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Grand Committee

Volume 747: debated on Monday 22 July 2013

Grand Committee

Monday, 22 July 2013.

Good afternoon, ladies and gentlemen. I remind noble Lords that if there is a Division in the House, the Committee will adjourn for 10 minutes from the sound of the Division Bell.

Working Time (Amendment) Regulations 2013

Considered in Grand Committee

Moved By

That the Grand Committee do report to the House that it has considered the Working Time (Amendment) Regulations 2013.

Relevant document: 6th Report from the Joint Committee on Statutory Instruments.

My Lords, the Government are committed to providing an environment for all sectors of the economy in which private enterprise and businesses can flourish. A key objective is to simplify employment legislation and remove unnecessary burdens from businesses. As part of this, the Government have taken forward legislation through the Enterprise and Regulatory Reform Act 2013 to end the separate agricultural minimum wage regime in England and Wales and to bring employment in agriculture into line with other sectors of the economy.

The amendments which the Government are proposing to the Working Time Regulations 1998 are a necessary consequence of the abolition of the Agricultural Wages Board for England and Wales on 25 June 2013 and the end of the separate agricultural minimum wage regime after 30 September 2013. Agricultural workers are already protected by the main provisions of the Working Time Regulations, including those relating to the maximum 48 hour week. However, some minor technical amendments are needed to align the position for agricultural workers in England and Wales fully under the regulations with that of workers in other sectors of the economy. If approved, these amendments will come into force on 1 October 2013, when the current special regulatory framework for agricultural minimum wages will end.

The proposed amendments will remove some very specific exemptions in the 1998 regulations which apply only to workers employed in agriculture. These are in relation to the date of the commencement of the leave year and the arrangements for giving notice to take leave. Under the Working Time Regulations, the leave year for a worker begins on the date provided for in a relevant agreement. Where there is no provision in a relevant agreement, the date of commencement of the leave year for a new employee is the date or anniversary of the date of commencement of employment. For agricultural workers in England and Wales, the commencement of the leave year is governed by the provisions of the Agricultural Wages (England and Wales) Order 2012, which will remain in force until 1 October. The order requires that the leave year for all agricultural workers begins on 1 October. There are also specific arrangements in the Working Time Regulations for taking leave which require workers to give their employer advance notice of the intention to take leave and for the employer to give similar notice if either they require the worker to take leave or do not agree to a request for leave from the worker. These arrangements provide transparency and certainty for workers and employers, but do not currently apply to agricultural workers.

If approved, these amendments mean that where agricultural workers in England and Wales come into the industry and enter into employment contracts after 30 September, the arrangements in respect of commencement of the leave year and for leave-taking will be brought in line with the arrangements for other workers under the 1998 regulations. For agricultural workers already employed before 1 October, their existing arrangements will remain in place until the end of their current employment. This will ensure that there is no risk of loss of annual leave entitlement for agricultural workers during a period of employment. Any agricultural worker who is employed between now and 1 October must still be treated in accordance with the full terms and conditions set out in the agricultural wages order 2012. A worker in this position will similarly retain the arrangements for commencement of the leave year and leave-taking as provided for under the order until the end of their current employment.

If these amendments to the Working Time Regulations 1998 are not approved, once the agricultural wages order 2012 ceases to be in force after 30 September this year, there would be no default position for commencement of the leave year, nor arrangements for giving notice to take leave for new agricultural workers coming into the industry after that date. This could cause uncertainty and confusion for both agricultural workers and their employers.

It may be helpful here to say something more generally about the proposed application of the Working Time Regulations to agricultural workers after 30 September 2013. From 1 October, all new workers coming into the industry in England and Wales will be protected by the National Minimum Wage Act and the Working Time Regulations, as are other workers in different sectors of the economy. This means that agricultural workers will be entitled to at least the minimum requirements for annual leave entitlement and length of rest breaks as provided for by the 1998 regulations, although we would expect that many employers will agree terms which are more favourable to their workers than the minima set in the legislation.

Currently, under the terms of the agricultural wages order 2012, agricultural workers have enhanced entitlements for annual leave and rest breaks. The Government have made very clear during debates in Parliament on the amendment to the Enterprise and Regulatory Reform Act to abolish the agricultural wages board that agricultural workers will retain any existing contractual rights, including relating to leave and rest breaks. This has been enshrined in the relevant secondary legislation abolishing the board and the agricultural minimum wage regime.

Therefore, let me reassure noble Lords that the amendments we are now proposing to the Working Time Regulations will not have any impact on these existing contractual rights. Workers with pre-existing contracts at 1 October 2013 will retain the right to the annual leave entitlement and length of rest break determined in their contract of employment, unless either they agree with their employer to vary their contract or the contract comes to an end. These amendments are a necessary tidying-up exercise as the result of the abolition of the agricultural wages board and the agricultural minimum wage regime. Without them, for agricultural workers who take up new employment on or after 1 October 2013, there would be legal uncertainty and no clear provision as to the arrangements for the commencement of their leave year and leave-taking. I hope that your Lordships will accept these regulations.

My Lords, I should have said at the beginning of the Committee that, in view of the extreme heat, if anybody wishes to remove their jacket they are welcome to do so.

My Lords, the noble Lord, Lord De Mauley, might be pleased to hear that I will not remove my jacket.

I have vehemently opposed the whole principle in relation to the agricultural wages board. I am not in essence opposing the provision today because, as the noble Lord said, it is a logical tidying-up measure. However, serious questions arise about its timing and the way in which it has been introduced. He will recall that during the passage of the Enterprise and Regulatory Reform Act there were arguments about the impact assessment produced by the Government at that stage, which Ministers in effect discounted and put to one side. To some extent the Minister has repeated that today. That impact assessment produced for Defra showed a total detriment to agricultural workers of about £250 million over 10 years and a consequential benefit to farmers from that saving in their wages bill. I argued at the time that that was a notional benefit to farmers since, in effect, most of it would end up in the pockets of the supermarkets. Nevertheless, that was the Government’s argument at the time. During the course of deliberations, they disavowed that whole impact assessment.

The noble Lord has repeated today that many employers will improve the terms and conditions of agricultural workers. That, however, is totally contrary to the best expert advice available to the ministry at the time that the amendment to the Enterprise and Regulatory Reform Act was put through. In relation to limits on hours, I suspect there is not a big detriment. There may even be a benefit. However, we do not have another impact assessment. We do not have any indication of there being any analysis by the department as to which way that would work.

Obviously, the Government’s logic is to bring everything in line with general minimum terms and conditions legislation, whether in terms of the minimum wage Act or the working time directive and the legislation stemming from that. I think that that is logical. However, it is perhaps also interesting that Regulation 3 of this very short instrument enshrines the Government’s view that the conditions of the existing workforce, or those who are taken on before 1 October, will not be changed by this enactment. That is, of course, legally correct. However, the current terms and conditions will remain in place only until they are altered, until the employer gives notice of the end of their terms and conditions.

The totality of the Government’s approach here is to change the balance of power between the employee in the agricultural sector and the farmer or other employer. It is hardly worth the paper that it is written on to say that existing terms and conditions will continue to apply to those who are already in the workforce. It may take a few months or a few years for that to change. One of the reasons that the impact assessment was ultimately rejected by Ministers on the Floor of the House was that they recognised there would be a significant disbenefit to workers in the industry: not only new workers but existing workers would be faced with the likelihood of their terms and conditions being changed once the agricultural wages board disappears.

I think the Minister is probably right that this is relatively straightforward and unlikely to cause huge detriment. It is nevertheless part of the overall principle that we have opposed from these Benches. It is part of the attitude towards wages within the agricultural sector that this is being done without any meaningful underpinning even of the terms and conditions of people who are already in the industry.

Having said that, my main concern about the timing of this relates to the way in which it was written. It continues to provide for Scotland to be excluded from this measure because Scotland has always had its own agricultural wages board and still does. That means that it applies in England and Wales. Only last week, however, the Welsh Assembly passed legislation to establish a statutory body within Wales which would have the possibility of retaining the statutory force both of the substance and of the enforcement of the agricultural wages board. There would, therefore, be a new agricultural wages board for Wales.

Surely it would be more sensible to wait to introduce any consequential statutory instruments until it was clear how they would in theory apply to Wales—until it is clear how that new Welsh structure will evolve. The original proposition from Wales was that the legislation would not apply to Wales. They were, therefore, broadly content that the previous way in which the AWB had applied to the Welsh farming workforce would continue. However, we are now chipping away at that for workers in Wales as far as working time is concerned. That shows a serious disrespect for devolution, for the position of the Welsh Assembly and for the attitude that has been taken by the Welsh farming industry and the workers within it.

The timing—less than a week after Wales passed a clear indication that it did not want the changes to apply there—is, to say the least, unfortunate. I hope that the Minister will give us some guarantee that he has consulted with his Welsh colleagues and that this will not apply immediately to Wales, if it is still in the process of establishing its own statutory board as of 1 October.

My Lords, as we have heard from my noble friend, we are returning to what is, for us on this side of the Committee, the vexed question of the abolition of the agricultural wages board, which we have consistently opposed. In opening, the Minister implied that the agricultural wages board was all about the minimum wage for farm workers. It is worth reminding the Committee at the outset, by way of clarification, that it is about so much more than just the minimum wage. This is doing away with a whole wage structure, training, regulations and measures in respect of accommodation and farm dogs, and all sorts of other things.

My noble friend Lord Whitty talked about the timing. I will return to the issue of Wales in a moment, but this also follows yesterday’s Tolpuddle festival—an occasion on which, in beautiful sunny Dorset, we remember the Tolpuddle Martyrs. In 1834, George Loveless, James Loveless, James Hammett, James Brine, Thomas Standfield and Thomas’s son John were all charged with having taken an illegal oath and then transported to Australia. That was the basis of the formation of the trade union movement in many ways and is rightly celebrated every year at Tolpuddle, when those martyrs are remembered.

My noble friend was right to probe the lack of an impact assessment. At the time, we kept returning to the impact assessment for the legislation which abolished the agricultural wages board, and we will keep reminding people that 150,000 workers are affected by the abolition of the board and that £240 million will be taken out of farm workers’ pockets. I know that that is contested by the Government, but they did not take advantage of this opportunity to publish any kind of impact assessment on these regulations to repair that.

