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Lords Chamber

Volume 817: debated on Wednesday 15 December 2021

House of Lords

Wednesday 15 December 2021

Prayers—read by the Lord Bishop of St Albans.

Royal Assent

The following Acts were given Royal Assent:

Critical Benchmarks (References and Administrators’ Liability) Act,

Rating (Coronavirus) and Directors Disqualification (Dissolved Companies) Act,

Armed Forces Act.

Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) (Amendment) (No. 6) Regulations 2021

Motion to Approve

Moved by

That the Regulations laid before the House on 13 December be approved.

Relevant document: Instrument not yet reported by the Joint Committee on Statutory Instruments

My Lords, I beg to move that the Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) (Amendment) (No. 6) Regulations 2021 be approved and shall also be moving the Health Protection (Coronavirus, Wearing of Face Coverings) (England) (Amendment) Regulations 2021 and the Health Protection (Coronavirus, Restrictions) (Entry to Venues and Events) (England) Regulations 2021.

Despite our progress so far and our investment in treatments, the omicron variant has been designated a variant of concern and so we must act now, as quickly as possible, to slow its spread. The UK Health Security Agency predicts that omicron will become the dominant strain within one to two weeks across the whole country. In response, the UK’s four Chief Medical Officers have raised the Covid alert level to 4, its second-highest level.

Although we do not yet have a complete picture of omicron’s severity, it has become increasingly clear that omicron is growing much faster than the previous delta variant and is spreading rapidly all around the world, so its higher transmissibility means it still threatens to overwhelm the NHS. We are seeing increased transmission rates reflected currently in case rates, and the current doubling time for omicron cases is now between two and three days. We need to act now to help slow the spread of the variant and reduce the chances of the NHS coming under unsustainable pressure, while buying time to deliver more boosters.

On 8 December, the Government announced that it was now necessary to implement plan B measures in England in response to the risks of the omicron variant. This includes: extending regulations on face coverings to make them mandatory in most indoor public settings from 10 December; asking those who can work from home to do so from 13 December; and making vaccine or test certification mandatory for entry to certain venues and events from this morning.

Today, we are debating the regulations that bring about the legal requirements for face coverings and certification. These regulations are sunsetted or due to expire on 26 January 2022, but they will be reviewed by the Government in early January. We are also debating regulations that bring important changes to self-isolation requirements to enable fully vaccinated contacts to take part in daily contact testing.

From 10 December, face coverings have been mandatory in most indoor public spaces in England. However, they are not required in hospitality settings such as cafés, restaurants and pubs, or in nightclubs. Exemptions apply—including for children aged under 11 and for those unable to wear a face covering for health or disability reasons. Evidence from the UK Health Security Agency respiratory evidence panel suggests that all types of face covering are, to some extent, effective in reducing transmission.

From today, showing the NHS Covid pass is mandatory as a condition of entry to certain settings in England. This is not a vaccination passport, and people will have different ways to show that they are eligible. Negative test results provide some assurance that an individual is not infectious when the test is taken and for a short time afterwards.

There is evidence to suggest that vaccination reduces the likelihood of infection or transmission to a small degree with delta, which continues to circulate. Early evidence suggests that vaccine effectiveness against symptomatic infection after two doses is significantly lower against omicron than against delta. Nevertheless, a moderate to high vaccine effectiveness is seen in the early period after a booster dose. Vaccine effectiveness is also likely to be higher in preventing severe, rather than mild, disease, and it continues to be vital in response to the high levels of delta cases that continue to circulate.

Covid status can also be shown through proof of a negative test taken in the previous 48 hours, which demonstrates that you are less likely to be infectious, as well as proof of medical exemption or evidence of participation in a clinical trial.

Certification will apply in a limited number of settings, including venues acting like nightclubs; indoor events with 500 or more attendees likely to stand and move around; outdoor events with 4,000 or more attendees likely to stand and move around; and all events with more than 10,000 attendees. Vaccine or test certification will not eliminate the possibility of infectious people attending or transmitting the virus in these settings, but it will help to reduce the risks.

The test, trace and self-isolate system continues to be one of the key ways to control the virus and to protect our nation. Yesterday, the Government introduced a policy of daily testing for all fully vaccinated contacts of people who have tested positive for Covid-19. This will identify—or help to identify—the virus quickly and help to break chains of transmission without requiring large numbers of people to self-isolate. To support this, we have removed the requirement in the self-isolation regulations for all close contacts of suspected or confirmed omicron cases to self-isolate, regardless of their age or vaccination status. This was introduced as a temporary measure on 30 November. Unvaccinated adult contacts will continue to be legally required to self-isolate, unless they are participating in an approved workplace daily contact testing scheme. We will constantly monitor and review the data.

Lastly, let us all urge everyone who can have the vaccine to get boosted now. More than 24 million booster or third doses have already been administered across the UK. Our target is to offer this to every eligible adult in England by the end of December.

I thank everyone involved in the vaccination programme for their continued efforts to maintain this tremendous progress over the important weeks ahead. I understand that there are concerns among noble Lords across the House about these regulations. It is always a difficult balance and we hope we have got the balance right. I look forward to continued scrutiny by noble Lords and to their valuable contributions to this debate.

My Lords, I will start with a quote:

“It always suits Governments … to scarify the population.”

This was specifically about the ID cards Bill in 2005, when

“only a handful of principled Tories stuck up for liberty, and they were duly overwhelmed by the Government.”

The same person promised to “eat” his ID card if asked to show it to an official—so I expect that noble Lords will recognise the author of the quotes, who was then the Member of Parliament for Henley and editor of the Spectator.

Roosevelt famously said in his 1933 inaugural speech during the Depression—others had said it before—that

“the only thing we have to fear is fear itself”.

So what is going on? Why are the Government scarifying the population and stoking fear?

We know that omicron has caused far fewer deaths in South Africa than delta—in a country with only approximately 29% of its population vaccinated and a much less good health system than ours. On Monday, apparently, there were 11 Covid deaths in South Africa, down from a weekly average of 578 at the height of the delta variant infections.

Dr Coetzee, who identified the variant last month, said in a newspaper article yesterday that she was

“astonished by the extraordinary worldwide reaction in the days that followed, with Britain and some other European nations imposing heavy travel restrictions on flights from across southern Africa, as well as imposing tighter rules at home on mask-wearing, fines and extended quarantines.”

So could my noble friend tell the House, and indeed publish, what evidence the Government have that has led to these restrictions? For instance, how many deaths has omicron caused in this country? Yesterday we were told it was one, so could the Minister also tell us the age of that unfortunate, tragic patient, and whether they had underlying health conditions? Could he tell us how many people have been hospitalised and are in ICUs because of omicron? We were told—yesterday again—that there were 10 extra patients in hospital with the variant.

This appears to be—although God knows, I do not pretend to be an authority—a less dangerous variant: I have been told that viruses will mutate in this manner. So, as omicron replaces delta, surely that is a good thing. So why are we now restricting freedoms in this way?

The impact of these restrictions includes, first, the immense damage to the economy, especially hospitality, the airline and travel industries and retail. The restrictions have led to the imposition of the highest tax burden for 70 years, and a debt burden that our children and grandchildren will spend decades paying off.

The second impact has been on our children’s and grandchildren’s education, from reception, delaying development and social skills, all the way to universities. Schools are already restricting children: I am told they are closing early for the holidays.

The third impact is isolation and loneliness. The latter particularly affects the elderly living alone, but the former is ghastly for children out of school. Yesterday another child murderer was convicted of killing her partner’s two year-old daughter. As in the case of that poor child, six year-old Arthur, it happened because of evil people—but social services have not been able to do their job properly because of lockdowns. Isolating children is madness.

The fourth impact is the consequences for mental health and the fifth is the impact on normal NHS work, with rocketing waiting lists and thousands of cancer referrals being delayed or missed. Some 5.8 million people were waiting for hospital care in September, which is the last month for which figures are available. The number of those waiting over a year for treatment has increased 237-fold in the last two years. Since April last year there have been more than 4 million fewer elective procedures. That sounds rather bland, but anyone who has been in agony waiting for a new hip will understand that it is not bland at all.

So could my noble friend tell the House what estimate the Government have made of the damage to the economy? Some reports suggest it may be between £2 billion and £4 billion per day. Is that true? How many schools have closed because of this new variant? How many children are now out of education? What estimate has Her Majesty’s Government made of the number of excess deaths because of untreated conditions since March last year?

The Prime Minister is apparently talking about another mandatory lockdown, yet we were repeatedly told that the excellent vaccine programme—for which I pay tribute to Kate Bingham and Nadhim Zahawi—would protect the nation and take us out of this nightmare. Of the two SIs against which I have put down amendments, one is about mandatory face masks and the other about Covid passports. I have asked before for a peer-reviewed, conclusive study or evidence that these flimsy face masks limit infection. Last year we were told by government advisers that they were pointless—by Patrick Vallance, Jenny Harris and Professor Van-Tam. The last said that there was

“no evidence that general wearing of face masks by the public who are well, affects the spread of the disease in our society.”

We were even warned that masks might “trap the virus” and cause people to breathe it in, so were not a good idea. Views have changed since then, but I would like to see the evidence that changed them. I say to my noble friend that, if shown reasonable proof, I will not press my amendment.

Many Ministers have spoken against Covid passports in the past. For instance, Nadhim Zahawi, when he was Vaccine Minister in September, said that they go

“against everything I believe in”.

That is a different matter. I ask, “Why?” To the lawyers I say, “Cui bono?” Yesterday, Chris Whitty said that vaccination does not prevent infection, so those with this passport can still spread the virus. What does it achieve, except to create a sense of crisis?

I can see from the SI that

“Plan B includes measures aimed at helping control transmission”,

but, according to the Chief Medical Officer, this will not, so will the Prime Minister eat his Covid passport, as he promised to eat his ID card? What exactly is the point of them, apart from further scaring people?

I suspect that isolating people through lockdown did slow down the spread of the virus, but it certainly has not contained it. According to official statistics, there have been some 10 million cases in the UK. My view is that there have probably been two or three times more, but we can certainly conclude that the virus has defeated the restrictions. Overseas, it is the same story. So, I ask my noble friend: do lockdowns work? The idea, of course, was borrowed from China. Has hand-sanitising worked? It has now largely been discredited. Has social distancing helped? The Government are being entirely illogical in their advice and policy. For instance, could my noble friend explain the logic of encouraging people to work from home, but saying that Christmas parties are fine?

The Opposition, from whom we will hear shortly, will say that we must go further. I am afraid that it is a trait of authoritarian parties and regimes, from both the left and the right, to want to cow and scare their populations and make them more compliant and manageable. I fear the Labour Party always wants more laws to tell people what to do, although some of us believe we should be free to make our own decisions. One might have thought that the Liberal Democrats would be more freedom-loving and liberal, but they disappoint, showing that the name really is an oxymoron. The Conservative Government should be worried when their opponents support them but their own parliamentarians do not. I fear that my long-standing scepticism has now been replaced by cynicism.

