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Grand Committee

Volume 748: debated on Tuesday 15 October 2013

Grand Committee

Tuesday, 15 October 2013.

Legal Aid (Information about Financial Resources) (Amendment) Regulations 2013

Considered in Grand Committee

Moved by

That the Grand Committee do report to the House that it has considered the Legal Aid (Information about Financial Resources) (Amendment) Regulations 2013.

Relevant documents: 2nd Report from the Joint Committee on Statutory Instruments.

My Lords, the draft Legal Aid (Information about Financial Resources) (Amendment) Regulations 2013 amend the Legal Aid (Information about Financial Resources) Regulations 2013 that came into force on 1 April this year. The draft regulations make provision in relation to requests for information by the Director of Legal Aid Casework to the Secretary of State for Transport to facilitate a determination for the purpose of legal aid that a relevant individual’s financial resources include an interest in a motor vehicle. This amendment is intended to support the Criminal Legal Aid (Motor Vehicle Orders) Regulations 2013 that came into force on 30 July this year. These provide for mechanisms of enforcement in relation to unpaid contributions towards the cost of criminal legal aid in the Crown Court imposed under the Criminal Legal Aid (Contribution Orders) Regulations 2013.

The motor vehicle orders regulations authorise the magistrates’ court to order the clamping and sale, through motor vehicle orders, of an individual’s vehicle when the contribution required to be paid by the individual towards their Crown Court legal aid costs is overdue. Before granting a motor vehicle order, the court must be satisfied that the defendant owns the vehicle, and it is for this purpose that the amendment before the Committee is significant. Requests for information by the Director of Legal Aid Casework to the Secretary of State for Transport, in practice the DVLA, in accordance with the amendments made by these draft regulations will enable the director to confirm whether an individual is the registered keeper of a particular vehicle. If the individual is the registered keeper of that vehicle, the director will also be able to request any particulars contained in the register in relation to that vehicle. An applicant for legal aid is required to indicate in their application whether they, alone or with anyone else, own a motor vehicle, and if so, the registered vehicle number of that vehicle. The individual’s statement that they own a vehicle, taken together with the DVLA’s confirmation that the individual is the registered keeper of the vehicle, will be a way of evidencing that the individual owns the vehicle for the purposes of the motor vehicle orders regulations.

These draft regulations also add the Armed Forces Independence Payment to the list of prescribed benefits in the schedule to the 2013 regulations. If an individual is in receipt of a prescribed benefit, the director may request information about the benefit from various other government departments, including the amount the individual is receiving. Due to the timing of the secondary legislation that created the AFIP, it could not be included in the schedule when the 2013 regulations were first made; it was always intended to add the AFIP to the schedule at the earliest opportunity.

Having accurate information about the financial resources of an individual who is applying for or in receipt of legal aid is an important part of ensuring that only those eligible for legal aid receive it and that those who can afford to contribute to the cost of their legal representation are made to do so. I should stress that the proposed data sharing arrangements with the DVLA will in no way impact on defendants, solicitors or courts in terms of forms or process. There is therefore no risk of any delay to existing court proceedings or any additional burden on court users. As was the case with the original 2013 regulations, nothing in these regulations dilutes the Government’s obligation to protect an individual’s personal information and to maintain confidentiality.

These draft regulations support the Government’s proposals to make the legal aid system operate more efficiently, and to improve confidence in the system as a whole by ensuring that those who are entitled to help receive that help while those who can afford to pay, do so. I beg to move.

My Lords, I begin by welcoming the noble Lord, Lord Bates, to the Front Bench. I am not sure that he has a relevant interest—to quote the appropriate phrase, perhaps—in these regulations, but it is good to see another Peer from the north-east occupying a position of some influence, I hope, with this Government.

The regulations refer to an “interest” in a motor vehicle. That can take more than one form and need not necessarily be ownership. Presumably, somebody might be the keeper of a vehicle which is rented or hired, or indeed owned by somebody else, and I am not quite clear how the regulations would apply in those circumstances. It is also interesting that the explanatory notes refer to the fact that details of the scheme were to be published in an addendum to the consultation response alongside an updated impact assessment. I do not know whether that has been published and I confess that I have not been able to find an impact assessment. Will the noble Lord indicate what the potential impact is, for example, in terms of the number of vehicles that might be expected to be reported and, for that matter, the number of vehicles about which action might be taken, presumably in taking possession of those vehicles?

Will the noble Lord also indicate the approach that will be taken in relation to possible removal or disposal of such a vehicle and what criteria would be likely to be applied? For example, if someone, whatever his involvement in an offence might be, was dependent on having transport, for example, to work, would that be a material factor or would the process be directed simply at taking into account a financial recovery? Presumably, if a contribution was sought from somebody, he would be expected to dispose of any financial interest in the vehicle, which could conceivably cause difficulty. Is a process to be directed to that question? What other impact is anticipated in relation to the application of the order?

In relation to the other part of the regulations, given the concern about members of the Armed Forces, I find it a little surprising that a benefit specifically directed to, presumably, members of the Armed Forces who have suffered a disability, possibly in the course of their service, should be taken into account. Will the noble Lord inform your Lordships about the rationale for that? I appreciate that it might be regarded as analogous to the disability living allowance but one might have thought that, if a disability is incurred in the armed services, a rather different view might be taken. Will the noble Lord indicate the potential impact of this, in terms of the number of cases which it is envisaged might arise on an annual basis? Obviously, we are not going to take a point about these regulations, except to note that they seem to have been in force for some seven months before coming to this House for consideration. It does seem an inordinately long time after regulations have come into force to proceed with the process of parliamentary approval. None the less, we as an Opposition are not going to take any point against them as such.

My Lords, I thank the noble Lord for that helpful intervention. On the point about publication, the impact assessment was published on 5 July 2013. On discretion, the primary legislation already puts in a number of safeguards. The court may make a clamping order only if it is satisfied that a defendant’s failure to pay the amount sought was due to wilful refusal or culpable neglect. The clamping order must not be made unless a defendant has an interest in the vehicle, and a clamp may not be fitted to a vehicle that displays a current disabled person’s badge. So safeguards are there. The court may grant an order only if the individual has an interest in the vehicle. If the individual shares a vehicle with their spouse or partner, this would be sufficient. However, we would not go after a vehicle which was the subject of a hire-purchase agreement, for example.

I appreciate the noble Lord’s probing. I was one of the initiators of this tightening of the regulations, because I had in my mind the idea of the drug-pusher who was kingpin of his estate and who seemed to be able almost to defy the law by driving around in a swanky car. It might at least send a message to those who saw him as a role model if his swanky car was taken off him. However, I understand that that needs to be carefully balanced against other matters in law—and I think that it is balanced.

On the Armed Forces matter, AFIP is a benefit for Armed Forces veterans to protect them from any possible financial detriment as a consequence of the replacement under the Welfare Reform Act 2012 of disability living allowance with personal independence payments from 8 April 2013. Like the DLA and PIP, AFIP is a benefit which is deducted from the gross income of an individual when their eligibility or liability to make a contribution towards the costs of legal aid made available under Part 1 of the Act is being calculated. It is therefore four-square with other benefits in that respect. With those assurances, I commend the regulations.

Motion agreed.

Court of Appeal (Recording and Broadcasting) Order 2013

Considered in Grand Committee

Moved by

That the Grand Committee do report to the House that it has considered the Court of Appeal (Recording and Broadcasting) Order.

Relevant documents: 8th Report from the Joint Committee on Statutory Instruments

My Lords, when I first looked round the Committee, I thought we were at a casting session for a future television programme.

The order before us today sets out the conditions under which the recording and broadcasting of footage in the Court of Appeal Civil and Criminal Divisions will be permitted. Before setting out further details about this order, I will briefly explain some of the background to this policy.

There is evidence to suggest that the more informed people are about the justice system, the more confidence they will have in it. Few people have direct experience of court proceedings, and public understanding of how the justice system works is limited. In principle, the majority of our courts are open to all members of the public who wish to attend, but in practice very few people have the time or opportunity to see what happens in our courts in person. The justice system is viewed by many as opaque and complex. We believe that we should make our courts more accessible and make it easier for the public to understand court proceedings.

Increasingly, people rely on television and the internet for access to news and current affairs. It is right to respond to changes in technology and society and to allow cameras into our courts, but it is important to do so in a balanced way which will protect the individuals involved and preserve the dignity of the courts.