I also want to comment on the implications for existing terms and conditions for individual employees. The abolition of the agricultural wages order largely protects existing employees engaged prior to 1 October 2013 with no specific contractual provisions. However, I note an article in Farming UK dated 26 June which quotes Colin Hall, a partner at BTF Partnership and a director of the 50 Club Horticultural Employers’ Association, as saying:

“For others, however, such as those more recently employed with a specific contractual provision reserving the employer’s right to amend their contractual terms following abolition of the AWO, or those employed on or after 1 October 2013, the implications are greater.”

There may be some currently employed workers who have particular contractual provisions who will be affected by these changes. I would be interested to hear from the Minister whether he and his department are planning on working with agricultural employers and advising them on their new obligations as employers following the abolition of the board and the bringing into force of the regulations that we are debating today.

The Minister may have seen the article in Farmers’ Weekly on 11 July—I know that he is a keen listener to “Farming Today”, and I am sure that he is as assiduous in reading Farmers’ Weeklyabout Peter Bailey, who was employed as a tractor driver and stockman in Berkshire for more than 22 years. He was awarded £38,000 for underpayment of wages after working an average 55-hour week at a farm there. Defra took up the case with the board and in the end Mr Bailey was able, through a tribunal, to prove that he was being exploited, not getting the pay he was entitled to and forced to work more hours than he should have, and that his employer was at fault. The tribunal found against the employer. That was a contravention of the old agricultural wages order but demonstrates that some farmers struggle to put existing employment regulations into proper effect. As things change, it is a particularly vulnerable time for employers. We need to ensure that they are properly advised so that they do not, inadvertently, do the wrong thing by their staff.

It is equally important that farm workers know their rights, reduced as they are. For any of them listening, I strongly recommend that if they are not a member of a trade union they quickly join because they will need one more than before as they will have to negotiate their pay and conditions on a case-by-case basis with employers. They will need the advice and support of a trade union to do that effectively. It is also worth noting—this was not something that was in force or that we even knew about when we debated the legislation to get rid of the board—that as of 29 July, this month, workers unfairly dismissed or discriminated against by their employers will be charged a fee for taking their claim to a tribunal. That means, in the absence of the protection of the agricultural wages board, that these typically extremely lowly paid workers will be denied the access to justice of a tribunal unless they are willing to pay a fee, with no guarantee, if the case is found in their favour, that they will get that fee back.

It is worth saying that the law is also changing so that if their employer—who might be their landlord—sidles up to them in the farmyard and makes them an offer to do things slightly differently and change terms and conditions, they would not be able to use that conversation in a tribunal either. That would no longer be admissible. I find that of huge regret, and we were not able to debate it when those orders went through. The changes to their pay and conditions as a result of this order and the new law abolishing the agricultural wages board increase the risk of agricultural workers suffering.

My noble friend Lord Whitty raised the issue of Wales and asked some highly pertinent questions about how this will work given the decision of the Welsh Assembly Government effectively to retain the agricultural wages board in the Principality. I would be very interested to hear how the two will work together. I understand that these regulations were laid before that decision was made by the Welsh Assembly Government, so perhaps there is unfortunate rather than deliberate problems of timing. It will certainly be September before the other place has a chance to debate these regulations. If we do not have a satisfactory answer from the Minister now, we will have to decide whether we want to pray against the regulations or leave it for the Minister to come back with some proper consideration of these matters when they come to the Commons in September. There will certainly be a problem if the agricultural wages board arrangements are to apply in Wales while the changes to leave entitlement are being made in these regulations. The exemptions were put in place in 1998 for a good reason. If they are to apply in Wales while also being changed it will create a problem which the Minister will have to resolve.

So for all the reasons that my noble friend Lord Whitty gave, we are not opposing these regulations as such, subject to some reassurance on the Welsh issue, because they are merely tidying up. However we hugely regret the abolition of the agricultural wages board. I do not think that it has been properly thought through. I think that, in combination with some of the other changes that are taking place, there will be more farm workers who are exploited beyond the few who are exploited at the moment, one example of which I gave from a recent report in the agricultural press.

With those words, I am happy to listen with bated breath to what the Minister will tell us.

I thank the noble Lords, Lord Whitty and Lord Knight, for their contributions. As I said earlier, the amendments we are proposing to the Working Time Regulations are necessary technical amendments to the legislation as a result of the end of the agricultural minimum wage regulatory regime on 1 October, as the noble Lord, Lord Knight, was good enough to acknowledge. The amendments have no impact on levels of protection for agricultural workers and I believe that they are, in themselves, relatively uncontentious. However I recognise that, as the noble Lord, Lord Whitty, said, recent developments in Wales raise certain issues in regard to abolition of the agricultural wages board which noble Lords are rightly interested to hear about.

The Agricultural Sector (Wales) Bill, passed by the National Assembly for Wales on Wednesday last week, would restore a separate agricultural minimum wage regime in Wales. It might be helpful here if I gave noble Lords some explanation about relevant procedural matters.

Under the Government of Wales Act 2006 there is a recognised procedure for the consideration of whether Bills passed by the National Assembly for Wales are within its legislative competence. Essentially, this provides that the Attorney-General and the Counsel General for Wales—either or both—have four weeks after a Bill is passed by the National Assembly in which to decide whether to refer any question of competence to the Supreme Court. After this period, if no referral is made and the Secretary of State for Wales has indicated that he will not use his powers under the Government of Wales Act to intervene, the Bill is submitted for Royal Assent. This applies to all Bills passed by the National Assembly and this is the stage which we have now reached with the Agricultural Sector (Wales) Bill.

My right honourable friend the Attorney-General is currently assessing the legislation to determine whether its provisions are within the Assembly’s competence, as he does with all legislation passed by the Assembly. It would not be right for me to speculate here what conclusion either the Attorney-General, or indeed the Counsel General, might reach. I will say that, as noble Lords are aware from previous debates on this issue, the UK Government regard the agricultural wages regime as wage-setting and employment law, which are subjects that are not devolved to Wales. However, it is for my right honourable friend the Attorney-General and the Counsel General separately to consider whether or not a reference should be made to the Supreme Court on the question of the competence of the provisions of the Welsh Bill. This is a decision for them which it would not be appropriate for me to second-guess. Should either the Attorney-General or the Counsel General for Wales, or both, decide that such a reference should be made, it will be up to the Supreme Court to consider the Bill and make a judgment.

I hope, therefore, that that makes the position clear. There is a statutory procedure to be followed in the case of all Bills passed by the National Assembly and, quite properly, that procedure is now being followed in relation to the Agricultural Sector (Wales) Bill. The noble Lord, Lord Whitty—

I am now coming on to some of the other points. Perhaps I may proceed, and if I do not cover them the noble Lord can intervene then. Would he like me to try?

The noble Lord effectively asked why we do not wait to press ahead until all this has been resolved. We will not know the outcome of the Welsh position for some time, but we need certainty for people in employment in farming in the mean time. If we did not do this then new employees could effectively be left in limbo.

The noble Lord, Lord Whitty, asked what discussions the Government have had with Welsh Ministers about all of this. There has been extensive discussion with Welsh Ministers about the position of the agricultural wages board in Wales, and Welsh Ministers were informed of the Government’s decision to pursue abolition by the Enterprise and Regulatory Reform Act. The UK Government communicated our view that this was a non-devolved matter which did not require the consent of the Assembly clearly to Welsh Ministers.

The noble Lord, Lord Whitty, reiterated his position when we debated the Act—if I may shorthand it. I understand his position very well. Abolishing the agricultural minimum wage will bring agriculture into line—

Before the Minister moves off Wales completely, I would be grateful to know whether he considered the order applying just to England, so that we would not have this issue. Given that detailed conversations were going on with Ministers in the Welsh Assembly Government, was that an option?

The words I used apply to both England and Wales. That is the point. It would leave those coming into agricultural employment in Wales in limbo as well. We do not want them to be left without certainty as to commencement of leave year and the other things we have been referring to here.

My point is on Wales. Although I recognise the delicacy of the position of the Attorney-General in looking at the question of competence of the Welsh Assembly, in advice going to the Attorney-General presumably the department has made clear the point that I made when the Government made a similar point during the passage of the Enterprise and Regulatory Reform Act: that although the Government have now invented the doctrine that this is employment legislation, since at least 1948, the wages board has been the responsibility of Defra or MAFF, not of whatever department was responsible for employment law. That may not be a clincher for the Attorney-General, but it is an important indication of the approach of previous Governments and in previous legislation—that is, as a matter of agricultural not general employment legislation.

The noble Lord has been around for longer than I have in these affairs. I am absolutely certain that that has been done, but I will reiterate it. He makes a perfectly fair point and I will make sure that it is made again.

Perhaps I may continue with the next series of points. The Government’s position, as noble Lords know, is that abolishing the agricultural minimum wage will bring agriculture into line with other sectors in the economy. Allowing farmers to compete fairly in the labour market and for agricultural wages to follow market levels will enhance the competitiveness of the sector and may increase employment. This will in turn encourage long-term prosperity in rural areas.

Having said that, my experience is that workers, often on highly complex machinery and managing animals, which these days is also a pretty technical affair, are highly skilled and that the market for them is highly competitive. We have been quite clear that there is uncertainty about what the actual impact will be. The costs and benefits are made up of a number of elements, including the potential impact on wages for workers and other terms and conditions and the reduction in employment costs paid to government and others. The reality will, as I said, depend on demand, which evidence shows is increasing.

The real benefits will be from allowing farmers and workers the same flexibility to agree terms and conditions as employers and workers in other sectors of the economy, while ensuring the same levels of protection for workers. As I said in my opening remarks, workers with pre-existing contracts will retain those entitlements, and that is enshrined in legislation. I take the noble Lord’s point about that.

The noble Lord, Lord Knight, made a number of points. I acknowledge what he said about what is covered by the agricultural wages board. Of course he is right. Essentially, he asked why we had not done any back-assessment on the regulations. As we discussed, these are minor, technical amendments to the Working Time Regulations as a consequence of abolition of the agricultural wages board. They do not have an impact on the level of protection for workers, nor do we consider that they will have a significant impact on businesses, so an impact assessment has not been carried out.

The noble Lord asked whether we would be working with employers to remind them of their obligations. We have prepared guidance on the changes for agricultural workers and employers, which we have already shared with stakeholders. That guidance will be published on the Defra website shortly.

