House of Lords
Thursday, 20 June 2013.
Prayers—read by the Lord Bishop of Liverpool.
Violence Against Women
My Lords, the Government are fully committed to preventing and combating violence against women and girls. Our national campaigns try to encourage teenagers to rethink their views about abuse. Government-funded community activity challenges so-called “honour crimes” and new legislation against stalking and forced marriage sends a strong preventive message. However, as this report highlights, there is much more to do. Our updated action plan strengthens our preventive approach, responding to a number of the End Violence Against Women coalition’s recommendations.
I thank the Minister for that very useful list of activities. However, in view of the report’s considerable concern that the Department for Education has substantially reduced spending in this whole area, how will the Government ensure that every child receives age-appropriate information in schools—for example, about the harmful effects of pornography—not least since a report from the Children’s Commissioner for England, entitled Porn is Everywhere, also underlines the urgent need for such guidance?
This report emphasises that we face a wide cultural challenge, which needs to be tackled at every level by everybody. The quality of teaching in schools is very important. The Department for Education is providing funding for the PSHE Association to work with schools to support them in developing their own curricula and improving the quality of teaching, which is clearly key. In addition, from September 2014, the new computing curriculum ensures that, for the first time, pupils aged five to 11 will be taught about online safety, including issues such as sexting and cyberbullying.
My Lords, as people generally seem very reluctant to believe the extent of the abuse, is it not time for the Government to broadcast the figures in more dramatic terms? For instance, they could say that millions of men are smashing up millions of women and that millions of men are sexually abusing millions of children. These abusers are normally distributed throughout society, which might account for the fact that so few prosecutions occur.
It is, indeed, a widespread problem. Last year, 88 women were killed by a partner, 60,000 women were raped and 400,000 were sexually abused. The report talks about a “watershed moment” in relation to child sexual abuse and other violence against women and girls, as shown by the concern about the Savile investigations, and so on. We have to make sure that it is indeed a watershed moment and that things start to improve.
My Lords, the noble Baroness will be aware of the value of women’s refuges, which allow women to remove themselves from immediate danger of physical or sexual violence towards them or their children. A number of refuges are reporting serious financial difficulties at the moment. Will the Government consider carrying out some kind of review of the impact of local government cuts and of stopping the ring-fencing of financial support so that we can assess that impact and see what can be done to ensure that these refuges have the finance that they so desperately need?
Across government, we are determined to make sure that we do everything we can to protect the victims of domestic abuse. I know that colleagues across government have looked at this issue. If the noble Baroness has more specific information, I would welcome receiving it.
My Lords, there is a clear link between domestic violence and sexual abuse and women’s offending, with between 50% and 80% of the women in our prisons being victims. Is this not a sound reason for devoting more government resources, as this report demands, to education and to campaigning in the community to help to bring an end to this dreadful scourge?
We recognise the challenge posed by female offenders and the fact that they themselves are often at risk of violence and have specific rehabilitation needs, as well as often having high levels of mental health problems. Many of them have indeed suffered domestic violence. The Ministry of Justice has just set up a cross-departmental advisory board on women offenders, chaired by the Parliamentary Under-Secretary of State. This group will be looking at more provision in the community, more rehabilitation, a review of the prison estate to raise the profile of women offenders and the factors associated with offending that my noble friend has just pointed to.
My Lords, does the Minister agree that the level of domestic and sexual abuse towards women and girls in our country is an absolute disgrace? Does she further agree that the daily displays of semi-nude women in the popular tabloids help only to build up disrespect among boys and young men in their formative years? Therefore, will she join me in congratulating the No More Page 3 campaign? More than 106,000 people have already signed its petition, including me. If she agrees to endorse that campaign, perhaps she could sign the petition herself, as I believe that it is one way of combating the disrespect that can build up among boys and young men.
Yes. On Monday, on the subject of women on boards, I described a company as being outdated for having no women on its board. I would describe what the noble Baroness has portrayed as also being outdated. Personally, I would indeed endorse the campaign and I am astonished that we are still fighting this battle a number of years down the track. That said, of course we support freedom of speech, but I think it is about time that we made very clear what we find acceptable and what we do not.
My Lords, domestic violence is clearly a loathsome feature of our community. Does the noble Baroness agree that, as so much domestic violence is founded on the exploitation by men of their relative superiority in strength, physically and economically, over women, there is a strong case for either legislation or sentencing guidelines to be considered regarding domestic violence as an aggravated form of violence, to be dealt with, where appropriate, by condign punishment?
I cannot comment on a particular case. However, I am struck by the media reaction, which is really very interesting. I am struck by the support and sympathy for people who find themselves in such situations and by the fact that these problems go through every level of society.
Unemployment: Young People
My Lords, the Minister for Employment attended a ministerial meeting on youth unemployment in Madrid yesterday under the European initiative for growth and jobs. The Secretary of State for Work and Pensions will attend a follow-up in Berlin on 3 July. Youth unemployment is on the June agenda of both the European employment and social policy council and the European Council, and UK experts are members of the team reforming the Greek public employment service.
I think I thank the Minister for his Answer. He is telling us what is going to happen, but does he agree that with nearly a quarter of under-25s in the European area unemployed, the only way we can solve this is on a European-wide level? To tackle this crisis, should he not join Lib Dem MEPs and others who have called for the UK to make the most of the €6 billion EU youth guarantee scheme, which ensures that all under-25s receive continued education, a job, apprenticeship or traineeship? How would the Government use the money that would come from this European initiative?
My Lords, clearly there are various initiatives. Some €6 billion across Europe is not a huge amount, and we are spending a great deal on our youth unemployment issues with the youth contract. If it emerges out of these meetings that one of the aspects of the European scheme is to encourage SMEs to take on youngsters by offering loans, clearly that is something that we will look at.
My Lords, does the noble Lord accept that talking to others might be helpful, but that generally they are pretty useless, especially in summits? Will he also accept that 1% growth at best over the coming years will be no way to help to increase employment among young people or anybody else?
We have had a recession and we are now having slow growth. One of the most interesting things is how the effects on employment have been nothing like what we have seen in previous recessions. One reason is the effectiveness of active labour market polices, particularly those that address youth unemployment, which has been coming down in the last year in particular in a way that it probably would not have done in previous recessions.
My Lords, will my noble friend remind the noble Lord, Lord Roberts, that money that comes from Europe is our money, which has gone to Brussels, has had a large amount sliced off for its own purposes and waste, and has then been graciously returned to us? Can he also explain to me, because I do not understand, why so many young people are unemployed here but so many young people can come from Poland, the Czech Republic, Slovakia, and find jobs here without any trouble at all? What is the explanation for that?
My Lords, the blunt explanation for that is that we have a welfare system that traps people in inactivity and makes it very difficult for them to pick up some of the jobs that other people find it easy to take. That is why we are reforming the welfare system root and branch, in particular why we are bringing in the universal credit, which will get rid of that trapping effect of our benefit system.
My Lords, one of the recommendations of the Wolf report, which, as noble Lord’s will remember, I am very enthusiastic about, is to underpin the importance of apprenticeships and vocational training. In the latest year for which I have a record, 2011-12, we had more than half a million apprenticeships—520,000. That is up 86% on the two years before. Clearly this is one of the most important ways in which to get youth back into the workforce in a sustainable way, and it is something that we are pursuing aggressively.
My Lords, the Minister might not realise that one consequence of our very, very slow growth is that 1 million young people are out of work. In the north-east, where I live, a quarter of young people are out of work. We now need something really radical. May I make a suggestion? Labour’s job guarantee would mean that any young person out of work for a year would be guaranteed a job and would have to take it. Will he match that?
My Lords, we have a huge number of programmes in our youth contract to encourage people into work. One thing I need to emphasise is that we have a long-term problem of disengaged youth, which we had right through the longest boom we have ever had. The real measure here is people not in education or work. In 2001, that figure stood at just shy of 1 million and it rose through the boom period. Since the election, we have pulled it down by 60,000. The figure currently is 1.3 million. It is a real problem that cannot be brought down with short-term programmes; it is brought down by fundamentally restructuring how youngsters are supported—through vocational education as a key underpinning to get these kids into meaningful long-term work.
My Lords, Turkey is a democracy with multiparty elections and a democratically elected Government. We are following events in Turkey closely. There have been disturbances in Ankara and Istanbul. The Foreign Secretary and the Minister for Europe have spoken to their Turkish counterparts about the protests. As friends of Turkey we hope to see the issues raised by the protesters resolved peacefully through dialogue. A stable, democratic and prosperous Turkey is important for regional stability. Turkey remains an important foreign policy partner and a NATO ally, and the UK will continue to support its reform agenda.
My Lords, does my noble friend agree that the resilience of a democracy is tested through how it responds to internal dissent? The clampdown in the past three weeks on not just protesters but also on medics, hoteliers and simple bystanders who were only helping the wounded as well as on the media demonstrates an authoritarian strand. Does she agree that this can assist only those who argue against Turkey’s entry into the EU on the basis of the Copenhagen criteria? Is she working with European partners, as well as Turkish authorities, to help solve this?
My noble friend raises important points and we have raised our concerns exactly in the way that she has described. Of course, she will accept that Turkey is on a positive path to reform. A huge amount of economic and constitutional reform has been effected. As regards Europe, we are concerned about countries that are raising concerns about not opening up further chapters on accession; however, we must also remember that before these protests there were many countries which for the past three years have objected to opening up any chapters on further accession.
There is proper concern at the increasing authoritarian tendencies by the Turkish Government and certain Islamic tendencies. However, should not the Turkish Government be given credit for their opening up to their Kurdish minority and their far greater reconciliation than any previous Government, not only in Turkey, particularly in the south-east provinces, but also in relations with the Kurds in northern Iraq?
The noble Lord makes an important point. As well as reform of the constitution generally that has assisted the Kurdish peace process, progress in that process has meant that Turkey has been heading in the right direction, and we must support and congratulate it on that.
My Lords, after the terrible scenes that we have seen over the past few weeks of how the security forces and police have responded to these demonstrations, does my noble friend share my view that Turkey’s huge economic success in the past decade now needs urgently to be matched by democratic reforms to ensure an anti-authoritarian, inclusive society that the younger generation in particular, who are educated, middle class and secular—I include women in this—are demanding? I declare that I have family and friends who have been involved and caught up in this, especially women’s groups with whom I work. Does my noble friend also think, as has been touched on, that the UK and the EU now need to engage more than ever with Turkey? As has been mentioned, fundamental chapters have been closed, such as Chapter 24 that would force the reform of justice, freedom and security, and Chapter 22 on regional development.
My noble friend makes an important point in relation to Turkey’s economy. It has enjoyed 5% growth on average over the past 10 years. It is effectively one of Europe’s strongest-growing economies. We must congratulate Turkey on that. Britain has seen success on the back of it, but I take the noble Baroness’s point in relation to further European accession. It is because Turkey continues its path towards European accession that it carries on making these reforms and we must therefore encourage rather than discourage it.
My Lords, I welcome the noble Baroness’s response in regard to the Kurdish question that is long outstanding in Turkey. Does this not include work on a new constitution and can our Government be helpful through our experience of devolution within the United Kingdom?
My Lords, I share the view that the Minister has expressed about the importance of Turkey, to this country, its own region and potentially the European Union. I would like to return to one of the points made by the noble Baroness, Lady Falkner, because it is important to get a precise answer. The attacks on doctors and nurses in the course of these demonstrations, and on hospitals to where people injured in the demonstrations have been taken, seem to raise profound questions about the way in which we work with the World Medical Association and other competent medical authorities. How do the Government propose to do that? Plainly it cannot be the case that those who are assisting the injured and seriously injured are left to fend for themselves.
It is important for noble Lords to understand slightly more the complexity of what led to these protests. What started off as concerns about a Bill on the use and sale of alcohol became an environmental dispute about the development of a shopping mall in Gezi Park, which has stood for 60 years. This then became a broader political dispute. It is important for us to remember that there are different things happening with the different groups in Turkey, but I completely take the noble Lord’s point in relation to making sure that these matters are resolved peacefully and by a political dialogue, and that Turkey continues to be aware of its international obligations in dealing with these protests.
Armed Forces: Redundancies
My Lords, the Chief of the General Staff and his team assess that the size and the structure of the Army set out in Future Army 2020 will deliver the level of capability agreed in the October 2010 SDSR and the associated national security strategy. The Army’s element of the Armed Forces redundancy programme is a consequence of the size of the Army being delivered under Future Army 2020 and as such there are no implications for the UK’s defence capabilities.
“There’s never been a better time to be a soldier, to get qualified and have a career”.
That is on the Army website at this minute. It further states that,
“there will be even more opportunities for people who want to enjoy the challenges that come with being a soldier”.
That is a sham. If there were any justice the Government would be prosecuted for issuing a misleading prospectus. The Minister is well regarded in this House, deservedly so, and perhaps he is here with a heavy heart today, but how much longer will the Government go on sacking highly trained, highly skilled, highly motivated soldiers who have been trained at great expense to the taxpayer and have served our country well, and, at the same time, spend an absolute fortune on advertising for, recruiting and training their replacements? It is a total waste of taxpayers’ money and is harming our defence capability.
My Lords, no Government likes making these kinds of redundancies. While reduced recruiting and fewer extensions of service will account for some reductions, a redundancy programme is needed to ensure that the right balance of skills is maintained.
My Lords, the number of applications for redundancy is not a good indicator of the state of morale because the Army has deliberately set out to maximise applications. Additionally, it should be noted that only 30% of those who were eligible applied for redundancy.
My Lords, will the Minister expand on his Answer in relation to reductions in the Army to include reductions in the Royal Air Force and the Royal Navy? The proposals were for 5,000 reductions in the RAF and 5,000 in the Royal Navy. Can he tell the House the timing of those reductions and what progress has been made? Following on from the previous question, what is the state of morale in the Armed Forces if voluntary redundancies are of the extent about which we have been told?
My Lords, I think I covered the question of morale in my previous answer. As to redundancies in the Royal Navy and the Royal Air Force, in tranche 1, 2,800 personnel—just over 1,000 Royal Navy, 920 Army and 920 RAF—were selected for redundancy, of which 62% were applicants. In tranche 2 of the Armed Forces redundancy programme, 3,760 personnel—165 Royal Navy, 2,880 Army and 750 RAF—were selected for redundancy. Achieving the reductions required to bring the Regular Army to a strength of 82,000 is expected to require a further redundancy tranche, which may also include medical personnel of the Royal Navy and the Royal Air Force. However, at this point, no decision on this has been taken.
My Lords, the Minister is aware that the Chief of the General Staff and the Secretary of State for Defence are both on record as saying that any further cuts would dramatically impact on our military capability. All of us who have any knowledge of the MoD know that there is insufficient funding for Future Force 2020, to which the Minister referred. Notwithstanding this and assuming that there will be further cuts, have we conducted a detailed analysis—rather like the highly regarded global strategy paper that was produced—looking at the true impact of these forced reductions on our Armed Forces’ ability to conduct the military operations that our nation has a right to expect of them?
My Lords, on the first part of the noble Lord’s question, as he would expect, I agree with the Secretary of State. On the issue of detailed analysis, as the noble Lord knows there are some very bright people in the Ministry of Defence and I can assure him that endless meetings are taking place to discuss the way forward.
Would the noble Lord be kind enough to return to the Question he was originally asked by my noble friend Lord Touhig and address the recruitment campaign? I do not think I heard him answer the implied question. Why are we still recruiting when we are making redundancies?
My Lords, even while reducing in size, the army must continue to recruit new talent to replace those who are promoted. It needs to develop its own leaders. It cannot bring in people from outside to leadership roles without the necessary military experience.
My Lords, all personnel who have been graded permanently below the minimum medical retention standard were exempt from redundancy and, where appropriate, will be medically discharged in due course. Every case of wounded, injured or sick will be assessed individually. No one will leave the Armed Forces through redundancy or otherwise until they have reached a point in their recovery where leaving is the right decision, however long it takes.
My Lords, is it not disingenuous and absurd to suggest that you can reduce the Army from 102,000 to 82,000 with no reduction in the nation’s defence capability? Will the noble Lord set out the figures clearly and frankly? What was the maximum military force that we were able to sustain over a number of years—for example in Iraq or Afghanistan—with an Army of 102,000, and what will be the maximum military force that we can deploy on a sustainable basis under the new arrangements for an Army of 82,000?
Care Quality Commission: Morecambe Bay Hospitals
My Lords, with the leave of the House, I shall now repeat a Statement made in another place yesterday by my right honourable friend the Secretary of State for Health on Morecambe Bay Hospitals. The Statement is as follows.
“I wish to make a Statement about today’s independent report into the CQC’s regulatory oversight of University Hospitals, Morecambe Bay. What happened at Morecambe Bay Hospital is, above all, a terrible personal tragedy for all of the families involved. Before saying anything else, I want to apologise on behalf of the Government and the NHS for all the appalling suffering they have endured and, in that context, I know that the whole House will wish to extend our condolences to every one of them.
Joshua Titcombe’s tragic death was one of 12 serious untoward incidents, including five in the maternity department. His family and others have had to work tirelessly to expose the truth—and I want to pay tribute to them for that—but the fact is that they should not have had to go to such lengths. As we saw with Mid Staffs, a culture in the NHS had been allowed to develop in which defensiveness and secrecy were put ahead of patient safety and care. Today I want to explain to the House what the Government are doing to root out that culture and ensure that that kind of cover-up never happens again.
The independent report was commissioned by the new chief executive of the CQC, and the new team running the organisation has made it clear that there was a completely unacceptable attempt to cover up the deficiencies at the CQC. The report lists what went wrong. Unclear regulatory processes, reports commissioned and then deleted, lack of sharing of key information and communication problems throughout the organisation. Most of the facts are not in dispute. All of them are unacceptable. They have compounded the grief of the Titcombe family and many others.
The role of the regulator is to be a champion for patients, to expose poor care and to ensure that steps are taken to root it out. It must do this without fear or favour. It is clear that at Morecambe Bay the CQC failed in that fundamental duty. We now have a new leadership at the CQC and we should recognise its role in turning things around. David Behan was appointed chief executive in July 2012. One of his very first acts was to commission the report that we are now debating. David Prior was appointed the new chairman in January this year. He has rightly insisted that this report be published as soon as possible. Those two outstanding individuals have never shrunk from addressing head on the failings of the organisation they inherited and are wholly committed to turning the CQC into the fearless independent regulator the House would like to see. While I do not underestimate the challenge, I have every confidence in their ability to undertake it. David Prior will now report back to me on what further actions the CQC will take in response to the report, including internal disciplinary procedures and any other appropriate sanctions on individuals.
Working with the CQC and following the Francis report into the tragedy at Mid Staffs, the Government are putting in place far-reaching measures to put patient care and patient safety at the heart of how the NHS is regulated. The CQC is appointing three new chief inspectors—of hospitals, social care and general practice. This will provide an authoritative, independent voice on the quality of care in all the providers that the CQC regulates. The commission has already announced the appointment of Professor Sir Mike Richards as the new Chief Inspector of Hospitals and on Monday the CQC launched a consultation, “A New Start”, which outlines its new much tougher regulatory approach. This includes putting in place more specialist inspection teams with clinical expertise. It will include Ofsted-style performance ratings so that every member of the public can know how well their local hospital is doing, just as they do for their local school.
The Government will also amend the CQC registration requirements so that they include an emphasis on fundamental standards—the basic levels below which care must never fall, such as making sure patients are properly fed, washed and treated with dignity and respect. Failure to adhere to these will result in serious consequences for providers, including, potentially, criminal prosecution. The revised registration requirements will also include a new statutory duty of candour on providers that will require them to tell patients and regulators where there are failings in care—a failure that was identified clearly in today’s report.
Finally, we are putting in place, through the Care Bill, a new robust single failure regime for NHS hospitals. This will provide a more effective mechanism to address persistent failings in the quality of care, including the automatic suspension of trust boards when failings are not addressed promptly.
The events at Morecambe Bay, Mid Staffs and many other hospitals should never have been covered up, but they should never have happened in the first place, either. To prevent such tragedies we need to transform the approach to patient safety in our NHS. The Prime Minister has therefore asked Professor Don Berwick, President Obama’s former health adviser and one of the world’s foremost experts on patient safety, to advise us on how to create the right safety culture in the NHS. He and his committee will report later this summer.
In addition, later this year we will start to publish surgeon-level outcomes data for a wide range of surgical specialties. Most of all, we need a culture where, from the top to the bottom of NHS organisations, everyone is focused on reducing the chances of harming a patient in the course of their care, and a culture of openness and transparency to ensure that, when tragedies do occur, they are dealt with honestly so that any lessons can be learnt. Our thousands of dedicated doctors, nurses and healthcare assistants want nothing more than to be allowed to make this happen. We must not let them down or the families who suffered in Morecambe Bay”.
My Lords, that concludes the Statement.
My Lords, I am grateful to the noble Earl for repeating the Statement, and I declare my interest as a consultant trainer with Cumberlege Connections and as chair of the Heart of England NHS Foundation Trust. Yesterday’s report will have left your Lordships shocked. The noble Earl began with an apology and we on this side of the House echo that apology. Of course, it is a sad fact of life that mistakes will be made. What is never acceptable is when people or organisations try to hide those mistakes. Sadly, this is what appears to have happened in this case.
The report covers a four-year period up until autumn 2012 and deals with failures in regulation, but also with subsequent attempts at a cover-up. It was only published thanks to the efforts of James Titcombe and his family, and I echo the tributes that the noble Earl has paid to him. It is essential that he and all the other families affected in Lancashire and Cumbria get the answers they are looking for. We on this side of the House are fully committed to making sure that this happens.
The most shocking revelation in this report is that in March 2012 an instruction was given by a member of senior management at the CQC to delete the findings of an internal review. Today’s report says:
“we did find evidence of the apparently deliberate suppression of an internal CQC report … and the alleged decision to suppress it … may constitute a broader and on-going cover-up”.
When one considers the context in which this takes place, it is truly shocking. At that time, we were almost two years into a public inquiry into the failings at Mid Staffordshire. That followed an earlier independent inquiry, also led by Robert Francis, following which all parts of the NHS had committed to full openness and transparency. It came after failings at other trusts, most notably Basildon and Thurrock, had been made available, which led to the Opposition calling for an in-depth look at hospitals and a new assurance that they were safe. That is why yesterday’s report is so hard to comprehend. It raises serious questions for the CQC and the Government, which I will take in turn.
On the question of the CQC, I agree with the noble Earl’s assessment of the quality of the new leadership team at the CQC. I commend the new chief executive, David Behan, for commissioning this report. However, yesterday the chair, Mr David Prior, said that he wants to draw a line under the issue. Does the noble Earl agree with me that that line can be drawn only when further questions about the report are answered?
On the cover-up, paragraph 1.17 of the summary of the report says, as I said earlier, that the order to delete,
“may constitute a broader and on-going cover-up”.
Will the noble Earl address this point directly and tell the House whether he is confident that this cover-up is no longer happening? Is he satisfied that the CQC is taking all appropriate steps, and does he have full confidence going forward, or does he believe that a further process of investigation is necessary?
More specifically, is anybody who is involved in the decision to delete that report still working at the CQC or elsewhere in the National Health Service? If they are, I think the public will find that very hard to accept. Given that accountability is essential, does he agree that the public would find it very hard indeed to accept data protection laws standing in the way of this? Will he therefore review the decision to shield the identities of those involved?
The noble Earl will probably have heard the Information Commissioner, speaking today about the use of the Data Protection Act, saying, as I understand it, that there is no blanket ban under the Data Protection Act that would deal with a situation like that, and that if there is an overriding public interest in the names being in the public domain, the Data Protection Act should not be prayed in aid.
I know that the CQC is now seeking further legal advice, and that is welcome. In the end, does the noble Earl agree that sometimes organisations have to override legal advice and do the right thing? I hope the CQC will do that and do it quickly.
Turning to the noble Earl’s department, can I just have it confirmed that the decision to delete the report was taken solely by senior management at the CQC? Can he confirm that officials in his department were not aware of that deleted internal report and were not involved in any discussions between the CQC and the department about it?
Yesterday, at Prime Minister’s Questions, the Prime Minister said that there should always be support for whistleblowers, and he was right. However, there are serious doubts about whether that happened in this case. Concerns about the CQC were raised by a whistleblower, but I understand that she was then subject to attempts to remove her from the CQC board. The noble Earl will recall that I raised this in the House, and he very kindly took action on the matter. It has been reported that the same whistleblower told the CQC board yesterday that she raised issues internally first and then within the department, including directly with the then Secretary of State, in a meeting. Is the noble Earl prepared to release the minutes of those meetings?
We note the important work of Mr Don Berwick, but should we not be getting on with implementing the recommendations of the Francis report in this regard? The Care Bill, which is now in your Lordships’ House, is an ideal vehicle for implementing Francis but is remarkably light on clauses relating to Robert Francis’s recommendations. His report emphasised the need for openness, transparency and candour. Openness will enable concerns and complaints to be raised freely and without having questions to answer. Transparency will enable the truth about performance and outcomes to be shared with everybody with an interest in it. Candour will ensure that any person harmed by the provision of a healthcare service is informed of that fact and an appropriate remedy offered.
Francis made specific recommendations, including that a statutory obligation should be imposed to observe a duty of candour. He wanted healthcare providers who believe or suspect that the treatment or care provided to a patient has caused death or serious injury to inform that patient, or a duly authorised person, of that fact as soon as practical. He said there should be a statutory duty on all directors of healthcare organisations to be truthful and that it should be made a criminal offence for any registered medical practitioner to knowingly obstruct another in the performance of the statutory duties that he wished to see enacted, to provide information to a patient or nearest relative intending to mislead, or to dishonestly make an untruthful statement. However, the only offence in the Bill is a corporate one of providing “false or misleading information”. That is not a duty of candour, so I was very surprised to see the Secretary of State say yesterday in the other place that there would be a duty of candour in the Care Bill. It is not in the Care Bill and I do not think that secondary legislation is sufficient.
Does the noble Earl also not agree, in the light of what happened at the CQC, that it is perverse that the duty not to provide false or misleading information applies only to providers? It does not apply to the CQC; to the other regulator, Monitor; to NHS England; or to his own department. Is he prepared to agree to amendments to the Care Bill on Report to extend this duty to the organisation that has been found so grievously to suppress information that it found itself uncomfortable with?
There is clearly a real problem about the approach that the CQC has taken to hospital regulation. Is the noble Earl willing to have a lengthier debate about regulation? I wonder whether we are just putting too much responsibility on regulators and not enough on the people who actually provide those services. I particularly worry about what he says about the introduction of Ofsted-style ratings into the health service. He will have seen evidence from a number of medical bodies, which are concerned that this is going to be too simple a process when judging something as complex as a hospital.
A hospital may be given a 1 rating—an outstanding rating Ofsted-style—but inevitably within a large hospital, although overall it may be a category 1 there are likely to be services that are not so good. My worry is that a hospital, because it has been given a 1, will not then be reinspected for a number of years, which is the Ofsted style, and its weaknesses will go undetected. When at some point a real problem with patient care comes into the open, it will undermine the whole credibility of the exercise undertaken by the CQC.
We know that the CQC has really been pushed into this by the Government and the Prime Minister. I hope it will be given the flexibility to come up with a more sophisticated approach. We do not want to set the CQC up for failures in the future. I am very fearful that a simple grading of 1 to 4 is almost guaranteed to do that. Overall, I am glad the Government have brought this Statement to Parliament. It is very important indeed that the messages and lessons are learnt. However, we need a much wider debate about the role of regulation in the health service and about whether the practicalities of this can be taken forward effectively by the CQC.
My Lords, I am grateful to the noble Lord, Lord Hunt, for his measured comments, and I am the first to agree with him that the report we now have is very deeply worrying. It sets out conclusions about the CQC’s leadership and operation during the period in question that are very shocking. What happened was totally unacceptable.
The CQC today is a different organisation and I was glad to hear that the noble Lord recognised that. Its board and management team have been completely overhauled. A new chief executive and chair are in post. A powerful new Chief Inspector of Hospitals has been appointed, an appointment that has been welcomed widely. The new leadership, as the Statement said, commissioned and published this report to make sure that the events of the past are exposed and that lessons can be learnt from them.
I am very pleased that the CQC will now be overseeing the production of a report within the next two months to provide assurance that any cover-up has been fully exposed and stopped and that the mistakes made by the CQC in regard to Morecambe Bay hospitals are being put right. That will ensure that the organisation’s structures and procedures are such that these shocking events cannot be repeated.
The noble Lord referred to what I agree with him is the troubling issue of the anonymisation of names in this report. Our clear understanding from the CQC was that its legal advice was that the report had to be anonymised prior to publication to comply with data protection legislation. We asked the CQC to consider this further and to provide advice on whether it was possible to release the names. Yesterday, it gave a commitment to do just that. It has now done so and my understanding is that it will later today publish the names of certain individuals currently anonymised in the Grant Thornton report.
The noble Lord asked whether the Department of Health had seen the report prepared by the CQC, which was then withheld. We have extensively asked officials throughout the department. There is no evidence to suggest that anyone in the department knew that the CQC had commissioned a report into its handling of Morecambe Bay and subsequently withheld it, still less that anyone actually saw it.
The noble Lord raised the issue of the whistleblower, Kay Sheldon. Her concerns about the CQC’s capability were considered alongside a range of other evidence as part of the DoH performance and capability review that was carried out between October 2011 and February 2012. The issues she subsequently raised have been considered along with other information as part of the department’s ongoing oversight of the regulator. The appointment of David Prior as chair of the CQC in January and David Behan as chief executive last July, combined with a strengthened board and the CQC’s new strategy, puts the organisation in a good position for the future.
When Kay Sheldon approached the department she was asked to raise the issues with the CQC board, and DoH officials also raised the issues with the CQC team in line with our normal approach to operational issues. The noble Lord asked whether we will release the minutes of the meeting with Kay Sheldon and the Secretary of State. I am happy to take that request away and I will let the noble Lord know whether that will be possible.
The noble Lord rightly raised the issue of culture in the NHS. The overriding message from the document that we published, Patients First and Foremost, which arose out of Mid Staffs, is that the culture of the NHS governs the quality of everything it does. We are clear that radical transparency, excellence in leadership, clarity of accountability and consequences for failure are together necessary if we are to maintain in the NHS the focus on quality and safety and for concerns to be identified quickly and acted upon.
Transforming culture is a complex challenge that will be different in each organisation. We believe that a combination of the steps that we have set out, such as ratings, which we will debate during the course of the Care Bill, a Chief Inspector of Hospitals and a failure regime that puts quality on a par with financial failure will contribute to making a real difference to the experience of patients. I look forward to the debate on ratings because I know that the noble Lord has concerns about the idea.
The noble Lord referred specifically to the duty of candour. In our response to the Francis report we said that we would introduce a new statutory duty of candour on providers. We agree that it is essential that providers of health and social care must be open in their dealings with patients and service users. We intend to introduce an explicit duty of candour on providers as a CQC registration requirement. That will require providers to ensure that staff and clinicians are open with patients and service users where there are failings in care.
As with all requirements for registration with the CQC, our intention is that the duty of candour will be set in secondary and not primary legislation. I am sure that my right honourable friend the Secretary of State would not mind me saying that he made a slip of the tongue yesterday. He meant to say that a statutory duty of candour will be put in place. However, I emphasise that the duty will have the same legal power in secondary legislation as it would in primary legislation.
