House of Lords
Tuesday 26 January 2021
The House met in a hybrid proceeding.
Prayers—read by the Lord Bishop of Gloucester.
Arrangement of Business
My Lords, the Hybrid Sitting of the House will now begin. Some Members are here in the Chamber, others are participating remotely, but all Members will be treated equally. Oral Questions will now commence. Please can those asking supplementary questions keep them short and confined to just two points? I ask that Ministers’ answers are also brief.
My Lords, I point to my residential and commercial interests as set out in the register. The Government are committed to supporting the supply of new homes; we delivered around 244,000 last year, the highest number in more than 30 years. We are bringing forward an ambitious nearly £20 billion investment that will include over £12 billion for affordable housing over five years and more than £7 billion to both unlock new land through the provision of infra- structure and to diversify the market through our national homebuilding fund. Alongside our reforms to the planning system, this will deliver the new homes the country needs.
While I welcome what has been done, does the Minister agree that we need something on a much larger scale—a Beveridge-scale programme for new affordable housing? That would provide the jobs needed for those who have possibly lost their jobs because of the pandemic. I would also suggest that there should be a Minister at Cabinet level with just one job—a Minister for housing. We should also co-operate with the Ministers for housing in Belfast, Edinburgh and Cardiff. I hope that he will agree with that and help to put it into operation.
My Lords, I would point out that housing is a devolved matter and I am not looking to tie the hands of the Prime Minister in how he prioritises this. I would also point out that we need to be very clear about the levers that the Government have to deliver new housing. The most important of those is the investment in infrastructure and the very substantial £12 billion commitment to affordable homes.
My Lords, I declare non-financial interests in various Church lands through numerous charities of which I am a member. The Church will be publishing a housing, church and communities report in February. Can the Minister tell us what criteria Her Majesty’s Government use to define affordable housing? Is it genuinely affordable in the sense that most people would use the word?
The definition of “affordable” that we use is taxpayer-subsidised housing. Of course, that is council housing as well as housing association and social housing but, importantly, it is housing that takes you on a pathway to home ownership—so it is immediate housing that is also discounted by the taxpayer.
My Lords, home ownership is a huge contributor to a prosperous and contented society, and I am glad to see the Minister’s focus on this. What is the gross number of new homes that were built last year? I am not sure about the basis for the figure of 244,000 that he mentioned. How many were in existing buildings such as pubs, offices or shops?
I congratulate the most reverend Primate the Archbishop of Canterbury on his appointment of a Church of England bishop for housing; that is a most helpful move. Does the Minister agree that now is the time to accept the excellent recommendations made by Sir Oliver Letwin to get more homes built by ending our dependence on the oligopoly of major housebuilders who corner the land market and build out at a speed that suits themselves? Instead, we should capture the land value through local authorities and thus ensure the building simultaneously of a variety of new homes, including social housing and retirement housing and so on, for every major site.
My Lords, there is a great deal of sense in that question. I would point out that the proposals to revise the National Planning Policy Framework make it clear that sites for substantial development should seek to include a variety of development types from different builders.
My Lords, many charitable housing providers such as almshouses—for which I am an ambassador—are very small and are not included with regulated social housing providers, so will the Government review Section 106 of the planning guidance to extend its benefits and allow almshouses and other charitable providers to extend their housing provision?
My Lords, I am sure that the Minister is aware of many local authorities such as Luton—my home town—which do not have much building land within their own boundaries; their housing waiting lists continue to run into thousands. In order to meet local needs, can he tell us how the Government plan to help such local authorities acquire land from neighbouring councils to build much-needed affordable social housing?
My Lords, I have pointed to a substantial amount of money—£12 billion—of which £11.2 billion is for the affordable homes programme. In addition, we have announced a new, £7.1 billion fund, which is designed to help precisely with land acquisition and to deal with the requisite infrastructure to enable the housing that the noble Lord describes.
My Lords, small and medium housebuilders who build most of the existing housing stock have practically ceased to exist in the last few decades, in part because of the cost, time and risk involved in obtaining planning permission. Does my noble friend agree that there is a case for exempting small builders developing small sites from the need for planning permission, subject only to a pre-published design code?
My Lords, my noble friend is right that we are seeing the level of planning regulation deter small builders. It is important that, as part of our reform of the planning system, the Government take that into account and find ways to, let us say, level up the field to let the small players participate in the market and therefore deliver on the small sites the new homes that this country needs.
I speak as a vice-president of the LGA. With government targets continuously missed, the last time anywhere near 300,000 homes a year were built, councils contributed more than 40% of them. So the only way the Government could get back to building at this scale would be by supporting councils to build homes. What steps therefore are the Government taking to help local authorities build the homes they need to build?
My Lords, achieving the highest housebuilding target in over 30 years is a credible achievement. There is no doubt that the 300,000 target will be stretching, particularly in the light of the national Covid emergency. We will rely on councils to build; we have released the constraints on local authority finance and the ability to borrow, as well as providing a huge £12.2 billion programme for affordable house- building.
My Lords, these questions have been focused entirely on the supply of housing, but the future demand for housing is surely a key aspect. Is the Minister aware of the latest ONS household projections for England? They show that, over the next 20 years, just over half the extra homes needed for our projected population growth will be the result of immigration; that is, nearly 300 new homes every day. Surely we need action on demand as well as on supply.
My Lords, more than 1 million homes that have been given planning permission over the last decade are yet to be built. Does my noble friend agree that, for the Government to meet their aspirations on the number of new homes being built, giving councils tools to encourage developers to build on sites with permission would enable building in a swift and timely manner?
My noble friend will know that the Government want to see new homes built faster and to a higher-quality standard. Our planning White Paper proposes to introduce more speed and certainty into the planning system through the granting of automatic outline consents for growth areas. This will ensure that developers, authorities and communities can have greater clarity at an early stage of the process and will reduce unnecessary delays as those developments progress.
Covid-19: Night-time Economy
To ask Her Majesty’s Government what assessment they have made of the impact of the restrictions put in place to address the COVID-19 pandemic on (1) the income of businesses working in, and (2) jobs related to, the night-time economy; and what steps they are taking to address any such impact.
The night-time economy includes businesses operating between 6 pm and 6 am and is therefore very broad. BEIS and DCMS sponsor the hospitality, entertainment, arts and culture sectors, all of which play a significant role in the night-time economy. Over the course of the pandemic, the Government have worked closely with businesses from across these sectors to understand their concerns, and have responded with £280 billion of funding to support businesses, retain jobs and provide support on backdated rents.
I thank my noble friend for his Answer and for the support that the sector has received. I am delighted that he recognises the contribution that the night-time economy makes, in billions of pounds of revenue—in its heyday—and in accounting for 8% of the national workforce, with a high proportion of young people employed. Will he work closely with the Treasury to ensure that, going forward, specific support can be targeted on the fixed costs of those working in the night-time economy, such as rent, insurance, electricity and water, which amount to 15% of their turnover? To date, little targeted help in that regard has been given; this would be very warmly received and would ensure a return to a sustainable and vibrant future as soon as businesses are allowed to reopen.
My noble friend makes some important points. We will of course work closely with the Treasury, as always. The support package that the Government have put in place is designed to help businesses with their fixed costs. It includes the business rates holiday, the job retention scheme and various grants, and introduces a moratorium on the eviction of commercial tenants. The Government keep all these support measures under constant review.
My Lords, the night-time economy also generates employment for freelance and self-employed musicians, actors and technicians. It is clear that DCMS funding for established building-based clients is not reaching this group, over half of whom have reported receiving no support. Will the Minister work with colleagues in DCMS to ensure that this issue is resolved quickly and for the future?
The noble Lord makes an important point, as he so often does. The Government recognise the important role that freelancers, including musicians, play in the night-time economy. That is why we have put the Self-employment Income Support Scheme in place. We have funded Arts Council England to provide £26 million to support over 8,200 creative people. We have provided £6 million in benevolent funds to make direct awards, reaching almost 3,500 people so far, but of course we need to look at what more we can do to help.
My Lords, the night-time economy is essential to any city or town in the United Kingdom. Hospitality is a critical source of employment, particularly of young people starting out in life. Today, it is the highest unemployment sector. Successful theatres, pubs and restaurants contribute considerable amounts to the Exchequer every year. Does the Minister agree with me that there are also important and immeasurable social, mental and physical health benefits to the nation from people enjoying social interaction, which is clearly evidenced by its unhappy absence over the last 12 months?
I wonder if my noble friend could update the House on the progress of the £1.57 billion Culture Recovery Fund, which was announced by the Government and is most welcome; I congratulate the Government. Does he agree with me that this sector of our economy is important not just economically, with 1.3 million people estimated to be employed, but culturally, socially and health-wise?
My noble friend is correct. The Culture Recovery Fund is delivered through Arts Council England, the National Lottery Heritage Fund, Historic England and the British Film Institute. It covers charitable and private organisations of all sizes, in the arts, museums and heritage sectors, as well as music venues, festivals and independent cinemas. The Government continue to work closely with each of these sectors to understand what further support we can provide.
My Lords, I declare my interest as vice-chair of the APPG for the Night-Time Economy. In 2019, the annual revenue budget for the night-time economy nationally was £66 billion. Comparatively, the fishing industry, in 2018, was worth £784 million to the economy. That is about £60 billion less a year. Could the Minister explain, in pure economic terms, why people are asking me why the night-time economy has been abandoned by this Government in favour of protecting the fishing industry? Minister, I like fish, but not at the expense of Ronnie Scott’s or the Band on the Wall in Manchester or thousands of other venues now on their knees. Many thousands of jobs are predicted to go permanently in our sector, if more financial support is not immediately forthcoming.
I am not sure of the point that the noble Lord is making. It is not a choice of one or the other. Of course the fishing industry is important, but the night-time economy is vital also. I outlined earlier the many steps that we are taking to help them.
My Lords, black cabs and licensed Hackney carriage drivers are essential to the night-time economy. Is my noble friend familiar with offers from black cabs in London and licensed hackney carriage owners throughout the country to assist in the Government’s response to the pandemic? What consideration have the Government given to this offer, specifically to deliver the pandemic vaccination programme?
Although the Chancellor’s support for the arts, already mentioned, has been vital and is much appreciated, I know that the Government accept that many freelancers, particularly musicians, have fallen through the support network if they have failed to qualify for universal credit or the SEISS. I wonder if the Minister and his colleagues could look at some kind of register, through the auspices of agencies such as the Musicians’ Union and the Incorporated Society of Musicians, to identify and assist cases of real hardship, at a time when musicians cannot work and some are in dire straits.
The noble Lord makes an important point. I understand his concerns. In my answer to the noble Lord, Lord Stevenson, I outlined the support that we are providing to the sector, but I am sure that my colleagues in DCMS will work closely with the sector to understand its concerns and see what more we can do to help.
My Lords, UK Music tells us that almost three-quarters of musicians are thinking of quitting due to the drop in income and opportunities. The legendary rock drummer Bob Henrit says that we are in danger of losing a whole generation of talent. Are the Government happy about losing the tax revenues that these people are likely to generate in the future?
My Lords, live events are a significant aspect of the night-time economy. The need for a Government-backed insurance scheme to protect organisations against the cancellation of events due to Covid cannot be emphasised enough. Many organisations, including festivals, cannot survive much longer without such insurance, which has been granted to the film and TV sector.
I outlined the support packages earlier. We want to take into account the concerns of many sectors, such as those that the noble Earl highlights. We will keep these matters under review and my colleagues in DCMS will continue to liaise closely with the sector.
The night-time economy accounts for 8% of the UK’s employment, with revenues of £66 billion a year. Perhaps less well known is that 18% of the black community work at night, compared to 11% of the white community. Bearing in mind that Covid appears to have more of an adverse effect on the black community, what progress are the Government making into researching the reasons for this racial disparity?
The noble Lord is tempting me to stray into matters beyond my brief. I know that considerable research is going on, from funding provided by the DHSC, to ascertain the precise impacts of the virus on different communities. The noble Lord is entirely right that the night-economy time is vital to the black community. Within the night-time economy, the hospitality sector alone employs around 2 million people, with 7% more BAME employees than the UK average of 12%. As I outlined earlier, we have taken steps to try to preserve as many of these jobs as possible.
Television Licence Evasion
My Lords, the Government’s response to the consultation states that
“decriminalisation will remain under active consideration while more work is undertaken to understand the impact of alternative enforcement schemes.”
We remain concerned that a criminal sanction for TV licence evasion is increasingly disproportionate and unfair in a modern public service broadcasting system. However, we recognise that changing the sanction would have wide-ranging impacts for licence fee payers and has the potential for significantly higher fines and costs for the small minority who evade.
My Lords, I am glad that the Minister repeated what the Secretary of State said last week—that he remained
“concerned that a criminal sanction for TV licence evasion is increasingly disproportionate and unfair in a modern public service broadcasting system.”—[Official Report, Commons, 21/1/20; col. 48WS.]
How then can the Minister possibly justify the continued harassment, intimidation and bullying by Capita of the many elderly, vulnerable households just trying to survive in the midst of a pandemic? Is it not time that the Government recognised that older people are turning off the BBC, younger people have never even turned it on, and the licence fee itself represents a bygone age and should be abolished and replaced by a choice-based alternative?
The noble Baroness covers a number of points. On her first point, I absolutely sympathise with the issue she raises, although we have to recognise that the BBC is independent in the way that it enforces and collects the licence fee, and that levels of evasion are the lowest in Europe.
My Lords, as so often, the noble Baroness, Lady Hoey, is right. I am glad that the Minister agrees that a criminal sanction, including cases of imprisonment for TV licence evasion, is disproportionate. Does she agree that it is regrettable that we live in an age where some 91 people have been given custodial sentences for failing to pay fines in respect of the non- payment of TV licences in recent years, and that a change to a civil penalty system should take place now, rather than wait until the licence fee review is completed?
The figures that my noble friend refers to—the 91 people receiving a custodial sentence—are for the period 2015-18, and those numbers have declined significantly in recent years. In relation to a civil sanction, it needs to be sufficiently robust to underpin the legal requirement to hold a TV licence, and, as I mentioned, it might result in higher financial penalties. We are keeping this matter open for further review.
My Lords, in recent times we have seen a rapid decline in the funding of one of our greatest achievements as a country, admired and envied the world over: British public service broadcasting. Over the past 15 years, investment in original UK production has been cut by 30%. Does the Minister accept that addressing this massive decline should be top of the agenda when the BBC’s licence fee is soon reviewed?
The noble Lord makes an important point. In the review of the licence fee—which, as he knows, we are committed to until 2027—a very wide range of issues will be taken into account, including, of course, the importance of our independent production sector. As he understands better than I, it has been enormously successful and vibrant, thanks to a great deal of other investment as well as that from the BBC.
My Lords, can the Minister say why on earth the Government intend to keep decriminalisation under consideration in the 2022-27 licence fee discussion? This is really perverse, since the Perry review said the current system of sanctions is “fair and proportionate” and that civil-based systems were not a viable alternative. Moreover, the overwhelming majority of those consulted recently opposed it. Does the Minister not agree that this is a distraction from the important reform agenda that the BBC is adopting?
