House of Lords
Wednesday, 11 December 2013.
Prayers—read by the Lord Bishop of Truro.
Northern Ireland: Royal Residence
To ask Her Majesty’s Government what arrangements are being made to establish a permanent Royal Residence in Northern Ireland.
My Lords, in Northern Ireland Hillsborough Castle is the official residence of Her Majesty the Queen and has been the sovereign’s residence since 1922. The castle is also the residence of the Secretary of State and of the Minister for Northern Ireland. Current proposals are to pass the operation of Hillsborough Castle to Historic Royal Palaces and significantly to increase public access. However, full royal and ceremonial use will continue unchanged.
My Lords, I thank the Minister for telling the House about the important decision to place Hillsborough in the guardianship of the Historic Royal Palaces trust. Does not the existence of a permanent royal residence both symbolise and underline the enduring commitment of the Royal Family to all sections of the community in this part of our country—a commitment perhaps best expressed by the late Queen Elizabeth the Queen Mother, who once told my noble friend Lord Molyneaux that each night she included in her prayers, “God Bless Ulster”? Does my noble friend also agree that it is most fitting that the decision should come in the year that His Royal Highness the Prince of Wales celebrated his 65th birthday, for the cross-community work of his many charitable organisations contributes significantly to progress in Northern Ireland today?
My Lords, I agree with the noble Lord that the Royal Family is to be commended for its loyalty and for the work that it has done with Northern Ireland. We all remember the significance almost two years ago of the Queen’s handshake. The existence of Hillsborough Castle as a royal residence is guaranteed under the new arrangements, and full facilities for royal access will be there. It will be easy for members of the Royal Family to use the castle when they wish for their royal duties in Northern Ireland.
My Lords, does my noble friend accept that, given the extraordinary—indeed, transformational—effect of Her Majesty’s visit to the Republic of Ireland, and the fact that Hillsborough Castle is not only a royal residence but a place of enormous political significance on the island of Ireland because of the signing of the Anglo-Irish agreement and the importance of other negotiations, there is a real possibility of tourist potential not just from within Northern Ireland and the rest of the United Kingdom, but that many people south of the border will be keen to come to Hillsborough Castle for its associations with Her Majesty and the Royal Family, as well as the important political associations that it also has?
My Lords, the intention is that the new arrangements will make it easier to attract both domestic and foreign tourists to visit Hillsborough Castle. It is important to remember that as well as being a beautiful castle—a beautiful building with beautiful grounds—it has tremendous historic significance. It is important to remember that royal tourism alone is estimated to be worth £500 million a year to the United Kingdom. Therefore, it is important that we open up the castle as much as possible—and considerably more than has been possible in the past.
My Lords, in welcoming the Minister’s reply, I will ask her two questions. First, Hillsborough Castle is owned by the Northern Ireland Office. When is it anticipated that it will be transferred to the Historic Royal Palaces trust, and will any additional trustees, including a trustee from Northern Ireland, be added to the trust board?
There will be no change to the ownership of Hillsborough Castle. An agreement will be signed with Historic Royal Palaces. It is anticipated, following negotiations, that it will be signed next April, but there will be a transition period of two to three years before the full handover to the new arrangements is complete. On the question of trustees, a Northern Ireland group already exists in relation to Hillsborough Castle. It is intended that this should be refreshed and set up anew under the new arrangements. It will have a strong representation from Northern Ireland, as well as trustees appointed by Her Majesty the Queen.
Does my noble friend accept that if Scotland votes for independence, the future of Balmoral must be called into question? Would that situation not make it even more important that there is a royal residence in Northern Ireland?
My Lords, along with many of your Lordships, I am concentrating on supporting the Better Together campaign. I am not making plans, and neither are my noble friends, for any future situation in Balmoral.
My Lords, does the Minister accept that the fact that she is able to make this announcement today reverses the great historic error of the 19th century in not having a royal residence in Ireland, and that it can only be done because of the stability brought to Northern Ireland’s constitutional status as a result of the Good Friday agreement of 1998?
Hillsborough has been in its current situation since about 1922, I believe, but the noble Lord makes a very good point. It is the stability of the political situation that has made it possible for the Northern Ireland Office to consider new arrangements for the management of Hillsborough Castle, and to ensure at the same time that security levels are maintained. That will be possible under the new arrangements because of the security and political situation.
My Lords, I declare an interest as a trustee of Historic Royal Palaces. Will the Minister confirm that there has been very widespread consultation both within Northern Ireland and in Ireland itself, and that the experience of Historic Royal Palaces in running five additional palaces in the United Kingdom gives the charity great experience? I hope that the Minister will also agree that we can have every confidence that this will be a successful and prominent move for the future that will make the castle more available to all people, both tourists and local residents.
I am delighted to confirm that the Northern Ireland Office sought a secure and prosperous future for Hillsborough, and one that would enable it to be opened up to the public. Historic Royal Palaces was the obvious choice, because as an organisation it does not depend on public money and it has a very well established position through the five palaces it already runs. Indeed, it is the case that the Royal Family has already signed an agreement with Historic Royal Palaces about the future use of Hillsborough Castle.
Schools Careers Service: Apprenticeships
To ask Her Majesty’s Government what steps they are taking to ensure that career services in schools make pupils fully aware of apprenticeship opportunities open to them.
My Lords, schools are legally required to secure independent careers guidance for 12 to 18 year-olds, and that includes information on all education and training options, including apprenticeships. We will publish revised statutory guidance to help schools deliver better support to pupils, including about apprenticeships. Young people are most likely to be influenced by hearing directly from employers and apprentices. We will be strengthening the importance of partnerships between schools and businesses via the National Careers Service. Ofsted is ensuring that careers guidance and pupil destinations will be given greater priority in inspections.
My Lords, I thank the noble Lord for that Answer, but given that the House of Commons Business, Innovation and Skills Committee report of 2012-13 found that,
“awareness and resources in schools and colleges remains lacking”,
expressed disappointment with the National Apprenticeship Service and recommended that the NAS should be given statutory responsibility for raising awareness of apprenticeships, can he explain how far these recommendations have been carried out?
The National Apprenticeship Service funds the Education and Employers Taskforce, which is a programme to deliver knowledge about apprenticeships to schools. We also had 70 advisers from the National Careers Service and Jobcentre Plus stationed at the Skills Show in November. The National Careers Service and the National Apprenticeship Service ran a jobs bus road show, and we are pursuing a number of other measures in this area.
My Lords, is my noble friend aware of the huge amount of work going on in the area of apprenticeships? Sub-Committee B of the European Union Committee is taking evidence on youth unemployment at the moment, and the great finding is that many large companies are actively getting involved in apprenticeships for the first time in many years. We have heard about some outstanding examples of this, and when our report comes out I think that he might be surprised.
I am grateful for my noble friend’s comment. Our priority is to expand apprenticeships, particularly where they deliver the greatest benefits to young people, are of high quality, last longer and are more rigorous. Of course, since this Government came into power, we have delivered 1.5 million new apprenticeships.
My Lords, is the noble Lord aware that, when I speak to young people in a wide variety of secondary schools as part of the House of Lords outreach scheme, there is little or no knowledge of 16-to-18 apprenticeships, and that schools are focused on sixth form recruitment? What action are the Government taking to ensure that all secondary schools offer impartial guidance, have links with local businesses, and invite young apprentices to speak to pupils?
I agree entirely with the noble Lord that links between schools and businesses are key. Schools can no longer feel that they need just to teach; they have to open their doors to businesses, and businesses have to engage with them. In my travels around the country, I have not found any difficulty with businesses wanting to engage with schools; it is usually a question of putting in place the structures. The organisation Business in the Community has a marvellous programme called Business Class which is providing careers advice, mentoring and workplace experience to 300 groups of schools. There is the Glass Academy in Sheffield and a number of other such models. However, we need to widen these efforts, and I know that the Social Mobility and Child Poverty Commission made some excellent recommendations in this area a couple of months ago.
My Lords, will the Minister confirm the steps that I am sure the Government must be taking to ensure that as many girls as boys are aware of these apprenticeship schemes, particularly in engineering, where there are certainly very many more young boys than young girls taking up these apprenticeships at the moment?
I entirely agree with the noble Baroness. It is very important that we get a higher participation rate of girls in STEM subjects. We are funding the Stimulating Physics Network and the Further Maths Support Programme to increase the take-up of A-level physics. The STEM Ambassadors programme gives careers advice on more technical qualifications and apprenticeships. However, as my colleague Liz Truss said recently, it is excellent teaching and a culture of equal aspirations for all that will help engage more girls, so all we are doing to improve the quality of teaching helps in this regard.
My Lords, can my noble friend assure me that a teacher or careers adviser will be able to advise a dyslexic pupil in a one-to-one interview that he or she can now access, or will soon be able to access, the apprenticeship system, as the barriers to dyslexics getting through the functional skills test in English and maths will be removed?
My noble friend speaks with great passion and personal experience on this subject; I have heard him do so many times, and we have already met on this subject. The Government are aware of the technical issues with assisted technology in the English and maths assessments. We are meeting the British Dyslexia Association, Ofqual and the Dyslexia Trust to try to ensure that we send a very clear message to all involved, providers and examiners, that there is the ability to use screen readers, in the case of dyslexia, as well as other assistive technology. I think that my noble friend knows that he has my personal commitment —if he does not know, I give it to him now—that we will do as much as we can to sort this out.
My Lords, in response to my noble friend’s earlier question, the Minister said that it was really down to employers to do more work. Is he aware that employers try very hard to be in touch with schools, but that there is an issue around head teachers, in particular, encouraging that? As my noble friend Lord Young said, rather than aiming primarily for academic qualifications, this country needs very good apprentices; we need women apprentices, as the noble Baroness, Lady Howe, said, but we also need people to get engaged with apprenticeships and be encouraged to do so. That is not evident.
I am sorry to hear the noble Baroness make that comment. I think that it is a two-way street. We need schools willingly to engage with all walks of business for all apprenticeships, but I still hear shocking stories about schools being reluctant to send their pupils on them and heads being too focused inwardly. They cannot give their children a good education unless they give them a direct line of sight. I have been so impressed talking to young people about how the experience of going to the workplace and meeting people in work has raised their aspirations. From this they have managed to reverse-engineer backwards what they need to do to achieve this themselves.
To ask Her Majesty’s Government what steps they are taking to regulate the issue of payday loans to those without a regular income.
My Lords, the Government have made it clear that payday lenders should make loans only to those who can afford to pay them back. From April 2014, the Financial Conduct Authority will require lenders to undertake thorough affordability assessments to ensure that borrowers are able to make sustainable repayments. No later than January 2015, the FCA will cap the cost of payday loans so that borrowers in financial difficulty do not face spiralling debt.
My Lords, I am most grateful to the Minister for his reply, but he has not actually given me the answer I needed because my skills at mathematical calculations are not great at the moment. If my noble friend wanted, for example, to take out a payday loan for £1,000 to cover him over the Recess, what would the rate of interest and repayment be over a matter of a few weeks?
Almost certainly too high, my Lords.
My Lords, in 2008, 12 million people viewed advertisements for payday lending companies. Last year, the total was 7.5 billion. Do the Government feel that the time has come for us to ban advertising for payday lending on television, particularly when it is directed at children?
My Lords, the Advertising Standards Authority has been looking at a rising number of complaints about payday loan advertising on television. It has the power to ban misleading ads and already has done so in respect of ads placed, for example, by Cash Lady and FirstPayDayLoanUK. From April next year, the FCA will have the power to ban misleading financial promotions. It will be able to look at advertising and the whole way in which payday loans are promoted under that new power.
My Lords, there is deep concern in the social and community-based housing movement because the payday loan operators get access to people’s personal accounts to take the direct debit. The danger is that when people receive a rollover loan, in many cases the payday loan company has taken all the money out of that account and left the housing association with a tenant who is in deep arrears. Sometimes they are forced to take out eviction notices, which they are very reluctant to do. Can this be looked into?
My Lords, this matter has been looked into. The Financial Conduct Authority, which takes responsibility in this area from next April, has already proposed limiting continuous payment authorities to two payments and reducing rollovers to two. It has the power to constrain them further than that if that is still seen to be an issue. That is one of the things that the FCA will look at as part of its assessment of the total cap of the cost of payday loans, which it is currently considering.
My Lords, I will follow the previous two speakers but extend the question a little more widely. What steps do the Government propose to take to ensure that payday loan operators cannot simply move their headquarters overseas and operate outside the restrictions that are going to be brought in?
My Lords, under the e-commerce directive, which was introduced during the lifetime of the last Government, payday loan operators are able to relocate. However, a majority of EU member states already have some kind of cap on the cost of payday loans, even if not necessarily as comprehensive a cap as we have, and there is an ongoing debate in those member states that do not yet have a cap about implementing one. There are already a majority of EU member states to which it would almost certainly be uneconomic or pointless for payday loan lenders to switch their bases of operation.
My Lords, when the lenders invariably advertise the ease of access to money and, even more crucially, the ease of repayment, can their adverts ever be anything but misleading?
My Lords, a lot of effort is being undertaken by the FCA to make sure that the adverts are not misleading. We debated this at Third Reading of the banking reform Bill. The key thing is that people should know what the repayments are, not just in terms of the interest rate—people are very often not desperately familiar with that—but in terms of being absolutely clear about what they have to repay and when. The point that possibly lies behind the noble Lord’s question is whether there should be payday loans at all. As long as payday loans are legal, people have to make some sort of assessment about whether they are going to be in a position to repay them. What the Government and the FCA are committed to doing is to make the costs as clear as possible and limit the potential downside of less than prompt repayment.
My Lords, what consideration, if any, has been given to introducing a real-time database of payday loans in order to ensure that the proposed FCA rules can be properly monitored and enforced and, in particular, to avoid the problem—a special one at this time of year—of people being able to take out multiple loans from different companies at the same time?
My Lords, a real-time database is one of the things that the FCA will be looking at. In some of the countries and US states where they have effective caps on the cost of payday loans, such systems have been seen to work efficiently and be very effective.
My Lords, we heard a moment ago about the danger of lenders from other EU countries undercutting any legislation or regulation that we introduce in this country. Has the noble Lord considered discussing with the European Commission the possibility of legislating on an EU-wide basis for the single market as a whole?
My Lords, this is a rapidly moving area. If you go back five years, it was not an issue. We are discussing with other member states the operation of the consumer credit directive, for example, and the way in which the market is evolving. As the FCA moves towards putting in place a cap of the total cost of payday loans, we will see exactly how the system is working in the majority of those member states that already have a cap and whether there is any real advantage in moving to a Europe-wide system, or whether the series of national caps is proving effective.
To ask Her Majesty’s Government what assessment they have made of the prospects of increasing United Kingdom exports to China following the trade missions led by the Prime Minister and the Chancellor of the Exchequer.
My Lords, last week I was delighted to help the Prime Minister lead the largest ever UK business delegation to China. Our bilateral trade and investment relationship with China is improving. Exports to China have almost doubled since 2009 and more Chinese investment has come into the UK in the past 18 months than in the past 30 years combined. However, there is more to be done, especially in focusing on areas where the UK has particular strengths and where these match China’s emerging demands. Many of these strengths—healthcare, education, the creative industries and agri-tech, to name but a few—were showcased last week. Several agreements in these sectors were signed during the visit and these will open further opportunities for UK exporters.
I thank my noble friend the Minister for his response. I look forward to the future growth in exports that will result from these significant and much needed visits, and congratulate him on the role that he played in the most recent one. We know that inward investment from countries overseas such as China and India can help build our capacity for exporting, with Jaguar Land Rover, Aquascutum and many other companies showing the way. However, our current measures of success do not necessarily capture the interactions between such investment and exporting. What are the Government doing to encourage, measure and link investment and exporting activities from countries such as China to grow total trade?
I thank my noble friend Lord Wei for that point and his efforts in promoting UK-Chinese trade. He is right to raise a number of areas, including export from the UK, imports from China and our relationship as regards investment. During the trip, I was delighted that we announced programmes that will help UK investment in China and Chinese investment in the UK, particularly in the area of the supply chain. We have found that, in a number of areas, to be important in improving our overall trade performance.
My Lords, the noble Lord mentioned the creative industries. He will be aware that the delegation of which he was part included members from the cultural sector, including Sir Peter Bazalgette, chair of Arts Council England, Nick Starr, executive director of the National Theatre, and Joey the Horse, the puppet star of the National Theatre’s production of “War Horse”. Does he agree that the cultural sector in this country, particularly the performing arts, is widely respected the world over for the skills and products that it can export? Does he also agree that this is a good reason for the Government to continue to give the cultural sector the maximum possible support?
I thank the noble Baroness for her comments and absolutely agree that this was one of the highlights of the trip, particularly Joey the Horse, who got a standing ovation at the gala lunch that we held. Joey was the star of the trip, after the Prime Minister of course. It was not just in culture that our DNA was represented, but in the Premier League as well. This not only has export potential in its own right but is an expression of British soft power and its opportunities. We will certainly make sure that we include the creative industries as part of our overall export effort, and I thank the noble Baroness for her comments about our support of the cultural sector.
My Lords, I warmly welcome my noble friend to his new role, and the success of the Prime Minister’s visit to China. I declare an interest as a partner of a law firm. Why did the Prime Minister not find room in his huge delegation for any representative of the UK legal services sector? The sector contributes some £3 billion to our professional services exports; it provides crucial commercial and dispute-resolution services and support for British businesses around the world; and, not least, will help them to take advantage of the new Shanghai free trade zone. I realise that not everybody wants to be accompanied by a lawyer on their travels.
However, seriously, how does this square with the continuing support that is being given by the MoJ and UKTI to boost the growth of the legal services sector internationally?
My noble friend is correct that the legal services sector is one of the most important sectors for the UK. He may not be comforted by the fact that we took some accountants on the trip. The law firms were represented, particularly in discussions on the Shanghai free trade zone, in which the UK is going to provide excellent support. The UK legal sector is a great strength, not just as an export in its own right but as a reason for FDI into the UK, because it shows that the rule of law and support from professional services are very strong. I will certainly seek to champion the legal sector going forward.
My Lords, we know that nothing happens in China except by the leave of the Communist Party, which controls the whole of China. We know what the British delegation wants from China. Can the Minister tell the House what the Chinese want?
The Chinese refer to us as partners for growth. Particularly since the third plenum, the Chinese see a real opportunity to partner the UK in key areas, as China expands its cities and needs to make its environment greener—there are a lot of environmental issues in China. UK products are loved in China. The cultural sector was mentioned earlier. Yes, we can mention whisky. We have even been selling tea to China, which is remarkable. Going forward, the UK’s products and services are ideal for what China needs as a result of the change in its economy. We look forward to continuing to increase our exports to China, because we have a lot of ground to make up.
No doubt my noble friend is aware that during the past year, the China Investment Corporation—a sovereign wealth fund—has taken a 9% stake in Thames Water and a 10% stake in Heathrow. This year, another Chinese corporation, Advanced Business Park, has said that it will undertake a £1 billion redevelopment of the Royal Albert Dock. Is it not clear that we are looking not at a single arrangement but at a joint, substantial, two-way partnership between the two countries?
I thank my noble and learned friend for that comment. We are certainly seeing substantial investment from China into the UK—and, indeed, vice versa. We visited a city where Diageo has made a large acquisition. WPP is a very strong firm in China. It certainly is a partnership. China, as one of the most powerful nations in the world, having a stake in the success and growth of the UK economy is certainly no bad thing either.
National Insurance Contributions Bill
The Bill was brought from the Commons, read a first time and ordered to be printed.
That this House do not insist on its Amendment 105, to which the Commons have disagreed for their Reason 105A.
105: Page 125, line 3, at end insert—
“(iii) substantial pollution abatement equipment dealing with oxides of sulphur, oxides of nitrogen, heavy metal emissions or particles is fitted to the generating station.” Commons Disagreement and ReasonThe Commons disagree to Lords Amendment No 105 for the following reason—105ABecause it is inappropriate for the fitting of pollution abatement equipment to cause the emissions limit duty to apply to existing generating stations.
My Lords, we return to discuss the emissions performance standard and whether it should be possible to apply it to existing coal plant in wider circumstances than the Bill currently envisages. The Government set out in earlier debates, both in this House and in the other place, why we believe Amendment 105 is unnecessary. It has become clear over the course of the debates that there is an almost unanimous consensus on the need substantially to decarbonise our electricity generation by 2030. There is a similar consensus that there will be little or no role for unabated coal generation in that future.
In this Bill, the Government have brought forward a suite of measures that they believe will deliver the outcomes that we all wish to see. The Bill will do so without risk to our security of supply and at the lowest possible cost to the consumer. The Government believe that they already have the right balance of measures to deliver a secure, low-carbon electricity system at the lowest cost.
Amendment 105, proposed by my noble friend Lord Teverson, would allow application of the emissions performance standard to any coal-fired power station that fits the pollution clean-up equipment needed to meet the requirements of the industrial emissions directive. To date, only one station, Ratcliffe-on-Soar, is fitting the equipment needed to comply with the directive and there is no evidence that a large number of others are seeking to do the same. However, this amendment could result in all but one of the 12 coal-fired power stations expected to be operational after 2015 being subject to limited hours or forced closure under the directive. There is a risk that this, in turn, could lead to a scenario where more stations close earlier than might otherwise be the case. Were this to happen, it would require more gas generation to be built earlier than we currently project and, crucially, result in increased cost to consumers.
As my right honourable friend the Minister set out in the other place, we already face a significant investment challenge that will require an estimated 16 gigawatts of new gas plant to be built over the decade from 2015 to 2024 and around 45 gigawatts in total of all forms of generating capacity in this period. My department has therefore looked at a scenario where all our coal-fired power stations close by 2025, which is one possible risk of this amendment. The results of this analysis show that, as a result, in the 2020s average household electricity bills would be around 3% to 4% higher, average non-domestic bills would be around 4% to 6% higher and average energy-intensive industry bills would be around 5% to 7% higher.
The Government are taking a balanced and precautionary approach that seeks to protect consumers and ensure our security of supply. Our emissions performance standard is ambitious—the first in Europe—but it is right that ambition should be balanced with measures for a sensible transition. Ultimately we must ensure that we transition to a low-carbon economy in a way that provides certainty for investors, secure energy and is deliverable at the lowest possible cost to consumers.
Amendment 105B proposed by the Motion of the noble Lord, Lord Oxburgh, would bring all existing fossil fuel plants within the EPS regime from 2025, thereby requiring them to operate within the annual emissions limit set by the EPS. In common with fossil fuel plants that are consented after the EPS comes into force and to which it will apply, the power to suspend the EPS contained under Clause 48 could be used to allow those existing plants to operate over and above their limit should it be necessary to avert a threat to security of supply. I am grateful for the spirit in which the noble Lord proposes this amendment but, ultimately, what is at stake with both these amendments is an assessment of risk. I ask noble Lords to consider carefully whether they can be confident that the amendments will not give rise to risks that, were they to materialise, would be difficult and costly to address. The Government do not have that confidence. The question that noble Lords need to ask themselves is: do they have the confidence to take that risk?
It is through the measures in the Bill that we will reform the UK electricity market and attract the capital investment needed to decarbonise our electricity sector at the lowest cost to the consumer. The Government have listened carefully during the passage of the Bill through this House and the other place and have accepted measures that have improved it greatly, but the amendments would add an unacceptable risk. This House insisting on an amendment today will delay the Bill and will serve only to undermine investor confidence. I therefore urge noble Lords to consider both the direct and the wider implications of insisting on their amendments, given those impacts, and that a significant majority opposed this amendment in the elected Chamber. The Government do not believe that the amendments would provide greater certainty without, at the same time, creating risks to our security of supply and of increased costs to the consumer. On the contrary, causing delay to this vital legislation will only create uncertainty and risk delaying investment in our energy sector when it is needed most. I beg to move.
As an amendment to Motion A, leave out from “House” to end and insert “do insist on its Amendment 105.”.
My Lords, I am very aware of my noble friend's remarks. I am also aware of the various matters around this issue. I believe that it is important that we still try to reach a compromise of some sort. Therefore, I wish to reserve my remarks and withdraw my amendment in support of the noble Lord, Lord Oxburgh, in trying to reach a compromise. I therefore beg leave to withdraw my amendment.
Motion A1 (as an amendment to Motion A) withdrawn.
As an amendment to Motion A, at end insert “, and do propose Amendment 105B in lieu”
105B: Page 46, line 31, at end insert—“( ) No fossil fuel plant shall operate after the year 2025 if its emissions are not less than the statutory rate, unless it has been exempted under the provisions of section 48 (suspension etc of emission limit in exceptional circumstances).”
My Lords, I do not think that I have any relevant interests to declare, but I draw attention to the published record.
We have heard why the Minister feels that we should not persist with the amendment of the noble Lord, Lord Teverson, which was passed by this House with a substantial majority. Noble Lords may also have read the Minister of State’s speech in the other place. Having read the arguments, I concluded that there was little between the Government and those supporting the amendment. For that reason, I am today offering a differently worded amendment that to many of us seems both to meet the spirit of the amendment of the noble Lord, Lord Teverson, and to satisfy government concerns.
I am doing that in my capacity as unofficial chairman of this House’s unofficial cross-party Energy Bill group, which first carried out the unofficial pre-legislative scrutiny of the Bill at the request of the then Energy Minister in our House, the noble Lord, Lord Marland. The group has held widely advertised regular meetings with the Minister and officials during the passage of the Bill, and I take this opportunity to place on record our gratitude.
I also thank the Minister for yesterday convening another meeting of the group and for securing the attendance of the Minister of State for Energy. We heard what he had to say, and he heard what we had to say. We offered him the amendment that is before you today, but his officials advised him not to accept it. I think that to pretty much all those present the reasons offered for not accepting it were pretty thin.
The fundamental purpose of the present amendment —and, indeed, the original Teverson amendment—is to make clear that a role for unabated coal in the national energy mix is not foreseen beyond 2025. Indeed, that is the Government’s position. In the other place, the Minister indicated that he expected the overall contribution of coal to our electricity generation in 2025 to be about 3%. In the unlikely event that external events made it look as though unabated coal would be needed longer, the Bill already contains provisions to deal with that unlikely eventuality.
Noble Lords may ask why we are bothering with this now. It is simply to provide an additional crumb of confidence to those who are contemplating investing in new, gas-fired power generation. It is a bad time for investment in energy utilities and it would be helpful to have a clear indication that gas will be our main means of fossil-fuel generation from the 2020s onwards. It is probably unnecessary to point out that this amendment could have no real effect on energy prices in the foreseeable future. This is mostly because the amendment would have no effect on generation until well into the next decade and partly because power price is largely determined by the swing producer, which is gas. At present, coal is cheap and is making an increased contribution to our power generation. However, you will have noticed that this does not translate into lower electricity prices but rather into better margins for coal-fired power stations.
The Government have said it is urgent that this Bill should become law. We agree, and a simple way of ensuring this is to accept this constructive and simple amendment. I beg to move.
My Lords, if there is no one else who wishes to speak now, I will.
Here we all are, almost at the end of the process of electricity market reform in the Energy Bill. We have spent many months debating these interventions in the electricity market and felled a fair few trees printing all the documents. However, despite all this effort, the Bill is still deficient in a number of important respects. It fails to bring about true competition in generation, handing yet more power and money to incumbents via the capacity mechanism, and it fails to make clear that the objective of all this intervention is to decarbonise our electricity. The net effect of these deficiencies is that the process of decarbonisation, which the Bill seeks to introduce, is more expensive than it need be.
The original Amendment 105 and the new compromise amendment tabled by the noble Lord, Lord Oxburgh, seek to achieve the same thing: providing a back-stop for existing government policy that seeks to make unabated coal a diminishing part of the energy mix by preventing lock-in to high-emissions plant in the 2020s. This plant can be upgraded to comply with tighter air quality standards. The more coal we burn, the more effort we have to undertake, using more expensive options, to meet the same emissions reduction targets.
The Government’s chosen policy to constrain coal investment is the carbon floor price, but this is a deeply unpopular and very expensive policy. It lacks credibility as it is a financial Bill measure that can be easily done away with. It therefore creates a huge amount of political risk for investors.
The emissions performance standard underwrites that policy, reducing risk. The EPS is a tried and tested policy and it has the benefit of providing absolute clarity to the market about what is required. It is already used in California and Canada and in both cases the limit on emissions applies to old coal plant, not just new. In Canada the clarity of that regulation has brought forward investment in the world’s first commercial-scale CCS plant, which will open next year. In the UK we have not followed this but have opted instead to try to tax coal off the system—an option that is not delivering at the moment. Unfortunately, there is a great risk that this course of action will continue to fail and operators of coal will decide to sweat their assets for longer, using the large up-front payments they will now receive from the capacity market.
The original amendment required the old coal stations seeking life extensions to operate for only 40% of the time, under the EPS limit, guaranteeing that they would be available for the peak but not allowing them to baseload. In rejecting the amendment, the Government argued in the other place that this change might dissuade some plant from upgrading at all and therefore reduce the amount of plant available for peaking.
The noble Lord, Lord Oxburgh, has listened to these concerns and now tabled an amendment which offers a different approach. His amendment would require the limit on emissions equivalent to 40% of capacity to apply only in 2025, 12 years from now. Operators of upgraded plant would therefore be able to use their three-year capacity payments to offset the costs of upgrading and continue to sweat their assets for another five years at full capacity, which would then be available for 40% of the time thereafter. This seems like a good deal. By 2025, all but one of the six plants that this amendment would apply to will be more than 55 years old, having emitted together over 1 billion tonnes of CO2 over their lifetimes, so 2025 is well past their closure date.
This amendment is a compromise but one which still has the benefit of clarity for everyone: clarity for the coal plant; clarity for gas investors; and clarity for the environment. To leave things as they stand is to allow a known unknown to persist needlessly. With no decarbonisation targets to guide government policy—
The noble Baroness is probably drawing her remarks to a close but before she does so, can she explain to me how what she is saying in supporting this amendment is consistent with the leader of the Opposition’s declared policy to hold down energy prices and with maintaining security of supply?
It is absolutely consistent because what we have said is that we will seek out the least costly forms of carbon abatement. There is no cheaper way of reducing carbon dioxide than using existing gas stations in place of existing coal stations. That is how the UK decarbonised its economy in the 1990s and that is how we should be doing it again now. However, there is sufficient doubt about that, because of the price of coal relative to the price of gas. It is absolutely consistent to say that we want to keep prices low by supporting this amendment.
One of the things that the Government are currently struggling with is that, at the root of this, there is not sufficient clarity in the backing of these decarbonisation objectives. It would obviously be very easy to solve the energy trilemma by simply lopping off one of the legs. If you simply say, “All we need to do is keep the lights on at least cost”, there is no problem; you would stick with the coal. It seems that this Government are not actually committed to decarbonisation as they have lopped off one of the legs and are seeking a return to coal at just the time when, internationally, we are pressing everybody else to move away from unabated coal.
This is a sensible and moderate amendment, and it gives clarity to everyone. It reduces investor risk, particularly for those people operating gas stations and seeking to invest in new gas stations. I hope that noble Lords on all sides of this House will find that they can support this amendment and I hope that the Minister will ultimately support it, too.
My Lords, we have been told that the Energy Bill has two purposes. The first purpose is to secure the much needed investment in new plant for generating electricity. The second is to decarbonise our electricity supply. Amendment 105, which has been rejected by the Government, was closely aligned with these two purposes. Its effect was to ensure that if there were major upgrades to coal-fired power stations, such as to enable them to meet the European emission requirements in respect of sulphates, nitrates and heavy metal contaminations, they should also be constrained to meet the emissions performance standards in respect of carbon dioxide that are imposed by the Bill. The subsequent amendment tabled by the noble Lord, Lord Oxburgh, reinstates this requirement but includes a let-out clause that would allow the Government to alleviate the requirement, if necessary. Presumably, this would be appropriate in a case where the lack of capacity was so pressing as to imply a real danger of the lights going out.
