House of Lords
Wednesday, 22 January 2014.
Prayers—read by the Lord Bishop of Ripon and Leeds.
Broadcasting: Digital Radio
My Lords, the Government support a digital future for radio, but we are clear that listeners’ needs are at the heart of the transitional process. We set three benchmarks: listening via digital should be at 50%; national digital coverage should be comparable with FM; and local digital coverage should reach 90% of the population. Once these criteria have been reached, the Government will be in a position to take decisions on a potential future switchover and its timing.
My Lords, I thank the Minister for his Answer. I declare an interest as a producer working at the BBC.
A few years ago, a clear timetable was set out for the switchover to digital television. It was very successful. Surely the same should be done for radio. It gives consumers certainty that they will need to engage with digital radio when buying new radio sets, and it gives the industry clarity. Does the Minister agree that without a government lead on this matter, a switchover will never take place, denying millions of listeners the opportunity to listen to a huge range of radio stations in much better quality?
My Lords, it is clearly important that a positive momentum is maintained. Indeed, the Digital Radio Action Plan has been working extremely effectively over the past three years. In addition, on 16 December last year, the Government announced a package of measures on coverage, content and cars to support the next phase of the development of digital radio and provide consumers with greater choice.
My Lords, I think that interruption of any service, whether it is analogue or digital, is equally trying. A research survey in Bath suggested that there is a view that digital provides better reception, but we clearly want to ensure that as many of the population as possible benefit from digital.
My Lords, in television it takes only 80 transmitters to reach 90% of the population but it takes more than 1,000 transmitters to reach the remaining 10%. We are now at the point in radio where it is a test of our resolve on public service broadcasting because it is frankly uneconomic. Is the Minister confident that the funding is in place to roll out coverage so that we reach something like 97% or 98% of the population?
My Lords, there is a distinction between what I would call the national network and the local digital network. Just recently the BBC, the Government and commercial radio have agreed to put in £7 million each—£21 million in all—to ensure that the local DAB network is extended so that a further 200 sites will be in place by the time the programme is completed, which I hope will be in 2016. That will enable another 4 million homes to benefit from digital.
Certainly, my Lords, in the consideration about a switchover there will be all sorts of issues involving vulnerable people, to whom the noble Lord has referred, in ensuring that community radio continues in a range of sectors and that those members of the population get a good service.
My Lords, we are wasting time. We have not heard from the Liberal Democrats so we will hear from them, and then I am sure that the House would like to hear from the noble Baroness, Lady Bakewell.
Thank you, my Lords. Businesswise, it would be good to know when local radio coverage on DAB will finally be rolled out across the whole country. In the mean time, as we head into a truly digital era where any radio station in the world can be heard on a mobile phone, surely historic and prescriptive regulations—such as how much music versus speech a radio station should contain—have become outdated. Therefore, as long as local news is protected on local radio and taken into consideration in the huge investment that media companies are putting into DAB, is it not time that these outdated restrictions were reviewed and removed?
My Lords, one of the things we want to do is to ensure, through Ofcom, that any unnecessary restrictions are removed. As I say, there will be all sorts of ways in which we can enjoy radio and I am sure that new technologies will produce even more.
My Lords, first, I apologise for trying to shout down my friend the noble Baroness, Lady Benjamin. In light of the fact that old people depend so much on radio specifically, and on good transmission as they get older and deafer and need local information from local stations, could the agenda of the Government in this regard not also plead the care agenda?
I am sure that what the noble Baroness has said is very much in the Government’s mind. I certainly recognise that many of the more elderly members of the population rely on the radio. There is also a great place for community radio, which is very popular, and if there were any consideration of switchover we would consider reserving part of the FM spectrum so that that local community radio could continue as long as was needed.
My Lords, in the Minister’s first response, he said that there were three targets for achieving this DAB rollout. Is there not a fourth, which is the question of how many new cars have digital radio fitted? According to the latest figures, something like 42% are now fitted with digital radio. Can the Minister tell us what plan there is to increase that number?
My Lords, there is another objective: we need to work on cars. At the moment only one in 10 of our cars has digital, and it costs about £100 to convert them. This is one of the reasons why there has been a reflection that this needs to be consumer-led rather than what I would call Government-imposed. A number of the points that were announced on 16 December are precisely to encourage and help with the conversion. The Digital Radio Action Plan, including working with the motor industry and indeed with the DVLA and the DVSA, is all about helping consumers to understand how they can get the best deal.
My Lords, the Minister mentioned that the national services may target 97% or 98% whereas local targets would reach 90%. Will he confirm that in Wales, Radio Cymru and Radio Wales will be regarded as national services, particularly since north-west Wales was identified in the September 2013 report as one of the areas of lowest reach?
My Lords, the Government are safeguarding the completeness of the register by using data matching to ensure that the vast majority of existing electors are reregistered in the transition to individual electoral registration. We are phasing the transition over two years, with a carry-forward to allow those not individually registered to vote in the 2015 election. We are making registration more accessible by introducing online registration and are providing additional resources at a national and local level to fund activities to boost the completeness and accuracy of the register to the greatest degree possible.
I thank the Minister for that Answer. I welcome all the measures that he has described and all the other measures that the Government have taken to improve the levels of registration. I also recognise his own personal commitment to that goal. However, he must recognise that every independent authority has warned that the approach that the Government are taking to changing the method of registration carries risks to levels of registration among particular groups of people—young people, people with disabilities, ethnic minorities and people living in areas of extreme deprivation. In the light of that, does he recognise that, in what is likely to be a very tightly contested general election next year, levels of registration could significantly skew its outcome? They are likely to benefit one party alone: the Conservative Party. In the light of that, will he give an assurance that he will monitor levels of registration later this year and, if they have declined, will he make more money available to local authorities to increase levels of registration?
My Lords, I think the noble Lord knows that we are working extremely hard across the board on all this. In the confirmation dry run on data matching, the two boroughs that came out with less than 50% successful data matching were Westminster and Kensington and Chelsea—not exactly the areas with the lowest level of income in the country.
My Lords, since the Electoral Commission report in April 2011 indicated that some 17.7% of the eligible electorate were not registered at that time, and my noble friend has indicated that he does not have centrally held information about funding allocated to electoral registration, could he not invite local authorities to indicate to the Government how they are handling this and what money is still required in order to make sure that individual registration is completed by the time of the next general election?
My Lords, my right honourable friend Greg Clark made a speech to the Association of Local Authority Chief Executives only last week in which he spoke about the provision of targeted additional funding to those local authorities that are shown in the confirmation dry run to have the greatest difficulties. There are now a number of local authorities where, on the data matching, we are already above 85% confirmation, and that is much better than we had initially thought.
My Lords, while it is too late for this for the next general election, surely the Government have to wake up to the fact that we need electronic registration, done with ID cards, and that, by 2020, the general election will be held not only with a register based on ID cards but will be electronic itself.
I admire the noble Lord’s commitment to everyone going online; the Government, as noble Lords will know, are encouraging people to go online. As I have said before, a number of social housing authorities are particularly assisting their tenants to use online registration and online communication with the Government. We are working in that direction.
Does my noble friend agree that those political parties that have frustrated the opportunity for the next election to be fought on the basis of fair boundaries, as recommended by the Boundary Commission, are in no position to talk about fairness in elections?
My Lords, estimates suggest that more than 6 million of our fellow citizens are not eligible to vote because they are not on the electoral register. That is a shocking situation. Can the noble Lord tell the House what the Government are doing to get these people registered? Will he also join me in urging local councils across the United Kingdom to do everything in their power to get people who are eligible to vote on to the register?
My Lords, I remind the House that it was the previous Government who started the move to individual electoral registration. I also remind the House that the number of people registered has been going down for the past 10 years or more. Research shows that the largest single reason for declining registration is a decline in interest in politics more generally, followed by a more mobile population and the greater difficulties we now have with canvassing. We all share an interest in raising the level of popular interest in politics and making sure that the turnout in the next election is not low.
My Lords, on the point that my noble friend has just made about creating an interest in and understanding of politics, will he please ensure that citizenship education of young people in schools is increased? At the moment, that is declining rapidly and it seems wholly counterproductive to his last remark that that should be so.
My Lords, I entirely take the noble Lord’s point. Next week my right honourable friend Greg Clark will announce partnership arrangements with a number of voluntary organisations to encourage young people to register and take a greater interest in politics.
My Lords, the Government are taking decisive action to stamp out the appalling crime of modern slavery. We have published a draft Modern Slavery Bill which will consolidate and strengthen existing legislation to ensure that modern slave drivers face the full force of the law. In the spring we will also be publishing a comprehensive action plan setting out further measures to tackle this terrible crime.
I thank the Minister for his encouraging response. The Government’s proposed Bill is so urgently needed given that 27 million people are suffering slavery worldwide, and in the UK last year, more than 1,000 people were referred to authorities as potential victims of trafficking. These are just the tip of an iceberg of hidden suffering. Does the Minister therefore agree that the current 45-day reflection period of support for victims of trafficking is insufficient, leaving vulnerable survivors excluded from support and unable to give testimony that might facilitate prosecutions? Could he therefore indicate the Government’s proposals for improving aftercare for these victims?
My Lords, I should emphasise that potential victims of human trafficking identified through the national referral mechanism are given a minimum of 45 days tailored support, and this can be extended if the individual needs ongoing support due to the level of trauma they have experienced. Specialist support works with victims from day 1 to ensure that an appropriate reintegration strategy is in place post those 45 days. The scope of the national referral mechanism review, which is ongoing, will focus on identification of and support for victims, and is currently being finalised.
My Lords, in the final drafting of the new Bill, will the Government remember the most vulnerable groups, including domestic workers from overseas? Will they reintroduce the overseas domestic worker visa as a protection against trafficking and exploitation? Will they also study the report on trafficking in London by a Conservative Member of the GLA, Mr Andrew Boff?
I know Mr Boff, so I am grateful for that suggestion from the noble Lord. As he will know, because we have discussed this matter on occasions, we changed the rule to return the route to its original purpose: a temporary visa to allow domestic workers to accompany their existing overseas employers on a short-term visit to the UK. The previous approach allowed employers, including UK citizens, to bring domestic workers into the UK for longer periods. This potentially encouraged abuse. I have met the noble Lord, as he will confirm, but I have also met Kalayaan, which advocates change in this area, to discuss this issue, and I will continue to be ready to meet them.
My Lords, about four out of 10 victims of trafficking are children. An operation carried out jointly by the police and the UK Border Force found that about one-third of the unaccompanied children coming into Heathrow were deemed to be at risk. When are the Government going to start collecting data on the number of unaccompanied children who come through our ports each year so that we can tackle this heinous crime?
I know of the noble Baroness’s interest in this matter. We have data on unaccompanied young people seeking asylum. There were 1,125 who came in on that basis. We do not record data on young unaccompanied children who are not seeking asylum. Immigration officials will take action under Section 55 of the Borders, Citizenship and Immigration Act 2009 to identify and protect any unaccompanied child who is at risk. That section requires them to make arrangements to safeguard and promote the welfare of children.
My Lords, there remains a serious issue of slavery in the business supply chain that affects much of what we buy. Will the Minister pursue a business-friendly model to eradicate that slavery, perhaps on the basis of the California Transparency in Supply Chains Act 2010, because a few simple reporting requirements may be more effective than simply extending the powers of the Gangmasters Licensing Authority?
I am very interested in the right reverend Prelate’s suggestion. As my experience before I came here was very much involved in the supply chain, I know how important it can be to have companies interested and integrated in good practice at every level. This is an area where we are looking to work with the supply chain to drive out slavery in supply at cropping and processing levels in food cases, and in the manufacturing industry.
My Lords, in Committee on the Children and Families Bill, the noble Lord, Lord McColl, proposed that a guardian should be appointed for child victims of human trafficking, whether for sex or slavery. The Government rejected that. Will the Minister explain why, and will the Government reflect on their decision and look again at whether there should be guardians for child victims of human trafficking?
Yes, I acknowledge that the noble Baroness is right; the child guardian idea does not form part of the Modern Slavery Bill at present, but we are examining it. The Security Minister, my colleague James Brokenshire, will also meet the Children’s Society and the Refugee Council, which were co-authors of the independent review of practical care arrangements for trafficked children, to discuss their findings. We want to make sure that the arrangements we set in place, both through legislation and the corresponding action plan, really do tackle this problem.
My Lords, ultimately, Parliament is in charge, but, in terms of initiating the programme, the Home Office is introducing the legislation. I hope that, in due course, I will be able to introduce the legislation here. At the moment there is a draft Bill that is being subjected to pre-legislative scrutiny by a parliamentary committee, chaired by Mr Frank Field.
My Lords, the Environment Agency and local authorities are in the recovery phase regarding the recent flooding. This entails restoring flood defences and working hard on preparations for the next flood incident. We are reviewing procedures adopted by them and by government departments to see where our response to flood warnings can be improved. Other government departments, local authorities, electricity distribution network operators and transport authorities are undertaking their own reviews.
My Lords, I am grateful for the information provided by the Minister. Right across the country, families, communities and businesses in our county and coastal towns are suffering from the dire effects of serious flooding. I have recently been given first-hand reports of the damage caused in Somerset, where people on the Levels are still having to use boats. The Conservative MP is blaming the Environment Agency. I suppose that that is better than blaming gay marriage. Can the Minister please reassure the House that the flooding in that county and elsewhere has had nothing to do with the reduction in investment in flood defences by more than £100 million in real terms since 2010?
My Lords, I share the great concern of the noble Baroness for the people of specific villages in Somerset, who have had a really tough time, among many others around our country. We recognise the serious impact that the current flooding is having in Somerset. The Environment Agency is working with local authorities and communities in the county to help to mitigate the situation. We are making it easier for farmers to undertake their own watercourse maintenance activities, including through a pilot scheme on the River Brue in Somerset. However, we realise that the long-term sustainable management of the Somerset Levels and moors needs careful consideration, and we are working on that.
My Lords, one has to be realistic about this. Around 10% of England is in high-flood-risk areas, including large parts of cities such as Hull and Portsmouth and, indeed, central London. Development in areas of flood risk is permitted only exceptionally, where there are wider sustainability considerations and must in all cases be safe, must not increase flood risk elsewhere and, where possible, overall flood risk should be reduced.
My Lords, given that the Thames Barrier was raised only twice in its first four years of existence, but in the latest four years for which figures are available—apparently figures are not publicly available for the past two years—it was raised 24 times, are the Government really satisfied that it is sensible to wait until 2070 before considering its replacement?
My Lords, the noble Lord will be aware that recent incidents, like those over the past several years, indicate that there are flood risks across our country. That is a very important one, and there are many others. We are, as the noble Lord well knows, spending a large sum of money: £2.3 billion over the current spending review period, and going on into the future. All these things are crucial and we must attend to them all according to their priority.
Yes, my Lords. The NPPF contains tough requirements, so we can build in high-risk areas if there is nowhere else at lower risk; the needs and benefits outweigh the assessed flood risk, taking account of mitigation measures; buildings are safe and less susceptible to flood damage; and flood risk is not increased overall and, indeed, where possible, is reduced. So, yes, I am.
Yes, my Lords. Indeed, some examples of how the insurance industry has responded are that it has drafted in extra staff, including cancelling Christmas leave, to ensure that capacity is sufficient to deal with the increased volume of claims; it has deployed emergency response vehicles to flooded areas to give advice to affected communities; it has called customers in flooded areas to offer assistance; it has deployed loss adjusters to visit affected areas as quickly as possible to assess damage, begin the drying out of properties and arrange for repair work to begin; and, importantly, it has prioritised vulnerable and elderly customers.
My Lords, I am sure that the whole House is very pleased indeed with the information given to it about the actions being taken by the Government. However, to take the Minister back to the question asked by my noble friend Lord Harris, to which no basic reply was given, why have the Government decided that the review of improving the Thames Barrier should not take place until 2070? In fact, they have moved it from 2035. Can he explain to the House why they have done that and whether that is a safe act?
As most people are understandably concerned about the impact on human habitation of flooding, what assessment have the Government made of the impact on agricultural land? The anecdotal evidence, as one travels around the country, is that a great deal of farmland is still under water from the rains before Christmas. There must be considerable loss to farmers. Can the noble Lord give the House any information about how that has been assessed?
Consolidation Bills Joint Committee
Anti-social Behaviour, Crime and Policing Bill
Report (4th Day)
Clause 161: Compensation for miscarriages of justice
94E: Clause 161, page 128, line 5, leave out from “shows” to “(and” in line 6 and insert “conclusively that the evidence against the person at trial is so undermined that no conviction could possibly be based on it”
My Lords, Amendment 94E addresses a genuinely difficult problem—that is, the proper test that should be applied to determine whether a person should receive compensation for a miscarriage of justice. Since this is Report, I should report that the debates in Committee demonstrated general agreement, which I share, that the Government are entirely correct to include in this Bill a statutory definition of those cases where compensation should be paid for a miscarriage of justice to secure greater certainty in this area of the law.
I should also report that the Committee stage debates established that there are strengths and weaknesses in each of the two options before the House. The approach adopted in Clause 161 is that compensation should be paid only if a new or newly discovered fact shows beyond reasonable doubt that the defendant was innocent of the offence of which he or she was convicted. The alternative option in my amendment is that compensation should be paid only if the new or newly discovered fact shows conclusively that the evidence against the defendant at trial,
“is so undermined that no conviction could possibly be based on it”.
The amendment has the considerable benefit of using the test which was formulated and applied by the noble and learned Lord, Lord Phillips of Worth Matravers—the then President of the Supreme Court, who I am very pleased to see in his place—at paragraph 55 of his judgment for the majority of the Supreme Court in the Adams case. That paragraph, on page 48 of the Supreme Court document, Decided Cases, states that the test, which is now in the amendment,
“will not guarantee that all those who are entitled to compensation are in fact innocent. It will, however, ensure that when innocent defendants are convicted on evidence which is subsequently discredited, they are not precluded from obtaining compensation because they cannot prove their innocence beyond reasonable doubt”.
I also draw attention to what was said in the same case—the Adams case—by the noble and learned Lord, Lord Hope of Craighead—who I am also very pleased to see in his place—in support of the test of the noble and learned Lord, Lord Phillips. At paragraph 97 of his judgment, the noble and learned Lord, Lord Hope, said that if a new or newly discovered fact shows conclusively that the prosecution evidence was so undermined that no conviction could possibly be based on it, then it is right in principle that compensation should be payable even though it is not possible to say that the defendant was clearly innocent. The noble and learned Lord pointed out that a person against whom there is no sufficient admissible evidence to secure a conviction should not be subject to the criminal process in the first place. Therefore, if a new or newly discovered fact fatally undermines the prosecution evidence, it is right in principle that compensation should be payable. These arguments, and others, persuaded the Joint Committee on Human Rights that Amendment 94E would be an appropriate amendment to the Bill.
A third noble and learned Lord, who I am also happy to see in his place—the noble and learned Lord, Lord Brown of Eaton-under-Heywood—dissented in the case of Adams with three of his colleagues in the Supreme Court. The noble and learned Lord, Lord Brown, was concerned that—I summarise his concern, no doubt wholly inadequately—the test applied by the noble and learned Lords, Lord Phillips and Lord Hope, would result in some defendants who were not in fact innocent receiving compensation. My concern with that approach —which is essentially the approach adopted in Clause 161—is that it has never been the role of Ministers or courts in our system of criminal jurisprudence to pronounce on the innocence of those accused of crime. If the state cannot prove guilt, the defendant is not guilty, irrespective of whether he or she is in fact innocent. Our law—the common law—applies a test memorably stated by the distinguished American advocate, Edward Bennett Williams.
He was asked whether Alger Hiss, who was imprisoned for espionage in a notorious case in 1950, was guilty. Mr Bennett Williams replied:
“He should have gotten off”.
I am very doubtful indeed of the wisdom of Clause 161 in requiring Ministers to pronounce on the innocence of people whose convictions have been overturned, especially when the court of criminal appeal, when quashing a conviction, makes no such statement.