The noble Baroness is right that there is a very important reform agenda. In their responses, the general public were roughly split evenly; those reporting through campaign groups were definitely —though I see the noble Baroness is shaking her head —in favour of the status quo. But we will not allow this to distract us; there is a great deal of effort going into looking at the current reform programme at the BBC.
My Lords, does the Minister not agree that it is time to stop raiding the BBC licence fee for worthy causes when such actions do irreparable damage to the BBC’s capacity to maintain its support of our creative industries? Would the noble Baroness, Lady Hoey, and the noble Lord, Lord Moynihan, not be better employed supporting the charity StepChange in its campaign to have Clause 34 in the upcoming Financial Services Bill 2019-21, which gives statutory support and advice to those who get into debt?
My Lords, there is no raid going on of the BBC; quite the reverse. We are working towards much more transparency around the licence fee settlement and my right honourable friend the Secretary of State has written to the director-general of the BBC asking for a breakdown of spend against the five charter purposes, so that we can work with a transparent and clear focus.
My Lords, last week’s announcement heaps uncertainty and unfairness on the BBC as it keeps the threat of a further loss of revenue in play, instead of following the clear message from the recent consultation and the Perry review that the current system is the most effective of the available options. Can the Minister confirm that no further action will be taken in this area until agreement has been reached between the Government and the BBC on the licence fee level for the remainder of the charter period?
Perhaps it would help if I quote directly from the Government’s response to the consultation in relation to the noble Lord’s valid and important point. We said that:
“The government considers that a future decision on decriminalising TV licence evasion would benefit from a clearer picture on the wider drivers of BBC income in the face of market and other trends.”
So, we need a rounded picture of those issues on which to take a decision.
I do not entirely agree with my noble friend but he is right that it risks sending the wrong signal to the very small minority who seek to evade payment. We feel that it is more constructive to look at ways in which the BBC can support those on low incomes to pay the licence fee.
Can the Minister confirm that the DCMS response to the decriminalisation of the licence fee found that, as of 20 June 2020, there were zero people in prison for failing to pay the fine in respect of non-payment of the TV licence in England and Wales? Can she also confirm that the National Debtline advice to people who do not pay fines is that only in the most serious cases of non-payment and after every avenue is exhausted can a judge then send them to prison?
My Lords, over the last few months the Rupert Murdoch-owned radio station talkRADIO has been using its broadcasting licence to wage war against the BBC licence fee and its collection. Last week saw a particularly egregious example, which was blatant and inaccurate propaganda, designed to pursue commercial self-interest. Does the Minister agree that if it is to maintain its reputation as the guardian of impartiality and accuracy in broadcasting, Ofcom should investigate and act?
My Lords, there is no government plan to reduce workers’ rights. The UK has one of the best employment rights records in the world, and it is well known that in many areas of worker protections the UK goes much further than the EU. Now that we have left the EU, our Government and Parliament can decide what rules should apply and make improvements where they are needed.
The Government took power in the Brexit deal to degrade workers’ rights. On 14 January, the FT reported that
“a package of deregulatory measures”
was being drawn up, particularly in relation to working time. Apparently,
“select business leaders have been sounded out on the plan.”
The review was confirmed in the other place on 19 January. Yesterday and today, any intention to reduce workers’ rights was denied. What is the scope of the review, who is being consulted, why are the TUC and trade unions excluded, and what of the employment Bill?
I can only reiterate the Answer I just gave: there is no government plan to reduce workers’ rights. Our manifesto promised, among other things, to get Brexit done and to maintain the existing level of protection for workers provided by our laws and regulations.
Surprisingly, it did not take long after Brexit for the Government to consider shredding the working time directive, which deals with maximum hours, rest breaks and, importantly, minimum holidays. Instead of making vulnerable workers more vulnerable, when will the Government tackle abuses in the labour market, such as the growth of one-sided zero-hours contracts and other exploitative measures? These should be the priority targets, not attacks on workers’ established rights.
My Lords, I know of no business organisation calling for the Government to cut back workers’ rights, but no matter how much the Minister protests, the Government did sound the working time dog whistle to Back-Bench Tories. Business are calling for help to retain and recruit people through, for example, a cut in employers’ national insurance contributions. Will the Minister undertake to redirect the activities of his department to ensure that the Treasury brings in this vital support to our businesses?
Indeed, my noble friend is correct. Our equalities legislation and our maternity and paternity entitlements are already much better than minimum EU standards. In the UK you get over five weeks’ annual leave minimum; the EU requires only four weeks. I do not understand the Opposition’s obsession with wanting to downgrade our standards to those of the EU.
My Lords, the Transfer of Undertakings (Protection of Employment) Regulations have preserved the terms and conditions of many employees who find themselves working for a new employer after a transfer of business. With very many more businesses likely to change hands due to the effects of Covid, does the Minister believe that the TUPE rules are still fit for purpose?
I thank the Minister for confirming that the Government have no plans to weaken employment rights. This will be a great relief to many people across the country. However, what about levelling up? Does he agree that there is still work to be done on, for example, the Taylor review, which is yet to be completed; the protections needed for employees on zero-hours contracts, as mentioned by my noble friend Lord Monks; the differences in rights between workers and employees; and the continuing need for vigilance about non-payment of the minimum wage?
We will of course always clamp down on unscrupulous practices where they occur, including on those who do not pay the minimum wage. I am proud that it was a Conservative Government who banned exclusivity clauses in zero-hours contracts, giving gig economy workers more control over the hours that they work. We will look to go further where we can.
My Lords, as my noble friend Lord Fox said, there is no business demand for weakening job protections, but they would be severely hit by even worse border friction and possible tariffs. Can the Minister say how, in their review of employment rights, the Government are assessing the potential for EU trade sanctions under the level playing field provisions of the trade and co-operation agreement? Also, the tweet from the Conservative Party impliedly criticising the EU law for having no pay provisions is, as he knows, completely disingenuous, because the treaties bar the EU from having such provisions. The Conservatives would have been the first to complain if the treaty had such provisions.
I am surprised that the noble Baroness is asking about the trade and co-operation agreement, because the Liberal Democrats voted against it and therefore would have preferred no deal, but it is the case that, under that trade agreement with the EU, either party can consider whether divergence on labour standards merits a rebalancing of the agreement. We will of course completely comply with our obligations, as we do under all trade agreements.
When I spoke at the rally at Staythorpe power station in 2009, it was European Union law that allowed foreign workers to be flown in and put in containers, stopping British workers getting those jobs. Why are the Government not changing our law to prohibit this undercutting of workers’ rights?
Indeed, the noble Lord makes an important point, but these are all now matters that we can decide for ourselves. Immigration laws are, of course, kept under review, and the new immigration Act will be in force shortly, but we are now allowed to decide these things for ourselves. The EU will no longer be dictating to us how we conduct our own affairs.
My Lords, does the Minister agree that responsible trade unionism is valuable in protecting workers’ rights? However, clearly from time to time the law needs updating, possibly in the way referred to by the noble Lord, Lord Mann. The Minister will know that in 13 years of Labour Governments none of the basic reforms of the Conservative Government who preceded them was repealed. Will the Minister argue for reforms that will be similarly widely accepted?
My noble friend makes an important point. We remember that when we served in the European Parliament we were lobbied many times by UK Labour Governments to try to maintain existing flexibilities in the working time directive and others. Hopefully the Labour Party will return to that path of common sense soon. It is also important to bear in mind that most workers are not members of trade unions. We need to consult with trade unions where they represent workers but to bear in mind the rights of workers who are not represented by trade unions.
My Lords, the Covid pandemic has severely tested the strengths and weaknesses of workers’ rights and found them to be wanting in recognising the importance of childcare to family and national well-being. We have seen some employers using the pandemic as an excuse to fire workers and then re-engage them on lower pay and conditions. Does the Minister agree that strengthening and enhancing workers’ rights is important in increasing productivity and national prosperity?
My Lords, we are suffering the worst pandemic for a century. Now as much as ever the employment rights of workers who keep the economy going need to be protected. Will the Minister condemn employers who take advantage of the situation and tactics such as fire-and-hire, and commit the Government to a review of such pernicious practices?
I understand that ACAS is currently conducting a review and, of course, the Government will listen carefully to any recommendations it makes. We want to provide support to employees at such a time, but we also need to recognise the very difficult time that many businesses and companies are going through at this unprecedented time during the pandemic.
Arrangement of Business
Announcement of Recess Dates
My Lords, I thought this would be a convenient point to confirm the plan for the February half-term recess. There will be written confirmation of this in the Royal Gallery and in tomorrow’s Forthcoming Business. Subject, as is always the case, to the progress of business, we will rise for half-term at the conclusion of proceedings on Thursday 11 February and return on Monday 22 February. I am afraid that I am not yet in a position to announce any further recess dates. I understand that certainty in respect of Easter would be welcome at the earliest opportunity, not least by the staff of the House, who continue to support us with such skill and dedication. I will make a further announcement as soon as I am able to.
Arrangement of Business
My Lords, the Hybrid Sitting of the House will now resume. I ask Members to respect social distancing.
Serious Criminal Cases Backlog
Commons Urgent Question
The following Answer to an Urgent Question was given in the House of Commons on Wednesday 20 January.
“The Covid pandemic is truly unprecedented. It has affected every corner of our lives—from hospital operations delayed, to schools closed, to businesses struggling and even to how Parliament itself operates, we have seen Covid’s effects. The court system is no different: bringing people safely into buildings for trials —especially jury trials—and hearings is a difficult thing to do. That is why so much has been done to keep delivering justice in these difficult times.
We have invested £142 million in upgrading court buildings and technology, alongside £110 million to increase capacity, making an investment of over a quarter of a billion pounds in court recovery this year. We are hiring 1,600 extra staff. We have opened 19 new Nightingale courts, with 35 new courtrooms. As of today, we have over 290 Covid-safe jury trial courtrooms—substantially more than before the pandemic. We have installed plexiglass screens in 450 courts to protect users. We have installed cloud video platform technology in 150 magistrates’ courts and 70 Crown Courts, allowing 20,000 remote hearings per week.
In the first lockdown, and as these measures have been put into place, backlogs have, understandably, developed. That has been the case across the world. But the fruits of our labours are now being seen. We have been faster than almost every jurisdiction to recover and we believe that we were the first country in the world to restart jury trials, back in May. Since August, the magistrates’ court backlog has been relentlessly reducing, month on month. Crown Court jury trials are obviously much harder, for reasons of social distancing, but even there, in the last four weeks before Christmas, Crown Court disposals exceeded receipts for the first time since Covid began. At this very moment, as we stand here, about 230 jury trials are taking place. The joint inspectors’ report said earlier this week:
‘It is a real testament to the criminal justice system that in spite of the pandemic … service was maintained.’
I pay tribute to the judges, magistrates, jurors, witnesses, victims, lawyers, court staff, Crown Prosecution Service staff and Ministry of Justice officials who have made that monumental effort to deliver justice in spite of Covid.
We will not rest. We are adding more courtrooms, further increasing remote hearings, and examining options for longer operating hours. We are also taking action to mitigate the impact on victims and witnesses, this year providing an extra £32 million of funding and next year an extra £25 million of funding, including for rape and domestic violence.
This year has been incredibly difficult in the courts, as in so many places, but through a monumental, collective effort the system is recovering. The recovery will gather strength and pace with every day that passes, and I know that everyone in the House will support that work.”
My Lords, by 2010 the system did 150,000 jury trials a year with about 47,000 waiting, about 30%. The median period between crime and court disposal was 240 days. By the time the pandemic started in March last year, jury trials were down to 100,000 a year with a median delay of 305 days, so fewer trials and longer waits. Now there are 54,000 cases awaiting a jury trial and rising. No one can blame the courts for Covid. The judges, court staff, defence and prosecutors have done bravely and well but the Ministry of Justice has overpromised and underdelivered. It said that there would be 200 Nightingale courts in which jury trials could be done; there are 20. Some 600 people in the last seven weeks have got Covid, from judges to court staff. There is no systematic testing. We have not made the necessary changes to preserve jury trials. What is the target for getting the backlog down and how is it going to be achieved?
My Lords, the noble and learned Lord fails to put this information in context. In the Crown Court, prior to the Covid pandemic hitting in March last year, the outstanding caseload was 39,000, which was well within the range of 33,000 to 55,000 over the last decade. Immediately before the pandemic hit, we had increased the number of sitting days in response to an incoming demand on the courts. He will be aware that we have taken various steps to ensure that delays are minimised. However, I agree with him on one point: that we should pay tribute to the judges, magistrates, jurors, witnesses, victims, lawyers, court staff, CPS staff and, if I may say so, MoJ officials who have made a monumental effort to deliver justice in very challenging times.
With respect to the answer just given by the noble Lord, the Secretary of State’s response last week was complacent and lacked urgency. The four chief inspectors of probation, police, prisons and the CPS came together to produce a joint crisis report, expressing their grave concern about the “unprecedented and very serious” backlog of Crown Court trials—54,000-odd cases with trials scheduled into 2022—and the disastrous effects of these delays on victims, witnesses, youth offending teams, defendants and prosecutors. As long ago as July last year Caroline Goodwin, then chair of the Criminal Bar Association, pleaded with the Government to
“get serious and open up 50 more buildings and focus on criminal trials.”
Now many more are needed, along with much more funding to stave off collapse. Yes, efforts have been made and in difficult circumstances, but why the self-congratulation? Where is the urgency? What are the Government now going to do?
My Lords, I assure the noble Lord that there is no complacency whatever. In fact, in September we published a crime recovery plan to which members from all groups involved in the criminal courts contributed. That plan was put together after significant consultation and collaboration. It is now being implemented. We now have more rooms for jury trials. We have plexiglass to enable social distancing and are using Nightingale courts including, I am pleased to say, St George’s Hall in Liverpool, where I first saw justice in action. We are exceeding the goals in the plan. The target was 250 courts safe for jury trials by October; we have exceeded that number and are improving the position yet further.
I warmly welcome my noble friend from the next-door chambers to mine in the Middle Temple, both to this House and to his place in government. Will he accept that the £250 million in court recovery money mentioned in the Answer to the Urgent Question is not new money but reannounced expenditure? Does he also agree that it might be more useful if we were told how many courtrooms were not being used at all, compared to the limited number of Nightingale courts in operation that cannot anyway deal with dangerous defendants on remand in custody —for example those on charges of homicide or rape?
My Lords, the MoJ has invested record amounts. There was an investment of £142 million to improve courts, tribunals, buildings and technology. That was, in fact, the single biggest investment in court estate maintenance for more than 20 years. Of course we will build on that, but it would be fair to say that everybody is doing their best in extremely challenging circumstances.
My Lords, any backlog in the criminal justice system is worrying because it results in delays, and delays breed delays and result in injustice. They must not be allowed to fester because of the damage they can do to the justice system as a whole. This backlog is especially worrying because of its scale, its subject matter and because it is no doubt substantially due to Covid. What is required is a concerted effort to tackle the backlog and stop it festering and growing further out of control. There needs to be a plan to which all the criminal justice agencies sign up, including the Government, the judiciary and prosecution and defence lawyers, properly resourced to tackle the backlog as a matter of urgency. The Minister seems to suggest that there is such a plan. If so, when does he expect to see an improvement in the current situation and how is the plan being implemented?
