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Lords Chamber

Volume 760: debated on Monday 23 March 2015

House of Lords

Monday, 23 March 2015.

Prayers—read by the Lord Bishop of Peterborough.

Israel: Gaza


Asked by

To ask Her Majesty’s Government what discussions they have had with the government of Israel about lifting the blockade of Gaza.

My Lords, we have frequent discussions with the Government of Israel about the need to ease restrictions on Gaza. We welcome Israel’s recent decisions to double water supply to Gaza and to begin some imports of food for the first time since 2007. We call on the Israeli Government to ease restrictions further and for Israel, the Palestinian Authority and Egypt to work together to ensure a durable solution for Gaza.

I thank the Minister for that reply and the efforts that our Government are making, but is she aware of the bleak and dangerous conditions in Gaza at the moment, which are spreading to the West Bank and east Jerusalem? Now that Mr Netanyahu has shown his true colours and—to quote his own words—we no longer have a “partner for peace” to do business with, should we not fulfil our responsibilities to the Palestinians, stated in the Balfour Declaration, and call for divestment and sanctions against Israel until an agreement is reached on a two-state solution based on the Israeli peace initiative, of which I know she is aware?

My Lords, there were several strands in there. Clearly, it is still a priority for this Government to achieve a two-state solution to the issue of Israel. With regard to the words used by Mr Netanyahu, who is at this moment seeking to form a Government, on Thursday 19 March he said:

“I do not want a one-state solution, I want a sustainable, peaceful two-state solution but for that circumstances have to change”.

We have to agree. Partners from the region would be welcome if they became involved in constructive peace negotiations, but of course Hamas must renounce violence, recognise Israel and accept previously signed agreements and Israel, for example, must stop its settlements expansion policy.

My Lords, is it not the case that the Hamas regime in Gaza could get the blockade lifted any day they wanted by the simple action of renouncing violence, recognising the state of Israel and accepting existing agreements, including the Oslo accords? Would it not be very much in the interest of everybody, but particularly the long-suffering people of Gaza, if they did just that?

My Lords, is it not clear that the Prime Minister, Mr Netanyahu, has now received a mandate for his statements that there would be no two-state solution agreed on his watch? If Her Majesty’s Government insist on their approach of finding a two-state solution, that will require the recognition of a Palestinian state, including Gaza and the West Bank, without the agreement of the incoming Israeli Government.

My Lords, as I mentioned earlier, Mr Netanyahu is in the process of forming a Government. He has made it clear that he wants a sustainable, peaceful, two-state solution, and there will be great pressure on him to achieve exactly that, including from this Government.

My Lords, did not Mr Netanyahu say, quite specifically, that there would be no two-state solution on his watch? Then there is this change of view, where apparently he says that he does, but he does not. Is it not time that the Government spoke very firmly to that Prime Minister and say that he must make it absolutely clear that nothing less than a two-state solution will do?

My Lords, I agree entirely with that second sentiment. We make it clear to Israel that only a two-state solution will do, and one which can be achieved by an agreement between both Israel and the Palestinian Authority. That is, I agree, the right way forward.

My Lords, what is the Government’s position on the legality or illegality of settlements? In light of that position, once the new Government have been formed, what will be their position on engaging with those politicians who are themselves settlers?

My Lords, we have made it clear, and our position is clear, that they are illegal under international law. They present an obstacle to peace, and that remains the same today, as it was before the elections. They take us further away from a two-state solution, and we strongly urge the Government of Israel to reverse their policy on illegal settlements. That is essential for a peace process to go ahead.

My Lords, aid agencies have estimated that at current rates it will take 100 years to import enough construction materials to rebuild Gaza. Can the Minister comment on whether she thinks an independent monitoring regime will help to assuage Israeli concerns and ensure that imported building materials go only on rebuilding civilian homes, not on the building of military tunnels by Hamas?

The noble Baroness raises an extremely important issue—that the reconstruction of Gaza must be for the benefit of civilians, not as a way to provide Hamas with materiel further to launch assaults on Israel, which would undermine any move towards peace. At present the Gaza Reconstruction Mechanism is a step in the right direction to import materials that are urgently needed, and at present there is no evidence that any materials are diverted for military means. Some are used for civilian rebuilding means, but certainly oversight is crucial, as she said.

My Lords, my noble friend Lady Eaton has tried to get in several times. I am sure we still have time to go to the Cross-Benchers on this Question.

My Lords, since last summer, Israel has permitted 88,000 tonnes of construction material to enter Gaza, enabling 57,000 Gaza residents to rebuild their homes. While much more needs to be done, will my noble friend join me in acknowledging the important role Israel has played in this humanitarian effort thus far?

My Lords, yes, but of course it is even more important that those who have committed to providing material to that area for rebuilding pay up the money. We have already paid a quarter of the £20 million that we committed to last October; my right honourable friend Desmond Swayne in another place made clear that the rest, we hope, will be transmitted very soon in the new financial year. However, it is up to others to come up to the mark, too, to get the aid in.

My Lords, now that Israel is losing support not just across Europe but in the United States of America, will the Government refer the new circumstances in Israel and Palestine to the European Union?

My Lords, we discuss matters with regard to the Middle East process across a range of other interlocutors, including the European Union. This is a peace effort in which all can play a constructive part; the important thing is to remain patient but utterly determined.

Would my noble friend agree that it is essential for the United States to stop endless vetoes obliging Israel to disobey international law? There have been 35 since 1968.

My Lords, nobody should disobey international law. Our position on that is clear, particularly with regard to cases before the International Criminal Court. Of course, recently we have had discussions about Ukraine’s and Russia’s breaking of international law. It should not be done.

General Elections: Peers’ Exclusion from Voting


Asked by

To ask Her Majesty’s Government what proposals they have to review the exclusion of life Peers from voting at general elections.

My Lords, the Government have no plans to review in this Parliament the long-established legal incapacity that prevents Peers who are Members of the House of Lords voting in a general election.

Is this not extraordinary when society is calling for votes at 16 and for felons; when every single Member who is a life Peer in your Lordships’ House has already voted in a general election; and when not one of the 189 upper Houses in the IPU precludes Members from voting? Has not the time come for my noble friend to recognise that it is time for a change? The claim that a Member of the House of Lords already has a voice in Parliament, and that therefore it is right to deprive him or her of having that voice heard through an elected representative in the Commons, no longer has validity as we do not have a voice on money Bills—the very central feature of our democracy, epitomised by “no taxation without representation”.

My Lords, the noble Lord, Lord Naseby, is a Conservative and has taken very Conservative views on the reform of this House. I would have hoped that he would therefore agree with the statement of Lord Campbell, as Lord Chief Justice in 1858, that by,

“an ancient, immemorial law of England … Peers sat in their own right in their own House, and had no privilege whatsoever to vote for Members to sit in the other House of Parliament”.—[Official Report, 5/7/1858; col. 928.]

My Lords, I cannot believe that the Minister is saying things that he actually believes. Will he concede that this House passed a Bill to give us the right to vote in elections which was blocked by some dissident Whips or other people at the far end for no good reason, and that it is offensive that, when the voters of Britain have a chance to express their views, we are not allowed to? Surely, it is time for the Minister to say that if he had a chance and was Minister for long enough, he would do it.

My Lords, the noble Lord, Lord Dubs, and I would very much like to introduce a more rational and modern approach to the second Chamber, but we will have to do that in an overall way. There are many anomalies in our voting system. The position in which citizens of the Irish Republic and the Commonwealth can vote in British parliamentary elections is also quite extraordinary, but has a long tradition behind it.

My Lords, I thank my noble friend for asserting his Conservative instincts in answering this Question. Would we not be better employed in seeking to persuade all those who do have the vote that it is their civic duty to use it?

My Lords, I have spent considerable time over recent weekends and when visiting universities and colleges doing exactly that, and I hope all other Members of this House do the same.

Thank you. Does the Minister recall that the coalition agreement says that membership of this place should reflect of the share of the vote at the last general election? If the Liberal Democrats poll the 8% that they currently have in the polls, there will be only two ways to resolve the position after the next election—either by creating 450 new political Peers or by half the current Liberal Democrat membership seeking retirement. Which would he recommend and, if the latter, would he lead by example?

My Lords, I note that so far there are 11 names of current Peers on the list of those who have expressed their intention to retire at the end of this Parliament: they include no Members from the Labour Benches.

My Lords, does the Minister agree that, whatever the arguments justifying the banning of Members of this House generally from voting in general elections may be, there can be no justification in respect of those who are disqualified? I speak on behalf of five erstwhile colleagues of mine in the Supreme Court who, when they were exiled across the Square, lost their vote and their voice here. They are totally disfranchised, and so too is the Lord Chief Justice. Can the Minister justify that?

I would have to look closely at the 1999 Act to be assured that they remain disqualified. I was not aware of that.

My Lords, do not the questions that we have heard in the past few minutes demonstrate exactly why we need complete reform of the arrangements for your Lordships’ House, to ensure that we have an effective bicameral system appropriate for the 21st century?

My Lords, there is a very strong case for substantial constitutional reform. I fear—as I hope others may fear—that there may be a low turnout and an indecisive result at the election. That may at last push us towards a larger scheme of constitutional reform.

My Lords, does the Minister not agree that sometimes it is better not to change things? One hundred and five years ago today, their Lordships of the Admiralty decided to issue a second typewriter to each battleship. Then we had 38 battleships; today we have hardly any ships and thousands of word processors.

My Lords, the first reference I have to Peers not voting comes from an Act of the reign of King Henry VI, but I regret to say that I have not been up the Tower to check that it is there.

My Lords, has the Minister observed that the Question refers to life Peers? Why did it not include hereditary Peers? Have we no rights in this matter?

My Lords, as the noble Lord knows, under the 1999 Act, hereditary Peers who are excluded from this House—not including the 92 who are here—are allowed to vote.

My Lords, the Minister has been asked about reform of Parliament and the situation of a bicameral reformed Parliament. Would he agree that, de facto, we now have a unicameral system in which the House of Commons, by legislative right, ultimately gets its way? Who would arbitrate if there were two equal Chambers in Parliament?

My Lords, I would not agree with that, but I think that the noble Baroness and I had better have a long conversation with an authority such as the noble Lord, Lord Norton, on the subject.

G20: Turkish Presidency


Asked by

To ask Her Majesty’s Government what steps they are taking to support the main aims of the Turkish Presidency of the G20 in 2015.

My Lords, we support the Turkish presidency’s priorities of inclusiveness, implementation and investment, and particularly welcome the focus on the implementation of previous G20 commitments. We are liaising closely with the Turkish presidency, and are actively involved in all the G20 working groups, including co-chairing the Energy Sustainability Working Group. A UK official is seconded directly to support the Turkish G20 presidency team.

I thank the Minister for her reply. As she says, the Turkish presidency is founded on the three “i”s of inclusiveness, implementation and investment, and these aim to ensure that the benefits of growth and prosperity are shared. Indeed, it has been estimated that if all the plans already endorsed by the G8 were carried out, some 2% would be added to the world’s GDP. Can the Minister outline how the Government will work to help the Turkish presidency achieve these aims?

My Lords, we are at the forefront of implementing a series of commitments. For example, on anti-corruption the UK Anti-Corruption Plan published in December 2014 clearly sets out more than 60 actions for tackling corruption domestically and internationally. My second example is the automatic exchange of tax information, of which the UK is an early implementer, with the first exchange expected in 2017.

My Lords, my noble friend mentioned previous G20 communiqués so she will be familiar with the November communiqué, which said that tackling infrastructure shortfalls is,

“crucial to lifting growth, job creation and productivity”.

In that case, what conversations have taken place with the United States over the very welcome UK application to join the Asian Infrastructure Investment Bank, which I understand has been less than enthusiastically received by the US?

My Lords, it is a matter of discussion with the United States. Our whole focus with regard to the G20 is the implementation of previous commitments. This is one and we will continue that discussion. I know, for example, that at Lough Erne 1,000 commitments were made. Since this is the forum which has a prime focus on achieving international consensus on economic matters, we have to work for that consensus.

My Lords, as the noble Lord, Lord Balfe, has just noted, inclusiveness is one of the main aims of the presidency of the G20. The document on presidency priorities states clearly:

“At the domestic level, we must ensure that the benefits of growth and prosperity are shared by all segments of the society”.

Can the Minister explain how the Government can comply with this aim when, according to the Social Market Foundation, the rich in Britain are,

“64% richer than before the recession, while the poor are 57% poorer”;

when, despite the so-called recovery, the economic chasm between London and the regions is widening; and when 3.5 million children are living in poverty in one of the richest countries on the planet?

My Lords, the Budget showed clearly last week that in the jobs-led recovery, which is the achievement of this coalition Government, we have shown the rest of Europe the way in which one can achieve success. It is hard work and takes a long time but that is what we are doing. It means that all parts of society are benefiting, and clearly the Budget set that out word for word.

My Lords, does my noble friend think that the Turkish presidency of the G20 will in any way affect its long-standing attempts to join the European Union? Does she not agree that Turkey seems to be getting a bit tired of its constant efforts to make progress negotiating with the European Union in its present form and is seeking a reformed European Union to join? Does she also agree that that could be a basis for our own efforts in this country to seek reforms in the European Union to bring it into the 21st century?

My Lords, it is a matter of fact that the Foreign Secretary has been meeting his counterparts throughout Europe to look at ways in which the European Union should be reformed. Reform is needed and he has met a lot of agreement on that. With regard specifically to Turkey, the block on it joining has been self-imposed as well as imposed by other countries. Turkey assures us that it is still very keen to join the European Union. We welcome that. It is the sixth largest economy in Europe. We want it to be a partner. One of the issues that must be resolved before Turkey can do that, and for chapters to be both opened and closed, is Cyprus.

My Lords, I think that the noble Baroness said in her Answer to the Question that a member of the Foreign Office would be seconded to the Turkish team. Can she tell us whether other countries are doing the same? Will there be a French member of the team—somebody there from the Quai d’Orsay and somebody from the German Foreign Ministry and perhaps one or two others as well? Can she also tell us exactly what status this individual will have—and, indeed, what work he will do?

My Lords, this is a practical way in which Governments can work before a presidency to ensure that work is done in the run-up, whether it is by the Sherpas or by the finance directors. This is a very practical step forward. Indeed, a Turkish member is seconded to the Foreign Office on other matters. I cannot answer the noble Lord’s question with regard to specific countries that may provide the same service, but clearly it is important that we have this kind of interplay between countries when we are working on consensus issues at G20 meetings, whether they are in Turkey this time or in China next time.

My Lords, why do the Government have double standards on Cyprus? Why does the Minister say that Cyprus is an obstacle to Turkey joining the European Union when Her Majesty’s Government supported Greece joining the European Union after it had organised a coup d’état in Cyprus?

BBC: Russian Language Programming


Asked by

To ask Her Majesty’s Government what discussions they have had with the BBC about increasing its Russian language programming and distribution, including via the internet.

The FCO and the BBC World Service meet regularly to discuss areas of co-operation, including Russia. However, any decision to increase Russian language programming and distribution would be an operational decision for the BBC World Service to make.

I am grateful to the Minister for that reply. I understand the relationship between the FCO and the BBC World Service and indeed, the technical and political obstacles to increasing broadcasting inside Russia. However, does the Minister not agree that, if there is to be a bridge of understanding rebuilt with Russia—it is imperative that there is—it is essential that we have the ability to inform directly Russian public opinion about the situation in east Ukraine, why it so deeply disturbs the rest of Europe and indeed, why sanctions are being imposed? To this end, will the Minister encourage the BBC as it considers—as I believe it is doing—news gathering capability in Russia, and its possible increase, and the output for

My Lords, I am sure that the BBC will be listening to the views of Peers. Of course, the relationship between the Foreign Office and the BBC World Service is a framework agreement. I stress that the FCO has its framework agreement with the BBC World Service—its strategic partnership—not with the BBC as a whole. Of course, it is important that a trusted broadcaster, such as the BBC World Service, should be able to provide balanced editorial work throughout not only Russia, but in other countries as well. That is what it does. What we can do is work to protect the BBC World Service from any threat to its operations, such as jamming, visa restrictions and threats to journalists. That, we do.

My Lords, if the World Service is independent of government, why does the Foreign Secretary have the final say on whether new Russian or other foreign language services are launched?

My Lords, the noble Baroness refers to the way in which the strategic partnership works. The FCO and the World Service work through that and meet regularly to ensure that we can support the world services as best we can. The Foreign Secretary agrees the targets, priorities and languages in which the BBC World Service operates. It is the BBC World Service board which makes the decisions about operations and editorial matters and brings its view to the Foreign Secretary regularly throughout the year. The strategic partnership meets at director level annually and at official level quarterly, when we cover the issues that our organisations work on together. The Foreign Secretary does not say to the BBC World Service that the Government want it to do particular language services or particular programmes. It is the BBC World Service board that makes the proposal to the Government, and its proposal is based on commercial grounds. That is the consideration at which the Government look.

My Lords, while the point is well taken about the very special relationship and need for care in preserving it between the Foreign Office and the BBC, the financial settlement for the BBC as a whole is very much a concern of government. The effectiveness, quality and worldwide respect for the overseas service has been based and rooted in the accumulation of expertise, insight and experience. Are we certain that the BBC has the resources that it should have to ensure the quality and quantity of human resources necessary in this complex region, with all the challenges that exist?

My Lords, that is very much a matter for the BBC Trust to determine. The House will know that, following the change in funding made last year, the BBC is now funded directly from licence fee payers. At that stage it was a discussion about funding and the BBC has increased the funding that has gone to the BBC World Service—the subject of this Question—beyond that which originally applied to it. There will be a review of the BBC charter next year. The noble Lord makes a very valid point: in this changing world of communications, with changing platforms on which one can receive news and language programmes, we all need to consider very carefully which expertise is appropriate and how we may attract it.

My Lords, my noble friend has mentioned the commercial impetus in the dialogue conducted between the Foreign Office and the BBC board. Given the importance of the strategic situation in Russia, whereby Russian speakers need access to objective and historical truth, have the Government proposed to the BBC board that they would be prepared to put in some funding for this vital work that is in our strategic interests?

My Lords, I repeat that it is for the BBC World Service board to come to the Government with strategic proposals, but my noble friend asks a very proper question about what happens with regard to balanced and trustworthy information. That is the kind of information that the BBC provides. We are building relationships with and supporting the Ukrainian Minister for Foreign Affairs, and independent Ukrainian journalists. We are funding via a conflict pool BBC Media Action—a charity under the BBC’s auspices—giving £200,000 to train Ukrainian producers and directors, and to produce a drama handling conflict issues sensitively for both Russian and Ukrainian-speaking audiences. That will be broadcast on Ukraine’s state TV channel.

My Lords, does the Minister not agree that what she said—I am sure inadvertently—gives the impression that the Foreign Office’s role in this matter is entirely passive and that decisions on broadcasting in Russian are taken on purely commercial grounds, even when circumstances have changed fundamentally? Does she not agree that it is really important that the Foreign Office continues to play a proactive role in responding to foreign policy challenges? One of those now is how to get the truth around in Russia.

My Lords, that is exactly the point. We are working to find ways of getting the truth around in Russia that do not in any way undermine trust in the BBC.

Community Radio (Amendment) Order 2015

Motion to Approve

Moved by

That the draft order laid before the House on 26 February be approved.

Relevant document: 25th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 17 March.

Motion agreed.

Children and Young People (Scotland) Act 2014 (Consequential and Saving Provisions) Order 2015

Motion to Approve

Moved by

That the draft order laid before the House on 23 February be approved.

Relevant document: 24th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 17 March.

Motion agreed.