Currently the recording and broadcasting of footage in courts below the UK Supreme Court is prohibited by Section 41 of the Criminal Justice Act 1925 and Section 9 of the Contempt of Court Act 1981. Section 32 of the Crime and Courts Act 2013, which received Royal Assent in April, enables the Lord Chancellor, with the agreement of the Lord Chief Justice, to create an order specifying the circumstances in which the prohibitions contained within the Criminal Justice Act and Contempt of Court Act may be disapplied. The Court of Appeal (Recording and Broadcasting) Order 2013 is the first order to be made under that power, and sets the conditions under which the statutory prohibitions on recording and broadcasting will be disapplied to allow for recording and broadcasting of footage from the Court of Appeal. Any breach of the terms of the order may amount to contempt of court.

Recording and broadcasting of footage will be only of specified proceedings, as laid out in Article 5 of the order, where these proceedings are in open court and in front of a full court. Media parties may film only advocates’ submissions, exchanges between advocates and the court, and the court giving judgment. Filming of any other individuals—including appellants, members of the public, victims and witnesses—is not permitted. In cases where any party is not legally represented, only the court giving judgment may be recorded.

So long as any applicable reporting restrictions would not be breached by broadcasting, in many cases footage may be broadcast “almost live”, subject to a 70-second time delay, as agreed between media parties and Her Majesty’s Courts and Tribunals Service. We believe, however, that in some cases it is necessary to impose restrictions on broadcast in order to prevent prejudicing any potential future retrials, and to protect the interests of justice.

For this reason, any footage of proceedings where a retrial has been ordered may not be broadcast unless the court gives permission to do so. This means that in those cases where a retrial might be ordered, such as appeals against conviction, the court must give its permission before any part of those proceedings may be broadcast. Where a retrial is not ordered by the court, media parties may show footage immediately after the conclusion of proceedings. In certain limited circumstances, the court may give permission to broadcast even these cases from the outset. But until the conclusion of the case, the decision is solely for the judges in that appeal.

It is important for justice to be seen to be done but this cannot be at the expense of the proper administration of justice or the reputation of the courts. The courts deal with very serious matters that can affect the liberty, livelihood and reputation of all the parties involved. Therefore, we have taken steps in order to ensure that any report or presentation using footage recorded in the Court of Appeal should be presented in a fair and accurate way. It will have to have regard to the overall content of the presentation, and to the context in which the broadcast footage is presented. Furthermore, footage may not be used in party political broadcasts or for the purposes of advertisement or promotion. It cannot be used for the purpose of light entertainment or satire.

The technical and operational details governing the recording and broadcasting of footage from the Court of Appeal will be set out in writing and agreed between the judiciary and the media parties. This will be annexed to the written authorisation of the relevant media parties by the Lord Chancellor.

When the broadcasting provisions were debated in this House during the passage of what became the Crime and Courts Act 2013, concerns were expressed that the introduction of cameras into the Court of Appeal, while broadly supported, might be the thin end of the wedge and lead to the undesirable broadcasting of trials and proceedings in the lower courts. I reiterate the assurance given at that time that any extension to the circumstances set out in this order will require a new order that will require the agreement of the Lord Chancellor and the Lord Chief Justice, and the approval of both Houses of Parliament under the affirmative procedure.

We are conscious of the concerns that were raised regarding victims and witnesses, and of the perceived potential detrimental effects that court broadcasting might have on their experiences in court. In particular, the comments made by the noble Baroness, Lady Kennedy, during the passage of the primary legislation through Parliament, as well as a report by the Joint Committee on Human Rights, led directly to the publication of a full impact assessment alongside this order, and to our continued engagement with interested parties.

It is rare that a victim or witness will appear in person at the Court of Appeal, as the majority of cases will be appealing a point of law rather than the facts of the case. However, in the event that they are present, a number of safeguards will be in place to minimise any potential impact that broadcasting may have. As I said, the order does not permit filming of any victim or witness. Nor does it permit the broadcasting of any footage of them. In addition, existing reporting restrictions will continue to apply, and Section 32(3) of the Crime and Courts Act 2013 provides that the court may stop or suspend filming, or prohibit broadcast, in the interests of justice or to prevent prejudice to any person.

The Government are committed to increasing transparency and to providing the public with the information they need on the operation of public services. The justice system is no exception. To many people, the law remains mysterious. Public understanding of how the courts work is critical to confidence in the system and to its effectiveness in ensuring that justice is done. This order will allow for greater visibility of the courts, without undermining the seriousness and diligence that are central to the quality of our justice system.

I hope that, in making the presentation, I made it clear that we know that we are going into new territory. Certainly the observations of this Committee will be greatly valued. In the mean time, I commend the order to the Committee.

My Lords, I very much welcome the order. I rise to speak because I have some experience of the operation of a very similar system, which I introduced 20 years ago in Scotland. The position there is that there is no statutory restriction on the filming or audio recording anything that happens in any court. The matter is controlled entirely by the judiciary. When I became Lord President, it seemed to me—very much for the reasons given by the Minister in his opening remarks—that the public would benefit from seeing a little of what happened in the courts, and would thereby understand a bit more about how the process of justice was being administered. The opening remarks of the Minister were precisely to the point, and I very much agree with the reasons he gave for making this order.

On the other hand, I set as my criterion in deciding what to do about the other point that the Minister made, which was that the administration of justice and the respect that is due to the court itself were absolutely fundamental to any relaxation that might be made on any blanket restriction on the use of cameras or audio recording. The system which I set up was rather a modest one, but is almost exactly that which the Minister has put before this Committee. It depended entirely upon the consent of the court to the use of this equipment. Since we were allowing trials to be considered for audio and television purposes, it would require the consent of a lot of other people as well.

This is a very modest step, because it looks only to the Court of Appeal process. That is a good deal easier than the system at which I was looking. Nevertheless, I have one or two remarks. It is of course very different from the system from which I have just come in the UK Supreme Court, where there is a live feed of the hearings on Sky, and our judgments, when we give them, are reported instantly on YouTube. I understand from comments that have been made to me that both these systems are widely used by the universities, which like to keep track of what arguments have been presented to the court and what judgments have been given.

I do not think that, in not going that far, the Minister is making a mistake. When one looks to the Court of Appeal, as I was doing in Edinburgh, one has to be extremely cautious and move step by step. This step is carefully judged and very appropriate. However, I would like to suggest one or two points. First, the Minister might care to look for the future at the practice direction which I gave in 1992, which set out one or two other points to which people were expected to adhere. I do not have a copy with me today, but it is available in the usual way and provides some guidance to the way the system is operated in Scotland.

Secondly, to give noble Lords a little idea of how the system is actually used, one of the points which came over clearly to us was that the broadcasting corporations want quick feed for news broadcasts but do not have available space for a good deal of dispute and discussion in court unless, as Sky does, they provide it live on a feed which is simply available all the time. I cannot see the live system working here because, quite rightly, there is a check on what is being put out, so that the court must give its permission. The Minister said it could be almost live but cannot be actually live; I fully understand that. That being so, the use that could be made of argument would be rather limited.

However, I see real value in the broadcasting of, at least excerpts from, what judges are saying when dealing with an appeal against sentence. I confess that once or twice in the past two or three years I have wished that the noble and learned Lord, Lord Judge, who was sitting as Lord Chief Justice, had been seen on television. I knew that his remarks were extremely well judged, but I would have thought that they would have carried much more weight if people had seen him actually saying them. That will be the great value of this in the future, almost certainly the most valuable from the court’s perspective and also from the point of view of the broadcasters.

Two things may be missing here. First, in Scotland, we find that the television companies now mostly use the system for ceremonies that take place in court. When a new judge is introduced, which happens fairly frequently these days, there is a fairly colourful ceremony which takes place in court. When the First Minister for Scotland is sworn in, that takes place in court as well. These things do not happen, of course, in the Court of Appeal. On the other hand, things do happen in the Lord Chief Justice’s court which might be of interest to the public, and they are not on the list of things which can be broadcast. It may be that experience will allow for a little bit of relaxation to allow that kind of thing to take place; for instance, when a new Lord Chief Justice is sworn in.

The other thing is documentaries. I think—but I would be grateful if the Minister could confirm—that the recordings referred to here would be available for broadcasters for use in documentaries. That was what happened in our experience in Scotland. Six programmes were made to show trials as they happened and, in one or two cases, the appeals that followed after trial. There has been another one very recently in Scotland, the case of Nat Fraser, where the same technique is being used. It has been broadcast, using recorded material from the proceedings in court. I can see some interest in the way this is done, although of course it will lack the draw for the broadcaster of having the evidence, but at least some of the argument could be helpful. It would be interesting to know whether documentaries would be covered.