My Lords, there is such a plan. I refer the noble and learned Lord to the answer I gave a few moments ago about the crime recovery plan that we set out in September last year. He is certainly correct: there is an old adage that justice delayed is justice denied. We are working very hard to make sure that there are no greater delays than those necessarily caused by the circumstances in which we are living.
I draw attention to my interest on the register as the Anglican bishop for Her Majesty’s prisons. The backlog of cases has a serious impact on offenders, victims and witnesses. On top of this, projections from the Ministry of Justice show that the prison population is expected to jump to almost 100,000 in 2026, which adversely affects prison staff as well as prisoners. Does the Minister agree that resources could be better spent on police-led diversion work and community-based provision, which could start now?
My Lords, when looking at the criminal justice system, I agree that it is mistake just to think about courts, sentencing and prisons. One has to look at it in a broader and wider context. To that extent, the points that the right reverend Prelate makes are well made.
My Lords, there is clearly no quick fix for a backlog of this magnitude, but will the Government consider extending to other witnesses the existing provisions under Section 28 of the Youth Justice and Criminal Evidence Act? These currently enable vulnerable witnesses to record their evidence and be cross-examined away from the courtroom at an early stage before trial. That recording can be replayed later at trial, with the result that evidence is not forgotten and footfall at court is usually reduced when the case finally gets to trial.
My Lords, the noble Baroness raises an important point. This Government have taken a number of steps to ensure that vulnerable witnesses can give evidence in that way. Indeed, noble Lords will be aware of provisions that build on that in the Domestic Abuse Bill, which is going through Parliament at the moment. To take that point further would, I think, require more careful consideration, but I would be very happy to discuss that with the noble Baroness in due course.
My Lords, will my noble friend and the Government please understand the toll that unacceptable delays in the criminal justice system takes on even provenly innocent individuals? I know from personal experience that delays in both the trials and sentencing of those who make false accusations can drive people to consider suicide. Sadly, I know of other cases where individuals did take their lives.
My Lords, the noble Lord is of course correct that delays in the criminal justice system can affect not only the defendant but others involved, including victims and witnesses. The listing of cases is ultimately a matter for the judiciary, not the Executive, so I am limited in what I can say. However, I can confirm, for example, that at the moment the majority of cases where a defendant is in custody have been listed for trial before July 2021.
My Lords, are the Government considering two possible steps that would help to reduce the unacceptable backlog of cases in the Crown Courts? The first is to reduce the number of jurors to, say, seven, making it easier to ensure social distancing in court rooms, and the second is to allow defendants who are legally represented to choose trial by judge alone in some categories of cases where juries are currently required?
My Lords, trial by jury is a cornerstone of the criminal justice system in this jurisdiction. With the support of Public Health England and Public Health Wales, we have made adjustments to more than 290 court rooms and jury deliberation rooms so as to facilitate trial by jury. Reducing the size of the jury is therefore unlikely to free up an additional amount of space for jury trials, and it would also require primary legislation. As to the other point that the noble Lord makes about trial by judge alone, that would, I think, require a significant change in our criminal justice system, and therefore very careful consideration would be required before embarking on that change.
My Lords, unfortunately, the time allowed for this Question has elapsed. I will pause a moment or two for those who wish to escape the Chamber and those who wish to come in.
Skills for Jobs White Paper
The following Statement was made in the House of Commons on Thursday 21 January.
“With permission, Madam Deputy Speaker, I would like to make a Statement on the publication of a skills for jobs White Paper on the next steps for post-16 education reform.
Last October, I notified the House of our plans to introduce a dynamic programme of measures to reshape this country’s further and technical education landscape, which is a key part of our mission to empower everyone in this country and level up those areas that have been overlooked and underresourced for too long.
I informed honourable and right honourable Members that the details of how we would do this would be spelled out in a White Paper, and I am pleased to announce its publication today.
The House needs no reminding that this country stands at a critical point in its history. We have some enormous challenges ahead. There is an urgent need to rebuild an economy injured by the Covid pandemic. We have already outlined an unprecedented support package to protect jobs and offer retraining to those who have lost theirs due to Covid-19, but beyond Covid we must also forge a new identity as an independent trading nation. Both those challenges have exposed our need for a strong and flourishing technical education sector to fire up the jobs of the future.
This White Paper is our blueprint for that future. It will play a pivotal role in creating jobs and rebuilding our economy. Through the lifetime skills guarantee, we will help people train and retrain at any stage of their lives. Our new flexible digital skills bootcamp training will give people the technical skills they need for great jobs through 12 to 16-week courses, and those bootcamps will expand into other sectors, such as engineering. From this April, tens of thousands of adults will be able to benefit from almost 400 free courses, which will be the first phase in the lifetime skills guarantee. These fully funded courses, which range from engineering to healthcare and conservation, will be available to adults without a full qualification at A-level equivalent or above, to help them gain skills that are in demand and that will open up exciting job opportunities for them.
In April, we will also kick-start the expansion of higher technical education, as we work towards making it as easy to get a loan for an approved higher technical qualification as it is for a full-length degree. We will also introduce pilots to encourage more flexible and modular provision, so that courses are more accessible and convenient. Lifelong loan entitlement will be up and running from 2025 and will build on the changes we are bringing in through this White Paper. Learners will be able to fit study around work, family and personal commitments and retrain as their circumstances and the economy change.
This White Paper is going to put employers firmly at the centre of our local skills systems, working in partnership with colleges and key local stakeholders to shape technical skills provision, so that it better supports the local economy. It will introduce German-style local skills improvement plans, which will be led by business organisations such as local chambers of commerce. Those plans will identify the skills that an area needs and spell out what needs to change to make training more responsive to employers’ needs. In turn, our further education colleges will shape the courses they offer to meet those skills needs, and we will make strategic development funding available to help them do that. We will start the ball rolling with a small number of trailblazer areas this year, and we will pilot a strategic development fund of £65 million in 2021-22 to help providers reshape provision to meet local employers’ needs.
By putting the employer voice at the heart of skills provision, we will ensure that technical education and training gives people the skills they need to get great jobs in sectors that the economy needs and boost this country’s productivity. We will back this through £1.5 billion of capital funding to upgrade our further education colleges. Today we announced the next phase of the FE capital transformation fund, and last week we made the next wave of capital funding for T-level providers available, with £135 million available to those delivering them in September 2022.
As far as long-term plans are concerned, we are going to move to a more coherent, simpler funding model that we will design together with the sector, and we will consult on it later in the spring. It will ensure a far more focused approach to funding. The consultation will be guided by the principles of high value, greater flexibility for providers, and enhanced accountability, which will see providers taking greater responsibility for their results. By 2030, we expect nearly all technical courses to follow employer-led standards, so that we ensure that the education and training people receive are directly linked to the skills that they will need to get a job.
We will continue with our existing programme of reforms in areas such as employer-led apprenticeships and our T-level programme. All apprenticeship starts are now on employer-designed standards. We will support employers in making greater use of their levy contributions by improving the transfer system and having more flexible training models.
The White Paper will also extend our network of institutes of technology to every region of the country, and we will see a corresponding increase in higher-level technical skills in science, technology, engineering and maths. In this way, we will future-proof our workforce, so that we are ready to deal with a constantly evolving economic landscape.
All our reforms depend on our ability to recruit and retain top-quality teaching staff in the further education sector, so we will launch a national recruitment campaign for further education teachers, strengthen initial teacher education, improve the support that new teachers receive, and help to provide more opportunities for improved training and development, such as work experience, as part of our industry exchange programme.
When the Prime Minister announced the lifetime skills guarantee last year, he spoke of how we will align our further and higher education sectors. I can tell the House that we have published the interim conclusion of the review of post-18 education and funding, which addresses some of the key recommendations made by Dr Philip Augar in his report from 2019. I have laid copies of the report of Dame Shirley Pearce’s independent review of the teaching excellence and student outcomes framework, and the Government’s response, before both Houses of Parliament. Today I have also published the post-qualifications admission reform consultation, which seeks views on whether to change the system of higher education admissions and move to a system of post-qualification admissions.
Our proposed reform to the teaching grant for the academic year 2021-22 will allocate funding in a way that delivers value for money for students and the taxpayer, and increases support for strategic subjects such as engineering and medicine, while slashing the taxpayer subsidy for such subjects as media studies. We want to ensure that our small and specialist providers, including some of our top music and arts providers, receive additional support, and that grant funding is used to support students effectively as well.
This spring, we will consult on further reforms to the higher education system, including the introduction of minimum entry requirements to higher education institutions and addressing the high cost of foundation years, before setting out a full response to the report, and a final conclusion to the review of post-18 education and funding, alongside the next comprehensive spending review.
The White Paper is a step change in how this country prepares people for their working lives. I know there is enormous cross-party consensus, and a real will on all sides of the House to make a real change in this sector—a change that has been needed for so long. I very much hope that all Members will work together to ensure that we can deliver on this. These proposals will ensure that people can learn the skills they need to get a great job and have control over the means of ensuring a more fulfilling and productive life. This White Paper will be the lever to unleash our nation’s creativity and talents, and will make this country an economic force to be reckoned with. I commend this Statement to the House.”
My Lords, I welcome this White Paper—it is not often that I say that—and I am glad that the Government have finally recognised the importance of further and technical education, especially after a decade of cuts to the FE budget. This is particularly welcome within the current context of Covid-19, with the ONS announcing today that unemployment has risen to 5%. Many people will need to retrain to re-enter the workforce, and the Government have to act fast to address the uncertainty in our economy.
With that in mind, what sectors will be included in the lifetime skills guarantee, and how will this change depending on the needs of the economy? What support will be available to those who are already qualified to level 3 but need to train for jobs in a new industry, or those who are not qualified to level 2?
In the year when the UK is hosting COP 26, I was saddened to see that climate change is not mentioned once in the White Paper. How does it align with the UK’s net-zero target?
We also got within this package of announcements the “interim conclusion” to the Augar review, which promises four new consultations on reforms to higher education, the lifelong loan entitlement, modularisation and the TEF. When will these conclude?
The legacy of 10 years of cuts will not end with this paper, and the Association of Colleges has even said that, despite recent uplifts, funding remains inadequate. I echo that. When will the education sector be given the long-term funding settlement that it needs?
I reflect that, if Covid has taught us one thing, it is that the care sector needs more training and support. FE is well placed to upskill this sector, and I had hoped that we might have seen some specifics on how this might be achieved. That was an opportunity missed.
I also implore the Minister not to forget about universities, with many facing job cuts. Can she confirm that new support for higher education will be provided in the upcoming Budget? Given the uncertainties of the last year, this sector requires stability and commitment, so why have the Government decided to cut support for London’s world-class institutions, and why have they not given more thought to integrating support for upskilling using the university sector and getting better integration between and across the sectors?
Parity of esteem between HE and FE is long overdue, so this White Paper goes in the right direction but not far enough. Finally, when will FE stop—[Inaudible]—of our education sector and be given the long-term funding settlement that it deserves?
We lost the last part of those remarks, but I will call the next speaker, the noble Lord, Lord Storey.
I very much welcome the Statement and the Skills for Jobs White Paper. As the noble Lord, Lord Bassam, said, we have seen further education become almost the Cinderella of the education service, and it is really welcome that at long last we are now realising its importance in terms of capital investment in plant and sites and revenue investment. However, on the latter, I ask the Minister to consider the point made by Sir Ian Diamond’s commission: that colleges need three-year grant settlements to give them room to develop and that one year is not sufficient.
As a country, we face a whole host of challenges to do with training and skills—not least the climate emergency, the effects of Brexit and changes in the world of work—and of course a demographic time bomb is ticking away, with demand outstripping the supply of young people entering the labour market. We have already seen this in sections of our economy—the construction industry, for example. It is a sobering thought that by 2030 the number of people aged 65 and above is projected to increase by 42%, while the number of those aged 14 to 64 is forecast to grow by only 3%. It is clear that we need to be nimble in how we respond to skills shortages and skills development, and not get caught up in structures.
The ambition to open funding and finance to everyone throughout their lives is welcome. Many earners face additional barriers to accessing education, so we need to ensure that finance is available to meet those demands. Why are these loans are not being introduced until 2025—and why loans, not grants? We know that adults are more averse to taking on debt. We should review the limits on accessing education and training while in receipt of universal credit, with the principle that individuals should not be penalised for engaging in education and training.
The careers service, careers advice, careers education and careers guidance should be of high quality and given face to face, not micromanaged from the top. The proposed careers hubs have to have the support and expertise that is much needed. Can the Government ensure that we look also at building the skills that are needed for the green economy? They have focused a lot of support on people who do not have level 3 qualifications, but what about those who have not completed level 2? Do the Government not accept that they, too, will need support and help?
Finally, I am attracted to the suggestion by the Association of Colleges that the Government should form a cross-departmental ministerial task force to oversee a new government 10-year strategy for education and skills to drive industrial strategy and other priorities, working with employers and other key stakeholders.
My Lords, I thank the noble Lord, Lord Bassam, for welcoming this report. It is good at this time of crisis to have good news and to know that in the past year, £600 million has been invested in the FE sector and £1.5 billion of capital is committed over the next few years.
The noble Lord correctly highlights the fact that at the moment people need to retrain, and quickly. That is why we have acted very quickly on the national skills fund so that the level 3 entitlement, which enables every adult to get their first full level 3 qualification, is in place. We have also had the first round of boot camps, which enable people to do eight-week to 12-week training courses and give them a fast-track route to an interview. We need to be nimble, which is why those initiatives have been introduced as part of the national skills fund before consultation on the rest of it is complete.
That is also why the Government will introduce local skills improvement plans and, because of the need for nimbleness in retraining, why the lifelong loan entitlement will be for four years. People who already have an undergraduate degree may then want to do a level 4 or a level 5 higher technical qualification. That will be introduced in 2025.
On conservation, I can tell the noble Lord that 400 courses have been made available under the level 3 entitlement, and they are focused on skills that we believe will lead quickly to jobs. Conservation is included in the level 3 entitlement.
The noble Lord referred to various aspects of the Augar review. Many of its recommendations have already been delivered: the level 3 entitlement; the investment in the FE estate, as I have outlined; the capital investment in new places for 16 to 19 year-olds to meet demographic changes; and the lifelong loan entitlement. There will be a consultation on other aspects of the Augar review in the spring, including the minimum entry requirements for higher education, and a full and comprehensive response to coincide with the next comprehensive spending review. Augar is a dynamic piece of work that will help us respond to the current crisis.
With regard to colleges, there will also be consultation around the need, identified in the Augar review, to consider multiyear settlements for FE colleges. We recognise that one of the issues facing them is the year-on-year funding so we are looking to address that.
On higher education funding, we are ready to implement restructuring should any of the HE sector need it, and we are closely monitoring the finances of those autonomous institutions. On the noble Lord’s point about the teaching grant, or T-grant, the other main source of income for universities, that is being redirected to strategic subjects. Obviously, these currently include subjects in the area of healthcare, but also certain arts subjects that we believe are not getting adequate funding. Those subjects are crucial to the labour market but we do not believe that the additional weighting given to London is the best way to fund that, and it is not consistent with the Government’s wider aim of levelling up different areas of the country. However, universities are dynamic partners in many of the institutes of technology which focus on STEM subjects, 11 of which are now open. It is good to see them working with the FE colleges and local employers on that initiative. There were perhaps a couple of final points from the noble Lord, but unfortunately the connection was interrupted. I apologise for missing those.
