sat down for dinner with his wife and three children. His wife was injured, and Patrick Finucane died in front of his family.

In the period since the murder, there have been three full criminal investigations carried out by the former Metropolitan Police Commissioner, Lord Stevens. Taken together, they amount to the biggest criminal investigation in British history, led by the most senior police officer, and consisting of more than 1 million pages of documents and 12,000 witness statements obtained with full police powers. As a result of the third Stevens investigation, one of those responsible, Ken Barrett, was tried and convicted in 2004 for the murder of Patrick Finucane.

There was a further report by Judge Cory. Both Lord Stevens and Judge Cory made it clear that there was state collusion in the murder. This itself was a shocking conclusion, and I apologised to the family on behalf of the British Government when I met them last year. But despite these reports, some 23 years after the murder, there has still been only limited information put into the public domain. The whole country, and beyond, is entitled to know the extent and nature of the collusion, and the extent of the failure of our state and Government. That is why, last October, this Government asked Sir Desmond de Silva to conduct an independent review of the evidence to expose the truth as quickly as possible.

Sir Desmond has had full and unrestricted access to the Lord Stevens archive and to all government papers. These include highly sensitive intelligence files and new and significant information that was not available to either Lord Stevens or Justice Cory, including Cabinet papers, minutes of meetings with Ministers and senior officials, and papers and guidance on agent handling. He has declassified key documents, including original intelligence material, and he has published them in volume 2 of his report today. The decision over what to publish was entirely his own—it was entirely a matter for Sir Desmond de Silva. Sir Desmond’s report has now given us the fullest possible account of the murder of Patrick Finucane and the truth about state collusion. The extent of disclosure in today’s report is without precedent.

Nobody has more pride than me in the work of our Armed Forces, our police service and our security forces. I see at close hand the work they do to keep us safe. As Sir Desmond makes clear, he is looking at,

“an extremely dark and violent time”,

in Northern Ireland’s history. I am sure the House will join me in paying tribute to the police and security forces that served in Northern Ireland, but we should be in no doubt that this report makes extremely difficult reading. It sets out the extent of collusion in areas such as identifying, targeting and murdering Mr Finucane; supplying a weapon and facilitating its later disappearance; and deliberately obstructing subsequent investigations. The report also answers questions about how high up the collusion went, including the role of Ministers at the time. Sir Desmond is satisfied that there was not,

“an over-arching State conspiracy to murder Patrick Finucane”,

but while he rejects any state conspiracy, he does find quite frankly shocking levels of state collusion. Most importantly, Sir Desmond says he is,

“left in significant doubt as to whether Patrick Finucane would have been murdered by the UDA”—

the Ulster Defence Association—

“in February 1989 had it not been for the different strands of involvement by elements of the State”.

He finds that,

“a series of positive actions by employees of the State actively furthered and facilitated his murder”,

and he cites five specific areas of collusion.


“there were extensive ‘leaks’ of security force information to the UDA and other loyalist paramilitary groups”.

Sir Desmond finds that,

“in 1985 the Security Service assessed that 85% of the UDA’s ‘intelligence’ originated from sources within the security forces”.

He is,

“satisfied that this proportion would have remained largely unchanged by … the time of Patrick Finucane's murder”.

Secondly, there was a failure by the authorities to act on threat intelligence. Sir Desmond describes,

“an extraordinary state of affairs ... in which both the Army and the RUC SB”—

Royal Ulster Constabulary Special Branch—

“had prior notice of a series of planned UDA assassinations, yet nothing was done by the RUC to seek to prevent these attacks”.

When you read some of the specific cases in the report —page after page in chapter 7—it is really shocking that this happened in our country. In the case of Patrick Finucane, he says that,

“it should have been clear to the RUC SB from the threat intelligence that ... the UDA were about to mount an imminent attack”,


“it is clear that they took no action whatsoever to act on the threat intelligence”.

Thirdly, Sir Desmond confirms that employees of the state and state agents played “key roles” in the murder. He finds that,

“two agents who were at the time in the pay of … the State were involved”—

Brian Nelson and William Stobie—

“together with another who was to become an agent of the State after his involvement in that murder”.

It cannot be argued that these were rogue agents. Indeed, Sir Desmond concludes that Army informer Brian Nelson should,

“properly be considered to be acting in a position equivalent to an employee of the Ministry of Defence”.