Occupational Pension Schemes (Charges and Governance) Regulations 2015

Motion to Approve

Moved by

That the draft regulations laid before the House on 4 February be approved.

Relevant document: 22nd Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 17 March.

Motion agreed.

House of Commons Commission Bill

Third Reading


Moved by

My Lords, in moving that the Bill do now pass, I thank the noble Baroness the Leader of the Opposition for her support in allowing this modest Bill to make progress in such rapid time; other noble Lords who have given tacit support; and my noble friend Lord Tyler for his support and engagement on the wider governance issues. Noble Lords will recall that the Bill will assist the other place in improving its governance arrangements by making the necessary legislative changes to the House of Commons Commission arising from its review of the issue. I beg to move.

Bill passed.

Counter-Terrorism and Security Act 2015 (Risk of Being Drawn into Terrorism) (Amendment and Guidance) Regulations 2015

Motion to Approve

Moved by

That the draft regulations laid before the House on 12 March be approved.

Relevant document: 25th Report from the Joint Committee on Statutory Instruments.

My Lords, this secondary legislation has been brought forward in respect of measures in the Counter-Terrorism and Security Act 2015 and specifically the provisions in Part 5, which are concerned with reducing the risk of people being drawn into terrorism. This House has recently considered the primary legislation, during which there was widespread recognition of the threat from terrorism and broad support for the measures in the Act. There was also a very informed debate on the duty, imposed in Section 26, known as the Prevent duty. These regulations are crucial to the effective implementation of this new duty. The Joint Committee on Statutory Instruments and the Secondary Legislation Scrutiny Committee have considered it, and I place on record my appreciation of the forbearance shown by the chairs and members of those committees in considering this SI outside the normal timescales.

To help the House in its consideration of the instrument, I will briefly outline what the Government seek to achieve with it and why we have brought it forward at this time. The regulations contained in this statutory instrument have three purposes. First, they amend Schedules 6 and 7 to the Counter-Terrorism and Security Act 2015 to add Scottish bodies to the list of those authorities which are subject to the Prevent duty and to those which are listed as partners to local authority panels required to be in place by Section 36. These panels form part of the Channel programme in England and Wales, and Prevent Professional Concerns in Scotland, which are programmes designed to provide support to those vulnerable to being drawn into terrorism.

Secondly, the regulations make a number of amendments to the Act which are consequential on the adding of these Scottish bodies. In particular, they ensure that Scottish further and higher education institutions will have the same requirement to have particular regard to the need to ensure freedom of speech and the importance of academic freedom while complying with the Prevent duty as do their counterparts in England and Wales. It has always been the Government’s intention that the provisions of Part 5 would apply to bodies in Scotland. We have consulted Scottish Ministers and they are supportive of adding Scottish bodies to the duty.

Thirdly, and finally, the regulations will bring into effect guidance issued under Section 29(1) of the Act for specified authorities in carrying out the Prevent duty. This guidance sets out the detail of what this duty will mean in practice for the authorities that will be subject to it and seeks to explain the steps that should be taken best to secure compliance.

Your Lordships will recall that the Government introduced an amendment to the Bill to ensure that this guidance will take effect only following the approval of Parliament. During the passage of the Bill, a formal public consultation on the draft guidance was taking place. Your Lordships will have read the summary of responses which is referred to in the Explanatory Memorandum. Over 1,700 responses were received during the consultation. Another 300 delegates were reached in the course of five events held in London, Manchester, Birmingham, Cardiff and Edinburgh. The responses enabled a thorough revision to take place and the results of that revision are before the House now.

There are two versions of the guidance: one for authorities in England and Wales and a separate one for authorities in Scotland. Following discussions with the Scottish Government, the Government decided that separate guidance, which specifically addresses the particular circumstances of Scotland, would be more helpful than trying to address those circumstances through one set of guidance. The Scottish guidance has also been subject to consultation, through a targeted process undertaken by the Scottish Government.

Your Lordships will have noted that neither document addresses the issue of managing speakers and events in further and higher education institutions. The issue of how universities and colleges balance the Prevent duty with the need to secure freedom of speech and to have regard to the importance of academic freedom is extremely important. Indeed, on account of this, the Government amended the legislation to ensure that institutions pay particular regard to the importance of academic freedom and freedom of speech when complying with the Prevent duty.

We will use the time before the duty commences to produce further guidance on the matter of managing speakers and events in further and higher education institutions and it will be for the next Government to bring it to Parliament early in the next Session for the approval of both Houses. It is essential that guidance is provided which is accurate and workable for the institutions themselves. It is not the Government’s intention that the duty should commence for the further and higher education sectors until guidance on speakers and events has been published. This of course will be for the next Government to carry through.

Finally, before we debate the particulars of the regulations before the House today, I would like to take this opportunity to remind noble Lords of the purpose of this new duty and its importance. Noble Lords will be aware that the emergence of ISIL and the number of people, particularly vulnerable, young people, who have misguidedly travelled to Syria and Iraq, present a heightened threat to our national security. The intelligence agencies tell us that the threat now is worse than at any time since 9/11. It is serious and it is growing. The threat has changed and so must our response. As part of that response, we need to continue to combat the underlying ideology that feeds, supports and sanctions terrorism, and prevent people from being drawn onto that path. The Prevent duty will ensure that such activity is consistent across the country and in all those bodies whose staff work on the front line with those at risk from radicalisation.

These regulations are needed effectively to implement the Prevent duty across England, Wales and Scotland, which will ultimately help the Government and law enforcement agencies to keep the country safe from terrorism. I commend them to the House and I beg to move that they are approved.

My Lords, I very much welcome these regulations and I am grateful to the Minister for his explanation. He may remember that when we were debating the Bill, which has now become the 2015 Act, I tabled a number of amendments to try to advance the Scottish position, which was difficult because no Scottish institutions were yet mentioned in the schedule. That meant that I felt a little inhibited in pressing the points that needed to be attended to.

I am particularly grateful to the Minister and those who have been advising him for the way the Scottish matters have been dealt with in Regulations 4 and 5. Regulation 4 deals with a technical point which I had thought about raising but it seemed a little too fussy at the time; namely, that a mandatory order, which was being provided for in the Bill and, subject to this amendment, is still in the Act, is not available as a means of enforcing a court’s orders in Scotland. As Regulation 4 correctly puts it, a proper mechanism is,

“by an order for specific implement”.

Had it been necessary to do so, I would have moved that amendment myself. I did not trouble to because I was quite sure that someone would pick it up if the need arose and I am very glad that that has been attended to.

It is pleasing to see how the definition of the duty to ensure freedom of speech has been expressed in Regulation 5, particularly as it mentions visiting speakers as well as,

“members, students and employees of the institution”.

The wording of that provision, which chimes very well with what I and others were attempting to achieve in the debates on the Bill, is very welcome.

Finally, the Scottish guidance is significantly lighter-handed than the English. In particular, the way higher education and further education institutions are dealt with is significantly lighter because a good deal more trust exists between the Government in Scotland and the institutions with which they are dealing. However, looking at paragraph 60 in the Scottish guidance, it occurred to me that further guidance was being anticipated to deal specifically with the problem of visiting speakers. The Minister mentioned that in his summary. I look forward to seeing what comes out of it, but I hope very much that those who are framing the guidance in Scotland will continue to deal with this with a light-touch mechanism. They are dealing with people of good will who know exactly what they are seeking to achieve and who do not need very much detail—just enough to point the way the universities should go in setting out their mechanisms. I am quite certain they will follow the guidance if it follows the kind of pattern we see in the guidance before us today.

For all these reasons, I am extremely grateful to the Minister and those supporting him for what has been achieved in these regulations.

My Lords, I follow the comments just made by the noble and learned Lord, Lord Hope, by saying that one of the benefits of both new sets of guidance, for England and Wales and for Scotland, is that the tone is very different. That is enormously helpful. I am also very grateful for my noble friend’s comments about the final decision on external speakers being made by the next Government.

However, I would ask the Minister for absolute clarification on one point. I know that there have been discussions outside your Lordships’ House following the consultation on exactly what would happen if agreement were not reached on the thorny issue of external speakers. Could my noble friend give reassurance that the guidance to higher and further education would be withdrawn completely should such an agreement not be reached? Clearly, the reference within the guidance makes it absolutely clear that this is one of the Government’s major concerns.

I would be very grateful as well if our thanks could be passed back to the Minister’s civil servants for the hard work involved in accepting the many thorns in the flesh that your Lordships’ House has provided in the detailed discussions of this, especially given that the Commons did not have the chance to talk about the detail of the guidance when it considered the matter.

My Lords, I welcome the opportunity to debate the guidance and welcome a number of the additions to the original draft, notably: the addition of the reference to the public sector equality duty in the Equality Act in paragraph 12; the cross-reference to “other relevant safeguarding guidance” in paragraph 40; and, in particular, the expectation in paragraph 111 that higher education institutions will,

“seek to engage and consult students on their plans for implementing the duty”.

The role of students—listening to what students have to say—is really important, so I welcome that. I am sure that the inclusion of a definition of “Having due regard” in the glossary will be helpful to all those non-lawyers in the higher education sector.

As during our discussion of the Bill, I will focus my remarks on higher education. Here, as the Minister has acknowledged, there is a glaring omission, with the reference to the issue at a later date of,

“guidance … on the management of external speakers and events”,

including, I am pleased to say, on how the Prevent duty will interact with,

“existing duties to secure freedom of speech and have regard to the importance of academic freedom”,

which, thanks to the deliberations in your Lordships’ House and to the Minister’s willingness to listen, were written into the legislation.

Although I understand the reason for the omission, having read about it in the press—I do not want to intrude into private debates on this—it is regrettable that the most contentious part of the draft guidance when it was discussed in your Lordships’ House is not available for your Lordships to debate today, as opposed to what may happen. I very much endorse the plea made by the noble Baroness, Lady Brinton, that, if agreement is not possible, the whole thing should be withdrawn. I also very much urge on the Minister, or any future Minister, that in the time between now and this being brought forward there should be proper engagement and consultation with the higher education sector to try to reach agreement on something that will be workable, unlike the original draft.

Concerns also remain about the position of student unions and societies. The guidance, I am glad to say, now acknowledges that student unions are already,

“subject to charity laws and regulations, including those that relating to preventing terrorism”.

But the NUS states:

“However, the continued emphasis on student unions’ compliance with their institutions’ policies remains worrying and indicates a misunderstanding of the autonomy of students’ unions which could lead to confusion and conflict between institutions and students’ unions”.

The NUS also commends the guidance for Scotland as achieving,

“a better balance in this respect”,

with a greater emphasis on co-operation with, rather than control by, higher education institutions. Can the Minister clarify the Government’s understanding of the implications of student unions’ autonomy in this area and explain why the Scottish guidance differs from that for England and Wales? I cannot see what the particular circumstances of Scotland are to explain this difference.

The other most contentious element in the original draft guidance was the very broad definition of extremism as,

“vocal or active opposition to fundamental British values, including democracy, the rule of law, individual liberty and mutual respect and tolerance of different faiths and beliefs”.

Perhaps even more worrying was the inclusion of “non-violent extremism”. The Joint Committee on Human Rights—again, I declare my interest as a member—emphasised its concerns about such vague terms in its legislative scrutiny report and warned:

“This legal uncertainty will have a seriously inhibiting effect on bona fide academic debate in universities, and on freedom of association”.

UCU, my former trade union, has expressed similar concerns around the revised guidance. So-called fundamental British values, it says, include values and concepts which are rightly the subject of debate and consideration in universities. It is not appropriate for universities to be required to exclude those who lawfully oppose them.

According to the summary of responses to the consultation, this issue attracted some comment, including concerns about that very vagueness. Yet the revised guidance does not appear to have attempted to address these concerns. Can the Minister explain why not? I do not want to make too much of it but can he also explain why the Scottish guidance does not make reference to “non-violent extremism” in the higher education section? If it is not necessary to repeat the earlier general reference there, why is it necessary to do so in the guidance for England and Wales?

Turning to training, the guidance requires a willingness to undertake training of what it calls “relevant staff”. It says:

“We would expect appropriate members of staff to have an understanding of the factors that make people support terrorist ideologies or engage in terrorist-related activity. Such staff should have sufficient training to be able to recognise vulnerability to being drawn into terrorism”.

The guidance also suggests:

“Changes in behaviour and outlook may be visible to staff”.

The Minister, James Brokenshire, when he gave oral evidence to the JCHR, said:

“There might be someone whom a lecturer has concerns about, not simply because of one particular lively debate, but because they are becoming withdrawn and reserved, and perhaps showing other personality traits”.

All this suggests that we are talking about staff who are in close contact with students—for example, lecturers or personal tutors—who will need to be trained as they are presumably the most likely to pick up on such vulnerability or changes on a day-to-day basis.

I was surprised that the impact assessment—if I have read it correctly; perhaps I have made a mistake—assumes that 15 people in every HE and FE institution will receive Prevent awareness training once every two years at a cost of £46,500. Who does the Minister envisage that these 15 or so people will be? What positions will they hold? Clearly, they cannot be at the chalk—or what is now the whiteboard—face of teaching. I am not arguing for mass surveillance of students by lecturers but there seems to be an inconsistency here that could leave teaching staff exposed if they are expected to play an active role in preventing students being drawn into terrorism without being given the training that the guidance itself acknowledges is necessary for people to be able to fulfil this role. Again, I would be grateful for clarification, as it may be that I have misread the impact assessment.

Finally, is the Minister now in a position to clarify HEFCE’s role, as that has not been spelled out in the guidance? Here, UCU repeats its concerns about HEFCE’s ability to regulate institutions with which it has no formal funding relationship. Has this now been resolved? What steps will be taken to prepare HEFCE for this new role?

For all the very welcome improvements that were made to the Bill during its passage through your Lordships’ House and the improvements that have been made to the guidance, the guidance still raises a number of very real worries. This is all the more so in the light of the recent newspaper report about Imperial College cancelling a booking for an international conference on Palestine at the last minute because of what speakers might say. If this is true—I have not been able to check the newspaper report—it suggests that the legislation is already having the very chilling effect that many Members of your Lordships’ House warned about when the legislation was going through. I am not convinced that the guidance as it stands is sufficiently robust to guard against such a chilling effect.

My Lords, will the Minister accept from me—because I was very active in the earlier discussions—my thanks to him and his department for having taken pretty full account of a lot of the points that were made in those debates in bringing forward this guidance? That is admirable and something that we should be grateful for.

I want to raise two or three very small points. The first is one that the noble Baroness, Lady Lister, raised on the vexed issue of non-violent extremism. The Government have consistently refused to define what they mean by non-violent extremism, so they are now passing this extremely hot potato straight to the universities and expecting that they will do better than the Government and will be able to define non-violent extremism. Well, the Minister has one last chance now to do something about that and I ask him to do it. The failure of the Government to say what they mean by this extremely nebulous concept of non-violent extremism is putting universities in a pretty difficult position.

Secondly, I would be grateful if the Minister would note that I take a different view from that of others about the omission from this guidance of any guidance on visiting speakers and lecturers. The Government are very wise not to have rushed into this. Contrary to others who spoke in the debate, I think that, even if it takes the new Government quite a time to work out how to grasp this extremely painful nettle, they should take that time and not dash into it because this is the single most difficult issue.

Finally, there is the issue of the Prevent co-ordinators. It is quite clear from the guidance that the key to this is going to be the sensitivity with which the Prevent co-ordinators and universities are able to work together. That will require the Prevent co-ordinators to show real understanding and sensitivity on how universities work and what makes them worth while. I hope not only that universities will spend a lot of time and resource on Prevent training but that the Home Office will spend a little time and money on training Prevent co-ordinators in how universities work and why it is in our interest that they should continue to work effectively.

My Lords, I hope that the Minister will take seriously the points which have just been made by the noble Lord, Lord Hannay, and, in particular, the contribution of my noble friend Lady Lister. Universities are crucial—this is not to overstate the case—to the future of the species. They must be centres of excellence, of course, but they must also be centres of scholarly excellence, free exchange and originality on an international basis—because any relevant university in our age must be an international community. We have to be careful surely in all that we do that we do not unintentionally inhibit the quality and freedom of discourse, discussion and analysis that are central to humanity’s future.

It cannot be overstated just how huge the challenges to the security services are. They are tremendous, and the work that they do on behalf of us all cannot be commended often enough. However, I have a conviction, which I am sure is shared by many noble Lords, that the ultimate battle against this evil which confronts us is in the minds of men and women across the world. We build the ultimate safeguards and the ultimate strength in what people think, feel and have as their values. In that context, the contribution by universities is very special. We must be careful therefore that we do not do things which are counterproductive. Of course, it is a very difficult balance, and I sympathise across the Floor with Ministers and others, and certainly with officials, who grapple with this issue—but we must be careful all the time that we are not eroding what makes universities so important and attracts so many people from across the world to our own universities.

One other thing that I feel strongly about on this matter—again, I am certain that I am not alone—is that we must beware of giving the extremists victories. They are dedicated to destroying our society. If we ourselves get the balance wrong and begin inadvertently to undermine those things which are precious and special to life today and to our future, we give the extremists a victory. From that standpoint, the points that have been made about the care that needs to be taken with the role of education are very important.

Having said all that, I want to put to put on record how much I admire the Minister’s response to discussion on the Bill throughout its passage through Parliament. He sets particularly high standards in listening and trying to respond. I do not want to embarrass him or put him in a difficult position, but I am always reassured because I think that, instinctively and intellectually, he is on the side of the arguments that I have just put forward.

My Lords, perhaps I may pursue briefly a point raised by the noble Baroness, Lady Lister, on who is to monitor compliance with the Prevent duty. The draft guidance referred to HEFCE undertaking the duty, but, as the noble Baroness pointed out, there is a difficulty about that, because the duty covers institutions with which HEFCE has no funding relationship. I see that in the revised guidance the reference to HEFCE has been removed and there is now reference to “an appropriate body”. Can the Minister tell us a little more about the Government’s thinking on that? I express the hope on my own account that it does not imply that a new quango—a new regulatory body—is to be set up for this purpose.

My Lords, the noble Lord, Lord Butler, has partly stolen my thunder: I, too, was going to raise the issue of the monitoring body. Like all the speakers so far, I would like to thank the Minister for the care and attention with which he listened at Committee and Report stages to the issues raised. Many of the changes to the guidance are greatly to be welcomed, particularly the addition of a glossary. Although, as the noble Lord, Lord Hannay, said, we still do not have a definition of non-violent extremism, an attempt at that is made in the glossary. Obviously, I think that we would all like to go further and know what the Government’s intention really is in understanding non-violent extremism—because, as the noble Lord, Lord Judd, said, there is clearly an issue about ensuring that we still have free expression and that universities are able to deal with that. A lot of the changes have toned down the language from previous versions, so we are talking about “relevant” and “appropriate” bodies and people, not simply all academics and everybody associated with higher education institutions.

That is very much to be welcomed, but, like many colleagues, I think that there is still an issue of when we are likely to see guidance on counterextremism. As the noble Lord, Lord Hannay, rightly says, it needs to be dealt with carefully and should not be rushed by the next Government and the next Parliament. Can the Minister reassure us that what he said at the outset will indeed be in place and that government proposals will come back to Parliament to be debated on the Floor of both Houses, as this guidance has done? That is hugely important. We welcome this opportunity today, but it would be extremely detrimental if further counterextremism proposals came forward in the next Parliament on which we did not have a say.

My Lords, would the Minister be willing to consider that the Prevent duty might be well entrenched by preventive measures such as requiring a recording of visiting speakers’ presentations? It is such a normal feature of university life that one is requested to agree to a recording for the intranet, a podcast or whatever. It would mean that there would be a record and that matters could proceed with a lighter touch.