The Minister, Michael Fallon, argued in the Commons that to include such amendments would add to the risks faced by investors. The logic of his position escapes most of us, who believe that the original Amendment 105, or its replacement by the amendment of the noble Lord, Lord Oxburgh, would clarify the intentions of the Bill in a way that would actually encourage investment. Why does that Minister insist on the rejection of these amendments? Is it that he wishes there to be a loophole in the legislation that would allow dirty, coal-fired power stations to remain in operation, notwithstanding the ostensible purpose of the Bill? There are certainly grounds for such a suspicion. However, the Minister has asserted on several occasions that he doubts, even with the allowances the Bill affords, whether any of the old coal-fired power stations have a future.
Perhaps we should believe in his good intentions and allow ourselves to look elsewhere for the reasons for his intransigence. The reasons are not hard to find. The Minister has a need to conciliate a faction in his party that is firmly opposed to all measures aimed at staunching the emissions of carbon dioxide. They point to the cases of Germany and the Netherlands, which are in the act of commissioning unabated coal-fired power stations. They demand to know why Britain should be imposing constraints upon itself when others are failing to do so.
I believe that the Minister’s stance has the sole purpose of allowing this faction to believe that the intentions of the Energy Bill can be eventually subverted. If he does not himself intend this outcome—and we must be generous enough to believe this—then he must be intent on bamboozling some of the members of his own party whose objectives differ from his own. This is not the sort of consideration that should influence the legislation. The legislation will be greatly clarified by the inclusion of these amendments, which would make its intentions unequivocal. On this basis I would urge your Lordships to support the amendment of the noble Lord, Lord Oxburgh.
My Lords, I will be brief about this. I understand the argument put forward by the noble Lord, Lord Oxburgh, and I accept that he is trying to reach a compromise. This Bill started with the support of all parties in Parliament. I was a little disappointed to hear the noble Baroness’s complaints that the Bill does not meet many of the requirements that she would wish to see in it, but on the whole her party has supported the Bill. Indeed, it has gone further and recognised that the Bill’s passage is deeply important to the future of our energy industries here.
My noble friend Lord Lawson described it as the worst Bill he had ever seen, took part in the first day of Committee and we have not heard from him since. The fact is that everybody else who has taken part in the passage of the Bill has recognised that the new machinery, which sets up the electricity market reform as an essential part of our generation and consumption measures, is crucial for foreign investment—for all investment, but particularly when we have some of the larger foreign companies willing to invest in this country. Nothing upsets them more than if they see that there is uncertainty in Parliament over the Bill.
Picking up one point made by my noble friend Lady Verma, we have offered the other House a chance to consider the amendment that was carried in this House. It was firmly rejected by a much larger majority there than passed it here. That is the purpose of this House. We have done it. It would be extremely damaging to the general intentions of this Bill if, yet again, we were to send it back to the other place. It would send the wrong message.
I understand the points, made by the noble Viscount, that there may be some marginal advantages. I have had representations from the gas industry about this. The overwhelming reason, however, that we should reject the amendment of the noble Lord, Lord Oxburgh, is that the Bill needs to be passed. It should be passed without any further delay. For that reason, I intend to vote very firmly against his amendment.
My Lords, I speak in favour of the amendment. I find it difficult to understand, for anybody who concentrates not on tactical issues such as the speed of passing of the legislation but simply on the wording, what their opposition in principle could be. The simple fact of the case is that Parliament several years ago passed an Act of Parliament by huge majorities, committing us to the very significant decarbonisation of our economy: an 80% reduction in CO2 emissions by 2050. It is the clear conclusion of all analysis, including that of the Committee on Climate Change that I used to chair, that there is no believable path to that emissions reduction by 2050 which does not involve the very significant—almost total—decarbonisation of electricity in particular by around 2030.
Clearly that is completely incompatible with a role for coal other than as providing a small number of hours a year of peaking capacity into the mid or late 2020s. This amendment would simply ensure that that possibility would clearly be excluded—with, however, a get-out under Section 48 if that at all endangered an adequacy of supply. It simply seeks to ensure that we will not have unabated coal in significant quantities in the late 2020s, and it does so 12 years ahead, in order to influence the decisions on investment that are required for security of supply.
I fail to see what the disadvantages of the amendment are. It would give greater clarity over our plans for coal and over the opportunities for gas, and I therefore support the noble Lord, Lord Oxburgh, in his amendment.
My Lords, I am prompted to rise because of the rather unwarranted attack that the noble Viscount made on Ministers. None of us takes responsibility for security of supply in the future. The late Baroness Thatcher used to say that the only thing that was certain in politics was uncertainty. None of us knows what the future holds or what the likely position will be in 12 years’ time. This amendment would remove the flexibility that a future Government would have in order to keep the lights on. It is really quite wrong of the noble Viscount to present this as some kind of political matter that is exercising Back-Benchers in the other place, as he did, with Ministers responding to that rather than to their responsibility to ensure that we have security of supply. I notice that when I asked the noble Baroness on the Opposition Front Bench about security of supply, she did not deal with the issue.
At the end of Question Time, we had a Question about China. We are now importing vast quantities of carbon from China because of the expansion of coal-fired power stations there, and exporting jobs that would otherwise have been here. To present this as some kind of neutral political argument—
I shall give way in a second, if I may. I bow to the considerable experience of the noble Lord, Lord Turner, in this matter, but there was a thing called the financial crisis, which he is also very familiar with, which followed and which has big implications for jobs and prosperity in future. Ministers are entirely right to take account of that.
I thank the noble Lord for giving way. I referenced security of supply in indicating that this would create greater certainty for gas investment, not least by changing the merit order so that gas operated for more of the time. The noble Lord’s interruption made me lose my place at the time, but I was going to go on to mention that I learnt yesterday that one of our biggest renewable projects, the biomass conversion at Eggborough, is now in jeopardy because Ministers in this Government have changed the early CFD feed-in rules in this Bill, which we have yet even to sign into law. The rules have been changed midway through so that the Eggborough project, which currently accounts for 4% of our supply and gives us firm renewables that mean that we can back off from wind, is now in deep jeopardy and is expected to have to close as a result of this Government changing their mind.
The noble Baroness makes my point for me: there is no certainty in the future.
Under this Government.
Under this Government, under future Governments—whatever. All that the Government are arguing in this regard is, “Don’t close off options that may, in the event of the unforeseen happening, occur”. The noble Baroness, who presumably has concluded that she is never going to be in government again, has no interest in that, but those of us who believe that our parties will be in government would like to see our Ministers keep their options open. I hope that the House will reject this amendment.
Does the noble Lord accept, though, that because demand for electricity is currently flat, keeping options open squeezes out investment in new options?
Before I sit down, I say to the noble Baroness that I would be more persuaded by her if she and her party were to be more open-minded about the prospects for fracking, for example, in her advocating the future generation of electricity by gas. As always, though, the noble Baroness wants it both ways, and I hope very much that the House will support my noble friend and reject this amendment.
My Lords, I will comment on the amendment of the noble Lord, Lord Oxburgh. I agree and sympathise with my noble friend Lord Jenkin’s point that the Bill needs to proceed and that we must get it on to the statute book. The only reason I have pursued this is that, as the noble Lord, Lord Turner, suggested, the issue of the continued generation of electricity by coal is fundamental to the policies of both this and the previous Government, and therefore needs to be clarified. These two amendments are attempts to increase as far as possible certainty for investors and clarify the way forward. As the noble Lord, Lord Forsyth, said, that is not completely possible, but at least we can start to close down the risks and probabilities, which is one of the main purposes of the Bill. That is why the amendment has been pursued. I have been happy—although reluctant—not to pursue my own amendment but to try to reach a compromise.
Pricing is not a problem here. Would coal being removed from electricity generation lead to the threat of price increases? In the past few years, when coal has come on, we have not seen prices fall; in fact, the more coal has come on the system, the more they have gone up. That is the correlation; I would not say it is directly causal, but that is the history of how this has worked.
On security of supply, the vast majority of that coal comes from Russia and Colombia, with a little bit from the United States as well. The security of supply arguments do not, therefore, all run in one direction. On the question of how the coal generating industry is treated under any of these amendments, it will be free to operate at peak times for a long time. That, along with contributing into the capacity market, will be greatly to the financial benefit of the power station operators.
That is why these amendments are important. I know that this is not important to everybody, but it is estimated that our carbon emissions went up by 4.5% last year, at a time when we were hoping to bring them down. That was because of the increase in coal generation of electricity, according to the Department of Energy and Climate Change.
This is a good Bill. I congratulate my noble friend the Minister on all that she has succeeded in doing during the passage of the Bill. This is the only contentious Lords amendment, and I seriously regret that the Government have not been able to find a compromise or to help us through this important, core issue.
My Lords, I had not expected to intervene in this debate, but the previous two speeches have forced me to my feet. I remind the House that these amendments, and this part of the Bill, are talking about 2025. There is only one significant carbon target which must be met, which applies in 2050. The rest of it is interim planning. If we are being silly here, of which I am quite capable, and sticking to an interim target, we are taking a very short-term view.
My Lords, I simply point out that the interim targets in the form of the actual budgets are legally binding commitments of the Government under the Climate Change Act. Once the budgets are set—three budgets in advance—they are not merely planning guidelines but are part of the Government’s legally binding commitments.
I am used to the Chancellor of the Exchequer making annual Budgets and I have been involved in politics indirectly and directly for a very long time. If the Chancellor of the Exchequer is forced to, shall we say, amend interim budgets, it seems to me that sticking our feet in the ground over an energy budget is not exactly wise.
My Lords, I am grateful to all noble Lords for their contribution to the debate. I hope that in my opening remarks I made it clear that the Government recognise the intention behind this amendment. Of course we share that intention, but I believe that the differences between us are very narrow, even though they are very important.
It boils down to an assessment of risk. All sides in this debate can agree that we neither expect nor desire large amounts of unabated coal to be operating in the 2020s, but, as my noble friends Lord Forsyth and Lord Jenkin of Roding have rightly pointed out, we cannot be sure today exactly what will be required in those years. The Government’s position is that we should take a precautionary approach, given the serious potential for security of supply implications and the impact on consumer bills if we get it wrong. We should send a clear signal that unabated coal has only a limited future in helping us to transition to a lower carbon economy by creating an EPS that applies to any new coal plant. I appreciate the attempt of the noble Lord, Lord Oxburgh, to find an alternative, but no responsible Government could or should take risks that potentially put energy security in danger.
The noble Baroness, Lady Worthington, raised a point on the capacity market; our view is that capacity payments are likely to have only a marginal impact on the overall economics of coal plant and more important drivers on occasions where upgrading will relate to the overall state of an operator’s plant, an operator’s view of the market and the value that they place on retaining coal as a hedge. Even were they able to do so, this could mean that coal plants stay open longer, but they would operate at low-load factors and hence have low carbon emissions, given the evolution of the energy market with more low-carbon generation and carbon pricing. The noble Baroness could not give complete assurance that energy security would not be at risk. She could not say that prices would stay the same—her own party’s policy does not say that.
It is time that we looked at the elephant in the Chamber—the investors. After months of uncertainty, investors are looking at us in dismay. The most important thing we need to do is to provide certainty for investors by securing Royal Assent. The Confederation of British Industry has said that the Energy Bill has undergone significant scrutiny within Parliament as well as by industry and other stakeholders and it has the broad support of industry and investors in its current shape. It is important to the success of EMR that the Energy Bill receives Royal Assent in 2013, allowing investors to make those well needed decisions about investment.
I thank the noble Baroness for giving way. Will she comment on my questions about Eggborough, as that is the very first test of whether this Bill is actually going to deliver? It was part of DECC’s announcement on projects that are going forward under the FID enabling scheme but I hear that next week they will receive a letter saying that they are not eligible for the first tranche because of a new system that the Government have introduced of rationing out the CFD contracts.
My Lords, the noble Baroness is of course aware that negotiations that are commercially sensitive cannot be discussed; I will not go further than that because these are sensitive issues and it would not be right of me to discuss individual plants, particularly on issues of commerciality.
I will just say that the Secretary of State was at Drax unveiling a new project that is being enabled under the CFDs. If it is that confidential, why was he there?
My Lords, I shall continue by trying to conclude quickly. The Bill has undergone thorough scrutiny and the Government have listened very carefully to all the concerns raised during its passage through this House. I am grateful to my noble friend Lord Teverson for his warm words. We have responded to a great many of the issues raised by colleagues from all sides of the House on, for example, domestic tariffs and access to markets, and we have introduced new topics—for example, carbon monoxide and smoke alarms.
We must acknowledge that the other place has accepted 112 amendments and, moreover, has welcomed them. It has recognised the expertise that this House has brought to the scrutiny of the Bill and the real improvements to it that this House has made. However, the other place has decided with a considerable majority that it does not agree with this amendment. The elected Chamber saw an unprecedented majority for the Bill as it completed its passage through the other place. Today, we can decide that the Bill proceeds to the statute book—a Bill that is essential for protecting consumers and for ensuring security of supply and decarbonisation of our economy. Nothing will send a firmer signal to investors than that this House will do nothing that prevents the Bill receiving Royal Assent.
My Lords, so much for my attempts to find an uncontroversial middle way of bringing all sides together. The temperature of this debate has been a little higher than I would have expected and, indeed, than I would have hoped. I agree with a great deal that the Minister has said on both security of supply and the Bill’s importance for investors. However, the fact is that the amendment increases, rather than reduces, both those things. If Members with a keen sense of smell have detected a faint aroma in the Chamber, it is the aroma of red herrings.
The Minister spoke of concerns about certainty for investors if my amendment is agreed, and the noble Lord, Lord Forsyth, said the same thing. He is quite right: we do not really know what is going to happen in 10 years’ time, but the Bill contains a measure that allows the Government to disregard these constraints if severe circumstances mean that it is necessary to do so. Therefore, that question of security of supply does not really exist.
As far as looking at certainty for investors is concerned, in the near term the necessity is for investment in gas-fired power stations. Everyone agrees with that. This amendment would improve, not reduce, certainty for investors in the time that we can look forward to. I do not know anyone who does not think that we need new gas-fired power stations, and the amendment would help investment in that regard.
The noble Lord, Lord Jenkin, rightly said that we have to get on with it. I am going to press this matter to a vote. I do not think that it need delay the passage of the Bill for more than a few days. As far as investors are concerned, getting the right Bill before Christmas, which the Government can certainly do if they are so minded, will be the main thing. The fact that that happens a day or two later is neither here nor there, and there will be a much more certain basis for investing in new gas.
11 December 2013
Division on Motion A2
Motion A2 (as an amendment to Motion A) disagreed.View Details
Motion A agreed.
Anti-social Behaviour, Crime and Policing Bill
Committee (7th Day)
Relevant documents: 12th Report from the Delegated Powers Committee, 4th Report from the Joint Committee on Human Rights.
Schedule 7: Powers to seize invalid passports etc
56YG: Schedule 7, page 169, line 38, leave out paragraph (b)
My Lords, in moving Amendment 56YG I shall speak also to Amendment 56YH. I have to say that I am amazed by the influence of my noble friend the Chief Whip, who just by sitting there has prevented anyone walking in front of me.
Schedule 7 deals with the powers to seize invalid passports, and these are two quite small, probing amendments, although they are serious. The first amendment would leave out the provision for a constable, who has various powers of search and seizure, to authorise a person—any person,
“to carry out on the constable’s behalf a search under this paragraph”.
That is a search which may involve the use of force—reasonable force, but nevertheless force. I question whether it is right for such powers to be authorised—perhaps not technically delegated, but to the outside world they would seem to be delegated.
My second amendment would leave out the requirement to return an expired travel document, but not where it is thought that it might be intended to be used for purposes for which it is no longer valid. My question, of course, is: why not? If the document has expired, what harm is there? Are there no other systems that are sophisticated and efficient enough to pick up whether an expired travel document is, in fact, expired? This seems an odd sanction, merely on the basis of reasonable belief. My particular reason for questioning it is that it might really irritate people quite unnecessarily. I have written “unnecessary aggro” against this, and I genuinely think that we should avoid causing unnecessary aggro, because there are enough sensitivities around passport and immigration controls and so on without adding one which, to my mind at any rate, is not necessary. I beg to move.
I thank my noble friend Lady Hamwee, who explained that these two amendments relate to the powers to seize invalid passports. As she has said, they are probing in nature. Such powers may be necessary where a passport has been withdrawn in the public interest; for example, to disrupt a person’s travel overseas due to the serious issue that they may be engaged in terrorism.
Amendment 56YG relates to the ability of a constable to authorise a person to carry out a search on their behalf. The purpose of this provision is to allow a constable to make use of support if required when carrying out a search at places other than a port. Such support would be exercised under the authority of a constable, and I reassure my noble friend that, in view of the type of case to which this paragraph applies, it would in practice be likely to be carried out in the presence of a constable. The authorised person—such as a police community support officer—would not be empowered under the provision to use reasonable force or to require a person to hand over the passport for inspection purposes.
Amendment 56YH, which I think my noble friend labelled the “avoiding unnecessary aggro” amendment, relates to expired travel documents. I agree with my noble friend that there is often little harm in returning an expired document to the passport holder. Indeed, there is provision in paragraph 4 of Schedule 7 for that very purpose. The provision recognises that the passport holder may wish to retain the expired passport because, for example, it may include extant visas for travel to other countries. It may even provide memories of places that they have travelled to previously; as well as a visual record, for good or bad, of how we may have looked some 10, or even 20, years ago.
However, on a more serious point, the British passport does of course remain the property of the Crown at all times. There is no entitlement to a passport and no statutory right to have access to it. If a person intends to make use of an expired passport for a purpose for which it is no longer valid—in other words, for a fraudulent purpose—it is right that a constable should be able to remove the document. This would prevent it being used elsewhere for fraudulent purposes, where the level of checks may not be so robust.
It is also entirely inappropriate that a constable should hand back an expired passport to a person where he or she reasonably believes that it is intended to be used for a fraudulent purpose. It would send out the wrong message to the passport holder and would simply allow—if not, indeed, encourage—them to continue to make use of the document for wrong and potentially unlawful reasons. I hope, in light of the explanation I have given, that my noble friend will withdraw her amendment.
My Lords, I will do so but I have to say that, first, on the issue of the expired passport, there are some good reasons which a passport holder may not even think of at the time. One that immediately occurs to me is the need to be able to show the number of days you have been in the country, which involves showing when you have travelled out of and back into the country. There are tax reasons why a number of people need to be able to show that. It is a matter of the officer’s discretion and reasonable belief but I find it difficult to imagine how the conversations would be conducted. I should perhaps ask my noble friend whether he can tell the Committee how one challenges an officer’s decision. His notes may say, even if I did not think of it beforehand.
As regards whether someone other than a constable can exercise the powers of search and seizure, my noble friend says that, in practice, it would be the constable. If that is the case, the obvious question is: why allow for anyone else to do it? Another question is whether there will be instructions to officers—guidance, codes of practice or whatever—that might deal with this. I do not know whether my noble friend can deal with either of those at the moment—I know that colleagues are here particularly to talk about the next group of amendments—but if he has anything to say, that would be good. If not, perhaps he could write to me.
I will just assure my noble friend that I do not think I can add to what I have said other than, on the first point about why we should not restrict the power in that way, it is important that there is a level of flexibility that allows the constable to exercise it. In most cases, as I have said, the person would be someone such as a community support officer. As far as the document is concerned, my noble friend raised the point about other reasons. Of course it is at the discretion of the officer, but one hopes that at that point a case could be made. She raised the issue of tax, which is not one that I was thinking through as she spoke. I am sure that there is a list of other circumstances. However, ultimately, it boils down to the document being the property of the Crown, and it should remain so.
Perhaps after today the Minister could let me know what arrangements there will be for a challenge, and about a code of practice. He nods and, on that basis, I beg leave to withdraw the amendment.
Amendment 56YG withdrawn.
Amendment 56YH not moved.
Schedule 7 agreed.
Clause 132 agreed.
56YJ: After Clause 132, insert the following new Clause—
“Report by Secretary of State
The Secretary of State shall, no later than three months after the coming into force of section 132, report to Parliament his or her recommendations—(a) for the introduction of safeguards in respect of legally privileged material, excluded material and special procedures material in respect of a person detained under Schedule 7 or 8 to the Terrorism Act 2000, and(b) for the introduction of a statutory bar to the introduction in a criminal trial of admissions made by a person detained under Schedule 7 or 8 to the Terrorism Act 2000.”
My Lords, in moving Amendment 56YJ I will speak also to Amendment 56YK. I also have Amendment 100A in this group, which is a consequential amendment. The whole of this group deals with Schedule 8, which is Schedule 7—port and border controls—in the previous legislation. My amendments have come up as a curtain raiser, though in this debate they are probably more of an epilogue. They relate to future possible action rather than to anything that might happen immediately, as would other actions flowing, in most cases, from the work of the JCHR. I am not suggesting that noble Lords who are moving and speaking to them are merely acting as mouthpieces—I know that that is not the case.
My noble friend Lord Lester is unwell and very sorry not to be here to speak to amendments in his name and to which he has added his name; my noble friend Lord Avebury has his instructions. I do not want to make a Second Reading speech at this point—perhaps speeches on these issues will be longer on Report—but I will make some general remarks. I acknowledge that the Government have moved forward a little on the relaxing of the arrangements to which this schedule applies, but like others I am eager for more.
I was interested in some of the comments that the Government included in their publication responding to the response to the review of the operation of Schedule 7. We do not have the responses published, but there are some interesting and telling comments. A self-declared police officer says:
“Schedule 7 should also incorporate a clear commitment and implementation process to the Equality Act 2010 general duty of ‘fostering good relations’”.
There are comments about,
“More tactful or less intimidating examinations”.
The report says of the community engagement events which the Government undertook that,
“The conduct of examinations was raised repeatedly”.
The Equality and Human Rights Commission commented at length on the lawfulness of stopping without suspicion. It said that,
“there should be no power to detain and question for more than 1 hour”,
on the basis that if an officer cannot articulate suspicion after 30 minutes of questions, he certainly should not detain for up to nine hours.
The Government asked whether respondents had any personal experience of being stopped and detained. I note that the proportion of those who said that,
“Schedule 7 powers are unfair, too wide ranging and should be curtailed”,
was considerably higher than the proportion who said they had personal experience. Even if you add the “prefer not to say” responses, it is still a higher proportion.
I was also interested to see the advice to examining officers following the recent case about,
“the right to consult a solicitor in private, in person and at any time during the period of detention”.
I know of a man who was detained but did not exercise that right because he was told by the officer who detained him that this was bound to lead to a delay, meaning that his wife and his elderly, infirm mother, with whom he was travelling, would be left even longer not knowing what was going on—a practice that I hope never to hear of again. Clearly, training in this is an issue.
Of course, my underlying point is about the balance between protection and security, and individual liberty, some of which is about what the Government can do through officers and some of which is about safeguards written into the legislation.
My amendments anticipate what we might be seeking if this debate were following the report by the independent reviewer of terrorism legislation when we know the outcome of the Miranda case, but I have picked up on his evidence to the recent Home Affairs Select Committee inquiry into this. Amendment 56YJ picks up two of his recommendations, 4 and 7, on the introduction of safeguards in respect of legally privileged material and on a bar to the use in a criminal trial of admissions made in the circumstances of such a detention.
Amendment 56YK shows that I am ever the optimist. I would never expect wording such as this to be used in legislation, but we are only in Committee. It seeks assurances from the Government about following through on—although I would say, for the purposes of the debate, looking seriously at—recommendations made by the independent reviewer following the Miranda case. I am sure that my noble friend the Minister will give assurances about that. I remain optimistic but also vigilant. As I said, Amendment 100A is consequential. I beg to move.
My Lords, I will speak to Amendments 57 to 64. It is important to consider the backdrop here. Schedule 7 of the Terrorism Act 2000 is a highly intrusive police stopping power and it operates outside the normal regulatory framework that covers other police powers of stop and search.
Under Schedule 7, individuals are stopped and they are not under arrest but they are examined for up to nine hours, under the current arrangements, where they can be questioned, searched and have their belongings searched; they can be strip-searched; and they can have samples of their biometric data, including their DNA and fingerprints, taken from them, regardless of the outcome of the encounter and in the absence of a lawyer. People are stopped under it and are obliged to co-operate or face arrest, a period of imprisonment or a fine for any refusal. In addition, there is no right to compensation or assistance in rearranging any flights or other transportation that they might have missed as a result of this examination or detention. It is important to see just how extraordinary these powers are.
Recent research has shown that in 2011-12—the examination of this material has only just been encapsulated in a report—63,902 stops were carried out under Schedule 7. Of these, 2,240 lasted more than an hour and 680, which is less than 1%, resulted in a detention. Although no information has been provided on the number of people convicted, and on what charges, there were just 10 terrorism-related convictions between 2009 and 2012. I have been involved in most of the cases and can tell you that none was as a result of a stop at an airport or any port. We have no convictions based on these stops.
Black and minority ethnic groups make up the majority of those subject to the stops—some 56%—even though they account for approximately 14% of the national population. Asians accounted for 27% of Schedule 7 stops but are only 7.5% of the national population. Blacks accounted for 8% of stops but they are only 3.3% of the population. People from mixed backgrounds accounted for 3% of stops but are only 2.2% of the population. People from other ethnic groups, including Chinese and other, accounted for 18% of stops, although they are only 1% of the population.
The targeting of black and minority ethnic groups continues to be even more marked when we consider the most intensive Schedule 7 stops. It appears that shorter stops are made, basically, of white people. The people who are detained for any length of time almost invariably are from ethnic minority groups. Of those stops that lasted for more than an hour, 36% were of Asians, 14% were of blacks, 3% were of people from mixed backgrounds and 24% were of people from other backgrounds. Fewer than 12% of stops that lasted more than an hour were of white people. Therefore, when a police officer says, as the noble Baroness, Lady Hamwee, mentioned, that this is interfering with the fostering of good relations, we can understand why.
Politicians in this House and in the other place have raised concerns, as have civic groups and the Equality and Human Rights Commission. Indeed, the United Nations Human Rights Committee has expressed grave concerns over the use of counterterrorism measures in this country and was particularly concerned over what it judged to be religious and ethnic profiling in the use of these powers. It should concern us as a House that this is the perception.
David Anderson QC—the terrorism watchdog if you like—said:
“I have not been able to identify from the police any case of a Schedule 7 examination leading directly to arrest followed by conviction in which the initial stop was not prompted by intelligence of some kind”.
He is basically saying that when the police make stops that go on to lead to further investigation it is invariably because there has been a reasonable suspicion. Yet, reasonable suspicion is not what is required. The police can stop people without any reasonable suspicion at all. Despite this, official statistics on the use of this power illustrate that it has not been used in an intelligence-led approach and that people from ethnic minority backgrounds are more likely to be subjected to the more extreme aspects of the power, particularly people from Asian backgrounds. That is the basis on which I bring these amendments to this legislation.
I know, as the noble Baroness, Lady Hamwee, said, that a number of groups are calling for a reduction of the maximum period of detention to one hour. However, I am not taking it down as low as that. In my amendments I am suggesting that going down to six hours, as the Government have promoted in this Bill, is an advance and to be welcomed, but it should be much lower than that. I am suggesting that we should take the moderate course and reduce it to three hours, at which point the person should either be released or arrested. It is worth noting that 97.2% of examinations take less than an hour, so if we give the police, or those who are involved in exercising these powers, the additional couple of hours that I suggest in my amendments, we will give the authorities as much practical power as they need.
I turn to the issue of the power to take non-intimate biometric data, including DNA and fingerprints. I suggest that that should be repealed in the light of the huge concern about its impact. The Government have already said that they will repeal intimate samples being taken, but I am asking that that be extended to non-intimate samples.
Most of the community, legal, academic and equality groups are calling for a much greater awareness among officers of the way in which special powers should be used and that there should be better training. Advice and assistance should be provided to people who miss their flights, and so on. The kernel of the amendments is that the minimum threshold of suspicion should be reasonable suspicion. It should be on that basis that any individual is stopped. Otherwise, it is impossible to have any independent scrutiny of the exercise of those intrusive powers. We cannot test the use of the powers if someone says, “It was my sense of smell. It was my policeman’s nose that told me that I should stop this person”. That is not good enough.
The independent reviewer suggested that there might be some test of subjective suspicion, but that cannot be a test that could be scrutinised in any acceptable or sensible way. The PACE code, which governs other stop powers, should be extended to cover stop and searches conducted under Schedule 7, and Schedule 7 stops should be monitored under the same framework as all the stop and search powers that we currently have, and data should be shared with community and monitoring groups.
That is the basis on which I have put forward my amendments, and I look forward to hearing the Minister’s response to those recommendations to the House.
My name is attached to the amendments in this group in the name of my noble friend Lord Lester, who, as my noble friend Lady Hamwee has already said, is unfortunately indisposed and unable to be present for this debate.
Let me say at once that I agree with all the amendments proposed by the noble Baroness, Lady Kennedy, as well as those in our name. She made a convincing argument, particularly on the ineffectiveness of the legislation. In spite of the vast number of stops and searches that have taken place, we have not had a single conviction. This is not a device for catching terrorists or even being able to question them—the noble Baroness added that none of them had even been charged. This matter has caused enormous concern to the Joint Committee on Human Rights and to the Equality and Human Rights Commission, with which we have an opportunity to discuss the amendments. It is as worried as we are that Schedule 7 to the Terrorism Act could violate human rights and equality laws and cause immense damage to community relations because of its widespread negative impact, particularly on our Muslim population. The EHRC made submissions to the Home Office consultation on Schedule 7 powers, and again, in 2013, it made a further submission to the Joint Committee on Human Rights in relation to its scrutiny of the Bill. It seems to me that the EHRC has been ignored.
We recognise the importance of stop and search powers as a tool for crime detection and prevention, and we acknowledge that Schedule 7 forms part of the UK’s counterterrorism strategy, which is aimed at protecting people in ports and airports and on the chief modes of transport which have been targeted by terrorists in the past. It could also prevent terrorists from entering UK territory.
However, we believe—with others—that the legal form and practical exercise of these powers should comply with equality and human rights legislation. The powers have to be used appropriately, proportionately and in a non-discriminatory manner. In its report, The Impact of Counter-terrorism Measures on Muslim Communities, the EHRC noted that Schedule 7 is eroding Muslim trust and confidence in policing and called for greater transparency and accountability around its use. Following the consultation already mentioned, Clause 132 and Schedule 8 to the Bill propose certain changes to the provisions in Schedule 7 to the Terrorism Act 2000 for stopping, examining and detaining people at ports. However, I agree with the EHRC that to do this without the need for reasonable suspicion or other limitations is far too broad, lacks efficient safeguards, and could be a breach of the requirement that such an interference should be prescribed by, and in accordance with, the law pursuant to Articles 5 and 8 of the European Convention on Human Rights.
This point has also been made by the Joint Committee on Human Rights and several of the amendments in this group are based on its recommendations. This is especially the case when an individual is questioned about his political and religious beliefs and activities, as well as those of others in his community and family. The Islamic Human Rights Commission says it has received dozens of complaints of inappropriate questioning, such as officers asking Muslims whether they pray, whether they would be willing to spy on their communities and which party they voted for at the last election. The commission concludes that,
“Schedule 7 has done more to alienate people than address the issue of national security.”
I will give two examples from my own experience. First, a British Shia imam, returning to the UK through Heathrow terminal 1, was detained, interrogated at length and had his fingerprints and DNA taken. I was told the samples would be retained indefinitely, for comparison with samples taken at the scene of terrorist offences. I wrote to Jacqui Smith, then Secretary of State for the Home Office, on 5 December 2008, asking for the samples to be destroyed, in the light of the case of S and Marper at the European Court of Human Rights. I finally got the samples destroyed and the imam’s name expunged from the database on 25 January 2010 after 13 months of correspondence and telephone calls with Ministers and their offices and various branches of the police, including SO15, or Counter Terrorism Command.