Although Nelson is found to have withheld information from his Army handlers,

“the Army must bear a degree of responsibility for Brian Nelson's targeting activity during 1987-89, including that of Patrick Finucane”.

Most shockingly of all, Sir Desmond says that,

“on the balance of probabilities … an RUC officer or officers did propose Patrick Finucane … as a UDA target when speaking to a loyalist paramilitary”.

Fourthly, there was a failure to investigate and arrest key members of the West Belfast UDA over a long period of time. As I said earlier, Ken Barrett was eventually convicted of the murder, but what is extraordinary is that back in 1991, instead of prosecuting him for murder, as the RUC CID wanted to, the RUC Special Branch decided instead to recruit him as an agent.

Fifthly, this was all part of what Sir Desmond calls a wider,

“relentless attempt to defeat the ends of justice”,

after the murder had taken place. Sir Desmond finds that,

“senior Army officers deliberately lied to criminal investigators”.

The RUC Special Branch, too,

“were responsible for seriously obstructing the investigation”.

On the separate question of how certain Ministers were briefed, while Sir Desmond finds no political conspiracy, he is clear that Ministers were misled. He finds that,

“the Army and Ministry of Defence (MoD) officials provided the Secretary of State for Defence with highly misleading and, in parts, factually inaccurate advice about the … handling of … Nelson”.

On the comments made by Douglas Hogg, Sir Desmond agrees with Lord Stevens that the briefing he received from the RUC meant he was “compromised”. But he goes on to say that there is,

“no basis for any claim that he intended his comments to provide a form of political encouragement for an attack on any solicitor”.

More broadly on the role of Ministers, Sir Desmond says that there is,

“no evidence whatsoever to suggest that any Government Minister had foreknowledge of Patrick Finucane's murder, nor that they were subsequently informed of any intelligence that any agency of the State had received about the threat to his life”.

He says that the then Attorney-General, Sir Patrick Mayhew deserves,

“significant credit for withstanding considerable political pressure designed to ensure that Brian Nelson was not prosecuted”.

As a result, of course, Nelson was prosecuted in 1992, following the first investigation from Lord Stevens.

The collusion demonstrated beyond any doubt by Sir Desmond, which included the involvement of state agents in murder, is totally unacceptable. We do not defend our security forces, or the many who have served in them with great distinction, by trying to claim otherwise. Collusion should never, ever happen. So on behalf of the Government, and the whole country, let me say again to the Finucane family, I am deeply sorry.

It is vital that we learn the lessons of what went wrong, and for Government in particular to address Sir Desmond's criticisms of,

“a wilful and abject failure by successive Governments to provide the clear policy and legal framework necessary for agent-handling operations to take place effectively and within the law”.

Since 1989, many steps have been taken to improve the rules, procedures and oversight of intelligence work. There is now a proper legal basis for the security services, and the Regulation of Investigatory Powers Act 2000 has established a framework for the authorisation of the use and conduct of agents. In addition, the activities of individual agents are now clearly recorded, along with the parameters within which they must work. The Intelligence Services Commissioners and the Office of Surveillance Commissioners now regulate the use of agents and report publicly to this House. Taken together, these changes are designed to ensure that the failures of 1989 could not be made today.

Policing and security in Northern Ireland have been transformed, reflecting the progress that has been made in recent years. The Force Research Unit and the Special Branch of the RUC have both gone, and the Police Service of Northern Ireland is today one of the most scrutinised police forces anywhere in the world. It is accountable to local Ministers and a local policing board and it commands widespread support across the whole community.

Through all these measures, both this Government and their predecessors have shown a determination to do everything possible to ensure that no such collusion ever happens again. We will study Sir Desmond’s report in detail to see what further lessons can be learnt, and I have asked the Secretaries of State for Defence and Northern Ireland and the Cabinet Secretary to report back to me on all the issues that arise from this report. I will publish their responses. Other organisations that are properly independent of Government—police and prosecuting authorities—will want to read the report and consider their own responses.

Sir Desmond says that his conclusion,

“should not be taken to impugn the reputation of the majority of RUC and UDR officers who served with distinction during what was an extraordinarily violent period”.

He goes on to say that,

“it would be a serious mistake for this Report to be used to promote or reinforce a particular narrative of any of the groups involved in the Troubles in Northern Ireland”.