Those are the three points for further reference: first, checking how it is done in Scotland for some guidance as to how the system actually works in practice; secondly, ceremonies; and thirdly, documentaries. Otherwise, I very much welcome this measure and I am sure that in due course we will find it beneficial.

I really appreciate what the noble and learned Lord has said. Perhaps it is a factor of age but it is fair to say that I was the least enthusiastic of Ministers about this. I have used in ministerial discussions the term “slippery slope”. The noble and learned Lord’s endorsement is very clearly on the record. I am interested to know whether there has been any downside in Scotland. Has any abuse by the television authorities been later used to call into question a court judgment or anything like that?

No. I think I had the upper hand, to be perfectly frank. When I introduced it in 1992, the broadcasters understood that if they abused the rules, that would be the end of the system. My experience was that they stuck precisely to what we asked them to do. I was not aware of any abuse of the system. My noble and learned friend Lord Mackay of Drumadoon, who is more familiar with Scotland than I am, may have other experience, but that was my experience. Of course, as far as the Supreme Court is concerned, we have to keep a careful watch on what is being used and what is done with what is being used, but in my experience we have not been let down by that either.

I think the broadcasters will appreciate that this is very much up to them. If they abuse the system, that will be the end of it and judges will not give their consent. That is why that particular part of this order is so important. It is a crucial point of the whole system.

My Lords, the Opposition certainly support the Government’s intention in helping to make the legal system more transparent and to educate people in its workings. I am much encouraged by the remarks of the noble and learned Lord, Lord Hope, about the experience in Scotland. It would be interesting to know what the viewing figures are for these proceedings but at least we are clearly not in the realm of “Strictly Come Appealing” or possible interpretations of that kind.

Perhaps the Minister could indicate whether and at what stage there might be a review of the situation. Obviously, as the noble and learned Lord has said, if there were some transgression on the part of the media, judges could stop facilitating the process of broadcasting. But is there an intention—as in the normal course of events presumably there would be—to review the operation, and would that be in conjunction with the senior judiciary? We are limiting the arrangements, in the first instance at any rate, to the Court of Appeal. There would be concern if it were proposed to extend it to other, lower courts, particularly if witnesses and parties were to appear in broadcasts, but fortunately we do not seem to be following the American model of turning this into a source of entertainment rather than education. To the extent that this proposal will contribute to a better understanding of the legal system, it is certainly to be welcomed.

I had not understood the position in Scotland to have been as it has been described to us today. I pay tribute to the noble and learned Lord for having blazed a trail for what ought to be a distinctly progressive move towards enlightening the public and the users of the legal system about how it operates, at least on this important level, in addition to the broadcasts that currently take place of the Supreme Court itself, as the noble and learned Lord reminded us. We warmly endorse matters as they are laid before us and look forward to seeing how they progress in practice.

I am conscious that not every Lord Mackay has any right to say anything about the judicial system in England, and he should confine himself to the system to which he belongs, in Scotland. However, it might help Members of the Committee if I endorse what the noble and learned Lord, Lord Hope, has said here today.

My impression of the proceedings recorded in Scotland is that the lawyers and judges who took part were confident that the trust placed in the broadcasters was merited. I have heard no criticism of the recording or, ultimately, transmission, of the broadcasts. On the other hand, among one’s lay friends—including legal friends—who watch some of these programmes, there is a range of opinions on the success of the venture. Sometimes it is clear from questioning the viewer that he or she has not followed everything that was broadcast. One reason may be that a documentary can only last an hour or so but must represent filming of a trial lasting 10 days or 20 days, or whatever. To some extent the fact that programmes are sometimes misunderstood or not fully appreciated may—in a funny way—be a further justification for taking a small but very well thought-out step towards deciding whether broadcasting has a role to play in the judicial system in England.

My Lords, I am extremely grateful to both noble and learned Lords for giving us the opportunity to hear about the Scottish experience. I notice that the two juniors of the noble and learned Lord, Lord Hope, have remained silent during this debate, but I know that their presence is nevertheless welcome.

I think the Scottish experience has been trailblazing, and none of the fears I had about broadcasting the courts have applied to the Supreme Court. It has greatly enhanced public appreciation and awareness of the Supreme Court to have the live feed and the ability for the public to watch it at work. I am sure my officials have already taken note of practice direction 1992. The noble Lord is quite right that the question of ceremonies and swearing-in is not covered by this order, and I will reflect on that, because it would be useful. It would be nice, when a Lord Chief Justice hands over, if there was some kind of accompanying televisual ceremony. I agree with that. Furthermore, the broadcasters will be able to create documentaries. I understand there have been some good ones. There is one in my pile about a Scottish trial, made by Channel 4. I have not watched it yet but am told it is very good.

To be fair, the evidence is that this can be helpful. I am sure that all our views are coloured by the images of the OJ Simpson trial and the trial in South Africa, which seemed to move from court of law to three-ring circus very quickly. I remain cautious in this area, but the Committee can be doubly reassured because the Lord Chief Justice has gone through this at every step and, equally, any changes will have to be agreed by the Lord Chief Justice of the day. As I said, both Houses of Parliament will also have to be convinced. We have put in the safety catches—that is, if you can put safety catches on a slippery slope.

I am very grateful to the noble and learned Lords, Lord Hope and Lord Mackay, for what they said. We will review the arrangements in due course, including with the senior judiciary to make sure that it is comfortable with how they are working.

Motion agreed.

Police and Criminal Evidence Act 1984 (Amendment: Qualifying Offences) Order 2013

Considered in Grand Committee

Moved by

That the Grand Committee do report to the House that it has considered the Police and Criminal Evidence Act 1984 (Amendment: Qualifying Offences) Order 2013.

Relevant document: 8th Report from the Joint Committee on Statutory Instruments.

My Lords, the Government are committed to taking and retaining the DNA of people convicted of crime. This is particularly important for offences of a violent or sexual nature, where the transfer of DNA between victim and assailant makes the transfer of DNA more likely. Taking DNA helps solve historic cases and may deter future offending. The Government have supported wider powers to take DNA and fingerprints from those with past convictions. Armed with those powers, the police have carried out Operation Nutmeg, which involves taking DNA from those convicted of historic sexual and violent offences who were not sampled at the time.

As a result, DNA from more than 6,700 convicted offenders has been added to the DNA database. These include 1,494 people convicted of indecently assaulting a child, 304 convicted of gross indecency with a child, and 105 child rapists. However, the operation has brought to light an anomaly in the treatment of those convicted of sexual offences under past legislation compared with those convicted of equivalent offences under current legislation. This order addresses the anomaly and deals with a small number of other serious offences.

The need for the order arises from the way in which the Crime and Security Act 2010 gave the police powers to take DNA and fingerprints from those with past convictions if this had not been done at the time of the original arrest and conviction. This Act received Royal Assent in April 2010 and was brought into effect in March 2011. It created a list of qualifying offences. These are more serious offences, mainly sexual and violent.

The list of qualifying offences contains offences under current legislation, but not legislation which has been repealed. This particularly affects sexual offences, as the Sexual Offences Act 1956 was largely repealed and replaced by the Sexual Offences Act 2003, which came into effect in May 2004. So, for example, someone convicted of rape before 2003 has a conviction under the 1956 Act, but this is not a qualifying offence. However, someone convicted of rape in 2005 has a conviction under the 2003 Act, which is such an offence—hence the anomaly which this order seeks to address.

If people have past convictions for qualifying offences, the Act allows the police to take their DNA and fingerprints at any time if this was not done at the time of the original arrest and conviction. However, for those with convictions for other offences, this power lapsed two years after the Act was brought into effect—that is, in March 2013. The effect of this is that, since March, though there is a power to take DNA and fingerprints from a person with a 2005 conviction who was not sampled at the time, there is no such a power in relation to a person with a pre-2003 conviction. The order remedies this anomaly by adding sexual offences under repealed legislation to the list of qualifying offences. The order also puts those arrested or charged in the present day with sexual offences committed before May 2004, when the 2003 Act came into force, on the same footing as those arrested or charged with offences committed since then.

As noble Lords will know, under the new regime to be introduced by the Protection of Freedoms Act 2012 on 31 October, people arrested for or charged with, but not convicted for, qualifying offences may have their DNA and fingerprints retained for a limited period. In the case of those arrested but not charged, they may be retained for three years if the Biometrics Commissioner consents. In the case of those charged, they will be retained automatically for three years.