The noble Lord made a number of powerful points on false and misleading information. The Care Bill will make it a criminal offence for care providers to give false or misleading information where information is required by a legal obligation. We will specify through regulations the type of information within scope of the offence. However, a failure to provide information would be a breach of the relevant legal requirement to provide it and would be subject to appropriate action.
In determining the scope of the false or misleading information offence, our current focus is on information supplied by providers who are closest to patient care, in which inaccurate statements can allow poor and dangerous care to continue. We need to give further consideration to the events highlighted in the Grant Thornton report and to reflect on whether a false or misleading information offence should apply to other health bodies such as regulators.
My Lords, I welcome the Statement made by the noble Earl, particularly in respect to the CQC’s new focus on being a champion for patients, putting safety and care at the heart of the system and having more specialist teams. I am particularly pleased that David Behan has been appointed as the new chief executive. However, I am extremely concerned that another scandal is looming round the corner. There are very strong warnings. I am extremely concerned that mental health patients detained under the Mental Health Act are very poorly served at the moment. To put this in context, the CQC was formed from three organisations: the Healthcare Commission, the Commission for Social Care Inspection, and the Mental Health Act Commission. The Mental Health Act Commission was not an inspectorate—it was a visitorial body, and looked after the care and treatment of detained patients. It did so by employing a number of commissioners with specialist expertise, not only in understanding the issues faced by mental health patients but also in mental health law, which is so important.
I am coming to the question.
As the former chairman of the Mental Health Act Commission, I was assured when those organisations merged that the CQC would keep the focus of those commissioners, those skills and that methodology, and that specialist focus and attention would be given. That is legally required under the Mental Health Act, but it has not happened. Over the last few years the expertise of Mental Health Act commissioners has been eroded. Can the Minister assure me that this focus will be renewed, and the focus of Mental Health Act commissioners returned? Will the Government consider having a chief inspector of mental health? That was one of the original ideas when it was formed.
My Lords, I recall the noble Lord, Lord Patel of Bradford, making those points very powerfully some years ago when we debated the Bill that created the CQC. He makes an extremely important point. I think that we can take it from the statements of David Prior yesterday that the decision taken in 2009 to take a generalist approach to inspection was a mistake. The CQC’s inspectors are in one sense specialist inspectors who are trained and supported to carry out their role, which they do to the best of their ability. However, requiring inspectors to have oversight of a wide range of service types from slimming clinics to acute hospitals, and indeed mental health establishments, has spread expertise too thinly.
We are clear that we must now work with the CQC to create a much more specialist approach to inspection, including on mental health. I think that the three new chief inspectors we are appointing will help to do that. It is not the whole answer, because they need to be supported by clinical expertise and by the people who are experts by virtue of their experience in care services. However, I will take away the noble Lord’s idea of a chief inspector of mental health. I must be honest with him that we have not discussed this, but I am sure that we now should.
My Lords, I wonder if my noble friend would take account of the suggestion of the noble Lord, Lord Hunt of Kings Heath, that legal advice can sometimes prevent people from doing the right thing. I was very sorry to hear that. I think that good legal advice should in fact produce the result of people doing the right thing. The second point I want to make relates to the claims against the health service for negligence. These have been quite substantial over the years. Could the CQC look at that area and examine the grass-roots standard of care given to patients?
My Lords, the deputy Information Commissioner is quoted as saying that confidentiality and data protection issues should not stand in the way of disclosure where disclosure is clearly in the public interest. I completely agree with that. That is why our instant reaction yesterday, when we were told by the CQC that legal advice had said that the names of the individuals had to be kept confidential, was to challenge that. I am pleased that that decision is to be reversed and the names will be released.
On my noble and learned friend’s second point, most certainly yes: the CQC should take a view about matters relating to negligence. However, I would add that apart from the CQC, we now have the new Healthwatch bodies, part of whose function will be to make sure they provide good soft intelligence on what is happening in NHS and social providers in their local areas. The Healthwatch bodies can then act as the eyes and ears of the CQC, which, with the best will in the world, cannot be everywhere at once. In terms of the future—this is clearly a longer-term agenda—I hope we will have a system that is better equipped to pick up this kind of incident should it ever occur again.
My Lords, I welcome the idea of a statutory duty of candour and all the other means of regulation being discussed, but what appears to have happened here—and obviously it is just an allegation—is a simple case of malfeasance in public office. One of the things that seem to have happened over scandals such as Stafford, or even LIBOR, is that the ordinary criminal law of the United Kingdom has not been considered. I assume that the CQC is a public body. It is certainly paid for by public funds, and therefore its officials are subject to the common law.
My Lords, clearly it is a matter for the police to investigate criminal offences and for the Crown Prosecution Service to consider whether the test for prosecuting individuals has been met in this case. It is too early to reach a conclusion about whether this case highlights a gap in the law but if it does, I can assure the noble Lord that we will pursue it. We keep the criminal law under review. It is too early for me to say—I am not a lawyer—whether he is right, but I am sure that his comments will resonate strongly with the House.
My Lords, chaplains occupy a unique position in hospitals in relation not just to patients but to staff. Will the Department of Health keep under review the role of the chaplain in relation to both patients and staff, especially when a culture of carelessness and intimidation emerges?
The right reverend Prelate makes an extremely important point. The Government have been very supportive of the concept of hospital chaplains, who play an enormously important role in supporting not just patients but staff. I am concerned because I have heard anecdotally that in some hospitals there are moves to dispense with hospital chaplains. I am in touch with one of his right reverend colleagues about this. Once again, we have a mechanism—if I may call them a mechanism—that could be deployed to good effect in this context.
The Government’s support for the current leadership and the newly launched New Start consultation will be welcome to all those of us who know the current people. Can the Minister assure the House that the Government will stand firm in this support when the tabloid press starts calling, as it surely will, for more heads to roll? Will he further assure the House that he believes that the last thing that the CQC needs is more change at the top?
I agree fully with everything that the noble Baroness has said. We have in the CQC the right team to take it forward. They are very clear that there needs to be a complete refresh of the senior team where doubts emerge about the individuals concerned. We are already seeing a complete refresh of the board. I share her worry about the tabloid press and calls for heads to roll. Nevertheless, it is appropriate, in the particular context of Morecambe Bay, for there to be a close look at the role of certain individuals: exactly what they did, what they knew, when they knew it and whether what they did was either wrong morally or against the law.
My Lords, I wish to refer to the introduction of a new, robust, single-failure regime for NHS hospitals. This will provide a more effective mechanism to address persistent failings in the quality of care, including the automatic suspension of trusts. As a nurse, I was trained to look at prevention rather than cure. Ought we to be looking at, and including in this, the preparation of trust boards, as well as the staff, looking across the consensus of the trust rather than concentrating on targets? It is often mentioned in reports that they do not look at the quality. We need to see a much more cohesive trust report.
My Lords, this is one of the reasons why the previous Government introduced quality accounts, which are becoming more and more sophisticated and which focus the minds of a board on quality of care. It is easy to give the impression that we want to introduce a punitive culture into the NHS: we do not. However, there should be sanctions in the background to back up any serious failings of care. That is broadly what Robert Francis was driving at in talking about fundamental standards below which no care provider should fall. The CQC will be consulting on those standards later in the year, but I take the noble Baroness’s point about trust boards. It remains within the powers and competence of Monitor to suspend trust boards, either in whole or in part, where concerns arise over the governance of an organisation. That is a drastic power to invoke and they can take measures which fall short of it where appropriate.
My Lords, am I alone in being surprised that it should be necessary to have legislative change to secure a duty of candour? Does this mean that, in the absence of this change, the CQC has the right to tell lies?
My other question is on the inspection regime. I understand that a generic system used to work in the past, whereby somebody whose expertise was in dentistry was sent off to inspect an A&E department. Who was responsible for the decision to run the inspection regime in that way?
My Lords, there has never been a right to tell lies, either professionally or in statute. My noble friend is right that we should be shocked that it is necessary to put in legislation that there has to be a statutory duty of candour. Candour has been part and parcel of the ethical framework for professionals in the health and care sector for many years. It is a sad reflection on those involved in the events at Mid Staffs and Morecombe Bay that we should be thinking in these terms at all, but we must, because unless we do we lay ourselves open to matters being brushed under the carpet, as they have been in these cases.
The inspections themselves have not been generic: it is the skills on the part of the inspectors that were considered to be adequate as those individuals were deployed generically. That decision was taken very early on when the CQC first came into being in 2009. We now think, as does the CQC, that that was wrong and that skills should be altogether more specialist.
As someone who lives in the catchment area of Barrow-in-Furness hospital, I have followed the story very closely. Does the Minister agree that, while we are discussing the cover-up by the CQC today, it in turn was investigating shortcomings by what was presumably the previous management of Morecambe Bay hospitals? Did he see the very pointed quote yesterday in the other place by the MP for Barrow-in-Furness, John Woodcock, who has done so much in this? He quoted the report as saying that there could be a “broader and ongoing cover-up”. Can he give the House an assurance that any investigation will not stop at the CQC but will look at the main cause of the disturbance and Mr Titcombe’s complaint initially?
My Lords, I can give that assurance. In part, we have the answers in the Grant Thornton report commissioned by the CQC on the actions that the CQC took or did not take. As I said in answer to the question asked by the noble Lord, Lord Hunt, it is reassuring that the chief executive of the CQC has undertaken to produce for the department within the next two months a report to provide assurance that any cover-up has been fully exposed and that we will learn fully not only the facts but the lessons that we can draw from them.
I thank the noble Earl for repeating the Statement. It has caused quite a stir. My worry is two-fold. First, we had a big reaction to what happened at Mid Staffs, and now we have this. I would want us to be very careful not to become desensitised by some of these things—I do not mean in this House, but elsewhere.
I will pick up on the comments of the noble Baroness, Lady Emerton, and agree with her totally. As chairman of Barnet and Chase Farm Hospitals NHS Trust, I find it bewildering that, never mind any cover-up at the CQC, the board was not aware of those tragic deaths of mothers and babies. Certainly, in my trust that would absolutely be reported, both through the quality and safety committee that deals with what are called SUIs, or serious untoward incidents, and from the board itself. It would be helpful, as has been suggested, that the inquiry goes a bit further than just the CQC.
I am grateful to the noble Baroness. In fact, the trust has taken significant action in response to the concerns raised by the CQC and Monitor. In addition to responding specifically to the three warning notices issued by the CQC, there have been significant leadership changes at the trust. Sir David Henshaw was appointed as interim chair and Eric Morton as interim chief executive. The trust appointed four new non-executive directors and a new chief operating officer and recruited a new obstetric consultant and additional midwives. There have been other appointments as well. It has established a programme management office, as requested by Monitor, to oversee the implementation of programmes of work to bring about lasting improvements across the trust—and it has recruited a number of posts to the programme office to take that work forward. So I am encouraged that it is taking the position as seriously as it should in the circumstances and that, again, there is a refreshed team at the top of that organisation.
Very often, when we have these inquiries, they are initiated not so much by the people who work within the trusts but by members of the public who feel very concerned about the quality of care being given within a hospital or service. Very often, those people who bring up these concerns, who are dubbed colloquially as whistleblowers, get very victimised by other people within the population but also within the hospital. Is there any support or help that we can give those people who bring to the attention of the NHS some of the problems that exist?
My noble friend raises a key issue, which successive Governments have wrestled with. We all know how life works. Whistleblowers are treated badly because their message is often very uncomfortable. That is why local Healthwatch could potentially be a very important part of the puzzle here, by ensuring that people have a place to go to that they can trust and that can raise concerns without necessarily naming the person who has initiated those concerns.
More and more, we need to encourage providers of care to take ownership of their performance. They have to be candid with themselves and accept criticism where it is laid. Boards of directors have to look systematically and regularly at the complaints made against them—whether rightly or wrongly—to make sure that they are as open as possible with themselves. Only by instilling a culture of that kind can we move forward.
Motion to Take Note
My Lords, I am very honoured to be able to move that this House takes note of the very difficult problems facing severely bullied children, particularly of how they are able to learn and to get help with any mental health issues they face as they recover. I look forward to contributions from noble Lords today, many of whom have considerable knowledge and interest in this area. I am particularly looking forward to hearing the right reverend Prelate the Bishop of Truro as he makes his maiden speech. I declare my interest as the co-chair of the All-Party Group on Bullying and as a patron of the Red Balloon Learner Centres, a charity that works with severely bullied children.
Any head teacher who tells you with confidence that there is no bullying in his or her school is deluded. Bullying, as with any abuse of power, will always be with us. What we need to do as parents, educators, friends and family is to be alert and work with both bullies and the bullied as early as possible to recognise the bullying as it starts, and to work to change behaviour.
I am sorry to say that many people think that too much fuss is made of bullying and that children should just learn to cope with it. Today’s debate is not about the minor tiffs that all children go through, learning about relationships, power and listening to each other. It is about the children who are so severely bullied that it is having a catastrophic effect on their lives—to the extent that some children kill themselves—and about what we do as a society to respond to this problem.
First, let us clarify what we are talking about here. The definition of bullying is aggressive behaviour that is intended to cause distress or harm, involves an imbalance of power or strength between aggressor and victim, and commonly occurs repeatedly over time. Children severely affected by it miss school for long periods of time, often self-excluding due to the trauma caused by the bullying.
This image of self-excluding may seem odd to those who do not know about it. I will tell your Lordships about a time when I was standing in a primary school playground with a head teacher. We had talked about her early recognition and intervention techniques, but she wanted to show me the practical effect of bullying on a youngster. This child, no more than eight years old, was standing on the edge of the playground. He refused eye contact with any of the children and, when their play moved near him, he sidled round the edge of the playground as far away as he could. The head told me that he had arrived from another school and was finding all social relationships very difficult following bullying elsewhere. He did not want his parents to intervene with the school because every time they had reported it in the past, the bullying had got worse. Even worse for him, his previous school had told him that he was behaving like a victim. This head understood that he needed intensive support, which she had put in place, including staff members keeping an eye out for him and a safe place inside if he felt he could not bear to be in the playground. This child was heading towards a classic downward spiral. His concentration had gone; understandably, he was not learning; and it was going to take many months to start building him up again. At least he had parents who had taken action and a new school that understood the problem.
For too many children, help comes too late. Ayden Olson took his life aged 14 earlier this year. His mum, Shy Keenan, wants action to ensure that it never happens again. She said:
“Our wonderful 14 year-old son Ayden died on the 14th of March 2013—his spirit defeated, he was bullied to death at school and driven ... out of pain and despair ... to take his own life. We miss him so much. Our hearts just ache for him and as we try to adjust to a life without him, we have committed to carrying his dreams of bully free schools ahead with Ayden’s Law”.
Her campaign, with the charity BeatBullying and the Sun newspaper, is an outstanding example of how we need to change the culture surrounding bullying. Otherwise, even more children will die. However, Ayden is not the first; nor, indeed, is this the first campaign. Other recent tragedies include Aaron Dugmore. He hanged himself at home after relentless bullying. At nine years old, he is Britain’s second youngest suicide victim of bullying. Other cases are Natasha MacBryde, who jumped in front of a train because she was being bullied about her parents’ divorce, and Sam Leeson, whom internet bullies drove to suicide because of his taste in music and love of fashion.
Research already shows that more than 16,000 children a year are so severely bullied that they cannot face school, and it is estimated that a shocking 44% of suicides of children aged 10 to 14 have occurred at least in part because of bullying. I support much of what Ayden’s law seeks to achieve, including compulsory family intervention and children, teachers and social workers all having anti-bullying training. The model, Jodie Marsh, who was herself severely bullied at school, has worked with anti-bullying campaigner, Alex Holmes, to celebrate the good practice at some of our schools. She went to Springwell College in Staveley, Derbyshire, which has 25 anti-bullying ambassadors. They are now spreading that work to other schools. A TV programme broadcast a couple of months ago showed what they were doing with Carlton Community College in Barnsley to make sure that children themselves change the culture.
We need to really look at our schools and at educational support for these badly bullied children. One child described how,
“actually going to the school campus was terrifying”.
They want to learn, to have friends and to be in school, but it is literally too dangerous for them even to try to go and learn. How do schools handle children who refuse to go to school? Believe it or not, some are sent to specialist alternative provision known as pupil referral units. These units are designed for children whose behaviour is so unacceptable that they cannot remain in their mainstream school, and so often they are the bullies that these children desperately need to get away from. I shall say briefly here that we also need to address the behaviour of bullies, and I know that my noble friend Lady Walmsley will cover this in her speech.
When schools are in denial about bullying, they will not pay for alternative provision that may cost more than the school receives for educating that pupil. I am afraid that they often keep the child on the school roll—and therefore receive the government funding for that child—and say to the parent that the family could educate the child at home until things get better. Many parents do not feel that this is the right route for them, especially if they have to give up work to do it, thus costing the state even more.
Often, children need specialist support for only a limited period, and organisations such as Red Balloon have an excellent record in getting bullied students back into mainstream education. In Red Balloon’s case, it is 95%. Will the Minister make it absolutely clear that severely bullied children will receive the funding required to recover and continue their education, and that the schools will not keep the money if a pupil transfers to alternative provision or sits at home for months on end?
One young student I know from Red Balloon arrived there aged 13, having been bullied about the death of her single mother. That is shocking. She was unable to concentrate on anything, and her reading age was estimated at nine years. However, within two terms, she was reading—and enjoying—Great Expectations on her own. The intensive therapy alongside excellent education transformed her life but, for most, many schools do not even recognise that these children have special needs.
I remind the House that the definition of special educational needs is having learning difficulties that make it harder for children to learn or access education than most children of the same age. Surely severely bullied children fit that description. They need this formal label to help to create the package that is going to help them to return to their mainstream education, whether it is in school or college. It is evident to those who work with these children that severe bullying is, at the very least, a temporary special educational need that will persist and worsen without intervention. Will the Minister consider specifically adding severely bullied children to the category of those with special educational needs?
The Government are rightly concerned about the achievements of children who fall through the net. Students who end up in pupil referral units do not perform well. Less than 1% gain 5 A* to C GCSEs. That should be compared with specialist intervention at places such as Red Balloon, where the figure is 75%. Therefore, I further ask the Minister to ensure that alternative provision for bullied children is made available that compares performance not with the mainstream education system but with other children who also face major difficulties, whether the comparison is with pupil referral units or even with the data for looked-after children. It is not fair to set a benchmark for these children that does not recognise the trauma they are facing.
The reality of what these children and their parents have to deal with is stark, especially when schools refuse to face up to their responsibilities. A 13 year-old boy in year eight was threatened by his school and the education welfare team, which said that he had to come to school despite severe bullying because, if he did not, his mother would be taken to court and might go to jail. That is shockingly cruel. Schools should have to be responsible for the consequences of bullying in exactly the same way that employers have to provide a safe working environment for their employees.
Mental health problems are exacerbated when these children are made to feel that it is all their fault and that they are letting down their families. Giving them special educational needs status will ensure that schools can more easily work with GPs and specifically with child and adolescent mental health services. The latter is already very difficult to get referrals to, but a statement will provide the key to unlocking that urgent help.
The National Union of Students has surveyed school students, and its mental distress survey illuminated a lack of support and advice opportunities for students: 64% of respondents said that they did not use or have access to formal services for advice and support in relation to their mental distress; and 26% did not tell anyone about their feelings of mental distress. Evidence from this survey shows that levels of educational support and mental health provision are a concern not only in schools but in colleges and universities.
Bullying and harassment are demonstrable sources of mental distress for further and higher education students, too, and opportunities for support and advice are either unavailable or, worse, inadequately signposted. Can the Minister reassure the House that signposting for support and advice for school, and education beyond, are clear and evident to any student and their family in distress?
During this speech, I have referred to a number of different types of bullying. I have not touched on cyberbullying, which is a growing and insidious form. It needs to be part of the debate we are having as a nation at the moment about the use of the internet and social networking. It is all too easy to post something on Facebook that can cause lasting damage, and the viral nature of social networking means that things can escalate out of control very rapidly.
Reasons for bullying seem to grow. Schools pride themselves on their equality and diversity policies, yet race, homophobic and disability bullying remain. Schools must tackle the unacceptable culture that even thinks it is okay to taunt, let alone bully, someone because of their race, disability or sexual identity. There is also a disturbing increase in physical attack and even rape as a part of bullying.
It is our duty in society to help these 16,000 children who fall through the cracks in our education system. By giving children a statement and proper funding, we are investing in a transformation of their wrecked lives, even if it is only at very few of the schools in our country. Many are becoming inspirational champions as they recover. Let us hope that they become future leaders. We need to empower those schools that do not understand this to help build a network of support for severely bullied children. The country has instilled its trust in our ability to restore hope to these children. We cannot allow success so far to impair our ability to make our country a better place. We must ensure that there is not one more wrecked life; not one more suicide. Imagine if it were your child or your grandchild. You would want better.
My Lords, it is both a pleasure and a privilege to make a short contribution to this debate, initiated with great skill and in the most moving fashion by my noble friend Lady Brinton, who speaks with such tremendous authority on this grave social and educational issue—authority drawn from her patient, dedicated and successful work in combating it in practice on the ground.
School bullies are sad individuals, cowards every one of them, who gain satisfaction and pleasure from showing unkindness to others—a reversal of the right and proper order of things. Unkindness leading to persecution can be such that, in some cases, it leads—as we have heard—to suicide. My noble friend spoke particularly movingly on that point. For far too long, indeed over generations, there were in our country too many weak and callous teachers in uncompassionate schools who did little or nothing to tackle the disfiguring phenomenon of bullying in their midst. Today, however, they can no longer evade their basic responsibilities, which have been clearly defined in law, endorsed by all political parties and by successive governments.
This Government have shown themselves to be particularly sensitive to widespread concern—reflected in my noble friend’s important Motion today—about the extent of bullying prevalent in our schools. That is underlined by the deeply disturbing facts and statistics that my noble friend referred to. The Government have consistently shown their responsiveness to well founded anxiety. In 2011, they brought up to date the anti-bullying advice drawn up to enable all schools to tackle bullying effectively. Teachers have been given new powers to tackle the hideous new phenomenon of cyberbullying, for instance by searching for and, if necessary, deleting inappropriate images on mobile telephones. Very importantly, the Government have laid a requirement on Ofsted to take account of behaviour and well-being, including the incidence of bullying in schools. Most recently, funds have been made available to enable four specialist organisations to work with schools in exploring new, innovative ways of tackling the scourge of bullying. These points, I hope, bring some measure of comfort to my noble friend, while also underlining the need for her continuing commitment to securing further progress.
The Government deserve great credit for extending and enhancing the national framework through which bullying can be confronted and reduced. However, particularly after hearing my noble friend’s speech, we all now yearn for results—for tumbling rather than rising statistics. That can be the only truly satisfactory measure of success.
I will illustrate the point by turning to an aspect of the issue that has always been a particular concern and anxiety to me personally: homophobic bullying. Last year, Stonewall published results of research carried out on its behalf by Cambridge University, involving a survey of some 1,600 lesbian, gay and bisexual young people in our schools. Some 55% had experienced homophobic bullying in schools and 99% had heard homophobic language. It is not surprising, and confirms the other evidence that my noble friend has given us, that this bullying had a marked adverse effect on young people’s attainment, health and well-being. Three in five bullied pupils said that it had a negative impact on their schoolwork. One in three bullied gay young people had considered changing their future educational plans because of the bullying. Nearly a quarter of gay young people had thought of attempting suicide. More than one half had harmed themselves. Polling of more than 2,000 primary and secondary school teachers by YouGov, published in 2009, showed a similar picture. Nine in 10 secondary school teachers said that they had witnessed homophobic bullying. Worryingly, half of secondary school teachers who were aware of homophobic bullying said that the vast majority of incidents go unreported. There is a further important point to be made in this connection. Stonewall’s research into homophobic hate crime in 2008 found that three in five hate incidents are committed by people under the age of 25, highlighting the transition from homophobic bullying in schools to homophobic hate crimes in local communities.
In this area, as in others, the Government have shown commendable resolution and determination. They made tackling homophobic bullying a priority in both the coalition agreement and the 2010 schools White Paper. They have strongly encouraged schools to seek advice and support from Stonewall. Ofsted inspectors are advised to ask pupils about the use of homophobic language in their schools and whether or not they learn about gay people in the curriculum.
Perhaps the Government will now consider taking further steps. For example, through the National College for Teaching and Leadership, they could seek to ensure that high-quality training on preventing and tackling homophobic bullying is part of all teachers’ initial training. They could help schools further to share best practice and to learn from each other in this area, in particular encouraging academy chains to provide such opportunities among their schools. The Government could also ensure that free schools and new academies recognise the importance of combating homophobic bullying and supporting gay young people when establishing policy and procedures. As president of the Independent Schools Council, and its former general secretary, I also recognise that action in these matters should not be confined to the maintained sector. It is needed in all our country’s schools.
Bullying in schools causes serious, sometimes terrible, problems, both social and educational, for those who experience it at the hands of the cowards who practise it. The harmful effects can last a lifetime. Our duty is clear: to do all that we can to help extirpate it.
My Lords, I thank the noble Baroness, Lady Brinton, not only for calling this debate but for her brilliant and comprehensive speech, as well as her efforts on behalf of children. She drew together many of the issues which we all believe to be a terrible, often hidden, problem for many children. Any bullying can become severe bullying. Prevention, as well as dealing with the issue, is vital. I also thank the noble Lord, Lord Lexden, for his passionate plea to combat homophobic bullying.
I have just come from a meeting to launch the All-Party Parliamentary Group for Children’s new report on an inquiry into what opportunities children think they should have. I declare an interest as the chair of that group. In that inquiry, during which we consulted children and those who work with them, children’s rights came across very strongly. This debate reminds us that the children we are discussing are having their rights eroded in a very sinister way.
Many years ago, as a teacher, I was aware that some children were not only being discriminated against but were being bullied. I recall how difficult it was to identify the problem and to deal with it. Bullying is very difficult to prove and it is very difficult to change the behaviour. I recall that children might be bullied perhaps because they were clever, not clever enough or had a physical feature such as an accent, a limp or red hair. The schools I taught in had a proportion of children who were black or Asian, which could be a factor.
It is even worse now with e-mails, texts and so on. It is clear that there is the same old problem. Many children—I believe that now it is about 28%—do not want to talk about being bullied either to their parents or the school. Parents and schools often are in denial about children who are being bullied or children who bully. I believe, as I suspect do many people, that bullies also need help and that they exhibit behaviour that may damage their lives. All that is even more terrible when there is severe bullying. The All-Party Parliamentary Group on Bullying states that children who have suffered severe bullying may develop temporary special educational needs, which was referred to by the noble Baroness, Lady Brinton.
In schools, teachers also may be victims or perpetrators. We are now going back an awful long way but I have never forgotten a friend of mine at school who was picked on—that is what it was called—by a teacher because she was overweight, middle class and very clever. She said that she thought many times about ways to kill herself. The problem was resolved because I and other friends told another teacher.
Extremely severe bullying, as has been said, can have tragic consequences in the deaths of young people. Today, I am very grateful for the many organisations which exist to combat bullying and improve the lives of young people. Many of these organisations send us their experiences and their concerns. It is also gratifying that Ofsted now comments on bullying in schools.
From what we know and continue to learn, it is clear that bullying has an impact on the physical and mental health of children—the more severe, the greater the impact. It is also clear that bullying may have a profound impact on achievement in school and on the whole life of a child both immediately and in the future. The noble Baroness, Lady Brinton, spoke of the Red Balloon Learning Centres group, which estimates that 16,000 young people may be absent from school at any one time due to bullying. That is a shocking figure and these children may be treated as if they are just truanting. What impact on the self-worth of a child must bullying have? Without self-worth, attendance and academic, as well as social, competence may be severely affected. The Anti-Bullying Alliance reports that more than 61% of children reporting to child and adolescent mental health services are being bullied. The NSPCC’s Childline estimates that 38% of young people have been affected by cyberbullying.
I want to dwell mainly on what can be done to either prevent bullying or tackle it before it becomes dangerous. Parents are key. The National Centre for Social Research points out that children being bullied at the age of 14 or 15 were much less likely to be bullied at 16 if parents had reported the bullying. But, as I have said, and as we know, parents often do not know what is going on and friends—if the child being bullied has friends—also find it difficult. Bullies can be very powerful, particularly when they are in a gang.
I want to look at how we can prevent bullying in schools, starting with the importance of immediate action. I have to say, and the British Association for Counselling and Psychotherapy reaffirms this, that having a school counsellor is one of the most immediate and accessible ways of offering support. Sadly, provision of school counselling services is not universal. It should be and I wonder whether any schools are using the pupil premium to supply such services. That would be money well spent. Perhaps I may ask the Minister how many school counsellors there are working and by what means they are paid.
I move on, inevitably, to personal, social and health education in schools. When will the Government accept that every child, in whatever type of school, should be entitled to protection and encouragement from a solid programme of personal, social and health education? That would be much less difficult than the Government think. We have had this debate before and no doubt will have it again. A school policy on behaviour and bullying is part of PSHE. Many schools have such policies, although Kidscape asserts that some schools are reluctant to discuss their policies. I cannot think why: perhaps they do not have one.
In a school where I was a governor, the children helped to develop the policy. School councils can help to monitor behaviour policies. Class representatives on school councils often know what is going on before a teacher and may have suggestions to repair the damage. One school, Goose Green in east London, came to speak to the All-Party Parliamentary Group for Children. The teachers and children spoke eloquently about their experiences of personal, social and health education and of a friendship system where a child can go to another child for help and support, which is just brilliant. I wish that Mr Gove could have been there.
Personal, social and health education is not just a woolly concept about being nice; it should be rigorous with structures and policies to help children gain information at the appropriate age, develop the skills and confidence to use such information, and develop respect for themselves and others. I hope that the Government will provide a more encouraging lead on this. I believe that there are others in the Chamber today who think the same way.
School policies support a positive school ethos and are not just about mistreating others. Personal, social and health education is about what happens not just in science lessons where reproduction may be taught, even if it is not human reproduction, but also in English lessons, history, art, sport and so on where children can discuss relationships and reflect on their behaviour. PSHE may happen in lessons on topics that are not necessarily carried out by teachers but by special visitors, such as St John Ambulance, the school nurse, scouts and guides, the police, parliamentarians and so on. There do not have to be specialist teachers but the school has to be organised to make use of such visitors. I know of one school which invited a school counsellor and a child who had been bullied to a lesson to talk about their experiences. It was a very powerful experience for all those people in the classroom.
That is preventive work. If a school discovers bullying, the staff policy must kick in fast. The incidents need to be analysed, solutions sought and, if necessary, help found. It is not enough simply to punish. As I said earlier, an elected school council may be able to help, as well as counsellors, parents and a strong school ethos. There clearly is a problem here. For children who are bullied, it is disruptive and a terrifying problem. I have suggested two things that could help schools to help children; namely, school counsellors and a programme of personal, social and health education. I look forward to the Minister’s comments.
My Lords, I am honoured to be here and I thank noble Lords for their welcome. I also thank Black Rod and his staff for their marvellous help and support. I regard it as a privilege to be a Member of this House and look forward to playing my part. I thank in particular the noble Baroness, Lady Brinton, for initiating this debate, and for her powerful and passionate speech. I am very grateful to be able to make my maiden speech in this debate.
As Bishop of Truro I am fortunate to work across the county of Cornwall and the Isles of Scilly. Last week I was on the Isles of Scilly visiting the Five Islands school, which is an all-through age five to 16 school. I spend a lot of my time across the diocese visiting schools and always enjoy engaging with staff and students. It is helpful for a bishop in the Church of England sometimes to be in places where the majority of people are relatively young.