I am sure that those statements will have wide support in this House. We should never forget that over 3,500 people lost their lives and there were many terrible atrocities. Sir Desmond reminds us that the Provisional IRA,

“was the single greatest source of violence during this period”,

and that a full account of the events of the late 1980s,

“would reveal the full calculating brutality of that terrorist group”.

During the Troubles, over 300 RUC officers and 700 British military personnel were killed, with over 13,000 police and military injured. I pay tribute to them and to all those who defended democracy and the rule of law and who have created the conditions for the progress we have seen. We must not take that progress for granted, as we have seen this week, and I pay tribute again to those in the PSNI who are once again in the front line today. We must not and we will not allow Northern Ireland to slip back to its bitter and bloody past.

The Finucane family suffered the most grievous loss and they suffered it in the most appalling way imaginable. I know they oppose this review process and I respect their views. However, I respectfully disagree with them that a public inquiry would produce a fuller picture of what has happened and what went wrong. Indeed, the history of public inquiries in Northern Ireland would suggest that had we gone down that route, we would not know now what we know today.

Northern Ireland has been transformed over the past 20 years and there is still more to do to build a genuinely shared future. One of the things this Government can do to help is to face up honestly when things have gone wrong in the past. If we as a country want to uphold democracy and the rule of law, we must be prepared to be judged by the highest standards, and we must also face up fully when we fall short. In showing once again that we are not afraid to do that, I hope that today’s report can contribute to moving Northern Ireland forward. In that spirit, I commend this Statement to the House”.

My Lords, that concludes the Statement.

My Lords, I thank the Leader of the House for repeating the Statement on Patrick Finucane given by the Prime Minister earlier in the other place. In addition, from the Opposition Benches in this House, I also thank Sir Desmond de Silva for his work and how he went about his task. He has produced a serious report within the terms of reference that he was set. It will take time to absorb its full details. I welcome the Prime Minister’s apology, which was set out in the Statement repeated by the Leader, to the Finucane family. It is the right thing to do.

We should begin by remembering the unimaginable horror of Pat Finucane’s murder. This was a husband, a father, a brother who was murdered in his own home as he sat with his family on a Sunday evening. Some 23 years after this appalling crime, his family still searches for the truth with courage and dignity.

This report provides disturbing and uncomfortable reading for all of us. It makes clear that there was collusion in the murder and a cover-up. Furthermore, it states that,

“agents of the State were involved in carrying out serious violations of human rights up to and including murder”.

Of course, this should not diminish the service of thousands of police officers, soldiers and Security Service personnel who were dedicated to protecting and serving people in Northern Ireland, and who have my admiration and that of all of us in this House today. They will be as appalled as we all are by the findings.

As we examine and assess the findings of this report and whether it is adequate, it is essential that we remember the background. An investigation into the murder of Pat Finucane in which the public had confidence was an important part of the peace process, a process which is held in trust from Government to Government, which began under Sir John Major and has continued since.

In 2001, at Weston Park, the Irish and British Governments agreed to appoint a judge of international standing to examine six cases in which there were serious allegations of collusion by the security forces. This applied in both jurisdictions: the UK and Ireland. It was agreed that in the event that a public inquiry was recommended in any of the cases, the relevant Government would implement that recommendation.

Judge Peter Cory was appointed and recommended that public inquiries were necessary in five cases. Three of those on the UK side have been completed and the one inquiry recommended on the Irish side is expected to report next year. The only outstanding case in which a public inquiry was recommended but has not taken place is that of Pat Finucane.

The previous Government could not reach consensus with the Finucane family on arrangements for an inquiry but, towards the end of our time in office, the Finucane family indicated that they would support a public inquiry under the Inquiries Act 2005 and had begun to discuss a way forward. We on this side continue to believe that we should abide by our obligations under the Weston Park agreement.

First, do the Government recognise the concern that the failure to hold a public inquiry is in breach of agreements that were an essential part of the peace process? Secondly, Sir Desmond has accepted the assurances of the state that he has been given all relevant material. But this is the same state the agents of which were involved in what the report describes at paragraph 116 as,

“carrying out serious violations of human rights up to and including murder”,

and the same state whose previous criminal investigations into this matter were the subject of “serious obstruction”.