It can be seen that, as the law currently stands, these provisions will apply to a person arrested for or charged with a sexual offence committed after May 2004, which will fall under the 2003 Act. Noble Lords will realise that a person currently arrested for or charged with a sexual offence committed before May 2004 must be dealt with under the 1956 Act, because this is the Act that was in force at the time of the offence. So such a person cannot have their DNA and fingerprints retained for the additional three years if they are not convicted. By putting offences under the 1956 Act on the qualifying offences list, people currently arrested and charged with sexual offences will be subject to the same retention rules whenever the offence was committed.

The order also adds certain offences involving homicide, such as war crimes, infanticide and child destruction, to the list, for consistency with murder and manslaughter which are already qualifying offences. It also adds rioting and female genital mutilation because of the seriousness of those offences. This is a practical measure, as I hope that I have demonstrated, to remove some anomalies in the existing legislation which I hope will command the Committee’s general support. I beg to move.

I thank the Minister for his explanation of the terms and purpose this order. As he said, the rules relating to the retention of DNA samples by the police were changed under the Protection of Freedoms Act 2012 in the light of a European Court of Human Rights judgment. On this side, we felt that the changes pushed through by the Government went further than necessary. Currently, if a person is convicted, their DNA can be held indefinitely, except in a few specific types of case. Under the provisions of the 2012 Act that come into force at the end of this month, people arrested for, or charged with, qualifying offences but not convicted may have their DNA and fingerprints retained for a specified period. Those of people arrested but not charged may be retained for three years if the Biometrics Commissioner agrees. In the case of those charged, they will be retained automatically for three years. As the Minister said, qualifying offences are the more serious ones, which are mainly sexual and violent. As I understand it, the order ensures that offences under previous legislation that has now been repealed are included, so that biometric information can be taken where appropriate. The order provides also for those additional offences to be designated as qualifying offences, which addresses the issue of how long the biometric information can be retained. As the Minister said, the order adds further offences to the list of qualifying offences.

The issue that I will raise regards the actions that the Government may have been taking or not taking prior to the coming into force of the 2012 Act. It appears that police forces were told last year to start deleting DNA samples in order to comply with the provisions of the Protection of Freedoms Act 2012 that relate to the circumstances under which, and the length of time for which, such samples can be retained after this month when the provisions of the Act come into effect. However, the Government do not appear to have put into effect any interim arrangements to cover the fact that the appeals arrangements to the Biometrics Commissioner that the police can use when they do not think that it is appropriate to delete a sample in accordance with the provisions of the Protection of Freedoms Act 2012 were not in place, and do not come into effect until the end of this month.

Likewise, the arrangements for when the police feel that national security will be an issue if a DNA sample is deleted and so make their own determination not to delete such a sample do not come into effect until the end of this month. It appears that no interim arrangements were made to cover this situation, bearing in mind that the police were told last year to start deleting samples in accordance with the pending legislative requirements of the Protection of Freedoms Act. Under the 2012 Act, the police can make such a determination, which must then be reviewed by the Biometrics Commissioner. However, the powers of the commissioner do not come into effect until 31 October this year.

Apparently, the police have already deleted hundreds of thousands of DNA profiles and samples. A figure of 600,000 was mentioned. Why were they told to do so when the DNA retention arrangements were not in place? Or did Ministers have informal arrangements in place under which they would make a decision on whether the police could retain a DNA sample for longer than the time provided for in the 2012 Act, pending the coming into being of the Biometrics Commissioner and his or her statutory powers? Did Ministers make informal arrangements to address national security considerations by allowing the police to retain samples for longer than the time provided for under the 2012 Act, under which they would have to be deleted to comply with the terms of the Act and its provisions, which would take effect from 31 October 2013? As I understand it, the powers of the police to make their own determination in such cases, subject to review by the Biometrics Commissioner, do not come into effect until 31 October of this year.

When the order was discussed in the House of Commons last week, the Home Office Minister responding was asked if there were any examples of the police not being able to keep DNA samples when they wanted to. He replied that,

“the process for the implementation of the Protection of Freedoms Act 2012 … has been worked through closely with the police and other partners”,

and that he was,

“unaware of cases in which the police have expressed a desire to apply in this way. Indeed, the police clearly have the right from 31 October to make such an application to the Biometrics Commissioner”.—[Official Report, Commons, First Delegated Legislation Committee, 9/10/13; col. 8.]

I am not sure whether the answer to the question of whether there were any examples of the police not being able to keep DNA samples when they wanted to is yes or no, but it is to be hoped that the Minister will be able to throw some light on it since I am asking the same question of him.

The other interesting part of the reply from the Commons Minister was the statement that from 31 October the police clearly have the right to make such an application to the Biometrics Commissioner. That rather accepts that they do not have such a right until 31 October, which is precisely the point I am raising; namely, how have the police, faced with being told last year to start deleting DNA samples that cannot be retained when the terms of the Act come into force at the end of this month, been able to apply since last year for the retention or extended retention of samples which they deem it necessary to keep but which cannot be retained under the terms of the 2012 Act when it comes into force at the end of the month and when the procedure for enabling such applications to be pursued through the Biometrics Commissioner under the provisions of the Act do not come into effect until the end of the month? The effect of the Government’s actions appears to be that, for example, the police have been unable to retain or even apply to retain the DNA of someone arrested but not charged with serious offences such as rape, the sexual assault of a child or manslaughter since at least December 2012, and this government-created loophole lasts until the end of this month.

The Government had pledged that the police would be able to apply to the Biometrics Commissioner to retain DNA if, for instance, the victim is under the age of 18 or,

“the retention of the material is necessary to assist in the prevention or detection of crime”.

However, the mechanism for such appeals has not yet been brought into being by the Home Office, and rather than allowing the police to hold these data until the legislation has been implemented, the DNA records are apparently being deleted. Will the Minister indicate at what level within the Home Office the decision to proceed with the deletion of DNA records for those arrested but not charged with a qualifying offence was discussed and then made? Will he say how many police forces have ignored the demands to delete DNA samples in the interim period prior to the coming into force of the relevant provisions of the 2012 Act? Further, how many DNA records have been deleted, and what impact has this had on policing capability? Alternatively, will the Minister indicate that there is no truth at all in the matters I have raised? As regards the Home Office e-mail published by the Times as stating: “This record”—of someone arrested but not charged with rape—“will have been deleted as a part of the legacy deletions for stage 1a. As the individual was NFA’d and for legacy data, forces cannot apply to the Biometrics Commissioner for an extension, this will only happen from 31 October 2013”, will he indicate whether that was incorrect or was addressing a completely different and unrelated issue?

These are potentially quite significant issues around what has been happening during the interim period between the end of last year and the coming into force of the provisions of the Act. I accept that what I am saying may not be correct, but it is an issue that we on this side have raised before in the other place, and we do not seem to have had very specific answers to address our concerns. I hope that the Minister may be able to do so when he comes to reply.

My Lords, the noble Lord will know that the policy to delete the DNA records of innocent people is something that has been widely welcomed around the House and, indeed, by the Opposition. That work has been going on. It has created a gap which the noble Lord has pointed to; I have to acknowledge that. However, the Government and the police, in considering the management of the issue, have come jointly to the conclusion that there would be no retrospective applications to the Biometrics Commissioner. That is because to have done so would have required police scrutiny of the case file of every innocent person arrested for a qualified offence in the past three years. That is reckoned to be 180,000 case files. This was considered disproportionate to the circumstances which the new legislation is designed to address because, according to our knowledge of those files, it would have identified only a very small number of cases suitable for application to the Biometrics Commissioner. It would have significantly delayed the entire programme to delete innocent people from the databases. I do not think that the Government are seeking to make an apology for that decision, because we consider that Parliament’s wish was that the DNA of innocent people should indeed be deleted from the database.

Was it not also Parliament’s wish that there should be an appeal mechanism in existence before that happens? It does not come in until the end of this month.

Why did the Government not abide by Parliament’s wishes and not bring it in until the appeal mechanism was there, since Parliament wished that there should be one?

Because the deletion of DNA had been agreed by Parliament. The Government have been under considerable timetable pressure on that. As a Minister, I have been very much involved with the deletion of DNA records and that programme was under considerable pressure to be effected. We have had debates in the House on this matter, widely supported by the Opposition.

But was it not agreed by Parliament on the basis that there would be an appeal mechanism in place to which the police could refer cases if they had doubts about deleting them? I understand what the Minister is saying about the Government wanting to implement government policy in the form of legislation, but did that legislation not also provide for an appeal mechanism? That was a fundamental part of it.

