My Lords, with the leave of the House, I would like to suggest that consideration of Commons Amendments 24 and 136 be postponed to another day. I hope that anything which had that effect would meet with the approval of the House and, not least, of the Minister because, as we all know, we are very pressed for time.
The purpose of these amendments is to introduce what is known as a forum bar in extradition proceedings. A forum bar, which is an additional ground on which extradition could be refused, was introduced in 2006 but it was never brought into force. The reason, as given at the time by the noble and learned Baroness, Lady Scotland—and I wish she was in her seat—was that it would have put us in breach of our bilateral treaty obligations with all our extradition partners. She was, surely, right about that. On 8 September 2010, the Home Secretary announced a review of our extradition arrangements. Sir Scott Baker, a recently retired Lord Justice, was appointed, with two colleagues, to consider the question of our extradition arrangements generally and the forum bar in particular. They produced a massive report which I have beside me here and they came down firmly against a forum bar for all the reasons set out in Part 6 of their report, which I will not repeat. They thought it was much better that, where there is a contested forum, the forum should be agreed between the prosecuting authorities in the two competing jurisdictions, not by the court in one or other of them. Sir Scott Baker’s report was published on 20 September 2011 and nothing happened until October 2012 when the Home Secretary accepted most of its recommendations.
My Lords, I hesitate to interrupt the noble and learned Lord. I have moved the question that we now consider Commons amendments, which I hope the House would wish to get on with. The noble and learned Lord’s handwritten amendments have been scheduled for debate at a particular point. At that time, he can move the amendments he is speaking to or, indeed, the adjournment of the House if that is what he would wish to do. I do not believe that he reflects the sentiment of the House, which is that we have a lot of business to get through today. This is clearly an important piece of legislation and we should consider it in the order in which the amendments have been scheduled to be debated. I ask the noble and learned Lord to conclude his impromptu speech and save his more detailed views until the point at which we are scheduled to debate them.
My Lords, I hope that what I am about to suggest will find favour with the noble Lord and the rest of the House. I remind noble Lords that we have 20 pages of amendments before us to consider at some time tonight. They were never considered at all on the Floor of the House of Commons and have never been considered by us at all, until now. They could have been brought before us last year. They were not. They have been brought before us at the last moment, and it is almost disgraceful for us to be asked to amend the law in an important respect that will undoubtedly affect our foreign relations without the matter having been properly considered in this House and the other place. I am sorry that the noble Lord does not immediately rise to that debate, but I seriously suggest to him—and I hope that there will be support for this—that instead of debating these 20 pages of amendments, the whole part that deals with extradition should be considered in the next Session of Parliament. It could easily be dealt with as a new Bill brought before either this House or the other place at the beginning of the next Session. That would be the proper way to deal with a matter of this importance.
I support the noble and learned Lord in what he said. It seems rather curious that the Government have introduced amendments in the Commons at the last minute that, by definition, we cannot debate fully because we are dealing with Commons amendments. We cannot have the proper debate that we would be likely to have in Committee and on Report. We are being treated rather badly by the Government. This is an important issue. A couple of years ago, when I was a member, the Joint Committee on Human Rights spent a lot of time considering extradition—it is an important issue. In terms of parliamentary democracy, the Commons did not consider these amendments at all, and we are being asked to do so in a truncated form late this evening when we will not have a chance for a proper debate. Surely the noble and learned Lord has a good case.
My Lords, I understand my noble friend Lord Taylor’s point, but I also understand fully the point made by the noble and learned Lord, Lord Lloyd of Berwick. We bring our Chamber into disrepute if we try to deal with 80 pages of amendments in the course of this afternoon and evening, including, as has been said, 20 pages of not just brand new but highly complex legislation on which we ought to consult outside this Chamber. The issues concerned could not be of greater importance.
My Lords, I endorse what has been said by noble Lords, particularly the noble and learned Lord, Lord Lloyd. We have here a situation that is uncomfortably analogous to that which applies to the Jobseekers (Back to Work Schemes) Bill, whereby these Commons amendments are, in effect, being treated as if they were emergency legislation. Admittedly, they do not have retrospective effect, which I suppose is welcome, but the timetabling aspect is extremely unsatisfactory. This House does not have an opportunity to consider the amendments fully. There are a great many matters that your Lordships will wish to discuss, not least around Leveson, which itself has come late in the day—although one understands the reasons for that. There is no particular reason why the measures to which the noble and learned Lord referred must be dealt with today. I hope that the Minister will acknowledge that it is asking too much of your Lordships’ House to deal with this matter sensibly, fully and thoroughly—as it needs to be—at such short notice, particularly when considering everything else that we have to discuss today.
My Lords, I underline the importance of what has been said because we have been given an extra week’s recess, which none of us particularly wanted because many of us have many engagements in London that week. It is quite wrong to steam-roller something through. This is the Executive treating this House with something approaching contempt. That is something up with which we should not put.
My Lords, the business for today has been scheduled and there is a sequence for considering the debates. We can consider the amendment of the noble and learned Lord, Lord Lloyd of Berwick, at the point where it is scheduled to be debated. Meanwhile, I beg to move that the Commons amendments be now considered.
Motion on Amendment 1
1: Insert the following new Clause—
“Modification of NCA functions
(1) The Secretary of State may, by order, make—
(a) provision about NCA counter-terrorism functions (and, in particular, may make provision conferring, removing, or otherwise modifying such functions); and
(b) other provision which the Secretary of State considers necessary in consequence of provision made under paragraph (a) (and, in particular, may make provision about the functions of any person other than the NCA, including provision conferring or otherwise modifying, but not removing, such functions).
(2) If an order under this section confers an NCA counter-terrorism function, an NCA officer may only carry out activities in Northern Ireland for the purpose of the discharge of the function if the NCA officer does so with the agreement of the Chief Constable of the Police Service of Northern Ireland.
(3) That includes cases where an order under this section confers an NCA counter-terrorism function by the modification of a function.
(4) An order under this section may amend or otherwise modify this Act or any other enactment.
(5) An order under this section is subject to the super-affirmative procedure (see section 39 and Schedule 19).
(6) In this section “NCA counter-terrorism function” means an NCA function relating to terrorism (and for this purpose “terrorism” has the same meaning as in the Terrorism Act 2000 — see section 1 of that Act).”
My Lords, I beg to move that this House agree with Commons Amendments 1, 26 and 137.
These amendments restore to the Bill the power to confer counterterrorism functions on the National Crime Agency by means of an order, subject to the super-affirmative procedure. Noble Lords will recall that this House removed what was then Clause 2 of the Bill at our Report stage.
We have reflected carefully on the concerns raised in this House about the level of scrutiny afforded by the super-affirmative process. We remain firmly of the view that this is an appropriate matter for secondary legislation and that the super-affirmative procedure provides substantial opportunity for parliamentary scrutiny and for Members of both Houses to influence the shape of the legislation. This question was debated at length in the House of Commons and although there were Members who shared the concerns of some in this House, ultimately the position of the Government prevailed when the matter was put to a vote.
In seeking to restore this clause to the Bill, your Lordships’ House will note that we have retained the important safeguards for the chief constable of the Police Service of Northern Ireland, in recognition of the sensitivity of the arrangements for countering terrorism in Northern Ireland. Primacy for the operational response to counterterrorism in Northern Ireland rests with the chief constable of the PSNI. The order-making power respects that; it cannot change that; and, indeed, it ensures that there is clarity as to the relationship between the PSNI and the NCA should counterterrorism functions be conferred on the agency in the future. What is important is that, should a future review of counterterrorism policing arrangements conclude that the NCA should have a counterterrorism role, that role, whatever it may be, must dovetail with the distinct counterterrorism arrangements in Northern Ireland.
We recognise that any decision to give the National Crime Agency a counterterrorism role will be an important one. We have no wish to diminish, impede or lose those aspects of the current arrangements that work well. However, with the creation of a National Crime Agency, it is reasonable that the Government consider afresh how the current counterterrorism policing arrangements work and to review whether there might be a role that the agency could play to enhance our response to the terrorist threat. These are questions that can sensibly be considered only after the NCA is up and running and then only after a full review. If a decision is made in the future that there is a counterterrorism role for the National Crime Agency, then the super-affirmative process, and the conditions that are tied to it, provide ample opportunity for this House and the other place to scrutinise the draft order to the degree that it deserves.
Under the super-affirmative procedure, the Home Secretary must first consult with persons affected by the proposed order. Thereafter, she must publish the draft order and a document which explains it. There is then scope for a committee of either House to report on the draft order which the Home Secretary must consider along with any other representations before the original order, or a revised version of it following such reports and representations, is placed before both Houses for approval. It will then be for both Houses to debate and agree the order before it is made. This is not a process that should be taken lightly.
Let me be clear: the power contained in this provision may not be used to remove any function from any body, including police forces. What this Bill proposes is the creation of a National Crime Agency charged with the responsibility to lead the fight against serious, organised and complex crime. Commons Amendment 1 is concerned with enabling the Home Secretary to give effect to the outcome of a review which, by definition, had concluded that the existing arrangements in respect of counterterrorism would be enhanced by conferring relevant responsibilities in this area on the NCA.
I again pray in aid the conclusions of the Delegated Powers and Regulatory Reform Committee. In its report on the Bill the committee agreed with the Government that such a provision was not unprecedented, and indeed the notion that additional functions could be conferred on a statutory body by secondary legislation was well established. We have been clear throughout this process that the position remains that we have no preconceived notion as to the outcome of a review of counterterrorism policing arrangements and the future role of the NCA, if any, in those arrangements.
As some noble Lords will know, and indeed will have experience of, counterterrorism policing today is a partnership endeavour among all police forces. Chief constables each retain their full operational responsibility for policing in their force area, but they have put in place through ACPO a framework of agreements which underpin the present national counterterrorism policing arrangements. These consist of a range of national lead responsibilities and support roles distributed among several forces and undertaken by those forces on behalf of all forces.
It is right that in the future we should be giving consideration to how the NCA might be able to enhance those arrangements. We continue to believe that it is also right that we should build into the Bill the flexibility to implement the outcome of such a review in a timely fashion through secondary legislation, but subject to a high level of parliamentary scrutiny in the form of the super-affirmative procedure. The Government would rightly be criticised if they could not implement the findings of a review for a year or more for want of the necessary primary legislation. This is not about whether the NCA should or should not exercise counterterrorism functions. That debate is for the future. Rather, the issue today is about the mechanism by which such functions could be bestowed on the agency. The mechanism provided for in Commons Amendment 1 is therefore a perfectly proper one. I would urge the House to agree the amendment and to reject Amendment 1A in the name of the noble Baroness, Lady Smith.
Amendment 1A (to the Motion)
Moved by Baroness Smith of Basildon
Leave out “agree” and insert “disagree”.
Baroness Smith of Basildon: My Lords, as we have heard from the Minister, at the Report stage of the Bill in November, your Lordships supported the deletion of the clause that provided the Secretary of State with the power to transfer by super-affirmative order counterterrorism functions from the Metropolitan Police to the National Crime Agency. The amendment was in my name and those of the noble Lord, Lord Blair, and my noble friend Lord Rosser. The reason for the amendment was not the transfer of functions, which may well be appropriate at some point in the future, but because such an important and crucial decision should benefit from the appropriate scrutiny of Parliament, which cannot be provided for without primary legislation. As the Minister said, government Amendment 1 would bring back that clause. My amendment, to disagree with that amendment, would delete that provision and retain the status quo.
The reasons for bringing this amendment back to your Lordships’ House are perhaps three-fold. First, the priority of any Government and any Parliament is the security of their citizens, and counterterrorism is, as the noble Lord would readily confess, a key issue in that security. I repeat and emphasise that we are not passing judgment on whether it may, in future, be desirable for the NCA to have responsibility for counterterrorism; only that such a decision must be evidence-led and appropriately consulted on and scrutinised. The Metropolitan Police have built up considerable expertise and skills in relation to counterterrorism and if the Government wish to remove that responsibility and function from the Met—the noble Lord referred to a review—they would need to have a very strong case to do so. I am sure that if it becomes the right course of action in time, that case will be made, and considered appropriately. However, we do not believe that this decision deserves anything other than full and proper scrutiny, which can only be provided by primary legislation. That view was fully endorsed last year by the Joint Committee on Human Rights in its report on the Bill, which stated:
“In our view, the potential human rights implications of a decision to confer counter-terrorism functions on the NCA are sufficiently significant to warrant primary rather than secondary legislation, to ensure that Parliament has the fullest opportunity to scrutinise the possible implications. We recommend that clause 2 be deleted from the Bill”.
Your Lordships’ House agreed with that conclusion and removed Clause 2 before sending the Bill to the other place.
In terms of effective scrutiny, which the noble Lord referred to in his comments, it is disappointing that the Government did not reintroduce this clause at the Committee stage in the other place but waited until Report. Similar comments were made by the noble and learned Lord, Lord Lloyd. I find it difficult to accept that this was a last-minute decision by the Government to bring this clause back. Why did they not bring it forward earlier, to allow the other place to have the opportunity to debate it in Committee and have a fuller discussion? The Minister said that it had full and, I think, considerable discussion in the other place. In fact, it had two and a half hours on Report and I am not convinced that that was long enough for the Commons fully to consider the matter. This is a big decision and a major issue. Whatever decision is taken in time by the Home Secretary and the Government about removing counterterrorism to the NCA, if that is what they so decide, I want the Home Secretary and the Government to have the full confidence of Parliament and the full confidence of all those involved in counterterrorism that the right decision has been made.
My second point is that, although the noble Lord is right in that the super-affirmative procedure allows for greater scrutiny than an affirmative resolution, it does not provide the level of scrutiny that gives that confidence for the Government or the Home Secretary that I spoke about. The Minister helpfully wrote to me about the super-affirmative order, for which I am grateful, and sent copies of the letter to other noble Lords, repeating the process that was originally in the Bill. He is right when he says that it provides the highest degree of parliamentary scrutiny other than primary legislation. That in itself recognises how important it is that this measure has appropriate scrutiny. However, the briefing note states:
“Whilst the process makes express provision for a role of Committee of either House (it is expected that this would fall to the Home Affairs Select Committee in the House of Commons) this does not preclude a role for those Standing Committees with interests in secondary legislation”.
The note continues to say that the Joint Committee on Statutory Instruments and the Secondary Legislation Scrutiny Committee will continue to discharge their duties under this procedure. I did not know it had ever been suggested that they would not. Of course they would. That is not a reassurance but merely a statement of existing procedures for all orders that come before your Lordships’ House.
At the Report stage, we were assured that a super-affirmative order is, in effect, amendable. To an extent, that is right, but, crucially, it can be amended only at the draft stage that the noble Lord spoke of by permission of the Secretary of State and by the Home Secretary. The Secretary of State and the Home Secretary in the super-affirmative order must have regard to any representation made. Parliament does not have the power to amend; only the Secretary of State has that power.
Finally, this clause has taken on a far greater significance on an issue that the Minister did not refer to in his speech, but is important. As a result of the failure to gain agreement on a legislative consent Motion from the Northern Ireland Assembly so that the National Crime Agency can be genuinely national and not the nearly National Crime Agency that we have now, we have an amendment in the next group to disapply the provisions of the NCA to Northern Ireland. We will have an opportunity to discuss that in more detail in the next group. However, it is extremely serious that the Government have got into a position where they have scrapped our existing national organisation for serious and organised crime, SOCA, before reaching agreement with the Assembly about its replacement. We now have no nationally reaching equivalent.
I think I heard the noble Lord mutter, “Is that relevant?”. It is entirely relevant to the discussion before us today on the issue of scrutiny. We understand that some Members of the Assembly have significant concerns over the provisions relating to the operations of the NCA in Northern Ireland, particularly in the potential future responsibility for counterterror operations within Northern Ireland. Clearly, the history of counterterrorism and the link between paramilitary organisations and serious and organised crime in Northern Ireland mean that special consideration will need to be given to how the NCA might operate in relation to counterterrorism in Northern Ireland. That is not a job for secondary legislation. We have serious concerns that the re-introduction of Clause 2 by the Government will make any agreement with Northern Ireland regarding the NCA even more difficult than is now the case.
Why are the Government insisting on a clause that might put any agreement on the NCA’s operations in Northern Ireland permanently out of reach? It is a clause that has been heavily criticised by the Joint Committee on Human Rights, and by distinguished ex-commissioners, as we heard previously in the debate, and resoundingly rejected by your Lordships’ House. The Minister of State, Jeremy Browne, said in the other place:
“The Government have not taken a view as to whether counter-terrorism should be transferred into the NCA. The NCA is not even up and running yet. It requires the assent of the House before we get to that stage, and we have said that when the NCA is up and running, that is something that the Home Secretary may wish to consider”.
That is perfectly logical and sensible. I agree entirely with those comments. It would be premature to make a decision before then so the Minister has got it right.
However, I profoundly disagree with his previous comment:
“It seems to me that this is not a very substantive issue; it is a procedural issue”.—[Official Report, Commons, 13/3/13; col. 328.]
That is a serious underestimation of the issues involved. It is not just a procedural issue; it is a serious issue that deserves thorough scrutiny. Parliament and your Lordships’ House also have responsibility to support the Government to ensure they get it right through adequate scrutiny.
Proper parliamentary scrutiny on an issue of this magnitude should not be reviewed by the Government as an attempt to thwart or delay; it is too important for that. Proper parliamentary scrutiny is to support this Government, or any Government, in getting it right. We know that in your Lordships’ House and outside, there is a wealth of expertise, experience and knowledge that would want to be of assistance to the Government and the nation on this issue.
As the Minister was coming to the end of his comments, he spoke of the review that has been undertaken and said that it would not be understood if parliamentary time could not be found for legislation after the review. It is the Government who are in charge of parliamentary time, and I find it hard to conceive of circumstances where the transfer of responsibilities on counterterrorism from the Met to the National Crime Agency would be an urgent or emergency issue. However, I say to the Minister that he knows, and the Government know, that in such cases or circumstances, negotiations can take place to ensure speedy legislation without compromising essential security.
The Minister said that he and the Government reflected on this when bringing the amendment back so that there could not be primary legislation on this matter in the future. I have to say to the Minister that he has not come back with any new or compelling arguments as to why this House and the other place should not have the opportunity to scrutinise by primary legislation such a major move. I beg to move.
My Lords, I support Amendment 1A, moved by the noble Baroness, Lady Smith, for the reasons that she has set out. I find myself agreeing with much of what the Minister said, apart from the mechanism that he advocates should be used in deciding this issue.
As the noble Baroness, Lady Smith, has said, this issue is so important to the national interest that the only mechanism that should be used to transfer responsibility for the lead on terrorism from the Metropolitan Police to the NCA or related agencies is primary legislation. Like the noble Baroness, I cannot imagine any urgent situation where primary legislation would impede the notion of national security and a super-affirmative order would be the better mechanism to use.
Lest I should be out of date in my feelings about this issue, I consulted the current Commissioner of the Metropolitan Police last Friday to see if my views and his were on the same wavelength. He is content for me to relay to your Lordships’ House that he shares my concerns that if there should be change—I am not against the notion of change—primary legislation is the vehicle that will best take care of the public interest on this issue.
I have said before in your Lordships’ House that I am not implacably opposed to any transfer. In saying that, I remind the House of my recorded interests in policing and that for seven years as commissioner this was a role that I discharged in leading the force that had this co-ordinating and leading responsibility. I believe that a super-affirmative order is the wrong way to take care of all the arguments and to preserve the public interest.
Important issues that will have to be considered if there is to be a change include the fact that more than 80% of terrorist offences on the mainland are played out, sadly, in London, and that in fighting terrorism hearts and minds and prevention are as important as detection. Therefore, an integrated approach, which the Metropolitan Police has built up over decades with school visits, visits to mosques and neighbourhood policing, is as important in the fight against terrorism as the drama of executing warrants early in the morning and dramatic seizures of explosives. This is an integrated effort that has been built up over decades.
In the 12 months to September 2012, arrests for terrorism increased over the previous 12 months from 153 to 245, an increase of 60%. The current arrangements are working very well in preserving the national interest on this issue. I am not aware of any arguing or lobbying by the security services for this change to take place. Perhaps I am out of date on that issue, but to my knowledge the Metropolitan Police Service and the other agencies involved in the fight against terrorism are not advocating these changes.
My fear is that the creation of the NCA—this fledgling, embryonic new body, which is not even fully functioning, which is already struggling with border issues and which I fear will be underresourced—has led to the administrative tidiness of considering the transfer of terrorism from the Metropolitan Police to the NCA. That may be the right thing to do in time. It is unlikely to demand an emergency overnight or within-a-few-weeks change that would lead to the notion of a super-affirmative order. I believe the national interest demands that only primary legislation should be used in this case and I urge your Lordships’ House to support Amendment 1A.
My Lords, a few minutes ago the noble and learned Lord, Lord Lloyd of Berwick, raised the question of the quality of scrutiny of legislation by your Lordships’ House. This amendment raises exactly the same set of questions about the quality of scrutiny that is possible for executive decisions. The Minister said that no decisions have been taken and that whether this is something the Government will want to do is an open question. He said that we need to see how the National Crime Agency develops and that only then will it be necessary to review and perhaps bring forward proposals. If that is the case, why do we need to legislate in this Bill for this process to happen in this particular way? If the Minister was saying that for the next 10 years the Home Office will not be presenting any Bills to Parliament and therefore this is the only legislative opportunity that exists, then maybe there would be a case for it. However, I do not recall a year when the Home Office has managed with no Bills. Sometimes it has had as many as four Bills before the Houses of Parliament. Therefore, it is likely that there will not be a suitable legislative opportunity at whatever time in the future it is considered appropriate to carry out this review.
Such a review having been carried out, the assumption that any transfer would be a simple matter which could be considered through even the elevated super-affirmative process is naïve. The integration, as the noble Lord, Lord Condon, stated, of counterterrorist work with mainstream policing is extremely important. I have probably said this in your Lordships’ House before but I live close to the Finsbury Park mosque. On the occasion that the Finsbury Park mosque was raided, as I arrived at the Underground station Metropolitan police officers were distributing leaflets explaining to the local community what had happened, why it had happened and what safeguards had been taken to protect the religious parts of that mosque. That was because counterterrorism is integrated into mainstream policing and there was a recognition that the Metropolitan Police would have to continue to police those streets after such a raid. That is why the integration of and arrangements with the counterterrorist units within the various forces around the country are so important. Shifting some or all of that to the National Crime Agency is complicated. These are not straightforward issues and they certainly ought to be debated properly in Parliament. That is what we are likely to miss.
I have another concern. We all now need the National Crime Agency to be a success and I believe it probably will be but it is going to take a while. Every reorganisation takes time. Every time you throw all the pieces up in the air and wait for them to settle, there is a period when the organisations have to come together. This is saying to an organisation which is not yet formally established, as this legislation is not yet through, that there may be some massive change to its remit just around the corner. I do not believe that is good for the current functions of the National Crime Agency; nor do I think it is necessarily good for counterterrorism if that change is to be made at some point in the future.
The Government have never answered the question of what is the problem that they are trying to fix. They say, “There might be a problem. We might have a review at some point in the future and if we do have a review, we want to be able to push this through by super-affirmative resolution”. That is simply not good enough. These are important questions. There must be proper parliamentary scrutiny in the future when these matters are considered.
My Lords, as a member of the Delegated Powers and Regulatory Reform Committee, I confirm that the Minister is right that we said that the super-affirmative procedure had been used before in similar cases and, in principle, could be used. However, that is not a key question. The key question has already been put and I do not wish to elaborate on it too much. Is it appropriate to use that procedure or would it in fact be better for quality-of-legislation purposes to have new legislation in the situation described in the proposed new clause? I tend to the view that if you are going to make a decision of that type, then new legislation would be better.
I asked myself whether it might become urgent to do that and whether we would then need urgent legislation, given that it deals with terrorism. I find it difficult to see the circumstances in which that might happen, but if it did then both Houses are quite capable of urgent legislation. However, that does not seem to be on the agenda. The real question is whether we would get the legislation right. In those circumstances, particularly given the nature of the cross-party consensus that one is usually able to build when you are looking for ways of dealing with terrorism, I would be surprised if it were not possible for a new Bill to be dealt with relatively expeditiously. The scrutiny given in both Houses, particularly this one, might be better than using the super-affirmative procedure, which I agree is an accepted practice, as we discussed at some length in the Delegated Powers and Regulatory Reform Committee, but whether it is best practice is a different question.
My Lords, I approached this issue with an open mind and attempted to ask myself what benefits might be gained from doing this particular thing in this particular fashion. I do not think that I have ever been accused of being soft on terrorism. I genuinely believe that the first obligation of a Government is to protect their citizens. I therefore sought to discover, in asking myself and in listening to others, what might be the huge advantage and efficacy, first, of transferring from the Metropolitan Police to the NCA and, secondly, of doing it in this fashion. I am afraid that I failed to persuade myself that there is such a case.
Unlike my noble friend Lord Harris and the noble Lord, Lord Condon, I have no particular interest in the Metropolitan Police, although obviously I have an interest as a former Home Secretary. However, the points that they made about the nature of the fight against terrorism were very well made. This is not just a mechanistic operational question. It covers far more than investigations and intelligence. It covers community relations, counter-radicalisation, relationships in the community, and so on. I fully accept that there is a degree of resistance, sometimes unspoken, from police services throughout the country as the Met has the lead on this. However, I think that it has discharged that responsibility very well indeed. In the absence of any problem to be solved, we have to ask why a solution of this nature has been proffered.
My second point concerns the emerging nature of the National Crime Agency. Every time I read about the NCA, which has not yet been formally established, as my noble friend Lord Harris pointed out, it seems to have inflated its own powers and scope. I am not quite sure who now controls the fight against illegal immigration as the UK Border Agency has been split off into a different agency and there is a second agency that comes under the Home Office. I understand that there are thoughts about the NCA having responsibility for controlling our borders as well and now counterterrorism is being envisaged. My third point is that we cannot start this from scratch. The fight against terrorism relies on a reservoir of experience, a culture, an operational expertise, knowledge within the system and so on.
My final point is about the nature of doing this. If it was absolutely essential to transfer such powers immediately, in a very short period or without obstacle or difficulty, I could see the Government’s case, but I have not yet been able to envisage such circumstances. Indeed, if I envisage sudden emergencies arising, I would have thought that that was precisely the time you do not want to change the agency handling them. You would want to carry out such a profound change in such an important area over a period of time with a great deal of thought being given to the transition. If that is the case, why are we looking for some immediate expedient to transfer it with the minimum of parliamentary scrutiny?
Having approached this with an open mind, I have found what I have heard so far entirely unpersuasive. I have listened to everything that has been said but I do not think that adding parliamentary scrutiny to a questionable transfer would in any way impede the fight against terrorism. In fact, it would assist it.
My Lords, I am sorry that the House is going to hear a series of commissioners being referred to and speaking. I have cut my speech right down because there was nothing that I disagreed with in the speeches that followed the Minister’s speech.
I shall emphasise one thing and ask one question. I gather that in the other place it was said that this is a procedural matter. It is not a procedural matter, but a matter of national security. The deputy national co-ordinator of counterterrorism, a Metropolitan Police officer acting under the command of the Metropolitan Police Commissioner, said in public this week that the terrorist threat is rising. As my noble friend Lord Condon said, and I can vouch for it from my time as commissioner, there has not been a single plot that did not arise in, pass through or aim at London. When the bombs go off, whether in London or Glasgow, only the Metropolitan Police can put thousands of officers on the road or fly people in Chinook helicopters to Scotland. That is because the Metropolitan Police is the size it is. The NCA will never be that size. That is one other aspect of why the Met is the right beast to do this job of enormous national importance.
I echo the points being made to the Minister. Has there been any evidence of failures in counterterrorism by the Metropolitan Police? There is no evidence that anybody seems to be aware of. Is there any evidence that having counterterrorism policing in a separate agency from territorial police forces is a good idea? No, there is not, and there is exactly the opposite if you look across the Atlantic with the divisions between the Department of Homeland Security, the FBI, the CIA, the New York Police Department, and so on. The person who first began to mention the idea that counterterrorism should be taken from the Metropolitan Police is one Boris Johnson. He made that point in 2008 at the Conservative Party conference. I would like reassurance from the Minister that the sectional interests of London Conservatives are not being put in front of national security because the reason that Boris gives for this is that it would allow the Mayor of London alone to choose the Metropolitan Police Commissioner without the influence of the Home Secretary. That is a very poor argument for imperilling national security.
What we are being asked to do this afternoon is to consider the procedure around a substantial issue, but it is the procedure. It seems quite logical that counterterrorism should be dealt with alongside and as part of dealing with serious crime and organised crime. They are often inseparable activities that fund terrorism, and I suspect they largely come within the remit of the NCA, or will do when it is in operation. The NCA will be able to task police forces. Can the Minister confirm that it will not have a lot of bodies on the ground, but will be able to task existing forces—including, presumably, the Met? Is this the way it is to operate?
I appreciate the problems about Northern Ireland, and I do not suggest that they are not important. I also take the point that it is vital not to disrupt effective working relationships, to which the noble Lord, Lord Reid, referred. Again, perhaps that is answered in part by the point about tasking.
We must at some point address overall how this House and the Commons deal with secondary legislation, but that is not a matter for now. The super-affirmative procedure seems to go as far as it can in allowing for consultation with an iterative-process response to comments on the part of the Government.
I did not think that I would ever hear myself say this, but this issue probably comes as close as anything to lending itself to a yes or no answer for this reason: whether there is a super-affirmative order or primary legislation, there will be regulations dealing with transitional arrangements and all the detail. Whichever procedure we have, it will not avoid those. The regulations will go through their habitual course.
Finally, can the Minister explain how, in legislative terms, counterterrorism is to be moved away from the Met, if it is? I am unclear whether any legislation is required for that part of the process. As I read it, counterterrorism is with the Met under a direction—not an order—from the Secretary of State. If that is so, then the Government’s proposals would mean far more involvement by Parliament than has hitherto been the case on this issue; I may have read this completely wrong and the Minister will put me right when he responds.
My Lords, I find today’s business difficult. Two categories of difficulty arise. This provision is much less difficult. I find the case made by the noble Baroness speaking for the Opposition persuasive and familiar. I have heard it before. I agreed with it when I heard it in earlier stages of consideration. My difficulty when the Commons reject our proposals is that I always feel cautious about disagreeing with the Commons. However, in this case, they have not heard our reasons for removing this provision. I am inclined to go with the noble Baroness who spoke for the Opposition, and say again what we think, at least to ensure that the Commons hear and listen to it.