My Lords, I have not spoken previously on this matter, but I just want to draw the Minister’s attention to the fact that Southampton University is organising a conference on legal issues surrounding Israel and Palestine, the two states, in the middle of April and is under intense pressure from the Israel lobby to drop it on the grounds that it will be anti-Semitic. Will he comment on this—or could he, in the interests of freedom of speech and particularly freedom of expression in universities, help Southampton University in this matter?

I join others in thanking the Minister, who has been extraordinarily tolerant and helpful in our discussions. I have one brief query that I would like to raise. We have heard about who might be considered to monitor and examine the role of speakers and organisations in the universities. What will they actually do? It has been widely said that the Prevent strategy has not been very successful, because it has given Islamic groups and the Muslim community a sense of victimisation and the feeling that they in particular are being targeted, which is not at all what one wants. How does one avoid this on university campuses? Will all these monitoring activities focus on a very small number of societies and groups, or will all societies be involved in this? How are we to avoid the charge that individual bodies are being victimised? It seems to me that such extraordinarily general themes as non-violent radicalism are capable of being applied to almost any kind of student activity or student debate that one could conceive of, so how does one strike a balance between non-victimisation and proper inquiry?

My Lords, we discussed the role of statutory guidance when we dealt with the issue during the passage of the Bill. The guidance has benefited considerably from the work that was done on it then and in the interim, but I am still not convinced that a statutory duty is the best or most appropriate way of going about all this. Although the tone of the guidance is, indeed, rather different from that of the draft, I hope that the Minister will understand if I focus on some concerns rather than on giving a three-minute paean of praise for the changes that have been made—many of which I am glad to see.

Inevitably, because of the primary legislation, the guidance is quite top-down. There is little attention to the nuanced, softer approach or to the creation of a counter-narrative, which we discussed during the passage of the Bill. There is reference to discrimination, but not very much about the dangers of discrimination or perceived discrimination.

Understandably, the question of resources remains a matter of concern, as many of the consultees said, including when they talked about training. The impact assessment says:

“The cost will vary with the level of the risk”.

However, the context in which that point is made reflects the reactive nature, it seems to me, of some of the guidance, not a more proactive, subtle approach. On the impact assessment, I cannot entirely follow all the figures and I hope that the Home Office can get rid of the typos—there is a stray “m” somewhere, which seems to be a big multiplier of the amount that something might cost, but I think it is an error.

I was interested that the consultation provoked responses from very many consultees, but not from all those that I would expect, including a number of local authorities that are in what I would assume to be the current priority areas.

Some of the guidance I find difficult. It identifies best practice, describing ways in which authorities can comply with the duty, but because of the emphasis on monitoring and enforcement it reads as though “best practice” means the only practice—a lot of the content about record-keeping and inspection rather supports that view. After all, this is a best value duty, and the sanctions which accompany that duty can be quite considerable.

Like the noble Baroness, Lady Lister, I still find some difficulty with the confusion between “extremism”—violent and non-violent—“terrorism” and, in one or two places, “radicalisation”, in phrases such as “drawn into extremism or terrorism”. There is one paragraph—oddly, perhaps, in the section “Prisons and probation”, which I thought was actually very clear—which refers to:

“concerns around someone being drawn into terrorism (which includes someone with extremist ideas that are used to legitimise terrorism and are shared by terrorist groups)”.

I thought that was a very helpful way of expanding on the point.

Conversely, however, one of the paragraphs in the section on schools reads:

“Being drawn into terrorism includes not just violent extremism but also non-violent extremism, which can create an atmosphere conducive to terrorism and can popularise views which terrorists exploit.”

All this is a very difficult area. I knew I would not need to say anything about the higher education sector—although I still wonder how this is to be applied in early years education—but, in that same paragraph, schools are told that they are to,

“secure a balanced presentation of political issues”.

That seems to be quite a difficult ask of them, in the light of the wording that I have just read.

Clearly, however, a lot of work has gone into this and the matter will be kept under review, so I do not suppose that this is the last time that Members of this House will be discussing the matter.

My Lords, yet again we have had an interesting and knowledgeable discussion. Noble Lords have rightly paid tribute to the Minister for his consideration of the issues that have been raised. It is unfortunate that when the issue was discussed in the other place we had not previously had any sight of the guidance—we were still waiting for the response to the consultation—but it was helpful that during those debates the Minister was able to say to your Lordships’ House that the issues raised in the discussions and debates that took place here would be taken into account in preparing the revised guidance. That was helpful, and it is evident in some of the changes that have been made.

Noble Lords will be aware that we introduced the Prevent strategy with, at the time, three specific objectives: one was to respond to the ideological challenge of terrorism and the threats that we faced from those who promote and encourage terrorism; another, a very strict part of Prevent, was to prevent people being drawn into terrorism and ensure that they got the appropriate advice, support and help that they needed; and the third was to work with those sectors and institutions where there were risks of radicalisation that they wanted to address.

It is easy to say this, but the scale and complexity of these issues means that trying to address them is not easy or straightforward. We need to better understand the motivations that lead young British people from our community to abandon their homes and families to engage with groups such as ISIS. Part of our response to that, when we first introduced Prevent, was the community strand, which the Government are not now continuing with in the guidance. That is interesting, given the Home Secretary’s speech today in which she recognises the importance of community. It would be helpful if the Minister could comment on why that has been raised today, and whether he feels that the community cohesion strategy and the promotion of a very positive counternarrative was a positive and useful strand of Prevent. I am trying to understand why that is not part and parcel of Prevent now.

Many respondents to the consultation noted, and comments have been made about this today, that there was an insufficient definition of “extremism”, while the definition of “British values” and “non-violent extremism” were vague. The glossary, though helpful, says:

“‘Non-violent extremism’ is extremism, as defined above, which is not accompanied by violence”.

I am not sure that that takes us very far at all, to be honest. I would like clarification on what “non-violent extremism” really means. Does it mean extremism as defined in the guidance, which quite rightly includes,

“calls for the death of members of our armed forces, whether in this country or overseas”?

Is non-violent extremism—I am trying to get this correct—where you are not necessarily calling for the death of someone but you would encourage or support that, even though you would not be involved in violence yourself? Can the Minister clarify whether non-violent extremism includes persons not necessarily being violent themselves but seeking to encourage or support others to do so? That seems to come under the definition of extremism rather than non-violent extremism. Some clarity on that would be helpful.

Noble Lords have raised the issue of the training of front-line staff. I have seen what the impact assessment says about the costs of training, and I think it was my noble friend Lady Lister who referred to the numbers involved, but I am curious about the extent and monitoring of the training. How much knowledge would the Government expect someone to have to be able to appropriately identify potential radicalisation or extremism? I am not sure what the expectations are of what the training should provide. The guidance points out:

“In complying with the duty all specified authorities, as a starting point, should demonstrate an awareness and understanding of the risk of radicalisation in their area, institution or body”.

What exactly is meant by “awareness and understanding”? I think I understand where the Government are trying to get to with some of these definitions, but it might be helpful for those who have to fulfil this duty to have greater clarity.

With regard to central support and monitoring, the Home Office is the body that currently oversees Prevent activity in local areas. Is there a role for the DCLG in this from a community-based point of view? Would it be helpful for the Home Office to engage with DCLG—or CLG, as I think we are supposed to call it now—so that both departments have a role, but focusing specifically far more on community?

On local authorities I was pleased to see that, following the amendment that we tabled here in your Lordships’ House, the guidance now contains a provision which looks at that role of partnership and the impact of Prevent on local communities through continued dialogue and communication with leading community organisations. That is helpful and we are grateful to see that.

The debate has been mainly on higher education. Perhaps I could take a couple of moments to talk about schools and, of course, nurseries. The noble Lord’s face crumpled at that point. Perhaps we can probe a bit further than we did last time. If I have understood correctly, the obligation of the duty no longer falls on management within schools and nurseries but on the governing bodies. Of course, not all nurseries or childcare providers—as defined in the guidance—will have governing bodies. In one particular case, where my mum runs the local preschool, it is the Church of England that is in effect the preschool’s governing body. I think that it is exempt from the duty so that might create complication for church preschools.

Ofsted inspectors already have to have regard to the dangers of radicalisation and extremism. That is part of the Ofsted inspection; they also have to comment on what must be done if it is suspected that pupils are vulnerable. The Prevent guidance also notes that schools have a duty to promote community cohesion. Ofsted was required to report on this but this requirement was scrapped by the coalition Government in 2011 as part of the burden-reducing process. So we have moved away from it being a role for Ofsted that the Government got rid of and it is now shifting towards being a Prevent duty on those schools’ governing bodies. Has any consideration been given to reinstating that role for Ofsted, and has any evaluation been undertaken as to whether that would be helpful in dealing with community tensions, whether social or religious, as an alternative or additional way forward to support the school?

I have struggled with this but I cannot find any further information in the guidance to tell me how nurseries are included and what are the expectations of those front-line staff who work with the children in them. At some point in the next week or so I am going to have to tell my dear old mum, who runs her local preschool, that there is a new duty on her to identify radicalism and extremism is her three year-olds. I do not quite know how I am going to put this to her and retain her sanity and mine at the same time. What training will be expected of those staff in preschools and nurseries to be able to spot extremism and radicalisation in those under-fives?

I am very unclear on the purpose of this measure and how it will work in practice. I hope the idea is not to try to identify the parents who are involved because we are talking about the welfare of a young child, and relationships between the parents, the preschool, the nursery and the child support team are really important. If there is any clarity, advice or information the Minister can give me on how this is going to work, I would be very grateful—and it would help me to talk to my mum about it at the weekend.

I come back to higher education, about which a number of questions have been raised. I would like to put on record my thanks to Universities UK, Million+, the NUS and other organisations which have been very helpful in providing briefings and information. This was a particularly contentious part of our debates and it is extremely helpful that the noble Lord was able to take on board the comments that were made. He had discussions here in your Lordships’ House and discussions with noble Lords and others outside this Chamber. The amendments tabled by the Government to reaffirm universities’ commitment to freedom of speech and academic freedom were really important and useful. The substantial changes in the guidance are certainly very helpful and an improvement on the original guidance.

A number of questions have already been raised that I will not repeat. This cross-institutional Prevent working groups obligation has now been removed. That is helpful, as are a number of other changes, but I have a couple of points for the Minister. It is unusual in any debate on a statutory instrument to debate what is not in it as opposed to what is. However, a number of issues have been raised today about the guidance that the Government will bring back; for example, the issue of external speakers, and guidance on the management of events. Conventional wisdom tells us—the rumour mill is very busy on this—that there is a disagreement between two departments, which if it is the case is not very impressive; perhaps the noble Lord can enlighten us. It is said that there is a difference of opinion between BIS and the Home Office. I hope that that is not a delaying tactic to get us past the election. The Home Secretary’s speech today laid out a number of measures that she thought should be brought in to deal with counterterrorism issues. You have to ask why, if she believes that those are very important measures, they are not in this Act, which was brought forward in the last Session of Parliament—but are so essential that they are now being brought back after the election. That issue gives me enormous concern.

The noble Baroness knows perfectly well that the Home Secretary has always made it clear that she attaches great importance to this issue; unfortunately, however, it was not possible to get the measure through this House, so it will have to come back, whichever party comes to power.

The noble Lord refers to one issue, but the Home Secretary raised several today, and I assume that this guidance forms part of it. I hope that it is not a delaying tactic for the order before us today. On a rare occasion, I disagree with my noble friend Lady Lister, who said that it was “regrettable” that it was not with us. Although it is in some ways, it is also an opportunity. The noble Lord was very helpful, and when we had our discussions previously he said that he would engage—or that there would be engagement, if not with him personally—with those who would be responsible for implementing such guidance. I always think that guidance and legislation are effective only if they can be implemented in practice—the workability test that was spoken about so often with regard to other legislation. It cannot just be a theory; it has to be something that works. I hope that this will be an opportunity for the Government to engage with the universities and those who will have responsibility for implementing the guidance on who has responsibility for the duty so that they can discuss with the Government—I hope that those discussions are taking place now—how to make this sensible, practical and effective.

One final point, which has been raised by other noble Lords, is the relationship between HEFCE, as a monitoring body, with other bodies. It is not a funding body; I share the concerns of the noble Lord, Lord Butler, that it is to be hoped that the Government are not planning to set up a completely new quango to monitor that. However, I understand that meetings were due to take place last week, on 20 March, with HEFCE and other bodies to discuss how that could work. It would be helpful if the Minister could enlighten us on any progress that was made at those meetings.

A number of questions have come out of this debate, but I hope that the noble Lord will take away with him our gratitude for having seen significant changes; we are grateful to him for listening, because that is not always the case. I hope that we have not wrecked his career by thanking him too much. The guidance we have now is certainly better than what was presented to your Lordships’ House and discussed in Committee.

My Lords, I am very grateful to all noble Lords who have spoken in this debate. It has generated a flurry of notes from the Box and I will try to cover most of the questions that were raised. However, as I try to respond to the points that were raised, it will be worth trying not to lose sight of the general agreement on the journey on which we have travelled, which the noble and learned Lord, Lord Hope, helpfully set out at the beginning, and which I think noble Lords on all sides of the House have broadly welcomed.

We began the journey because Prevent was already in place—the noble Baroness, Lady Smith of Basildon, made the point that it was introduced by the previous Government. We found, through the regional co-ordinators of Prevent, who had a good working relationship with many universities, that the quality of the way in which the Prevent programme was delivered in higher education institutions varied widely, and that often the level of compliance was best where perhaps it was needed least, and worst where it was needed most. For that reason, having given the matter very careful consideration, the decision was made to put it on a statutory footing to try to get some consistency in the way in which it was delivered. That is the context behind this.

I am conscious of the point made by the noble Lords, Lord Morgan and Lord Judd, in talking about how precious our higher education institutions are as a bulwark against extremism. That was one of the finest debates that we had on the Bill. Early on, the noble Lord, Lord Deben, talked about bringing areas of contention out into the open and said that having a debate about them was critically important. That was why, as part of that, we put in place in the Bill and reiterated in the guidance that institutions should have particular regard to academic freedom duties in the 1988 Act and freedom of speech issues in the 1986 Act. Without getting into specific issues that the noble Baroness raised about Imperial and my noble friend raised about Southampton, that is what needs to be taken back to those authorities, to remind them that that is what the guidance states, rather than what it does not—and sometimes how it is interpreted.

I was grateful to many noble Lords who welcomed the fact that we now have a glossary. Those who went through the detailed passage of the Bill will realise that Appendix F was designed for the Minister’s benefit rather than necessarily for those who are participating. I at least found it very helpful, even if, in certain areas, it does not quite go far enough. I shall come to some of those points.

The noble Lord, Lord Butler, with his experienced eye, spotted the nebula for quangos that could be there in the absence of HEFCE—but we should not take it that not specifying HEFCE is saying that it is not going to be that organisation. We consulted on that, and clearly there needs to be a discussion and an agreement that HEFCE will be prepared to take that on. But I can state—and I hope that this will reassure noble Lords—that it is certainly not the Government’s intention to establish a new body to carry this out.

On the point raised by my noble friend Lady Brinton about whether guidance will be withdrawn if further guidance is not agreed, that will be for the next Government—and we could be coming back to that a few times in the course of my remarks. But it is a serious point because it will, of course, have to be brought forward. It is not our intention that the duty should commence for the further and higher education sectors until guidance on managing speakers and events has been published and approved by Parliament. The noble Baroness, Lady Smith of Newnham, made the point that it would require another affirmative statutory instrument to come before your Lordships' House and that there would be a debate on that. Without that debate and that order, it would not be anticipated that we could give commencement to the wider provision, because there would be a very large hole in the guidance that would be implemented.

I will pick up on a few points. Noble Lords referred to recording meetings of organisations. I do not have anything official on that but, intuitively, that would seem to be exactly the type of thing that would be a good way in which to ensure that, when there are speakers of this nature who may give rise to contention, they are reviewed—and that could be part of the internal review. That is exactly the type of innovative idea that I would like higher education institutions to take advantage of.

The noble Lord, Lord Hannay, welcomed a large part of what is in the guidance, but he also asked for the definition of “non-violent extremism”. It means simply that extremism is not accompanied by violence or a threat of violence. The Prevent strategy is clear that it includes challenging non-violent ideas that are part of a terrorist ideology and that risk drawing people into terrorism. In that context, I would add that, although we are talking about acts of terrorism, we are also talking about radicalisation. The Prime Minister’s task force on tackling extremism and radicalisation felt that there should be a provision to capture that which is radical and extreme but does not directly incite acts of violence—although it could, of course, lead that way.

A number of noble Lords asked about training. That may sound rather grander than it is. I have flashbacks of exchanges with the noble Lord, Lord Phillips of Sudbury, on this subject. I do not want to tempt him to come into the Chamber and engage me on this issue again, but I remember him going through the effect of the impact assessment, quantifying how many co-ordinators it would require and extrapolating the cost of that across all institutions.

I come back to the point that we are talking about, which is what the noble and learned Lord, Lord Hope, mentioned in the Scottish context—a light-touch approach. Initially there would be a workshop to raise awareness of Prevent: there is a DVD-led training tool to teach front-line workers how to identify and support those at risk of radicalisation. The DVD course is half an hour or an hour long, and is designed simply to introduce people to the key themes that they ought to be aware of. When we talk about training we are not anticipating that great swathes of trainers, and those being trained, would be required in organisations.

The noble and learned Lord, Lord Hope, also asked about the differences between the Scottish guidance and the English and Welsh guidance. Universities in Scotland will be under the same Prevent duty in law as universities in England and Wales. There are some relatively minor differences in the drafting of the Scottish version of the guidance. On the whole, these reflect the particular circumstances in Scotland. The Scottish version of the guidance makes it clear in the introductory section that being drawn into terrorism includes not just violent extremism but non-violent extremism, which can create an atmosphere conducive to terrorism and popularise views that terrorists then go on to exploit.

The noble Baroness, Lady Lister, asked about the position of student unions. They are not subject to the Prevent duty, but whatever procedures apply to university premises will apply no matter what body is using them. This will be a matter for university governing bodies. Also on the subject of students, the noble Baroness welcomed the fact that in the guidance we had introduced a requirement to consult. That reflects the contents of the letter that I sent out on 9 February, and also the intervention, to which I pay tribute, of the noble Baroness, Lady Williams, who asked for an undertaking that students would be engaged in the process. I said at the time that that was very sensible and that we ought to include it in the guidance—and it is now in the guidance, in the section on partnerships.

My noble friend Lady Hamwee and the noble Baroness, Lady Smith, talked about the duties of nursery staff in this regard. I am conscious that we had these debates some time ago and, on the surface, it sounds strange to include provision for nursery staff in this area. However, this issue applies to schools, including primary schools. We do not expect teachers and nursery workers to intrude unnecessarily in family life, but we expect them to take action if they observe behaviour which is of concern. That should be done in an age-appropriate way. I overhear the noble Baroness opposite asking from a sedentary position what this could be. For example, a small child attending a nursery may espouse some very strange or extreme views on anti-Semitism. All I am saying is that nursery staff and all staff and responsible adults should be aware of the importance of safeguarding children of all ages. If untoward comments are made—not just asides, but comments that are repeated—which cause concern, we are simply saying that this is a real generational threat that we face, as we see in our newspapers virtually every day, and we cannot tackle this alone. The security forces cannot tackle this alone. They need the support of everybody in the wider community to do that. That is really what we are talking about. We are certainly not talking about anything that is overly intrusive.