I started with the Prime Minister. Let me close with the Health Secretary, who said, not six months ago on his appointment in June, that we must

“restore our freedoms—freedoms that … no Government should ever wish to curtail”,

and that

“restrictions on our freedoms must come to an end.”—[Official Report, Commons, 28/6/21; cols. 45-46.]

On 3 July, he spoke of two challenges:

“The first is how we restore our freedoms and learn to live with coronavirus… The second is to tackle the NHS backlog—something that we know is going to get far worse before it gets better…

The economic arguments for opening up are well known, but for me, the health arguments are equally compelling. The pandemic has hit some groups disproportionately hard. Rules that we have had to put in place have caused a shocking rise in domestic violence and a terrible impact on so many people’s mental health.”

I agree.

If nobody else is going to get up, I will. My Lords, some of the things my noble friend said, I entirely agree with. There has been a very real degree of confusion. It is inexplicable to have a situation in which you are told not to go to your place of work, but do go to the office party. This confusion spreads like a cancer through a community—but we are here to debate something slightly different.

Yesterday in the other place, there was a massive majority in favour of the propositions before us. There is a very important constitutional issue here. This House is not the elected House. I believe fervently in it and have made that plain on innumerable occasions, and I believe that we have a real job to do, but when the elected House has given, by a massive majority, approval to certain orders dealing with the most important issue of the day, it would be ill advised for us to vote in a contrary direction.

While I admire my noble friend’s persistence—he certainly has not come new to this subject—I urge him, as the debate takes its course, to consider very carefully before he divides the House. There is clearly no doubt that there is a very real division in the Conservative Party, with the so-called libertarian wing. However, all these things have been oversimplified; the keynote of the debates has been hyperbole, which is not really very good for sensible parliamentary debating and democracy.

The fact that the Conservative Party is divided is common knowledge. I urge those who have not done so yet to read the main leader in today’s Times and a very penetrating article by our colleague, my noble friend Lord Finkelstein, also in the Times. I ask noble Lords please to read those articles and consider carefully what they say. We are at crisis point in this country when a large number, more than a hundred—99 voted and many abstained—of the governing party refuse to support the Government. That is a very serious matter.

However, an MP is an MP, no matter what constituency he or she sits for. Each Member of Parliament has a vote of equal value. Yesterday, as I said at the beginning, a massive majority of Members of the other place decided to support what the Government are proposing—a divided Government, yes, and the division in the Government is not caused, let us be honest, just by this subject. The appalling way in which the Owen Paterson affair was handled is indicative of a Government which have lost their grip.

My noble friend the former Chief Whip—he is an old friend—may be waving his hands at me; Chief Whips are important, but parliamentary democracy is even more important. I believe, as I said, that it would be ill advised for us to vote today against what the Government have proposed. We should not seek to contradict the other place but, with a degree of sadness perhaps, we should endorse it and certainly not divide the House.

My Lords, the Prime Minister has correctly pointed out that a “tidal wave” of the omicron Covid-19 virus is upon us. Yet the noble Lord, Lord Robathan, wants to do nothing. I do not agree with him. He wants to learn to live with the virus; most people do not want to have to learn to die with it.

There are three sets of regulations before us today. I will first deal with extending the mandatory wearing of face masks. We support it because face masks work. But who is monitoring or enforcing it? To give the Minister one example out of hundreds of thousands, on Monday one of my colleagues was travelling on an LNER train for two hours to come to your Lordships’ House—I must ask why we are here in person today—and only about 60% of the passengers were wearing masks and somebody behind her was coughing and spluttering for the whole two-hour journey. Nobody checked. This must be enforced.

The second set of regulations are on changing isolation rules for contacts of people testing positive. We support them but I have concerns about reported supply issues in self-administered lateral flow tests. People are just “strongly advised” to take tests for seven days after they have had contact. Will there be enough and will there be regular public information to remind people how important it is to take them? Will anyone check that they have done so?

Finally, on the regulations on restrictions on entry to crowded venues, something has to be done if people insist on entering crowded spaces for non-essential services at this dangerous time. However, this regulation is not good enough for preventing widespread transmission. Here is why: the purpose of these measures is to reduce transmission of the very contagious new omicron variant and avoid further pressure on the NHS if it produces serious disease, which we do not know yet. Measures should be based on the science. So what do we know? We are told that, to get into those venues, you can have had either two doses of the vaccine at some time or a lateral flow test within the previous 48 hours. Let us look at what those do.

When the vaccines were first administered, they gave good protection from disease within a few weeks, especially serious disease, and in some cases up to 90%. As the immunity waned over time, the boosters were developed, which now give around 75% protection to those who have them, and the NHS is doing a magnificent job getting them into people’s arms. But let us note that the regulations do not require a booster. However, a vaccinated person without a booster may now have immunity as low as 40%. Add to that the fact that we know they can still pick up the virus and pass it on to others even if they have no symptoms. Also add the fact that the scientists suspect the omicron variant might be able to avoid the vaccines most widely used in the UK, although, as I said, the booster gives good protection. However, they are not asking for proof of a booster.

On the other hand, we also know that the lateral flow tests are at least 80% accurate in detecting someone with the virus, crucially at the point when they are most contagious, and that includes the omicron variant. Let us remember that the regulation says that you can present proof either of two vaccinations, which could have been months ago, or of a lateral flow test within the previous 48 hours. I know which I would go for.

If the Government want proof of the Covid status of a person unwise enough to want to go into a crowded venue in the middle of a pandemic, why do they not insist on the widely available and 80% accurate lateral flow test rather than giving people the option of showing proof of a vaccine which may now be only 40% effective against the disease? Such people may have the virus and do not know about it, and they may pass it on to others in a crowd, whereas the person who shows a recent negative lateral flow test is highly likely not to be infected and can therefore not pass on the virus.

It’s a no-brainer. It has to be a negative lateral flow test only if we really want to reduce transmission among those who go to crowded events. I hope to persuade the Government this morning to do better. In my opinion, this regulation will not achieve its objective.

My Lords, perhaps I may intervene briefly as the last Secretary of State who had responsibility for a major epidemic, that of AIDS.

It is in no way exceptional that there should be profound differences in view among politicians and others of the way in which an epidemic or pandemic should be handled. In my day, we had chief constables openly attacking the patients and the Government. We had religious leaders, I regret to say, arguing that it was not a public health issue at all, but one of morality. We had Ministers, particularly Scottish Ministers, arguing that giving free needles to drug addicts was condoning crime, although there was absolutely no evidence that crime increased, and the example of our Government was followed worldwide. We had a Treasury which refused to provide extra resources for the pandemic.

Debate, controversy and difficulties on the way forward are absolutely nothing new in debates of this kind. The crucial question is: what advice do we follow? My view now, as then, is that we should follow the advice of the public health experts inside the Department of Health who work on these issues year after year, in particular the Chief Medical Officer. I pay particular tribute to my old CMO, Donald Acheson, and the new CMO, Chris Whitty. Chris Whitty and the Chief Scientific Adviser have done a remarkable job for this country over the last months and deserve full credit for that.

It is said that this is a question of freedom; obviously, I do not discount that argument, but surely the exercise of that freedom should not put others at risk. That seems to be a matter of common sense. It should not lead to infection being spread or hospitals having to prioritise which patients they treat because some have decided to remain unvaccinated and then become dangerously ill.

As is evident, after my spell on the Woolsack, I am now a Cross-Bencher, so I am not an automatic or whipped supporter of the Government—I am not whipped at all. My days as Conservative Party chairman are behind me—noble Lords might be very grateful for that—and no more than noble Lords in the Labour Party do I automatically follow the lead of the Government Front Bench. However, I must say that I think their case is totally overwhelming. The success of the national vaccination programme has moved us ahead in the race to get people vaccinated in this country and worldwide but, with the new omicron variant, we have to work even harder to stay ahead. That is the lesson of the whole thing.

Last week, we learned two things about this variant. The first is that no variant of Covid-19 has spread this fast—if you want a definition of an emergency or a need for action, surely that is not a bad one. We expect the numbers to increase dramatically in the days and weeks ahead. I do not think that is seriously disputed by anybody so, again, this is an argument for action. As the Prime Minister said—for once, his language is not over the top—

“there is a tidal wave of omicron coming”.

That seems to be the view of the public health experts as well. We know that a third or booster dose provides strong protection, with analysis from the UK Health Security Agency showing that a third dose is 70% effective at preventing symptomatic infection. We expect the booster to take effect more quickly than the second dose. Again, I would have thought that this should provide an incentive to us to do what is not just the best thing in terms of public health but the right thing, as I would term it—and action is the right thing.

What I really wished to say to this House in the few minutes that I have spoken is that we should do our utmost as a House and a Parliament to appear united. It seems it is not the best day to make that case or plea, after the rather dismal vote in the House of Commons yesterday, but I hope that the House of Lords will give support to this struggle. Parliament consists of two Houses—a fact that seems to be conveniently forgotten by much of the media and the press—and this House can give a real lead as far as the handling of this pandemic is concerned.

Like the noble Lord, Lord Cormack, whose speech I enjoyed, I hope that the noble Lord who has proposed a series of amendments will not persist with them. The Government have far more support than I think they realise. Far more people outside this confined area of Parliament are signing up to the case that they are putting. Ministers should persist in their case and fight for it as strongly as they can.

My Lords, I make two preliminary points before my main point. First, it would be quite contrary to the way in which this House works and to the conventions under which we operate to throw out secondary legislation. This is just not on. We do not do it, and it would be quite wrong to attempt to do so. Secondly, I follow up on what the noble Baroness, Lady Walmsley, who spoke for the Liberal Democrats said. As many other people have done, I tried to order lateral flow tests this morning. They are not available; you cannot order them. Every week for the past two months, I have succeeded in ordering them and the pack has arrived within a couple of days. The Minister must have an answer to this fundamental issue. Now, you cannot just walk into the chemist and collect them, or order them via a QR code, as you could do months ago—at 8.30 am today, it was not possible.

The Minister said that we are doing all this to protect people—which is true—and also to protect the NHS. I make no apology for asking why is it that we need to protect the NHS? It seems self-evident: we need to protect the NHS because it is incredibly vulnerable compared with how it was. In recent years, we have lost 17,000 beds, systematically and deliberately. Why?