Your Lordships are well aware that these are often highly controversial and sensitive cases. Do we really want to encourage the Secretary of State to address, after a conviction is quashed, whether she thinks that the defendant was, in truth, innocent? Far from achieving clarity in the law, this seems to be a recipe for complex, expensive and highly acrimonious litigation. The problems that an innocence test would cause in cases such as those of the Birmingham Six, the Guildford Four or Sally Clark are very troubling indeed.
I should mention one other point. A difficulty with the Government’s approach is that the European Court of Human Rights has stated in a number of recent cases that applying a test of innocence would breach the European Convention on Human Rights. For those noble Lords who are interested in that, the Joint Committee’s Report, at paragraphs 61 to 64, sets out the relevant passages in the Strasbourg judgments. I appreciate that views differ across the House on the general role of the European Court, and I am not putting this point at the forefront of my arguments in favour of the amendment.
The test proposed in the amendment will not be easy for a claimant to satisfy. Many deserving cases will fail to secure compensation. I have also to accept that some cases will be on the other side of the line, in which compensation will be payable, even though there may remain strong suspicions that the claimant was in fact guilty, even though he has not been convicted. However, we need a clear and workable definition that is consistent with legal principle. I repeat: this is a difficult problem, even though there are only between two and four successful applications for compensation a year. It is therefore not the case that a great deal of public money is at stake. For the reasons that I have sought to explain, the better solution to a difficult problem is as stated in the amendment. I beg to move.
My Lords, I support the amendment and want to emphasise why it is so important. In the ordinary way, people who are acquitted of crime do not receive compensation for being prosecuted. I make that point because of questions asked of me in relation to this issue before the House. People are not compensated. As they leave court, if a judge has dismissed the case or a jury have returned a verdict of not guilty, they are supposed to be relieved that their ordeal is over and take satisfaction in that. It is rare indeed that they are paid compensation.
What we are here dealing with are miscarriages of justice—situations in which people are convicted and, at a later date, sometimes years later, their conviction is quashed. Compensation is paid in some cases, but by no means all. I assure noble Lords that inside our system it is very rare for an appeal to be successful on a technicality. Our judges are no pushover and they do not overturn convictions very readily. I say that from years of experience of appearing before the Court of Appeal.
When is compensation paid? As we heard from the noble Lord, Lord Pannick, the Supreme Court decided this issue comparatively recently and, in my view, it resolved ambiguity by introducing, in the case of Adams, what we now call the Phillips test. Compensation will be paid only if there is new evidence that casts the case in a very different light. The new fact has to be so significant that no conviction could now safely be based on the evidence taken as a whole. The noble Lord, Lord Pannick, described it well. There is now a consensus on it between the Supreme Court here in the United Kingdom and the European Court of Human Rights. Sometimes we seek to clarify issues in this House when there is some sort of disagreement between those courts, but that is not the case here—there is absolute agreement between those senior courts. I emphasise that this is not about people getting off on technicalities; the test usually comes into play when something has gone badly wrong.
To ask people to prove their innocence beyond reasonable doubt is an affront to our system of law—the common-law system, so beloved of this House and indeed beloved of me. It flies in the face of one of our key legal principles, which acknowledges that it is very difficult for people to prove their innocence. It is very difficult for people to prove that they are innocent beyond reasonable doubt: “Prove that you didn’t do it”; “Prove that you didn’t kill your baby”; “Prove that you didn’t leave a bomb in the pub”; “Prove that you didn’t set that fire”. In a few cases, DNA can prove innocence, and in a few an alibi can be bullet-proof, but I assure your Lordships that those cases are rare.
I have acted in a number of serious cases involving miscarriages of justice and I know the toll—the cost to the lives of those involved and their families, and the cost to the integrity of the system. I acted in the Guildford Four appeal, where three men and a woman were wrongly convicted of bombings for which they were not responsible. I know because I acted for the people who were responsible for those bombings in a completely different case. The convictions of the Guildford Four were a travesty, but a statement came to light—17 years too late, I am afraid, but after years of assiduous work by wonderful solicitors—which showed that the case was profoundly flawed. A statement had been deliberately buried and it provided an alibi which, when examined, caused the unravelling of the whole case and threw into a clear light some of the other areas of evidence.
I also acted for a woman called Mary Druhan, who was convicted of arson when she was in her fifties. She came blinking out into the light after 11 years in jail, totally institutionalised, unable to negotiate public transport and incapable of rebuilding her life without considerable help. That is why compensation matters. Her daughter had committed suicide while she was in prison. It was a tragedy. New forensic evidence threw the whole case. In that instance, the wonderful television series that existed then, “Rough Justice”, had done the hard graft of revisiting the case, finding that the fire could not have been started in the way described and that Mary was not in the vicinity at the appropriate time. The series has gone now. It is not the kind of thing that the BBC spends money on any more. It was, it said, “too expensive”, and has been replaced by “Big Brother” and other celebrity-driven programmes of much lesser value.
I chaired the royal colleges’ inquiry into sudden infant death. It involved reviewing the cases of Sally Clark and other women—Angela Cannings and others—convicted of killing their babies. I want your Lordships to try to think of something worse for a mother than her babies dying and her demented state in the face of that loss, and then being wrongly accused of killing her children. I want noble Lords to imagine it happening to their wives or children, for those who cannot imagine it personally.
It is no wonder that Sally Clark, who had been a practising solicitor, did not live long after her convictions were quashed. Again, vital evidence was somehow not disclosed to the defence. People who should have known better jumped to conclusions because of the very hyped-up public feelings about child abuse. On a previous occasion when we discussed these matters the name of Sir Roy Meadow was mentioned, as though the statistical evidence was the thing that caused the overturning of that conviction. It was not. It was about the discovery of a slide showing that there was infection on the lung of one of those babies and it was felt that knowing more about infant lungs meant that that baby may well have died of natural causes. One of the problems we discovered in holding that inquiry was the shortage of child and infant pathologists—pathologists who were used to dealing with babies, as distinct from adults. Usually forensic pathologists had experience in dealing with adults who died rather than infants, so the expertise was not being applied.
Cases go wrong, which is why there is a folly in slashing legal aid which allows really experienced counsel to conduct the hardest cases. When a case has gone wrong and new material comes to light which changes the whole complexion of the case, and it becomes clear that a jury in possession of all the evidence would have reached a different verdict, those who have suffered should have some compensation. To expect them to prove that they were innocent beyond reasonable doubt is to add to the injustice they have already suffered. Miscarriages of justice lead to ruined lives. Families are destroyed. People often end up without partners when they come out of prison. They lose jobs and homes. The mental despair and anguish is never fully resolved. That is why they need to have such real help afterwards. People’s lives never go back to how they were. This is where we find, as a decent society, that we have to make amends.
I recommend to this House a current bestseller by Robert Harris, “An Officer and a Spy”. It is brilliantly evocative of the Dreyfus affair—the disgraceful conviction of a Jewish army officer in France about 100 years ago. These cases almost always happen against a backdrop of hyped-up public fever. That book evoked the horrors of false conviction and the ensuing unwillingness of people in authority who got it wrong to admit that the system had gone wrong. Systems go wrong. It is one measure of a society’s values that it is able to put what has gone wrong right, and it should also seek to repair the horrible consequences of wrongful conviction. That is why this amendment should be supported. I call on this House to do the right thing.
My Lords, the question before your Lordships’ House in this amendment is very simple. Should we—indeed, can we—as a House agree to Clause 161 as it stands? If we do, the result will be that to get compensation for a wrongful conviction—a miscarriage of justice—the person wrongfully convicted will have to be able to prove beyond reasonable doubt that he is innocent of the crime for which he was convicted. Not only must he prove this, he must prove it on the basis only of new or newly discovered facts that led to the miscarriage of justice.
England and Wales, and indeed the whole of the UK, have long accepted that no one has to prove their innocence of a criminal offence; it is sufficient that there is reasonable doubt about whether they committed a crime. If such reasonable doubt is present, they should be acquitted. This principle, which evolved over the centuries in English common law, is one of the bulwarks of our criminal legal system. It has been adopted in many countries across the world and was reflected in Article 11 of the Universal Declaration of Human Rights, drafted, as we all know, largely by British legal experts, and subsequently in Article 6 of the European Convention on Human Rights. The presumption of innocence is an important protection not just here but across the world.
There are cases in which evidence is fabricated or a confession secured in breach of the law, or even where the scientific evidence presented to a court can subsequently be shown to be inaccurate. In such circumstances, a person may have been convicted. Their only route after exhausting the appeals process is to go to the Criminal Cases Review Commission, which has the power to refer such cases to the Court of Appeal for consideration.
Since the Criminal Cases Review Commission was established, it has received more than 15,500 applications. It was established, I think, in 1997, and by September 2013 the commission had made 537 referrals—only 4% of all the applications it received. Of those 537 cases, 509 were heard by the Court of Appeal, and 351 convictions were quashed and 147 were upheld. So some 70% of all cases referred to the Court of Appeal by the Criminal Cases Review Commission have resulted in the quashing of a conviction.
In the Adams case, to which my noble colleagues have referred, Lady Hale said that,
“if it can be conclusively proven that the State was not entitled to punish a person, it seems to me he should be entitled to compensation for having been punished”.
We know that, over the 15 years, compensation has been paid in 300 cases. There are cases in which the Government have exercised their discretion in favour of the applicant. However, a wrongful conviction does not lead automatically to a right to compensation, which is why we have this issue before the House today.
So, in the context of 350 convictions quashed, the Government have paid compensation in 300 cases. I accept that there is not necessarily a direct correlation between the numbers, but it is not a huge incidence of compensation when one considers that the starting point was the number of people who sought to get their convictions quashed—some 15,500.
If there was significant doubt about the application of the test for granting compensation, one would expect to see it reflected in the number of judicial reviews of refusal to compensate. However, over the 15 years there have been only 30 such applications in England and Wales, and the Government have told us that in only one case has there been a favourable judgment—although, 16 remain to be resolved by the courts. In Northern Ireland, unfortunately, there are not satisfactory and complete records. However, we know that, between 2003 and 2009, there were only four judicial reviews, of which two were successful. It was originally suggested that Clause 161 was designed to save the cost of legal challenges, but these figures show quite clearly that this is not an issue.
However, there is a situation that could be clarified, which is what Amendment 94E seeks to do. The more serious the crime for which a person is wrongfully convicted, the longer the sentence that will be imposed, and, particularly where they continue to protest their innocence, the longer they will be imprisoned. Where the conviction is wrongful, the impact on their subsequent life, even if the conviction is subsequently quashed, will be enormous.
We can think of cases such as that of Sally Clark—referred to by the noble Baroness, Lady Kennedy—and other women who were wrongly convicted on expert evidence, and a failure to produce evidence, of murdering their babies. The impact of such a conviction on a woman grieving for the terrible loss of her baby will be massive. She will lose her family life, her place in society, her social life, her education, her employment, and quite possibly her marriage and her future. Moreover, it is no secret that prisoners tend to react with hostility to people convicted of crimes against children.
In other cases, such as those where a conviction is secured by fabricated evidence or evidence secured through threat or intimidation, the impact will be similar. I can think of a young man whose conviction at the age of 17 for a very serious crime was overturned after he had served 10 years. His confession evidence had been secured through serious threats and other misconduct. He had lost his youth and his opportunity to gain an education and build a career, and he was terribly traumatised. When he was finally released, he had to start to build a new life—not easy in such circumstances. He was finally compensated, but money can never compensate fully for such an experience, and the wheels of justice grind exceeding slow in such cases.
The difficulty with the test proposed in Clause 161 is that, as the noble Lord, Lord Pannick, said, it requires the applicant to prove their innocence solely on the basis of the fact that gave rise to the quashing of their conviction. If a person is convicted, for example, on erroneous expert evidence, the fact that that evidence should not have resulted in conviction can be proved; what may not be provable from that fact is that the person was innocent of the crime.
The new subsection proposed in the clause, as drafted by the Government, states that there will have been a miscarriage of justice for the purposes of compensation,
“if and only if the new or newly discovered fact shows beyond reasonable doubt that the person was innocent of the offence”.
Amendment 94E seeks to create a test which reflects the judgments of both our own courts and the European Court of Human Rights. It is clear from case law, as the noble Baroness, Lady Kennedy, said, that there is no difference between the Supreme Court’s decisions and those of the European Court of Human Rights.
A “clear innocence” test was introduced in the Mullen case in 2005, but that was subsequently rejected by the courts here. The Government argue that only a decision by the European Court of Human Rights that the test in Clause 161 is incompatible with our obligations can determine the question. However, we cannot have such a decision before we have passed the Bill and made it an Act, and I submit to your Lordships that it is undesirable that it should be necessary to push the issue right through to the European Court again.
It is clear from the court’s case law that any statutory test using the language of innocence will be incompatible with Article 2. The court’s reasoning in Allen v UK, Adams v UK and ALF v UK is clear, beyond doubt, that any test which requires the claimant for compensation to show that the new or newly discovered fact proves their innocence will be incompatible with the presumption of innocence. That is what the Joint Committee on Human Rights, of which I am a member, said in paragraph 66 of its second report on the Bill. Moreover, as that report states, if we introduce the test in Clause 161, it would remove the basis on which the court found in those cases that Section 133 itself is not incompatible with Article 6(2). The JCHR said:
“It is therefore clear that the new s. 133, as amended by clause 161, would be vulnerable to inevitable and almost certainly successful challenge in the European Court for being incompatible with the presumption of innocence”.
I urge your Lordships to support this amendment. It will clarify the situation while preserving, in its entirety, the common-law principle of innocence. It will enable the Government to continue to operate the compensation system without further expensive legal challenge.
My Lords, I, too, support Amendment 94E, moved by the noble Lord, Lord Pannick, which would correct a provision in the Bill which could make it almost impossible for those who have suffered miscarriages of justice to gain compensation for their time spent in prison.
At present, the test for compensation in cases where a miscarriage of justice has taken place is that a jury could not, beyond reasonable doubt, find them guilty of the crime, perhaps because of new evidence that has come to light or evidence that has been disproven. Looking to the case law which forms the basis of the current test, Lord Bingham argued in the Mullen case that, based on Article 14.6 of the International Covenant on Civil and Political Rights, a miscarriage of justice occurs not only when a person can be proven to be innocent but in cases where it is possible to say that an individual has been wrongly convicted because of,
“failures of the trial process”.
The Supreme Court adopted this view in the Adams case. The Divisional Court stipulated in the Ali case that an individual should be required to prove,
“beyond reasonable doubt, that no reasonable jury (or magistrates) properly directed as to the law, could convict on the evidence now to be considered”.
If Clause 161 of the Bill before us today is passed unamended, it would return the law to a narrower definition of miscarriages of justice, such that the individual has to prove that,
“the new or newly discovered fact shows beyond reasonable doubt that the person was innocent of the offence”.
This places a heavier burden of proof on the individual, as he or she must prove their innocence of a crime years or perhaps even decades after that crime has been committed and when they have already served a portion of their sentence. This would result in individuals who have already suffered wrong at the hands of our justice system being denied access to compensation for that wrong. In practical terms, it would be virtually impossible for these individuals to prove their innocence since they are in effect being asked to prove a negative: that they did not commit acts that would have made them guilty of the offence.
Justice has pointed out that the cases of the Birmingham Six, the Guildford Four, the Maguire Seven, the Cardiff Three and Judith Ward would not have satisfied the innocence test proposed by the Government. It is also worth remembering that the rule of thumb when awarding compensation in these cases is that the individual should expect to receive roughly the same amount as they would have missed out on in lost earnings for the time they spent in prison. The Bill would impoverish these wronged individuals and that, surely, cannot be right. Amendment 94E, which I am glad to support, would instead reinsert the test currently used by courts in determining whether a miscarriage of justice has occurred; that is, that the evidence against the person at trial is so undermined that no conviction could possibly be based on it.
I remind noble Lords that the presumption of innocence is a long-standing principle of our criminal justice system. As Liberty has said, it is a key safeguard. For in cases where the state prosecution cannot provide evidence that proves beyond reasonable doubt that a defendant is guilty, a court cannot convict that individual of an offence. Liberty says:
“The criminal law, through the presumption of innocence, accepts that sometimes individuals will not be convicted even though it is not 100% certain that they were innocent: it is guilt that must be proven”.
If the Government introduce this highly significant change to our criminal justice system, it will undermine this fundamental principle, since individuals would never have had to prove their innocence in the original criminal trial. I urge noble Lords on all sides of the House to support Amendment 94E and to signal to the Government that they cannot introduce such a reckless change.
My Lords, it will occasion no surprise that I support this amendment, nor perhaps need I declare my obvious interest as the author, in my judicial capacity, of the definition of miscarriage of justice that it supports.
The amendment has been recommended by the Joint Committee on Human Rights, which has advanced two reasons for supporting it. The first and lesser reason is that, in determining whether there has been a miscarriage of justice as defined in the amendment, the Secretary of State, or the courts in reviewing her decision, will not have to infringe the presumption of innocence that is required by Article 6.2 of the European Convention on Human Rights. This is not true of the definition proposed in the Bill. The second and more compelling reason is that the definition in this amendment better meets the requirements of justice than the definition proposed in the Bill.
I will deal first with the effect of Article 6.2 of the human rights convention. Article 6 provides for the right to a fair trial. Article 6.2 provides:
“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law”.
On the face of it, this is no more than a rule of criminal procedure that has long been part of our law: the burden of proving guilt is on the prosecution. Indeed, the Strasbourg jurisprudence recognises that the primary effect of Article 6.2 is to impose this procedural rule. But the Strasbourg court has identified what it has described as “a second aspect” of Article 6.2, which applies to protect individuals after they have been acquitted in a criminal trial. Shortly summarised, the second aspect prohibits public officials and authorities, including courts, from suggesting that a person who has been acquitted of a criminal charge is, or may be, guilty none the less.
This second aspect of the presumption of innocence is not one whose principles I have found easy to analyse when looking at the quite voluminous Strasbourg jurisprudence on the topic. This was the task undertaken at length by the Grand Chamber in the case of Allen, and it did not find it very easy either.
I hope that I may be forgiven if I attempt to summarise the relevant conclusions of the Grand Chamber very shortly and with a degree of simplification. When considering a claim for compensation under Section 133 of the Criminal Justice Act 1988 by an applicant whose conviction has been quashed on the ground of fresh evidence, the Secretary of State or a court reviewing her decision must not use language that suggests that the applicant was, or may have been, guilty of the offence charged. So to suggest will infringe the second aspect of the presumption of innocence in Article 6.2. If, however, the Secretary of State or the court reaches a decision in language that does not suggest that the applicant was, or may have been, guilty of the offence in question, there will be no violation of the presumption of innocence.
In the subsequent case of Adams, the fourth section of the Strasbourg court held that the application of the test of presumption of innocence approved by the majority of the Supreme Court, which is that for which this amendment provides, had not involved a violation of the presumption of innocence. This was because the Secretary of State and the Supreme Court had been able in Adams to apply that test without giving any consideration to the question of whether the applicant was guilty or innocent.
Will the same be true if the applicant for compensation has to prove that the fresh evidence demonstrates beyond reasonable doubt that he or she was innocent of the offence charged? I doubt it very much. It is true that the test focuses on the cogency of the fresh evidence. Strictly, the Secretary of State could consider whether the fresh evidence was so cogent as to demonstrate innocence beyond reasonable doubt without casting aspersions on the innocence of the applicant, but this will not be easy in practice and I doubt whether the Strasbourg court will accept the sophistry that such a distinction involves. For these reasons, I suggest that the first ground for preferring the amendment is made out: it is Strasbourg approved.
However, I would find it regrettable if this were the only reason for preferring this amendment, for I confess to finding this area of Strasbourg jurisprudence not wholly satisfactory. It focuses on form and not on substance. In substance, whatever interpretation is given to miscarriage of justice, something more than quashing a conviction is properly required, as the Strasbourg court has accepted, before a miscarriage of justice can be demonstrated to have occurred. This is because the quashing of a conviction does not necessarily establish innocence. That is what has given rise to the present problem.