My noble friend Lady Hamwee asked whether the measure deals properly with discrimination. The guidance specifically mentions the public sector equality duty set out in Section 149 of the Equality Act 2010, to which all public authorities are already subject. I hope that that helps provide guidance in that regard. The noble Baroness, Lady Smith, asked about communities. Communities are an extremely important part of delivering the Prevent strategy and their importance is mentioned in a number of places in the guidance. There is, of course, a cross-departmental group working on Prevent, radicalisation and people being drawn into terrorism. The Department for Communities and Local Government is part of that.

I think that I have dealt with training and awareness. As regards the encouragement of others—

I am grateful to the noble Lord for his comments on nurseries, although I am not 100% sure that I fully understand what nursery staff could do in response to something that a three year-old says or does that would be beyond what they currently do in ensuring that three year-olds behave appropriately. However, I asked the noble Lord specifically about the training for nursery staff. He has spoken about training generally. Is the training for nursery staff the same as it would be for staff at schools or universities or will there be specific training for those who deal with much younger children?

That is a good point. Procedures need to be set out to ensure that the nursery has guidance in place detailing how it will implement Prevent and what it would do if a three year-old said, “My sister is going off to Syria”, or something of that nature. What would it do if a child made such a comment? Does it have a procedure for dealing with that? To whom would it report that and what action would it take? That is probably not the best example as I have just thought of it and I am sure that the officials will probably send me 10 far better examples. However, I am just trying to appeal to the common-sense elements of this. If such an incident should happen, do nursery staff have a procedure in place to deal with it? I think that is all that would be required of nurseries. The noble Baroness raised a very fair point about Ofsted. I am afraid that I do not have the answer at this stage but it is a good point and I will ensure that I write to her on it. I have tried to address as many of the points as possible—

Will the Minister clarify the intention on commencement of the various provisions? I see that Regulation 2 states that the regulations will,

“come into force on the day after the day on which they are made”.

I am not sure of the procedure, but if we approve the regulations, does that mean tomorrow or is there some period during which they will lie awaiting further making? It is important because Regulation 3 states that the guidance for both England and Wales and for Scotland will,

“take effect on the day on which this regulation comes into force”.

The guidance as we have it at the moment is guidance, absent the bit about dealing with visitors to universities, and so on. That is referred to in paragraph 60 of the Scottish guidance. I think the Minister was saying that it was not until the complete package was before us that the provisions would come into force. As worded, it would suggest that we have the regulations as they stand. If that is the position, can we take it that the further guidance will be brought before Parliament in further regulations, which would give us an opportunity to debate it? That might be a neat way of dealing with it. I am not quite clear about the procedure and the timing of these various measures.

That is a very good point. I thank the noble and learned Lord for probing further on that. I repeat the answer that I gave in part to the noble Baroness, Lady Brinton. The intention is that these provisions will come into effect on 1 July. I also said that what would be required is for that further regulation-making order, relating to speakers and events, to be in place for that to happen. If that was not in place, the provisions could not come into force as intended on 1 July. That date would have to be changed, presumably in a further statutory instrument that would come before the House. We hope that that will not be necessary, but the current intention is that these provisions will come into effect on 1 July, provided that that important additional element of speakers and events has been passed by your Lordships’ House.

Motion agreed.

Regulation of Investigatory Powers (Acquisition and Disclosure of Communications Data: Code of Practice) Order 2015

Motion to Approve

Moved by

That the draft order laid before the House on 2 March be approved.

Relevant document: 25th Report from the Joint Committee on Statutory Instruments.

At the same time as moving the above order, I invite the House to approve the Retention of Communications Data (Code of Practice) Order 2015.

I should inform the House that the Joint Committee on Statutory Instruments and the Lords Secondary Legislation Scrutiny Committee have both considered the instruments that we are debating today. It might help the House in its consideration of these two communications data codes of practice if I briefly outline what the Government seek to achieve by them and why we have brought them forward at this time.

Communications data are the “who, where, when and how” of a communication, but not its content. It is crucial for fighting crime, protecting children and combating terrorism. The House will recall that last summer we enacted emergency legislation—the Data Retention and Investigatory Powers Act 2014. This Act preserved and added safeguards to our data retention powers. These codes are directly consequential on that legislation.

We are debating two codes today because communications data policy can broadly be split into two areas: acquisition and retention. Acquisition is carried out by relevant public authorities, such as law enforcement agencies. Retention is carried out by communications services providers. Noble Lords will see immediately that these areas are linked: data need to be retained in order to be accessed. These codes—a revised acquisition code and a new data retention code—set out the processes and safeguards governing the retention and acquisition of communications data. They are intended to provide clarity and incorporate best practice on the use of the relevant powers to ensure the highest standards of professionalism and compliance in this important investigatory power. We are bringing these codes forward now to ensure that the important safeguards within them—some of which follow concerns raised by the European Court of Justice judgment last year—come into force before Parliament rises.

I turn to possibly the most important new safeguard contained in the acquisition code: police access to journalists’ communications data. As your Lordships will know, the Interception of Communications Commissioner recently conducted an inquiry into this subject. He made two specific recommendations. His first was:

“Judicial authorisation must be obtained in cases where communications data is sought to determine the source of journalistic information”.

His second was:

“Where communications data is sought that does not relate to an investigation to determine the source of journalistic information (for example where the journalist is a victim of crime or is suspected of committing a crime unrelated to their occupation) Chapter 2 of Part 1 of the Act may be used so long as the designated person gives adequate consideration to the necessity, proportionality, collateral intrusion, including the possible unintended consequence of the conduct”.

He said that the revised code of practice, which had been consulted on,

“contains very little guidance concerning what these considerations should be and that absence needs to be addressed”.

The Government immediately accepted both recommendations. We have amended the code to implement the first recommendation as far as is possible in this Parliament and the second recommendation in full.

The acquisition code, which we are debating, now stipulates that law enforcement must use production orders under the Police and Criminal Evidence Act 1984, or equivalents in Scotland and Northern Ireland, when seeking to acquire communications data to identify or determine the source of journalistic information. This is because production orders require judicial approval. This will help to protect the freedoms that journalists and their sources enjoy in the UK. Whenever law enforcement wishes to access communications data to determine journalistic sources—including whenever law enforcement wishes communications data to support other evidence or intelligence of the identity of a journalistic source—the decision on the application will be made by a judge under PACE. However, this is only a stopgap until we can put this requirement in primary legislation in the next Parliament. Therefore, we have also published a draft clause that sets out how we would do this.

Changes to the guidance in the acquisition code have been made to implement the commissioner’s second recommendation. The code expands on the considerations of rights needed—in particular, the right to freedom of expression must be taken into account when appropriate—and it also contains additional guidance on the considerations of necessity and proportionality, including collateral intrusion and unintended consequences.

I turn briefly to some of the other key provisions in the codes. The revised acquisition code enhances the operational independence of the authorising officer from the specific investigation for which communications data are required. It includes new, enhanced protections for those who work in professions with a duty of confidentiality or privilege. We have not gone further in this regard because it is important to remember that we are debating communications data, which are not the content of a communication. In his report, the Interception of Communications Commissioner made it clear that communications data,

“do not contain any material that may be said to be of professional or legal privilege—the fact that a communication took place does not provide what was discussed or considered or advised”.

This important distinction explains why, while we are enhancing the protections for others in sensitive professions, we are making the change to judicial approval only where communications data are sought to determine a journalist’s source. The fact that someone spoke to, say, a doctor does not reveal what was said. However, if you are trying to establish the source of a leak, knowing who spoke to a journalist may be more important than knowing what was said. The acquisition code also sets out expanded record-keeping requirements for public authorities, improving transparency and implementing recommendations of the Interception of Communications Commissioner.

I turn to the retention code, which sets out how the Government implement the requirements in the Data Retention and Investigatory Powers Act 2014 and the Data Retention Regulations 2014. Specifically, it covers the following issues: first, the review, variation and revocation of data retention notices; secondly, communications service providers’ ability to recover their costs; thirdly, data security; fourthly, oversight by the Information Commissioner; and fifthly, safeguards on the disclosure and use of retained data by communications service providers. The House will be aware that both codes underwent public consultation. The Government received in the region of 300 submissions from organisations and individuals suggesting amendments and providing comments on the codes and I thank all of those who took the trouble to respond. The majority of these submissions related wholly or primarily to access to the communications data of journalists and others in professions which may be subject to professional privilege, with which I have already dealt. We have published a summary of the submissions received and how the Government have responded to them. The department considered all the responses to the consultation and many of the suggestions have been adopted in the final drafts. For example, in the acquisition code, in addition to the safeguards in line with the concerns raised by journalists and the commissioner, a number of technical changes were made to increase the clarity of the section on record keeping. In the retention code, we accepted a recommendation to make it absolutely clear that retained data cannot be used by a communications service provider for marketing purposes.

These two communications data codes of practice outline best practice and ensure that the right safeguards are in place concerning access to, and retention of, communications data. It is important that we bring them into force by the end of this Parliament. I hope your Lordships will support these important statutory instruments. I beg to move.

My Lords, I thank the Minister for his explanation of the two documents. Around 300 responses is quite impressive, and about 250 are wholly or primarily about access to the communications data of journalists. I have just had one about nine minutes ago, as the Minister started speaking. I cannot read it on my BlackBerry, so I cannot do justice to that person.

It is ironic that, in response to the consultation on the acquisitions code, the Interception of Communications Commissioner wrote that it is,

“unhelpful when the reports in the media”—

which I stress—

“misinform the public by stating the use of powers to acquire communications data for crimes, not deemed to be of a serious nature under the Act, are inappropriate. It is also wrong for the reports in the media to cite the Act as a terrorist law and infer that its use for non terrorist related matters is inappropriate”.

I am sure the parties will come together over the next few months in their understanding of this.

From the report of the responses, it is clear that there is still a certain amount of confusion about detail. I note that respondents’ concerns that,

“data would be retained which CSPs did not retain for business purposes”,

were rebutted, as were the concerns that,

“the processing of data by CSPs was a stepping stone to a central database”.

As I said, a lot more communication is clearly needed.

Inevitably, and rightly, there is a focus on data involving certain professions—the Minister mentioned doctors, lawyers and so on—including MPs. I am glad that someone still regards being a Member of Parliament as a profession. I accept that there is no strict privilege here because we are not dealing with content. However, I make the point that, once a person is identified as communicating, it is often only a short step to an assumption about the issues, if not the detail of the content. I was aware of the distinction when I was in practice as a solicitor but it always seemed to me quite a difficult one. If one was tempted to say that one had acted for someone in the public eye, those who heard that comment would make assumptions about what the issues were. I am a bit confused by paragraph 3.75, which says that,

“when an application is made for the communications data of those known to be in such professions … at the next inspection, such applications should be flagged to the Interception of Communications Commissioner”.

I did not immediately see why that should be done then and not straightaway.

If it is not the wrong phrase to say that I look forward to the review of RIPA and the further work on data in the next Parliament, at any rate I anticipate that we will have it.

My Lords, I, too, thank the Minister for his high-speed explanation of the purposes of these two orders which relate to emergency legislation enacted last year—namely, the Data Retention and Investigatory Powers Act, which goes under the happy name of DRIPA, which sought to retain existing data retention powers called into question, as the Minister has said, as a result of a European Court of Justice ruling. The subsequent regulations to the 2014 Act added a requirement for a code of practice on data retention to the existing requirement for a code on acquisition. Both codes are intended to set out how the legislation is to be implemented in practice. The two orders we are discussing bring the two codes into effect.

The two codes of practice before us set out the processes and safeguards governing the retention and acquisition of communications data which, as we know, can be a key factor in combating crime and terrorism and protecting children by law enforcement and intelligence agencies and other relevant public authorities, since communications data can show who was communicating, when, from where and with whom.

Both codes have been the subject of public consultation. As has already been said, the Government received some 300 submissions from organisations and individuals. When the issue of where those 300 submissions could be found was raised during the debate on these orders in the other place last week, the Minister in the Commons said he would write to my colleague, Diana Johnson MP, on this point. By the end of last week no written communication had apparently been received indicating where the responses could be seen. Perhaps the Minister could ensure that that information is provided.

The Regulation of Investigatory Powers (Acquisition and Disclosure of Communications Data: Code of Practice) Order 2015 before us enhances the operational independence of the authorising officer from the specific investigation for which communications data are required. It includes new enhanced protections for those who may have professional duties of confidentiality or privilege, particularly journalists. It reflects additional requirements on local authorities to request communications data through a magistrate, improves the record-keeping requirements for public authorities and aligns the code with best practice in regard to international co-operation and emergency calls.

The Retention of Communications Data (Code of Practice) Order 2015 deals with the new retention code implementing the requirements in the Data Retention and Investigatory Powers Act and the subsequent data retention regulations. The new retention code covers: the issue, review, variation and revocation of data retention notices; the communications service providers’ ability to recover their costs; data security; oversight by the Information Commissioner; and safeguards on the disclosure and use of retained data by communications service providers. It also outlines the scope and definitions of relevant communications data, including data that may be retained in the light of provisions in the Counter-Terrorism and Security Act 2015.

However, the 2014 emergency Act and these two codes of practice do not complete the legislative process. The Government have stated that one of the most important safeguards in the acquisition code covers access to journalistic material. The Interception of Communications Commissioner recently made recommendations following his own inquiry into police acquisition of journalists’ communications data. The acquisition code provides that an application seeking the communications data of a journalist in order to determine sources will be decided by a judge through the terms of a production order under the Police and Criminal Evidence Act 1984.

However, this is only a stop-gap measure—the Government’s words—since it is the intention of the Home Office to put this change in primary legislation in the next Parliament. The Independent Reviewer of Terrorism Legislation is currently examining the operation of the Regulation of Investigatory Powers Act 2000 and his report, which is expected to be completed before May, in a few weeks’ time, may well lead to changes in legislation. The Data Retention and Investigatory Powers Act 2014 itself has an end date of 31 December 2016, so will presumably require further consideration by Parliament.

It is all a very fragmented process of emergency legislation, of stop-gap measures, of imminent further reviews by the counterterrorism reviewer, of further primary legislation already flagged up for the next Parliament and of legislation passed only last year coming to an end in 21 months’ time. The process that has been and is being pursued for dealing with these very important issues does not exactly give the impression—whatever the reality may be—of a carefully planned, thought-through approach to what are very significant matters. Could the Minister say when it is expected that the codes of conduct we are discussing today will need to be updated and reissued in the light of the pending developments I have just mentioned?

Paragraphs 2.21 to 2.23 of the code of practice for the retention order refer to internet-based communications. Paragraph 2.21 states:

“Internet email under DRIPA is considered to be any text, voice, sound or image message sent over a public electronic communications network which can be stored in the network or in the recipient’s terminal equipment until it is collected by the recipient and includes messages sent using a short message service”.

Does that definition include social media or simply refer to internet-based email providers such as Hotmail and Gmail? Does the code of practice include messages sent on social media platforms such as Facebook? If it does, there does not appear to be a section in the guidance devoted to social media. If social media are covered, does a message extend to tagging another person? Specifically, if a person is tagged in a Facebook or Instagram post, does that count as a message for the purposes of this code? What about a person included in a tweet—does that count, as far as the code is concerned? In a situation where there is no user-generated content but there is an interaction, such as liking a post on Facebook, loving a photo on Instagram or favouriting a tweet, would these come within the code of practice?

Paragraph 2.23 says:

“An internet communications service under DRIPA as amended by the CTSA is a communications service which takes place on the internet and can include internet telephony, internet email and instant messaging services”.

The Minister in the Commons hardly clarified the position when he said in the debate on 16 March:

“The code provides that the Home Office may give further guidance to those implementing the requirements”.

He then went on to enlighten us with the statement:

“In other words, there can be further drill-down to give further specificity”.—[Official Report, Commons, 16/3/15; col. 559.]

No doubt, hopefully without too much further drilling down, the Minister will be able to assist in clarifying and placing on the record—which is quite important—how the code, including paragraphs 2.21 and 2.23 to which I have referred, should be interpreted in regard to the points and questions I have raised in respect of social media. That clarification is important and necessary.

The code of practice appears to give the Secretary of State considerable discretion over the review of retention notices, and indicates that factors leading to a review could include significant technological change. How will the dialogue with communications service providers operate and how will it ensure that the Secretary of State will be aware of major technological changes? The Minister in the Commons simply made the somewhat unhelpful and bland statement:

“The Home Office works closely with providers to ensure that it is aware of future technological changes that may lead to a review of a data retention notice”.—[Official Report, Commons, 16/3/15; col. 559.]

I do not really think that is an answer to the question that I have just asked—and was indeed asked in the Commons.

Can the Minister say why no impact assessment has been prepared in relation to the orders we are discussing? As far as I can see, these codes of practice cover the process for decisions regarding the level and extent of compensation payments provided to communications service providers and thus could have financial implications, as well as the potential to affect compliance requirements on businesses. In that regard, can the Minister say what is the total spend on compensation agreed with the communications service providers in each of the past five years?

I hope that the Minister will be able to respond—either now or subsequently—to the queries that I and the noble Baroness, Lady Hamwee, have raised on certain aspects of these two orders, which we do actually support, despite the comments I have made.

My Lords, I am grateful to the noble Lord for his comments, some of which I will have to come back to him about in writing, but I can certainly deal with his question about where the 300 responses are. They are now on the Home Office website. I can certainly send him a link to that but they are there, along with details of how they were considered and which elements have been included in the revised codes.

My noble friend Lady Hamwee was right to stress the importance of the protection of journalists. That links to the previous debate, when we were talking about the importance of freedom of speech and academic freedom within university settings and how these were going to be upheld. Equally, the freedom of the press is one of our cherished principles and we need to maintain it. Therefore, having this review undertaken by Sir Anthony May, who is the Interception of Communications Commissioner and a former High Court judge—he is widely respected—was a helpful step. He came forward with two additional requirements to ensure that there were extra safeguards in place and immediately the Government responded to say that they would do just that.

There had been a suggestion to go still further. I know that some of the respondents, particularly the NUJ, were concerned about issues in relation to seeking the journalist’s permission or notifying the journalist beforehand. But that was not something that Sir Anthony May felt was appropriate at this stage. Of course, that would result in a tipping-off situation, which would potentially put lives at risk.

The noble Lord, Lord Rosser, asked why there was no impact assessment of these codes. A full impact assessment was provided for the underpinning primary legislation, DRIPA, which was enacted last summer, so that contains the elements he referred to. He asked whether the code would need to be updated. Clearly, if Parliament enacts new primary legislation, there might be a requirement to produce new secondary legislation, including replacing these codes.

My noble friend Lady Hamwee asked why paragraph 3.75 of the acquisition code says that the Interception Commissioner should be notified of cases involving sensitive professions at his next inspection rather than right away, as this would mean waiting for nearly a year. We have of course consulted extensively with the Interception of Communications Commissioner in drawing up the code. The formulation is that the code is based on what the commissioner believes will best enable him to carry out a rigorous oversight function.

The noble Lord, Lord Rosser, asked whether we have maintained a dialogue with the communications service providers. As my ministerial colleague James Brokenshire said last week, we work very closely with the telecommunications sector and it alerts us to new technological developments that may have an impact on its obligations.

The noble Baroness, Lady Hamwee, asked why the requirement for judicial authorisation provides only for journalists—oh, I do not think that she did ask that, did she?

It is an excellent question, but I covered that in my pacy opening remarks because I was conscious that an important Statement was due to follow.

The noble Lord, Lord Rosser, asked whether paragraph 2.21 covers social media. As Minister James Brokenshire said at the Report stage of the then Counter-Terrorism and Security Bill:

“A communication can include any message sent over the internet. The legislation relates not to the retention of what the message contained, but purely to the fact that a message was sent”.—[Official Report, Commons, 6/1/15; col. 236.]