The noble Lord, Lord Storey, raised the issue of the accountability and funding of the FE sector. As I have said, we are looking into Augar’s recommendations on that, and it is also part of the remit of the FE commissioner —that role will be looking at the sustainability of the FE estate across the country, which is a vital part of reskilling people.
On the matters around the construction industry that the noble Lord raised, we have introduced a T-level in that sector, one of the first for 16 to 19 year- olds. With regard to the noble Lord’s point about demographics, he divides the population into, I think, people under and over 64, but we now know that people are working longer and their careers may involve more than one sector. Hence our concern with flexibility: levels 4 and 5 are more modular, and access to those qualifications will help people to train, and retrain, as will the four-year loan entitlement.
The noble Lord specifically raised the issue of entitlement to benefits while learning. We are alert to this issue in relation to people claiming universal credit. People can take part in eight weeks of full-time learning and maintain their entitlement to benefit, and there is no restriction on part-time learning. For people who have particular vulnerabilities and are at risk of long-term unemployment, that period of training can be longer.
On funding support, particularly for 16 to 19 year-olds, there are residential bursary funds to enable students to access specialist provision that is not available within their normal travelling range. Such funds are distributed by the FE sector. We are therefore aware of the need of those on benefits to have flexibility with regard to training. Careers advice is of course also a vital part of this package: £100 million is being invested in the careers service, much of which is targeted at face-to-face provision. Enterprise advisers are being rolled out by the Careers and Enterprise Company, which helps schools.
The noble Lord mentioned the need for net zero carbon. The Skills and Productivity Board provides a national picture of our economy. Its advice is given to the Secretary of State in accordance with the industrial strategy, so we are linking them up. At the local level, however, it is important that the local skills improvement plans will be employer-led, respond to local economic need and involve the devolved authorities. We then have a strategic development fund to enable the colleges to design the content of the courses that local employers are asking for. The overall ambition is that by 2030, almost all technical qualifications will be based on the employer-led standards that have informed the apprenticeships and the T-levels, so that the level of qualifications is high.
Finally, the noble Lord mentioned level 2 qualifications. As noble Lords will probably be aware, there is a second -stage consultation on level 3 about what qualifications we need to continue funding that are not T-levels or A-levels. There is also a call for evidence on level 2. We are particularly aware of young people who are further away and may not have got qualifications during their 11 to 16 years education and how we can enable them to get level 2 or level 3 qualifications and get on the qualifications ladder. The country needs a higher level of technical skills and enhanced respect for that sector, because men and women who have level 4 or 5 qualifications earn, on average, more than those with a level 6 undergraduate degree. This change has been overdue for decades in this country: to give as much respect to technical qualifications as we do to academic ones.
My Lords, we now come to the 20 minutes allocated to Back-Bench questions. I ask that questions and answers be as short and sweet as possible so that we can call as many speakers as possible. I apologise to the noble Lord, Lord Baker of Dorking, for the kerfuffle that led him to appear early during the discussion, and I call him now.
My Lords, I am very disappointed that university technical colleges are not mentioned at all in the White Paper for 16 to 18. We fulfil the very first sentence of the White Paper, which reads:
“Putting employers at the heart of the system so that education and training leads to jobs that can improve productivity and fill skills gaps.”
We are supported by over 500 companies. Employers come in and teach, and they produce projects for students to work on in teams. There are 48 university technical colleges with 16,000 students, and we have the lowest level of youth unemployment of any schools in the country. To fulfil the hopes of this White Paper, we need more university technical colleges.
My Lords, I hope my noble friend Lord Baker will think that this answer is sweet for him. We as a Government support a strong cadre of university technical colleges. Indeed, one opened with the full support of the sector and the local authority in Doncaster in September. There are UTCs that Ofsted has rated as outstanding, such as the Ron Dearing UTC, and obviously that forms part of the name of the Baker Dearing Educational Trust. When there are further free school applications, we look forward to any applications that are put forward for UTCs. We want to see a strong cadre of UTCs.
My Lords, the White Paper focuses on English, STEM and digital skills, but employers and the British Chambers of Commerce also say that the UK’s deficit in foreign language skills damages the economy and inhibits recruitment across all sectors and at all levels. Languages are not just an academic discipline; they are a vital technical skill that can boost export growth and social mobility. So will the Minister agree to look at how to integrate foreign language skills into the plans for technical education and the remit of the careers hubs?
My Lords, the noble Baroness is correct about the importance of modern languages, which is why they are part of the English baccalaureate and why we have given £4.8 million to fund the modern foreign language pedagogy pilot, which is looking at the attainment of languages at levels 3 and 4. However, I suggest to the noble Baroness that, when employers are leading on the local skills improvement plans, if the employers in a region say, “Actually, what we need in addition to that technical skill is a language—for instance, Polish or any other language”, it is open to them to say, “This is a skill that we need in the local area.” Then, as I have said, the strategic development funds will help the colleges to have the content of courses to match that skills improvement fund. If employers need those skills, we hope to see the need for foreign languages coming in as part of many higher technical qualifications and integrate it in that way. I invite the noble Baroness to make sure that employers are doing that as these plans are developed.
My Lords, I welcome the Government’s White Paper but I share some of the concerns expressed by my noble friend Lord Bassam. Implementing many of the Augar report’s recommendations is important, although personally I think that instead of talking about loans we should be talking about a graduate tax, which is a much more progressive approach.
I have two points that I want to raise. First, there is a recognition that the Government have to increase the number of apprenticeships. If that is the case, they have to look at the application of the apprenticeship levy in a way that encourages many more SMEs to take on apprentices. At the moment SMEs are saying they find the scheme complex and an administrative burden. We need to ensure that we remove that complexity and encourage many more SMEs. Secondly, does the Minister recognise the importance of a government National Careers Service website that could become a single source of assured career information for young people and adults?
My Lords, I am grateful for the noble Lord’s introduction regarding apprenticeships. The levy has now been in existence for five years. It has enabled significantly more workplace-based training and, I would say, has enhanced the reputation of apprenticeships as an alternative to academic study.
As I am sure the noble Lord is aware, we have offered £2,000 for any new apprenticeship start, which is for a younger person who is under the age of 24, or 25 if they have any HCP, and £1,500 for any other apprenticeship start. However, he is right that the apprenticeship service has been a work in progress. The SMEs now have access to the service via a website that should enable them to access the training that they want, rather than only being able to access training from contracts with providers that were entered into centrally. They can go on that website and reserve the training places that they want to have, and SMEs have been given a small number of guaranteed places.
We are also looking at the development of the levy and at easing the transition and the payment of the levy down the supply chain, which often involves making the levy available to small and medium-sized enterprises. We hope that the introduction of the apprenticeship service to SMEs will help with some of the bureaucratic issues that the noble Lord outlines.
My Lords, there is much to welcome in the White Paper, but why do the Government constantly betray their ignorance in claiming originality for employers being at the heart of this? Employers have always been the drivers for work- based skills and qualifications. However, as previous Governments have discovered to their cost, it is essential to have input from teaching experts, namely colleges, and assessment experts—that is, awarding bodies. I declare an interest as a vice-president of City and Guilds, for which I worked for 20 years. What input is anticipated from colleges and awarding bodies to ensure that these skills are fit for purpose?
My Lords, the key aspect of this is that employers are involved in setting the standards in relation to these qualifications. They will be at the heart of producing the local skills improvement plans, but they will work with the colleges. We recognise that the status of FE employees has not perhaps been what it might have been so we are investing in that workforce, in enhanced initial teacher training for it and in industry exchanges. So while the employer-led bodies will form those plans, they will work closely with the FE colleges and I am sure they will consult the awarding bodies that the noble Baroness makes reference to.
My Lords, obviously I welcome the White Paper, but it worries me to a large extent because there must be limits to what central government can do to match the skills of people to the jobs available. Things move very fast. Throughout the White Paper, the theme emerges of what employers want. This may be strange, but I am slightly suspicious of employers and what they want. It is easily said, but who are these employers? Big ones, presumably. Who represents them? Is not the really important question: what are these employers doing to help themselves?
That brings me to the general position of the noble Lord, Lord Baker, regarding the relationship between education and training. In my opinion the White Paper is very weak on where the boundary lies between education and training. I urge my noble friend on the Front Bench to think very carefully. It is not possible for any education service to make employees oven-ready for employers, as it were. They can take them so far but the employers have to do the rest. There should be a lot more concentration on the duties and responsibilities of employers for training.
My Lords, there is a limit to central government, which is why the key strategy here is local skills improvement panels, working closely with colleges and the devolved authorities. That is matched by the Skills and Productivity Board, which will give a national picture. In relation to the question of who these employers are, when one looks at what is happening with apprenticeships, there are trail-blazer groups of employers. This is not just picking one person. The Institute for Apprenticeships and Technical Education oversees these trail-blazer groups. They include small and medium-sized enterprises and we are so encouraged that, as my noble friend made reference to education and training, much more is now taking place in the workplace. When one looks at apprenticeships, one sees that they have good training in the workplace as well as time out of the workplace to do that training. There are workplace placements for T-levels as well, so that those young people have a period of weeks in the workplace. So my noble friend is right that employers have a responsibility, and that is why employer-led bodies such as chambers of commerce are going to be involved with the local skills improvement plans.
My Lords, I was a member of the Centenary Commission on Adult Education, which reported in November 2019. I welcome the Skills for Jobs White Paper. It confirms the importance of collaboration between businesses and colleges for improving people’s career prospects. Putting employers at the heart of new qualifications right across England will build on the success of these local partnerships. They will ensure courses remain in lock-step with industry need and give learners confidence they are gaining skills that lead to jobs. Would the Minster agree that new technologies mean that nine in 10 employees will need to learn new skills by 2030, and the Government commitment to delivering the flexible learner entitlement, boosting access to modular learning, is hugely welcome and will support more adults into training? Would the Minister agree that this should be backed up by turning the apprenticeship levy into a flexible skills levy at Budget?
The noble Lord is correct that one of the areas where we lack productivity and we know we have a skills gap is the digital sector. That is why digital has been a focus of those eight to 12-week bootcamps that I outlined, with a fast track to an interview. So the noble Lord is entirely right in relation to that. I will take his suggestion about the levy back to the Minister for Apprenticeships and Skills.
My Lords, as one of the few in your Lordships’ House with a Higher National Diploma qualification from a technical institution, rather than a university degree, this is an issue of great importance to me. The aspiration and language used in the ministerial Statement is to be welcomed. However, the most important aspect now is delivering on the words in the White Paper. I therefore ask the Minister: while it is right and, as we heard from my noble friend Lord Bassam, overdue that FE and apprenticeships receive additional investment, is it not a reality that universities also play a vital role in the delivery of technical skills, and that the divide between academic and technical education is far more complex than some would acknowledge? What is the Minister’s vision for a more integrated tertiary education that incentivises apprenticeship providers, FE and HE to work collaboratively to deliver choice, flexibility and clear pathways for students, young and old?
I am grateful to hear the noble Lord’s own career history. I think the institutes of technology are the first examples we have of the HE sector working with the FE sector in STEM with local employers. He is right that we want to see parity of esteem, but the situation we are dealing with is that for decades this country has not been like many of our European partners in valuing these technical qualifications. That is what we need to level up at the moment. There are degree apprentices, and I believe that Minister Keegan is the only Member of the other place with a degree apprenticeship. It is important that we got T-levels validated for UCAS points, so that they are also an access point, and you will see them merging in. This is a work in progress, but the most important thing in this country is that we respect technical qualifications. That is the first job we need to do and a clear ambition of the White Paper.
My Lords, I should first remind the House of my declared interests in the field of education. There is a great deal here about bootcamps to get people ready for study. I believe these are designed to help with things such as basic skills as well. Will some consideration be given to those with special educational needs in how these are structured? Anybody who was around when we did the last Education Bill knows how much time we spent making sure the dyslexics and others were allowed to actually get apprenticeships, while also having some realistic form of saying that for the English qualification you have got to get through. In this world, when we talk about technical skills, the answer is usually on a programme that is built into your computer software. That is there. Are we going to accept that that is used to acquire these skills, and will we make sure that when we are training people in technical IT skills they know how to access and integrate it?
My Lords, in relation to special educational needs, I will go back and look at that. We are into the second procurement phase of the bootcamps and I will make sure that he is given the details in relation to special educational needs. In relation to what we are trying to focus on with level 4 and 5 qualifications, employers will be in the lead on the standards. I want to be very clear to the noble Lord that if what they outline for that qualification is to give the learner the knowledge, skills and behaviours to do that job and there is no additional English and maths requirement, that will be the framework. I hope that encourages the noble Lord that it will not be the case that “You must have passed x exam”. With the employer in the lead looking at those qualifications, if they say those are the functions and what you need for the job, there is to be no additional English and maths requirement.
I was pleased that the White Paper recognises the importance of high-quality, impartial careers advice and guidance and seeks to create a clear careers system catering for all ages. Can the Minister tell us about how the Government will bring about the proposed alignment between the Careers & Enterprise Company and the National Careers Service to achieve this, including the four principles they say they plan to follow? What plans are there to provide the funding required, so that everyone who needs it has access to qualified personal careers guidance—something notably missing from the White Paper—perhaps as part of a new lifelong careers strategy?
My Lords, as I have outlined, there is going to be £100 million invested in the enterprise advisers—which I believe are part of the Careers & Enterprise Company—and more into National Careers Service guidance and a new website in relation to that. One must not forget as well that nearly £1 billion has been invested in work coaches at the DWP, who are also a vital part of the careers strategy.
We are aware through the Careers & Enterprise Company that, particularly in relation to technical education, it is important that local employers are brought into our schools, so that all the opportunities available, particularly careers and apprenticeships that might not be part of the secondary school workforce experience, are brought in front of young people so that they know all the options that are open to them.
My Lords, there are requirements on the local authority, and indeed on provider schools, to make sure that their young people are aware of the opportunities for them, so that if they choose to go down the route of a UTC or studio school, many of which have an entry point at 14, they are made aware of that. It is the role of the Careers & Enterprise Company to make sure that other roles and occupations are brought in front of young people, so that they know the full options before them in terms of academic and technical qualifications and career routes.
My Lords, in my communities there are thousands of well-qualified young people, who have lived in the shadows of successful corporate business organisations in Canary Wharf and the City with a palpable record of providing few opportunities for work, other than in paltry numbers in the poorly paid hospitality-based sector, causing continued disparities. Therefore, I welcome the Statement and the paper and its focus on local skills improvement plans, on strengthening the statutory footing on which business organisations will be expected to participate and on improving local skills and so increase access to jobs. Given the deepening current unemployment crisis, can the Minister say what further steps the Government will take immediately to increase the number of industry and sector-based paid apprenticeships? I urge the Government to reconsider their loans into grants, if they are really serious about upskilling the population.