The Government firmly believe that the end of the separate agricultural minimum wage regime is in the best interests of the industry. The proposed amendments to the Working Time Regulations are a minor piece of the jigsaw to complete a simplified employment regime across all sectors of the economy. This will provide simplification, transparency and greater flexibility, thereby encouraging investment, growth and job opportunities in the sector, which will benefit both workers and employers. A successful agricultural industry will contribute to the growth of the wider rural economy, which is one of my department’s four key objectives. I beg to move.

Motion agreed.

Age-Related Payments Regulations 2013

Considered in Grand Committee

Moved By

That the Grand Committee do report to the House that it has considered the Age-Related Payments Regulations 2013.

Relevant document: 7th Report from the Joint Committee on Statutory Instruments.

My Lords, as noble Lords will be aware, this Government established the Equitable Life payment scheme in 2010 to make payments totalling up to £1.5 billion to as many as 1 million former Equitable Life policyholders who suffered financial losses as a result of government maladministration that occurred in the regulation of Equitable Life. Since the establishment of the scheme, the Government have received representations suggesting that a specific group of elderly policyholders who bought their with-profits annuity from Equitable Life before 1 September 1992 should be included within the scheme.

The Government remain of the view that there is no basis for their inclusion in the scheme. The reasons for the exclusion of this group of policyholders are well documented and have been subject to debate in Parliament. In short, the Equitable Life payment scheme is based on the understanding that those investing with Equitable Life relied on regulatory returns that were subject to government maladministration. As such, they had lost the opportunity to make a fully informed decision and if they had had this opportunity, they might have invested elsewhere. The first returns that would have been different if maladministration had not occurred were those of 1991, which would not have influenced policyholders’ decisions until September 1992. Therefore, investment decisions made before this time are not included in the scheme.

However, it is clear that this particular group of policyholders are under financial pressure in their later years, as they have not received the income they hoped for from the Equitable Life annuity that they bought more than 20 years ago. In this year’s Budget, the Chancellor announced that the Government will make an ex-gratia payment of £5,000 to those individuals who bought an Equitable Life with-profits annuity before 1 September 1992 and were aged over 60 on 20 March 2013. An additional £5,000 will be available to those policyholders who meet the above criteria and are in receipt of pension credit.

The draft regulations before the Committee today confirm the rules surrounding these payments. Policyholders will not be required to prove their eligibility for these payments; instead policyholder information held by the Prudential, which makes regular annuity payments to all Equitable Life with-profits annuitants, will be used to identify those eligible for a payment. Eligible individuals will receive one payment of £5,000—£10,000 if they are in receipt of pension credit—regardless of the number of policies they hold. I can also confirm that should an annuitant pass away after the Budget announcement on 20 March this year but before receiving their payment, the payment will be made to their estate. The rules are available in full on the Government’s website.

The Government recognise the need to issue these payments to elderly individuals as soon as possible. The Treasury has been considering all the possible options for delivering these payments quickly and efficiently. I am pleased to confirm that it now plans to make these payments within the current financial year, rather than in 2014-15 as previously envisaged. It is currently planned that in the coming months letters will be dispatched to all eligible policyholders to inform them of the Government’s plans to make these payments. A few months after that takes place, the payments will be issued to all living pre-1992 WPA policyholders. Payments to estates, and the £5,000 additional payment made to those overseas policyholders in respect of their receiving a specified equivalent to pension credit, will be made later this financial year.

The letter sent to all eligible policyholders will also advise that they check their eligibility for pension credit. Individuals will have until 1 November this year to do that, and to apply for pension credit if necessary. Policyholder information will then be securely shared with the Department for Work and Pensions to identify those eligible policyholders in receipt of pension credit. The payments due to them will be increased from £5,000 to £10,000 accordingly before they are dispatched. More information on the delivery of these payments will be announced in due course. Finally, I draw the Committee’s attention to a correction slip issued today that makes minor corrections to the numbering of the regulations. I commend the regulations to the Committee.

My Lords, I thank the Minister for his introduction to these regulations. They take us back to the saga of Equitable Life, which spawned a range of inquiries and reviews, including those by the FSA, the Treasury Select Committee, the actuarial profession, the Treasury, the ombudsman—twice—and the Public Administration Committee. I do not propose to pick over those in detail this afternoon. As we have heard, they culminated in the Equitable Life (Payments) Act, which came before your Lordships’ House in 2010 as a money Bill. The Act, which we supported, introduced a payment scheme to be operated by an independent commission. It would seem that the scheme is well under way and is open until April 2014, although annuitants will clearly continue to be paid thereafter.

One bone of contention with the proposed scheme was the overall amount of money allocated, although the Parliamentary Ombudsman recommended the need to reflect a public interest consideration and the impact on the public purse. Another bone of contention was the starting date of the scheme which, as we have heard, applied to policyholders who invested from September 1992. In justifying not including earlier investment, the then Minister—the noble Lord, Lord Sassoon—stated:

“The first issue here is that they took out policies before any maladministration could have affected their decisions”—

that reflects what the Minister said earlier today. He continued:

“That is the first and principal reason why they have not been included in the Government’s proposed payment scheme … Sir John Chadwick and Towers Watson”—

the actuaries—

“… concluded that the pre-1992 WPAs received more from Equitable Life than they would have if the society had been properly regulated”.—[Official Report, 24/11/10; cols. 1157-58.]

As it paid out more in the earlier years but less in later years than it would have had there been no maladministration, “no compensation is due”. We are told that the Government remain of this view. That is what the Minister reiterated earlier. Can he confirm that and tell us whether any updated assessment was undertaken to verify the balance of the over and underpayments in that analysis? Does it still fall in a way that validates the view then expressed?

Budget 2013 announced that there will be an ex-gratia payment of £5,000 for policyholders who bought their Equitable Life with-profits annuity before 1 September 1992 and who are living at the date of the announcement, which was 12 March 2013. A further £5,000 will be available to those policyholders who are in receipt of pension credit. The Red Book scored that as a cost of £45 million in 2014-15. From what the Minister said, presumably that now has to score in an earlier year.

The regulations have slightly recast that so that it applies only to those alive and aged over 60 on 20 March 2013. It is understood that that is because the quickest way to effect payment is under the Age-Related Payments Regulations, and they can be used only for those over 60. I am led to believe that that precludes only a handful of annuitants from benefiting, but perhaps the Minister can tell us how many.

As for who will receive payment, can the Minister confirm whether multiple payments of £5,000 can be made? If I heard correctly from what he said, it is only one plus an additional £5,000 for those on pension credit. The Explanatory Memorandum states:

“Article 2 provides for a qualifying Equitable Life annuitant to be entitled to a payment of £5000 in respect of each relevant with-profits annuity policy (as defined in the regulations)”,

so perhaps we need to go back to the regulations. Perhaps mine was a cursory reading, but I took from it that if you have more than one with-profits policy, you will get more than one payment of £5,000. Will the Minister clarify that for us?

The additional amount of £5,000 is payable if an annuitant is in receipt of a benefit similar to pension credit within the EU. That raises the question of how many recipients of the ex-gratia payment are resident overseas. Presumably, Prudential has that information. Can the Minister let us know?

The payments are to be made free of tax and without benefit consequences. Of the expected 10,000 policyholders to be affected, how many would have income below the tax threshold, how many would pay tax at the basic rate and how many, if any, at the higher and additional rates?

Finally, perhaps the Minister can put this in a broader context for us. Many millions of our fellow citizens are undergoing financial pressure at the current time which is not of their making. Of course, pensioners are often least able to deal with the consequences of reducing income because it is more difficult, if not impossible for them to access the labour market. My question is a composite one. Why £5,000; why this particular group of beneficiaries among all those suffering financial hardship; and what was the process which led to this decision?

My Lords, I am extremely grateful to the noble Lord for the speed with which he joined this debate from the Chamber and for his typically forensic questions. He asked me whether the reality validates the view we originally took on under and overpayments on Equitable Life. I believe that it does. If I am wrong, I will write to him, but I think that it does. He asked when the payments would score. I believe that they will score when they were made, so earlier.

The noble Lord asked one or two detailed numerical questions. How many would be precluded by being under-60 at the relevant point? I understand that there are 19, so it is literally a handful. He asked about how many are resident overseas. There are 223 overseas policyholders, 125 of whom are within the EU. He asked about the incomes of the people involved—how many would be paying tax at the various rates. We simply do not have information about the incomes of those pre-1992 with-profits annuitants.

The noble Lord asked whether there would be multiple payments. No, there will not be multiple payments. There will be one payment per policyholder even if they have more than one policy. He then asked the wider question of why £5,000 and why this group. These are simply matters of judgment. Should it be five rather than four rather than six? The view taken by my colleagues in the Treasury was that £5,000 had a sense of justice about it, and that it was felt broadly right and was affordable.

Why this potential group? As the noble Lord knows, this group has been part of the debate about Equitable Life all the way through—about where do you draw the line between payment and non-payment. After a very long period of discussion it was simply thought that these groups were Equitable Life policyholders who had not got the sort of benefit that many other Equitable Life policyholders had got, notwithstanding the fact that they were not subject to maladministration in the same way, and that it was a question of fairness to them. That was the telling argument which decided us on this course.

I hope that I have answered all the noble Lord’s questions. On that basis, I commend the regulations to the Committee.

I am grateful for the very full answers that the noble Lord has given, but perhaps I may come back on this issue of only one payment. I hear very clearly what the Minister says. Either I am misreading the Explanatory Note, or it is something that we will have to settle outside our discussions today, but it would be good to be clear on that.

On the issue of who we are supporting here, it is quite possible that the people who are getting these ex-gratia payments are higher-rate taxpayers as well as people who do not pay tax at all. Obviously, having a tax-free ex-gratia payment is of particular value to such people. The overall cost, which is, I think, £45 million, is not in these days a small sum. This is why my last question is about all the demands and all the challenges that we have, particularly some of the benefit changes. Why spend £45 million on this group, including some who are higher-rate taxpayers who are going to do very well out of a tax-free ex-gratia amount? I think that I have made the point, and I am grateful for the noble Lord’s explanations.