In a second case, which is still ongoing, a friend of mine, who is a Bahraini national, has been stopped several times at Heathrow and King’s Cross and his complaint was taken over by the IPCC, which issued proceedings against the Metropolitan Police on 10 October 2013 because it would not investigate the basis for the stops. It was expected that some months could elapse before the case was heard in the High Court, and I would be grateful if my noble friend could give me an update on that. As I said to the Security Minister, James Brokenshire, it is clearly unacceptable that our police should be harassing and intimidating Bahraini refugees here, including British citizens, when they are entitled to protection from the regime that persecuted them. Instead, it is clear that our police are acting as agents of the al-Khalifa oppressors. It is odious that peaceful opponents of any state which violates human rights should continue to be persecuted after they seek asylum here. It is not simply an operational matter for the police, but one that touches on our obligations under the refugee convention. As I also said to Mr Brokenshire, I do not believe the police would have acted in this disgraceful way unless they had been told from on high that this is how they were expected to behave.
More widely, the EHRC’s statistical analysis of examinations and detentions under Schedule 7 suggests that disproportionately high numbers of black and Asian passengers are being stopped and the disproportion increases further with over-the-hour examinations and still further with detentions. The code of practice on Schedule 7 prohibits reliance on ethnicity as the sole reason for examining a person, so the EHRC suggests that an investigation be undertaken to see whether that is the practice. However, statistics alone cannot prove that a power is being used in a discriminatory manner; a more comprehensive study is needed to see whether the conduct of the police under Schedule 7 breaches the Equality Act. I hope that my noble friend will say that in light of the experience, such an inquiry will be undertaken.
To look at the amendments for a few minutes, Amendment 57 would ensure that Schedule 7 powers cannot be used inappropriately where the dominant purpose is to gather general intelligence, or evidence for the security services or others, to use in legal proceedings beyond the statutory purpose of the power, which is solely for the examining officer to determine whether the person appears to be,
“concerned in the commission, preparation or instigation of acts of terrorism”.
Amendment 57 provides that there is adequate ongoing monitoring and analysis of the use of the power, and that no individual can be forced to answer questions under the threat of criminal sanction unless they are arrested as a suspected terrorist who is or has been “concerned in ... terrorism”.
We are advised that statements made by individuals during Schedule 7 stops cannot lawfully be relied upon in control order or terrorism prevention and investigation measures proceedings, nor in asset-freezing proceedings, because that is not the statutory purpose of Schedule 7. That needs to be made clear. This amendment adds safeguards by ensuring that Schedule 7 powers should not be used where the dominant purpose is to gather general intelligence, or evidence for the security services or others, to use in legal proceedings beyond the scope of the statutory purpose of Schedule 7.
Amendments 57A, 61A and 61B, in the name of my noble friend Lord Lester, concern the accessing, searching, examining, copying and retention of data on personal electronic devices. The JCHR said in paragraph 122 of its fourth report that these powers in Schedule 7 were,
“so wide as not to be ‘in accordance with the law’”.
It welcomed the express reference to necessity and proportionality in the working draft of the revised code of practice but does not consider that the code is sufficient to circumscribe the width of the powers. The Joint Committee said that the powers should only be exercisable on reasonable suspicion; these amendments give effect to its recommendations.
Amendment 58 provides that the power to detain and question for more than an hour can be exercised only if the examining officer has by that point formed a reasonable suspicion that the person being questioned is or has been “concerned in … terrorism”. This is another of the amendments recommended by the JCHR. I hope that your Lordships would agree with the distinction that it draws between, on the one hand, the powers which can be exercised without reasonable suspicion—such as the power to stop, question and request documentation, and physically search persons and property—and, on the other, the more intrusive powers such as detention, strip-searching, searching contents of personal electronic devices, the taking of biometric samples and the seizure and retention of property, including personal information on electronic devices, which should be exercisable only if the examining officer reasonably suspects that the person is or has been “concerned in … terrorism”. This amendment gives effect to the JCHR proposal for a reasonable suspicion requirement before the more intrusive powers under Schedule 7 are exercisable, and to its suggestion that the threshold for these powers should be the point at which the person being examined is formally detained, after one hour of questioning.
As to Amendments 59, 60 and 61, paragraph 2 of Schedule 8 removes the current nine-hour maximum time for questioning under Schedule 7. Paragraph 2(3) proposes new paragraph 6A that provides that a person may be questioned for up to one hour under paragraphs 2 and 3 of Schedule 7. If the examining officer wants to question the person for more than one hour, then the person will have to be detained under new paragraph 6 of Schedule 7, which triggers the safeguards contained in Schedule 8 to the Terrorism Act 2000. As the noble Baroness, Lady Kennedy, pointed out, between 1 January 2009 and 31 March 2012, only 3% of examinations continued for more than one hour, and only one in 2,000 examinations lasted more than six hours. It is therefore correctly proposed in these amendments that the maximum length of detention under Schedule 7 should be reduced from six to three hours. That is appropriate.
On Amendment 62, paragraph 4 of Schedule 8 inserts new paragraph 11A in Schedule 7 to the 2000 Act enabling examining officers to copy anything which is given to them or is found during a search and to keep a copy of such material for as long as it is necessary for the purpose of determining whether the person is or has been “concerned in … terrorism”.
This is a very wide power, which could lead to sensitive personal data being retained for indefinite periods of time. Even with a reasonable suspicion that the information retained may prove that the person is “concerned in... terrorism”, this power has the clear potential to infringe the Article 8 rights of persons examined under Schedule 7, because of its highly intrusive and open-ended nature. In addition, even if further safeguards were implemented, such as limits on the length of time the data could be retained or prohibitions on sharing the data, there is still the potential for breaches of Article 8 to occur, resulting from the retention of the data. Therefore Amendment 62 correctly proposes that this provision should be removed entirely from the Bill.
I will not go through the remaining amendments because time is short, but your Lordships may wish to note the recent Administrative Court decision in the case of Elosta v The Commissioner of Police for the Metropolis, in which it was held that it is unlawful to restrict a person who has been detained at a port or airport under Schedule 7 to the Terrorism Act to being entitled to have legal advice from a solicitor on the telephone only prior to a police interview, rather than having the right to have a solicitor present in person during the questioning where the detainee has specifically asked for that greater form of protection. I am pleased to see that Amendment 63 would give effect to that provision.
Finally, Amendment 64 would prohibit the collection of non-intimate DNA samples without consent from people who have not been arrested or charged. Taking and retaining samples from a person who has not been arrested or charged, and who is not the subject of reasonable suspicion, has serious privacy implications and should not be allowed.
I hope that all these amendments will be acceptable to the Government.
My Lords, before the Minister rises, perhaps I may indicate, as I did not specifically mention it, that I, too, am urging that the threshold of reasonable suspicion should be the standard before downloading, retaining and copying material on electronic devices of any kind. Even if the Government do not accept the amendment on stopping—that there should be reasonable suspicion at that point—at the very least we should move on to reasonable suspicion before we start taking people’s devices and entering into private material and retaining it.
I, too, am a member of the Joint Committee on Human Rights. Discussion, as your Lordships will anticipate, ranged far and wide over this new Schedule 8 amending Schedule 7 to the Terrorism Act. Giving the perfectly proper right to stop and seize and, at the same time, preventing so far as possible any abuse of that power is a difficult balance to strike. However, it is worth recording that we concluded that the Government had made out a case for a without -suspicion power to stop, question and search travellers at ports and airports, given the current nature of the threat from terrorism, the significance of international travel, the overall threat picture and the evidence seen by the independent reviewer demonstrating the utility of non-suspicion stops at ports in protecting national security. Therefore, we also concluded that the retention of this power under Schedule 7 was not inherently incompatible with Articles 5 and 8 of the European Convention on Human Rights.
We are in the slightly unfortunate position of still awaiting the report by the independent reviewer of terrorism legislation on the David Miranda case, which will perhaps shed some light on this power generally. The Government clearly pay considerable heed, quite rightly, to what the independent reviewer of terrorism recommends but, with great respect to my noble friend Lady Hamwee, simply subcontracting responsibility, as her Amendment 56YK would, from the Secretary of State to the independent reviewer would go rather too far.
This is a very difficult balance to strike. The Government have come some way towards a balance in favour of those who might become the victims of an abuse of power. The question is whether they have come far enough.
My Lords, this has been a useful debate. The issues that have been raised are around the difficult balance between civil liberties, national security and counterterrorism measures that the noble Lord, Lord Faulks, referred to. The points made today about those issues are extremely useful and I look forward to hearing the Minister’s comments on them.
We are greatly assisted today by the supplementary written evidence of David Anderson QC. We are indebted to him because, when giving evidence on 12 November, he was asked to spell out what changes he would recommend to the port powers in Schedule 7 and the Minister, Damian Green, had already said in the other place that he expected recommendations. At Second Reading in your Lordships’ House, I said that I thought it was optimistic of the noble Lord, Lord Avebury, to hope that we would be able to see any such recommendations from David Anderson while we were still debating the Bill. I thought he was being optimistic but that optimism was well founded. We are indebted and grateful to David Anderson for the efforts that he must have gone to in order to ensure that we had his recommendations before we had completed our deliberations—indeed, as we were having our Committee debates. I hope that the Minister will endorse that. That is very helpful and greatly welcomed.
I shall not comment on each individual amendment, but a number of the amendments before us today relate to his report. As I said, I will be interested to hear the Government’s response to them as there are areas to which the Government may want to give further consideration and on which they may want to bring forward amendments before the conclusion of proceedings on the Bill.
On Amendment 56YJ and the issue of privileged material, although David Anderson reflects that identifying the details of changes is difficult before we have the Miranda judgment, he identifies this as an area where there need to be safeguards and clarity around those safeguards. It is not an area where there should be any confusion or ambiguity. It would be helpful today if the Minister were to say on behalf of the Government whether they accept the principle of David Anderson’s recommendation in this regard. We are certainly sympathetic and would welcome the opportunity to consider further the kind of safeguards that could be introduced.
Also on Amendment 56YJ, I think it was in the Beghal v DPP decision that the court supported the introduction of a statutory bar to Schedule 7 admissions in a subsequent criminal trial, although it also recognised that this would have to be given detailed consideration. David Anderson has now added his support to that of the court and that also forms part of his recommendations. Again, we would be very sympathetic to that and would be interested to know whether the Government intend to support that recommendation, which this amendment reflects.
Amendments 56YK and 100A refer to a process by which effect could be given, almost automatically, to the recommendations of the independent reviewer of terrorism legislation. There is some merit in looking at how recommendations could be acted on more quickly but we would welcome the opportunity to see more detailed proposals. It would be helpful to have a mechanism to take action more quickly than always having to wait for the next legislative slot for primary legislation in the Government’s timetable. However, whether secondary legislation, even with the affirmative procedure, would give adequate opportunity for effective scrutiny by Parliament, which should be making the decisions, has to be looked at in some detail.
On Amendment 62A, in the names of the noble Lords, Lord Lester and Lord Avebury, we would certainly be supportive of removing the restrictions if the interview takes place in a police station. Amendments 57A, 61A and 61B would establish limits on the duty to give information and documents that are held electronically. We have concerns about how this law is currently being applied. I note that David Anderson has also called for appropriate safeguards regarding the use and retention of such data. It would be helpful to hear from the Minister whether the Government consider that the problem is a lack of clarity in the existing law or whether further action needs to be taken.
We would also be sympathetic to Amendment 64ZA on the periodic review of an individual’s detention. I would welcome the Government’s comments on David Anderson’s recommendation that the intervals for review should be specified in the schedule, as outlined in the amendment, and not just in guidance. There can sometimes be a lack of clarity around the purpose of guidance. The importance of it being in the schedule and not just in guidance was also included in the JCHR report. The Government have indicated that they may support this, so I am optimistic about a positive response on that one.
This is quite a difficult area in which to find the appropriate balance. The House has heard about the attention to detail that has been given to this range of issues. It would be helpful if the Minister could clarify in his response the Government’s views on these issues, particularly in the light of the amendments which reflect so much of what is in David Anderson’s recommendations.
My Lords, I thank the noble Baroness, Lady Smith, for the way in which she has contributed to the debate. All noble Lords have recognised the seriousness of this issue. I understand that all noble Lords who have spoken have tried to exercise their best judgment in this particularly sensitive area. My noble friends Lady Hamwee and Lord Avebury, the noble Baroness, Lady Kennedy, and my noble friend Lord Lester—I am sure we all wish him a speedy recovery in his absence—have all raised a number of issues through their amendments.
As has been pointed out, the independent reviewer of terrorism legislation, David Anderson QC, has recently made some recommendations for further reforms to the powers contained in Schedule 7 to the Terrorism Act. These recommendations, as my right honourable friend Damian Green reported, are being considered by Ministers. We are grateful to the independent reviewer of terrorism legislation for his report.
I have to say that, as Mr Anderson has also observed, there is a limit to how far these matters can be considered before the conclusion of the judicial review proceedings in the case of David Miranda. That being the position, while I welcome the opportunity to air these important issues in debate now, I propose only to set out the Government’s preliminary view of the amendments before us today. Subject to the timing of a judgment in the Miranda case, I hope to give a more definitive view before the Bill moves on to Report—I will make sure that noble Lords are aware as soon as we are in that position.
As the noble Baroness, Lady Smith, invited me to do, I begin by touching on Amendments 56YJ and 56YK, which deal with some complex issues. The first of these is around safeguards for legally privileged and related material and the use of admissions in criminal proceedings. It is right that the Government are considering these matters and they are doing so now. There is no need for the Bill to require that consideration in future.
I would like to be clear that the current compulsion under Schedule 7 to the 2000 Act to answer questions means that admissions made in an examination would not normally be considered admissible in criminal proceedings. Both the High Court and the independent reviewer of terrorism legislation have suggested that a statutory bar be introduced to this effect, and this is something that we are examining carefully.
It is right that the independent reviewer of terrorism legislation makes recommendations, but Amendments 56YK and 100A seek to tie the hands of the Secretary of State by, in effect, requiring her to implement the recommendations of the independent reviewer. It is for the Government and Parliament to decide what legislative changes should flow from the independent reviewer’s recommendations. Given the importance of these issues, any such legislative proposals should be subject to full parliamentary scrutiny—as with the provisions in this Bill—rather than implemented through secondary legislation, as my noble friend has suggested in Amendments 56YK and 100A.
Amendments 57 and 58 deal with fundamental principles of the powers. First, Amendment 57 seeks to qualify the definition of the purpose for which these powers can be used. The legislation is already clear: they are for the purpose of determining whether a person appears to be someone who has been concerned in the commission, preparation or instigation of acts of terrorism.
The noble Baroness, Lady Kennedy, has expressed concern that the powers may be used in a discriminatory way. Accordingly, Amendment 57 also includes requirements on collecting data. Requiring examining officers to collect data on all protected characteristics from all individuals examined under Schedule 7 would be both very intrusive and extremely bureaucratic. It would also prolong the majority of examinations, of which 63% are completed within 15 minutes. There is a question as to how useful such data would be.
Direct comparison with the UK population is not really relevant here. A significant proportion of those who travel through ports are not UK residents. The use of the powers is based on the current terrorist threat to the United Kingdom, meaning that certain routes are given greater focus. Consequently, some ethnic groups may be more likely to be examined, but not because the powers are being used inappropriately. As the independent reviewer of terrorism legislation reported in his recent annual report:
“If the power is being properly exercised ... one would expect”
that those examined, in terms of breakdown, would,
“correlate not to the ethnic breakdown of the travelling population, but rather to the ethnic breakdown of the terrorist population”.
He went on:
“Police are however entitled and indeed required to exercise their Schedule 7 power in a manner aligned to the terrorist threat. As in previous years, I have seen no evidence, either at ports or from the statistics, that Schedule 7 powers are exercised in a racially discriminatory manner”
That said, we are working with the police and the Equality and Human Rights Commission to find a balance between increasing transparency without increasing the bureaucratic burden. I would also like to reassure the noble Baroness that the statutory code of practice for examining officers makes clear that someone cannot be examined based solely on their ethnicity or their religion.
The final element of Amendment 57 would remove the compulsion on individuals examined at ports and airports to provide information. This would fundamentally undermine the whole purpose of the legislation. Schedule 7 examinations have led to individuals being convicted for terrorist-related offences and have produced information which has contributed to long and complex intelligence-based counterterrorist investigations and the disruption of terrorist activity. If someone could simply refuse to answer questions, the utility of the provision would be fundamentally brought into question.
Amendment 58 seeks to introduce a reasonable suspicion test to be met before an examining officer may detain a person under Schedule 7. Again, this would undermine the capability of the police to identify individuals who are involved in terrorism as they passed through our ports and borders. Examinations are not simply about the police talking to people who they know or already suspect are involved in terrorism. They are also about talking to people travelling to and from places where terrorist activity is taking place or emerging to determine whether those individuals appear to be involved in terrorism, whether that is because they are or have been involved, are going to become involved or are at risk of becoming involved either knowingly or unknowingly.
For those reasons, I am not persuaded that it would be right to introduce a test of reasonable suspicion. I am pleased that my noble friend Lord Faulks has been able to explain that the Joint Committee on Human Rights has supported this position. However, the independent reviewer of terrorism legislation has recently recommended that detention be permitted and continue on periodic review only when an officer is satisfied that there are grounds for suspecting that the person appears to be a person concerned with terrorism. We are reflecting on this recommendation ahead of Report.
Amendments 59, 60 and 61 would further reduce the maximum period of detention. The police need time to carry out checks and questioning. The person may have a lot to say, detailed or complex questioning may be required, inconsistencies in the person’s account or documentation may need to be understood, or time may be needed to allow the person to consult privately with a legal adviser or to allow for interpretation. We are already reducing the maximum period by a third but there is a balance to be struck, and for that reason I do not believe that it should be reduced further.
Amendments 57A, 61A, 61B and 62 seek to restrict examining officers’ powers in respect of the property of people who are examined. The power to search for and examine property, including on personal electronic devices, is an essential part of the Schedule 7 powers. As the independent reviewer of terrorism legislation has observed,
“it is of vital importance that the copying and retention of data from mobile phones and other devices should be provided for by a law that is clear, accessible and foreseeable”.
New paragraph 11A of Schedule 7 to the 2000 Act, by clarifying the law, meets a requirement of the European Convention on Human Rights that interference with convention rights be in accordance with law that is adequately accessible and foreseeable. Amendment 62 would take away that clarification.
On Amendment 62A, noble Lords will understand that ports, airports and international rail terminals are quite different from police stations, and, as such, recording facilities are not always going to be available. If recording were mandatory, more individuals would be liable to being transported from the port to a police station where facilities are available, extending the duration of the examination. The questioning of any person detained for examination under Schedule 7 at a police station already falls under a code of practice for the video recording of interviews.
Amendments 63, 64 and 64ZA relate to areas where we are already introducing reforms through the Bill. While the Bill ensures that all persons detained under these powers will have a right to consult a lawyer and to have someone informed of their detention, Amendment 63 would extend those rights to everyone examined. As I have explained, some 63% of examinations last less than 15 minutes. More than 96% are concluded within an hour. Extending statutory rights to all those being examined, even briefly, would create an unnecessary burden and could well lead to longer examinations than are necessary. I would also like to remind noble Lords that the Bill already ensures that anyone examined for more than an hour must be formally detained, so there is no question of prolonged examination without these rights applying.
Amendment 64 relates to biometrics. Biometrics play an important part in establishing the identity of those travelling through the ports and in assisting the determination of those involved in terrorism. Samples are taken from less than 1% of people examined under Schedule 7. However, a small but significant number of samples have provided links to counterterrorism investigations and identified individuals using alias details. It is therefore important to retain this power. However, perhaps I can reassure my noble friend Lord Avebury that DNA and biometric material obtained under a Schedule 7 examination must be destroyed in line with the Protection of Freedoms Act 2012. If the person has not been convicted of an offence, the sample cannot be retained indefinitely. We recognise the impact that taking a sample could have on a person’s privacy and we are taking steps to limit it. I would remind the noble Baroness that the Bill will repeal the current provision in Schedule 7 to obtain intimate samples.
Finally, Amendment 64ZA would build on one of the key changes we are making in the Bill: we are introducing a statutory review of detention. We recognise the importance of clear review periods as part of the new provisions. Our intention is to address this in the code of practice for the examining officer, and this is clearly set out in the draft code we have published. However, in the light of the debate today, the Government will reflect further on whether these periods should be set out in the statute itself.
This debate has been well worth while. It has given me an opportunity to explain how the Government are responding to the independent reviewer’s report and how the Bill is moving this issue forward. I hope that I have been able to give noble Lords some reassurance on the issues raised. As I said at the start of my remarks, we continue to consider these issues in the light of the recommendations in David Anderson’s recent evidence to the Home Affairs Select Committee. That evidence was submitted only on 20 November and noble Lords would expect us to take a little time to consider our response given the sensitivity and complexity of the issues. However, above all, we are awaiting the outcome of the judicial review in the David Miranda case. We want to reflect carefully on the points made in the debate today because they have been valuable.
On that basis, I hope that my noble friend will withdraw her amendment and that the noble Baroness, Lady Kennedy, will not press her amendments in the knowledge that we will come back to this issue at Report with clarification of the Government’s position in the light of the report and the judicial review.
My Lords, I thank the Minister for his very considered response to the matters that have been raised. I am grateful to him for indicating that further thought will be given to some of the matters that have been part of the debate here. I know that there will be no movement on certain things, but that there might be some movement on others. On that basis, I will not press my amendment.
My Lords, I am extremely grateful to my noble friend for his very helpful response and I am glad that there will be further opportunity to discuss these things. He has given some important assurances on a number of points. My amendment 56YK was really rather tongue-in-cheek, of course. It was also a bit of a nod to my honourable friend the Member for Cambridge, who had it down in the Commons but did not really manage to speak to it. I would not subcontract such matters, but the assurances of further consideration are very helpful to hear. I have never doubted the very serious way in which the Government are considering this.
A number of noble Lords will want to take part in discussions of this on Report. In particular, the noble and learned Lord, Lord Lloyd of Berwick, was not able to stay long enough this afternoon, and I am sure that my noble friend Lord Lester will be back to discuss it. I think that I can assure the Committee that there will be a pretty substantial debate next time round. Most importantly, we will be looking at where the Government’s thinking is going before we come back onto the Floor of the House. There are clearly very important discussions to be had. On that basis, I beg leave to withdraw the amendment.
Amendment 56YJ withdrawn.
Amendment 56YK not moved.
Schedule 8: Port and border controls
Amendments 57 to 64ZA not moved.
Schedule 8 agreed.
We come to Amendment 64A. I call the noble Lord, Lord Taylor of Holbeach. I am sorry; I call the noble Lord, Lord Ahmad of Wimbledon.
64A: After Schedule 8, insert the following new Schedule—
SchedulePowers of community support officersIntroduction1 Part 1 of Schedule 4 to the Police Reform Act 2002 (powers of community support officers) is amended as follows.
Additional powers to issue fixed penalty notices2 (1) In paragraph 1 (powers to issue fixed penalty notices), in sub-paragraph (2)(b), for the words after “in respect of an offence” there is substituted “listed in sub-paragraph (2B)”.
(2) In sub-paragraph (2) of that paragraph, after paragraph (ca) there is inserted—
“(cb) the power of an authorised officer of a borough council to give a notice under section 15 of the London Local Authorities Act 2004 in respect of an offence under section 38(1) of the London Local Authorities Act 1990 or section 27(1) of the City of Westminster Act 1999 (unlicensed street trading);”.(3) After sub-paragraph (2A) of that paragraph there is inserted—
“(2B) The offences referred to in sub-paragraph (2)(b) are—(a) an offence under section 72 of the Highway Act 1835 (riding on a footway) committed by cycling;(b) an offence under section 5(1) or 8(1) of the Road Traffic Regulation Act 1984 involving a contravention of a prohibition or restriction that relates to—(i) stopping, waiting or parking at or near a school entrance,(ii) one-way traffic on a road, or(iii) lanes or routes for use only by cycles, only by buses or only by cycles and buses;(c) an offence under section 24 of the Road Traffic Act 1988 (more than one person on a one-person bicycle);(d) an offence under section 35 of that Act (failing to comply with traffic directions) committed by the rider of a cycle;(e) an offence under section 36 of that Act (failing to comply with traffic signs) committed by the rider of a cycle who fails to comply with the indication given by a red traffic light;(f) an offence under section 42 of that Act of contravening or failing to comply with a construction or use requirement about—(i) lighting equipment or reflectors for cycles,(ii) the use on a road of a motor vehicle in a way that causes excessive noise,(iii) stopping the action of a stationary vehicle’s machinery,(iv) the use of a vehicle’s horn on a road while the vehicle is stationary or on a restricted road at night, or(v) opening a vehicle’s door on a road so as to injure or endanger a person;(g) an offence under section 163 of that Act (failing to stop vehicle or cycle when required to do so by constable or traffic officer).(4) After sub-paragraph (4) of that paragraph there is inserted—
“(5) In this paragraph “cycle” has the same meaning as in the Road Traffic Act 1988 (see section 192(1) of that Act).”Powers to issue fixed penalty notices: consultation with local authorities3 In paragraph 1, after sub-paragraph (2B) (inserted by paragraph 2(3) above) there is inserted—
“(2C) Before a chief officer of police makes a designation applying this paragraph to any person and specifying or describing an offence listed in sub-paragraph (2B)(b)(i), the officer shall consult every local authority any part of whose area lies within the officer’s police area.
(2D) In paragraph (2C) “local authority” means—
(a) in relation to England, a district council, a London borough council, the Common Council of the City of London or the Council of the Isles of Scilly; and(b) in relation to Wales, a county council or a county borough council.”General power of seizure4 After paragraph 2A there is inserted—
“General power of seizure2B Where a designation applies this paragraph to any person—
(a) that person shall, when lawfully on any premises in the relevant police area, have the same powers as a constable under section 19 of the 1984 Act (general powers of seizure) to seize things;(b) that person shall also have the powers of a constable to impose a requirement by virtue of subsection (4) of that section in relation to information accessible from such premises;(c) subsection (6) of that section (protection for legally privileged material from seizure) shall have effect in relation to the seizure of anything by that person by virtue of sub-paragraph (a) as it has effect in relation to the seizure of anything by a constable;(d) section 21(1) and (2) of that Act (provision of record of seizure) shall have effect in relation to the seizure of anything by that person in exercise of the power conferred on him by virtue of sub-paragraph (a) as if the references to a constable and to an officer included references to that person; and(e) sections 21(3) to (8) and 22 of that Act (access, copying and retention) shall have effect in relation to anything seized by that person in exercise of that power or taken away by him following the imposition of a requirement by virtue of sub-paragraph (b)—(i) as they have effect in relation to anything seized in exercise of the power conferred on a constable by section 19(2) or (3) of that Act or taken away by a constable following the imposition of a requirement by virtue of section 19(4) of that Act; and(ii) as if the references to a constable in subsections (3), (4) and (5) of section 21 included references to a person to whom this paragraph applies.”Powers with regard to charity collectors5 After paragraph 3A there is inserted—
“Power to require name and address etc: charity collectors3B Where a designation applies this paragraph to any person, that person shall, in the relevant police area, have the powers of a constable—
(a) under section 6 of the House to House Collections Act 1939 to require a person to give his name and address and to sign his name; and(b) under regulations under section 4 of that Act to require a person to produce his certificate of authority.”Power to stop cycles 6 In paragraph 11A (power to stop cycles), in sub-paragraph (2), for the words after “has committed an offence” there is substituted “listed in paragraph 1(2B)(a) to (e), (f)(i) or (g)”.”
One of the memorable parts of the Bill’s passage has been my attempts to be my noble friend Lord Taylor—which I have succeeded in doing on a number of occasions now.
We have made significant reforms to policing to enable the police to respond to the individual concerns of their communities and to give local communities direct access to engage with and challenge their local force. Community-focused policing is key to improving satisfaction rates and public perceptions of police legitimacy, as well as to reducing the fear of crime and perceptions of local disorder. Police community support officers are, of course, vital in delivering this method of policing. Taking time to engage and really get to know their communities, the problems they face and their priorities is central to building these strong links and helps to shape an effective police response.
When the Bill was considered in the other place, my honourable friend Steve Barclay, the Member for North East Cambridgeshire, highlighted inconsistencies in police community support officers’ powers. We have already taken steps to remedy the specific issue he raised by adding Clause 135 to the Bill, but we want to go further to support the important role that PCSOs play. We want to ensure that they have the necessary tools to keep the public safe and tackle the issues that really matter to the communities they serve. We believe that 18 new discretionary powers introduced by these amendments will do just that. These provisions will give chief constables greater discretion and flexibility in how they deploy police community support officers to tackle low-level crime and anti-social behaviour.
I turn first to new cycle powers. Failing to comply with road regulations can expose both cyclists and their fellow road users to danger, including pedestrians, as we sometimes see. That is why we want to do more to ensure that road safety regulations are well understood and adhered to. In addition to giving police community support officers the power to issue a fixed penalty notice for cycling without lights, the amendments will give them power to issue a fixed penalty notice for cycling through a red light, failing to comply with a traffic direction and carrying a passenger on a cycle. We believe that giving police community support officers a more comprehensive package of cycle-related powers will put them in a better position to drive improvements in cycle safety.
I turn to new traffic powers. We are introducing a new package of measures to give police community support officers additional powers to issue fixed penalty notices. These include for failing to stop for a police constable, driving the wrong way down a one-way street, sounding a horn at night, sounding a horn when stationary, not stopping the engine when stationary, causing unnecessary noise, contravening a bus lane and opening a door so as to cause injury or danger. Paddy Tipping, the police and crime commissioner for Nottinghamshire, has indicated a desire to see PCSOs tackling traffic offences. While we do not agree that they should be given the power to issue notices for more serious traffic offences, we believe that the new package I have outlined is practical at this time. I want to be clear that these measures are not intended to provide a means to pick on drivers or cyclists, or to raise revenue. Our focus is improving safety for all road users and to do that we must ensure that road regulations are respected and enforced.
A third area we are covering is parking outside schools. The power to tackle dangerous parking outside schools is an issue that has been raised in previous debates and it is something we wish to address. We know that patrolling outside schools is a core function for many PCSOs and this makes them well placed to use their engagement and problem-solving skills to educate drivers about the risks of dangerous parking. However, we recognise that, on occasions, stronger action is needed and to address this issue we are giving them the power to issue fixed penalty notices to individuals who park in restricted areas outside schools. Local authorities currently play a core role in parking enforcement and we know that a collaborative approach to tackle these types of offences is essential. We believe that chief constables should consider the role a local authority plays before making any decision to designate this power and we have therefore imposed a duty to consult within this provision.
Illegal street vendors and house-to-house collectors is another area of concern. In addition to the measures I have outlined, the amendments aim to support the role PCSOs play in promoting crime prevention and tackling anti-social behaviour issues. Illegal street vendors and bogus house-to-house collectors can cause a nuisance to communities and have a detrimental impact on those working legitimately. Tackling this type of behaviour is important. We recognise that illegal street vendors may be more common within highly populated cities and that is why we are giving PCSOs in London the power to issue a fixed penalty notice to illegal street vendors. This is in line with existing local authority powers. Giving PCSOs the power to confirm the identity of house-to-house collectors will support their role in providing community reassurance and tackling nuisance behaviour.
Finally, we will be aligning the powers of PCSOs to seize and retain material during premises searches with those of police officers. PCSOs already play an important role in supporting police officers to execute search warrants but their authority to seize material is limited. Granting PCSOs this power will free up police time by enabling PCSOs to operate more independently of police officers when carrying out this function.
We know that the public value the presence of PCSOs within the community and we have been clear that engagement is at the heart of their role. This should continue to be their core function. We believe that a distinction between the role of a constable and a PCSO should remain and that is why we have taken time to fully consider the implications of conferring the powers contained within this proposal. We are confident that they will enhance, not dilute the community engagement role of PCSOs and I commend the amendments to the Committee. I beg to move.
I should like to raise one or two questions about this proposal. As the Minister has said, the role that we currently associate with police community support officers is one of public reassurance through visible street patrols and, as again the noble Lord said, through community engagement, including engaging residents more actively in local policing. Indeed, in my own personal experience, on one occasion two police community support officers knocked on my front door—fortunately they were not there to take me away—to ask me what issues, if any, were causing me concern in my own particular locality. Presumably they were doing a survey of residents’ opinions about issues of concern to them. What we now have is a list of additional powers for police community support officers to issue mainly fixed penalty notices. It could therefore be argued that these powers will put police community support officers potentially into a more confrontational position with members of the public than perhaps we normally associate with their role at present.