Do the Government therefore recognise the concern about the limits to what the de Silva inquiry could do? Will the Leader of the House explain why the Prime Minister believes that a public inquiry would not have produced a fuller picture in which the public could have had confidence, as Mr Justice Cory recommended, not least because of the opportunity to cross-examine witnesses? In his Statement repeated by the Leader, the Prime Minister said he disagreed with the Finucane family that,

“a public inquiry would produce a fuller picture of what happened and what went wrong”.

I respectfully disagree with him.

Thirdly, the de Silva report concludes that,

“a series of positive actions by employees of the State actively furthered and facilitated his murder and that, in the aftermath of the murder, there was a relentless attempt to defeat the ends of justice”.

What do the Government propose to do in response to these serious findings?

Fourthly, the British and Irish Governments have been as one on this issue. Will the Leader of the House say what discussions the Government have had with the Irish Government about the de Silva review, and what the position of the latter is today?

That takes me to the final issue: public confidence. That we continue to build trust and confidence among the communities of Northern Ireland remains crucial. The appalling violence we have seen on the streets of Northern Ireland in recent days should remind us of that. Judge Cory said that a public inquiry was needed into the murder of Pat Finucane because,

“without public scrutiny doubts based solely on myth and suspicion will linger long, fester and spread their malignant infection throughout the Northern Ireland community”.

Can the Government really say with confidence that the whole truth has been established in the case of Pat Finucane? How can we say that when the report is dismissed by his family and many others in Northern Ireland?

We, as the United Kingdom, must accept that sometimes our state did not meet the high standards we set ourselves during the Northern Ireland conflict. The past is painful and often difficult. We believe that we must establish the full and tested truth about Pat Finucane’s murder. We therefore continue to believe that a public inquiry is necessary for his family and for Northern Ireland.

My Lords, I thank the noble Baroness the Leader of the Opposition for her response to the Statement. She is right that it is essential that we should remember the background against which we operated at that time and, following on from that, she is right to note the enormous changes that have taken place during the course of the past 25 years, most of all during the peace process in the past 20 years. The noble Baroness asked a number of questions, to which I shall try to reply.

Perhaps I can deal with one question relatively quickly, on the Irish Government and their likely position. I can confirm that the Prime Minister spoke this morning to the Taoiseach, Enda Kenny. The position of the Irish Government, that they have been in favour of a public inquiry, has been widely known for a long time. However, they understand why we have taken the decision that we have taken, and they respect that we have been entirely open and frank. I hope that they, like everybody else who has an interest in this issue, will find some comfort in the integrity of the process once they have considered Sir Desmond’s report. The position of the Irish Government is, of course, one for them to determine.

I am well aware that the decision not to hold a public inquiry was controversial. However, our ambition and motivation as a Government was to frame a real question: what is the fastest way to get to the truth and to lay out what happened? We know what has happened in the past with public inquiries; some of them took five or six years, or even longer, cost tens of millions of pounds and perhaps did not even get closer to the truth than de Silva has got in his report today. We therefore very much support our decision to have this inquiry led by Sir Desmond de Silva.

At the time of the general election, this went to the core of the point made by the noble Baroness about confidence in Northern Ireland and in the process that we have conducted. In answer to whether we can say with full confidence that the whole truth has been uncovered, this is a very long report and individual noble Lords will want to review and read with care what has been said. However, it is clear that Sir Desmond de Silva has done the whole nation a tremendous service in trying to get to the heart of the matter and uncover the truth, building on the work that had been done by previous individuals. This was a fast way to find the truth. That is a good thing for Northern Ireland.

With the greatest respect to the noble Baroness, her Government had nine years between Weston Park and the general election to decide to go ahead with a public inquiry. It is not a decision that they took, possibly because they understood as much as we have done the problems of time and expense. The key thing is to get to the truth. I venture to suggest that very few countries would have set it out in so much detail or laid out what went wrong as comprehensively as we have done today. We should all take some pride in a country that is willing to do that. It is an agony in many respects to read what has been said, but it is right to publish and to ensure that people who have been affected can see the work that Desmond de Silva has done. That is very much the basis of the decision that we took and we stand by it.

My Lords, I remind the House of the benefit of short questions for my noble friend the Leader of the House, so that he can answer as many as possible.

My Lords, I thank my noble friend for repeating the Statement. I thank the Prime Minister for instituting the de Silva inquiry and for his apologetic and sympathetic response to the Finucane family.