As I am sure that your Lordships are aware, Cornwall is a beautiful part of the country. If this were not my maiden speech, and therefore non-controversial, I might have gone further and said that it was the most beautiful part of the country, but I will refrain. I am sure that noble Lords are also aware that it is one of the poorest parts of the country, with areas of real deprivation and facing major problems of rural isolation, low wages and, sadly, among many of the young, low aspiration. Bullying and mental health concerns can be compounded by living in rural areas.
I am delighted to say that much of my work is responding to invitations from the wider community to visit and learn more about what is happening right across the county. In this regard I am always concerned to hear of areas of life where there are real pressures. I know, sadly, that many people in the county suffer from various forms of mental illness and do not always have access to the support structures and services that they need.
As well as being the Bishop of Truro—here I declare an interest—I am chairman of the trustees of the Children’s Society. Many noble Lords will know that this is a national charity, caring for the most deprived young people across the country. I will reinforce a point made by the noble Baroness, Lady Massey. One of the key features of our work is that we listen to the voice of children and young people.
In this debate I want to make the point that it is essential that we advocate for those who are often unable to advocate for themselves. Children who are either affected by mental health conditions or are being bullied are not in a good place to have their voice heard. It is important that we find ways to do just that. As is evident from the report by the All-Party Parliamentary Group on Bullying, many children who are bullied feel isolated from their peers. This can have a profoundly damaging impact on their well-being at that time and over the rest of their lives.
There are two points that I would like to make about children who are particularly vulnerable to bullying. First, children living in poverty face a number of issues with bullying. This can be due to lacking things that their peers may have, such as not being able to go to the cinema, or to a friend’s birthday party because they cannot afford a present. I underline what the noble Baronesses, Lady Brinton and Lady Massey, said about understanding child poverty in terms of the children’s own understanding of what it is like to live in poverty. Children can miss out on school trips, or not have the same basic material goods that other children have. This will have an impact on a child’s sense of self-worth. They are therefore more vulnerable to bullying and socialised isolation than their peers.
If not administered correctly, things such as free school meals can serve to highlight differences between children. In many schools children on free school meals are not easily identifiable, which reduces the risks of stigma. However, I am concerned that nearly half of secondary schools do not have cashless systems, meaning that those on free school meals may be singled out. My first point is to highlight the need to listen to the voice of children in poverty and note the implications on their lives of being bullied.
My second point relates to young carers. The latest census statistics reveal that there are 166,363 young carers in England, compared to around 139,000 in 2001. This is likely to be the tip of the iceberg, as many young carers remain hidden from official sight for a host of reasons, including family loyalty, stigma or indeed bullying. As well as having the potential to suffer stigma and bullying, young carers are particularly vulnerable because their caring responsibilities can have a severe impact on their school life and long-term outcomes.
We know that one in 12 young cares is caring for more than 15 hours per week. Around one in 20 misses school because of their caring responsibilities. Young carers are more likely than the national average to be not in education, employment or training—one of the NEETs—between the ages of 16 and 19. That is why I welcome the Children’s Minister’s announcement last week that the Government will be looking at how the legislation for young carers might be changed so that rights and responsibilities are clearer to young carers and practitioners alike.
It is important that the Care Bill that covers the adults’ legislation around social care, and the Children and Families Bill, work together to better identify and support young carers and their families. Schools and teachers can play a vital role in doing this. Schools also play an important role in promoting positive attitudes towards young carers and their families to help mitigate the impact of stigma, discrimination and bullying. It is important that children who struggle in school get the support and help that they need, and this includes mental health support. I fear that the provision of mental health support and the structures in place are not sufficient for the needs of young people and children.
I also want to ask if it is right that we should allow young people to be carers, which inevitably limits their childhood and opens them to a range of potential problems, not least bullying and missing out on education. These put added strain on their mental health. I dare wonder whether society is in danger of being the bully in allowing young people to be carers. What about the rights of the children and young people themselves?
In conclusion, I welcome this debate on such an important matter. I am glad to be able to speak as a bishop and as chairman of the trustees of the Children’s Society. I am especially concerned about children living in poverty who are vulnerable to bullying and to mental health concerns and who need advocates on their behalf. Equally in need of advocates are the young carers, who again are open to being bullied. I question whether we should not take more seriously the issue of whether we can do more to allow such children and young people to have their right to a childhood. I look forward to the contributions of other Members and hearing from the Minister about the work that Government are doing to support those children who are indeed being bullied at school.
My Lords, I, too, thank my noble friend Lady Brinton for the opportunity to debate this difficult issue. Mental health problems in school have been on the radar of the NHS for well over 15 years. Similarly, bullying, once thought of as a brutal rite of passage, has become a major concern for schools and society at large.
Before I develop my thoughts, it gives me enormous pleasure to congratulate the right reverend Prelate the Bishop of Truro, my own bishop—Bishop Tim as he is affectionately known in Cornwall—on his maiden speech. I know that he does not shun challenge or difficult issues. I welcome another voice in your Lordships’ House to speak up for Cornwall, where a chocolate-box image often seen by the majority hides real poverty and inequalities. I would expect him, as chairman of the Children’s Society, to be well informed on this issue and I was not disappointed. I welcome his concern for child carers, and at some time I will talk to him about adult carers for children, because there are similar issues to be concerned about there.
I also congratulate the right reverend Prelate on his Google footprint. I came to do the speech following his quite late, so needed to find out more about him than I knew—and which perhaps he would not want to be shared with the rest of the House—in a hurry. I resorted to Google. His footprint is almost non-existent, and there few in public life who can say that. I had to resort to Cornish contacts.
He is universally liked and respected for his commitment to working with the sizeable Methodist community in Cornwall. He has a liking for ham and eggs and is the doting grandfather of twins. One thing I learnt that really surprised me is that the right reverend Prelate the Bishop of Truro was schooled in Devon—and not only Devon but Plymouth, over the Tamar. However, that secret was well kept and I shall not revisit the boundary debates of a year or so ago.
The links between mental health and bullying can go in two directions. There is evidence that children who have mental health problems are often bullied, and children can be so consumed by bullying that they develop mental health problems. It goes both ways. Both problems need dealing with in school, as others have spoken about in detail.
I will address the issue of health interventions, whether through the NHS or through other services. Before children and young people can get support and help—I am talking about the whole age range in schools—they need to be identified. Current statistics suggest that one in 10 children and young people aged between five and 16 suffers from a diagnosable mental health disorder. That is three children in every class.
Schools need to train staff in how to identify those with mental illness and those who are being bullied. This is a priority for all schools, whether they are academies, private schools, free schools or maintained schools. I would be grateful if the Minister would indicate in his reply the proportion of schools that ensure that their staff are given training in identifying signs of mental health problems in children.
The lifetime cost of a single case of untreated childhood conduct disorder is approximately £150,000. Early intervention for young people with emotional, behavioural or social difficulties can help prevent mental health problems becoming more serious or developing in the first place. Early intervention saves money but, as we have already heard, it also saves lives.
A survey conducted for the Red Balloon learning centres found that 18% of school absences arose from bullying. The number of young people aged 11 to 15 who were away from school was estimated by the study to be around 16,500, for which bullying was the main reason. Bullying can lead to a child suffering from myriad psychological issues such as post-traumatic stress disorder, eating disorders or obsessive compulsive disorders, all of which can result in extreme anxiety and social avoidance.
According to YoungMinds, the Department for Education message to schools is that their focus should be on educational attainment; it does not consider health and emotional well-being as one of its core priorities. Over the past year we have seen what has happened to hospitals, and their patients, which have concentrated on targets to the exclusion of all else.
Having identified and had diagnosed a mental health problem, treatment can be difficult locally. However, the coalition’s localism and decentralisation policy initiatives have allowed many heads to use their new-found autonomy to commission their own mental health services, which, in combination with the voluntary sector, have helped deliver early-intervention mental health support for young people in schools. I would be interested to know how many head teachers have used those freedoms to do that. If the information is not readily available, I would be grateful if the Minister would write to me.
The coalition has recognised this as a problem and last year announced extra investment in the Children and Young People’s Improving Access to Psychological Therapies project, which works with existing CAMHS in the NHS, the voluntary sector and others to help improve and change mental health services and make them better for children and young people. The Deputy Prime Minister, Nick Clegg, and former care Minister, Paul Burstow, announced that the ambitious Children and Young People’s IAPT programme will receive an extra investment of up to £22 million over the next three years. This is in addition to the £8 million a year for four years that had previously been secured. These new resources will be used to extend the geographical reach of the collaboratives and to extend training to two further therapies that address depression, eating disorders, self-harm and conduct problems with ADHD. This is to be welcomed. The focus of the project is to help build upon more collaborative relationships between children, young people, families and therapists through the use of frequent outcome monitoring, extending participation in service design and feedback.
Additionally, Care and Support Minister Norman Lamb has just announced an investment of almost £2 million in Children and Young People’s IAPT sites to buy handheld computers such as laptops, tablets and iPads. This equipment will be used in existing IAPT sites to enable young people, parents and practitioners to record session-by-session outcome monitoring, allowing instant feedback to be used in therapy sessions.
Acting early to help children with mental health problems can prevent a lifetime of suffering, as half of those with lifelong mental health problems first experience symptoms before the age of 14. This technology helps children and young people see how their treatment is progressing and, where treatment is not going as well as it could, practitioners can change their approach to get the best results. Children and young people have said how much it helps them to see how their treatment is going. It is interesting here to reflect on the generational change. Young people welcome these kinds of interventions, but their parents and grandparents possibly would find them threatening and not of help.
The Red Balloon centres and Kids Company do wonderful work with children in inner-city settings—all of which is welcome—but this is not yet available all across England. Rural areas fare particularly badly. In the moorlands of the north-west, the north-east and the south-west, services are remote and access is difficult. Will the Minister tell the House the latest estimate of children and young people who are not yet reached by NHS child and adolescent services, and what is the percentage reduction across England since 2010?
We now recognise the problem, which when I trained to teach some 30-odd years ago we did not, and we now know how to address the problem, which 15 years or so ago we did not, so, in part, we are doing really well. We know that funds are tight but, until every teacher has received training in recognising mental health problems and every bullied child receives some level of mental health support as appropriate to their need, we not only fail them but we lay down trouble for the future and we fail society, too.
My Lords, I, too, add my thanks to the noble Baroness, Lady Brinton, for this debate on bullying and the extent, or lack, of educational support that still exists for children who are severely bullied at school. I also congratulate the right reverend Prelate the Bishop of Truro. I am particularly glad that he mentioned not only carers but school governors and their important role, because I think there should be someone on a governing body who keeps an overall eye on bullying.
Like one or two other speakers, I wish to concentrate my remarks on the importance of a high-level preventive strategy for this damaging and growing phenomenon, which has become a far too obvious part of each individual’s life, whether they are a child at school or an adult in a job. As we have heard already, it is the most vulnerable members of the community who are most likely to be targeted.
As I said, the title of the debate points to the level of educational support provided for those who are severely bullied at school, with the implication that it is probably inadequate. I am sure it is, even though we are all beginning to be much more aware of the need. In any event, is there not a necessity for rather more than the required support? Should it not be the Government’s responsibility, if necessary by education, to see all schools not only providing support for those being bullied but having a strict policy to ensure that there is no bullying?
Five years-old is the official age at which a child is required to attend school, so that is clearly a good time to insist on acceptable and respectable behaviour not just of pupils towards their teachers but of children towards each other. I suspect that there are already a number of examples of good practice of how this is being achieved in our schools. The only problem is that they are insufficiently publicised. I remember attending a meeting several years ago when one such successful example was being discussed. Where better to start than at the moment when a child arrives in school? What unfolded seems a pretty good way to provide an early intervention exercise that would have an excellent chance of working. In this group of schools, every new pupil is given a slightly older mentor whose duty is to settle the child into its new surroundings and environment. How well the child does will affect the number of brownie points that the mentor gets, so both the new pupil and mentor gain.
Another area where a clear need has been shown, and has been mentioned many times, is in Red Balloon’s work with children who have special needs. I congratulate the noble Baroness, Lady Brinton, on her involvement with that organisation, which does some incredibly good work. I thought the case studies that they included—I had a few moments to scan some of them yesterday—were extremely interesting. Quite clearly it is not only at the very beginning of your life and at school that problems occur that can lead to bullying and huge periods of isolation. Those case stories showed a high level of success when places such as those provided by Red Balloon offer support to cope with this situation. It would have taken some time to establish what was really required in those cases, but at least it was established, whereas in other situations in other parts of the country I am afraid the local authority did not want to know, nothing was done and two or three years went by before any notice was taken. That is horrendous because that really is the end of the possibilities for that child.
Somebody also mentioned the importance of learning about the background and history of that family. Again we come back to the early intervention side. I wish we could encourage really effective, early intervention. Frank Field and all our experts have educated us for so long on this issue. Yes, everybody has accepted it, and yes, everybody has contributed something, but I am afraid it needs far more resources to make it work really effectively and begin to show results.
I hope I will be encouraged by what the Minister tells us, but I really do think that a national strategy is what we need as a way forward.
My Lords, I add my voice to all the requests my noble friend Lady Brinton made to the Government in her excellent speech. I declare my relevant non-pecuniary interests as an honorary fellow of UNICEF and as a patron of Red Balloon, and I pay tribute to Carrie Herbert and all her staff for the wonderful work that they do in getting children back into education.
I will start at the very beginning, which is a very good place to start, especially with bullying, because if there were no bullies there would be no problems with the education and mental health of bullied children. There would be no bullied children. I will therefore address the issue of prevention. Why do children bully others, and how can we stop them before they even start, because all severe bullying starts with mild bullying?
In my view, a bully is often someone who needs help himself or herself. In some cases, the bully has been a victim himself or is simply replicating learnt behaviour. A violent child often comes from a violent home. A child demonstrating inappropriate sexual behaviour may well have been abused. So while we are looking at the causes of bullying and how we can help the bullies to stop doing it, we are of course not ignoring bullied children; we are making life better for them by nipping it in the bud.
Learnt behaviour is a big factor, which is why parents should always be involved by schools dealing with bullies. However, I think many children bully because they lack self-confidence in some area of their lives, so they make up for it and make themselves feel better by making someone else feel worse. They feel powerless so they try to take power over others.
A guide from the Department for Education a few years ago suggested how children might react to bullying. It says:
“stay calm … and … confident … be firm … tell the bully to stop”.
That is easier said than done, but it becomes easier when children have developed their own self-confidence and a belief in their own self-worth. How do they get that? Ofsted identified the answer and published it in its 2012 report No Place for Bullying. It found that the schools that were most successful in preventing and tackling bullying were those that,
“identified the links between personal, social and health education, citizenship, religious education and other curriculum areas”,
and their anti-bullying programme. It is obvious to me that PSHE courses that build up children’s self-confidence and self-esteem will help the bullied students to “stay calm and confident” and will help those who might become bullies not to need to fill the gap in their own self-confidence by belittling others.
Ofsted also pointed to the need for good-quality teacher training and CPD to help staff to deal with situations that might arise. That is quite right, but it is important that staff identify bullying as a child protection issue, not just in relation to the bullied child but so that they will look at the underlying issues in the life of the bully. Domestic violence at home, drug and alcohol problems, neglect and a poor relationship with their parents can all be contributory factors. The child may never have developed the ability to empathise with others, possibly because of attachment problems early in life. For reasons to do with his background, he may have great difficulty forming relationships. Perhaps he has never been loved.
So, apart from good quality PSHE in all schools, which noble Lords know I always advocate, I recommend a programme that has had a great beneficial effect in all the schools that have used it, so much so that it is rapidly spreading across the country, particularly in Scotland. It is called Roots of Empathy and was developed in Canada by a wonderful woman called Mary Gordon, who ought to get an honour. As Mary herself says:
“Roots of Empathy is an evidence-based classroom program that has shown significant effect in reducing levels of aggression among school children while raising social and emotional competence and increasing empathy”.
Her aim is to change the world one child at a time. If a child has empathy, why would he ever bully another child? The strong evidence from schools is that this programme improves behaviour and reduces bullying.
The first Roots of Empathy classes in England began in October last in 14 primary schools in the south London boroughs of Lewisham and Croydon, although it had been going for some time in Scotland. The classes are co-ordinated by the Pre-school Learning Alliance, with support from the WAVE Trust and funding from the Big Lottery. How does it work? The basis of it is that, following preparation by the teacher, a mother or father brings his or her young baby into the primary classroom and the baby becomes the “teacher”. Indeed, he wears a cute little T-shirt that tells us he is the teacher. The children sit around the baby in a circle and are asked to observe his behaviour, interact with him and comment on how he is feeling. The whole thing is very structured and there is plenty of cross-curricular follow-up work. By interacting with a tiny vulnerable child in a controlled environment, the children go back to the beginning and learn how to empathise with others, understand their own feelings and why they sometimes feel sad or uncomfortable. All aggression is taken away and it is often amazing and very touching to discover what the children reveal about themselves and their home backgrounds.
The programme also gives the children a model of parenting which some of them never see at home. In Scotland, the programme is so popular that I believe it has now been introduced in two-thirds of all primary schools. The programme has now been extended to the early years and is called Seeds of Empathy. It is being piloted here in Lewisham, although it has been operating in Canada since 2005 and is being evaluated there. Seeds of Empathy, apart from helping children develop their social and emotional skills, also helps them develop positive attitudes to reading. It does not teach reading as such but uses stories to explore feelings, such as feeling grumpy or happy, and helps the children to be comfortable about expressing how they feel. The children observe how the baby’s capabilities develop from week to week and consider why his or her moods change and how that relates to their own moods.
Mary Gordon believes that the programme helps children develop their executive functioning skills, dealing with impulse, self-control, flexible thinking and decision-making. In this way, these toddlers are being prepared to benefit from their formal education a little way down the road. Having seen these programmes in action, it is hard to believe that any of the children will develop violent or disrespectful behaviour towards their peers. Respect is, of course, a key word in relation to bullying, and there is another programme that is highly successful in developing this, the UNICEF Rights Respecting Schools programme, about which I have spoken before. It is logical, is it not? If a child understands his own rights, he learns to understand that the other children in his school have the same rights and that these should be respected as much as he would wish his own rights to be respected. Therefore, a school that fosters this mutual respect usually does not have a major problem with bullying and has a structure for dealing with it, if it does arise.
Finally, I would like to mention counselling, as was mentioned by the noble Baroness, Lady Massey. When I visited a primary school in Beijing, I was surprised to be told that all Chinese primary schools have access to a school counsellor. Why should we not have that here too? I think that we need it since our children are often under great stress and really need help. Children need someone to talk to who will not be judgmental but will help them work out their own problems or direct them to other help. Some great organisations do this, such as Place2Be. If children are listened to, they feel valued. We know that if children do not feel valued, they sometimes strike out and that is what we want to avoid. It is striking that most of these counselling services help both the bullied and the bully. However, I know that schools struggle to find the money to introduce these programmes, so will my noble friend the Minister confirm that they could legitimately use some of the pupil premium money to do so as long as they can show that the programme helps to underpin the learning of children who attract that money to the school? Of course, I believe that it does. A child in fear is not a learning child and neither is a child who is angry, so again the same service helps both the victims and the perpetrators. Is not that unusual?
This matter boils down to the culture of the school and its duty of care to bullied children to ensure they get an education, but also to its duty of care to bullies to stop them ruining their own lives as well as those of others, because nobody loves a bully.
My Lords, I am very grateful to the noble Baroness, Lady Brinton, for tabling this debate. I also pay tribute to the passion and commitment she has shown in raising awareness and campaigning on these issues and to her forthright leadership of the all-party group.
I also congratulate the right reverend Prelate on his maiden speech. I am grateful for his emphasis on the stigma that can attach to children living in poverty and to young carers. He made powerful points on those issues. He has shown enormous compassion and wisdom on these issues and I hope he can be persuaded to join us in speaking up for young people’s needs in future debates.
I think we all share a common purpose in raising this issue. Anyone who has read the case studies and the media stories cannot help but be moved and saddened by the dire consequences for the happiness of young people if bullying is allowed to carry on unchecked. The fact that at a low level it appears to be so prevalent in schools—which should, after all, be providing a secure and nurturing learning environment—should be a wake-up call for everyone involved in education.
The Department for Education report which showed that 47% of children report being bullied at 14, 41% at 15 and 29% per cent at 16, is truly shocking. Many of those reported that bullying was not just a one-off incident but was ongoing, and for some of them it was an everyday occurrence. The noble Lord, Lord Lexden, rightly raised concerns about the prevalence of homophobic bullying, which, as he reported, is widespread. It is also distressing to hear that children with disabilities and special educational needs are three times as likely to be bullied, with verbal, emotional and physical bullying again being prevalent.
Meanwhile, as a number of noble Lords have commented, the dramatic rise of cyberbullying is finding new victims, with new vulnerabilities and opportunities for exploitation and abuse. Recent research has shown that nearly one in five young people have been victims of Facebook, internet or mobile phone bullying, with girls affected more than boys. Many of these children will slip under the radar. Their plight will never be drawn to the attention of anyone in authority and they will develop coping methodologies to survive, and as a result will never know the full impact on their confidence, self-worth and sense of well-being as they progress into adulthood.
We know that bullying is not a harmless rite of passage or an inevitable part of growing up but can have long-term consequences into adulthood. A recent study at the University of Warwick showed that children who are exposed to bullying during childhood are increasingly at risk of suffering psychiatric disorder in adulthood, regardless of whether they are the victims or the perpetrators. Victims display a higher level of agoraphobia, general anxiety and panic disorder, whereas bullies show a tendency to develop an anti-social personality disorder. The noble Baroness, Lady Walmsley, rightly identified the need to break that cycle of bullying at an early age and the factors that lead children to bully. I was very interested to hear about the Roots of Empathy programme that she described in detail, which should be encouraged.
It appears that the problem is growing and that the onus on schools and local agencies to have a clear, firm policy in place is ever greater. So what needs to be done? At the outset, schools need to have a zero-tolerance policy towards bullying. There are simply too many examples of children or parents who have reported bullying to a teacher or head teacher but who then find that nothing is done or that the child is disbelieved or the problem minimised—or, worse, that the child being bullied is further isolated or removed to another class, rather than those who are doing the bullying. Schools need to have an active anti-bullying policy that is backed up by staff training and regularly reviewed. They also need to take responsibility for what happens at the school gates and beyond.
The noble Baroness, Lady Howe, rightly made the point that mutual respect should be learnt from a very early age. My noble friend Lady Massey made a powerful case again for the role of PSHE and also for the role that school councils can play in empowering young people to tackle the bullies.
However, there also needs to be a much clearer strategy for those children who are so traumatised that their behaviour, school attendance and mental health are beginning to be affected. We have some evidence of the problem from research by the National Centre for Social Research for the Red Balloon Learner Centres. As we have heard, it has calculated that more than 16,000 young people at any one time refused to attend school because of bullying. Given the parental, legal and educational pressure on young people to attend school, it is also fair to assume that there is a much greater number suffering severe health problems arising from bullying who remain trapped within the school and without adequate support.
What provision should we make for these young people? First, given that they are the victims of bad behaviour by other children, I hope we can agree that any alternative education and support should be at least as good as that which they would have received in mainstream education. Secondly, as the noble Baroness, Lady Brinton, highlighted, consideration should be given to those young people accessing temporary SEN status, which would allow them to fund and access individual support.
Thirdly, as many of these young people have complex needs, there should, as is fairly obvious, be a range of support packages available. These might include counselling facilities and in-school specialist units. As has been pointed out, however, we need to be aware of the limitations of these options. PRUs often do not address the child’s trauma of going through the school gates, remaining on the same site as the bullies or dealing with the staff who they feel have failed them in the past. Sometimes, as we have heard, it is expected that they will be taught side by side with other children with a range of other behavioural problems, including the very anti-social behaviour often displayed by bullies that they fear. All too often the units do not have the quality and range of teaching available in the rest of the school.
Fourthly, although local authorities have a duty to provide suitable education for children who are unable to access mainstream education, the reality appears to be that there is little funding available and that provision is patchy. Local authorities are quick to pass the problem back to the school or, as we have heard, in cases where children refuse to attend, they consider prosecuting the parents for their child’s non-attendance rather than tackling the root cause of the trauma.
Fifthly, it seems that government and educators are becoming much more proactive in addressing the physical health of young people through, for example, providing sport and tackling anti-obesity. However, there is not the same drive or expertise to tackle the equally pressing mental health issues of young people in education. There needs to be much better awareness and training for staff on effective strategies for addressing mental health issues. The noble Baroness, Lady Jolly, quite rightly raised the patchy provision of support for mental health in schools since the funding has been devolved.
Finally, we should promote the benefits that specialist trauma recovery units can provide. Like others, I am very impressed by the successful work carried out by Red Balloon to provide a safe sanctuary for bullied children combined with strategies to help them back into mainstream education. Many of the children they help are academically bright and it is crucial that they are not lost permanently to the educational system. It seems a great shame that these units, or an equivalent, are not available on a more extensive basis for traumatised young people.
These issues seem to come down to issues of quality and money, so I would be grateful to hear from the Minister what guarantees he is able to give that bullied young people will receive the same quality of education as their peers. Will he consider our proposal to make SEN status available on a temporary basis to bullied young people, thereby giving them access to much-needed additional support? What external inspection mechanisms are in place to ensure that specialist in-school units, such as PRUs, provide a comparable quality of education as that available on the remainder of the school site? What funding is available to ensure that local authorities provide quality education for young people not attending school? What inspection regime exists to ensure that proper standards in these alternative provisions are met? Finally, what funding mechanisms could be put in place by the department to allow delivery of a more comprehensive availability of such specialist units as Red Balloon which are, as we have heard, so successful?
We have had a thoughtful and probing debate this afternoon and I know that the Minister shares many of our concerns. I hope that in responding he will be able to offer some comfort and commitment to the many thousands of young people who are being bullied in school, and who continue to be bullied as we speak.
My Lords, I should like to thank my noble friend Lady Brinton for raising this important issue and for her excellent and moving speech. I should also like to thank noble Lords for their contributions. It has been an insightful and productive debate. I should particularly like to congratulate the right reverend Prelate the Bishop of Truro on his maiden speech. His wide experience, including as chair of the Children’s Society, will bring very valuable insights to our debates in future.
I am grateful for the opportunity to set out again the Government's vision in the context of this important group of children. One of the really nice things about this job is that, although we inevitably disagree from time to time on the precise mechanisms for delivery, I know we agree entirely across this House on the determination to provide an excellent education for all pupils, irrespective of background or personal circumstances. This is vital for the success of our young people and it is vital for the success of our country.
The Government have sent a clear message to schools that bullying for any reason is absolutely unacceptable and should not be tolerated in our schools. We will not hesitate to continue to reinforce that message. Schools should tackle bullying at the earliest opportunity and not allow it to escalate, so that pupils suffer emotional or physical distress. Every school is required to have a behaviour policy which includes measures aimed at preventing all forms of bullying among pupils, both in school and, as the noble Baroness, Lady Jones, said in her excellent speech, beyond school as well. My noble friend Lord Lexden referred to some of the measures we have introduced.
I have personal experience of bullying in a number of ways. It is a particularly nasty and pernicious piece of behaviour which can become all the more relentless with the use of modern technology. I can assure the noble Baronesses, Lady Massey and Lady Howe, that we will exhort schools at every opportunity to have a clear vision that emphasises, among other characteristics, compassion for and consideration of others. They must have a clear PSHE policy, which includes an anti-bullying policy, and emulate what good schools do, as my noble friend Lady Walmsley mentioned.
In our drive to tackle bad behaviour and bullying, we have changed legislation to strengthen teachers’ powers to enforce discipline and promote good behaviour in schools. Our guidance published in 2011 sets out schools’ legal duties and powers in relation to bullying. Teachers can search pupils and delete inappropriate images on electronic devices potentially used for cyberbullying. There are now plenty of examples across the country, including in many sponsored academies, where behaviour has gone in a relatively short period of time from being, frankly, pretty awful to good, thanks to strong leadership, a clear behaviour strategy, and the strengthened powers that we have given to teachers.
We believe that the balance is now about right between a statutory framework that requires schools to address behaviour and bullying and is clear about the powers at their disposal, but which also allows schools freedom as to how they tackle bullying. I will come to Ayden’s law shortly. But along with freedom comes accountability. As a number of Lords have mentioned, Ofsted now clearly holds schools to account on how well they deal with behaviour and bullying. Since January 2012, inspectors must consider pupils’ freedom from bullying, harassment and discrimination. The department has also provided £4 million for four anti-bullying organisations to work in schools.
Section 19 of the Education Act 1996 places a duty on local authorities to provide full-time education for children of compulsory school age who, due to illness, exclusion or any other reason, including bullying, may not otherwise receive suitable education. That is what we define as alternative provision education. The Government have shown the importance they place on providing a good quality education to these pupils by asking Charlie Taylor last year to review alternative provision. He stated that it was,
“a flawed system that fails to provide suitable education and proper accountability for some of the most vulnerable children in the country”.
The Government have agreed to all Charlie Taylor’s recommendations and acted swiftly to improve the quality and range of alternative provision by giving existing providers more autonomy through conversion to AP academies and by encouraging new providers such as AP free schools. We now have 14 AP academies and 32 new AP free schools either open or approved. They are providing a range of alternative provision and include such excellent providers as the Bridge Academy, the Complementary Education Academy and Everton Free School.
We are also enabling schools to have greater responsibility and funding for commissioning alternative provision. We have set clear standards for this provisioning and, since September 2012, Ofsted has shone a bright light on mainstream schools’ commissioning of AP. We have asked Ofsted to conduct detailed thematic surveys of this every three years. As part of the wider school funding reforms, since April this year we have ensured, for the first time, that all maintained alternative provision providers such as PRUs, AP academies and AP free schools receive essential core funding of £8,000 per pupil. Top-up funding will then be paid depending on local frameworks agreed between the provider and the commissioner. Schools and local authorities are best placed to decide the appropriate provision for their pupils and, as such, responsibility for commissioning and funding AP has to be at the local level.
We are also trialling a new approach, the “exclusion trial”, built on excellent work previously pioneered in Cambridge, under which schools maintain responsibility for excluded pupils—who stay on their roll—including for placing them in AP settings. This gives a real incentive to schools to intervene early to address behavioural problems before they become entrenched. It also means that schools will ensure that the AP they commission is of high quality and results in pupils achieving good qualifications. The trial includes 11 local authorities.
For the first time, we are utilising effective practice in AP by involving pupil referral units and AP academies in teacher training. Trainee teachers will now be able to teach and gain qualified teacher status in PRUs and AP academies. Eight PRUs are working with 21 trainee teachers for their initial teacher training with seven initial teacher training providers.
I turn now to the mental health support available for children and young people who are bullied. Good head teachers know the importance of supporting young people who are unhappy, unwell or struggling with their family life. Ofsted evidence shows that schools whose pupils do well academically recognise this. In July last year, the cross-government No Health Without Mental Health implementation framework was published. It describes the role that schools and local authorities should play and recommends that schools and colleges have a whole-school approach to this. In his AP review, Charlie Taylor said that the interface between CAMHS and schools does not work as effectively as it should. We are looking at this in some detail.
I can confirm, as requested by my noble friend Lady Walmsley, that my department’s investment in the pupil premium enables schools to invest in pastoral support, therapists and counselling—as in my own school, which has an extensive inclusion programme of therapists and counselling, run by our SENCO. As my noble friend Lady Walmsley said, these are complicated issues and home circumstances often play a very big part. Pupil premium funding is driven by the number of economically deprived pupils, who are more likely to face mental health issues. We also fund a £3 million two-year grant with the Better Outcomes, New Delivery consortium, or BOND.