So I come to the second reason for preferring this amendment. I suggest, as I did in Adams, that Section 133, and Article 14.6 of the international covenant to which it gives effect, has two implicit objectives. The primary objective is that an applicant who has been convicted when he was in fact innocent should be compensated for the consequences of the wrongful conviction. The second, and subsidiary, objective is that an applicant whose conviction has been quashed but who in fact committed the offence charged should not be compensated. No test will achieve both these objects in every case, but to require an applicant who has succeeded by fresh evidence in demolishing the case upon which he was convicted to go further and prove his innocence beyond reasonable doubt is surely to stack the cards too heavily against him. This amendment strikes the right balance and it is for that reason that I support it.
I want to add just a very few words to what the noble and learned Lord, Lord Phillips, has just said. If one stands back from this debate, everybody in this Chamber will recognise that there will be some cases, although no doubt very rare, where the state should compensate an acquitted person for the trauma, to which the noble Baroness, Lady Kennedy, referred, of being put into prison and detained there for perhaps a very long time on a completely false basis.
There are two ways of going about this. One is, as it used to be in this jurisdiction and still is in Scotland, to have an ex gratia scheme. That is, it is left to the Minister to form his or her own view in light of all the facts, without being constrained by any kind of statutory definition. In this jurisdiction—I mean England and Wales—we have departed from that and therefore we are up against the requirement of having to define in statute the nature of the exercise that the Minister performs.
The noble Lord, Lord Wigley, put his finger on the origin of what we are trying to do, which is to be found in Article 14.6 of the International Covenant on Civil and Political Rights. That states that when a final decision,
“shows conclusively that there has been a miscarriage of justice”,
the person should,
“be compensated according to law”.
There are three requirements for that: you should find that in the decision; it should show it conclusively; and it should show that there has been a miscarriage of justice. Our question is therefore what we mean by a miscarriage of justice.
I do not want to elaborate on what my noble and learned friend Lord Phillips said, but of course one bears in mind the presumption of innocence. That point emerges not just from the Strasbourg jurisdiction. As the noble and learned Lord, Lord Kerr of Tonaghmore, said in the Supreme Court in the case of Adams, on which many of us sat, the way in which the courts operate in this country does not require innocence to be demonstrated to the satisfaction of the court before a conviction is set aside. As he said,
“to prove innocence … is alien to our system of justice”.
Our methods do,
“not provide a forum in which”
that question can be examined. The question for the Appeal Court is whether the conviction was safe or unsafe.
There are some jurisdictions—the noble and learned Lord, Lord Kerr, referred to New Zealand—where a tribunal could address that issue. Of course, then it would be properly examined but we do not go that far; we do not need to because we have always believed that there was a presumption of innocence. That drives us back to the question of whether it makes sense for us to use the very words of the presumption to set out the test that is to be applied. Of course, one bears in mind the point that emerges from the European Court decisions that one should respect the presumption of innocence in the language that is used when dealing with the rights of an acquitted person.
Without elaborating, the better choice—to put it that way—is to follow the wording of the amendment that my noble friend Lord Pannick proposed, rather than the wording of the Bill proposed by the Government which has these various flaws in it that I suspect would lead to challenges one would wish to avoid.
My Lords, at the previous stage of the Bill, I said, not quite in these words, that I was glad to be able to follow those far more expert than I, as they did the heavy lifting on the amendment. I feel much the same today. Colleagues have said that they feel somewhat out of their depth on this subject. To that I say, “Yes, but you understand the concepts of proof of guilt and proof of innocence”. I congratulate the authors of the amendment, if that is not too presumptuous, and its mover, who seem to have found a way to achieve the Government’s aims, which as I understand them are greater certainty and to reduce costs—that is, not the costs of compensation but of proceedings.
As we have heard, there have been very few claims and fewer have been successful. It is not a matter of compensation for every failed prosecution, more for every quashed conviction—and there are very few of those. On those occasions, the sky has not fallen for the Government but it has for the individuals concerned. That is why compensation seems inadequate—I agree with the noble Baroness, Lady O’Loan, on that—but money is how we deal with it, so compensation is appropriate and important. For the integrity of the system, to which the noble Baroness, Lady Kennedy, referred, we must not let the sky fall because of the application of the test in this clause in the Bill.
My Lords, the last three-quarters of an hour has proved two things to me. One is what an immense privilege it is to be a Member of your Lordships’ House and to listen to those who have true and deep knowledge of the subject; the other is how dangerous it is sometimes to listen to the debate when one has come in with a completely open mind. What I have heard this afternoon has demonstrated to me that it will have to be a very powerful and convincing answer from my noble friend, whom I welcome to the Front Bench, if I am to be persuaded to support the Government on this.
I can claim no legal knowledge. I can, however, draw on 40 years in the House of Commons, when, during most of that time, I had two prisons in my constituency. I used to hold surgeries in one of those prisons and met many of those who had been convicted. In almost every case, it seemed to me, whether the punishment was exactly accurate or not, they were deservedly punished. However, that was not always the case. I came across one or two cases, one of which I took to the Criminal Cases Review Commission under the great Professor Zellick—this country owes him a great deal for what he did. There were cases where I knew in my bones, as they say, that the people concerned were not guilty of the offence for which they had been imprisoned.
There is nothing worse that a society which bases itself on the rule of law can do than to send someone to jail, to incarcerate someone, for a crime of which he is not guilty. I often quote the old adage which will be familiar to every one of your Lordships: it is far better that a guilty person goes free than that an innocent one is imprisoned.
As I understand it from the erudite and persuasive speeches to which we have listened, we are talking about how we treat individual human beings and how we, as a society based on the rule of law, deal with those who successfully appeal against their convictions. No one can measure in financial terms the anguish, the destruction of life, that incarceration for a crime one has not committed inflicts not just on the individual concerned but, in the case of one prisoner I have in mind, his family—his children and wife. His marriage was ruined, his career was destroyed, his business was destroyed. You cannot adequately compensate for that. You can have laws which make it possible in some tiny measure to recompense for the anguish that society has inflicted on the unjustly imprisoned person.
What I have heard this afternoon makes me utterly convinced that it should not be up to that individual to be able to demonstrate beyond any doubt that he or she is innocent. After all, in some cases—one or two have been cited this afternoon—that person will have been in prison for a decade or more. Most of the material witnesses to the event may be dead or have dementia, or something. How can you prove innocence? If the conviction is so unsafe as to restore to life—one thinks of The Tale of Two Cities—someone who has been imprisoned for a very long time, we should err on the side of generosity and not place further tests on them.
We have heard from some of the most eminent lawyers in our land this afternoon. They have spoken with quiet passion but total conviction and I believe that we should heed what they have said. I hope that my noble friend, who is newly on the Front Bench, but very deservedly so, will be able to show that he has reflected and that we will be able to make some real progress by not altering the law in the way currently proposed but heeding the wise words of the amendment moved so eloquently by the noble Lord, Lord Pannick.
My Lords, as your Lordships already know, I was one of the minority of four to five in the Supreme Court in Adams in 2011, and I support the Government in their efforts here to give effect to our minority judgment. I recognise that in the light of the speeches in the House this afternoon I am now one of an endangered species. However, the truth is that four of us reached a clear view on this, including the then Lord Chief Justice, the noble and learned Lord, Lord Judge, who unhappily cannot be in this place today. As the noble Lord, Lord Pannick, said, this is a difficult issue and I do not suggest that the majority reached an absurd or impossible view. I suggest that it was wrong but, right or wrong, that is not now the question. The question is: what does the House think is the appropriate approach to the question of compensation for miscarriage of justice?
It is critical to bear in mind that in the course of this debate we are talking not about criminal justice or the presumption of innocence, or about whether people who cannot at the end of the day be shown beyond all reasonable doubt to be guilty should go free. Of course they should and the noble Lord, Lord Cormack, is right to say that it is better that 10 guilty men go free than that one innocent man be imprisoned. All that goes without saying but we are concerned here with monetary compensation. The obligation under Section 133 of the Criminal Justice Act, and under the international convention to which that gives effect, is to compensate only in a very limited and narrowly circumscribed group of cases. It is not all those who, having been imprisoned, are ultimately set free and presumed innocent; far from it.
Compensation is not paid and even under the amendment proposed by the noble Lord, Lord Pannick, would still not be paid, for example, to those who have been in custody, perhaps for a very long time while awaiting trial or during a trial, and are then acquitted. Nor is it paid to those who are freed only when an appeal, perhaps many months later even though it was brought in time, comes to be allowed. Nor is it paid to those whose appeal comes to be allowed not because of newly discovered facts but rather, for example, because of some serious misdirection by the judge at trial or because the judge wrongly admitted evidence, even if they have been incarcerated for many years. Very importantly, nor is it paid—and it is apparent to me that not all your Lordships fully understand this—in cases where an appeal, possibly after many years, comes to be allowed because the newly discovered facts have created a doubt as to whether the original jury, with these fresh facts in mind, would still have convicted the accused. I know that the noble Lord, Lord Pannick, clearly recognises that but certain things said suggest that others do not.
The Joint Committee on Human Rights, in its recent second report, published just a fortnight back, suggests in paragraph 73 that under the test of the noble Lord, Lord Pannick, compensation would have been granted in Sally Clark’s case. That is the tragic case, as I wholly accept, about which the noble Baroness, Lady Kennedy of The Shaws, spoke so passionately both today and at Second Reading. Having now read the detailed judgment in that case, and indeed the commentary on it in the other case of Meadow, it seems to be entirely plain that compensation would not—I repeat, not—have been paid to Sally Clark under the test of the noble Lord, Lord Pannick. Notwithstanding the doubts about the value of Professor Meadow’s evidence that emerged quite early in that case, Sally Clark’s first appeal was rejected by the Court of Appeal on the basis that the evidence against her remained overwhelming. There then came to light further fresh evidence—again, as referred to today by the noble Baroness, Lady Kennedy—regarding certain biological tests on one of the two children. That, said the second Court of Appeal, could—I repeat, could—have affected the jury’s verdict. It did not say that no jury could possibly have convicted in the light of it. With the best will in the world, I suggest that that would not have led to compensation in her case.
Compensation is designed only to compensate those most obviously and conspicuously wronged, apparent to all. They will have been incarcerated the longest, which is why it applies only in respect of an appeal out of time, and, if the Government’s approach is accepted, they will have been shown to be truly innocent and indeed that would have been recognised to have been so if only the fresh facts such as DNA evidence had come to light sooner rather than later.
My Lords, I really must correct the noble and learned Lord. Perhaps reading a commentary or returning to published facts about the case and reading a shorthand account of it will not give one the proper understanding of what the evidence was that allowed Sally Clark’s appeal. I chaired an inquiry in which that evidence was placed before us. Medical evidence—slides showing the state of an infant’s lung condition—was never disclosed, and it was never explained why that was never disclosed at the time of trial. There was no doubt that it put a completely different complexion on the views taken by all those dealing with this case medically, and the case turned on medicine. I am afraid that the noble and learned Lord is not right in the description that he gives of why this case was overturned.
I am of course enormously reluctant to take issue with the noble Baroness because she was in the case. I have here the transcript of the Court of Appeal judgment in April 2003, extending to 182 pages, by which on the second appeal it finally acquitted Sally Clark, but there it is; I pass to my second point. I hasten to say that these further points will not take quite so long.
Again with regard to the recent second report of the Joint Committee on Human Rights, relating to Article 6.2 of the European Convention on Human Rights, which has already been touched on, I just cannot accept the suggestion that the test proposed here by the Government is incompatible with the presumption of innocence. Not one of the nine of us in Adams in the Supreme Court thought that Article 6.2 had anything of value to say to the case. Today, very fairly, the noble Lord, Lord Pannick, and I think the noble Lord, Lord Phillips, were not putting any particular emphasis on it either.
When refusing a compensation claim, the Secretary of State cannot say, “I think you are guilty after all”, but he can say, “You haven’t suffered a miscarriage of justice such as qualifies you for compensation. Of course your conviction was rightly quashed, you were set free and you are to be presumed innocent, but to qualify for compensation you have to establish more”. That indeed is also the position under the test of the noble Lord, Lord Pannick. The underlying test of a refusal of compensation, even under his formulation, is that you cannot show that the jury would have acquitted you, they might still have found you guilty and indeed the evidence would have justified a conviction. That is the underlying rationale on which you still refuse those eventually acquitted under the test of the noble Lord, Lord Pannick. It is not logical—I am afraid that the European Court of Human Rights is not always infallible —that the one satisfies Article 6.2 but the other does not.
Thirdly, in reality the test that is now proposed by the amendment is, frankly, a fudge, and it has all the uncertainties and disadvantages of a fudge. None of the many counsel who appeared before the Supreme Court in Adams—and they included leading counsel specifically instructed on behalf of that admirable institution Justice, which appeared as interveners in the case—argued for the approach now suggested and, indeed, that the majority of five reached as a sort of halfway house, as they felt, in Adams. It was indeed recognised by the Bar that there was no principled difference between this approach and the approach of compensating all who eventually succeed on their late appeals. As the Joint Committee points out in the same paragraph, paragraph 73, as that in which it refers to Sally Clark, the formulation of the noble Lord, Lord Pannick,
“is narrower than the amendment proposed by Lord Beecham at the Bill’s Committee stage, which was based on the Divisional Court’s modification of Lord Phillips’s test”.
That modification came in a later case, in Ali, and the fact is that there were such problems with the majority’s approach in Adams that it was chosen to modify it. But now it is proposed to restore the majority in Adams. For my part, I respectfully question whether that produces certainty and is more workable than the Government’s test.
I have always made it perfectly plain that I am entirely relaxed about whether under the Government’s approach the claimant has to prove innocence beyond reasonable doubt or on a balance of probabilities, or merely that the Secretary of State now looking at the whole case in the round is properly satisfied that he is being asked to compensate someone who is truly innocent. One of the plain troubles with the proposed amendment is that some—not many, I accept, but some—of those who are indeed undeserving will be compensated often to the tune of very substantial sums, hundreds of thousands of pounds it can be. I gave instances of this at earlier stages of the Bill and I do not propose to repeat them now. The fact is that there are cases which eventually succeed on appeal but there is other evidence or circumstances where, although this test would be satisfied, nobody really would regard the person as truly innocent.
My fourth and final point is just this. Before we came to decide the case of Adams there had been in this House, while we still heard final appeals here, the case of Mullen. The noble and learned Lord, Lord Steyn—who, alas, is no longer in his place—held in that case that compensation was payable only when the person concerned was clearly innocent. That was entirely consistent with the explanatory report of an exactly equivalent provision in one of the protocols to the European Convention on Human Rights. The explanatory document report said:
“The intention is that states would be obliged to compensate persons only in clear cases of miscarriage of justice, in the sense that there would be acknowledgement that the person concerned was clearly innocent”.
It is that intention which Clause 161 is designed to give effect to and, for my part, I propose to support it.
My Lords, I shall begin with an explanation. I served for three years in the Home Office at the time when Lord Denning and others were at the height of their powers, and I have had a very happy hour listening to what is going on. It was very reminiscent of the past. My sympathy with my noble friend on the Front Bench deepened steadily throughout, but was slightly reduced during the intervention of the noble and learned Lord, Lord Brown.
I ask my noble friend simply this. First, when he comes to reply, will he confirm what has been asserted, that if the information described in the amendment had been available before the case was brought, the case would not have come to court? Secondly, is there any other circumstance, except that which has just been discussed, in which a British citizen is required to prove their innocence in the criminal law? Finally, am I not right in thinking that if my first question is answered with a yes—in other words, the case would not have been brought—surely at least the second leg of the intervention by the noble and learned Lord, Lord Brown, would fall because no jury would have had to give an opinion?
My Lords, from 2001, I served for 10 years as the assessor for miscarriages of justice—that is, as the assessor of compensation. I agree with the amendment proposed for all the intellectual and legal reasons advanced, but also for a series of practical reasons. Having given awards in various cases, such as that of Sally Clark and so on, I was required to read all the materials which founded the application. So although I awarded compensation by way of decision, by way of analysis I covered eligibility. This part of the Bill is directed at the test for eligibility, not for compensation, so it is a test that the Minister has to determine, not the legal assessor.
My concerns, for practical reasons, about the text of Clause 161 are as follows. First, as the noble and learned Lord, Lord Hope of Craighead, has pointed out, our criminal system is not in any way directed at establishing innocence; it is directed at proving a prosecution case or, for the defence, at seeking to undermine it. Therefore, it is unlikely that during a criminal trial the investigation will reveal a clear case of innocence for the defendant. It could happen, but it is unlikely. The appeal process thereafter in the Court of Appeal Criminal Division is directed at whether the verdict could be sustained: was it reasonable, safe and so on. That again is directed at the strength of the prosecution case, not at any question of proof of innocence. At the end of the criminal appeal, the process is over. It is only if a campaigning lawyer, NGO or the Criminal Cases Review Commission digs up new evidence that this phrase, “a new fact or a newly discovered fact”, is likely to come into play, which could be years after the original event and may not always be a matter of science. DNA may conclusively change things or a group of 10 or 12 citizens may prove an alibi where the defendant did not know that they could prove it for him or something like that, but that is very rare. Most cases are decided on what the jury think of witnesses’ behaviour and credibility, not science. So I ask the question: in relation to a new fact or a newly discovered fact that is not a matter of science or a compelling factual exposition of what did or did not happen, how will the Secretary of State or the junior Minister have any material on which to determine that there is no reasonable doubt whether there was an innocent man or woman? It is simply impractical. Not only is it impractical, it is unjust, because the person who has been in jail for years will have no means of seeking to advance a case absent the help of third parties. It is therefore impractical to put this clause into a system of justice for victims of miscarriages of justice.
Secondly, I am concerned about the variety of cases that come up. Even though the proceedings are private, it is public that I have the task of deciding the compensation—symbolic—to be given to the relatives of Derek Bentley. “Let him have it” was the key phrase on which the case was determined. That case came back to the Court of Appeal 50 years later, which overturned the conviction because of the conduct of the trial judge, particularly in the summing up.
Let us suppose that Derek Bentley’s case, or that sort of case, had happened in recent times and, instead of being executed, he had spent years in jail. The judge dies, the campaigning group get together and challenge the conviction on the basis of the summing up and the conduct of the trial, and it succeeds. The evidence is “Let him have it, Chris”. How on earth could any Secretary of State come to any conclusions about innocence under this test? You simply could not.
In relation to acquittals, the arms to Iraq affair was uncovered by the revelation of misconduct by government officials. How could a Secretary of State determine innocence in relation to the misconduct that had taken place, perhaps in another department? It does not sound at all right. Failure to disclose by the police or relevant state authorities, a major reason for miscarriages of justice, could not possibly usually involve this point about proving innocence, yet it provides the basis for a genuine miscarriage of justice.
Finally, this example is given with anonymity to test the propositions of each side. A complainant says that she was violently assaulted and raped. The defendant, a man of good character, goes before the jury and says that she consented: “I never use violence”. He is convicted and receives a number of years’ imprisonment. It is then discovered that the victim had made similar allegations on several previous occasions in different parts of the country against different young men, about which his defence team did not know and which would clearly have been relevant to his defence. It might even have resulted in there being no prosecution. Yes, this is not a safe case to convict, but I ask: how could any one of us say, beyond reasonable doubt, that he must be innocent? You simply could not do that. Yet not to compensate him after years in prison would be an outrage with a history like that.
That is a practical example which shows the amendment test to be reasonable and the Government’s proposed test to be impractical. As the noble and learned Lord, Lord Phillips, has pointed out, it does not best serve the interests of justice.
My Lords, I shall say something briefly about the reasons put forward by the Government in the past for the amendment to the law which is sought to be effected by Clause 161. In fact, as far as I can see, they have put forward two different explanations for this change in the law. The first is that there is said to be a doubt as to how the category of cases recognised in Adams should be formulated. I mention that in case the point is renewed again today. In his letter to the chairman of the Constitution Committee of this House, dated 11 November 2013, the noble Lord, Lord Taylor of Holbeach, said that there was a doubt created by the later decision of the Divisional Court in the case of Ali in explaining the effect of Adams. However, the formulation adopted by the court in Ali was rightly criticised at the Committee stage of this Bill. In any event, if there were a doubt as to how the category should be formulated, it is odd, if not extravagant, to deal with that doubt by getting rid of the category altogether, which is the effect of this proposed amendment to the law.