I hope that I have reassured the noble Lord that the decision was taken, in conjunction with and with the agreement of the police, that this was the most effective way of implementing the policy, and of making sure that we implemented a policy on DNA deletion while ensuring that we provided proper and adequate facilities for the Biometrics Commissioner’s role to commence at the end of this month.

Motion agreed.

Armed Forces and Reserve Forces (Compensation Scheme) (Consequential Provisions: Primary Legislation) (Northern Ireland) Order 2013

Considered in Grand Committee

Moved by

That the Grand Committee do report to the House that it has considered the Armed Forces and Reserve Forces (Compensation Scheme) (Consequential Provisions: Primary Legislation) (Northern Ireland) Order 2013.

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

My Lords, I greatly welcome the opportunity to open this important debate. I am introducing this legislation specifically for those seriously injured service and ex-service personnel resident in Northern Ireland who are entitled to an Armed Forces independence payment, or AFIP for short. This legislation provides access to additional benefits, schemes and services, known as passported benefits.

Noble Lords will recall that I led a debate on 25 March this year introducing similar legislation for service and ex-service personnel residing in other parts of the United Kingdom. Today’s debate will ensure that AFIP recipients resident in Northern Ireland have similar access to passported benefits.

The changes to be debated are closely linked to the Government’s commitment to uphold the Armed Forces covenant, the key principles of which are to ensure that members of the Armed Forces community are not disadvantaged compared to other citizens in the provision of public and commercial services, and that special consideration should be given, as appropriate, in some cases, especially to those who have given the most—for example, the injured and the bereaved.

The covenant applies to the whole Armed Forces community, comprising service and ex-service personnel and their families wherever they are located, and the Ministry of Defence is keen to see it implemented widely. We recognise that the circumstances for the Armed Forces community in Northern Ireland are different, for reasons that are well understood.

For example, wounded, injured and sick personnel in Northern Ireland benefit from an extra level of support from the Personnel Recovery Unit based in Northern Ireland, and are currently part of a trial under which the Ulster Defence Regiment and the Royal Irish (Home Service) Regiment Aftercare Service provide welfare for them after they are discharged.

We are putting in place support and help for those who have suffered serious injury in the line of duty, and these provisions will further enhance that support. To explain the need for these regulations, it may be helpful if I provide noble Lords with some background.

In July 2012, the Prime Minister announced that the Government would simplify and enhance financial support for members of the Armed Forces who have been seriously injured, as part of the measures to uphold the Armed Forces covenant. My department worked closely with the Department for Work and Pensions to implement AFIP on 8 April 2013 across the UK, at the same time as the personal independence payment was brought in to replace disability living allowance as part of the welfare reform programme. The MoD also introduced a number of consequential amendments to put in place access to additional benefits and services for AFIP recipients in England and Wales. On 11 June 2013, similar legislative provisions were put in place for AFIP recipients resident in Scotland.

While the AFIP payment has been available to seriously injured service and ex-service personnel resident in Northern Ireland, the legislative changes to provide access to passported benefits have not been implemented. This debate will begin this process, with a second legislative amendment to follow in due course.

In order to establish access to two important “passports”, we are required to amend two other parts of primary legislation. That is what we will debate today. These minor but important legislative changes are in respect of, first, carer’s allowance and, secondly, the Christmas bonus.

The legislative change in respect of carer’s allowance will ensure that those who provide invaluable support to seriously injured members of the Armed Forces in receipt of AFIP have access to carer’s allowance in Northern Ireland from the Department for Social Development. Carer’s allowance is currently £59.75 per week. This change will make provision specifically for those who devote their lives to support our seriously injured people, providing some financial support for doing so. It is only right that a person caring for an AFIP recipient should have access to the carer’s allowance.

The provisions relating to the Christmas bonus will ensure that all recipients of AFIP automatically qualify for the tax-free, lump-sum Christmas bonus of £10, which is paid annually in Northern Ireland by the Department for Social Development.

By putting in place the provisions to enable AFIP recipients resident in Northern Ireland to access the additional benefits, schemes and services offered by other government departments, devolved Administrations and local authorities, the Government are giving them equal treatment to that offered to service personnel and veterans resident elsewhere in the UK. This is another example of the Government’s commitment to uphold the Armed Forces covenant.

It is important that we address these issues in order to meet the principles at the heart of the covenant across all Administrations for members of the Armed Forces and veterans who are seriously injured. I commend the order to the Committee and I beg to move.

My Lords, I welcome the order. It is a very worthy measure. Everyone in Northern Ireland is delighted that it is extending to Northern Ireland. I was not present when this was debated for the remainder of the United Kingdom. When the Armed Forces covenant first appeared, it was very welcome, but there was perhaps a little doubt about how it would benefit people and how it might be implemented, especially in Northern Ireland. The covenant was a stepping stone—or a foundation stone—for extending other things and showing better care support for all our soldiers, especially those who have been injured.

One could go into how difficult it was in Northern Ireland, but it is better to look at it the other way: thank goodness it has become slightly easier to introduce this in Northern Ireland. We know that there were issues with talking to the Northern Ireland Assembly, and it is most welcome that the talks went well and that we are now getting to the stage where we are able to give our soldiers, and especially our veterans, support that is equal to what they have here.

I was interested to hear the Minister refer to the aftercare service as being a “trial”. That was the first time that I had heard it talked about like that. I hope that he thinks that it is being tried because certain aspects might be very beneficial in the remainder of the United Kingdom.

Overall, this is a most welcome measure. We should not highlight the problems and how difficult the process was, but should welcome it as a great step forward.

I thank the Minister for the explanation of the need for, and purpose of, the order. As he said, it seeks to give seriously injured service and ex-service personnel in Northern Ireland who qualify for the recently introduced Armed Forces independence payment similar access to passported benefits to that of those who qualify for disability living allowance or the personal independence payment. As the Minister said, the Armed Forces independence payment was introduced in April this year. The statutory instrument providing for the payment covered all those eligible throughout the United Kingdom, including in Northern Ireland. The payment is to cover the extra costs that seriously injured personnel who meet the eligibility criteria may have as a result of their injury.

Two further statutory instruments enabled recipients of the Armed Forces independence payment to receive additional passported benefits to which they were entitled. However, as I understand it, these further statutory instruments did not include amendments to the related Northern Ireland passported legislation, which I believe related to allowances for carers and the entitlement of pensioners to a Christmas bonus. The Minister made reference to this. This point was the subject of a discussion that established that, in this instance, the relevant Northern Ireland legislation could be amended using powers under the Armed Forces (Pensions and Compensation) Act 2004, subject to the consent of the relevant Northern Ireland Ministers.

I have one or two questions to put to the Minister. I told him about them literally two minutes ago, which was somewhat remiss of me, so I fully accept that the answers may not be forthcoming this afternoon. I would be interested to know exactly how numerous or few are the relevant Northern Ireland Ministers whose consent has had to be sought and given. It would also be helpful to know how many seriously injured service and ex-service personnel will be covered by this order relating to Northern Ireland when it comes into force on 28 October.

I assume that the additional expenditure will be small, but perhaps the Minister could confirm that the cost will be borne by UK taxpayers as a whole and also say from which department’s budget the additional costs will be met. I notice that the title of this order refers to the Armed Forces and Reserve Forces. It would be helpful if the Minister could confirm that there is parity of treatment under the terms of this order between the two forces mentioned.

We want to see the spirit and intention of the Armed Forces covenant, and its commitment that members of the Armed Forces will not be disadvantaged by the nature of the responsibilities and role they undertake, applying in Northern Ireland, and we support the order.

My Lords, first, I thank the noble Viscount, Lord Brookeborough, for his support. I was heartened by what he said about the very positive changes in Northern Ireland. Secondly, I thank the noble Lord, Lord Rosser, for mentioning the Opposition’s support for this order.

The noble Lord asked some questions and I hope that I am able to answer them. First, he asked how numerous or few are the relevant Northern Ireland Ministers whose consent has to be sought and given. The answer is five, plus the Minister of State for Northern Ireland. The noble Lord asked whether the costs will be borne by UK taxpayers as a whole. The answer is yes, it will. He asked how many seriously injured service or ex-service personnel will be covered by this order relating to Northern Ireland. The answer is fewer than 20.

The title of the order refers to the Armed Forces and Reserve Forces. The noble Lord said that it would be helpful if I could confirm—I wrote this down—that there is parity of treatment under the terms of the order between the two forces. The answer is yes.

In summary, I will restate a point I made when I opened this debate. The changes debated today are closely linked to the Government’s commitment to uphold the Armed Forces covenant. It is only right that we provide access to additional benefits, schemes and services for the most seriously injured, wherever they are resident in the United Kingdom. I believe that these changes will go some way to achieve this.