I have much greater difficulty with the provisions that we are going to look at today which we have never seen before. The point made by the noble and learned Lord, Lloyd of Berwick, and supported by the noble Lord, Lord Cormack, is very important. For us to have to look under this procedure at language and provisions which are entirely new and were not in the Bill that was worked on here, in a rushed debate, without time to take advice from outside, conflicts with the concept of the House of Lords as a serious revising Chamber. I hope that the Minister will think carefully about that.
My Lords, this has been a good and useful debate. I thank noble Lords for presenting their arguments, in particular the noble Baroness, Lady Smith. Perhaps I can reassure her that this is not about the Metropolitan Police any more than it is about any other of the territorial police forces in this country. This is about a procedure whereby we can use or consider using the National Crime Agency as a co-ordinating body within any future counterterrorism measures. That decision has not been made; it is subject to review. Many noble Lords have made speeches that are quite valid and contain valid points regarding that review. I listened to noble Lords in that regard.
I referred to our disappointment at our inability to gain a legislative consent Motion from the Northern Ireland Executive. It is a matter of disappointment but it does not remove the opportunity, as we will find when we discuss the next series of amendments, for the National Crime Agency to operate in Northern Ireland. That is not the point at issue. It has always been recognised that in counterterrorism matters the Police Service of Northern Ireland has a particular role of its own, and this legislation respects that role. We are not making a decision about the future of counterterrorism. We are putting in place an opportunity for Parliament —my noble friend Lady Hamwee is quite right about this—to put the conclusion of a future review in place without undue delay so that there is an opportunity, perhaps for the first time, to consider fully the implications of how counterterrorism is co-ordinated on a national base. It would not be understood by people outside this place if, having conducted a review, and that review having been announced to Parliament, we had to wait as long as a year for a suitable legislative vehicle to hitch primary legislation to. We all know that secondary legislation is a more efficient way of presenting issues to Parliament; it is not a method by which Parliament is bypassed.
The noble Baroness, Lady Smith, asked about the timing of the Commons amendments. At Second Reading my right honourable friend the Home Secretary announced to the House that she was proposing to extend the commitment to reinstate this clause. At that point we were considering the debate in the House itself, and were also in discussion about seeking legislative consent in Northern Ireland. It was only at the conclusion of those elements that we were in a position to present it on Report in the Commons where, as the noble Baroness herself said, two and a half hours were devoted on the Floor of the House to considering this issue.
The noble Lord, Lord Condon, doubted whether it was proper for a change of this type to be considered in anything other than primary legislation. Much of what the noble Lord said covered the sorts of issues that will be relevant to a future review, of the type that we have not had before, into the way in which we co-ordinate CT and might involve the National Crime Agency. I hope that such a review would consider the very points that the noble Lord made.
The noble Lord, Lord Harris of Haringey, mentioned the complexity of the issue. Of course it is complex. This is about trying to find a mechanism for making a decision. In effect, all chief constables are responsible for ensuring appropriate and effective counterterrorism in their force areas. All force areas maintain a Special Branch, for example. There is already considerable activity at every force level. This enables the review to consider whether there is a role for the National Crime Agency in co-ordinating the activity at national level. It does not question the fact that the role of the Metropolitan Police, for reasons that have been stated in the debate, will be very important before, during and after the review.
I think that it was the noble Lord, Lord Harris, who asked me what problem I was trying to fix. It is clear that we already have in place very effective structures for counterterrorism policing. This is about reviewing those structures in the context of the National Crime Agency. We do not have a National Crime Agency at present but we will have one in place. We are considering what if any role the National Crime Agency should have in further enhancing our response to terrorism. To seek continuous improvement does not suggest that there is a problem. Until there is a review, we cannot say whether there should be a role for the National Crime Agency to play.
The noble Lord, Lord Reid, emphasised that the fight against terrorism is complex. I hope that nothing I said suggested that I believed otherwise. I hope also that I did not say anything with which he fundamentally disagrees about the nature of terrorism and the resources that need to be devoted to countering it. It is right that Parliament should have in place a review mechanism for considering how it implements these things.
The noble Lord, Lord Soley, took the view that there should be primary legislation. I disagree with him. One thing that we have all learnt is that much of the decision-making on an issue such as this will be quite detailed. It is almost bound to be dealt with in secondary legislation, because if there is to be a transfer of resources, funds or whatever, it will be based on a secondary legislation-type activity.
The noble Lord, Lord Blair, asked a very pointed question about whether there was party-political consideration in this, and whether it was a measure to appease the Mayor of London and gain some party advantage. I admire the noble Lord and I think that the question was unworthy of him. That is not what we are considering here. We are considering a proper mechanism whereby a national force designed to co-ordinate the fight against crime might also at some future date be asked by Parliament to have a role in counterterrorism. That is what we are considering today, and the question is about the procedure that we offer.
There are two legitimate points of view. It can be said that this is such an important thing that primary legislation is the only way to bring it about. I would say the most effective way of bringing it about is through the super-affirmative process following a review, which is precisely why I am arguing the Government’s case here.
My noble friend Lady Hamwee perhaps summed it up as well as anyone: no decision has yet been made or will be made until after review, and there will be no review until the NCA is up and running. This is about future-proofing national policing through the NCA, about a future role for the NCA with the additional flexibility made through the order-making power, and about what the NCA might be able to bring to enhance the counterterrorism response in the future if such a decision is made.
I am very grateful to the Minister. Indeed, he is right that there is almost nothing I disagree with in what he said, with one exception: his lack of explanation as to why one could not have legislation following a review. It is quite possible to have consultation in a review and then parliamentary scrutiny. He is presenting it as if one can only have a review and consultation if one is going to the affirmative procedure. What he has not explained is the need for that mechanism and the avoidance of further parliamentary scrutiny, not in the detail but on the major issue, should it arise, of the transfer of the lead on counterterrorism. That is a substantial issue.
I am certain it is the nature of these things that following the review, Parliament would have an opportunity to debate the issue before the super-affirmative proposal is laid. I made the point earlier that any party affected by this secondary legislation has the right to be consulted. Parliament itself is likely to express a view when that decision of a review is made, before a super-affirmative procedure is even tabled. I cannot imagine an issue of this importance passing noble Lords’ attention and not being brought to the attention of the Minister in this House to account for what was being proposed. I cannot see that being a realistic scenario. I would expect to have to answer to this House for a decision of that nature. Indeed, the super-affirmative procedure provides for an opportunity for full consideration of the detail, as the noble Lord has said, of what is going to be required in the transfer of these powers.
My noble friend Lady Hamwee asked about tasking powers in the NCA because they apply to police forces in England and Wales and they would apply to the functions of the NCA. For the moment, that is limited to serious and organised crime, but in future it could include counterterrorism if such functions were confirmed through secondary legislation, or the super-affirmative procedure, in the future.
This has been a useful debate. I do not waver from my conviction that the House has a role to play in debating the issues, but I think that the provisions of the Bill, as amended by the Commons, provide the right mechanism for doing so.
My Lords, I have listened with great care to the Minister, and I think he has done his best to reassure the House on the level of scrutiny that he proposes. However, I think he falls into the same mistake that his colleague Jeremy Browne made in the other place as seeing this as a procedural issue. He will have heard from noble Lords tonight with enormous experience—far more experience than either he or I have in these matters—that it is not regarded as a procedural issue but a very serious issue.
I said in my opening remarks, and the noble Lord, Lord Reid, made the same point, that the greatest responsibility that a Government and, I think, a Parliament have to their citizens is to ensure their safety and security. The noble Lord, Lord McNally, indicated his assent on that as well. As the noble Lord, Lord Reid, said, adding scrutiny to what he regards as a questionable transfer—although others would see it differently—but to something that raises concern, can only help rather than hinder any Government. Our Cross-Bench Peers with enormous experience in this, such as the noble Lords, Lord Condon and Lord Blair, with their vast experience of policing, raised real concerns about how such a transfer could be effective.
The Minister talks about a review and places great store by that review and the ability of noble Lords to contribute to it, but a review is not primary legislation. He says that a Government would seek to hitch to another Bill such a proposal to transfer counterterrorism from the Met to the new National Crime Agency. I would not expect Her Majesty’s Government to hitch something to another Bill, and I do not know what the Minister is gesticulating about, because this is a serious issue. It is hard to conceive, as other noble Lords have said, of a time when this would be in emergency legislation; it would be the wrong time, but noble Lords across your Lordships’ House would do their best to ensure proper and effective scrutiny in the interests of good legislation, for no other reason than to make sure that we get something so serious absolutely right.
The Minister will have heard that there are doubts as to whether such a transfer would be appropriate. It is because some doubts have been raised that there should be a proper process and procedure for parliamentary scrutiny to ensure that, if such a step is taken, at some point in future, after review and after the Government are satisfied that the NCA is operating correctly, those doubts should be raised in primary legislation. It is absolutely crucial; if the Home Secretary wants to take this step, she needs to ensure that she has the confidence not just of Parliament but of all those involved in counterterrorism. That is what proper and effective scrutiny through primary legislation would seek to achieve.
The Minister has tried, but he has failed to convince me that a super-affirmative order that is unamendable, even if the Home Secretary wants it to be amended, and which does not have the degree of scrutiny of primary legislation, is an appropriate way in which to move forward on something so serious and important to the nation. I therefore ask to test the opinion of the House.
Motion on Amendment 2
Moved by Lord Taylor of Holbeach
That this House do agree with the Commons in their Amendment 2.
2: Page 2, line 40, leave out “may” and insert “must”
My Lords, I shall speak also to Amendments 28, 29, 44, 47, 52 to 60 and 138.
Perhaps I may focus on the most noteworthy amendments in this group. They are Amendments 28, 29, 44, 47 and 138, which, as I alluded to in the previous debate, relate to the National Crime Agency’s role in Northern Ireland. These amendments are a regrettable but necessary response to the Northern Ireland Executive’s decision not to take forward legislative consent for the National Crime Agency. To say that this is a disappointing outcome does not do justice to the implications that this will have for the effectiveness of the National Crime Agency, the integrity of the collective operational response to serious and organised crime and, most importantly, the protection of the people of Northern Ireland.
However, let me make it clear that the National Crime Agency will continue to operate in Northern Ireland, albeit that its activity will be limited to reserved and excepted matters such as immigration offences and drug trafficking. The amendments and the new schedule that are necessary to ensure that the Bill does not break the Sewel convention give effect to that limitation.
The new schedule introduced by Amendment 138 sets out those provisions that will not extend to Northern Ireland. As a result, for example, NCA officers will no longer be able to be designated with the powers of a constable in Northern Ireland, the Police Ombudsman for Northern Ireland will no longer have oversight of the NCA in Northern Ireland, and the PSNI has been removed from the duties to co-operate and share information. These are important operational losses, but as transferred matters they are areas on which we in this House cannot legislate without consent.
However and importantly, the new schedule also provides a series of order-making powers whereby should the position of the Northern Ireland Executive change in the future, the NCA provisions can be extended to Northern Ireland, subject to the agreement of the Northern Ireland Assembly. We will, of course, do our utmost to minimise the operational impact of the Executive’s decision, but the limitations on the agency’s activity in Northern Ireland will have implications for the fight against serious and organised crime in Northern Ireland. I must not mislead the House on that point.
As I have indicated, the NCA will continue to operate on a UK-wide basis, including in Northern Ireland. Even with the restrictions in the new schedule, there is still much that the NCA can do to tackle serious, organised and complex crime in Northern Ireland, both through its own investigations and by supporting the Police Service of Northern Ireland and other agencies. The strong operational relationship that the Serious Organised Crime Agency has built up with the Police Service of Northern Ireland will continue with the National Crime Agency. NCA officers will still be able to be designated with customs and immigration powers and will therefore be able to take action against serious, organised and complex customs and immigration cases.
The NCA will still be able to focus on asset recovery work, whether through the excepted tax assessments under Part 6 of the Proceeds of Crime Act or through taking forward civil recovery cases against property in Northern Ireland in respect of reserved or excepted offences such as immigration offences, fuel duty evasion and drug trafficking. More importantly, operational partners will continue to be able to access the wider specialist capabilities that will reside in the National Crime Agency, such as the new National Cyber Crime Unit, the NCA’s network of international liaison officers and the Child Exploitation and Online Protection Centre.
I assure noble Lords that my right honourable friend the Home Secretary is continuing to work with the Secretary of State for Northern Ireland and the Northern Ireland Minister of Justice, David Ford, to secure agreement. These amendments do not in any sense denote an end to our negotiations. It remains our objective to ensure that the NCA can operate in Northern Ireland in the same way that it can in the rest of the United Kingdom. Until that time, these amendments are but a necessary stop-gap so that we respect the Sewel convention. We will continue to strive for an equitable agreement between the parties in Northern Ireland and, once secured, these amendments will ensure that we have the necessary order-making powers to give effect to such an agreement.
I hope that I can deal briefly with the other amendments in this group. Commons Amendment 2 to Clause 2 converts the existing power on the Home Secretary to set strategic priorities for the NCA into a duty to do so. The Home Secretary’s role in setting the strategic direction for the agency is obviously of central importance. The Government’s intention has always been that the Home Secretary would set the strategic priorities, in accordance with the power granted by Clause 2. By placing such a duty on the Home Secretary, we will ensure that the agency will always have clear strategic direction from the Government of the day.
The other amendments, namely Commons Amendments 52 to 60 to Schedule 8, are essentially technical and drafting in nature. I can provide further details if any noble Lord has a particular question about them. However, to keep our proceedings concise, at this point I beg to move.
My Lords, the Minister’s proposals are, as he said, a matter of deep regret with regard to Northern Ireland. For those noble Lords who perhaps have not followed the case, the Northern Ireland Executive refused to allow the powers of a constable to be conferred on an NCA official. This means that, in practice, Sinn Fein vetoed the establishment of the National Crime Agency in respect of reserved matters.
This can be handled in different ways. We can hope, as the Minister says, that there will be a change of heart. There will not. My fear is that this will inadvertently result in Northern Ireland being used as a back door whereby people who are focused on crime could use the absence of the NCA to carry out their activities unmolested, unless the Police Service of Northern Ireland undertakes some of the roles that would otherwise have been carried out by the NCA in Northern Ireland. That will incur a cost that I doubt very much there are currently resources to meet. It also means that the national expertise that the National Crime Agency could bring to bear on these criminals will not be brought to bear. Common sense dictates that where you have a vacuum, people will fill it. While I accept the regrettable need for these amendments, I do not share the Minister’s current optimism that these matters will be resolved by negotiation. I just do not believe that they will be resolved.
I was always concerned about the devolution of policing and justice to Northern Ireland in the absence of a full agreement between the parties on how things would be done. There was no such agreement. It was a political necessity that was politically driven in the same manner as the euro was. The working out of the downstream consequences had not been done. It is therefore a matter of deep regret. Can the Minister tell the House what steps the Government will take if evidence emerges that there are elements of activity in Northern Ireland that are not dealt with by the PSNI, thus creating a vacuum in which people can indulge in criminal activities which could spread to the mainland? While I understand the conventions, I have to say to the Minister that devolution means precisely what it says. Power is devolved, but what is devolved can be undevolved. If there is therefore a national threat, I would like an assurance that the Government will meet it.
My Lords, I, too, regret that the role of the National Crime Agency in Northern Ireland has had to be limited due to the intransigence of Sinn Fein and the SDLP in blocking agreement to the legislative consent Motion for the NCA. Every year in Northern Ireland, hundreds of millions of pounds are lost to the Exchequer only to pass into the hands of criminal gangs, often to finance terrorist activities. To date, as a result of the joint work between SOCA and the Police Service of Northern Ireland, some 11 million drugs have been seized, 33 potential victims of human trafficking have been rescued, 23 million counterfeit and smuggled cigarettes have been intercepted, and £4 million of criminal assets seized. How will this work continue, when the National Crime Agency will have very little input into key issues in Northern Ireland as Clause 14 will abolish SOCA, which currently operates with the PSNI? After Royal Assent, that will not happen. I trust that the Government will continue to negotiate with the Northern Ireland Assembly in order to redress this balance.
My Lords, I intervene briefly because for five years I had the privilege of chairing the Northern Ireland Affairs Committee in another place. The first major inquiry we conducted was into organised crime. The report was received with concern, but also with considerable approval across Northern Ireland. I am deeply concerned to hear that the National Crime Agency is not going to be able fully and effectively to function.
Devolution was worked for very hard, but when it came to the devolution of policing and justice, many of us had considerable concerns and misgivings. Even so, we were glad that further progress was being made in what had been the most troubled part of our kingdom. However, the noble Lord, Lord Empey, was right in what he said in his concluding words. We have not dissolved the United Kingdom. Supreme authority rests with this Parliament. If those to whom we have devolved behave in such a way that not only do they endanger Northern Ireland, but by implication the rest of the United Kingdom, this Parliament cannot sit idly by. Although this should not be taken, any more than the words of the noble Lord, Lord Empey, as any sort of threat, it is a statement of the reality of the situation. Devolution does not mean independence. Devolution means responsibility, and if responsibility is not exercised responsibly, those who have devolved have a duty to regard that fact.
My Lords, when the Crime and Courts Bill first came to your Lordships’ House, I questioned the Minister as to whether it was—I think I used the term—“oven ready”, as there seemed to be so much left to do in the Bill. Given that what was then a 41-clause Bill now has 18 new clauses, it was right to ask that question. The extradition issues, as we have heard from noble and learned Lord, Lord Lloyd, have been tagged on to the Bill. Indeed, the framework document which outlines everything the National Crime Agency should do and how it should do it is still not available, despite promises made at almost every stage of the Bill in your Lordships’ House and the other place.
One thing that emphasises that point is that no agreement was reached with the Northern Ireland political parties or the Assembly around what kind of architecture would work for Northern Ireland to ensure that, as we started the process, there would be a legislative consent Motion. To scrap SOCA, which has worked effectively with the PSNI in Northern Ireland, before the National Crime Agency is properly in place across the whole of the UK is an absolutely shocking state of affairs. It does a disservice to Northern Ireland and is hugely unfair to it.
I understand that having discussions and negotiations with all those involved to ensure that agreement can be reached can be difficult and very time-consuming. The Government were right to have discussions and negotiations with David Ford, the Justice Minister, and I would accept and agree that he has worked extremely hard to find a way through this to ensure that the National Crime Agency could fully operate in Northern Ireland. However, I say to the Minister that the responsibility has to be that of government. I realise that in their negotiations with David Ford the Government have worked hard, but what I am puzzled about, and where I have a question mark over the Government’s actions, is that those who have been involved more closely in Northern Ireland know that in order to reach agreement on this issue—I am sure that the noble Lord, Lord Cormack, is very aware of this—you have to start early discussions with all the political parties, the elected representatives and all those who have a role to play. The comments made by Mark Durkan in the other place last week indicate to me that the discussions did not take place early enough.
I asked two Parliamentary Questions, one to the Minister and one to the Northern Ireland Office, about what discussions had taken place ahead of there being no legislative consent Motion before today’s debate. The Answer I had from the Northern Ireland Office was that:
“The Secretary of State for Northern Ireland has spoken regularly to the Northern Ireland Justice Minister about the National Crime Agency. He”—
the Justice Minister—
“has been leading discussions with Northern Ireland Executive colleagues about the National Crime Agency. The Secretary of State has not discussed the matter in detail with other Ministers in the Northern Ireland Executive. The Government remain committed to delivering a UK-wide crime-fighting agency focused on tackling serious, organised and complex crime”.—[Official Report, 28/2/13; col. WA 354]
If the Government are so focused, why were discussions not taking place with other Ministers in the Executive, who have a role in accepting a legislative consent Motion, and the representatives of political parties?
I have to say to the noble Lord that the response from the Home Office was dire. It said:
“Home Office Ministers and officials have meetings with a wide variety of international partners, as well as organisations and individuals in the public and private sectors, as part of the process of policy development and delivery. Details of these meetings are published on the Cabinet Office website on a quarterly basis”.—[Official Report, 27/2/13; cols. WA 333-34]
I was asking specifically whether Ministers had met and spoken to, and how often, the Northern Ireland Justice Minister and other Ministers in the Executive to try to get this moving. The response I get is that Ministers and officials have met “a wide variety of international partners”. Northern Ireland is part of the United Kingdom. Discussions were needed not with international partners but with the political parties and representatives of the Northern Ireland Assembly. That may mean that the Government, or the Home Office, have been talking to the Irish Government, which is a fair way forward, but not to be having those discussions that I think were necessary has led us to the point where, like the noble Lord, Lord Empey, I do not know, and do not share the Minister’s confidence, that this can be resolved in the way that we would like to ensure there is a fully functioning National Crime Agency across the whole of the UK.
I ask the Minister, in the absence of answers to my Written Questions—if he has to write to me I will accept that but if he is able to answer today that would be helpful—when did Ministers first raise the issue of the National Crime Agency, with or without the counterterrorism functions, with the Northern Ireland Ministers and political parties? Who has led the discussion? Has it been the NIO or has it been the Home Office, and who did they meet? However, the crucial question has to be: what happens now? What next? The Motion before us today from the Government that removes application provisions from the Bill is, under the circumstances, perhaps the only way forward at this stage. However, I hope we are going to see a step-up and continuation of the process in the interest of fighting serious and organised crime effectively in Northern Ireland and that there is not going to be a step back by removing Northern Ireland from today’s legislation.
My Lords, I understand the distress and disappointment, and if I may use the phrase used by the noble Lord, Lord Empey, the pessimism that he feels about these issues is clearly reflected in other contributions that have been made by other noble Lords. On the other hand, I am optimistic because, despite the criticism made by the noble Baroness, Lady Smith, we have sought to address these issues properly. If we had been overassertive in the requirements of the United Kingdom in this regard, we would have alienated a legitimate discussion process that was correctly placed with David Ford, the Justice Minister in the Northern Ireland Executive, and in the key position of securing these agreements. We were keen not to put him in the situation where we were seeking to second-guess where he was taking these discussions.
I will answer the noble Baroness, Lady Smith, in writing because she asked particularly about dates and so on. I do not have that information. Ministers and officials have had a number of meetings with David Ford throughout this process. The noble Baroness will know that I have talked to her about this on occasions outside this Chamber when she has asked me how things were going on this. I remember saying that it is a difficult and delicate matter. All noble Lords with experience of Northern Ireland will understand exactly why that is so. The Government were right that while we were prepared to compromise on a number of challenging areas, the negotiations had not been held on the basis of securing consent at all costs. I think noble Lords will be pleased that that is the case. That must be the right position for the Government of the United Kingdom to take on this issue.
For noble Lords who think that the Government should have intervened directly, I should say that this is devolution, a devolved process. It is absolutely right that the Justice Minister in Northern Ireland, David Ford, led these discussions. He has admirably served the interests of Northern Ireland in this regard with remarkable resilience, driving the discussions and negotiations at each turn, even in the face of some clear opposition. I have confidence in him, which is why I am ultimately optimistic that the people of Northern Ireland, through their elected representatives, will see the importance of having a combined national involvement with the National Crime Agency because of the capacity that it will bring to policing in Northern Ireland.
We are not in the business of creating gaps. The NCA was intended to close gaps in the current arrangements. That was in the Bill that we planned to create, but the Executive could not agree, which is why these amendments are before the House. We remain open to discussion and we have provided the necessary order-making powers to fully extend the NCA provisions to Northern Ireland should the position of the Executive change. Assuming the Executive stick to their decision, it is up to them to decide how to develop alternative capabilities for Northern Ireland to replace the work currently done by SOCA. As I have said, we are committed to providing as much operational capacity and capability as possible for the NCA operating in Northern Ireland. But, as I made clear, in the absence of legislative consent there are some things that the NCA will no longer be able to do, such as using Northern Ireland police powers to investigate serious and organised crime. This is to be regretted.
Before the Minister sits down, perhaps he can address the question that I raised. In circumstances where agreement is not reached, where the Executive do not make alternative arrangements to pursue crime as was intended by the NCA, and where evidence emerges that crime is developing in Northern Ireland and is being spread to the mainland, what steps will the Government take?
Motion on Amendment 3
3: Insert the following new Clause—
“Varying designations of authorities responsible for remanded young persons
(1) Section 102 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (where child remanded to youth detention accommodation, court must designate local authority to look after child and meet costs) is amended as follows.
(2) In subsection (7)(a) (authority that already looks after child to be designated) after “being looked after by a local authority” insert “otherwise than by virtue of section 104(1)”.
(3) In subsection (7)(b) (in other cases, court must designate authority for area where child habitually resides or offence committed) for “, the local authority” substitute “but subject to subsection (7B), a local authority”.
(4) After subsection (7) insert—
“(7A) In a case to which subsection (7)(b) applies, the court is to designate a local authority in whose area it appears to the court that the child habitually resides (a “home authority”) except where the court—
(a) considers as respects the home authority, or each home authority, that it is inappropriate to designate that authority, or
(b) is unable to identify any place in England and Wales where the child habitually resides.
(7B) If in a case to which subsection (7)(b) applies—
(a) the court is not required by subsection (7A) to designate a home authority, but
(b) it appears to the court that the offence was not, or none of the offences was, committed in England and Wales,
the court is to designate a local authority which it considers appropriate in the circumstances of the case.”
(5) After subsection (7B) insert—
“(7C) Where a child has been remanded to youth detention accommodation, the court—
(a) which remanded the child, or
(b) to which the child was remanded,
may designate a local authority (“B”) as the designated authority for the child in substitution for the authority previously designated (whether that previous designation was made when the child was remanded or under this subsection).
(7D) Where a child has at any one time been subject to two or more remands to youth detention accommodation, a court which has jurisdiction to make a replacement designation under subsection (7C) in connection with one or some of the remands also has jurisdiction to make such a replacement designation in connection with each of the other remands.
(7E) Where a replacement designation is made under subsection (7C) after the end of the period of remand concerned, the substitution of B for the previously-designated authority has effect only for the purposes of regulations under section 103.
(7F) Where a replacement designation is made under subsection (7C) during the period of remand concerned, the substitution of B for the previously-designated authority—
(a) has effect, as respects the part of that period ending with the making of the replacement designation, only for the purposes of regulations under section 103, and
(b) has effect, as respects the remainder of that period, for all of the purposes listed in subsection (6).
(7G) A court may make a replacement designation under subsection (7C) only if it considers that, had everything it knows been known by the court which made the previous designation, that court would have designated B instead.
(7H) Where a replacement designation is made under subsection (7C) in relation to a remand, the previously-designated authority is to be repaid any sums it paid in respect of the remand pursuant to regulations under section 103.
(7J) A court which has jurisdiction to make a replacement direction under subsection (7C) may exercise that jurisdiction on an application by a local authority or of its own motion.”
(6) A replacement designation under the new section 102(7C) may be made in respect of a remand ordered before this section comes into force, and the amendments made by this section have effect for the purpose of making a replacement designation in any such case; but, in such a case, the substitution of B for the previously-designated authority (and any entitlement to repayment under new section 102(7H)) does not have effect as respects any time before this section comes into force.
(7) Except as provided by subsection (6), the amendments made by this section have effect only in relation to remands ordered after this section comes into force.”
My Lords, in moving that this House do agree with Commons Amendment 3, I shall speak also to Commons Amendments 4, 7 to 10, 32 to 37, 42, 43, 51, 61 to 92, 93 to 130 and 132. This group of amendments covers a range of issues in respect of provisions in Part 2 of the Bill, as well as adding some new provisions to that part, but I believe that they will generally be welcomed. I propose to focus my remarks on the most significant of these amendments.
Commons Amendment 3 makes a specific and technical amendment to the youth secure remand provisions in Section 102 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Under those provisions, local authorities are liable to pay the Youth Justice Board the accommodation costs of children subject to secure remand. As of 3 December 2012, courts ordering a secure remand must designate a local authority as the designated authority for the child. Full financial responsibility for the accommodation costs of securely remanded children will fall to the designated local authorities as of 1 April.
This amendment addresses a gap in the current law. When remanding a child, the court will tend to designate the local authority where the child lives. However, this is not always clear at the early stages of the case, so the court may designate a different local authority. By the next hearing, more information is generally available, so the court can change the designation to the local authority where the child lives. But under Section 102 of the 2012 Act, the liability to pay the secure accommodation costs for the period before the change is made still rests with the original local authority. This creates an unfair burden on a local authority where the child does not live, and puts at risk the effective recovery of costs by the Youth Justice Board. Therefore, Commons Amendment 3 gives the court powers to make a replacement designation, so all the accommodation costs can be recovered from the local authority that has subsequently been identified.
In addition, the amendment introduces the assumption that the court should designate the local authority where the child lives rather than the authority where the offence took place. The Government believe that in most cases it is right to designate the local authority where the child lives in accordance with the habitual residence test from which the duty for a local authority to provide accommodation and support flows. Of course, the court will retain overall discretion over deciding which local authority to designate.
On the amendments on judicial appointments, the House will recall that as part of the changes the Government are making to the judicial appointments process, the details of the selection process for certain judicial offices, including for the office of the Lord Chief Justice and heads of division, will be removed from the Constitutional Reform Act 2005 and instead be set out in secondary legislation. As the current Lord Chief Justice is soon to retire, the Government want a new selection process for the Lord Chief Justice to be applied to the selection of his successor. If the appointment process is to be completed in good time for the start of the new judicial year, we cannot wait until the required secondary legislation is made once the Bill is enacted. Commons Amendment 4 therefore adds the new selection process to the Constitutional Reform Act 2005 and provides for the process to come into force on Royal Assent. This is a transitory measure and will cease to have effect when the subsequent regulations are made.
Commons Amendment 93 applies the tipping-point provision to UK Supreme Court appointments, similar to the one being applied to other judicial appointments by Part 2 of Schedule 13 to the Bill. The Government’s position has always been that the tipping point should apply to Supreme Court appointments. We believe that Section 159 of the Equality Act 2010 could already be applied to Supreme Court appointments, but on Third Reading my noble friend Lord Marks expressed some doubt as to whether this was the case. After considering the points raised by my noble friend, the Government brought forward Commons Amendment 93, which removes any uncertainty that a tipping point can apply to Supreme Court appointments. Commons Amendment 130 relates to the judicial deployment provisions in Schedule 14 to the Bill, which aim to provide greater flexibility in deploying judges to different courts and tribunals. After further consultation with the judiciary about the extent of these flexible deployment provisions, and given the particular skills and experience needed in Crown Court cases, we have concluded that the Crown Court should be removed from the deployment provisions.