The second explanation, to which all the speeches today have been directed, is to do with whether one course or the other should be taken, with the Government preferring the narrow approach. As the noble Lord, Lord McNally, said in Committee:
“We do not believe that it is necessary to pay compensation more broadly than this”.—[Official Report, 12/11/13; col. 704.]
No doubt, Parliament can overrule a decision of the Supreme Court, but the question is whether it is appropriate that it should do so. I entirely agree with the eloquent speeches made today in support of the amendment.
My Lords, the whole House, and perhaps more importantly, our whole system of justice, is deeply indebted to the leading lawyers who have addressed us today, noble and learned Lords who have served in the highest judicial offices and others who have practised the law in the areas that we are concerned about. We are equally indebted to the one non-lawyer who has spoken in this debate, the noble Lord, Lord Cormack. The humanity and power of the case that he has put has informed the debate in a slightly different way, and one that I very much welcome.
The rationale for the Government’s proposals on compensation for those who have suffered miscarriages of justice is set out in the impact assessment that they published in May 2013 under the elegant rubric of “Other key non-monetised benefits by main affected groups”, which states that the narrower test—that is, that contained in the Bill—
“is likely to result in fewer unmeritorious claims as a result of the greater clarity of the test”.
This assertion rests on two flawed premises. The first relates to the term “unmeritorious claims”, since the effect of the Bill would be to, and is clearly intended to, render claims unmeritorious by virtue of failing the very test that the Bill imposes—that is to say what may now be justiciable ceases to be so because of the new requirement to prove innocence beyond reasonable doubt. Thus we have, in effect, a circular justification.
The second defect lies in the bland assertion that the test supplies greater clarity. But as I, and others more learned than I could claim to be, pointed out in earlier debates on this issue, the law is clear. It was established by the Supreme Court in the Adams case, albeit by a narrow majority, and encapsulated in the judgment of the noble and learned Lord, Lord Phillips, reflected exactly in the wording of this amendment. The Supreme Court is not conducted on the model of Lincoln’s cabinet, in which it may be recalled that a proposition which was opposed by every member save the President passed only on the latter declaring “the Ayes have it”. The decision was a decision of the Supreme Court. The Supreme Court has clarified the law.
The Adams case was followed by the Ali case in the Court of Appeal in which, quoting Adams, Lord Justice Beaston declared that,
“it is therefore now clear that the concept of miscarriage of justice under s 133 (of the Criminal Justice Act 1988) is broader and does not only cover those who show they are demonstrably innocent”.
I add, in parenthesis, as I said in Committee, and as the noble Lords, Lord Wigley and Lord Cormack, said today, that proving a negative will often be impossible. Those words were echoed by the noble Lord, Lord Brennan, whose experience, I respectfully suggest, is particularly relevant to the deliberations of today and to the outcome of this debate. It is true that the Ali case offered a somewhat different form of words, which I found seductive enough to adopt in the amendment I moved in Committee, but, of course, the formulation of the Supreme Court takes precedence. Having, as I said I would, given further consideration to the matter, I am content to support the amendment of the noble Lord, Lord Pannick, which would enshrine in statute the essence of the Adams judgment. I fear that the Government—before the Minister joined them—have sought to perpetrate the parliamentary offence of attempting to obtain legislation by false pretences. I hope that he will not make himself an accessory to the crime.
As we have heard in earlier debates, and again today, the Joint Committee on Human Rights, in its fourth report, has concluded that,
“requiring proof of innocence beyond reasonable doubt as a condition of obtaining compensation for wrongful conviction is incompatible with the presumption of innocence, which is protected by both the common law and Article 6(2) ECHR”.
Moreover, as the helpful Commons Library Note points out, the United Kingdom, in 1968, signed the International Covenant on Civil and Political Rights 1966, and ratified it in 1976. Article 14(6) of the covenant, as referred to by the noble and learned Lord, Lord Hope, states:
“When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him”.
As we have heard, the Joint Committee updated its earlier report recently and rebutted the Government’s response to its earlier document. In particular, the committee stressed that the language used when declining an application for compensation under the new test did not meet its concern about the presumption of innocence. Moreover, it rejected the Government’s argument that in the recent case of K v United Kingdom the ECHR accepted that the clear innocence test was compatible with Article 6(2), and concluded that the Government’s argument that there was no incompatibility between that provision and Clause 161, which we are debating, was not supported. The score on these matters is effectively, therefore, Joint Committee on Human Rights 3, Ministry of Justice 0, and that led to the ultimate conclusion that the test formulated by the noble and learned Lord, Lord Phillips, in Adams, and incorporated in the amendment, should be enshrined into law.
In addition, however, to the legal principles involved and the violence that the Government’s proposal would do to one of the cardinal principles of our jurisprudence, we need to consider the practical implications of their policy. To adopt a phrase which, coming from me, might be thought to be singularly appropriate, they are vanishingly small. The Government’s assessment of the financial savings amounts, as we have heard, to all of £100,000—a mere flea bite compared with the amounts, for example, they are seeking to recover from their favoured contractors, Serco and G4S, for their glaring contractual failures. The number of successful cases is equally tiny—just four cases since the abolition of the ex-gratia compensation scheme in 2008. It should also be born in mind that, in the words of the chairman of the Criminal Cases Review Commission:
“The biggest single cause of miscarriages is the failure to disclose to the defence material to which they were entitled and which, had they had it, might have led to a different outcome at trial or to no trial at all”.
By coincidence, today we have had reports of the outcome of the Drax case—an example in which the courts have overturned convictions on the basis of improper conduct, effectively, by an undercover police officer. It is not a question of imprisonment or compensation but is an illustration of the kind of problem that occasionally arises.
I therefore urge the House to support the amendment and, in so doing, to save not only an important principle to which the citizen may have, in exceptional circumstances, recourse, but also the reputation of our justice system and, in this context, perhaps of the Government themselves.
My Lords, I am conscious that my noble friend Lord Cormack has set me a considerable task. This has been a highly impressive debate and it is a privilege to be responding to it on behalf of the Government. The issue raised by the amendment was the subject of detailed examination in Committee in your Lordships’ House and of extensive comment at Second Reading. Sadly, there was no equivalent debate in the other place. I thank all noble Lords who have taken part in this debate but hope that the House will forgive me for singling out noble and learned Lords—judges who have grappled with this very issue in a judicial capacity. The House will be much the poorer when we can no longer have the advantage of their presence to enrich our debates.
Noble Lords did not speak altogether with one voice, and that is not surprising. What is beyond dispute is that the identification of a clear test has proved elusive, despite the exertion of great intellectual endeavour on the part of the judges. The clause unamended provides that clarity which has been so far absent.
The concept of a miscarriage of justice is not a simple one and, as has been explained, has been left open to interpretation by the courts since the statutory scheme was first introduced in 1988. This has resulted in the lack of clarity to which I referred, leaving applicants in uncertainty and the Government susceptible to frequent unsuccessful legal challenge, and the associated financial implications, with the taxpayer footing the bill.
Since the debate in Committee, the Joint Committee on Human Rights has published its latest report on the Bill, to which there has been reference during the debate, which included the JCHR’s views on Clause 161. That committee and those noble Lords who have put their names to the amendment propose that the Bill be amended to remove the reference to “innocence” in the proposed statutory test for a miscarriage of justice and to enshrine into law wording similar but not identical to the category 2 test formulated by the noble and learned Lord, Lord Phillips, in the Supreme Court in the case of Adams.
The Government welcome the JCHR’s acknowledgment that the dependence on case law should cease and that legislation is now required to provide clarity where currently there are misconceptions. Although we believe that the definition developed by the Supreme Court in the Adams judgment is capable of more consistent application than that developed by the Divisional Court in Ali, it is still open to a range of interpretations. This is clearly indicated by the Divisional Court’s decision to hear five lead cases in October 2012 arising from a number of legal challenges made against the Secretary of State’s interpretation of the Adams definition. This hearing led to the court’s judgment of 25 January 2013 in Ali and others. The court upheld the Secretary of State’s decision to refuse compensation in four of the five cases. Three of those cases were back in the Court of Appeal in December and the court’s judgment is awaited.
As well as the three cases currently before the Court of Appeal, the Government are aware of a further 13 challenges that await a ruling from the courts. Very, very few of the previous challenges to the Secretary of State’s decisions on this type of case have succeeded.
We believe that the definition proposed in Clause 161 is a better, clearer and fairer way of ensuring that those who have truly suffered a miscarriage of justice are identified and compensated. This will take us back to the straightforward test that was successfully operated between 2008 and 2011—a period that spanned part of the life of the previous Government as well as this one. That being so, we are satisfied that it is a perfectly proper test to enshrine in law.
In the light of its recent case law, it is clear that, while the presumption of innocence is engaged, it is not the substance of the test that concerns the European Court of Human Rights but the way in which decisions are expressed—something referred to by both the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Phillips. In this context, the European Court of Human Rights appears to be somewhat more concerned with form than substance. It is not for the Secretary of State to adjudicate on whether someone is guilty or innocent—that is a matter to be determined by the courts. The question before him is whether they suffered a miscarriage of justice and are therefore entitled to compensation, or money.
Through this clause, the Government are seeking to determine, robustly and clearly, what will amount to a miscarriage of justice, in a way which is in accordance with our international obligations and in a way that the man or woman on the street will understand. Therefore, when the new fact on which a conviction is overturned shows that the applicant is innocent beyond reasonable doubt, they should be, and will be, compensated. There is no question of applicants for compensation having to prove their innocence; nor is this an issue of the Government seeking to pay less in compensation.
I should stress that the Government remain firmly of the view that the provision in Clause 161 is compatible with the presumption of innocence in Article 6(2) of the European Convention on Human Rights. We have further set out our thinking on this in our response to the most recent JCHR report, which we sent to the committee last week. In short, it does not follow that simply having “innocence” as the touchstone for compensation where a new fact comes to light means that any refusal to pay compensation amounts to a violation of the presumption of innocence.
Clause 161 brings much needed and long overdue clarity to the test for determining eligibility, as the noble Lord, Lord Brennan, described it, for compensation for miscarriages of justice. As I mentioned previously, this clause is not about reducing the amount paid in compensation, nor is it about the state seeking to escape its responsibilities, and nor—this is most important to emphasise—has this anything to do with depriving people of their liberty.
Of course, everyone in your Lordships’ House is appalled when any miscarriage of justice takes place and anyone, as it turns out, spends much longer, or any time, in custody when they have not committed an offence. This clause is about the Government’s responsibility to pay financial compensation to those who have not committed the crime for which they were unjustly convicted and have suffered a true miscarriage of justice, and to do so in a straightforward manner that provides clarity to applicants and seeks to avoid unnecessary and costly litigation. In answer to my noble friend Lord Elton, this is not a question of someone having to prove their innocence. The presumption of innocence remains a thread that runs through the criminal law. It has been referred to a number of times during the debate, and nothing about this provision in any sense offends that fundamental presumption, which remains a part of our law.
My Lords, I apologise for interrupting the noble Lord in his first foray as a Minister. However, in the light of his repeated statements that nobody has to prove their innocence and that the Secretary of State will make a decision based on the facts, can he answer the questions put by the noble Lord, Lord Brennan, about the difficulties of those whose innocence is not proved by the material on which the conviction was quashed but about whose convictions, like those of Sally Clark and others, there are such significant questions that no jury would have convicted?
I thank the noble Baroness for her question. I am reluctant to go into the particular facts of the Sally Clark case. Indeed, during the debate there have been somewhat different interpretations of that material. Of course, one hopes that if the evidence was available at the outset there would be no trial, no one would be charged, or at least a defendant would be acquitted.
This is a narrow but important provision where new facts have come to light. Of course, as the noble and learned Lord, Lord Brown, said, a number of defendants have their convictions overturned on appeal in time—this is out of time—who may have spent considerable periods in custody, unjustifiably as it turns out. This is a narrow area. The question of the presumption of innocence goes to whether or not they are guilty of an offence, but this, which I hope answers the noble Baroness’s question, is entirely concerned with eligibility for compensation—a different matter altogether. We, the Government, consider that the amendment—this is not in quite the same form as the amendment tabled in Committee—will provide, as is apparent from a number of cases before the courts, for further protracted and expensive litigation.
The noble Lord, Lord Pannick, accepted at the outset when moving the amendment that this was a difficult issue on which distinguished legal minds had expressed different views. Your Lordships have heard some of those distinguished legal minds and have expressed themselves in writing at considerable length. There is no easy answer to this question. Attempts have been made to formulate a test. A test was formulated by the noble Lord, Lord Beecham, and those supporting him in Committee. We have a slightly different test today. I do not decry the elegance of the amendment, nor the thinking behind it but I suggest that the Government’s proposal in the Bill has the advantage of clarity, simplicity, straightforwardness and it does not offend the presumption of innocence. In those circumstances I urge the noble Lord to withdraw his amendment.
My Lords, this has been an informed and interesting debate on what the Minister rightly describes as a very difficult question. I am grateful to all noble Lords who have spoken, particularly to the Minister for his conspicuously careful and fair analysis of the issues before the House.
However, the Minister’s eloquence cannot remedy the defects that we have been debating for more than an hour and a half in Clause 161. First, as the noble and learned Lord, Lord Phillips of Worth Matravers, said, when the Court of Appeal has quashed a conviction it is simply wrong in principle to require the defendant then also to establish beyond a reasonable doubt that he or she is innocent. This is incompatible with the presumption of innocence, as the noble and learned Lord, Lord Hope of Craighead, said this afternoon.
The noble Lord, Lord Elton, asked the Minister if there are any other contexts in the criminal law in which a defendant is required to prove his innocence. The Minister’s response was that Clause 161 does not offend against the presumption of innocence, but the answer to the noble Lord’s question is that there are no other contexts in our law in which a person is required to prove his or her innocence.
I understand the concern expressed by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, which repeated—none the worse for that—the dissent that he gave in the Supreme Court in the Adams case. However, the answer to the noble and learned Lord was given in that case by the noble and learned Baroness, Lady Hale of Richmond, at paragraph 116. The noble and learned Baroness, who cannot be in her place today because she is a serving member of the Supreme Court, said:
“I do sympathise with Lord Brown’s palpable sense of outrage that Lord Phillips’ test”—
that, of course, is the test in the amendment—
“may result in a few people who are in fact guilty receiving compensation … I say ‘a few’ because the numbers seeking compensation are in any event very small. But Lord Phillips’ approach is the more consistent with the fundamental principles upon which our criminal law has been based for centuries. Innocence as such is not a concept known to our criminal justice system. We distinguish between the guilty and the not guilty”.
That is the answer to the noble and learned Lord, Lord Brown of Eaton-under-Heywood.
There is a second defect in Clause 161 to which, with respect, the Minister has no adequate answer. It would require the Secretary of State to decide on the innocence of defendants whose convictions have been quashed. To require the Secretary of State to perform that role when no court has done so would be to impose a complex and contentious role on Ministers in cases which are among the most sensitive.
As the noble Lord well understands, the Court of Appeal will not have pronounced on innocence. To require the Secretary of State to decide not only whether there has been a miscarriage of justice because of some new or newly discovered fact, but whether, in truth, the defendant is innocent, will inevitably lead to protracted litigation which will simply prolong the pain and suffering caused by the miscarriage of justice which led to the quashing of the conviction.
As King Lear said, “That way madness lies”. It is that way madness lies for the Secretary of State and for the defendants, although not of course for the lawyers who will benefit considerably from Clause 161. I cannot accept that the amendment is any less clear or any more likely to produce litigation than Clause 161. Amendment 94E raises an important issue of principle. It seeks to enact the test of the noble and learned Lord, Lord Phillips, for the Supreme Court in Adams. I wish to test the opinion of the House.
94EA: After Clause 162, insert the following new Clause—
“Abolition of defence of marital coercion
(1) The defence of marital coercion is abolished.
(2) Accordingly, section 47 of the Criminal Justice Act 1925 (coercion of married woman by husband) is repealed.
(3) This section does not have effect in respect of an offence alleged to have been committed before the date on which it comes into force.”
My Lords, in Committee, the noble Lord, Lord Pannick, tabled an amendment seeking to abolish the defence of marital coercion. The Government agreed to return with a view on that matter on Report and, accordingly, we have tabled these amendments.
As the noble Lord, Lord Pannick, explained in the earlier debate, it is currently a defence to all criminal offences other than treason and murder for a wife to show that she committed the offence in the presence of, and under the coercion of, her husband. The defence is an historical one. It was introduced in England and Wales by Section 47 of the Criminal Justice Act 1925, which abolished the previously existing presumption that a wife who committed any offence except treason or murder in the presence of her husband did so under his coercion and that she should therefore be acquitted. For these historical reasons, the defence applies only for the benefit of a woman married to a man.
Time has moved on. The circumstances in which the defence made sense no longer pertain. It is now an anachronism, and we accordingly agree that it can be consigned to history. I commend the noble Lord, Lord Pannick, for raising this issue and he can rightly take the credit for this overdue reform. I beg to move.
My Lords, I am very pleased that the Minister has responded so positively to the amendment which I tabled in Committee and thank him for it. As he said, prior to 1925, the law contained a presumption that a wife was coerced by her husband. The Minister said that time moves on, but Sir James Fitzjames Stephen, the great 19th century authority on criminal law, described this area of the law as “irrational”. In 1922, the Avory committee recommended abolition of any special rule for wives and so did the Law Commission in its 1977 report. Therefore, it could not sensibly be suggested that law reform in this context has in any way been rushed.
It was of course this area of the law to which Charles Dickens referred in Oliver Twist. When Mr Bumble is told that,
“the law supposes that your wife acts under your direction”,
“If the law supposes that … the law is a ass—a idiot. If that’s the eye of the law, the law is a bachelor”.
I am delighted that this truly idiotic provision of English law is at long last to be abolished.
My Lords, I join in the welcome to the Government’s acceptance of the amendment of the noble Lord, Lord Pannick. It is nice to have a touch of harmony in these proceedings. I entirely support the abolition of what is clearly an archaic and now defective provision.
However, an issue perhaps needs to be addressed. We have now abandoned, rightly, the law of marital coercion, but there is a question about the operation of the law of duress. That of course applies only in limited cases where extreme violence or even death are threatened by one person against another; if that other then conforms with instructions given under such a threat, there may be a defence. Those would be very extreme circumstances, but there is some concern about the position of—usually but not necessarily exclusively—women in a situation of, for example, domestic violence and abuse of that kind. They might be prevailed upon to commit or assist in committing an offence by a threat obviously much less severe than is required by the law of duress. I wonder whether the Government might look at that, or invite the Law Commission to do so, to see whether there is a case for providing a safeguard for those who may be virtually compelled to take action without this rather archaic background.
In addition to or perhaps separately from that, perhaps some consideration might be given to those who have responsibility for deciding whether to charge or to proceed with the prosecution—or, following a prosecution, to impose sentencing—in situations where, as I say, without the extreme requirements of the present law of duress it is nevertheless apparent that pressure and threats of violence or worse have been brought to bear upon the weaker party in that situation. They might not be parties living together; one can envisage other circumstances. Perhaps that matter might be looked at. Having said that, we certainly support the amendment and are glad that this anomaly will be dealt with.
I, too, welcome this reform. I think it is important that a female voice is heard saying that this is a good move forward, rather than something that looks as though it has been gifted to us by men; women are happy for this to be happening.
I reiterate what my noble friend just said about the position of women in the circumstance of domestic violence, where the abuse can often mean that they are fearful of not participating in looking after stolen goods or whatever. I have several times recently acted for women who have failed to inform on their husbands in situations of terrorism. Your Lordships will remember that we introduced new law which made it a duty to inform if you are conscious of people plotting or planning acts of terrorism. A number of wives have been prosecuted for that. I have to say that juries do not like it. They often realise, particularly in the circumstances of very powerful personalities in the form of the menfolk and where women have little power, as in some minority communities from which terrorism has recently been emanating, that there has to be understanding of ways in which women are prevailed on and are in terror of going to the authorities. I hope that making this change does not in some way militate against the raising of domestic violence as a background to an understanding of women’s roles when it comes to allegations in the criminal courts.