Motion agreed.

European Parliamentary Elections (Amendment) Regulations 2013

Considered in Grand Committee

Moved by

That the Grand Committee do report to the House that it has considered the European Parliamentary Elections (Amendment) Regulations 2013.

Relevant documents: 8th Report from the Joint Committee on Statutory Instruments

My Lords, these regulations make updates to the rules for the administration and conduct of European elections. They flow from changes made for UK parliamentary elections in the Electoral Registration and Administration Act 2013 and associated secondary legislation, with which a number of us have been much concerned over the past two years. They also provide for the implementation of an EU directive concerning non-national EU citizens standing as candidates at European parliamentary elections, and make other changes to the administration and conduct of these elections.

These amendments are needed to support the effective administration of the European parliamentary elections that will be held on 22 May 2014. The measures are designed to improve the accessibility and security of the voting process and to implement a number of recommendations which have been made by, among others, the Electoral Commission and the Association of Electoral Administrators since the previous European parliamentary elections in 2009.

The Cabinet Office has consulted on these regulations with the Electoral Commission and with others such as the Association of Electoral Administrators, SOLACE and the territorial offices, and with colleagues in the Government of Gibraltar. We were fully involved in the discussions about the new directive with the European Commission, and have worked to ensure that its implementation is proportionate and workable in the UK context.

While the Electoral Registration and Administration Act made a number of changes to the rules for UK elections, which were set out in primary legislation, noble Lords will be aware that the rules for European elections are set out in secondary legislation. These regulations, therefore, make the corresponding updates for the European parliamentary elections.

I now turn to the key measures in the regulations. They enable postal votes to be despatched further in advance of polling day, which will be of particular help to those at remote locations, particularly overseas, including service voters, as it will give them more time to receive, complete and return their postal vote in time for it to be counted. Providing for postal votes to be issued as soon as practicable at an election will facilitate the early despatch of postal votes soon after the close of nominations, and earlier than the 11th day before the poll, which is the earliest postal votes may be issued to many postal voters at present. As a consequence of the earlier despatch of postal votes, the regulations also ensure that electors can continue to cancel their postal vote and arrange instead to vote in person or by proxy, provided that they do this before the postal vote application deadline—that is, at least 11 working days before the poll—and that the postal ballot papers have not already been completed and returned to the returning officer. This ensures that the current flexibility afforded to electors to change their voting arrangements is maintained.

The regulations also introduce a set of up to date voter-facing forms and notices, including poll cards, postal voting statements and the ballot paper, which are intended to make the voting process more accessible. This reflects moves in recent years to modernise the appearance of voter-facing forms at newly created polls such as the police and crime commissioner elections and the 2011 referendum on the parliamentary voting system. The revised material has been produced following a programme of public user testing and consultation with the Electoral Commission, the Association of Electoral Administrators, territorial offices, electoral services suppliers and with Scope.

Noble Lords will recall that, during the passage of the ERA Act, the Government listened to considerable parliamentary concern about the need to ensure that there is a mechanism in place to deal with any queues which might form at polling stations at close of poll, given the isolated but highly publicised instances of queues at polling stations at the 2010 election. These regulations therefore reflect for European parliamentary elections the Act’s provision for UK parliamentary elections, whereby voters waiting in a queue at the close of poll—that is, at 10 pm on polling day—for the purpose of voting, may be issued with a ballot paper and cast their vote. Let me be clear, however, that this provision is not intended as a substitute for proper planning by regional and local returning officers at elections. It is for these returning officers to make sufficient provision in the number of polling stations and staffing levels to manage the volumes of electors likely to vote at polling stations.

On a related note, these regulations contain a key measure to ensure that returning officers are accountable, reflecting as they do for European parliamentary elections the ERA Act’s provision for UK parliamentary elections whereby returning officers’ fees may be reduced or withheld by the Secretary of State following a recommendation by the Electoral Commission.

The regulations put into legislation that all postal votes are to be subject to a key security check, whereby the signature and date of birth on the postal voting statement are checked against records. This improves upon the current requirement to check at least 20% of postal votes. While 100% checking has been funded at previous elections and has been achieved by a large proportion of returning officers, we want to ensure that all postal votes are subject to the same high level of scrutiny.

The regulations also include a related measure which requires EROs to inform electors after a poll where their postal vote has been rejected because the signature or date of birth, which are used as postal vote identifiers, that they have supplied on the postal voting statement failed to match those held on record, or where they had simply been left blank. This is to help ensure that those electors can participate effectively in future elections and not have their ballot papers rejected at successive polls because of a signature degradation or because they are making inadvertent errors. This will help legitimate voters who submit their postal ballot packs in good faith to avoid their vote being rejected at subsequent elections.

It will also provide EROs with the flexibility to challenge postal votes where there is any cause for concern about their validity. Given that EROs will not be obliged to inform individuals where fraud is suspected, there is an opportunity for any such suspicions to be collated and reported to the police, where that is warranted. This measure ensures that particular attention is paid to the way in which mismatches appear and provides an opportunity to identify patterns or anomalies which may indicate that malpractice has been attempted. The regulations also permit those who had planned to vote in person but are called away at very short notice before polling day on business or military service to appoint an “emergency” proxy to vote on their behalf, which builds on the current facility for those taken ill.

The regulations also provide for police community support officers to enter polling stations and counting venues under the same conditions as police constables, in line with the corresponding provisions in the ERA Act. This will allow police forces additional flexibility in deploying their resources on polling day and allow them to provide a greater visible reassurance to the public.

Finally, the regulations implement a European Council directive that amends the existing Council directive, which provides that EU citizens living in a member state of which they are not nationals may vote and stand as a candidate in European parliamentary elections in their state of residence. The position at previous European parliamentary elections was that a candidate who wished to stand for election in the UK and who was an EU citizen, but not a UK, Irish or Commonwealth citizen, had to provide certification from their own member state of citizenship that they were not disqualified from standing in European parliamentary elections in that state when submitting their nomination for candidacy. Under the new directive, from the 2014 polls onwards, that will change and candidates or nominating officers will be able to ask the UK Government to request information from their home member state. This requirement is to be applied across all member states and is intended to remove a perceived barrier to non-nationals standing for election in the member states in which they reside. Furthermore, the existing provision allowing candidates to obtain the declaration themselves will remain in place as an alternative, should candidates and parties choose it. The Government will liaise closely with colleagues and regional returning officers in the process of implementing the directive.

Overall, these provisions make sensible and relevant changes for the conduct and administration of European elections in line with those being made for UK parliamentary elections. They are designed to increase voter participation, further improve the integrity of our electoral system and ensure that the processes underpinning our elections are both more robust and more relevant to the needs of voters. I commend these regulations to the Committee.

My Lords, I welcome these regulations and particularly like the Minister’s optimism about planning for queues at European elections. Let us hope that that problem arises and we can show that this new robust system actually works. Somehow I suspect that it might not be the case but let us hope so. I should perhaps declare an interest in that I am a director of a company that, as a minor part of its business, prints ballot papers, including, probably, for the European elections.

I welcome all the regulations but just wanted to check something around equal treatment. I am particularly pleased that it is now easier for non-nationals of the UK and Ireland to put forward their candidacy, and that there are fewer barriers to that happening. However, I would like to understand whether and how Irish and Gibraltarian—and even UK—citizens are checked for potential disqualification. I can see that we are moving towards national authority where European states other than the UK and Republic of Ireland are concerned, but do we check disqualification for people from Gibraltar, the United Kingdom and Ireland?

The other matter on which I wanted to catch up is the date for the European elections, where a range of dates is set. Have the Government considered moving to a Sunday, like most of the rest of the European Union? That could be an experiment to see whether we could increase voting by holding the election at the weekend. Can the Minister also tell me whether next year’s local elections will go back to June, or the date for the European elections?

Finally, a much more strategic question: when do the Government intend to introduce open lists—as opposed to closed lists—for these elections, so that citizens can make real choices, rather than ones thrust upon them by a clique of political parties—of which, of course, we are all members and should therefore declare an interest.

My Lords, on this side of the House, we welcome the regulations, including the provision for telling those whose postal votes are rejected the reasons for such a rejection so that they can correct the mistake next time. We welcome the checks on postal votes. Along with the noble Lord, Lord Teverson, we also welcome making it easier for people to stand for election in countries other than those where they are citizens.