No Member of this House could listen to the Leader of the House reading out the Statement without being deeply shocked and dismayed at its horrifying content. This cannot be other than a source of national shame. One of our citizens was murdered in his own home with the collusion of state agents, and subsequently, for 23 years, there has been obstruction of the proper authorities in the investigation of these matters, including by senior officials in the Ministry of Defence, the police and security services, to the point, according to this report, that Ministers were lied to and misled, and they then misled Parliament. How is it possible to hold our own authorities to account if they are being so grossly misled in this way? This is a time for deep national shame and self reflection because it begs real questions.

It does no credit to our House to refuse to accept the clear reality of what went on. Authorities here must learn that you do not defend democracy by undermining the very principles of democracy, decency, honesty and of abiding by the proper law. I trust, although I frankly do not believe it, that some elements of government in Northern Ireland understand that playing footsie with paramilitaries and colluding with them, including in threats to some of my own friends recently, is no way to promote democracy. It is a travesty of democracy. How can we assure ourselves that these things will not happen in the future? We will not do so merely by responding to this Statement; I trust that there will be a full debate in your Lordships’ House and that we will properly learn the lessons, not by more inquiries but by more decisions as to how we hold these matters to account in the future.

My Lords, I understand exactly what my noble friend is saying and the force with which he says it, with all the experience and knowledge that he has in his personal background and the part that he has played in Northern Ireland. He is right in saying that none of us could hear the Statement made by the Prime Minister without being deeply shocked and dismayed by what has happened—the level of collusion and the cover up that took place thereafter.

He said that it was a national shame and he is right, but part of dealing with that is to confront it by having the review that we have taken, publicising it and apologising for what happened. There is also the second point, which I think my noble friend was referring to, about what has changed and how to ensure that these things do not happen again. The background within which the security services operate is so entirely different from that existing in the late 1980s when there was no legal framework against which they operated.

RIPA 2000 created a proper legal and policy framework within which to gather intelligence. There is now therefore an unambiguous framework which puts all work relating to agents on a statutory footing and is designed to prevent the same mistakes and abuses being made today. RIPA is also underpinned by a range of non-statutory frameworks and codes of practice which set out clear processes for the day-to-day management of agents by relevant agencies. Managers, the PSNI and the security services are required to ensure that staff comply with this legislation. The Statement referred to the PSNI now being the police force with more scrutiny that any other in the world. I think that that is right.

My Lords, as somebody who has been fortunate to survive 10 murder attempts by the Provisional IRA, I find this isolated apology quite ridiculous. The reality is that the Finucane family were an IRA family. I illustrate this by saying that when I made that allegation publicly and was being sued for libel, the family retracted and paid my legal expenses. Let us not therefore fool ourselves about the “Godfather” Finucane who was killed. If there was connivance, let me say that all of us who served through the heart of the Troubles in Northern Ireland served in such a way that it was impossible to have a secret. Why were there 10 attempts on my life? Why was the noble Lord, Lord Kilclooney, shot? It was because there was conspiracy.

I point out that less than 1% of all terrorist suspects involved in proactive security force operations were killed by the security forces, and that 99% of cases ended in arrest. There were no incidents of unlawful killing in a Special Branch-led operation in Northern Ireland, and the security-force response was totally human-rights compliant. Let us not forget all those years of terrorism and become compelled by a single incident which may in fact—and I will not deny it—have involved conspiracy. If one sought justification—and I do not justify it—it was not without a godfather. Godfathers were responsible for so many murders in Northern Ireland, it should not be forgotten.

My Lords, the noble Lord, Lord Maginnis, brings his own particular view of these issues. Indeed, Sir Desmond looked at the accusation that Patrick Finucane was a member of PIRA, and on the basis of the evidence that he saw he concluded that he was not. I know that that was not the entire point that the noble Lord was making, but the Government have nothing to add to Sir Desmond’s conclusions on this point.

I am bound to say that the question of PIRA membership is not in this case particularly relevant. The point that was made in the Statement and as a result of the review is that the state should not have been involved in Patrick Finucane’s murder. It is on that basis that the state has made the apology.