I shall respond briefly. I am most grateful to the noble Lords, Lord Pannick and Lord Beecham, and the noble Baroness, Lady Kennedy, whose voice is always welcome. As she said, it is important to have a contribution from someone of her gender.
I should emphasise that the Government are absolutely committed to ending violence against women and girls in any community. The noble Baroness rightly draws attention to particular communities where that may be a feature. Duress as a defence has been well established for many years and will continue to be available to men and women, regardless of marital status. Of course, the matter will remain under active consideration. The Law Commission last looked at the issue specifically in 1977. If there are further matters, it will no doubt consider them. I thank noble Lords very much for their contribution.
Amendment 94EA agreed.
Clause 166: Amendments
94F: Clause 166, page 132, line 18, at end insert—
“(2A) The Secretary of State may by order make amendments to sections 136 and 142 of the Sexual Offences Act 2003 that are consequential on the coming into force of any amendment of Part 2 of that Act made by the Criminal Justice Act (Northern Ireland) 2013.”
Amendment 94F agreed.
95: Clause 166, page 132, line 24, at end insert “and Schedule 3”
Amendment 95 agreed.
Schedule 10: Minor and consequential amendments
96: Schedule 10, page 189, line 19, leave out paragraphs 24 to 27
My Lords, noble Lords will recall that in Committee, we made the point that injunctions for nuisance and annoyance were certainly very helpful in certain circumstances, but not appropriate in every case. That is now the position adopted by your Lordships’ House, with the amendment to maintain the more serious definition of harassment, alarm and distress and retain the definition of nuisance and annoyance only for specific circumstances, as already provided in housing law, where that definition is entirely reasonable.
In Committee, we argued that ASBOs should be retained because, first, the higher threshold—harassment, alarm and distress—recognises the seriousness of the issue and how devastating anti-social behaviour can be. Secondly, there is the effectiveness and understanding that has grown up around the issue. I appreciate that there were teething problems with ASBOs initially and that there is always room for improvement. But after around 15 years, the various agencies involved know and understand how to use anti-social behaviour orders and could, I think, best advise on any improvements to be made. Thirdly, there is the seriousness of the issue which, given how devastating anti-social behaviour can be, meant that a breach became a criminal offence.
We now await the Government’s response, at Third Reading or later, to the rejection by your Lordships’ House of the definition of “nuisance and annoyance” from every situation. However, the penalties, sanctions and requirements for breach of an IPNA still remain, even with the new definition. It is that area which I seek further clarity on because it is so different from the ASBO penalty. We need an assurance from the Minister that the sanctions will be meaningful and have the effect that the Government claim they will.
The Minister, the noble Lord, Lord Taylor of Holbeach, said in Committee:
“By moving away from focusing solely on enforcement and getting agencies to work with young people, we can get these young people’s lives back on track. Positive requirements”—
part of the IPNA procedure—
“which are absent at the moment, are integral to this move and to the Bill. Front-line professionals not only know about them, they welcome them. When applying for an injunction agencies will consider whether positive requirements can help address the underlying drivers of the anti-social behaviour. They will be better than individual support orders because positive requirements will be more flexible and can last for more than six months”.—[Official Report, 18/11/13; col. 820.]
What causes us great concern is that the Government have already set about dismantling some of the early intervention, and therefore the positive measures, which were in place in part to tackle anti-social behaviour. For example, the Sure Start centres were established to support any family which needed that support or help but have been decimated. Current estimates are that more than 600 Sure Start centres have been lost across England and Wales. I was told last week that even one in Basildon, where I live, and others in other parts of Essex are being closed. Those centres were important tools to help and support families with young children and in the prevention of anti-social behaviour.
One of the early indicators of the Government’s priorities were the cuts to early intervention grants and programmes, so when the Government rely on positive requirements that will accompany the new injunctions it is extremely worrying that they have said, as the Minister said in Committee, that:
“The Bill makes no provision for the funding of costs”.—[Official Report, 18/11/13; col. 823.]
I refer to pages 26 and 27 of the Explanatory Notes, which talk about the injunctions and give examples of what the positive requirements would be. They could be prohibitions: for example, not being in possession of a can of spray paint in a public place. However, the ones I am specifically concerned about and would welcome in most circumstances say that:
“Requirements would be designed to deal with the underlying causes of an individual’s anti-social behaviour and could include, for example, attendance at an alcohol or drugs misuse course or dog training in the case of irresponsible dog owners”.
The notes go on to say that these have to be monitored and that, before applying positive requirements, the court has to receive evidence on the suitability and enforceability of any requirement. That comes with some costs. Unless the Minister thinks that will be cost-neutral, there are costs associated with those requirements.
If the Government are going to replace a criminal sanction with a requirement, positive or otherwise, they have to be confident that these will be effective, be complied with and be monitored to ensure compliance, otherwise the Government will take action. To breach the terms of that injunction’s positive requirements is a very serious matter; it is punishable by prison. However, if the Government do not make it easy for somebody to comply with the positive requirements laid upon them because there is no support, help or funding for that, they will be moving quickly back to a position where a breach of that injunction is imprisonable and becomes a very serious matter. However, it might not be that person’s fault if they are not able to comply because the Government are not providing the funding for it.
I have some questions for the Minister and would like to know whether he can give me the necessary assurances. First, are the funding and resources available for the requirements to be undertaken? Secondly, are they available for the requirements to be appropriately and accurately monitored? Thirdly, are they also available to take action if that injunction is breached?
Unless those reassurances are forthcoming, there is a real danger that whatever the test for anti-social behaviour—whether it is nuisance and annoyance or harassment, alarm and distress—there will be no effective action against those committing such behaviour. We want those assurances because I would hope that in the public interest we all wanted serious measures that tackled anti-social behaviour and for those measures to be effective. Without such guarantees, it would be totally wrong to scrap what exists and start all over again. I beg to move.
My Lords, I am grateful to the noble Baroness, Lady Smith of Basildon, for tabling this amendment. It brings us back once again to the real failings of one of the key powers introduced by the previous Government to tackle anti-social behaviour.
This Government have been clear that, in developing our reforms, the police, local councils, social landlords and others must focus their response to anti-social behaviour on the needs of victims and put them first. As part of our consultation on the new powers, we asked victims what they want. They told us three things: first, they want their problem to be taken seriously; secondly, they want an efficient service and quick response; and, thirdly, they want the problem to stop and for it not to happen again. That is what this Government also want. That is why we want to support agencies by giving them effective new powers to do this. However, ensuring that the right powers are available also means removing or reforming the existing powers where we know that they do not work as well they should, particularly the anti-social behaviour order.
Front-line professionals have recognised the ASBO’s failings, and this is demonstrated by the most recently published statistics from the Ministry of Justice. Since 2005 there have been year-on-year falls in the number of ASBOs issued, with 1,329 issued in 2012, a decrease of 6% from the 1,414 issued in 2011 and a decrease of 68% since 2005. That is not because ASBOs have been so effective in preventing anti-social behaviour that they are no longer needed.
I made this point in Committee when the noble Baroness tabled a similar amendment, but it is worth repeating: up to the end of 2012, 58% of ASBOs were breached at least once and just over 43% were breached more than once. If an ASBO is breached, on average it is breached five times. Perhaps even more shocking are the figures relating to young people. As I also informed the House in Committee, the breach rate for under-18s is a staggeringly high 69%. To put it another way, over two-thirds of ASBOs against young people are breached. Those are the statistics. Those are the facts. They are certainly not teething issues, as the noble Baroness, Lady Smith, suggested; the ASBO is a fundamentally flawed device for tackling anti-social behaviour.
It is also a story of abject failure for under-18s who, for whatever reason, have taken the wrong path in their lives. ASBOs have unduly focused on enforcement, criminalising young people with insufficient emphasis on helping young people subject to ASBOs to deal with the reasons for their anti-social behaviour and turn over a new leaf. That is why this Government want to see the back of ASBOs and give the police, local councils, social landlords and others more effective powers to enhance their ability to tackle anti-social behaviour and protect the public.
In her evidence to the Public Bill Committee, the chief constable of Thames Valley, Sarah Thornton, made the point forcefully:
“The fact is, the experience has been that the ASBOs have been quite bureaucratic, in terms of securing them, and maybe not as effective at tackling the problem as we hoped”.—[Official Report, Commons, Anti-Social Behaviour, Crime and Policing Bill Committee, 20/6/13; col. 71.]
The fact is that ASBOs are an all too visible reminder of a broken system which the new powers are designed to fix. As I said in Committee and indeed in our deliberations earlier on Report, the injunction under Part 1 and the criminal behaviour order provided for in Part 2 form major planks of our reforms to give front-line professionals the swift and more effective powers they need to protect victims and communities. The injunction will enable agencies to act more quickly, with its lower civil standard of proof, and will not overly concentrate on enforcing prohibitions or criminalise those who breach it—unlike the ASBO. However, the criminal behaviour order will be available for more serious cases, where there is a criminal conviction. In these cases, it is right for tougher sanctions to be available on breach and, as with the ASBO, breach will be a criminal offence. However, both powers can include positive requirements to help individuals to address the root cause of their anti-social behaviour and help them turn their lives around.
The positive requirements will be especially important for those young people who have been failed by ASBOs. That is why 58% of respondents to our consultation on the new powers in the Bill welcomed positive requirements. The noble Baroness, Lady Smith, expressed concerns about funding positive requirements. However, the majority who responded to the consultation agreed that this was not a reason not to have them, as they recognised the potential benefits of reducing reoffending and the substantially reduced downstream costs of doing so. Front-line professionals are aware of the positive requirements and will make use of them where there is scope to do so. As we know, local councils and other agencies already have a have a good track record of providing services to individuals to turn their lives around and we rightly expect that support and services will be continued under our reforms.
As we introduced these new powers, the Government do not want to keep an existing order which has failed young people so miserably, unnecessarily criminalises them and saddles them with a criminal record. We firmly believe that it is time to move on from ASBOs. I invite the Opposition to do likewise and fall into step with the Government and the front-line professionals with whom we have worked closely in shaping the new powers. I invite the noble Baroness to withdraw her amendment.
My Lords, I struggled as I listened to the speech of the noble Lord, Lord Taylor of Holbeach, because he seemed to be replying to the speech that his officials thought I would make rather than the speech that I made. It is disappointing not to receive a response to any of the comments that I made. I asked for reassurance about funding but his only comment was about “downstream costs”. Perhaps most noble Lords know what he means but I am not sure that he does. It is very disappointing to receive a response to a speech that I made in Committee and not the one that I made today. However, I beg leave to withdraw the amendment.
Amendment 96 withdrawn.
Amendments 96A to 96AB
96A: Schedule 10, page 202, line 18, at end insert—
“Armed Forces Act 2006 (c. 52)In Schedule 3A to the Armed Forces Act 2006 (Court Martial sentencing powers where election for trial by that court instead of CO), paragraph 13(2) and (3) (service sexual offences prevention orders) is repealed.
Armed Forces Act 2011 (c. 18)(1) Section 17 of the Armed Forces Act 2011 (service sexual offences prevention orders) is repealed.
(2) In Schedule 4 to that Act (consequential amendments), paragraph 3(3) is repealed.”
96AA: Schedule 10, page 206, leave out lines 36 and 37
96AB: Schedule 10, page 210, line 9, at end insert—
“ In section 226 of that Act (extent), in subsection (2), after “Sections” there is inserted “151B,”.”
Amendments 96A to 96AB agreed.
Clause 167: Orders and regulations
Amendments 96AC and 96B
96AC: Clause 167, page 132, line 34, leave out “or” and insert—
“( ) regulations under section 132(5)(b), or”
96B: Clause 167, page 133, line 2, after “section” insert “166(2A) or”
Amendments 96AC and 96B agreed.
Clause 169: Extent
96C: Clause 169, page 133, line 30, at end insert—
“( ) section (Use of amplified noise equipment in vicinity of the Palace of Westminster);”
Amendment 96C agreed.
Amendments 96D to 96G
96D: Clause 169, page 133, line 31, after “sections” insert “(Detention of person for trial in England and Wales for other offences),”
96E: Clause 169, page 133, line 32, at end insert—
“( ) section (Abolition of defence of marital coercion);”
96F: Clause 169, page 134, line 9, at end insert—
“( ) section (Jurisdiction of Investigatory Powers Tribunal over Surveillance Commissioners);”
96G: Clause 169, page 134, line 10, after “sections” insert “(Detention of person for trial in England and Wales for other offences) and”
Amendments 96D to 96G agreed.
Clause 170: Commencement
Amendments 97 to 99
97: Clause 170, page 134, line 29, leave out subsection (2)
97A: Clause 170, page 134, line 31, after “sections” insert “(Jurisdiction of Investigatory Powers Tribunal over Surveillance Commissioners),”
97B: Clause 170, page 134, line 33, leave out “section 141, which comes” and insert “sections 141 and (Abolition of defence of marital coercion), which come”
98: Clause 170, page 134, line 40, at end insert “and Schedule 3”
99: Clause 170, page 134, line 43, at end insert—
“( ) Different days may be appointed under subsection (1) or (4) for different purposes or different areas.”
Amendments 97 to 99 agreed.
In the Title
100:In the Title, line 4, after “firearms” insert “, about sexual harm and violence”
Amendment 100 agreed.
Question for Short Debate
My Lords, I am pleased to have secured this debate this evening. I should immediately remind the House of the housing interests that I have declared on the register. I am a director of Taylor Wimpey plc, the housebuilder, and Grainger, the residential landlord, and, as the House probably knows, I have previous form as chairman of English Partnerships, the predecessor agency to the HCA, and most recently of the Olympic Park Legacy Company.
Housing is fundamentally important to us as individuals and as a society, and once again the issues of the supply and, critically, affordability of housing have found their way to the top of the political agenda. We hear frequently that we live on a crowded island, and standing on the District line today, I could certainly relate to that, but I also use domestic flights frequently and as I look out occasionally, I am struck by how little of our country is developed. In fact, only 12% of the UK is developed but, as we all know, this 12% is very highly concentrated around our great cities and suburban areas, and it continues to be where demand lies for more housing, creating more and more pressure on land, transport and public services.
The fact is that we cannot separate successful economic areas from demand for housing and vice versa, which is why the intervention from Sir David Higgins, chairman of HS2, last week was particularly interesting. His hypothesis is that HS2 would start to move the economic centre of gravity away from London and attract high-value businesses out of the capital. He suggests that, among other things, this would begin to stabilise house prices in London. That remains to be seen but it starts a debate that is well worth having and intelligently makes the important link between housing and transport infrastructure. He is attempting to think long-term, which is how we must think if we are to make the breakthrough we need to increase the supply of affordable homes.
Housebuilding is highly cyclical in nature and very sensitive to changes in the banking environment and the mortgage market, so we have fallen into developing housing policy that mirrors that cycle and is often reactive and short-term. We react to today’s problem. Many very worthy policy initiatives have been undertaken over the past 20 years but, of themselves, have not led to the breakthrough in affordability and overall supply that I think we all recognise is required.
We do not need to look any further than Kate Barker’s excellent 2004 analysis to understand the scale of the problem. All of the issues that Kate set out still remain. The link between house prices and earnings has deteriorated still further in the past 10 years, and not enough affordable homes are being completed. Yet we know how to solve this because we have done it before. Housing completions in 2012 totalled 143,500. In 1968, completions totalled almost 430,000. In the peak year in the previous century for housebuilding, 1968, we delivered three times as many houses as we did in 2012.
More than half of those completions were from the private sector. The remainder came from councils and development corporations as well as an increasing contribution from housing associations, but this was not an accident. The consistently large supply of homes post-war and until 1968 was a direct result of the largest and most systematic ever release of development land that our country has ever seen. That land release continued to supply up to 200,000 homes a year until as recently as 1990. I am talking about the new towns programme that began with the designation of Stevenage in 1946. The housing statistics over that period show the affordable homes that were built by the new town development corporations but, critically, many of the private completions were also built on new town land due to deliberate policy rightly to create mixed and sustainable communities, so we accomplished scale across all tenures.
It is self-evident to me that the key to increasing supply is systematic, planned release of land. If we are serious about tackling supply, variety of tenure and affordability, we need to revisit the approach that served us so well from the immediate post-war period right up until 1990, when the programme begun in 1946 naturally started to come to an end. If you strip out the new town programme, private completions have always, and steadily, delivered about 130,000 houses a year if you smooth it over the cycle. It is therefore clear from the experience of the past 30 years that the incremental amount of homes that we can add to current stock through what I would call the normal planning regime is around 160,000 a year; this is taking private housebuilders and housing associations together. That adds less than 1% to the existing stock each year, which is plainly not dealing with the issue of supply and affordability, as Kate Barker pointed out a decade ago and we all see, day in, day out.
When Kate Barker proposed that we needed to build 250,000 homes a year, there was immediate opposition to this figure, notwithstanding that we had easily accomplished this almost every year—in fact, for 27 out of the 30 years between 1950 and 1980. However, 10 years after her seminal review, no political consensus has emerged on the way forward, which is a pity as it seems to me that the only way to deal thoroughly with this issue is through long-term planning and a cross-party approach.
Encouragingly, there seems to be recognition of that in recent months. Whether it is the Government’s suggestion of garden cities or the Labour Party’s announcement of a new generation of new towns, it feels as though there is a clearer understanding that if we are to do more than add incrementally to our housing stock and really tackle the issues of price and variety of tenure, we need to significantly release land for planned, thoughtful development.
As I said, we know how to do that. The development of the English new towns was not always perfect—we know that—but we learnt as we went along and the template has subsequently been copied in many other countries. They were also phenomenally successful in terms of public finance. I would point anyone who says that government cannot afford to make the direct investment in high-quality new communities to the return that the Treasury has enjoyed over decades from continual land sales in the new towns; as the last ever chairman of the Commission for the New Towns, I have direct experience of this.
We have created only a few development corporations in the past 20 years, and I had the pleasure of chairing one of them. The Queen Elizabeth Olympic Park is being developed by a mayoral development corporation, but one that recognises that there are existing communities around it and embraces those communities through its planning system and membership of its governing body. It is a modern corporation that accepts the challenges and opportunities that development in an established community naturally brings. We are all realists. We understand that there will be challenges in building new communities, but the Queen Elizabeth Park is a great exemplar and is being immensely successful. Planning consent is in place for almost 10,000 new homes around the park. By the end of this year, only two years after the Games, nearly 3,000 new homes will be occupied—not just starting to be built, but occupied—in the park. The next phase of building, of more than 800 homes, begins in June, and the next two phases are already out to the market, adding a further 1,500 homes. This demonstrates what you can do when you have a planned, thoughtful, systematic release and, critically, you have the community with you.
I have become increasingly convinced that this is how we do it. Whether it is on brownfield land, surplus public land or on greenfield sites, the principles are the same. If we want to convince communities to embrace development, it needs to be of the very highest quality. It needs to be sustainable and affordable. It needs to offer real community benefits and not burden already creaking infrastructure or public services. Experience has shown us that the very best way to do that is through larger-scale, long-term, thoughtful development, appropriately financed.
I ask the Minister tonight whether the Government have any intention of adopting this approach, taking a long-term view and committing the finance to enabling infrastructure that is required to open up large-scale developments. I contend that we know how to do this. The time is right to do it again.
My Lords, we are all very grateful to the noble Baroness, Lady Ford, for introducing this debate on what is clearly a very important public subject. I am by no means an expert on housing, but I have a long-standing interest to the extent that, in the 1970s, I was the first chairman of the Circle 33 housing association, which is now part of Circle Anglia. I remember the noble Lord, Lord Best, from those days.
I strongly support what the Minister and her colleagues are doing in government, first in her own department, the Department for Communities and Local Government, where Nick Boles, for example, is doing a great deal to remove some of the distressingly difficult obstacles in the planning area and where my right honourable friend Eric Pickles has been talking about new towns, which I think are part of the solution. The Chancellor, in his help to buy measures, has got building going again. There is no doubt that it is on the up, from all that I hear from around the country, both in London and in the regions. All that is very good and I congratulate my noble friend on what the Government are doing.