I cite two or three examples from the recent NAO report on NHS backlogs pre pandemic. The OECD is the rich countries—or rather, the richer countries— of the world. In the context of the health systems within the OECD, the UK has fewer resources than many of the other rich countries. The UK has 2.4 hospital beds per 1,000 of the population. France has 5.8 and Belgium 5.5—and they are not the highest. Sweden has 2.1, which is less than the UK but, at 2.4, we are way down the list. With 8.5 nurses per 1,000 of the population, the UK is 11th on that list, whichever way you look at it. Ireland has 12.9; Germany 14; and France 11.1. This is all before the pandemic. The UK has three doctors per 1,000 of the population. Sweden has 4.3 and Spain has 4.4. They are not the highest; the highest is much greater. Finally, in 2019, we did 175 CT, MRI and PET examinations per 1,000 of the population. France did 332; Austria 349, and Belgium 313. In other words, the NHS has been deliberately run down since 2010. The other thing that has happened since 2010 is that life expectancy has stalled—read the Marmot reports. Why has life expectancy stalled since 2010? More people are dying earlier as a result of life expectancy stalling. There is something systematically wrong.

Of course, we need to carry these orders for public health reasons. I have no problem with that. I am 100% with the noble Lord, Lord Fowler. When it comes to protecting the NHS, we have to ask ourselves why it is so vulnerable. It is because we have lost out on doctors and nurses and because of the other issues that I have raised. It has been done systematically. I do not know why—a national policy has never been announced on that. We always talk about protecting the NHS. We need to ask why.

I hope that the noble Lord will not push this to a vote. He would be breaching the conventions of the way in which this House is run. I presume he is only pushing for a vote because he wants to win—you do not push for a vote if you do not want to win. Throwing out the regulations would breach the conventions and the elected House would be after us pretty damn quick—and rightly so.

My Lords, I envy the moral certainty of some of the loudest voices on both sides of this debate. As the noble Lord, Lord Fowler, just explained, it is bound to be an issue on which there is a range of strong opinions. The only opinion that I really discount is glibness, in particular a facile imputation of base motives to the other side. It is absurd to argue either that the proponents of these measures are engaged in some plot to create an authoritarian panopticon state or that their opponents are all lunatic conspiracy theorists. We are debating the most basic question of politics, going back to Aristotelian theory: how do people live together while preserving the freedom of the individual?

The answer must hinge on whether these measures are proportionate. I say that very seriously. My noble friend the Minister makes a good argument to the effect that these measures were judiciously chosen to disrupt as little as possible, in the face of an identified threat. It would be silly to dismiss the claim that we try to slow things up while increasing the opportunity for people to get a booster jab. But I keep coming back to one question: why would that logic not now apply to every future variant or, indeed, to every disease as yet unencountered by our doctors? Are we in danger of permanently tilting the balance, so that we have pre-emptive stay-at-home orders or other restrictions, on the off-chance, every time there is something that may or may not turn out to be a severe public health risk?

It is here that we have to make our stand. Over the last 18 months, what has most alarmed me is a reversal in the burden of proof. When proposing to take away people’s elemental freedoms, the onus must be on the proponents of change to prove their case. It is not for defenders of the status quo ante, defenders of our traditional freedoms, to show why restrictions are not necessary. I am not sure that has happened in this case. Even if it has, how are we not opening the door to the same reasoning in future, so that we have a see-saw of constant lockdowns or other bans and restrictions, every time something happens, just to be on the safe side? That would be a fundamental alteration in the relationship between state and citizen.

As my noble friend Lord Cormack said, this was largely a Conservative Party debate in the other place. I tuned in and watched it: I saw 17 successive Conservative speakers, and that was not for a want of people from the other side or a bias in the Chair. The debate was largely confined to the government Benches and I do not see that as a bad thing. I am proud to be a member of a party that takes questions of personal freedom seriously. That is why I finish by saying that, on this or other issues, we must not reverse the way in which we normally determine guilt or innocence. We usually have a very high burden of proof before we confine people to house arrest and we should not lower that, either in this or in more general cases. Freedom should always be our default.

My Lords, I was interested in the comments we have just heard from the noble Lord, Lord Hannan of Kingsclere, and slightly surprised at how much of his speech I agreed with—in the sense that there is a danger from a constant stream of new variants, each provoking tactical responses in our own country. Therefore, I repeat the point I made yesterday at Question Time: it is in our national self-interest to ensure not only that people in this country are protected by vaccination but that people across the world are protected, because that will protect us in the future. It will stop us having these debates every two months, six months or year, ad infinitum.

The other point I will make in response to what the noble Lord said is that he is correct that we should not make this a debate between extreme positions, where you are either 100% right or 100% wrong. I am not 100% in favour of the detail of everything that is in these three SIs—but I am 100% sure that I am going to vote for them if the noble Lord, Lord Robathan, decides to divide the House.

There is a process by which we reach compromises and balances: between the threat to health from the virus and that of not having an NHS functioning as it normally does; or between the threats to mental health from the fear of contracting the virus and those from isolation—not being able to participate and work, and all those things. How we draw those balances is a very delicate exercise and it starts, as others have said, with medical and scientific advice. That must be the rock and the foundation, but of course there is a political dimension—a value weighing-up and a judgment to be made about the comparative harms and how we get our best way through.

I will make one last point about the dangers of an extremist position—and I think that the noble Lord, Lord Robathan, actually takes an extremist position. The danger comes when, after the advice, the Government’s view and their proposals, and then parliamentary scrutiny and challenge, to get it as right as we can on balance, there is a sense in the public that the political is playing too large a part; and that a Government—this Government—will actually be deterred from taking the action that they need, and are advised, to take, and which we need them to take to protect ourselves.

Other noble Lords will have seen the streams of responses to the email of the noble Lord, Lord Robathan, from people saying, “I’m sorry I can’t be there but I’m in bed with Covid”. On public confidence, let us face it: the current public adherence, on which we all depend, to the regulations before us will be damaged by the fear that they are not based fundamentally on the science but on fears of losing political support in the very narrow environment in which we operate. That would undermine public confidence. As others have said, it is absolutely vital that we go through this process with scientific advice, government recommendations and parliamentary scrutiny, and do the best that we can in those circumstances.

My Lords, I have had the privilege of being a Member of your Lordships’ House for a very long time. I was sitting on the Benches opposite back in 1977, when my late noble friend Lord Carrington, then Leader of the Opposition, and the late Earl Jellicoe moved the cancellation of sanctions on Rhodesia. That was a mistake, and it would be a mistake to vote down the regulations today.

My Lords, I saw a notice recently outside a restaurant. It read: “If you’d like to know how it feels to be in the hospitality sector during this Covid pandemic, just remember the ‘Titanic’ when it was sinking and the band played on.” Well, we are the band. Here we are, 21 months on, and it feels like we are going backwards.

Let us take a short trip down memory lane. Covid arrives, and it is March 2020. The Chinese authorities already knew that there was a problem several months before but did not decide to tell the WHO until the December—but there we are. So we go into lockdown. There are daily press conferences. There is new language: “Protect the NHS”, “Hands, face, space”, “Stay at home”, “We need to flatten the curve”. We needed to do that, but it would be for only a few weeks and it was for the greater good—quite right. “Go out once a day, but only for essential goods.” Spend hours queuing in Sainsbury’s car park, two metres apart, in the rain. “Close your businesses, do not travel, do not visit your neighbour, but it’s just for a short time.” “Don’t see your boyfriend—it’s for the greater good.” “We need to close all the schools.” “Teach your children from home.” “You won’t be able to see your loved ones in a care home, but that’s also for the greater good.” And we went with that, because it was for the greater good. But we are where we are now. Finally, it was: “You can’t see your GP if you’re ill. It is too dangerous.”

So what do we do next? We tried to comply. Of those who did not comply, some were arrested. They were arrested for sitting on a bench, having a cup of coffee. Perhaps they had already been out that day. But that was not the answer. Nevertheless, we looked ahead. I am nothing if not optimistic. There was a temporary release over summer, and, by autumn, it had started again. “But it’s okay; it’ll be fine for Christmas. The vaccines are coming, so please bear with us. It’s for the greater good.” And we did, and I am a huge supporter of the vaccine programme.

But families were still separated. Millions were home alone. Meanwhile, the economy went into freefall. Mental health issues have been raised. The number of suicides increased, and NHS waiting lists have grown and grown, with people becoming more and more ill. Then it arrived; it was the silver bullet, and it was such a relief. This vaccine programme has been fantastic; I am a huge supporter.

When the vaccine arrived we were told that, once we had got the over-70s jabbed, we would start to get back to normal. But then it was the over-60s. Then we had to wait for the over-50s, the over-40s and the over-20s. Then it was the 12 to 15s.

So, 21 months on, we were looking forward to Christmas again, but then the omicron variant arrived—talk about bad timing. “But don’t worry,” said the chairman of the South African Medical Association, Dr Angelique Coetzee, “you’re the most vaccinated country on the planet, the symptoms are mild and not one practitioner has prescribed oxygen.” But here we are. We feel as though we have been marched up the hill, as though we have taken one step forward and two steps back.

The headlines roared. Mainstream media have gone into overdrive. We have 10 cases and one death, but, as my noble friend asked, what were the causes? Did that person die of it, tragic though it is, or with it? We would like that information. There are approximately 10 cases a day. But we have also had the modelling figures. By April next year, we could have between 25,000 and 75,000 deaths, and 200,000 cases a day. They are the modelling figures, which sum up where we are. It is a very difficult situation. The question is: where will it end?

We cannot keep people in perpetual fear and we cannot knee-jerk from one day to the next. The hysteria is flooding the airwaves, and the consequences on the public are horrific. With a heavy heart, I find it difficult to support the Motions today, but I urge the Government to seriously rethink how we take this forward. I ask my noble friend to do that because, finally, coercion can never be the answer. Persuasion is much better. If we can have a frank and open discussion and hear arguments from both sides, that is how we will move forward.

My Lords, with plan B, while we have measures to keep the economy open, we have messages that have ended up closing much of it. There is fear and there are confusing messages, including the advice to work from home—just look at trains, buses and restaurants, which have seen a collapse in demand. We have to consider how necessary all this is, with a major South African study of 78,000 omicron cases showing that symptoms are significantly less severe than with the delta variant and that the vaccines still afford protection. There are many fewer hospitalisations and admissions to ICUs.

As president of the CBI, in July we produced a document called Living with the Virus. We are now updating it to Living with the Variants, in which we say that, if we follow these steps, there should be no necessity for a plan B or a plan C. First, there should be forward guidance to support businesses and organisations to adapt. We should prioritise mass testing over mass isolation or working from home. We should utilise all Covid-secure tools available to build employee and customer confidence. We must maximise our world-leading vaccine programme, of which we are all so proud—hats off to Kate Bingham and what she did. We should also use our antiviral programme as much as possible. We should prioritise border control so that we keep our country and economy open and, if there are restrictions, government support must move in lock-step with them.