I do not think that there is any doubt that one individual will get a maximum of one payment. I am sorry if the note is not very clear but I think that that is correct. Should these payments be tax free? One of the considerations—bearing in mind that these are not insubstantial payments, but they are not vast payments—was that, given that we do not know the current incomes of the people, having a common payment to this group of elderly policyholders seemed to us to be the easiest, simplest, and fairest outcome.

Motion agreed.

Judicial Appointments Commission Regulations 2013

Considered in Grand Committee

Moved By

That the Grand Committee do report to the House that it has considered the Judicial Appointments Commission Regulations 2013.

Relevant document: 6th Report from the Joint Committee on Statutory Instruments.

My Lords, the three sets of regulations before us today contain the detail of selection processes for judicial appointments and the composition of the Judicial Appointments Commission. Specifically, the draft Judicial Appointments Regulations 2013 set out the details of the selection processes to be followed when selecting for certain judicial offices managed by the Judicial Appointments Commission, and processes of selection for the offices of Lord Chief Justice, heads of division, the Senior President of Tribunals and Lords Justice of Appeal. The draft Judicial Appointments Commission Regulations 2013 set out the details of the composition of the Judicial Appointments Commission including the number of commissioners and the process for their selection, while the draft Supreme Court (Judicial Appointments) Regulations 2013 set out details of the selection process for the appointment of Supreme Court Justices, including the revised composition of the selection commissions.

Before setting out further details, I will explain the background to these changes. In November 2011, the Ministry of Justice issued a public consultation entitled Appointments and Diversity: A Judiciary for the 21st Century, which focused on delivering changes to the statutory and regulatory frameworks for judicial appointments and contained measures to increase judicial diversity. One of the proposals in our consultation was to address the balance between primary and secondary legislation; specifically, to move the detail of the appointments processes into secondary legislation while keeping important elements of principle on the face of primary legislation. This approach was supported by the Constitution Committee as part of its inquiry into the judicial appointments process.

Running concurrent with our consultation, the Constitution Committee in the other place carried out an inquiry into the judicial appointments process. In its final report following the inquiry, the committee agreed that the detailed provisions of the Constitutional Reform Act 2005 should be included in secondary legislation. They emphasised that Henry VIII clauses should not be sought; provisions of particular constitutional importance should continue to remain in primary legislation where they will continue to be subject to full parliamentary scrutiny. Upon the introduction of a Bill, the Government should publish draft secondary legislation and the Lord Chief Justice and, where relevant, the senior judge of the Supreme Court should be consulted before secondary legislation is laid before Parliament.

Following the committee’s recommendations and the support we received via our consultation, the Government introduced powers for the Lord Chancellor to make regulations through the Crime and Courts Act 2013, with the agreement of the Lord Chief Justice and, where relevant, the senior judge of the Supreme Court, which would contain the detail of the judicial appointments processes, and these are the regulations we are considering today. While moving this detail into secondary legislation, we also made some changes to the judicial appointments processes themselves that were informed by the recommendations arising from the report of the Advisory Panel on Judicial Diversity, chaired by the noble Baroness, Lady Neuberger, together with observations received from the Constitution Committee in the other place.

All three sets of regulations have been developed in conjunction with the judiciary and the Judicial Appointments Commission, and we have shared the draft versions with the devolved Administrations. Early drafts of these regulations were shared with Parliament during the course of the Crime and Courts Bill, as it then was, through Parliament as per the observation made by the Constitution Committee. Lastly, as required by legislation, the draft Judicial Appointments Regulations 2013 and the draft Judicial Appointments Commission Regulations 2013 have been agreed by the Lord Chief Justice before being laid. The draft Supreme Court (Judicial Appointments) Regulations 2013 have been agreed with the President of the UK Supreme Court before being laid. With this in mind, I turn now to each statutory instrument individually.

The first of these are the draft Judicial Appointments Regulations 2013 concerning changes to the selection panels and the role of the Lord Chancellor. The first set of changes to the process detailed within the Constitutional Reform Act 2005 concerns the selection panels for senior judicial offices, including the Lord Chief Justice, heads of division, the Senior President of Tribunals and Lords Justice of the Court of Appeal. Following a recommendation by the Advisory Panel on Judicial Diversity, we revised the composition of selection panels for the most senior appointments to increase lay representation on these panels. We have provided for there to be an odd number of members on these panels, with a minimum of five, to prevent the chair having a casting vote. There is also now a duty upon those choosing members to sit on selection panels to have regard to the desirability that the composition of the selection panel should include both men and women and be drawn from a range of different ethnic groups.

The process detailed within these regulations for the selection of the Lord Chief Justice and heads of division mirrors that set out in the transitional provisions detailed in Part 5 of Schedule 13 to the Crime and Courts Act 2013. Additionally, the Lord Chancellor is now provided with a consultative role for the selection of Lords Justice of Appeal and the Senior President of Tribunals. This consultative role is similar to the role the Lord Chancellor already has in relation to Supreme Court appointments, and given the importance of these judicial offices to the administration of justice and the leadership they provide to the judiciary, there is a clear case for the Executive to be able to express a view on the qualities expected of future officeholders.

I turn now to the rebalancing of responsibilities between the Executive and the judiciary. The Crime and Courts Act transfers from the Lord Chancellor to the Lord Chief Justice responsibility for considering selections made by the JAC in relation to the appointment of court-based judges below the High Court. Similarly, the Senior President of Tribunals assumes this role for the appointment of specified tribunal judges. These regulations therefore provide the detail of the selection procedures that will be required to be applied by the Lord Chief Justice and the Senior President of Tribunals, together with the Lord Chancellor, when considering the nominations for judicial appointments received from the JAC. These changes replicate the options that the Lord Chancellor currently has when receiving a selection from the JAC and apply them to the Lord Chief Justice and the Senior President of Tribunals when undertaking these functions.

I come now to authorisations to sit in the High Court. I would like to outline the changes made through the Crime and Courts Act to the process by which judges are authorised to sit in the High Court which is now set out in these regulations. Sitting as a judge in the High Court is considered a key route to promotion. However, the previous system for authorising circuit judges and recorders to sit in the High Court did not provide the same degree of openness or transparency enjoyed by other judicial appointments. This meant that these positions, which are an important stepping stone to more senior judicial appointments, were not open to the widest range of potential candidates. The Crime and Courts Act and the regulations introduce a new selection process for these authorisations, one that is to be determined by the JAC. These regulations therefore outline the process to select recorders, specified tribunal judges and circuit judges for membership of a pool from which the LCJ may then authorise to sit in the High Court.

I turn now to the draft Judicial Appointments Commission Regulations 2013, which set out the composition of the JAC, including the number of commissioners and the process for their selection. The composition as set out in the regulations is closely based on the composition as was set out in Schedule 12 to the Constitutional Reform Act; however, I outline the main changes below. Previously, only a solicitor or a barrister could take up the two positions on the commission allocated to members of the legal profession.

However, we have made it possible for fellows of the Chartered Institute of Legal Executives—CILEx—to be members of the commission. This resolves the oddity arising from the changes made through the Tribunals, Courts and Enforcement Act, whereby CILEx fellows are eligible to be appointed as judges but are not eligible to be JAC commissioners. We have also increased the representation of the tribunals’ judiciary on the commission, as the majority of JAC appointments are to tribunals’ posts; the commission will in future include a senior tribunal judge. We have also increased those eligible to be selected as the non-legal members to include non-legally qualified judicial members, such as lay tribunal members to sit on the commission, together with lay magistrates.

Finally, I turn to the draft Supreme Court (Judicial Appointments) Regulations 2013. The Crime and Courts Act and the draft regulations make changes to the composition of selection panels for the appointment of Supreme Court judges. These changes are now reflected in these regulations and will help to ensure that the balance between lay, judicial and independent roles on the panels are appropriate. Significant changes include provision for a lay chair for a selection commission considering selection for the office of President of the Supreme Court.

The selection commission will also include one member of the Supreme Court rather than two in line with a recommendation from the report of the noble Baroness, Lady Neuberger, on diversity. These changes guard against the perception of the selection commissioners selecting judges based on a likeness to their own image. There will, though, still be a minimum of two judicial officeholders on the selection panel, with the place previously taken by the Supreme Court judge taken by a senior UK territorial judge.

The substance of these regulations and the main changes contained within them have been debated at length through the passage of the Crime and Courts Act. As I have already mentioned, the changes made through the Act were a product of a government consultation and recommendations from the Advisory Panel on Judicial Diversity and the Constitution Committee. The regulations have been developed in consultation with the judiciary and the JAC and have received the required approval from the Lord Chief Justice and the President of the Supreme Court, where relevant, before being laid before Parliament to consider. I therefore commend these draft regulations to the Committee and beg to move.

My Lords, I wish to make a brief general point about judicial diversity in connection with these regulations. The Committee knows that my noble friend is a forceful advocate of judicial diversity. The Government’s commitment was apparent during the passage of what is now the Crime and Courts Act, and in particular in their promotion of the provisions which find expression in Schedule 13 to that Act. While not wishing to make any judgment about the recent appointment to the position of Lord Chief Justice it is, from the diversity point of view, a shame that the extremely highly thought-of female candidate was not selected. That would have been real and very public progress.

These regulations implement the new systems in ways that are both detailed and welcome, but the imperative is to ensure that we move towards a much more representative judiciary with more women, more ethnic minority judges and judges from a far broader range of social background. These regulations can be no more than a step on the way to achieving that. While they are detailed and welcome provisions, to achieve real change we need a deep and continuing change of culture. That was highlighted in the report of the Advisory Panel on Judicial Diversity, chaired by the noble Baroness, Lady Neuberger and mentioned by my noble friend. I look forward in the future to Government and the judiciary working together to achieve that change.

My Lords, I shall make a short point relating to the Supreme Court (Judicial Appointments) Regulations. Before I explain my point, I should declare an interest. I recently retired as deputy president of the Supreme Court. For the past four years I have been a member of the ad hoc commission and thus responsible, along with the president, for a number of appointments, which have included something like a third of the court now sitting as the Supreme Court across the square.