Helplines also provide a vital source of support and advice for children who are bullied. We have awarded the NSPCC a grant worth £11 million for investment in ChildLine and the NSPCC helpline. In addition, we have awarded a £1.3 million contract to YoungMinds to deliver a helpline for parents whose children are having mental health difficulties. We have also extended the Coram Children’s Legal Centre funding for a further two years to March 2015 and fund Family Lives and Contact a Family. All provide advice and intensive support for parents in relation to bullying and SEN.
As the noble Baroness, Lady Jolly, mentioned, a key strategy for improving services for children and young people is to improve their access to good mental health services, such as the Department of Health’s Improving Access for Psychological Therapies programme. IAPT is a service transformation project, aimed at embedding the best evidence-based practice. It trains CAMHS and other professionals in evidence-based therapies. The programme is being rolled out gradually but, by the end of 2015, the Department of Health estimates that 60% of under-19s will be in an area served by the programme.
The Government have also invested £54 million in the Children’s and Young People’s Improving Access to Psychological Therapies programme to transform mental health services for children. We hope that the service will particularly help children at risk of suicide. The Government have underlined that commitment with a specific reference to IAPT for children and young people in the NHS mandate.
Clearly, a highly trained and qualified workforce is also crucial to providing good outcomes for children with SEN, including those with mental health problems. The school SENCO has a critical role to play in this. Every school, including academies, must have a qualified SENCO. He or she has day-to-day responsibility for the operation and co-ordination of specific provision to support pupils. This could include children who are experiencing psychological distress and who are affected by bullying.
Since 2009, the department has funded more than 10,000 SENCOs to complete the national award. We continue to invest in their development and will support a further 800 SENCOs this year. The department has also made a significant investment in educational psychology training of around £5 million per year since 2010. A further £16 million will be made available to support existing trainees to fund their courses and to support two more cohorts starting this year and next.
These principles drive the Government’s reforms but can succeed only if we allow schools, medical practitioners, local authorities and other professionals the freedom to exercise their professional roles, working closely with parents to seek the best outcomes for each child.
The noble Baroness, Lady Brinton, gave examples of particular cases of child bullying leading to suicide. These cases are tragic. With regard to Ayden’s law, we believe that the behaviour and disciplinary framework that schools are required to have in place should be sufficient to cover most cases of bullying and we are wary about suggestions to make bullying a criminal offence. It is difficult to define, could put head teachers in an invidious position and would risk classifying young people as criminals.
Many noble Lords mentioned the Red Balloon organisation. I have had the opportunity of discussing Red Balloon’s work with my noble friend Lady Brinton. Its outcomes sound most impressive. I have not yet had the opportunity of meeting Dr Carrie Herbert, the chief executive, but I hope to do so soon. I hope that it will be able to make a successful application in September under the free schools programme to expand its provision. However, to do so, it will need to demonstrate value for money, demand from schools and local authorities, and clearly demonstrable outcomes.
I was asked about adding bullied pupils to the SEN category. SEN tends to be a long-term issue and we hope and intend that the consequences of bullying can be resolved quickly. However, the definition is deliberately broad and it must allow local professionals the freedom to make those judgments. I understand the points raised by my noble friend Lady Brinton about the need to provide rapid support for children and young people who have become deeply troubled as a result of bullying. Local authorities can issue a short-term statement or make an emergency placement. Education, health and care plans are intended for longer-term, more complicated needs and can take up to 26 weeks, although we are reducing that to 20 weeks.
A number of noble Lords referred to cyberbullying, which is a particularly insidious and harmful form of bullying. We are working closely with anti-bullying organisations such as Childnet International, social networking sites and other internet companies. We included wide search powers in the Education Act 2011 to give teachers stronger powers to tackle cyberbullying and CEOP has also developed an excellent resource for teachers.
My noble friend Lord Lexden referred to homophobic bullying. The coalition Government have made it clear that tackling all forms of bullying, including homophobic bullying, is a key priority. Stonewall has found that 98% of young gay pupils hear the word gay used as a form of abuse at school. Such language is offensive and unacceptable. I expect teachers to react to this in the same way as an offensive racial slur. My noble friend also made the point about the national college enhancing training. I will investigate what it does now and what more can be done and I will write to him. I will certainly send a message to free schools and academies about inspection and the importance of eliminating homophobic bullying.
The noble Baroness, Lady Massey, and my noble friend Lady Walmsley talked about school counselling. England does not collect data on the number of schools offering counselling. A recent survey conducted by the British Association for Counselling and Psychotherapy estimated that between 61% and 85% of English secondary schools provide access to counselling. School-based counselling is one of the most widely delivered forms of psychological therapy for young people in the UK. The Department for Education has a two-year grant with Better Outcomes and there are some excellent voluntary and community organisations. My noble friend Lady Walmsley mentioned Place2Be, an organisation I know well and been involved with for a number of years.
The right reverend Prelate the Bishop of Truro made an important point regarding advocacy for young carers and children in poverty. The Department of Health has recently started training school nurses to champion young carers and, as he knows, we are working with the Children’s Society to develop policy. He also mentioned child poverty. This Government’s education reforms are driven very much by the needs of children in poverty. As we all know, the best way out of poverty is a good education.
The noble Baroness, Lady Howe, mentioned early prevention. Schools should excel at this by inculcating a culture of respect rather than a rules-based system so bullying is tackled at an early stage and does not develop. This Government have thought hard about early invention, recognising the importance of boosting our children’s social and emotional capability. We have done this through a range of measures such as Graham Allen’s review, the Early Intervention Foundation and George Hosking’s work with Sally Burlington on the needs of children up to the age of two. They identified the importance of evidence-based programmes and practice, such as the internationally acclaimed Roots of Empathy programme mentioned by my noble friend Lady Walmsley. I am very pleased to hear that the Roots of Empathy classes were launched in 14 primary schools in Lewisham and Croydon and I will be very interested to hear about their progress.
I hope I have been able to reassure noble Lords that bullied children are very much not forgotten by this Government and are very much factored into our education reforms and that every reasonable step has been taken to support them and to end bullying in our schools. I restate the Government’s position and the principle that drives these reforms—all children, regardless of circumstances or setting, must be allowed to thrive and prosper in the education system and receive a good education.
May I push the Minister on the issue of whether bullied children can access SEN facilities temporarily? He quite rightly made the point that SEN facilities normally are for longer term ailments, but is there any reason in principle why we could not amend either the existing legislation or the Children and Families Bill to allow for that temporary access? I wonder whether he would look sympathetically at an amendment along those lines when the Bill comes before us later this year.
My Lords, I thank your Lordships for a moving and interesting debate on this very serious issue. I particularly want to offer my congratulations to the right reverend Prelate the Bishop of Truro on an insightful contribution on children in poverty and the risks that they face from bullying. I thank the noble Lord, Lexden, for highlighting homophobic bullying; the noble Baroness, Lady Jolly, for focusing on mental health problems; the noble Baroness, Lady Howe, for talking about the importance of pupil mentors; the noble Baroness, Lady Walmsley, for focusing on empathy and helping bullies—reducing the number of bullies will solve bullying—and the noble Baroness, Lady Jones of Whitchurch, who talked about the long-term consequences of bullying and also helped to list what needs to be in place to support severely bullied children and to move towards their recovery.
I am particularly grateful to the Minister for his responses to virtually all our questions—we did throw rather a lot at him—and to his confirmation of the Government’s commitment to reducing bullying. As the noble Baroness, Lady Jones, said, I remain concerned about the issue of short-term statements and I have warned the Minister that I am likely to be laying down some amendments when the Children and Families Bill comes before the House. In the mean time, if the dedication and commitment from everyone who spoke in this debate are replicated elsewhere in the country, we can really start to remove the scourge of severely bullied children and help them to recover.
My Lords, as Government Chief Whip, it falls to me to apologise to the House on behalf of the Government Whips team. In trying to assist Back-Benchers who were about to take part in this debate they mistakenly adjourned the House during pleasure. I do not think that any noble Lords were upset by that—perhaps I am the only one to be aware that it is perhaps unfortunate that it was done. Clearly it is a practice and procedure of this House to proceed cleanly from one item of business to another. It is the duty of Back-Benchers who are taking part, as well as Front-Benchers, to be sure of the start time of the debate.
There are no fixed times on a Thursday, so when the first debate was clearly running a little short in time because those taking part were a little more succinct than expected, the doorkeepers, at our request, very carefully put on the annunciator the normal green sign, which gave ample notice that the following debate in the name of my noble friend Lord Lester of Herne Hill was going to begin in short order. That is the sign that noble Lords should have been waiting for; indeed, they should have been here as soon as they saw that the Minister, the noble Lord, Lord Nash, was winding for the previous debate. It was therefore regrettable that there were two Back-Benchers who were not present, and in trying to be courteous one of my colleagues, who is one of the best of our Government Whips, took advice and felt that it was perhaps better to adjourn. I have advised her that in being kind she was perhaps too kind. This is not something we will seek to repeat.
As soon as a debate begins, all those taking part, with the owner of that debate, my noble friend Lord Lester of Herne Hill, are expected to be present for the opening speeches, the winding speeches, their own speech—I would hope—those from noble Lords either side of them, and as much of the remainder of the debate as they may attend. Of course, if colleagues do not attend opening speeches, they may not speak—I am looking very carefully for one who is still not here—and they will be advised by their Chief Whip that if they were to proceed it would be discourteous to the House.
I have now given two full minutes for those absent to arrive. On that basis I conclude my apology, and I certainly hope that the following debate will be both informative and enjoyed, a characteristic of our Thursday debates.
British Bill of Rights
Motion to Take Note
My Lords, I am very grateful to my noble friend for reminding us that this House has decent standards. On this occasion I am able to plead not guilty.
I am delighted to have the opportunity to initiate a debate on the report of the Commission on a Bill of Rights, of which I was a member. I am also glad that two of my fellow commissioners, the noble Baroness, Lady Kennedy, the noble Lord, Lord Faulks, and so many other distinguished Members will take part. I look forward especially to the speeches in reply to the debate from the noble Lord, Lord Bach, with whom I worked when I was an unpaid independent adviser to Jack Straw under the Brown Government, and from my noble friend Lord McNally. I have mentioned those taking part in the debate; I am also glad to say that Sir Leigh Lewis, the noble and learned Lord, Lord Browne-Wilkinson, the noble and learned Baroness, Lady Butler-Sloss, and the former Attorney-General of India, Soli Sorabjee, are all here to witness the debate.
We were nine commissioners: eight white QCs, one woman and two Scots, with the distinguished former civil servant Sir Leigh Lewis as chair. As I said, he is here today to witness our debate. Sir Leigh had Solomon’s wisdom and the patience of Job. In attempting to secure a unanimous report he endured, like Job, much undeserved suffering. In the current polarised political climate of hostility to Europe’s political and legal institutions, well reflected within the commission, it was a thankless task. However, the report was and will remain important and its quality owes much to the dedicated able staff who supported us. I hope it will be read when the time is ripe for much needed coherent and enduring constitutional reform.
There are two main reasons in favour of a modern constitutional Bill of Rights: a good reason and a bad reason. The good reason is that, instead of relying upon a European treaty to define and protect our fundamental civil and political rights and liberties, we need a home-grown constitutional measure based on our constitutional and legal heritage that will command widespread public confidence beyond the courts and the legal profession. The bad reason is that a home-grown Bill of Rights would enable us to withdraw from the European Convention on Human Rights and the ability to seek redress from the European Court of Human Rights where our courts are unable to provide a remedy. According to this view it would enable the Human Rights Act to be scrapped and replaced by a measure that gave more power to the Executive and Parliament to restrict or limit our civil rights and freedoms.
Many of those who would agree that there are good reasons in theory in favour of a modern Bill of Rights fear, with good reason, that its adoption would result in our withdrawal from the European system for human rights protection and would strengthen state power at the expense of individual freedom and the protection of minorities against what John Stuart Mill called the “tyranny of the majority”. It was that well founded political anxiety that led to dissent by two of the commissioners appointed by the Deputy Prime Minister, the noble Baroness, Lady Kennedy, and Professor Philippe Sands, whose distrust of the Tea Party tendency in the current Conservative Party made them refuse to support a new Bill of Rights in the current Eurosceptic political climate. I fully respect their view.
I set out my own position in a separate note in the report at pages 231-33. My position—and I believe that of commissioner Sir David Edward, the distinguished former judge of the European Court of Justice—is that we favour carefully considered constitutional reform if, but only if, it strengthens rather than weakens effective protection, and if, but only if, the UK remains bound by the convention and the judgments of the European Court of Human Rights. Every one of the 47 member states has made the convention rights part of their domestic law.
Any move towards a UK Bill of Rights would need to be made carefully and sensitively after wide public consultation within each country of the United Kingdom and across the nation as a whole, in the context of the constitutional debate that is bound to occur, whatever the outcome of the Scottish independence referendum and the debates in Northern Ireland about whether additional protection is needed there.
The present Government have been no more capable of achieving coherent and ensuring constitutional reform than their predecessors, despite the reforms made under the Cook-Maclennan Labour-Liberal Democrat agreement, in which my noble friend Lord McNally and I took part. Opportunities have been botched, not just by this Government but by the Brown Government. However, whatever the outcome of the Scottish referendum, we will need to rethink devolution and whether, for example, it should be replaced by a federal system in which this House becomes an indirectly elected senate with some appointed members. If so, there would definitely be the need for a federal Bill of Rights to be read and given effect in accordance with our international and European legal obligations. There is also the long-standing pledge in the Belfast agreement to introduce an additional Bill of Rights for Northern Ireland. It would be sensible to create a broad-based constitutional commission to clarify the options for the next Government, but only if it had the support of all three main political parties. That, regrettably, seems unlikely.
The elephant in the Chamber is of course the Strasbourg court. The European court and its judges are subject to constant unfair attacks, personal and political, by the Mail, the Telegraph and the Express, among others, which campaign to end what they call the “Human Rights Act farce”. They are commercially self-interested, because they wish to be free to invade personal privacy without the limits imposed by the convention. They do not acknowledge the way in which the Strasbourg court has strengthened the protection of freedom of speech and freedom of the press in this country. Examples of this include the cases of thalidomide, Goodwin, Tolstoy, Spycatcher, Max Mosley and the Mirror Group Newspapers case on unfair cost rules. Indeed, one of the main purposes of the Defamation Act 2013 that we recently passed is to make our archaic and oppressive libel law compatible with Article 10 of the convention, by striking a fair balance between free speech and the protection of good reputation. My noble friend Lord McNally of course gave superb leadership to accomplish that end.
The English print media attacks, supported by too many MPs who should know better, have included gross and offensive criticism of the distinguished former president of the Strasbourg court, Sir Nicolas Bratza. These attacks may be partly responsible for the absence of any senior British judicial candidates to replace him on the European court. Another factor may be the uncompetitive nature of the pension and other arrangements for British judges joining the Strasbourg court, moving family and home to Strasbourg only to face abuse from the media and politicians for their pains. The pension arrangements for new judges are significantly worse than for judges serving in the UK. I hope the Minister will confirm that this gap will be addressed for future appointments.
The fact that our senior judges will no longer serve on the Strasbourg court, and are unlikely to do so unless the Ministry of Justice introduces incentives, is very bad news for those of us who cherish our common-law system and want to promote its virtues within the European system. It is also bad news for those of us who are friends of the Strasbourg court. We are fortunate to have Judge Paul Mahoney on the court, but it is essential for his successor to be a powerful and experienced jurist with a thick skin.
I was in Strasbourg two weeks ago. Diplomats, judges and civil servants all told me of their profound mistrust of our Government and its real objectives, as the Prime Minister, the Home Secretary and the Minister of Justice threaten no longer to accept the court and its judgments and to tear up the Human Rights Act. There is deep despair and a serious loss of British influence. Churchill, Macmillan and Maxwell-Fyfe, who led the European Movement and the creation of the convention system, would be appalled and ashamed at the way the tabloid press, swivel-eyed Tory Tea Partygoers and UKIP now call the tune. How can the UK claim to uphold the European rule of law when a former Lord Chancellor for whom I worked, the right honourable Jack Straw MP, boasts in his memoirs of refusing to give effect to the Strasbourg court’s judgment in the Hirst case? He and David Davies MP, then the shadow Home Secretary, went to Strasbourg to remonstrate with the court’s president, Sir Nicolas Bratza, about the court’s case law. I find that completely unacceptable.
The Minister of Justice also wears the robes of the Lord Chancellor. The noble and learned Lord, Lord Mackay of Clashfern, the great holder of that office in the Thatcher Government, has no doubt that the UK is in breach of its international legal duty to give effect to the Strasbourg court's judgment in Hirst. However, the right honourable Chris Grayling thinks the court has overreached itself and that Parliament must have the last word. He does not appear to be concerned about the effect of his approach in undermining our reputation as a rule-of-law country. Ministers have a duty to comply with international law and treaty obligations, as is made clear in the Ministerial Code, proclaimed by the Prime Minister when he took office in 2010. It states:
“Ministers of the Crown are expected to behave in a way that upholds the highest standards of propriety … The Ministerial Code should be read alongside the Coalition agreement and the background of the overarching duty”—
I repeat, the overarching duty—
“on Ministers to comply with the law including international law and treaty obligations and to uphold the administration of justice and to protect the integrity of public life”.
Jonathan Fisher QC, a Conservative member of the commission, suggested last week in the Times that the Government should campaign to persuade the Committee of Ministers of the Council of Europe to refer the UK’s refusal to implement the Hirst judgment back to the European court, because the court has exceeded its jurisdiction. There would be no sympathy at all for that idea. No doubt, in a bid for the support of the media and English nationalist voters, the next Conservative manifesto will promise a British Bill of Rights to replace the Human Rights Act and the role of the Strasbourg court. I hope and believe that the British people will reject that proposal when they realise that it would weaken protection against the misuse of state power. It would certainly be rejected in the Celtic nations of the UK.
Whatever the outcome of the Scottish referendum, the next Government will need to review our constitutional system. The celebration of Magna Carta in June 2015 might be the occasion. A future coalition not beholden to UKIP should seek to strengthen the Strasbourg court. We need new arrangements to ensure that British judges may be seconded without being worse off financially. The system of election of Strasbourg judges needs to be reformed, as was promised in the Brighton declaration. There are other practical proposals that also need to be implemented. The court does not have enough funds to clear the backlog. The registrar of the court has written to the Committee of Ministers pointing out the problems that need to be addressed.
Ministers need to rebut the myth that the Strasbourg court is a “foreign” court and constantly overturns the decisions of the UK courts. In 2012, of more than 2,000 UK applications decided by the court, only 12 resulted in a finding of a violation. The present politically divided coalition Government, which is also divided on this issue, are unlikely to address these issues effectively. We must hope that the next Government will use the ideas in the commission's report to strengthen the effective protection of human rights at home and across the European space, for the sake of the peoples of our nations. I beg to move.
My Lords, I begin by congratulating my noble friend Lord Lester of Herne Hill on securing this debate. I also congratulate him on his enormous contribution to the cause of human rights over the years. I should declare an interest as a member of the commission, though I came relatively late to the party, joining as a replacement for Michael Pinto-Duschinsky. On leaving the commission he expressed his views firmly and widely on where he thought the discussions had gone wrong. During my period at the commission there were certainly vigorous debates about a number of issues, as is apparent from the range of views expressed in the report. However, the process of arriving at our conclusions was a civilised one, made easier by the skilful chairmanship of Sir Leigh Lewis.
There was a majority view, as your Lordships have heard, in favour of the creation of a UK Bill of Rights that incorporates and builds on our obligations under the European Convention. That was the answer to the question contained in our terms of reference when the commission was set up by the Deputy Prime Minister. However, it seemed to at least two of us that the commission had not been asked to consider the key issue: namely, how the United Kingdom should respond to the judicially activist approach taken by the European Court of Human Rights in its interpretation and application of the convention in the past 30 years—in particular, whether the United Kingdom should consider withdrawal from the court’s jurisdiction, or at least renegotiate our terms of membership.
Jonathan Fisher QC and I were responsible for a paper entitled Unfinished Business, which is incorporated in volume 1 of the commission’s report. It reflects our views and, I venture to think, the views of others outside the commission. I respectfully suggest that those views are not restricted to what my noble friend described as the “Tea Party” tendency in the Conservative Party. I will not repeat now what we said but will make a few observations that arise from the commission’s report.
In talking of human rights, it is easy to approach matters at a level of abstraction. However, what does a human rights case actually look like at domestic level? Here I must declare a further interest as a practising barrister who, since the enactment of the Human Rights Act, has devoted a considerable amount of time to defending public authorities against claims arising directly or indirectly from the Act. Fascinating though these cases have been, I have been far from convinced that most of them have very much, if anything, to do with what people would once have meant by the expression “human rights”.
The courts in this country have, for the most part, strained to follow Strasbourg case law and its often rather creative interpretation of the convention. Supporters of the Human Rights Act tend to extol the wording of the convention, which contains a perfectly acceptable summary of human rights. However, as Jack Straw, former Home Secretary and Secretary of State for Justice, said in the debate on prisoner voting,
“the problem is not the plain text of the convention, but the way in which it has been over-interpreted to extend the jurisdiction of the European Court ... the problem has arisen because of the judicial activism of the Court in Strasbourg, which is widening its role not only beyond anything anticipated in the founding treaties but beyond anything anticipated by the subsequent active consent of all the state parties, including the UK”.—[Official Report, Commons, 10/2/11; cols. 501-02.]
In a way this was all very predictable. Lord Denning was a judge who was once highly regarded as a legal thinker. His judgments are cited much less often in the courts now. He wrote a great deal about the European convention. It was relied upon in courts before the Human Rights Act was enacted. He said in the case of Ahmed v Inner London Education Authority in 1978:
“The Convention is drafted in a style very different from the way we are used to in legislation. It contains wide general statements of principle. They are apt to lead to much difficulty in application; because they give rise to much uncertainty. They are not the sort of thing which we can easily digest. Article 8 is an example. It is so wide as to be incapable of practical application. So it is much better for us to stick to our own statutes and principles, and only look to the Convention for guidance in case of doubt”.
I suggest that there was much wisdom, indeed prescience, in what he said, albeit that his views are often dismissed as insular.
One aspect of the debate that has not sufficiently been emphasised is the extraordinary cost of human rights. Before I became a member of the commission, I asked a Written Question of the Minister as to whether the commission would be considering as part of its report questions of cost. The reply was that this was a matter for the commission. On arrival at the commission, it was apparent that the membership did not consider cost to be within its terms of reference. On 7 March 2013, I asked the Minister here in the Chamber to tell us whether the Government could give us any figures for how much human rights were costing us. His answer was that he could not do so. He described respect for human rights as being,
“a prize beyond cost”.—[Official Report, 7/3/13; col. 1614.]
All noble Lords value the protection of human rights, but, with great respect, that does not mean that the question of cost becomes a no-go area.
The LASPO Act made some widespread changes in the cost of litigation. Many were timely, in particular those that effectively implemented the Jackson reforms. I was somewhat less enthusiastic about the alterations to legal aid, which had the potential to deny representation to some with genuine claims and limited means. However, the Minister was reassuring as to the alternative and cheaper ways in which ordinary citizens could seek appropriate remedies. One exception to the cost-cutting exercise appeared to be cases involving the Human Rights Act. No figures were given to Parliament as to how much such cases were costing or would cost in the future. Were the Government concerned that denying legal aid to any claim involving the Human Rights Act would put them potentially in breach of Article 6 of the convention?
Claims involving the Human Rights Act continue, whether as claims for compensation or as the basis for judicial review. The sums awarded are often trivial. The cost, however, is not. The cost of the Abu Qatada litigation is said to be in excess of £1.7 million. It seems to be absolutely crucial that the Government should at least make some attempt to calculate what the HRA has cost in terms of legal fees generated by litigation. The cost does not end there. Public authorities have conscientiously attempted to ensure that their policies and practices are human rights-compliant. This is a very difficult exercise because it depends on trying to second-guess what view the Strasbourg Court, and thus our courts, will take of a particular situation. We need to know about these costs in an area that has much in common with our overreaction to the requirements of health and safety or even the Data Protection Act.
I have another substantial question for the Minister. I appreciate that he may have difficulty in answering some questions, in view of the well understood difference of opinion between the Liberal Democrat Party and Conservative Party in relation to the Human Rights Act, but I hope that he can answer this one. Do the Government agree that in leaving the ECHR, if that course were taken, we would also have to leave the European Union? This was the somewhat surprising view recently expressed by Judge Dean Spielmann, the president of the ECHR. My understanding of the position is that EU treaties do not provide that adherence to the European convention is a formal requirement of continued membership of the EU, even if membership may be regarded as a benchmark in terms of respect for human rights.
Such respect is something that unites us all, but if we were to leave the Strasbourg Court and indeed the Council of Europe, this respect for human rights would not diminish. Before the Act came into force, this country had a proud, albeit not unblemished, record for the protection of human rights through its domestic law. We are, of course, bound by a plethora of international obligations from which we would not be relieved were we to leave the Strasbourg court. Any noble Lords who wish to be reassured about our contribution to the protection of human rights and democracy all over the world should read the 2012 Foreign and Commonwealth Office report published in April this year. It is a remarkable tribute to the work of the FCO. If I highlight in particular its work in relation to sexual violence as a weapon of war, that does not in any way diminish the other aspects of its work.
The JCHR, of which I am a member, would still have important work to do even if the Act were to be repealed. The EHRC, set up pursuant to the Equality Act, would continue to have an important role. Above all, Parliament can legislate to protect human rights on a more targeted and nuanced basis, rather than having to perform somersaults to reflect actual or potential decisions made here or in Strasbourg.
The question is therefore not whether we should be protecting human rights but whether the Strasbourg court is the best or even the preferred method of defining or enforcing human rights standards. It is said by some that we would be a pariah state were we to cut our links with the Strasbourg court. The human rights records of some counties subject to the jurisdiction of the European Court suggest that membership is hardly a guarantee of the protection of human rights.
It is important not to demonise the Strasbourg court. It does not have the same regard for precedent, and the jurisprudence in this country, post human rights, can make difficult reading, as judges try to impose some sort of taxonomy—because of our courts’ respect for precedent—on a jurisprudence that lacks such respect. As my noble friend Lord Lester said, some of the decisions from Strasbourg have been profound and influential. However, if we were to leave the convention it would not mean that we would ignore such decisions any more than we would ignore influential decisions from elsewhere in the world.
My noble friend said that the European convention was the work of distinguished Conservative politicians and referred to Sir David Maxwell Fyfe as one of those responsible for its first draft. This is true but social historians, particularly having regard to his response to privacy and gay rights issues, tend to the view that it is most unlikely that he would have approved of the way the Human Rights Act developed and has been interpreted.
In conclusion, I remain passionately committed to the cause of human rights, but retain deep reservations about the Human Rights Act. Above all, I am concerned that human rights can get so easily lost in the law and the language of lawyers. Whereas law should be the servant of human rights, it has become their master.
My Lords, I need to start with an apology to the House and to the noble Lord, Lord Lester of Herne Hill, for arriving after the start of the debate. I can pray in aid a little bit of confusion about the starting time of the debate, and I know very well the views of the noble Lord, Lord Lester, from over the years so I can predict some of the things that he would have said.
I therefore hope that the House will permit me to make a few brief observations on this very important topic. In doing so, I declare an interest as a practising lawyer. I have been involved in human rights work, in the sense that a lot of the work that I did when I was Attorney-General involved vetting and approving—and occasionally not approving—legislation or executive action on the grounds of compliance or non-compliance with our Community obligations and arguing cases on behalf of the Government either in this country’s courts or, from time to time, overseas, including in Strasbourg. I have some experience of how the European convention and the Human Rights Act work. I was also the Prime Minister’s personal representative in negotiating the European Charter of Fundamental Rights, which was set up following the Cologne and Nice summits to try to draw up a charter for the institutions of the European Union rather than its member states. I am therefore familiar with the debates.
The principal point that I want briefly to make is that I am despondent and unhappy about the turn which has been taken in the debate on human rights, and I am therefore unhappy about the commission’s report. I am concerned about a proposal that would not just put in place additional protection in a British Bill of Rights but, at least in the view of some members of the commission and some members of the Government, replace the European Convention on Human Rights with something else. There are three reasons why that would be a retrograde step.
The first reason is the universality of human rights protection that the European convention gives rise to. It gives rise to universality across the European countries which subscribe to the Council of Europe and the European convention. This does not mean that it is interpreted or applied in exactly the same way in every country, nor should it be. There are different social conditions and the principles—the so-called margin of appreciation—provide an opportunity for different countries to be allowed a chance to apply the rules and rights in the European convention in a way which suits the social and economic conditions of that country. Otherwise, it means that all the countries which subscribe share the same fundamental values and are subject to the same fundamental restrictions on how they deal with people within their territories.
I am really worried at the prospect of the message it would send if the United Kingdom were to leave the European convention. The noble Lord, Lord Faulks, talked about the UK becoming a pariah state, but that is not quite what I have in mind. He also rightly described the very proud and important contribution that this country has made to human rights protection in many parts of the world. However, once it became clear that the view of the United Kingdom was that it could go its own way and no longer needed the European Court of Human Rights or to follow the European convention, I would worry about the example that we were setting. There are countries in eastern Europe—I will not name them but noble Lords can identify them very easily—that already find it difficult to comply with their obligations, and if they felt that they had the liberty to produce their own Bill of Rights and their own protections they would move in a very different way.
Secondly, the convention provides for a permanence of protections. It is not an immutable convention: it is open to member states to change. It is more often changed by the addition of rights through the agreement of new protocols but it is not impossible for member states to agree changes. However, it differs very much from parliamentary legislation in that it is not open to a single state to say, “We do not like the decision that the court has just made therefore we are now going to amend the right that is at issue”. I would be very worried if the protection of human rights in this country depended only on a statute of this Parliament, for which I have enormous respect. It would still mean that it would be capable of amendment, variation, revocation or removal if there were a parliamentary majority for that to take place. I am concerned that there is a risk that something as important as the protection of our fellow citizens could be subject to short-term political issues or the pressures of newspapers.
My third concern is the detail: the devil is always in the detail. I see from the commission’s conclusions that:
“The majority are agreed that such a Bill should have at its core the rights currently in the European Convention on Human Rights … That does not necessarily mean, however, that they would have to be written in identical language”.
I had exactly that issue when negotiating the charter. The question then was whether we should write the relevant rights and obligations in the same terms used in the European convention or use different language. As soon as you use different language, any lawyer will find a difference in the meaning intended. I do not know how it is to be done because we do not know what the detail of a new Bill would be, but there is a real risk that the rights written—allegedly not in non-identical language but protecting the same rights—would not actually be protected. When I was in office and debated the European convention with my opposite numbers I used simply to ask which of the rights in the convention they did not agree with: the right to a fair trial, the freedom of speech, freedom of association, the prohibition of torture, the prohibition of inhuman and degrading treatment. When one analyses that—given that the rights concerned are basic rights, rightly put into place following the horrors of the Holocaust—it is difficult to rewrite this in a way which does not risk removing those rights in some respect. If that is not the intention I do not see the point of rewriting it, and that worries me a great deal.