RIPA makes that clear and extends the machine-to-machine communications examples, such as the ones that were given.

In the light of what the Minister has said, does that mean that it does cover social media or it does not?

To the extent that social media are messages communicated machine to machine, it does. As to whether the specific examples that the noble Lord, Lord Rosser, talked about, such as tagging on a Facebook page or a tweet, I am going to have to get some further clarification on that and will write to him. But certainly messaging over those platforms would of course be covered.

Surely those aspects that the Minister has just touched on, and about which he says he will write to the noble Lord, Lord Rosser, have to be covered otherwise we have not got the coverage that we require.

I do not want to be drawn too much, at this stage, into the content of it. I have said that I will write to the noble Lord, Lord Rosser, and clarify that point. The noble Lord, Lord West, is absolutely right. Here, I tread very carefully, with my noble friend Lord King of Bridgwater waiting in the wings, but the communications data Bill, which David Anderson is undertaking a review on—he will report on 1 May—will need to be considered urgently. The types of deep web communications within the communications data Bill were felt to be an important part of providing our security services with the ability that they need to tackle the growing terrorist threat against us. That will be returned to as a matter of urgency in the new Parliament.

I am grateful for what my noble friend the Minister said. I think that he covered it in his opening remarks. I understood him to say that, as we go forward, both sides of the House now recognise the need for urgent legislation. I think that Mr Alan Johnson has just joined the club of people saying how impermanent this is. In that case, we have to make clear that there will probably need to be some form of revision of the code of practice to take account of what new forms might come forward. There is not much doubt about the speed with which they are coming forward through social media, WhatsApp and the other things that are happening. Probably a few more that we have never heard of will be in operation by the time that we tackle this legislation.

My noble friend is absolutely right. If there is new primary legislation, it is likely that what will follow is new secondary legislation. If there is new secondary legislation, it is almost certain that the codes that we are talking about today will need to be updated to reflect that. However, I have given undertakings that I will write to noble Lords and I give my appreciation to them for their comments.

Motion agreed.

Retention of Communications Data (Code of Practice) Order 2015

Motion to Approve

Moved by

That the draft Order laid before the House on 4 March be approved.

Relevant document: 25th Report from the Joint Committee on Statutory Instruments

Motion agreed.

European Council


My Lords, with the leave of the House, I will now repeat a Statement given by my right honourable friend the Prime Minister in the other place. The Statement is as follows:

“I know that the whole House will join me in welcoming David Natzler as the new Clerk of the House. Mr Speaker, you went to the ends of the earth in search for the best candidate, but I am glad that we found the answer right here in Britain.

Before turning to the main focus of the Council, which was the situation in the eurozone, let me say a word about the discussions on Tunisia and Libya, on the situation in Ukraine, and on the nuclear talks with Iran.

I am sure that the whole House will join me in sending our deepest condolences to the friends and family of Sally Adey, a British holidaymaker who was among at least 20 tourists and two Tunisians brutally murdered in the terrorist attack at the Bardo museum last week. I have written to President Essebsi to assure him that Britain will stand with the people of Tunisia as they seek to defeat the terrorists and build a peaceful and prosperous future. The EU has agreed to offer practical assistance, and Britain will play its part, deploying SO15 and military counterterrorism experts and continuing to provide assistance in aviation security and tourist resort protection.

The suggestion that some of the terrorists involved had been trained in Libya is the latest evidence of the very difficult situation in that country. The Council agreed on the need for a political solution, supporting UN-led efforts to bring the different parties in Libya together to agree a national unity Government. Britain has provided Libya with aid and military training, and we will continue to do all we can to assist.

I know that some people are looking at this situation and asking whether Britain, France and America were right to act to stop Colonel Gaddafi when we did. We should be clear that the answer is yes. Gaddafi was on the brink of massacring his own people in Benghazi. We prevented what would have been a wide-scale, brutal, murderous assault. It was the right thing to do, and we should be very proud of the British service men and women who carried out this vital task.

Turning to the situation in eastern Ukraine, the Council welcomed the significant reduction in fighting and the progress on the withdrawal of heavy weapons. But, as President Obama, President Hollande, Chancellor Merkel and I agreed earlier this month, it is essential to send a clear signal that sanctions will not be eased until Russia delivers on its promises and the Minsk agreements are fully implemented. This European Council did exactly that. The conclusions state that,

‘the duration of the restrictive measures … should be clearly linked to the complete implementation of the Minsk agreements’.

They also underline our readiness to take further measures if required.

One of the best things we can do to help Russia’s neighbours is to help them fight corruption and strengthen their democracy. Just as the Know-How Fund set up by Margaret Thatcher did a great job of helping Eastern European countries after the fall of the Berlin Wall, so we need the same approach today. At the Council, I announced a new good governance fund with an initial £20 million to support reforms in countries in the eastern neighbourhood and western Balkans. This will complement support from other donors. It will accelerate efforts to fight corruption, strengthening the rule of law, reforming the police and justice system and supporting free markets by liberalising key sectors such as energy and banking. The fund will be up and running by the summer. As well as Ukraine, it will initially cover Georgia, Moldova, Serbia and Bosnia-Herzegovina.

Turning to Iran, I met Chancellor Merkel and President Hollande in the margins of the Council to discuss progress in the vital talks on Iran’s nuclear programme. We are absolutely clear and united in our purpose. Iran must never be allowed to develop a nuclear weapon, but there is a peaceful path to civil nuclear energy. We believe that a comprehensive, durable and verifiable deal is possible, but only if Iran shows greater flexibility and takes some tough decisions during the talks this week.

We also discussed proposals co-ordinating Europe’s energy policy, ensuring transparency of gas supply agreements and that Europe’s energy policies are consistent with reaching the vital deal at the climate change summit in Paris this December.

Turning to the eurozone, the Council welcomed the agreement between Greece and the euro area to extend their programme. Let me say again: this is the last of these Statements of this Parliament, and I think I have uttered this sentence probably 11 times, but Britain is not in the eurozone and we are not going to join the eurozone. But we need the eurozone to work properly. A disorderly Greek exit from the euro remains a major threat to Europe’s economic stability, and it could be very damaging to the British economy. Protecting our economy from these wider risks in the eurozone means sticking to this Government’s long-term economic plan.

Five years ago, Britain’s economy was close to the edge. We had the biggest budget deficit in our peacetime history: a deficit that was forecast to be bigger than that of Greece or any other developed country on the planet. Five years on, the deficit has been halved and our national debt is falling as a share of GDP. We have the fastest growth of any major western economy. We have 1.8 million more people in work, more jobs created in Yorkshire than in the whole of France, and more jobs created in the UK than in the rest of the European Union”.

My Lords, I am repeating a Statement. This is not a debate.

“We need to stay on this path, not abandon it just as it is leading our country to prosperity.

Just as we are acting in our national interest at home, so we have acted to protect our national interest in Europe, too. We have cut the EU budget for the first time in history, we have got Britain out of the euro bailout schemes, we have vetoed a treaty that was not in our national interest, and we have stopped attempts to discriminate against EU countries outside the eurozone, not least with our successful legal challenge last month. We have made vital progress on cutting red tape and completing the single market.

At our G8 in Lough Erne, we kick-started the talks on what will be the biggest bilateral trade deal in history between the EU and the US. We have put power back in the hands of our fishermen so they can sell what they catch. We have negotiated a new single European patent that will reduce costs for entrepreneurs, and part of the patent court will be based right here in London. We have ensured new safeguards to protect our vital financial services industry, and we have returned over 100 powers from Brussels to Britain, giving us more control over our borders, policing and security.

We have clamped down on benefit tourism, and in foreign policy we have worked with European partners to get things done and keep our people safe—from sanctions on Russia and Iran and practical assistance to help countries in north Africa fight terrorism, to international action to help those in desperate need around the world, including in west Africa, where British aid workers are risking their lives helping to stop the spread of Ebola.

In the coming two years, we have the opportunity to reform the EU and fundamentally change Britain’s relationship with it. We have the opportunity to build a European Union that is more competitive, more flexible, more accountable to the people, where powers flow back to member states, not just away from them, and where freedom of movement is not an unqualified right. For the first time in 40 years, we have the opportunity to give the British people their say on Britain’s place in Europe with an in/out referendum. If I am Prime Minister, that is what I will do. Those who would refuse to give the British people their say should explain themselves to this House and to the country. I commend this Statement to the House”.

My Lords, that concludes the Statement.

My Lords, I am grateful to the noble Baroness the Leader for repeating the Statement made by the Prime Minister. The noble Baroness, Lady Royall, apologises for unfortunately being unable to respond on behalf of the Labour Party, as she has been called away on an emergency, but she would like to underline how seriously the Labour Party, and she personally, is committed to Europe.

I begin by condemning the appalling terrorist attack in Tunisia last week. Our thoughts go out to the family and friends of Sally Adey and all the victims who were involved in the attacks. This despicable act, once again, reinforces our determination to stand united across Europe against terrorism.

As the noble Baroness went way beyond the Council communiqué, I shall stray only slightly by noting that, since the last European Council, we have also had the Israeli elections. Although they do not appear to have been discussed at the Council, there should be one overriding priority in relation to Israel: restarting negotiations towards a two-state solution—a secure Israel alongside a viable Palestinian state. In the light of Prime Minister Netanyahu’s comments in the run-up to the election, have the Government sought reassurances about his commitment to a two-state solution? Does the noble Baroness agree that we must put pressure on both sides to restart negotiations? Nothing short of a meaningful peace process will do for this region of the world.

On Iran, we support the talks. We cannot allow an Iran with nuclear weapons; it is vital that we secure a successful outcome. We will support the EU in seeking to bring that about. Let me also echo the noble Baroness’s comments on Libya. We supported the military action that was taken and we now support the call for an immediate and unconditional ceasefire. Why does she believe that things have gone so badly wrong in Libya? Are people not entitled to conclude that the international community did not make adequate planning for the aftermath of the conflict? What does she believe can be done now?

We welcome the discussions taking place between Greece and Germany today. Can the noble Baroness tell us what she thinks the prospects are for a long-term agreement with Greece—an agreement that is in the interests of Greece, the eurozone and the UK?

Turning to the situation in Ukraine, it is vital that the international community stands united in ensuring that the Minsk agreement is implemented in full. We welcome the commitment that EU sanctions on Russia should be eased only in the event of the full implementation of that agreement. Given the situation on the ground and the signs of continuing Russian aggression, I ask the noble Baroness whether discussions took place during the summit about increasing further the pressure on Russia—specifically on so-called tier 3 sanctions on specific sectors.

It is clear that the security dimension of the EU is becoming more and more important. This demands common action, resolve and a clear commitment to our continuing place in the European Union—a commitment on which, of course, it is difficult for the party opposite to deliver. Earlier this month, General Sir Peter Wall warned that reaching common policies would be more difficult still if we were outside the EU. How do the Government answer this warning? Why should we take risks with the effectiveness of our soft power by pursuing a policy that risks divorce from our key allies?

Three years ago the Prime Minister walked out of a European Council announcing that he had vetoed a treaty—but it went ahead anyway. Last year he demonstrated his appalling failure at relationship building, winning support and delivering for Britain by losing a vote 26 to two, becoming the first ever British Prime Minister to lose a vote in the EU Council. Last autumn, after saying that there was no way he would pay back the £1.7 billion extra EU budget bill, the Prime Minister achieved a deal for the UK where we still have to pay, saving taxpayers not a single penny. And now the Prime Minister wants to return to Brussels following the election with a mandate to reform. So perhaps the noble Baroness can tell us: what are the non-negotiable reforms her party is seeking in Europe? Will she comment on the statement made last week by the President of the European Council, supposedly an ally of Britain, who described the Prime Minister’s position as “mission impossible”?

The truth is that the Government’s approach to Europe has created unnecessary economic uncertainty at the precise time when our economy needs stability based on growth and investment. I am afraid that the party opposite cannot be trusted on Europe. It cannot tell us what it is negotiating for and has no strategy to achieve change. Britain badly needs leadership on Europe that puts the national interest first. Britain needs a Labour Government.

My Lords, I am grateful to the noble Baroness, Lady Morgan of Ely, for standing in for the noble Baroness, Lady Royall, and for her various comments. They were quite wide-ranging and I will go through them in turn.

The noble Baroness asked me about Israel and whether we would put pressure on Prime Minister Netanyahu to continue towards a two-state solution. I certainly congratulate Mr Netanyahu on his election victory, and I agree with the noble Baroness that we must put pressure on both sides to ensure that talks get going on a two-state solution. Indeed, the Prime Minister will be talking to Mr Netanyahu this evening, and he will be very clear in that conversation about our support for such a solution; it is in the long-term interests not just of the Palestinian people but of the Israelis and the wider situation in the Middle East, and Britain’s position on that will not change.

The noble Baroness asked what was happening in Libya now. We should be clear that the Libyan people and Government did not want an occupying force—they did not want to be controlled remotely by others. They were given the opportunity to opt for a more unified future but sadly they have not yet taken it. We have done everything that we could to keep putting that option on the table, and we will continue to do so towards a national unity Government. We will very much be part of the UN-led effort to that end.

The situation in Greece remains worrying. On the one hand, there are the various creditor nations that want to see Greece fulfil its programme; on the other, there is a Greek Government who do not yet seem to have come up with reforms that give their creditors confidence. However, I am pleased that the negotiations on that continue. It should be noted that Chancellor Merkel is meeting Prime Minister Tsipras today.

The noble Baroness asked about sanctions relating to Ukraine. I make the point that it was very much the UK that led the way on ensuring that sanctions were put in place, remained in place and were extended until the Minsk agreement is implemented in full. If things were to deteriorate in Ukraine then yes, we should be prepared to consider more sanctions, should that be necessary.

Regarding the questions that the noble Baroness put to me regarding Europe and the future, I shall say a few simple things to her and to the House. The people of the UK, and indeed throughout Europe, do not want the status quo in Europe. They want Europe to be focused on jobs and prosperity, recognising that it is an organisation, or a partnership, that is made up of 28 individual member states. The Prime Minister will renegotiate our membership of the European Union; he is committed to doing that and has proved that it is possible to renegotiate some of the terms of Britain’s membership in Europe. We are absolutely committed to reform; we think that that is the right way forward, and it is in stark contrast to what the Opposition are offering, which is not even to acknowledge that Brussels has too much power. When the Prime Minister has successfully renegotiated the terms of Britain’s membership of Europe, he has committed to giving the people of this country a say in the membership of Europe with an in/out referendum, and we are the only party that is committed to doing so.

My Lords, I thank the Leader of the House for repeating that Statement, which sounded rather like the Conservative election manifesto—but then so did Labour’s response. I am sure the House will be pleased to hear that I will stick to the conclusions of the European Council rather than doing that.

The conclusions say at paragraph 13 that the high representative, in co-operation with member states, is going to prepare an action plan by June to counter Russia’s disinformation campaign. In light of the questions we had a little earlier today in the House, can the Leader of the House confirm that the BBC will assist the high representative in forming this communication team, as it clearly has great expertise in that regard? The other point is on paragraph 16 and the Commission’s initiative to submit a European agenda for migration. Will this be restricted perhaps to the Schengen area, or will it be a comprehensive EU-wide agenda, because the material facts and action possible will be very different in both regards?

Finally, the Leader of the House challenged us at the end of the Statement on the European referendum pledge—

I am concluding. Could I just ask whether the Leader of the House has seen the report coming out today by Open Europe on the cost of exit?

On my noble friend’s first point about communication and Russia, I would not want to commit as to what role the BBC World Service might play. I point my noble friend to the fact that the good governance fund to which I referred in the Statement is designed to help those eastern nations which neighbour Russia and in the Balkans to improve their strategic communications. As to her point about the Open Europe report today, the key thing that I took away from it was that the best way forward is for a reformed European Union, and that is what David Cameron is committed to securing.

My Lords, I would like to pose two questions which were discussed at the European Council. The first relates to sanctions on Russia. I wonder if the Leader of the House can confirm that my reading of paragraph 10 of the conclusions, which states that,

“the duration of the restrictive measures against the Russian Federation, adopted on 31 July 2014 and enhanced on 8 September 2014, should be clearly linked to the complete implementation of the Minsk agreements, bearing in mind that this is only foreseen by 31 December 2015”,

in effect precludes any decision by the Council when the one-year duration comes up for discussion in July and September other than to continue the sanctions, unless by some chance Mr Putin has undergone an epiphany of an unlikely kind.

Secondly, the Council conclusions—here I refer to paragraph 16—refer to the need to strengthen Triton, the FRONTEX operation in the central Mediterranean. What contribution will Britain make to the strengthening of the FRONTEX operation in the central Mediterranean, given that on both humanitarian and migration grounds it is in our interest that that operation should work better?

On the first question the noble Lord asks about sanctions against Russia, I can be absolutely clear: those sanctions are linked to the full implementation of Minsk and remain in force until the end of this year. That is what was committed to at the Council. He may remember that the Prime Minister led the charge to ensure that these sanctions extended beyond the original deadline of July 2015 until the end of this year, and that is what was agreed at the Council last week. As for his question about the central Mediterranean, I am afraid I will have to come back to him on that.

My Lords, is the noble Baroness familiar with the content of paragraph 13, which was referred to by the Liberal Democrats? It says:

“The European Council stressed the need to challenge Russia’s ongoing disinformation campaigns and invited the High Representative … to prepare by June an action plan”.

It goes on to say:

“The establishment of a communication team is a first step in this regard”.

It plans to get a programme “by June”, and before that it will establish a communication team. Does the Minister agree that that statement, to which her Government have subscribed, does not give the necessary degree of urgency to a problem which this House took much more seriously at Question Time than the Government seem to have done in their communiqué?

I do not agree with the noble Lord’s description of what the Council agreed. However, clearly, I will ensure that the views expressed during Oral Questions today on that matter are relayed back to the Foreign Office. Indeed, my noble friend Lady Anelay answered those questions, so I am sure she will already have done so.

My Lords, that was a commendable Statement. Has my noble friend noticed that a good deal of the General Secretariat conclusion document is taken up with thoughts about an energy union and energy policy at the EU level? Does she agree that it may be time to remind, or ask her colleagues to remind, the European Commission and the secretariat of the Council that energy competence does not lie totally with the European Union but is shared, with the bulk of it lying at the national level? Some things can be done better at EU level, such as interconnectors of gas and electricity to help the eastern European states, which are dependent on Russia. However, does she accept that a great deal can be done by nation states to improve their affordable energy supplies and to help with decarbonisation and reliability without the expensive and misguided policy advice of the Commission? Can she pass that message on?

I always pass on the messages my noble friend provides me with. Energy policy is quite an interesting example of where the Prime Minister has been influential in refocusing the European Union’s approach. We have been able to ensure that we have combined energy security, the costs of energy, and climate change in a more sensible way, so that the way in which we try to improve the internal market for energy in Europe makes sense to member states. Certainly, we have been able to reach agreement without any kind of inflexible targets on member states which mean that they are no longer able to decide their own energy mixes; as my noble friend suggests, that is a very important part of our independence.

My Lords, does the noble Baroness agree that the Statement she has just read out exposes the contradiction and confusion at the heart of the Government’s European policy? In the first half, we had many good reasons why we need to stand together with our European partners—to deal with the situation in Iran, to stand up to Russia, to deal with chaos in north Africa and the problem of migration. All those are good reasons for working within Europe. In the second half, however, we had the Government’s policy of standing there with one hand on the exit door. How on earth can Britain lead in Europe if at the same time it is threatening to leave?