As I understand it, under the original terms of this Bill it had not been the Government’s intention to make considerable additions to the powers of police community support officers. Indeed, in the letter that the noble Lord, Lord Taylor of Holbeach, kindly sent to us setting out the Government’s intentions in this amendment, he referred, as has the noble Lord, Lord Ahmad of Wimbledon, to Stephen Barclay’s amendment in the other place that led to the Government tabling a new clause, which I think is Clause 135, conferring powers on police community support officers to issue fixed penalty notices for cycling without lights. As a result of that, something led the Government to say, “Let’s have a further look at what additional powers we can give to police community support officers”. We now have before us a much greater list. The original Stephen Barclay amendment was one additional power, but now we have a long list of additional powers not just affecting cyclists and not just in connection with traffic-related powers; they go further than that. One could make a case for saying that this is beginning to change the role of PCSOs.
We are not standing here opposing this, but my question is this: what led the Government to believe that the extension of powers now being proposed—in Committee stage here, the Bill having been through the other place—is appropriate when they did not believe it to be so at the time it was drawn up and when, bearing in mind the title of the Bill, we can presume that virtually all issues related to policing and the powers of the police were in fact under review and up for consideration? I would be grateful for an explanation of why this has been brought forward at this stage, but was not considered appropriate when the Bill was being drawn up. I understand that these further powers are the Government’s own view of what they want to do and are not, subject to what the noble Lord, Lord Ahmad, may say to me in response, due to any particular pressure from someone. I can see why the Stephen Barclay amendment was made. He raised and then pursued it, and obviously Government Ministers said that they would accept it and take action.
Since it appears that these additional powers have been put forward at a pretty late stage, and therefore presumably over a short timescale, who has actually been consulted on this proposed extension? Has there been wide consultation with those who might have an interest in this change of approach? Have the police themselves been pressing for this extension for some time but to no avail, and now they find that, metaphorically speaking, they have hit the jackpot, because what they have been pressing for has now been agreed at a rather late stage in the proceedings?
I am putting these points as questions for the Minister and my final question is this. Since the Government have clearly now had a look at what additional powers it would be appropriate to give police community support officers, powers that begin to change the nature of the job—the operative word is “begin”—without taking away their former functions, are the Government now going to carry out a full review of the role and responsibilities of PCSOs? I ask this because what is now in front of us gives the impression, again subject to what the noble Lord, Lord Ahmad, may say in reply, of something that has been drawn up in quite a short time and is being put forward in the Bill now when it had not been the Government’s intention to do so not very many months ago when the Bill originally arrived in the House of Commons and throughout its passage through that place.
My Lords, I should like to say a few words arising from my policing background and experience. I support to some extent the noble Lord, Lord Rosser, in what he said, at least initially. Police community support officers, if they have a useful role, are seen by the police as a bridge between police officers and the community. Part of the reason they are able to perform that role is that they have very limited powers when it comes to enforcement. They can be seen as friends of the community and not necessarily come into conflict with it. As we know from what happened with traffic wardens when they were introduced, they in fact became the enemies of motorists. We certainly would not want to erode the useful role that police community support officers play in terms of being friends of the community and a bridge between the community and what it increasingly sees as enforcement officers; that is, police officers.
The second issue is the need to keep a very clear distinction between police officers and police community support officers. The recruitment standards and the training that police officers receive are far higher than is the case for police community support officers, particularly in the training of police officers in the use of discretion. If we are asking police community support officers to use their discretion as to whether they issue fixed penalty notices to erring motorists or cyclists, considerably more training needs to be given to them on the circumstances in which they should use that discretion. As I say, there is a clear danger that the distinction between the police and police community support officers will be eroded if slowly but surely we give police community support officers more and more powers.
Thirdly, there is already confusion in the minds of the public as to what police community support officers can and cannot do. When police community support officers arrive at the scene of an incident, the public look to them to act as police officers would, and are surprised to find that they do not have the powers or the ability to intervene in a way that the public expect of them. Gradually giving police community support officers more powers will add to that confusion among the public.
My Lords, perhaps I may say first that when those PCSOs arrived at the door of the noble Lord, Lord Rosser, I am glad that they did not take him away. We would have been without his expertise and input in this Bill, so we are grateful for that. Equally, he made an important point in mentioning it. I come back to a point I made earlier: PCSOs are distinct from police officers, and I think I made that clear in my comments. What they do in terms of reassurance is something that the police themselves do. Again, speaking from my experience of working with neighbourhood teams when I was a local councillor, the police also did similar reassurance exercises.
I turn now to the specific questions that have been put to me. The noble Lord, Lord Rosser, asked why we are proposing this now. Of course, we are responding in line with the scrutiny of the Bill in the Commons. My honourable friend Stephen Barclay raised the issue, but it did go wider and beyond the specifics of his amendments. This is not something that the Government have only just thought about. I referred in my earlier comments to a Labour police and crime commissioner, Paddy Tipping, who wants us to go further. We have consulted on this and we have looked at the position with relevant experts in the field to understand the implications of the change. We have included discussions with the police at both the operational and the strategic level, the College of Policing, the partnership agencies and, indeed, national police leaders. As I said in my earlier remarks, this is about enhancing the powers of PCSOs and not about taking away from their engagement. We believe it is right that the engagement role performed by PCSOs is vital in making police accessible to all, and we do not want to overburden them with enforcement powers that would detract from that. That is why we have taken a considered position on these new packages.
The noble Lord, Lord Rosser, also asked whether we will consider more powers. These changes will mean a significant increase in the number of powers available for designation to PCSOs. That is an important distinction: this is not something that is carte blanche; it is right that the chief officers should have the freedom to take account of local circumstances and priorities when determining how their PCSOs are deployed. That will be the case in these additional powers that are being proposed. That is why we have taken the time to consider and, while we will be exploring a wider role for PCSOs, the Government believe that their particular role is being enhanced.
I hope that I have covered the specific questions asked by the noble Lord, Lord Rosser.
Were local authorities consulted?
There was not a general consultation with all local authorities but, in our consideration, as I have said, we talked to partnership agencies and national police leagues; that, of course, in some respects includes local authorities’ opinions. This is not trying to take away from local authorities: anyone who has worked at local government level knows that local authorities, the police et cetera all work in partnership in ensuring that we get the maximum level of reassurance.
I turn briefly to the points raised by my noble friend, who speaks with great expertise in this area. I would not in any sense seek to challenge that. I believe that the vital distinction remains between police officers and PCSOs. We are merely seeking to enhance the functions of PCSOs to allow them to engage more effectively in the community and to address the very issues he has raised about their effectiveness when they arrive at a particular point. Our proposals are a proportionate response to what is needed. It will help in community engagement and effective enforcement in respect of some of the lower-level issues that are raised. Neighbourhood policing will be in a better place for that. I beg to move.
Amendment 64A agreed.
Clauses 133 and 134 agreed.
Clause 135: Power of community support officer to issue fixed penalty notice for cycle light offence
64B: Clause 135, leave out Clause 135 and insert the following new Clause—
“Powers of community support officers
Schedule (Powers of community support officers) (which amends Part 1 of Schedule 4 to the Police Reform Act 2002) has effect.”
Amendment 64B agreed.
Clause 135, as amended, agreed.
64C: After Clause 135, insert the following new Clause—
“Long-term police authorisation requiring independent approval
(1) The Regulation of Investigatory Powers Act 2000 is amended as follows.
(2) After section 32A (authorisations requiring judicial approval) insert—
“32AA Long-term police authorisations requiring independent approval
(1) This section applies where a relevant person has granted a long-term authorisation under section 29.
(2) The authorisation is not to take effect until such time (if any) as the relevant independent body has made an order approving the grant of the authorisation.
(3) The relevant independent body may give approval under this section to the granting of an authorisation under section 29 if, and only if, the relevant independent body is satisfied that—
(a) at the time of the grant—(i) there were reasonable grounds for believing that the requirements of section 29(2), and any requirements imposed by virtue of section 29(7)(b) are satisfied in relation to that authorisation, and(ii) the relevant conditions were satisfied in relation to that authorisation, and(b) at the time when the relevant independent body is considering the matter, there remain reasonable grounds for believing that the requirements of section 29(2), and any requirements imposed by virtue of section 29(7)(b) are satisfied in relation to that authorisation. (4) For the purposes of subsection (3), the relevant conditions in relation to a grant by an individual holding an office, rank or position in a relevant law enforcement agency, that—
(a) the individual was a designated person for the purposes of section 29,(b) the grant of an authorisation was not in breach of any prohibition imposed by virtue of section 29(7)(a) or any restriction imposed by virtue of section 30(3), and(c) any other conditions that may be provided for by the Secretary of State were satisfied.(5) In this section—
“relevant law enforcement authority” means—
(a) a police force in the United Kingdom, and(b) the National Crime Agency;“relevant judicial authority” means—
(a) in relation to England and Wales, the High Court of Justice in England and Wales,(b) in relation to Scotland, the Court of Session, and(c) in relation to Northern Ireland, the High Court of Justice in Northern Ireland;“relevant person” means—
(a) an individual holding an office, rank or position in a police force in the United Kingdom, and(b) an individual holding an office, rank or position in the National Crime Agency.(6) In this section—
“relevant independent body” must be set out by the Home Secretary in a motion passed by both Houses of Parliament before this section is enacted;
“long-term” must be set out by the Home Secretary in a motion passed by both Houses of Parliament before this section is enacted.””
We indicated at Second Reading that we intended to propose a new clause on this issue since it was clear that action had to be taken to address how covert policing operations were authorised and managed. Of course, we support undercover policing, since such operations are a vital part of the fight against organised crime and terrorism and are essential in keeping communities safe. We recognise the dedication and bravery of those officers who undertake this work. However, any such operations must be subject to the highest ethical and operational standards. That is essential for both their operational effectiveness and public confidence. Our amendment today, therefore, seeks to deal with the issue of accountability.
There are two cases that highlight how important it is that changes of the kind that we are proposing are made. The first is the case of Mark Kennedy who, as a police officer, infiltrated—I think that is the word—protest groups over a period of years: groups which said that they were involved in lawful demonstrations, rather than crime. The former policeman, it appears, had relationships with women in the protest movement and travelled to eco-protests across Europe. He later told a Channel 4 documentary of his remorse, including his regrets about and feelings for a woman with whom he had had a long affair. HMIC reviewed the activities of Mark Kennedy and other undercover officers and stated that his actions had led to the collapse of a trial of environmental protesters and that he had “defied” management instructions. The report found that Mr Kennedy had helped to unearth “serious criminality”. However, Mr Kennedy said that, while the subject had never been broached directly, it was “impossible” that his superiors had not known he was having a sexual relationship with some protesters. The report suggested that an independent body might be required to authorise such undercover operations. It also said that Mr Kennedy was inadequately supervised and that oversight of undercover officers needed to be strengthened.
The second case is that of the Lawrence family. Twenty years ago, Stephen Lawrence was murdered at the age of 18. He was, of course, the son of Neville and Doreen, who is now my noble friend Lady Lawrence of Clarendon, a Member of your Lordships’ House. Stephen was cruelly murdered by racists and there was evidence of racism in the way the police inquiry was conducted. Serious allegations have now been made that the police spied on the Lawrence family with a view to discrediting them. Peter Francis, a former undercover police officer and a member of the somewhat controversial Special Demonstration Squad, has spoken of his activities as part of an operation to spy on and attempt to smear the Lawrence family.
These two cases and other incidents have led to serious concerns about the accountability of the undercover police operations that were undertaken and raised questions about the accountability of future undercover police operations. Our amendment seeks to ensure that all long-term undercover operations are signed off by a relevant independent body, to ensure that, where needed, covert operations are used proportionately, sensitively, only when necessary and with clear and improved accountability arrangements. Additionally, we do not currently have effective oversight of these operations. There are various options we can explore and we hope that the Government will look at these options carefully. Judicial oversight is just one that could be considered.
There also appears to be an anomaly, because currently, if the police or security services want to enter—perhaps to break in, to bug a room or to intercept a phone call—they need justification that to do so is in the interests of national security in order to get a warrant. Attaining a warrant requires judicial approval. However, those undercover police officers who entered into relationships in an attempt to retrieve certain information needed no warrant.
Of course—and we appreciate this—undercover operations vary. Some will be as short as an hour or so and may involve relatively minor matters; it would be impractical to ask for independent approval for all such operations. However, our proposed new clause is intended to target long-term covert police operations, and these can span from six months to 12 months or even several years. When such operations are undertaken, there needs to be clarity about the goals, the methods and the priorities. Therefore, there should be independent approval prior to any such lengthy operation. It does not necessarily have to come from a judge, but it must be truly independent, and the very process of seeking such approval would help to ensure proportionality, and clarity of objectives and methods. Our proposed new clause would help to ensure that operations such as the hugely inappropriate and totally wrong campaign against the Lawrence family cannot take place again. That campaign and operation against the Lawrence family showed appallingly bad judgment. Surely, we all want to ensure that any operation undertaken is accountable, justifiable and in the wider public interest.
On Report in the other place, the Minister Damian Green stated that it was the Government’s,
“intention to legislate to enhance oversight of undercover law enforcement officer deployments”,
and this could,
“be done through secondary legislation”.
He outlined the Government’s proposals to increase accountability and oversight. However, proper scrutiny is necessary and we need the opportunity to scrutinise those proposals as part of this Bill. Damian Green promised in the House of Commons that he would,
“lay the appropriate order before the House shortly”.—[Official Report, Commons, 15/10/13; col. 634]
As I understand it, we have not yet seen the order, although I may be wrong in saying that. However, we feel that it would be much better to deal with an issue of this importance in what the Government regard as a flagship Bill on crime and policing. I hope the Minister, when he replies, will be able to give a helpful response.
My Lords, I am very grateful to the noble Lord, Lord Rosser, for tabling this amendment because I agree with him that the whole question of undercover policing is very important. I do not think that any noble Lord should be in doubt that covert techniques, including undercover policing, are an important weapon in the fight against terrorism and other serious and organised crime. Undercover police officers play a crucial role in keeping us all safe. It is difficult and dangerous work and I welcome this opportunity to pay tribute to all who undertake it.
The new clause proposed by the noble Lord seeks to introduce a system of independent authorisation for undercover policing operations. I do not believe there is any great difference of view between the noble Lord and me on this point. We both believe that there must be proper safeguards to ensure that these covert techniques are used only where appropriate and that the mechanisms for approving all such deployments are fit for purpose. However, I hope that it will help noble Lords if I set out why I do not believe that this amendment is required, not least because the Government have already instigated changes that are designed to meet the concerns that have arisen in the light of some allegations of past misconduct, which were sympathetically described by the noble Lord, Lord Rosser.
Undercover deployments are authorised under the Regulation of Investigatory Powers Act 2000, commonly known as RIPA, which stipulates that the use of an undercover deployment can be authorised only at a senior level within the police force or other law enforcement agency concerned. In giving an authorisation, the authorising officer must balance the seriousness of the crime being investigated, and the value of the evidence likely to be gathered, against the right to privacy of the person under investigation and of those others who are likely to have their privacy intruded upon, such as family, friends and other associates.
Her Majesty’s Inspectorate of Constabulary conducted a rigorous and independent review of undercover policing last year and made a number of recommendations to improve the way authorisations and deployments are made. Earlier this year, the inspectorate reported on the progress made in implementing its 2012 report and was generally positive about the work already done. The noble Lord referred to the role played by my ministerial colleague, the Minister for Policing, Criminal Justice and Victims, the right honourable Damian Green, who announced to the Home Affairs Select Committee our intention to strengthen this regime to enhance oversight of undercover law enforcement officer deployments. I am pleased to say that the order to give effect to this commitment was laid in October and is due to take effect on 1 January next year.
I will set out the effect of the changes that the Government are bringing forward. First, law enforcement agencies will need to notify the surveillance commissioners —all retired judges—of undercover deployments. In practice, what will happen is that a surveillance commissioner will see the same papers that were presented to the authorising officer and will have the opportunity to raise any concerns. Noble Lords will appreciate that most deployments are short-term in nature and, in many cases, last no more than a few hours. However, some are long-term, and these may give rise to the greatest concern. Initial authorisations last for a maximum of 12 months. Accordingly, the second change we are putting in place is that an authorisation can be renewed beyond 12 months only with the prior approval of a surveillance commissioner—who, I remind your Lordships, is someone who has held a senior judicial office.
In addition, we are increasing the rank of the authorising officer. Deployments of undercover law enforcement officers will henceforth need to be authorised at assistant chief constable level or equivalent. Any deployments lasting longer than 12 months will be authorised by a chief constable or equivalent, as well as by a surveillance commissioner, as I have already explained. The seniority of those who will now be required to authorise these deployments is an indication of how seriously the Government take proper oversight of undercover law enforcement activity. We believe that these changes will promote the highest standards of professionalism and excellence in this most sensitive area of policing. We also believe that they will achieve the aims of this proposed new clause by ensuring judicial scrutiny of long-term deployments while preserving the flexibility of law enforcement agencies to act swiftly where necessary.
Covert activity is a necessary part of the armoury of law enforcement but it is absolutely right, as is the intention behind this amendment, that it must be properly controlled and regulated. That is why the Government are making the changes that I have described. In the light of these changes and the new regime that we are now putting in place, I do not believe that this amendment is required and I hope the noble Lord will withdraw it.
I shall of course withdraw the amendment but, before I do, I have one question for the noble Lord. Does the proposal that is to be implemented in relation to the role of the surveillance commissioners also include, for particularly lengthy covert operations lasting many months, any sort of regular oversight of the operation by the surveillance commissioners, or is it a case of getting their approval beforehand and, once that prior approval has been given, that is the end of the independent oversight?
The prior approval is of course designed to make sure that there is no extension without the surveillance commissioner being a party to the decision. I cannot give the noble Lord a clear answer on this but I would suspect that the surveillance commissioner could make his approval dependent on an update at some point during the extended 12-month period. I will write to the noble Lord and give him some indication of how this would operate. I understand entirely what he is getting at and am quite happy to investigate and provide that to him.
I thank the noble Lord for his reply and for his offer to write to me on the issue that I have just raised. I will obviously want to reflect on the reply that we have received but I beg leave to withdraw the amendment.
Amendment 64C withdrawn.
Clause 136 agreed.
Clause 137: Extradition barred if no prosecution decision in requesting territory
65: Clause 137, page 104, line 20, leave out “prosecution decision” and insert “decision to try”
My Lords, in moving Amendment 65, I will speak at the same time to Amendments 66 to 75. With this group, we come to Part 12 of the Bill, which is concerned with extradition. As this is the first time I have spoken at this stage of the Bill, I need to remind the Committee of my interest as a trustee of Fair Trials International. I am very grateful to that organisation for many of the real-life examples that underlie the amendments that I shall move to this part of the Bill in the next hour or so. I also acknowledge the help that I have had from Justice and several other interested parties.
I spoke about my general concerns about Part 12 at Second Reading and I do not wish to make a Second Reading speech tonight. But I hope that the Committee will forgive me if on this first group of amendments I explain some of the more detailed background factors that underlie my concerns and that have led to my tabling these amendments. They are the framework into which the seven groups of specific amendments that follow will fit, like pieces in a jigsaw.
These amendments are concerned with what is known as a Part 1 warrant, more familiarly known as a European arrest warrant, or an EAW. While the EAW has had some undoubted successes, there have been concerns about its practical application. To their credit, the Government asked Sir Scott Baker to undertake a review of the country’s general extradition arrangements, including specifically the operation of the EAW. Sir Scott Baker produced a report containing a set of recommendations. To their credit, the Government accepted some of them and to their additional credit they have gone beyond Sir Scott Baker’s recommendations in certain areas, such as the introduction of a forum bar. However, the Government did not accept all the Baker proposals and meanwhile the continuing operation of the EAW has led to further concerns about the way in which it is being practically applied.
A few minutes ago I referred to the successes of the EAW. It is incontrovertible that it has led to some very nasty people being returned to face justice in EU member states far faster than was possible under the legislation prevailing before the EAW was introduced. Nowhere is this more important and relevant than in this country’s relationship with the Republic of Ireland and its implication for the border in Northern Ireland. No doubt that is why the Government, having exercised their general opt-out over justice and security under the Lisbon treaty, have decided to opt back into the EAW directives, a decision I strongly support.
Understandably, governments of every persuasion have focused on the achievements that concern terrorists, serious criminals, paedophiles and so on. The overwhelming majority of our fellow citizens who become involved with the EAW do not fall into these high-profile categories. As I will attempt to illustrate with real-life examples, too often they concern what Edmund Burke called the “little platoons”: people who are caught up in a process that their knowledge, experience and contacts—unlike, for example, Members of your Lordships’ House—do not equip them to challenge.
What is the scale of this issue? Every day, about four of our fellow citizens are served with an EAW, and about three of these will be surrendered. It is with this group in mind that I have tabled these amendments. If we are to deprive one of our fellow citizens of his or her liberty and hand him or her over to another state for trial and possible imprisonment, which by any yardstick is a very fundamental decision, we need to be sure that the appropriate level of safeguards is in place. While safeguards undoubtedly exist, they do not yet provide a sufficiently balanced position. As many noble Lords are aware, I am not a lawyer, so some of my arguments may seem to those Members in your Lordships’ House who are learned in the law to be legally clumsy. On this occasion, I am afraid that I am the man on the Clapham omnibus, or at least the man in the saloon bar of the Dog and Duck.
In so far as the man on the Clapham omnibus is concerned about these matters he is reassured by the fact that there are two hearings before British judges as part of the EAW process. He has a touching faith in the British judicial system. Unfortunately, in large measure this confidence is misplaced, because the hands of a British judge, in hearing an EAW, are substantially tied. The first hearing that takes place within 48 hours of arrest is essentially entirely procedural: it concerns issues of identity and whether the person arrested is the right one, a point I shall return to in the debate on my Amendment 94. It sets the date for the second hearing, normally within 21 days, and it decides whether to remand a person in custody or on bail, or to accept surrender if the person accepts the charge.
The second hearing is also highly restricted on the matters that the judge can take into account in determining whether the warrant should be executed. Here, there are some technical issues including double jeopardy and specialty, considerations of age and passage of time since the alleged offence was committed, and concerns about the physical and mental condition of the subjected person. What is not discussed are the facts of the case. So in as little as 35 days a person can be on their way to another jurisdiction, with all that that means for their family, their employment and indeed their whole life. In short, that is why I believe that proper safeguards need to be in place.
As I said at Second Reading, similar amendments were tabled at the Committee stage of this Bill in the other place. Not one was debated, because of the operation of the guillotine. Procedurally, the Government should have the chance to explain their thinking on this important issue of public policy.
With that perhaps overelaborate explanation of the background to my amendments I turn to the substance of this first group. As can be seen from the wording, Amendments 65, 66 and 67 seek simply to change the words “prosecution decision” to “decision to try” in that part of Clause 137 entitled “Absence of prosecution decision”. Amendments 70, 73, 74 and 75 are consequential amendments to the later parts of the clause.
This group brings us to an important issue raised by the different nature of the UK’s judicial system from most of those of our European partners. Along with Ireland and Malta, this country has a common law system, with a familiar adversarial judicial system where prosecution and defence parade their arguments before a judge and jury for them to determine. Other European states have an investigative system. This is not better or worse; it is just different. It does mean, however, that a decision to prosecute can mean a decision to continue to collect evidence that may or may not lead to a trial.
The current drafting is ambiguous and could be interpreted as allowing the execution of an EAW where a decision to prosecute has been taken, but a decision to try has not been. I am aware that under Section 2 of the 2003 Act and Article 1.1 of the EAW framework decision, an EAW is defined as a decision issued for the purpose of prosecution. However, I argue that the test for execution of an EAW should be whether the case is trial-ready in the issuing state. Concerns have been consistently raised about the lengthy pre-trial detention of those extradited prematurely as a result of EAWs being issued before the case is trial-ready.
A well known case is that of Andrew Symeou, a British student who was extradited to Greece in July 2009 to face charges in connection with the death of a young man on a Greek island. Andrew was extradited long before the Greek court was ready to try him and endured a year in appalling prison conditions before being granted local bail in Greece. Andrew was finally cleared by a Greek court in June 2011, almost four years after the events in question, during which time he had not been able to continue his university studies and his family had had their lives turned upside down. The fact that a decision is taken at some stage to charge may mean that the issuing state intends to proceed to trial, but as Andrew’s case showed, what matters is whether the issuing state is ready to do so. Accordingly, these amendments set the test for executing the EAW as trial-ready.
Amendments 68 and 71 address the problem of too-early extradition by putting pressure on the requesting state to make use of other less disruptive measures, such as videoconferencing and temporary transfers. These amendments would ensure that the issuing state could not rely on its own refusal to use alternative arrangements, such as videolinks or temporary transfers, to justify extraditing the person in order to charge them. I have already referred to the different legal investigative and adversarial approaches. The Government’s objective in the proposed Section 12A(1)(a)(ii) and 12A(1)(b)(ii) is to cater for the situation in which a decision has not been made formally to charge the person, but only because their presence is required in order to do so. In some countries, such as Sweden, it is a basic defence right for the person to be charged in person. Thus the English and Irish courts have accepted that an EAW issued in such cases can nevertheless be considered to be for prosecution even though it may include a decision to charge taken in the future. However, I repeat that one of the dangers of the EAW system is that people may be extradited too early in the process, when the case is not trial-ready, resulting in prolonged pre-trial detention and uncertainty.
I have already mentioned Andrew Symeou. Equally, Michael Turner was extradited to Hungary in November 2009 and was held in a high-security prison for four months before being allowed to return home. He then had to bear the cost of repeated trips to Hungary while the case was investigated further. He was finally tried in October 2012, three years later.
The issuing authority might legitimately insist that the person be present in order to be charged but I am concerned that this might simply begin a protracted process between charge and trial. In these circumstances, the use of a temporary transfer under proposed new Section 21B would be more appropriate, enabling the person to attend and be charged and then return to UK while the case is readied for trial. Equally, if the law of the issuing state allows the remote attendance of a suspect using video technology, and this does not risk prejudicing the suspect by reason of poor quality or lack of recording, this option should be used. These amendments allow the judge to refuse extradition where the issuing state unreasonably refuses to consent to use either method.
Amendment 72 requires the judge to consider external evidence when determining whether there are “reasonable grounds” to believe that no decision has been taken to charge or try the person wanted on an accusation EAW. Section 2(3) of the 2003 Act already requires the Part 1 warrant to contain the statement that the person is accused of the offence, and it is possible to raise the issue of whether the EAW has been issued as an aid to investigation. However, at present the courts will assume that if the EAW contains the statement in Section 2(3) of the 2003 Act that the person is accused, and is unambiguous in this wording, this correctly reflects the state of proceedings and external evidence will not normally be taken into account.
This approach is based on the mutual trust that needs to exist between judicial authorities, and the need to ensure that proceedings are swift and uncomplicated. There are concerns that under the current drafting of proposed new Section 12A no change to existing practice will result. It may be difficult for the requested person to establish that there are reasonable grounds for believing that no decision to prosecute has been taken if the EAW states unambiguously that the person is the accused and that the EAW was issued for the purpose of prosecution. In order to fulfil the intention behind the amendment, it should be specified that the judge should take into account external evidence, which might include documents from the case file or expert evidence on the state of the proceedings in the requesting state. The judge should also have sufficiently broad direction to be able to take into account evidence such as the past record of issuing states in this regard, as evidenced by other documented cases involving the same country.
To conclude, the Government’s proposed amendment of Section 11 of the Extradition Act by referring to a “prosecution decision” in Clause 137(1) has moved the game on, and I am grateful for that. But for the reasons explained, I do not think it goes far enough. In this very critical area, the decision to try must surely be the gold standard and these amendments will ensure this. I beg to move.
My Lords, I will add just a few comments to the excellent and clear introduction of these amendments by my noble friend Lord Hodgson. He stressed the importance of the matter being trial-ready before extradition takes place, and quite rightly drew a distinction between the adversarial system, which prevails here, and systems elsewhere of a more inquisitorial nature.
Of course, if somebody is awaiting trial here, the question of bail becomes highly relevant before a judge. Indeed, a judge will be able to exercise some pressure on prosecuting authorities to get on with it, in order to ensure that somebody is not kept in custody for too long. That becomes impossible once somebody has been extradited. The matter is then in the control of the local court, and there may be just the sort of delay described by my noble friend in the case of Symeou; not only was he in Greece for a very long time but when he was granted bail it was so-called local bail, which is not the same as being granted bail in your own country, because of all the compromises that have to be made in terms of work and family life.
As my noble friend acknowledged, the Government have responded to the Baker review but there is still anxiety, as he has so skilfully pointed out.
My Lords, I am grateful to my noble friend Lord Hodgson for giving us a chance to debate these issues. He has tabled a number of amendments—some in this group and some to follow—and it was good that he was able to put the different groups in context of the overall value of the European arrest warrant. The Government attach great value to this facility but are seeking to improve its operation by provisions in the Bill.
As the Committee will be aware, the Home Secretary announced in July that she would introduce legislation to reform the operation of the European arrest warrant in the UK and increase the protections offered to those wanted for extradition, particularly British citizens. My noble friend has drawn attention to circumstances in which the system did not operate as we would have wished. His amendments would revise the resulting provisions in the Bill.
Clause 137 will require the UK courts to bar surrender of the requested person where the issuing state has not taken both a decision to charge and a decision to try the person, except where the sole reason that such decisions have not been taken is that the person’s presence in the country is required in order for those decisions to be taken. This will have the same effect as that intended by my noble friend’s Amendments 65 to 67, 69 and 70 and 73 to 75; that is, a person will not be surrendered before the issuing state is ready to try the person. However, the clause has the added benefit of requiring the issuing state to prove that both a decision to charge and a decision to try the person have been made, if the judge has any doubt that either—or both—of those decisions has been taken. This provides greater protection for the requested person.
I can also reassure noble Lords that when deciding whether there are reasonable grounds for believing that the issuing state has not taken these decisions, the judge can consider any factors or external evidence that could inform his or her decision. We do not believe it is necessary to set this out in explicit terms, as Amendment 72 would.
Finally, Amendments 68 and 71 seek to add a further restriction, so that extradition could not occur where the person’s presence was required in the issuing state for the required decisions to be made, if that could have been achieved by temporary transfer or video-conferencing. I understand my noble friend’s concern about the need for safeguards. However, I do not believe that this additional restriction is necessary. As I have explained, Clause 137 already ensures that extradition cannot occur in the early stages of an investigation when the issuing state is nowhere near a decision to try.
In addition, if the judge is satisfied that the sole reason that a decision to charge and a decision to try have not been taken is the fact that the person is absent from the issuing state, there is no reason why the person should not be extradited so that those decisions can be taken and the case proceed to trial. In these circumstances, requiring temporary transfer simply to charge does not seem to us to achieve anything in terms of safeguards and seems unnecessary.
Having heard these explanations and assurances and the explanation of how Clause 137 is designed to meet my noble friend’s concerns, I hope he will be able to withdraw his amendment.
I am grateful to my noble friend for that full and very considered response. We are, of course, going around the track for the first time today and I have some difficulty understanding the conflation of prosecution charge and try and the interpretation of Clause 137 in which I think he said—I hope I have quoted him right—that the judge can consider any external factor. Certainly the advice I have received is that that is far from the case, that the judge’s hands remain very carefully circumscribed and tied and that the judge would not have the width and breadth of discretion that my noble friend’s remarks suggested. It would be helpful if one could read in some detail what he had to say, as it is obviously highly complicated and technical, and then see whether expert external advice believes that the extraordinarily plausible answer he gave actually holds up when we come to discuss it further. I beg leave to withdraw.
Amendment 65 withdrawn.
Amendments 66 to 75 not moved.
Clause 137 agreed.