My final point is that I share the views of those who have said that it would be very good if more could be done to try to explain how the Human Rights Act and the European convention work. There are myths and misconceptions; we came across a lot of them in the time that I was in office. For example, there was the allegation that an escaped burglar was provided with food when he escaped because of his human rights, when it was nothing at all to do with that. In fact, it was not food but drink; it is a jolly good way to get somebody down from a roof, to ply him with a lot of drink—non-alcoholic drink, of course, although maybe with alcoholic drink it would have been even faster. Lots of stories were promoted, and came across in the newspapers about events said to have taken place, but they were simply not the case. There is a huge amount of misconception.
I worry about the things that the present Government say that do not illustrate a complete understanding of the Act. This is not the first time that I have said this, but I was troubled by what the right honourable Mr Grayling, the Lord Chancellor, said in relation to the prisoner votes debate—that it was open to this Parliament to ignore a decision made in a case to which the United Kingdom was a party. Under the Human Rights Act it is perfectly true that, when it is a decision in relation to another country, our courts are required only to have regard to the decisions. However, none of that takes away from the obligation that this country has, having entered into an international obligation, to follow the decisions of the court when they are made against us.
Others will speak with more authority about the work of the commission, but I am grateful to noble Lords for listening to me.
My Lords, I am the first non-practising lawyer to contribute to this debate, but it is the case that I had an oversight of some of the legislation, notably that of 1998, which was the third stage in the development of international protection of human rights. The first was the ratification of the convention in 1953; the second was giving the right of petition to individual citizens in 1966, in this country; and the third was the so-called incorporation of the convention.
I am bound to say that I have been disturbed by the attitudes expressed by a number of Conservative Members of both Houses about the underpinning of human rights. It seems to me that the division of opinion was reflected in the commission itself, and I understand clearly why the noble Baroness, Lady Kennedy of The Shaws, and Professor Philippe Sands were reluctant to advocate any change in the status quo at this time. There are good reasons for considering whether the scope of domestic protection of human rights should be enlarged. However, I would think that it could not be done entirely on the basis of the commission’s report.
My noble friend Lord Lester of Herne Hill deserves laurels from the nation not only for his participation in the work of this commission but for the strong defence that he has made over the years of the enlargement of the practical protection of human rights. I am very grateful to him for opening the debate as he did.
Many aspects of our constitution are developing gradually, but without necessary regard to their impact on other aspects. At this time, not least because of the Scottish dimension and the definite possibility of a referendum on independence, we will have some difficulty in considering this in isolation from these other constitutional considerations. I would hope, however, that in pursuance of one of the recommendations of the commission, namely that of making the public more widely aware of the importance of the protection of human rights—of what the Human Rights Act does and where it is, perhaps, limited—we could establish some kind of convention, not just on the protection of human rights, but more widely. Speaking as a Scot, I do not think that the people of Scotland should think that their choice is between independence and the status quo; there should be a possibility of development towards a more federal system of government internally in this United Kingdom. If that proposal were to be taken up by the Government, I hope that it would be considered with great care—and it has been considered by the Graham Allen-chaired committee in the House of Commons. There would be an opportunity to involve not just interest groups or politicians but individual citizens and to spread a greater understanding of the importance of the protection of human rights. One possibility is that we might seek to extend effective protection by taking account of other conventions to which we have signed up but not necessarily given effect, such as the UN Convention on the Rights of the Child.
I believe that we have in the past been an exemplar of the protection of human rights, and that should remain our goal. I agree very much with the noble and learned Lord, Lord Goldsmith, in his strictures about opting out of the work and jurisdiction of the European Court of Human Rights, for the reasons that he gave. At this perilously fragile time within the European Union—but not only within the European Union—there would be a great danger in our giving an example of withdrawing from the broadly expressed rubrics of the convention on human rights.
One issue that has emerged in this debate is around the language of the protection of human rights, which has always been cast in very broad and general terms. If you go back to the Bill of Rights of 1689, you will find similarly broad expressions. I do not think that it would be at all sensible to narrow the effectiveness of those broad rights by having greater definition; certainly there could be extension, but not tighter definition. That is why the judges should have a balancing role in our constitution. I am very unhappy about the principle of sovereignty of Parliament, if it is judged as being something capable of being used to produce results contrary to the history of our country and values that we have, over many centuries, embraced and become more particular about. Consequently, I take the view that the position of judges in this country is important.
I note what has been said, and clearly action needs to be taken. I hope that the Minister may be in a position to give us some indication of what action can be taken to strengthen the European Court of Human Rights, in the light of the backlog of cases and the cost of sweeping up this backlog, and whether he believes that the Brighton declaration might lead to greater international harmony on reaching agreement about the appointment of judges and so forth.
Nevertheless, the system as it is is so much better than it was, and I very much hope that we take our time to consider how to enlarge this and to involve the public and the constituent nations of the United Kingdom. Northern Ireland is a special case because it has been given some indication that we might be ready to do something about its protection of human rights. Scotland and Wales are in a fragile—or, at least, indecisive—position at the moment. The coalition Government should therefore not seek to come to a quick conclusion about how we are going ahead, but the direction seems to be clear. We need a Bill of Rights against which we can judge the appropriateness of executive action and, indeed, the conformity of legislation with the fundamental values that we, as a nation, have embraced and wish to continue to embrace.
My Lords, I hope not to detain your Lordships too long. Indeed, had I appreciated in advance what a wealth of legal and constitutional expertise was to be available to the House in this debate, I doubt that I would have troubled your Lordships at all.
I speak as one who, over the 13 years since the convention became part of our domestic law, has probably been involved in at least as many cases dealing with convention rights as any other judge in the country. The main reason I speak is to try to save my successors in the courts from what I believe would be the nightmare of implementing the majority’s central recommendation in this report; the nightmare of having to wrestle in the courts in future not merely with the complexities and uncertainties of the convention and of the vast body of jurisprudence that it has spawned but with those of a new UK Bill of Rights superimposed on it. I say “superimposed” because it is, of course, a given of the majority’s case in favour of a domestic Bill that it would in no way detract from the existing rights and freedoms under the Strasbourg convention. Rather, as the report states,
“such a Bill would incorporate and build on all of the UK’s obligations”,
under the convention.
The report presupposes the,
“UK’s continuing adherence to the European Convention on Human Rights and to the European Court of Human Rights as a given”.
It follows inescapably from this that the baseline of any future challenge would be whatever rights already exist under the Strasbourg convention and case law. Inevitably, it would be necessary to explore all this in full and to establish that baseline before the court proceeds to consider whether the UK domestic Bill enlarges upon that right.
Of course, I recognise that the position would be different in respect of any discrete rights that the UK Bill might introduce, such as specific environmental rights, or what are called socioeconomic rights, or, indeed, rights to a jury trial in certain cases. However, the introduction of those would be highly contentious and fraught with all sorts of difficulties, and in any event could be enacted entirely independently of the sort of full-blown UK Bill which I understand the majority of the commission to envisage.
What I understand to be the core justification in the eyes of the majority for restating all existing convention rights in different language in a new United Kingdom domestic Bill of Rights is what the report calls,
“the need to create greater public ownership”,
of the rights. According to the report, the majority suggest that this could be achieved if the Bill,
“was written in language which reflected the distinctive history and heritage of the countries within the United Kingdom”.
I pay tribute to the noble Lord, Lord Lester, for securing this debate, and indeed to his huge contribution over many years to the wider human rights debate. In his characteristically thoughtful personal explanatory note as to why he is prepared to join the majority view, he states:
“it calls for a restatement of civil and political rights and liberties in terms that respect our constitutional and legal heritage”.
With the best will in the world, the process that I sought to describe earlier of first having to ascertain the position under Strasbourg law and then seeing whether the claimant’s case can be advanced by reference to some additional rights under the UK Bill—I interpolate that the respondent’s rights could never be improved because there is no question of detracting from the Strasbourg rights—could never hope to persuade the public that we have somehow now come to own these rights.
The sad fact is that in whatever instruments and whatever language minority rights are enshrined, certain judgments which courts are on occasion required to give are bound to be deeply unpopular and to be misleadingly, and indeed mischievously, portrayed by some in such a way as can tend to alienate the public from the whole notion of human rights. Paragraph 82 of the report rightly refers to,
“the highly polemical way in which these issues tend to be presented by both some commentators and some sections of the media”.
Later, it quotes a witness speaking of,
“the climate of disrespect surrounding it”—
that is, the Human Rights Act—
“created and perpetuated by political and public figures and the media”.
In short, the convention, the Strasbourg court and in turn our own judges are all too often maligned. But ‘twas ever thus and regrettably it always will be. We do not, and indeed must not, outlaw unpopular minorities—prisoners, asylum seekers, immigrants and so forth—and we must not outlaw even the wicked. However, judgments in their favour often attract great hostility from the majority, and it is all too tempting for that majority, and even on occasion for government, then to blame the judges. Indeed, on one occasion in the Supreme Court I recall that we were shown Home Office minutes expressly recognising the impossibility of the Government’s position under established human rights law and yet suggesting that the Home Office should maintain its stance and,
“let the judges take the hit”.
No UK Bill of Rights is going to cure that sort of problem. Let us stay with where we have got to and try gradually to improve that situation.
I acknowledge the contribution made to the wider debate by this report, but for my part I would align myself with the minority.
My Lords, I start by thanking the noble Lord, Lord Lester, for initiating this debate. I acknowledge his tremendous contribution in the area of human rights.
The Human Rights Act was regarded as the UK’s Bill of Rights and was described as such on its introduction into law. Nevertheless, by a majority, and after referring to many difficult issues, not least relating to Northern Ireland, Scotland and Wales, the commission supported the proposal that the UK should have its own Bill of Rights.
So why are we now considering having another UK Bill of Rights? Is there something wrong with the first one? Does it go too far? Perhaps it does not go far enough. If I understand the report correctly, and as the noble Lord, Lord Lester, confirmed in opening the debate, the main reason appears to be that we are lacking right now,
“public acceptance of the legitimacy of our current human rights structures, including of the roles of the Convention and the European Court of Human Rights”.
The majority of members of the commission accept Liberty’s submission that,
“there is a lack of public understanding and ‘ownership’ of the HRA”.
These same members believe that that applies equally to the European Convention on Human Rights and the European court, so that many people feel alienated from a system they regard as European and not British. The majority also believe that public perceptions will not change even if there is better public education of the Human Rights Act and its structures. Therefore, their answer is to support the creation of a UK Bill that incorporates and builds on all the obligations prescribed by the European convention. Merris Amos, a senior lecturer at Queen Mary College, argues that,
“starting again with a UK Bill of Rights, containing identical or better human rights guarantees, might overcome these difficulties”,
of acceptance and perception,
“and create more of a sense of ownership amongst the general public”.
There is no evidence that that is correct. It is a hunch, and a very expensive one at that. Assuming that Parliament is persuaded by the force of this argument, before any UK Bill of Rights could be introduced it would be necessary to consult widely. We would also have to find a solution to the difficulties identified by the commission and mentioned by the noble Lord, Lord Lester, and others, notably relating to Scotland, Northern Ireland and Wales. All that will take time, will be very expensive, and inevitably will not happen before the next election.
It seems that the main complaint with the present system is that we have to pay regard to decisions made by the European Court of Human Rights in Strasbourg. It has been mentioned by several of your Lordships this afternoon. Some people see this as interference by a foreign body in domestic matters. For example, the court’s ruling on prisoner voting has angered many people, as have the difficulties experienced in seeking to deport non-citizens found guilty of serious crimes.
In the well considered paper headed Unfinished Business, written by my noble friend Lord Faulks QC and Jonathan Fisher QC, appended to the commission’s report, there is reference to the inefficiency of the court and the quality of some of the judges there, as well as to the fact that the court has so far failed to heed calls for reform. The noble Lord, Lord Lester, mentioned the need to improve matters in that court. Their answer is to support the proposal of this UK Bill, although they accept that the problems,
“posed by a judicially activist court could be resolved if effective reforms were agreed and implemented by the Council of Europe”.
The commission submitted proposals for reform of the court in an interim report issued on 28 July 2011. A meeting of the Council of Europe was held in Brighton in April 2012. Despite the UK pressing for reform, this was rejected. My noble friend Lord Faulks and Mr Fisher conclude by supporting the idea of a UK Bill and canvass the possibility of the UK leaving the convention.
I respectfully disagree. In my view, it would be a backward step for us to turn our backs on the convention. Even if we went ahead with our own Bill of Rights, it would risk giving a very bad message as to the UK’s commitment to human rights and would likely spur on the critics seeking to make capital in relation to every change of language in the UK Bill.
I believe that there should be a different approach, recognising that there has been a little progress. English judges have been moving away from the notion that they are strictly bound by the jurisprudence of the European court. While respecting the boundaries of the convention, the Human Rights Act recognises and encourages the development of independent domestic rights jurisprudence. The English courts are taking the jurisprudence of the European Court of Human Rights properly into account, but are not necessarily bound by its decisions. I believe that for the present we should make a concerted effort to win over public confidence in the European convention by making the British public more aware of what the English courts are doing. I am not persuaded that we should embark now upon the costly, time-consuming and difficult task of proceeding with a UK Bill. As I have said, I do not believe that cogent evidence is available to show that that would be better supported by the British public. Instead, and despite the considerable difficulties, which I acknowledge, we should seek again to reform the European court, as has already been proposed and attempted. The Prime Minister should add this to his agenda when he begins negotiations for wider reform.
My Lords, I, too, thank the noble Lord, Lord Lester, for securing this debate, and I join with others in paying tribute to him for his life’s work in supporting human rights here and around the world.
The public would be right to ask the question, “Whatever happened to that commission?”, because, of course, the commission’s report was published six months ago and we have not heard very much about it since. This is perhaps best answered by the fact that the commission was really set up to answer a political problem. Here was an issue on which the parties to the coalition were deeply divided. Some Conservatives hold strongly that the European Court of Human Rights and the European Convention on Human Rights are an abomination and that we should be putting an end to them as soon as possible. Other Conservatives may take a more sensible view. The Liberal Democrats are deeply committed to human rights and to the whole framework for securing respect for human rights throughout Europe and the world. So there was this division, this problem of hostility to the Human Rights Act and commitment to abolishing it within the Conservative Party, and, on the other hand, the commitment of the Liberal Democrats to the very opposite. That is why the commission was set up.
I pay tribute to the fact that the Liberal Democrat end of the appointment process decided to make a broad church and invited in a judge from the European Court of Justice, who is not politically aligned, myself—a member of the Labour Party who sits on these Benches—and the noble Lord, Lord Lester, an academic and practitioner. There was a broader church on the Liberal Democrat end than I think there was on the Conservative end. We gave consideration to these issues over some 18 months.
Sensible Conservatives know that the European Convention on Human Rights has nothing to do with the European Union. However, I am afraid that there is a large number of the membership of the Conservative Party who do not seem to know that. Perhaps when we talk about doing some public education, we should start there.
Secondly, many sensible Conservatives know that it was, of course, Conservatives who drafted the European Convention on Human Rights. They should feel proud of that. I listened to the noble Lord, Lord Faulks, saying that those who drafted it would be concerned about the rather activist way in which law has developed. However, I would say to him that that is the nature of law. Society changes and develops, and so it is right that courts should take account of the way in which our societies evolve. Sensible Conservatives know that it is to Britain’s global credit that we are one of the leading nations promoting human rights. To in any way sacrifice that would be folly.
It has already been referred to that Philippe Sands and I were part of a minority who did not go with the general view of the commission that there should be a commitment to a British Bill of Rights. In fact, the word British, which was used when the commission started, was abandoned when it was pointed out to those who thought this up that a British Bill of Rights would send rather unsatisfactory messages to certain parts of the United Kingdom which prefer to be referred to under the rubric, United Kingdom. We changed the title of the commission to one looking at a UK Bill of Rights.
We entered into it, as the noble and learned Lord, Lord Brown, mentioned, on the understanding that there was a baseline, which was to accept and to build upon the European Convention on Human Rights. All I would say to the noble and learned Lord is that if one takes a closer look at the publication that was produced, one will find that reference to that baseline somehow gets lost in the writing up of the report, and that a number of people are not prepared to accept the European convention as a baseline.
Philippe Sands and I have written about this matter in a number of journals, including the London Review of Books. We started out with an open mind as to whether a UK Bill of Rights was needed and whether it was a good thing. We ended up with very strong views as to why we could not sign up to it. The main reason was that the case was not made. The evidence we took showed that, beyond the Daily Mail, the Daily Telegraph and the activist sections of the Conservative Party, up and down the country, particularly in the devolved nations, there was a great deal of support for the European Convention on Human Rights.
We also received a great deal of evidence. In fact, we had consultations on two occasions. After the first, there was the suggestion, “If you don’t like the first consultation’s answers, let’s have another one”. The second consultation reached the same conclusions: namely, that the general public, when invited to express their views, were supportive of the Human Rights Act and of being part of this greater fabric across Europe of protecting human rights.
We also took the view that we could not support this because the timing was absurd. A decision had just been made to have a referendum in Scotland on whether there should be independence for Scotland. To be rocking the boat and talking about, first, a British Bill of Rights, and then a UK Bill of Rights, did not seem an appropriate or sensible thing to be doing at this moment. Indeed, dependent on the outcome of that referendum, it may be that we will embark on a set of constitutional changes that would involve us having to look at all our arrangements. That might be a time when we could look at this again. It certainly is not timely at the moment.
The third matter for us was that there was very little thinking of the long-term implications constitutionally or, indeed, legally—as has been described so powerfully by the noble and learned Lord, Lord Brown—and of what it would mean for judges trying to interpret the law. We also felt very strongly, as the noble Lord, Lord Gold, powerfully explained, about how this would be seen around the world and read internationally.
I emphasise that as the commission continued with its deliberations, we became aware of the real motivations of some of our number: namely, that they feel so strongly about being part of the European system protecting human rights that they want to remove themselves from the European Court of Human Rights and the European convention, and that creating a British or UK Bill of Rights is a Trojan horse in order to have something in place in order to decouple from Europe.
Arguments were made about this being a rebranding exercise and that a new UK-type Bill of Rights would explain to the public better in language that they would know that it was nothing to do with Europe and was all about us. We were not persuaded that that was necessary. One only has to read a wonderful report from the British Academy on this subject to see why this is not an avenue down which we should go.
It was a convenient means to reduce rights, and a way of casting off Europe and returning to some delusional idyll of an earlier age of sovereign authority, unconstrained by obligations set out in international instruments. That was behind some of the motivations. We did not want to be party to that and lend our name to a document that was not going to be declaring its purposes as openly as it should.
The fault lines in the commission were real and deep. They related to the failure to grapple with the content of such a Bill and with what its real purposes were. The underlying desire was to decouple the United Kingdom from the European convention and the jurisprudence of the European Court. We were not prepared to go along with it. We see no benefit in creating a superficial consensus, which was why we made our separate entry in the report. We were also concerned that there was not enough emphasis on the benefits of the European convention. These benefits are important for Europe as a whole and for the United Kingdom. Individuals in 47 states can now take challenges to abuses of public power to an international court in Strasbourg. We should feel proud of being part of that.
At home, the convention has brought great benefits. For example, it has reinforced our commitment to due process in court proceedings. It has advanced children’s rights and the rights of the elderly in care homes. It has advanced freedom of expression and assembly, and protected individuals from unfair extradition. Perhaps most powerfully, it has reinforced the ban on torture and served as a source of international inspiration, which again are things that we should be so proud of.
We should keep in mind the way in which disregard of judgments flies in the face of the rule of law. For our Government to be talking about doing that is shameful. In the business, for example, of prisoners’ voting rights, the margin of appreciation meant that that could have been dealt with easily by providing the right to a postal vote to those on very short sentences. That would have satisfied honour in the European Court, but it is not how it is presented to the public in our tabloid press.
This is about a set of attitudes. At the heart of the differences on the commission were distinct beliefs about the reach and purposes of human rights. We were very separate. It was about the relationship between matters local, national and international. A UK Bill of Rights may seem harmless on the face of it and attractive at first sight, but alarm bells should be ringing for everybody who cares about human rights. For us, human rights are about working not just within our own country but with other countries to improve the human condition, engender respect for all individuals, protect those who are vulnerable and create the conditions for the delivery of justice and peace internationally.
To remove the glue that holds us together with other nations is dangerous. Our criticisms of the European Court should galvanise us to reform it, not cut ourselves off from it. I would say to the Liberal Democrats that the lesson for them is that there are some areas where you cannot do business with the Conservatives without selling your souls. That is what this commission has taught you. The message to you must be: here is the big divide. It should be the message to our nation as a whole. Human rights matter. They matter to all of us. Even to contemplate decoupling from this important way in which we join with Europe and the world in protecting human rights would be folly in the extreme. That was why Philippe Sands and I proudly distinguished ourselves from the rest of the commission. You cannot sign up for this, because it is about diminishing rights for the people who need them most.
My Lords, I too warmly congratulate the noble Lord, Lord Lester, on his wisdom in selecting this subject for debate. I also acknowledge the contribution he has made to the development of human rights principles in this jurisdiction. He has been indefatigable in his efforts. He is part of the explanation for why we are in a situation today where the human rights principles that we have developed in this country are working reasonably satisfactorily, although there are undoubtedly problems.
It is a testimony to the noble Lord’s efforts that I can remember well the time when, appearing as an advocate and not in his role today, he educated the judiciary of this country as to the approach to human rights, which was not in accord with the way we traditionally used to approach legislation in particular. This was true of his advocacy in the highest court in the land, which, of course, at that time was part of this House.
I congratulate the commission on the report it has produced. It has been the subject of criticism by some but I venture to say that that criticism was not meant to detract from the fact that the commission is exemplary in the way it has conducted the process of consultation. It is also exemplary in the way that it has clearly explained the different opinions that its members hold and the way in which the issues are regarded by different parts of the community.
I have found it very difficult to decide whether I should agree with the majority opinion or the minority opinion and I am glad to say that today’s excellent debate has helped me in that matter. The report sets out the arguments against and in favour very clearly, but to hear them debated in the House in this way brings a new realism to me which I did not have before.
I see a situation where, excellent though the commission’s work is, there are serious dangers in approaching the matter in the way the majority have indicated in the report. That does not mean that the work of the report has been wasted. On the contrary, it is very important that the position of human rights is elevated into proper public debate. In saying that, I am not referring to some of the debate that takes place in the media for understandable reasons.
It is important, however, that the thinking public have an opportunity to see where the truth lies. I am not surprised that the attempts, when they are made, to assess the public’s opinion show that the position is rather different than a reading of the media, popular or otherwise, might lead you to believe. As often happens, the public are not so foolish as to think that a new Bill of Rights could achieve a position where we could disregard the European Convention on Human Rights, to which this country has adhered as far back as 1950.
It is important to understand that human rights are different from rights set out in ordinary legislation. They are fundamental to the way of life of this country—indeed, I would go so far as to say of all countries that purport to or do adhere to the rule of law. What is special about the rule of law is that when it talks of that subject it is, in my understanding, talking about those rules which should govern societies in general. The way they are applied and interpreted in different jurisdictions does not mean that they are better observed in one jurisdiction than another or less observed in one country than another. The rule of law requires that a society adheres to basic principles—principles which are the source of the European convention and many other conventions. They are the source of justice, the source of fairness, the source of proportionality and the source of many other matters that make our society one that up to now has been respected in many parts of the globe.
I have had the good fortune to be called upon to make two reports in regard to the European Court of Human Rights and can say I am fairly familiar with the standards it has adopted. This country, together with the Council of Europe, invited me to make a report when I ceased to be Lord Chief Justice, one of the first activities I had at that stage. In the course of it I interviewed individually most of the judges on that court, looked at various procedures and was well aware of the huge backlog of cases that they had. I found that the more I talked to those judges, the more impressed I became. I was convinced that they were concerned about the same things with regard to justice that I would expect a British or United Kingdom judge to be concerned about. Within the confines of a system they were called upon to administer, they did their very best to achieve the results which they were required to achieve in order to honour the principles set out in the European convention. Of course some of the decisions would be popular and some unpopular. I am afraid that that is true of a judge’s job. It has certainly been true of my period as a judge, when some of the decisions I made were extremely unpopular.
I am afraid I find it difficult to fit that in with what I am going to say as it is not on my agenda this afternoon. I hope the noble Lord will forgive me if I do not try to deal with that although I can see why he raises the matter. The issue of those expenses and the way they were dealt with—the principles of general fairness, honesty and integrity—are the sort of matters which human rights can reflect.
Taking up where I left off, the recommendations which I made on that first occasion were adopted by the European Court which did its best to do what it could with them. The second commission—and bearing in mind that I was on it, it was probably misappropriately described as the commission of the wise men—consisted of 10 people from different jurisdictions. I mention it to declare an interest, but more importantly to point out that although those 10 members were drawn from different nations, they all struggled to work together to produce results that would be beneficial to the court. They could not complete their task in so far as they were not in a position to provide an answer to all the problems. Those problems remain although they have been helped by what happened in Brighton recently and the declaration made there. The important point is that, despite the load of problems that the court has, the situation is better today than it has been for a long time.
I listened with great care to what the noble Lord, Lord Faulks, said about cost. I wish to mention two things. The judges to whom I talked in that court were at one in saying that the very best advocates who came before it were drawn from the United Kingdom legal profession. They were unstinting in their praise of our advocates who they said were so good at understanding the real core of human rights. However, they added that the cost of those advocates was totally disproportionate when compared with that of advocates drawn from other jurisdictions. Indeed, our advocates, of whom we are proud, are 10 times more expensive. Therefore, we need to be rather sensitive about criticising other countries’ costs.
We also have to be cautious about criticising the costs of the European Court, which deals with cases very economically. It is the quantity of cases that generates the costs. I have not done it but if you were to work out the cost of a case before a court here and the court in Strasbourg, I am afraid that it would reflect adversely on this jurisdiction. That is why we are introducing new methods of tackling costs in this jurisdiction because, unfortunately, our costs are so large. Therefore, I do not see that we can justify criticising the European Court on the ground of cost.
I apologise but I want to say one or two words more. If your Lordships will bear with me, I will deal with them as quickly as I can. My belief is that we must work towards obtaining the public’s confidence. The only argument in favour of a British Bill of Rights is that it would improve the public’s confidence in this area. If we do not succeed in doing that, the future of human rights in this country will be at risk. It is at risk at the moment and we must do everything which is practical and possible to ensure that the British public take possession of human rights and regard them as singling this country out as being pre-eminent on issues of fairness and justice. If they recognise that this is a relevant issue, this country has hope for the future. If they do not, this country is very much at risk of relinquishing its legal excellence.
My Lords, as one who was at school with the noble Lord, Lord Lester, I can share with this House the fact that there was absolutely no doubt whatever among his contemporaries as students, or indeed the staff at the time, that he was going to make a powerful contribution to the future of this country. The fact that he has made it in the context of the realm of human rights is something from which a lot of us take a great deal of joy and satisfaction.
I have just indicated and underlined my age. At the age of 13, my father took me with him to an international conference he was organising in Geneva. At that conference, I had the privilege of meeting Eleanor Roosevelt and I had the pleasure of listening to Eleanor Roosevelt. As I listened to this debate and the anxieties that have been expressed, I reflect on the huge gap between life as it is today and life as it was in the immediate aftermath of the Second World War. There was a passionate conviction which gave her her strength and power, together with all those working with her, that human rights were not just a moral option in the way you organised your society. With all the searing experience of the human suffering of the Second World War, human rights were an absolutely essential and indispensable pillar of a stable and secure society. We have somehow lost that underlying basic philosophy and conviction. Discussion is all about the management of human rights, the operation of human rights law and the rest. We cannot repeat that conviction too often.
If I am allowed to draw on personal experience, as someone who has no legal qualifications whatever, but as somebody who has spent most of his life working in the humanitarian sphere outside this House, I can say that pretty well every month of every year in my practical work, I have seen again and again the crucial importance of human rights to the cause of improving the well-being and potential of our fellow human beings across the world.
I declare an interest as a member of the advisory board of the London School of Economics Centre for the Study of Human Rights. I think, and I say this sometimes at meetings of the board, that we have to take seriously the criticism that is sometimes loosely used about the human rights industry. To some people, there is a perception which we have to examine that there is a human rights industry—the chance of academic prowess and postgraduate degrees, a preoccupation with much legal discussion about it all, and the rest. It seems to me that we need to reconnect—that has come across in this debate very well—the whole cause and indispensability of human rights to real experiences and the real lives of people. That is an argument for a Bill of Rights which cannot just be dismissed. As I understand it as a layman, the strength of law at its best is when it underpins an ethic which is broadly there in society. It will never bring everybody on board, but an ethic is substantially there among people instinctively that this is the kind of society in which they want to live. This law underpins that reality and helps those who want to distort or abuse it to be dealt with.
It seems to me that a gap has developed here because people do not feel they own human rights law. They see people, as it were, operating downstream in the context of the human rights law that has been created. It is very important to go back to source and reargue the case for human rights and their indispensability. We have to look at that, of course, in the context of our educational system and elsewhere, and look at how seriously we are taking discussion and debate about human rights, and why they are so important, in our educational system. As the noble Lord, Lord Lester, will remember, we were both involved in the Council for Education in World Citizenship in those days. It was a very lively body of sixth-formers across the country with the whole cause of preparing for citizenship. Taking these things seriously was central to our preoccupations. The Christmas holiday lectures were packed. I am talking about the enthusiasm, commitment and integrity of someone such as Eleanor Roosevelt and the passion that she brought to this because of her experience of the war years.
I apologise if I am reminiscing too much, but this is important because these were the formative years. I recall that, slightly precociously, we had a youth parliament in the constituency in which I lived as a youngster. In that youth parliament, by our own choice, we took the Universal Declaration of Human Rights and set about deciding and discussing how we would put it into action in our own society. These things were vivid in the culture at the time. There has been a certain amount of subjective interpretation about history, even in this debate. I can remember that there were Conservatives then who shared this concern and passion every bit as strongly as I did as a member of the Labour League of Youth. As the noble and learned Lord, Lord Woolf, emphasised, there seems to be a real need to regenerate this cause of human rights and to highlight their indispensability for society.
There is another issue. If I have come to one conclusion in the course of my life, it is that the first reality for all of us is that, from the day we are born, we live in a totally interdependent global community. I worry about any action on our part in this country that undermines that understanding and reality. It seems very important, in a realm as crucial as human rights, that we have objectives, aspirations and convictions towards which we try to encourage all our fellow citizens across the world community to strive. If we start a process which begins to suggest that human rights are things that you look at in a national context and put first into your national culture, I wonder how far we are helping the world to face up to this reality of interdependence and making a really constructive and imaginative contribution to the emergence of a better society and better values.
The noble and learned Lord, Lord Woolf, talked about the rule of law and its importance. As a layman, I know that I want to live in a society which observes the rule of law. However, there is a huge debate about what that law should be. It seems to me that what we are all seeking is justice. What matters is how we strengthen the debate about what justice is and how justice should be reflected in the law—it is not just about having a rule of law, it is about ensuring that the rule of law reflects the cause of justice, of which human rights are a part. Sometimes I wonder whether we have to use the term “human rights”—which has become so stereotyped—and to what extent we are really not just talking about justice.
I am afraid that you cannot look at this debate, and the possibilities for change, without examining the context of the dynamic in which it takes place. It would certainly be very naive to try to do that. If I am allowed to make so bold, noble Lords in this debate have been a little cautious about facing up to some of the crude realities here. I wonder whether people in years to come will see it as altogether a coincidence that, at a time when we have the reassertion of rather crude and unpleasant nationalist populism, there is debate about whether we could have a Bill of Rights for Britain.