On the UK Supreme Court, I am sure the House will wholeheartedly welcome Commons Amendment 7. Both on Report and at Third Reading in this House, the Government indicated that we were discussing the appointments process for the chief executive of the UK Supreme Court with the president of the court with a view to arriving at an agreed way forward. I am pleased to report that these discussions were successfully concluded, and as a result Commons Amendment 7 amends the Constitutional Reform Act 2005 so that the president of the UK Supreme Court, rather than the Lord Chancellor, is made responsible for the appointment of the chief executive, and it is no longer necessary for the chief executive to agree the staffing structure of the court with the Lord Chancellor.
On broadcasting, as the House is aware, Clause 28 confers on the Lord Chancellor the power to make an order, with the agreement of the Lord Chief Justice, setting out circumstances in which the current legislative ban on broadcasting court proceedings below the Supreme Court level may be disapplied. When we debated these provisions previously, I believe all were agreed that while it is important for justice to be seen to be done, this must not be at the expense of the proper administration of justice. I remember talking to this particular amendment at the time. Let me just reiterate some of the reassurances that were given. Any order made under Clause 28 will be subject to a triple lock requiring: first, the agreement of the Lord Chancellor; secondly, the agreement of the Lord Chief Justice; and, thirdly, scrutiny by Parliament under the affirmative procedure. In addition to this, there is a fourth lock, which will give judges the discretion to stop filming or to refuse to allow broadcast of recorded footage in a particular case.
Clause 28(3) sets out the judicial tests that a judge must apply when considering whether to stop or prohibit filming in order to protect the interests of victims, witnesses and other parties. As currently drafted, only individuals who are party to proceedings are protected. We strongly believe that the court should be allowed to consider the impact on individuals who are not party to proceedings—for example, the families of victims and offenders—when considering whether to use the judicial veto. As such, Commons Amendment 9 would modify these tests to give the judge a wider discretion to stop the filming or broadcasting of court proceedings.
The requirement for the court to consider “the fairness of any proceedings” would be replaced with a wider requirement to consider the interests of justice, while the requirement for the court to consider whether “any person involved in the proceedings is not unduly prejudiced” would be replaced with a broader requirement for the court to consider whether any person will be unduly prejudiced, irrespective of whether they are a party to the proceedings. Commons Amendments 8, 10, 33 and 37 put beyond doubt the fact that the UK Supreme Court may record and broadcast its proceedings. They are essentially amendments that clarify this position.
On the issue of self-defence, as the House will recall, Clause 30 provides householders with greater protection to defend themselves in the event that they are confronted by intruders in their homes. Householders will not be treated as criminals in these terrifying circumstances if they use a level of force that was reasonable in the circumstances as they saw them but which turns out to have been disproportionate. The Government are anxious to avoid any unnecessary delay in delivering what is a specific coalition commitment and an important enhancement to the protection that householders have to defend themselves. We think the public would find it difficult to understand why commencement had been delayed beyond Royal Assent if, in the intervening period, a householder came face to face with a burglar and could not rely on the heightened defence. Commons Amendment 43, therefore, will mean that the householder defence provisions in Clause 30 of the Bill will come into effect on Royal Assent.
In moving on to the restorative justice provisions in the Bill and Commons Amendment 132, I reiterate the Government’s absolute commitment to ensuring that high-quality RJ is embedded into and established across the criminal justice system. Following further debate in the other place, it was agreed that it would be beneficial to amend the Bill to provide that RJ practitioners must have regard to any guidance that is issued by the Secretary of State, with a view to encouraging good practice in the delivery of pre-sentence restorative justice. The Government believe this will allow us to ensure that RJ can continue to grow and local innovation can continue to flourish while at the same time ensuring that good practice is spread nationwide. Commons Amendment 132 gives effect to this.
Finally, Commons Amendments 32, 34, 35, 42, 51, 61 to 92 and 94 to 129 make a number of minor and technical amendments to judicial appointments and the family court, as well as removing the privilege amendment made when the Bill was last in this House. I can provide further details should any noble Lord have a particular question about them. I beg to move.
My Lords, I will confine myself to two topics. Taken in reverse order of importance, the first is what has become known in common parlance as “bash the burglar” legislation. The Minister emphasised the need for bringing this measure into force as quickly as possible. Given the paucity of cases to which this would apply, as we discussed when we were debating the Bill, I find this to be little more than an example of gesture politics of the cheapest kind.
The second more significant matter, which I entirely support the Government in raising, is Amendment 9 about making use of films and other recordings of proceedings. I would not have spoken at all on this matter except that there was a report in the press at the end of last week about the position in Scotland where it now appears that a drama is going to be broadcast based entirely on recordings in the criminal court. This is under Scottish legislation; it is not legislation that applies in this country. This is exactly what those who have expressed fears about filming proceedings in court were really worried might take place. Apparently witnesses, parties in criminal cases and, in this particular case, a retrial of a significant case regarding a serious offence have been filmed and will be shown on Scottish television, presumably, as a rather dramatic production rather than a factual and low-key look at how the courts work. The English legislation that we are debating does not facilitate that, and I would be glad to hear the Minister give a firm assurance that it will not be extended to allow that kind of development, which would be a significant change in the way that the Government have envisaged matters and one in which we should in no way seek to experience what Scotland is about to undergo.
I thank the noble Lord for his support for much of what has been covered. He referred to self-defence as “bash the burglar”. He may think that; I could not possibly comment. We believe it is important that if the legislation is passed, no one should fall into the trap between Royal Assent being given and this becoming law so that it can be used as a defence. If we are making these changes, it is important that they happen as quickly as possible so that we prevent any occurrence of people who act. I contend that anyone confronted with a burglar, faced with such a situation where they are protecting their home, their family and their loved ones, is often faced with that instant decision. It is important that we give that instant protection. I therefore believe that the Government have taken the right way forward on this. I am sure that, on reflection, the noble Lord would agree with me.
The noble Lord mentioned broadcasting and, again, I welcome his support. As I said, we have put four locks in place. He raised the specific issue of broadcasting in Scotland and the filming of all parts of a trial. I assure him that we are not proposing to allow this at all. The safeguards that I have outlined will protect such an extension. He raised the specific issue of witnesses. I share his concern. The Government’s intention is to provide that level of protection. With those clarifications, I beg to move.
Motion on Amendment 4
4: Page 17, line 21, at end insert—
“Part 4A amends the selection procedure for certain senior judicial appointments until Part 4 of the Schedule is in force,”
Motion on Amendment 5
5: Insert the following new Clause—
“Enforcement by taking control of goods
(1) Schedule 12 to the Tribunals, Courts and Enforcement Act 2007 (procedure for taking control of goods) is amended as follows.
(2) In paragraph 17 (enforcement agent may use reasonable force to enter etc where paragraph 18 or 19 applies) for “or 19” substitute “, 18A, 19 or 19A”.
(3) After paragraph 18 insert—
“18A (1) This paragraph applies if these conditions are met—
(a) the enforcement agent has power to enter the premises under paragraph 14;
(b) the enforcement agent reasonably believes that the debtor carries on a trade or business on the premises;
(c) the enforcement agent is acting under a writ or warrant of control issued for the purpose of recovering a sum payable under a High Court or county court judgment;
(d) the sum so payable is not a traffic contravention debt.
(2) “Traffic contravention debt” has the meaning given by section 82(2) of the Traffic Management Act 2004.”
(4) After paragraph 19 insert—
“19A (1) This paragraph applies if these conditions are met—
(a) the enforcement agent has power to enter the premises under paragraph 16;
(b) the enforcement agent has taken control of the goods by entering into a controlled goods agreement with the debtor;
(c) the debtor has failed to comply with any provision of the controlled goods agreement relating to the payment by the debtor of the debt;
(d) the debtor has been given notice of the intention of the enforcement agent to enter the premises to inspect the goods or to remove them for storage or sale;
(e) neither paragraph 18 nor paragraph 19 applies.
(2) For the purposes of a notice under sub-paragraph (1)(d), regulations must state—
(a) the minimum period of notice;
(b) the form of the notice;
(c) what it must contain;
(d) how it must be given;
(e) who must give it.
(3) The enforcement agent must keep a record of the time when a notice under sub-paragraph (1)(d) is given.
(4) If regulations authorise it, the court may order in prescribed circumstances that the notice given may be less than the minimum period.
(5) The order may be subject to conditions.”
(5) In paragraphs 24(2) and 31(5) (no power to use force against persons except to extent provided in regulations) omit “, except to the extent that regulations provide that it does”.
(6) Omit paragraph 53(2) (controlled goods to be treated as abandoned if unsold after a sale).
(7) Omit paragraph 56(2) (securities to be treated as abandoned if not disposed of in accordance with notice of disposal).
(8) In consequence of the repeals in subsection (5), in section 90 of the Tribunals, Courts and Enforcement Act 2007 (regulations under Part 3)—
(a) omit subsection (4) (procedure for regulations under paragraphs 24(2) and 31(5) of Schedule 12), and
(b) in subsection (5) omit “In any other case”.
(9) In Schedule 13 to that Act (taking control of goods: amendments)—
(a) in paragraph 37 (repeal in section 66(2) of the Criminal Justice Act 1972) for the words after “etc.),” substitute “omit subsection (2).”,
(b) in paragraph 74 (repeal of sections 93 to 100 of the County Courts Act 1984) after “93 to” insert “98 and”,
(c) in paragraph 85 (amendment of section 436 of the Insolvency Act 1986) for “436” substitute “436(1)”,
(d) in paragraph 125 (amendment of section 15 of the Employment Tribunals Act 1996) for ““by execution issued from the county court”” substitute “the words from “by execution”, to “court” in the first place after “by execution”,”, and
(e) in paragraph 134 (which amends Schedule 17 to the Financial Services and Markets Act 2000) for “paragraph 16(a)” substitute “paragraphs 16(a) and 16D(a)”.”
I beg to move that this House do agree with Commons Amendments 5. I shall speak also to Amendments 6 and 31. As the debates in this House and the other place have shown, there is broad agreement that more needs to be done to protect debtors from the unscrupulous practices of a minority of bailiffs, while at the same time ensuring that legitimate creditors can collect the money that they are owed. The Government are committed to achieving this. On 25 January, the Ministry of Justice published the Government’s response to the Transforming Bailiff Action consultation, which sets out the key reforms that we are undertaking to deliver on this commitment.
It may assist the House if I give a brief overview of the Government’s reforms, which centre on the implementation of Part 3 of the Tribunals, Courts and Enforcement Act 2007. Among other things, they will remove antiquated and confusing laws, provide clarity about the power of bailiffs, allow for the introduction of regulations setting out what goods a bailiff can or cannot seize and introduce a clear and fair charging regime. Furthermore, new mandatory training and an enhanced certification system will ensure that the individuals carrying out this difficult job are the right people, and will build on the existing remedies available if things go wrong.
The Government believe that the framework for the regulation of bailiffs in Part 3 of the Tribunals, Courts and Enforcement Act 2007 generally strikes the right balance between ensuring that all bailiffs operate to appropriate minimum standards and not subjecting the industry to overburdensome regulation. As such, I hope that the House can readily agree Commons Amendment 5, which will enable us to correct a number of inadequacies in the legislation. Having done so, we will be able to move quickly to bring Part 3 of the 2007 Act into force.
The key changes made to the 2007 Act are threefold. First, the amendment removes the ability to make regulations that would confer a power on enforcement agents to use reasonable force against debtors. It is one thing to countenance the use of reasonable force to enter premises; it is quite another to authorise such force against a person. Here the 2007 Act plainly got the balance wrong and it is right that we should provide this additional safeguard.
Secondly, the amendment will allow enforcement agents who are executing a High Court or county court debt to use reasonable force to enter commercial premises. As I have said, using reasonable force to secure entry into premises is quite different from using force against an individual. Enforcement agents already have such powers under common law and we believe that the failure to confer an equivalent statutory power was an omission from the 2007 Act. The third key change to the 2007 Act is to allow enforcement agents to re-enter any premises, domestic or commercial, where the debtor is in breach of a controlled goods agreement to which they have consented. Here again, we are seeking to provide in statute what is already the position under common law.
The balance of our reforms is to encourage compliance by debtors, including by encouraging the use of controlled goods agreements, which allow debtors to keep their possessions but enter into an agreed payment plan with the enforcement agent. There is a danger that without these changes we may remove the possibility of negotiation and in fact encourage bailiffs to use aggressive action. Without the assurance that they will be able to re-enter premises quickly and remove goods should the agreement be broken, it is likely that they will remove goods straight away. Safeguards for this process will be included in regulations, stipulating that a bailiff will be required to give notice to the debtor of their intention to use reasonable force to re-enter premises. As I have indicated, these amendments to the 2007 Act will not increase the existing powers of entry available to bailiffs. Rather, they codify in statute existing common law powers.
Commons Amendment 6 removes Clause 26, which was inserted at Third Reading when this House agreed an amendment in the name of the noble Baroness, Lady Meacher, who I see in her place. As I stated then, we believe that the provisions expanding the remit of the Legal Services Ombudsman to include complaints against bailiffs is unnecessary. Existing forms of redress are already available to debtors, including in-house complaints processes run by creditors, bailiff companies and trade associations. Furthermore, under the Government’s reforms, all individuals undertaking enforcement action will be required to have a certificate from the county court to practise. Should a debtor wish to complain about the conduct of an individual, they will be able to complain directly to a judge who may decide whether the certificate should be withdrawn or whether any retraining could be appropriate. Carrying out enforcement work without a certificate will be a criminal offence.
It is also worth remembering that 80% of debt enforced by bailiffs is local government debt, and in these circumstances bailiffs are either directly employed by or contracted to act as agents on behalf of local authorities. In these cases, the debtor can also seek redress from the Local Government Ombudsman if they feel that the local authority has not satisfactorily considered their complaint. The Local Government Ombudsman has taken a particular interest in local authorities’ use and monitoring of private contracted bailiffs. In November last year, they published a focus report, Taking Possession: Councils’ Use of Bailiffs for Local Debt Collection. This is a very helpful report that highlights the need to reform bailiff law, and its recommendations were taken into consideration in the Government’s response to the Transforming Bailiff Action consultation published in January this year.
Of the other 20%, the majority of the debt is enforced on behalf of central government, which includes Her Majesty’s Revenue and Customs, Her Majesty’s Courts and Tribunals Service and the Department for Work and Pensions. Again, bailiffs are either directly employed by, or contracted to act as agents on behalf of, these departments. If the department does not deal with any complaint satisfactorily, then ultimately the individual, through their MP, could complain to the Parliamentary and Health Service Ombudsman.
The only other areas of debt enforcement that private bailiffs enforce are High Court writs and commercial rent arrears recovery. High Court enforcement officers are authorised by the Lord Chancellor through his delegate, therefore any complaints not dealt with satisfactorily by the High Court Enforcement Officers Association can be sent to the Lord Chancellor’s delegate. For commercial rent arrears recovery, there is no ombudsman. However, we estimate that this is only 1% of debt collected by bailiffs and only affects business. I should add that we have received very few complaints in this area.
For all these reasons, the Government consider that the introduction of another ombudsman complaints system is unnecessary at best and at worst confusing. As I have previously said, we believe that the underlying causes of most, if not all, complaints will be dealt with by our reforms. Officials are working with the advice sector to consider once more the types of complaints received and will work with them to ensure they are adequately addressed by the regulations. It is our intention to make these regulations available by the summer to take effect by April 2014.
We are also working with external bodies that are involved in developing training programmes for the enforcement industry and know that it is important that the training includes how to deal with situations which involve vulnerable individuals; for example, those with mental capacity issues. The Money Advice Trust and the Royal College of Psychiatrists have already developed and are running mental health training for collection staff, which we will consider for inclusion in the wider bailiffs training framework.
We are looking at existing programmes which include online training, face-to-face modules with preparatory work to be undertaken in advance and possible examinations as well as continuous professional development. The full extent of the training is still being developed. We know that the Institute of Revenues Rating and Valuation has developed a level 2 vocational qualification aimed at the enforcement industry which is achieved through a mix of academic studies and work-based learning delivered over a period of three months. Again, this is something we are exploring further.
Our reforms are a significant step forward, and they must be given time to take effect. We have given a commitment to undertake a review of the reforms one, three and, if necessary, five years after their introduction. We are working with stakeholders to ensure that there is a robust framework in place by which to assess their success and to ensure that we deliver our commitment.
The Government are committed to protecting debtors from aggressive bailiff action. We are clear that intimidating behaviour and the oppressive and underhand tactics practised by some bailiffs are completely unacceptable. Implementing the provisions in the Tribunals, Courts and Enforcement Act 2007 will ensure that we focus on the root causes of bailiff complaints. In the light of this explanation, I ask the House to accept Commons Amendments 5, 6 and 31, and I hope that the noble Baroness, Lady Meacher, will consider not moving her amendment.
My Lords, Amendment 6A relates to an amendment passed in this House to provide for an ombudsman service as a basic minimum of protection for victims of abuse by bailiff services. The lack of an independent regulatory system for bailiffs affects hundreds of thousands of our most vulnerable citizens, and we know that the recent and ongoing welfare benefits legislation will swell the numbers of such victims in the coming years. The purpose of bringing back this amendment to the House is to provide an opportunity for the Minister to explain the action taken since our debate. In December, the amendment had strong support from the Conservative Benches. The noble Lord, Lord Lucas, chair of the Enforcement Law Reform Group, said that he did not know one bailiff who would not support the amendment. The noble Lord, Lord Cormack, spoke eloquently about the importance of your Lordships’ House approving such a reform, but the Minister at the time could give no assurances.
Full ombudsman services are provided in health, housing, local government, financial services, legal services, telecommunications, prisons and other sectors, but we know that members of the public are probably more vulnerable to abuse of power by bailiffs than by almost any other cadre of workers. After all, bailiffs cone into our homes to seize our property. Little could be more offensive than that. Yet, in response to our amendment, the Government in the other place have rejected even this most minimal of protections for people who will inevitably include many mentally and physically disabled people who cannot fend for themselves.
I thank the Minister and his officials for a meeting last week when they explained many of the actions taken since our debate in December. I am grateful to the Minister for giving an assurance to this House—I think he gave this assurance—that every individual who is subject to abuse by a bailiff will have access to one or other ombudsman. It is a splintered system, not a complete system, but, if they can find their way through it, every victim will have access to the Local Government Ombudsman, the Parliamentary Ombudsman or the Legal Ombudsman. I hope the Minister will confirm that he said that. I should be grateful if he could make very clear that the Local Government Ombudsman will be able to deal with complaints about private bailiffs as well as in-house bailiffs. As the Minister made clear, the one area that is left out of this is companies. I have concerns about small businesses—perhaps one or two-person businesses—that may get into terrible debt trouble and have very unpleasant experiences. They will have no access to an ombudsman.
In his opening remarks, the Minister referred to training. I do not think he mentioned this, but I should be grateful if he could confirm that there will be a specific module on identifying vulnerability and vulnerable people. I should also be grateful if he could clarify that the training will not only include how to identify a vulnerable person but will be very clear about what the bailiff should do having identified a vulnerable person. It is no good identifying them if the bailiff proceeds to act inappropriately.
In December, I probed a lot about the length, breadth and depth of the training, and I am delighted to hear that there will be training of in the region of three months, including this rather important module. However, I should like to pursue the matter a little further. The Government’s response to the consultation referred to mandatory training. I should like an assurance from the Minister that there will be a set standard that a bailiff is required to meet. I am familiar with training in certain areas where the company simply has to tick a box to say that the bailiff has attended training. I am even familiar with security officers who will quite happily get someone else to complete the training for them and somehow or other the box gets ticked. We need an assurance that there will be a standard that bailiffs are required to meet. Will there be any independent verification of meeting those standards?
Finally, will the Minister say something about the work on information for victims that he mentioned at our meeting? We have a splintered and confusing system of ombudsmen for victims in different scenarios. It would be helpful to have on record the work going on with the CAB service, the web and so on to try to make sure that people know that they have access to an independent ombudsman. As the Minister said, the Government will reform the Tribunals, Courts and Enforcement Act 2007 to prevent the use of force against the person. Again, I should be grateful if the Minister could—perhaps he cannot—give some timeframe for that legislation.
In summary, the Government will introduce a certification process with no independent regulation of bailiffs and a rather incomplete and splintered form of ombudsman service. However, we can expect the quality of enforcement services to improve somewhat from a very low base. Of course, one cannot generalise, but we know that some very unpleasant things happen out there. There will be a staged process, to which the Minister referred, of implementation review. I hope the Minister can confirm that the results of those reviews will be made public and, at that stage, perhaps the Government will finally accept the crying need for independent regulation of bailiffs. I await the Minister’s response.
My Lords, I join the noble Baroness in welcoming the Government’s moves to tighten up the arrangements for bailiffs. Like her, however, I regret that they have failed to take the ultimate step of establishing a clear and relatively straightforward regulatory system. I am slightly puzzled by some aspects of their response to the consultation. For example, in paragraph 18 of their response, the Government say that they will implement Section 64 of the Act and “produce regulations” about the regulation of enforcement agents, which is a somewhat circuitous expression. Nor is it entirely clear where that would be heading.
Equally, the response goes on to say at paragraph 134 that the Government,
“will continue to work with stakeholders from the enforcement and advice sectors in developing the content of the regulations and will also work with HM Courts and Tribunals Service and the judiciary on the court procedure”.
I take it that that means that, ultimately, the Government will produce regulations to be approved by both Houses. Perhaps the noble Lord would be able to confirm that. It is clear, as the Minister has pointed out, that much of the work—or, any rate, the function—of the industry is directed towards recovering sums due to local or central government, hence the involvement of the Local Government Ombudsman. That work is likely to be enhanced considerably as councils seek to recover, if it is economical to do so, the likely shortfall in the collection of council tax now that a significant cut has been made in council tax support, and many people will now be called upon to pay council tax who have not hitherto done so, in rather small amounts. That may make collection uneconomic.
Be that as it may, and quite taking the point about the Local Government Ombudsman’s position, would it not be sensible, if we are thinking in terms of sensible regulation without offering competing avenues for this, for the Local Government Ombudsman’s responsibilities to be widened so that he can undertake that regulatory role for the whole system? Why not? Hopefully, local authorities, either singly or collectively, will in any case employ staff directly rather than contract out. It is in the contracting out of the service that we see so many of the problems.
It is interesting that the advice sector did not agree with the not unexpected majority of the enforcement sector and creditors in saying that the existing complaints process was sufficient and did not require any further government intervention. The advice sector thought that the processes,
“have proved to be ineffective or inadequate”.
Given the Government’s propensity to rely on the voluntary sector to make good the damage inflicted upon advice services generally—the withdrawal of legal aid and legal advice, for example—one might have thought that they would pay rather more attention to the advice of the sector in this sensitive area. As the Minister has, in fairness, readily recognised, there have been too many instances of abuse for us to be comfortable with the present position.
Finally, the Government propose a rather curious process of review at one, three and five-year intervals. It is not clear quite what form that would take, but I ask the Minister for an assurance that if it is seen that there is no significant improvement in how the system is working, they will revert to the concept not merely of support, advice and certification but of a proper regulatory system to which people can have ready and inexpensive access.
My Lords, I will re-emphasise why we are not introducing an independent regulator. The legislative changes that we are making to protect people in debt from aggressive bailiffs together with the new laws and mandatory training and certification scheme, which bailiffs must pass before going into business, will provide enough protection against aggressive bailiffs. Bailiffs who do not follow the rules will be barred from the industry. We will also clarify the complaints process so that debtors know how to seek redress and what the responsibility of creditors and enforcements agents are.
As I have explained, in the process, the appropriate regulator in each of the areas where bailiffs are used will be able to be appealed to. We mentioned this small degree of commercial debt—less than 1%—and I would be happy to receive any representation from either the CBI or the Federation of Small Businesses if they thought that this was a genuine loophole causing a real problem.
Every individual will have access to an appropriate complainant authority. As the noble Baroness pointed out, we have indicated that we are looking for something like a three-month training programme; it will not just be a tick-box exercise. We are looking at other parts of the forest, as it were, to see whether there are training modules and practices that we can readily adapt. I confirm that the local government ombudsman will have responsibility for private bailiffs when they are acting for local authorities.
The noble Baroness rightly raised the problems of dealing with people who may have some difficulties with mental capacity. We would hope that in the training will come a clear responsibility to recognise and assess such situations. Where they identify that a vulnerable person is involved, they will refer back to the relevant authority to further instructions and, where necessary, bring in other assistance to deal with the situation.
As I have said, we are developing training that we consider a minimum requirement. We have not yet been able to gauge exactly the length of time that the training would take. However, we are clear that, at a minimum, bailiffs will need to understand the role that they play, the law that governs their powers, the practice of taking control of goods, the fees that they can charge and, as I have said, specific training to deal with vulnerable people.
On whether the system will allow complaints against bailiff firms as well as individuals, most complaints about bailiff companies relate to the fees charged by their bailiffs, the type of goods seized and the ways in which they were seized. All these issues will be dealt with under the new regulations and will be subject to the means of redress. The behaviour of individual bailiffs on the doorstep will be regulated through the certification system. Poor behaviour can be addressed by the removal of a certificate. We are working with the advice sector to identify any complaints that would fall outside the regulation. All bailiffs will have to be certified, and I can confirm that training will be independently accredited.
We will bring forward the regulations by negative resolution. The regulations have already been subject to a full and open consultation. Comments were invited as part of this process and were included with the consultation paper. Officials are currently working with stakeholder groups to refine the regulations, and we plan to make them available by the summer. As set out in the Tribunals, Courts and Enforcement Act 2007, the regulation will be subject to the negative procedure for statutory instruments.
As I said, I believe that what has been put forward in a way is greatly to the credit of the noble Baroness, Lady Meacher, who has championed these ideas through the House. I hope she recognises a victory when she sees one. I certainly hope, as I said before, that the House will agree to Amendments 5, 6 and 31.
Motion on Amendment 6
Moved by Lord Taylor of Holbeach
That this House do agree with the Commons in their Amendment 6.
Amendment 6A not moved.
Motion on Amendments 7 to 10
Motion on Amendment 11
11: Insert the following new Clause—
“Awards of exemplary damages
(1) This section applies where—
(a) a relevant claim is made against a person (“the defendant”),
(b) the defendant was a relevant publisher at the material time,
(c) the claim is related to the publication of news-related material, and
(d) the defendant is found liable in respect of the claim.
(2) Exemplary damages may not be awarded against the defendant in respect of the claim if the defendant was a member of an approved regulator at the material time.
(3) But the court may disregard subsection (2) if—
(a) the approved regulator imposed a penalty on the defendant in respect of the defendant’s conduct or decided not to do so,
(b) the court considers, in light of the information available to the approved regulator when imposing the penalty or deciding not to impose one, that the regulator was manifestly irrational in imposing the penalty or deciding not to impose one, and
(c) the court is satisfied that, but for subsection (2), it would have made an award of exemplary damages under this section against the defendant.
(4) Where the court is not prevented from making an award of exemplary damages by subsection (2) (whether because that subsection does not apply or the court is permitted to disregard that subsection as a result of subsection (3)), the court—
(a) may make an award of exemplary damages if it considers it appropriate to do so in all the circumstances of the case, but
(b) may do so only under this section.
(5) Exemplary damages may be awarded under this section only if they are claimed.
(6) Exemplary damages may be awarded under this section only if the court is satisfied that—
(a) the defendant’s conduct has shown a deliberate or reckless disregard of an outrageous nature for the claimant’s rights,
(b) the conduct is such that the court should punish the defendant for it, and
(c) other remedies would not be adequate to punish that conduct.
(7) Exemplary damages may be awarded under this section whether or not another remedy is granted.
(8) The decision on the question of—
(a) whether exemplary damages are to be awarded under this section, or
(b) the amount of such damages,
must not be left to a jury.”
My Lords, I beg to move that this House agrees with Commons Amendment 11. With this I shall speak also to Commons Amendments 12 to 19, 38, 46 and 131, and to the government Amendments 17D, 17H and 131BA to those amendments. This group of amendments, together with a new clause which your Lordships’ House has already added to the Enterprise and Regulatory Reform Bill, implement legislative parts of the Leveson cross-party agreement. Clearly these have been the source of much interest over the last week, since the Prime Minister announced last Monday that he had reached agreement with the Deputy Prime Minister and the Leader of the Opposition on proposals for a royal charter. As part of that agreement, the three parties also agreed proposals and exemplary damages and costs that are designed to incentivise publishers to join the new regulatory framework. These proposals are the subject of this group of Commons amendments.
I will first explain the key features of the Commons amendments. Commons Amendments 11 to 15 relate to exemplary damages, which are already available under the common law. They are, however, very rarely awarded, as they are reserved for the most serious cases. They are designed to punish, and only where there is no alternative. That general position will not change, although the new scheme for relevant publishers will change the position for them in relation to certain types of cases relating to the media, namely cases for defamation, misuse of private information, breach of confidence, malicious falsehood and harassment, as specified in Amendment 19.
Commons Amendment 11 incentivises publishers to join the regulator by making it clear that a court may contemplate awarding exemplary damages only in cases where a publisher has not joined the regulator, with very limited exceptions. This is on the basis that a publisher joining the regulator will face the prospect of regulatory fines of up to £1 million. However, subsection (3) of the new clause also provides that if a court is persuaded that a regulated publisher has acted in a way that would lead the court to award exemplary damages but for their membership of the regulator, and the regulator has acted manifestly irrationally in its approach to sanctioning that conduct, the court may exceptionally make an award for exemplary damages in that case. I know that this is one of the points on which my noble friend Lord Lucas has sought clarification in his Amendment 11A. I hope that he will agree that this is a very limited and clear exception to that rule, being available only when a court concludes that the regulator has acted in a manner that is manifestly irrational—a very high bar.
Further, this is a necessary safeguard for victims to ensure that the press self-regulator sanctions in an appropriate and meaningful way and is not tempted to give the press an easy ride. Exemplary damages would be awarded only in the most serious of cases. This is in line with both the Leveson report and the report of the 1997 Law Commission. The test for the award of exemplary damages would be where the defendant’s conduct has shown a deliberate or reckless disregard of an outrageous nature for the claimant’s rights. That conduct is such that the court should punish the defendant for it, and other remedies would not be adequate to punish that conduct.