Clause 138: Proportionality
76: Clause 138, page 105, line 23, leave out from “proportionality” to end of line 24
My Lords, I will speak also to Amendment 78. These amendments expand the issues a judge can consider in testing the proportionality of a European arrest warrant. Amendment 76 deletes the words,
“but the judge must not take any other matters into account”.
Amendment 78 extends judicial discretion as regards proportionality by a list of factors, including the cost of extradition, the consequences of extradition for the suspect and the public interest aspect.
Under the Bill, the judge must have regard to the specified matters relating to proportionality so far as he or she thinks it appropriate to do so, but must not take other matters into account. Thus, the judge is limited to the three specified matters but has discretion to ignore them. As a starting point, I would like the Government to justify why a judge should be able to ignore factors that will always be germane to the issue of proportionality. If an offence is serious, extradition is more likely to be proportionate but that does not mean that the proportionality test has no place in serious crimes. Amendment 76 therefore removes the discretion to ignore relevant factors.
Under the proposed test, the judge can take into account just three factors but it is unclear how they are supposed to relate to each other. In any case, the current list of specified matters does not allow a useful proportionality analysis. As drafted, the judge would be able to take into account the seriousness of the offence and the anticipated sentence, but since regard cannot be had to any other matter, the judge cannot balance these against the relevant considerations. For example, it is difficult to see how the judge can decide whether a less serious offence would make extradition disproportionate if the judge cannot also take into account the implication of extradition in terms of the human impact or, indeed, the costs for the UK taxpayer. The financial costs of extradition are high. The Government estimate that the execution of each EAW costs on average £20,000. In addition, the human impact of extradition can extremely severe. Recent cases under Article 8 of the ECHR have shown that the extradition of single parents can drastically disrupt the development of their children. There was the judgment of Lady Hale in HH v Deputy Prosecutor of the Italian Republic in 2012.
Recognising the need for proportionality checks on the operation of the EAW, the European Commission recognised that the issue was with,
“very minor offences which do not justify the measures and cooperation which execution of an EAW involves”,
and that there is a,
“disproportionate effect on the liberty and freedom of requested persons”,
when the EAW is used in such cases.
The point of a proportionality test should be to determine whether, on a case-by-case basis, the human and material costs are justified. Indeed, the Council of the European Union’s handbook on how to issue an EAW is 125 pages long and explains that,
“considering the severe consequences of the execution of an EAW with regard to restrictions on physical freedom and the free movement of the requested person, the competent authorities should, before deciding to issue a warrant consider proportionality by assessing a number of important factors. In particular these will include an assessment of the seriousness of the offence, the possibility of the suspect being detained, and the likely penalty imposed if the person sought is found guilty of the alleged offence”.
The Bill excludes a balancing exercise that takes into account all these relevant factors.
These amendments therefore provide the judge with sufficient discretion to consider these key factors and others, including the passage of time, since prolonged delays in prosecuting an offence and issuing an EAW may provide evidence of its very low level of seriousness, and the public interest in extradition, since this will vary in line with the seriousness of the offence. Other factors might include, for instance, the person’s conduct, in particular, whether they absconded in order to evade prosecution or left the issuing state unaware that they were being pursued.
I recognise that this will call for a case-by-case test and a fact-sensitive assessment. However, this need not affect the length or complexity of EAW proceedings. An issue raised in relation to human impact would in any event have to be considered under Article 8 of the ECHR. Under the operation envisaged by these amendments, the factors considered under Article 8 of the ECHR will be considered as part of the statutory proportionality test but alongside the cost of extradition to the United Kingdom and having greater regard to the seriousness of the extradition offence. Indeed, under the Government’s proposal, it can be argued that there will often have to be two separate proportionality analyses—one under the statutory test, excluding anything to do with family life, and another under Article 8 of the ECHR, potentially resulting in confusion and complication. Unifying the two tests, as would be achieved by these amendments, would, if anything, simplifying proceedings. I beg to move.
My Lords, Clause 138, “Proportionality”, will not be an easy one for a judge to interpret, as my noble friend has outlined. The question of proportionality under the Human Rights Act 1998 is one matter and then there is the statutory proportionality, which apparently is to be restricted to certain specific matters mentioned in subsections (2) and (3) of the new Section 21A that Clause 138 inserts into the Extradition Act 2003. I respectfully ask the Minister to explain why it is so necessary to distinguish between the two types of proportionality. Proportionality is a fundamental principle in EU law and, in particular, under the Human Rights Act. I suggest there is scope for confusion and therefore possible litigation if a judge misdirects himself or herself in applying proportionality in one sense and not in another.
My Lords, as my noble friend Lord Faulks has just said, Clause 138 is dedicated to addressing this issue and bringing the fundamental concept of proportionality into extradition matters. Much of what my noble friend Lord Hodgson of Astley Abbots proposes has already been included within the Extradition Act 2003, as it will be amended by the Bill.
It is important to recognise that the judge will consider proportionality in addition to the existing bars to extradition, such as the passage of time and human rights considerations, including any impact on family and private life. Consequently, new paragraphs (d) and (e) as provided for in Amendment 78, which seek to merge these existing considerations into the proportionality bar, are unnecessary and would have little practical impact.
Turning to the proposed new paragraphs (f) and (g), which relate to the cost of proceedings in the UK and the duration and cost of proceedings in the issuing state, I do not believe that those considerations are relevant. The proportionality bar is designed to provide additional protection to those whose extradition is sought. It is appropriate that the matters concerned should relate to the alleged crime and the potential impact on the person concerned. Of course, costs are an issue for us all, and that is why the totality of our proposals is designed to improve the workings of the Extradition Act, including reducing unnecessary delays. However, costs to the UK arising from the extradition process should not mean a denial of justice where it is right that a person is extradited. On new paragraph (g), the costs and the duration of proceedings in the issuing state are a matter for the issuing state.
New paragraph (h) would require a consideration of the public interest. That is implicit in any consideration of extradition by the courts, which look at a range of factors alongside the proportionality bar. Taken together, the statutory bars to extradition provide a broad public interest test, so it is not necessary to include a separate test here in the Bill.
Finally, new paragraph (i), which refers to other matters that the judge believes relevant, is too open-ended and leaves too many issues that could be considered. It could lead to duplication and potential delay as a result of proportionality considerations overlapping with other considerations. My noble friend Lord Faulks talked about the complexity of these issues and the opportunity that he believed the provisions give for judicial consideration, deliberation and challenges. I think that the proposals in the amendment would complicate the matter further. I must emphasise that the proportionality bar is one among a number which must be considered already, not least whether extradition would be compatible with the requested person’s human rights.
Let me assure my noble friend that, in addition to the provisions in Clause 138, we will also take a more pragmatic approach to our administrative processes when an EAW is received. This will ensure that the most trivial requests are identified and, where appropriate, dealt with administratively before even getting to the courts. The aim will be to work practically with other member states to identify alternative solutions for trivial requests.
My noble friend Lord Faulks asked: why not merge proportionality and human rights? The proportionality bar deals specifically with the proportionality of extradition as a way to deal with the conduct alleged. Proportionality is indeed a factor when considering interferences with various rights under the ECHR, but it is considered when examining the specific rights one at a time. Our bar adds to that, but deals with the wider issue of human rights within the EAW.
I hope that both my noble friends are happy with the reassurances that I have given them and that my noble friend Lord Hodgson of Astley Abbots will be content to withdraw his amendment.
I am grateful to my noble friend. He rightly chided me about the list of matters in Amendment 78 and the wide-ranging nature of my proposed new paragraph (i), which would insert the text,
“any other matter which the judge considers relevant”.
Although I entirely accept that, I do not understand why three matters are chosen in subsection (3) and why a judge must not take any other matters into account. That seems to me to be erring on the other side of the argument. I hope that he will forgive me if I say that, when I hear Ministers say, “We should be pragmatic about this”, it does not reassure me, because in this area, where we are dealing with people’s liberty and livelihoods, pragmatism can go awry.
I understand the complexity of the issues that my noble friend is attempting to address in the amendments. If he feels it helpful for me to write a fuller explanation than I am able to give the Committee today, I would be very happy to do so. It may be easier if I do that; I hope that my noble friend will accept that.
Of course I would be delighted to receive a letter from my noble friend. That would also enable me to reflect fully on what has been said, take expert advice on the technical matters which we are discussing this evening and decide whether to take the matter further. In the mean time, I beg leave to withdraw the amendment.
Amendment 76 withdrawn.
77: Clause 138, page 105, line 30, leave out “possibility of the relevant foreign authorities taking” and insert “availability, to the relevant foreign authorities, of”
My Lords, in moving Amendment 77, I shall also speak to Amendments 79, 80, 81 and 87. This set of amendments keeps us in the area we have just been talking about: one of the three specified matters. The amendments emphasise the importance of less coercive, less disruptive measures than a full European arrest warrant. Where a state issuing an EAW refuses to use them, the judge could take that refusal into account before granting an EAW.
New subsection (3)(c), which sets out the third of the three matters we have just been discussing, currently reads,
“the possibility of the relevant foreign authorities taking measures that would be less coercive”.
Amendment 77 replaces “possibility of”—a pretty low test, in my view—with “availability of”. Amendments 80 and 81 are essentially consequential.
The assumption underlying the provision relating to less coercive measures is that the severely restrictive measure of extradition, involving deprivation of liberty and the physical transport of a person away from home and family, should be used only as a last resort. The issuing state should therefore use that mechanism only when other, less restrictive measures are unavailable. If other such measures are available—for instance, because of the existence of mutual legal assistance mechanisms or, once it is negotiated, the European investigation order—extradition should be refused if they have not been used. The reference to the possibility of using such alternative measures may result in an issuing state avoiding their use due to a lack of resources and/or bureaucratic difficulties in liaison between the competent authorities of the issuing state and the judicial authority that issued the EAW.
I argue that, although the EAW system provides for extradition between judicial authorities, the physical transfer of a person under an EAW is still a process between two EU member states which are, as a whole, bound to observe the principle of proportionality. All their authorities, such as ministries of justice or the interior—where these are responsible for mutual legal assistance requests—should, therefore, be jointly expected to search for alternative solutions before choosing the heavy-handed option of extradition. Accordingly, if an alternative is available, under bilateral or multilateral arrangements between member states, this should be used before the EAW.
Amendment 79 would ensure that, if there are alternative mechanisms available to the issuing state, its failure to use them will always result in the refusal of the EAW, irrespective of the gravity of the offence or any other matter. The inclusion of the less coercive measures test appears to rest on the assumption that the step of issuing an EAW—which involves deprivation of liberty and serious human impact—should be taken as a last resort. The responsibility is on the issuing state to use less coercive measures if these are available. In the handbook on how to issue an EAW, to which I referred, the section on proportionality encourages the authority considering an EAW to use alternatives, including mutual legal assistance, videoconferencing or a summons. The logic that less restrictive alternatives should be used before issuing an EAW applies regardless of the seriousness of the allegation in question. The amendment therefore ensures that extradition is always considered disproportionate if other measures are available.
The case of Andrew Symeou demonstrates the need for it to be made clear that alternatives should be used in preference to the EAW, irrespective of the offence at issue. The Greek police and prosecution authorities could have made use of mutual legal assistance; for instance by asking UK authorities to obtain evidence from the witnesses who had allegedly incriminated Andrew. These witnesses would have been able to explain that they had been subject to police brutality and did not stand by their earlier evidence, which had been taken under pressure and without the assistance of an interpreter. Instead, the Greek authorities opted to have an EAW issued, requiring Andrew’s extradition to Greece to face trial for allegations which might have been found to be without basis much earlier if MLA had been used. The English court should have been able to refuse Andrew’s extradition on the ground that alternative measures were available. I beg to move.
My Lords, as my noble friend explained, his amendments in this group seek to widen yet further the proportionality bar to extradition in Part 1 cases. As I have already indicated, Clause 138 will allow the UK courts to deal with the long-standing issue of proportionality, which, as I have already said, is a fundamental principle of EU law.
Amendments 77, 79, 80 and 81 would require a judge to consider whether the requesting state has less coercive measures available to it. If so, the judge must bar extradition on proportionality grounds. However, even where such measures may exist, they may not be appropriate in each case, depending on the nature of the crime and other factors such as relevant previous criminal history. It would not be right to require a judge to bar extradition wherever less coercive measures are available. I therefore prefer the existing subsection (3)(c) of the new section inserted by Clause 138—to which my noble friend drew attention—which addresses the issue more attractively than the choice of words proposed in the amendment. That said, the existence of alternatives is clearly a relevant factor, and that is why the clause specifies that this is one of the factors that the judge must take into account when considering proportionality.
Amendment 87 to Clause 140 is consequential on the amendments to Clause 138. It would require a judge to conclude that less coercive measures were available if a person had made a request for temporary transfer, as envisaged by Clause 140, but the issuing state had refused that request unreasonably. This would mean that the judge would have to bar extradition on proportionality grounds. This would require our courts to make an assessment of the rationale of a decision made by the authorities in another member state. Given this, we do not think it appropriate automatically to link a decision not to agree to a temporary transfer with the consideration of proportionality. The EAW framework decision is clear that temporary transfer must be agreed by mutual consent, and it is therefore open to the issuing state to refuse a request, including the UK where we are seeking someone’s extradition to the UK.
I turn to the government Amendment 81A in this group. This seeks to build on the proportionality bar operated by the courts by ensuring that robust, pre-court administrative procedures are also in place. Amendment 81A amends Section 2 to stipulate that the National Crime Agency must not issue a certificate if it is clear to the NCA that a judge would be required to order the person’s discharge on the basis that extradition would be disproportionate. To facilitate this, the amendment will enable the Lord Chief Justice of England and Wales, with the agreement of the Lord Justice General of Scotland and the Lord Chief Justice of Northern Ireland, to issue guidance in relation to the proportionality bar to the NCA, which it must apply in deciding whether to issue a certificate under Section 2 of the Extradition Act 2003. The content of any such guidance will, as noble Lords will understand, be a matter for the judiciary.
I welcome the broad support for the principle of a proportionality bar to extradition. I recognise that my noble friend takes a slightly different view of how the proportionality bar should be constructed. However, I hope that he will accept that the provisions in the Bill, augmented by Amendment 81A, achieve much of what he is seeking and that he will understand our reasons for not wishing to deviate from this approach. I ask my noble friend to withdraw his amendment and support government Amendment 81A.
My Lords, I support my noble friend’s amendment. The point at issue is the extent to which we are determined to make the physical transfer of somebody the last resort. How easy is it for a state that cannot be bothered to take somebody, on an EAW, without taking all the measures necessary to ensure that the person’s life is interrupted as little as possible? I am not convinced that my noble friend has the balance right, but we need to read carefully the detail of his remarks. In the mean time, I beg leave to withdraw.
Amendment 77 withdrawn.
Amendments 78 to 81 not moved.
81A: Clause 138, page 106, line 5, at end insert—
“( ) In section 2 of that Act (Part 1 warrant and certificate), after subsection (7) there is inserted—
“(7A) But in the case of a Part 1 warrant containing the statement referred to in subsection (3), the designated authority must not issue a certificate under this section if it is clear to the designated authority that a judge proceeding under section 21A would be required to order the person’s discharge on the basis that extradition would be disproportionate.
In deciding that question, the designated authority must apply any general guidance issued for the purposes of this subsection.(7B) Any guidance under subsection (7A) may be revised, withdrawn or replaced.
(7C) The function of issuing guidance under subsection (7A), or of revising, withdrawing or replacing any such guidance, is exercisable by the Lord Chief Justice of England and Wales with the concurrence of—
(a) the Lord Justice General of Scotland, and(b) the Lord Chief Justice of Northern Ireland.””
Amendment 81A agreed.
Clause 138, as amended, agreed.
82: After Clause 138, insert the following new Clause—
“Person unlawfully at large: human rights and proportionality
(1) For section 21 of the Extradition Act 2003 there is substituted—
“21 Person unlawfully at large: human rights proportionality
(1) If the judge is required to proceed under this section (by virtue of section 20), the judge must decide both of the following questions in respect of the extradition of the person (“D”)—
(a) whether the extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998; and(b) whether the extradition would be disproportionate.(2) In deciding whether the extradition would be disproportionate, the judge must take into account the specified matters relating to proportionality.
(3) These are the specified matters relating to proportionality—
(a) the seriousness of the conduct for which the requested person was convicted of the extradition offence;(b) whether the sentence which the person received in respect of the extradition offence was initially suspended;(c) the conduct of the requested person;(d) the passage of time since the person became unlawfully at large; and(e) any other matter which the judge considers to be relevant.(4) The judge must order D’s discharge if the judge makes one or both of these decisions—
(a) that the extradition would not be compatible with the Convention rights;(b) that the extradition would be disproportionate.(5) The judge must order D to be extradited to the category 1 territory in which the warrant was issued if the judge makes both of these decisions—
(a) that the extradition would be compatible with the Convention Rights;(b) that the extradition would not be disproportionate.(6) If the judge makes an order under subsection (5), he must remand the person in custody or on bail to wait for extradition to the category 1 territory.
(7) If the person is remanded in custody, the appropriate judge may later grant bail.”
(2) In deciding any question whether section 21 of the Extradition Act 2003 is compatible with European Union law, regard must be had, in particular, to Article 1(3) of the framework decision of the Council of the European Union made on 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA) (which provides that that decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union).”
My Lords, I now seek to move Amendment 82 and will speak to Amendment 93. The background to these amendments is the existence of two different types of European arrest warrant: a prosecution warrant where a person is to be prosecuted for a crime, and a conviction warrant where a person has been convicted and has fled to another country, knowingly or unknowingly. As drafted, the Bill provides for a proportionality check for prosecution warrants but not for conviction warrants. Amendment 82 seeks to remedy this by inserting the new clause shown. The amendment creates a proportionality check for EAWs to parallel the existing human rights bar in Section 21 which will, under the Bill, be relevant only to prosecution EAWs.
Fair Trials sees many cases where suspended prison sentences imposed in respect of minor offences have been reactivated, several years after the person left the category 1 territory, with an EAW then being issued on that basis. This leads to the drastic measure of extradition being used inappropriately in respect of minor offences. There is the case of Natalia Gorczowska, who was convicted of possession of 4 grams of amphetamines and given a 10-month suspended sentence. She left to begin a new life; several years later, with no apparent reason for the delay, the sentence was reactivated and, still later, an EAW was issued, leading to significant expense and very nearly to a drastic impact upon her young son’s life. The Committee might like to note that, had the same conduct been the subject of a prosecution EAW, it would probably have fallen to be considered as one of minor gravity and unlikely to attract a lengthy prison sentence in application of the specified matters relating to proportionality to be considered before granting a prosecution EAW but not in the case of considering a conviction warrant.
This rather lengthy amendment to Section 21 allows a proportionality analysis, including a broad range of factors tailored to conviction EAWs. Applying the proposed test, the judge would be able to take into account the person’s conduct and other circumstances when addressing proportionality—for instance, whether the person deliberately evaded onerous community obligations by leaving the country, or whether the sentence was reactivated systematically, long after the person left the country and without his or her knowledge.
Amendment 93 provides discretion to refuse a conviction warrant where the subject is a British national and will serve his or her sentence in a UK prison. The proposed amendment would allow the judge at the extradition hearing to refuse to surrender a person under a conviction EAW if that person is a British resident or national, and if it is possible for them to serve their sentence in the UK. It is worded in similar terms to Section 3(1) of the Repatriation of Prisoners Act 1984, which also provides for the issue of a warrant to authorise a person’s detention to serve or complete in the UK a sentence imposed by a foreign court.
Currently, UK courts have no discretion to refuse to extradite a British national or resident to serve a sentence in another country on the basis that it is more appropriate that he or she serves that sentence in the UK. This issue has been highlighted in a number of Fair Trials cases. Individuals have been extradited from the UK following conviction in another jurisdiction yet, following surrender, have been transferred back to the United Kingdom after the lengthy and bureaucratic prisoner transfer process. This is a waste of time and money. UK courts should be given the option of refusing extradition and allowing the defendant to stay in the UK to serve the sentence. Other member states including Belgium, Denmark, Italy and Poland have included this ground for refusal in their implementing legislation.
In the announcement that my noble friend referred to earlier, the Home Secretary stated:
“Where a UK national has been convicted and sentenced abroad, for example in their absence, and is now the subject of a European arrest warrant, we will ask”,
the issuing state’s,
“permission, for the warrant to be withdrawn, and will use the prisoner transfer arrangements instead”.—[Official Report, Commons, 9/7/13; col. 179.]
The flaw in this approach is the possibility that the issuing state will simply not grant permission.
This amendment establishes a legal basis for the judge to refuse extradition and order that the person serves the sentence in the UK. This possibility is provided for in the EAW framework decision, in which paragraph 6 of Article 4 provides that the executing judicial authority may refuse to execute the EAW,
“if the European arrest warrant has been issued for the purposes of execution of a custodial sentence or detention order, where the requested person is staying in, or is a national or a resident of the executing Member State and that State undertakes to execute the sentence or detention order in accordance with its domestic law”.
Given this clear legal basis to provide the judge with discretion to refuse extradition and allow the person to serve the sentence in the UK, it is disappointing that the Government have opted for a slightly different policy, which is not placed on a statutory footing.
The reference to UK nationals in the Home Secretary’s announcement suggests that this reluctance may be because the Government wish the policy to benefit only UK nationals and not non-national residents. It follows clearly from the case law of the Court of Justice that, if the UK implemented paragraph 6 of Article 4 of the EAW framework decision, which applies to both nationals and those staying in or resident of the executing member state, it would not be able to reserve the benefit of this provision to UK nationals only. The drafting in the Bill appears to be a way of avoiding that constraint. However, the policy discriminates in favour of UK nationals and could be the subject of legal challenge, irrespective of whether or not it is placed on a statutory footing.
The policy adopted in lieu of implementation of paragraph 6 of Article 4 of the EAW framework decision is also an ineffective protection. If the issuing state refuses to use the prisoner transfer arrangements, there is no recourse and the person has to be extradited in any event. As the Home Secretary said in her announcement, the proposed change,
“could have prevented the extraditions of Michael Binnington and Luke Atkinson”,
UK nationals who,
“were sent to Cyprus only to be returned to the UK six months later”.—[Official Report, Commons, 9/7/13; col. 179.]
to serve the rest of their sentences. However, this would have been dependent on the Cypriot authorities co-operating. Had Cyprus declined to use the prisoner transfer arrangements, the judge would not have had any legal ground on which to refuse extradition.
It would make more sense for the Government to put the policy on a statutory footing, providing proper protection for UK nationals and other residents whose social reintegration would be served by their serving their sentences in the UK, in line with the relevant provisions of the framework decision. These amendments allow the judge to identify residents on a discretionary basis; equally, Parliament could set reasonable statutory criteria. By example, I understand that Dutch law provides a five-year residence criterion, which has been considered lawful by the Court of Justice of the European Union. I beg to move.
My Lords, as my noble friend has said, Amendment 82 seeks to introduce a proportionality bar for post-conviction cases. As my noble friend Lord Taylor has said, Clause 138 will allow the UK courts to deal with the long-standing issue of proportionality, which is of course a fundamental principle of EU law in cases where a person is sought for prosecution. Under the EAW framework decision, an EAW can be issued in a post-conviction case only if a sentence of at least four months has been imposed. We believe that this is a sufficient proportionality safeguard in such cases.
Perhaps I might also reassure my noble friend that the courts will still consider any representations made that the extradition would breach a person’s human rights—I believe that he mentioned this in his comments. As now, a person would be extradited only if it was compatible with their rights under the European Convention on Human Rights. This includes and applies to those people who are wanted to serve a sentence.
I turn to my noble friend’s Amendment 93. I draw your Lordships’ attention to the terms of the Statement made in July by my right honourable friend the Home Secretary—again, my noble friend referred to this—about the reform of the operation of the EAW to enhance the safeguards available for British citizens wanted for extradition. In that Statement, the Home Secretary set out our commitment to make greater use of EU prisoner transfer arrangements. Where a UK national has been convicted and sentenced abroad, for example in their absence, and is now the subject of a European arrest warrant we will ask for permission for the warrant to be withdrawn and will use the prisoner transfer arrangements instead. My noble friend acknowledged that.
Whereas this policy is limited to UK nationals, Amendment 93, put forward by my noble friend, would broaden the scope of this safeguard beyond UK nationals to those who are resident in the UK, with the consequential impacts that would lead to, including those on the public purse. This Government’s policy is that foreign nationals should, wherever possible, serve their sentences in their home country. Therefore the scope in terms of broadening this beyond UK nationals is not something the Government subscribe to, based on the policy I have indicated. I hope, based on the explanations I have given which underlie the Government’s approach, that he will at this time seek to withdraw his amendment.
My Lords, I have just one question. As I understood my noble friend’s remarks, he said that we now have an effective proportionality test for conviction warrants. My advice is that we do not have that and that there is no chance of a proportionality test for that.
While he is reflecting, my other point is on the question of how we are going to be able to deal with situations where countries do not collaborate. I appreciate the point about non-national residents. I hope, however, the Government will consider following up examples like that of the Dutch. They have established cases where non-nationals would not qualify and therefore the issue which he very properly raises about the impact on public funds could be avoided.
Could he just confirm that there is a proportionality test for conviction warrants, because as I understand it there is not?
For clarification, I repeat that I said that under the EAW framework, an EAW can only be issued in a post-conviction case if a sentence of at least four months has been imposed. We believe that is the sufficient proportionality safeguard in such cases.
I will not try to absorb all that now; I will read about it in Hansard. In the mean time, I seek to withdraw the amendment.
Amendment 82 withdrawn.
Clause 139 agreed.
Clause 140: Request for temporary transfer etc
83: Clause 140, page 107, line 26, at end insert “(which must include a specific timeframe within which the person must be returned to the United Kingdom)”
My Lords, in moving Amendment 83, I shall speak also to Amendments 84 to 86. With these amendments I am seeking to address some of the weaknesses of the temporary transfer system. Amendments 83 and 84 seek to ensure that temporary transfers remain temporary. Amendment 83 would insert in proposed new Section 21B the words,
“a specific timeframe within which the person must be returned to the United Kingdom”,
and Amendment 84 would insert the words,
“within the period specified in the judge‘s order made under subsection (5)”.
They make a temporary transfer conditional on the issuing state providing assurance that the person will be returned within the time allotted for the transfer. The purpose of the temporary transfer system is to enable the issuing state to complete certain steps in the criminal case which we referred to earlier, such as charging the person, and to allow the person to return home, without seeking their extradition. However, in the Bill as drafted, there is no system for ensuring the return of the person.
The concern is that a person brought before a judge or court in the issuing state in the course of a temporary transfer could rapidly find themselves processed in accordance with the usual course of procedure and detained pending trial. I believe that it is therefore necessary to enable the judge to obtain specific assurances that the person will be returned within a fixed period by the judge. The amendment allows the judge to refuse to grant a temporary transfer in the absence of such assurances.
Amendments 85 and 86 permit the temporary transfer system to be used more than once. The Bill allows for the temporary transfer scheme to be used once only. I entirely accept that there is a need to ensure that the temporary transfer process is not used repeatedly to delay extradition, but I believe the current restriction to one use may be too blunt. If a new point comes to light later in the proceedings suggesting that further progress could be made by the requested person attending again, then, provided it is not an abuse of the system, the procedure should be available again. It must also be unfair to prevent a requested person using a temporary transfer just because they have previously agreed to a request, perhaps by the requesting state. There is an issue here of equality of arms. I beg to move.
My Lords, the provisions in Clause 140 will allow a person to speak with the authorities in the issuing state before any extradition takes place. The clause allows for the person’s temporary transfer to the issuing state and for the authorities in that state to speak with the person while he or she remains in the UK, for example, via videoconferencing. I understand my noble friend’s concerns that there should be safeguards, but I believe that there are sufficient safeguards already in place.
Both parties must consent to a temporary transfer—a temporary transfer is only possible where the person concerned agrees to it—and in doing so the issuing authority would be agreeing that the person would be returned to the UK. If the person was not returned, the issuing state would, of course, be in breach of that agreement and the clear terms of the European arrest warrant framework decision. Neither are we aware of any cases among our EU partners where such agreements have been disregarded.
Amendments 85 and 86 relate to the circumstances in which a person may make a request for temporary transfer or videoconferencing. I am grateful to my noble friend for bringing to the Committee’s attention the suggestion of allowing more than one request to be permitted by a UK judge.
In this particular case the Government are not persuaded that there are sufficiently compelling arguments for making such a change. Allowing more than one request could be used to delay the extradition process to no good end. We would expect the cases to which my noble friend refers to be very rare, and if such a situation did arise, the individual would still be able to approach the requesting authorities via their legal representatives to provide further information to consider in that case.
Noble Lords are aware, as my noble friend Lord Taylor has emphasised, of the importance we place on getting the balance right between ensuring efficient extradition processes and the protection of the requested person. We believe that this potential for unnecessary delay would outweigh any marginal benefits it may bring.
I therefore hope, with the explanation I have given, that my noble friend will be minded to withdraw his amendment.
I certainly will withdraw it. I am convinced about Amendments 83 and 84, but I cannot see how the ability to get a second temporary transfer is going to cost the Government anything. In fact, it would greatly improve the efficacy in the administration of justice. If I were an EAW subject, I would be very disappointed that because the requesting state had used the temporary transfer system up for its own purposes, I was not then able to use it for myself. It is a shame that we do not have even a measure of equality of arms, always providing for the fact that this should not be allowed to detain and block up the process. I beg leave to withdraw the amendment
Amendment 83 withdrawn.
Amendments 84 to 87 not moved.
Clause 140 agreed.
Clause 141: Appeals
88: Clause 141, page 108, line 1, leave out paragraphs (a) and (b)
In moving Amendment 88, I shall speak also to Amendments 88A and Amendments 89, 90, 91 and 92. Clause 141 is about appeals against EAWs. I note that the noble Baroness, Lady Smith of Basildon, and the noble Lord, Lord Rosser, have tabled a stand part debate to remove this clause. I look forward to hearing their remarks in support of that fairly blunt instrument. My amendments, by contrast, offer my noble friend the Minister a focused, surgical approach to this issue.
Amendments 88 and 90 remove the requirement for leave to appeal. We have spoken about how extradition has an enormous impact on suspects’ lives and those of their families. Given the problems that, for example, Fair Trials regularly sees arising at first-instance extradition hearings, there are concerns about any measure that limits access to appeal courts. The vast majority of those subject to extradition procedures—the “little platoons” that I referred to in my first group of amendments —cannot afford a lawyer and are therefore represented by a duty solicitor. Many duty solicitors have little experience of extradition cases and therefore may not be familiar with the complex conditions of the 2003 Act and associated case law. This can be contrasted with the position of the requesting state, which is automatically entitled to representation by a specialist unit of Crown Prosecution Service lawyers. The complexity of extradition cases also means that there is often inadequate time at a first-instance hearing for consideration of all the relevant facts and issues. If suspects lose their automatic right to appeal then, so long as these problems at first instance remain, there may be cases that result in people being wrongly extradited.
These problems are demonstrated by the recent case of Krzysztof Juszczak, who in February 2013 appealed successfully against extradition to Poland on the basis that his removal from the UK would constitute a disproportionate interference with his family life under Article 8 of the ECHR. Although Mr Juszczak is the primary carer for his severely disabled stepdaughter, this was not raised by the duty solicitor before the district judge, an omission that was criticised as a failure of duty by Mr Justice Collins in his appeal judgment. As this evidence was obtained late in the process, there is a clear danger that under the proposed system Mr Juszczak would have been denied leave to appeal.
I recognise the problems raised in the Sir Scott Baker review in relation to the large number of unmeritorious appeals in the extradition process, and understand the need for a process to ensure that appeals with merit are heard and disposed of more quickly. It must be in the interests of both defendants and the state that the appeal process works to correct genuine errors rather than to delay the judicial process. However, it is surely equally true, and vital, that suspects are given a full opportunity to get a case together and identify any valid grounds on which their extradition should be refused, and any appeal process should reflect that.