My Lords, it is inspiring to hear the noble Baroness. When one thinks about being in those parts of east London, I believe, that she makes reference to, it is interesting to look from where people live and see Canary Wharf and those buildings at the end of Whitechapel Road. From a local skills improvement plan point of view, obviously it will involve the London Mayor, but actually having those career opportunities and the local skills that are needed for those young people to access those jobs, which they can see in those institutions visible to them, is part of this strategy. We are pleased that, with the full maintenance loans that are also available, we have seen record numbers of disadvantaged students going into higher education. The largest increase has been within the British black African cohort who have been accessing universities, so we are seeing improvements there.
My Lords, the time allowed for this question is now up. Before we move on to the next business, we will pause for a moment or two to allow people to get in and out.
Arrangement of Business
My Lords, for Committee stage of the Counter-Terrorism and Sentencing Bill, I will call Members to speak in the order listed in the annexe to today’s list. Members are not permitted to intervene spontaneously; the Chair calls each speaker. Interventions during speeches or “before the noble Lord sits down” are not permitted. During the debate on each group, I invite Members, including Members in the Chamber, to email the clerk if they wish to speak after the Minister. I will call Members to speak in order of request and will call the Minister to reply each time. The groupings are binding and it is not possible to degroup an amendment for separate debate. A participant who might wish to press an amendment other than the lead amendment in a group to a Division must give notice, either in the debate or by emailing the clerk. Leave should be given to withdraw amendments. When putting the Question, I will collect voices in the Chamber only. If a Member taking part remotely wants their voice accounted for if the Question is put, they must make this clear when speaking on the group.
Counter-Terrorism and Sentencing Bill
Committee (1st Day)
Clause 1: Offences aggravated by terrorist connection
Debate on whether Clause 1 should stand part of the Bill.
My Lords, in opening this debate, on the first day of Committee on this Bill, it might be sensible for me to outline our approach. This is particularly so, because I was not able to be present for the Second Reading debate on 21 September—for which I apologise but I was involved in a court hearing.
All on these Benches—and, I believe, all across the House—regard terrorist offences as particularly serious and deserving of the highest condemnation. This Bill was a response to two appalling terrorist attacks. The first was the attack in and outside Fishmongers’ Hall in November 2019, when Usman Khan, who had been released on licence after serving half of a 16-year sentence for terrorist offences the previous December, stabbed five people, killing two of them, after attending a prisoner rehabilitation programme, before being shot dead by police. The second was the attack on Streatham High Road in February last year, when Sudesh Amman, a terrorist who was under surveillance and had been released a month or so previously from a three year and four month prison sentence for disseminating terrorist material, stabbed and injured two people before being shot dead by police. As the noble Lord, Lord Parkinson of Whitley Bay, rightly pointed out at Second Reading, both of those attacks were carried out by offenders who had been released half way through their sentences. The central feature of Part 1 of this responsive Bill is to make the sentencing regime tougher, both for offences that are considered by their nature to be terrorist offences and for offences deemed to have a terrorist connection.
Our concern, in considering this Bill at Committee stage, is to ensure that damage is not done, by the perceived requirement to respond severely to terrorist offences, to consistent and long-held principles of our criminal law. Clause 1, broadly, extends the range of offences that can be deemed to have a terrorist connection to include any offence, committed after the Act comes into force, that is punishable with imprisonment for more than two years. The terrorist connection need not be determined by the judge in the case of a number of specific terrorist offences listed in Schedule A1, effectively because it is presumed. Otherwise, it is for the judge to determine and state in open court that an offence has such a connection. A finding that an offence does have a terrorist connection, requires a sentencing judge to treat that terrorist connection as an aggravating factor when imposing sentence by reason of Section 69 of the Sentencing Code. For the purpose of that section, an offence has a terrorist connection if the offence
“is, or takes place in the course of, an act of terrorism; or … is committed for the purposes of terrorism.”
I note in passing that the code does not require that the offender was a knowing party to the planning, objectives or implementation of the act of terrorism, actual or intended, that was in fact committed. Furthermore—and this is our central point on Clause 1 —the decision that the offence has a terrorist connection is to be taken by the court at the sentencing stage, even though such a decision inevitably fundamentally changes the nature of the offence for which the offender has been convicted. The decision that is then made involves a factual determination of great significance to the criminality of the defendant and of the offence, yet it is taken by the judge alone without the involvement of a jury. Because the category of offences that may give rise to such a finding is so wide—that is, any offence that carries a maximum prison sentence of more than two years—the offences include a very wide range, such as causing criminal damage over £5,000, assault occasioning actual bodily harm, theft and many others, some of which would often be quite minor if committed without a terrorist connection.
Terrorism as an aggravating factor in sentencing was introduced by the Counter-Terrorism Act 2008. By Section 30 of that Act, where a person was found guilty of an offence listed in Schedule 2 to that Act and the court found that the offence had a terrorist connection, the judge was bound to treat the terrorist connection as an aggravating factor. The mechanism was the same as is proposed under this legislation, but the Schedule 2 offences under the 2008 Act were of the utmost severity. They included murder, kidnapping, Section 18 wounding with intent to cause grievous bodily harm, a number of serious explosives offences, hijacking, biological weapons offences, hostage taking and serious aviation offences.
A determination that an offence has terrorist connections has implications beyond sentencing, as it also triggers a number of forfeiture provisions and the terrorism notification requirements that apply. Under the Terrorist Offenders (Restriction of Early Release) Act 2020—the emergency legislation we passed last year to prevent terrorist offenders being released after serving half their sentences—any offender whose offence came under the prescribed list of serious offences, and had been determined by a judge to have a terrorist connection, was subject to the rules in that legislation against release at the halfway point but, again, that Act involved a list of serious prescribed offences.
The reason we are concerned by Clause 1, and its radical extension of the offences for which a terrorist connection is an aggravating factor in sentencing, is that its real effect is to introduce an entirely new and very wide range of aggravated offences. I cite as an example what is to be a new aggravated offence: assault occasioning actual bodily harm for the purposes of terrorism. Yet the defendant is not to be tried for the aggravated offence as he would be if charged, for example, with aggravated burglary—broadly, burglary while in possession of an offensive weapon. In an aggravated burglary case, the defendant would be charged with that offence and tried for it on indictment, on the evidence relating to the aggravated feature of carrying an offensive weapon, as well as on the evidence of the basic offence. If he were convicted by a jury or pleaded guilty to the aggravated offence, he would be sentenced by the judge for that aggravated offence: but not so, here.
The legislation is complex, and I often wish that we would legislate less by cross-referencing and more by clearly stating the effect of what we do. Our point in opposing this clause stand part question is simple: in the rush to introduce tougher sentences for offences with a terrorist connection, the Bill proposes effectively to deny defendants a right to a trial for the offences of which they are accused. In each such case, the real offence of which the defendant stands accused is the aggravated offence of committing the basic offence in the course of an act of terrorism or for the purposes of terrorism. Applying fundamental principles of English criminal justice, that defendant should be charged with that offence, tried for it on the evidence—including the evidence of the aggravating terrorist connection—by a jury of his peers and, if convicted, or on a plea of guilty, sentenced accordingly. He should not be tried, as the Bill proposes, and convicted for the basic offence only, and only then be tried effectively by a judge alone for the aggravated offence.
My Lords, I have a very different view from the opponent of the clause standing part. The UK Government, regardless of who is in power, obviously recognise at this point in time that the fundamental dimensions of this Bill are about the safety of the United Kingdom against terrorism. Our problem is that we are still a very open nation.
Whether it is in Afghanistan, the Middle East or Asia, in all those parts of the world we take an active role in promoting democracy. We see it occasionally with refugees who come to this country. Genuine refugees are welcome, but hidden within the alleged genuine refugees are, too often, terrorists or quasi-terrorists. It is against that background that my noble friend on the Front Bench is rightly introducing this Bill in Committee. If people think I am exaggerating, I have had personal death threats from the IRA. I happened to represent Northampton South, which had an IRA cell in the early 70s. Colleagues may know that I have been deeply involved in Sri Lanka for 50 years, and I am sorry to report that some number of illegal entrants to our country were active members of the LTTE Tamil Tigers. So the challenge is there, and we need to recognise it.
I praise those in our party who have decided the time has come to look again at the sentencing of terrorism. The problem is made worse by the misunderstanding—whether it be genuine or otherwise—of the difference between human rights and the original European Convention on Human Rights, which, of course, was the basis of our Human Rights Act. That is fine, but it should not cover elements where a war took place. Again, I cite Sri Lanka, because that was a ghastly war between a democratically elected Government and a terrorist movement, proscribed by the United Kingdom Government in in its last few months in 2001. The law that looks after the rights in that context is international humanitarian law.
It may surprise colleagues to know that under the generosity of previous Governments, we in the UK allowed the number two man running the Tamil Tigers to have an office in Camden. Okay, he was a British citizen, but he was in charge throughout the period when I was involved, and his wife—an Australian lady, now, obviously, with joint British citizenship—was involved in recruiting child soldiers. We had these people living in our midst. I say to my noble friend on the Front Bench: well done in bringing the Bill forward. Clause 1, to me, is absolutely fundamental to it, and I wish it a safe and swift passage.
My Lords, it is a privilege, as always, to follow the noble Lord. I respect his point of view and the experiences he has had. I am sure he will appreciate we are concerned with the rule of law and preserving the reputation this country has for justice done in the proper way.
Terrorist activity is an aggravating factor in sentencing. Section 30 of the Counter-Terrorism Act 2008 enables courts to increase the sentence if it is established that the offence has a terrorist element. But the 2008 Act limited the use of this provision to the specific offences in Schedule 2, which were those most commonly connected with terrorist attacks or ancillary to them. The primary offences listed involved murder, manslaughter, violence to the person and explosives, nuclear, biological material and hijacking offences. The proposal in Clause 1 extends the offences that can be aggravated by a terrorist element to include any offence in the whole criminal calendar punishable with imprisonment for more than two years. This is an enormous widening of the provisions of the 2008 Act. The main feature of these provisions is that the issue of whether there is a terrorist element in an offence is not determined by a jury, notwithstanding the fact that these cases will inevitably be heard on indictment in the Crown Court.
The decision that there is a terrorist connection becomes part of the sentencing process, to be determined by the trial judge alone after conviction. Could the Minister explain the process the Government envisage? Would it be the equivalent of a Newton hearing, with a separate trial of the issue in which evidence is called and arguments heard on which the judge’s decision is based, or would the judge be entitled to come to a conclusion based on the evidence he has heard in the trial before the jury? It is an important decision. It is not just that his finding will add years of imprisonment to the individual defendant but, as my noble friend Lord Marks said a moment ago, it will trigger the terrorism notification requirements and the restrictions on early release contained in the Terrorist Offenders (Restriction of Early Release) Act 2020.
Surely, in the traditions of the criminal law of this country, a suspect believed to be involved in terrorist offences should be charged with those offences. It should be for the jury to decide whether there is sufficient evidence to sustain such charges. It cannot be right to charge the suspect with lesser offences and allow the judge to add the icing to the cake. There is no way in which this clause can be satisfactorily amended; consequently, the only thing to do is throw it out.
Let me give a pertinent example which everybody will understand after the events of last year. Suppose a jury finds a Whitehall protestor guilty of occasioning actual bodily harm to a rival protestor outside the gates of Downing Street, by punching him on the nose and stealing his flag. Under this clause, the judge could find proved, after the jury’s verdict, that the use of force to influence the UK Government and intimidate the public was for the purpose of advancing an ideological cause and therefore well within the definition of terrorism in the pursuit of, shall we say, exiting the European Union. Does the Minister—whom I welcome to his seat in the House of Lords—agree?
I join noble Lords in welcoming the noble Lord, Lord Wolfson of Tredegar, to his place in the House of Lords. I am sure he will make an enormous series of contributions to our debates on justice issues—not just criminal justice, but civil justice. He is very welcome.
This is a very important Bill. I think everyone in the House, certainly on this side, is very keen that the Government be given legitimate tools to fight terrorism as hard as possible. One legitimate tool must be the use of greater sentences, where appropriate, for people who commit terrorist offences. In principle, we on this side are not against the idea of expanding the circumstances in which an offence can be regarded as aggravated because of a terrorist connection, which is what Clause 1 does.
Also, in principle, I do not think it necessarily wrong for the judge to be given very substantial powers to make judgments on what the appropriate sentence may be. The most obvious example of this relates to murder, where the judge in effect has the power to determine whether the offender should be given a whole life sentence, which will obviously have huge ramifications for what happens to that defendant. Indeed, such a decision had to be made quite recently on the conspirator convicted in relation to the Manchester Arena bombings —he was given a whole-life sentence by Mr Justice Baker. That was a very significant occasion.
I am very keen to discover precisely what process the Government have in mind for how a decision will be made on what are more or less serious offences than the normal ones. What process is envisaged in which a judge can decide whether an offence is aggravated by terrorism in the sense envisaged by Clause 1? In principle, I think a fair process can be envisaged and it may not be wrong for the judge to decide that rather than the jury. However, I am very interested to hear what the Government have to say about it.
My Lords, I thank the noble Lord, Lord Marks of Henley-on-Thames, for reminding the Committee of the two terrorist offences at Fishmongers’ Hall and at Streatham, which formed the backdrop to this Bill. They were rightly mentioned at Second Reading; it is correct that we have them in our minds as we embark on Committee today.
Clause 1 addresses a limitation in the existing legislation to ensure that no terrorist-related offenders fall through the cracks. As the noble Lord, Lord Marks, set out, at present the courts are expressly required to consider whether there is a terrorist connection at the point of sentencing only in relation to a defined list of non-terrorism offences set out in Schedule 1 to the Sentencing Code for England and Wales and Schedule 2 to the Counter-Terrorism Act 2008 for Northern Ireland and Scotland.
Clause 1 removes this defined list of non-terrorism offences from Schedule 1 to the Sentencing Code and Schedule 2 to the 2008 Act. This is an important step, though not quite as radical as the noble Lord, Lord Marks, suggests. It will expressly require the courts, in cases where it appears that any non-terrorism offence with a maximum penalty of more than two years was committed in the course of an act of terrorism or for the purposes of terrorism, actively to consider whether the offence was committed with a terrorist connection and should be aggravated as such. Closing this loophole provides a necessary flexibility in the legislation, reflecting the fact that terrorist offending takes a wide variety of forms.
On Second Reading we noted that, sadly, the terrorist threat is constantly evolving; offenders prove themselves rather inventive, alas, and it is right that the legislation keeps pace. I am glad for my noble friend Lord Naseby’s support, who sadly spoke with personal experience. I also welcome the support of the noble and learned Lord, Lord Falconer of Thoroton, for this important step in expanding the list of offences.
This clause also ensures that the consequences of a terrorist connection are applied consistently to all offenders. The identification of a terrorist connection by the courts has a wide-ranging impact. First, it must be treated as an aggravating factor when sentencing. This will help ensure that terrorist offenders receive punishment befitting the severity of their offending and the risk they pose to public safety. Secondly, the change will also result in the offenders being subject to the registered terrorist offender notification requirements following their release from prison, meaning that they are required to notify specified information to the police. That information supports the police to manage an offender’s risk on release much more effectively. Thirdly, once the Bill receives Royal Assent—as we hope it will—offenders convicted with a terrorist connection will be subject to a minimum of 12 months on licence following their release and will be eligible to have certain licence conditions imposed on them to assist in the effective management of their risk, for instance polygraph testing.