Are the dynamics surrounding that exercise going to be about justice and the cause of humanity, and how far are they going to be about “Let us run Britain in a British way”—whatever we mean by Britain and a British way—with which everyone is expected to conform but which does not necessarily represent the realities of our society and the creative potential of our society as a multicultural society? This is a huge debate and we should not drift into it inadvertently. Debates like this are absolutely indispensable and I thank the noble Lord for having initiated it.
It has been a privilege for me to listen to so many wise speeches. I am a great friend and ally of my noble friend Lady Kennedy. I hope she will forgive me saying that I was not really very happy with her seeming to imply that there were no Conservatives who care about human rights and the things I have been talking about every bit as much as I do. In the noble Lord, Lord Gold, we have a classic example of a Conservative who not only feels these things but feels them so sincerely and deeply that he can express himself very well in a debate of this kind, in a way that is quite challenging to a lot of other people.
That cannot go unchallenged. I think that my noble and very dear friend Lord Judd, when he sees my remarks in Hansard, will see that I referred all the way through to the sensible Conservatives who recognise the value of human rights and realise that they are different from the European Union. I paid tribute to them all, and indeed paid tribute to the noble Lord, Lord Gold.
My Lords, I am sure that the noble Baroness and I will continue this discussion in many places for long weeks ahead because we are very good friends. I certainly accept her qualification about the words she used. She also suggested rather that it was the Conservative Party with which it was impossible to do business. The society I want to live in by definition is one in which the Conservative Party is as committed to the things I am talking about as anybody else. We should be strengthening the elements within the Conservative Party who share our convictions and speeding the day when we can all speak together. Again, I say we should all be grateful to the noble Lord, Lord Lester.
My Lords, I thank all noble Lords who have spoken in this debate, particularly, of course, the noble Lord, Lord Lester, for securing the debate and for attracting a stellar cast to speak, even rather late on a Thursday afternoon in the middle of June. I am certainly not one of those stars. I have comparatively little history, either as lawyer or politician, with regard to the Human Rights Act or the convention. However, it is an honour for me to speak from the opposition Front Bench on this occasion and I, too, pay tribute to the noble Lord, Lord Lester, for his well deserved reputation, mentioned by many noble Lords, in this field.
I start with a quotation from another memorable debate in your Lordships’ House, held exactly 25 months ago on 19 May 2011, when my noble and learned friend Lord Irvine of Lairg led a debate on the ECHR, with many of the same cast as today, and answered, as today, by the noble Lord, Lord McNally. The noble Lord, Lord Thomas of Gresford, ended his contribution with these words:
“I consider the Human Rights Act 1998 to be the outstanding piece of legislation of the previous Labour Government”.
He went on to say, and we must give him allowance for this,
“next to the Government of Wales Act 1998. I congratulate the noble and learned Lord, Lord Irvine of Lairg, not simply on introducing the debate but on being the architect of an important piece in the structure of justice in our country”.—[Official Report, 19/5/11; col. 1501.]
That was a generous but well merited comment from the noble Lord, and a well merited compliment to my noble and learned friend as well.
This year marks the 25th anniversary of the establishment of Charter 88, many of the aspirations of which were adopted by my party in the early 1990s and then put into effect by the Government from 1997 on. Who says that pressure groups cannot achieve results? According to Professor Bogdanor the constitutional achievements of the Labour Government, ranging from the Human Rights Act to devolution, freedom of information, the creation of the Supreme Court, and much more, represent a formidable list. He may go too far when he says that it was an era of constitutional reform comparable to that of the years of the Great Reform Act 1832 or the Parliament Act 1911. However, even more impressive is the amount of power that was given away by some of these measures by that Labour Government. For example, the Human Rights Act gave power to individuals, the national states were given power by devolution and the judiciary was given power by the difference between the role of the Lord Chief Justice and that of the Lord Chancellor and by the creation of the Supreme Court. Professor Bogdanor went on to say that no British Government since World War II had dispersed power to the same extent.
Speaking from the Opposition Front Bench, I am proud of that record. It made our country a fairer, more open and better place to live. We were supported in all this—certainly for the most part—both in argument and votes by the Minister’s party, the Liberal Democrats. Both party manifestos for the 2010 general election talked about support for the Human Rights Act; the Liberal Democrats’ manifesto talked about protecting the Human Rights Act. It is therefore hardly surprising that when the Liberal Democrats found themselves in a coalition Government they had to think hard and quickly about how to prevent the Human Rights Act and the ECHR behind it being savaged by their coalition partner during the course of this Parliament.
Make no mistake: both before 2010 and since being in power, of course not all Conservatives but many of their leaders have regularly and systematically tried to trash both the convention and the Human Rights Act. They have often used language—perhaps sometimes to placate their anti-European supporters—that has sometimes, though not always, been a disgrace to a great party.
Rather unusually for me, I will pay a compliment to Liberal Democrat Ministers in this Government, and not least—in fact, probably for the most part—to the noble Lord, Lord McNally, for the manner in which he, along with others, has successfully prevented the Conservatives from carrying out constitutional mayhem during this Parliament. I do not know whose idea a commission on the Bill of Rights originally was, and who put together the personnel. However, if the aim was to kick these proposals deep into the long grass, it appears to have succeeded.
I pay tribute to all members and staff of the commission, particularly its chairman, for giving up so much of their valuable time to its work. Many of its members were busy and distinguished Queen’s Counsel, while others had other important obligations. They deserve our thanks; not least the chairman, who has already been described in Job-like terms and whose distinguished career in public service must have helped him in an almost impossible task. However—and I suspect that the House might have expected a “however” at this stage—it is surely fair to ask whether it was really worth all the time and effort to produce two large volumes of a report in effect to solve a political problem?
Where do the various and myriad conclusions lead us? What is the value of the so-called majority view, when it includes a number who clearly and honestly objected to the terms of reference and want us to be free of the convention? I admit that I do not completely understand the position of the noble Lord, Lord Lester, who is himself one of the architects of the Human Rights Act. When reading the 31—
I am grateful to the noble Lord. I wonder whether he agrees that it is core Labour Party policy since 1993 that a Human Rights Act is the first step, and a Bill of Rights the second. That was agreed by Labour in 1993, and as far as I am aware it is still Labour Party policy.
As I understand it, the Human Rights Act is considered by some to be a British Bill of Rights in any event. However, I do not want to take issue with the noble Lord. I am here to praise him rather than criticise him. As I was going to say, when reading the 31 pages of the overview of volume 1, one can almost physically feel the strain in the language as it attempts desperately to find consensus where there is none. The majority view has been described as representing,
“a fragile coalition of views united around conceptions of a domestic Bill of Rights so different from one another as to render any consensus wholly illusory”.
These are the words of Mark Elliott, a reader in politics at the University of Cambridge, whose article is entitled, A Damp Squib in the Long Grass. This is perhaps a little harsh, but I think one senses what he is getting at. No wonder Professor Fenwick at the University of Durham described the document, perhaps rather generously, as “odd”. For me, the paper In Defence of Rights, by my noble friend Lady Kennedy and Professor Sands, is more persuasive. It destroys the confused majority view with a pretty well argued, moderate and sensible position.
The commission report has of course effectively stymied any change until after the 2015 general election. It is only when we know the result of that election and what will follow from it that we can realistically move forward. I would expect the Liberal Democrats to be every bit as robust in their defence of the Human Rights Act as I hope my party will also be.
I want to end on a perhaps rather less consensual note. I am afraid that the Liberal Democrats’ effective defence of the Human Rights Act and the convention is in marked contrast to the feebleness and lack of concern for the individual citizen evident in their acquiescence to—and sometimes even welcome for—some of the more reactionary measures that Her Majesty’s Government have recently taken. I of course refer to the restrictions either passed or proposed on judicial review, the no-win no-fee policy, and the position that private firms doing public work on public contracts may be exempt from freedom of information. Above all, I must say, it is evident in the decimation of social welfare law by taking it outside the scope of legal aid. It is no answer to say that citizens are still able in theory to go to law, because the reality is that without free legal advice, the poor and the marginalised in practice cannot go to law. Human rights exist outside the Human Rights Act. By limiting and restricting the ability of the citizen to take on the state, the Liberal Democrats are colluding in particularly anti-liberal acts.
I conclude by saying to the Minister that he has nobly protected the Human Rights Act in very difficult circumstances and that his part of the Government deserves great credit for that. Now is the time to protect the interests of individual citizens who need to take on the state. They, too, like those protected by the Human Rights Act, are an essential part of those who live in a free society.
My Lords, they say that they never come back, and yet there is the noble Lord, Lord Bach, back on the Front Bench in fine, feisty form, taking on a kind of Dame Nellie Melba role in the number of questions that he asks. He has also tabled a Question for me to answer in a few days’ time. The rather emotional goodbyes that I bid him a few months ago were perhaps premature. Although some of his closing themes were familiar from our debates over the past two years, I shall not follow him down that path, because we will have other opportunities to do so.
I was grateful for the tribute that the noble Lord paid to the Cook-Maclennan reforms. Certainly, the success of that first Labour Government from 1997 to 2001 owed very much, as my noble friend Lord Lester said, to that blueprint setting out much of the constitutional reform during that period. I believe that when future historians come to review that period, they will agree that that burst of quite extraordinary reform started to peter out only when the Government departed from the Cook-Maclennan blueprint and began increasingly to rely on ideas usually prepared on the back of an envelope by the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Prescott.
This has been an excellent debate. The noble and learned Lord, Lord Goldsmith—the late Lord Goldsmith—posed the question, “Which human rights are you planning to repeal?”. It is a legitimate question to ask those who seek change. The debate was made all the healthier by the noble Lord, Lord Faulks, who produced with characteristic clarity what I would call the case for the prosecution. He asked specifically whether membership of the EU and membership of the European Convention on Human Rights were compatible—whether we could withdraw from one without affecting our membership of the other—particularly given the ECHR case to which he referred. My officials advise me that this is a moot point. I find it to be an extraordinarily moot point, because I have always understood that one of the qualifications for membership of the EU was observance of the European Convention on Human Rights.
In recent years, I have had the opportunity to visit a number of countries that, in working towards membership of the European Union, have been set high hurdles by the EU in terms of human rights observance. One of the great triumphs of the EU is how, by insisting on those high hurdles, it has moved human rights eastwards across Europe. On 1 July, we celebrate the latest addition to the European Union, Croatia. After a terrible war, it has been the European Union and its insistence on high standards in the rule of law that have prepared Croatia for its rightful place in the European family, a family that is resting on the ECHR.
I understand the points about how human rights have suffered by appearing to delve into trivialities. However, as a number of speakers have pointed out, the media often attribute to human rights reasoning and causes that have nothing to do with the actual Human Rights Act. This is rather like health and safety and data protection legislation, which I also support. When the media talk about a pancake race that has been cancelled by health and safety rules, I like to count the number of deaths that have been prevented on building sites by those rules. That is when these rules bite. Similarly, we only have to open the newspaper every day to realise how important data protection rules are in a modern society.
I welcomed the spirited exposition of the noble Lord, Lord Faulks, which stimulated responses in others, and I will try to cover a number of the issues that were raised. I was extremely grateful for the intervention of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, because he counterpointed the noble Lord, Lord Faulks, in warning us of the complexities of trying to write a UK Bill of Rights. There is always a danger that, if you make a speech that is slightly out of step with your party, everybody else praises you, so I hope that it does not do the career of the noble Lord, Lord Gold, too much damage to say that I found his intervention extremely helpful with its warning of a backward step and reference to the problem of public understanding.
The noble Lord, Lord Bach, and the noble Baroness, Lady Kennedy, both seemed to imply that there was some secret about the origins of the Bill of Rights commission. This Government were formed as a coalition between two parties that have, in recent years, taken a different view about the Human Rights Act and the part that the European Court in Strasbourg, and the European Convention on Human Rights it interprets, should play in our national law. The response of the new coalition Government was twofold. We established the commission, of which the noble Lord, Lord Lester, was a distinguished member, as was the noble Baroness, Lady Kennedy, and the noble Lord, Lord Faulks, and we embarked on a programme of reform of the Strasbourg court that culminated in the Brighton declaration.
I have also said that I do not consider the Human Rights Act to be a precious vase, to be kept on a high shelf, never to be taken down or examined for fear of breaking it. I agree with the noble and learned Lord, Lord Woolf, that well informed debate about human rights is extremely healthy. I welcome, particularly in this House, our periodic examination of human rights and their place in our society—the noble Lord, Lord Bach, referred to the one such review led by the noble and learned Lord, Lord Irvine of Lairg, a couple of years ago.
I hope that the House will keep on returning to this subject, because, like the noble and learned Lord, Lord Woolf, I remain confident that such an examination invariably concludes with a reaffirmation of human rights as something deep in the political DNA of the British people and of our history. The noble Lord, Lord Lester, reminded us of the relevance of Magna Carta, the 800th anniversary of which we celebrate in 2015. That linkage between our history and the growth of the concept of human rights was underlined, as the noble Lord, Lord Judd, reminded us, when Eleanor Roosevelt launched the UN Declaration of Human Rights and called it a,
“Magna Carta for all mankind”.
The world needed no explanation of what she meant. She was part of that “never again” generation who had experienced the horrors of when state power goes unchecked and human rights are subjugated to the power of the state or some perverted political doctrine. The noble Lord, Lord Judd, is right: that generation, whether it be the noble Lord, Lord Healey, or Ted Heath, or others who came back from that war, had a “never again” determination that impacted on the legislation that they brought forward and the themes that they espoused.
Let us be clear that human rights and civil liberties are not some foreign invention. They are deeply rooted in the history of the people of this country. Upholding them should be a source of national pride. As the noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Gold, pointed out, too many people do not fully comprehend the impact of human rights on their daily lives, and myths and misreporting about human rights are often accepted as fact. If we look beyond the sometimes skewed perceptions, we see that the Act is a measured piece of legislation when understood and used properly. The noble Baroness, Lady Kennedy, cited some very good examples of human rights in action and I could give others. As the noble Lord, Lord Faulks, said, human rights are not a matter of abstractions; they are about realities. It is not an airy-fairy notion reserved for philosophy seminars but the practical interaction between the state and its agencies and those they should serve.
The message from this debate is that it is your human rights, my human rights, our human rights. Perhaps that could be no better illustrated than by the fact that, when the Daily Mail felt that it was under attack by Lord Justice Leveson, the editor cited his human rights in protection. For me, it proved that there must be a God.
While reflecting on judgments, we should note our actual Strasbourg record. As the noble Lord, Lord Lester, reminded us, the number of applications involving the UK that resulted in a judgment by the European Court of Human Rights is small. In 2012, there were only 10 judgments finding violations against the United Kingdom out of over 3,300 applications. Our record on implementation of judgments is generally good: from March 2010 to May 2013, the United Kingdom completed the implementation of 82 judgments, with just 22 outstanding. One highlight of my ministerial career was when, in May 2012, I sat in front of the United Nations Human Rights Council in Geneva being held to account for the UK’s human rights record.
The UPR mechanism offers the Government real opportunities to consult civil society organisations and our national human rights institutions. Through open discussion with them, we build an understanding of where we should focus our efforts on key human rights issues; this dialogue allows them to monitor our progress. We have also gone digital. On top of stakeholder events, everyone now can send us online submissions via our website. All this ensures that we remain connected to, and aware of, human rights issues as they affect real people. We aim to use the information gathered from our engagement with civil society and through online submissions to help to shape how we respond to the United Nations in our mid-term review next summer. This approach pays dividends in engaging people in human rights. It helps us to focus our efforts and enables civil society to monitor our progress. Generally, our approach to the review was one of openness, celebrating success where we can but being receptive to challenge. We have had very positive feedback from civil society organisations in the UK on our engagement strategy.
Also in May, the United Kingdom was examined against our obligations under the United Nations Convention Against Torture. We will consider the recommendations carefully before responding. That was a point made by the noble Lord, Lord Faulks. It is not just a matter of the ECHR. In a world of interdependability, we are part of a whole range of conventions and commitments, by which we test Governments’ behaviour.
As I said, undergoing such scrutiny is necessary and proper to ensure that the United Kingdom is fulfilling its obligations under the Human Rights Act and that the Act itself is fit for purpose. It was with this in mind that the Government put forward plans for the Commission on a Bill of Rights. On behalf of the Government, I express thanks once again for the dedicated work of all those associated with the commission, culminating in the publication of its final report. Like others, I pay particular tribute to Sir Leigh Lewis, as chairman of that commission. My view is that the only job that he is otherwise qualified for is leading the Liberal Democrats in the House of Lords, because he has all the same attributes, as we have seen today—he had some fairly big personalities to keep in check.
I remind the House of some of the commission’s key conclusions. A majority of the commission concluded that there is a strong argument in favour of a UK Bill of Rights. However, that was on the basis that any such Bill would need to incorporate and build on all the UK’s existing obligations under the European Convention on Human Rights and that it would provide no less protection than is currently contained both in the Human Rights Act and in the devolution settlements. Both the noble and learned Lord, Lord Brown, and my noble friend Lord Gold made powerful arguments about whether that was the right way forward. This finding was in line with the commission’s terms of reference. The majority saw the current lack of public ownership of the Human Rights Act and the European Convention on Human Rights as the most compelling reason in favour of a new Bill of Rights. However, as my noble friend Lord Gold reminded us, even if it were to be carried through, it might not solve this problem of public understanding and acceptance.
Some of those in the majority who favoured a Bill of Rights felt that any new Bill could usefully define the scope of some rights more clearly and adjust their balance. However, as the noble Baroness, Lady Kennedy, has told us, she and Philippe Sands concluded that the commission’s consultations and its deliberations had failed to identify any real shortcomings either in the existing Human Rights Act or in the way in which it is applied to the domestic courts. They were concerned that any move towards a Bill of Rights would lessen the rights protection that is currently available and would potentially be a first step towards the United Kingdom withdrawing from the European Convention on Human Rights.
Although the commission was unable to reach agreement on all its conclusions, it identified and reported issues that would need careful consideration before any changes were made to the UK’s legal framework for human rights. I disagree with the noble Lord, Lord Bach, and some of the distinguished academics. I think that any political party looking forward and working on its policy on this issue, and any Parliament looking at it, will find the commission’s work an exercise in ground-clearing and testing of arguments that will stand us in good stead for the future.
My noble friend Lord Maclennan reminded us, as did the commission, of the background against which this discussion is taking place. Next year we will definitely have to make a very clear decision about the future of this United Kingdom. The evidence showed—and there was unanimity on this—that to discuss any changes to the Human Rights Act before we have made that fundamental decision about the union would not be very sensible or constructive.
It is interesting to note in passing that, although we think that perhaps the other place is more hostile and more populist, when a 10-minute rule Bill to repeal the Human Rights Act was put forward in the other place by Richard Bacon MP last December, it was defeated by 195 votes to 75. I just do not believe it is true that there is some great populist seething hostility to the Act. I think the more that people understand it and the more it is put to them in positive terms, the more support there is for it.
My noble friend Lord Maclennan and the noble and learned Lord, Lord Woolf, both mentioned the Brighton declaration. I am very proud of what we did at Brighton—I think that we addressed some very real problems. The noble and learned Lord, Lord Woolf, mentioned his own work in suggesting ways in which the effectiveness and efficiency of the court could be improved. I hope that there is good news for him. Better late than never, at the recent meeting in Strasbourg the court accepted a number of the recommendations in the noble and learned Lord’s report. I would not presume to suggest that the legal system sometimes moves very slowly, but it gets there in the end. On Monday, our ambassador in Strasbourg will, on behalf of the UK, sign Protocol 15 to the convention, which implements the amendments to the convention agreed in the Brighton declaration. We are continuing to press for reforms of the Strasbourg court in a way that we think will give it better credibility and lead to greater efficiency. However, I entirely share the opinion of the noble and learned Lord, Lord Woolf, that this is a matter where we can achieve change and improvement, although this is work in progress.
Looking forward, as I said, I do not believe that this Government or this country have anything to apologise for in their record on upholding human rights. Nor do I think that at heart there is fundamental disagreement on the need to uphold human rights and the rule of law. I tend to agree with the noble Lord, Lord Judd: I do not want to pin party labels on this matter. We have, as I said, concepts of human rights that are rooted deep in our history and deep in our national psyche. Let us not be afraid of debating human rights with vigour and candour. However, let us do so in a way that also takes account of the very real leadership role that we play in this area. The world does look and listen when we debate these issues, so let us be sure that we are sending it the right messages.
I applaud the way in which the Foreign Secretary has used soft diplomacy and consistency of message to promote and support human rights around the world. Both my noble friend Lord Faulks and the noble and learned Lord, Lord Goldsmith, referred to the fact that we carry weight and influence in these matters. The Foreign Secretary can promote human rights because our own reputation for observing and promoting human rights still stands high. However, observing and upholding human rights is always work in progress.
In his closing remarks, my noble friend Lord Lester referred to the 800th anniversary of Magna Carta in 2015. Although she is not in her place at the moment, a few weeks ago the noble Baroness, Lady Ramsay, reminded me of something that was a surprise to me. Those gentlemen up there who look down on our deliberations are the Barons of Runnymede. They remind us of the 800-year journey that this country has taken in setting limits to the power of the state and the responsibility that we all bear to uphold what the late Lord Bingham referred to as the spirit of Magna Carta. I think that that is what we have been doing today and I thank my noble friend Lord Lester and all noble Lords who have taken part in what has been a debate of great quality in the best traditions of this House.
I am extremely proud to be the Human Rights Minister in this Government. I work very closely with my colleague Damian Green on this matter. This has been a healthy debate. I suspect that the next stage of it, as far as any legislation is concerned, will depend on the outcome of the next general election—it will be incumbent on all the political parties to take their views on the Human Rights Act and its future to the hustings. I think that I know where we will be and I look forward to this ongoing debate.
My Lords, it is customary to thank all speakers who have taken part in a debate of this kind. I must say that I found this a most remarkable debate that will be read abroad as well as in this country. It will be remembered, I am sure, in the future, as will the report of this commission.
For me, one of the most ingenious excuses for arriving late, on which I congratulate the noble and learned Lord, Lord Goldsmith, was that it did not matter because he knew exactly what I was going to say as he had heard it all before. Alas, that is probably true. I worked for 30 years to accomplish the Human Rights Act and I am hardly likely to be one of those who would advocate tearing it up.
However, I will ask the conservatives, with a small “c”, in this debate—which was most noble Lords, I think, except the noble Lord, Lord Judd—to think about one thing. We are the only country, among the 47, that uses a European treaty rather than a domestic constitutional instrument to protect our basic rights and freedoms. For us the question is, is something incompatible with the European treaty? For the rest of Europe and most of the Commonwealth, the question is, is this incompatible with our constitutional rights? The question that the report poses, and that has been debated this afternoon, is whether we command more public confidence by relying on the European treaty, or whether, as the Labour Party agreed in 1993, the first step should be incorporating the convention by statute, but that that should be followed by the second step of a constitutional instrument? As I think everyone has said, that question can only be answered after the Scottish referendum. I hope that in June 2015, two years from now, when we mark the anniversary of Magna Carta and its Scottish equivalent, we will strive to ensure that it will be an occasion to celebrate what has been achieved and to build on those achievements, not to weaken them. I am grateful to all noble Lords.
National Health Service (Direct Payments) (Repeal of Pilot Schemes Limitation) Order 2013
Motion to Approve
My Lords, in 2009 we debated piloting direct payments for healthcare as part of the wider personal health budget pilot programme. Personal health budgets allow people to have choice and control over the care and support that they receive. A care plan is drawn up between individuals and their healthcare professionals, which is person-centred and designed to allow them to access care that works in the best way for them. It is already possible to offer personal health budgets where the money is held by the NHS or by a third party, but direct payments would allow personal health budgets to be held by the individual in the form of cash sent directly to their bank account, albeit one separate to their own personal funds.
Direct payments—and, indeed, personal health budgets more widely—are new to the NHS and we wanted the pilots to explore whether they would be beneficial. We wanted to find out which people and services were likely to benefit most and how we should implement them in order to get the best results. The pilot programme ran from 2009 to 2012 and I am delighted to report that the independent evaluation of that programme supports the wider use of direct payments in healthcare.
I will spend a few minutes talking about what the evaluation and the learning from the pilot programme tell us about direct payments for healthcare and personal health budgets more widely. The evaluation demonstrated that personal health budgets were most beneficial for people who had higher levels of health needs. In particular, it identified benefits to people with long-term physical or mental health conditions and disabilities who access the NHS most frequently. For these people, having real choice and control over how to manage their budget to meet their individual needs is a key factor in how they handle their own condition and improve their quality of life.
The most important element of our debate today is the discussion around whether we should take a step further and allow direct payments for healthcare as a new option for people who have or want personal health budgets, building on the success of the pilots. If the House agrees with the principle, secondary regulations, which will be laid before the Summer Recess, will set out the rules for the making of direct payments for healthcare.
The current debate focuses on direct payments for healthcare because this is the only part of the personal health budgets policy that requires legislative change. The other two ways to manage personal health budgets, where money is held by the NHS or alternatively by a third party, are currently lawful. However, direct payments for healthcare are a great deal more than money in lieu of NHS services. They are designed to allow people more flexibility and control over how their health needs are met.
The pilot programme showed that the success of direct payments for healthcare is dependent on good-quality, personal, holistic planning. The secondary regulations set out that individual care plans must be agreed before a direct payment can be approved. Importance is placed on the development of the plan being led by the individual or their carers, or a collaboration of both, using the right information and support. It should bring together their knowledge and experience of what works for them alongside clinical knowledge and expertise. The role that healthcare professionals play is still vital, but the conversation between the individual and specialists involved in their care should be a different, more real partnership.
So where does the NHS constitution fit into all this? It is vital, as we are absolutely clear that the budget must meet the full cost of the care and support agreed in the plan. NHS care provided through a direct payment for healthcare remains comprehensive care, free at the point of delivery, based on need rather than on ability to pay. This means no top-ups.
In the vast majority of cases, direct payments for healthcare will continue to be used on traditional care and support. However, a personal budget will give people the freedom to set arrangements that work for them. For example, people will be able to employ their own carers. In these circumstances, they will have greater control over who comes into their home, when they are scheduled to come and what tasks care staff perform. This can make a real difference to people’s lives and to their families’ lives by encouraging them to organise care that is more appropriate for their needs and the lifestyle they wish to lead. It is crucial to note, however, that direct payments for healthcare are not about new money; they simply allow people to use money already being spent on their care in a different way.
The NHS provides a huge range of care, support and treatment, and it would not be appropriate to include all NHS services in direct payments. Secondary regulations will set out what services should be excluded from a direct payment for healthcare. These will include, for instance, GP services, as we believe that disruption to the holistic care currently provided by a GP would be detrimental.
In addition, we do not think that it is appropriate to include the costs of unplanned care in a direct payment for healthcare. This would include things such as a visit to accident and emergency or admissions to hospital. However, it is important to point out that the evaluation of the pilot programme suggests that people with personal health budgets use secondary care services less. We are therefore confident that there is merit in giving people budgets to help them access care and support which works for them and prevents their unnecessary admission into hospital. Everyone will be able to reap the benefits as individuals will experience a more infrequent need for acute care and the overall cost of care for each individual will decrease, meaning an overall saving to the public purse.
Another area where we do not think that the use of direct payment for healthcare would add value is payment for medication. Deciding what medication an individual requires is a core responsibility of GPs and it should remain that way. This is currently dealt with using a two-stage process whereby a GP gives a prescription and pays for the cost of the medicine, and the individual then contributes with their prescription fee. We do not believe that direct payments should be used for either stage, or for any other area where NHS charges apply.
There may be concerns surrounding the proper or improper use of funds, or people’s needs not being met. In order to monitor this, there will be periodic reviews to ensure that the care and support being delivered are meeting the individual’s needs. In the case of direct payments for healthcare, these reviews will include a financial review to ensure that the money is being used appropriately. The details of what the review should entail will be set in the secondary regulations and explained to the individual as part of the care-planning process.
The evidence from the pilot programme suggests that people spend their money as set out in the individual care plan. What is more, they were happy to give money back if it was not needed. However, safeguards will be written into the secondary regulations to ensure that action can be taken where there is an excess that people are reticent to return, or where fraud has occurred.
In implementing direct payments for healthcare we are keen to ensure that integration between health and social care is taken into account. There are a few differences between direct payments for healthcare and direct payments provided by local authorities to fund social care. For example, the latter rely on means-testing, whereas direct payments for healthcare do not. Nevertheless, where possible the policy and regulations for direct payments for healthcare mirror those for social care. This will help to facilitate integration across health and social care. In future, it is intended that adults who have both health and social care needs could have a joint plan and budget.
I will now turn briefly to the issue of who should be able to have a direct payment for healthcare. We do not believe that such a payment would be appropriate for everyone who uses NHS services, or for all the services that an individual may use. The founding principle is that there needs to be a benefit from having a direct payment and that this should outweigh any additional costs. The evaluation suggests that those with higher health needs and inevitably larger budgets benefit most.
I make it clear that direct payments for healthcare will always be voluntary. No one will be forced to have one or be asked to take more control than they would find comfortable. However, where they add value and the individual is interested in using them, the right information and support should be made available so that people can make informed choices about how they wish to proceed. The need for information and support is intrinsic to this entire process, and this will be set out in the secondary regulations.
The pilot programme and the evaluation that followed provided evidence that the concept of direct payments for healthcare is beneficial and cost effective if properly implemented. Nevertheless, we accept that there is still much to learn and that we are only at the beginning of the journey. Therefore, it is important that direct payments for healthcare are introduced gradually and in a way that guarantees the sustainability of the programme. As of April 2014, people receiving NHS continuing healthcare will have a right to request a personal health budget and direct payments. It is thereafter anticipated that this progression, allowing more and more people the opportunity to have direct payments, will continue into 2015 and beyond.
In conclusion, I trust that I have demonstrated how the draft order removing the pilot scheme limitation will enable direct payments for healthcare to be made to patients using the NHS in England, and how secondary regulations will clearly set out the details of how they will be implemented. I commend the draft order to the House.
My Lords, I thank the Minister for his comprehensive explanation of the background and purpose of the order. We recognise that it is a technical amendment, but this is nevertheless a good opportunity to be updated by the Minister on the consultation on the extension of direct payments for healthcare and how the learning points from the pilots are to be translated into the revised regulations. Labour is fully supportive of extending personal health budgets, having pioneered them in social care through our personalisation and transformation of social care agenda, and set the ball rolling into 2009 on the PHB direct payments pilot.
It was also right to focus on exploring the use of PHBs and direct payments where people had the highest needs, such as those with long-term health and mental health conditions and who access the NHS most frequently. The pilot group covered CIPD, diabetes and long-term conditions, mental health and stroke and patients eligible for NHS continuing care. Labour was particularly concerned that PHBs do not stop at physical health but also include people with learning disabilities.
The national rollout target for PHBs to be extended to 56,000 people by April 2014 is challenging but is necessary to boost the take-up of PHBs across the country, as is the NHS mandate provision for every patient who will benefit to have the option of a PHB by 2015. Is the Minister confident that in the current circumstances, the resources will be available to support achieving these targets?
The pilot evaluation concluded that the majority of budget holders and their carers reported positive impacts of PHBs on patients—on health and well-being, care and other support arrangements for family members. As we know, PHBs have the potential to improve quality of life and satisfaction for both patients and carers, including psychological well-being. Helping patients design packages of care and support from clinicians, primary and secondary care and community health services also helps to provide joined-up integrated care, as the Minister pointed out, and in many instances has led to a reduction in the number of hospital visits. This is exactly where we need to be in terms of future service provision.