I said that I had a long-standing interest in housing. It goes back a very long way. Some people my age and perhaps younger will remember when Harold Macmillan was Minister for Housing. The noble Baroness, Lady Ford, quoted some statistics from before then. The House will recall that Winston Churchill set Harold Macmillan the task of building 300,000 houses a year to cope with the housing crisis in the 1950s, and he achieved that target within three years. Even Emanuel Shinwell, one of the original red Clydesiders, who was then sitting for Easington, had to admit, “This Government does get things done”. In the following election, the Conservatives won 50% of the vote—I do not think that they have achieved that since then—and Harold Macmillan went on to become Prime Minister. I am not suggesting that that exact approach could be replicated today. Things have clearly altered a great deal. Council housing is a fraction of what it was then and housing associations did not exist in the 1970s in the way they do now. It is all very different. But the sort of priority that that Government had in the 1950s, when there was a similar sort of crisis, though different in prices and so forth, should be given to housing today. I agree with the noble Baroness, Lady Ford, that if we get that sort of priority and the long-term thinking implied in that —and, if possible, with cross-party support, so that whatever Government are in power, that level of building is carried on—we have the makings of a solution. Unless you have something like that, we will just patch and mend as best we can from Government to Government and we will have the situation that we have today.
Finally, at local level there is a wonderful opportunity to build more flats and houses in our high streets, many of which are run down as a result of the increase in online shopping. In Orpington, which I represented for many years in the other place, Tesco built a new store in the high street, with many flats above. Where I live now in Fulham, Sainsbury is doing the same thing, both above a superstore and a local store. All that will contribute to the revitalisation of our high streets, as well as providing good, cheap social housing. That is one way forward, along with the long-term measures that the noble Baroness suggested.
My Lords, I am very grateful for the opportunity to contribute to this debate. No one could have introduced it in a more authoritative or measured way than my noble friend, who has been so instrumental in showing us the way forward. As she spoke, the facts of the present Government’s housing policy appear only starker in my eyes. Consensus is that they are facing the wrong direction. I am sure that the Minister will tell us of the raft of initiatives on the demand side that the Government are putting in place, but she is sensible enough to know that that will not do anything to address affordability, accessibility or housing market failure.
The fact is that, if the Government are serious about housing supply—it is very good to have the reference to the Barker report, which set the foundations a decade ago for very clear thinking—they have to be serious about an investment strategy based, first, on proper assessments of housing need across the country, linked to labour markets and local economies across boundaries, and having a planning system that enables that. As one example of what has been lost in recent years under this Government, the chair of the South West Housing Initiative told the inquiry chaired by the noble Lord, Lord Whitty, that,
“since the abolition of the regional spatial strategy housing target, planned new housing in this most stressed of regions”—
that is, the south-west—
“has been cut by 81,000”.
I do not know what it takes by way of evidence to convince the Government that they cannot rely on private housebuilders to supply the 240,000 homes that are needed. Clearly, the housebuilders themselves do not have the conviction that they can do that. They know that they do not have the scope, the competitive conditions or the incentives to step up to the scale of what is needed. Perhaps the noble Lord, Lord Best, will tell us about the challenges facing the housing associations following the welfare changes.
To compound all that, there is evidence that the local planning system is being increasingly driven not by local plans but by the high emotions of national policy and the appeals system. The Government complain that the planning system is not delivering when, in fact, 400,000 planning permissions have been granted for houses which are waiting to be built out. However, more insidious at the moment is how the local planning system is being undermined in two directions. A quarter of local authorities cannot show a five-year supply of land and, therefore, their local plans are out of date and they are in thrall to the development priorities of the National Planning Policy Framework. At the same time, even where there is a local plan in place, there is increasing evidence that the Planning Inspectorate is overturning local decisions because they are not delivering enough development. Endless appeals, constant uncertainty and longer delays mean fewer houses which are agreed by the local community. I should be very grateful to the noble Baroness if she could tell me how many local decisions have been overturned by PINS in the past five years, so that we can get some notion of trend here.
The tragedy is that the local authorities are the answer, but in order to become the answer the Government have to respond to some common-sense appeals—from the housebuilders as well as everybody else—not to limit but to remove the housing borrowing cap. Local authorities can then build 60,000 houses a year. We should get rid of the archaic arrangement whereby the HRA is still on the public books.
As regards what my noble friend said about new towns and land supply, my goodness I do not want to pile agony on the Liberal Democrats this week but what confusion there is. Who wants new towns? The Prime Minister wanted them at one time. Now he appears not to want them. The Deputy Prime Minister is desperate for them, but a report has been produced which has been hidden. The Communities Secretary says that he would like a couple of garden cities and that he does not know where the report is. He thinks that it is in another department. Will the noble Baroness please clarify the confusion that surrounds this policy? We would all be very grateful for that.
My Lords, I am very grateful to the noble Baroness, Lady Ford, for initiating the debate. I declare my interest as a vice-president of the Local Government Association.
As we know, affordable housing is the sum of affordable rent, social rent, intermediate rent and affordable home ownership. It is provided to eligible households whose needs are not met by the market, and that eligibility may reflect local authority allocation policies, local incomes and local house prices. However, for someone seeking housing, the question is a different one. It is: can I afford what is said to be affordable?
We have debated social housing on several occasions. We know that we have a waiting list of 1.8 million families. We know that house prices are rising, particularly in London, with a consequential rise in rents. We know that we need to build more and we know that large numbers of people can never aspire to home ownership and need to rent. This problem is compounded by reduced council tax support and the underoccupancy charge, together with the benefit cap, particularly in London, all of which are causing serious strain in the finances of many households. For them, their rents can become unaffordable when they used to be affordable.
What should be done? Many good ideas have been put forward—and we will hear some tonight—for the short to medium term, but I want to suggest a number of possible actions the Government could take quite quickly. First, it should be an absolute requirement that when one council home is sold it is replaced by another. This “one for one” is government policy but councils, unsurprisingly, can have great difficulty delivering it since they may not get enough money to meet the cost of the replacement home. They need help in that regard.
Secondly, will the Minister examine the realities of the underoccupancy tax? There are tenants who want to move to something smaller, and therefore something that is more affordable, but who cannot move because there is nowhere suitable to move to. Will the Government increase support to encourage more providers to modify more properties to create more units quickly to which people can downsize?
Thirdly, as regards the housing borrowing cap, in the autumn Statement the Government announced that borrowing limits for housing revenue accounts would be raised by £150 million a year in 2015-16 and 2016-17. This was very good news and something that many in this House have been urging the Government to do. If the cap did not exist, up to 60,000 new homes could be built over the next five years. The risk is minimal because the markets would set the cap, as the prudential borrowing required would be secured by the rental income. Removing the cap would of course bring local authorities into line with housing associations. So I hope that the recent announcement, which is welcome, could be followed by a further rise in the borrowing cap.
I recognise the measures the Government have taken since 2010 to try to drive up housing starts and affordable homes. The trouble is that the impact has been limited and further intervention is clearly needed if the supply is to be increased and the cost to individual households is to be made reasonably affordable.
My Lords, I thank the noble Baroness, Lady Ford, very much for initiating this debate and I pay tribute to her sterling work for regeneration and housing over many years.
I have two interests to declare and two bullet points to make. First, I am president of the Local Government Association and, in that capacity, I strongly support the LGA’s efforts to remove the current cap on council borrowing for housing purposes. Secondly, I chair the Hanover Housing Association. My second bullet point comes close, I think, to being a silver bullet in the quest for an increase in the availability of homes that the next generation can afford to occupy.
The Hanover@50 website displays the input from nine national think tanks on questions of housing and care for older people. In summarising these contributions to the debate that Hanover organised to mark its 50th anniversary, I contributed a 10th chapter, called, “Accommodating our extended middle age”. This addresses two of the most significant problems facing the UK: first, the escalating health and social care requirements for those in later life and, secondly, the acute shortages of homes for younger households. The proposed solution to both problems is to build attractive, well designed homes for those in their extended middle age—55 to 75 years-old—and create a sea change in attitudes in the UK to downsizing or “right sizing”.
If even a modest proportion of the rapidly growing number of older, single people and couples living in family homes could be enticed—by spacious, light, energy-efficient new homes—to downsize, there would be huge gains for them and for the nation: improved health and well-being for movers; liberation from looking after bigger homes and gardens; reduced accidents in the home or illnesses linked to cold or damp; and pre-empting, postponing and preventing loss of independence and enforced moves into expensive residential care in later life.
Downsizing retirees can access wealth by releasing equity, and this can pay for care, assist the next generation or simply fund happier retirement. Standards of living can be dramatically improved, and the setting of “sociable housing” for those in extended middle age can reduce the likelihood of loneliness and isolation, which are the chief causes of misery and mental health problems for older people.
However, these gains are equally for younger households. A shift in culture, whereby we downsize at a younger age, instead of waiting for a crisis when we hit our 80s, brings much-needed family housing, often with gardens, on to the market—usually for relatively low-cost sale. It frees up existing social housing for families at social rents, which means lower housing benefit costs that are hard to achieve when building new affordable housing. It even provides for those aged between 55 and 62 who need to move to avoid the dreaded bedroom tax.
I commend to the Minister and her colleagues the recommendations that flow from the Hanover@50 debate: building homes that attract us in our extended middle age can head off problems for our old age while enabling tens of thousands of younger people to move into family homes that they can afford.
My Lords, I, too, am deeply grateful to the noble Baroness, Lady Ford, for enabling us to tackle again the issue of the serious lack of affordable housing. I want particularly to concentrate on rural housing. The statistics abound—from a need for 11,000 new rural houses a year to the provision of just over 1,000 such houses by registered providers in 2011-12. The one thing on which there seems to be agreement is that there need to be far more than are currently being built.
I welcome the way in which the noble Baroness has stressed actual supply rather than wishful thinking. We need rural housing delivery strategies even more than housing needs strategies. We may be talking about small absolute numbers in terms of rural housing but they are key to the life of our rural communities in this country.
Faith in Affordable Housing is a churches’ project designed to help to release church land and property for affordable housing. It has worked particularly with the diocese of Gloucester to provide, for example, flats for young homeless people on a derelict vicarage site. It has had modest success but is having difficulty in finding partners for more challenging developments. Some of the earlier, very positive uses of church buildings and properties appear to be impossible for registered providers to contemplate today, and this seems an immense waste.
Churches are not the only organisations with underutilised land and property which could be released for affordable housing. However, in the case of churches, such developments can also provide new meeting places, worship areas and places which can be developed for community use and needs. Faith in Affordable Housing is seeking to raise the vision of churches to make such provision, but time and again it appears to be too complex for local authorities and registered providers to become partners and supporters in this enterprise.
Can the Government tell us how they will support rural communities, including churches, in imaginative plans to increase the supply of rural affordable housing through greater encouragement and through a more equitable financial provision?
My Lords, first, I declare my interests, as shown in the register, in land and property development companies, developing houses and building social houses.
Private houses are so unaffordable in the south-east that we have to supply affordable houses or many people would be forced to move out of the area. Very, very few of the residents in many areas can afford to buy the houses that they live in. Their children become part of the demand side of this supply and demand problem. In addition, the rising levels of divorce will reduce the optimum size of a household. A couple with two children become, with divorce and shared custody, two households with three people each. All these family and demographic changes happen far faster than we can plan for them. The market can cope but only if it is freed from regulation.
What have we got wrong? As ever, it will be taxation and regulation. Home owners end up paying all the costs piled on to developers when homes are built. Property taxes, at 4% of GDP, are more than double the OECD average of 1.8%, yet certain other parties want to increase them still further. Added to that, regulation makes everything oh so slow. Supply is quite simply not meeting demand.
I am chairman of a property development business building a total of 2,500 houses on the outskirts of Bicester, including 700 social houses, but it will take 20 years from start to completion, despite having four housebuilders working simultaneously on the project. It took seven years just to get full planning permission on this uncontroversial site, and it was supported by the council. The Government should be applauded for the new planning guidance, led by my noble friend Lord Taylor of Goss Moor. That should certainly speed things up through magnificent simplification. However, the system is still rigid, with far too many officials involved.
I asked a social housing association whether it was going to change its proportion of four-bedroom houses to two-bedroom houses because of a change in demand as a result of the abolition of the spare room subsidy. It laughed, because the cost of changing the planning permission is so enormous.
I can buy an Apple iPad and get it made in China to my exact whimsical specification with my name printed on the back cover and get it delivered to me in London in less than a week. I can get a brand new Jaguar in any colour and specification I desire in less than eight weeks. Supply quickly meets demand. Why cannot the same be true for planning permission amendments? Surely this, along with numerous and burdensome taxes, is the real reason that we cannot build the homes we need to.
My Lords, I declare an interest both as the chair of Housing Voice and as a vice-president of the LGA. I thank my noble friend Lady Ford for starting us out by looking for a new strategy in this area.
I have a few points to make. First, on terminology, as the noble Lord, Lord Shipley, said, affordability applies in all sectors of the housing market; it should not be regarded as synonymous with social housing. Moreover, a good bit of social housing is clearly not affordable for those who occupy it at its current level of rents, otherwise we would not have seen the huge increase in housing benefit which, in terms of government resources going into housing, is clearly a misallocation compared with actually increasing the supply of housing.
Secondly, I can hardly complain that the Government have been negligent in coming forward with new initiatives, apart from their very early cut in the affordable and social housing budget, which was plainly disastrous. They have come up with numerous schemes, from the New Homes Bonus, which admittedly the Select Committee down below said has not worked, to First Buy, Help to Buy, the NewBuy Guarantee scheme, mortgage guarantee, Right to Buy and so forth. There have been a whole lot of schemes but they have been piecemeal, inadequate and, in many respects, misdirected by emphasising demand, not supply. In terms of geographical balance, they have helped more to overheat the market in the south-east than to spread into the regions and rural areas.
I am not here to proclaim that the Labour Government did it any better. Frankly, we have all failed so let us have a political consensus that that failure should be driving us to seek a new approach and a new strategy. We also need to recognise the sheer size of the problem. I was looking at some of the statistics on household growth. The growth of households has slowed down a bit. Compared to the reference by the noble Lord, Lord Borwick, to divorce and split families, kids staying at home because of the economic recession has increased the size of families, so that it has slowed down a bit. Even on those figures, it is clear from the Cambridge study that we need 240,000 new homes to meet the new households being created—almost twice what we are building. We need to create a million new homes in the next five years, and that process needs to go on until 2031—a 20-year programme. That is a major strategic commitment and we do not have the mechanism to deliver it. We do not have the vehicles for delivering it and need to reinvent those vehicles.
One of those is the role of local authorities. I am simply repeating what the noble Lords, Lord Shipley and Lord Best, said. The most immediate role is for local authorities to be able to borrow and engage in developments on their own, with housing associations and the private sector, in different ranges of housing. Unless the cap is raised—we welcome £150 million, but it does not go very far—local authorities which are the most obvious ones to deliver at least part of this massive total will not be able to do so. Almost everybody in the housing world agrees with that except Her Majesty’s Treasury. Unless we raise that figure, we will not be able to deliver the beginning. We may need to do a lot of other things as well, but at least let us start with that.
My Lords, first, I declare my interests both as chairman of the National Housing Federation and in various projects and businesses trying to deliver the housing needed. As has also been referred to, I am involved with a government project to supply planning guidance.
I very much welcome what the noble Baroness, Lady Ford, said. There was nothing with which I disagreed. In fact, there were things that I strongly champion. I just want to highlight three points in very little time. First, there is a myth among some that the demographic data showing the need for housing are somehow a finger in the wind. A local authority planning officer once said that to me.
However, with 20-year plans, we are not talking about housing for people who are not yet born but for the people who are born—not only the people of the baby boom of the 1990s and beyond who will be coming through soon, but the 3.3 million adults between 20 and 34 who, as the Financial Times highlighted today, are living with their parents. That is an increase of 669,000 since 1996 without any increase in that population age group. These people are living at home because they cannot afford to move out—even their own parents say that, when asked—and, as a father of three young children, it worries the heck out of me.
Secondly, there is a capacity issue in delivering the numbers we need. The large housebuilders have a grip on developable land through land options but, on their business model, they do not have the capacity to increase delivery, however much they and we might want it, because their business model will not allow such a growth in numbers. We have seen that historically. It is simply a fact.
I passionately believe that our country’s most successful social enterprise sector—the housing associations—has that capacity. It has it through the housing it already has and through its experience of delivering a not-for-profit, social purpose model. The housing association sector believes that some 2 million more homes will be needed between now and the early 2030s. This includes a mix of affordable homes to rent and homes for sale. That capacity can be unlocked by liberating the sector and giving it greater flexibility. We must allow that to happen, otherwise we will be unable to deliver the homes.
Most of all, we will be unable to deliver the homes without the land being made available. As long as we try to push denser and denser, smaller and smaller, and less and less attractive houses around our attractive historic communities on to the land on which people want to walk their dogs and to look at out of their window, the more and more unpopular it will be and the harder and harder politically.
That is why I passionately believe in freeing land for new communities, recreating the deal that said you can have green belt around existing communities to protect them but, in return, you must create new communities for those who so desperately need a home.
My Lords, I also pay tribute to my noble friend for bringing this debate to the House today and for her work in this field. The last time she initiated such a debate in this House we had a brief word afterwards about the importance of looking at the big picture, and I am pleased that she has returned to that issue as the main part of her contribution today.
I have also been looking for signs that the Government might understand and appreciate the importance of the strategy outlined by my noble friend Lady Ford. In March last year, I was pleased to read that the Prime Minister had called for a consultation on the appropriateness of the principles of garden cities with high potential for growth. This consultation may have floundered a little from a lack of support in certain sections of the Conservative Party—I do not know; perhaps we will hear more about that today—but, more recently, the Deputy Prime Minister has signalled his support, although using different language and with the emphasis on alternative locations. The Mayor of London, in admitting the failure of housing policy over the years, has called for a kind of new town, or new towns, contribution around the perimeter of London which might house some 80,000 to 100,000 people per conurbation.
We expect the Wolfson report this year to give guidance on the development of new towns and, most importantly for me, the Labour Party’s Lyons review of housing will, we hope, form the basis of a sound policy for the next Labour Administration.
On the longer, wider view, housebuilding and affordable homes can be achieved only by looking seriously at the new town and garden city approach, with populations of about 100,000 people. There is no other way possible to meet the needs of the future. In broad terms, we should look at the post-war model of development corporations, with the compulsory purchase of land at agricultural prices and with the planning uplift being passed on to the people. That was a fantastic model which worked really well after the war. Thirty-two new towns were created in this period. Imagine what Britain would be like today without those new towns if that generation had not made the right decision then.
In the period ahead in the 21st century, we can adapt the principles that were taken forward at that time, taking advantage of the large number of new possibilities in terms of design, materials, transport, communities and democratic involvement that people at the end of the war did not have the opportunity to benefit from. There is a great opportunity for us to bring this idea forward. We can bring an end to the current piecemeal approach of a developers’ free-for-all, planning as an afterthought or a great difficulty, and identical houses plonked miles from amenities of public transport—all the kind of things that we have seen in the past 10 to 20 years and the antithesis of what we really want, which is affordable and sustainable housing on a long-term basis.
My Lords, along with other noble Lords, I thank my noble friend Lady Ford for the opportunity of returning, however briefly, to the vital issue of the increase in the supply of housing, particularly affordable housing, provided for households whose needs are simply not met by the market.
That we have a housing crisis is beyond dispute, with home ownership falling and out of the reach of many, rents at record levels and rising faster than wages, 5 million in the queue for social housing, homelessness rising every year since this Government came to power, families in bed and breakfast accommodation at a 10-year high and rough sleeping up by a third. We should probably acknowledge the plethora of measures that the Government have initiated, but these cannot mask the paucity of delivery and lack of progress. Just 42,380 affordable homes were provided in 2012-13—a decrease of 26% on the previous year. In the social rented sector, just 24,550 were provided—a decrease of 36%. Overall, there were only 135,000 total completions, in comparison to the 219,000 delivered in 2006-07. Even that, of course, was substantially below the more than 350,000 achieved in the mid-1960s, when Harold Wilson was trumping Harold Macmillan.