Before going on to questions about the actual regulations, I draw the Committee’s attention to the fact—which has already been alluded to by the noble Lord, Lord Teverson, and by the Minister—that this election also covers the people of Gibraltar. With this in mind, we were concerned by the quite false suggestion made by the Minister’s colleague in the House on 10 October—whether on behalf of the Government or the Conservative candidates in the European elections we do not know. The noble Baroness, Lady Warsi said that,

“we are incredibly clear about the sovereignty and the sovereign position of the Gibraltarian people. It is nice to hear that the Opposition now share this view”.

My noble friend Lady Royall of Blaisdon remonstrated with this quite outrageous implication, saying,

“the Minister said that the Opposition now support the people of Gibraltar. I would like to make it clear, and have it on the record, that my party has always supported the citizens of Gibraltar and their self-determination”.

One might have thought that sufficient for the former chair of the Conservative Party, but she added insult to injury by saying:

“It is incredibly heartening to hear that. It therefore puts my mind at rest, certainly in relation to the potential sovereignty crisis”.—[Official Report, 10/10/13; cols. 177-78.]

I therefore ask the Minister, as he oversees all the rules and regulations, including these ones governing the European elections in Gibraltar, to ensure that the administration of the vote is carefully overseen by the Electoral Commission, so that it is fair to all candidates in the South West England constituency.

I turn to the question of the close of poll. Contrary to what the Minister’s then colleague, Miss Chloe Smith, said in introducing the regulations in the other House—words repeated today by the Minister—the Government did not listen to what Parliament said about the queue at 10 pm and being able to vote, and had to be forced to do so by a vote in this House. Sadly, the Government continue to fail to listen, including to the Electoral Commission, which has a certain professional expertise in these matters. They did not listen over that issue and they are not listening now over the Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Bill, where they failed to consult the Electoral Commission before dreaming up Part 2. They are still resisting a large number of concerns that the Electoral Commission has about it, in particular the demands on the commission to make new sorts of judgments and to register a swathe of new organisations and, in particular, its worry that it will not have the resources to do so satisfactorily.

However, this concerns the current regulations which, again, will require the Electoral Commission to produce guidance, particularly on the matter of the time when postal votes can be handed in. As the Minister knows, the commission continues to raise some important questions over that wording. Can he give us a reassurance that the commission will be able to manage all the new expectations being laid on it by the lobbying Bill, together with its work on these European elections, which are to run concurrently with the local elections?

I have two further minor points to raise. In the debate in the Commons, Mr Graham Stringer MP asked:

“Are the European regulations on personation the same as those that apply in our general elections? Is a record kept of ballot papers, as it is in general elections, if personation occurs?”.—[Official Report, Commons, Sixth Delegated Legislation Committee, 12/9/13; col 6.]

The Minister in another place promised him a written response. Unfortunately, I have not managed to locate it, but perhaps the noble Lord will be able to read the answer into the record today.

Finally, in earlier exchanges on other statutory instruments, I thought that every opportunity was going to be used to forewarn people about the forthcoming move to individual electoral registration. I was therefore very disappointed that in my own area, Camden, absolutely no mention of the move to IER is made on the latest registration form, which has been done in time for the European elections; nor, I am assured, do the forms for Harrow or Lambeth. Does the Minister know what action is being taken more generally to prepare for this somewhat hurried change? As he knows, the commencement order to bring IER into force is due to be made on 8 November. Can he confirm that that is still the date, especially as we have yet to see the details of the outcome of the live data-matching trials using DWP records, which took place over the summer? In some instances, they matched fewer than half of the records. We have not seen a list of the particular areas, but it may be that he has that information to hand. Perhaps he could also clarify how much work is due to be undertaken by electoral registration officers on IER at the same time as they are running the combined European and local elections. Most importantly, is he satisfied that they have the resources for both of these challenging tasks?

My Lords, I thank the noble Baroness, Lady Hayter, for that fighting speech which has enlivened our afternoon. I shall try to answer her questions as well as I can. The noble Lord, Lord Teverson, asked me about open lists versus closed lists. It is probably fair to say that there is no common view within the coalition on this, nor is there between the Government and the Opposition, so it is a matter on which we hope there will continue to be some form of debate. It is certainly the case that next year the local elections will be held on the same day as the European elections, on 22 May, but will then return to their otherwise normal date the following year.

He also asked about moving polling to a Sunday. All sorts of suggestions have been made for encouraging people to vote and making it easier for them to do so, including possibly having two days of voting over a Saturday and a Sunday. The problem with many of them is that the additional costs in staffing terms would be quite considerable, and thus these suggestions have not yet gained the degree of traction that I suspect the noble Lord might like.

On the question of how far we are checking the qualifications of voters in Ireland and Gibraltar, I had better write to the noble Lord to make sure that I get the answer entirely right. The noble Baroness, Lady Hayter, proclaimed the depth of the Labour Party’s commitment to the sovereignty of Gibraltar. Perhaps I might be allowed to repeat something that I said some years ago when this question came up. Under the 30-year rule, papers were released on discussions within the then Conservative Government in 1971-72, when a spat with the Spanish over Gibraltar was in full spate. The Foreign Secretary scribbled on one paper that perhaps one ought to consider possible alternatives. One alternative came up from a relatively junior member of the Foreign Office, who suggested that one might perhaps think of assigning the governance of Gibraltar to the Knights of St John on Malta. A senior official scribbled: “Have you ever met the Knights of Malta? You might as well give the sovereignty of Gibraltar to the Young Liberals”. The reason I use this example is that I once intervened on a Question under the Labour Government and the Minister responsible for negotiating with the Spanish Government had been the national president of the Young Liberals in 1971-72. I pass that on as an anecdote for a pub quiz, if the noble Baroness wishes to take part in one. I was very disappointed that the noble Baroness did not ask me how many postal voters there were on Gibraltar for the most recent European elections. I could have assured her that it was probably fewer than 100. The entire electoral roll is about 20,000.

I take her point about the demands on the Electoral Commission. We will come back to that in the transparency of lobbying Bill, which I am sure we will all enjoy discussing from Second Reading on 22 or 23 October.

On the question of personation, I am assured that the rules for personation in European elections are the same as those that apply to UK parliamentary and other elections. The intention of the regulations is precisely to reconcile as far as possible the regulations for national parliamentary, local and European elections.

I take the noble Baroness’s point that there is no mention on the papers going out at the moment of the move towards individual electoral registration. Perhaps I may take that back and be in touch with her again, because I entirely agree that we need to make people think about the change as soon as possible, and must consider how best to alert people about our move to it. I admit that, as usual, the effective head of my household filled in our Wandsworth and Saltaire election forms again this year, and that I did not check what she did. Therefore, I cannot tell the noble Baroness whether either the Bradford or the Wandsworth electoral forms alerted us to individual electoral registration.

I hope that I have answered all the questions that were raised in the debate, and I commend the regulations to the Committee.

Motion agreed.

Jobseeker’s Allowance (Domestic Violence) (Amendment) Regulations 2013

Considered in Grand Committee

Moved by

That the Grand Committee do report to the House that it has considered the Jobseeker’s Allowance (Domestic Violence) (Amendment) Regulations 2013.

Relevant document: 8th Report from the Joint Committee on Statutory Instruments.

My Lords, the regulations are regarded as being compatible with rights under the European Convention on Human Rights.

We updated the regulations last year with the introduction of the jobseeker’s allowance domestic violence easement, which recognised the challenge that the victims of domestic violence face when making the decision to flee a perpetrator. The easement made provision for jobseeker’s allowance claimants who are victims of actual or threatened domestic violence by a partner, former partner or family member to be exempt from jobseeking conditions for an initial four-week period, which may be extended to a total of 13 weeks where evidence is provided. The period allows those affected by domestic violence the time to focus on important priorities, such as organising new accommodation or arranging alternative schooling for dependent children, without also having to focus on meeting their jobseeking conditions.

Since 31 March 2013, the Government have implemented the revised definition of domestic violence. The Home Office carried out an extensive consultation with stakeholders to establish a definition that captured the full spectrum of what form domestic violence can take. Reflecting the advice of former victims and those professionals who work to support them, the definition goes well beyond physical abuse to incorporate sexual, emotional, psychological and financial abuse. The new definition specifically introduces controlling and coercive behaviour, as well as recognising that those aged 16 and 17 may be victims.

We are seeking to update the definition of domestic violence in the jobseeker’s allowance regulations so that it corresponds with the new cross-government definition. Through our existing regulations, we already give as much weight to a single incident of domestic violence as we do to multiple incidents, and we already include 16 and 17 year-olds under Regulation 14A. However, domestic violence was previously limited to specific types of abuse. We need to ensure that we incorporate the new definition in full.