My Lords, the only person who is confused about European policy is the noble Lord. During our time in Government, we have been committed to ensuring the best deal for Britain as a member of the European Union. The Prime Minister has been successful in securing a reduction in the European budget. He has vetoed a treaty that was not in our interests and secured lots more reforms, that have been in the interests of the British people whereas the noble Lord’s own party leader talks only about Brussels not having enough power and about joining the single currency potentially at some point in future.

My Lords, I quite agree with the Statement where it says that a disorderly Greek exit from the eurozone is in nobody’s interest. Clearly, it is an orderly exit that is desirable. However, I should like to revert to what my noble friend Lord Howell said about energy policy. This is very important. Is my noble friend the Leader of the House aware that over the past few years a great battle has been going on between the Commission, which wishes energy policy to be a European Union competence, and the United Kingdom, supported by Poland in particular, which says that energy policy and mix should be a national competence? So far that has prevailed. Can she give an undertaking that that is the policy of the Conservative Party as there has been a certain amount of party politics, however deplorable, in these exchanges so far? Can she give a firm undertaking that it is the policy of the Conservative Party that energy policy will remain a national and not a European Union competence?

Yes, I can give my noble friend that assurance. As I have said, what we have been able to secure because of the Prime Minister’s negotiating powers in Europe is that we retain responsibility for deciding which methods of energy we should use in our country.

My Lords, can the Leader of the House state quite clearly that the sanctions on Russia will not be eased until there is full implementation of the Minsk agreement? That agreement covers only Luhansk and Donetsk—it does not touch on Crimea. The implication is that, if the Russians observe their obligations under the Minsk agreement that relate to Luhansk and Donetsk provinces but remain in full occupation of Crimea, contrary to international law and the Budapest agreement, all economic sanctions will then be lifted. In practice, would not that amount to the western world acquiescing in the illegal occupation of Ukraine? Is that really the Government’s policy?

We remain absolutely clear that Russia’s annexation of Crimea was illegal and illegitimate, and we will certainly not change our view on that.

My Lords, while my noble friend is taking messages back, will she take the message back that it is very often easier to get people to join with you if you occasionally say how good it is to be party to and a member of the European Union? Would it not be much more helpful, in the perfectly proper desire to have reform in the European Union, if we just remarked on the huge importance to Britain of being in the European Union and to the European Union that Britain is in it? If we were a bit more positive, we would have more chance of winning.

I am grateful for the message from my noble friend as well. I agree with him at the same time as I agree with my other noble friend, because this is precisely the point. We believe that there are really important, positive advantages to Britain being a member of the European Union. However, we do not believe that the status quo is where we should remain. We believe that some changes are necessary in Europe—that is what the Prime Minister is committed to renegotiating; then he is committed to putting that clear choice to the British people. But there are very important and positive reasons for us to remain a member of the European Union.

My Lords, will the good governance fund come out of the aid budget or the Foreign Office budget? The Statement says that,

“the Council welcomed the significant reduction in fighting and the … withdrawal of heavy weapons”.

Is this not part of Minsk II, and did not the Government and some allies—some European partners—try to ensure that the sanctions, particularly the tier 3 sanctions, would be renewed forthwith? But the majority of our partners thought it made sense to monitor the implementation of Minsk II, which, after all, was agreed on 12 February. Is this not a reasonable position?

In answer to the noble Lord’s first question, the good governance fund will come, initially at least, from the DfID budget. Secondly, I have made it clear that sanctions will remain in place until Minsk II is fully implemented. The importance of those sanctions, and of all members of Europe being united in keeping them in place until Minsk II is fully implemented, was agreed by all member states at the Council last week.

My Lords, I am grateful to the Leader of the House for repeating the Statement—although I noticed that the noble Lord, Lord Lea, tried to intervene part of the way through. Perhaps that was because he thought that the wrong Statement had been passed to the Leader of the House and it was instead the Prime Minister’s draft notes for the leadership debates ahead of the general election. However, I assume that we are actually debating the Council conclusions and the responses to those. Paragraph 6 of the conclusions says:

“Member States and the Commission should step up efforts to communicate the benefits of the agreement”,

that is, the TTIP agreement,

“and to enhance dialogue with civil society”.

Does the Leader of the House agree that it is important to promote dialogue not just on TTIP but on many of the issues linked to that conclusion, including the European Semester, under which heading it, slightly bizarrely, falls? Should we not engage in further dialogue not only on that but also, more generally, on the benefits of British membership of the European Union, which all sides of your Lordships’ House strongly supported in a debate last November?

My noble friend is right to highlight the TTIP agreement—the Europe-US trade agreement. Once it is finally in place it will be worth a huge amount to the United Kingdom and all other members of the European Union. It is a good example of why membership of the European Union remains very important to us as a country.

Why do you think I am sitting over here?

I want to raise a quick question about Iran. We all agree that Iran must never be allowed to develop nuclear weapons, but I would remind the Leader of the House that Iran is a member of the nuclear non-proliferation treaty. Israel is not, yet it has nuclear weapons. What will the Government do to persuade Israel that it too should join the non-proliferation treaty so that proper discussions can take place between two equal parties?

The noble Lord raises an important question, but in the time available I will not be able to do it justice. Clearly we want to prevent the extension of nuclear arms wherever there may be a risk of that happening.

My Lords, in the event of an incident occurring somewhere in eastern Europe during the next six weeks, can we have an assurance that the Prime Minister would not unilaterally take action without the fullest possible consultation with the leader of the Opposition?

The Prime Minister has been clear that his first priority would be to seek a political solution and diplomatic route in response to any kind of situation and that any action taken by the United Kingdom would be as part of wider international auspices.

Counter-Terrorism and Security Act 2015 (Authority to Carry Scheme) Regulations 2015

Motion to Approve

Moved by

That the draft Regulations laid before the House on 2 March be approved.

Relevant document: 24th Report from the Joint Committee on Statutory Instruments

My Lords, I shall speak to the Motions to approve the following statutory instruments: the Counter-Terrorism and Security Act 2015 (Authority to Carry Scheme) Regulations 2015; the Authority to Carry Scheme (Civil Penalties) Regulations 2015; the Passenger, Crew and Service Information (Civil Penalties) Regulations 2015; the Aviation Security Act 1982 (Civil Penalties) Regulations 2015; the Terrorism Act 2000 (Code of Practice for Examining Officers and Review Officers) Order 2015; the Counter-Terrorism and Security Act 2015 (Code of Practice for Officers exercising functions under Schedule 1) Regulations 2015; and the Civil Procedure (Amendment) Rules 2015.

This secondary legislation has been brought forward to implement measures in the Counter-Terrorism and Security Act 2015. These measures have been debated in this House very recently, as the primary legislation was enacted only on 12 February. During Parliament’s consideration of that legislation, there was widespread recognition of the threat from terrorism and broad support for the measures that were in the Bill. These instruments bring to life some of those important provisions. In passing that legislation in February, the House accepted the need for these new powers.

I should inform the House that the Joint Committee on Statutory Instruments has considered all seven of the instruments that we are debating today. It has drawn the special attention of both Houses of Parliament to the Authority to Carry Scheme (Civil Penalties) Regulations 2015 and to the Civil Procedure (Amendment) Rules 2015. The committee cleared the other five instruments. The Lords Secondary Legislation Scrutiny Committee has also considered all seven instruments and has cleared them without drawing them to the special attention of the House.

It might help the House in its consideration of these statutory instruments if I briefly outline what the Government seek to achieve by them, and why we have brought them forward at this time.

The Counter-Terrorism and Security Act 2015 (Authority to Carry Scheme) Regulations 2015 bring into force the authority to carry scheme 2015. These regulations are provided for in Section 23 of the Counter-Terrorism and Security Act 2015. The purpose of the scheme is to prevent or disrupt travel to and from the UK by individuals who pose a terrorism-related or other threat to the UK. It also mitigates the threat of terrorist attack against aircraft and, should the threat change, ships and trains expected to arrive in or leave the UK.

International aviation remains a target for terrorists. There have been attempts to launch attacks inside planes using concealed explosive devices and terrorist groups with the intent and capability to undertake such attacks continue to operate. Authority to carry is now an important element of our counterterrorism strategy. The new 2015 authority to carry scheme allows us to respond to the changing threat and prevent individuals who may pose a terrorism-related or other threat from boarding flights from, as well as to, the UK. In order to remain responsive to changes in the threat, it is necessary to include international rail and maritime. The scheme applies to all passengers and crew travelling or expected to travel to or from the UK. If a carrier does not comply with any aspect of the scheme, particularly if a carrier were to carry an individual it had been refused authority to carry, it will be liable to a financial penalty.

The Authority to Carry Scheme (Civil Penalties) Regulations 2015 establish a penalty regime for breach of requirements of the authority to carry scheme 2015. A carrier may be liable to a penalty for breach of a requirement: to seek authority to carry a person; to provide specified information by a specified time; to provide information in a specified manner and form; to be able to receive communications in a specified manner and form; or a requirement not to carry a person when authority to carry has been refused. The scheme specifies that it is the requirements set out in detailed written notices issued to carriers under the Immigration Act 1971 or the Immigration, Asylum and Nationality Act 2006 that must be met under the scheme, rather than those requirements being specified in detail in the scheme itself.

I will now move on to the Passenger, Crew and Service Information (Civil Penalties) Regulations 2015. These establish civil sanctions that may be imposed on carriers who fail to comply with a requirement to provide information under the Immigration Act 1971 or the Immigration, Asylum and Nationality Act 2006. These will complement existing criminal offences. The regulations allow the Secretary of State to impose a civil penalty not exceeding £10,000 for each breach, but a carrier may not be required to pay a penalty if they have a reasonable excuse or have otherwise been penalised for the same breach. The Government’s clear preference is that carriers are able to comply with these requirements. We will continue to work with carriers to ensure that this happens. However, when there is a failure, particularly if it is wilful or negligent, it is important that appropriate sanctions exist to deter repeat behaviour.

The draft Aviation Security Act 1982 (Civil Penalties) Regulations create a civil penalty scheme for addressing non-compliance with certain security directions or information requests made by the Secretary of State under the Aviation and Security Act 1982 in relation to inbound flights. The Secretary of State would have the power to impose a penalty up to a maximum of £50,000. Specifically, penalties could be issued where, in respect of an inbound flight to the UK, a carrier has failed to comply either with a request for information or a direction requiring that certain security measures are applied. The threat to aviation from terrorism remains serious. These regulations help the Government to enforce their powers to specify certain security measures for flights operating to the UK where necessary.

The Terrorism Act 2000 (Code of Practice for Examining Officers and Review Officers) Order 2015 gives effect to a revised code of practice for examining and review officers who exercise powers under Schedule 7 to the Terrorism Act 2000 as amended by the Counter-Terrorism and Security Act 2015.

I now turn to the regulations which bring into operation the code of practice in relation to the exercise of powers under Schedule 1 to the Counter-Terrorism and Security Act 2015—the power to seize travel documents. These powers are exercisable at the Northern Irish border area and at ports throughout the UK. They allow for the seizure and temporary retention of travel documents when there is a reasonable suspicion that the person intends to travel to engage in terrorism-related activity outside the UK. Officers exercising the power are required to follow the code, making the code an important safeguard on the use of this power. The code sets out: the process for the training that must be undertaken by officers exercising the power; the procedure for designating Border Force officers to exercise the power under police direction; how the functions under Schedule 1 must be exercised; the information that must be provided to a person subject to the power, and how and when that information should be provided; and the process of reviewing a decision to retain travel documents.

The last of the seven instruments which your Lordships are considering today is the Civil Procedure (Amendment) Rules 2015. The Counter-Terrorism and Security Act 2015 introduced temporary exclusion orders, which enable the Secretary of State to disrupt and control the return to the UK of British citizens suspected of engaging in terrorism-related activity abroad. The temporary exclusion order also enables the Secretary of State to impose certain requirements on an individual on his or her return to the UK. There are two stages of judicial oversight of this measure: a permission stage and an in-country statutory review. This instrument introduces rules of court to govern these proceedings in the High Court and appeals to the Court of Appeal in England and Wales.

I have already mentioned that the Joint Committee on Statutory Instruments reported on this instrument. The Government have acknowledged the issues raised by the committee and has committed to updating the rules by an amending instrument as soon as practicable. That amending instrument will be made by the Civil Procedure Rule Committee, and the process for doing so is already under way. However, as the Government made clear in their response to the Joint Committee, we do not consider that the drafting errors acknowledged render the rules invalid or inoperable. These court rules are essential to ensure that we can operate appropriate safeguards for the temporary exclusion order powers. Accordingly, I hope that your Lordships will support this instrument.

These instruments are needed to implement measures in, or consequential to, the Counter-Terrorism and Security Act 2015. The four border security instruments are required to prevent or disrupt the entry to, return to or departure from the UK of individuals who pose a terrorism-related threat; to mitigate the threat of an attack on an aircraft operating into the UK; or, in the circumstances of children travelling to Syria, to prevent and disrupt travel by individuals who are putting themselves at risk. The Act made important clarifications to the use of the Schedule 7 power, and the revised code of practice for officers exercising that power reflects these changes. The temporary passport seizure code of practice is an important safeguard on the use of that power. The temporary exclusion order court rules are required to implement the judicial oversight of this power in England and Wales. I commend these instruments to the House. I beg to move.

My Lords, these instruments form a very important part of the defence of our borders and of the realm. I think I am right in saying that they provide for the reintroduction of the monitoring of the departure of persons from the United Kingdom. I want to ask my noble friend—in as far as the instruments cover the departure of persons from the United Kingdom—about the method of administering the scrutiny of travel documents of persons proposing to or attempting to depart. Is that scrutiny made by the organisation, company or airline by which the persons intends to travel, or by an immigration officer in the same way as is now being done to people arriving? In other words, who will scrutinise passports? Under these instruments, will it be done by the airline or whatever? If it is not being done by an immigration official scrutinising the travel documents using the latest technology, will any warning that an immigration officer would have who scrutinises and examines a passport or other travel document of somebody seeking to arrive in this country—a system that has advanced a great deal in recent years—be available to anyone who is asked to scrutinise the document or passport of someone seeking to depart from the United Kingdom in the same way? In other words, will a non-government official to whom the task is delegated, such as the airline, the railway people or the boat people, have that same information or be able to have it under these instruments?

My Lords, I merely seek clarification on one aspect of the 2015 Counter-Terrorism and Security Act’s code of practice for officers exercising functions under Schedule 1 of the Act, which accompanies these instruments. This code of practice is referred to in the 28th report of the Secondary Legislation Scrutiny Committee. The final sentence of the information paragraph reads:

“In its consideration of the Code the Committee was concerned that directions about when officers may search a member of the opposite sex, particularly a child, were not as clear and consistent as they need to be”.

I am most grateful to my noble friend the Minister for his reply to my written query regarding this matter, but I remain concerned that the clarification I sought has not quite been met.

The committee and I still have concerns relating to the powers that the code of practice confers on officers who need to search a child—defined as anybody under 18—in order to seize or retain their travel documents. The code is exemplary in its guidance to police constables and designated border control officers, highlighting the care which must be taken when exercising their powers and the need to be aware of the necessity of safeguarding a child’s safety and welfare, as well as urging officers to be sensitive to the intimidation that children travelling alone can feel and the possibility that they may be vulnerable to exploitation by an adult with whom they are travelling.

I draw the attention of the House to paragraph 31, which outlines the scope of the power as it relates to the searching of children who have been removed from an adult. In particular, it gives guidance that two officers of the same sex as the child should, where reasonably practicable, be present during the search. It was the insertion of the three words, “where reasonably practicable”, which most concerned the committee and which led to its call for clarity. It seemed to the committee that the words,

“two officers of the same sex … where reasonably practicable”,

could give rise to any number of permissible permutations. I would be grateful if the Minister would clarify which of these would be justifiable and acceptable.

If two officers of the same sex as the child are not available, would two officers, one of the same sex and one of the opposite sex, be acceptable? If they are not available, would two officers of the opposite sex to the child be acceptable? If two officers are not available, would just one officer of the same sex as the child be acceptable? If they are not available, would just one officer of the opposite sex to the child be acceptable? At this stage, I am at a loss to understand why the last alternative is included. Are we to take from this that our ports are so understaffed that there are likely to be times when only one officer of the opposite sex will be available to search a child?

The code has already referred to the intimidation that a child travelling alone can experience. Does the Minister believe that a child, removed from an adult, would experience a similar feeling if searched by one or two officers of the opposite sex because they were the only reasonably practicable alternatives?

I would also be grateful if the Minister would add some detail on the advice given to officers governing the circumstances in which a child may be searched in the absence of the responsible adult with whom they are travelling, and explain how the child is to be removed from the adult and where the search will take place. If the child is travelling with an adult who is deemed to be exerting influence or pressure, how is an officer to defend him or herself against accusations of inappropriate behaviour if the child is influenced to make accusations against the officer and there are no witnesses to the search?

However, these children are unlikely to make a complaint about the manner in which they are searched, by whom they are searched and where they are searched. They are intent on leaving this country and, to all intents and purposes, this renders them powerless to control their situation. I would want firm guidelines to govern the way in which my grandchildren could be removed from my presence and searched at a UK port. Those firm, unambiguous guidelines should be applicable to all children.

The Secondary Legislation Scrutiny Committee called for clarity in this aspect of the code of practice. I hope that the Minister will be able to provide the House with that clarity and describe, definitively, the circumstances under which children will be searched.

My Lords, I am grateful to the Minister for explaining this raft of instruments. I have a few comments and queries.

As my first query is on an order which is not before us but which is relevant, I do not expect an answer, but I want to use this opportunity to explain a point which I raised with the Secondary Legislation Scrutiny Committee, of which I am a member. The authority to carry scheme sets out to whom it applies. As one would expect, it applies to those who are subject to a temporary exclusion order. Statutory instrument 438—I apologise to the House that I did not make a note of its name—provides that, for the purposes of the service of the order, it can be served on an individual’s representative. I queried who a representative might be for this purpose. The advisers to the Secondary Legislation Scrutiny Committee took this up with the Home Office. I was concerned that, in the normal run of things, one might think that a representative was, for instance, a solicitor, but a solicitor who was not able to pass on the information to his client that an order had been served would find himself in a very difficult state and would probably disclaim the client.

An answer has come back and I want to get it on the record. It states:

“The Home Office agrees that … For adults … a representative must be a legal representative such as a solicitor or legal executive who acts on behalf of the person. The Home Office agrees that the Secretary of State cannot deem someone to be a representative in the absence of a clear relationship such as a … contractual relationship”.

As I have said, any lawyer thinking ahead a bit in that situation would disclaim that relationship. The Home Office also agreed that,

“for someone under 18 the term would cover the person’s parent or guardian”,

and that they could be a representative for this purpose. As I said, I am not expecting the Minister to comment on that.

Paragraph 22 of the scheme states that a person who,

“is refused authority to carry will be informed of that”,

in a notice by the carrier. It occurred to me to ask whether there is any penalty on the carrier who fails to pass on information—not information that they have been denied boarding, because they will have worked that out, but information of the contact telephone and email address that the individual needs to make further inquiries—and whether there should be any liability for compensation on a carrier who fails to pass on that information.

The Explanatory Memorandum to the authority to carry scheme regulations refers to,

“the need for an effective redress process in the case of mistaken identity. Administrative arrangements are in place to ensure that an individual is not mistakenly identified again”.

The second occasion would be pretty awful, but the first occasion of mistaken identity is pretty bad, too. I do not know whether the Minister has any comment on that.