The Sir Scott Baker review recommended that any leave-to-appeal test should follow the standard required for judicial review—namely, that the defendant must show an arguable case in order to be allowed to appeal. The inclusion of any higher standard of proof would be inappropriate, not least because the requirement to demonstrate an arguable case, as is the case in the judicial review process, would suffice to weed out those cases with no merit. Leave should be sought on paper, with written reasons provided for the outcome. Defendants must then have a right of appeal against refusal to a judge at an oral hearing. Only the judge at first instance or the High Court judge who would hear the appeal should consider applications for leave to appeal. If all these safeguards were guaranteed, a requirement for leave to appeal might be acceptable.
There has been concern that the lack of information about how the Government’s proposed amendments will work in practice makes it far from clear that they satisfy the above recommendations of the Sir Scott Baker review, and people could still have their lives ruined by an unjust extradition. As this concern remains unanswered in the Bill as currently drafted, the argument regarding appeal remains flawed and liable to create unfairness and inequality of arms. It has also been pointed out that the Government’s proposed amendments did not affect the requesting state’s automatic right to appeal if an extradition request is refused, thus introducing a further inequality of arms into proceedings that are already heavily weighted in favour of requesting states, which have far greater resources than individuals and benefit from a strict “no questions asked” regime that gives courts very little power to refuse extradition.
The Government have taken concerns in this regard into account, with the introduction of a requirement of leave to appeal against discharge at extradition hearing in Clause 141(2), but this amendment proposes that that requirement should also be omitted in line with the proposed approach to appeals against extradition orders in Clause 141(1).
Amendment 88A would extend the deadline for bringing appeals against extradition from seven days to 14. I reiterate my welcome for the introduction of flexibility in relation to appeal deadlines, but I remain concerned that the current drafting may be insufficient to address potential injustices, particularly when linked to the proposed removal of the automatic right to appeal. Given the impact of extradition on individuals, a standard period of seven days to appeal or seek leave is pretty short. This is often exacerbated by the need to obtain evidence from other jurisdictions and can raise enormous challenges when a person decides to change their lawyer after the first-instance hearing.
We have already discussed the introduction of the leave-to-appeal requirement of the person to comply with the appeal deadline, but it should also be taken into account if the leave requirement is to be introduced. If the proposal set out in paragraph 10.14 of the Baker review is followed, with leave to appeal being sought and granted or refused on paper, the drafting needed to produce the leave application could become more onerous, complex and time-consuming than for the current notice. It is therefore proposed that the timeframe flexibility introduced in the amendments to Sections 26(5), 103(10) and 108(5), as amended in accordance with paragraph 4.1 above, be retained but that the permitted period in Section 26(4) should also be extended to 14 days. This would follow the recommendations of the Baker review at paragraphs 11.75 to 11.76. I beg to move.
My Lords, I will be brief with what has been described as my blunt instrument on Clause 141. I will not repeat the detailed arguments put by the noble Lord, Lord Hodgson of Astley Abbots. As he said, Amendments 88 and 90 seek to preserve the automatic right to appeal against an extradition order by deleting provisions in the clause that would make the ability to appeal against an order subject to obtaining the permission of the High Court. Essentially, it appears that the Government are now proposing to remove a key safeguard for individuals at risk of extradition by repealing the automatic right of appeal. We have real concerns about this change, which of course removes safeguards for UK citizens.
The automatic right of appeal is a key safeguard against the wrongful extradition of individuals, which allows them to raise new evidence that was not available at the time of the extradition hearing or to challenge the decision of the original judgment. It was surely this automatic right of appeal that allowed Gary McKinnon and his family to challenge the initial decision to extradite him to the US, leading ultimately to the decision not to extradite him at all. Without the right of appeal, he might have been extradited without any further consideration of the evidence, old or new, showing that extradition posed a serious risk to his right to life. Indeed, in the Statement that the Home Secretary made on 16 October 2012, she specifically referred to this issue when she said:
“After careful consideration of all of the relevant material, I have concluded that Mr McKinnon’s extradition would give rise to such a high risk of him ending his life that a decision to extradite would be incompatible with Mr McKinnon’s human rights”.—[Official Report, Commons, 16/10/12; col. 164.]
Yet, subject to what the Minister may say, the Government appear to be introducing changes to the Act that would mean that if a similar case occurred after this Bill had been passed, the Home Secretary would not be able to make the same decision.
Clause 141 amends Sections 26 and 108 of the 2003 Act to provide that an appeal will lie only with permission from the High Court, and no indication is given in the Bill of what criteria will be used to decide whether permission should be granted. I hope that the Minister will be able to indicate the reason for the Bill being so vague over an issue—namely, the criteria—that could have significant human rights consequences. What in fact do the Government expect the criteria to be, do they expect them to be evidence-based and will they be available for scrutiny? What impact do the Government believe any likely criteria will have on the number of cases able to be appealed?
Once an individual has been extradited, of course, there is virtually nothing that can be done if new evidence arises to show that that was not the appropriate or fair decision and was contrary to the interests of justice or their human rights. Does the Minister not agree that, because of that, it is crucial that people effectively have an automatic right to appeal against a decision to be extradited, or at least some other means of ensuring that justice is done, and that we do not end up in a situation which, frankly, does our own extradition system no credit?
I cannot vouch for this personally, but Liberty says that extradition experts are of the view that a large number of cases that have been successful on appeal probably would not have been granted leave under the Bill. Removing the right of automatic appeal will potentially have considerable human rights and legal implications. If the Minister cannot offer some movement on this issue when he replies tonight, I hope that he will at least be able to explain why the Government appear to be taking such a major backwards step, having previously placed such emphasis on their concern for Gary MacKinnon’s human rights.
My Lords, as my noble friend has explained, Clause 141 makes the right of appeal against a decision to order extradition subject to the leave of the High Court. Similarly, it makes the requesting state’s right of appeal against a decision to discharge a person from extradition proceedings subject to the leave of the High Court. Clause 141 also allows the requested person to make an application for leave to appeal out of time in certain circumstances. This does not apply to the requesting state.
The noble Lord, Lord Rosser, using his blunt instrument, gives me the opportunity to broaden the debate beyond the immediate amendments and explain how this process will work and why the Government feel justified in introducing Clause 141. My noble friend Lord Hodgson, in tabling his Amendments 88 and 90, challenges us on why we are making these changes. At present, a person has an automatic right of appeal against a decision to order his or her extradition, and the requesting state also has an automatic right of appeal against a decision not to order extradition—an important factor to bear in mind.
As noble Lords are aware, the Government commissioned a review by Sir Scott Baker of the UK’s extradition arrangements. One of the key findings of his review was that the success rate of appeals was extremely low: less than 13% in 2010. In other words, the court system is burdened by unmeritorious appeals, a fact to which my noble friend Lord Hodgson referred, which then delay hearings for all appellants and means that justice is deferred. Clause 141 addresses this problem by making appeals subject to permission from the High Court. This filter applies to appeals against, for example, a judge’s decision to order extradition to a Part 1 territory, that is, another member state; a judge’s decision to send a case to the Secretary of State to consider extradition in Part 2 cases, that is, where the requesting country is not an EU member state; and to a decision by the Secretary of State to order extradition in Part 2 cases. To provide parity, it also applies to appeals against decisions to discharge a person.
My noble friend Lord Hodgson asked what sort of issues a court would consider in deciding whether to allow an application to be heard. This will be, as one would expect, a matter for the judge concerned. They will, of course, give full consideration to all the relevant factors raised by the appellant before reaching a decision. We do not think that they are appropriate to be set out in legislation, as it is a matter for the court itself to consider. I understand that noble Lords will have questions about what safeguards will be available. Let me reassure noble Lords that this provision does not prevent anyone from applying for permission to appeal. Once an application has been made, the High Court will decide which cases proceed to a hearing, but each application will be considered by a High Court judge. Furthermore, Clause 141 sets out that the High Court must not refuse to entertain an application for leave to appeal by the requested person solely because it has been submitted outside the normal time period, if the person did everything reasonably possible to ensure that the notice was given as soon as it could be.
That point brings me to the matters that my noble friend Lord Hodgson raised in relation to this in his Amendments 88A, 89, 91 and 92. My noble friend proposes to amend Clause 141 to insert a requirement for the courts to allow an appeal to be made out of time if it is in the interests of justice to do so. As I said, Clause 141 allows the High Court to hear an out-of-time appeal where the person has done everything reasonably possible to bring the appeal as soon as possible. Our approach follows that of the Supreme Court, which ruled last year that out-of-time appeals should only be considered exceptionally. We believe that this provision gets the balance right: the timetable for an appeal is clear and there must be an onus on an appellant to meet the statutory requirements, as happens in the vast majority of cases.
My noble friend is also proposing to extend the time limit for appeals in Part 1 cases from seven days to 14 days. As he has explained, this was one of the recommendations that Sir Scott Baker made in his review of our extradition arrangements. We have therefore considered it very carefully in developing the provisions in the Bill. Our view is that extending the time limit in this way would have no practical effect beyond increasing the likelihood for delay. As I said, we have introduced new protections where people are unable to submit their appeals on time through no fault of their own. We believe that this new provision will address the concerns raised by my noble friend, and indeed by Sir Scott Baker, on this issue.
What safeguards will exist under these new provisions? We do not believe that we are removing any existing safeguards. We need to get the balance right between ensuring proper protection for those subject to an extradition request while ensuring that people do not delay their proper surrender by burdening the courts with unmeritorious appeals. We believe that this approach gets these matters right. The court itself will decide the issues and the relevance of any out-of-time considerations.
The changes set out in Clause 141 will allow the courts to focus their attention on the right appeals, removing the burden of unmeritorious appeals while ensuring that proper safeguards are in place for those subject to extradition. I commend the clause to the Committee and I hope that my noble friend will be prepared to withdraw his amendment, and that the noble Lord, Lord Rosser, will see the merit in the clause.
I am grateful to my noble friend for that fulsome reply. I am disappointed that the Government have not seen fit to follow up the Scott Baker proposal for 14 days instead of seven days, given the complexity of the appeal process, particularly when linked to the additional steps that the Government are taking to introduce prohibitions on and difficulties in getting an appeal process going in the first place. Obviously, however, this is not the time to take the argument further. I look forward to reading with care in Hansard tomorrow what the Minister has said. I beg leave to withdraw the amendment.
Amendment 88 withdrawn.
Amendments 88A to 92 not moved.
Clause 141 agreed.
Clause 142 agreed.
Amendment 93 not moved.
94: After Clause 142, insert the following new Clause—
“Request of further information where suspicion of mistaken identity
In section 7 of the Extradition Act 2003 (identity of person arrested), after subsection (4) there is inserted—“(4A) If the judge decides that question in the affirmative, he must decide whether the person in respect of whom the warrant was issued is the person who is alleged to have committed, or to have been convicted for, the offence on which the warrant is based.
(4B) The judge must decide the question in subsection (4A) on the balance of probabilities, but if he considers there is reasonable doubt as to that question, he may not decide it in the affirmative unless he has first requested the issuing authority to provide further information within the time specified in the request (which must not be less than a reasonable time in all the circumstances) and the issuing authority has provided him with the information requested within that time.
(4C) If the judge decides the question in subsection (4A) in the negative, he must order the person’s discharge.””
My Lords, Amendment 94, which is concerned with mistaken identity, and Amendment 95 would insert two new clauses into the Bill. Amendment 94 would enable the judge at the extradition hearing—whether it is a prosecution or a conviction warrant—to request more information where there is a real doubt as to whether the person sought is actually the person suspected or convicted. This would be particularly valuable in cases where there is a reasonable belief that the person sought has had his or her identity stolen or where there is a clear case of mistaken identity. In these days of cybercrime, the former is an increasingly common occurrence.
There are currently no grounds in domestic law on which to refuse extradition where there are serious doubts about whether the person sought is the person who committed the crime or is suspected to have committed the crime. Such a situation has arisen in several cases where the person subject to the EAW has had their identity stolen by the real perpetrator or where that perpetrator has identified someone else as the person who committed the offence.
This is demonstrated by the case of Edmond Arapi, who was tried and convicted in his absence in Italy and given a sentence of 16 years. He had no idea that he was wanted for a crime or that the trial or subsequent appeal had taken place until he was arrested at Gatwick Airport in 2009 on an EAW on his way back from a family holiday. The British courts ordered that Edmond be sent to serve the sentence in Italy, despite clear proof that he was at work in the UK on the day of the alleged offence. On the day that the High Court was due to hear his appeal against extradition, the Italian authorities decided to withdraw the EAW following a campaign, admitting that they had sought Edmond in error. He narrowly avoided being separated from his wife and children, including a newborn son, and spending months or years in an Italian prison awaiting a retrial. This amendment is needed to give courts greater discretion to request further information where there are reasonable grounds to believe that the person sought under an EAW is the victim of mistaken or stolen identity.
Amendment 95 seeks to clarify the approach that a judge should follow in relation to human rights and provide a stronger basis on which to refuse to execute an EAW on human rights grounds. Many have argued that the underlying assumption of the EAW system—that other Part 1 territories can always be trusted to respect the fundamental rights of those extradited—rests on shaky foundations. For instance, it has been reported that in the years 2007 to 2012, Greece violated Article 6(1) of the ECHR 93 times in criminal cases.
Garry Mann, giving evidence to the Home Affairs Committee, described his 2004 trial in Portugal as follows, stating that,
“the police … just told me it was some kind of public order offence … we went into court and there were 12 of us … we had one interpreter … she would try to say something and pass it down the line of 12, but we did not understand what was going on at all … They asked me what I thought in broken English, but again the judge and the lawyer did not speak much English … I never knew the charge that I was facing until 30 minutes before I was convicted at 11.30 that night … They said there was no time to call any witnesses. I said I would like CCTV; no time to call CCTV”.
An English court later called on to issue a football banning order against Garry refused, finding that the trial had not complied with Article 6 of the ECHR.
The courts have, however, given very short shrift to arguments alleging that extradition would lead to a violation of human rights. In accordance with the concept of mutual trust, on which the operation of the EAW is based, the courts assume that the issuing state will protect the extradited person against any unfairness and that past proceedings giving rise to convictions on which EAWs are based were fair. A person must show that they are at risk of a “flagrant” breach of their fair trial rights in order to resist extradition. The approach is difficult to sustain when there are ongoing systematic deficiencies in a justice system, which are liable to impact upon an extradited person. For instance, the European Court of Human Rights recently found Italy in violation of Article 3 of the ECHR and applied its pilot judgment procedure, recognising that widespread overcrowding was leading to systematic infringements of Article 3. The concept of mutual trust is difficult to defend in such circumstances. If an extradited person is going to be detained in the same prison, it is plainly likely that their human rights will be infringed.
The Government have taken the view that the EAW framework decision implicitly allows refusal to execute an EAW on human rights grounds, relying on recital 12 and Article 1(3) of the framework decision, which affirm that the latter shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles, as recognised by Article 6 of the Treaty on European Union and reflected in the European Charter of Fundamental Rights. However, the precise content of those fundamental rights obligations is not clear. In her opinion on the Radu case, Advocate-General Sharpston suggested that, under the charter, the test was whether there was a “substantially well founded risk” of a violation which would,
“fundamentally destroy the fairness of the trial”,
a slightly different test from the ECHR flagrancy test. However, for the time being, the precise requirements of fundamental rights are not defined in EU legislation. Accordingly the member states enjoy some discretion to apply fundamental rights as they understand them, provided that this does not compromise the unity and effectiveness of EU law. This amendment therefore falls within the permissible bounds of the EAW framework decision. I beg to move.
My Lords, the additional safeguards that my noble friend has proposed through Amendment 94 seek to introduce matters of mistaken identity. It is not something that we believe is necessary. Clearly, we do not want the wrong people to be extradited; the wider issues relating to identity were carefully considered during the review of the UK’s extradition arrangements. Sir Scott Baker did not find any evidence that a person who was subjected to mistaken identity had actually been surrendered to stand trial. He concluded that there was no need to amend the Act to require a judge to request further information concerning the requesting person’s identity. Nor did the Metropolitan Police, the Crown Prosecution Service or the Crown Office raise concerns about the issue.
I agree with expert opinion and I am not persuaded that a change is needed here. My noble friend asked about the case of Mr Arapi—I will try to avoid talking about particular cases—but, as my noble friend will be aware, Mr Arapi was not extradited and the Italian authorities admitted their error in making the request for him rather than another person of the same name. In his review, Sir Scott Baker found that no amendment was needed to the protections already afforded in the Act with regard to identity as there are already sufficient procedures in place to protect people who are sought as a result of mistaken identity.
The amendment raises the particular issue of a judge being clear that the person who has been arrested and appears in court is the person who is alleged to have committed the crime. This goes to the heart of the trial in the issuing stage. It is not a matter for the UK courts. The courts’ consideration of an extradition request is not one of guilt or innocence but of whether any of the statutory bars to extradition apply.
Turning to Amendment 95, my noble friend seeks to make changes to a judge’s consideration of human rights in EAW cases, including expanding the matters to which the judge should have regard when considering whether extradition would breach a person’s human rights.
We believe that there are already sufficient safeguards in the Extradition Act to allow a judge to bar extradition on human rights grounds. The 2003 Act is drafted to allow the courts to give the fullest possible consideration to human rights issues. We discussed this matter in earlier deliberations in Committee. In all cases, the judge must decide whether extradition would be compatible with the convention rights and must discharge the person if he or she decides that it would not be compatible.
In his review of the UK’s extradition procedures, Sir Scott Baker found that the human rights bar to extradition did not need amending. The review found that the bar did not permit injustice or oppression, and the Government agree with that assessment. We do not accept that a judge’s approach to human rights needs to be changed.
In conclusion, I am very grateful to my noble friend for giving the Committee this opportunity to consider various aspects of Part 12 of the Bill.
Am I not right in saying that the European Commission has been quite critical of some of the new entrants into the EU’s legal systems and has instanced poor training of judges and problems of corruption? As long as the criticisms continue to be made, does not my noble friend’s amendment have a real point, or is the Minister saying that the human rights considerations that he has been talking about would cover that instance?
The European arrest warrant provisions are indeed Europe-wide, so they cover a number of different jurisdictions. None the less, proportionality and human rights considerations are written throughout these particular parts of the Bill. As I said, Sir Scott Baker investigated this. He felt that the human rights bar to extradition did not permit injustice, if it was believed to exist, or oppression, and the Government agree with that assessment. I hope that I have satisfied my noble friend and that he will accept that the Government are not operating this mutual extradition facility which the European arrest warrant provides for in a way which is unreasonable to people who are subject to extradition requests.
Perhaps I may assist the Minister in replying to the question that has been raised. Recently, the Supreme Court had to consider a case where an individual was being sought to be extradited to Albania. The court was told that there was a high degree of corruption among the judges and the extradition was stayed so that the degree of corruption could be investigated further. The matter is now in the hands of the Lord Advocate in Scotland. That is an example of the kind of phenomenon to which the noble Lord referred—where the standards in one of the new countries are not up to the standards that one might expect. However, I suggest that the courts are very astute in ensuring that the human rights protection in relation to a fair trial is preserved. That is a very recent example which I think meets the point that the noble Lord, Lord Lawson, had in mind.
Not for the first time, I am very grateful to the noble and learned Lord, Lord Hope of Craighead, for his intervention in this matter. I should say that Albania is not a member of the European Union at this stage. However, the principle applies, as the noble and learned Lord said. Section 21 of the existing Act already requires the judge to be satisfied that extradition is compatible with the human rights convention, and that includes the right to a fair trial. Therefore, that already exists in law.
In conclusion, I am grateful to my noble friend for giving the Committee an opportunity to consider various aspects of Part 12 of the Bill. On a number of the issues he has raised, I think that we share the same policy objectives, and in such cases where we have differences between us, they may well simply be a matter of drafting. Having had this important debate and in the light of my comments, I hope that my noble friend will agree to withdraw his amendment. If, on reading the record, he finds that there are still aspects with which he is concerned, I hope that he will not hesitate to raise them with me.
Of course, I shall not hesitate at all. Again, I am extremely grateful to my noble friend. He is quite right to remind me that Edmond Arapi was not extradited, although, in the words of the Duke of Wellington, it was “a damn close-run thing” in the sense that the appeal was heard on the day that he was about to go.
I acknowledge the points that my noble friend made concerning the Scott Baker issues of identity and human rights, although I think that identity is going to become more and more important because of cybercrime and people assuming other identities. I think that that will come back for discussion. I am disappointed that we have not been able to find a way through that because, in my view, it will rise in importance and relevance.
My noble friend Lord Lamont asked the critical question: do we have sufficient mutual trust? The noble and learned Lord, Lord Hope of Craighead, said that we should have. The point, of course, is that unlike Albania, for which there would be a Part 2 warrant, the process of a Part 1 warrant, which the EAW would be, is a great deal swifter. Standing here on my feet at this moment, I do not know whether the court has more powers to make investigations in the case of a Part 2 warrant, as would be provided by my amendments, than it has in the case of a Part 1 warrant. That is something on which I cannot give an answer off the top of my head. However, I am grateful to my noble friend because I think that he has put his finger on it: is there enough mutual trust?
I am grateful to my noble friend and to the Committee for having let me rabbit on at some length about these issues. I beg leave to withdraw the amendment.
Amendment 94 withdrawn.
Amendment 95 not moved.
Clauses 143 to 146 agreed.
Clause 147: Non-UK extradition: transit through the United Kingdom
Amendment 95ZA not moved.
Clause 147 agreed.
Clause 148 agreed.
95ZB: After Clause 148, insert the following new Clause—
“Electronic transmission of European arrest warrant etc
In section 204 of the Extradition Act 2003 (warrant issued by category 1 territory: transmission by electronic means), in subsection (5)—(a) for “subsection (1), a” there is substituted “subsection (1)—(a) a”;(b) at the end there is inserted—“(b) information contained in the warrant is treated as being received by the designated authority in a form in which it is intelligible if the authority receives—(i) a summary of that information in English, and(ii) the text of the warrant itself,in a form in which it is legible.”
My Lords, this group of government amendments to Part 12 and Schedule 9 deal with three distinct and largely technical issues.
First, Amendment 95ZB, and the associated Amendment 98B to Schedule 9, make minor amendments to Section 204 of the Extradition Act 2003. That section makes provision for cases where the information contained in a European arrest warrant is transmitted to the United Kingdom electronically.
The amendments to Section 204 are needed to support the implementation of the second generation Schengen information system, otherwise known as SIS II. Under SIS II, the NCA will be required to certify requests entered by other member states for,
“arrest for surrender or extradition purposes”,
from the information received electronically under the SIS II process. This information will be an English language summary of the information contained within the EAW, together with the original language version of the EAW. Section 204 therefore requires amendment so that certification can take place on the basis of this English language summary, rather than a translation of the full contents of the EAW.
Amendments 95ZC and 95ZD relate to Clause 149. That clause amends the Prison Act 1952 to ensure that, in all cases where a person spends time in custody in another member state awaiting extradition to the UK, that time is counted as time served towards the UK sentence. As it stands, Clause 149 provides only for cases in England and Wales. Therefore, following discussions with the Scottish Government, we have agreed that analogous provision for Scotland can be made through administrative means. However, with the agreement of the Scottish Government, we are taking the opportunity to update relevant provisions in Scots law in relation to cases where a person is extradited to the UK to be sentenced. Section 210 of the Criminal Procedure (Scotland) Act 1995 makes provision for taking into account time spent in custody awaiting extradition to the UK in cases where a person is extradited to be sentenced. It is out of date in that it refers to the Extradition Act 1989 which is no longer in force. Amendment 95ZC amends this provision to update it in respect of extradition.
In respect of Northern Ireland, Section 38 of the Prison Act (Northern Ireland) 1953 makes equivalent provision to Section 49 of the Prison Act 1952 in cases where a person is sentenced before extradition to the UK. Amendment 95ZD, and the consequential Amendment 98A to Schedule 9, ensures that time spent in custody awaiting extradition to the UK from another member state is always credited. There is currently no legislative provision in Northern Ireland for taking into account time spent in custody awaiting extradition to the UK from another member state where a person is sentenced after extradition. Amendment 95ZD also amends the relevant law in Northern Ireland to ensure that such credit is given.
Amendments 104A, 104B and 104C to Clause 159 make consequential changes to the extent provisions arising from the two new clauses inserted by Amendments 95ZC and 95ZD. These new provisions will ensure that the UK law is fully in line with Article 26 of the EAW framework decision. Finally, Amendment 99 implements one of the recommendations in the 12th report of the Delegated Powers and Regulatory Reform Committee. That committee recommended that the order-making power in new Section 189E of the Extradition Act 2003 should be subject to the affirmative procedure. New Section 189E enables the Home Secretary to specify descriptions of persons, other than constables, who may exercise powers of detention, search and seizure in respect of people who are in transit through the UK and being extradited from one foreign territory to another. Such a power might be used, for example, to designate immigration officers. The Government are content to accept the committee’s recommendation in this regard. I beg to move.
Amendment 95ZB agreed.
Clause 149 agreed.
Amendments 95ZC and 95ZD
95ZC: After Clause 149, insert the following new Clause—
“Discount on sentence for time spent in custody awaiting extradition: Scotland
(1) Section 210 of the Criminal Procedure (Scotland) Act 1995 (consideration of time spent in custody) is amended as follows.
(2) In subsection (1)—
(a) in paragraph (a), after “United Kingdom” there is inserted “otherwise than from a category 1 territory”;(b) in paragraph (c)(ii), for “for the purposes of this section” there is substituted “who was extradited to the United Kingdom otherwise than from a category 1 territory”.(3) After subsection (1) there is inserted—
“(1A) Subsection (1B) applies where—
(a) a court is passing a sentence of imprisonment or detention on a person for an offence, and(b) the person is an extradited prisoner who was extradited to the United Kingdom from a category 1 territory.(1B) The court shall specify—
(a) the period of time spent in custody awaiting extradition, and(b) the date of commencement of the sentence in accordance with subsection (1C). (1C) The date of commencement of the sentence is to be a date the relevant number of days earlier than the date the sentence would have commenced had the person not spent time in custody awaiting extradition.
(1D) In subsection (1C), “the relevant number of days” means the number of days in the period specified under subsection (1B)(a).”
(4) After subsection (2) there is inserted—
“(2A) In this section, “category 1 territory” means a territory designated under the Extradition Act 2003 for the purposes of Part 1 of that Act.”
(5) Subsection (3) is repealed.”
95ZD: After Clause 149, insert the following new Clause—
“Discount on sentence for time spent in custody awaiting extradition: Northern Ireland
(1) In section 38 of the Prison Act (Northern Ireland) 1953 (arrest, etc, of persons unlawfully at large), for subsection (3) there is substituted—
“(3) The provisions of subsection (2) shall not apply to any period during which any such person—
(a) is detained in pursuance of any other sentence of any court in the United Kingdom in a prison or other institution, or(b) is kept in custody in a category 1 territory before, and only for the purpose of, being extradited to the United Kingdom to serve the term of imprisonment or detention referred to in that subsection,but shall apply in addition to any other provisions of this Act imposing any punishment for an escape. (3A) In subsection (3) “category 1 territory” means a territory designated under the Extradition Act 2003 for the purposes of Part 1 of that Act.”
(2) In section 26 of the Treatment of Offenders Act (Northern Ireland) 1968 (duration of sentence), at the end of subsection (2A) there is inserted “; or
(c) any period during which he was in custody in a category 1 territory with a view to his being extradited to the United Kingdom to be tried or sentenced for that offence (and not for any other reason).In paragraph (c) “category 1 territory” means a territory designated under the Extradition Act 2003 for the purposes of Part 1 of that Act.””
Amendments 95ZC and 95ZD agreed.
Clause 150 agreed.
95A: Before Clause 155, insert the following new Clause—
“Discretion in ordering victim surcharge to offenders under the age of 18
In section 161(A) of the Criminal Justice Act 2003 (court’s duty to order payment of surcharge), after subsection (4) there is inserted—“(5) In the case of offenders under the age of 18, the ordering of payment of a victim surcharge may be at the discretion of the sentencing body.””
My Lords, I rise to move the amendment in the name of my noble friend Lord Ponsonby, who cannot be in his place tonight. I shall be uncharacteristically brief. My noble friend draws the attention of the Committee, and indeed mine, to an anomaly in the present situation on victim surcharge orders. The payment may be ordered to be made by the parents of a young offender who are themselves the victims of a crime. That situation cannot possibly have been envisaged originally, but it appears to be the case and there seems to be no court discretion to avoid imposing what many of your Lordships would feel is a ridiculous outcome. The noble Lord may not be able to accept the amendment tonight, but I hope that he will look at it, as it seems to be anomalous and ought to be corrected.
My Lords, let me confirm at once that the noble Lord, Lord Beecham, has been uncharacteristically brief. I am sorry that the noble Lord, Lord Ponsonby, was unable to move his amendment because I know of his deep and continuing concern on these matters.
The Government are determined to provide the best support for victims of crime, which must be properly funded, but increasingly by offenders rather than taxpayers. In 2010-11, offenders contributed less than £1 in every £6 of funding that supports victims’ services. We intend to raise up to an additional £50 million from offenders to pay for services to support victims of crime. That is why we brought forward reforms to the victim surcharge last year, following public consultation, to ensure that all offenders bear a greater proportion of the cost of victims’ services. Proceeds from the surcharge are ring-fenced to fund support services for victims and witnesses. From October 2012, the victim surcharge for adult offenders was increased when ordered with a fine and extended to a wider range of in-court disposals such as conditional discharges, community sentences and custodial sentences. Similar provision was made for juvenile offenders who even before the changes made in 2012 were required to pay the surcharge when sentenced to a fine.
A key point of the victim surcharge is that all offenders, including juveniles, take responsibility for their offending behaviour and make a contribution towards funding victims’ services. Juveniles have therefore always been within its scope and I do not believe that it would be right to introduce discretion to exempt them. Having said that, I recognise the concerns of the noble Lord about the practicalities. When the offender is a juvenile, Section 137 of the Power of Criminal Courts (Sentencing) Act 2000 provides that the parent or guardian might become liable to pay a financial order made by the court. There may, therefore, be circumstances where the parent or guardian of a juvenile becomes liable to pay the victim surcharge when they have been the victim of the offence. We recognise the issue that such cases raise.
Let me reassure the noble Lord that the court does have the discretion not to order the parent or guardian to pay the surcharge if, having regard to the circumstances of the case, it considers that it would be unreasonable to do so. While the court would still need to order the surcharge in respect of the juvenile, there are a number of options open to it when it comes to payment. In this vein, the Justices’ Clerks’ Society issued a circular to its members in June this year outlining some of these approaches. These could include inquiring as to any income the offender may be receiving, particularly if they are older juveniles, in which case responsibility for paying the surcharge would fall directly to the young person. Additionally, in exceptional circumstances, the court has the power to defer payment of the surcharge until such time as it considers the offender would be able to pay it, again making responsibility for paying the surcharge the offender’s rather than that of his or her parents.
We believe that it is right that all offenders, including those aged under 18, should take responsibility and make greater reparation towards the cost of victim support services as a result of their actions. It is therefore appropriate that the surcharge should continue to be ordered when a court deals with an individual, whether as an adult or a juvenile. I hope that I have been able to reassure the noble Lord on the points he raised and that he will be content to withdraw his amendment.
My Lords, I am grateful for what I might best describe as an uncharacteristically helpful and informative response from the noble Lord, which I undertake to convey to my noble friend. We are, of course, entirely with the noble Lord and the Government in wanting to ensure that victims are compensated, especially by those who wrong them. He has adequately explained the situation and my noble friend’s fears seem to be unfounded. I beg leave to withdraw the amendment.
Amendment 95A withdrawn.
Clause 155: Court and tribunal fees
95AA: Clause 155, page 125, leave out line 9
My Lords, I shall also speak to Amendments 95AB, 95BA and 95D in relation to the issue of court and tribunal fees. At Second Reading I described the Bill as not so much a curate’s egg as a curate’s omelette, comprising as it does so many ingredients, both good and bad, mixed up together. It is perhaps fitting that the Committee should end with a debate on a clause which impels me to produce another culinary analogy, for this clause and the process which has informed it can best be described as half-baked.