My point relates to diversity in a rather unusual way. As the Minister has explained, one of the aims of redesigning the composition of the selection commission described in Part 3 of these regulations is to meet the recommendation that the commission should no longer be seen to be appointing or selecting for appointment people in their own image. It may be that that was a fair criticism at the time when I was sitting as one of the two judicial members of the panel since the president and I were both men, but I have just retired and I have been succeeded by the noble and learned Baroness, Lady Hale of Richmond. In a way, this follows on from a point just made by the noble Lord that one may regret for diversity reasons the choice of Lord Chief Justice. I make no comment on that, but one great advance that has been made in the Supreme Court is that we now have the noble and learned Baroness, Lady Hale, who is a very vigorous proponent of diversity and is probably best suited of anyone to sit on such a commission.

It is a great misfortune of timing. If she had been in my position when the noble Baroness, Lady Neuberger, came with her members to visit us and to discuss the change, I am sure that the noble Baroness would have seen—it would have been perfectly obvious—that the noble and learned Baroness was there and that we had on our team every component for diversity one could possibly have wished for. As the noble Lord rightly explained, when the draft regulations were discussed with us, it was impossible to make the point that the noble and learned Baroness, Lady Hale, might be my successor because I had not yet resigned and the selection process for my successor had not yet taken place. Therefore, we were very cautious not to make any prediction about who would succeed me. The succession process produced this result only about four weeks ago.

It is a great misfortune of timing has led us to the position where the noble and learned Baroness will now be excluded from participation in the selection process. The regulations are very carefully drafted because the composition of the selection commission in Regulation 11 provides for a senior UK judge to be nominated to take the position which I previously occupied. It is quite clear, if you read Regulation 11(1)(e) with Regulation 14 and Regulation 2, that the senior UK judge can be any senior UK judge other than a judge of the Supreme Court. So it is quite clear it can only be the president who would be the Supreme Court member, and the noble and learned Baroness, Lady Hale, has no prospect of playing any part in the work of the commission.

The way that the appointments have gone in the Supreme Court in recent years means that there will be no fresh vacancy, I think I am right in saying, for two or three years. Now that I have gone, the way is clear for the court to settle down without any real change. However, in two or three, or possibly three or four years’ time, a significant number will retire and fall to be replaced, and the noble and learned Baroness will still be there. The composition of what one might call the next but one Supreme Court will be greatly influenced by the work of this commission. It is a great pity that the reform has taken this form. As I said earlier, I doubt very much whether it would have done before, but I must concede that the Minister is absolutely right to say that the regulations were shown to us. We did the best we could in our discussions to make this point without naming names.

The purpose of my intervention is to express regret at this turn of events and hope that perhaps one day it may be possible to recognise the enormous qualities of the noble and learned Baroness, Lady Hale, and the major contribution she would be able to make to increasing diversity in a way which concerns us all.

My Lords, perhaps I may express my agreement with the remarks made by my noble and learned friend Lord Hope of Craighead. I want to add a few words on the Supreme Court regulations relating to the manner in which believed incapacity is to be dealt with. As your Lordships will be aware, the regulations provide for the setting up of a selection commission, and various individuals are to be given the power to nominate other individuals for membership of that commission. One of the persons with the power to nominate such a person is the President of the Supreme Court. That is set out in Regulation 5:

“(1) The selection commission must consist of—(a) the Deputy President; (b) a senior UK judge nominated in accordance with regulation 7”.

Regulation 7 states that, unless paragraphs (2) or (3) of Regulation 5 apply, the President,

“must nominate a senior UK judge who is not disqualified under regulation 16”.

Paragraph (2) of Regulation 7 goes on to state that:

“Where—(a) the office of President is already vacant; or (b) it appears to the Lord Chancellor that the person holding the office of President is for the time being incapacitated, the Deputy President (unless the Deputy President is disqualified under regulation 16) must nominate a senior UK judge in accordance with paragraph (1) to sit on the selection commission”.

The believed incapacity puts out of the ring as a nominator the President and brings in the Deputy President. So far, so good, but the existence of the incapacity is simply dependent upon the opinion of the Lord Chancellor: it appears to the Lord Chancellor that the person holding the office of the President is, for the time being, incapacitated. One finds an echo of that in Regulation 14:

“(1) Unless paragraph (2) or (3) applies, the President— (a) must nominate a senior UK judge who is not disqualified under regulation 16”,


“(2) Where—(a) the office of President is already vacant; or (b) it appears to the Lord Chancellor that the person holding the office of President is for the time being incapacitated, the Deputy President (unless the Deputy President is disqualified under regulation 16)”.

Under Regulation 16,

“A person is disqualified for the purposes of membership of a selection commission if it appears to the Lord Chancellor that that person is for the time being incapacitated from serving as a member of the selection commission”.

All these provisions depend on nothing other than the opinion of the Lord Chancellor “for the time being” that the individual is, using the language of the regulations, incapacitated. There appears to be no indication of whether the person concerned agrees with his or her believed incapacity, it is just the opinion of the Lord Chancellor that the incapacity exists and therefore someone else must be the nominator for the relevant purpose. I would suggest that that is profoundly unsatisfactory. There are provisions about incapacity in the Constitutional Reform Act 2005. Section 16 provides that the Lord Chief Justice is incapacitated only if at least three of the four heads of division declare in writing that he is incapacitated. Section 36,

“applies if the Lord Chancellor is satisfied by means of a medical certificate that a person holding office as a judge of the Supreme Court—(a) is disabled by permanent infirmity from the performance of the duties of his office, and (b) is for the time being incapacitated from resigning his office”.

What does “incapacitated” mean? It depends on the opinion of the Lord Chancellor. One of the functions of the 2005 Act was to put an end to the believed impropriety inconsistent with the separation of powers of the highest court in the land being a part of the legislature—the Law Lords, as they then were. The impropriety of that was accepted by a number of people, and the Supreme Court was brought into existence to put an end to that conflict. However, this produces another conflict. So far as the regulation is concerned, the Executive, in the form of the Lord Chancellor, does not have to base his opinion on any medical evidence at all. The Lord Chancellor has the right to pronounce his belief in the incapacity of the President, the Deputy President or some other senior UK judge to act for the purposes of the selection commission that these regulations will set up. That itself seems to be inconsistent with the separation of powers—not, as before, the separation between the legislature and the judiciary but between the Executive and the judiciary. It appears to be a much more serious infringement of the doctrine of separation of powers than that which formerly existed when the Law Lords, as Members of this House, acted as the highest court of the land.

I wonder why relying on the opinion of the Lord Chancellor on these matters of incapacity, which must require somebody with a little medical or perhaps psychiatric knowledge to have a view, and without any indication that the individual who is thought incapacitated is having his or her opinion canvassed, should be thought to be an appropriate way of dealing with this situation. I would seriously suggest to the Government that it is a most improper way of dealing with the situation. The Lord Chancellor’s opinion should not be sufficient to declare somebody incapacitated, unless backed by a medical certificate—which would suffice—or by the concurrence of the heads of division or, so long as it was not the Lord Chief Justice’s position being considered, of the Lord Chief Justice. However, just relying on the opinion of the Lord Chancellor on a matter that would require some medical or psychiatric expertise seems to me to be offensive, unnecessary and something that should be remedied before these regulations are brought into effect.

My Lords, I thank the Minister for his pithy exposition of the Supreme Court (Judicial Appointments) Regulations 2013. I have been in this Parliament for only four decades. Notwithstanding that, I know that a Member without any legal insight is entitled to take part in the proceedings of your Lordships’ Committee and ask a question of the resourceful Minister who is taking forward the business. By coincidence, a new Lord Chief Justice—a distinguished Welshman—was appointed very recently, and I noted in the correspondence column of the Times today that my compatriot, Mr Winston Roddick QC, a former Counsel General to the Welsh Assembly Government, has strongly supported his appointment. I think the Lord Chief Justice is being warmly welcomed throughout the Principality; he has the reputation of being a very charming and knowledgeable Welshman.

At this point, I will hurry on to ask whether the Minister is able to say in what way, if at all, there is any prospect of what one might call ordinary people being consulted on this enormously important post of Lord Chief Justice. Does he have a point of view on that? Does a point of view exist regarding widespread consultation or has it been resolved that such a course would not be wise? How was the First Minister of Wales consulted? I see at Regulation 19 that the First Ministers in Scotland and Wales are down for consultation. Would it be reasonable to assume that the First Minister of Wales was consulted on this recent appointment of the new Lord Chief Justice? I am not in any way asking what the result of the consultation was, or about the detail of what was said or written, but it is reasonable to ask in what way he was consulted, when he was consulted, and how, by whom and how recently his opinions were received.

The Minister mentioned diversity. Is he able, in all this, regarding this regulation and this appointment, to give to the Committee instances of diversity in these senior appointments of crucial importance to all the people in Britain? I note, too, that references are made to the Judicial Appointments Commission. Does he have to hand the current membership of that commission? I again thank him for his pithy exposition at the beginning of our debate.

My Lords, in relation to the Judicial Appointments Commission Regulations 2013, I seek some guidance and some information from the Minister. In terms of the composition of the commission, to which the Minister referred in his remarks, Regulation 4(5) includes as a legally qualified member of the commission a,

“fellow of the Chartered Institute of Legal Executives”.

What particular judicial appointments would the commission comprising such a member be involved in? Perhaps the Minister can assist me. I may have something further to say once I know the answer to that.

My Lords, I, too, echo the words expressed by my noble and learned friend Lord Hope of Craighead about the signal and striking contribution made over the years by the noble and learned Baroness, Lady Hale of Richmond, to the laudable, estimable cause of judicial diversity. It is indeed a pity—I cannot put it higher than that—that at the very moment that she would stand to be a critical part of the selection process these regulations in every sense must disappoint her.

I would also say a word sharing my noble and learned friend Lord Scott’s concern, though perhaps without the passion he brought to bear on the point, about the insistence throughout the regulation—he referred to the various places where this concept appears—that it is purely for the opinion of the Lord Chancellor whether any relevant person is incapacitated from serving as a member of the selection commission. The same formula he pointed out appears in Regulations 7(2)(b), 14(2)(b), 16(1) and 17(2)(b). That is exhaustive but that is where the concept appears. He made a point on Section 16 of the Constitutional Reform Act 2005 with regard to the incapacity of the Lord Chief Justice. It is fair to point out that in Section 16 that is a permanent incapacity, and indeed “incapacitated” is defined in Section 16(5) in relation to the Lord Chief Justice to mean,

“unable to exercise the functions of that office”.