If we follow these steps, there should be no need for a plan B or plan C. I am very proud that I was one of the first people in this country to call in August last year for lateral flow tests to be widely available. I am so glad that the Government eventually listened; they are very effective, as the noble Baroness, Lady Walmsley, said. Will the Minister confirm that the supply of lateral flow tests will be there and that they will be freely available—at the moment they are not even available—to businesses and the public until at least March next year, if not longer, as necessary?

Will he also confirm that the Government will put effort and urgency into the approval of antivirals? The best example I have is the Pfizer antiviral—tablets given for five days—which has shown in trials that it reduces hospitalisations and deaths by 89%. Can the MHRA approve drugs such as that as soon as possible? Can they be widely available, so that every GP has them and anyone, if they test positive and has symptoms, can take these tablets, which will lead to an 89% reduction in hospitalisations and deaths? That in itself could be “game over” for this wretched virus.

Can he also confirm that we will do everything possible to make sure that schools, colleges and universities are never shut again? Use daily lateral flow tests; do not have a bubble system or a million children isolating. It is completely unnecessary. The Oxford trial that took place between April and June last year proved that using lateral flow tests is the way forward, so that staff and students do not miss a single day of school. Can the Minister please assure us of that? Our children and parents have suffered so much. We should not let our children suffer any more.

My Lords, first of all, you will have heard me coughing—but I have done PCR and lateral flow tests and it is a chest infection. But I have found that coughing quite a bit is a way to get a seat on a train at the moment.

I have not prepared a speech, because I wanted to listen to the debate and see what happened. The most powerful speech so far has been that of the noble Lord, Lord Fowler. Let us be clear: political philosophy is not a tool that you use to deal with a health crisis. You have to listen to public health advice and the people who collectively advise the Government on that public health advice. There will of course be outliers—that is the nature of science—but SAGE is the body which brings scientists together to have those discussions and come to the best collective view on what is in the best interests of keeping people safe. This is not a political discussion about freedom or trying to say that you are the purest freedom fighter of all. I have to say to the noble Lord, Lord Robathan, that political jibes about other parties’ philosophies are not what is required to bring about a safe and stable approach to keeping this country safe.

The clear issue in this is about test, trace and isolate. Those are the three pillars of public health policy, which will not end infection but will mitigate transmission by taking out as many chains of transmission as possible while people are infectious. The concept is as simple as that, but it is difficult in practice—and that is what government policy should be about.

This virus has shown itself to be complex. It mutates, which means that, at times, emergency legislation will be required—and because of this variant, emergency legislation is required. The Minister will know that I have been sceptical about some of the statutory instruments and whether they are an abuse of parliamentary procedure—I think some of them have been. However, these regulations are required in an emergency. We are talking about 2 million people potentially being affected by the end of next week, and it only takes a small proportion of those to be hospitalised to cause great damage to the NHS. The backlogs and the pressures on cancer treatment are because the health service cannot cope—not just with coronavirus but with the effects of the everyday procedures it needs to carry out.

I declare an interest: I am a non-executive director of Chesterfield Royal Hospital NHS Foundation Trust. It would be interesting to know whether those who have talked about the pressures on the health service have actually been to talk to the staff who are dealing with this, who are psychologically, as well as physically, drained. They are drained from the wave of difficulty that they have had to deal with, not just with coronavirus but the pressures of having to deal with people with ongoing problems and acute procedures. This wave is coming and it will mean that, yet again, more people will end up in intensive care and more people will die.

What can we do to try to minimise that? We test, we trace and we isolate. I have heard arguments that this is about the economy or public health, but it is not that binary; they affect each other. If you have 5 million to 6 million people infected, it affects the economy and it affects the NHS’s ability to cope with this. We have to go back to what the experts are saying and to these regulations: test, trace and isolate.

There are a couple of issues that I want to raise with the Minister, because I am a bit perplexed. I have no view that he is deliberately trying not to introduce test, trace and isolate procedures, but some of the things are contradictory and do not lead up to that approach.

The issue of self-isolation is about taking out chains of transmission, so that people are not circulating when they are most infected. But on the reduction of self-isolation and the use of lateral flow tests, paragraph 7.6 of the Explanatory Memorandum states:

“Close contacts of positive cases will be advised (but not required by the regulations as amended) to take daily tests for up to 7 days”.

That means that people are not required to test and to isolate, and there will be no tracing. What is the effect of that? I ask the Minister why it is not mandatory to test and upload those results, so test, trace and isolate can kick in. It seems to be a fundamental flaw in these regulations that people who have been in contact with somebody with Covid, and in particular with this most virulent strain, are told not to isolate and also not to test. If the key to public health is to test, trace and isolate, and we are taking out isolation and testing, how do we trace, particularly as we are told that the R rate could potentially be 3—so every person who is infected could infect another three people? This is a fundamental flaw, so will the Government look at this as a matter of urgency? It is vital.

I continue on some of the issues raised by my noble friend Lady Walmsley about the effectiveness of Covid certification. This is a chocolate teapot approach; it is not going to work. The reason for that has been laid out. If I have not had the booster, I may still have my certification and will be able to show it—but it could have been 10 or 11 months since I was vaccinated if this continues until March. That will mean I am 40% protected going into a large venue where I may actually infect people. The way to do this is a lateral flow test at the point of entry. That would not be 100% effective—nothing is in this type of pandemic—but it would be a damn sight more effective than relying on certification that is out of date, does not require a third dose and actually means that you are putting more people at risk of getting and spreading this than you would be if there was a lateral flow test on entry. Again, I urge the Government to look at this.

Finally, on the wearing of face coverings, lots of studies can be quoted but most come down to this fact: the argument is not about whether they are effective, apart from certain outliers that have not been peer-reviewed, but the extent to which they actually reduce transmission. In this case, where we are talking about numbers doubling every two days and up to 1 million or 2 million people being infected a week, it is important to do everything possible to minimise transmission, as part of a systematic approach. That is why face coverings are important.

Just as important as wearing them is who will enforce the wearing of them. It is unfair to leave it solely to private enterprise to deal with, so what is the enforcement regime? My noble friend Lady Walmsley referred to our noble friend Lady Pinnock and, similarly, I came down on an East Midlands train on Monday. I had to ask six people to put on their face coverings. One was quite verbally violent towards me. I was not doing it to be difficult; I was trying to protect people in that carriage. The evidence is that we wear masks not to protect ourselves but to try to stop the spread of a disease that could kill somebody—and I do not know who it will kill. Who is going to enforce? So I will not be voting for the amendment tabled by the noble Lord, Lord Robathan, on face coverings.

I might vote for the noble Lord’s amendment on certification simply because, for me, it is not a political issue but a practical one about whether certificates will work, because I think lateral flow tests will. Generally, I want this debate not to be about who is the purest of all in upholding a political philosophy. I want it to be about listening to SAGE and the collective view of scientists, and about doing everything possible to follow the public health view of test, trace and isolate, and trying to keep as many people as safe as possible and reducing the risk of death and serious illness to people in this country.

My Lords, I suggest that, if it were not for omicron, we would not be sitting here today. It is only because of omicron that we are all debating this. I have to say this. Could the messages have been better? Yes. Could the NHS have been better prepared? Possibly. But that does not matter. I completely support what my dear noble friend Lord Fowler said.

Decisions have to be made and I will finish on this point. The sooner we are able to be free—truly free—I want the opportunity for us all to get everybody back to creating wealth in this country, because that will be the real challenge before us. Unless we manage to do it, the rest, sadly, will become unnecessary.

My Lords, I commend the 126 MPs in the other place who voted on their principles and conscience, despite heavy whipping, in yesterday’s rebellion. They formed an ad hoc Official Opposition while the formal Official Opposition did their—what did Keir Starmer call it?—“patriotic duty” in not opposing but endorsing every single one of the Government’s proposals.

Despite having previously opposed vaccine passports, now renamed by Ministers—as though that were convincing—and despite all the talk of preventing the NHS toppling over and lauding NHS workers as heroes, Labour voted for discriminatory employment practices and the brute force of job losses to coerce NHS staff into complying with a medical intervention or getting sacked.

In every wing of the Conservative Party there was a significant minority of MPs who, despite personal appeals from the Prime Minister, defied the Whip—and that means something important that this House might note.

This legislation has already been passed, so detailed scrutiny of each aspect of it is largely formal, with little meaning, but there are broader issues worth raising. One is trust. I am concerned that the Government’s response to omicron is eating away at trust in political institutions, and objective statistics and data have been misused recently, with examples of regular contradictions and different figures coming from Ministers with quick contradictions afterwards. We worry about misinformation on the web, but there has been a fair amount of it from official sources.

Also, can we remind ourselves that the Prime Minister, Boris Johnson, declared an “irreversible” road map out of lockdown? But that irreversible moment has now screeched to a halt and is reversing at rapid speed. Then we get shrill warnings that the UK is facing a “tidal wave” of omicron. Is that a bit like “one minute to midnight”? I am worried that there is overhype and too much hyperbole.

This is all in the real context that 95% of the population have antibodies. There has been a phenomenally successful vaccine take-up and, in the real-world international evidence—not speculative modelling—we are thankfully shown that, while this variant is highly transmissible, it is not as yet seen as a widespread, lethal threat by medics and scientists. And hyping up the potential threat can do real damage in other ways. If everything is an emergency, nothing is an emergency, and there is always a danger in crying wolf.

The speed of omicron is not the only danger. More worrying is the dangerous speed with which the Government immediately have recourse to invasive restrictions. This is no longer a last resort. It is almost the first policy idea at which they grab. It is not based on weighing up the broad social pros and cons. We are not presented with a detailed cost-benefit analysis; it is deployed just in case there is a worst-case scenario. There is always a hint of worse to come. It might be vaccine passports now, but in the new year there will be three-dose vaccine passports.

The Prime Minister offered a rare opportunity for a national debate. I was quite excited. A national debate is sorely needed on the whole question of the balance of risk and the priorities which society wants to take. But, no, the Prime Minister’s offer of a national debate was to discuss mandatory vaccination, of all things.

This Government have made national sovereignty a byword and sovereignty something which people understand. I remind them that this direction of travel is in danger of trashing the Enlightenment ideals of individual sovereignty and bodily autonomy. John Locke’s A Letter Concerning Toleration says,

“no man can be forced to be … healthful”

Vaccine passes are not inconvenient or a bother. I have one in my bag in the unlikely event that I might go to a nightclub. What does it mean? Most people will say, “I do not know what the fuss is about”, but there are far greater implications. Everyone’s freedom is limited if the state determines that it is contingent on accepting a medical treatment or providing medical information, or on a submission to public health priorities above all else. It is limited if we need a licence to go about our lives freely.