It might help the Committee if I offer a hypothetical example to demonstrate how this change will work in practice, as noble Lords asked for. Today, someone convicted of possessing a firearm with intent to endanger life would not be guaranteed to have their sentence aggravated, even where the court has identified a terrorist connection. They would also not be subject to the restriction on early release provisions or the registered terrorist offender notification requirements upon release. That is because this offence is not listed in Schedule 1 to the Sentencing Code or Schedule 2 to the Counter-Terrorism Act 2008. Clause 1 will address this inconsistency in the current legislation by requiring the court to consider whether there is a terrorist connection and treat it as an aggravating factor if such a finding is made. It will also ensure that appropriate risk management tools, such as the notification requirements, apply following the offender’s release from prison.
I emphasise that, as is the case currently, courts will be required to apply the criminal standard of proof—that is, beyond reasonable doubt—when determining a terrorist connection at the point of sentencing. The noble Lord, Lord Thomas of Gresford, asked about this. Judges routinely have to consider whether offences which they are sentencing have been committed with aggravating factors and, in doing so, they apply the criminal standard of proof and must be satisfied that they are made out beyond reasonable doubt. I hope that addresses the question that he and others raised about the process.
It is also important that the Committee notes what the Independent Reviewer of Terrorism Legislation said in public about the Bill and these provisions, including during the oral evidence that he provided to the Public Bill Committee in another place. Asked by my honourable friend the Member for Derbyshire Dales which provision in the Bill, in his professional view, would have the biggest effect on making our citizens safer, he said that it was this one:
“That is a really welcome change, which makes people safer.”—[Official Report, Commons, Counter-Terrorism and Sentencing Bill Committee, 25/6/20; col. 16.]
The Bill contains a comprehensive package of measures, of which this change is an important part. It will help to establish confidence in the sentencing framework by ensuring that those who commit terrorist-related crimes receive punishments commensurate with those crimes, spend longer in custody and are subject to appropriate risk management processes following their release.
My Lords, I should have opened my earlier speech by welcoming the noble Lord, Lord Wolfson of Tredegar, to his position and to the House. He has been extremely helpful to me in relation to the Domestic Abuse Bill and its provisions and I have seen him virtually on a number of occasions, so I have not completely appreciated that this is the first time that we have been together on a Bill. I also thank all noble Lords who have spoken and in particular the noble Lord, Lord Parkinson, for his response.
I listened carefully to all that the noble Lord, Lord Naseby, said. Of course we all, throughout the House, deplore terrorism and agree that it is crucial that we make our country safe from terrorism and treat terrorist offences with extreme severity. The point that I made, echoed by my noble friend Lord Thomas and, to a certain extent, by the noble and learned Lord, Lord Falconer, is that, in the effort to set up that severe framework, we must not abandon important principles of English criminal justice.
The noble Lord, Lord Parkinson of Whitley Bay, has not answered the point made by me and by my noble friend Lord Thomas and, to a lesser extent, by the noble and learned Lord, Lord Falconer, that the fact-finding process by which the aggravation of an offence carrying a sentence of more than two years’ imprisonment is to be proved has not been defined in the Bill, is taken out of the hands of the jury by the Bill and put into the hands of the judge, and does not satisfy the basic requirement of English law that the findings of fact about an offence are for the jury, and the sentencing is for the judge.
Of course I take the point made by the noble and learned Lord, Lord Falconer, that the judge has discretion in many cases—including the offence of murder, which the noble and learned Lord mentioned—to increase or reduce a sentence in accordance with his view of the evidence. However, that does not answer the central point that what we have here is the creation of a raft of new aggravated offences, and the position that it is for the judge alone to decide whether he is dealing with an aggravated offence or a basic offence; and the basic offence can be quite a minor offence in general terms.
The noble Lord, Lord Parkinson of Whitley Bay, has not answered the question from my noble friend Lord Thomas as to whether there would or would not be a Newton hearing. He has not answered the noble and learned Lord, Lord Falconer, about how the judge makes a determination that the offence is to be treated as aggravated. I invite the noble Lord to go back and discuss with his colleagues in government how this point can be dealt with so as to ensure that the aggravated offence is either charged, tried and convicted in accordance with our principles of law by the jury, or how it is to be determined on proper evidence, if not by the jury then by the judge.
The clause as it stands is unacceptable. For that reason, I maintain the questions that I have about it.
Clause 1 agreed.
Schedule 1 agreed.
Clause 2 agreed.
We now come to the group consisting of Amendment 1. I remind noble Lords that anyone wishing to speak after the Minister’s reply should email the clerk during the debate. Anyone wishing to press this amendment to a Division must make that clear in the debate.
Schedule 2: Serious Terrorism Offences: England and Wales
1: Schedule 2, page 52, leave out lines 27 to 35
Member’s explanatory statement
This amendment removes references to offences in the Space Industry Act 2018 from Schedule 17A to the Sentencing Code (serious terrorism offences). References to those offences will instead be inserted on their commencement by Schedule 22 to the Sentencing Act 2020 (see the amendment at page 108, line 11) so that they are dealt with consistently by the Sentencing Act 2020.
My Lords, I hope that the Committee will allow me to take a moment to thank the noble Lords, Lord Thomas of Gresford and Lord Marks of Henley-on-Thames, and the noble and learned Lord, Lord Falconer of Thoroton, for their very warm words of welcome, which I appreciate.
Amendment 1 is a minor technical amendment that removes references to offences in the Space Industry Act 2018 from Schedule 17A to the Sentencing Code, which deals with serious terrorism offences. References to those offences will instead be inserted, on their commencement, by Schedule 22 to the Sentencing Act 2020 so that they are dealt with consistently by that Act. I beg to move.
My Lords, I understand from the Minister that this is a minor amendment. I too welcome him to his position. He has been very helpful to me both on this Bill and on the Domestic Abuse Bill, with which we are dealing almost simultaneously. I have a couple of minor questions for him. First, what would happen if this amendment were not put in place? How would that have affected the position, and what could the consequences have been? Secondly, what level of consultation has he done externally to ensure consistency in Sentencing Codes and parliamentary Acts?
My Lords, I am grateful for the words of the noble Lord. To answer his two questions, I say that this is essentially a tidying-up matter because of the different pace of legislation going through Parliament at the moment. The question of what would happen if this amendment were not made is an interesting one. At the very least we would be left with inelegant legislation, and I know from my previous incarnation that inelegant legislation is bad for Parliament but very good for lawyers, so let us try to make it as elegant as we can while we are at it. Much of the consultation on this matter preceded my involvement in this Bill and indeed my introduction to this House, but I am aware that there has been very significant consultation. Of course, if the noble Lord wishes to raise any particular points with me, my door is always open to him.
Amendment 1 agreed.
Schedule 2, as amended, agreed.
Clause 3 agreed.
We now come to the group beginning with Amendment 2. I remind noble Lords that anyone wishing to speak after the Minister’s reply should email the clerk during the debate. Anyone wishing to press this or anything else in the group to a Division must make that clear in the debate.
Schedule 3: Offences for the purposes of this Act: Northern Ireland
2: Schedule 3, page 53, line 41, leave out “Articles 20A and 24A” and insert “Article 20A”
Member’s explanatory statement
This amendment and the amendments at page 53, line 44, page 95, line 4 and page 95, line 37 are consequential on the removal of Clause 34.
My Lords, I will also speak to Amendments 3, 17, 18, 21, 22, 23, 24, 25, 26, 73, 74 and 75. I will also signal my intention to propose the removal of Clauses 33, 34 and 35.
Clause 33 was intended to provide explicit provision so that Scottish Ministers might impose a polygraph condition as a licence condition for specified released terrorist offenders. Clause 34 was intended to provide explicit provision so that the Northern Ireland Department of Justice might impose a polygraph condition as a licence condition for specified released terrorist offenders. Scotland does not currently have express provision for polygraph testing, but Scottish Ministers have broad powers to set licence conditions under Section 12(1) of the Prisoners and Criminal Proceedings (Scotland) Act 1993. Northern Ireland does not currently have express provision for polygraph testing, but the Department of Justice has broad powers to set licence conditions under Article 24 of the Criminal Justice (Northern Ireland) Order 2008 and Rule 3(2)(e) of the Criminal Justice (Sentencing) (Licence Conditions) (Northern Ireland) Rules 2009.
Through discussions on the legislative consent of the Scottish Parliament and the Northern Ireland Assembly on the provisions of the Bill, it became apparent that while this clause would enable a fully comparable UK-wide approach to polygraph testing on licence, pursuit of this provision in Scotland and Northern Ireland was not strictly necessary and could result in Scottish and Northern Irish Ministers withholding their consent for the Bill. The Government remain of the view that polygraph examinations are a useful additional tool in supporting the effective management of terrorist offenders, and we hope that the Scottish Parliament and the Northern Ireland Assembly will see the demonstrable benefits of its introduction in England and Wales.
This Government will continue to legislate on reserved matters but, as an expression of our respect for the existing powers of the Scottish Government and the Northern Ireland Assembly in relation to the setting of licence conditions, and as a demonstration of this Government’s reasonable approach to those discussions, we have now agreed to remove the provision on the clear understanding that, should this Scottish Parliament or Northern Ireland Assembly or a future one change its view on polygraph testing, it will be able to implement the measure without additional legislation being required.
Clause 35 was intended primarily to provide supplementary provisions to Clauses 33 and 34 that would restrict the circumstances in which the devolved Administrations could impose mandatory polygraph examinations as a licence condition for certain terrorist offenders. As a result of the removal of Clauses 33 and 34 from the Bill, Clause 35 is no longer needed. The clause was intended to ensure that regulations could be made to ensure that polygraph conditions were confined only to those offenders’ licences where it was necessary and proportionate to do so, to ensure standards for the examinations and that appropriate records and reports kept in relation to testing were consistent across the UK. Polygraph examinations are already carried out on sexual offenders in England and Wales. The conduct of those polygraph examinations is governed by rules made under Section 29(6) of the Offender Management Act 2007. Amendments 2, 3, 17, 18, 21 to 26 and 75 are consequential on the removal of Clauses 33 to 35.
Amendment 73 is necessary to ensure that the measures that permit introduction of polygraph testing in a licence condition for terrorist offenders in England and Wales are commenced two months after the Bill receives Royal Assent. Previously, when explicit provision was sought and set out for Scotland and Northern Ireland as well as for England and Wales, we had agreed that the provision should be commenced via regulation to allow sufficient time to develop the relevant infrastructure in those jurisdictions. As explicit provision is no longer made for those jurisdictions through this Bill, and polygraph testing is already used by the probation service for sex offenders in England and Wales, the same delay is not now required. As such, the usual commencement of two months after Royal Assent is appropriate. I beg to move.
My Lords, I have many reservations about the value of polygraph tests. They rely on measuring several physiological processes—pulse rate, blood pressure, perspiration and so on, the changes that may take place in the course of questioning. However, the emotional and physiological responses recorded may arise from such factors as simple anxiety about being tested or fear of being judged deceptive, or a host of things—perhaps the state of one’s digestion after food. There is an inherent ambiguity in the physiological responses. The reluctance to use polygraph evidence is precisely because the response may mimic the response expected of a person seeking to deceive.
What is meant by “failing” the polygraph test? Failing the test means exhibiting a certain physiological response to a question. What is truth? The examiner cannot know whether that response means that the answer is a lie. However, there is no punishment for failing the test—whatever that means—or for exhibiting that response. That does not breach the terms of the offender’s licence. The individual will not be returned to prison. Alterations may, however, take place in the conditions of his licence, and those could be onerous.
The irony is that, in the course of questioning, the person being questioned may provide information truthfully that will have an adverse effect on him. He has not failed the test because his body does not react to his telling the truth, but he has provided information that may lead to his punishment. He has of course lost his right to silence, a right first developed in the late 17th century as a check to arbitrary rule. It has been regarded over centuries as fundamental to the fairness of the criminal law in this country and in the common-law countries all over the world.
Faced with the terrorist atrocities that we have seen in this country, the loss of the right to silence may seem a worthwhile price. Obviously that is not the immediate view in Scotland, nor in Northern Ireland. Let us face the dilemma: the proposals for England and Wales do not involve imprisonment for a lie but possible imprisonment for telling the truth or, since it is mandatory to answer the questions, even for remaining silent. Faced with legal and moral issues such as this, the drafters of the Domestic Abuse Bill, which is proceeding this week here also, as the Minister will know, decided that it was appropriate to proceed with a three-year pilot before finally rolling out the use of polygraphs generally in that field. Why is a different approach taken in this concurrent Bill?
It is interesting to note that the case studies in the MoJ memorandum on these proposals indicate that the information provided led to warrants being issued and physical evidence obtained in the offenders’ respective homes to contradict what they had said. However, there is no indication how often that has occurred or how many times such activity has proved nothing, and nothing has come of it. Will the Minister deal with that in his reply?
Like the noble Lord, Lord Thomas of Gresford, I too have considerable doubts about the reliability of polygraph material. This series of government amendments tabled by the noble Lord, Lord Wolfson of Tredegar, indicate some degree of shambles on the part of the Government. They are withdrawing the polygraph provisions for Scotland and Northern Ireland. Had they consulted the Scottish Government and the Northern Ireland Executive prior to the initial publication of the Bill, they would have seen what the Scottish Government and the Northern Ireland Executive had to say about them.
In the light of what was said by those two Governments, why did the UK Government introduce these provisions? It is plain from what the noble Lord, Lord Wolfson, is saying that the Scottish and Northern Irish Administrations do not want them. There is a reference to the various provisions that might allow them to introduce them as licence conditions. However, neither of the Administrations have indicated that they want these powers, so why on earth were they introduced in the first place and when was it that the UK Government decided to respect those views? If they did not consult those two Administrations before, why not?
Separate to that, on the use of polygraphs, what advice have the Government sought from police forces in England and Wales? To what extent would those police forces be confident about using polygraph testing?
Moving on, the effect of Amendment 73 would be that Clause 32, which sets out the conditions for polygraph testing for terrorist offenders in England and Wales, would come into force two months after Royal Assent rather than by regulations. Why have the Government reduced the degree of scrutiny available to the introduction of polygraphs by removing the need for regulations? Separately, what provisions are available in the Bill to stop the use of polygraphs if they prove to be ineffective?
My Lords, I am grateful to noble Lords for setting out their various points. I turn first to those made by the noble Lord, Lord Thomas. On the effectiveness of polygraphs, as I said in my introductory remarks, they are used elsewhere in English law in relation to sex offenders. There is therefore a body of evidence as to their utility. On what “failing” means and the consequences of failure, it is important to remember, as I think the noble Lord appreciates, that offenders who are subject to testing cannot be recalled to custody for failing a polygraph test. They can be recalled for making disclosures during the test that reveal that they have breached other licence conditions, or that their risk has escalated to a level at which they can no longer be managed safely in the community.
On the right to silence and other Human Rights Act rights, I am sure that the noble Lord will recall that during the course of the sex offender pilot of the polygraph system, an offender challenged the imposition of testing on Article 8 grounds, but that was rejected by the courts. No further challenges have been made since then and we are therefore confident that this is compliant with the Human Rights Act and the rights contained therein.