The new clauses inserted into the Bill by Commons Amendments 12 to 15 contain provisions designed to ensure that new systems work effectively in practice. Commons Amendment 12 sets out factors that the court must take into account in deciding whether an award of exemplary damages is appropriate, with the overall context of considering all the circumstances of the case. The core factors are whether,
“membership of an approved regulator was available to the defendant”,
at the time of the event giving rise to the claim, and, if so, what reasons the defendant had for not being a member. Commons Amendment 13 sets out matters to which the court must have regard in deciding what amount of exemplary damages is appropriate. The key principles governing the court’s considerations are that the amount should be no more,
“than the minimum needed to punish the defendant for the conduct complained of”,
and that it should,
“be proportionate to the seriousness of”,
that conduct. Commons Amendments 14 and 15 ensure that these provisions will operate effectively in cases involving more than one claimant or more than one defendant.
For completeness, I should also mention Amendments 16 and 38. Amendment 16 implements recommendation 71 in Lord Justice Leveson’s report, and confirms that in cases under the new system, aggravated damages should be awarded only to compensate for mental distress and should have no punitive element. Amendment 38 provides that the provision on exemplary damages will come into force one year after the date on which a body is established by royal charter. This will be a powerful incentive to the press to establish a new regulator on a timely basis so that they will have the opportunity of becoming regulated.
I now turn to the provisions relating to cost in subsection (1) of Amendment 17, which will be subject to government Amendments 17D and 17H. This new clause is designed to give effect to Lord Justice Leveson’s recommendation that the award of costs in media torts should be another tool to encourage publishers to join the regulator. The effect is that there would be a clear presumption that where a claimant took a publisher inside the regulator to court, even if the claimant was successful in their case, the normal rule that their costs would be met by a losing publisher would not apply. In other words, a defendant publisher who had joined the regulator should only pay the claimant’s costs in limited circumstances.
The new clause also establishes a second presumption: that a defendant publisher who does not join the regulator should always pay the claimant’s costs, again, subject to the exceptions in limited circumstances. Those limited circumstances are subject to government Amendment 17D, where the issue could not have been resolved at arbitration, even if the publisher had been a member of a regulator, or if it were just and equitable for the defendant publisher not to pay the cost.
Government Amendments 17D and 17H make two technical amendments to the new clause on costs. The first refers to subsection (2)(a) of the costs clause. The intention of this provision is to allow for costs to be awarded against a regulated publisher only if the claim is not capable of being resolved through the regulator’s arbitration scheme. However, to achieve this, the word “not” must be inserted into the condition of subsection (2)(a), to avoid the opposite being the case. Amendment 17D simply corrects this drafting error.
In addition, we have concluded that subsection (4) of the costs clause is unnecessary. It defines what could be resolved by an arbitration service established by a regulator by reference to whether,
“the claim could have been referred”,
to such an arbitrator. In fact, the reason an arbitrator might not be capable of dealing with a claim might not be clear until after the referral has taken place, so we concluded that the definition was unduly restrictive and was not needed. Amendment 17H strikes out the subsection.
The application of these provisions on exemplary damages and costs turn on the definition of “relevant publisher” in Commons Amendments 18 and 131. As I indicated, we want to ensure that the new provisions act as the incentive that Lord Justice Leveson intended. At the same time, we do not want to draw in too broad a range of publishers. Our aim has been to capture the main elements of the press, as well as what I find it helpful to refer to as “press-like” activity online.
Lord Justice Leveson said that, ideally, a regulatory body,
“would attract membership from all news and periodical publishers, including news publishers online. It is important for the credibility of the system, as well as for the promotion of high standards of journalism and the protection of individual rights, that the body should have the widest possible membership among news providers”.
He also said:
“This is not meant to be prescriptive at the very small end of the market: I would not necessarily expect very small publishers to join the body”.
Commons Amendment 18 therefore provides a definition of “relevant publisher” that captures national newspapers and their online editions, local and regional newspapers and their online editions, online-only edited press-like content providers, and gossip and lifestyle magazines.
The new provisions act as the key incentive for joining the new press regulator. The regulator provides a number of protections from both exemplary damages and costs clauses, so it is important that the definition equates to the publications that we expect to be part of the regulator. Those inside the regulator will be expected to comply with the industry-standard clause and will be exposed to a £1 million fine, a complaints conciliation service and a new, free arbitral arm for the processing of civil legal claims. However, these provisions are equally designed to protect people who are not intended to be in the new press regulator.
In the past week, I have seen some concerns voiced regarding the extent to which bloggers or tweeters may be caught by this definition. I will return to this point in a moment. Lord Justice Leveson distinguished between the often grass-roots, small-scale activity of individual bloggers’ sites and social networking, and those activities that have developed over time into more sophisticated, multi-authored and edited news-related businesses. He referred to:
“a number of news blogs—the Huffington Post is an early, high profile example of one, which has developed over the years into something much more like an online newspaper—which specifically aim to bring a range of news stories and views on those stories to their readers”.
This is an important distinction. Leveson is describing a press-like operation online. In order to future-proof our regulatory approach, we need to keep up with changes in technology. Any regulatory system that seeks to cover news publishers cannot ignore the fact that the print forms of press are facing real economic challenges, both structural and cyclical, and that distribution methods are moving increasingly online. Reforms to press regulatory systems must take account of the increasing online presence of the national news publishers, as well as press-like news publishers who operate solely online.
In future, the digital world is likely to be the principal method of distribution for much of our news, and our regulatory system must reflect this. It is important because the public have different expectations about different kinds of media, and in taking a regulatory approach we should take seriously those public expectations. Clearly, the online version of the national press, its regional counterpart or an online yet press-like news site, carry very different public expectations when compared with a small-scale blog—or, for that matter, a tweet. Our definition of “relevant publisher” seeks to make this differentiation. It does so by employing an interlocking series of tests, all of which must be met before the threshold of the definition is reached. They are, first, whether the publication publishes news-related material; secondly, whether it is written by different authors; thirdly, whether it is to any extent subject to editorial control; and, fourthly, whether it is published in the course of a business. The definition is therefore intended to protect small-scale bloggers while capturing the more sophisticated, press-like online material that Leveson described.
Equally, the definition of “relevant publisher” is not intended to capture the news aggregation services of operations such as Yahoo! or MSN. Nor is it intended to capture social networking sites where individuals post user-generated material. Nor is it aimed at sites that simply moderate the comments of others, or aggregate a series of blogs without any active consideration of the content, such as the blog-hosting services WordPress and Tumblr. I also clarify that, contrary to some recent reporting, the definition is equally not aimed at covering individual journalists. The definition of “relevant publisher” is aimed at organisations that employ or otherwise commission journalistic content, and, even then, only to the extent that these organisations operate in line with the four interlocking tests that I outlined.
I recognise that people have been seeking clarification on how the legislation could apply to small-scale bloggers, and how the interlocking tests work. This is reflected in some of the amendments before us, and includes the suggestion that there may be a case for making an express exemption in respect of small-scale blogs in the new schedule inserted by Commons Amendment 131. To allow a period of reflection in advance of the next round of ping-pong in another place after the Easter Recess, the Government have tabled manuscript Amendment 131BA in recognition of the concerns over Amendment 131. As part of this, my right honourable friend the Secretary of State for Culture, Media and Sport has agreed that her officials will collate and engage with any issues that are raised before submitting a view on how the test will operate and whether there is a need for a further amendment. I hope it is clear to noble Lords that when this is next considered by the other place, the Government may come forward with an alternative amendment, or invite the other place not to agree this amendment. However, for now, I invite the House to make this change.
Finally, on “relevant publishers” and in addition to the four tests, I draw the attention of the House also to the new schedule that will be inserted by Amendment 131, which outlines specific exclusions from the definition of “relevant publisher”. In referring to Lord Justice Leveson’s view of the membership of a future press regulator, we have provided exclusions for a range of otherwise unrelated activities that might have been caught unintentionally. To that end, we have provided a specific exclusion for broadcasters who broadcast news-related material in connection with broadcasting activities authorised under their broadcasting licence, special interest titles, scientific or academic journals, public bodies and charities, company news publications and book publishers.
Clearly, getting the balance of incentives is also very important. It is important that we draw the right line between the publishers intended to be caught and those who are left outside. I am confident that the Government have drawn the line in the right place and I have set out my reason for that today. Through the cross-party talks, we have agreed a set of proposals that will create a tough new system of press self-regulation. We are, I believe, striking the right balance through these amendments, which enable the implementation of this system but which, equally, do not compromise freedom of expression. They form a crucial part of the new regime for press regulation as Lord Justice Leveson set out and which, as politicians, we have a collective duty to implement. I will wait to hear what noble Lords have to say about their amendments, particularly in the light of manuscript Amendment 131BA, and respond to them when I wind up this debate. For now, I commend these Commons amendments to the House.
11A: Line 11, leave out from beginning to “, the” in line 24
In moving Amendment 11A I shall speak also to the other amendments in my name in this group and, indeed, to one that does not appear in the groupings list, Amendment 17G, unless the list has been amended subsequently, as this amendment is clearly part of the same series.
I start by declaring an interest: I run the Good Schools Guide. It seems to me that the Good Schools Guide is clearly going to have register under these clauses. I am not going to address myself to the virtue or otherwise of this approach to press regulation—I am sure that others will do that better than I could. I am going to confine my remarks to, “Well, if the Government are going to do it this way, how could they do it better?”. As far as I understand it, the procedure today is that, as with the other groups, we will deal with everything as a whole. But if we get to the point where we are faced with a widespread disagreement with what the Government are doing and an unwillingness to listen, we have the option of re-debating each of the amendments one by one when we reach their place in the Marshalled List if the noble Lord whose amendment it is chooses to move it.
The crucial thing from my point of view is exactly what the Government intend to do with their manuscript amendment. I was comforted very much by what the noble Lord, Lord McNally, said—that this is essentially a device to make sure that the Commons has Easter to think through exactly how to deal with small bloggers and, given the width of the Commons’ powers, also to make any other necessary changes to these clauses. Therefore, if we are dealing with small amendments and things we think need further thought, that government amendment is enough to enable these to be achieved, and therefore all we need to do is speak to the Government today and, over the next three weeks, good sense will gradually percolate through and result in the Commons—when the Government’s amendment comes back to us—having taken the appropriate action elsewhere within this group. I hope that that is the correct understanding. I am sure that my noble friend will confirm if that is the case.
I start with Amendment 11A. I understand what my noble friend says about the purpose of the lines that I am seeking to take out—they are to deal with circumstances when the regulator has gone doolally—but I think that this is the wrong way to do that. I can see that as a possibility, but by doing it this way the Government are introducing uncertainty into the whole question of whether exemplary damages apply to a publisher. By joining a regulator, you can exempt yourself from exemplary damages. You sign up to the regulator, you do things its way and you are not in danger of exemplary damages. You do not have to get insurance against exemplary damages—which is not exactly going to be cheap—and you know that you have gone down the road that Leveson has recommended.
By introducing this uncertainty, saying that the courts can overturn your exemption, you are inviting every opportunist attacker to have a go at you, to see if he can tip you into exemplary damages. I cannot see that introducing that level of uncertainty, danger and risk in a procedure which is supposed to encourage people to sign up to avoid that risk, is the right way of doing it. If we are worried about the regulator going native then we need to provide for that in the charter and provide some way of bringing a regulator back to where they should be. Indeed, I suspect that if we had that then it might well be that Parliament would legislate again anyway. Surely this added uncertainty is not the right way to deal with the problem.
I turn to the next amendments in my group, Amendments 17C and 17G. The object of these paragraphs is effectively to force publishers to use arbitration. I have two objections to that. The first is that there ought to be a real incentive for those who offer the arbitration, for the regulator, to make it good and something that publishers want to use. If there is no such incentive then there is the tendency, as exemplified in Australia for instance, for the arbitrator to start to get really rather eccentric views on what publishers should be doing and to seek to widen its own authority by pushing the boundaries and the rules in ways which I am sure Parliament is not currently envisaging.
It seems to me best in principle that an arbitration, if that is offered, should be offered freely. I am sure that those like me who have had some experience of the uncertainties of the court will go for arbitration first as a matter of course if it is well done—and no reason why it should not be.
Secondly, however, there are many cases in the world of publishing that are seriously complicated things. They can be dealt with by arbitration but actually are far better dealt with by the courts. Surely we want to allow the decision to continue to be made by either side in the argument that a particular case would be better dealt with by a court, with the additional powers and procedures that courts have. I cannot see why we are effectively ruling that out by this particular pattern of penalties.
We come to my amendment to Amendment 18, which is to take out subsections (3) and (4). I think that I am proposing this amendment because I do not understand the wording of those clauses. I understood my noble friend when he addressed this and said that, clearly, he wanted to see the Huffington Post included as a publisher. But it seems to me that subsection (3) removes, at least if not the Huffington Post in the exact way that it operates, many Huffington Post-like potential publishers from the scope of “relevant publisher”. It says:
“A person who is the operator of a website is not to be taken as having editorial or equivalent responsibility for the decision to publish any material on the site, or for content of the material, if the person did not post the material on the site”—
in other words, if the material appeared on that site by another agency.
Well, fine; but suppose the publisher—whatever they be called; “Comment is free” would be a pretty good example—had offered payment to the person who posted that article on the website, or had commissioned it, or had merely given permission for it, as one has to with “Comment is free”. You cannot just post something on that site; you have to get its agreement to posting it. Effectively, in the likes of “Comment is free”, you are creating a newspaper, but it is not made up in the usual way; it is made up of unpaid—although there is no reason why they should not be paid—contributions from outsiders. They may well have been moderated, as is allowed in subsection (4), which effectively means edited. Permission has been given and sometimes contributions are sought, in that they might say, “We would like something like that—who shall we ask to make the posting?”. The wording of subsection (3), as it is now, allows some very major businesses to escape this set of clauses entirely. They may not exist at the moment but, if you allow them to exist under this clause, I think that they will get through. That may be my misunderstanding of how the wording operates, but it certainly seems the case to me.
Amendment 19A is my original take on how to deal with the small bloggers problem. Essentially, most publishers of any ambition are going to have to join this regulator, and my noble friend clearly expressed the intention of the Government and Lord Justice Leveson that this should be the case. But a lot of these publishers, particularly at the early stages of their existence, when they are pretty sharp-edged and contentious, do not have much income. They survive on the sheer effort of a few individuals, who may scrape a living through journalism elsewhere, or do something else to keep body and soul together, but are not earning a lot from the publishing enterprise that they have founded. If the regulator charges a large fee for annual membership or charges little bloggers full fees for access to the compulsory arbitration service, we are effectively creating quite a high barrier to entry for new publishers. We are saying that they will have to find £100,000 or £200,000 to deal with those charges before they are allowed to become a publisher.
I am sure that that is not the Government’s intention, but it is one of the reasons why their own amendment does not go far enough, and dealing with this issue is probably a matter for the charter and not for the Bill. But it is important to make sure that we are not in this Bill introducing a barrier to entry for new publishers, who will generally feel obliged to register. Unless there is a very clear moment when they transition from being a small blogger, in the words of the government amendment, to a not small blogger, they will register early for their own protection. But if they face the sort of fees that a vexatious litigant could use to really punish them, just by putting them through the procedures, we will put in place a real barrier. I am sure that my noble friend realises that there are people around the world with whom you can get into severe difficulty if you say what you think about them, such as the Scientologists. That is not an uncommon feature, and we should not create a barrier for entry into such controversial and, in the overall scheme of things, worthwhile activities.
My other amendments, Amendments 131B and following, are slightly further on. I am sure that this is my misreading, but it seems to me that there is nothing in the wording that exempts the New York Times, or Le Monde, from having to register. We are going back to our imperial habits and stretching our net across the world. They are certainly publishers of news on a large scale about the United Kingdom, but they are surely not intended to be caught and have to register just because they choose to report what is going on in these islands, on page 59. If that is the intention, I feel that it is the wrong one.
The second part of Amendment 131B is really a companion to the limitation of fees and costs for small publishers. If the regulator has to run at a loss on small publishers, subsidising their fees and arbitration costs out of the fees and costs charged to larger publishers, it may decide that it really cannot be bothered and say, “You’re not big enough yet—go away”. If the regulator says that to you at the moment, you are caught, because you cannot join the regulator and, therefore, you are in for exemplary damages, without the option. I do not think that that should be the case.
My later amendments deal with other ways in which to deal with a small publisher. There have been several representations from the local press that really they should not have to qualify for this. I can see from what my noble friend says that there is really not much hope of getting that exemption. There are questions of whether charitable campaigning organisations should be caught, but it is clear that they come within the definition of publisher, as set out in these clauses. Is that really the Government’s intention? With my last amendment, the Government’s amendment is better, but we need some definition of “small” and I am sure that it is something that they are thinking about.
That is what lies behind my amendments and I am very much looking forward to what the Government say to them when we get through the other fascinating amendments that lie before us. I beg to move.
My Lords, I shall address this matter fairly briefly. I congratulate the Government on having moved as they have, and the noble Lord on his opening comments.
I want to make two points, but they are quite important ones. What is welcome and what we need to remember when we discuss these issues is that there is a world of difference between an individual who might say something factually incorrect and even insulting as an individual and a very large-scale international organisation such as News International doing the same thing. That is really where this problem has come from. People reacted to Leveson from the press side by saying that it was an attack on 300 years of press freedom, but that is nonsense. Press freedom was about small individuals and small groups fighting for the right to publish their views, and that remained the case until quite late in the 19th century, when the press barons emerged and these large-scale and powerful organisations developed. That is when it became difficult, because you could no longer feel the same about an attack by an organisation such as News International that was factually incorrect and severely intrusive, and that of an individual. That sort of balance needs to be kept in mind.
When I listened to the Minister’s opening comments, I felt that the Government were aware of the difference between the large and small organisation. But it is a problem for the small organisation. I started a blog in, I think, 2003, then came here and converted it to “Lord of the Blog”, and then it became “Lords of the Blog”, which is still operating, and is run by the Hansard Society on behalf of the House. I think that it is relevant—and this refers in a way to some of the comments of the noble Lord, Lord Lucas—and we need to be aware of the impact on charitable organisations and the smaller groups.
My second main point is that we need to review the legislation over a period of time. Part of the reason why we need to do that is the rapidly changing technology; it is so fast and so dramatic that it is difficult to keep up with it. I do not believe that all the press will suddenly go out of business because of the internet, but they are under more severe financial pressure because of it. Frankly, good newspapers are likely to survive—and likely to survive also because of their online material. We have to break away from the old culture whereby, if you felt that you could not publish a story, you got someone to put it on the internet and then, lo and behold, it suddenly appeared in News International newspapers, or wherever—and anyone could have put it on. It was easy to get round the rules.
As someone who set up those blogs, I would have welcomed at that time some sort of code that was external to what I was inventing myself. The noble Lord, Lord Lucas, said that you may be threatened by that. He may be right. I do not want to disagree with a great deal of what he said as I have a lot of sympathy with it, but I think he may be overafraid of this. When I started the blog in 2003, I was not concerned about individual attacks on me—any MP gets used to that fairly quickly and takes the rough with the smooth—but I was concerned about attacks on third parties or statements about third parties. We saw a dreadful example of that recently with the challenge to Lord McAlpine. In my view, none of this regulation threatens good investigative journalism. Indeed, I gather that the BBC programme tonight on Boris Johnson will be pretty critical and that is a regulated media outlet, so we should not be too concerned about this issue. However, vast changes are taking place.
To give another example, after the Iraq war, at the request of some Arabs in my then constituency, I set up the Arab-Jewish Forum, which was essentially a conference organising group, but I have recently converted it into a blog organisation for Arabs and Jews in this country, although, inevitably, it will go worldwide. In doing that, I am worried about regulations. A group of Arabs and Jews will regulate it. I will also keep a close eye on it although, as someone of neither Jewish nor Arab heritage, I will be less good at that than the moderating group. It would be good to have guidelines on what to do if something is factually incorrect. Although what we are discussing is not directly relevant to that issue, it underpins it and may indicate a way forward in dealing with the emerging internet communications, which will replace newspapers to a large extent, although not completely, in my view. We will then need constantly to review the legislation.
I carefully followed the speech of the noble Lord, Lord Lucas, in which he raised important issues, with which I have sympathy, and to which I wish to add two comments. First, an organisation may value being a member of a regulatory body as that gives you some guidance, even if it is not a complete code, and a structure within which to work. I ask the Minister to address my next point when he winds up. Secondly, it is very important that we develop a way to review this legislation over time given not just the complexity of setting up a regulatory body for the press for the first time but the fact that the technology is changing so fast it is very difficult to keep up with it.
My Lords, I would like to speak to Amendment 11B and a group of consequential and related amendments, and I am sorry not to have got to my feet quicker. These amendments seek to implement the Leveson report as Lord Justice Leveson provided for—no more and no less. I broadly welcome the Government’s Amendment 11 and the Minister’s explanation of it but would welcome assurance on a number of specific points.
There are three amendments on exemplary damages: Amendments 11C, which provides that the existing common law test does not apply in this case; Amendment 11D, which provides that vicarious liability should apply in this form of exemplary damages; and Amendment 13A, which provides that the court will have regard to the means of a defendant when making any award. It is very important that the law is clear that for exemplary damages to apply, the conduct does not have to be carried out with a view to a profit and with a deliberate disregard of an outrageous nature of the claimant’s rights; in other words, there are two alternative tests and not one. The Government’s amendment is unclear on that matter and I should like clarification on it.
Amendment 17E makes clear that to benefit from costs protection the publisher would have to participate in the self-regulator’s arbitration scheme. Amendment 17J provides that the current hold on the commencement of Sections 44 and 46 of the Legal Aid, Sentencing and Punishment of Offenders Act in respect of publication proceedings will remain until a way forward is found. In relation to this, there will be cross-party talks in which Liberal Democrats and Conservatives will be able to take different positions. The reason for that is that Sections 44 and 46 of LASPO abolish the recoverability of success fees for the loser and would have disastrous effects on media claimants such as the Dowlers and the McCanns. I look forward to hearing from the Minister what the Government propose to do about the effective elimination of a success fee.
Two further amendments where assurances are sought are Amendments 19C and its consequential Amendment 19D, which concern the inclusion of data protection actions within the definition of publication proceedings. Amendment 19E provides that the Information Commissioner will take into account membership of an approved regulator when considering the exercise of his powers. In both these cases, we understand that the Minister will be bringing these back as part of the post-Leveson data protection consultation. We seek the assurance that decisions on this matter will be subject to cross-party talks in which Conservatives and Liberal Democrats will be able to take different positions.
Amendment 19B would require that the recognition panel which approves the self-regulator is subject to the Freedom of Information Act. No one would expect this body to act in secret. I seek an assurance from the Minister that the relevant special interests would be promulgated in good time for the start of its work.
Amendment 131A concerns relevant publishers which hold broadcasting licences. We seek assurance that this is not intended to cover the whole publishing activity of such licence holders but only their broadcasting activity. As regards Amendment 11B, which deals with the exemption from immunity of self-regulated newspapers to exemplary damages, I understand that a further amendment is to be agreed to this clause. Therefore, I need say nothing further about it and it can be considered in another place.
Amendments 17A, 17B and 17F would enable bloggers and small publishers who decide to join a self-regulator to obtain the costs protection that they deserve on the basis of it providing a low-cost arbitration service. I understand that this is the subject of continuing cross-party discussion and will also be dealt with in another place. Other noble Lords will have something to say on the position of bloggers and the need for small publishers to be excluded from the definition of relevant publishers. That has already been alluded to. I merely commend my two Amendments 18A and 18B as a contribution to the debate.
My Lords, I speak in favour of Amendment 11. We need it because we need the Leveson cross-party agreement on press regulation and because we need a raucous, unfettered press, but one that does not prey on the vulnerable and the innocent. I believe that we have achieved this balance through the proposed royal charter, and we have achieved it with all-party consensus, thanks in part to the persistence of my right honourable friend the Deputy Prime Minister. As part of that, the three parties agreed proposals on exemplary damages and costs designed to provide incentives for publishers to join the independent press regulator, as set out in these amendments.
I have been disappointed, if not surprised, by the response from some sections of the press to the cross-party agreement. In our debate on Monday, my noble friend Lord Fowler referred to that great practitioner of investigative journalism, Sir Harry Evans, and to a speech he made recently in which he abhorred the negative response to the Leveson report, in particular the suggestions that it was an attack on the freedom of the press. The freedom of the press is, as he said,
“too great a cause, too universal a value to a civilised society, to be cheapened as it is in the current debates. Every year upwards of a hundred journalists, broadcasters and photographers die in the name of freedom of the press”.
My great friend, Marie Colvin, was one of them. She died because she so passionately believed in making public the stories of the forgotten. In the case of her last despatch, it was the people of Homs. She knew about state control of the press and experienced it in East Timor, in Chechnya, in Sri Lanka and, finally, in Syria where the state targeted the media centre she was working from and killed her.
The royal charter and its independent press regulator, properly underpinned—to use that very unhappy term—will mean the end of unethical work practices and achieve a proper environment for journalists to ply their important trade. It protects both the freedom of the press and the rights of the individual.
My Lords, I declare an interest as executive director of the Telegraph Media Group and chairman of the Press Standards Board of Finance. I want to speak to Amendments 11 to 19. This group of amendments covers issues that are wide ranging and, as the noble Lord, Lord Lucas, so ably demonstrated, extremely complex. They go to the heart of some fundamental issues of law and justice, impinge on matters which are central to the European Convention on Human Rights and impact on the nature of investigative journalism. To echo some of the comments that were made at the start of business, it cannot be right that they are introduced after barely two hours of debate in another place, at the tail end of a Bill with only a handful of days before the end of the legislative Session, and in a way which does not allow for proper scrutiny.
On the radio last week, the Deputy Prime Minister said that the meeting late last Sunday night to agree on issues of press regulation,
“focused on technical legal definitions of what represented exemplary damages. It dealt with a tiny, tiny piece of the jigsaw ... It was about filling in one piece of the canvas”.
That statement shows how very dangerous this whole issue is because important issues that relate to freedom of speech were treated simply as a,
“tiny piece of the jigsaw”,
agreed not with the industry that is going to be affected by them but with a lobby group, and they are now being pushed through at breakneck speed. The amendments from the other place are wrong in principle and fundamentally flawed. They are almost certainly contrary to European law and so will collapse or be struck down. They deal with problems of an analogue past and are, in the words of the Guardian, “illiterate about the internet”. They are a constitutional nightmare. This late-night legislative fix will end up bringing discredit to us because we should have spent time analysing, scrutinising and amending them.
It has been argued that these issues were examined by the Leveson inquiry and are a key part of the complex system of media regulation he devised. That is not the case, however, and this House has to understand that. These far-reaching proposals have had no analysis or study anywhere and certainly not by Leveson. I understand that criticising Sir Brian Leveson is akin to criticising Florence Nightingale, but his inquiry utterly failed to scrutinise the key legislative issues that arose from it. As the Economist described it this week, aspects of this controversial report were just plain “sloppy”.
Leveson never invited evidence on statutory underpinning or published a draft statute to be examined in detail, and never looked at the massive implications, particularly for the regional press, of the establishment of an arbitration service. Crucially for this group of amendments, he never looked in detail at exemplary damages. He never invited or received submissions. The only reference I can find in the acres of evidence was from Ofcom, which suggested he might look at,
“procedures to give courts power to penalise parties ... in legal cases where the party has not taken account of the complaints-handling process offered by the new body”.
Ofcom then adds that its,
“experience in fairness and privacy cases has not led us to believe that it is necessary to have such powers. It would inevitably lead to more litigation”.
This is hardly a ringing endorsement.
Noble Lords should also know that Sir Brian devoted just four paragraphs of his 2,000-page report to the issues before us, on the basis that they were “worthy of consideration”. In his report, he says that the matter has been,
“fully discussed by the Law Commission and I see no value in repeating their argument”.
The Law Commission report, which he used as a basis for a finding that exemplary damages were necessary to make his system work, was published in 1997 before the enactment of the Human Rights Act which changed the law in this area. There would have been no point trying to, in his words, “repeat the arguments” as that Law Commission report, which was supported only by a minority of those consulted and was inconsistent with the conclusions of the Supreme Court Procedure Committee chaired by Lord Justice Neill in 1991 recommending abolition of exemplary damages, was shelved at the time and has never been accepted. The proposals it contained on exemplary damages—the same ones we are looking at today in this group—were recently dismissed in the leading textbook on the law relating to damages as,
“a retrograde step, with its inevitable and twin results of allowing the civil law to enter the very different domain of the criminal law and of providing windfalls for claimants which are in truth unmerited”.
Before moving on to some detailed issues, I want to deal with the point that will be made that I am just tilting at windmills and that no one has anything to fear if they are part of an approved regulator. This is the so-called “incentive”, the carrot and stick to provide statutory support to underpin a regulatory system. Regrettably, that argument is a mirage, because the way this legislation is structured means that membership of a regulator is not a complete protection against exemplary damages and costs orders. I am thinking in particular of proposed new subsection (3) of Amendment 11. While the Bill provides that exemplary damages should not generally be awarded against a “relevant publisher” which is a member of an approved regulator, the court can disregard this prohibition and make an award of exemplary damages in strikingly wide circumstances that render the apparent protection of being a member of a regulator entirely illusory. All the court needs to do is to be satisfied either that the regulator when looking at a case behaved “irrationally”— unlike the Minister I do not think that is a very high bar for some judges—or that it would,
“have made an award of exemplary damages ... against the defendant”,
even though it was a member of the regulator.
That is compounded by the new clauses in subsection (2) of Amendment 17 on awards of costs—which are the real issue in cases like this and which could have a far greater impact than damages themselves—which mean that the court can award costs against a member of the regulator where the issues could have been resolved by the regulator's expensive arbitration service or it is,
“just and equitable in all the circumstances”
to award costs against the defendant. In other words, there are so many loopholes that membership of the regulatory body might be largely irrelevant.