I hope that the Grand Committee will accept that the change of definition is a positive and important step. For the first time, the definition recognises that victims may be subject to different types of domestic violence and abuse. It makes it clear that domestic violence can be many things, and is certainly broader than physical violence alone. By working to a single cross-government definition, we will enable victims and those who support them to be absolutely clear about what constitutes abuse and what support is available.

We know that the first incident reported to the police or other agencies is rarely the first incident to occur; often, people have been subject to abuse on multiple occasions before they seek help. Promotion of this definition should assist victims in coming forward and seeking help.

We know from the Office for National Statistics that 31% of women and 18% of men interviewed in 2011-12 had experienced domestic abuse by a partner or family member since they were aged 16. These figures are equivalent to 5 million female victims and 2.9 million male victims. This is a substantial issue for our society.

The Crime Survey for England and Wales has estimated that around 1.1 million adults experienced coercive control in 2010-11. That is why it is important to extend the definition of domestic violence to include such behaviour. It has been widely understood for some time that it is a core part of domestic violence. As such, this move does not represent a fundamental change in the definition but a recognition that coercive control is a complex pattern of overlapping and repeated abuse perpetrated within a context of power and control that it is important to highlight.

The introduction of the jobseeker’s allowance domestic violence easement and the destitute domestic violence concession last year was welcomed by external stakeholders and front-line staff. It is the first time that the Department for Work and Pensions has specifically supported the needs of domestic violence victims and their families within the welfare regime. The policies have been designed to give victims the additional support they need to get their lives back together and to put them on a secure footing after leaving a partner.

Having introduced the policy, the department took the decision to research how its implementation had worked in practice, in order to understand how well the policies have been operating and to ensure that we continually improve our service. Work is under way to implement the recommendations from the research that was published in June this year. It includes improving the understanding of the easement and concession among front-line staff through refreshed guidance. Messages will be directed towards these staff, including benefit centre staff, and will focus not only on policies but on supporting vulnerable customers sensitively.

The work also includes the use of management information, and its distribution to different levels of the organisation to give an insight into the use of the policies by location, and work with local partnership managers to promote the benefits of dialogue with local domestic violence stakeholders. We will continue to maintain strong relationships with stakeholders at national level to ensure that those issues are dealt with, that best practice is identified and shared, and that the latest evidence and analysis is used by the policy team to determine future activity.

It is of paramount importance to me that advisers are given the learning and support that they need to help them identify and help vulnerable claimants, not just through the financial support that Jobcentre Plus can offer but by signposting to the many local organisations that support victims at such a critical point in their life.

I hope that noble Lords will agree that these changes are worth while and that applying a common cross-government definition of domestic violence and abuse will make it easier for all to understand. I believe that it is a significant improvement to the help that we offer to victims of domestic violence. On that basis, I hope that the Grand Committee will support these changes.

My Lords, I thank the Minister for that very comprehensive explanation of these regulations. We on these Benches welcome the Government’s changes, not least because it is another stage in a process which began with a government amendment to the Welfare Reform Bill in this House in 2008-09.

I agree with the Minister that it is of the highest importance that victims of domestic violence are given the space and support necessary to rebuild their lives at the time that they move away from a situation of abuse. I think that the regulations have the potential to form an important part of that support. However, perhaps the Minister can reassure the Committee on a few points. First, simply in terms of the definition—which seems to be helpfully broader than the one that it succeeds—can the Minister confirm for the record that no one who is covered by the current regulations would be excluded by the extended definition?

The Minister referred to the cross-government definition of domestic violence that is now being used. It clearly makes sense to have a definition in these regulations which is coherent with that but, looking at the cross-government definition, unless I am mistaken, there seems to be a difference between the two. The new cross-government definition of domestic violence and abuse refers to:

“Any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse”.

I do not think that threatening behaviour is covered in these regulations but I may have made a mistake and perhaps the Minister can point out to me where it is. If there is a difference between what is in the regulations and what is in the cross-government definition, can the Minister explain to the Committee why that is the case?

Next, can the Minister tell us whether the Government are about to bring forward changes to the universal credit regulations? Otherwise, of course, we would be in the deeply unhappy position of having a difference between the regulations affecting those claiming jobseeker’s allowance and the very many people who I am sure will be claiming universal credit any month now. Perhaps he could reassure us as to what is happening with that. Do the Government propose to bring forward amending regulations and, if so, when? How many people will be claiming universal credit at the point at which they will be changed?

I looked at the research that has been done on both the easement and the DDV, which the Minister referred to, and very helpful it was too. The Minister referred to some action that has been taken to follow up the recommendations of that DWP research from June this year. The Committee may wish to note that I counted 15 recommendations specific to the DWP; I have chosen to pass over for the moment the recommendations for further research that are also contained in the report. Can the Minister tell the Committee which of those 15 recommendations to the department have already been implemented in full? If he does not have that information to hand, will he write to me to confirm that? It would seem important that those recommendations are implemented very soon, and the department has had since June to do that.

This matters because the research showed that, despite the fact that we have high levels of domestic violence reporting in this country, the take-up of both the easement and the other policy are actually quite low. The government report said:

“We know from official statistics that DV rates overall are high, affecting one in three women, and that it is particularly prevalent among unemployed women. Yet the Jobcentre Plus offices visited with the highest numbers of JSA DV Easement cases were reporting fewer than 20 cases overall during the course of a year”.

If I read this correctly, only 338 cases of the four-week easement and 115 cases of the full 38-week easement were taken up as part of the JSA domestic violence easement. That seems incredibly low given the levels of reported domestic violence, and the report points out that those domestic violence reported rates are higher among unemployed women. Is the Minister comfortable that the policy has been properly understood and implemented by his officials? If not, how soon does he expect to feel confidence in that situation?

I have one further question. When these regulations were debated in the other place, the question was raised as to whether the position of 16 and 17 year-olds was the same as that of those aged 18 and over. Can the Minister clarify that for the record?

Subject to the answers to those few questions, we on these Benches are pleased to welcome this definition and look forward to hearing what the Minister has to say.

I thank the noble Baroness for that. I know she has a concern in this area. Clearly, domestic violence is a dreadful form of abuse. We as a Government are committed to providing better support for victims. This is the first time that the definition recognises that the victims may be subject to a wide range of domestic violence and abuse.

On her specific question about whether the move from the old to the new has left any form of abuse stranded and not covered, I am happy to confirm that there is no situation covered in the old form which is not covered in the new form. The attraction of having a single definition is that it makes it much clearer to everyone—supporters and victims alike—what constitutes the abuse and that they can go to all government agencies for help with particular types of abuse.

Running through the questions in no particular order, on the 16 and 17 year-old question, our regulations are set out in such a way that they refer to all claimants. Clearly there are 16 and 17 year-olds who are claimants and therefore we do not have to specifically talk about 16 and 17 year-olds because they are automatically covered.

The other point raised about the structure of the regulations concerned why the definition is not replicated exactly. This is just about wording; the practical effect is the same. It needed to be worded in a way which, in drafting terms, was consistent with the powers in paragraph 8B of Schedule 1 to the Jobseekers Act 1995, which talked about domestic violence which is inflicted or threatened. The conduct we are defining must therefore be capable of being inflicted or threatened. In that light, the reference to “threats” and the “threat” of coercive behaviour, and “threatening behaviour”, are in practice surplus to requirements: one does not threaten to threaten. That is the trouble when one has other legislation into which one needs to fit things. That is all it is.

On the question about reflecting the definition within universal credit regulations, I am pleased to say that we have already made the equivalent amendments to the definition of domestic violence under universal credit—as we have for ESA and JSA—in 2013, so we are covered there. On the June report, we are going through those specific recommendations. We have established a steering group to go through and apply them. I will probably need to write on which of them are in. I suspect, because it is a working group, that probably none of them are formally in right now. However, I will come back to the noble Baroness with a little bit more detail on that in a letter if she will allow me.

We had some precise figures on uptake in the Answer to a Written Question from the noble Baroness’s colleague in the Commons, where we gave out the monthly figures. They are not particularly high. We need to acknowledge that many victims face a challenge in disclosing this kind of information. We need to raise and promote awareness of the easement. That will be tied to the actions we take after the research. This will help staff understand the issues; we are going to work on that. Clearly, however, I share some of her concern that the volumes are low and we need to go somewhat further.

I think that I have covered all the issues apart from the one I need to write on. I hope that I have set out all the issues to the Grand Committee, and ask it to accept these regulations.

Motion agreed.

Committee adjourned at 5.33 pm.