On the remark that there is to be no pilot scheme, I will make two points. First, this is not the initial use of polygraphs in English law because they are already used in connection with sexual offences. Secondly, it is unlikely that there will be sufficient numbers of relevant offenders to carry out a pilot that would produce meaningful results.
I turn to the points made by the noble and learned Lord, Lord Falconer. It is rather odd to be accused of presiding over a shambles when we have actually listened to the Scottish Government and the Northern Ireland Assembly in our discussions with them. On whether police forces are able and ready to use polygraphs, they are of course already being used in circumstances related to sexual offenders. Therefore, this testing is not entirely new to them. The regulations that will govern polygraph testing have been set out and we do not think that it will be an ineffective tool.
I hope that I have responded to the various points raised. If noble Lords feel that I should provide further information on any of them, they know that we will of course continue to have discussions about these matters.
Amendment 2 agreed.
3: Schedule 3, page 53, line 44, leave out “those Articles” and insert “Article 20A”
Member’s explanatory statement
See the explanatory statement for the amendment at page 53, line 41.
Amendment 3 agreed.
Schedule 3, as amended, agreed.
We now come to the group beginning with Amendment 4. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in this group to a Division must make that clear in the debate.
Clause 4: Serious terrorism sentence for adults aged under 21: England and Wales
4: Clause 4, page 5, line 39, leave out “14” and insert “10”
Member’s explanatory statement
This amendment probes the balance between custody and licence for young offenders.
My Lords, Clause 4 and my Amendments 4 and 5 concern the imposition of serious terrorism sentences of detention in a young offender institution for offenders aged 18 or over when the offence was committed and under 21 when convicted. A serious terrorism offence is defined in Clause 2 and that definition is carried into the Sentencing Code through new Schedule 17A. Part 1 of the new schedule lists a number of very serious terrorism offences, while Part 2 lists other broadly serious offences where the judge determines that there is a terrorism connection. On Part 2, I repeat the points I made earlier on Clause 1, although here they are applied with less force because the offences are, by and large, much more serious so the aggravation of the sentence is likely to be less severe.
The structure of the sentence for a serious terrorism offence for young offenders is defined, as it is for adults aged over 21, as the aggregate of a custodial term and an extension period during which the offender is to be subject to a licence. A serious terrorism sentence is to be imposed where there is a significant risk to the public of serious harm caused by the offender in future terrorism offences where the court does not impose a life sentence and where the multiple deaths condition as defined in the Bill is met, so these are indeed very serious offences. The term of the sentence is defined as a minimum custodial period of 14 years and an extension period of between seven and 25 years. There is a very limited exception to the requirement to impose a serious terrorism sentence on detention where there are exceptional circumstances that relate to the offence or to the offender which justify not imposing the sentence.
I accept entirely that these are very serious offences so the sentences are very serious indeed, but for young offenders aged 18 they are what might be called “no hope” sentences. A period of 14 years in prison in a young offender institution would take the young offender to the age of 32.
There may be many cases where such a sentence is justified, but there are—or may be—others where it is simply too great. Our Amendment 4 would provide for a minimum term of 10 years instead of 14 years, without affecting the judge’s discretion in an appropriate case to impose a custodial term of longer than 10 years if that would be the appropriate sentence for the offence under the general provision of the Sentencing Code. Amendment 4 is balanced by Amendment 5, which adjusts the minimum term on licence upwards from seven years to 10 years.
The rationale behind these amendments is that there is a wealth of evidence for a number of propositions. For younger people in particular, the effect of very long custodial terms is particularly destructive, depriving them of their chances of education and building productive lives. For young people in particular, even those convicted of terrorist offences, there is hope of rehabilitation, deradicalisation and using educational opportunities to help turn their lives around and give them chances to make worthwhile lives for themselves even at the end of a long custodial sentence. Young people in particular benefit from the help and support to be offered by the probation service and others to offenders released on licence, and may benefit to a greater extent than older offenders from both deradicalisation programmes and education—vocational and general—which they might undertake on licence to help them come to terms with the real world on their release after what is anyway a very long sentence.
I therefore suggest that it would be of advantage to society, and to us all, to rebalance the division of a serious terrorism sentence, so as to have a greater period on licence to follow a minimum period in custody, which, while still very long, would be somewhat less draconian than presently proposed, and would not affect the right of the judge to impose a longer sentence in an appropriate case. I beg to move.
My Lords, I am always intrigued by the thought processes that must be brought into play in fixing a minimum sentence in a Bill. I would like the Minister to outline what consultation there has been concerning the minimum sentence of 14 years for a young offender between the ages of 18 and 21—a “no-hope sentence”, as my noble friend Lord Marks described it a moment ago, and I completely concur with everything that he said. I cannot imagine that it is a Minister who initially chooses the minimum number of years for imprisonment. Somebody in the Ministry of Justice must have drunk his cup of coffee and plumped for a figure to put in for the Minister to sign off on. I do not suppose he will ever have met a young offender—“Let’s just say 14 years sounds good.”
I want to contrast this with the role of a sentencing judge whose sentencing discretion is not bound by statute. The judge sitting in a serious case of terrorism would not be there if he had not had a lifetime of experience in the criminal courts, developing his instinct and his trained capacity to weigh the seriousness of one case against another. Other experienced practitioners and academics who have studied criminology have provided the judge with sentencing guidelines. They give him a guide to the accepted range and indicate what aggravating or mitigating factors he should have in mind. In addition, the judge will have the benefit of counsel’s submissions and a probation report from an experienced officer that will give him an insight into the background of the defendant. There may also be medical reports and, sometimes, witnesses prepared to speak up on the young man’s behalf.
This clause introduces an arbitrary minimum sentence as the guideline unless there are “exceptional circumstances”. There are no guidelines as to what those exceptional circumstances are: if the past is any guide, we will have to wait for the Court of Appeal to lay them down. The minimum sentence is chosen by a civil servant who, in all probability, has never been inside a court. So we get an arbitrary 14-year minimum sentence and an arbitrary seven years on licence. What is the evidence that this is the correct balance? Who said that? Why cannot a judge be left to do his job?
It seems to me that the only purpose of a minimum sentence is to make a single day’s headlines to the effect that the Government are being tough on crime, and specifically on terrorism. There is no question of looking at the individual who is before the court, and considering his future, his welfare, his rehabilitation or whatever. In putting forward this amendment, my noble friend is testing the rationale for the balance in the Bill, and I look forward to a full exposition from the Minister in due course.
My Lords, the noble Lord, Lord Thomas of Gresford, concluded his remarks by saying that the amendment was “testing the rationale” of these sentences, and that is indeed clearly the case. The first amendment reduces the minimum term in custody and the second increases the period on licence. Both the noble Lords, Lord Thomas and Lord Marks, referred to these as “no-hope sentences”. I understand the sentiment they expressed on these extremely long and very serious sentences being given to children—but they are not really no-hope sentences, are they? YOT and, more likely, probation and the Prison Service will have been working with these people for many years to give them hope that, when they get out of prison and are on licence and, eventually, off licence, they can go on to lead a constructive life.
Now this is a very tall hurdle. I understand that; we are dealing with the most serious sentences that one can imagine. Nevertheless, that is the role of probation and it is very important, I would say, for the young person to see that there is hope at the end of the period, because it is far more likely that, if they see that hope, they will engage constructively with people in prison and carry on that constructive intervention when they leave on licence. So I have some questions for the Minister. What assessment has been done of the likelihood of reform of offenders—is there any data on that? Also, what is the number of young offenders now in custody who are likely to be in custody as a result of this legislation? Are there any examples of where longer custodial sentences have helped young people to go on to lead lives in which they no longer offend?
My Lords, it is a privilege to stand and answer points made by the noble Lords who have spoken. I first acknowledge their great experience and wisdom in the field, and the evident compassion that underpinned their observations to the Committee. I know that at least two of them have had the experience that I have of acting for a very young person charged with a crime of the greatest magnitude and severity. I can tell from the way in which their questions were framed that they are aware of the extreme sadness at the loss of potential that the advocate finds when acting for a person in such a position. I hope that noble Lords appreciate that I am fully aware, from the perspective of legislation, of the awkwardness and difficulties attendant upon arriving at an appropriate sentence for these most serious of crimes.
As the noble Lord, Lord Marks, has explained, these amendments are intended to reduce the minimum custodial term that may be imposed on an offender aged between 18 and 20 sentenced to a serious terrorism sentence from 14 to 10 years, and to increase the minimum licence period that may be imposed in such a case from seven to 10 years. I respectfully disagree that such changes are appropriate or necessary. The Government are determined to ensure that those who commit serious acts of terror and put members of the public at risk of death serve sentences that properly reflect the harm that they cause. In answer to the noble Lord, Lord Thomas of Gresford, while headlines may be a consequence of the imposition of such a sentence, the sentence is selected not to generate such headlines.
The serious terrorism sentence, introduced by Clauses 4 and 5 of the Bill, will strengthen the current sentencing framework to ensure that terrorists, who put lives in danger, are given sentences that reflect the severity of their crimes. These amendments seek to draw a distinction in sentencing policy between those aged 21 and over and those aged between 18 and 20. While the new serious terrorism sentence is structured so as to distinguish those two groups, this is simply to reflect the existing sentencing structure.
At the commencement of his remarks, the noble Lord, Lord Marks of Henley-on-Thames, accepted that this sentence will be imposed in the gravest of circumstances. To remind your Lordships, the sentence may be imposed only when a set of conditions is met. The offence must be serious enough to attract a life sentence but the court has decided not to impose one in this case. The offender must be found to be dangerous by the court. The offender must or ought to have been aware that the offending was very likely to result in or contribute to multiple deaths. When these conditions are met, it is right that a lengthy minimum term should be served in prison and in full, and an extension period should be served on licence. This should be consistent for anyone to whom the serious terrorism sentence applies.
We have carefully considered the right balance between the custodial terms and the licence period for this sentence, and are satisfied that 14 and seven years are appropriate, with the licence period being at least half the time that the offender would have served in custody. But it will be for the sentencing judge to determine this length, up to a maximum of 25 years, according to their judgment of the need to protect the public from the risk of serious harm that the offender poses.
The noble Lord, Lord Thomas of Gresford, sought to know the extent of the consultation procedure that went into selecting 14 years as the appropriate period. It was not simply plucked out of thin air; it was arrived at as a result of deliberation on the nature of the crime, the extent of the offending and the need to protect the public. The noble Lord can be satisfied, if he wishes for further elucidation of the identity of persons with whom consultation took place, that I will write to him to explain the nature of the consultation process or the thinking that underpinned the sentence.
I echo the formulation of the noble Lord, Lord Marks of Henley-on-Thames, that this is a rebalancing. However, the Government are content that the current balance is correct.
The noble Lord, Lord Ponsonby of Shulbrede, sought to know about the assessment that has been carried out on the likelihood of reform of persons on whom sentences of this sort are imposed. He asked about the number of young offenders in custody in relation to these matters and sought examples of situations when lengthy custodial sentences have led to reform. I propose to touch on these matters on other amendments. By way of advertisement of what I will be saying, I can tell the Committee that, while data on these matters is available, is it difficult, given the small quantity of data and the evolving understanding of matters, to use it precisely to arrive at conclusions. I hope that that answers the noble Lord’s point, albeit it is necessarily doing so by reference to things that will be said on forthcoming amendments.
I believe that these measures are necessary and appropriate. I therefore urge the noble Lord to withdraw his amendment.
I have received one request to speak after the Minister from the noble Baroness, Lady Hamwee.
The noble and learned Lord very briefly answered the questions on consultation from my noble friend Lord Thomas. I hope he has in his brief the answer to the headline question of whether consultation was undertaken with probation and what its views were on the balance between custody and licence.
I appreciate that there are levels and areas of probation. The question extends to all parts of those who provide probation services, but the central probation service, offender management, is probably more relevant to this than local probation services.
My Lords, again I thank all who have spoken on these amendments, in particular the noble and learned Lord, Lord Stewart of Dirleton. His response was sympathetic, in that he fully recognises the position of young offenders exposed to these extremely long sentences. In return, as he recognised, we accept the seriousness of the offences that are to be visited by these serious terrorist sentences. It is right that they merit an extremely serious response. But even for the most serious offences there ought to be room in a scheme of punishment for rehabilitation, particularly of young offenders who commit these offences in their youth but are serving sentences for many years to come.
My noble friend Lord Thomas of Gresford spoke of, and asked about, the arbitrariness of the choice of the 14-year term. Of course, he has had a lifetime of practising in the criminal courts. He has many years of experience of judges exercising their discretion, and those years have left him with a favourable view of judicial discretion—a view which I share.
The noble Lord, Lord Ponsonby, questioned the formulation that my noble friend Lord Thomas of Gresford and I put that a sentence of 14 years of immediate custody offers no hope, because, he said, of the availability of help within a custodial setting. I regret that I do not agree with his optimism. Very long periods in custody allow offenders in custody no hope, or very little hope indeed. It is otherwise with time spent on licence, when a great deal of help in rebuilding their lives is available to offenders, from the probation service and other services and, we would hope, also from services to help deradicalise young offenders.
The question of rebalancing, which the Minister also accepted that these amendments were about, was explored and will be explored further between the Minister and my noble friend Lady Hamwee. I invite the Minister and the Government to consider whether more discretion could be left to the sentencing judge to permit that judge to impose a minimum term in custody of less than 14 years—we suggest 10—and to recognise that there is scope for a longer period on licence to enable young, or young middle-aged lives at that stage, to be rebuilt. In urging the Government to take that position, I beg leave to withdraw the amendment.
Amendment 4 withdrawn.
Amendment 5 not moved.
Clause 4 agreed.
Clauses 5 and 6 agreed.
Schedule 4 agreed.
Clauses 7 to 10 agreed.
Clause 11: Minimum term order for serious terrorism offenders: England and Wales
6: Clause 11, page 12, line 33, leave out “exceptional” and insert “significant”
Member’s explanatory statement
This amendment would give the courts more discretion when applying the minimum term.
My Lords, we spoke in the previous group about young offenders, but there is in Clause 4 a very limited exception to the requirement to impose a serious terrorism sentence of detention where there are exceptional circumstances which relate to the offence or the offender which justify not imposing the serious terrorism sentence. This amendment relates to a precisely similar provision in Clause 11 relating to the imposition of such an offence on adult offenders under Clause 11(5). I should have tabled a similar amendment in relation to Clause 4, and for that I apologise, but the omission can be made good, if necessary, on Report.
The point of this amendment is simply to broaden the judge’s discretion to refrain from imposing a serious terrorism sentence where the circumstances demand it. The replacement of the word “exceptional” with the word “significant” would permit the judge to take into account circumstances that he views as sufficient to alter his view of the offender or of the offence so as to justify the imposition of a lesser sentence. The use of the word “significant” allows the judge an element of subjectivity about what seems to him to be important enough to justify that departure.