It is perfectly reasonable to update the fees for proceedings in courts and tribunals to keep pace with inflation and, in appropriate cases, to seek full-cost recovery, provided there is a reasonable and effective scheme for the remission of fees, in whole or in part, for those of modest means or less. Equally, I have few qualms about fees in cases such as those in the commercial court which the Government are anxious to promote internationally as a forum of choice, but the approach of the Government to this clause has been cavalier in the extreme.
On 4 December the Minister wrote to me to say that the Government had launched a consultation on the provisions of Clause 155, as announced the previous day, that is to say four working days before the clause comes to be considered by this House. Had progress been quicker on earlier clauses, we would have reached this clause on the very day that the Minister’s letter reached me. The consultation, incidentally, is to last seven weeks, including the Christmas and new year period. It will end on 21 January, by which time we will presumably have reached Report, if not concluded it, and there will be little or probably no time at all for the Government to give their response before the Bill’s final stage is reached.
That is not all. Impact assessments for these proposals published on 2 December say next to nothing about the impact on claimants applying to tribunals or to the courts, as opposed to the amounts the Government hope to rake in from increased fees. The Government’s attitude to consultation is underlined by paragraph 20 of the current consultation paper which refers to an earlier consultation, CP15/2011, Fees in the High Court and Court of Appeal Civil Division, to which, the consultation paper records,
“the Government has not yet responded”
after some two years, and which are, the consultation paper says, “superseded”—without, I may say, any explanation—by the current proposals.
The saga does not end there—perhaps I should say does not start there—for the Government launched yet another consultation last April, this time on fee remissions for courts and tribunals, with a four-week period for responses, and published their response, conveniently, no doubt, for them on 9 September, when Parliament was in recess. Interestingly, that document introduced a disposable capital test and airily dismissed concerns that this might have a deterrent effect on claimants. There is, incidentally, currently concern about an apparently significant drop in employment tribunal claims following the hotly contested introduction of fees, which were widely regarded as too high. Perhaps the Minister would save me the trouble of tabling a Question by agreeing to write to me in the new year with details of the number of claims before and after the imposition of charges. It is, after all, an analogous situation to that which this clause deals with.
The Government’s latest consultation paper refers to interviews and research, both of which are said to have been the subject of a full report published alongside the consultation, but for which no references are given. Painting, as ever, with a broad brush, the Government say that they believe,
“that all those who issue a court case benefit equally from the existence of the civil justice system as a whole and should share in contributing towards its indirect costs”,
and, therefore, they divide the indirect costs of the system between all cases that are issued. It is not clear to me whether the apportionment applies equally to all cases, or whether it is in some way proportionate to the amount claimed. On the face of it, this looks very like the application of the principle of the poll tax to the cost of making a claim to a court or tribunal.
Paragraph 60 of the consultation proposes to combine the fees for issue and allocation to a track—the small claims track, fast track or multi-track—without any clear explanation of the rationale. Paragraph 63 acknowledges that the hearing fees for the higher track cases are higher than the average cost of such, but it does not propose to adjust them, thereby importing the concept of more than full-cost recovery by the back door. In divorce cases, while the Government say, at paragraph 71, that they will maintain the issue fee at £410, already above the actual cost price of £270, they will impose an extra charge of £300 to cover the cost of the remainder of the proceedings. Given that, in many cases these will be a mere formality, this looks suspiciously like another example of more than full-cost recovery, though not, of course, for the complex cases where there are major issues as to income and property, where such charges might be thought to be not unreasonable.
Ominously, the Government propose changes to the fees in money claims, including, no doubt at the behest, yet again, of their friends in the insurance industry, in personal injury cases. They go so far as to say that their proposals, if applied in their entirety, would lead to reduced fees on claims of around £10,000 or less but, typically, they will not be changing those fees.
The Committee will understand that there are many questions about these proposals, but there is an overriding question about the abuse of the legislative process which, not for the first time, is being perpetrated by this Government. I acknowledge and welcome the concessions made in the Government’s amendments as far as they go. They will ensure that any increase in fees other than inflation-related increases will have to be approved by affirmative resolution, and that is a welcome improvement. But will the Government consider the amendments I have tabled, which seek to ensure that access to justice is a prime consideration before setting the size of the fee increases, and that the remission arrangements are properly scrutinised and agreed? Will they revise the existing remission arrangements in the light of the proposed major changes, and will they review the proposals to take disposable capital into account?
Given the shambles of the process thus far, I have to say that on Report the Opposition may well press for a sunrise clause along the lines of Amendment 95D to ensure that there is proper parliamentary scrutiny of the complete package when its final contents are developed. As I say, that is unlikely to be the case before this Bill receives its Third Reading.
In addition, in the mean time it will be helpful to know whether, in the indefinite age of austerity that the Chancellor has decreed for public services, the principle of full-cost recovery, and especially of more than full-cost recovery, will be extended to other services such as further and higher education, prescription charges or other parts of the health service. By what logic, one wonders, would the Government differentiate between some of the proposals they are making in this Bill, incorporating more than full-cost recovery for access to justice, and those or other public services? I beg to move.
My Lords, I shall not try to follow the noble Lord, Lord Beecham, down his culinary route. One of the pleasures of responding to the noble Lord is that it is almost like doing a school exam. So many questions are fired at you in quick succession. If I do not cover them all in this reply, I will carefully read what he has said, note the question marks that Hansard inserts and try to send suitable replies, including on the point he made in opening about the figures for claims at employment tribunals after the introduction of charges.
Perhaps I may deal first with the two government amendments in the group, namely, Amendments 95B and 95C. These give effect to the recommendation made by the Delegated Powers and Regulatory Reform Committee relating to the power to charge enhanced court fees. Clause 155 currently provides that, when the power to set a fee or fees at an enhanced level is used for the first time, the relevant statutory instrument should be subject to the affirmative resolution procedure, with any subsequent changes to the fee or fees being subject to the negative procedure. The Government’s intention was that the principle of charging an enhanced fee should be subject to a full debate in Parliament, after which the negative procedure would provide the necessary level of parliamentary oversight for any subsequent changes to the fee.
However, the Delegated Powers and Regulatory Reform Committee was concerned that this would provide the Lord Chancellor with a very wide discretion to set the level of fees. Although the legislation requires the Lord Chancellor to have regard to the financial position of the courts and tribunals and to the competitiveness of the legal services market when setting fees, the committee felt it was possible that, in future, very different considerations might apply and that these should be taken into account. The committee therefore recommended that the power to set an enhanced fee should be subject to the affirmative procedure unless the amendment is being made solely to reflect the change in the value of money. The Government agree that this change would be appropriate and, accordingly, Amendments 95B and 95C will implement this recommendation.
I turn now to the amendments in the name of the noble Lord, Lord Beecham. Amendments 95AA and 95AB seek to require the Lord Chancellor to have regard to the principle of “access to justice” when setting fees. I can wholeheartedly agree with the noble Lord that this is an important consideration. However, the Lord Chancellor is already under a duty to do exactly this when setting fees under Section 92 of the Courts Act 2003. Subsection (3) of that section provides that the Lord Chancellor,
“must have regard to the principle that access to the courts must not be denied”.
Amendment 95BA seeks to make the remission scheme subject to the affirmative resolution procedure. As noble Lords will be aware, there is already a remission scheme in place. Indeed, the scheme has been in place for a number of years, but was updated and revised as recently as 7 October 2013 when the Courts and Tribunals Fee Remissions Order 2013 came into force. It is the Government’s intention that the existing remission scheme will continue to apply in all cases where enhanced fees would be introduced.
The current scheme provides for certain court and tribunal fees to be remitted in whole or in part where litigants meet certain criteria based on their disposable capital and gross monthly income. The existing scheme is made under the same order-making powers as apply to the setting of fees, for example, Section 92 of the Courts Act 2003, which relates to fees payable in respect of proceedings in the senior courts, county courts and magistrates’ courts. As the remission scheme relies on the same order-making powers as the statutory instruments prescribing court and tribunal fees, they are subject to the same level of parliamentary procedure—namely, the negative procedure. In its seventh report of Session 2002-03, the Delegated Powers and Regulatory Reform Committee welcomed a government amendment to make the order-making power in what is now Section 92 of the Courts Act 2003 subject to the negative procedure. Given that previous endorsement by the committee, and the fact that the current arrangements have been in place for some years, I see no good reason why we should now alter the level of parliamentary scrutiny.
Finally, Amendment 95D would require the Lord Chancellor to report to Parliament on the outcome of the public consultation on these proposals and to obtain approval for its response. As the noble Lord indicated, the Government on 3 December set out their detailed proposals for using the power to set enhanced fees in the consultation paper, Court Fees: Proposals for reform. This seeks views on a series of proposals for charging enhanced fees, including for money claims, in commercial proceedings and for divorce, alongside proposals for reducing the current deficit of £100 million in the cost of running the Courts and Tribunals Service. The consultation closes on 21 January. In the normal way, we will publish a response to that consultation in due course and Parliament will have an opportunity to consider it when we lay a draft order under Clause 155. I therefore take Amendment 95D as a probing amendment rather than an attempt to enshrine in statute the normal process of reporting on the outcome of a consultation.
As I have said, it is our normal practice to publish a government response to a consultation once we have considered the views of consultees, and we will do so with the response to these proposals. Those enhanced fees we decide to introduce following the consultation will be brought forward by statutory instrument, subject to the affirmative procedure. The Government believe that a full debate in both Houses with the benefit of the consultation outcome will provide sufficient parliamentary scrutiny of the proposed enhanced fee increases.
For all these reasons, the Government consider the amendments of the noble Lord, Lord Beecham, to be unnecessary. I hope that, as I intend to read his speech carefully to see his questions, he will read my speech carefully to see my answers. I hope he will withdraw his amendment.
My Lords, I always read the noble Lord’s speeches carefully and I am certainly willing to do so on this occasion. I am grateful to the Minister for his reply, and I suspect that this short debate will be seen as something of an aperitif for the rather more weighty matters that we are about to discuss when the noble Lord, Lord Carlile, moves his prayers to annul two other orders.
The Minister fails to acknowledge, however, that a negative procedure might be sufficient when one is dealing with a stable situation, but the Government are here proposing an entirely new basis for the levying of fees: in the first place, to ensure full-cost recovery, but, more significantly, potentially going beyond that to ensure more than full-cost recovery. That puts a whole different perspective on the likely impact of fees on litigants or applicants to tribunals. In these circumstances, a different procedure than the conventional negative procedure is required, at least in the early stages. This is a matter to which we may wish to return on Report.
The consultation effectively comes after the completion of the process of enacting this Bill, which will allow the Government to introduce new principles. It is the wrong way around: the consultation should have taken place and we should have had the result of that before we discussed this clause, which makes a significant difference to the way our courts operate. It is now too late for that to happen and that is a matter of regret. I am afraid that I do not resile for a moment from the criticisms I made, not of the Minister, who is not personally responsible—he is well aware of that—but of others occupying, perhaps, more senior positions, who ought to reflect on the way they are treating Parliament and its due processes when they push forward proposals of this kind in this way. Nevertheless, in the circumstances, I beg leave to withdraw the amendment.
Amendment 95AA withdrawn.
Amendment 95AB not moved.
95B: Clause 155, page 125, line 24, leave out “for the first time”
Amendment 95B agreed.
Amendment 95BA not moved.
95C: Clause 155, page 125, line 27, at end insert—
“(8) But subsection (7) does not apply if the statutory instrument only adjusts a fee to reflect changes in the value of money.”
Amendment 95C agreed.
Clause 155, as amended, agreed.
Amendment 95D not moved.
Clause 156 agreed.
Schedule 9: Minor and consequential amendments
Amendment 96 not moved.
Amendments 97 to 99
97: Schedule 9, page 193, line 21, at end insert—
“Police and Criminal Evidence Act 1984 (c. 60)(1) Schedule 2A to the Police and Criminal Evidence Act 1984 (fingerprinting and samples: power to require attendance at police station) is amended as follows.
(2) In paragraph 1 (fingerprinting: persons arrested and released)—
(a) in sub-paragraph (2), for “section 61(5A)(b)” there is substituted “section 61(5A)(b)(i)”;(b) after sub-paragraph (3) there is inserted—“(4) The power under sub-paragraph (1) above may not be exercised in a case falling within section 61(5A)(b)(ii) (fingerprints destroyed where investigation interrupted) after the end of the period of six months beginning with the day on which the investigation was resumed.” (3) In paragraph 2 (fingerprinting: persons charged etc)—
(a) in sub-paragraph (2)(b), for “section 61(5B)(b)” there is substituted “section 61(5B)(b)(i)”;(b) at the end of sub-paragraph (2) there is inserted “, or(c) in a case falling within section 61(5B)(b)(ii) (fingerprints destroyed where investigation interrupted), the day on which the investigation was resumed.”(4) In paragraph 9 (non-intimate samples: persons arrested and released)—
(a) in sub-paragraph (2), for “within section 63(3ZA)(b)” there is substituted “within section 63(3ZA)(b)(i) or (ii)”;(b) after sub-paragraph (3) there is inserted—“(4) The power under sub-paragraph (1) above may not be exercised in a case falling within section 63(3ZA)(b)(iii) (sample, and any DNA profile, destroyed where investigation interrupted) after the end of the period of six months beginning with the day on which the investigation was resumed.”(5) In paragraph 10 (non-intimate samples: persons charged etc)—
(a) in sub-paragraph (3), for “within section 63(3A)(b)” there is substituted “within section 63(3A)(b)(i) or (ii)”;(b) after sub-paragraph (4) there is inserted—“(5) The power under sub-paragraph (1) above may not be exercised in a case falling within section 63(3A)(b)(iii) (sample, and any DNA profile, destroyed where investigation interrupted) after the end of the period of six months beginning with the day on which the investigation was resumed.””
98: Schedule 9, page 196, line 21, at end insert—
“Police Reform Act 2002 (c. 30) In Schedule 4, in paragraph 1(2), the word “and” at the end of paragraph (ca).”
“Police Reform Act 2002 (c. 30)
In Schedule 4, in paragraph 1(2), the word “and” at the end of paragraph (ca).”
98A: Schedule 9, page 197, line 2, at end insert—
“Prison Act (Northern Ireland) 1953 (c. 18)In section 38 of the Prison Act (Northern Ireland) 1953 (arrest, etc, of persons unlawfully at large), in subsection (4), for “the last foregoing sub-section” there is substituted “subsection (2)”.”
98B: Schedule 9, page 199, line 11, at end insert—
“(1) Section 204 of that Act (warrant issued by category 1 territory: transmission by electronic means) is amended as follows.
(2) In subsections (1)(c) and (2)(c), for “a qualifying form” there is substituted “a form in which it is intelligible and which is capable of being used for subsequent reference”.
(3) In subsection (6)—
(a) at the end of paragraph (a) there is inserted “and”;(b) paragraph (c) and the word “and” before it are omitted.”
99: Schedule 9, page 199, line 28, at end insert—
Amendments 97 to 99 agreed.
Schedule 9, as amended, agreed.
Clause 157: Orders and regulations
100: Clause 157, page 126, line 5, leave out “containing an” and insert “containing—
( ) an order under section 4(5),( ) an order under section 50(4), or( ) an”
Amendment 100 agreed.
Amendment 100A not moved.
Clause 157, as amended, agreed.
Clause 158 agreed.
Clause 159: Extent
Amendments 101 to 104C
101: Clause 159, page 126, line 40, at end insert—
“( ) sections (Information about guests at hotels believed to be used for child sexual exploitation) to (Offences);”
102: Clause 159, page 126, line 41, leave out “section” and insert “sections (Power to take further fingerprints or non-intimate samples), (Power to retain fingerprints or DNA profile in connection with different offence) and”
103: Clause 159, page 126, line 42, leave out “135” and insert “(Powers of community support officers) and Schedule (Powers of community support officers)”
104: Clause 159, page 127, line 5, leave out “, 101” and insert “to (Possession of firearms by persons previously convicted of crime)”
104A: Clause 159, page 127, line 21, leave out “and” and insert “to”
104B: Clause 159, page 127, line 23, leave out “Section 109 extends” and insert “Sections 109 and (Discount on sentence for time spent in custody awaiting extradition: Scotland) extend”
104C: Clause 159, page 127, line 24, leave out “Section 120 extends” and insert “Sections 120 and (Discount on sentence for time spent in custody awaiting extradition: Northern Ireland) extend”
Amendments 101 to 104C agreed.
Clause 159, as amended, agreed.
Clause 160: Commencement
Amendment 105 not moved.
Clause 160 agreed.
Clause 161 agreed.
Bill reported with amendments.
Criminal Defence Service (Very High Cost Cases) (Funding) Order 2013
Motion to Annul
That a Humble Address be presented to Her Majesty praying that the order, laid before the House on 1 November, be annulled. (SI 2013/2804)
Relevant document: 18th Report from the Secondary Legislation Scrutiny Committee.
My Lords, in speaking to the two Motions standing in my name on the Order Paper, I should start by saying that I do so with sadness and regret. The fact that we are having this debate on annulment Motions at all is a symptom of the breakdown in trust between barristers in criminal practice and the Lord Chancellor’s Department. I have been at the Bar for 43 years now, with 42 years in practice. Over that period there have been pinch points, there have been negotiations about costs, but they have always been resolved by constructive engagement. We are now in a situation in which, for the first time in my time at the Bar, barristers are intent on withdrawing their labour, and they are at loggerheads with a Government who a great many of them have supported over the years. That is a sad state of affairs.
I declare my interest at the outset. I am a barrister who has conducted several very high cost cases, the category on which I will focus. I was but am no longer involved in a still current case which is not affected by the changes. I am very grateful to my noble friend the Minister for meeting me, with two officials present, on 26 November. I thought the meeting was useful and possibly constructive for the future. I hope he shares that view.
What are VHCCs? They are called “very high cost cases” but that is somewhat pejorative. In truth, the letters could also stand for “very high complexity cases”. They are few in number and among the most complex cases that come before any court, criminal or civil, in terms of the law that is involved and the facts that they engage. All, by definition, have to be expected to last more than 60 court days—they are massive cases. Substantial prison sentences may ensue for the people convicted, and usually those convicted in this class of case are not career criminals but people of previous good character.
A current case of which I am aware involves nine parties, including the prosecution; 20 counsel, including nine QCs; and between 5 million and 8 million pages of documents disclosed. One might ask, “What all those lawyers are doing, trying to read between 5 million and 8 million pages for the defence. Are they just making work for themselves?”. No, not at all. “Disclosed” in this context means that the documents have been described by the prosecution as either materially undermining the prosecution case or materially assisting the defence case; there is a clear obligation on the defence to examine those documents as best as it can.
These cases are every bit as complex as some of the legendary civil cases involving Russian oligarchs and the like about which we read, and the huge commercial disputes that some of the distinguished noble and learned Lords now sitting in the Chamber were involved in in practice and as judges. They demand the same legal and analytical skills as the most difficult civil cases. There is an added element. All these cases are heard by juries; so the hugely complex material has to be translated, as it were—transposed—into a situation where it can be understood by a jury.
Some defendants are wealthy and would like to pay for their own defences, but they are not allowed to by the state. For the most part they cannot use their assets to pay for their defences because they have been seized by the state. They are the unwilling people who have been thrown on to legal aid and basically obliged to take it or defend themselves. We have had arguments in this House in the past about whether these assets should be unfrozen under careful scrutiny and management to allow them to be used to pay for their defences, but for a completely strange reason the Government are not prepared to allow this to happen. I suggest to your Lordships that that is a stubborn, unreasonable and unrealistic approach.
As I have said, these defendants are thrown unwillingly on to legal aid representation, like it or not, and the public pay. Theoretically, if they are convicted some of the costs can be recovered, but I would like to hear from my noble friend what proportion of the defence costs have been recovered in these cases. Defence costs are notoriously difficult to recover. There are a legion of anecdotes, mostly true, about how the families of those convicted can sit quietly on the assets that have been frozen and live, for example, in expensive family homes for years. Recovery is very unsuccessful.
There seems to be an implication that the Bar is being greedy, setting fees that are totally unrealistic, but I remind your Lordships and particularly my noble friend that these fees have never been set by the Bar or by any other advocate. They have always been set by the Government of the time, and, until now, after consultation, discussion and negotiation, which is a process founded on reason.
Unfortunately VHCCs have developed a substantial bureaucracy which is extremely frustrating to those of us who have had to conduct them. They involve case managers who are civil servants. I have occasionally suggested to these case managers that they are “valued members of the defence team”, a phrase that I have repeated on a few occasions in messages to them. Even that flattery has failed to secure a single attendance by a case manager at a conference in the case, or a single attendance at court when there was a critical incident occurring in a preparatory hearing or the trial. This is mere bureaucracy, which adds totally unnecessarily to the cost of these cases, the fees for which could be assessed by the very people who are sitting in the court—as used to be the case—the associates or court clerks, who saw what was going on and were able to see how much work each advocate had done in the case. The lazy got less than the assiduous.
These two statutory instruments imposed, without consultation, cuts of at least 30% in the fees for these cases. It is an extraordinarily brutal way of approaching a perceived problem. The system is broke, actually. It is founded on payment per hour for preparation and per minute for documents. This is not by any means a satisfactory basis. Already much of the work on the old fees is unpaid. If we say that 30 seconds per page is allowed for reading what are sometimes extraordinarily difficult financial documents—and that does happen, commonly—much work is unpaid. In some cases, there is a vast proportion of unpaid work because of the massive detail that takes much longer to assimilate than the time that is allowed. In other cases, payment by the hour may create less rather than more efficiency of preparation.
The system is not ideal. It is worthy of root and branch reform. Improvements can be made, but they have to be made by co-operation and negotiation. Cutting fees by 30% at a stroke is a crude way of dealing with these problems. I say to my noble friend that it would be far better to suspend the operation of these instruments and renegotiate with a profession that is willing to help.
Some specific issues have arisen in relation to these instruments. The statutory instrument on VHCCs has been strongly criticised by the House of Lords Secondary Legislation Scrutiny Committee in its 18th report. Among other things, the committee suggested that,
“the House may wish to press the Ministry of Justice to provide a more robust argument to support its assertions that the instruments will not have an impact on the administration of justice”—
by which it means an adverse impact—and the committee therefore drew these instruments,
“to the special attention of the House on the ground that they may imperfectly achieve their policy objectives”.
Then we have the extraordinary point that the Ministry of Justice is committing wholesale state breach of contract, using statute to justify wholesale breach of contract—quite simply reneging on contracts it has entered into. On previous occasions when the Government of the time have cut legal aid fees, they have always reduced the fees paid to all future cases. Here, they have cut the fees in mid-case. People who have been committed to cases have seen a savage reduction in their fees—I repeat, without consultation. They will be paid 30% less. It does not set a good example of how professional organisations should behave and it is a shabby example of government behaviour.
In addition, legal aid advocate fees have been cut disproportionately in comparison with other publicly funded professions. We are used to hearing figures trotted out. Usually Ministers quote VHCC category 1 fees from the most serious cases, which in fact cover only 1% of VHCCs. Last year 59% of VHCC fees were paid at category 3, which pays £91 per hour for a QC and £61 for a led junior. In crude terms, that sounds like quite a reasonable amount of money, but let us not forget that every barrister has a chambers, staff, office costs and VAT; as self-employed individuals, they have no pension provision unless they pay for it, they have no sick pay and they do not get paid when they are on holiday. The reality of those hourly rates is that the barrister is lucky if, in truth, he or she is taking home more than about 30% of the gross fee to pay for family life.
They are not high fees when we remember that these cases are, as I said, the most complex and serious ones, requiring the most skilled and most experienced advocates—people who, if they were doing other work, would be earning several times that amount in the private market, which the Lord Chancellor has quite rightly been saying is one of the jewels in UK plc’s crown. There is sheer hypocrisy, in my view, in saying that we want the jewel in the crown in those civil cases for which foreigners are paying but we do not want to have the same quality of representation in domestic cases, albeit for lower fees, but reasonable ones.
What has happened? The rates in the statutory instrument came into force on 2 December and they have already been proved to be below the market rates at which those with the necessary skills will work. To take a single case as an example, on 6 December at Southwark Crown Court, in a VHCC with five defendants, the advocates of three of them exercised their contractual right to terminate their VHCC contract when the 30% cut came into force. One solicitor contacted 47 sets of barristers’ chambers and 330 barristers with suitable experience. At the new rates, not one was prepared to do the cases. The result is going to be that either these cases are done by people who do not have any relevant experience and do not have the requisite skills, or people simply go without advocates.
What will happen in court? There are people in your Lordships’ House who have immense experience—I hope that we shall hear from them—about what happens in court when a case is not done properly. It takes extra time. It takes more intellectual energy from the judge. It is very tiring. Above all, it raises the danger of serious miscarriages of justice. In complex cases lasting many months, as most of these do, the cost to the country of a failure because of the case not being done properly because of not having appropriately skilled advocates, is immense. The figures that the Government have produced are simply misleading.
I have taken up enough time, and I look forward to hearing from others in this debate. However, I urge my noble friend to accept that he should go back to the drawing board. I urge the House to accept that this is an issue on which—unpopular as barristers sometimes are—they are probably right. At the very least, the introduction without any proper consultation, in breach of contract as I have described, is really not acceptable.
My Lords, I speak in support of the noble Lord, Lord Carlile. The extent of the concern about this is evident in the noble and learned Lords and noble and legally aware Lords who are gathered here tonight. In fact, the cuts to legal aid and the way in which they are being implemented are set to take their place in the great pantheon of government failures, which were foreseen but went ahead anyway. The list includes home improvement packs, ID cards, the Millennium Dome, child support and so on. I predict with confidence that, in a few years’ time, people will look back at the legal aid cuts and add them to that list. They amount to the suffocation of the criminal Bar and the weakening of the quality of the judiciary who would have been expected to emerge from it.
I have an interest to declare as the regulator of the Bar, but not as its representative, so I am reluctant to comment on the level of the cut—30%—to payments to the Bar, but the effects are clear to a regulator. They will damage the administration of justice, the rule of law and equality and diversity at the Bar. There will be too few advocates ready to take cases at those miserly rates, as we have seen. They are dropping them now, mid-case, and will refuse new instructions at those rates. We are talking about contracts entered into before 2 December where the case will be heard after 31 March, so advocates are being forced by the statutory instrument to take a 30% cut in their contracted rates mid-case.
The Ministry of Justice may be relying on the profession’s sense of duty to continue the case at 30% less, but if the case is dropped, it will end up spending more because of the cost of getting another advocate to repeat months of work already undertaken. The Ministry of Justice is breaching contracts retrospectively and placing future VHCC cases in the statutory instrument category, not the former contract mode.
As a regulator, I say right now that the retrospectivity of the statutory instrument is the most offending feature. If the Government simply changed the date of effect, so that only new instructions offered in future were subject to the cuts—objectionable although they are—some of the worst effects on the administration of justice would be mitigated. Will the Minister tell the House why that should not be the case? Retrospectivity is contrary to the law of contract and the rule of law. For example, when income tax rates are cut, the Government do not expect the payer to take advantage of the new rates before the starting date. In fact, such cuts are normally given a starting date well in advance, to allow parties to plan their affairs accordingly.
The Government have tried to make the UK the world’s pre-eminent destination for swiftly resolving international high-value legal disputes. That is increasing revenue. The UK legal sector output was £27 billion in the most recent figures, and is set to grow. It has exported £3.6 billion of services and is the largest, by a long way, in Europe. Some 14% of the world’s largest law firms are headquartered in London. The Government should not trumpet the excellence of the UK—as indeed it is—as a global legal centre whose success and desirability depends on the utter reliability of adherence to the rule of law and the quality of its lawyers, and then cut at the roots of access to justice and the development of lawyers here. I can describe it only as double standards.
There cannot have been a proper impact assessment of the cuts in terms of lost business, delayed trials and the effect on equality and diversity at the Bar. The Bar is proud of its record in enabling the underprivileged and those from non-traditional backgrounds and ethnic minorities to enter the profession. Up to 19% of pupillages in recent years have gone to such young people. That cannot now be maintained. Young people cannot be expected to go into criminal or family law at those rates when they have higher than ever university debts behind them and, of course, the cost of qualifying as a barrister. In the past, they were happy to take that on the chin because they knew that at the outset, they would get some legal aid work—low rates though they were, they were enough to survive on. Now, in all conscience, how can we encourage them to join the Bar?
We are talking about saving £220 million per annum. Submissions to the Ministry of Justice on this topic allege that cuts have already been made and that there are other ways of making economic efficiencies without damaging the product itself. Most government cuts have a policy behind them which is often controversial but comprehensible. For example, cuts have been made in welfare so that it pays to work; unpopular charges for spare bedrooms have been applied to try to rationalise housing allocation. One may not agree with it, but there is a policy. In legal aid, there is no policy in cutting, save a crude cut. It is not alleged that these cuts will make the courts run better, free more funds for them, make professionals more efficient or increase consumer access. There is no rationale at all except a cut.
One must thus consider the relative morality and effectiveness of government expenditure in these times of austerity. Take, for instance, the recently reported loss of some £40 million on failed universal credit technology, or reports that much foreign aid goes into the wrong pockets and does not reach the victims of disaster. The Public Accounts Committee recently pointed out that the national programme for IT in the NHS has spent more than £3 billion with next to nothing to show for it, and that the benefits do not outweigh the costs which will, in the end, be at least £10 billion. The regional fire control project was scrapped after £500 million had been wasted. One could go on and on.
The Government need to consider what is good economy and what is bad. The savings of £220 million a year in legal aid will not materialise if courts and cases are disrupted. To maintain the rates, miserly though they already are, would be a good investment in the administration of justice and the rule of law. I am certain there are ways—noble Lords will, no doubt, think of others—whereby funds can be taken from projects that are not delivering, such as the ones I just mentioned, to keep going the administration of justice and the rule of law for which Britain has been famous for centuries.
Having put on record my concerns and those of others about the effects on our renowned legal system, the regulator’s main difficulty would be eased if the Government made the changes wholly prospective, so that they applied only to instructions newly offered after 2 December. Then, at least, the strictures about breaches of contract and the rule of law will be minimised. I urge the Government to think again about the date of implementation. Will the Minister assure us that he will do so and tell the House how much it would cost to extend the date of activation so that the new fees apply only to instructions first offered after 2 December? I urge the ministry to consider the legal system and its international reputation with due care. Do not kill the goose that lays the golden eggs.
My Lords, I must start by making a disclosure about my judicial career, my career at the Bar and the fact that, since I retired as a judge, I have been a non-resident member of a barristers’ chamber. Of course, in accordance with the rules within this jurisdiction, a retired judge cannot go back to the Bar.
I congratulate the noble Lord, Lord Carlile, on bringing this Motion and on the way he presented it. I draw significance from the fact that the House has heard two speeches from people who, in very different ways, are able to talk about the issues before us, which have been rightly described as highly relevant to the administration of justice and the rule of law.
Having said that, I should make it clear that I also support what the noble Baroness, Lady Deech, has said from a different aspect, except that I would draw a different view from hers as to the benefits of merely postponing the date of implementation. I suggest that that would merely be sticking plaster on a very gangrenous wound. Something much more is required of the Government if they are to recognise the responsibilities that they have to the rule of law, and to which I know that the Minister attaches great importance.
Equally, I understand why the Government felt that there was a need to take action to curb the costs of the cases with which we are concerned. However, in considering whether the action taken is appropriate, I suggest that we have to ask ourselves three questions. First, will the action proposed achieve its purpose—that being to save money? Secondly, is this action disproportionate in the way that it affects a particular section of the legal profession? Thirdly, does it create a serious risk of damaging severely the criminal justice system of this country? I suggest to the House that, judged by those questions, this proposal fails all three of the matters that I have referred to as requirements.
It is the third effect with which I am primarily concerned, although indirectly that involves consideration of the first and second questions that I have identified as well. We are considering here the most eminent practitioners in the field of criminal law in this country. The noble Lord, Lord Carlile, has painted a vivid picture of the sort of cases that we are involved in. It is vital for this country’s justice system that those most difficult and demanding cases are properly tried. If they are not properly tried the whole of our criminal justice system will be under a dark shadow, which this Government will have created without proper consideration of the information available, to the extent to which consultation has taken place. I say that having been in practice at a time when the Bar would, to fulfil what it saw as its obligation to justice, take on cases up and down the country for the princely fee of two pounds four shillings and sixpence, irrespective of your seniority. Eminent counsel took those cases and took their share of responsibility for that. From what I know of the Bar standards today, I have no doubt that they would do it today if they had to.