As structured, the Bill does not provide any form of carrot and stick: in fact, it provides a disincentive to membership because it establishes a system of double jeopardy. A publisher could be part of an approved regulatory structure, for which it will, as the noble Lord, Lord Lucas, said, have to pay a lot of money along with exposure to fines, and then it could still face the prospect of exemplary damages and crippling costs in court. Why on earth should publishers do that and face paying twice? I fear that this Bill makes it less likely that publishers would want to join an approved regulator. Some smaller publishers in the regional and periodical press, in particular, may as well just take their chances and stay outside. If the Government want a new regulator with universal coverage—which is absolutely right—this is a bizarre way of going about it.
I am not a lawyer, but I have the benefit of an opinion from the noble Lord, Lord Pannick, Desmond Browne QC and Anthony White QC, which makes clear that the provisions contained in the amendments to this Bill are likely to be unlawful because they single out for punishment a particular category of defendant rather than a particular kind of conduct. As the opinion states:
“This is particularly objectionable where the category of defendant singled out includes the press. To punish the press for what others may do without punishment is inconsistent with the special importance that both domestic and Strasbourg jurisprudence attaches to freedom of the press”.
Because the proposals will catch many publishers, from individual bloggers to NGOs, they go beyond the recommendations of Leveson. This Bill is not even itself, in the jargon, “Leveson-compliant”.
We could face the absurd situation whereby a newspaper undertook an investigation in conjunction with a programme such as “Dispatches”; this is not unknown. Both could publish the material at the same time on different platforms, one online and the other on television. If there was a legal action on grounds of defamation, the newspaper, whether or not it was a member of an approved regulatory body, could be exposed to crippling costs and damages. However, under the amendments the TV programme that broadcast the same material would be exempt. That is a completely untenable position as a matter not just of law but of fundamental justice.
As the noble Lord, Lord McNally, mentioned, there is a great deal of jurisprudence in English case law which sets out the case against exemplary damages. They have been described as anomalous and indefensible in judgments from, among others, Lord Diplock, Lord Devlin and Lord Reid. Indeed, in one of the most recent cases where this issue involving the media was raised—that of Max Mosley v News Group Newspapers—Mr Justice Eady, who some say is no friend of newspapers, concluded that exemplary damages,
“could not be said to be either ‘prescribed by law’ or necessary in a democratic society ... There is no pressing social need for this. The ‘chilling effect’ would be obvious”.
That point about the chilling effect is extremely important because these clauses—as the noble Lord, Lord Lucas, rightly said—import a huge amount of uncertainty into the law; and uncertainty is the enemy of investigative journalism. Why should newspapers pursue a story that could leave them exposed to exemplary damages and costs unless they are operating against the background of a law that provides certainty?
The amendments allow for an award against a publisher where conduct is judged to be “outrageous”—as described in subsection (6) of Amendment 11—or
“such that the court should punish the defendant for it”.
Yet legal precedent rules that the use of this test for outrageousness is “far too vague”. Lord Diplock, in a wonderful phrase in one ruling, rejected it as being merely one of,
“a whole gamut of dyslogistical judicial epithets”.
Given that almost all publication of information concerning an individual engages his or her Article 8 rights—those of privacy—the focus of any action will inevitably revolve around whether a defendant's conduct was “of an outrageous nature”—something on which views will differ. Uncertainty and unpredictability in the area of freedom of expression are wholly undesirable.
There are further problems that will chill investigative journalism. First, subsection (4) of Amendment 11 gives the court power to look at a publisher’s “internal compliance procedures” to see whether material was obtained “in an appropriate manner”. That will invite claimants to include in legal cases questions about how information was obtained, with massive repercussions for confidentiality of sources. Journalists and publishers will inevitably be pressed to disclose information about sources in an attempt to avoid crippling financial penalties. It will positively discourage whistleblowing.
Secondly, there is the issue relating to costs in Amendment 17. The Bill turns on its head the principle that generally costs follow results. If these provisions become law, publishers—and this is particularly crucial for the local press—who do not agree to arbitrate a dispute, something which can be very costly, face the prospect that when they are sued in a libel or privacy case, they may have to bear the entire costs even if they are successful. This issue does not affect the traditional media, as is highlighted by the amendments of the noble Lord, Lord Lucas. He made that case extremely well.
The case against exemplary damages and costs orders in English law is overwhelming, and the implications are, as I have tried to set out, disturbing. However, even if this House decides to go down that road, it will face an even stiffer test in Strasbourg, where I am sure this Bill will eventually founder because of its incompatibility with Article 10 on freedom of expression.
I mentioned the case of Max Mosley, which ended up in the European Court where this issue of exemplary damages was considered. The Court concluded that it,
“is satisfied that the threat of ... punitive fines would create a chilling effect which would be felt in the spheres of political reporting and investigative journalism, both of which attract a high level of protection under the Convention”.
We should take real note of the what the court said about how these measures would impact not on celebrities who have for too long been the focus of this debate but on political reporting.
Furthermore—and this is an important matter for Europe—the Bill discriminates between substantial commercial publishers whose business model allows them to afford membership of an approved regulator and small publishers or bloggers, such as those mentioned by the noble Lord, Lord Lucas, which cannot afford membership or may regard it as unnecessary or undesirable. That discrimination is impossible to justify under Article 10.
Everything about these proposed new clauses is wrong. They were cobbled together late at night over pizza, with no thought for the legal and constitutional issues involved. They exhibit no understanding of the digital world into which all publishers are moving. They are alien to decades of English law, and almost certainly illegal under European law. They would provide a serious blow to investigative journalism. They would disproportionately impact on smaller publishers and, in particular, the regional press. If ever there was a case where this House should have asked the Government and the other place to think long and hard, and to take their time studying the massive implications of what is being proposed, it is this. However, we do not have the ability to do so. I may be a lone voice making these points, and the cross-party deal with Hacked Off on its proposals means that these amendments will inevitably become law. I understand that. However, my noble friend is an honourable man and I ask him simply to pause and think again.
My Lords, I support the amendments and welcome the framework agreed by the parties. It is not perfect Leveson, but it is about 80% or 90% Leveson. In fact, the 10% to 20% that is not Leveson is a compromise in favour of the press, and we should be clear about that. It cheers my heart to hear those who have absolutely railed against the Human Rights Act, the European Convention on Human Rights and the court in Strasbourg suddenly praying in aid that great wealth of rights law, now that those people are confronted with the possibility that the press might have to be properly regulated.
First and foremost, only a week ago last Monday night, we created an entrenchment clause to protect the charter from meddling from behind closed doors by politicians, privy counsellors and Ministers. It was a way of using law to protect press freedom; indeed, I hope the Defamation Act will do so, too. The other way in which we can protect press freedom is by returning to high ethical standards. That is what is forgotten by those who hyperventilate about the great horrors of a regulatory system. It beggars belief that the noble Lord, Lord Black, who sat on the PCC for years and was basically hugger-mugger with those who were not really interested in what was happening to the victims of press excesses, now speaks about the “chilling effect” of this regulatory framework.
The costs element in this new arrangement is an important aspect of the Leveson incentives and is at the heart of the matter. The problem with the PCC was always that it had no teeth, and one had to find a way of dealing with that. However, as for the business of exemplary damages, perhaps we should make it clear that they would be used only in the most exceptional circumstances where the most egregious conduct took place. Almost invariably, it would go hand in hand with criminality of some kind. The criminality can be dealt with in some ways, but we know that the civil and defamation courts should have at their disposal some way of registering the horror of what happens to victims.
Noble Lords should have in mind circumstances such as when medical information has found its way into the hands of journalists that discloses, for example, that a woman has had an abortion, that someone has had psychiatric treatment, or that someone has a disease such as Huntington’s chorea that will manifest itself at a certain point in their lives. How dare the media expose such information? It is right that the courts should be able to respond appropriately when such things are done. We know that, except in exceptional circumstances, they are going to be dealing only with those who refuse to sign up to being part of this regulatory framework. This hyperventilation about exemplary damages is yet another manifestation of the huffing and puffing that we have seen in the press recently about the Rubicon being crossed and the end of freedom of the press as we have known it for hundreds of years, when the reality is far from that.
This is a moment for this House to reflect on the fact that over the past few months, while Lord Leveson was conducting his hearings and since he reported, there have been regular polls, and every poll conducted with the public showed that they want to see a proper regulatory framework. Indeed, all the polling indicates that the public support Lord Leveson’s report. More recently, as agreement has been reached across parties this week to create the framework that we are discussing tonight, all the polling indicates that the public want something of this sort to happen. So we should welcome it.
I am a human rights lawyer who believes strenuously in the freedom of the press, but I also have seen the horror of the impact on victims. They are not celebrities and the famous, but ordinary people. We in this House have to bear them in mind. That is what this framework seeks to do. I, like others, have concerns. I am worried about who will be given immunity and believe that we still need careful thought about who is covered by the immunities that we are talking about. I, like the noble Lord, Lord Skidelsky, want reassurances about freedom of information applying to these processes. However, we in this House should welcome the fact that somehow we are going to move forward on this and that we are not going to say that it is business as usual. Business as usual is not good enough.
My Lords, I declare an interest as having been for a few years a member of the appointments commission of the Press Complaints Commission and for 10 years on the Scott Trust, which owns the Guardian, the Observer and other newspapers.
I congratulate the three main parties and their leaders on coming to an agreement over what must surely be as difficult a set of issues as one could devise. No one in this House is mindless of the fundamental importance of freedom of the press in all its guises. Having said that, I am afraid that I reject the hypothesis very eloquently put forward by the noble Lord, Lord Black, that anything by way of control of the press is beyond the pale. The measures that the three leaders of the three main parties came to agreement on are profoundly sensible and, I believe, modest, and I think they deserve support.
I do not say that because the British public are expecting it. There are occasions when this House has to stand against the vast majority of the public if in all conscience we believe that they are wrong. We have done that many times in our history. However, I do not think that this is one of those times. This it not the thin end of the wedge, as is constantly said, because we will all be on our guard over the next few years to see whether what we intended comes about, and whether what we did not intend comes about. I have no doubt that the overwhelming sense, in this place and the other place, is such that if our hopes and expectations are not realised, we will do something about it, and that will be to protect the freedom of the press, not to grind away at that freedom.
I will make a couple of quick points. The first is that you could not have a more modest provision of exemplary damages than you have in this Bill. The noble Lord, Lord Black of Brentwood, if I may say so, did not give the full picture. He gave a telling account of the meaning of the word “outrageous”, but not the full context in which that word appears. New subsection (6) in Amendment 11 says:
“Exemplary damages may be awarded under this section only if the court is satisfied that … (a) the defendant’s conduct has shown a deliberate or reckless disregard of an outrageous nature for the claimant’s rights”.
“Outrageous”, “reckless” or “deliberate” is an extremely high hurdle, and I think that judges can be relied upon to keep it as an extremely high hurdle. I do not share the noble Lord’s misgivings in that regard.
The second issue relating to exemplary damages is as follows. New subsection (2) in Amendment 13, on the amount of damages that can be awarded, is worth quoting in full. It says:
“The court must have regard to these principles”—
the ones mentioned earlier—
“in determining the amount of exemplary damages”.
The first of these limitations is that,
“the amount must not be more than the minimum needed to punish the defendant”—
not the minimum needed to adequately punish the defendant, or to sufficiently punish the defendant, let alone to effectively punish the defendant.
My noble friend Lord McNally might like to take that away and think about that, because it actually rather screws the Bill, if I can use that common phrase. It seems to me that £1 of damages would, on that definition, satisfy that test, because £1 is a punishment, even if it is utterly inadequate and rather laughable. There are no qualifications to that phrase. That is another reason why the noble Lord, Lord Black, and the newspapers, are getting overly concerned—let me put that kindly.
Finally, I make a point about the meaning of “publisher”, because the noble Lord, Lord Lucas, and others have mentioned the extent to which this could impinge on smaller publishers rather than the great national newspapers and so on. I am sympathetic up to a point, but I do not like, and I hope the House will not like, the provision in Amendment 18 that is headed “Meaning of ‘relevant publisher’”. Subsection (3) of the new clause says:
“A person who is the operator of a website is not to be taken as having editorial or equivalent responsibility for the decision to publish any material on the site, or for the content of the material”,
and—this is the killer—
“if the person did not post the material on the site”.
In other words, if you are the operator and you did not actually post the offensive, outrageous, et cetera, material, you are free. That is quite inadequate.
If this provision is to be in the Bill, it needs to be expanded. This would allow a publisher or operator of a website to get away in the circumstance where, for example, the person who posted the awful stuff was a subsidiary company or a partner or was paid to put the stuff on the website. If you were a really malicious operator, you could think up a shell company in the Seychelles that could post the most dreadful stuff about a person or a group of people, and under this clause the operator of the website would not be liable. That needs looking at. However, as I say, all in all, I believe that, in this most difficult of circumstances, the Government, aided by the Opposition, have come up with a good set of provisions.
I end by asking my noble friend Lord McNally to tell the House, when he sums up, whether there is another example in our legal set-up where damages are dependent not on the offence but on the nature of the offender. This plays back to what was said by the noble Lord, Lord Black of Brentwood. I am concerned that it is legally unprecedented to punish not according to what you have done but according to who you are. I think that we should know that.
My Lords, I should like to address a few remarks to my noble friend Lord McNally about the general scheme behind the provisions in the Bill on which he has to some extent helpfully elaborated already. In so doing, I shall go on from where the noble Lord, Lord Soley, left off when talking about changes in the digital world. At the start I declare an interest as chairman of the Cumbrian Newspaper Group, but I am not going to talk about any of those interests at all. However, noble Lords may know that I am also chairman of the Communications Committee of this House. I do not want to breach any confidence, but at one o’clock in the morning this coming Wednesday, the committee will publish a report on digital convergence. A substantial part of that report deals with issues around the topic we are discussing today.
I think I am allowed to say in public that one of the things the committee was very interested in is the phenomenon known as television-like material as defined in the European Union audiovisual media services directive. This is material which can be viewed through an internet protocol television set but it is not broadcast and it is not a website. Your Lordships will be aware of this service because my noble friend Lord Dobbs has just had a great hit on Netflix, which is an example of one of these businesses. It is a fast-growing and significant part of the media landscape. In the committee’s view, because of the way that regulation is being proposed for broadcasting, the press and websites, TV-like material falls completely outwith the various definitions and so is not going to be caught. The committee does not think that that is the right way to proceed.
I turn first to the specific provisions of the Crime and Courts Bill and the amendments we are discussing. In addition, looking at the structure of the draft royal charter, it seems that embracing TV-like material of the kind I have described is only going to be possible, in the words of the noble Baroness, Lady Kennedy, if the entrenched law can be amended. Is it wise to start off with a big lacuna in the scheme; that is, before the draft charter has even got on to the statute book?
I am not here to make any further point than to draw the attention of the House to what the committee considers to be a potential problem with the overall scheme of regulation in this area. If the provisions as currently drafted go forward, they will leave a hole through which people may be able to drive and coach and six.
My Lords, I want to make some similar points to those just made by the noble Lord, Lord Inglewood, and in doing so I should like to declare an interest. I work for Facebook, which is a website operator. The points around definition have been made effectively in the scope of the amendments and in the comments of my noble friend Lord Lucas. They exemplify how hard it is to define anything in this area. As the noble Lord, Lord Inglewood, and his committee have found in trying to draw out these definitions, the more one goes into it, the more one finds that in many cases it is an imprecise science. It is hard to define precisely what it is one intends to regulate and does not intend to regulate.
The comments of my noble friend Lord McNally were extremely helpful in clarifying the Government’s intention not to include a wide range of services or individual activities within scope and I picked up on two particular phrases that he used. The first was “press-like” and the clear intention to regulate such services, and the second was “future-proof”, in that these provisions should be future-proofed. Subsection (7) of the proposed new clause set out in Amendment 19 refers to the concept of “News-related material”, but nowhere does it talk about the format of that material. Referring to the point made by the noble Lord, Lord Inglewood, it seems on first reading that “TV-like” and “radio-like” services would be covered. The new schedule set out in Amendment 131 provides an exemption for those who are licensed under the Broadcasting Acts, but again what we see increasingly is the ability to launch services over the internet that are TV-like and radio-like, but where no licence is required. If the legislation is to be future-proofed, it is important to understand whether it is the Government’s intention to restrict this to services that we would regard as being press-like today—most people in common parlance would understand that as being primarily the printed word—or if in the future someone launches a video or audio channel that consists primarily of news-related material—the new online TV-type and radio-type services—it is intended that it should be included in the scheme we are debating today. This is an important clarification for the increasing number of businesses and individuals who would like to move into this field of activity and for the increasing number of consumers who would like to receive their news through these new channels rather than the traditional ones.
My Lords, I am grateful to all noble Lords for participating in this debate, which has echoed a number of occasions on which we have been able to touch on these topics in the context of several Bills over recent months. We have not always stood opposite the noble Lord, Lord McNally, although he has been quite strong, particularly as we saw his cherished Defamation Bill begin to slip away from him. However, I think I see it looming in the background, and the noble Lord has cheered up again, which is nice. We also touched on them in the Enterprise and Regulatory Reform Bill, where we did a great deal of work with the excellent amendments tabled by the noble Lord, Lord Skidelsky. They were not moved, but they certainly raised the issues that we are considering today. Of course, we now have the Crime and Courts Bill before us, so there is endless flexibility, and long may that last. I should like particularly to thank the noble Lord, Lord Skidelsky, who has been tireless in tabling amendments that give effect to the detail of the Leveson recommendations and reinforce the fact that the royal charter and its statutory underpinning have been agreed by all three parties in an historic agreement.
We need to recognise that the debate on Leveson has moved on. The most important thing now is to be clear on what the government amendments intend to do and avoid any unnecessary scaremongering. I shall focus on a number of the amendments before us and, like the noble Lord, Lord Skidelsky, I should like the Minister to comment on how he intends to respond to them.
My first strand is on exemplary damages, but I have been sufficiently warned off by the noble Lord, Lord Phillips, even to go down this route. However, there are a couple of points that I would like the Minister to respond to. I understand that a considerable amount of time was spent in the all-party talks on the question of what happens to damages when it transpires that the facts of a case have changed in that the court has facts which were not available to the regulator. Can the Minister help us on this issue as it has happened in recent months? Can he confirm that this is a matter which will be returned to?
Amendment 11C clarifies that the common law gateway for exemplary damages will not apply. Can the Minister confirm that the “for profit” test is not required if the “outrageous” test is met? Amendment 11D makes it clear that a relevant publisher will be vicariously liable for wrongdoing by an employee or a person contracted to work for a publisher which results in liability for exemplary damages in accordance with the ordinary common law tests. Can the Minister confirm that further work will be done on this question? It is a key issue that is dealt with succinctly in the amendment tabled by the noble Lord, Lord Skidelsky. Vicarious liability bears on the morality and culture of the press. It is important that the Government should put on the record today that they agree with the noble Lord, Lord Skidelsky, and that they intend to return to this issue in the Commons to the extent that this may be required. The recent history, after all, shows that it matters. We do not want a situation where publishers literally have a get-out-of-jail-free card, and it would be strange if the media were to be in a privileged position in relation to vicarious liability compared with all other interests in this country. Lastly in this group, Amendment 13A is intended to reassure small publishers that, in deciding the amount of exemplary damages, the court will have regard to the means of the defendant. Can the Minister confirm that the Government will return to this issue when it is considered again in the Commons?
The second group of amendments that I would like to look at contains those amendments that are intended to make it clear that to benefit from cost protection the publisher would have to participate in the self-regulator’s arbitral scheme. With regard to Amendment 17E, the Government’s intention is that in order to benefit from cost protection the publisher would not only have to be a member of an approved regulator but would also have to participate in the scheme. There are those who have argued differently. Surely it makes no sense to provide benefits to publishers simply on the basis that they recognise that an arbitration scheme exists. The point here should be that it is the active participation by publishers in the scheme that entitles them to get cost benefits. In any case, as Lord Justice Leveson pointed out, an incentive to join an arbitration scheme is good for all publishers and will help them and the claimants. Can the Minister confirm that this is his understanding of the situation and that the Government stand ready to confirm this position in the other place?
Amendment 17J asks for clarification, as raised by the noble Lord, Lord Skidelsky, about the commencement of Sections 44 and 46 of the LASPO Act 2012, which was taken through the House by the noble Lord, Lord McNally, so he should know his stuff on this. I should be grateful for some confirmation about the issues that arise from that question. Amendment 19B would require that the recognition panel, which approves the self-regulator, is subject to freedom of information. This is an important matter which surely should be brought forward at this stage. After all, it is something that can be dealt with by secondary legislation. No one would surely expect that the recognition body wishes the power to act in secret. This really is important, so will the Minister give us an assurance that the relevant statutory instrument will be brought forward in good time before the regulator starts its work? Amendment 131A concerns relevant publishers which hold broadcasting licences. The drafting here is a little opaque. We seek an assurance from the Minister that a person who holds a broadcasting licence is excluded only in so far as they publish news-related material in the course of their broadcasting activities. Can the Minister confirm that this is not intended to cover the whole publishing activity of such licence-holders but only their broadcasting activity?
My Amendment 131F, which was put down earlier and is part of this group, has, I think, been overtaken by events. I refer to the extensive introduction which the Minister gave to Amendment 131BA, which provides for:
“A person who publishes a small-scale blog”.
I think it is meant to be a peg to allow for further discussion and debate for this event to happen in the House of Commons. On the basis of that understanding, for which I am grateful to the Minister, I will not press that amendment when the time comes.
Finally, there has been some talk about dates and the time that all this comes into effect. I should be grateful if the Minister could be very clear about what he understands the implementation date to be.
My Lords, I am extremely grateful to all noble Lords who have contributed to what has been a very thoughtful debate. I should perhaps start with the intervention by the noble Lord, Lord Black, because I am not sure whether it was the case for the defence or a warning of battles to come. He said that Lord Justice Leveson was as immune from being criticised as Florence Nightingale. I would have thought that the lady would have got a fair old battering from the noble Lord, Lord Black, if his speech was anything to go by.
Looking round the Chamber and listening to the contributions, and following this debate right through, I have never been in any doubt that many of the politicians in this Parliament would literally lay down their lives for the freedom of the press. It is not the case, as has been suggested in some of the very newspapers over which the noble Lord, Lord Black, has influence, that this is some Orwellian plot against the freedom of the press. As my noble friend Lord Phillips said, if by chance we saw what follows as an attack on the freedom of the press, I believe that the people who would be most likely to leap to the defence of the press would be not some of the media barons but noble Lords in this Chamber tonight and Members in the other place.
Although it was a well thought out and well delivered critique, I regret a little bit that nowhere in the remarks of the noble Lord, Lord Black, was there any apology. There was no recognition of the law-breaking on an industrial scale, no understanding of how deeply wounded the victims of press intrusion have been and no recognition of the deep disgust of the general public, which is reflected in the opinion polls that we have seen. I understand the message that was delivered. He asked me to pause. I genuinely ask the noble Lord, Lord Black, to pause and think whether he could not go back to those with whom he has immense influence and say, “Rather than trying to wreck this, couldn’t we see if we could make it work?”. To my mind, the prize is a great one—a free press, but a free press operating to the highest standards of ethics and one that is law-abiding. I believe that that is within our grasp if we can work together on this.
I tend to agree with the noble Baroness, Lady Kennedy, that where the proposals that I have put forward tonight are not completely Leveson, that is where we have really thought hard to see where we can underpin the free press. I went into some detail about exemplary damages, which are going to apply in very extreme cases, as a number of noble Lords have made clear. We are quite confident that, as drafted, these provisions are compatible with human rights legislation. I think that it was my noble friend Lord Phillips who pointed out just how narrowly they would be drawn.
A number of points were made and I will try to cover them all. The noble Lord, Lord Lucas, asked whether we were trying to regulate the New York Times or Le Monde. No, but equally nothing would prevent them from joining if they saw an advantage in doing so. Of course, international publishers can still be susceptible to defamation torts in the UK; they are not exempt. The noble Lord, Lord Soley, asked about the review of this legislation. It will, as normal legislation, be subject to post-legislative review three to five years after Royal Assent. I take the point that we are, in a way, taking a trip into the unknown here. I am sure that the warnings and concerns that have been expressed around this House will mean that Parliament will continue to keep a very close eye on how this works out in practice. It is more likely to work well if we can work together on it, on both sides of the industry, so that we can make this work.
A number of noble Lords mentioned trying to future-proof this. I was involved in the Communications Bill with the noble Lord, Lord Puttnam, 10 years ago, when we were trying to future-proof that. In the modern world it is extremely difficult, but we want to keep a close eye on how this develops. Certainly, the legislation, as it is boxed at the moment, is on the news scene as we have it at the moment. We will have to see how much the changes that take place will need these issues to be revisited.
The noble Lord, Lord Skidelsky, asked about the ability of people to sue using conditional fee agreements. This will remain. What is in the LASPO is that the success fees will come from the awards made to those who have sued and will not be in addition. This was part of the Jackson recommendations to prevent what were seen as inflationary trends in this part of legislation. It is also true that we expect there to be fewer court cases, as the new regulator will resolve issues free of charge to claimants.
The noble Lord, Lord Phillips, asked whether there were any examples in legislation where the quantum damage was judged, as it were, on the ability of the defendant. I think that most magistrates tend to work on that principle, but I am told that there are instances in the Data Protection Act where this also applies. The points made by the noble Lords, Lord Inglewood and Lord Allan, about the impact on digital provision on the internet are well made. The noble Lord, Lord Allan, picked up the point about “press-like”. I intentionally clung to that line to try not to get carried too far forward by this legislation and I think that it is one that will be taken up.
On the point that the noble Lord, Lord Inglewood, made, I agree that the regulatory framework for content including TV, TV-like and TV news will need to respond to the challenges of convergence that the Lords committee inquiry has been investigating and will be reporting on. I also agree that, because of this, we should now be looking to make sure that where possible the regulatory framework has the flexibility to adapt to these new challenges. However, there are considerations against which this must be balanced, such as allowing for certainty in the market and avoiding unnecessary and burdensome regulation. The communications review has been considering this challenge and how to strike the balance, and these issues will be addressed in the communications White Paper.
A number of the points that have been raised in relation to the amendments need clarification. I will stick closely to the text because what I am saying has been agreed and looked at by lawyers in a way that perhaps not all politicians’ speeches are. The noble Lords, Lord Lucas, Lord Skidelsky and Lord Stevenson, have spoken to a number of amendments. I touched on Amendment 11A in the name of my noble friend Lord Lucas in the opening debate and I made clear the narrow nature of what we are doing.
Amendment 17C would remove one of the exceptions to the general rule that a regulated publisher defendant does not pay the claimant’s costs. This is where the issue raised by the claim could not have been resolved by using the arbitration scheme of the regulator. Amendment 17D clarifies the original drafting error in this provision. In such a situation, it would not be fair to have a presumption that a particular party should or should not pay the costs, and the general rules on costs should apply. The cross-party agreement has established that an appropriate rule here is for the exception to apply.
Amendment 17G contains the general rule that an unregulated publisher will pay the claimant’s cost. It removes the first exception to that general rule, which is that it does not apply where the issue in the claim could not have been dealt with in arbitration had the publisher been a member of the regulator. Again, in such a situation, it would not be fair to have a presumption that a particular party should or should not pay the costs, and the general rule on costs should apply. The cross-party agreement has therefore established that the appropriate rule here is for the exception to apply.
In Amendment 18C, my noble friend is seeking clarification about the position of online publishers. The definition of a relevant publisher, as it stands, carefully captures those publications that we believe Lord Justice Leveson intended to be incentivised to join a regulator—namely, the press and sophisticated press-like online activity—and excludes those that he considered should fall outside the scheme, such as small-scale bloggers. This is what lies behind subsections (3) and (4) of our definition of relevant publisher. In striking out these subsections, the effect of my noble friend’s amendment would be to incentivise websites that operate a moderator function or which collate material but do not themselves post it, such as Twitter, Facebook, Yahoo and WordPress. These are not websites that Lord Justice Leveson intended to incentivise and I believe that it would be inappropriate for a regulatory system to do so.
As my noble friend has indicated, Amendment 19A is an attempt to address concerns among small publishers about the potential financial burden of the new system. However, as proposed by Lord Justice Leveson and reflected in the recognition criteria, the new system allows for varying terms of membership between different classes of publisher. It is, therefore, for the industry to determine a varying system of fees which is fair and proportionate and which allows the self-regulator to fulfil that role effectively.
Finally, my noble friend has tabled a number of amendments to Commons Amendment 131, which lists exclusions from the definition of relevant publisher. In Amendment 131C, my noble friend introduces a new exemption from the definition, with the intention to exempt all local and regional online and traditional print titles from the entire scheme of recognition and incentives. The proposed royal charter already sets out to deal with the particular interests of the local and regional press. An outright exemption, such as is proposed here, would allow publishers of local news, read and relied on by many people, to be wholly removed from the new regime being established under the Leveson proposals. While the Leveson report accepted the particular needs of the local and regional press, it did not recommend that these publishers be removed wholesale from the recognition regime.
With Amendment 131D, my noble friend would exclude non-charitable campaigning organisations that publish material that is incidental to the organisation’s aims and objectives. The Government’s definition of a relevant publisher already excludes charitable organisations, which will represent the vast majority of campaigning organisations. A “non-charitable campaigning organisation” would have, first, to be run as a business and, secondly, to be publishing news, opinion or information about current affairs before it would be caught by the Government’s current proposed definition. The concept of a non-charitable organisation is a very broad one and could cover a wide variety of websites or magazines that publish news.
In Amendment 131E, my noble friend seeks to extend the list of exclusions to include small and medium-sized publishers as defined in the Companies Act 2006. We are working on an alternative way of addressing the concern through government Amendment 131BA.
Lastly, my noble friend has indicated that, in contrast to his other amendments, Amendment 131B is more than probing. This amendment would create a significant loophole in the scheme proposed by Lord Justice Leveson. A publisher’s focus may be on events in a country other than the United Kingdom, but that does not change the fact that, in the process of reporting and commenting on such overseas events, people with a connection to those overseas events may be defamed, harassed or otherwise have their rights breached here in the United Kingdom. Provided that the publisher in question is able to join the regulatory scheme if he or she wishes to do so, there is no good reason why the costs and exemplary damages incentive should not apply to that publisher if he or she is sued under English law and in this jurisdiction.
As for the second limb of Amendment 131B, there are two existing protections for those publishers refused membership of a regulator on unreasonable grounds. First, under the recognition criteria in the royal charter, membership must,
“be open to all publishers on fair, reasonable and non-discriminatory terms”,
thereby guarding against such an event. Secondly, if such a circumstance should still arise and a publication face a claim for exemplary damages, there is a requirement within the new clause for a court to take into account,
“whether membership of an approved regulator was available to the defendant at the material time”,
which would protect such a publisher.