Our briefing pack includes TCPA estimates of housing need and demand through to 2031, which extend the official projections. Whatever challenge might be made to these figures, they must surely show the broad order of magnitude of what is needed: just fewer than 5 million newly arising households in England, of which 1.5 million are estimated to be in the social sector, with a concentration in London, the south-east and the east. It will be interesting to see whether HS2 will reorientate some of that, let alone the prospect of an airport in the Thames estuary. This amounts to an annual increase in the order of 243,000, including 78,000 in the social sector—a huge challenge to any Government.
What would we do? For a start, we would be looking to build at least 200,000 homes a year by 2020. We continue to support the IMF in urging the bringing forward of £10 billion of infrastructure spending this year and next. A housing commission chaired by Sir Michael Lyons is drawing up a road map to help delivery of our ambition by looking to: reform the housing revenue account to produce a more flexible system that enables councils to build; give local authorities that want to expand a right to grow, with access to a fast-track process to resolve disputes with neighbours, something which is frustrating housing development; give councils proper compulsory purchase powers to tackle land hoarding; and ensure that when public land is given over to housebuilding, a proportion goes to smaller firms and custom builders. We also plan to offer a package of incentives to support a new generation of new towns and garden cities. That is perhaps where we can build the cross-party consensus that my noble friend Lady Ford rightly promotes. Whether there is a consensus or not, we would certainly abolish the wretched bedroom tax. Under the previous Labour Government, nearly 2 million more homes were built in England, including 500,000 affordable homes. More needs to be done next time.
My Lords, I am grateful to the noble Baroness, Lady Ford, for securing this debate. As she says, the question of how best to meet our housing needs is one of the most significant facing the nation today. I am very conscious, through listening to the contributions today, just how great the expertise and experience is among noble Lords. I am grateful to the noble Baroness, Lady Ford, and the noble Lord, Lord Whitty, for acknowledging that as a country we have failed to build enough homes for decades.
This is not a new issue but it was made worse by the financial crisis of 2008, with housebuilding collapsing to the lowest peacetime levels since the 1920s by the time the previous Government left office. It is important to stress that the collapse in building led to the construction industry suffering greatly in the aftermath of the crash. It is not surprising that it has taken time for the smaller construction companies in particular to respond to the return to growth and for us to get back a position where the industry has both the capacity and the confidence to respond. Housebuilding is now back to 2007 levels but that has not happened by accident. The Government have taken the necessary steps to tackle the situation and turn things around.
Before I go into greater detail on affordable housing, I will talk more generally about overall housing supply. I acknowledge the points made by the noble Baroness, Lady Andrews, and my noble friend Lord Borwick. We have reformed the planning system: we have simplified it and handed responsibility to local authorities to set their own housing requirements. The framework is clear that local authorities should plan to meet their full housing needs for both market and affordable housing. My noble friend Lord Borwick made quite a detailed point about greater flexibility; he was kind enough to give me advance notice of that and I will continue that dialogue with him outside the Chamber.
We are also providing significant finance for projects that cannot proceed without it and we are helping buyers who can afford mortgage payments but cannot afford the sorts of sums now necessary for a deposit. We are making progress but of course we still have a way to go. At this point I will respond to the topic—different noble Lords describe it in different ways: some people call them garden cities, some call them new towns—raised by the noble Baronesses, Lady Ford and Lady Andrews, my noble friends Lord Horam and Lord Taylor, and the noble Lord, Lord Sawyer.
The previous Government pledged what they described as 10 “eco-towns” but of course none of those was built. This Government are clear about our approach, which is to support locally led development through the large sites programme, which aims to unblock barriers to delivery of such sites through partnership working, provision of capacity funding to local authorities and access to capital funding through the £474 million local infrastructure fund. Under this programme, some success to date has led to 69,000 new homes already being “unlocked” in places such as Cranbrook, Sherford and Wokingham. In the Autumn Statement we committed a further £1 billion to the local infrastructure fund to support communities in delivering their housing aspirations over the next six years, and we will be publishing a prospectus inviting local areas to come forward with bids this spring.
To be clear, we most definitely support increasing the supply of homes but this must be locally led. In response to the noble Baroness, Lady Andrews, we have no plans to impose new developments on communities and, contrary to recent reports in the press, we have not been working on secret plans to build new towns in Yalding, Gerrards Cross or any other areas. I noted what the noble Baroness, Lady Ford, said about the Olympic Park. That has clearly been a great success but it is very different in its concept because it was built to serve the Olympics and its national importance justifies the greater involvement through the major infrastructure regime in a way that we do not believe the residential development does.
Let me turn specifically to affordable housing. We need more affordable housing. It is worth pointing out, particularly in response to the points made by the noble Lord, Lord McKenzie, that more council housing has been built in the first three years of this Government than in the 13 years of the previous Labour Government. But council housing is only a small part of the overall picture. Almost £20 billion of public and private funding is being invested in the Affordable Homes Programme over the four years to 2015. This will deliver 170,000 homes, nearly 100,000 of which have already been completed. These homes are being provided where they are most needed and in a range of areas. I say in response to the right reverend Prelate the Bishop of Ripon and Leeds that around half the affordable homes provided in 2011-12 were in rural communities. He is right to identify that need and we are responding to it.
From 2015, another £23 billion will be invested to deliver 165,000 more affordable homes by 2018. The Homes & Communities Agency will publish the prospectus for this latest programme shortly, inviting bids for funding to deliver that affordable housing outside London. As a result of all this work, we will achieve the fastest rate of affordable housebuilding for at least 20 years. Not only did the previous Government build very little but they oversaw the shrinking of the stock of social housing by 420,000 homes. My noble friend Lord Shipley mentioned Right to Buy and the one for one programme. I understand the point that he makes, but it is worth emphasising that that policy of replacing homes sold under Right to Buy is something that no other Government have done.
However, increasing supply in time of difficult economic conditions means that we have to look at different ways to attract investment. Our affordable housing guarantees programme lets housing associations use a government guarantee to secure private investment at more competitive rates. As part of this, we recently agreed a new deal with the European Investment Bank which will release £500 million to deliver up to 4,300 homes. We also announced the first eight housing associations to receive funding through the guarantee programme.
We believe that councils also have a role to play in building homes and have announced an independent review of councils’ role in housing supply. As has been acknowledged by noble Lords today, we have already increased the amount which councils can borrow to build homes in collaboration with housing associations.
Important points on this were raised by the noble Lord, Lord Whitty, both today and in a debate that we had last week on the local government finance settlement, and by my noble friend Lord Shipley. The noble Lord, Lord Whitty, spoke last week about ensuring that councils are able to take advantage of some of those housing guarantees so that they are part of the route to increasing supply—the right reverend Prelate also referred to this today. The noble Lord felt that local authorities were barred from being able to take advantage of some of these joint ventures and the source of funding. That is not true. Some councils are already doing just that, and are working with partners, housing associations and developers in joint ventures on housing for sale, private rentals and sub-market rentals. In the new scheme announced at the Autumn Statement to which I have just referred, we expect to see partnership working with housing associations through those joint ventures.
On the increase in the borrowing level, it is important that we do not underestimate the dramatic effect of the Government’s self-financing reforms. The point is not just this recent increase in the amount of borrowing but the way we have now made it possible for 165 council landlords to do this, with new freedom to plan their housing businesses for the benefit of their tenants and local communities. They now have that £2.8 billion borrowing headroom and the possibility of planning longer term than they were ever able to in the past.
Clearly, this is about not just supply but also making best use of existing stock. Social housing is one of our most precious resources. That is why we have introduced much greater flexibility into the system so that social landlords can make the best use of their holdings. Councils now offer shorter fixed-term tenancies as well as the traditional lifetime offer, meaning that they can better respond to families’ changing circumstances. Councils also now have much greater freedom to decide who qualifies for social housing.
The noble Lord, Lord Best, referred to the Hanover@50 report. I am not familiar with it but will make myself so in light of his raising it today.
Increasing supply is, as we have all acknowledged, the most important way to maintain affordable rates of rent. Our affordable housing programmes provide hundreds of thousands of homes at sub-market rents. There is much to do to tackle the national shortage of affordable housing. Not only do this Government have a comprehensive plan to turn this situation around but our plan is working. Working together with housing associations, councils and housebuilders, we are overcoming the problems we inherited and are set to deliver the homes the nation needs to house everyone properly in future.
Question for Short Debate
My Lords, dementia is such an important issue that I am pleased to have the opportunity to focus attention on it tonight, at a time when it has been very much in the news. My belief is that people need to be informed. Without doubt, a degree of stigma attaches to the diagnosis of dementia. For this reason, many people prefer to use the word “Alzheimer’s” rather than the wider term “dementia”. I have found this to be the case for years and we need to ensure that that attitude changes. No stigma should attach to any medical diagnosis of a condition that the person did not bring upon themselves, be it dementia, epilepsy or cancer.
I am old enough to remember clearly when, in the 1950s and earlier, people would say when they heard of someone they knew being diagnosed with cancer, “I wonder what they did to get that”. The attitude was that cancer was a punishment for the wicked only. Over the years, people have had a much greater understanding of diseases and the internet has made it easy for them to learn about cancer and its causes. Because cancer is so widespread there has been marvellous research in the subject. Information has created an awareness of the great importance of early diagnosis as the best hope of a cure. Now people know that hereditary genes may cause additional vulnerability in some people.
Just last week, I read an interesting article on a change of diet being the way to avoid dementia. It recommended a high-fat diet, which has always been deplored in the past. It stated that all white bread, pasta and sugar—in fact almost all carbohydrates—should be eliminated from one’s diet, that gluten-free products should be used and that, in following the “five a day” health advice about fruit and vegetables, only certain fruits of the low-sugar type should be consumed. This new diet seems as extreme as the low-fat diet was, but in reverse. At present, these are the views of Dr David Perlmutter, a neurologist. The article in the Times on 18 January sets out much more detail about them.
Reading constantly conflicting dietary reports is not good for anyone; what we need is solid evidence-based research. At present, it is not possible to know who will develop dementia. It is no respecter of persons and can strike the most brilliant people. Research is essential to determine what measures can be taken to prevent dementia from developing and to control the progress of the condition.
In the early stages of dementia, often a person is aware of their mental deterioration but, as the condition progresses, they can lose all awareness. Usually, short-term memory goes first. There are therapies that can be applied to bring back happy memories from long ago that give pleasure to patients.
In the Daily Telegraph of 28 December last, there was a report to the effect that dementia patients were bedblocking to the extent that urgent cases could not be admitted to major hospitals. There were other very distressing press reports, for those who have relatives or loved ones needing special care, of horrible and degrading attacks on such patients, who could not defend themselves.
Solutions are needed. I think that it is time for us to rethink some of the treatments and facilities that we have thrown out of the NHS. More daycare provision would allow patients to enjoy those hours in a safe and caring environment while providing necessary relief for carers. Respite, on a daily or longer-term break basis, is essential for relatives and carers to enable them to fulfil that very important role.
Cottage hospitals were ideal for dementia patients needing in-hospital care but who did not have urgent or immediate need for acute services. Both day centres and cottage hospitals require full-time nursing and genuinely caring staff. Those staff filled a need and were a valuable part of the NHS. Dementia cases need genuinely caring support.
I support the view—and the changed stroke care in London has proven this—that we need highly specialised centres where essential, urgent care can be provided for some life-threatening conditions. Such centres, which are being developed, should be used for cases in need of immediate and urgent high-intensity care, and the patient should remain in until ready to return home or to go to an appropriate intermediate-care facility.
Nursing is an essential part of any patient’s treatment at all levels. I think it is splendid that nurses now can obtain the highest qualifications, and I am a strong supporter of nurse practitioners. Specialist nurses in whatever field are invaluable to patients, consultants and the NHS. However, I remain convinced that it was a mistake to insist that all nurses must have A-levels and obtain full academic qualifications. The loss of the SEN qualification has done great damage. Some of the best nurses I have known—and I have been involved in most levels of the National Health Service—could never have gained sufficient A-levels for university entrance.
When I have taken part in health discussions at the Commonwealth Parliamentary Association international conferences, I have asked what other countries have done in nurse training. There is fairly wide agreement that nurses should be able to train at various levels to meet patients’ needs. Nurses with high clinical skills and qualifications are needed, but so, too, are less qualified but capable, compassionate, caring nurses who are willing to carry out the most mundane tasks where there is a need and to treat people as valuable human beings, not just cases.
In most Commonwealth countries, they have nurses train to the top level, but when they brought in academic degrees for nurses, they retained that intermediate level of nursing which we call the state enrolled nurse. I am convinced that the Government should be liaising with the nursing profession to look into the issue of our need at that intermediate level. It is no good saying that people can become “care assistants”. Even the talk of registering care assistants has not moved people in a way that would make them proud to bear that title. People consider it an honour to be called “nurse”, and so it is, but there can be nurses and nurses, and titles could be appropriately chosen to make clear those who had a degree and others.
Dementia can cause isolation as the patient becomes cut off from reality. It is only at the early stages of the condition that the patient is able to realise that they are losing contact with reality. Some treatments can delay progress, but, at present, nothing can turn back the clock. It is very hard for loved ones to see progressive dementia in a friend or relative, and it can be a great test of their patience, as often the sufferer becomes increasingly repetitious or even difficult.
The number of people likely to suffer from dementia is projected to double over the next 30 years, so there will be further pressure on services. The Local Government Association states that there will be a funding gap by 2020. It cites the Greenwich advanced dementia service as a new model of care for people with advanced dementia which, to date, has supported more than 100 people to stay in their own homes and is saving up to £265,000 a year on reduced care home costs and hospital admissions.
Dementia patients are more likely to die or suffer an injury than other patients. A study of more than 17 million hospital visits found that patients with the condition had far higher mortality rates, longer lengths of hospital stay and a higher likelihood of readmission than other patients. They are also three times more likely to suffer a fall while on a ward than other patients. There were 380,000 such incidents in a year.
As with so many health conditions, accurate, up-to-date and well presented information for patients, their families and friends is vital. Specialist charities can help with providing just such information and reassurance to support the information received from the health professionals. Today in my GP’s waiting room, I checked the large number of information leaflets for patients. These covered almost everything but there was nothing on dementia.
However, my doctor told me that the practice has put people in touch with the Contented Dementia Trust, which has proven to be of great help to carers. Often, dementia can be associated with changes in temperament, with some sufferers having spells of violence and others lengthy times of apathy. Carers find it valuable to know that these situations can arise and how to deal with or prevent them. It is an important point that these specialist charities, of which the Contented Dementia Trust is one and the Alzheimer’s Society is another, can help with providing such information and reassurance.
Marvellous progress has been made in healthcare and people are living so much longer that dementia, usually associated with ageing, is becoming a major issue. Florence Nightingale stressed the importance of the need for a patient’s cleanliness and comfort; to those, I would add caring. These essentials remain the same today. We must do more to see that genuinely caring help is provided while working towards having greater understanding, better information on the condition and a promising future due to continuing and developing research.
I thank all the speakers tonight, who can make a real contribution to the debate on this important issue. Research is the only real answer. Until we can fully establish the cause of dementia, we cannot develop methods of prevention or means of curing the condition. The Government can encourage research and increase awareness and understanding of the crucial need for genuine caring for dementia cases, and they should do so.
My Lords, I thank the noble Baroness, Lady Gardner of Parkes, for introducing this timely debate. I have a personal interest in participating. My sister has recently been diagnosed with suffering from Alzheimer’s disease and has dementia. I spent the summer holiday and the recent Christmas break with her, trying to assist. My sister is a retired teacher and a widow, living alone in Wiltshire. Her late husband had also been a teacher. He was a former county councillor and had been chairman of the local parish council. My sister had also been active locally. The result is that she has had a great deal of local support, which has been very valuable in her current circumstances. The local Alzheimer’s Society has been very helpful and the county council has a mental health committee, which has been of assistance. An organisation called Carewatch has also helped.
While I was there in the summer, I arranged for people from those organisations to call and see her regularly. I also organised for a lifeline to be installed: an alarm system with a wrist-held alarm, which was to be rung if she needed to do so. The very nice people who call to see her regularly make sure that she takes the medicines prescribed for her and that she has the food she needs. She has very good neighbours to help, who arrange to drive her if she needs to go out. A neighbour also deals with the garden for her. I saw local solicitors and, through them, arranged for a relative to take on the responsibility of power of attorney so that she does not have to bother about her financial affairs, which are in good order. She has a pension, a widow’s pension and an attendance allowance. It is therefore possible for her to pay for the services that she needs. That is important, for any disability is expensive, and this is no exception. It is also expensive if you need to pay for assistance. The procedures in relation to power of attorney are of course extremely complicated, as well as expensive, and there is no reason why the Government should not intervene to make the arrangements less so.
I realise, of course, that not everyone is fortunate enough to have this kind of support. It is difficult, I am sure, to come to terms with what happens to people who have this disease. It was hard for me. My sister had had a successful career. When I saw her after she had become ill, it was difficult to cope with what had happened. She would sit in her well equipped kitchen and not know what to do. We saw representatives of the Alzheimer’s Society; she told them that she was frightened of the microwave, and they told me that I should not try to train her to use it again. She could not write. I wrote for her if she needed to do any writing, and got her to sign. She did not use her computer, of course, and had not done so for a very long time. Many people that she knew she no longer recognised. Gradually one worked out how best to arrange and organise living for her. The support of local people is invaluable.
That is why the campaign by the Alzheimer’s Society is so important. It understands that people with this illness are best looked after at home in familiar surroundings. That is what we have tried to arrange for my sister. She is able to lead a fairly normal life because of the support of friends, family and local organisations. Through the campaign that the Alzheimer’s Society has now embarked upon, I hope that we shall be able to do this for other sufferers. Many people who are alone and do not have this local support are, in my view, badly in need of assistance of the kind that the noble Baroness made very clear in introducing this debate.
I am very grateful to the noble Baroness for giving the opportunity to debate this awful disease, but it can be dealt with if there is local support and if people understand what they are attempting to deal with. I hope that today’s debate will be a step in that right direction.
My Lords, I congratulate the noble Baronesses, Lady Gardner and Lady Turner, on their excellent and very moving speeches.
I start by saying that I have rarely been as proud of being British as I was recently when this country—or, rather, the Prime Minister, because of his personal commitment—secured here in London the G8 summit on dementia. That was an enormously important achievement. I say that with real pride because I chair the All-Party Group on Dementia. We are an extremely active all-party group that has produced a lot of reports on many areas of interest. We have looked at the fact that dementia patients stay longer in hospital when they go in for a fractured femur and we were part of the campaign to reduce the use of anti-psychotics. We have had many quite successful inquiries and policies have radically changed because of the work of colleagues on the all-party group. However, there is still a huge way to go.
Dementia is certainly the new cancer, as the noble Baroness, Lady Gardner, said. It is not very long ago that you could not really talk about it. The interest in, and commitment to, doing something about dementia now is really important and it is excellent that we have got that far. There are still, however, many problems. Dementia is a disaster if you are suddenly diagnosed. You have no idea how to cope with the diagnosis or where to go for help. You are absolutely struck by your inability to move forward. However, it should not be seen in that way because a lot can be done. Of course we do not have all the research that needs to be done—the G8 made that clear. As a result, however, some very hopeful research work is being undertaken in the United States and the money is beginning to flow in as well. But there is still a long way to go on research.
In this debate we are looking at what has to be done now to alleviate the situation of people when they receive a diagnosis or even before, when they suspect, because of memory loss, that something is going wrong. It is a progressive and a terminal disease which, at least at the beginning, attracts social care funding and not health service funding. Over much of their life course many of those who have the disease will experience problems in getting financial help so that they can live adequately. It can be a disaster and we need to do something now. The noble Earl is doing a great deal to ensure that the Care Bill, which has now gone to the Commons, will help many people with dementia. However, a huge amount needs to be done.
We have to see dementia as one element of the comorbidities that many older people face—and it is usually older people, as the noble Baroness said, who get a form of dementia. We have to concentrate on the fact that if people have dementia, the other conditions from which they suffer are sometimes ignored, or vice-versa. Dementia also has to be seen in the light of the huge stigma that still surrounds its diagnosis. For many people, even GPs, it is better to ignore it than to diagnose somebody when they do not feel that there is a great deal they can do to help. Many people try very hard to forget that it is happening, and if they forget it is happening, their quality of life will be reduced enormously.