However, you cannot expect people to go into a profession, rise to its top and be treated to the imposition of an arbitrary cut of the scale proposed here without damaging the reputation of that profession. These people are not only those on whom we rely to conduct the most difficult cases at present; they are also those we rely on to be our great criminal judges of the future. We also rely on them, by the way they conduct their practice, to ensure that the Bar gets in its recruitment programme among the brightest and the most able youngsters going through our universities today. Each of the Inns of Court has programmes whereby the senior members of the Bar—the sort of members of the Bar I am talking about—visit universities and talk to the students who want to know whether they should come to the Bar and, if they do, what sort of work they should do. They want to know whether they should take the risk of coming to the Bar in the present circumstances.
Certainly, when I was doing that, I was always able to say to them, “You will have a profession which demands a tremendous amount from you, but you will have the satisfaction of knowing that you are involved in a profession where the public at large respect what you do and which contributes to producing a quality of criminal justice that is admired around the globe”. In those circumstances, they have continued to come to the Bar. Who, however, will be able to tell people to come to the Bar when they know that they will be dependent on a Government who apparently consider it appropriate to impose a cut retrospectively, as the noble Baroness, Lady Deech, indicated, on the profession? How can you do so, as a person who has the well-being of these youngsters who are thinking of coming to the profession at heart—I speak as the father of three sons who have come into the law—if you know that what we have heard about will be on the cards when it comes to their career?
There is very real reason for the Government to reconsider their approach in this matter. It is very important that they do so. If they do not, they will unintentionally cause serious harm to a profession that it will take years, if not generations, to undo. What is at present a profession that the brightest and most able want to enter, will be one that they will feel they cannot possibly enter because the risks of doing so are so great.
I have read, of course, the report of the statutory instruments committee. I note what it says about the Government thinking it will be possible to get people not out of the top drawer but from a lower drawer to do these cases. The Government may be right in saying that, but what will be the calibre and quality of those persons? I can say, on the basis of my judicial career, that, as the judiciary works in this country, it is dependent on the Bar. It is dependent on the Bar not only for recruits but for the help it gives to the judiciary to do justice. You do not save money just by fiddling with fees. If there is the need to create savings that the Government say there is, they should have taken action before to ensure that judges have the benefit of barristers who are paid not by the hour or by the day, but on a more sensible basis in respect of cases so that they have the same incentive as the justice has that cases should be disposed of expeditiously and not in the way that sometimes happens because of how our fees are structured. Reforms were possible. Cases require management, but it has to be possible for the management to take place economically.
My Lords, I do not think I have any relevant disclosures to make. I have not had a private client for some 34 years since I followed the noble and learned Lord, Lord Woolf, as Treasury Counsel, and I shall never have another.
This very afternoon, in answer to a Question about our trade prospects with China, the Minister, the noble Lord, Lord Livingston, said:
“The UK legal sector is a great strength … the rule of law and support from professional services are very strong. I will certainly seek to champion the legal sector going forward”.
I believe that I quote him accurately. I just wish that he would share his views and commitment with the Lord Chancellor.
For many years the criminal Bar has been the poor relation of the various specialist Bars. Over the past decade it has already suffered a series of cuts in public funding. Of course it does not earn for the Exchequer the riches that, for example, the commercial Bar earns when acting, very often on both sides of the litigation, in commercial disputes. However, I argue that the work undertaken by the criminal Bar is altogether more important than most commercial work. Most commercial cases result ultimately just in the adjustment of companies’ balance sheets and book entries; they rarely affect the quality of people’s lives. The outcome of criminal cases, by contrast, is generally critical to real people; usually their very liberty is at stake. More than this, the strength of the rule of law, and indeed public respect for it, depends above all else on the proper administration of the criminal justice system.
Very high cost cases, the subject of the swingeing further cut in fees under consideration here, are generally the most demanding of all the cases in the criminal calendar, as the noble Lord, Lord Carlile, has explained, and usually, and appropriately, they are undertaken by the elite of the criminal Bar. There already exist few financial attractions for those contemplating practice, or indeed already practising, in crime at the Bar. If you impose these additional cuts, that elite will fall away.
The Attorney-General himself is said to have acknowledged at a recent Bar conference that he no longer expected people of excellence to come to the criminal Bar. Consider, if you will, the effect of that upon the future quality of those who practise at the very heart of the criminal justice system. Consider its impact on recruitment, as the noble and learned Lord, Lord Woolf, has made plain. Consider its impact on the rule of law, and consider its inevitable consequences in terms of the future judiciary. Where shall we find the next generation of criminal judges? What indeed about the present position, as described by the noble Lord, Lord Carlile, with current cases going hopelessly awry because, understandably, Counsel are on occasion declining to continue with cases with their fees savagely and retrospectively cut?
Of course I recognise that the Ministry of Justice has many calls upon its budget and that we live in harsh economic times, but I just cannot accept that these difficulties justify cuts so inevitably and gravely damaging to the criminal Bar, to the administration of justice and to the very rule of law. If drastic economies in the legal aid budget are required, and if they must be found in relation to the kind of cases in question here, better far to my mind that the department revisit a measure long ago suggested but, regrettably, hitherto rejected: the ending of the automatic right to jury trial in complex and protracted fraud cases. Indeed, it is my own clear opinion that not merely would this save countless millions of pounds of legal aid funds, it would also make for better justice.
That, of course, must be for another day. In the mean time, let us surely strive to safeguard rather than destroy the quality of the existing criminal Bar. Let us annul, not merely postpone, this order and these regulations. I, too, support the Motion.
My Lords, along with others, I am extremely grateful to the noble Lord, Lord Carlile, for tabling these Motions so that we can debate these important measures. I should make it clear that I have never practised at the English Bar and never sat in an English court. My experience has been of practice, both civil and criminal, north of the border. However, although I have never sat in an English court, I have sat in a United Kingdom court, have had some experience of dealing with criminal cases and think that I can speak with some authority in support of the points which have been made so effectively by the noble and learned Lords, Lord Woolf and Lord Brown of Eaton-under-Heywood.
A cut of 30% on fees previously set by the Government surely must be regarded in the present financial climate as severe. I appreciate, of course, that the Minister and those for whom he speaks in this House have very little room for manoeuvre, given the cuts that already have to be made across the entire department. However, it would help if the Minister in his reply were able to put these two measures into their overall context. As I understand it, we are dealing here with cases that take a very long time and provide the advocate with the benefit of continuity of employment throughout a long period. As has been pointed out, these are complex cases which require unusual amounts of work outside the court room and are, in comparison with rates elsewhere in the system, better paid. I could therefore perhaps understand it if the strategy behind these measures was to reduce the cost of legal aid at this level, so as to keep any reduction at the lower levels, with which we are not concerned this evening, to an absolute minimum—or even to preserve the existing position at the lower levels. After all, it is at the bottom of the scale that there is real hardship. One hears not infrequently that the costs of travel and other overheads exceed the amounts payable as fees to the advocate. If there is any margin over that, it is often very small. I would be grateful if the Minister would say whether this is what the Government have in mind, and give us an assurance that there is no question of cuts of this dimension being made elsewhere across the system. That would be some reassurance to those who are deeply concerned about what the Government have in mind in the overall planning.
I will direct my remarks to the amendment set out in regulation 3(5) of the Criminal Legal Aid (Remuneration) (Amendment) Regulations 2013, as the provision which it seeks to insert affects the advocate’s freedom of contract. The standard terms already provide for their amendment within the terms of the contract. There is a contractual power to do this, but it is not entirely unqualified; this is not the place to debate how extensive that power is. However, when it comes to altering the terms for payment, I suggest that it is a question of degree. The stage may be reached when the amendment proposed, purportedly within the contract, is so great that it cannot be altered without the advocate’s agreement. In that situation, if agreement is not reached, the advocate would have a right to terminate the contract.
That leads me to consider what the effect would be if the amendment goes through. As I understand it, it would tie the advocate who agrees to this form of contract to the rates set out in Schedule 6. That being so, those rates can then be amended by a further order without the need for the advocate’s agreement. There is no need to alter the contract: what one does is to look at the schedule and alter the schedule by a further order. Once the advocate is tied in to such a contract, he or she has no escape from it, however much the reduction in the rates may be. As there is every prospect, if one is realistic, that the cuts now proposed will not be the last, the stage could be reached when the rates will become wholly uneconomic—indeed, some may say that this stage has already been reached. That amendment is a profoundly unattractive change in the existing arrangement. I do not understand why it is there and I suggest that the Government are taking a great risk by proceeding along these lines.
Members of the Bar, after all, are not civil servants. One of the strengths of the Bar, vital in our modern democratic society, is the independence of each one of its members from each other and from anyone else. That is an essential part of the system, which lies at the centre of maintaining the rule of law, which we all believe in. One of the characteristics of their independence is that advocates cannot be forced to accept terms to which they have not agreed or which they find unattractive. That leads directly to the consequences—to which the noble and learned Lord, Lord Woolf, drew our attention —which could be very far reaching and very damaging. Those already engaged in work of this kind might be well advised to withdraw from their contracts, lest they be sucked into an ever increasing pattern of cuts. There are many who might be attracted to this kind of work in other circumstances who would not wish to subject themselves to the reformed contract where they are subject to change without any further amendment of the contract itself.
I therefore have this further question for the Minister: what assurance can he give to those who may be willing to accept employment on these amended terms as to what the future holds for them? This is very relevant to the issue of recruitment. Schedule 6, as I have suggested, is open to further amendment. Are we to expect further cuts in these rates next year or is it proposed to do so within the life of this Parliament? If so, what further opportunity will there be—indeed what opportunity will there be at all—for consultation before any further amendments are proposed? What opportunity will there be for an advocate to withdraw if he decides that the rates that are then proposed are so completely unattractive that he is not prepared to carry on with that work? These are questions that all those engaged in this kind of work would wish to be answered and I hope very much that the Minister will be able to do so.
Lastly, on the point raised by the noble and learned Lord, Lord Brown, about jury trials, I come from Scotland where, as it happens, there is no right to a jury trial. It is up to the prosecutor to decide whether the offence should be tried by a judge alone in the sheriff court, with a sheriff and a jury, or in the High Court with a jury. The length of sentence is affected by that decision, but there is no reason why a case of very considerable complexity should not be tried before a single sheriff. The accused has no right to object to that. It raises the issue as to whether there is not considerable force in the point of the noble and learned Lord, Lord Brown, that we are reaching the stage where a jury trial in some of these cases may need to be reconsidered.
My Lords, my noble friend Lord Carlile has summarised the arguments against the statutory instruments with his usual clarity and vigour, and I do not wish to weary the House with repetition. I would, however, like to add a few words and in doing so should declare an interest as a practising barrister. I am not a barrister who does criminal cases and I very rarely do cases where legal aid is involved. However, I have sat until recently as a recorder in the Crown Court and am thus familiar with our criminal justice system.
I entirely understand the desire on the part of the Government to reduce spending on legal aid. The LASPO Act was the Government’s first move in reducing costs. There is no reason why lawyers should be in any way immune from austerity, nor should justice be recognised as some sort of special case, up to a point. Nevertheless, what troubled many noble Lords in scrutinising that Bill as it went through the House was the risk of real injustice not to lawyers but to those who encountered the system and would be at risk of being denied access to justice. The Minister reassured those of us who were anxious, particularly in relation to Part 1 of the LASPO Bill, as it then was, and made some important concessions. However, the impact of the Act is going to need careful watching to ensure that real injustices do not result.
The Secretary of State has now proposed further cuts in the legal aid budget, focusing principally, but not exclusively, on criminal legal aid. Perhaps I may say how much I am looking forward to the response of the party opposite to these proposals. During the passage of the LASPO Bill, it was often said by the party opposite that, had it won the last election, it would have made significant cuts in the legal aid budget, but it was not apparent from the stance that it took to the proposals in the Bill where those cuts would in fact have occurred. On a number of occasions, the noble Lord, Lord Bach, whom I see in his place, indicated that the cuts would have come in criminal legal aid. I think that the House would regard it as important for the party opposite to be clear—if not on the detail then certainly in general terms—as to how those cuts, necessary as they were, would have fallen on criminal legal aid.
The previous Government were in the habit of publishing figures for the top earners, in both criminal and civil work, in receipt of funds from legal aid. This was no doubt seen to help in the softening-up process in relation to public opinion before any changes were made to legal aid funding. The figures were usually misleading. Unfortunately, this Government have followed suit in that respect.
In a sense, barristers are an easy target; the average member of the public has better things to do than drill down for the truth about their earnings and is happy, for the most part, to accept some of the stereotypical pictures of an overpaid man or woman in a wig quietly milking the legal aid system. However, I acquit the Secretary of State of describing barristers as “fat cats”. He has been at pains to emphasise that he is not set upon destroying the criminal Bar, and I entirely accept that that is not his intention.
Over the years, successive Governments have attempted to cut the fat off the criminal justice system and, as we have heard this evening, it is beyond argument that criminal barristers are, for the most part, very moderately paid. They are self-employed and have little muscle or obvious appeal in any negotiating process. There is no doubt that the criminal Bar is a profession in crisis. However indifferent the public may be to the individual circumstances of barristers, there will, I apprehend, be far more concern if the system as a whole is degraded.
Very high cost cases are now likely to be ignored by the most competent barristers. There will thus be a position where the most complex cases will be conducted, if the defendants are represented at all, by barristers with considerably less experience and competence than is appropriate. When cases are subject to the control of an experienced judge assisted by experienced barristers, as we have heard from noble and learned Lords, the outcome is very often a significant saving in costs through the sensible use of admissions and a clarifying of issues. This results in a saving on the legal aid bill and, just as important, a streamlined and well conducted trial process. That is unlikely to remain the case.
It is not only barristers who are alarmed at the effect of these changes but, as we have heard, judges, who will have to preside over trials in the future. Our criminal justice system, for all the criticisms that it attracts from time to time, is still held in very high regard not only by the occupants of this country but by those in other countries. Its reputation, hard won as it is, is now at serious risk.
I have referred to the Secretary of State. He of course will also have close regard to his obligations as Lord Chancellor, requiring him to ensure access to justice. I fear that the fat has been so far removed from the carcass of criminal legal aid that these further cuts really threaten our justice system. There are changes and improvements that can no doubt be made in the disposal of very high cost cases, but I venture to doubt that a simple, crude reduction in fees is the way to go about making the necessary changes. Here, I entirely agree with what the noble Baroness, Lady Deech, said. The changes in welfare are based, as she rightly said, on a principle. It is difficult to discern what principle lies behind these changes.
I ask the Minister to consult the Secretary of State for Justice and Lord Chancellor and to think very carefully about whether the effect of these changes—short, medium and long-term—is really worth the apparent saving.
My Lords, I acknowledge that I have something to declare, which is that many years ago I used to conduct criminal cases as a member of the Bar. I recognise very well what the noble and learned Lord, Lord Woolf, was saying about the fee of two pounds four shillings and sixpence. The difference between the scenario that he described and my own was that he described people of the highest eminence accepting two pounds four shillings and sixpence as it was their duty. I was at the bottom of the heap—the opposite—and was very glad indeed to have it.
The debate so far has been of the highest quality and I shall be very brief as I do not wish to diminish the impact that it undoubtedly had on my noble friend who is about to reply. The trick that the Government have to fulfil is that they have to make provision to reduce the deficit, and must do so in a way that avoids unintended consequences. I believe that it is a tragic fact that the reduction of 30% that has been described this evening will have an unintended consequence. Fewer people will take the work and the consequence will play over to the task of reducing the deficit. It will increase the deficit for the reasons that high judicial authority has emphasised again tonight.
I want to add one additional circumstance that I can foresee. If you are doing a very long case which, as my noble friend Lord Carlile described, is one of high complexity, you become associated in the minds of instructing solicitors with that case—“Oh Mr Mayhew will not be available; he is tied up in this case which has gone on for months and with many more to come”. When you finish that case, you will find typically that there is no work left and you will have a long gap in your practice before you are instructed again. That will bear on the decision of the advocate as to whether to accept the fee that is offered. That point has not been made tonight, but it is one that is similar in character and perhaps easily overlooked.
The Secondary Legislation Scrutiny Committee, in its 18th report, has drawn attention to what has been said about these measures by three professional bodies. It has called for a more robust defence, and I look forward very much to hearing from my noble friend that the Government believe they have a more robust defence to the many points of criticism of profound weight that have been put before your Lordships this evening.
My Lords, this has been an extraordinary but sad and rather sobering debate. I am grateful that, from the powerful opening by the noble Lord, Lord Carlile, until the noble and learned Lord, Lord Mayhew, sat down I have found no reason to disagree with one word that has been said, save that I shall make a few comments a little later to help clarify the views of these Benches for those who sit opposite. The reason I say “sad and sobering” is that we should be very clear that this is not a parti pris debate.
So far we have had the benefit of hearing from two former Lords of Appeal in Ordinary, one former Lord Chief Justice, the current regulator and now a very eminent member of the Bar and recorder. I declare my own interest as not only a member of the Bar, a recorder and deputy High Court judge, but someone who is in practice and who, although I have not taken legal aid criminal cases since leaving Government, certainly did in the past. The voices I have just spoken about are joined now by two former Attorneys-General of different complexions politically and, some would say, physically. This is something upon which those who are committed to justice and the rule of law and concerned about the quality of justice in our country have now spoken, and so far we have spoken with one voice.
It is very important to hear the echo of what has been said, because it is an echo of real alarm and concern. I was struck by the comments of the noble Baroness, Lady Deech, about the effect of retrospection, an issue I had intended to alight upon. I was struck by the description of the noble and learned Lord, Lord Woolf, when he talked about these provisions as “a gangrenous wound”. It is a description with which, regrettably, I wholeheartedly agree.
I was also grateful that mention was made of the Lord Chancellor’s responsibility in terms of his oath. Members of this House will be familiar with it, but I shall repeat it so that the House and others may be reminded of what the oath of the Lord High Chancellor of Great Britain is. The oath that the current Lord Chancellor swore was this:
“I … do swear that in the office of Lord High Chancellor of Great Britain I will respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible. So help me God”.
How does the Minister contend, on behalf of the Government, that that oath by the Lord High Chancellor of Great Britain is being discharged?
Let me help the House as to why I am concerned about whether the Lord Chancellor has taken that oath into account in bringing these orders forward. I know that when he gave evidence to the Select Committee he seemed to suggest that it was not possible to grant access to justice to all people at all times. That, if I may respectfully say so, is a fundamental misunderstanding of the Lord Chancellor’s role. It is his duty to ensure that there are sufficient resources so that access to justice for all people at all times can be equally made available. Moreover, the wounds that the changes proposed in these orders will inflict may so damage the availability of good access to justice that the cost will be very difficult to bear. There are those who say that they know the cost of everything and the value of nothing. Let us be clear: the value of our justice system is very high indeed.
We have already had significant cuts in costs. Noble Lords have talked about the 30% cut, but the House will be aware that in more serious cases such as those of murder, rape, historic sexual abuse, non-very high cost cases of fraud and kidnap, fees have been cut three times since October 2010. Some fees in murder cases have been cut by 59%, in rape cases by 70% and in non-VHCC fraud cases by up to 83%, so this 30% cut comes on top of the very significant cuts which have been made since 2010, when our Government were last in place.
Fairness and equality are right. We in this country believe that because of the changes we have made over the past 30 or 40 years, the diversity of the Bar and the diversity of the judiciary, which has started but which perhaps is not yet complete, has been of great benefit to our nation. Increasingly, our profession reflects the people it serves. I am therefore grateful to the noble Baroness, Lady Deech, for raising the issue of diversity. There was a time when in order to be a member of the Bar, you had to be a person of independent means because it was by no means assured that the money you would derive from your profession would be sufficient to keep you in a manner that was reasonable as opposed to even comfortable. That changed to allow a greater number of people to join our profession. I joined the Bar in 1977. I was a person without comfortable means, state educated, non-Oxbridge and with very little opportunity, some might have thought, of succeeding. Looking at the position we are now faced with, I must ask myself what a Patricia Scotland of today would think of her chances of surviving in this new regime. Will we have as diverse a profession in the future or not? I think that there is only one answer to that. If we want fairness and parity of treatment then, to a certain extent, we have to pay for it.
There is a moment when we have to decide what our values are, what justice means to us, and whether justice in our country is or is not for sale. I hope that our view is that justice is not for sale, that we understand its value and not just its cost, and that the Government will think very carefully indeed before they take the matter forward, for all the reasons given by noble Lords who have spoken already. The points have been validly made and I thank those who have spoken because, as I listened to them, I have been able to tick off every single thing that I wanted to say, save and except for those which I know my noble friend Lord Bach intends to cover, and therefore I will not trouble the House. However, I ask the Minister to think very carefully, and I add my voice to each and every question he has been asked without repetition.
My Lords, perhaps a non-lawyer might be permitted to detain your Lordships’ House for just a few moments. Although I am not a lawyer, I have a daughter who has this year qualified as a barrister and should declare that. I was particularly struck by what my noble friend Lady Deech said in her remarks earlier on, when she reminded us of the deleterious effect that the Government’s policies may well have on this rising generation of young lawyers. Taken together with what the noble and learned Lord, Lord Woolf, said in his remarks about the high ideals that so many lawyers have when entering the legal profession, in pursuing this vocation, I think that the Government need to listen extremely carefully to the very distinguished contributions that have been made this evening and with such force.
I support the noble Lord, Lord Carlile, for two principal reasons. The first is that I think that the Government’s policies will significantly impede the possibility of younger people from more disadvantaged backgrounds from entering the law—the point that the noble and learned Baroness, Lady Scotland, has just made. Secondly, having represented and been associated with inner-city areas of Liverpool since I was first elected to the city council there as a student some 40 years ago—at about the time when the noble Lord, Lord Carlile, began to practice at the Bar—I am acutely aware that social justice does not just require access to health, welfare and decent housing: it also requires access to law. That was a point that I made several times during the course of the LASPO legislation and return to again tonight.
Over the past few decades, much has been done to improve the diversity of those working at the criminal Bar. However, the further reduction of barristers’ remuneration proposed by the Government has alarming social mobility implications. Criminal banisters have already sustained a disproportionate reduction in remuneration over the last decade. The noble and leaned Lord, Lord Mayhew, and others have rightly emphasised the dramatic effect that a devastating 30% reduction will have on those who are now working in the profession. In return, they are expected to work long, unsociable hours and tackle difficult and, as we have heard, complicated issues of public importance.
These further swingeing cuts are simply unsustainable and the reality is that they will deter talented individuals from middle and low income backgrounds from entering or staying within the profession. Instead, the criminal Bar will once again become the preserve of the independently wealthy. Those without independent wealth to sustain them will turn to more financially rewarding areas of practice or to another profession altogether; we heard about the alluring effect of commercial law. They will do so not out of greed but simply out of a desire to receive an income comparable to the earnings of other equivalent professionals.
Yet instead of treating criminal barristers like other professionals, the Government have asked them to bear wholly disproportionate cuts to their incomes. As the Criminal Bar Association has pointed out in its correspondence with Members of your Lordships’ House, no other public service professionals have been asked to shoulder cuts on the scale proposed by the Ministry of Justice. I think that the noble Lord, Lord Carlile, was quite right to say to us at the very outset that this is simply crude.
As a consequence of these measures, the criminal Bar will see an exodus of talent. The results will be far reaching and the consequences borne by society as a whole. That is my second point. People accused of serious crimes face the prospect of not having anyone of sufficient quality to represent them; and there will also be a lack of experience to prosecute the more serious cases in due course. As we have heard, it will also influence the make-up of the Bench as well as the years pass.
It is all too easy to forget the important part that criminal legal aid has played in ensuring a fair and just society because the criminal law is not something that impinges on the everyday life of most of us. Yet when liberty and the protection of the public are at stake, it is paramount that both the defendant and the state have quality of representation. If we accept the fundamental principle that all defendants are innocent until proven guilty, and may not have actually done what they are accused of, we should ask ourselves this simple question: “If I found myself in court accused of a serious crime and was trying to defend my innocence, who would I want defending me?”. If the answer is a highly qualified, independent and dedicated advocate, it has to be understood by us all that the price of these measures is that we will forfeit that, and justice will be the loser. It is for those reasons that the arguments of the noble Lord, Lord Carlile, deserve our support tonight.
My Lords, it is a privilege to follow the noble Lord and the comments that were made in particular by the noble and learned Baroness, Lady Scotland. Referring back to my own beginnings, I was one of those who, having left university, was not in a position to go to the Bar as I had wished. I became a solicitor, and as a young articled clerk I instructed Lord Elwyn-Jones, leading Emlyn Hooson, in a number of cases. I was attracted by the lustre that surrounded the Bar at that time. Elwyn-Jones was a Nuremberg prosecutor, as was David Maxwell Fyfe, which my noble friend has recently had brought to his attention. Maxwell Fyfe really wrote the European Convention on Human Rights. It was the attraction of this profession that drew me, after serving as a solicitor for five years, to pay my 100 guineas to my pupil master and to enter on a different track as a barrister.
I played my part thereafter in civil cases, but more often in criminal cases, prosecuting, defending and later sitting on the Bench as a recorder. I was proud of the system in which I played such different roles. I was proud of the way in which justice could be achieved under the system that we had inherited over so many centuries. I am really sad today—a word that has been used by a number of people—that we seem to be coming to the end of that great tradition at the Bar. I know that my noble friend says no, but that is not how I see it. I agree with the noble Baroness, Lady Deech, who talked about the suffocation of the criminal Bar by these proposals. That is what I think it is.
I do not wish to repeat everything that has been said so well and ably, and with his usual eloquence, by my noble friend Lord Carlile. He has been an opponent on many occasions but I have also worked with him on a number of cases. We have worked together on some serious matters. I want to focus on the way in which entry to the Bar will be so curtailed by these provisions. When I go to see young people being called to the Bar at the various Inns of Court, particularly Gray’s Inn, it saddens me to look at them and their parents, who are so proud of them for what they have achieved and how they have worked to get their degrees to become qualified. Finally, there they are in their fresh wigs and gowns, all ready to start on a career which has been so fulfilling in my own life—they are ready for it but there are no openings.
Today, if you wish to get a pupillage, you will struggle. Very properly, you receive a minimum level of payment, £12,000 a year, as a pupil in the common law field and criminal field. Last year, a commercial set advertised that it was prepared to pay £65,000 per year to a pupil. That, I think, illustrates the huge gap between the commercial Bar and the Bar with which I am familiar. I accept so much of what the noble and learned Lord, Lord Brown, said—that we deal with people’s lives, and not just with money and contractual obligations and so on, as the commercial Bar does. We make a difference to people’s lives in the profession that we follow. These young people who have come so far will not get the pupilages—and if they do, will they ever get the tenancies?
I am now leaving the Bar for various reasons. One reason is that I do not want to be around to watch the struggle that will take place at the criminal Bar and family Bar as chambers disintegrate because there is not enough income as a result of the changes that we have seen over these past few years. I just do not want to watch it. I do not want to have to deal with the sort of disintegration that I foresee.
I appeal to my noble friend Lord McNally to think again about these measures that are being brought in today, to consult properly on them and to take the advice of people who know what they are talking about. When I see some statements from the Ministry of Justice it annoys me so much because it is clear that they do not know what happens at the coal face. They do not understand how the legal profession works. I ask him to think again and take back these measures.
My Lords, I declare an interest, rather an old one, in having been a junior member of the Bar doing criminal law, pretty uniquely, for many years. I was calculating a few minutes ago that the last time that I practised was some 14 years ago. I am not a Queen’s Counsel, although once or twice in this House I have been called that inadvertently—and much worse besides—and I have never sat. If anything, I speak as someone who was once a junior criminal barrister.
The House owes a huge debt to the noble Lord, Lord Carlile of Berriew, for tabling these two Motions. His speech and the speeches of noble Lords who have spoken have attacked these proposals with passion and in trenchant terms. I regret only that this important debate is being held effectively at dead of night, when the points made demand a greater audience at a better time of day, because the principles that they concern are of huge importance. All that I can say is thank goodness for Hansard.
My position on these regulations is fairly simple. Some cuts to criminal legal aid are justified; some cuts to VHCC costs are also justified. I had to make such cuts some years ago in criminal legal aid and VHCC rates. I do not resile from having to do that—any Government would have to do that at a time of economic difficulty. But frankly the percentage of cuts that is being proposed—the crude and absurd figure of 30%—seems to be much higher than any figure for which I was responsible and which can possibly be justified. I say “absurd”, because quite a lot of the burden of this will not necessarily fall just on eminent Queen’s Counsel who lead in these cases, but on junior barristers, either those being led or who sometimes in these cases are the sole advocates for a defendant. It will fall too on solicitors, which has not been mentioned: that is, solicitor advocates in court and solicitors who have to do the preparation for these very long cases. The damage that will be done to them has been described extremely eloquently already.
If my speech now becomes slightly less generous to the Ministry than others have been, I hope the House will forgive me, but one is left with a fairly strong impression that the Government really do not care very much any more whether there is a credible, high-quality legal profession practising criminal law, either now or, more importantly perhaps, in the future. We should not be surprised by what I call this recklessness. One must see it in context.
Anyone who has followed the Government’s approach to legal aid from almost the day they came into office—a point made by the noble Lord, Lord Carlile—will know that almost immediately they removed the Legal Services Commission’s grants for young trainee lawyers in social welfare law firms and advice centres. Anyone who has followed this approach will know that the Government do not care very much about the consequences of their actions, culminating in the tragedy—my word—that is Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act, which has already come close to destroying access to justice for hundreds and thousands of our fellow citizens.
To remove legal aid from social welfare law was tantamount to an attempt to kill it off. Was it ideological? It seems that way. Why would any Government have done something so ridiculous in financial terms and so monstrous in social terms, destroying a system of law that gave some access to justice, often in the form of fairly cheap legal advice, to poor people at the point in their lives when they needed it and in order that their lives could be put back on track? In exactly the same way that many noble Lords and noble and learned Lords have spoken tonight about how criminal law affects people’s lives, we must not forget how those acts of legal advice on housing or welfare benefits that have been given to people on legal aid also affected their lives in very important ways, often so that their lives could be put back on track.
It was a policy of supreme ignorance as well as utter recklessness. Now we see that Act in practice, this hard-nosed, ignorant approach to our law continues—all of it forecast in the debates that took many hours in your Lordships’ House some time ago. Law centres have been allowed to close. The exceptional cases provisions of the Act are now so rarely allowed that they might as well not exist. The anecdotes and evidence as far as domestic violence is concerned are something that this House will really have to consider at some stage in the future—all the net results of this Government’s approach to legal aid from the moment they were elected.
Here we are again. Anyone in legal circles, practising lawyers who thought that they could just keep quiet while the first stage of legal aid cuts was taking place, because all that was about was a few solicitors who did this kind of work or advice centres that advised in civil law, and that criminal law legal aid would be seriously touched, could not have been more mistaken. At least the Bar Council and the Law Society were very much part of the fight against the LASPO Bill and they should be commended for that. However, we are in this position now with this only the first of a number of orders that the House is likely to have to consider. The Government are not satisfied with the havoc—again, I chose my word carefully—they have already caused and are causing day by day and have turned their attention in a very real way to criminal legal aid and then potentially to destroying a great deal of the principles behind judicial review. All of which, no doubt, will come before us in due course.
These are all to be put into effect, at best, by statutory instrument. There is no primary legislation involved here, so the Government tell us. We have these big changes taking place with all the restrictions that statutory instrument legislation has for Parliament. All the while, this country’s deserved and historic reputation for having a legal system that protected everyone in its own way and allowed everyone some access to justice is seriously threatened by a Government who—and I do not like having to say this—seem to have so little idea of what is actually important. Instead of treasuring our legal system they are in serious danger of demeaning it.