My Lords, I declare an interest. I was Secretary of State for Northern Ireland when Patrick Finucane was murdered and I was Secretary of State for Defence when the possible prosecution of Brian Nelson arose. I join my noble friend in recognising —as he did in repeating the Prime Minister’s Statement, and as we all must—that this was an appalling crime of which we should all be ashamed. It should not have happened and it is particularly appalling because there is clear evidence of significant collusion. It was an appalling crime at what the Statement calls a dark and violent time in Northern Ireland. I was not surprised at the contributions of the noble Lords, Lord Maginnis and Lord Alderdice. The House has had the opportunity to sense some of the tensions that so rapidly rise to the surface, and which one can now see on the streets of Belfast.

That is in no sense an excuse for what happened. One of the things that I most resent about this is that the appalling things that happened in this case sully the reputation of very brave security forces who, over all those years and with huge personal suffering to them and their families, stood to protect the Province of Ulster, Northern Ireland, against the risk of total disaster. We should recognise that.

I take exception to one element of the Statement repeated by my noble friend: namely, the phrase “state involvement”, which is now current. I understand why it has arisen. It gives the impression that somehow the Government planned the murder of Patrick Finucane. It is an appalling concept that I as Secretary of State somehow authorised it. Of course, that is totally untrue. In my time I committed myself to trying to save every life that I possibly could on both sides of the community, however people were involved.

What is also clear is that there were incidents in which people were in clear breach of their orders or instructions. The Statement claims that there was no co-ordinated legal basis for the employment of agents. I draw the attention of the House to something in Sir Desmond de Silva’s report which states that agents were being handled at that time under the strict instruction of the Commander Land Forces Northern Ireland, Tony Jeapes, that it was unlawful for any person to authorise any illegal act, and that if there was any possibility of an agent becoming involved in criminality, the assistant chief of staff was to be informed through the commanding officer of the FRU so that preventive measures could be taken. Mr Nelson’s handler was acting in total breach of that instruction at the time. I should say that some of the agents, informers or touts—they go under different names in Northern Ireland—were incredibly brave people who saved an enormous number of lives. The difficulty of handling them should not be underestimated.

This is an impressive report. One or two people have already passed judgment on it. Nobody can have read it yet except the Prime Minister, who obviously was briefed on it. I have only managed to read the executive summary. There is an enormous amount in the report. It needs further study and I will not pay great attention to any comments until people have had a chance to read the report through and then address the issue of whether there should be a further public inquiry. I have great respect for the noble Baroness and understand why she said that a public inquiry might ensure that we would get to the truth. There are no grounds for saying that until we have seen how close we think Sir Desmond de Silva has got to the total truth of the matter, and considered what could be achieved by going for a further public inquiry. This is what challenged the previous Government and why, nine years on, there has been no progress. This is what they were wrestling with. It is difficult to see what the benefit of a public inquiry would be, and I can see some real disadvantages, not least because there should be prosecutions arising from some of the things in the report. If we go for public inquiry, it would probably prevent that being possible.

My Lords, I very much agree with what my noble friend said about the public inquiry. He has heard what the Prime Minister and I said on that question. My noble friend started by saying that this was an appalling crime. He is right. The key thing for us to remember—this is another thing he said—is that the accusation of state collusion sullies the memory of all those individuals who fought to defend democracy without having to go down this route. That is what makes this so appalling.

Of course I entirely agree with my noble friend that this is a lengthy report that has taken many months to compile. It builds on the work of previous investigations, including that of a distinguished Member of this House. There were a million pages of documents. This is the most comprehensive of comprehensive reports and it requires time to look at it.

On the question of Ministers’ knowledge, de Silva is very clear. He says there is:

“no evidence whatsoever to suggest that any Government Minister had foreknowledge of Patrick Finucane's murder ... nor that they were subsequently informed of any intelligence that any agency of the State had received about the threat to his life”.

There is no evidence at all that any Ministers had any knowledge at the time of Nelson’s targeting activity, or that they were encouraged or directed in any collusive activity with the UDA. That is a very strong statement.

My Lords, the de Silva report is profoundly disturbing with its statement that Sir Desmond is satisfied that Patrick Finucane was identified by a police officer for targeting, that he was targeted, that he was not warned of the risks to him—risks which existed in 1981, 1985 and 1989—despite the extent of the knowledge of the activities of these UDA men, and that the investigation into his murder was repeatedly obstructed—all examples of state collusion. The Prime Minister has rightly apologised yet again to his family for what the Prime Minister described as,

“shocking levels of state collusion”.