The noble Lord, Lord Scriven, has asked us to put our political philosophies to one side, as though noble Lords are raising matters of principle as if we are in some sort of sixth-form debating chamber. I understand that this is a caricatured view. If society is to be completely reorganised around public health, and dangerous, illiberal principles are to be set, debate should at least be encouraged. I should have thought that liberals and democrats—as in Liberal Democrats—might be quite keen on that kind of a debate.

I quote from a new document which the Government has brought forward in the last few days. It is a modern Bill of Rights. In the foreword, we are told,

“The United Kingdom has a long, proud, and diverse history of freedom. This stretches from Magna Carta in 1215”.

It then details all the proud freedom movements. It continues,

“Our proposals, which form the basis of this consultation, reflect the Government’s enduring commitment to liberty under the rule of law.”

What is the point of having documents declaring a commitment to liberty under the rule of law if liberty can be so easily dispensed with in the name of public health?

State power works. Of course it does. You can scare and threaten people into changing their behaviour, but is that what we want in our society? Many of my extended family have disagreed with my more liberal views on this question, throughout this pandemic, and have been enthusiastic adherents of lockdown. At the moment, they are not so much scared of the virus as of the next government press conference. They have become cynical about a lot of what they are being told. They are fearful that their way of life is being disrupted, rather than being immediately frightened of death.

In a recent pamphlet, Toxic Sociality: Reflections on a Pandemic, Josie Appleton makes the point that every pandemic has a social dynamic, as well as an epidemiological cause which structures the way the disease is seen and responded to. In many ways, my extended family has noticed that there is more to life than epidemiology. There has been a period when they have been able to meet publicly and socially to discuss what kind of priorities they want. It is important not to dismiss that social side. It seems to me that one clear and present danger is that social cohesion is now threatened by the kind of messaging that we are getting around the virus. Human interaction is presented as a contagion. All the unregulated examples of free conviviality and spontaneous social gatherings, such as going to a nightclub without showing a pass, are presented as toxic. Free association is being replaced by state-authorised association.

We are encouraged to view the unvaccinated as “the other”, as lesser, to be excluded from aspects of society and employment and discriminated against—not there to be encouraged or persuaded into the vaccine, but threatened. This is not making a positive case for the wonders of the vaccine and it promises to backfire.

The noble Lord, Lord Fowler, made a point about what he considered to be the role of this House. I thought that its role was to scrutinise and be critical. I hope that in the new year this House gives a lead, not just by going along with whatever we are told but by asking questions and potentially prioritising the importance of a free society, without having to apologise for it.

My Lords, it is only about eight miles from Buckley to Gresford, but I must say that the distance between me and the noble Baroness, Lady Fox, is infinite given the views that she takes.

I want to put a personal note into this debate. Within the last two years, I have undergone a course of chemotherapy, which destroyed my immunity to disease, according to the experts. I was told a fortnight ago that I should have another booster in addition to the booster that I have already had—in other words, four jabs altogether for me. But I come here. I am sure that the noble Lord, Lord Robathan, will approve of my coming here in answer to the Writ of Summons to contribute, to try to play a part and go on as though nothing has happened. But I come here because I rely on the common sense and collegiate responsibility of my colleagues in this place, of the doorkeepers and of the staff, and of all the people here who are doing their best to protect us.

I can tell your Lordships that it is a matter of concern to me when I see, on the opposite Benches, people who are proud not to wear something but of not wearing a mask. That makes me feel unsafe. I am sure that I am not the only person here with a compromised immunity—there must be others—who come here to try to carry on, but this is only one workplace. There are workplaces throughout this country where people are trying to carry on. They need leadership; they need confidence that the advice they receive from this House, from the other place and from the Government is soundly based on the best medical science that can be brought to bear. That science tells us that we should protect ourselves and wear masks, not just for ourselves but for the people whom we move among when we travel here—referred to by my noble friend Lord Scriven —or are going about this place.

We are protecting not just ourselves by wearing a mask but everybody else, and I do not understand a philosophy which permits people to say, “I am above all this.” “Freedom!” is the great cry. That is rubbish. I shall oppose the noble Lord, Lord Robathan, if he puts his amendment to a vote, but I plead with him to think of people like me with a compromised immunity who are trying to carry on, and to withdraw that amendment.

My Lords, I shall try to be very brief. First, I want to thank my noble friend the Minister. He arrived in his job at a particularly difficult time. There has been turmoil, but he does his job with great sensitivity. I hope he will excuse me if I in any way ruffle his collar today. He said that we do not yet have a complete picture of the latest variant. That is absolutely the case and I want to press him on it a little. I find it difficult to simply accept that we must follow the science. What is the science? Science is not God and scientists are not messiahs. There are some pretty inadequate scientists, as well as some very gifted ones. Our job is to listen and learn, not simply follow blindly.

I have tried to listen carefully through this debate and many others, but I still do not understand the difference between a passport and a mandatory certificate—I hope the Minister will forgive me. I have been asking for a debate on passports. This is a very difficult issue which you can see from many different sides, but it is central to this policy. I have been asking for that debate ever since the start of the pandemic but we still have not had one. I still do not understand why all these new regulations have come in just days after we abandoned the red list on international travel, but there are many things that do not necessarily fit together easily in these difficult times.

There are many costs associated with any policy, no matter how well intentioned it might be. One cost I think we will be discussing for many years to come is the impact of these policies on the mental health of this nation, particularly the younger population. I wonder whether the Minister has looked at the increase in self- harm among young people or the number of attempted suicides. This is a real issue, yet we do not have impact assessments on any of these things—this is the debate we had yesterday. The Government are not doing enough to keep us informed or to allow us to debate the many issues associated with this pandemic.

I will ask the Minister three brief questions about the tidal wave that we are now experiencing. Of course, we want to be properly prepared for contingencies and cannot wait until we have answers to all the questions before we act. However, could we be told how many deaths have so far occurred from omicron in this country? I would have thought that an important, fundamental building block of any policy. Of those deaths, did the person die from omicron or simply with it? That is a very important distinction. Were those deaths of people who had been vaccinated or were they the unvaccinated? I do not know the answers to these questions and that certainly affects the way I would make up my mind about this policy. We need to know these basic figures.

As we have just heard, Covid has the capacity to ruin lives, but our reaction to it also has that capacity. We must seek a proper balance, rather than simply going blindly down the road of saying “This is the science; we must therefore do this without any debate at all”. I am grateful to my noble friend Lord Robathan for raising these issues today, because we need to debate them. If I were in his position, I suggest that I would not push this to a vote. However, he has done us a service in allowing us to discuss issues which would not otherwise have been properly discussed. We have been in pandemic circumstances for almost two years and too many outstanding questions have still not yet been answered. I hope that, through impact assessments and other means, the Government will make even more effort to answer the questions that we need to have answered.

My Lords, as an aside, I begin with a reflection on how this debate illustrates how outdated our political frames and the arrangement of our political furniture are, with the idea that we have two sides of politics. That clearly does not reflect the way our politics is operating now. I must respond to the noble Lord, Lord Dobbs, who asked how many deaths there have been from omicron; he appears to have learned nothing from the past two years about the exponential spread of viruses and the delay between infection, hospitalisation and death.

I caught the No. 29 bus down this morning. I saw, as I have seen pretty well throughout the last two years, the public in advance of where the Government thought they might be. The bus was largely empty. Everyone on it was wearing a mask properly. I was seeking to speak after the noble Lord, Lord Thomas of Gresford, because I wanted to say how honoured I would have been to do so and to express my respect for his presence and speech today. It is an utter rebuttal to the claim of the noble Lord, Lord Robathan, that we are all free to make our own decisions. None of us is free to choose whether or not to breathe. We all have to breathe the air in this Chamber and wherever we go.

That brings me to the first of my two points. We could be debating some very different SIs today, ones based on both the science and a response I had from the noble Lord, Lord Bethell, in July, when he was sitting where the Minister is now. The noble Lord said then that

“ventilation is critical—but it is also challenging.”—[Official Report, 21/7/21; col. 335.]

Instead of these SIs, we could be debating SIs that allowed for an emergency scheme for entertainment premises—concert halls and theatres—to have on the door, as restaurants do for food health, a rating for ventilation. People would be able to choose which venues they went into based on the real measure of risk that they presented. We could see another SI that would have an emergency programme, as the National Education Union has for many months been calling for, of installation in schools of not just carbon dioxide meters but ventilation and filtration systems. We are seeing isolated trials popping up, but not those things.

However, we cannot see emergency SIs such as those because such long-term schemes would take many months to implement. But they are long-term schemes that should have been implemented many months ago. I turn to a British Medical Journal editorial from July, which says that

“workplaces, healthcare facilities and education providers”

must

“pay greater attention to the cleanliness of the air”.

This editorial was written by world-leading microbiologists and engineers.

Over the past two years we have seen a public who have done amazing things, shown an amazing grasp of reality and adapted their behaviour accordingly. Sadly, we have seen a Government which have not lived up to their responsibilities and have been totally focused on one prong of defence—vaccination. I absolutely support and agree with the huge drive for vaccination, like many Members of your Lordships’ House; my booster is booked for next Monday. I am holding out for that and hoping to survive until that point.

I turn to the other SI, on vaccine passports. The noble Baroness, Lady Walmsley, and the noble Lord, Lord Scriven, made some very powerful points about the medical faults in this. I will pick up another concern, which I raised yesterday when we were talking about vaccination for deployment in health and care. If we send a message to people that vaccination is something that we have to force them to do, it risks building resistance and being counterproductive. We want to get to a situation where every person for whom it is medically possible is vaccinated, and has chosen to be. That requires a fairly large ask—trust in the Government—but above all it requires a programme of education and outreach, which we have clearly not seen nearly enough of.

In the other place, the Green MP Caroline Lucas, while expressing great reluctance, voted with those opposing the vaccine passport SI before us. I must admit I feel rather torn at the moment, because I think the SI is dangerous and counterproductive, but I feel extremely uncomfortable with people making different arguments grouped in the same space, so I have not quite decided what to do. But I want to see a Government allowing people to keep themselves safe by taking on what the noble Lord, Lord Bethell, accepted was crucial in July, which is ventilation.

I also pick up the point from the noble Baroness, Lady Hayman, on global scale. No one is safe until everyone is safe. The Government are not doing nearly enough to get vaccines around the world, so we will see more risks. In picking up on how people can keep themselves safe, whatever the Government pass, we will see people not going to entertainment venues and rearranging their lives. That means that people and businesses will need public support, on which I agree with the noble Lord, Lord Blencathra. We also need people to be able to keep other people safe, which means proper and full sickness payments when they have to self-isolate, as they should.