As a member—like many Members on all sides of both Houses—of the Westminster Health Forum, I recently chaired a specialist conference on PHBs which was attended by staff, providers and practitioners from across health and social care. The forum conferences are a valuable exchange between experts and staff on the ground including, in this case, those who are part of the multidisciplinary teams supporting and delivering PHBs. There was strong support for PHBs but it is clear, as the Minister said, that we are still very much in a learning process about their development. As usual, as you would expect, there were many questions and answers about some of the implementation, monitoring, accountability and evaluation issues.
I should like to finish by asking the Minister three questions on the issues that arose. First, there were widespread concerns at the conference that the evidence on the impact and effect of PHBs needed to be sharpened up in the future evaluation process. The pilot evaluation showed that there did not appear to be an impact on health status per se. Can the Minister explain whether there are plans in the rollout to assess possible measurements of health improvements, although of course we recognise that these can be hard to achieve in long-term health conditions?
Secondly, a number of GPs at the conference spoke about the challenge of getting wider GP buy-in to PHBs. Can the Minister update the House on discussions with the Royal College of GPs and the BMA on addressing this important issue? The college’s guidance on PHBs was especially commended by conference participants.
Finally, there was widespread concern about how PHBs will be taken forward by commissioners, health professionals and service users. Can the Minister update the House on advice planned or issued by the Department of Health in this respect?
My Lords, this is most definitely one area of policy where all sides of the House are at one and I am grateful to the noble Baroness for her comments. She is right that the pioneering work on social care budgets was carried out during the previous Administration and gave us—and her own Government in 2009—sufficient confidence to institute these pilots for healthcare. I am pleased that she is as gratified as I am that the pilots have been a success, although as I emphasised earlier, we still need to feel our way in rolling them out.
The noble Baroness mentioned specifically people with learning disabilities and I agree with what she said. Although the number of people with learning disabilities involved in the pilot was small, it is clear from their stories that people with learning disabilities and their families benefited from the flexibility and control offered by personal health budgets. As the final report on Winterbourne View identified, personal health budgets have the potential to improve commissioning for people with complex needs and challenging behaviour. Many people in out of area placements, or who are at risk of such placements, are funded entirely through NHS continuing healthcare or have some NHS funding. These groups could be offered personal health budgets as the basis for a person-centred approach, meaning that they could have more control over where they live and the care they can access. It is that kind of intangible benefit—the noble Baroness asked about health benefits—that is very difficult to capture metrically, but it is nevertheless an important factor.
The noble Baroness asked me about resources and whether they will be available. As I mentioned earlier, personal health budgets are not about new money, they are about using existing money more effectively. Funding for budgets will need to be found from within normal NHS allocations and how that is done will be a decision for local CCGs. The personal health budget toolkit contains learning from the pilot programme on this and more information will become available during the early rollout phase as Going Further Faster sites consider sustainability issues. NHS England will be publishing guidance to help CCGs consider how to introduce direct payments for healthcare and personal health budgets on a local level in a sustainable way.
In answer to the noble Baroness’s question about health outcomes, it might be helpful to run through some of the findings from the pilots, which I think show that we can hold our heads up and say that they benefit people. First, we are clear that personal health budgets are cost-effective. They improve or maintain outcomes and reduce costs or are cost-neutral. These results are particularly true for people eligible for NHS continuing healthcare and people with mental health problems. When personal health budgets are implemented so that the person has choice over services and how they receive the budget, the cost-effectiveness increases. People can choose to meet their needs in different ways through lower-cost interventions, for example by training their personal assistants to carry out some health tasks, such as changing dressings. This means that people’s needs can still be met but in a different way, and perhaps in a way which is less stressful for them.
Personal health budgets also clearly resulted in an increase in the quality of life. The study found that effects were greater when people had budgets of more than £1,000, and this generally applies to people who have higher levels of health need, as I mentioned earlier. People benefited more from personal health budgets when there were fewer restrictions in place around what they could spend the money on and how they received the budget—that is, having a choice of a direct payment, a third-party budget or a notional budget. I hope that that is helpful to the noble Baroness in answer to her question.
In answer to the noble Baroness’s further question, I can tell her that the review will include a review of whether the budget is meeting the individual’s needs. That is clearly an important factor. We need to make sure not only that the money is adequate but that the plan itself and the money that goes with it are in step with each other. As regards the Royal College of General Practitioners and wider GP buy-in to personal health budgets, we have been very careful to engage with the royal college at all stages. We met them in conference last week to discuss their role going forward. It is important, as the noble Baroness stressed, that we engage GPs in this process, and I hope that we can continue that active co-operation with them.
Justice and Security (Northern Ireland) Act 2007 (Code of Practice) Order 2013
Motion to Approve
My Lords, this order brings into force the code of practice for the exercise of powers in the Justice and Security (Northern Ireland) Act 2007. The 2007 Act provides a range of powers to the Police Service of Northern Ireland, including stop and question, stop and search for munitions and wireless apparatus, and entry of premises. It also gives the police the power to seize items found during searches of people, premises and vehicles. While a number of the powers in the 2007 Act are primarily for use by the PSNI, the Armed Forces also have powers under the Act which they can use in support of the police.
Amendments to the 2007 Act made by the Protection of Freedoms Act 2012 introduced an authorisation procedure for the exercise by the police of stop-and-search powers in relation to munitions and wireless transmitters. The purpose of this code is to set out how the powers at Sections 21, 23 and 24 and of Schedules 3 and 26 to the 2007 Act should be exercised by the Police Service of Northern Ireland. It also sets out the fundamental principles which underpin the use of the powers. The purpose of Annexe C of the code is to set out the general principles for the use of the powers at Sections 21 to 28 and Section 30 of the 2007 Act by the Armed Forces in the exceptional circumstances in which they may be exercised.
The code of practice has been developed to provide guidance on the use of these powers, particularly to ensure that they are used with regard to proportionality and necessity principles. Effective controls on police powers are essential if we are properly to protect civil liberties. Noble Lords will wish to note that there was no requirement to develop a code under the 2007 Act. The Act simply allowed the Secretary of State to make one and my right honourable friend the Secretary of State decided to do so following the changes to the powers made by the Protection of Freedoms Act 2012 to ensure that they were used proportionately, recognising that they are extremely valuable to the PSNI but that we must ensure that they are used properly. We believe that the amended powers and accompanying code of practice strike the right balance between enabling the police to protect the public while ensuring that there are robust safeguards to ensure that the powers are not abused or used excessively.
I recognise that some of these powers, such as the power to stop and search without reasonable suspicion, can be controversial. It is essential that the powers under the 2007 Act must be used only when it is proportionate and necessary to do so and this code of practice will assist police officers in ensuring that these powers are used appropriately.
This code applies to police powers in the 2007 Act, which are specific to Northern Ireland. It does not cover any other police powers in UK-wide legislation or other legislation applicable to Northern Ireland only. It does not affect the operation of other codes of practice, including the Police and Criminal Evidence (Northern Ireland) Order 1989 codes and the Code of Practice (Northern Ireland) for the authorisation and exercise of stop-and-search powers relating to Sections 43, 43A and 47A of, and Schedule 6B to, the Terrorism Act 2000.
In December 2012 my right honourable friend the Secretary of State for Northern Ireland launched a 12-week public consultation seeking views on the code of practice. The consultation closed on 6 March and a total of four formal responses were received. All four broadly welcomed the introduction of the code of practice as drafted. The comments were carefully considered and amendments to the code were made. The draft code was close to being finalised when the Court of Appeal issued its judgment in a judicial review—the case of Canning, Fox and McNulty—that challenged the Police Service of Northern Ireland’s use of stop-and-question and stop-and-search powers in the 2007 Act.
The Court of Appeal found that, without a code of practice in place for the use of these powers in the 2007 Act, the powers were too broad and lacked adequate safeguards. Noble Lords will wish to note that the judgment related to the powers in the 2007 Act prior to the amendments made by the 2012 Act, which brought in the safeguard of an authorisation process for the stop-and-search power. However, following the judgment and subsequent legal advice, the PSNI suspended its use of stop-and-question and stop-and-search powers until a code of practice was in place. Due to the risk to public safety if these powers were not available to the PSNI, it was considered necessary to bring in the code of practice under an urgent procedure, as provided for by the 2007 Act. With the approval of the Secretary of State for Northern Ireland, the code of practice was brought into force on 15 May and the PSNI was able to resume use of these powers, which are an essential tool in ensuring public safety. This urgent procedure allows the code to remain in force for 40 days. This period ends on 3 July. In order for the code to become permanent, it must be debated and approved by both Houses.
The Independent Reviewer of the Justice and Security Act, Mr Robert Whalley CB, reviews the operation of Sections 21 to 32 of the 2007 Act and considers the views of those who use or are affected by these sections. In his most recent annual review the independent reviewer found:
“The operational indicators clearly point towards the continuation of the JSA powers for a further year … my judgment is that the Justice and Security Act powers should continue unchanged for another year”.
The context for these powers is crucial to the debate. Your Lordships will all be aware that the threat level in Northern Ireland remains severe. It is vital that the Police Service of Northern Ireland continues to have available the powers in the 2007 Act. The powers in the Act are not terrorism powers per se; they are powers for dealing with public order situations, including, but not restricted to, terrorism. The powers are an important tool for maintaining public order and were exercised by the PSNI during the recent flags dispute. However, given the current situation in Northern Ireland, these powers are often used to protect the public from terrorist attacks. The PSNI has demonstrated that these powers are necessary and effective in dealing with Northern Ireland-related terrorism. They have prevented attacks, saved lives and led to arrests and convictions. I commend the order to the House.
I thank the noble Baroness for introducing this statutory instrument and broadly offer my support. Since the Court of Appeal’s ruling in May of this year, it is clear that this matter has acquired a degree of urgency and I understand why the Government want to move so quickly. Broadly speaking, I accept her words when she says that the right balance has been achieved between civil liberties and the need to preserve public security.
However, I have one slight reservation. Paragraph 8.4 of the Code of Practice for the Exercise of Powers in the Justice and Security (Northern Ireland) Act 2007 states:
“The use of these powers can protect people’s rights under the European Convention on Human Rights, such as Article 2 (the right to life) by preventing serious harm posed by use of unlawful munitions and wireless apparatus. However, if these powers are exercised there may be some interference with other rights under the Convention, such as the right to private life, and this should be borne in mind when officers judge it necessary to use these powers”.
This is under the part of the code dealing with search for and seizure of munitions and transmitters. My slight problem with that phrasing is that it seems to say that there are two rights. It does not do so explicitly but it leads into it. One is the right to a private life and the other is the commitment that the police must have, under the European convention, to protect life. Following the Court of Appeal ruling, we are putting this problem back with the officers on the ground, and it is probably reasonable to make it clearer. I think that Parliament properly believes that the right to life, in certain circumstances, trumps the right to a private life for a person who might be under investigation. There is just an element of equivocation in the drafting there, which suggests an apparent equality of rights. I accept that it does not actually equate those rights but it certainly does not prioritise one right over another.
Noble Lords will remember that we have expected officers in the last few days, in the lead-up to the G8 summit, to protect world leaders who are in Northern Ireland. They might have been in a situation of trying to intercept ammunition that was being moved around Northern Ireland. I cannot imagine that it would be enormously helpful for them to have to have in mind that they must, on the one had, weigh up their views on the right to life—we all have the right to life but in this case it is the lives of some very important people—and at the same time have to bear that in mind that they might be interfering with the private life of the person driving the car. There is a real problem of balance here and I just think that the drafting is slightly too glib. I am not in any way going to push this point but think it is worth registering. Broadly speaking, I accept the reason for the statutory instrument and accept entirely the defence that has been offered this afternoon by the Minister.
My Lords, I, too, thank the Minister for the clear exposition of the powers outlined in the code of practice. There is a very wide range of powers affecting the Police Service of Northern Ireland and the Armed Forces and it is right and proper that there should be a well thought out code of practice governing the exercise and use of those powers. We all know the situation in Northern Ireland, where the authorities, the police and the Armed Forces have to be seen to be absolutely foursquare in their application of those powers. This code of practice builds in safeguards for the use of the powers for all in the community.
Security in Northern Ireland is of the utmost importance to all noble Lords in this House and we are united in our commitment to ensuring that people in Northern Ireland are safe and secure. The men and women officers of the Police Service of Northern Ireland do their jobs with bravery and dedication. The measures in the Act play a hugely important role in combating terrorism and protecting communities in Northern Ireland and it is very important that they are overseen by rigorous, independent scrutiny. That is encompassed in the code of practice, which is vital to maintaining public confidence in Northern Ireland in the exercise of these powers. We on this side of the House are happy to lend our support, in the best traditions of bipartisanship, and understand the reasons for the urgent nature of the measure. I would like to place on record that Her Majesty’s Loyal Opposition give their full support to this order.
I thank both noble Lords who have participated in this brief debate for their support and I will do my best to respond to the points raised. I thank the noble Lord, Lord Bew, for his broad support. He referred to paragraph 8.4 of the code and read an extract from it. I hope noble Lords will bear with me if I read some further extracts in response to illustrate my point.
The noble Lord referred to the balancing of the two rights. If you read the code as a whole you will see that it acknowledges the supreme importance of the right for one’s life to be protected and the obligation to protect life. There was a long consultation on this code and changes were made to it as a result, so it has been fairly thoroughly looked at. If you look further in the code, paragraph 8.6 says:
“Officers should exercise consideration when entering and searching premises. If entry is forced, officers should endeavour to cause as little damage as possible … officers must ensure the building is left secure”.
Paragraph 8.8 makes the point that:
“Where practicable, officers should seek the co-operation of any person in the dwelling”.
Paragraph 8.9 says:
“Officers should exercise their powers courteously and with respect for persons and property”.
So it goes on.
When the code deals with the need to enter premises—which may be a building but could be a field or vehicle—it acknowledges that you have to recognise that people, as well as having the right to have their life protected, also have a right to a private life. It goes on to explain that one right has to be exercised with a view to the other. I believe the code of practice enshrines the right balance.
I thank the noble Lord, Lord McAvoy, for his support. He referred to the importance of the code building on safeguards. He paid a very important tribute to the PSNI. The police service in Northern Ireland is a devolved issue, but the code was developed in very close collaboration with it, and my right honourable friend the Secretary of State for Northern Ireland keeps very close links with the PSNI. Its involvement in the drafting of this code is essential to its smooth operation in the months and years to come. Finally, the noble Lord referred to the importance of rigorous scrutiny and put his finger on the key point. A process of rigorous scrutiny provides the transparency that ensures the integrity of the process. I hope the noble Lords will feel able to support the order.
Question for Short Debate
My Lords, I am delighted to have secured this debate today. I am looking forward to all the contributions from noble Lords, in particular from the most reverend Primate the Archbishop of Canterbury. I am delighted that he has found time in his very busy schedule to take part in this afternoon’s debate.
We are in a very desperate and difficult situation. The payday lending industry is making a small group of people very rich by lending to people who struggle to get access to reasonably priced financial products to meet their needs at the most exorbitant and outrageous rates of interest. As the most reverend Primate told the House when he spoke during the passage of the Financial Services Act, this is nothing more than usury. A loan becomes usurious because of the excessive or abusive interest rates applied, and the payday lending industry does just that.
I am extremely disappointed that the Government have done next to nothing on this issue following the cross-party agreement on an amendment to cap interest rates which was passed in this House last year. Will the noble Viscount tell the House why the Government have done so little on this issue? Yes, we are living in tough times, but I get the feeling that for some people times are tougher than for others. I do not feel that we are all in this together. Rip-off Britain is alive and well. The payday lending industry is one of the worst examples of exploitation of the poor and the vulnerable, and we all need to do something about it. Government, Parliament, banks and other financial service providers, the Office of Fair Trading, other regulators, the Church and civil society all need to say, “Enough is enough. We are not going to let you treat people like this any more”.
The Government should be doing a number of things and should use their influence to get others to take action as well. We find ourselves in a situation where the alternatives to the payday lending industry are few, and the alternatives that exist need active help and support to grow in strength to be able to deliver and provide real and effective choice for consumers.
The Government have had plenty of advice, seen plenty of studies, and lots of work has been done to identify the problem for them, but so far their response has been poor. Some of the worst practices of this industry include poor lending checks—when there is no proper assessment as to whether the applicant for a loan has enough disposable income to repay the loan in full. Payday lenders often roll over loans without checking whether they will be affordable, even though rollovers should be seen as a clear indication that the borrower may be experiencing financial difficulties. The Office of Fair Trading noted that payday lenders have a strong incentive to roll over loans, making as much as half of their revenues this way.
Multiple loans are also a key indicator of acute repayment problems and should ring alarm bells—but they do not. The misuse of continuous payment authorities has seen situations where money is taken from people’s accounts, leaving them with no money to cover food, housing and other essential bills. Default interest and charges make the cost of rollovers very expensive for borrowers, who cannot repay their loan on time. Again, this is another huge source of revenue for payday lenders.
The aggressive targeting of students and young people is wrong. I was horrified to learn of young people using their smartphones to get a payday loan to buy another round of drinks on a Saturday night. I could go on with this list of bad practices and horror stories but I am sure that other noble Lords will have further examples that they will want to share with us. I will speak about some of the things that could be done to regulate the industry more effectively and get it to act responsibly.
I invite the Prime Minister to call a summit at No. 10 to get the leaders of the payday lending industry, the banks and other financial services providers, including credit unions, the churches, the regulators and the representatives of civil society to sit down together to come up with an agreement on what is acceptable and what is not, what can and what cannot be done and, if need be, to enshrine that in law.
When I joined this noble House just over three years ago almost every Minister who spoke from the Dispatch Box told us that the answer to most of our problems was the big society. Today we never hear the term mentioned, as if it had been banished from the book. If the concept ever meant anything, surely it means people coming together, supporting their community and the most vulnerable, working together, opposing injustice and unfairness, and not letting people be ripped off. What happened to the big society? I hope the noble Viscount will be able to tell the House how this concept is helping people in financial hardship.
What can we do? At a minimum, we could create a situation where no one is struggling to pay off multiple payday loans. No one should owe more than £500 in payday loans. Lenders recovering payday loans should never leave borrowers without the means to meet basic expenditure such as rent, food and council tax. The use of continuous payment authorities should be stopped, and replaced with payment authorities that are controlled by the customer only. If that is not possible because the type of basic bank account the customer has will not allow that, the bank should change the rules and permit it. If a customer notifies the payday lender that they are in financial difficulties, then default charges and interest payments should be stopped for at least 30 days while they get help to deal with their debts. The default charges and other punitive charges should never exceed 30% of the original loan.
Every payday lender on the high street should be required to provide details of where people should go for debt advice, and online lenders should also provide similar information. I would like to see all payday lenders carry a health warning on their advertisements in whatever medium. These warnings should be about 20% of the size of the advert. Similar rules used to apply for cigarette companies, before they were banned from advertising. Payday lenders should tell customers where to go for debt advice, and notify them that cheaper alternatives are available.
For all those measures, other measures are being introduced by payday lenders. We need a plan, and we need to support the alternatives to the payday lending industry. Credit unions have a role to play, and noble Lords will be aware of my active support for the credit union movement over many years. However, only the biggest credit unions will be in a position to provide immediate help. The London Mutual Credit Union, one of the biggest in the country and the biggest in London, has taken up that challenge. The legislative reform order the Government passed on credit unions was very welcome, as is the Treasury’s recent announcement of a rise in the interest rate cap.
The credit union expansion project is good news, and on many occasions I have praised the Government for their work here, but a £35 million fund is not going to provide the solution to our problems. It is a drop in the ocean, and much more needs to be done. In this House I have previously called on the banks to actively support the credit union movement. They must do so not only with a bit of sponsorship or small sums of money, although that would be welcome, but by making a commitment to build these organisations and make them financially robust. Banks should use the skills and expertise of their own staff, working on long term secondments to help the credit union movement grow and develop. The aim is to build what we see on both sides of the border in Ireland and in the United States of America: financially robust institutions, owned by their members, which deliver locally tailored financial products at a reasonable price.
We also need the support of the wider business community, and in fact every employer in the public and private sector. Simply advertising the availability of their local credit union to staff and allowing them to save with it through check-off would be a big step in the right direction. Some of our biggest companies and the Government should take a lead in this with an advertising campaign in support of the credit union movement.
It would also be very helpful if local government as a whole took a proactive role in supporting local credit unions. There are some fantastic examples in places such as Southwark, Islington and Sandwell, to name just three. We need the whole of local government to play its role. If every local authority pledged to deliver a place on the high street for their local credit union, what a welcome sight that would be.
I was surprised to learn how basic some basic bank accounts are. In an age where you can get a payday loan on your smartphone in minutes, some of these accounts do not allow people to get cash back at a supermarket when going shopping, forcing them to use cash machines. If your local bank branch has closed and taken its cash machines away, you are left with the corner shop where you have to pay to use the cash machine. These machines charge £2 or £3 to get out a £10 note. Why can the banking industry not look at some sort of basic loan of up to £500? That could make a huge difference here. Why can the Government not work with banks to provide them with protection and support if they work to help people get away from the payday lending industry?
The point I want to make in this debate is that if whole communities are abandoned then they will become the victims of the payday lending industry. To stop that, there must be a full range of financial products available. We must ensure that you are not discriminated against because of where you live or because you are poor. There need to be viable alternatives to payday lenders. Credit unions are part of the solution, but not all of it. Other financial providers need to step up, and civil society as much as government needs to say that enough is enough.
I thank all noble Lords who are about to speak in this debate. I look forward to their contributions and to the reply from the Minister.
My Lords, 23 years ago, in 1990, I chaired the National Consumer Council. We brought out a book called, Credit and Debt. With the permission of the House, I will read one or two lines from its foreword, which states:
“People have always needed or wanted things that they cannot immediately afford. And there have always been people on hand with the money to lend to them—at a cost”.
The book added that in the previous few years:
“Consumers enormously increased their use of credit. New types of lending grew quickly, older ones declined ... Most people have been able to make good use of these new opportunities, but there has, too, been a worrying increase, for whatever reason, in the number of credit casualties … The change in economic conditions … has reminded us that credit is a risky business. It is risky for lenders, of course, but it is risky for borrowers, too. Taking on credit means mortgaging your future in a large or small way. And none of us can be certain about the future. Today’s rising casualty rate raises anxieties about the greater potential for damage in an expanded market … Many people are still forced by necessity to borrow—sometimes on contracts they do not understand, and at rates that, realistically, they may not be able to afford … Information and education are important keys. They are at the heart of a truly competitive and healthy credit market”.
I read that and some of the rest of the book just to remind myself that I seem to stand up quite often in this House when the noble Lord, Lord Kennedy, stands up, and we are usually talking about credit unions. Some of the ideas that he has mentioned made me think that there is hope and that there may be new ways for us to go in.
However, the credit unions are all about saving, being prudent and putting something aside. The sort of lending that we are talking about here is very often for people who are borrowing in a panic, borrowing instantly, and want to go straight into the high street. We have seen more and more of such lending. Credit unions might not solve this issue, but some of the other suggestions are certainly worth listening to.
We have a Government committed to curbing unsustainable lending, and the report commissioned from Bristol University and the OFT’s final report on payday compliance demonstrated clearly that the high-cost credit market, particularly the payday lending market, is not functioning in the consumer’s interest. The Government have set out how they and regulators together will tackle the concerns in the payday lending market. The OFT now, and the FCA from April 2014, will clamp down on irresponsible practices, and in some cases blatant non-compliance, by lenders. The OFT is consulting on a provisional decision to refer the payday lending market to the Competition Commission. The Government will begin immediate work with industry and regulators to clamp down on the advertising of payday loans, and they are strongly pressing for the industry to improve compliance with payday lending codes. The FSA has committed to considering whether there are gaps in the regulation of payday lending that need to be addressed by the FCA from April 2014.
All this is good news for the consumer and consumer groups such as the National Consumer Federation, Consumer Focus, Citizens Advice and Which?. All are calling for better affordability checks, more transparent information, preventing lenders from levying excessive charges on borrowers in financial difficulty, and other measures. I and many noble Lords have received e-mails and letters from new lenders with many suggestions for alternative ways of lending.
Credit is therefore a popular consumer product. Most people in Great Britain handle it well, and I was reassured to read the foreword written by the Minister for Consumer Affairs, Jo Swinson, in the Government’s response to the Bristol University report, who stated:
“The Government does not believe that a cap on the total cost of credit would be the best solution now to the problems that have been identified by the Bristol report and the OFT payday compliance review”.
However, she added that a “cap might be appropriate” at some time. Here is the point of my concern and my reason for speaking today.
I hope that we can avoid capping at all costs. Germany and France cap at about 25% and they have a very narrow lending market. My worry, and that of consumer groups, the previous Government and this Government, is that capping will restrict access to the credit market, making it unavailable to the poorest and most vulnerable in our country: the disadvantaged consumers. They would undoubtedly lose access to the legal market and be forced into the hands of loan sharks and illegal lenders whose terms and methods cannot be easily controlled or monitored. All Governments and consumer groups are concerned that when it went wrong, the borrowers would be afraid to seek help from the very organisations that are set up to assist people taking panic-borrowing and to sort out their debts. They would find it hard to find these people until it was too late.
I was brought into this House to speak for the consumer, particularly for the disadvantaged consumer, and I hope I am doing that today. After all, a consumer is you and me; a consumer is somebody who buys or uses goods or services, whether publicly or privately provided; a consumer is empowered by having choice, by having access to that choice, by having the right information on which to make that choice and by having safety, equity and redress. Taking away access to a market—in this case, capping the lending market—is giving a disadvantaged consumer no choice other than the black market. As I have already said, capping would mean that the most vulnerable could not make a choice, thus stopping them getting equity, redress and help.
Achieving access to credit for all in a free, well regulated and open market should continue to be our goal. Government will regulate the market better. Schools, churches, families and lenders should, and if encouraged will, all play their part. However, 23 years on, I still believe that education and information are at the heart of a truly competitive and healthy credit market.
I thank my noble friend Lord Kennedy of Southwark for giving the House the opportunity to discuss and debate this important topic. High-cost lending is a booming business. The demand for short-term payday loans and longer-term high-interest loans is being driven by the crushing impact that the very tough economic climate is having on personal and family budgets. The fall in real incomes and the above-inflation increases in the price of essentials such as utilities and food are leaving many people short of the money they need to make ends meet, so they turn to the payday lenders.
The Bureau of Investigative Journalism recently published a report on high-cost lenders, which showed that they had enjoyed a 30% growth in turnover over the last 12 months and were achieving 30% profit margins on that turnover. Harsh economic circumstances might be the driver of demand, but the secret of the high profit is the mix of simple and instant loan availability, lax regulation, the absence of competition and eye-watering interest rates. Desperate borrowers—and it is estimated that there could be up to 5 million such customers—many with poor or no credit histories, can get instant cash, often without credit checks, documentary evidence or, as the noble Lord, Lord Kennedy, said, checks on affordability.
The lenders’ business model is to recruit borrowers and then to increase the number of loans, thereby maximising the yield per customer. So begins the awful debt spiral that traps so many payday borrowers. For the lenders, the high bad-debt experience, estimated at up to 25%, is more than compensated for by the stratospheric interest charges.
Unsurprisingly, this booming sector has caught the eye of international investors, most notably from the United States. The expansion of the payday loans industry in the US has been curtailed by the growing clampdown on high interest rates by state regulators, with some states going so far as to ban payday loans completely. Others, such as Pennsylvania, have capped interest rates on short-term loans at 30%. Similar initiatives are under way in other states.
The vanishingly light regulatory environment here in the UK is a big incentive to US investors, many of whom also take advantage of aggressive transfer pricing to ensure that, like Google and Amazon, the bulk of their profit is made in a tax haven. This combination allows investors to make spectacular tax-free or very low-tax returns at the expense not only of our most hard-pressed citizens but of our taxpayers generally. Could the Minister confirm that that is indeed the outcome of the coalition’s policies and its failure to put in place serious regulation to curb high interest loans, a measure that is commonplace in most developed countries?
Such a lucrative market would typically see high levels of competition, which would benefit borrowers with lower interest rates, but that is not the case, one reason being the complete absence of the major UK banks from this market place. That is all the more surprising, since the one thing that every high-cost borrower must have is a bank account to receive the money borrowed and to pay the interest and repay the principal by direct debit or similar arrangement. The millions of payday borrowers are all existing customers of our major banks, with known financial profiles and transaction histories. Yet the banks have failed to provide small loans to their existing creditworthy customers on terms that would almost certainly be substantially less expensive to the borrower than those currently available while being very profitable to the bank itself. To compound this failure and add insult to injury, it is reported and widely understood that the banks actually downgrade the credit rating of customers who take out payday loans.
The failure of our major banks to provide products to their existing customers is part of their wider failure to meet the demands of their customers generally. Despite the exhortations of the Government and the provision of low-cost funding for lending by the Bank of England, loans to SMEs have shrunk in each of the last three years, and loans to individuals are difficult to obtain and often prohibitively complex. Although the banks do not lend to their existing hard-pressed customers, they are happy to participate in this lucrative market by providing funds directly to the high-cost lenders. The Royal Bank of Scotland and Barclays have lent substantial sums to a range of payday lenders that are often secured on the very loans made by these lenders to the customers of the very bank providing the funds. This perverse behaviour speaks volumes about the banks’ lack of concern for the needs of their existing customers, their general lack of business acumen by failing to seize a business opportunity right on their doorstep, and their very confused attitude to corporate social responsibility.
The Chancellor has been keen to intervene in the affairs of the Royal Bank of Scotland and Lloyds to the point of becoming meddlesome. Could the Minister tell us if the Chancellor, or any other Minister, has asked either of these banks—RBS and Lloyds—to explain their failure to offer their individual customers loans at reasonable rates and thus provide competition to the rapacious payday lenders? Could he please also explain why it is acceptable for banks owned by the public to fail to lend to their creditworthy customers but acceptable for them to make loans to high-cost lenders?
I want to end on a happier note. Not all high-cost lending is actually high cost. Indeed, if you are the right borrower, the terms can be very attractive. An example of this is the Arbuthnot Banking Group, which owns high-cost lender Everyday Loans, which typically charges between 50% and 200% interest. However, Arbuthnot has made a loan facility of £5 million to the Conservative Party at the very attractive rate of 3.5%. I have no doubt that all the appropriate steps were taken by Arbuthnot to satisfy itself as to the creditworthiness of the Conservative Party. Then again, it probably helps that Arbuthnot is run by Mr Angest, a former Conservative Party treasurer and major donor to the party; so it is who you know that matters.
My Lords, I congratulate the noble Lord, Lord Kennedy, on obtaining this debate, particularly because it focuses on alternatives to payday lenders. I will not go through the routine of describing the evils of many of the high-interest lenders; that has been well done by others in this debate. However, I will take issue with the noble Baroness, Lady Wilcox, on the point that these are impulse loans for something frivolous—the noble Lord, Lord Kennedy, gave the example of a student buying beer. I think that is the exception.
We have here a group of people on modest incomes. They have some income—otherwise they are of no interest to the payday lender—but find themselves under stress and have nowhere to turn other than to the payday lender or to the illegal market. That, to me, is not choice. The issue that I want to raise and focus on is the absence of choice in this market.