Mr Finucane was not involved in IRA activity. He was a lawyer carrying out his professional duties in profoundly difficult and dangerous circumstances. I am sure that Members of this House will again wish to express their sympathy to the Finucane family, just as I am sure that all those upright officers with integrity in the army, the police and the security services will wish to share their sympathy at the pain that the Finucane family must be experiencing again today.

But this was not an isolated situation. Investigation has shown that this pattern of activity was not unique to the UDA in west Belfast. The Prime Minister has stated, and the noble Lord has repeated, that the Regulation of Investigatory Powers Act has established a framework for the authorisation and conduct of agents. However, as Police Ombudsman I found as recently as 2003 that the Surveillance Commissioner was not being properly informed about UVF agents who were engaged in murders, attempted murders and other very serious crimes. Given the very small office of the Surveillance Commissioner, the pattern and nature of the investigations and inspections which are carried out by the Surveillance Commissioner, and particularly the resources available to the Surveillance Commissioner, is the Minister satisfied that there is adequate funding to enable the identification of any police failures in the handling and management of state agents?

This remains a profoundly important question. We have in Northern Ireland ongoing activities of republican paramilitaries, including the recent bomb in Derry. We have ongoing loyalist paramilitary activity. We have the current loyalist disturbances, which have caused huge distress and damage in Northern Ireland. And most recently we have had threats, not least death threats to a Member of the other place, Naomi Long, who serves constituents in East Belfast. This is a profoundly important matter for the future security of the United Kingdom. I thank the Government for what has been achieved thus far. Having read some of the report this morning, I will consider it further.

I am very grateful for what the noble Baroness has said. Again it demonstrates what my noble friend Lord King said about the very real tensions that brought about what happened during that dark and miserable period in Ulster. We are all part of a process of moving on from that. Let me deal with the nub of what the noble Baroness said about other cases. If there was collusion here, what else was going on? The Government will carefully consider the conclusions of the report to assess whether it impacts on any other cases. There have been public inquiries, as the noble Baroness knows, into a number of other cases where collusion was alleged. What we have tried to do here is demonstrate that we are prepared to leave no stone unturned in examining these cases and that, where there has been wrongdoing, the Government are prepared to apologise.

My Lords, the Leader of the House was slightly unclear when talking about the attitude of the Irish Government. Given that there was a firm agreement between the British and Irish Governments at Weston Park, what is the attitude of the Irish Government to this issue?

I think what I said was that the position of the Irish Government has been well understood, and that they were in favour of a public inquiry. My right honourable friend spoke to the Taoiseach this morning. They will want to read the report as well and come to their own conclusions, but those conclusions are a matter for the Irish Government.

My Lords, I have been reading the report since 8.30 am. I do not understand how the Official Opposition can come to the conclusion that another inquiry is needed when there are over 500 pages to be gone through. The inquiries into the six cases that flowed from Weston Park have required very substantial amounts of expenditure and effort put into finding the truth. Is the Leader of the House aware that if there is to be another inquiry into this case—and I am seeking his assurance now that that will not happen—I have a list of at least 13 other cases involving multiple deaths over a very long time that have just been completely airbrushed out of history? Can the Minister give an assurance that we are going to stop this process of ongoing and never-ending inquiries and concentrate on building a genuinely shared future, where we move forward instead of raking over the coals of the past for ever?

My Lords, the noble Lord is entirely correct in what he says. I understand the way that he says it and the reasons for it. We can spend a great deal of time, energy and money raking over the coals of the past. What we sought to do in setting up this review was to find a distinguished individual with the greatest possible reputation to conduct it. Sir Desmond’s report has now given us the fullest possible account of the murder of Patrick Finucane and the truth about state collusion.

I confirm to the noble Lord that we would not expect any further report to yield more information—it is fully in the public domain. Of course, I recognise that, on all sides, dealing with the past is still a live issue in Northern Ireland. However, there are other opportunities for families who lost loved ones to find out more, beyond inquiries, such as through the work of the historical inquiries team and the coronial inquests. I repeat again what I said a few moments ago: there is a time for us to deal with the past but it is even more important for us to deal with the problems of the future and to engage more and more in maintaining a level of peace for the people for Northern Ireland—all the people of Northern Ireland—so that they can prosper.

Crime and Courts Bill [HL]

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.]