It is made plain that that is on a permanent basis. There is a distinction between that and, in our regulations, the formula,

“for the time being incapacitated”.

I suggest a possibility: somebody else, together with the Lord Chancellor, could be involved in making a judgment and expressing a determination as to whether there is, for the time being, incapacity of the relevant member—that is, simply incapacity from serving as a member of a selection committee. I would suggest possibly the Lord Chancellor together with the Lord Chief Justice did that. If somebody were then to make the point, “Well, it may be that the Lord Chief Justice could himself be a candidate for appointment either to the relevant office or, indeed, to being on the selection committee”, in such a case it could be the next senior UK judge, who, again, is defined within the statute. I merely put those forward as possible suggestions to dilute the objection and concern voiced by my noble and learned friend Lord Scott that it is, at least in terms of perception, troubling that the matter should be left simply to the untrammelled opinion of the Lord Chancellor unaided.

My Lords, I join other noble Lords in congratulating and thanking the Minister for his very clear presentation of the regulations, and join some of your Lordships in expressing a slight note of regret that the noble and learned Baroness, Lady Hale, has not been appointed to the very high position of Lord Chief Justice—not this time at any rate. That in no way reflects, of course, on the esteem in which the new incumbent is held across the system. However, if the noble and learned Baroness had been appointed, it would have sent a powerful signal endorsing the Government’s approach.

In congratulating the Government generally on coming forward with these proposals, it is as well to remember where we are in the higher courts in terms of diversity. Of 110 High Court judges, only 17 are women and only five are from black and ethnic minority backgrounds, with no female heads of division. However, we now have a female Supreme Court judge and that is welcome. Those facts illuminate the reason for the Government’s approach, which we certainly endorse. I particularly welcome the reinforcing of independent elements in the appointments processes and, of course, promoting diversity. That includes the revision of the composition of selection panels for the most senior appointments. The Government’s intention is explicit—to make the appointments more diverse and increase lay representation on the panels. However, I am not entirely clear about the extent to which the selection panels themselves reflect diversity among their members, particularly at the higher levels. As there are five members of the commission, it is important that diversity is also reflected at that level.

I particularly welcome two matters. The first is that these procedures will apply to tribunals. In answer to the noble and learned Lord, Lord Hardie, that, I think, is the relevance of the inclusion of the Chartered Institute of Legal Executives in the new process as they are eligible for tribunal appointments, as the Minister indicated. There is, therefore, every reason why they should be on the panels.

To clarify, is the noble Lord saying that the legally qualified person who is a fellow of the Chartered Institute of Legal Executives would only be part of a commission which appointed members to a tribunal?

I am not in a position to say that—the Minister is—but I gather that he or she would not necessarily be restricted in that respect. Personally I welcome that because otherwise you would have the somewhat anomalous position where the converse would not be the case: the member engaged in tribunal appointments would, by definition, not be a member of the chartered institute and would be either a barrister or solicitor. There is the option for balance—it is not necessarily the case—where the CILEx member was involved in other than tribunal appointments. That possibility could occur. I dare say the Minister will correct me if my interpretation is wrong. I very much welcome the inclusion of CILEx in that.

I return to the question of the steps the Government will take to ensure that there is diversity in the appointment of membership of panels, especially in relation to gender and ethnicity. The noble and learned Lords, Lord Scott and Lord Brown, referred to the difficulties raised by the provision relating to incapacity. It is rather striking that incapacity is only treated as a matter of concern if it afflicts a holder of judicial office. It is not inconceivable that it might afflict the Lord Chancellor but that is not covered by the arrangements. That is slightly odd. I sympathise very strongly with the observations of the noble and learned Lords in that regard. There must be a procedure in which the Lord Chancellor is not perceived to have an unfettered and sole discretion in this matter. That might not be the Government’s intention—I suspect it is not—but it would be much better if that were explicit. I hope the Minister will take this back and possibly make it the subject of further regulation. The point that was made was quite powerful.

There are two other matters I invite some comment on. First, given that we are not talking about judicial appointments, I wonder whether the Government have taken on board sufficiently—or to any extent—the impact on future appointments of the changes they are proposing, particularly in criminal legal aid. There is widespread concern, expressed across the legal profession and reaching into the judiciary, that diversity issues will arise if, as seems likely, there is a significant reduction in the size of particularly the criminal Bar but also of the solicitors’ side of the profession. I declare my interest as a member of the Law Society and an unpaid consultant to a firm of which I was formerly senior partner. There is a fear that the ladder of appointments might become rather remote from those who currently succeed in progressing. Even now, as I indicated, they do not progress as high as the Government would wish. Again, I invite the Government to consider the impact of these changes on their aspirations for diversity in the judiciary.

Secondly, there is an area that I confess is beyond the scope of these regulations. I invite the Minister to indicate what steps the Government are considering to sustain and promote diversity among the magistracy. That is diversity of all kinds: again gender and ethnicity but also, although it is not in this series of recommendations affecting the judiciary, social class as well. A local justice system needs diversity in its officeholders to a significant extent, as does the judiciary with which we are today concerned.

Having said all that, the Government are certainly moving in the right direction. We hope that some of the points made today might be reflected in further regulation. This is a good start but needs to be taken further. No doubt over time the Government will assess what progress has been made and what steps they could take to encourage more applications for judicial officers at all levels from a wide range of people qualified in every respect to fulfil that important duty.

My Lords, I am extremely grateful to all those who have contributed to a very interesting debate. I have to confess that as I sat waiting for the debate to begin, I felt rather like a character in Alfred Hitchcock’s “The Birds”, as I watched various distinguished Members of your Lordships’ House flutter on to their perches waiting to take a peck at me. I shall start by responding to the noble Lord, Lord Beecham, who is always thoughtful and incisive in what he has to say.

I think that a lot of people were hoping that the selection of the Lord Chief Justice would give us an opportunity to make a great statement in terms of diversity with the noble and learned Baroness, Lady Hale, as one of the candidates. But, as has been made clear in a number of letters to the Times today, that does not take away from the fact that we have a very good choice for the Lord Chief Justice and we wish him well in his appointment. A name which has been bandied around a great deal is that of the noble and learned Baroness, Lady Hale. I remember when the Metropolitan Police appointed its first black policeman, PC Norwell Gumbs. For a while, PC Gumbs seemed to be on duty outside 10 Downing Street, Buckingham Palace or almost anywhere that would give the impression of a diversity that did not actually exist. I must also say to the noble and learned Lord, Lord Hope, that in the three years that I have been a Minister, the Supreme Court has made three or four appointments, none of which has been particularly diverse, although undoubtedly extremely eminent. As my noble friend Lord Marks said, in these regulations we are taking some stuttering steps forward in diversity. I have been assured by the very highest ranks of the judiciary that if I am patient, in 20 years’ time all will be well. I would say that that is not a timescale that the country will be satisfied with.

We are trying to encourage the panels themselves to be diverse. It could take us into a much wider debate, but I am conscious that it is from the criminal Bar that we get the flow of eminent lawyers who go into our senior judiciary. I hope that the Bar itself becomes much more constructively involved in looking at how we bring about social mobility there. For one reason or another—you cannot put all the blame on legal aid—in my opinion, access to the Bar is probably less socially mobile than it was 20 or 30 years ago, and that should be a matter of concern to us.

I also agree with the noble Lord, Lord Beecham, in that I am a great supporter of the magistracy. There is always a problem in respect of its social composition but I think that it has come a long way from being the local squire dispensing justice. Indeed, if we want to look for diversity in our judicial system, it is there in the magistracy, where there is far greater diversity both in terms of gender and ethnic representation. I hope that we will look at how we encourage more people into the magistracy and how we can give the magistracy greater responsibility and powers within our criminal justice system. While I remain in this post, I will certainly look for those opportunities.

Returning to the wider debate, I agree with the noble Lord, Lord Marks, that this is a small step on the way and that a change in culture is needed. Despite some of the very distinguished speeches made today by noble and learned Lords who have themselves been senior members of the judiciary, I am still left, as a layman, with the feeling that the very senior levels do not fully appreciate the impatience to see—and the importance of seeing—our senior judiciary better reflect the society which they serve. I understand that they believe that they are protecting the highest qualities and standards, and I need no persuading that the intellectual eminence and integrity of our judiciary is something in which we in this country can all take great pride. However, that does not mean that those important qualities can only be protected from a very narrow social base or from a single gender. I hear what the noble and learned Lord, Lord Hope, said about unfortunate timing, given that the noble and learned Baroness, Lady Hale, became Deputy President just when other changes were made, but I think that she will have many opportunities in the next three or four years to use this new and important position to achieve further diversity in the judiciary.

I am interested in the points that the noble and learned Lord, Lord Scott, made about dealing with incapacity. In one way, I am amazed that I went into great detail about the number of hoops that these regulations went through in terms of clearance with the senior judiciary, clearance with the Constitution Committee and the usual thorough going-over in both Houses. We have reached, as it were, the final lap. It is important to remember that the Lord Chancellor is not dealing with the issue in some casual way in saying that the Lord Chief Justice is incapacitated. I cannot imagine that either Parliament or the judiciary would remain silent in any way, were that the case. This is in the limited circumstances of the Lord Chief Justice’s functions relating to a senior selection panel, where the usual process set out in Section 16 of the Constitutional Reform Act would be inappropriate. One of the noble and learned Lords made the point that I am about to make, which is that this is to avoid the risk of any perceived conflict of interest, given that the heads of division may themselves be applicants for the office of Lord Chief Justice. As the Lord Chief Justice selects the fifth member of the panel, it would enable them to have a say in the membership of the selection panel if they determined that the Lord Chief Justice was incapacitated.

The draft regulations in turn replicate the transitional provision, new Section 71B(3), as detailed in Part 5 of Schedule 13 to the Crime and Courts Act 2013, relating to the functions of the Lord Chief Justice. They are also consistent with the approach set out in the draft Supreme Court Regulation 7(2)(a) for determining whether the President is incapacitated, which in turn is based on paragraph 5(1) of Schedule 8 of the Constitutional Reform Act 2005.

Noble Lords will realise I did not make that up in my head. That is the position as the Government see it. I will take back the fact that noble and learned Lords have raised this, but I do not think it is quite a case of the grand “off with his head” Lord Chancellor dealing imperiously with a recalcitrant Lord Chief Justice, which perhaps was the tenor of some of the interventions. We are confident that this process will be an appropriate test in what are obviously very exceptional circumstances.