Much can be done. We have to take into account that local commissioning is an excellent way of improving the situation as long as it works properly. I chaired a meeting this morning with commissioners to look at what can be done to improve the lives of people right at the beginning when they know that something is wrong, before they are diagnosed and immediately afterwards. As soon as they feel that there is some memory loss or they begin to worry they need to get help and not wait for a diagnosis. They need to get help and start the process of making a plan of action and support for that person, the family and the wider community where possible. Things can be done to improve the quality of life.
We know that much can be done in preventive care, particularly with vascular dementia. A change in lifestyle can help a great deal to delay the worst aspects of that dementia and, indeed, some of the others. However, not all can be helped in that way. What is necessary then is the coming together of support mechanisms—that is, people—who can really help.
We have to be certain that the good measures in the Care Bill are introduced so that we have a co-ordinated plan of action for anybody who is diagnosed eventually with some form of dementia. The right now of carers as well as of patients to a proper assessment leads to action, and this is not easy. It is not easy for local authorities and not easy for commissioners in healthcare, because there is a shortage of funds. However, we have to find the funds because dementia is a priority. It is a terminal disease, so it is extraordinary that it gets primarily social funding from local authorities rather than health funding. We have to integrate. That is what the Care Bill is aiming to do, so we have to give it our total support.
Memory clinics need to be the first place that people go to when they feel there is something wrong. That is when the support services need to be brought together to help somebody to find their way through the maze of services. They need to inform themselves about them and make sure they are available to them. That is where other people in the local community can do so much, as the noble Baroness, Lady Turner, said. When there are good services around that can be brought in early, we can get this as right as possible. Even before the memory clinic people have to start recognising that something is wrong, and then you need to have a co-ordinated approach to care. That is essential. We need to have a navigator/co-ordinator who can go in and advise that person and that person’s family how to get the best care that is available locally so that their quality of life does not deteriorate. When they are diagnosed, this is even more important, so we need a navigator/co-ordinator of all the services. The services need to be brought together so that they are not difficult to find.
We need people to understand that post-diagnosis, life can be very good. One of the participants at the meeting with about 30 commissioners this morning was an early-onset dementia patient. He was diagnosed at the age of 49—10 years ago, I think. He was still perfectly capable of taking a very active role in the debate we were having because he had the right support around him all the time. That is essential. You need one place where all the services are available, you need one navigator/co-ordinator to provide those services for somebody and you need to convince that person and the carers that life can be good for a very long time. We need to have contact with all the advisers straightaway, one service co-ordinator and a strategic service integration scheme. That is key. We need one location, one centre where all the services are brought together and, rather like when you have a baby, you need to have a list of the services given to you so that you know who to ask about everything. We can do that.
We can embed personalisation in what we do. We can look to the groups that really cannot cope, and which have no idea of local services, and to our minority groups, some of which do not even have a name for Alzheimer’s or dementia. There are huge problems there. We need to focus on those people. We really need above all to listen to, communicate with and involve people with dementia every step of the way because they have not lost their humanity and their ability to be part of society. We have to trust them to know what they need and want and bring the services close to them so that they can benefit from the many important new ways of delivering services which will be enhanced, I hope, by the Care Bill when it becomes part of our legislation.
My Lords, I most sincerely thank the noble Baroness, Lady Gardner of Parkes, for this debate and acknowledge the importance of the subject and the skilfully drafted Question that frames our debate.
I have no doubt that the Government are determined to address the issues of dementia. When I was a Health Minister in the 1970s, serving Prime Ministers Wilson and Callaghan, one scarcely heard the word “dementia”. The NHS then was a battleground between administrators, unions and consultants. A royal commission was hopefully deployed; the International Monetary Fund moved in, and there was competitive recruitment between unions. Ministers were moved out or sacked, and there were endless resource-allocation working parties. London was accused of gaining too much of the available moneys.
The question of the noble Baroness, Lady Gardner, is as strategic as any that faces administrators and politicians who now give leadership to the nation. The scale of the challenge of dementia socially and financially in the future is truly massive. The amount of money available is inevitably insufficient. The amount of research needs to be expanded, if not the quality. Already, our social services and NHS are stretched almost to breaking point. We have on our hands, in effect, an emergency. Longevity guarantees that this massive national challenge will not go away.
In all of this, there is a shining light: the Alzheimer’s Society, one of Britain’s greatest and most relevant charities. It stands ready to assist and advise countless families whose happiness is blighted by the emergence of dementia in a loved family member. I have the privilege of being a dementia champion in Wales and, at the grass roots of community, I have seen the good done by ordinary people for those who are at their wits’ end struggling to cope with the challenges of domestic change. As president of the society in north Wales for some 20 years, I have seen the enthusiasm of volunteers and their assistance, encouragement, organisation and fund-raising—all of these positives are constant and most effective. These activities generate friendship, teamwork, humour and even expertise though training as a friend. I am sure that the Alzheimer’s Society and its headquarters will continue to harness this great reservoir of energy and goodwill at the grass roots.
The society has a deeply committed communicator as chief executive, and a wise, experienced chair in Dame Jill Morgan. My hope is that the Minister will listen carefully to the demands and advice of the Alzheimer’s Society’s leadership. The Minister is, after all, accessible and open-minded in his dedication to the health service. However, the national response to the dementia emergency will be at its most positive at the grass roots, by mobilising the volunteer and by appealing to the generosity, practicality and familial loyalty at local level. Facing up to the national challenge of dementia will require more than the findings and promulgations of the Westminster and Whitehall village.
There are exemplary approaches being made in my own country of Wales. The director for Wales, Mrs Sue Phelps, called a conference in Wrexham, north Wales, recently. It was packed out by an army of youthful volunteers, family members, and dementia sufferers. The society’s Flintshire office, led by Mrs Baldini, organised this hearteningly successful gathering in the principal town of north Wales. We heard of best practice. We had professorial insights and examples of families coping. It was an inspirational gathering, and pointed to—as the noble Baroness, Lady Gardner, seeks—the support available.
Two central questions emerged. First, what are the Government doing to increase the numbers of those receiving formal diagnosis? I hope there may be a reply from the Front Bench tonight. Secondly, what support is on offer for people following a diagnosis? If the Alzheimer’s Society is a shining light, the great European aerospace company, Airbus, is a white knight extraordinaire. It has made the Alzheimer’s Society its preferred national charity and it is on course to raise, in this calendar year, £220,000 or more for responses to dementia. The able charity organiser is Mr Phil McGraa, based in north-east Wales at the giant, world-class aerospace factory at Broughton, which is where I live. More than 6,000 women and men work at that plant; they are big-hearted, supportive and imaginative in their financial and organisational support. They are great people; they are skilled and caring citizens.
Airbus and the north-east Wales office of the Alzheimer’s Society joined forces to organise a giant memory walk for the purpose of fundraising for dementia sufferers. The walk took place in perfect, warm, sunny weather on an immaculately curated racecourse, Bangor-on-Dee, with superb views of our Welsh mountains. There were no horses, but many hundreds of Airbus workers, volunteers and families in the walk. This mass memory walk was a thundering success, with the Airbus sponsor, the Alzheimer’s Society, volunteers and countless families all co-operating at the grassroots. I should say that this racecourse does not have an all-weather surface.
Quite simply, Airbus is magnificent. It exports billions of pounds of product, outperforms its great competitor, Boeing, and raises tens of thousands of pounds for dementia suffers. It has encouraged families with dementia sufferers in their midst in the most practical way, by being alongside them. I was fortunate to be on the memory walk, and it was heartening to meet a family of 17, and all of them were working for who they knew as their granddad. The support services on the walk were partly provided by high school pupils from Castell Alun High School, who showed great promise on that day.
My message to the Minister and to the Alzheimer’s Society is to invest in the localities and to use the great reservoir of experience, good will and practicality of all the volunteers. After all, they—the ordinary families—experience the distress and bewilderment when this dreadful condition enters the family. Every high school with involvement in that community could begin what might become a lifelong commitment to helping dementia sufferers. After all, the future years will see much more domiciliary care for dementia sufferers, and perhaps our youth will be able to tackle this emergency.
First, I refer noble Lords to my health interests as chair of a foundation trust, president of GSI and consultant and trainer with Cumberlege Connections. I, too, would like very much to thank the noble Baroness, Lady Gardner of Parkes, for allowing us to debate this important issue tonight. I also echo the tribute paid by my noble friend Lord Jones to the Alzheimer’s Society, both for the work that it does and for the very helpful briefing that I have received tonight.
If we come back to the question put by the noble Baroness, Lady Gardner, she is surely right about the important focus on improving information to the public, and trying to get over some of the stigma problems to which she referred. She referred to cancer—and I remember when, in the 1950s, people would not actually use the word “cancer”. It was almost hidden away. Clearly, there are issues with dementia, which we must tackle with enthusiasm. My noble friend Lady Turner spoke eloquently of the terrible impact that dementia can have on loved ones.
On a more optimistic note, both the noble Baroness, Lady Greengross, and the noble Lord, Lord Jones, said that much can be done. However, the problem is that often people do not know that that is the case. A major problem is the lack of information in many cases when a diagnosis is made. That, of course, assumes that a diagnosis is made. My understanding is that diagnosis rates are currently only 48% in the UK, and vary widely across the country. This suggests that more than half of people with dementia do not receive a formal diagnosis and therefore do not get access to vital treatment and support. How does the noble Earl think that we might improve diagnosis rates? Will he also consider the Alzheimer’s Society’s priorities for improving post-diagnostic support, to which my noble friend Lord Jones referred? That society’s priorities are that health and care professionals should provide post-diagnosis information packs, that information must be accessible and useful to people with dementia and not just available digitally—a very important point—and that commissioners must also consider the needs of carers of people with dementia in their local plans.
When a diagnosis is made of any condition, not just dementia, why is the information provided by societies such as the Alzheimer’s Society not automatically given to patients? It has long been a puzzle to me why the health service in particular finds it so difficult to give out this information. Any help the noble Earl can give in that regard would be appreciated.
Will the noble Earl say a little more about research? A number of noble Lords have referred to this. Research into dementia has improved but there is a long way to go compared with research into other diseases. I hope that the noble Earl will be prepared to comment on his own department’s policies on this issue and on the influence of the Medical Research Council in this area.
My noble friend Lady Turner said that people with dementia are best looked after at home. That must surely be right. However, the noble Earl will know that at the moment many patients with dementia are in National Health Service acute hospitals. Some people use the wretched term “bed blocking”, which I think is very unfortunate. However, there is no doubt that one of the problems for accident and emergency departments is the difficulty of discharging patients with dementia once they get to hospital, and, of course, those patients often suffer from co-morbidities. Has the noble Earl looked at the report of the Royal College of Physicians which suggests that, rather than having specialised hospital consultants, we need general physicians who can treat patients with co-morbidities? This is very relevant to people with dementia. Will he write to me on that issue if he cannot comment on it today?
The noble Baroness, Lady Gardner of Parkes, referred to nursing. I very much agree with her that in retrospect the phasing out of state enrolled nurses was an absolute disaster. I am afraid that it was done at the behest of the nursing profession. It is not satisfactory that we now have only one tier of registered nurse. I will not go back to the issue of healthcare assistant regulation, although rumours reach one of a Bill that will allow us to debate that again at some point in the near future. However, the substantive point the noble Baroness made was that we need to look at nurse training and, I think, healthcare assistant training, in this area.
We can tackle this issue only in a wider context. My noble friend Lord Jones said that the Question posed by the noble Baroness is a strategic one. I very much agree with that. The noble Baroness, Lady Greengross, talked of the need, in the case of an individual with dementia, for a navigator and co-ordinator. My argument would be that we need the equivalent at the national level also. We have the national dementia strategy for England but my understanding is that it is due to end in April 2014. I ask the noble Earl whether he thinks that the Government would be prepared to run with another national strategy.
This is a terrible illness. It impacts on 850,000 people at the moment; I believe that that figure is estimated to increase to 1 million or so by 2021. The need for national leadership and a national strategy is overwhelming. The noble Earl might not be able to commit to that tonight but I hope that he will take the message from noble Lords here, which is that this is a terrible illness, much can be done to help people with dementia if we have co-ordinated action, much more research ought to be done, and we need greater co-ordination at local level.
I hope that the noble Earl will pick up the suggestion of the noble Baroness, Lady Greengross, that local co-ordinators and navigators of care would be extremely helpful. Perhaps he will also pick up the point raised by my noble friend Lord Jones about the role of business and industry in supporting local societies. He gave a brilliant example of how that can pull people together and provide real support for organisations such as the Alzheimer’s Society at local level.
My Lords, this has been an excellent short debate. I thank all contributors but, in particular, my noble friend Lady Gardner for having tabled this important subject and for having introduced it with such insight.
As has been said, dementia is one of the biggest challenges society is facing, but it is a challenge that we are determined to get to grips with. That is why dementia is a major priority for the UK Government, and my right honourable friend the Prime Minister launched the dementia challenge last year. We must fight back on an international scale, which is why we hosted the first G8 summit on dementia in December, as the noble Baroness, Lady Greengross, kindly mentioned, and we will continue to provide global leadership.
Five years ago, the national dementia strategy was developed. It has achieved a lot and laid the foundations for real change in how people with dementia and their carers are helped to live well with the condition. However, we recognised the need to build on the strategy and that is why the Prime Minister’s challenge on dementia is the main vehicle driving change and improvement across health and care in the community and for research. The Prime Minister’s challenge runs to 2015, not just outliving the dementia strategy but broadening its vision and providing better accountability. The challenge sets out the Government’s commitment to increase diagnosis rates, raise awareness and understanding, and double funding for research into dementia by 2015.
There are 670,000 people in England with dementia, a number expected to double in the next 30 years. Dementia costs society an estimated £19 billion a year, and currently less than half of all people with dementia have a formal diagnosis. One of the main aims of the Prime Minister’s challenge is to improve awareness of the condition by creating dementia-friendly communities. If we are to help people to live well with dementia, we need all areas of society to become dementia-friendly—not just health and social care but banks, supermarkets, bus stations, post offices and all the different forms of local public services. All those places can become more dementia-aware and supportive of people with dementia and, if they do, people with dementia will benefit enormously, continuing to connect with society in ways we all take for granted.
Last October, Lloyds Bank and the Alzheimer’s Society launched a charter encouraging banks and building societies to join them in becoming dementia-friendly, and we need other companies to follow suit. I was impressed by all that I heard from the noble Lord, Lord Jones, about Airbus. The noble Baroness, Lady Turner, in her moving speech, referred to the importance of local support for people with dementia, and I wholeheartedly agreed with what she said.
The Dementia Friends scheme, which aims to make 1 million people more aware and understanding of dementia, is helping to break down the barriers between people with the condition and their local communities, with funding from the Department of Health and the Cabinet Office. The noble Lord, Lord Jones, was absolutely right in all that he said on this subject. My right honourable friends the Prime Minister and Deputy Prime Minister and Ministers at the Department of Health are all Dementia Friends, as are more than 500 Department of Health staff. I myself am a Dementia Friend. It has helped me to understand the impact that this condition has not just on the individual but on their families who care for them. Dementia Friends is one of several components in creating dementia-friendly communities. Alzheimer’s Society guidance sets out the criteria for becoming a dementia-friendly community, and already 34 communities, from York to Plymouth, have signed up to the scheme, with others having expressed an interest in doing so.
This spring, Public Health England, working with the Alzheimer’s Society, will launch a three-year £12 million social movement to make the nation more aware of dementia and enable people to understand how they can help those with the condition. The “Dementia Movement” will aim to do three main things. The first will be to reduce fear and stigma through activity that improves public attitudes towards dementia and gives more people the confidence to engage with those with dementia. It will also aim to increase social connectedness—for example, by prompting and supporting conversations between people in the early stages of dementia and their families, friends and neighbours. It will aim, too, to improve skills by recruiting people into the Dementia Friends programme so that more people know how to help those with dementia. The movement will target business partners in the private, public and voluntary sectors, and urge them to continue to implement the Dementia Friends programme within their organisations, giving their employees an understanding of the supportive action that they can take to help people with dementia.
The noble Baroness, Lady Greengross, spoke with great authority about the importance of diagnosis, co-ordinated care and support, and I very much agreed with what she said. The noble Lord, Lord Jones, also laid emphasis on timely diagnosis. Raising awareness of the signs and symptoms of dementia is the first step towards getting a formal diagnosis—one that will lead to people being able to access advice, information, care and support. The number of people with a diagnosis is increasing year on year, but the noble Lord, Lord Hunt, was right: still only just under half of all people with dementia have a diagnosis. That is simply not good enough and it is why NHS England has committed to raising the diagnosis rate to two-thirds by 2015.
Clinical commissioning groups are working with their local councils and other partners to better understand how widespread dementia is in their communities, including among people living in local care homes. This will mean that they can identify and support people with dementia in a timely way. GPs are now able to use the new directed enhanced service to improve the diagnosis of dementia by asking people in certain at-risk groups about their memory. This proactive approach should help to identify patients who are showing the early signs of dementia.
The noble Baroness, Lady Greengross, and the noble Lord, Lord Hunt, asked about steps being taken to ensure the identification and treatment of comorbidities in people with dementia. If I may say so, that question is extremely pertinent. NHS England has committed to increasing the dementia diagnosis rate, as I mentioned. A diagnosis of dementia is vital in accessing support and treatment across the board, not just for dementia but for all comorbid conditions.
Once people have a diagnosis. they need to understand the implications of the condition and how they can access advice, information and support to help them and their carers to live as well as they can with the condition. If the condition is advanced, some people will need care and support immediately, but those diagnosed at an earlier stage may need only advice and information. The noble Lord, Lord Hunt, rightly stressed the need to provide information post-diagnosis.
My noble friend Lady Gardner mentioned the important role of charities, as did the noble Lord, Lord Jones, who rightly praised the work of the Alzheimer’s Society. The dementia guide is given to a person with dementia when they receive a diagnosis, and almost 100,000 copies have been distributed since last July. The NHS Choices website has dedicated pages for dementia, highlighting the range of services and support available to people with dementia and their carers. Regional NHS websites, such as myhealthlondon.nhs.uk provide details of healthcare and voluntary services available locally. A free national helpline helps carers to access information about local and national services and individual advice and support.
My noble friend referred to the need for good nursing. Services are no good without a skilled workforce. That is why Health Education England is ensuring that staff are dementia-trained. In November, it hit its target to deliver dementia training to 100,000 staff ahead of schedule, and it will continue to roll out training to improve the skills of the workforce. We want people with dementia to receive a better quality of care from informed and trained staff through the CQUIN programme. NHS England has asked all hospitals to identify a senior clinical lead for dementia, to ensure that carers of people with dementia are adequately supported, and that this is reported at board level. Every person joining the social care workforce will undertake common induction standards, which include aspects of dementia awareness. In addition, a number of units and qualifications at vocational levels 2 and 3 have been developed by Skills for Care and Skills for Health to support the development of the social care and health workforce, working with people with dementia.
The noble Lord, Lord Hunt, and my noble friend Lady Gardner asked about research. Doubling funding for research, as I mentioned, is part of the Prime Minister’s challenge, and the quality and quantity of research proposals for dementia are improving. Last year £20 million was awarded to six proposals which will look at areas such as Living Well with Dementia and dementia-associated visual impairment. All the G8 countries signed up to the communiqué at the end of the conference and one of the pledges was significantly to increase the amount spent on dementia research.
As I have outlined, there are a range of services and information sources available to support people with dementia and their carers, but this is only the beginning and we have a long way to go until everyone with dementia is able to live as well as they can with the condition. We are not resting on our laurels. The Government are committed to doing more. We are currently working with our partners in the NHS, social care, local government, public health and the Alzheimer’s Society on a call to action to improve post-diagnosis support for people with dementia and their carers—support on which the noble Lord, Lord Jones, rightly laid emphasis. The work is at an early stage but, over the next couple of months, we will be developing an offer of what should be available to everyone to ensure that we have achieved the Government’s goal of people with dementia and their carers having access to services to help them live well within our society for longer.
Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Bill
Returned from the Commons
The Bill was returned from the Commons with reasons and amendments.
House adjourned at 7.58 pm.