I say in passing that I hope very much that the OFT and the new regulator, the FCA, will use the considerable powers that have now been given to them—many of those amendments were moved in this House—to bring the payday loan industry to heel. Indeed, I join those who call for a cap on payday lending. It may mean that we first have to make sure that there are alternatives in the market, but that is a challenge to which I think we ought to rise.
The noble Lord, Lord Kennedy, talked about credit unions. Obviously, they play a very important part in trying to provide an alternative, as do the co-operative banks and the mutuals. For all of them it is quite difficult, because they cannot put the kind of spend into sexy advertising and affectionate granny puppets that payday lenders can. However, it seems to me that, with the proper support, they can make a very big difference in this market.
I will talk about another area where I think we have been missing a trick, and I take my example from the United States. It is the concept of community development finance institutions. There are relatively few of these in the UK, but in the US they are common. Indeed, many of the states that are now capping payday lenders are able to do so because the CDFIs offer the alternative that some in this Chamber have talked about. CDFIs have a mission to provide financial products and services to people and communities underserved by traditional financial markets. They are sometimes banks, sometimes credit unions, sometimes loan funds and sometimes venture capital funds. Indeed, they account for a lot of the early start-up capital for new businesses in the US.
However, it is their commitment to distressed communities that sets them apart. For example, while a traditional credit union serves its members, a community development credit union is specifically targeted at a disadvantaged community. CDFIs are local institutions serving their local community, and members of the community usually serve on the boards. They are typically funded by outside investors. These could be social investors, who are seeking either no return or little return in financial terms but are looking for social and environment return. In the United States, they are frequently able to access capital from the Government. However, they are required, as they function, to be self-sufficient and to operate on commercial principles.
Your Lordships will be aware that we will soon know more about where the big high-street banks in the UK are actually lending their money and what types of loans they are making, be they small business loans, mortgages or unsecured loans. We will know it by bank and by postcode once a voluntary agreement, which is now in negotiation, is completed between the Treasury and the banks. We hope that the first data disclosures will be available before the year end. As noble Lords will remember, the Government promised to get this disclosure after the issue was forcefully raised in this House through proposed amendments to the Financial Services Bill. The Government promised this House that, if such a disclosure agreement could not be reached voluntarily, it would be mandated through an amendment to the banking reform Bill. However, it now looks as though that will not be necessary and that a solid and sound voluntary agreement will be in place very soon.
Those data should tell us whether the high-street banks are neglecting communities and, if so, which communities they are and where they are. If we identify vacuums, it strikes me that they will be the perfect space into which to introduce CDFIs. In the US, major banks that fail to lend in areas where they take deposits can, as it were, amend the situation by investing in a CDFI to do the job which they, the high-street banks, are reluctant or not equipped to do. That seems to be very right, as at least a part of banking is surely a utility service, and that can be recognised in the terms of the banking licence.
I anticipate that local authorities, charities and social enterprises could move into this CDFI space, supported by investment and technical know-how from the major banks. As I said before, a growing breed of investors—we see them becoming increasingly active in the City of London—are seeking not just economic returns but social and environmental returns for their money. This is a way for them to begin to participate in this kind of benefit to disadvantaged communities. I am very pleased that some of this is recognised in the report from the Parliamentary Commission on Banking Standards.
The CDFI world in the United States has assets under management exceeding $30 billion. It is a massive sector, stretched across the country. In the UK, we have just a scattering of institutions. However, they lent some £200 million in 2012, so they certainly have a foot on the ground, and they had some 33,000 customers. Many of those customers were social ventures but they were also micro-businesses and individuals. So far, they have been helped to the tune of some £60 million by the regional growth fund. The high-street banks have agreed in principle to refer to the CDFIs small businesses whose loan applications they have rejected, although I do not think that the referral system is working terribly well at the moment. However, there is the beginning of a relationship and a network between the existing banks, the major banks and the existing CDFIs, and we can start to build on that. It is crucial that we find ways to bring disadvantaged communities into the economic mainstream, as that will enable people to empower themselves in their lives and contribute to the economy.
The period of banking reform that we are going through at the moment comes together with new regulators, who have a new attitude. Both the FCA and the PRA have taken up the cause of diversity and competition in a way unheard of in the past. All these things have created a window of opportunity. However, if we do not seize that window and try to make sure that over the coming years we create the necessary network to provide banking services and credit to all the communities in our country, we will lose it, because there are plenty of naysayers who are happy to write off both disadvantaged individuals and disadvantaged communities.
I am therefore arguing for a concentrated effort to accelerate the growth of CDFIs, and credit unions are a part of that. I echo the call of the Parliamentary Commission on Banking Standards to the Government to look at tax incentives and other mechanisms to boost investment in these bodies. If we find from data disclosure that the high-street banks are essentially neglecting certain communities, it seems to me that the moral case is made for those banks to step in voluntarily, support CDFIs and make sure that no one falls through the cracks. If they will not do it voluntarily, let us do it by making sure that it is done under the terms of their banking licence.
My Lords, I, too, am grateful to the noble Lord, Lord Kennedy, for instigating this debate on alternatives to payday lending. It is something that he has studied for many years, and he is an acknowledged expert in the field.
The payday lending industry has grown at a vast speed, as we all know, and alternative sources of credit are few and far between, particularly for those who have had their applications for credit turned down by a high-street bank. It is very easy to see, as we have heard already—the noble Baroness, Lady Wilcox, spoke to this very clearly and powerfully, as ever—that it is going to take a long time to provide alternatives. However, the fact that we cannot do something now does not mean that we should not start doing it now or that it should never be done. The noble Baroness, Lady Kramer, spoke very powerfully on that.
Payday lenders lead to people being assured, through impressively slick marketing campaigns and targeted advertisements, that the process of taking out a loan is quick, simple and safe. However, once the loan has been taken out, it is difficult to get out of the cycle. With the rates offered, simply paying off the interest becomes a struggle.
The noble Lord, Lord Kennedy, spoke already of the problem of rollovers. I do not want to repeat that. I will, however, pick up the comment about interest rate caps. I very rarely dare to disagree with the noble Baroness, Lady Wilcox, but on this occasion I will take my life in my hands. A cap does not mean 25% or 30%. It is not any figure. The Financial Services Act provides for a study of the consequences of a cap to be looked at and then for the cap to be brought in at an appropriate level. Caps are needed at a sensible level that does not choke off supply and send people into the hands of loan sharks. I have seen the effect of that when working in Toxteth. Caps are there to prevent usurious lending. The noble Baroness said that caps should not be introduced at any price. The trouble is that the interest rates are at any price, typically more than 2,500% on an annual basis. We need to look at reasonable limits that cut out legal usury from our high streets.
This is not a problem faced only by the very poor. Some 5 million people in this country use payday loans and, apparently, one in four Londoners. The situation is becoming too big to ignore. I hope that the Minister will let us know whether the Government will consider seriously the exercise of its powers in this area under the Financial Services Act.
However, simply dealing with that does not deal with the long-term question. It is quite clear when I look at what is happening on the high street and in our local communities, particularly in the most deprived areas, that—as the noble Lord, Lord Kennedy, explained—alternatives are very few and far between. My own group, the church, can play a part in the development of credit unions up and down the country. There is a role to be played by local institutions. We have, so to speak, branches in every community—16,000 branches in 9,000 communities, even more than the banks. If we wish to see the development of alternatives to payday lenders in all communities, we must use all the institutions in all communities—churches, post offices, and even, if I dare say so in the presence of the Government, the Co-op. The Post Office is an institution that is playing an increasingly important role. That is clearly something warmly to be encouraged.
The church is in a unique position up and down the country. For the credit union movement to be successful and sustainable, and other forms of local finance to develop, we need a bottom-up movement of local organisations working to change the sources of supply. It will take many years—10 to 15 years—but it must start now. The new institutions must develop flexibility in order to demonstrate their ability to meet the new needs. As the noble Baroness, Lady Wilcox, pointed out very clearly, they are not the needs that were present when credit unions first began. People want quick access to money. They want to be able to get it now.
We can use local institutions that have places of work and skills that can be brought in through volunteers. Church members—not just those in the Church of England—give more than 23 million hours of volunteer time every month outside the regular work of the church. Volunteering comes naturally to us. Unlike some other things, it is something that we are very good at. Many who sit on the pews each Sunday have expert knowledge in finance, human resources, communications, marketing, debt counselling and all sorts of areas. We need a regulatory environment that makes it possible to have flexibility of provision.
If we are to have good regulation—huge improvement was made through the Financial Services Act, and we were grateful to the Government for the many amendments they introduced—equip alternative sources of finance with outlets that can be used in areas that need them and give them the capacity to exercise their location effectively, we also need to communicate the sources of alternative finance widely in the United Kingdom. Two-thirds of the population of Ireland are members of a credit union, but take-up and use of credit unions in the UK is still woefully low.
A mixed economy of geographically based credit unions and professional ones, and other forms of finance such as CDFIs, as the noble Baroness, Lady Kramer, said, will give the best chance of developing good, alternative sources of finance that will take away the need for caps because essentially they will compete the high-rate lenders out of existence. There is a very long way to go.
Recently in my diocese, I came across a painter-decorator who was made unemployed two years ago. For two years he sought a loan to start his own business. He was looking for £200. At the end of two years, through a third-sector organisation in the area, he was able to borrow £200. When I last heard, his book of orders was full for nine months and he paid off the loan in about three weeks. A finance system that in an area of poverty cannot provide £200 is dysfunctional and we need to pay attention to that. We need good, viable alternatives.
I warmly welcome the call by the noble Lord, Lord Kennedy, for a summit to deal with some of these areas. Will the Minister review the recommendations on basic bank accounts, which are also hidden in the depths of the Parliamentary Commission on Banking Standards—they are well hidden—in order to influence the banks, which indirectly he largely owns, to make better provision in the mean time before alternative forms of finance develop?
I am very grateful that we have had the opportunity to think creatively about alternatives. My hope is that a thriving alternative credit movement will one day mean that payday lenders simply are not necessary.
My Lords, I echo the sentiments of gratitude to my noble friend Lord Kennedy for initiating this debate and for his work over many years. He knows the realities and speaks plainly about them. It is also a tremendous honour to follow the most reverend Primate. I believe that the last archbishop to take a very strong stance against usury was Archbishop Laud and I say to the noble Baroness, Lady Wilcox, that we know what happened to him. I consider it a tremendous act of courage to stand in favour of the cap. It is an interesting story: the church resisted the increasing demands, but in the end, in the time of the Long Parliament, it was decided that politics should have no role in the setting of interest rates. It is wonderful that the voice of the church, Catholic and reformed, is heard once more on this issue.
I declare an interest: I worked for many years for London Citizens and the Industrial Areas Foundation. The noble Baroness, Lady Kramer, spoke excellently about the community development funds. An aspect that may be of interest to the Government is that the seed money was provided by President Nixon. It is not the case that Conservative Governments are hostile to the conditions of the urban poor. The interesting thing was that the initial seed money was £9 million. The assets of the urban development funds, looked at as a mixture of venture capital, urban development and loans, are now well over £1 billion. I have worked with them and looked closely at that in terms of Baltimore, and the effects that this has had there.
That is very inspiring, but we have nothing like it. We have no such framework; no initiatives have been taken. This speaks to the heart of the issue. I here put my head on the block in relation once more to what the noble Baroness, Lady Wilcox, said. My noble friend Lord Hollick spoke about Barclays: it made a loan of £120 million to the Money Shop six weeks before Christmas. I believe that the rate was 7%. The rate that was lent at to people was 4,000%, and now Barclays discriminates against its own customers and will not give them loans. This is completely out of order. The conditions of the working poor and the debt in which that they have to live are, as they say on the 73 bus where I come from, bang out of order. People cannot find access to money. They do not earn enough; they cannot find a decent, meaningful and honest way out of the poverty wages that they receive. Yet there are no new institutions in the banking sector that address this issue.
I am involved in a conversation with Salford about establishing a bank of Salford, working on the credit unions. An interesting addition to the suggestions made, which the Government should look into, is that if you put the payroll through the new institutions of local government or city governance, it transforms the financial status of those institutions, and suddenly they are able to lend. That is one important issue. We need to notice that there has been no innovation in institutions relating to the banking system.
We must go back to 2008 and assert sadly that none of us is innocent. Between 1997 and 2007, of the £1.6 trillion invested in the British economy, 81% was in mortgages and financial products. Family and personal debt exploded. People cannot find a way out of that debt. It is not outlandish to say, as we did in 2008, that 5% of the bailout should be used to establish regional banks, as part of this story. Why is quantitative easing going through the same failed banking institutions that are refusing to lend to local businesses and the working poor? It is important to stress that the overwhelming loans owed to these payday lenders are not from those on benefits. They are from working people who do not earn enough and cannot discharge their fundamental responsibilities to their loved ones and their absolute obligations to pay their taxes and rates. Overwhelmingly, the money goes on food.
I conclude by saying another thank you. This is the most fundamental issue that we face. Debt is exploding. We have not moved to value—we still have debt. We need to look at community development funds and the decentralised way in which they work, and the way in which they are controlled by local people. I worked with the Industrial Areas Foundation. To ease the concerns of the noble Baroness, Lady Wilcox, let me say that when the interest rate cap was set in Maryland, because of access to the alternative finance system there is no evidence that it led unavoidably to loan sharks. That is not the case. There were alternative financial institutions, and many were set up by a partnership between churches and local unions.
There are many creative ways in which we can deal not only with the issue of the working poor but by which we can reactivate the civic institutions to a common purpose, which is value. We need to move absolutely from debt to value in the economic system. We must stop subsidising, bankrolling and giving all the perverse welfare incentives that we had to the banking institutions that are not fulfilling their role. We must create new institutions that have local people’s ownership and control, people who serve their own interests. This debate is a wonderful opportunity to investigate the genuine opportunities to bring some credit to the starving people of our country.
My Lords, I, too, thank my noble friend Lord Kennedy of Southwark for securing this important debate. Both he and I share a passion for this subject and both of us are determined not to let the issue die. We both see the misery and hopelessness that is caused by payday lending and other forms of loan sharking. We see it on our high streets, on-line and advertised on our London buses.
I would like to recreate the mood that existed in your Lordships’ House last November. I had introduced an amendment to the Financial Services Bill which we had discussed in Committee. On Report, I was fortunate enough to secure as co-sponsors of my amendment the noble Baronesses, Lady Howe of Idlicote and Lady Grey-Thompson. In addition, the then Bishop of Durham, now the most reverend Primate the Archbishop of Canterbury, also sponsored the amendment. By any measure, we had strong support.
Imagine my surprise the day before the debate, just as I was about to enter the Tube at Westminster station, when I received a call from the Treasury Bill team. As noble Lords will readily appreciate, this does not happen too often, especially to mere mortals. The gentleman in question told me that the Government wanted me to withdraw the amendment the next day. I was more than a little surprised. I told him that we were going to defeat the Government, so why should I withdraw. “Because”, he told me, “we know you’re going to win and because the Government have totally reversed their position and now want to support you”. “But”, he went on, “we want to improve the wording and make it much more effective”. I staggered into the station hardly believing what I had heard.
The next day the Government were true to their word. They announced that at Third Reading they would introduce a tougher, more comprehensive amendment. So it was with great joy and a sense that right had prevailed that I withdrew the amendment. The revised amendment was introduced at Third Reading, in the name of the noble Lord, Lord Sassoon, for the Government, and I added my name to it. It went through on the nod, was confirmed in the other place and went on to the statute book.
To capture the mood at that time I would like to recount the words of the noble Lord, Lord Sassoon, who was the Treasury Minister at the Dispatch Box. He said:
“The Government are, like all of us, concerned about the appalling behaviour of some firms in this sector and the harm that vulnerable consumers suffer”.
“Our objectives here are the same: they are to ensure that consumers of financial services have access to credit when they need it and at a price they can afford; and to ensure that the regulator is under a clear obligation, and fully empowered, to ensure that consumers are protected”.—[Official Report, 28/11/12; col. 215-16.]
I must emphasise the noble Lord’s words—“at a price they can afford”.
It was a government U-turn, to be sure, and it was of monumental importance; but to their credit, it was one that the Government made with good grace. Very soon, however, the mood music changed, and from statements coming from various government Ministers it became obvious to many of us that the Government’s heart had gone out of the matter. They were retracting their position.
Following the OFT’s report on payday lending companies, I tabled an Oral Question in March asking whether the Government were now reluctant to place caps on interest rates on these loans. The noble Lord, Lord Popat, who is in his place, replied:
“A cap will reduce access to credit and will mean fewer lenders”.—[Official Report, 12/3/13; col. 133.]
The noble Lord carefully avoided the fact that interest rate caps operate successfully in Japan, France, Italy, Germany, Slovakia and in many states in the United States. I do not know how this succession of events appears to noble Lords today but to me they sound like another U-turn. In four months the Government have performed a spectacular double U-turn—such athleticism and so devastating.
Of course, the amendment is now law and the FCA’s powers will become effective next April, but authorities are sensitive to what the Government say, and I am sure that they will see that heat has been taken out of the matter—that the Government no longer seem to care. I therefore want to ask the Minister three very simple questions to start with. Do the Government accept that it is reasonable for London buses to be driving around advertising loans that bear an interest rate of 4,200%? Will the Government state unequivocally that usurious interest rates are morally wrong and should be made illegal? Will the Government state emphatically that they will support the FCA in word and deed in its efforts to curb all the abuses of payday lending?
I would like to add just one more point before I turn to credit unions. In previous years loan sharks were very obvious—muscular men, probably with tattoos on their forearms and oozing menace. Their companion of choice? A pit bull terrier. Their message was crystal clear: if you don’t repay on time, you know what will happen. Today payday lending has become 21st century cool—iPhone apps, slick websites, high street offices with smiley people and flowers on the desks. They can disguise it any way they like; the fact is that they are all loan sharks. Some are legal, some are not, but they all peddle the same usury.
Fortunately, some organisations are choosing to distance themselves from these lenders. I am pleased to say that Bolton Wanderers Football Club no longer wants to be associated with QuickQuid. Unfortunately others have not been so responsible. It is a shame that great clubs like Newcastle United and Blackpool have chosen to be sponsored by Wonga, although individual players—to their credit—have bravely refused to wear its logo. Can it be that individual ethical institutions, such as the Wellcome Trust, are listed as one of Wonga’s shareholders? Following my noble friend Lord Hollick’s statement about Mr Angest, I believe that Mr Adrian Beecroft, also a major shareholder in Wonga, is similarly a major donor to the Conservative Party. I will say no more.
Let us move on to the alternatives. The noble Lord, Lord Kennedy, has been a champion of the credit union movement and has spoken eloquently on this subject a number of times. The combination of the excesses of the recession and the reduction in government benefits has made life doubly painful for many people in our society. More than ever it is necessary to have viable alternatives to legalised loan sharking and payday lending.
In April I saw a vivid example of this. I joined up with the Movement for Change and the Fair Credit Commission and I went to Kilburn. There I walked along the high road along with local residents. Today the street has at least 13 payday lending shops on it. It mirrors the situation in many other parts of the country. Local residents told me about members of their community running up unpayable debts. In one instance, a woman with disabled children told us how she now owed around £3,000. In another, a man with quite obvious serious learning difficulties told us how his unpaid bill with Vodafone had been sent to debt collectors when he was unable to pay. There the payday pattern of interest swung into effect—the amount outstanding rocketed as massive interest rates came into play. There are thousands upon thousands of heart-rending stories like this around the country. Some talk of suicide.
One of the more positive stories was that of a man who, like his father in Dublin, had set up a credit union in Kilburn after arriving there as a teenager. As noble Lords will be aware, the credit union movement in Ireland is particularly strong, with almost half the population using their services. It is a vivid example of their potential to expand here. This is especially needed as historically what credit unions provide reaches beyond just savings and credit to financial advice, encouraging a culture of saving. This week Glasgow Council announced plans to open a credit union account for all children starting secondary school. It is a particularly interesting step in that direction.
This kind of financial advice contrasts sharply with the growing evidence about how payday loan companies are operating. Noble Lords will also be aware of the ministerial statement last week that credit unions are now able to charge a maximum interest rate of 3% a month, a rate of interest that strikes me as just about spot on. It bears a stark comparison with the 38% charged by Wonga and others where there is no legal maximum. I hope that credit unions will be able to offer their services to more people and to run on a more secure financial footing. I also hope that they will be able to take advantage of new technology to improve their provision of low-cost credit to the people who need it. This was recommended in an ABCUL report on credit unions, and by Gillian Guy, of Citizens Advice, who wrote an article in the Financial Times this April which encouraged different providers to use modern technology to deliver financial support to those who need it. This leaves me with a thought on how to go forward—why does your Lordships’ House not set up a committee to investigate this industry?
I would like to ask the Minister some further questions. Will he confirm that the Government will continue to support credit unions, and in so doing carry on the good work of the previous Government? Will the Government reiterate their previous support for capping interest rates, confirm their support for the banning of advertising for these loans, and, finally, give their support to planning rules that would stop our high streets being completely overrun by payday lending companies?
My Lords, I welcome the opportunity to set out the Government’s position on payday lending and to explain how we are tackling some well recognised problems and promoting alternatives for consumers. I am grateful to the noble Lord, Lord Kennedy, for tabling this debate, and indeed for his work in this whole area, and to noble Lords who have raised important points today.
In line with the coalition principles of freedom, fairness and responsibility, the Government believe that people should be free to borrow. However, we also want more people to take responsible decisions about their finances. The Government recognise that not all people who use high-cost credit can get credit elsewhere. The Bristol University report on high-cost credit found that just over three-quarters of payday customers had no access to alternative credit. We therefore agree that finding different solutions to short-term, high-cost finance is important.
Payday loans are a relatively new phenomenon. They should be used only for an emergency short-term fix and never for longer-term debt problems. For some, payday loans can be a way of managing a short-term cash flow problem—for example, a sole trader who needs to buy supplies for the next job before being paid for a previous job, or someone who needs to pay their MoT simply to get their car back on the road so that they can commute to work or perhaps for the painting and decorating fraternity in the most reverend Primate’s diocese.
The spiralling cost of credit is not the main crux of the problem. Problems arise when people take out this kind of short-term, high-cost loan when it is not suitable for them and they cannot afford to repay. As the strength of the evidence shows, part of the issue is, first, that lenders are not always conducting adequate assessments of potential borrowers’ ability to afford the loan. This was a key finding of the OFT’s payday compliance review. Secondly, as the Citizens Advice payday consumer survey found, there is poor compliance with the voluntary codes implemented by lenders last November and 82% of loans did not meet the commitment to,
“treat customers sympathetically if in financial difficulty”.
Thirdly, the Bristol report found that 60% or more of payday customers felt that it was too easy to borrow in this way and that more than four in 10 customers showed signs of financial distress. Here I echo the opening comments of the noble Lord, Lord Kennedy, that these reports show that the payday market is not functioning in the interests of consumers. The Government are therefore deeply concerned about the scale of consumer detriment identified, the speed and ease with which loans can be accessed, the frequency with which loans are rolled over, the grave financial and social problems arising from defaults, and the calling in of such repayments. I hope this goes some way to reassuring the noble Lord, Lord Mitchell, that the Government are taking these matters extremely seriously.
Since the last significant debate on this issue in this House, we have begun to tackle these problems; my noble friend Lady Wilcox touched on this. In March, the Government and regulators announced a joint action plan to tackle the key problems, taking tough enforcement action against unscrupulous lenders and ensuring a strong robust regulatory framework for the future. Also since March, the OFT has begun clamping down on irresponsible lending practices across the payday industry as an enforcement priority. First, they have given no less 50 firms 12 weeks each to change their business practices or risk legal requirements or loss of their licence. Two firms have already surrendered their licences. Secondly, the OFT has revoked the licences of three payday lending firms and has three further investigations open. Thirdly, the OFT has consulted on referring the sector to the Competition Commission for market investigation and expect to announce a decision soon.
A further point is that the new regulator from next April—the Financial Conduct Authority—will have tough new powers to tackle early signs of consumer detriment and is looking at additional regulation on payday lending. The FCA will have powers to make binding rules, such as banning products or specific product features. It will have tougher sanctions, including imposing unlimited fines on firms and ensuring that customers can recover their loss. We will also have a more stringent bar for market entry.
The essence of this debate is the alternatives to payday lending. The Government have committed to further investment of up to £38 million to March 2015 to support and expand the credit union sector. Credit unions are community focused, and to this extent touch on the big society ethos. They are also non-profit making. Members share a common bond and often save before borrowing. The investment will enable them to provide financial services, including affordable credit, for up to 1 million additional consumers on lower incomes. Our ambition is to save low-income consumers up to £1 billion in total in loan interest repayments by March 2019. I am most grateful to the most reverend Primate for his generous support for community-based solutions, including the use of volunteers both in the church and outside.
As my noble friend Lady Wilcox so eloquently put it, an underlying issue is that we still have a culture of people wanting and expecting to be able to buy items on credit when they cannot afford them. Better financial education, raising awareness and signposting to sources of advice are key to helping people understand the alternatives to payday loans. That is why we set up the Money Advice Service to promote financial capability and to provide the tools that customers need to make informed decisions about their money. In 2013-14, the MAS is retaining its spending on debt advice provision at £27 million to maintain its target of helping around 150,000 people. In addition, MAS research found that industry invests around £25 million annually in 36 programmes, most targeted at the under-18s. The MAS is also actively engaged with the Department for Education in promoting financial education—a most important point.
The introduction of a single monthly payment of universal credit should also support the Government’s aim of encouraging people to live within their means and to take personal financial responsibility. We are working closely with the MAS and consumer advice groups to ensure that universal credit claimants are able to access budgeting support services.
Wider government work to reform the consumer landscape and to strengthen consumer rights and protections is also important. The consumer reforms that we have been bringing forward since 2010 will help markets work better, improve consumer protection and give greater clarity about where consumers should turn for help and advice.
A large number of questions were raised by noble Lords, and I will attempt to answer them all. The noble Lord, Lord Kennedy, raised an important point about concerns about payday loan advertising. The Government are also particularly concerned about the advertising of payday loans. People should not be lured into taking out a payday loan when it is not right for them. We have also commissioned additional research to look at the effect of payday lending advertisements on consumers’ borrowing decisions. This will report by early autumn. From April 2014, the FCA’s strong new powers will enable it to restrict the form and content of advertising. My department, BIS, is commissioning research to inform the FCA’s thinking on that.
The noble Lord, Lord Kennedy, asked why banks cannot provide low-limit loans, backed by government support. I agree and want to see banks provide alternatives to payday loans—a point that was made by other noble Lords. However, banks have said that there is no profit in short-term loans—a point that we might all be aware of. The risk premium is high and the costs associated with lending to high-risk customers and giving them small-value loans are such that it is not profitable, so the banks say. I agree with the noble Lord, Lord Hollick, that banks shy away from customers who have taken out payday loans. I had that very conversation with a senior retail executive a couple of days ago as part of my research.
The noble Lord, Lord Kennedy, asked what the Government are doing to address the lack of ATMs in localities. Again, that is a very fair point and the Government share the noble Lord’s concerns about restricted access to ATMs. Although such decisions are operational ones for banks, so the Government do not seek to intervene, we will continue to monitor the situation closely.
My noble friend Lady Kramer raised some very interesting points, focused particularly on the opportunity for us in this country to introduce community development finance institutions, a model that I understand comes from the United States. The co-operatives consolidation Bill was announced by the Prime Minister in January 2012. Work on drafting the legislation has begun and it will be introduced in December. Although it will not contain any new legislation, it will put all legislation relating to industrial and provident societies, or co-operatives, in one place, making it easier for an IPS to be set up. We are also looking at introducing a package of measures to strengthen the co-operative sector, including increasing the withdrawable share capital limit and introducing insolvency procedures for co-operatives and credit unions. This was announced in the Budget 2013.
My noble friend Lady Wilcox, in a speech largely devoted to the issue, expressed concern at the prospect of a cap on the total cost of credit. She said that it would push the poorest and most vulnerable into having no access to credit at all. I thank my noble friend for giving an interesting historical perspective on the credit market and agree with her that a cap is not the solution for the payday market at this time. The Bristol report indicated a range of unintended consequences and risks which would harm customers rather than help them, such as a reduction of access to credit, lending charges being added outside the cap and, generally, less sympathy for those in financial difficulty. However, the Government have ensured that the FCA will have the power to cap in the future, if it is needed to protect consumers at that point. The FCA will start analysis on whether to use the new power from April 2014.
My noble friend Lady Kramer asked about the government commitment to disclose banking data on a postcode-by-postcode basis. It looks as if this will be delivered on a voluntary basis. The noble Baroness referred to the voluntary agreement that the Treasury is seeking to negotiate with lenders on disclosure of postcode-level data. I, too, am confident that such a deal will be struck and I commend the noble Baroness on her sterling work in this particular area.
The most reverend Primate the Archbishop of Canterbury raised the issue of the need to cut out “legal usury” from our high streets in a general comment at the beginning of his speech. It is a most interesting comment but I do not believe that it is the Government’s role to stop or ban payday loans. As I mentioned earlier, such loans serve a purpose. They can provide emergency cash for those who can afford to repay it. In line with coalition values, we want people to remain free to make their own choices, as my noble friend Lady Wilcox said, about whether and how to borrow, if it is right for them. However, in contrast, I would say that there is a duty on government to control, regulate and curb irresponsible lending, to empower consumers to make the right choices and to protect vulnerable consumers where that is needed.
The noble Lord, Lord Hollick, raised points about including international investors and about payday lenders making profits off the most vulnerable consumers. These were interesting points. It is important to remember that payday lending is a relatively new phenomenon, as I said earlier. The market has doubled in size in just four years but is still relatively small. To put it into perspective, it is worth between £2 billion and £2.2 billion, which is less than 5% of the total credit market.
However, we must bear in mind that those affected are the most vulnerable, as I said earlier. This has meant that there is very little evidence of the problems and causes, but we now have a better evidence base, including the Bristol report and the OFT compliance report. Consumer groups have also been adding to the evidence base. That is why we announced strong action plans in March to tackle the serious problems that were highlighted very broadly in today’s debate.
My noble friend Lady Kramer mentioned the lack of alternatives. That is not a reason not to cap. It just means that we also have to work on this as well—a point she spoke passionately about. I understand the attractions on the face of it, but, as I mentioned earlier and I stress again, we do not believe a cap is the solution at the moment. The Bristol report indicated a range of unintended consequences and risks, harming the consumers we want to help.
The noble Lord, Lord Kennedy, said the figure of £35 million—I say it is £38 million—funding for credit union expansion was a “drop in the ocean”. I welcome the noble Lord’s support for recent government initiatives such as the legislative reform order, increasing the interest cap and the credit union expansion project. The project aims to help 1 million people on low incomes, to enable credit unions to reduce costs and to reduce the need for further government funding by making them more sustainable.
The noble Lord, Lord Kennedy, and the most reverend Primate asked whether the Government would host a summit on payday lending. The strong action plan announced in March by the Government and regulators, which we are taking forward, also includes discussions to see whether we can work in concert with industry and consumer groups to look towards a summit.
I have run out of time. I regret that I do not have time to answer the few further questions that were raised, but I will most certainly write to all noble Lords. In conclusion, our assessment of the alternatives to payday lending is that it is about not just improving access to more affordable credit but about making a fundamental change in our culture, so that consumers can take personal financial responsibility, borrow responsibly and live within their means. It is also about ensuring adequate support for the vulnerable who need it. We believe that the Government’s initiatives will help address these problems.
House adjourned at 6.47 pm.