The noble Lord, Lord Jones, asked me how ordinary people were to be consulted in these matters. It is a little bit difficult to imagine a kind of “X Factor” for the post of Lord Chief Justice. We do our best, and these reforms try to make it more inclusive. Unless we were to go down that rocky road of electing judges, as is the case in the United States, I think what we are trying to do here is be more responsive. I am told that the First Minister of Wales was informed at the same time as the Lord Chancellor. I think that was probably the right time.

I have been asked what progress has been made on diversity. My blunt answer is “not enough.” The noble and learned Lord, Lord Hardie, asked whether the CILEx member would be involved only in specific panels. No, he or she would be a full member of the panel and would go on to selection processes as appropriate and as available. The noble and learned Lord, Lord Brown, again raised the incapacity question. The Government believe that the relevant situation would comprise very narrow circumstances in which the Lord Chancellor himself would be watched like a hawk.

I thank the Minister for allowing me to intervene on this. I do not have any legal qualifications, but I understand employment relations. I am grateful that the Minister has agreed to take this incapacity issue back because I think it is important to look at it from an employment relations point of view, if only to refer to agreed procedures in the regulations. That might see the issue out.

I think that there has to be transparency about the procedures. The circumstance might be very narrow, it might be extremely rare, but it is always those narrow and rare occasions which come under the spotlight. I think it is also a case of how the people who work in that environment feel about the fact that they could be treated in this way. I think there is an important issue as regards referring to some accepted procedure for the Lord Chancellor to go about in taking his or her decision.

First, I am sure that those who produce Hansard will know this, but I think that I said that the noble and learned Baroness, Lady Hale, was a candidate for Lord Chief Justice. I was of course referring to Lady Justice Hallett, but I know how wonderful Hansard is at making sure that “ums”, “ahs” and mistakes miraculously become eloquence the following day.

I must be clear on this: I cannot take back the order. I am not empowered and, as I made very clear, these three orders have gone through a considerable mincer. What I have said I will do is draw to the Lord Chancellor’s attention the concerns that have been expressed today, the broader concerns of noble and learned Lords, and the noble Baroness’s particular concerns from the point of view of what I would call human relations. I will ask him to consider the points that have been made. If this is genuinely a mistake, a lacuna, or something that needs further action, I am sure that there are ways and opportunities to do so.

I hope that this very useful debate, which has covered a wide area, has given us an opportunity to air a number of important points. In the end, however, it is worth remembering that these statutory instruments build on the ambitions of previous Governments to make our judiciary more diverse and the method of selection more open. To go right back to the noble Lord, Lord Marks, yes, there is still a long way to go and these are perhaps timid steps, but they are steps in the right direction and I hope that they will have the support of the Committee.

I should just express my concern about the reference to CILEx. I fully appreciate that CILEx members should be members of a commission appointing a tribunal where they have experience, but the whole point of having legally qualified members of the commission is to have people who have experience of the courts within which they appear. That is why we are talking about barristers or solicitors of the Supreme Court. When it comes to those other courts, the CILEx member will have no experience of that and he or she will effectively be an additional lay member, so the balance of the commission is being skewed. I invite the Minister to reflect on that and perhaps come back with an amendment to confine the involvement of CILEx members to jurisdictions where they practise and have some experience. It is important that we should be aware of the legal qualifications and legal ability of the people presiding over courts in which they do not appear.

I hear what the noble and learned Lord, Lord Hardie, says. As with the other point, I will take it back. We have to get the balance right between panels that are suitably qualified so that they know what they are doing and panels that choose “chaps like us”. That debate will go on.

I should say that I am not from this jurisdiction. I have no experience of this jurisdiction and I was not advocating an appointments process on the basis of appointing “chaps like us”. I was trying to confine myself to the regulations. The regulations themselves set out the basis on which the commission is to be composed. It is to be composed of so many judges, so many lay people and so many legally qualified people. The point of legally qualified people—that is, barristers and solicitors in the Supreme Court in England and Wales—is that these men and women have experience of that jurisdiction and know what is required of people exercising that jurisdiction. I can understand the Government’s desire to involve CILEx in tribunal appointments because that is a jurisdiction of which its members have experience. I am not advocating jobs for the boys but trying to adopt a sensible approach to these regulations. If you appoint a member of CILEx to sit on a commission which is appointing a judge of a higher level than that of a tribunal, effectively you are adding an extra lay member and you do not have the balance that the regulations suggest.

I repeat that these regulations have gone through the most thorough mincer in gaining the approval of the Lord Chief Justice and the President of the Supreme Court. They have been examined by the Constitution Committee and very thoroughly by both Houses. I think that the noble and learned Lord, Lord Hardie, is making a new point. I can only take it back to colleagues but that was not how we saw the position in terms of having CILEx members. I think that a CILEx member is now a judge, although admittedly of a tribunal. CILEx members can apply for judicial office. Although I cannot withdraw the regulations, I will draw this to the attention of the Lord Chancellor and—

My Lords, I wonder whether part of the answer to this is that membership of CILEx is one of the three possible qualifications. Members of CILEx are practising in all fields of the law. All this is saying is that a member of CILEx can be appointed to the commission. It has nothing to do with the possible appointment of a CILEx member to a judicial post.

That is most certainly true. When I saw the noble and noble and learned Lords gathering, I should have known that this was not going to be an easy task. One of the great benefits of the House of Lords—those who know that I am an avid reformer should take note of this—is there are not many places where one could get such profound legal advice so cheaply. For that, I am extremely grateful to noble and noble and learned Lords. I would again ask that they pass these regulations, but with the firm promise that the points that have been raised will be drawn to the attention of the Lord Chancellor.

I hope that the noble Lord can clarify a matter for me. My understanding is that this has to go before the House, which must pass the affirmative resolution. The matter cannot be dealt with finally just by this Committee.

It will go before the House where, I am sure, having listened to my explanations today, I will have at least a dozen strong supporters in favour of adopting these regulations.

Motion agreed.

Judicial Appointments Regulations 2013

Considered in Grand Committee

Moved by

That the Grand Committee do report to the House that it has considered the Judicial Appointments Regulations 2013.

Relevant document: 6th Report from the Joint Committee on Statutory Instruments.

Motion agreed.

Supreme Court (Judicial Appointments) Regulations 2013

Considered in Grand Committee

Moved by

That the Grand Committee do report to the House that it has considered the Supreme Court (Judicial Appointments) Regulations 2013.

Relevant document: 6th Report from the Joint Committee on Statutory Instruments.

Motion agreed.

Offender Management Act 2007 (Commencement No. 6) Order 2013

Considered in Grand Committee

Moved by

That the Grand Committee do report to the House that it has considered the Offender Management Act 2007 (Commencement No. 6) Order 2013.

Relevant document: 4th Report from the Joint Committee on Statutory Instruments.

My Lords, Sections 28 and 29 of the Offender Management Act provide for the polygraph testing of sexual offenders. Specifically, they enable polygraph testing to be included as an additional licence condition for adult sexual offenders. The Act required the provisions to be piloted in specified areas before full implementation. Those pilots took place in eight probation trusts from January 2009 to March 2012. As I shall come to explain, the pilot was successful. The purpose of this order is to commence the provisions fully, to enable polygraph testing to be included as a licence condition for sexual offenders throughout England and Wales rather than just in the pilot areas.

As noble Lords may be aware, a polygraph is a device that indicates whether someone might be lying. More specifically, it measures changes in heartbeat, breathing rates and sweating. Changes in these activities can indicate whether an individual is telling the truth in response to a set of questions. The management of sexual offenders in the community is rightly a serious concern to the public. Having an objective assessment of how truthful or otherwise an offender is with his or her probation officer has the potential to make supervision more effective and hence might reduce the risk of further offending. The potential for polygraph testing as a tool for enhancing the effectiveness of the statutory supervision of sexual offenders was considered in the Home Office’s Review of the Protection of Children from Sex Offenders, published in 2007. That review recommended the piloting of polygraphy as a licence condition.

Following commencement of Sections 28 to 30, polygraph testing was piloted in the east and West Midlands from January 2009 to March 2012. In the pilots, adult sexual offenders released on licence into the pilot area had a condition to comply with polygraph testing included in their release licence. In these pilots, sexual offenders were polygraph tested during supervision to help assess whether they were complying with their licence conditions or their level of risk had changed. The polygraph was, of course, just one component of their supervision. Offenders were also subject to the usual supervision process, which includes regular reporting to a probation officer and may also include attendance on an accredited sex offender programme, help with substance misuse and assistance with accommodation or employment.

Polygraph testing was provided under a contract with the University of Newcastle. An independent evaluation study of the pilots was carried out by the University of Kent. The aim of the pilot was to find out whether polygraph testing was a useful additional tool for probation officers in their management of sex offenders in the community, who were on licence. In other words, the pilots set out to answer the question: is polygraph testing effective in helping to protect the public from serious harm?

The commencement order made under Section 41 defined the areas where the pilots would take place and their duration. The intention was that, on completion of the pilots, Parliament would consider their efficacy and whether polygraphy should be rolled out across the probation service in England and Wales. Any extension or expansion of the scheme may be made only with parliamentary approval. Now that the pilots are complete and have been evaluated, I am pleased to report that they were very successful.

I should, at this point, draw attention to a change in the explanatory memorandum provided to the Secondary Legislation Scrutiny Committee. The explanatory memorandum stated that 599 offenders from seven probation trusts were subject to mandatory polygraph testing during the pilot. Five hundred and ninety-nine offenders were tested across eight trusts during the entire lifetime of the pilots, which ran between January 2009 and March 2012, but the evaluation, which was conducted between April 2010 and December 2011, was based on the testing of 332 offenders in the pilot areas. In other words, testing started before the evaluation and continued afterwards, but only those tests undertaken during the period between April 2010 and December 2011 were used for the evaluation study. As the 599 figure was based on previously unpublished internal management information, officials advised that it would be more appropriate to use the publicly available evaluation data on 332 offenders, and the explanatory memorandum was amended accordingly. The evaluation is in no way diminished or affected by the changes to the original explanatory memorandum. The Minister for Prisons and Rehabilitation arranged for the original explanatory memorandum to be withdrawn and an amended version to be laid in its place. I know that the Minister has apologised to his colleagues in the other place and to the chairman of the Secondary Legislation Scrutiny Committee for this late change, and I should like to add my own apologies to noble Lords.