My Lords, this is overwhelmingly a public health issue and, at heart, not a complex one. We all agree that we should constrain our freedoms only for a good reason. Not drinking and driving at the same time would be a good reason. The good reason here is the overwhelming nature of the scientific advice. I have participated, as have many of your Lordships, in the briefings we have had from all the leading scientists who advise the Government. The airwaves are full of professors who know their stuff and who also advise, and there is a real scientific consensus about the problem we face.

It is simple at heart: this particular variant of the virus is much more transmissible than any variant we have seen before, and the scientists are clear that they do not yet know how severe its symptoms will be. We can all be hopeful; there is some evidence from South Africa that the symptoms are mild, but the scientists tell us not to jump to conclusions, because you cannot easily translate the South African experience to our own. Its population is far younger and has hitherto been much more infected by other forms of the virus. We cannot assume that what has happened in South Africa will happen here.

We have used the word “exponential”; it is a powerful word. It means, as the scientific modelling has demonstrated, that the numbers double every few days. You do not need more than O-level maths to know that, after not many days, you get to a very large number indeed. If the symptoms turn out to be severe, the combination of those large numbers and more severe symptoms would be devastating and the NHS would be overwhelmed. That is why this action is prudential. It is not definitive, but is prudential and entirely justified. I support the Government.

My Lords, in one sense I hesitate to contribute to this debate, which has been very interesting for lots of reasons. We sit in a Chamber where we contribute to the making of law, which is precisely about the infringement of people’s freedoms—that is what law is—so I struggle with the arguments about freedom. Yesterday or the day before we talked about infringing people’s freedoms regarding the right to protest, for example. I hope to hear the same arguments about the importance of freedom when we get to some of those very restrictive debates.

There are two issues here that we must not confuse. One is the public health issue and the demands of that; I hear everything that has been said about good scientists and bad scientists, and I totally agree that science is not God and scientists are not messiahs—noble Lords would expect me to say that anyway—but our job is to interpret the science with a view to then taking responsible decisions on behalf of other people. Like the noble Lord, Lord Thomas of Gresford, and his immuno- compromised situation, my wife up in Leeds is immuno- compromised because of radical chemotherapy for cancer at the moment. I had to think very carefully about whether I should come down here, and I question how it will be when I go back.

There is the public health issue, but we have heard in the last couple of days, from all sides of the House, remonstrations about the culture in which we are now exercising our responsibilities, with language such as “government contempt” for parliamentary process and so on. I question why we are still hearing announcements on television, rather than announcements being made in Parliament, subject to scrutiny and debate, on matters of such public importance. However, this is not the first time, and to protest about it in this respect is to beg the question why we have not protested about it in respect of other legislation where the same criteria do not seem to apply. I agree with the noble Baroness, Lady Fox, about the erosion of trust, but this has not caused the erosion of trust. What we are dealing with now plays into a pool in which we swim, in which trust has been eroded over time by a scratching away of what we might consider the conventions and norms of our parliamentary democracy.

The question I want to put to the Minister comes back to something that—I apologise, I cannot remember who used the language earlier—was said about the difference between tactics and strategy. Strategy is the plumbing that gets us towards the end that we want to achieve. What we seem to be seeing at the moment are reactive tactical decisions, which are not subject to the normal scrutiny that we would expect in this place. What is the strategy in which the tactics make some coherent sense? That can be determined only when we articulate what the end is that the strategy is intended to achieve.

I fear that I have not added anything new to this debate, but I think that we need to be clear about some of the issues that I have raised.

My Lords, I have three points. First, I was struck that the noble Lord, Lord Robathan, introduced his speech by referring to the scarifying effect of the debate in the Commons yesterday. Subsequently he went on—as have other speakers—to try to scare us about these regulations. It has been, to a large extent, a scare story about these proposed regulations. In truth, they are oh-so limited in their extent. It is quite possible that we might have to introduce stronger restrictions, so what we are being scared about is a slippery slope, that sooner or later these regulations will lead to an oppressive state. Well, they do not—they are just keeping us a little bit safer.

Secondly, on the idea that omicron is milder, we do not yet know that it is milder in the UK context. What we do know is that it is much more invasive. It will infect many more people. Even if it is milder—which we do not yet know—a milder effect on a much larger number may place a heavier burden on the health service. There is even the perverse, non-intuitive effect that a milder disease could place a heavier burden on the health service because, sad though it is to say, if people do not die so quickly of this disease, they will be in hospital for longer.

Thirdly, the debate on vaccine passports has been mentioned. I do not quite understand what people are saying, because I already have a vaccine passport—I guess that the great majority of people in this Chamber have one. I have used my vaccine passport. These regulations are saying that, in certain circumstances, that is one way of showing that there are good odds of you not being as infectious. I agree that there is a slippery slope here—I am totally against ID cards—but this information is already contained in the vaccine passports. The regulations are about how they should be used.

My Lords, I am getting indications from the Chief Whip that we should move to the winding Front-Benchers. The noble Baroness, Lady Brinton, will be speaking remotely. I invite her to speak for the Liberal Democrats.

My Lords, I declare my interest as a chair of the All-Party Group on Coronavirus. I thank the Minister for his speech on the three SIs before your Lordships’ House today.

Plan B was published four months ago. It was absolutely evident, first from the Secretary of State for Health’s announcement on Friday and then from the Prime Minister’s speech on Sunday, that no real planning has been going on behind the scenes in the department. Before we get into the practical consequences of these regulations, from these Benches we want once again to join in the strongest objection to the slack way in which the regulations and the Explanatory Memoranda are written.

The right reverend Prelate was right to say that we accept that late legislation may need to be written at pace, but this is communication at its worst and, of course, it cannot go through the usual scrutiny from the Secondary Legislation Scrutiny Committee and others. This goes hand in hand with Ministers’ messaging to the wider public, from the Prime Minister down. All because he is worried about certain parts of his party, he has once again announced mitigations too late, which inevitably result in further restrictions and in omicron being allowed to move really fast through our society.

The noble Lord, Lord Hannan, said that he worries this will be the case with every new variant we go through. That has not been the reality so far. What is different about omicron is how quickly transmission has doubled, which, by the way, without mitigations, will have an effect on the economy, because businesses are already seeing staff go off sick. If we have 2 million people with omicron by the end of the year, and that continues to increase at the same doubling rate every two days, we will find that the economy, schools, societies, our GP surgeries, ambulances and hospitals struggle even more than they are now. On Tuesday, at the All-Party Group on Coronavirus, one GP said to us that, on the previous day, every single doctor in her practice had tested positive. That meant that there were no doctors available to work, other than by Zoom.

We are learning about omicron because it is very new to us. The evidence of its exponential growth so far is concerning. The noble Baroness, Lady Foster, said that not one patient in South Africa has had oxygen. This is not true. It is true that there are fewer people in hospital, but some have severe disease. The number of omicron critical care beds is going up. At the end of November, 291 people in hospital were on oxygen. Two weeks later, it is nearly 900. The numbers in ICU have also doubled. These figures are from the Covid dashboard on the Spectator website.

From all Benches, we have heard agreement with the Prime Minister’s confused lines in the sand—for example, face masks must be worn in shops, but not in pubs and restaurants. Even if omicron is less dangerous—by which I think the noble Lord, Lord Robathan, means that there are fewer people with severe disease—its key elements are higher transmission and the doubling of cases. If there are fewer hospital admissions per 100,000, the already beleaguered NHS will have to find many more hospital beds than were needed in January 2021. This is what the doctors are advising us.

The noble Lord, Lord Robathan, constantly repeats his mantra that the only deaths from Covid are in the over-80s or among those with underlying conditions. In a recent debate, he asked if anyone knew anyone under the age of 80 who had died. Last week, a dear friend died of Covid after just four days in hospital. She was much younger than I am. Another friend in his 40s, who had a lung transplant earlier this year, is back in ICU with Covid. He does not know where he caught it because he has been very careful. Is the noble Lord really saying that there should be no mitigations to keep the vulnerable safe? This is the consequence of removing all these mitigations.

My noble friend Lord Thomas of Gresford spoke movingly about his compromised immune system. I too am in this position, though for a different reason. My medical advice is not to come out at the moment.

The 800,000 clinically extremely vulnerable have not had one word of guidance in the last week. It is not good enough to say that shielding ended in July. This group is at high risk and needs advice. When will this be evidenced? I think that even the noble Lord, Lord Robathan, would recognise that some people are at high risk. Shame on the Government for not getting in touch with them at all.

Other noble Lords have spoken about those with long Covid, including children. On schools, we have been asking since last year for air filtration units in classrooms. This has only just happened in the last week. Until now, the Government have been talking about CO2 monitors, but the public health need in our schools is for air filtration units.

The first regulation is about self-isolation and moving to a daily lateral flow test. If it is negative, you can leave your isolation. We say that test and trace must remain the key defence in fighting Covid—particularly omicron—not least because of the somewhat reduced vaccine efficacy with this variant. The level of transmission of omicron is so high that this is a public health precaution. We disagree, therefore, with the fatal amendment laid by the noble Lord, Lord Robathan, which would remove this vital, basic, public health rule of self-isolation and testing.

The second SI on entry to venues and events creates a broader Covid pass, vaccine or test result, than the previously proposed vaccine pass. We have consistently opposed vaccine passports—first, for public health reasons. Importantly, vaccine passes give people a false sense of security, especially as it is possible to catch Covid and pass it on, even if you are double-jabbed. People cannot tell if their vaccine immunity is waning. We just do not like the reliance on that. We also do not want vaccine passports creeping in by the back door, as the noble Baroness, Lady Bennett, outlined. Our principal concern with this SI is about public health. This hotch-potch Covid pass is a muddle.

We agree with the use of lateral flow tests. They are highly accurate. Researchers from University College London found that they are more than 80% effective at detecting any level of Covid-19 infection. They are likely to be more than 90% effective at detecting who is most infectious when they use the test. None of us wants lockdown, particularly the noble Lord, Lord Robathan, and his colleagues, but I struggle to understand why those who do not want lockdown will not accept lateral flow tests as a mechanism to help reduce transmission.

We cannot support the noble Lord’s fatal amendment on the issue of flow tests, but we are deeply unhappy that the Government are relying on the vaccine element of the Covid pass at a time when we need to reduce transmission by the tried and tested test, trace and isolate system. So, if a vote is called, we will not support the Government’s proposals for Covid passes—although for very different reasons from those of the noble Lord, Lord Robathan.

The third SI, on the wearing of face coverings, expands the legal requirement to wear face coverings when in shops, on public transport or in transport hubs, banks, places of worship, public areas in hotels, hospitals and museums. But it does not extend face masks to hospitality and some other venues. My noble friend Lord Scriven has spoken on the need for face masks. He is absolutely right.

Liberal Democrats have consistently argued for the regular use of face masks, and for hand washing and social distancing. The WHO and our doctors and scientists still say that those three basic elements, along with test, trace and isolate, are absolutely key. This is particularly important with omicron, given how fast the number of cases is growing. So, although we want the Government to go further, we will support this SI.