I turn to the amendments proposed by the noble Lord, Lord Skidelsky. Amendments 17A and 17F would have the effect of extending the protection of the costs clause to any publisher against which a claim is made. These amendments would extend the ambit of the cost provisions in Amendment 17 beyond those agreed by the three main parties. We have been clear that we wish to cover within a self-regulatory regime those publishers that properly qualify as news publishers. Any attempt to broaden this could lead to unintended consequences, even though the noble Lord’s aim is to encourage the use of low-cost arbitration schemes, which I agree is laudable. Given the terms of the agreement last week, we do not consider these amendments are appropriate.
Amendment 18A removes the words “whether or not” before,
“carrying on with a view to profit”,
in the definition of a “relevant publisher”. This would have the effect of introducing doubt in relation to which publishers are in fact covered because many publishers, particularly traditional print media publishers of newspapers, do not make a profit. The exemption in paragraph 6 of the exclusions schedule already exempts public bodies and charities publishing news-related material in connection with the carrying out of their functions. This is narrower than the breadth of the exemption that is sought here, which, as indicated, could exempt mainstream newspapers.
Amendment 18B seeks to limit the definition of relevant publisher to businesses with a turnover of more than five times the threshold for VAT; that is, £385,000, which is five times the annual threshold of £77,000. I hope that the noble Lord will withdraw this amendment, given the Government’s manuscript Amendment 131BA.
Amendment 131A proposes an amendment to the broadcasting definition to make clear that it is only when broadcasters publish news-related material in the course of their broadcasting function that they fall within the exemption. However, this point is already covered adequately by the operation of the existing provisions. The existing schedule refers to news publications in connection with licensed broadcasting activity, and needs to be read alongside Amendment 18(6), which provides that a broadcaster gets an exemption only in so far as its publication is in its capacity as a broadcaster. So if a broadcaster established a separate news publishing service, not linked to its broadcasting, it would not benefit from the exemption. I think that was the clarification the noble Lord was seeking.
Concern has been expressed that the wording of Amendment 11B would not capture the situation in which a regulated publisher had deliberately concealed information from the regulator, as in that situation the regulator could not be said to have acted in a “manifestly irrational” way, as it would have been unaware of the true picture. We believe that this is not a matter that needs to be provided for in the provisions regarding exemplary damages, nor should it be. It is properly a matter for the regulator’s procedures and we do not think that there will be a problem in practice, for the following reasons.
Where the court becomes aware of new facts that were concealed from the regulator, we believe that it will be open to the court to highlight these in its judgment, and for the regulator to reopen its investigation of the case and reconsider any penalties that it has imposed, or any failure to do so. There is nothing in the provisions relating to the royal charter that would prevent a case being reopened by the regulator in this way, and indeed nothing to stop a victim from bringing those new facts to the attention of the regulator regardless of the court’s intervention.
In any event, there will be a number of very strong incentives on publishers not to conceal information from the regulator. Requirements of a new regulatory system established on a contractual basis are likely to include the need for members to be bound by the terms of their membership to disclose whatever information is reasonably necessary for the regulator to fulfil its functions, and contractual terms preventing non-co-operation or the withholding of information can be built in. Concealing of information could also reflect the failure of governance standards on the part of the publisher, which can be the subject of penalties by the regulator.
Any such behaviour would also raise questions of criminal liability. A publisher who dishonestly keeps secret information that he is contractually bound to give to the regulator, or to a claimant in the context of arbitration, in order to avoid a sanction or paying damages could be guilty of committing a crime under the Fraud Act 2006. That is equally so where the publisher makes a false representation. We believe that it is appropriate and in accordance with Lord Justice Leveson’s recommendations for the powers of the regulator to control any attempt by publishers to conceal information to be established through the contractual terms governing the operation of the new regulatory system. We do not consider that anything needs to be added to this clause to enable that to occur.
Amendment 11C is unnecessary. It seeks to ensure that the new statutory test is not limited by the existing common-law test where exemplary damages are awarded if the defendant effectively balances the advantage to be gained by committing a wrongful act against the likely compensation that he or she would have to pay to the claimant, and decided that it was worth doing. The point of this common-law test was to show the defendant that “tort does not pay”. However, the common-law test is entirely displaced in all “relevant claims” against “relevant publishers” as a result of Commons Amendment 11(4)(b), which makes clear that where Amendment 11 applies, exemplary damages can be awarded “only under this section”. Therefore, exemplary damages cannot be awarded against a relevant publisher in common law and so the “outrageous disregard” test in Commons Amendment 11(6) is the only test that can apply, and there is no need for the amendment.
Amendment 11D would add a subsection to Amendment 11. Amendment 15A makes a consequential change to Amendment 15. This would mean that both regulated and unregulated publishers could be vicariously liable for any exemplary damages awarded against one of their employees. It is well established that a publisher can be vicarious liable in common law to pay compensation for the acts of its employees. That position will not be changed by the Commons amendments. The position is different in relation to exemplary damages. Claims for such damages are very rare; cases in which they are sought for the act of an individual journalist even more so. In fact, we are aware of no cases at all in which exemplary damages have been awarded against a publisher found vicariously liable for the conduct of a journalist.
I understand the spirit in which the amendment is proposed. However, the cross-party talks and the Commons agreed a specific approach to exemplary damages—that exemplary damages would not be available in relation to regulated publishers as an incentive to their joining a voluntary self-regulator. There is one exception to that rule set out elsewhere in the clause—that the court may award exemplary damages against a publisher who has joined a regulator if, in the court’s view, the regulator acted manifestly irrationally in its imposition of a penalty. This amendment would introduce a second exception by allowing that publishers, whether regulated or not, could be held vicariously liable for exemplary damages awarded against journalists. That would go beyond the terms of the cross-party agreement. However, I should be clear about a number of points that I hope will give some reassurance. First, the liability of individual journalists at common law remains as it is now. Secondly, as far as we are aware, a publisher has never been held vicariously liable for an exemplary damages award against a journalist. Thirdly, the new regulator would have the power to fine publishers both for connivance in such activity and for ignorance of it. We think, on the merits, that the approach of the Commons amendment is the right one.
Amendment 12A, if accepted, would mean that in deciding whether to award exemplary damages the court would have to reach a value judgment as to whether the defendant’s reasons for not joining the regulator were themselves objectively reasonable. We do not believe that this would be practicable or appropriate.
Amendment 13A would require the court to take account of the defendant’s means in deciding the amount of exemplary damages to award. Courts can already take means into account and there is no need for the amendment.
Amendments 17B and 17E make two changes to Amendment 17(2) which relate to the costs incentive. First, the amendment excludes relevant publishers which are unable to join a regulator, or which have objectively valid reasons for not joining the regulator, from the costs incentive. Secondly, it imposes an additional requirement on the availability of the first exception to the rule. That exception provides that if arbitration under an approved regulatory scheme has not resolved the case, then the ordinary rules on costs apply rather than the general rule that the defendant does not pay the claimant’s costs at all. The amendment adds a requirement to this exception that the defendant was a participating member of the arbitration scheme itself and not just a member of the regulator. This is inappropriate because it presumes that participation in the arbitration scheme will be an optional extra for members of the regulator. This will not be the case and therefore the amendment is not required. I think that that is another clarification that the noble Lord, Lord Stevenson, asked for.
I turn to Amendment 17J, tabled by the noble Lord, Lord Skidelsky. I can confirm that we do not intend to implement Sections 44 and 46 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 for publication and privacy cases until the new costs protection regime has been introduced. The position is clearly set out in a Written Ministerial Statement of 12 December 2012. The LASPO Act 2012 (Commencement No. 5 and Saving Provision) Order 2013, made on 19 January 2013, made the necessary provision excluding the publication and privacy proceedings from the coming into force of Sections 44 and 46 on 1 April.
We have asked the Civil Justice Council for advice on costs protection and it will report by the end of this month with its recommendations, following which provision for costs protection will be taken forward later in the year. I reiterate that costs protection is a better way forward than allowing the recoverability of “after the event” insurance premiums to continue. Costs protection allows meritorious cases to be pursued at proportionate cost; “after the event” insurance allows cases to be pursued but only at substantially increased cost. In taking this course we are following the recommendations of both Lord Justice Leveson and Lord Justice Jackson before him that access to justice in publication and privacy cases must be at proportionate cost.
In respect of Amendment 19B noble Lords will be aware that the agreement reached at the end of the cross-party talks was that the Freedom of Information Act should not be extended to an independent regulatory body. The talks did, however, agree that further consideration should be given to whether the recognition panel ought to be covered by the Act. The Government’s recent response following post-legislative scrutiny of the Freedom of Information Act reiterates their commitment to extend the Act to a range of bodies performing functions of a public nature using the order-making power in the Act. We are happy to designate the recognition panel using an order under the Freedom of Information Act once the body exists and we are clear about the nature of its functions rather than using primary legislation at this stage. As one who is a very strong believer in the Freedom of Information Act, I hope that the House will accept the assurance that this will be carried out.
In respect of Amendments 19C and 19E, tabled by the noble Lord, Lord Skidelsky, the Government have already announced their intention to consult on the broad range of data protection-related proposals in Lord Justice Leveson’s report. Both these provisions will be included in this.
Amendments 38A and 38B change the timing for commencement of the provisions on exemplary and aggravated damages and provide for these to come into effect immediately upon the sealing of the royal charter. That would immediately put all relevant publishers at risk of an exemplary damages award, whether or not they wished to become regulated. This is because these amendments allow no time at all for the press to present proposals for a regulatory body to the recognition body for approval. The Government do not believe that this represents a reasonable or practical approach and cannot support this amendment.
I turn to Amendment 131F in the name of the noble Lord, Lord Stevenson, which introduces a new exemption from the definition of “relevant publisher” for small blogs. This amendment would have the effect of introducing doubt in relation to which publishers are in fact covered because many publishers, particularly traditional print media publishers of newspapers, do not make a profit and have no expectation of doing so. Concepts of turnover and profit are therefore difficult elements to incorporate into a publisher test without excluding genuine online news publishers operating a business. I hope that the noble Lord will accept that the Government’s manuscript Amendment 131BA deals with his point, at least for now. As I have indicated, this amendment is without prejudice to further consideration of the issue of small blogs before the Bill goes to the Commons.
I return to the Government’s proposals. When Lord Justice Leveson published his recommendations in November, after his extensive inquiry into the culture, ethics and practice of the press, he extolled politicians from all sides to work together to find cross-party agreement on their implementation. We have in front of us a set of proposals central to delivering Lord Justice Leveson’s vision of a voluntary, incentive-based and self-regulatory system for the press, with that crucial cross-party agreement. I believe that the exemplary damages and costs clauses create a credible and watertight incentive system, providing a strong incentive for relevant publishers to design and become members of a press self-regulatory body, as intended by Lord Justice Leveson.
We have a set of provisions that implements Lord Justice Leveson’s recommendations, that strikes the right balance between a tough system of incentive-based self-regulation and protecting this country’s cherished freedom of expression, and that draws the right line between publishers that are in the scheme and those that are out of it. As politicians, we have a duty to act in response to the press scandals of the past and to Lord Justice Leveson’s recommended solutions. This is our opportunity to do so.
I commend the Commons amendments to the House together with the three government amendments and invite the noble Lords, Lord Lucas, Lord Skidelsky and Lord Stevenson, not to press their amendments. I believe that this will be the best way forward. I realise that that is a very detailed reply and that noble Lords will wish to study it.
Before my noble friend sits down, and I congratulate him on the legislative equivalent of a marathon, I ask him whether he sympathises with the view that to have 44 important and often complex amendments put together in one group—the third group today contained 85 amendments —is not conducive to the quality of scrutiny that the Bill deserves. I mean no disrespect to him.
I appreciate my noble friend’s intervention. At one stage during my speech I began to have sympathy with Chancellors of the Exchequer. In many ways, of course, this is not an ideal situation. On the other hand, if you take into account Baldwin’s cri de coeur against the press—was it in 1932 or 1933?
God bless you, sir. This is the great value of this House; you ask a question and you get an authoritative answer. Baldwin’s cri de coeur was 80 years ago. I was thinking while the noble Lord, Lord Black, was speaking that it is 20 years since David Mellor warned the press about the last chance saloon, and it is 10 years since I was told from this Dispatch Box that a very minor amendment was the slippery slope to a state-controlled press, so we have not been discussing entirely new and fresh issues.
We have done what we have quite miraculously, I think, because it has needed a leap of faith and a generosity of spirit from all three parties. The Prime Minister, the Deputy Prime Minister and the Leader of the Opposition have come together and given national leadership on an issue that probably would never have got through in any other way. This has its flaws but is still a way forward that has eluded Parliament, as I say, for 80 years.
As one who has had the good fortune to watch the traffic of the cross-party talks, and who has a strong view that my noble and learned friend Lord Wallace of Tankerness is in line not for a knighthood but for a sainthood for his patience in those talks, I assure the noble Lord, Lord Skidelsky, that all three parties have shown a robust individualism in the talks but, thank goodness, have also shown the generosity of spirit that has made agreement possible. If we can get the balance right between clear, vigorous discussions and generosity of spirit, we will get this done. I do not know whether we are getting a fish in the boat or a ship to port but, whatever it is, I recommend it to the House.
Before my noble friend sits down, I have one question. He will remember vividly that the noble Lord, Lord Puttnam, moved an amendment to the Defamation Bill on Report, which this House carried. My noble friend anticipated at Third Reading that that would be dealt with in due course by an agreement that would supersede the amendment. The passage of time has fulfilled his prophecy, and I am sure we are all glad of that. I am assuming that now the Defamation Bill will be able to proceed, as it merits, to Royal Assent by the end of the present Session.
Noble Lords cannot imagine the tingle in my shoulder blades when I realised that the noble and learned Lord, Lord Mackay, had risen to his feet. I thought, “My God! What question of law is he going to ask me to pronounce on?”. I am very pleased to understand that there is all-party agreement and that after the due process of whatever they do down the other end the Defamation Bill will be returned without the Puttnam amendment, although when the history of this saga is written, it will be said that the Puttnam amendment did its job. I am not so bitter about it, especially since the Bill is coming back without it.
My noble friend has been suspended above his seat for a longer time than the Maharishi Yogi ever achieved. At risk of prolonging that, before my noble friend sits down, will he confirm, in order that he might get his supper this hour rather than next, that the matters that the noble Lord, Lord Stevenson, raised in his speech will be under active consideration in the Commons before this Bill returns to this House?
I will look at what the noble Lord, Lord Stevenson, raised, but I warn the House against the idea that what is going back to the House of Commons is a reopening of these discussions. We have said what we want to see passed, we have asked noble Lords to withdraw. I have explained. I do not want to mislead the House. The Commons will be able to consider only their amendments that have been amended by this House. For example, if we do not today amend Commons Amendment 14, that amendment will no longer be in play during the next round of ping-pong. We are not sending the Bill back to the Commons for another go. Quite frankly, that would be extremely dangerous. My reply was carefully crafted by many hands far more expert than mine in a way that I hope gives the assurances that were sought in raising the amendments, not least those tabled by the noble Lord, Lord Skidelsky, However, the way that ping-pong works keeps the debate very tight and I do not want to mislead the House that it allows a rerun of negotiations on this. To even suggest that would be a bad mistake.
My Lords, I am very grateful to the Minister for all the time he has taken on my amendments. I would quarrel with him in his interpretation of how ping-pong works. I spent time talking to the clerks at this end and in another place before I put down my amendments, and my understanding is that the other place has very wide powers to suggest amendments in lieu; it is not restricted to individual amendments. The Government’s amendment on small bloggers will allow amendments to be made at any other position within this group of amendments. I may be misquoting the clerks—I am quite capable of that—but that was what entered my brain as a result of the conversations I had before I put down my amendments. In particular, I should be sad if the conversations that I started on my Amendment 18C were not to have any result.
My noble friend doubtless remembers what a difficult performance a three-legged race is on school sports day. He has had to indulge in a four-legged race today with his left leg tied to the Labour Party and his right leg tied to the Conservative Party, and he has been finding it extremely difficult. He has provided an excellent illustration of the problem, dealt with by my noble friend the Leader of the House at Questions today, of reading out a pre-prepared speech when what had been said was something completely different. I said in my address to Amendment 18C that I felt that the way in which the Government had drafted this clause would allow large news organisations to create structures that were in no way subject to the Bill. My noble friend did not address that at all in his reply, because it had been pre-prepared and did not allow him to reply to the remarks that I had made. I particularly feel that the Government have not understood the way in which the world is moving on the internet, and have not allowed for the sort of structures that seem to be arising even now, let alone those that will come.
I hope that the Government will take advantage of the freedom that I believe that they have to think through the wording and ensure that they are giving themselves the powers that they wish. To come back to what my noble friend Lord Black of Brentwood said, we are trying to achieve a regulator here that will be participated in, agreed and effective. I am sure that another look at the questions that I have raised with Amendment 11A would consider whether introducing uncertainties in this way in the position of someone who registers is really the best way of getting people to sign up. Other than that, however, I am grateful for the answers that my noble friend has given. I beg leave to withdraw my amendment.
Amendment 11A, as an amendment to Commons Amendment 11, withdrawn.
Amendments 11B to 11D, as amendments to Commons Amendment 11, not moved.
Motion on Amendment 11 agreed.
Motion on Amendment 12
Amendment 12A, as an amendment to Commons Amendment 12, not moved.
Motion on Amendment 13
Amendment 13A, as an amendment to Commons Amendment 13, not moved.
Motion on Amendment 14
Motion on Amendment 15
Amendment 15A, as an amendment to Commons Amendment 15, not moved.
Motion on Amendment 16
Motion on Amendment 17
Amendments 17A to 17C, as amendments to Commons Amendment 17, not moved.
Amendment 17D (as an amendment to Commons Amendment 17)
17D: Line 13, after “could” insert “not”
Amendment 17D, as an amendment to Commons Amendment 17, agreed.
Amendments 17E to 17G, as amendments to Commons Amendment 17, not moved.
Amendment 17H (as an amendment to Commons Amendment 17)
17H: Line 27, leave out subsection (4)
Amendment 17H, as an amendment to Commons Amendment 17, agreed.
Amendments 17J, as an amendment to Commons Amendment 17, not moved.
Motion on Amendment 17, as amended, agreed.
Motion on Amendment 18
Amendments 18A to 18C, as amendments to Commons Amendment 18, not moved.
Motion on Amendment 19
Amendments 19A to 19E, as amendments to Commons Amendment 19, not moved.
Motion on Amendment 20
20: Insert the following new Clause—
“Restraint orders and legal aid
(1) Section 41 of the Proceeds of Crime Act 2002 (confiscation in England and Wales: restraint orders) is amended in accordance with subsections (2) to (6).
(2) After subsection (2) insert—
“(2A) A restraint order must be made subject to an exception enabling relevant legal aid payments to be made (a legal aid exception).
(2B) A relevant legal aid payment is a payment that the specified person is obliged to make—
(a) by regulations under section 23 or 24 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, and
(b) in connection with services provided in relation to an offence which falls within subsection (5),
whether the obligation to make the payment arises before or after the restraint order is made.”
(3) In subsection (3)—
(a) after “subject to” insert “other”, and
(b) omit paragraph (c).
(4) In subsection (4), for “But an exception to a restraint order” substitute “But where an exception to a restraint order is made under subsection (3), it”.
(5) After subsection (5) insert—
“(5A) A legal aid exception—
(a) must be made subject to prescribed restrictions (if any) on—
(i) the circumstances in which payments may be made in reliance on the exception, or
(ii) the amount of the payments that may be made in reliance on the exception,
(b) must be made subject to other prescribed conditions (if any), and
(c) may be made subject to other conditions.
(5B) Any other exception to a restraint order may be made subject to conditions.”
(6) After subsection (9) insert—
“(10) In this section “prescribed” means prescribed by regulations made by the Secretary of State.”
(7) In section 459 of that Act (orders and regulations)—
(a) in subsection (4)(a), after “section” insert “41(5A),”, and
(b) in subsection (6)(a), after “section” insert “41(5A),”.”
My Lords, I beg to move that this House do agree with the Commons in their Amendment 20. I shall also speak to Amendments 21 to 23, 27, 30, 39 to 41, 45, 48, 50, 134, 135 and 139. This group of amendments deals with two aspects of the operation of the Proceeds of Crime Act 2002. Commons Amendments 22, 23, 39 to 41, 50, 134 and 135 seek simply to return the reach of the civil recovery scheme under the Proceeds of Crime Act to the position it was believed to be in before last year’s Supreme Court judgment in the case of Perry v SOCA. The amendments to the 2002 Act do not introduce any new policy and we are certainly not breaking any new ground.
The amendments mean that the courts will again be able to make civil recovery orders against property anywhere in the world, provided that there is a link back to this jurisdiction. For example, the High Court of England and Wales will be able to make an order in respect of a Spanish villa bought by a criminal who is resident in England, or with money made from unlawful conduct committed in England.
The amendments also make it clear that requests can be made to other civil investigations where the evidence is located overseas to help facilitate the civil recovery process. These Commons amendments also put beyond doubt that investigation orders can be made against persons as well as property to assist in identifying further property which may become subject to a civil recovery order.
There is one difference between the restored Proceeds of Crime Act and how civil recovery operated prior to the Perry judgment. In the absence of a legislative consent Motion, the new schedule inserted by Commons Amendment 139 provides that the relevant amendments to the Proceeds of Crime Act do not extend to Northern Ireland. This means that for many offences the civil recovery regime in Northern Ireland does not have the international reach of the civil recovery regime in the rest of the UK. This is regrettable, especially for the people of Northern Ireland. However, as with the National Crime Agency, which we debated earlier, we have taken a series of order-making powers to enable us to extend the provisions to Northern Ireland at a later date. Of course, any extension will require consent from Northern Ireland for matters that are within the legislative competence of the Northern Ireland Assembly.
The second issue addressed by the amendments relates to the provision of publicly funded legal aid to wealthy individuals whose assets are restrained under the Proceeds of Crime Act. The 2002 Act prevents restrained funds being released to a defendant for legal expenses in relation to the offences to which the restraint order relates. Prior to the Proceeds of Crime Act, there was a risk that individuals might recklessly dissipate assets through lavish spending on their defence in order to try to secure an acquittal at any cost. However, this has led to a public perception that rich offenders with significant restrained assets are receiving vast sums of free legal aid when they could afford to make a contribution to their defence.
Since the Proceeds of Crime Act was introduced, a system of means testing for legal aid has been introduced for all Crown Court defendants. Those who can afford to pay some of or all their legal aid costs are required to do so. While anyone charged with a criminal offence and facing imprisonment or loss of livelihood is entitled to legal aid, I think the whole House would agree that if the defendant can pay some of or their entire legal bill, they should. After all, as we ask people on modest incomes to pay something towards their defence costs, it is only fair and reasonable that we ask millionaires to do so.
Commons Amendments 20, 21 and 27 amend Section 41 of PoCA to allow payment of a contribution towards, and up to the full amount of, defendants’ publicly funded legal aid costs. The detailed mechanism of how this will operate in practice will be set out in regulations subject to the affirmative resolution procedure. In framing such regulations, we will take into account the compensation paid to victims and the funding of further asset recovery work by law enforcement and prosecutors. We can already freeze criminals’ assets to make it easier to recover these ill gotten gains and compensate victims, but that often leaves the state picking up their legal bills, even if the offender has plenty of money to pay them as well. I hope that the whole House will agree that our aim should be to increase the overall amount of money being taken from criminals. The new clauses inserted by Commons Amendments 20 and 21 will enable us to do just that. I beg to move.
My Lords, I will make a few comments, in particular in relation to the civil recovery process. The Government are right, following the Perry judgment, which left a huge hole in our powers to recover criminal assets, to bring forward the matter and put it on a legislative footing. However, we come back to the very strange position in Northern Ireland, which was confirmed by the Minister here and by Jeremy Browne, the Minister in the other place.
The primary purpose of the schedule is to ensure that it is not possible to make a civil recovery order against property located outside the UK if the unlawful conduct occurred in Northern Ireland but the property is located outside Northern Ireland. This is a strange position. If somebody lives in Birmingham, Manchester or London and they stash their ill gotten gains in another part of the world such as Dublin or Spain, there is a legislative remedy to seek an order to have the funds returned. However, if somebody lives in Belfast, Armagh or another part of Northern Ireland and they have their ill gotten gains just a few miles away across the border, they are completely outside the remit of the legislation of this country. Criminals in Northern Ireland will be able to invest their criminal gains across the border in the Republic of Ireland, just a quick drive down the motorway, with complete impunity as the courts will have no way of seizing those assets. I find that a shocking state of affairs to face.
I took some time yesterday and on Google maps followed the border along. I always think of the town of Belleek where, if you walk down the high street, your mobile phone signal beeps from one side to the other because the border is so close that it is switching from the Irish server to the UK one. If you follow the border along, it is very difficult. A criminal could buy land in that area. We do not assume that everyone in Northern Ireland is going to do this, but criminals will know that if they live in Northern Ireland but store the proceeds of their crime just a few miles across the border, they are going to be outside the remit of legislation and nothing can be done. I have to agree with Ian Paisley MP, who said in the other place that,
“the situation gives gangsters and criminals in Northern Ireland who are involved in serious and organised crime a free rein in part of the United Kingdom, and that must be addressed”.—[Official Report, Commons,13/03/2013; col. 373.]
Another worry that the Government must have is criminals moving to Northern Ireland because it will make it easier for them in that situation. It really is a shocking state of affairs.
I heard what the Minister said earlier and I understand his view that it is right to leave all the negotiations to David Ford. However, the point was made by the MP and others that this impacts on the United Kingdom as a whole and on places other than Northern Ireland. I feel that David Ford, for all the efforts he has made, deserves a bit more support from British Ministers in talking to the political parties, Members of the Assembly and Ministers in the Northern Ireland Executive to try and reach a solution. It damages us all if people can move to Northern Ireland to store their ill gotten gains from anywhere else in the world and nothing can be done about it.
I thank the noble Baroness. She has raised an issue that I have identified already. I should reassure her that the Government are giving all the support to David Ford that he would ask for. However, in many ways the solution to this problem clearly lies with the people of Northern Ireland because it is the Northern Ireland Assembly that controls the Northern Ireland Executive. Indeed, this is long term an unacceptable state of affairs because of the very difficulties referred to by the noble Baroness, Lady Smith. We are well aware of it. That is why we have tabled order-making powers. As with other measures where we have not been able to get a legislative consent Motion, we are making every effort successfully to deliver a legislative consent Motion. We will then be able to ensure that these particular powers apply to Northern Ireland. There are dangers if they do not do so.
My Lords, I started off by saying to the noble Baroness that we have given all the help that we believe will be helpful to getting a solution to this problem. We would do nothing other than do all we can to ensure that we get the legislative consent Motion which a number of measures under the Bill require to bring Northern Ireland fully into the provisions of the legislation that is being provided for in the Bill.
Motion on Amendments 21 to 23
Motion on Amendment 24
24: Insert the following new Clause—
Schedule (Extradition) (extradition) has effect.”
My Lords, I beg to move Amendment 24 and will speak to Amendments 25, 49, 136. I could use the wording that I have here, which is that I move that the House do agree with those amendments.
This group of amendments makes important changes to our extradition and deportation arrangements. Extradition and deportation are, of course, two entirely distinct legal processes and should not be confused. The fact that they are both being dealt with together in this group is simply for convenience.
Commons Amendments 24 and 136 amend the Extradition Act 2003 to provide for a new forum bar to extradition, to remove the Home Secretary’s obligation to consider human rights issues in extradition cases to non-European Union member states and to address several technical deficiencies in the 2003 Act in regard to Scottish devolution matters. Part 1 of the new schedule to be inserted into the Bill by Amendment 136 will amend the 2003 Act by requiring the judge at an extradition hearing to consider the issue of forum—that is, where the offence should be prosecuted. The Government’s decision to introduce a forum bar to extradition responds to the widespread concern within Parliament, as well as among the public more generally, that insufficient safeguards are currently built into cases of concurrent jurisdiction.
As noble Lords may be aware, there is an existing uncommenced forum provision in Schedule 13 to the Police and Justice Act 2006. This provision has not been commenced for good reason; simply put, we do not believe that it is fit for purpose. It would be cumbersome in practice and lead to wholly unacceptable delays in the extradition process. Instead, the Government’s forum amendments to the 2003 Act introduce a very carefully constructed provision, which has been designed to provide greater openness and scrutiny in relation to the question of where the most appropriate jurisdiction for trial is for those facing the possibility of extradition, while minimising delays as far as possible.
Our forum amendments allow a judge to bar extradition, on forum grounds, if the extradition would not be in the interests of justice. In considering whether to bar extradition, a judge will have to consider whether a substantial measure of the alleged offences occurred in the UK and a list of other facts such as where the most harm occurred, the interests of any victims, the location of witnesses and the person’s connections with the UK.
In cases where the prosecutor has taken a formal decision not to prosecute in the UK, because there is insufficient admissible evidence available or because it is not in the public interest for such a prosecution to take place, a prosecutor’s certificate can be issued to that effect. This will prevent extradition being barred on forum grounds. The purpose of the prosecutor’s certificate is to ensure that the subject of the extradition request, who may be wanted for a very serious offence, does not escape prosecution altogether because a domestic prosecution is not possible, but the judge decides none the less to bar extradition on forum grounds. The amendments point to particular circumstances where a prosecutor’s certificate may be appropriate: namely, in cases where there is sensitive material which cannot be disclosed in open court because, for example, doing so would compromise national security or the investigation of terrorism or serious crime, or in cases where it is not in the public interest for such a prosecution to take place.
I believe that these measures will make our extradition arrangements more open and transparent and will ensure that, in cases of concurrent jurisdiction, due consideration will be given by the prosecutors to any decision about whether or not a person could be prosecuted in the UK. Under these new arrangements, prosecutors will know that they will be called upon to justify any decision in front of a judge in open court, not behind closed doors, as happens at the moment, and that any decision to issue a prosecutor’s certificate is judicially reviewable in the High Court.