The evaluation is a robust study of the mandatory polygraph pilot. Outcomes for offenders who were subject to mandatory polygraph testing were compared with a similar group of offenders who were supervised in other probation areas where they did not use the polygraph as part of supervision. The evaluation found that the offenders subject to polygraph testing made more “clinically significant disclosures” than the comparison group. These are disclosures that led to changes in the way the offender was managed. Information disclosed as part of the polygraph process led to probation offender managers taking additional actions to manage the offender’s risk and to improve compliance with their licence conditions. This included, for example, changing the focus or frequency of supervision or, if combined with further information, recalling the offender to custody. The explanatory memorandum includes a link to the final published report of the evaluation study. That report provides full information on the effectiveness of mandatory polygraph testing during the pilot. In summary, it concludes that polygraph testing has the potential to lead to more informed and effective supervision by probation officers.

I am aware that there are a number of misconceptions about what a polygraph is and how it is used. Polygraphy is often seen in the entertainment industry, and if you search for polygraphy on the internet, you will find sites which tell you that it does not work and give advice on how to “beat” it. Opinion is divided about how accurate a polygraph is in detecting deception, but the US National Research Council indicates that the polygraph can obtain levels of accuracy of around 80% to 90%. This is clearly not the same as 100% accuracy but it is well above chance.

As part of the supervision of sex offenders, it is not the detection of deception that is the critical factor, rather it is the information disclosed by the offender before, during or after the polygraph test that is used to inform decisions about their supervision. In other words, it is less about “detecting lies” and more about gathering useful information to properly manage risk. For that reason—this is a point that I want to make absolutely clear—no offender will be recalled to custody as the result of a polygraph test alone. An offender will be recalled to custody only if there is additional information that they are not complying with licence conditions or that their risk to the public is increasing. In many cases, such information was volunteered by offenders in the pilots, when they were presented with the results of their tests. Nor will the polygraph be used to determine guilt or innocence. Indeed, Section 30 of the Offender Management Act 2007 specifically prevents any information obtained under the polygraph being used in criminal proceedings against the offender.

Breach action in relation to polygraphy, including recall to custody, can be instigated only if: an offender fails to attend a polygraph test; or, as a result of challenges from the test, subsequently disclosed information indicates that the offender is in breach of a licence condition or is an increased risk to the public; or, the offender fails to comply with the instructions of the polygrapher—including trying to beat the polygraph through use of countermeasures. Your Lordships may be interested to know that the most common supposed countermeasures, which include fidgeting, biting your tongue and clenching your toes, will be detected by the polygraph as these generally result in changes to the physiological measures that the polygraph is designed to assess. In summary, the polygraph test is used simply as an additional source of information by probation offender managers but it is a valuable one which, as I said, helps offender managers to manage offenders more effectively in the community.

Of course, if the polygraph test is to be useful, it is important that it is carried out in a properly regulated manner and only by suitably qualified and trained staff. During the pilots, the qualifications of the polygraph examiners and operating requirements for each polygraph test were governed by the polygraph rules, which were set out in a statutory instrument, the Polygraph Rules 2009. These rules were reviewed in light of learning from the pilots and are fit for purpose if, as I commend to the House, polygraph testing is rolled out more widely.

Protecting the public is our overriding priority. In particular, we are determined to do all we can to protect children and adults from sexual offending. To achieve this, we must do all we can to ensure that those who manage sex offenders in the community have the right tools and powers to support their work. The polygraph pilots have indicated that polygraph testing leads to improvements in the supervision of sex offenders in the community by providing probation offender managers with a valuable additional source of information with which to monitor licence conditions more closely. The Government therefore seek to make polygraph testing as a licence condition available for sex offenders throughout England and Wales. The draft order enables us to do that. I beg to move.

My Lords, we have heard a good deal about capacity and incapacity this afternoon. With respect, it does not say much for the capacity of the department that it clearly made an error in the way it presented the report to the Secondary Legislation Scrutiny Committee. It ought to be comforted by the fact that it was an error of only 40% compared with the 90% that appeared in the costing that it applied to higher-value claims in the criminal legal aid consultation paper—the department is moving in the right direction. In all fairness, it should be pointed out that the letter from the committee talked about “probationary trusts”, so capacity is perhaps an issue that extends to the committee as well as the department.

I very much welcome this report, for two reasons to start with: the whole scheme was started by the previous Government and Newcastle University was very much involved in it. Those are two grounds on which I could hardly fail to commend the Government for proceeding. It is right that the project should be taken forward.

I am slightly unnerved by the concept of polygraph testing. To me, it has echoes of “Minority Report”, the Tom Cruise film—I do not know whether the Minister saw it—in which, in a future world, technology is used to predict criminality by potential offenders and they are intercepted at an early stage. That nightmarish outcome is not envisaged under the regulations; on the contrary, they should assist in dealing with potential offenders. I welcome the assurance contained in the explanatory note, and given again by the Minister, that they will not be used as a basis for returning people to custody; nor will they be relied on in court proceedings. They are an indicator as to whether steps should be taken—additional supervision or the like—for offenders. That is a welcome limitation.

However, I have one or two questions. The discussion is about applying the polygraph tests to serious sex offenders. I am not clear what constitutes a serious sex offence for this purpose or how you define serious sex offenders. It would be helpful if the Minister could clarify that.

In addition, it is interesting that the process as currently envisaged sees the technician carrying out the test at the behest of a probation officer. Given the proposed changes in the probation service, do the Government intend that such an approach would always be supervised by a probation officer as opposed to some of the other people who will be carrying out supervision under the new contractual and payment-by-results system which the Government seem intent on pushing forward? Given the nature of the offences we are talking about, it would be preferable for these matters always to remain within the domain of the probation service.

The explanatory note refers to a national rollout targeting not only serious sexual offenders—a point I have already made—but,

“others for whom it is deemed necessary and proportionate”.

Again, can the Minister give an example—if not today, subsequently—of what is envisaged by that rather broad phrase? It seems to me that both parts of that phrase need to be more clearly defined.

In debate in the House of Commons, my honourable friend Jenny Chapman asked whether all sex offenders should be covered by the procedures, as opposed to serious sex offenders only, however defined. There is capacity, it is noted in the note, for a further 200 sexual offenders to be built into whatever contract is eventually arrived at—hopefully not with Group 4 or Serco—for this. That would be in addition to the 750 per year which it is anticipated would be subject to mandatory testing. Actually, the report states that the most recent figure is 780. So we might be talking about 1,000 people altogether, with that extra capacity of about 200.

The question arises whether that will be sufficient. It was argued quite forcefully by the Minister replying to the debate in the House of Commons, Mr Wright, that there was a cost factor here. One understands that, but the cost of this project is estimated at about £3 million. If every sexual offender were to be tested—although I am not suggesting that—that would increase the cost to, say, £12 million. Given the nature of the offences, I wonder whether the financial consideration should be all that material. I repeat that I am not suggesting that everybody should be tested, that would not be sensible—but I hope that an artificial financial limitation will not be imposed on the procedures. That would be a matter of public concern, whereas this whole proposal should reassure the public that their safety is likely to be enhanced by the process, with all the safeguards and qualifications to which the Minister has referred.

The Opposition approve the thrust of the report, and I look forward to hearing from the Minister about the queries that I have raised—either today or subsequently.

My Lords, I thank the noble Lord, Lord Beecham, for that response. As I made clear in my speech, the department regrets the error that was made, but at least we got good marks from him for our choice of university, so I have come out of this with some merit. I am not a great Tom Cruise fan and I have not seen “Minority Report”, but that is probably a generational thing. I started off with the same scepticism about polygraphs, mainly because of my addiction as a child and a young man to American B-movies where they quite often played a key part. I am thinking of Broderick Crawford exposing the villain.

The noble Lord said that making it available for all sex offenders was a consideration at one point, but the way we are approaching this enables us to target resources on those offenders who are likely to cause the most harm to the public. It will be for serious sex offenders, and just to clarify another of his questions, it will remain part of the public probation service. All offenders released on licence for sexual offences will be managed under the multi-agency public protection arrangements. All MAPPA cases will be retained by the public sector. This means that the providers of polygraph testing will work with offenders who are managed by retained public sector staff. We will ensure that all staff working with high-risk sexual offenders are appropriately trained and supported in how to use polygraph testing to enhance the effectiveness of the statutory supervision.

The noble Lord asked how the choice will be made. It will be made where the MAPPA process indicates sexual offenders who are assessed as being at high risk of both reoffending and causing serious harm. By doing this, it enables us to target resources on those offenders likely to be the most dangerous to the public. As the noble Lord said, I do not think that cost should be the decisive factor, although of course it has to play a part in deciding what we can afford in taking this forward, but more than cost it is a matter of proportionality. It is a useful tool for the offender manager. I am glad that he acknowledged that the whole thrust of both the pilot and now the proposal is to add an extra piece of equipment to the armoury of the offender manager so that he or she can make a better informed assessment of the danger to the public of a sex offender and thus take forward appropriate treatment—including, if necessary, recall. The noble Lord indicated that this was an initiative of the previous Government which we have carried forward and which I think we can recommend to the House with cross-party support.

I am very grateful for that response. Could he, in due course, set that out a little more clearly? I revert to this question of what constitutes a serious sexual offence. There are some obvious things—rape, attempted rape—but you get down to indecent assaults and so on. Are you going to be weighing, for example, a lesser offence by a record that suggests that it has been repeated, although it is not of itself a serious offence? In other words, what is the composition? That needs a little bit of elucidation. I am not asking for that now. Also, is there any chance of this system being extended to politicians or even Ministers?

Even as I was speaking I was conscious that I was sweating but that is more because of our heat wave. Whenever you use words such as “serious” in part that is the professional judgment of the probation officers. It is their judgment and assessment of future danger and risk that qualifies them for this kind of assessment. The intention in bringing this forward is showing that assessing future risk is itself a risky business. We feel that this use of polygraphs as a tool in a wider range of skills and judgment by the probation officers is a useful addition—no more, no less. With that, I recommend the order to the Committee.

Motion agreed.

Committee adjourned at 6.02 pm.