There are rumours that further restrictions may come in. Can I ask the Minister whether Parliament will be recalled if further restrictions are put in place during Recess?

To conclude, the noble Lord, Lord Robathan, has argued that there is absolutely no evidence that face masks work at all, and his fatal amendment would remove the requirement for any face masks. While we would like masks in more places, we cannot vote for the removal of the requirement to wear masks, so we would vote against his fatal amendment. We believe that the noble Lord is wrong to say that this is an issue of freedom. With freedom come responsibilities to minimise spread and to keep all people safe, especially the most vulnerable. It is shameful that parts of the Government’s SIs do not do this.

But above all, I echo the comments of many Peers from all sides of the House that these SIs are chaotic and confusing—but parts of them are absolutely vital in our public health fight against Covid. The noble Lord, Lord Cormack is right that this House should not use the fatal amendment procedure, but we will continue to hold this Government to account.

My Lords, this has been a proper House of Lords debate and I thank the Minister for introducing the regulations with such clarity. I need to declare an interest as a non-executive director of an NHS hospital.

I would like to start my remarks by quoting my honourable friend Wes Streeting, the shadow Secretary of State for Health and Social Care, who said yesterday that

“it should not be for me, as shadow Secretary of State, to point out”

to some Conservative MPs, following remarks made in the media in recent days,

“that we are not living in the 1930s and that the Secretary of State and his team are not Nazis.”—[Official Report, Commons, 14/12/21; col 954.]

It is sad that my honourable friend felt that he needed to say that. Our history is peppered with examples of where we required citizens to act in a way that served both their own self-interest and the interests of others. That does not make us a totalitarian state. I believe that the public are less outraged by the fact that some obligations are being placed on them than by the antics of those who blatantly and arrogantly imagine that the obligations do not apply to them.

On these Benches we will be supporting the Government today, as we did yesterday, and we will vote with the Government if the noble Lord, Lord Robathan, chooses to test the opinion of the House on either of the fatal amendments before us. Actually, the noble Lord said that these Benches would go further than the Motions before us. That is not true—but what is certainly true is that we have tended to be two or three weeks ahead of the Government. We have said “We think you need to do this, that or the other”—and I can testify to this, having been here for nearly two years, saying this —and the Government have said “No, no, no”, and two or three weeks later that is exactly what happens.

We will act in the national interest, as we have done throughout the pandemic, putting public health before party politics, by supporting the Motions under consideration now. Our task today—as it has been throughout the pandemic—is to consider what is best for the health of our nation and how to discharge our responsibility to protect our NHS.

The noble Lord, Lord Fowler, absolutely nailed it when he said that we had to listen to the CMO, the CSO, the other scientists and the public health experts, and follow the course of action that they were recommending. This was echoed by the noble Baroness, Lady Hayman, who said that we should be listening to the advice we are given. My noble friend Lord Davies put these regulations into proportion in terms of what they are seeking to achieve. There is no doubt that sacrifices have impacted on lives, livelihoods and liberties; that is why noble Lords need to scrutinise and question how the Government are dealing with this issue, or indeed mishandling it. I say to the noble Lord, Lord Robathan, and other noble Lords that we would be having this debate today whether or not he had put down his amendments.

On Sunday the Prime Minister made a totally unnecessary broadcast which served to panic people and create worry and confusion. Presumably he was trying to re-establish leadership credibility for himself, which clearly did not work with his own Conservative Benches. The broadcast was irresponsible in its lack of preparedness and clarity. As well as displeasing Mr Speaker, as the Prime Minister tends to do, it held Parliament in contempt yet again.

The lack of clarity is clear, for example, as NHS England and the Prime Minister have made conflicting promises on the booster rollout, leaving plans to deal with the rapid spread of omicron mired in chaos and confusion. On Sunday evening, the Prime Minister said:

“Everyone eligible aged 18 and over in England will have the chance to get their booster before the New Year.”

However, the NHS has promised a different target, pledging to offer all adults the chance to book a booster rather than receive one. Pressed on the conflicting advice, NHS England said:

“The NHS vaccination programme will offer every adult the chance to book a COVID-19 booster vaccine by the end of the year”.

Perhaps the Minister could clarify for the House which it is. If the Prime Minister has promised 1 million vaccinations a day, how is that supposed to be achieved?

I think it was even worse for local government than for the NHS. A local council leader in London, with a London-wide strategic role, said that 72 hours’ notice would have been helpful. It is not the need to up the vax and testing capability but the lack of planning—hence no tests, no testing ability and vaccinations not available. There was not one mention of local government in the Statement we heard on Monday. Had the relevant Government departments talked to local government, and when did they do that? It begs the question: did the NHS even know about Sunday’s statement before it was made?

We cannot yet be sure about the severity of the omicron variant, but we can be certain, as many noble Lords have said, that it is spreading faster than any other variant. Even if a smaller proportion of omicron victims are hospitalised, the rapid advance of the virus through the population could see large numbers of people admitted to hospital during the months in which the NHS is already under the greatest pressure. The winter months present pressures on the NHS in any normal year, and we know that this is far from a normal year.

The NHS is contending with winter pressures, a serious backlog, the delta variant and now this variant. Many of the challenges are understandable, given the unprecedented challenge of the Covid-19 pandemic, but we have got to be honest and acknowledge that confronting them has been made much harder because the country went into the pandemic with waiting lists already at 4.5 million, 100,000 NHS staff vacancies and a shortage of 112,000 staff in social care. My noble friend Lord Rooker was quite correct on that. We support the NHS and care services in the task they have been set. Let me say from these Benches to every NHS worker, every GP, every pharmacist, every public health official in local government, every member of the Armed Forces and every volunteer stepping up to meet this enormous task that we are with them 100% and thank them again.

The measures put forward for consideration today are an attempt to slow the spread of the virus, while trying to protect Christmas so that people can enjoy the festive season. They are about limiting interactions in the workplace, wearing face coverings in settings where the virus finds it easiest to spread, testing before we attend large indoor gatherings, and getting behind the booster rollout to ensure that everyone who can be protected is protected.

The goal in the end must be to learn to live with the virus. That means effective vaccination, antiviral treatments and public health measures that have a minimal impact on our lives, jobs and businesses. No one enjoys wearing a mask, but it is nothing compared with the costs that more draconian restrictions have for our lives, livelihoods and liberties. Masks are simply a price worth paying for our freedom to go out and live our lives during this pandemic.

On the introduction of a Covid pass for large indoor gatherings, the Labour Party argued against vaccine passports without the option of showing a negative test. Further, we argued that such passes should not be required for access to essential services. On both counts, I am pleased to say that the Government listened and amended the proposals, so we will support this measure today. I regret that colleagues on the Liberal Democrat Benches do not feel able to do so, but let me be clear: we in the Labour Party support Covid passes because we support British businesses. We want to give people the confidence to go out and about—to go to venues and to the theatre—despite the presence of this virus.

With passes and lateral flow tests, venues can operate at 100% capacity. Look at Italy, France and Denmark—countries with strict Covid rules. All have seen their retail and recreation sectors fare far better than those in the UK. However, for the passes to work, people must be able to access tests readily and easily. We cannot continue in this situation where tests are out of stock, so I ask the Minister whether this has been resolved or when it will be.

For months, we have called for workers to be given the flexibility to work from home and we support the guidance to work from home where possible. However, how does the Minister explain the contradiction that many noble Lords have asked about, which is why, at the same time, the Government are allowing them to go to Christmas parties? By limiting the interactions people have at work and by lowering infections, we hope to preserve their ability to go ahead with social events anyway.

Noble Lords have talked about ventilation in schools. We know that young people have borne the brunt of this pandemic, and we owe it to them and their education to support them and staff to make sure our schools are properly ventilated. The Christmas holidays seem to us to be an ideal time to get young people vaccinated. When does the Minister expect to know about this matter and share it with the House?

I hope this is my last contribution on Covid this year. I therefore end by wishing all noble Lords a safe and happy Christmas.

I start by thanking noble Lords for their valuable contributions to this debate. They showed the very best of debate in this place, in the range of views covered—some political, some scientific and some challenging the Government on constitutional issues. This demonstrates the importance of these discussions and I welcome all contributions, whether or not I agree with them. That is the purpose of debate and discussion.

I remind some of my noble friends behind me and other noble Lords why we have acted now and gone to plan B. We want to slow the spread of the virus, after looking at the replication rate; we want to buy time for more people, especially the older and more vulnerable, to get their booster dose; and we want to give our experts crucial time to gather and understand the data about omicron.

Noble Lords, and indeed noble friends, look at the experience of South Africa. As the noble Lord, Lord Birt, and others have said, its experience is different. It has a younger population, with an average age of about 29, when our average age is in the mid to high 40s. Given our experience at the beginning of the Covid pandemic, when a disproportionate number of older people died, surely it is right that we collect data to make sure that the most vulnerable people are safe before we go forward.

I turn to some specific points raised by noble Lords. As I said, my noble friend Lord Robathan asked about the data from Africa, which we will continue to monitor. We will monitor whether it is different or milder here.

The noble Baroness, Lady Bennett, mentioned the risk of exponential growth and I thank her for making that point. We do not want to see waiting times and patient numbers starting to overwhelm hospitals. By the time we had waited for exact data, it might be too late. The noble Lord, Lord Davies, rightly spoke about the limited data available. I assure the House that we will continue to review the data as it comes in.

As we have looked at the response, we have always tried to strike the right balance and act in a proportionate way. We have looked at the scientific evidence, including evidence from different scientists—they have not always agreed. We have looked at the differences within the health profession and at the concerns about lockdown and the effect of some of the restrictions on the mental health of our nation. We have also looked at the unintended consequences, including all the operations and diagnoses that have been delayed. I admit that it has been a difficult balance and that, whatever we do and whichever way we come down, we will always have critics—rightly so—but we have tried to get the balance right.

My noble friends Lord Robathan and Lady Foster raised concerns about the restrictions on social services, elective care, hospitality and the wider economy. Elective care recovery remains a priority and I have previously announced increased investment in tackling the backlog and waiting lists. As I have said previously, between 70% and 80% of those on waiting lists are waiting for diagnoses, rather than surgery. Of those waiting for surgery, about 80% do not need to stay overnight as their surgery can be completed without an overnight stay.

We need to protect our health service from the pressures caused by the new variant of Covid-19 and prioritise vaccinations and urgent appointments. My noble friend Lord Robathan and the noble Baroness, Lady Fox, asked why we are taking action now. On Sunday, the UK’s Chief Medical Officer increased the UK alert level from 3 to 4 because of the rise in cases and because the doubling rate is every couple of days. That is why it is right to act now, while we collect more data.