With regard to the penalties for breach of the scheme, again I quote from the relevant Explanatory Memorandum. The consultees felt that the maximum £50,000 fine,

“was excessive and disproportionate, especially when compared to the possible fines imposed by other countries”.

Does the Minister have any information as to that comparison? There is also a feeling that the maximum penalty is unreasonably high, and I understand that there will be guidance on how the penalties will be applied. As this goes to the amount that will actually be levied in different circumstances, can the Minister tell the House when that guidance will be issued?

More generally, there has been a good deal of comment that the current authority to carry scheme is actually quite effective. What extensions from the current scheme will these various regulations and orders bring in?

The Explanatory Memorandum to the Schedule 1 code of practice regulations talks of engagement with “key stakeholders”. Did those include NGOs, particularly civil liberties NGOs, which obviously have an interest in this issue?

We debated the primary legislation pretty fully, so I do not want to spend too much time on this, but it perhaps builds a little on the points my noble friend Lady Humphreys made. There is reference in the code of practice to officers picking up,

“indicators of abuse or neglect”.

That is beyond what the code is aimed at, but it is very welcome. Reading that, it occurred to me that, although there is reference to abuse and neglect, there is no reference to trafficking. Again, I do not expect a reply tonight, but given the work that the Home Office and Parliament have been doing on slavery and trafficking, I wonder whether there is scope for a consolidated code or consolidated non-statutory guidance which brings together all the indicators that officers who may find themselves dealing with children in this situation might be looking out for in order to be able to identify children who are at risk. I appreciate that this is beyond the scope of these various instruments, but it might be very useful work to think about. This is entirely off the top of my head and I do not want to suggest unnecessary work to either the Home Office or UKBA.

My Lords, this is a larger number of instruments but a shorter debate than usual. We support the regulations and order, but it would be helpful if the noble Lord were able to answer a few questions. To take the last one first, paragraph 8 of the Explanatory Memorandum for the Civil Procedure (Amendment) Rules, on “Consultation outcome”, says:

“The Lord Chief Justice was consulted … Due to the urgency … there has been no public consultation”.

But that is not the outcome; it just says that he was consulted, without saying what the response was. If there was an outcome to the consultation, it would be helpful to know what it was, otherwise there does not seem much point in calling it an “outcome”.

The points made by the noble Baroness, Lady Humphreys, on the Counter-Terrorism and Security Act regulations are interesting and valid ones to look at. I would also have thought that in many cases the officers concerned would not want, in their own interests, to be searching a child, whether of the same sex or of the opposite sex, on their own. If I was their trade union representative, I would probably advise them not to. There are dangers to the child, but there are also dangers to the officers concerned. That is something that perhaps should be examined and considered. Our staff do a very difficult job in difficult circumstances and we would not want them to be in a position where they could face accusations; nor would we want a child to feel uncomfortable and even more frightened than they would already be in such cases. I hope the noble Lord is able to give some reassurance and clarification on those points.

The other point I would like to make concerns the risks identified in the impact assessment. It says:

“Possible risks will be mitigated by monitoring and reviewing the use of the powers”.

The powers will be used by Border Force officers and the police but they are the very people who will also be monitoring the use of the powers, or they will at least be collecting the data to monitor the use of the powers. This has been quite a sensitive issue and has had a lot of discussion. Clearly, I am confident that the Government do not want mistakes; they want to get this right. Can the Minister say anything about how the powers will be monitored? Data will be provided by the officers implementing this provision but the monitoring of it will be quite important so that we can assess how effective it is and how appropriately it is being used, to ensure that it is not used for anything other than the purposes for which it is intended.

The authority to carry scheme regulations and the explanatory memorandums—I am sure that is not the correct plural—all referred to the fact that 28 people or organisations responded to the consultations. Was there one consultation or will 28 bodies respond? Was there one, overarching consultation or separate ones? I think it will be helpful to look at the ones relating to the authority to carry schemes together. It was quite clear that the majority of carriers welcomed the extension of the scope and that was widely supported, although a majority were also concerned that the maximum fine of £50,000 was excessive. I have seen the Government’s response to that. What is important is when that will be implemented. Looking at the Explanatory Note, I am not 100% clear about “best endeavours”; one of the impact assessments also refers to the Secretary of State taking into account how co-operative someone has been. It would be helpful to have a little more guidance on the circumstances in which the Government would pursue action that could lead to a maximum fine. I know that the maximum fine is used only rarely and is intended to be a deterrent but I would like to know the circumstances that would mistake against prosecution in the first place and, secondly, the level of the fine.

The guidance for these regulations has not been published. A lot will depend on what exactly is in the guidance. Is the Minister able to say when we will see it, what the process will be for scrutinising it, whether there will be consultation with the carriers themselves and when it will be brought to your Lordships’ House?

I also picked up the strange issue about mistaken identity. The Explanatory Memorandum says:

“Administrative arrangements are in place to ensure that an individual is not mistakenly identified again”.

Surely we should have far more robust processes in place if we want to have confidence in the procedure. If mistaken identity occurs once, it surely should not happen to the same individual a second time, or perhaps I am misunderstanding something here. I would like to know what administrative arrangements are in place to ensure that we do not have a second mistaken identity. Really, what are we doing to ensure that we do not have the first mistaken identity? The issue of identification is crucial to providing confidence in this. I am slightly worried.

I understand that there will be some discussions with the industry about the guidance. I would feel happier to see a willingness to make practical changes in how things work. Quite often we can look at something in theory and know where we want to get to, but the industry may have suggestions on how that works practically rather than just in theory. I would like an assurance from the Minister that the Government will consider changes if the industry comes up with ways in which to make this scheme more effective without undermining the basis for it in the first place.

I have similar points to make on the Passenger, Crew and Service Information (Civil Penalties) Regulations, as similar things have arisen. The Explanatory Memorandum states that:

“The Government’s position however remains that carriers must provide accurate, complete and timely information. Not only is this a legal requirement but they also have a responsibility to ensure adequate steps are taken to protect against threats to their assets, passengers and crew”—

and indeed to the country. If a mistake has occurred, what evidence will the Government require from carriers to ensure that they have used best endeavours? Is there some way of monitoring the processes, procedures and protocols that they have in place? That will be absolutely crucial to ensuring that it works in practice.

On the fifth and sixth statutory instruments, the Minister knows that we have supported the power for passport retention and think that it is appropriate. We still take the view that there should be a power of appeal; that is extremely important. Again, the detail of the code of practice will be crucial and we look forward to more information on that. Can the Minister make clear—just to put it on the record—what changes have been made to the code of practice and any guidance as a result of the feedback on the issues? That feedback is mentioned in the Explanatory Memorandum on these regulations and includes,

“specifying the availability of legal aid and clarifying whether family members may access temporary support arrangements”.

Those issues were raised in previous debates that we have had, and by the Joint Committee on Human Rights. If the Minister can give further clarification on that, that would be very helpful.

That is the extent of my questions to the Minister. If he is unable to address those today, he can write to me, which would be extremely helpful.

My Lords, I am grateful for the contributions that have been made in the debate. I am deeply conscious that there are a large number of orders and regulations before your Lordships this afternoon. The detail of the questioning is very welcome and important—we are talking about very serious issues—and I guess that it will not be possible for me to answer every particular question today. However, I will certainly undertake to write, and copy it to all noble Lords who have been involved in this debate so far.

I will make one general point about the authority to carry scheme and how it operates—this covers the point that was raised about identity and the possibility of mistakes and, in many ways, touches on the point made by my noble friend Lord Marlesford. This is information that the airlines are currently required to send to the National Border Targeting Centre based in Manchester. The information comes in a particular format: it has the passport as one identifier and the date of birth as another identifier, along with the name. It is hoped that through triangulating those three bits of important information the possibility of a mistake can be eliminated.

My noble friend Lady Hamwee asked what changes we are making as a result of this order. Effectively, the changes that we are making in relation to that area are that, in the past, it was for inbound flights. The information on people coming into the UK had to be submitted in advance, cleared and checked against the no-fly list. We are now saying that, where inbound journeys are taking place through certain ports or rail terminals and where UK citizens are travelling abroad for obvious reasons—for instance, if there are flights from London to Istanbul or via Barcelona with an end point in Istanbul—that would raise certain questions. Therefore, we are now asking for that additional information to be provided.

The noble Lord, Lord Marlesford, raised a point on which he and I have an ongoing discussion: that is, passport checks. Specific passport checks are not covered in these regulations—they were covered in the Immigration Act 2014. However, I take his general point about the need to have strong checks on all people who come into this country and leave it—and those exit checks will be in place, thanks to the Immigration Act 2014, by the end of this Parliament, or certainly by next month.

Concern was raised by several noble Lords, but particularly by my noble friend Lady Humphreys, on the issue of children. I am grateful to my noble friend for having raised this on a number of occasions. She and I have had correspondence on it. Some of that correspondence might be helpful to the House—I am thinking in particular of the letter that I sent her on 18 March—so, with her permission, I would be willing to share that with other noble Lords. The issue of children is critically important. My noble friend rightly highlighted what will happen under paragraph 31 of the code of practice, but there is also paragraph 27, which states:

“Special care must be taken when considering exercising the power where it is evident that the person is a child”.

Paragraph 28 states:

“Border Force has a duty … under Section 55 … to safeguard and promote the welfare of … children”.

Paragraph 29 states:

“Therefore, when dealing with cases involving children (whether in family groups or unaccompanied), police constables, or designated Border Force officers, must be aware of the necessity to safeguard a child’s safety and welfare”.

Paragraph 31 then makes the point to which my noble friend referred. Essentially, we are trying to avoid saying in the code that the search cannot happen in any circumstances: that is, if two officers of the same sex as the child are not available to undertake it. That is for particular reasons. There may be circumstances in which there is a real fear that the child may be at risk, and we would not want that to be an excuse for not being able to act in those extreme circumstances. However, we set out in paragraph 31.ii that,

“the reasons for taking that decision must be recorded in writing … two officers of the same sex as the child should, where reasonably practicable, be present during the search”,

for all the reasons that noble Lords have mentioned. In particular, the noble Baroness, Lady Smith, said that it would be in officers’ self-interest to make sure that another officer was there.

I know that I cannot go perhaps as far as my noble friend Lady Humphreys would want on this occasion, but I am happy to continue the dialogue. I am sure that it will continue into the time of the next Government, so that when we get more feedback on how the scheme is operating and where there have been specific issues, we can ensure that searches of vulnerable children are done in an appropriate way, wherever possible by two officers of the same sex.

My noble friend Lady Hamwee asked about a redress process for individuals who may be mistaken for individuals on the no-fly list. Unfortunately, it is not possible to identify such individuals until the misidentification happens. When it does, action is taken to make sure that it does not happen again. If we have the right information, particularly where we have a passport number, a date of birth and a name, those instances should be extraordinarily rare.

My noble friend also asked about the representative of a temporary exclusion order subject. The temporary exclusion notice regulations are not before the House today and are subject to correspondence between the chair of the Lords Secondary Legislation Scrutiny Committee and my honourable friend James Brokenshire in the other place. I was struggling for the correct terminology for the other place, but I think we can now refer to it as the House of Commons, thanks to the liberation given to us by the Procedure Committee. I am grateful to her for highlighting this point during today’s debate. In the same context, my noble friend asked about the communications consultation with the Lord Chief Justice. I will write to her on that point.

The noble Baroness, Lady Smith, asked about the consultation exercise and whether there was one consultation or 28. In fact, it was one consultation; 28 carriers responded to it.

I asked whether there was one consultation on all the statutory instruments grouped together, or one consultation on each statutory instrument.

There was one consultation on all the statutory instruments together. If that is not correct in some way, I will set that out in writing.

The intention is to work with carriers, not to fine them £50,000. The UK Border Force already works with carriers, and this will continue. Fifty thousand pounds is for the worst-case breaches. Of course, carrying somebody who we consider to be a sufficient threat to be on a no-fly list is not only a foolish thing to do but a very dangerous thing to do, not only for the airline but for the other passengers and the crew of that airline. Therefore it is right that the penalty is strong, but we hope that it will not be necessary.

I think that I have touched on most of the points raised. The noble Baroness asked about monitoring the use of the power and whether the code explains how to use the power. The code includes a section on monitoring the use of the power, which confirms that the police must consider whether there is any evidence that the power is being used on the basis of stereotyped images or inappropriate generalisations. It must review whether the records reveal any trends or patterns that give cause for concern, and, if they do, take appropriate action to address this. Monitoring records should, where possible, include age, disability, gender, race, religion and beliefs, and sexuality. It also confirms that the power is subject to review by the Independent Reviewer of Terrorism Legislation.

In what circumstances would a maximum fine be given? I have covered that already.

On engagement with NGOs, we undertook a six-week public consultation to raise awareness of the consultation. We notified key stakeholders, including law enforcement, community and regulatory organisations, that consultation had begun, and invited their views. The code focuses on disrupting travel for terrorist-related purposes and on wider safeguarding children issues that are routinely considered by the police.

My noble friend Lady Humphreys asked whether civil liberties organisations in particular had been consulted. I think that the answer is that the stakeholders that we consult include civil liberties organisations; I would expect that to be the case. If that is not the correct answer, of course I will write to her.

With the answers that I have given thus far and the assurances that I have given on continuing the dialogue, particularly in relation to children, I commend the statutory instrument to the House.

Motion agreed.

Authority to Carry Scheme (Civil Penalties) Regulations 2015

Motion to Approve

Moved by

That the draft regulations laid before the House on 2 March be approved.

Relevant document: 25th Report from the Joint Committee on Statutory Instruments.

Motion agreed.

Passenger, Crew and Service Information (Civil Penalties) Regulations 2015

Motion to Approve

Moved by

That the draft regulations laid before the House on 2 March be approved.

Relevant document: 24th Report from the Joint Committee on Statutory Instruments.

Motion agreed.

Aviation Security Act 1982 (Civil Penalties) Regulations 2015

Motion to Approve

Moved by

That the draft regulations laid before the House on 2 March be approved.

Relevant document: 24th Report from the Joint Committee on Statutory Instruments

Motion agreed.

Terrorism Act 2000 (Code of Practice for Examining Officers and Review Officers) Order 2015

Motion to Approve

Moved by

That the draft order laid before the House on 27 February be approved.

Relevant document: 24th Report from the Joint Committee on Statutory Instruments.

Motion agreed.

Counter-Terrorism and Security Act 2015 (Code of Practice for Officers exercising functions under Schedule 1) Regulations 2015

Motion to Approve

Moved by

That the draft regulations laid before the House on 12 February be approved.

Relevant document: 24th Report from the Joint Committee on Statutory Instruments.

Motion agreed.

Civil Procedure (Amendment) Rules 2015

Motion to Approve

Moved by

That the rules laid before the House on 27 February be approved.

Relevant document: 26th Report from the Joint Committee on Statutory Instruments (Special attention drawn to the instrument).

Motion agreed.

Gaming Machine (Circumstances of Use) (Amendment) Regulations 2015

Motion to Regret

Moved by

That this House regrets that the Gaming Machine (Circumstances of Use) (Amendment) Regulations 2015 do not appropriately address the problems of gambling addiction, and offer no significant protections for vulnerable people from getting into debt. (SI 2015/121)

Relevant document: 27th Report from the Secondary Legislation Scrutiny Committee.

My Lords, I start by recognising that this is not the first debate that we have had recently on this issue. We had a Question for Short Debate tabled by the noble Lord, Lord Clement-Jones, which I participated in, and we have had a number of Oral Questions on fixed-odds betting terminals. Those reflect not only the concern in this House on this issue but also the concern in our communities.

I start my contribution by making no apology for repeating some of the arguments that I have made in those debates. After 15 years of fixed-odd betting terminals on our high streets at £100 a spin, we are still no nearer to a conclusive answer as to whether they are safe to operate in local betting shops. The response of the Government has been to come up with a £50 cap without any evidence that it would protect vulnerable people from getting into debt or developing a gambling addiction that ruins their lives. Although the Prime Minister promised to get to grips with this issue, it is now a full 12 months since the Government announced that they would do this—in fact, six months later than was foreshadowed in their announcements. Your Lordships’ Secondary Legislation Scrutiny Committee questioned whether the Government could have brought forward the regulations more speedily, especially as, from the words of the Prime Minister, they appeared to accept the need to act.

Irrespective of headline-seeking comments, the difficulty with the proposal is that the Government still cannot explain how they came to decide that £50 will deal with problem gambling or limit the hardship that such high stakes may cause. In these circumstances, many will see this as a bit of a sham rather than firm action. I suspect that in many people’s minds, if there is one thing worse than inaction, it is the pretence of action. The limit relies on the betting industry to apply it. Also customers will be able to bet above £50 on a single play with permission from betting shop staff. The Campaign for Fairer Gambling also claims that its sources in the bookmaking industry have informed it that at least one of the corporate operators is already advising staff to encourage the use of debit cards now that players are being forced by the Government to remote load their money on to the machines from the counter if they wish to access higher stakes. Not only that, but guidance is also being issued to encourage playing two machines at the same time, which would allow players to gamble £100 a spin, circumventing the new law.

Many questions are being asked about the Government’s decisions by the organisations concerned about the proliferation of FOBT machines—a term that I will use throughout the debate—and their impact on problem gambling. Some, such as the Local Government Association and councils from across the political spectrum, are calling for stricter controls. Concerns are also being expressed from within the gambling industry itself. Simon Thomas, the owner of the Hippodrome Casino, stated that betting shops,

“have fast, high stakes machines with little supervision”,

something that I raised in an Oral Question to the Government earlier this year.

Many of these shops are in areas where there are already clusters of betting shops and the driving force for locating them in the same place is the profits that are to be made from having more and more FOBT machines. The betting industry has argued quite strongly that jobs are at risk if it is not allowed FOBTs. If that is the case, why has the number of employees in betting shops been decreasing while net takings from FOBTs have increased?

Local authorities have a statutory duty to uphold the licensing objectives, which are to ensure that gambling is fair and open, is not associated with crime and does not harm the young or vulnerable. As we have heard in previous debates, 93 councils believe that FOBTs are in breach of all those objectives so have joined the London Borough of Newham in calling for the maximum stake to be capped at £2 a spin. During the passage of the 2005 Act, my right honourable friend Tessa Jowell expressed concern about the gambling industry becoming “overly dependent” on growth driven by these machines and about their role in problem gambling. On the decision to have a limit of four machines in each betting shop, she said,

“there was no certainty that these machines would remain, because we were absolutely clear that we could not know at that stage what their effect was likely to be”.

It is in response to that cap that bookmakers have opened up multiple premises in clusters to facilitate more machines, as a fixed-margin product guarantees bookmakers a return.

Research by the Responsible Gambling Trust, an organisation about which we will no doubt hear a lot more, has identified a link between social deprivation and the use of machines. In England, two-fifths of all bets were placed in venues in the most deprived areas. However, this reflected the distribution of bookies, with 38% of the branches in the most deprived areas of the country. Those with lower incomes were more likely to start to play machines in a bookmaker’s than those with higher incomes. Higher stakes impaired decision-making quality—the impact was stronger at £20 stakes—but the quality of decision-making was also compromised at £2 stakes. Stake size influences gambling behaviour when combined with other factors such as speed of play, volatility and social interaction.

The Secretary of State for Communities and Local Government has told us that this Government are committed to localism and greater local decision-making in planning. If that is the case, would the Minister care to explain why this does not apply to betting shops? The position of this side of the House is to require betting companies to seek planning permission if they want to open a premise that is not a former betting shop. Local authorities would in turn have the ability to ration and manage the number and location of these shops in their area. Labour would also modify the Gambling Act to give councils powers to review the betting shop licences in their area and retrospectively reduce the number of FOBTs in existing betting shops—for example, from four through to zero—in response to local concerns.