Part 2 of the new schedule will transfer the discretion to consider final human rights representations from the Home Secretary to the courts. At present, the Home Secretary is obliged to consider human rights issues raised after a person has exhausted their appeal rights because she is a “public authority” for the purposes of the Human Rights Act 1998. By specifically preventing the Secretary of State considering whether extradition is compatible with the ECHR and transferring examination of such matters to the courts, the amendments will strike a better balance between two competing considerations: on the one hand, ensuring late human rights issues which are deserving of the court’s attention are properly considered and, on the other hand, ensuring that people are not able to abuse the system and delay extradition endlessly by means of raising last-minute, specious human rights points which can then be the subject of judicial review.
It is legitimate for the Home Secretary to play some role in the extradition process and that will remain the case. Ministers will still sign an extradition order for Part 2 countries: that is, those countries not covered by the European arrest warrant, to confirm that there are no statutory bars to extradition once it has been approved by the district judge. This covers issues such as the death penalty, ensuring people are tried only for the charges on which they have been extradited, onward extradition from a third country and transfers from the International Criminal Court. These are areas where diplomatic assurances are occasionally required and it is right that Ministers, rather than the courts, should continue to deal with these.
Part 3 of the new schedule makes provision in respect of Scottish extradition proceedings. In extradition proceedings in England and Wales, it is possible for a point of law to be appealed to the Supreme Court. In extradition proceedings in Scotland, the final court of appeal is the High Court of Justiciary. There is one exception to this in that there can be an appeal to the Supreme Court against the determination of a devolution issue raised in Scottish extradition proceedings. Devolution issues include questions as to whether the Scottish Ministers have acted in a way that is incompatible with the European Convention on Human Rights or EU law and so can arise in Scottish extradition proceedings. However, the 2003 Act does not take account of devolution issues in Scottish extradition proceedings being appealed to the Supreme Court. The Supreme Court has expressed concern that this could create problems in certain cases about the power to detain a person pending the outcome of an appeal to the Supreme Court and the time limit for extraditing a person following such an appeal.
The amendments provide that where the authority or territory that issued the extradition warrant seeks to appeal a devolution issue to the Supreme Court, the court has power to remand the person whose extradition is being sought in custody or on bail. Where the person is remanded in custody, the court may grant bail at a later date. The amendments ensure that the court has this power until the person is extradited or the extradition proceedings are discharged. They also set up the time limit for extraditing a person where a party to the proceedings seeks to appeal a devolution issue, raised in Scottish extradition proceedings, to the Supreme Court. Part 3 of the new schedule essentially ensures that a consistent approach is taken in the 2003 Act to appeals to the Supreme Court in extradition proceedings.
I turn to the matter of deportation in national security cases. Commons Amendments 25 and 49 limit the circumstances in which national-security-related deportations attract in-country rights of appeal on human rights grounds. The amendment would allow the Home Secretary to certify that removal pending the outcome of the substantive appeal would not be in breach of the appellant’s rights under the European Convention on Human Rights. The Home Secretary could make such a certificate on the grounds that temporary removal would not result in the individual facing a real risk of serious, irreversible harm, or that the underlying human rights claim was clearly unfounded. The certificate would render any in-country appeal against deportation out-of -country. The test of serious and irreversible harm is that used by the European Court of Human Rights when deciding when to issue a direction to suspend removal from a country prior to its substantive consideration of appeals against deportation or removal. Appellants will have a right to apply to the Special Immigration Appeals Commission for the certificate to be set aside. The commission would review such an application fairly but expeditiously.
The effect of a certificate made under this provision is obviously not to prevent an appeal. It is only to change the location of the appellant during that appeal. The change is not unprecedented. Out-of-country appeals already happen in relation to appeals against deportation which are certified under Section 94 of the Nationality, Immigration and Asylum Act 2002. Those certificates are issued when the underlying human rights claim is assessed to be “clearly unfounded”. As such the courts are well used to reviewing decisions that a human rights claim is clearly unfounded; and appeals are frequently pursued from overseas. It is the Government’s view that bringing an appeal from overseas does not of itself handicap the appellant’s ability to argue his or her case on appeal.
As national security deportation cases often involve human rights claims, where it is alleged individuals may face the risk of torture—or worse—on return, there are significant constraints on our ability to deport before an appeal is heard in the UK. The Government only ever take deportation action when they consider it lawful to do so and would not deport if they thought there was a real risk that the person would be tortured on return. Nevertheless, this amendment will support our ability to deport in future cases, in particular where individuals raise less fundamental human rights issues such as the right to a private life or where their human rights claim is unfounded. For example, a person may suffer no serious, irreversible harm in being away from their family for a few months while their substantive appeal is determined. The person will still have an appeal and if they win will be able to return to the UK. Having the individual out of the UK pending the appeal could be of real benefit in the context of the relatively small number of national security deportation cases.
This measure is one of a number of reforms being explored by the Home Office and the Ministry of Justice to support the Government’s ability to deport foreign national terrorists more quickly than at present. I hope that the House will agree that these are sensible changes that will enhance the fairness and transparency of our extradition procedures and the effectiveness of our deportation arrangements.
Amendment 24A (as an amendment to Commons Amendment 24)
Moved by Lord Rosser
24A: Line 2, at end insert—
“(1) The Secretary of State shall commission a review of this section, to consider in particular improvements to its functioning in relation to inter alia—
(a) the speed of extradition procedures;
(b) existing agreements with category 2 territories as designated under Part 2 of the Extradition Act 2003;
(c) future agreements with territories that would be designated under Part 2 of the 2003 Act.
(2) A review under this section must report to both Houses of Parliament no later than 3 years following enactment.”
Lord Rosser: My Lords, I shall speak also to the other government amendments in the group.
This part of the Bill is an example of how not to legislate. We have been faced with some 18 proposed new clauses and significant new provisions since the Bill’s Second Reading in this House. Some of the changes, such as Amendments 24 and 136 on extradition, which we are considering now, were introduced by the Government on the final day of the Committee stage in the other place, despite the Government having announced their intention last October to go down the road of a forum bar. The impact of this late and significant change to the Bill was then compounded by there being no scrutiny of these late changes on Report in the other place because they ran out of time. This is no way to make substantial changes to our extradition arrangements.
Almost inevitably, these amendments raise a number of issues. On the one hand, they introduce a forum bar, presumably with the purpose of devolving responsibility to the courts for a decision on whether to bar extradition on the basis of the interests of justice. On the other hand, the amendments grant the prosecution a veto over that decision if it decides not to bring a prosecution in the UK. The question then for the Government is to clarify what will change materially. If the purpose of the forum bar is to improve the transparency of decisions by allowing the courts discretion to determine whether extradition is in the interests of justice, rather than a decision negotiated and made behind closed doors, why is the prosecution being given what is in effect a veto?
Under the procedure set out in Commons Amendment 136, a judge would be prevented from deciding on a forum bar if prosecutors decided not to prosecute the individual in the UK on the basis of insufficient evidence or public interest, if they were concerned that a prosecution might risk the disclosure of sensitive material of a nature that might put at risk other cases, or on the basis of national security or our relationship with foreign partners. Those are certainly relevant considerations for any prosecution, but the purpose of a forum bar is to take these decisions away from the prosecution, as proposed new Section 19B actually requires the judge to consider a very specific list of matters when deciding whether the interests of justice test has been met, including,
“any belief of a prosecutor that the United Kingdom … is not the most appropriate jurisdiction in which”
the individual should be prosecuted, the availability of evidence for prosecution in the UK, and the desirability of the disclosure of evidence in UK courts. Why then are the Government including this prosecution veto? Is it because they do not trust the courts’ discretion over these matters? Is it because they are concerned that without the veto the introduction of a forum bar might undermine the extradition agreements negotiated with other territories on the basis that it would add an additional significant element of uncertainty over whether the Government could successfully seek extradition of an individual from the UK to face trial?
When the forum bar was proposed in 2006 as an amendment to the Police and Justice Bill, my noble and learned friend Lady Scotland of Asthal, then Home Office Minister, stated in a letter to noble Lords:
“It is also important to stress again that none of the UK’s bilateral treaties allow extradition to be refused on the basis of forum”.
She went on to say:
“The House should be in no doubt about the consequences of the proposed amendment. The UK’s judicial co-operation system with the rest of the world would be seriously damaged, the UK would be in immediate breach of a range of bilateral treaties and, perhaps most importantly, the international reputation of the UK would be significantly affected”.
As there could be more than one legal opinion on the issue, can the Minister say whether it is still the view of the Home Office that the introduction of the forum bar would put us in breach of existing treaties, as was the case in 2006? Can the Minister also say whether it is the belief of the Home Office that it will need to renegotiate any of our existing agreements as a result of the proposed changes to our extradition arrangements?
In 2010, the Government commissioned an independent review of the UK’s extradition arrangements by Sir Scott Baker and David Perry QC. It concluded that,
“forum bar provisions should not be implemented”,
on the basis that there was no clear evidence to suggest that the present arrangements were causing injustice. The review raised the concern that the introduction of a forum bar would create long delays in the extradition process and give rise to a whole host of satellite legislation, increasing both the cost and length of such processes, which would not be in the interests of justice, the victims or, least of all, the individual accused. We must ensure that the new procedures and arrangements do not lead to the sort of lengthy delays that we have seen in the cases of Gary McKinnon and Babar Ahmad. In that regard, one notes that under the new forum bar procedure, the prosecutor’s certificate effectively applying a veto is judicially reviewable, but only against the tests set out in the Bill.
This is why we propose, with our amendment to Amendment 24, that the Government should conduct a full review of the new forum bar procedure after no more than three years following enactment to assess how well it is or is not functioning and, specifically, what effect it has had on the speed and efficiency of extradition arrangements and decisions and the impact on our existing extradition agreements, as well as our ability to negotiate further agreements. That review must result in a report to both Houses of Parliament. Clearly, it is in the interest of all parties, and in our national interest, that we have effective and just extradition procedures that ensure that criminals cannot use the UK as a safe haven and equally cannot evade facing justice for crimes committed in the UK by fleeing abroad.
I now refer to Commons Amendment 25 which concerns deportation. It seeks to speed up the deportation process and to avoid a succession of appeals that suspend deportation and undermine the purpose of the decision to deport an individual on grounds of national security. The new clause would allow the Secretary of State to remove the in-country right of appeal against the deportation on national security grounds where she can certify that either the individual would not face the risk of serious irreversible harm or where the whole or part of any human rights claim made by the person is clearly unfounded. That raises a couple of points in relation to this test. As the Minister has said, the test of serious irreversible harm is one that was established in a European Court of Human Rights judgment. However, the other test, that any human rights claim is “clearly unfounded”, is less clear. Can the Minister explain what exactly the Government mean by this? What sort of claims may fall within this definition?
In addition, the new clause provides,
“the grounds upon which a certificate”—
that is a certificate that gives no in-country right of appeal—
“may be given under subsection (2B) include (in particular)”.
In other words, it allows the Secretary of State to issue a certificate against suspensive deportation on grounds that are not exclusive to the two tests relating to serious irreversible harm or whole or part of any human rights claim being clearly unfounded. That must be the inference of the words “in particular”—that there is something in addition to what is listed. It would be helpful if the Minister could clarify what other grounds could be used by the Secretary of State in addition to the two outlined in the Commons amendment and whether this means that suspensive appeal rights could be prevented even where the individual would face the risk of serious irreversible harm because apparently there might be other undisclosed reasons on which it could be declined.
There are also other questions on the practicalities of this proposal. Will the Government be taking steps to ensure that an individual so deported will physically be able to appeal and will not be prevented from doing so by the authorities in the country concerned? Will the Government be advising a person about to be deported of their right of appeal and how and to whom such an appeal should be made? Will the Government be advising a person appealing how legal representation can or will be arranged, and will they ensure that an individual appealing will not be stopped from communicating with their legal representative?
I hope that the Minister will respond fully to the points I have raised on the four Commons amendments and that the Government will give serious consideration to our Amendment 24A and the proposal for a review of this new procedure on extradition,
“no later than 3 years following enactment”,
when there will have been sufficient time to see how well or otherwise it is working. I beg to move.
My Lords, perhaps I may speak to Amendment 24B, which is included in this group. Earlier today I suggested that Commons Amendments 24 and 136 should be postponed for the reason that these amendments, unlike all the others we have been discussing today, were not considered at all on the Floor of the House of Commons, and are only being considered at this very late stage in this House—one that is, let me say, barely full. This is not the way to legislate. It is also so unnecessary.
When I said earlier today that these two amendments should be postponed, I think I made it clear that the Government should withdraw these two amendments now and bring them back early in the next Session of Parliament when we can debate them properly both in the other place and here. I cannot see what the Government can possibly lose by taking that course. Yes, there would be some delay, but as it is seven years since we have had a forum bar on the statute book and it has never yet been put into force, I find it impossible not to ask what the hurry is now. Although there would be a delay of a few extra months, it would not make all that much difference, and at least it would mean that we had done justice to these very important amendments, which now we shall not be able to do.
I agree with almost every single word of the noble Lord, Lord Rosser, in his excellent speech, but he will not actually expect me to support the detail of his amendment. That is because we already have the Scott Baker review, which was published just under two years ago. What we ought to be doing today is implementing that review rather than legislating in its teeth and asking for another review in three years’ time. I repeat, what a way to legislate: to appoint a group like that led by Lord Justice Scott Baker to go into this question and then to ignore what it said. I believe that I am right in saying that the noble Lord, in proposing his amendment, did not once refer to Lord Justice Scott Baker’s report. Again, what a way to legislate.
I turn to the merits of the new forum clause and ask how it would fare judged against the Scott Baker report. I can say that it has all the defects of the 2006 forum clause, which was so strongly criticised by Lord Justice Scott Baker, with some more defects besides. The basic mistake is to believe that the question of where a defendant should be prosecuted when there are different countries claiming jurisdiction should be decided by a judge, on the grounds, so it seems, that that will produce a fairer result. I can understand that view but, in my strong opinion, it is not the way ahead. Where there are competing jurisdictions, the question can only sensibly be decided by agreement between the two competing jurisdictions. One of the main considerations in these cases must always be where the bulk of the evidence lies on which the defendant is to be convicted, if he is to be convicted. That is essentially a question for the prosecuting authorities. They will have all the material at their disposal. How is that material to be put before the judge? Are they to appear before the judge and argue the toss before him—is that what is proposed? If it is to be a judge, why should it be a judge in England rather than a judge in the requesting state? At pages 222 and 223 of the report, the authors give nine distinct reasons why a forum bar is not the way ahead. I would have liked to have heard the noble Lord’s answer to each one of those reasons. However, I will content myself with simply reading their conclusion, at page 228:
“However, in our firmly held view the issue of forum is better decided by the prosecuting authority than the court. A decision about where a case should be tried is par excellence a prosecutorial decision, as is a decision whether it should be prosecuted at all: the prosecuting authority will be familiar with the detail of the case, the available evidence and the viability of proceeding in one jurisdiction rather than another”.
That conclusion should have been accepted by the Government but it has not been.
That is only one of the reasons given in the Scott Baker report. Another, which I think the noble Lord has already touched on, is that it would necessarily generate satellite litigation. I will read what the report says the district judges, the people who decide these cases, had to say on that question:
“The evidence of the District Judges dealing with extradition cases was strongly to the contrary”—
in other words, against a forum bar. The report continues:
“They cautioned that if brought into force the sections would generate litigation and that it would be very difficult to control the evidence of the party seeking to resist extradition. For example, it will be contended that wide ranging disclosure of documents is necessary when an ‘all the circumstances interests of justice’ test has to be met”.
One of the many reasons why the 2006 forum bar was never brought into force was that it was thought to be too complicated. If the 2006 Act was complicated, how much more complicated is this forum provision, where we have prosecuting certificates of the designated prosecutors being questioned, under proposed new Section 19E in Amendment 136, before the High Court in judicial review proceedings? How is that going to speed up the process of extradition, which is the whole object of these proceedings? It is madness to think that it will; it will not.
Another reason that has been given—this is the last that I shall mention—is that enacting these provisions will automatically put us in breach of our international obligations. That is certainly a point which was carefully dealt with by the noble Lord, Lord Rosser, and I agree with what he said. In respect of category 1 countries, for example, we already have a system for deciding between two countries where there is a dispute as to where the proceedings should take place. That is known as Eurojust, and it is a system that is operating now and without any difficulty. If we pass a forum bar, we will have to opt out of Eurojust. Are we to be the only country to do so? No other country, so far as I know, has suggested anything similar to a forum bar.
What about the category 2 countries? Exactly the same applies as when we had existing extradition arrangements. Why should other countries which are not in Europe be satisfied with the decision of our court about which is the most suitable jurisdiction for the defendant to be prosecuted? Those are reasons which were given by the noble and learned Baroness, Lady Scotland, and they were absolutely sound. No answer to that objection has yet been given.
I come back to where I started. These are but three of the reasons why this forum will not work. I prophesy that it will not ever be brought into force. Like the 2006 Act, it will be found to be impracticable and actually impede the speed which is so essential in these extradition cases. I wish the noble Lord had accepted my suggestion that this matter should now be withdrawn by the Government and brought back again in the next Session when we could debate it properly. However, I understand that it is now too late to hope for that.
My Lords, earlier today the noble and learned Lord, Lord Lloyd of Berwick, and one or two other Members of this House raised the question of the Government’s procedure in this matter. I have to say that I cannot recall an instance where the Government have introduced a fundamental amendment not in Committee or on Report, but actually when the Commons were discussing the Bill and amendments to our amendments. There would have been plenty of time in the early stages of the Bill in either House for the Government to have introduced the amendment. I cannot understand why this seems to be an afterthought.
Governments usually do these sorts of things when there is a real sense of urgency, when there is a dramatic reason why they have to move quickly. I cannot for the life me understand why they felt it necessary to do this at the last minute. Having heard the Minister earlier today, I feel that he was caught. Had he been a Back-Bencher—and I hope he is not going to be a Back-Bencher as a result of all this—I suspect that he would have agreed with out arguments. However, being the Minister, he is rather debarred from saying on the spot that the Opposition or other Cross-Benchers are right and the Government are wrong; he cannot say that. However, in his heart of hearts I suspect that is what he may have been thinking.
It seems to me that this is not a proper way to treat either House of Parliament, when there is absolutely no reason why the Government should behave in this way. The difficulty we are in is that there is no easy way of testing the arguments because the rules of procedure for this part of the Bill, when we are dealing with Commons Amendments, give us a very limited opportunity to be critical. We do not have the flexibility that we have in earlier stages of legislation. We are caught in a position where we have a very serious matter, and where we cannot do justice to the process of scrutiny in order to come up with a better answer. The Minister may have said one or two things which are now going to be difficult to put to the test.
The Minister mentioned the death penalty. As somebody who is very keen on campaigning internationally to abolish the death penalty, I had understood that it was absolutely accepted practice by Britain that we would never under any circumstances let anybody be extradited to a country where there was no assurance that the death penalty would not be used. Why the Minister mentioned the death penalty, I do not know, but I hope that the existing policy will hold good.
I will say something about the European arrest warrant. There are some flaws in it but fundamentally it is one way of bringing to justice people whom we as a country want to bring to justice or other European countries want to bring to justice. The very thought that the Government might abolish our participation in the European arrest warrant is a nightmare scenario. I hope that the Government will stop this approach because it is widely accepted that the European arrest warrant has played a very important part in bringing criminals to justice, whatever the faults in the system.
The amendments standing in my name are intended to introduce a proper forum bar. I very much agree with the arguments put by my noble friend on the Front Bench and the noble and learned Lord, Lord Lloyd of Berwick. My amendments go a bit further. Where most of the alleged conduct took place in the United Kingdom, there would be a presumption against extradition unless it could be established, based on a wide range of relevant factors, that the wider interests of justice demanded it. Such a decision would be taken by an impartial judge in open court. It seems to me that what should be taken into account—and this is not a limited list—would represent good procedures and a sensible approach by the courts.
I will give one or two examples from my amendments:
“Matters relevant to the interests of justice include but are not limited to”—
I will not go through the whole list—
“the extent and place where most of the loss or harm resulting from the extradition offence occurred or was intended to occur … the interests of any victims of the extradition offence … the availability of evidence necessary for a fair trial in the United Kingdom and in jurisdictions outside the United Kingdom … nationality, place of habitual residence and other connections with the United Kingdom”,
of the person to be extradited. If one takes these and the other considerations in the amendment into account, one would have a much better approach than the one that the Government have put forward.
Earlier the Minister said that he thought that all this would be done openly and there would not be any secrecy involved. I cannot put that to the test in the procedures we have before us. My understanding is that there might well be situations where the courts would operate in secret. My fear is that we have not got that properly under control. For example, if we did not have a forum bar, the UK prosecution would not be able to require disclosure of foreign secret evidence. If we had a forum bar, we could demand that as a condition of the extradition, and that would be an added way of having openness and secrecy in our procedures. The Minister said that there would be no secrecy so there is a bit of a dispute as to the facts here; perhaps the Minister could clarify that. For example, as it stands, if the United States refused to share evidence, the United States itself could guarantee that extradition to the United States would happen. This does not seem how it ought to be and it does not give our courts the proper authority to decide.
I rest my case on the proposition that there should be a presumption against extradition unless it would be in the interests of justice that such extraditions should take place. That is the basis of my amendments and I hope that the Government will either take the point made by the noble and learned Lord, Lord Lloyd of Berwick, that we should delay discussing this until we can do it properly, or move towards accepting the amendments that I am putting forward.
My Lords, despite the criticism of noble Lords about the quality of debate that we might have on this issue, I feel that we have had an opportunity to discuss the matter in some depth. It forms part of the Bill that is before us as a result of the Commons amendments. It is our responsibility to discuss the Bill and it is my responsibility to encourage noble Lords to see these particular amendments through. I believe that they are in the interests of good governance and in the interests of this country. The measures we have introduced on the forum will make the extradition process more open and transparent. Making the courts the sole body to consider human rights issues, which has not been discussed much but is a very important change, will ensure that people are not able to abuse the system and delay extradition endlessly by raising specious last-minute human rights points which can then be the subject of judicial review. Together, our proposals will improve our extradition arrangements and, in my view, make them fairer.
The noble Lord, Lord Rosser, has asked my right honourable friend the Home Secretary to commission a review of our proposals and their impact on the speed of extradition procedures, as well as on our current and future extradition relations. This is the substance of his Amendment 24A. As the noble Lord will be aware, we commissioned a review by Sir Scott Baker. His report, referred to extensively by the noble and learned Lord, Lord Berwick, was a comprehensive and detailed analysis of our extradition arrangements. The findings of Sir Scott Baker’s panel were very carefully considered by the Government. He has helped us to come to a view about the changes that needed to be made to our extradition procedures, including those we have brought forward in this Bill, with a view to not only improving those procedures but addressing public and parliamentary concern about their fairness. I can assure the noble Lord that once the new forum bar is operating, these arrangements, together with other changes to the Extradition Act, will indeed be subject to the normal post-legislative scrutiny process, which was introduced by the previous Administration, three to five years after Royal Assent.
I now turn to Amendments 136A to 136C in the name of the noble Lord, Lord Dubs. As I have already said, it is important to improve the protections offered to individuals under the Extradition Act. That is why we have introduced our own forum provisions. However, the interests of justice demand that our extradition arrangements are properly balanced to ensure that, while there must be proper safeguards in place for those subject to extradition, our arrangements do not allow a person to escape justice altogether. Therefore it is important that the test for whether extradition should be barred on forum grounds contains no implied presumption against extradition, even where it is clear that no prosecution is possible or likely in the UK. If the Crown Prosecution Service or another prosecutorial body decides after proper consideration—importantly, that will now be tested in open court and I am pleased that the noble Lord welcomes that position—that a domestic prosecution cannot take place, extraditions should not be barred on forum grounds. Justice will otherwise not be done and potential victims will see their assailant, in some cases potentially a suspected terrorist, walk away scot free.
There has been concern from the noble Lord, Lord Dubs, about whether we can ensure that the bar does not refuse to provide any information—in other words, what will happen in the absence of information? This is not the case under our treaties and, under the Extradition Act 2003, a requesting state must provide certain information. That is not being changed by these arrangements.
Amendments 136A and 136B propose a non-exhaustive list of factors for a judge to consider when deciding whether extradition is in the interests of justice. Our strong preference is for an exhaustive list, so long as it is the right list, in order to prevent unnecessary delays in the extradition process arising from individuals raising irrelevant considerations in front of the judge. We believe that the strength of connection to the UK is a relevant factor—I am sure that noble Lords will agree—and we have included it for the judge to consider among others. However, we do not believe that nationality should be identified as a factor in its own right. The UK has historically not had a bar on extraditing its own nationals, which is reflected in all current extradition treaties. There is no intention to introduce such a bar.
Amendment 136C seeks to strike out the provisions in Schedule 19 transferring responsibility for determining human rights representations from the Home Secretary to the courts. The determination of human rights issues is properly a matter for the courts. The courts already consider such issues during the extradition process. This change, which was recommended by Sir Scott Baker in his review, will ensure that human rights issues arising late in the process are properly considered by the courts while also ensuring that people are not able to abuse the system and delay extradition endlessly by means of raising, at the last minute, specious human rights points with the Home Secretary that can then be subject to judicial review.
I shall answer some specific questions raised by the noble Lord, Lord Rosser. He asked what the purpose was of the prosecutor’s certificate. The purpose of the forum bar is to ensure that prosecutors give due consideration to whether a prosecution should take place in the UK. That does not always happen at the moment. Our proposals ensure that a decision on forum is either taken in open court or, in a case where a certificate is issued, in the High Court following any judicial review.
The noble Lord also asked for a definition of clearly unfounded human rights claims. The “clearly unfounded” test is well established as it is already set out in Section 94 of the Nationality, Immigration and Asylum Act 2002. An established body of case law now exists around the term, and I shall now evidence some of it: appeals that frivolously cite Article 2 or 3, or that simply repeat arguments previously considered and dismissed on appeal where there has been no significant change of circumstances.
Both the noble Lord, Lord Rosser, and the noble and learned Lord, Lord Lloyd, asked about treaty breach. I assure noble Lords that the legal advice that I have received is that our forum bar proposals are consistent with our treaty obligations and, for that matter, with the European arrest warrant framework decision.
I am afraid that I have to follow practice in this respect because I believe that advice given by law officers to the Government is always considered to be confidential. However, I have reported the substance of that advice to the House in this debate, and I hope that the noble and learned Lord will accept it.
I turn to the issue that the noble and learned Lord raised right at the beginning of our debate, before we even started considering Commons amendments. I understand his concerns about this matter but, as I made clear in my Statement to the House on 16 October last year in response to the review by Sir Scott Baker of UK extradition procedures, the Government wished to legislate as quickly as possible to introduce provisions on forum. We made that clear at the time.
The Government have worked hard, taking into account the views of prosecutors, to develop an approach which will be acceptable to Parliament and the public. The Official Opposition gave a relative welcome to these proposals when they were tabled in the other place, which I think shows broad acceptance that we have got these proposals right. If we were to remove these proposals from the Bill now, it would be a year or more before those facing extradition would see the benefit of this new and important safeguard. In light of these comments and the response I have given to this debate, I respectfully ask the noble Lord to withdraw his amendment and all noble Lords to support Commons Amendments 24, 25, 49 and 136.
My Lords, a number of questions and points on the impact of the forum were asked by the noble and learned Lord, Lord Lloyd of Berwick, in his powerful speech, by my noble friend Lord Dubs in his significant contribution and by me. I am not sure that they have all been fully answered. The case has been made that the proposed change in extradition arrangements will not speed up the process but will work the other way. I do not think that point has been fully addressed either.
This major change in our extradition arrangements is being taken through without full and proper consideration and without Parliament having the opportunity to test and challenge the case for the Government’s proposals or to reflect on the Government’s responses. Parliament is, frankly, being effectively bypassed on this important issue by the way that the Government have dealt with it and the lack of time they have given in tabling their amendments. We have not had the opportunity of considering the amendments in depth. I am afraid that is the reality; I do not honestly think the Minister can suggest otherwise.
I do not think all my questions on the deportation amendments have been answered either. I hope that, at least, the Minister will respond in writing to the unanswered questions and points raised on extradition and deportation in this brief debate. I ask him seriously to consider doing that because he has not responded to all the questions and points that have been raised, albeit that he has, I accept, responded to some of them. We note the Government’s position on our amendment. They have indicated that there will be scrutiny of how the arrangements work, albeit that they are not prepared to agree to an amendment to the Bill. However, I do not intend to pursue that matter any further.
Before the noble Lord sits down, he will know that it is always my wish to make sure that the House is informed on matters that may have been raised in debate. I undertake to write to him on these matters and will copy in other noble Lords who spoke in this debate.
Just to clarify the point I made about legal advice, because I do not want to get this wrong, I was correct in what I said. It is not the practice to publish legal advice, nor to confirm or deny that law officers’ advice has been sought in any case. These are matters of legal professional privilege and, as a non-lawyer, I defer to that privilege.
Amendment 24A (as an amendment to the Motion on Amendment 24) withdrawn.
Amendment 24B (as an amendment to the Motion on Amendment 24)
My Lords, the House will be glad to hear that I do not wish to add anything to what I have already said. I hope that in some further reply, written or otherwise, the Minister will at least answer some of my questions on the Scott Baker report, which were of some importance. Having said that, I shall not press the amendment.
Amendment 24B, as an amendment to the Motion on Amendment 24, withdrawn.
Motion on Amendments 25 to 37
Motion on Amendment 38
Amendments 38A and 38B, as amendments to Commons Amendment 38, not moved.
Motion on Amendments 39 to 50
Motion on Amendment 51
51: Page 44, line 25, leave out subsection (17)
Motion on Amendments 52 to 130
Motion on Amendment 131
131: Insert the following new Schedule—
“EXCLUSIONS FROM DEFINITION OF “RELEVANT PUBLISHER”
1 The British Broadcasting Corporation.
2 Sianel Pedwar Cymru.
3 The holder of a licence under the Broadcasting Act 1990 or 1996 who publishes news-related material in connection with the broadcasting activities authorised under the licence.
Special interest titles
4 A person who publishes a title that—
(a) relates to a particular pastime, hobby, trade, business, industry or profession, and
(b) only contains news-related material on an incidental basis that is relevant to the main content of the title.
Scientific or academic journals
5 A person who publishes a scientific or academic journal that only contains news-related material on an incidental basis that is relevant to the scientific or academic content.