We believe in judicial discretion, for all the reasons mentioned by my noble friend Lord Thomas of Gresford in relation to the previous group, and for all the reasons which we discussed in the previous short debate. We do not believe that Parliament or any Minister can foresee what circumstances might persuade a judge to exercise less severity in these very serious offences. However, I suggest that the use of the word “exceptional” introduces a straitjacket, and I make that suggestion on the authorities because the use of the word “exceptional” places the judge in the position of having to make a finding that the circumstances are exceptional: that is, that they are so far away from the norm as to justify a finding, effectively, of fact that they are an exception. Without such a finding, he cannot use any discretion. The lack of discretion, I suggest, can be inimical to the interests of justice, and for that reason I invite the Committee to agree ultimately to a different formulation and invite the Government to consider a formulation that allows just a bit more flexibility than the Bill as drafted permits. I beg to move.
[Inaudible]—is in relation to the necessity for the judge at trial to have full discretion in passing sentence. I do not wish to repeat that, but I will add a particular comment. When a judge is faced with a provision such as this, he has to define those circumstances which influence him. He has to set out in his sentencing remarks precisely what factors influence him. Things have moved very considerably over the decades away from the swift disposal of a defendant by a judge with very little comment. What he says is important not just for the defendant to understand why he is being sentenced in that way but of course, if there should be any appeal on sentence, for the Court of Appeal to understand precisely what it was at the time that the judge had in mind. “Exceptional” circumstances is too great an imposition on the judge’s discretion and I believe that my noble friend’s proposal that it should be “significant” is right.
My Lords, the noble Lords, Lord Marks and Lord Thomas, have explained their thinking behind the amendment to replace “exceptional” with “significant” to give more discretion to the judge. As the noble Lord, Lord Thomas, said, in any event a judge will explain the reason for finding exceptional or significant reasons for reducing a sentence.
My questions are for the Minister. What does he believe are exceptional circumstances, and what exceptional circumstances would justify a lesser sentence? In what circumstances would such lesser sentences be appropriate?
My Lords, as the noble Lord, Lord Marks of Henley-on-Thames, explained, this amendment seeks to amend and change the circumstances in which a sentencing court could impose less than the 14-year minimum term for a discretionary life sentence imposed in a serious terrorism case by changing the circumstances from “exceptional” to “significant”. I respectfully agree with the noble Lord that the logic of his amendment would also apply to Clause 4. However, I respectfully disagree over whether such an amendment is appropriate.
The purpose of Clause 11 is to ensure a consistency of approach when sentencing those convicted of serious terrorism offences. It would not be appropriate for a court to be able to impose a life sentence with a lower minimum term for a serious terrorism offence other than where there are exceptional circumstances. If the circumstances of the offence and offending are such that the court imposes a life sentence, and unless there are exceptional circumstances, there should be no possibility of the offender being released earlier than someone given a serious terrorism sentence. That is what Clause 11 achieves.
By contrast, the amendment would remove that consistency, so that the court could consider a wider range of circumstances when setting the minimum term in a discretionary life sentence than when doing so for a serious terrorism sentence, although all other circumstances would be the same. While I accept that there is a distinction, in that the prisoner serving a life sentence may be considered for release only after the minimum term is served, it would be unprincipled for him or her to be released earlier than a counterpart serving a serious terrorism sentence.
A number of questions were asked about “exceptional circumstances”. That is a principle already established in sentencing legislation. It is used, for example, in connection with minimum terms that can apply to certain firearm offences. I must respectfully decline the invitation of the noble Lord, Lord Ponsonby, for a Minister to gloss from the Dispatch Box what “exceptional circumstances” might or might not be. It is a phrase used elsewhere in statute and known in law. Those are straightforward English words and it would not be appropriate or even helpful for me to gloss them on my feet at the Dispatch Box.
By contrast, I respectfully point out to the noble Lord, Lord Marks, that as far as my research has indicated—I am happy to be corrected if I am wrong—there is no existing “significant circumstances” principle in sentencing legislation. Therefore, if accepted, the amendment would create an entirely new test, which in our view is unwarranted and likely to lead to litigation, which cannot be in our interests as parliamentarians in passing this Bill.
As far as the point made by the noble Lord, Lord Thomas of Gresford, is concerned on judicial discretion, we are really talking about the extent of the judicial discretion and whether the test should be “exceptional” or “significant” circumstances. The question is not to the existence but to the extent of judicial discretion. As part of the Government’s recent White Paper, A Smarter Approach to Sentencing, we have committed to changing the criteria for other minimum terms for repeat offences to reduce the occasions on which the court may depart from the minimum custodial length.
For those reasons, I do not consider the amendment to be necessary or appropriate, and I respectfully invite the noble Lord to withdraw it.
My Lords, I am grateful to those who have spoken, and to the Minister for his response. However, I am bound to say that I found it disappointing. He is absolutely right to state that “exceptional” has a clear meaning in law and is used elsewhere. It was to that meaning that I alluded when I said that the use of “exceptional” puts the judge in a straitjacket. It is for that reason that my noble friend Lord Thomas of Gresford is right to seek a little more latitude, because the sentence is so long and the circumstances may be very varied.
The Minister did not deal with the point that the circumstances can relate not only to the offence but to the offender. They may cover a very wide range. Therefore, it is our position that more discretion is called for. He is right that it is the ambit of the discretion with which this amendment is concerned. I invite him to reconsider it. While he does, I beg leave to withdraw the amendment.
Amendment 6 withdrawn.
Clauses 11 to 15 agreed.
We now come to the group consisting of Amendment 7. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this amendment to a Division must make that clear in debate.
Clause 16: Increase in extension period for serious terrorism offenders aged under 18: England and Wales
7: Clause 16, page 16, line 33, at end insert—
“( ) Section 255 of the Sentencing Code (extended sentence of detention: availability) is amended as follows.( ) After subsection (2) insert—“(3) The pre-sentence report must in the case of a serious terrorism offence under section 256(4)(b)(iii)—(a) take account of the offender’s age;(b) consider whether options other than an extension period of eight to ten years might be more effective at—(i) reducing the risk of serious harm to members of the public, or (ii) rehabilitating the offender.(4) The court must take account of any points made by the pre-sentence report in relation to the matters in subsection (3).”( ) The Secretary of State must at least once a year conduct and lay before Parliament a review of the effectiveness of the provisions of this section and their impact upon offenders.( ) The report of the first review must be laid before Parliament within one year of this Act being passed.”
Through this amendment, before the court considered whether to apply an extended sentenced of eight to 10 years to somebody aged under 18 at the time of conviction it would have to consider a pre-sentence report. That report should specifically address the age of the defendant and whether there are alternatives to the extended sentence of eight to 10 years. If the pre-sentence report considers that there are alternatives, the court is then obliged to consider that. It can reject it, but it has at least to consider it.
The amendment reflects our belief that for young adults, or people who might not even be adults, there may be, on the particular facts of a particular case, other ways better to protect a community than an extended detention period of eight to 10 years. The amendment would not require a court to accept that, but it would ensure that there is proper focus on whether there are better ways of protecting the community. I beg to move.
My Lords, I adopt what the noble and learned Lord, Lord Falconer, said and will add a few words. Although it was not accepted, I suggest that, from a practical point of view, the other provisions of the Bill would fall within what the Secretary of State might want to consider in reviewing the effectiveness of the section once a year has passed. That makes such a review highly desirable.
It is always possible for something to be thought of as exceptional, which, in fact, cannot be shown to fall within that limitation. It is a very healthy safeguard if the matter has to come before the Secretary of State as indicated in the proposed amendment, because that will give an opportunity to reconsider based on the experience of actually seeing the provisions of the Bill being implemented in the Act of Parliament, which in due course will be passed.
My Lords, I congratulate my noble friend Lord Wolfson of Tredegar on what I think is his first outing with the Bill. I know where Tredegar is, but I am not sure I have ever been there. I do know, rather too well, the Brecon Beacons, just to the north, which are very beautiful but also extremely wet and cold, as I recall.
I enter this debate with some trepidation because we have a lot of clever lawyers taking part. On this occasion, I do not mean that in any derogatory sense; this is legislation, and we need it to be examined by clever lawyers who are lawmakers, but I speak only as a layman. We know what the issues are, and in this, as in so much, there is a need for balance. I heard what the noble and learned Lord, Lord Falconer of Thoroton, said, but we need to not be starry-eyed when thinking that a young person might not be perfectly capable of being radicalised early and remaining radicalised. We need to look at how the judiciary and the legal process can keep tabs on people who have been radicalised. That is why, in this particular case, I am certainly on the side of community safety rather than the rights of offenders.
Religious fanaticism is not, of course, confined to Islam. People inspired by ideology do not always respond well, whatever their ages. In December, Jonathan Hall said that deradicalisation using monitoring and theological programmes does not work. Therefore, we need, in exceptional cases—and there will be very few —to give courts the right, and indeed the duty, to ensure that society is protected, over and above the rights of some very unfortunate young people—young men, almost exclusively—who have transgressed in these terrorist actions.
I call the next speaker, the noble and learned Lord, Lord Morris of Aberavon. I think we are having some problems with him, so I call the noble Baroness, Lady Jones of Moulsecoomb.
My Lords, I have a slightly embarrassing confession to make. When I first decided to get involved with this Bill, I thought it was a completely different Bill. Having realised what is was about, I then realised that it is one of those bits of legislation that is a bit rushed. It reminds me of the Dangerous Dogs Act 1991, which was rushed through Parliament because of public concern about, I think, 11 very dangerous and nasty incidents of people being savaged by dogs. It proved to be, first, a not very effective piece of legislation, and then, a not very popular one. I also had not realised there would be so many eminent lawyers involved in this debate, and I feel slightly uneasy, because I am coming into this as a member of society who has a very practical reaction to this sort of legislation. I do not believe that locking people up and throwing away the key is the best way of treating them, for all sorts of reasons. I do not mean for them, necessarily, but for society and the whole prison system.
This amendment goes to the heart of what we are trying to achieve when we sentence terrorist offenders. Are we locking up monsters and not letting them out again in the hope that prison is going to crush or contain them, or whatever? Or are we locking people away to protect society for as long as it takes to teach them the error of their ways and, perhaps, confront them with the consequences of their actions and return them to society as re-engaged citizens?
Statistics suggest that only a tiny percentage of people who have been locked up for terrorist offences come out and reoffend. We need to look at that and be practical about what we are trying to achieve. It is easy for the Government to appear to be tough on crime, throw red meat to the tabloids and satisfy the people who think that anything less than the death penalty for almost every crime is being soft on crime. I think there might be people on the Government Benches who think like that. But it is much harder for the Government to do the tough work of reintegration into society, which is a much more effective use not only of money but of resources. Locking people up in an extremely expensive prison service just teaches people to be better at crime while they are there.
As we have seen in the United States, extremist ideologies have spread among our own western societies. The so-called QAnon conspiracies, fuelled by Donald Trump, and promulgated across the internet, TV, and among the Republican Party, led people to hope for mass arrests and the execution of their political opponents. This is a domestic terrorism movement, which is growing and exists here in Britain. We are going to be encountering a completely different sort of terrorist: a white terrorist, just for starters. The Government have to step up. The problem is growing, and the solution is not just to lock more people up but to learn how to deal with this at source and also once people have offended. The Government need to rethink this a little bit, and be a bit more practical, and less reactive to perhaps transitory public opinion.
The noble and learned Lord, Lord Morris of Aberavon, has withdrawn from this group, so I call the noble Lord, Lord Marks of Henley-on-Thames.
My Lords, I agree with the noble and learned Lord, Lord Falconer of Thoroton, about the benefits of pre-sentence reports. They are, and always have been, when available, important in the context of sentencing generally. They are a sophisticated tool, bringing before a court matters that may not be known to the sentencing judge in the absence of a detailed report on the background and motivation of an offender, and their potential to be rehabilitated in future. In not requiring such a report, which covers all the matters mentioned in this amendment, Parliament would be taking a retrograde step and excluding elements that may be important in determining the length of any sentence or extension period.
The amendment complements Amendment 6 that I introduced earlier, by giving the judge not only increased discretion in passing sentence, but also the material on which he can correctly and sensibly exercise that discretion. I agree with the noble and learned Lord, Lord Woolf, who described such a report as a very healthy safeguard. I urge the Government to accept the amendment for that reason. It is a question of giving the sentencing court the material upon which to make an informed and sensible decision from everybody’s point of view.
Finally, I commend the words in the amendment that provide for a review of the workings of the clause, including the amendment. I fear that we are legislating in some haste in relation to the Bill, and a review of how it is working, particularly this clause, would be extremely helpful.
My Lords, I am grateful to the noble and learned Lord, Lord Falconer of Thoroton, for introducing this amendment, although I hope to persuade him that it is in fact misconceived.
The amendment deals with Clause 16, which relates to an increase in the extension period for terrorism offenders aged under 18. As my noble and learned friend Lord Stewart of Dirleton said a few moments ago, I am sure it is common ground across the Committee that when dealing with such young adults one has to have the greatest care and consideration. Having said that, as my noble friend Lord Robathan reminded us, this is a matter of public safety. I respectfully endorse nearly all the comments that he made; I say “nearly all” because, in a debate where so many lawyers are speaking, I understand the temptation for someone who is not a lawyer to say that they are “only a layman”, but my noble friend is not “only” anything. With that slight quibble, I respectfully take on board everything that he said.
The amendment would require the pre-sentence report to take account of the offender’s age and consider whether options other than an extension period of eight to 10 years might be more suitable than an extended sentence of detention. The amendment would also require the Secretary of State to report to Parliament each year on the effectiveness of increasing the maximum extension period of the extended sentence of detention from eight to 10 years.
The nature of an extended sentence is that it comprises a custodial term and an extension period for the purposes of public protection, as defined in Section 256 of the Sentencing Code. The effect of the amendment would be fundamentally to alter the nature of the sentence by proposing an alternative to that extension period.
The amendment is also not necessary and, I say with respect, perhaps misunderstands the provision. I assure the noble and learned Lord, Lord Falconer, that the clause simply provides for a new maximum licence period of 10 years in serious terrorism cases rather than the current eight. This is not mandatory; it is available for use at the court’s discretion, and it will remain possible to apply a licence period of any length between 12 months and 10 years.
For a youth offender to receive an extended sentence for a serious terrorism offence, the court will be required to consider a pre-sentence report. I therefore agree to that extent with the noble Lord, Lord Marks of Henley-on-Thames, and the noble and learned Lord, Lord Woolf, about the utility of such reports. In preparing the pre-sentence report, the youth offending team officer will always consider the offender’s age and circumstances in order to recommend an appropriate sentence. The Bill does not change the way in which pre-sentence reports are done.
However, time spent on licence is crucial for both monitoring and managing offenders in the community as well as giving them the opportunity to change their behaviour. Therefore, providing the courts with the option of imposing a longer period of supervision on licence for the most serious terrorist offenders is an important element and component of the Government’s efforts to protect the public from the risks that terrorist offenders pose while enabling a longer period to support rehabilitation.
In that context, I assure the noble Baroness, Lady Jones of Moulsecoomb, that I am not in the business of throwing red meat to anyone or anything, be it dangerous dogs or the tabloids. This, however, is a proper and proportionate response to the very significant danger that some offenders present. I therefore invite the noble and learned Lord, Lord Falconer of Thoroton, to withdraw the amendment.