Critics of FOBTs have argued that what makes these machines addictive is the immersive nature of the games, which lulls people into losing more money than they intend, with the roulette wheel spinning so quickly and huge losses accumulated rapidly.

While I support the measures in the industry’s code for responsible gambling, such as increasing the time between plays, pop-ups that warn players how long they have played, gambled or lost and requirements to go to the cash desk to limit the amount they can insert into machines, none of them will be effective without sufficient trained staff—staff who are required to be in casinos but not in betting shops. Betting shop staff are on the front line when it comes to consumer protection, as these regulations are even implying, but single staffing is commonplace in betting shops. Does the Minister agree that staff would be in a better position to intervene and help gamblers if they were not made to work alone? Labour will expect operators with FOBTs to have at least two members of staff present at all times. If they fail to comply with this, we will make it a licensing condition.

One of the key issues cited for inaction on FOBTs is lack of evidence. The Government have continually referred to research commissioned by the Responsible Gambling Trust as a justification for their approach. However, the evaluation of RGT research by Professor Linda Hancock of Deakin University in Australia and Shannon Hanrahan, CEO of the Outcomes Group, highlighted the serious flaws in both its methodology and approach. It has been circulated, I suspect, to many noble Lords via the Campaign for Fairer Gambling. The RGT research focused on problem and at-risk gamblers and how they behave while playing FOBTs and failed to assess the impact of the features of FOBTs on inducing that particular playing style.

While the bookmakers continue to have such influence over the research agenda and the commissioning process, we will never, in the words of the Prime Minister, get to grips with this issue. Does the Minister therefore agree that the betting shop operators should be required to collect and provide standardised data on the use of FOBTs to allow independent researchers to analyse their impact to help inform future decision-making rather than the process we have at the moment where figures are grasped out of the air and regulations are brought forward without the firm evidence to back them up? Our communities are at risk from these machines. We need to act but what we should do is empower local communities to act accordingly. I beg to move.

Too little, too late. Really, those four words say all that is perhaps needed tonight in the face of these regulations, but I will crave the indulgence of the House to speak a little longer.

I will start with “too late”. I really have nothing to add to the slightly tongue-in-cheek findings of the House’s Secondary Legislation Scrutiny Committee, which wrote in its report, which is before us this afternoon:

“The House will be interested to see that the Government have now laid these Regulations. They will come into force only in April 2015, a full 12 months after the Government announced the need for the new requirement, and six months later than was foreshadowed in that announcement … We question whether the Government could have brought forward the latest Gaming Machine (Circumstances of Use) (Amendment) Regulations more expeditiously, given the concern about problem gambling which they address”.

The House should generally pay attention to the findings of its own committees, and that was a pretty severe condemnation.

In case noble Lords have missed the point, I will summarise it more succinctly. In our previous debate on FOBTs on 24 February, called by the noble Lord, Lord Clement-Jones, I said that those who play these machines were practising onanism. The House will forgive me if I resort this evening to the vernacular: the Government have shown themselves to be a bunch of tossers over this one. That, then, is the “too late”.

More important, however, is the “too little”. Again, I set out my views on this in the excellent debate on 24 February, and I will not repeat tonight all I said then. I hope that noble Lords have realised just how small the impact of what the Government are proposing will be. An exceptionally hard-crafted impact assessment of the measures shows that on the department’s central estimate it will reduce FOBT spend by 1.4%, which is about six months’ growth. Therefore, the six months we have been waiting for the Government to get round to doing that has totally dissipated its effect. This is fig-leaf government. It is saying, “Oh dear, there seems to be a lot of pressure to do something about this—what are we going to do? Oh dear, we’ll spend a year thinking about it. Oh dear, we’d better bring something before the House before the election”. It really does not measure up in any sense to the seriousness of the problem.

I have got very bored with hearing Ministers and bookmakers saying, “We haven’t got the evidence”. There seems to be quite enough evidence to proceed on a precautionary basis—which is the argument the Government give for these regulations: that they are precautionary. However, given the scale of the problem, this is a pretty pathetic precaution by any standards.

I said in the last debate that a consensus had grown up among campaigners that a £2 limit would be the right figure. That may turn out to be too harsh, for reasons I will give later. However, the figure, when the Government finally get round to taking a serious measure on this, should be nearer to £2 than to £100. Indeed, it should be nearer to £2 than the £50 that is embedded in these regulations.

One thing that has gone completely unnoticed since our last debate is that the Government have now, deliberately, made it very much harder for them to do anything about this—or at least they plan to make it very much harder. I do not know how many people noticed the announcement by the Chancellor in his Budget speech that the Government would go for a “racing right”. That has been one of the most curious episodes that I have ever seen in government. The Department for Culture, Media and Sport produced two different possible futures for the levy, published in the autumn, despite the fact that the Chancellor had said once before that he would quite like a racing right. To be fair, the Government then published a consultation on the racing right. What do the Government do when those three consultations were just terminating? Without waiting for the department to summarise the results or to find out what those best informed about them wanted or what the public wanted, the Chancellor of the Exchequer—who cannot have much time in his busy portfolio to give attention to racing matters—announced that there would be a racing right.

How does that relate to the FOBT question? Doing anything serious about FOBTs will cost bookmakers money. It will cost them a substantial sum of money—a lot more than 1.4% of their FOBT revenue. But at the same time as the Government are dithering over that, they have suddenly decided to impose an enormous new charge on the betting industry to pay horseracing. The impact assessment on the racing right suggests that on a low yield the costs will not increase but that on the highest yield—50%, which is in the impact assessment—it will cost the bookmakers an extra £390 million a year. If you add a similar bill, as you easily might, for curbing FOBTs, what will be the result? Will it not be the mass closure of betting shops, the removal of a local facility that many people appreciate, shops rotting on the high street because nobody will take them over, and a huge loss of jobs among betting shop staff? That is the Government’s prospectus for the betting industry.

There is a consolation here—that the racing right has not only not yet come about but may well never come about. As the Conservative MP Philip Davies and I argued in our response to the consultation on the racing right, as presently conceived it seems to us unlikely to survive the test of competition law in Britain, let alone to survive the state aid test that would be applied by Europe. The Chancellor, to put it kindly, has not thought through not the idea of the racing right, which has something to be said for it, but the idea of a racing right that gives British racing a monopoly of its product and enables it to ask whatever price it may choose, never mind the effect on the betting shops.

I close by saying that here we have two things that the Government could do that will cost the bookmakers money—and what is the priority? Doing something to FOBTs would no doubt at some stage cost jobs and shops, but it would stop the bookies from picking the pockets of hard-working people—and, as has been said in this debate already, very often those of poorer people—with all the social costs that are involved in that. But the racing right picks the same people’s pockets not to deal with a social evil but to subsidise some hugely rich owners of racehorses and some very rich trainers for their holidays in the Bahamas, as well as some very rich jockeys gallivanting about the country in their helicopters and some ludicrously rich breeders, who exist only because of the practice of banning artificial insemination in horseracing. Strangely enough, in this bonanza feast, the one lot of people who do not benefit by a penny, in my long experience, are stable staff, who are still exploited very badly. So that is it—deal with the FOBT problem or help all these very rich people at the expense of poor people. I know which I would put first.

My Lords, it is always a pleasure to follow the noble Lord, Lord Lipsey, although I agreed with only a fraction of what he had to say. Nevertheless, it was very thought-provoking.

The noble Lord, Lord Collins, reminded the House that a month ago I initiated a debate about the unsatisfactory nature of the Government's current policies towards FOBTs. Nothing has made me change my mind in the mean time. If today’s Motion goes to a vote, however, I shall not vote with the Opposition. After all, the Opposition have tabled a very half-hearted Motion. But I shall take the opportunity today once again to express the strong dissatisfaction of these Benches with these measures, and our intention, if we are in a position to do so, to go much further after the next election.

I am very pleased that my noble friend Lady Jolly is responding to the debate. Given that it is extremely likely, without giving away any confidences, that we will enshrine a much bolder pledge in our manifesto, I hope that she can square the policy circle as a government Whip and a Liberal Democrat Peer. Perhaps the Government are displaying their real embarrassment by using three separate spokesmen on the three recent occasions when we have debated or had a question on this subject. I see that the Mayor of London, Boris Johnson, has said that he believes that fixed-odds betting terminals can be dangerously addictive and allow bookmakers to prey on the vulnerable in our society—and he has called for the maximum stake to be cut to £2. This is rather at odds with the current position of the Conservative Front Bench.

The noble Lord has explained, as I did a month ago, what these machines are. FOBTs, technically known as B2 gaming machines, offer high stakes and fast play, allowing users to bet up to £100 every 20 seconds. Figures published this month by the Campaign for Fairer Gambling show that £1.5 billion was lost by gamblers on FOBTs in Britain during 2014. As the noble Lord pointed out, most of that money comes from some of the UK’s most deprived communities. That highlights the need for an urgent solution to this serious problem.

The £100 stake on FOBTs is more than 40 times the EU average. Combined with the fast pace of play, this makes them particularly dangerous, leading to high levels of problem gambling. The speed of roulette on these machines is more than five times as fast as roulette in a casino, yet they are in lightly regulated high-street betting shops—more than 9,000 of them across the country.

We rehearsed all those points in the debate last month, and I highlighted the fact that the local authorities which see the problem on the ground and use the Sustainable Communities Act—93 councils from all three major parties—have called on central government to take this action because of the anti-social behaviour, crime and problem gambling that the machines are causing in their local areas. The Local Government Association has called for a reduction in the £100 stake on FOBTs to £2.

As we have heard, the Gaming Machine (Circumstances of Use) (Amendment) Regulations are designed to introduce a requirement which prevents individuals staking over £50 on a B2 gaming machine, or FOBT—whichever expression your Lordships prefer—unless they load cash via staff interaction, or use account- based play. In response to Parliamentary Questions the Minister, Helen Grant MP, has claimed that this will end unsupervised high-stake gambling on FOBTs. But that is not the case. The measures set out by the Government do not address the critical harmful element of the machines, which is the £100 per play maximum stake.

The measures are deficient for the following reasons. First, this is not a stake reduction. After the regulations are passed the £100 stake will still be available, so the machines will still be able to cause harm to problem gamblers and communities. The regulations are not the answer. Only a stake reduction to £2—the maximum stake offered in all other high-street adult premises—will prevent the machines causing harm.

Secondly, there is no evidence that bookmakers are serious about tackling problem gambling. The proposals are predicated on the notion that bookmakers want to prevent problem gambling—but Professor Jim Orford estimates that more than 40% of the profits from FOBTs come from problem gamblers, and there is evidence that bookmakers are actually targeting deprived areas. For example, one chain was recently accused of targeting ethnic minorities, who are more vulnerable to gambling addiction, after the Independent revealed that 61% of its shops were in the 40 boroughs with the highest ethnic-minority population.

Thirdly, the measures in the regulations will be extremely easy to circumvent. Reports from betting staff suggest that some operators are training staff to inform customers how they can play two FOBTs at the same time. This is particularly concerning for customers who have already identified themselves, and for those signed up to a loyalty card, as they will be accessing stakes of £200 a spin. Any rules around signing up for betting shop loyalty cards can be circumvented quite easily. In betting shops, customers are asked only for a name, a date of birth and an email address or mobile phone number. It is easy to fabricate the first two and create a bespoke email to receive the necessary code. That is all people need, and they can then carry on staking £100 a spin. As no checks are made, this is hardly a rigorous process that would deter likely problem gamblers, who may create many such accounts.

To stake more than £50, customers need to load cash remotely via staff intervention. For those who identify themselves at the counter, staff are suggesting that they are being trained to encourage debit card use. Bookmakers say that this will be more convenient for the customer—but it is also more dangerous, as debit card deposits can exceed a daily withdrawal limit from an ATM. This also allows gamblers to bypass the psychological check of actually putting cash into a machine, potentially making losses worse.

Fourthly, £50 is still far too high and unsafe. Fifty pounds per spin is still very large, allowing people to bet £150 per minute. It is significantly higher than the £2 maximum stake on all other UK machines and the roughly £2.20 EU average. Notably, the maximum permitted stake on gaming machines in Germany, Spain and Italy is less than £1. Fifty pounds per spin is not safe, and it is dangerous for the Government to imply this with their proposed measure. According to recent Responsible Gambling Trust research, 80% of those betting an average of £13.40 or more exhibited signs of problem gambling. Why are the Government not reducing the stake to at or below this level? So far, despite claiming they are taking a precautionary approach, the Government have failed to give a clear rationale.

Fifthly, requiring betting shop staff to police machine use will be dangerous and ineffective. The rise of single staffing in betting shops makes this measure all the more dangerous. The presence of automated FOBTs has led to staff cuts in betting shops, who are down from roughly 60,000 in 2009 to 52,000 in 2014, meaning that shops often have only one person working at a time. This fall in staff numbers comes despite the rise in the number of betting shops from 8,800 in 2010 to 9,000 in 2014. Asking staff to refuse to reload the cards of players who have just lost large sums has the potential to provoke already angry gamblers and lead to confrontation. There are also reports that staff are currently incentivised to increase machine use, with this often linked to pay. This situation creates a very clear conflict of interests, reducing the likelihood of staff intervening.

Sixthly and finally, the Government are introducing a policy that will benefit bookmakers. Signing up more players to online accounts means that the operators can encourage customers to gamble on their new online platforms as well. This will improve profitability for the bookmakers even further.

The RGT research described loyalty card customers as a “more engaged” sample, and loyalty cards encourage this engagement with offers of free bets. Player tracking is therefore not intrinsically a means for protecting players and can in fact promote addiction.

These regulations will make the situation worse by allowing the Government to refrain from substantive restrictions on the maximum stake, and FOBTs will continue to operate at £100 per play, causing harm to vulnerable people in the most socially deprived areas of Britain. There is clear evidence to show that the public support restrictions on FOBTs. The YouGov survey showed that only 4% of the public would oppose a ban on FOBTs, with 58% of those who gamble more than once a month in favour of an all-out ban. The Gambling Commission has stated that in interpreting the available evidence it will take a precautionary approach, including where evidence is mixed or inconclusive.

The noble Lord, Lord Bourne, said:

“These measures are on track to start in April, and will, I think, make a real difference. The sensible thing to do now is to see how they bed in before thinking about further action. That is a fair and reasonable approach”.—[Official Report, 24/2/15; col. 1640.]

On the contrary, the stake should be reduced on a precautionary basis until there is evidence that it can be safely increased above the £2 level, and the onus should be put on the bookmakers to demonstrate that effective measures can be put in place before being allowed to offer games at above £2. After the general election, my party will do this if we are in a position to do so.

My Lords, like the noble Lord, Lord Clement-Jones, I enjoy speaking after the person who spoke before me. There is no greater pleasure in this House than watching a Liberal Democrat spokesman in conflict with his representatives on the Front Bench. Sadly, that pleasure will shortly cease.

I had proposed to make a rather tediously long speech this evening. Fortunately, I shall break with the normal tradition of this House of repeating everything that has been said previously and instead say briefly that I agree with everything that the noble Lord, Lord Lipsey, said. He has described the situation fairly, impressively and comprehensively.

On the racing right, I heard about that with interest in the Budget. It was one of 27 lollipops thrown to different parts of the community. I urge the Government to keep quiet about it henceforward. The racing and betting industries have previously had this kind of solution put up, which was legally unsustainable. I am not a lawyer, fortunately, so I cannot say that with confidence, but I can advise the Government that if they read, for instance, the analysis of the racing right on the net, issued by Olswang, the country’s leading and best informed lawyers in the racing and betting world, they will see that there are many serious legal questions to be asked. Olswang concluded that it will not survive a legal test. Given our experience with bookmakers in the past, it will certainly experience that legal test.

This evening’s little operation here will fortunately end shortly. It is not very impressive, but everyone should read the speech of the noble Lord, Lord Lipsey, and they will learn the facts.

My Lords, I, too, agree with the noble Lord, Lord Lipsey. He said what many of us have considered saying in the past, but he has done it far more effectively. The number of people who enjoy playing these machines is considerable, and they do so sensibly.

I have friends who travel around the world and playing these machines is their pleasure. They start in the evening with a certain amount of money and they play and play until they have lost it. Sometimes it takes them all night and they are there until five o’clock in the morning but that is their pleasure and why should we stop them doing it? Some of my friends won 2,000 Australian dollars playing in Australia. They decided to leave the money there and go out to try to get rid of it by playing in the same way as they did before. It is their enjoyment and their holiday. The prospect of the poorest people in our communities putting £100 into a machine every 20 seconds is ludicrous. It is beyond belief that they would sit there doing that, losing money. That is absolutely nonsense.

If you are a problem gambler, you are a problem gambler. You will gamble wherever you can—not necessarily on machines, but up in the bedroom, playing online. We cannot stop people who want to gamble from gambling. If they enjoy it, why should we be stopping them?

My Lords, I was not going to say anything but I have been provoked into it by my noble friends behind me. I never thought that I would find myself in such disagreement with them and I regret that they have taken that position.

Of course there are problem gamblers, and of course it is hard for them. We have heard of people who have spent all their money and got into debt simply by gambling away all that they have. Surely there is a responsibility on the Government to at least encourage people who are inclined that way to bet moderately, and not give them the facilities to bet large amounts ever so quickly.

I am not against gambling as such. I remind my noble friend Lord Donoughue of the day that he and I went to a race meeting at Listowel Races in Ireland. We had a great time.

We had great craic. I was in the fortunate position that I was quite friendly with the then Irish Culture Minister quite some years ago—he is now dead, unfortunately. He was a very good judge of horses. For the first four or five races I put my money on the same horses he did and I was well ahead of the game. I lost him for the last race or two and I contributed significantly to the Irish economy. The races were 25 minutes or half an hour apart; therefore, it was possible to be quite measured about it.

The problem is the speed with which one can lose large sums of money on these terminals. Why are so many local authorities appalled by this? Why is there a wish to keep the maximum stakes down to £2? Surely not all these people are absolutely against any form of gambling, but the local authorities realise that it can get out of hand.

Initially there were two Lib Dem Ministers on the Front Bench; I am afraid that the arrival of the noble Baroness, Lady Williams, has rather spoilt my story. How was it that they pulled such a short straw to be sitting there, shortly before an election, advocating a case that is against their party’s policy? I cannot understand that. How were they persuaded to do this? The mind boggles. They are smiling now, of course, but they both at one point looked very unhappy about the position that they were in. Their faces revealed what they thought about the whole business. They did not agree with my noble friends, of course.

It is a sad moment that we are putting forward regulations that cannot do much good at best and will do harm at worst. I do not think that the change advocated by my noble friend on the Front Bench would mean the massive closure of betting shops; it would just get betting into a sensible proportion. That is all we are asking. We are not saying that there should not be gambling and betting. It can be fun, but it should not get totally out of hand; I believe that this proposal does that.

Does my noble friend not also remember that at that Irish race meeting, when the Irish Minister for Racing—the late, great Joe Walsh—put his bets on, the bookmakers did not even give him a ticket, unlike my noble friend or me? When I asked the bookmaker later why he did not give Joe Walsh a ticket, he said, “You do not give an Irish Minister for Racing a betting ticket”. Does he not think it would be a great advance in this country if British politicians and Ministers were treated with the same respect at our racecourses?

I do not particularly disagree with my noble friend. I am tempted to go into all sorts of other anecdotes about our experiences together, but I had better not. I will just say this: when we were drinking some nice single malt whisky in a hotel in Brussels on one occasion, he accused me of being a Roundhead and said that he was a Cavalier. Does he remember that?