Public bodies and charities
6 (1) A public body or charity that publishes news-related material in connection with the carrying out of its functions.
(2) “Public body” means a person or body whose functions are of a public nature.
Company news publications etc
7 A person who publishes a newsletter, circular or other document which—
(a) relates to a business carried on by the person, and
(b) only contains news-related material on an incidental basis that is relevant to the person’s business.
8 (1) A person who is the publisher of a book.
(2) “Book” does not include any title published on a periodic basis with substantially different content.”
Amendments 131A and 131B, as amendments to Commons Amendment 131, not moved.
Amendment 131BA (as an amendment to Commons Amendment 131)
131BA: Line 29, at end insert—
7A A person who publishes a small-scale blog.”
Amendment 131BA, as an amendment to Commons Amendment 131, agreed.
Amendments 131C to 131F, as amendments to Commons Amendment 131, not moved.
Motion, on Amendment 131 as amended, agreed.
Motion on Amendment 132
Motion on Amendment 133
133: Page 269, line 16, leave out paragraph 29
The Lord Speaker will be pleased to know that it gets a lot clearer from now on.
I beg to move that this House do now agree with the Commons in their Amendment 133. This amendment removes Part 7 of Schedule 15, which would have required contracts between the Secretary of State and probation trusts to place an obligation on trusts to make appropriate provision for the delivery of services for female offenders. This included making provision for women to participate in unpaid work and rehabilitative programmes with their particular needs in mind. As noble Lords will recall, Part 7 of Schedule 15 was inserted into the Bill at Third Reading when the House agreed an amendment in the name of the noble and learned Lord, Lord Woolf. With his customary courtesy, the noble and learned Lord, Lord Woolf, has explained to me that family and religious observations have meant that he cannot be with us tonight, which I fully understand, although I see some familiar faces around the Chamber of noble Lords who are involved in this matter.
I know that the Commons’ decision to remove Part 7 of Schedule 15 will have been a disappointment to many in this House. As the high quality and impassioned contributions to the earlier debates on this issue showed, addressing the needs of female offenders is a key priority for many here. I therefore reaffirm that the Government are committed to addressing the factors associated with women’s offending, and to taking a different approach where there is a need to differentiate provision for female offenders. We recognise that we will rehabilitate female offenders and enable them to lead positive and productive lives only if we a take a different approach where it is required.
I have on more than one occasion promised that the Government would publish their key priorities for female offenders. I am therefore delighted to say that a document setting out our key priorities for female offenders was published last Friday. These priorities reflect the Government’s wider proposals to reform rehabilitation, and also the review of the women’s prison estate announced on 10 January. They are aimed at ensuring that there are credible, robust community sentencing options available for sentencers; gender-specific services for female offenders in the community, where appropriate; tailoring of the women’s custodial estate; and rehabilitation reforms to support better life management and reduce women’s reoffending.
We have also announced the creation of a new advisory board on female offenders. It will be chaired by the Minister for Victims and the Courts, and will bring together key stakeholders, criminal justice partners and senior officials from across government to support her in delivering these priorities. The need for strong, visible leadership is something that many noble Lords have called for. The advisory board will provide invaluable expertise and challenge as we take forward work on female offenders within the rapidly changing landscape.
On Commons Amendment 133, we fully understand and are sympathetic to the concerns that prompted the noble and learned Lord, Lord Woolf, to bring forward his amendment at Third Reading. However, it remains the case that we do not believe that it is either necessary or helpful, and I will take a few moments to explain why. As noble Lords will be aware, the Government have also recently published their proposals for taking forward the next steps of the rehabilitation revolution. The consultation document, Transforming Rehabilitation—a Revolution in the Way We Manage Offenders, sets out our proposals to reform the management and rehabilitation of offenders in the community through a new focus on life management and mentoring support for offenders. Fundamentally, offenders with complex problems and chaotic lifestyles need support to turn their lives around, combined with proper punishment.
Included in the consultation were proposals to complete the provision of a wide range of services and to introduce payment by results, so that in future the taxpayer will pay for those services that demonstrate a reduction in reoffending. National commissioning would replace commissioning by probation trusts. We intend to open up rehabilitative services to a wide range of new providers in the private and voluntary sectors who will bring their creativity and innovation to bear on this pressing problem, and who will be paid by results to drive down reoffending. The close work between probation trusts and the voluntary sector women’s community services can be seen as a precursor of this approach. The amendment agreed in this House at Third Reading failed to recognise this new landscape for the delivery of probation services.
I assure noble Lords that, in taking forward these reforms, we are very aware of the particular needs and priorities that are relevant to services for female offenders, and that we will ensure that these are addressed within our overall approach. Our consultation document specifically asked for views on how we can use our new commissioning model, including payment by results, to ensure better outcomes for female offenders and for others with complex needs or protected characteristics. It is also worth noting that our rehabilitation reforms will extend the provision of rehabilitation services to offenders released from custodial sentences of less than 12 months, who currently do not qualify for statutory licence or rehabilitation provision. Proportionately more women than men are serving short sentences, so they in particular will benefit from this element of the reforms.
I can reassure noble Lords that the removal of Part 7 of Schedule 15 from the Bill will not undermine the delivery of appropriate services for female offenders. Our newly published key strategic priorities make clear that the Government are committed to ensuring appropriate provision for female offenders, whether in custody or in the community. As I have mentioned, the Secretary of State for Justice has asked officials to undertake a review of custodial arrangements for women. He recognises that female offenders have particular needs, and that the women’s prison estate should be organised as effectively as possible to meet gender specific requirements while also delivering best value for the public.
There are other public commitments, too, which apply to providers commissioned by the Secretary of State to deliver offender management services. Indeed, one of the actions under objective 2 of the Ministry of Justice’s equalities objectives is to ensure the,
“provision of gender-specific community services to improve support for vulnerable women in the criminal justice system”.
Probation trusts are also required by the National Offender Management Service Commissioning Intentions document, to demonstrate how they will ensure the appropriate provision of women’s services. All probation trusts have met this year’s requirement to provide appropriate provision for women, including new and innovative ways of working with women.
Noble Lords will be aware that in the last few years the Government have been investing in the development of voluntary sector-led women’s community services. NOMS has provided an additional £3.78 million funding via probation trusts to support 31 of these centres in the current financial year. This £3.78 million has now been embedded in the NOMS community budget for 2013-14, and has been ring-fenced to enable probation trusts to commission the delivery of enhanced services for female offenders. Probation trusts are planning a range of new partnerships with the voluntary sector in the coming year, including opening new women’s community services and the delivery of a new bespoke training programme for women. This inevitably means that some women’s services may find that they receive less funding in the coming year. However, at this time of financial constraint, the commitment to provide £3.78 million to trusts for the provision of women’s services is a strong indication of the priority the Government give to the needs of female offenders.
A further £300,000 is being invested in women’s services by trusts, which I find very encouraging indeed. I am a strong advocate of the women’s centre approach, which provides practical support for women in addressing their many needs, whether it be housing, domestic violence, substance misuse or a range of other issues. These centres are located in the centre of our communities and provide a positive, flexible environment to help vulnerable women sort out their often troubled lives. When I visited the Minerva women’s centre last year, I was very impressed by the number of women that I met who had first come to the centre as clients, sometimes very reluctantly, but then remained at the centre to support other women as mentors and helpers. This is exactly the sort of benign circle that we want to encourage.
I hope that I have reassured the House that the Government remain committed to ensuring the provision of appropriate services that will address the specific needs of female offenders, and that this is an integral part of our reform programme. For these reasons and in the context of the Government’s wider plans to transform rehabilitation, we feel that Part 7 of Schedule 15 is neither necessary nor helpful. In the circumstances, I hope that the House will be reassured on the points that I have made and will agree with Commons Amendment 133 and reject Amendment 133A in the name of the noble Lord, Lord Ramsbotham.
Amendment 133A (as an amendment to the Motion on Amendment 133)
My Lords, in her foreword to the Strategic Objectives for Female Offenders published last Friday, Helen Grant, the Ministry of Justice Minister responsible for women, wrote:
“The issue of women in prisons is a deeply emotive one, in which there is very genuine interest from Parliamentary colleagues”.
I am sure that the noble Lord, as a member of the Government who purport to be as genuinely interested in the issue of women’s justice as Helen Grant professes, will understand why I say that a number of genuinely interested colleagues are deeply upset that this amendment is coming up at such a late hour, because understandably they and others have had to leave the House. Tragically, this is an all-too-familiar story where women’s justice is concerned, about which we should all feel ashamed.
If the Committee in the other place was genuinely interested, I cannot imagine how it accepted, without debate, the Minister’s assertion that the amendment successfully introduced at Third Reading in this House by my noble and learned friend Lord Woolf—sadly, he cannot be here tonight, as noble Lords have heard—was unnecessary. The amendment sought to obtain much needed statutory protection of measures to ensure that the distinct needs of women offenders were prioritised and met. It was said to be unnecessary because it specifically mentioned probation trusts and, because probation was under review, it did not make sense to legislate on probation provision, and because the Government were already committed to working on women’s provision, the legislation was not needed. The genuinely interested Committee threw out my noble and learned friend’s amendment, denying other genuinely interested colleagues any opportunity of considering it at Report. What a message such treatment sends to those who are encouraged to believe that the Government are genuinely interested in the position of women in the criminal justice system.
If this was the first occasion on which similar dismissal had been the fate of proposals concerning the specific needs of women offenders, it could perhaps be more easily understood. The point about probation is a semantic quibble because, whatever the outcome of the review, someone will be responsible for the provision of services to female offenders. But the point about legislation is important, because the amendment is an attempt to ensure that consistent and continuous action is taken by successive Ministers, rather than a continuation of past practice, which I can best characterise as being seven times bitten and, understandably, eight times shy.
The strategic direction announced by the Minister includes sections on enhanced provision in the community and transforming rehabilitation, with at its heart an advisory board. In principle, I welcome strategic direction, because a strategy is a single aim uniting the contributions of all those concerned. But as this one contains nothing new and is noticeably short on detail, I can best describe it as pretty thin wine. While not against advisory boards per se, I am not happy that the Minister should put so much hope in this one, because boards do not provide leadership or take positive action, and positive action, not yet more advice, is what is so badly needed.
The Minister said that the board had been convened,
“to develop polices to tackle female re-offending, to help women into gainful employment and safe environments, and off the ‘conveyor belt to crime’”.
Of course, nobody could be against such aims, but I am deeply cynical about how they will be implemented and overseen, in view of bitter experiences in the past. Over the past 16 years, I have heard much the same from a succession of Home and Justice Secretaries and Prison and Women’s Ministers and I have seen a plethora of policy, advisory and women’s issues boards set up to develop policies and to help women off the “conveyor belt to crime”, after recommendations made in two thematic reports of mine when I was Chief Inspector of Prisons, a report by the Prison Reform Trust, three reports by the Fawcett Society and finally the report by the noble Baroness, Lady Corston, only for them to disappear without trace. I note that, like its predecessors, this board is expected to,
“take a creative, innovative look at the scope … for improved sentencing options”,
as well as,
“designing the system to ensure that women’s needs and priorities are recognised in the provision of services in the community and through-the-gate of prison”,
and working with partners within and outside the criminal justice system,
“to ensure that the needs and profile of female offenders are recognised and understood”,
while also promoting “community sentencing options”.
Here I make no apologies for repeating what I have said time and again in this House: history, and particularly recent history, proves that nothing will happen until and unless some named person is made responsible and accountable to a Minister for making it happen. As nobody has been appointed in the case of women, virtually nothing has happened.
Ever since I became involved with the criminal justice system, I have been amazed that Ministers seem so unwilling to look at facts when trying to reason why their good intentions are not realised. If they worked in business, a hospital, a school or local government, they would know that named individuals are responsible and accountable for separate departments, so why, unlike every other operational organisation throughout the world as far as I can discover, do they tolerate continuous failure, for which they can call no one to account, caused in large measure by the almost complete absence of any named individual responsible and accountable for each type of offender in the National Offender Management Service, particularly women, a discrete group with distinct characteristics and needs? If they looked, they would be struck immediately by the marked difference between the consistency and improvement in the high security prisons, under their own director, compared with the remainder, and the way in which the position of children has been transformed by a Youth Justice Board under its own responsible and accountable chairman.
This dreadful track record explains why my noble and learned friend, I and many others seek legislation. In the absence of anyone responsible and accountable for making consistent improvement, we despair of progress being made and any momentum generated being maintained. Ministers, however well intentioned, come and go. While responsible and accountable to Parliament, they have countless other ministerial, parliamentary and constituency tasks and simply do not have the required time to provide 24/7 oversight of any single part of their ministerial portfolio. Oversight can be provided only by someone responsible and accountable to them, aided by advisory boards or whatever. I challenge anyone to disprove that the one common denominator behind the failure of every previous good intention for improving the position of women is the lack of anyone responsible and accountable to the Minister for implementing it. I would hate to see this one, however thin, go the same way. That is why I disagree with the Commons overturning my noble and learned friend’s amendment.
I have three questions for the Minister. First, why does he not accept the need to appoint a named official to be responsible and accountable to Ministers for women in the criminal justice system? I note that, on 3 October 2012, Sadiq Khan MP, the shadow Justice Minister, announced that Labour would set up a women’s justice board, bringing together central government, local councils, police, probation and social services to tackle female offending, modelled on the Youth Justice Board. When I asked him about what appeared to be a damascene conversion of his party line, bearing in mind how many of his predecessors had vetoed that idea when put forward by the Prison Reform Trust and many others, including me, he said that, coming in as an outsider, he had looked afresh at all the evidence and that its need stood out. I welcome him warmly to the club, as I hope to do the present ministerial team.
Secondly, can the Minister tell the House why, without statutory provision, it should be confident that what the Minister has outlined will come to pass when so many previous but similar intentions have failed? Helen Grant, having recognised the genuine interest of parliamentary colleagues in both Houses and the importance of keeping people informed about what the Government are doing for female offenders, says that she will consider what more she should do, going forward, to communicate with stakeholders and others with an interest in female offenders. I would like to recommend one thing that she could do, which is to undertake that either the Justice Minister or the Minister responsible for women’s justice will make an annual statement to Parliament about progress with the strategy, which will be debated on the Floor of both Houses. Will the Minister give an undertaking that annual statements will be made, or at least considered, and an announcement about them made during the further passage of this Bill? I beg to move.
My Lords, I support Amendment 133A in the name of the noble Lord, Lord Ramsbotham. He suggested that my report had sunk without trace. Perhaps I may reassure him that I have not. Having waited over a year from the day when the noble Lord, Lord McNally, promised this House that we would have a strategy for women offenders which would be published “quite shortly”, found the statement released last week was acutely depressing. It was thin and took us back to the days of the women’s offending reduction programme. It is extraordinary that this can happen, particularly as I know that the noble Lord, Lord McNally, and his parliamentary colleague Helen Grant MP have been visiting women’s centres up and down the country and must have got the same message.
Why has nobody recognised the plight of women at risk of offending? It was reported in the papers that the women’s prison population had gone down by 400 since the previous Government started implementing my report. Given that the women’s prison population is, at any one time, just under 5,000, that is a proportionate reduction that the Minister might be quite proud of if it happened in the male estate. Why has it happened? It has happened because of the focus on women at risk. Magistrates’ courts up and down the country now do this work but there is no reference to it whatever. Will the Government please stop talking about payment by results? I have been in Parliament for 21 years and I have never known a Government who wanted payment without results.
Women’s centres, which work with women offenders who have been sent there by the court and women at risk, can have reoffending rates as low as 10%. There is no prison system in the world that can boast reoffending rates of 10% and yet these centres are now writing to me to say that their funding is being cut and they are finding it hard to cope. The £3.78 million, to which the noble Lord, Lord McNally, referred, is all well and good but probation trusts are, as I understand it from correspondence I have had with Helen Grant, being given the job of ensuring that that funding is spread. A smaller pot of money is being spread further so centres like Anawim in Birmingham—I challenge anyone visiting that centre not to be profoundly impressed with the work it does with very troubled women—are finding it difficult to cope. A lot of the women about whom constituents visit Members of Parliament in their advice surgeries are ones whose chaotic lifestyles lead to prison. Work done with them saves local authorities a lot of money.
I want to contrast what is happening with this advisory board with what happened before. We had a Minister, Maria Eagle, who regularly made Written Ministerial Statements on progress. That went alongside a very detailed strategy that was a thick document, not the two pages—it may have been three but it certainly was not more—that we had last week. This advisory board will work only if it has absolute overall strategic direction and a multidisciplinary team of civil servants working alongside it. I do not see that happening.
When I hear the Government say, “We are implementing Corston”, which I do not say out of arrogance but I gather that within the Ministry of Justice I am a noun and a verb, I feel my blood boil because it is not true. This Government do not understand the situation with regard to women generally, what gender-specific services are and what kind of priority should be given. If they did, it would not have taken one year and 10 days to publish what is a thin, mean document.
A huge opportunity has been missed because you cannot reinvent a broken wheel. Centres such as Anawim write to me saying, “You know what work we do and we are now finding that we are turning away women who lead chaotic lifestyles and are at risk of losing their children”. This is alongside a Bill under which we are speeding up the adoption process. What happens is that instead of helping these women who are at risk of offending to turn their lives around and keep their children, we do nothing for them and let someone else adopt their children.
My Lords, I must add a word of praise for the two speeches that we have just listened to and a word of exhortation to the Minister to pursue more effectively the lines that he set out. We can welcome the steps that he outlined, so far as we understand them on first reading. Whether those steps will be taken or in some way accelerated by the fact that we are having this debate and passed an amendment at an earlier stage, I do not know. However, in attempting to make his case, I thought that the Minister’s heart was not in it. He did not really explain why my noble and learned friend’s amendment would be unhelpful. He took some pride in saying that life has moved on—meaning that the Government have moved a step or two—and that the amendment was therefore out of date. However, the Minister has not been too chary in the early part of our proceedings today in moving government amendments that updated the Bill. It would not be beyond the wit of his department to commission an amendment that would have filled any gap and brought us up to date on the Government’s latest actions, which, I understand, came to a head last Friday.
This is a black hole in our criminal justice system. In my time as Home Secretary, I visited a good many prisons, and I have visited several in the past year or so through my involvement with the Prison Reform Trust. Nothing is more desponding, gloomy or soul-destroying than a visit to a women’s prison. I do not know quite why, and I have not sorted out the logic of it in my mind, but there is something particularly disagreeable and unnatural—awful, really—about a woman in prison. When you consider the kind of offences in which women are characteristically involved, particularly those concerned with drugs, you are filled with a feeling of pity and anger that this defect in our criminal justice system should yawn so widely and take so long to deal with.
The noble Baroness, Lady Corston, is of course to be congratulated on her report, which has helped to move things on, as has the tireless work of the noble Lord, Lord Ramsbotham. They have illustrated clearly in their powerful speeches the defect. What is lacking is accountability and a person or persons whose responsibility it is to put this wrong right. Short of that, I fear that we are just being subjected to an amiable, and certainly sincere, smokescreen. They have proved beyond doubt that that is not sufficient. This has drifted on year after year, as the noble Lord, Lord Ramsbotham, said, and now we are offered not a statute, or a promise of legislation, but an advisory board. There is an advisory board sitting in this Chamber, but unfortunately its advice is not being taken.
I do not know whether the noble Lord, Lord Ramsbotham, intends to press his amendment to a vote. I am sure that the Minister does not need to be told this, but I would ask him to take away and report to his Secretary of State and to all concerned in the Ministry of Justice the strong feeling in this House that there is a black hole in our arrangements and that we look to this Government to put it right.
My Lords, I rise to support the amendment moved by my noble friend Lord Ramsbotham. I believe that what happened in the Commons, the way in which this whole area was tossed aside and not debated at all, was disgraceful. I believe that the very least that the Government can do is to answer the three questions that my noble friend has put to the Minister. I would lay the greatest emphasis on having an annual report on progress that is made in the whole of this area.
I am especially concerned about the differences in the treatment of men and women for two reasons. First, there is a distinct difference in the backgrounds of women who are in prison for very short sentences. As we have heard, such sentences account for the vast majority of women—and indeed men—in prison. As one example, 5% of the prison population are women, and yet 31% of self-harmers in prison are women. The Government should receive full marks for starting to outline, at last, these plans, as we have begun to get a picture of what we hope will happen in the future. I am very supportive of these plans as there are so many women in prison who should not be there, certainly not to serve short sentences as is currently the case.
Secondly, and above all, these women should not be in prison because of the effect that it is having on their families. How many of those families will find their own way into prison as a result of having had their family broken up, having been taken into care or placed with relatives and, above all, having lost that very particular relationship between mother and child? I believe that that is the worst aspect of all. How many facts are we given about the number of families who are repeatedly in and out of prison in a continual spiral of offending?
Good luck to the Government with their plans, but please let us have a report on what is happening, and let us have real progress. Quite apart from the women concerned, I believe that we will find that this kind of treatment could be as applicable to men in our prison service. We need a whole overview of what goes on.
My Lords, I would be surprised if some Members of your Lordships’ House were satisfied with a report as infrequently as annually. The questions, rightly, will come quite often to my noble friend, as they have done over the years. I know that this is something that he holds close to his heart, as does Helen Grant. I note that the document published on Friday—which I, too, thought was shorter than expected—is headed Strategic Objectives for Female Offenders and does not purport to be a complete strategy.
Perhaps I may ask my noble friend one question which follows on from what the noble Baroness has just said. It concerns the effect on children of their mother’s imprisonment. I suppose that this is a plea to include that in the strategy. The developing knowledge about the effect on children of separation from their mothers is something that we should take very seriously, and no doubt we will be considering it in the Children and Families Bill. I hope that my noble friend can reassure the House that the whole-system approach which is referred to in the strategic objectives is a whole system that will extend in all the ways we know it should, and not just to the narrow punitive and personal rehabilitative aspects that we have mostly been talking about this evening.
My Lords, the Commons amendment seeks to strike out Part 7 of Schedule 15 to the Bill, which provided much-needed statutory provision for women offenders. Part 7 was successfully introduced into the Bill at Third Reading in this House but was subsequently struck out in Committee in the House of Commons without further debate.
The Government have just published their promised Strategic Objectives for Female Offenders setting out their priorities, and they have also announced the setting up of a new advisory board for female offenders chaired by a Home Office Minister which is intended to support the Minister,
“in providing strong leadership on delivery of our strategic priorities”.
However, these developments do not remove the need for statutory measures to ensure that the distinct needs of women in the justice system are prioritised and met. I understand that there have been 10 previous reports across the UK on the matter of women in the justice system, but none, it seems, has been implemented in full. In the light of the publication of their strategy but in the absence of any statutory backing, how will the Government ensure that all contracting areas in the new environment make provision that is appropriate to the particular needs of women, and how will the Government ensure that progress is sustained and built upon?
It is not clear why the Government do not want to take this legislative opportunity to deal more effectively with women who offend. To begin with, funding is not ring-fenced for service provision delivered by women’s centres or women’s services, and a number of them fear significant funding cuts or even closure. The inclusion in the National Offender Management Service’s Commissioning Intentions for 2013-14 of an intention that provision should take into account the “specific needs” of women offenders falls far short of any statutory guarantee of women-specific provision. There is evidence in recent research published by the Equality and Human Rights Commission that commissioning procedures and outcomes have already had a negative impact on the funding of women-only services, including services for women offenders and those at risk of offending. In the Strategic Objectives for Female Offenders the Government recognise that the,
“relatively small number of female offenders presents particular challenges”.
Unless there is statutory underpinning for women’s community provision, there is a risk that this will result in inadequate provision.
Provision for women offenders in the community is probably best described as patchy and its future uncertain. Unless and until the courts are confident that effective community penalties are available in their area then vulnerable women will continue to be sent to custody to serve short sentences for non-violent crimes. I know the figures are well known, but over half the women in prison report having experienced domestic violence and one in three has been sexually abused. Most women serve very short sentences, with 58% sentenced to custody for six months or less; and 81% of women entering custody under sentence had committed a non-violent offence compared with 71% of men. Women also account, as the noble Baroness, Lady Howe, has said, for 31% of all incidents of self-harm, despite representing just 5% of the total prison population.
The recent joint inspection report on the use of alternatives to custody for women offenders found a lack of women-specific provision for both unpaid work and offending behaviour programmes and noted that,
“women-only groups, where run, were often successful”.
It found that,
“women’s community centres could play an important role in securing a woman’s engagement in work to address her offending and promote compliance with her order or licence”.
At the moment, it looks as though government funding for the national network of women’s centres will be substantially reduced and that, for some, it may run out very soon. The future of the centres under payment- by-results commissioning is uncertain. Placing community provision for female offenders on a statutory footing will at least help to protect the vital role played by women’s centres and other local services in the effective delivery of community provision for women.
If the Government are not prepared to legislate now on this issue, do they have plans to do so at some stage in the future? It is not proposed changes in the provision of probation services or a changed landscape that is preventing the Government making statutory provision. That, frankly, is a red herring: a Government wanting to legislate would not be deterred by that issue. If the Government have no intention at all to legislate, then at least will a Statement be made each year to Parliament, as the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Howe, asked, on the progress being made towards improved provision for female offenders? That, surely, is the least the Minister can offer when he stands up to give his response.
My Lords, I thank all noble Lords for their various contributions to the debate. It is very interesting that the noble Lord, Lord Rosser, said that there had been 10 previous reports and that the noble Baroness, Lady Howe, spoke about the various bits of information. It is not information that we need, nor reports or statutory commitments in a Bill. It would be very easy to accept it and go on just as before. Part of my problem with the interventions of the noble Lord, Lord Ramsbotham, is that he always seems to think that a new structure or reporting method would solve these things. As with the noble Lord, Lord Hurd, every women’s prison I have visited has depressed me profoundly; and yes, if you ask my opinion, at least half the women we have in our prisons should not be there. However, it is no use the other side making pious observations now they are in opposition. The fact is that they were in office for four years after the report of the noble Baroness, Lady Corston.
I am not suggesting that nothing happened, but I am suggesting that the problems that we are facing now are very real. We have made progress on this. We have ring-fenced funds in a time of very real problems for government funding. I am surprised that the noble Lord, Lord Ramsbotham, did not make even a passing reference to the fact that we are for the first time dealing with prisoners serving sentences of less than 12 months. I know that the previous Government tried that and then abandoned it. However, every time a Government try to make progress with an advisory committee it should not just be dismissed. I have been working for six months with Helen Grant and she is someone who is going to take responsibility. The Secretary of State has made her the Minister for Women’s Prisons, separating it out from other prisons so there is a line of responsibility.
As for an annual report, I cannot make an instant response at the Dispatch Box but I will take it back to colleagues. I want to see a real change in attitudes, and some of the things that are happening will make a change. We are approaching other departments in a way that has not been done before, and if it has been done before, we are going to try again to get a buy-in. As has been said, one only has to look at the various problems for women, such as drug and alcohol dependency and mental health issues, to realise that the Prison Service alone is not going to be able to deal with it. We have got to get a buy-in from the health service, we have got to get a more holistic approach to treatment and we have got to make sure that there are the facilities available outside prison to try to deal with female offenders.
We are discussing within government the question that my noble friend Lady Hamwee raised on the details of the impact on the family, to see how best that can be managed. The Opposition may have their doubts about payment by results, but I think that the approach of bringing in the voluntary sector and other providers to see if there are different ways is really positive. I will take away the idea of an annual report, and so that it is on the record, I will write to the noble Lord, Lord Ramsbotham.
I have no objection to the various pressure groups pressurising us; that is what they are for. However, there is a sea change, a difference of attitude, and there is the leadership given by Helen Grant. We are going to try to take this forward and make real progress. The noble Baroness, Lady Corston, knows full well that I have consistently paid tribute to her and the landmark nature of her report, both privately and at the Dispatch Box. I want to build on it, and I want Helen Grant to have the opportunity to do the same. However, it is worth recognising the progress that has been made, and rather than passing things into statute, as has been suggested, test us by outcomes.
Perhaps the idea of an annual report is not so bad at all; I would be prepared to come back in a year’s time and try to give some positive advance on what we are trying to do with women. I do not think that you can be in this job, as I have been now for nearly three years, without feeling that the problem of women in our penal system is a disgrace that does not belong to any one Government; it is a disgrace for our society. Anything I can do to help ameliorate that in the time that I am in office, I will certainly take the opportunity to do. However, I do not think that it is done by putting things into statute, and I cannot accept the amendment this evening.
My Lords, I thank the Minister for his reply. Over the years I have come to recognise that in the Minister we have a fully paid-up supporter of the probation service as well as a fully paid-up supporter of making improvements to the women’s justice system. Therefore, I am conscious that we are talking to somebody whose heart is certainly in making the improvements that we all know to be necessary. I also thank all those who have contributed to this debate. In various ways they have emphasised just how genuinely interested this House is in making progress and how disappointed it is that over the past 16-plus years we appear to have been there and then not there, and then there again and not there again, and so on. This has got to stop.
I do not discount what the Minister says about the commitment of Helen Grant and the leadership she is going to apply. That is not my point. I am not making suggestions for new structures. All I am saying is that in every other organisation things work where you have a determined Minister assisted by someone who is responsible and accountable to that Minister for the delivery. That is what is missing and it has been missing over and over again. It is not new and it is not something that I am plucking out of the sky, because it happens everywhere except here. I just pray that one day this penny will drop because I fear that Helen Grant, well intentioned though she is, will find that the advisory board will not be the mechanism and she will not be able to oversee the consistent delivery all over the United Kingdom. It is consistency that we want.
I deliberately did not mention all sorts of things that are in Transforming Rehabilitation because this is a much more general issue, but I am extremely encouraged by the Minister’s response to the suggestion of an annual report. That will be an excellent opportunity for this House to demonstrate not just its commitment to this but its very genuine interest and wish to apply the collective experience and knowledge in this House in the best interests of both the Government who are responsible at the time and the women whom we hope are going to benefit from what can be done. I am conscious that the Government have laid down things that they intend to do, which I hope that we can monitor, and on the hopeful note from the Minister, I withdraw my amendment.
Amendment 133A, as an amendment to the Motion on Amendment 133, withdrawn.
Motion on Amendments 134 and 135
Motion on Amendment 136
Amendments 136A to 136C, as amendments to Commons Amendment 136, not moved.
Amendment 136D, as an amendment to the Motion on Amendment 136, not moved.
Motion on Amendments 137 to 139