My noble friend Lord Dobbs asked several questions about cases of the omicron variant in the UK. While the number of hospitalisations and deaths from omicron may not seem troubling to some now in comparison with previous waves, the measures we have implemented to stem hospitalisations and deaths have been introduced to make sure that we do not overwhelm our health service.

The noble Lord, Lord Scriven, asked about the value of vaccine or test certification in the light of omicron. This is why it is so important that everyone gets boosted now and why my right honourable friend the Secretary of State set out that boosters will be included in the definition of a full course of vaccination once all adults have had the opportunity to get the jab. For now, the definition remains at two doses, but once a sufficient proportion of the population has had the booster vaccine, it will move to three. Vaccine effectiveness is likely to be higher for preventing severe rather than mild disease and, of course, it continues to be vital in relation to the high levels of delta cases which continue to circulate.

I say to the noble Baroness, Lady Fox, that certification is not a vaccine passport. We believe it is important that everyone has the option to access settings and that is why, alongside vaccination, a recent test from within 48 hours and medical or clinical trial exemptions will also be accepted.

My noble friend Lord Robathan asked about evidence on the effectiveness of face coverings. Evidence from the UK Health Security Agency respiratory evidence panel suggests that all types of face coverings are, to some extent, effective in reducing transmission of Covid-19, through a combination of source control and protection for the wearer. According to SAGE, face coverings are likely to reduce transmission through all routes by partially reducing the emission of and/or exposure to the full range of aerosols and droplets that carry the virus, including those that remain airborne and those that deposit on surfaces.

The noble Baroness, Lady Walmsley, and the noble Lord, Lord Scriven, raised the issue of compliance with regulations concerning face coverings. When face coverings were previously mandatory, our assessment showed that compliance was high. We are grateful for the public’s willingness to comply with the rules, which help to keep everybody safe, and expect similarly high levels of compliance as the public get used to these new requirements. Turning to enforcement, the police can enforce the law and issue fixed penalty notices. This includes the British Transport Police, who work and operate on the railways.

The noble Baroness, Lady Walmsley, also queried the value of certification. Introducing vaccine or test certification will help reduce risks in associated settings when compared with no intervention. It has been correctly stated that a negative test result provides some assurance that the individual is not infectious when the test is taken and for a short time afterwards. However, vaccine effectiveness is likely to be higher for preventing severe rather than mild disease for omicron and of course continues to be vital in response to the high level of delta cases.

The noble Baroness, Lady Walmsley, asked about compliance and enforcement of daily testing. I hear her concerns. To implement daily testing for contacts as quickly as possible, we have taken a pragmatic approach. As in all these things, we have once again to address a balance, but we strongly advise that people follow the advice to take daily lateral flow tests. Noble Lords will agree that most people will want to do the right thing to protect their loved ones and communities, with peer pressure from friends and family to help manage the pandemic so we can all live as normal a life as possible.

The noble Lord, Lord Bilimoria, rightly noted the importance of lateral flow tests in our pandemic response and the latest evidence of the efficacy of oral antivirals. The UK was the first country in the world to approve a Covid-19 antiviral; we are now also the first to begin rolling out oral antivirals in the community. UK patients have been receiving molnupiravir through a new national study called PANORAMIC, which opened on 8 December. I strongly encourage all eligible patients to sign up for this national study, to help the UK once again gather more data on how antivirals work in a predominantly vaccinated population.

The noble Baroness, Lady Walmsley, and the noble Lord, Lord Rooker, raised concerns about testing capacity in the face of increased demand. I reassure the House that there is no shortage of lateral flow tests. The issue has been one of distribution. I was in a meeting earlier this week with my right honourable friend the Secretary of State; he said that we have the numbers and the orders, we just have to make sure that we get them out everywhere. Everyone who needs a lateral flow test will be able to collect them at a local pharmacy, at some community sites and at some schools and colleges. Tests should become available for delivery every few hours. We are issuing record numbers of rapid test kits to people in zones across the country and are urgently working to expand our delivery capacity and improve distribution to the right places.

The noble Lord, Lord Rooker, my noble friend Lord Robathan and the noble Baroness, Lady Fox, asked what the Government are doing to protect the health service, not only in the context of Covid. The Government are committed to giving the NHS what it needs. In previous pronouncements in this place, I have gone into details on some of the investment into the new UK-wide health and social care levy, which provides £23 billion for the NHS, so I will not go into further detail on it here.

I echo the thanks of the noble Baroness, Lady Bennett, to the noble Lord, Lord Thomas, for his moving words and the importance of these measures in protecting the most vulnerable in our society. The noble Lord, Lord Fowler, spoke eloquently about the expertise of scientific advisers and their invaluable input throughout the pandemic, based on his own experience of championing treatments for AIDS over many years. I completely agree with the noble Lord and thank him for his advice. If he is ever tempted to jump back on to our Benches, he would be more than welcome—I am not sure I have done him any favours there.

The noble Baroness, Lady Hayman, spoke about the importance of this legislation given the balance between the threat posed by the virus and the threat to disruption of NHS services. I agree that we must balance these things; each of us may see that balance differently, and we must make a decision based on the balance of different factors. We will not all come to the same conclusions, but I hope noble Lords will acknowledge that we try our best to get the balance right—we may not always get it right, but we try.

I also thank noble Lords for their incisive, impassioned contributions to this and previous debates on other Covid-19 legislation. It would be remiss of me not to reply to the noble Baroness, Lady Brinton, on the immunosuppressed and shielding. The decision to end shielding was based on there being far more available information on the virus and what makes individuals more or less vulnerable. I hope I can give her and some of the charities we are talking to more information at our meeting tomorrow. I am grateful to Jonathan Van-Tam for making himself available for that meeting to discuss these issues, and I will make sure that noble Lords are aware of it.

On ventilation, as raised by the noble Baronesses, Lady Bennett, Lady Brinton and Lady Thornton, we have provided CO2 monitors to state-funded education settings. We continue to look at ventilation in education, from not only air units but open windows. However, we also understand, as many noble Lords have said, the pressures of lockdown and restrictions on children. We have seen an increase in mental health issues among the very youngest, as among those of many other ages. We understand that that is all part of the decision when getting the balance right.

A number of noble Lords spoke about freedom, including my noble friend Lord Hannan and the noble Baronesses, Lady Fox and Lady Hayman. With freedom comes responsibility. I shall be honest and say that I am someone who has been described as a libertarian or a classical liberal, and I quite often use the word “freedom”—but I have to ask a question of my noble friends who think that these measures impinge on their freedom. I believe that we should be allowed to do what we want as long as we do not impinge on the freedom or the rights of others, and do not engage in or advocate violence against individuals, their family or their property—but I fail to see what liberty is impinged on by the requirement to wear a mask. Is it the liberty for me to breathe on other people, and is it really such a bad thing if we impinge on that liberty?

So let us get away from the textbooks and look at it pragmatically. Let us get the balance right. I understand that many noble Lords will see some of the measures as impinging on freedom, but let us put this in context. Many noble Lords have spoken about freedom, but it does not include the right to spread the virus if you have it, and I hope that we all understand that with freedom comes responsibility.

I thank noble Lords for demonstrating the wisdom that exists right across this House and I hope that, despite the many reservations that have rightly been raised, they can support these measures today. I commend the regulations to the House.

Motion agreed.

Health Protection (Coronavirus, Restrictions) (Entry to Venues and Events) (England) Regulations 2021

Motion to Approve

Moved by

That the Regulations laid before the House on 13 December be approved.

Relevant documents: Instrument not yet reported by the Joint Committee on Statutory Instruments

Moved by

My Lords, it gives me no pleasure, funnily enough, to oppose the Conservative Government whom I support, but I have to say that I am concerned. I am also rather concerned that a lot of people have said that it is wrong or even disgraceful to put down an amendment to something and that we should in some way blindly follow, to use the words of my noble friend Lord Dobbs, the Government and not question them and ask them to justify what they are doing—which is what I am doing.

My noble friend Lord Cormack referred to this being the second Chamber. Surely the second Chamber of Parliament should be doing something useful about asking the Government whether they have got it right. The noble Baroness, Lady Hayman, accused me of being extremist—I think that was the term she used. I do not think it extremist to ask to see the evidence on which government policy is based, and that is really what I am saying.

I do not pretend that this has been easy for the Government; it has been extremely difficult for them. They are under huge pressure, and international pressure as well. I do not doubt either that Covid is an extremely unpleasant disease that is killing people. I believe that I have had it. The ultimate irony would be if, having had three vaccinations, I caught it again over Christmas. I hope that that would bring a wry smile to some of those who have opposed me rather than anything else, but of course it would be an ultimate irony—I could easily do it; apparently, we can catch it a second time.

I of course agree with the Minister about being pragmatic, but I want a proportionate response and I do not think that “Covid passports”, as I call them, are a proportionate response. The noble Lord, Lord Rooker, said we should not divide the House if we are not going to win. Well, I want to register concern, and a lot of people would wish to register concern with this government policy. I am not satisfied with it. So I shall divide the House on what the noble Lord, Lord Scriven, referred to as a “chocolate teapot”. But before I do so, perhaps I may also wish a happy Christmas particularly to my noble friend the Minister and those on the Front Bench, as well as to those opposite, some of whom have not entirely agreed with me today or in the past.

Never? Well, actually I thought the noble Baroness, Lady Thornton, was going to agree about the importance of having the debate—but obviously not. I wish to test the opinion of the House.

Motion agreed.

Health Protection (Coronavirus, Wearing of Face Coverings) (England) (Amendment) Regulations 2021

Motion to Approve

Moved by

That the Regulations laid before the House on 9 December be approved.

Relevant document: 24th Report from the Secondary Legislation Scrutiny Committee. Instrument not yet reported by the Joint Committee on Statutory Instruments.

Tabled by

Amendment to the Motion not moved.

Motion agreed.

Sitting suspended.

Construction Sector: Roadmap to Zero Retentions

Question

Asked by

To ask Her Majesty’s Government what steps they plan to take to support the implementation of Build UK’s Roadmap to Zero Retentions, seeking to eliminate cash retentions in the construction sector by 2025, further to its endorsement by the Construction Leadership Council on 9 December 2019.

My Lords, the Government are working in conjunction with the Construction Leadership Council to support the implementation of the Roadmap to Zero Retentions. Work is being undertaken by the business model workstream of the council. This includes building on the work of the Get It Right Initiative, to drive improvements in quality and reduce the need for retentions through the construction industry and exploring alternatives to cash retentions.

My Lords, the Build UK roadmap and its endorsement by the Construction Leadership Council demonstrate a welcome degree of consensus across the sector that action is urgently needed to eliminate the pernicious practice of retentions, as well as outlining a route to doing so. The Minister’s response indicated a sort of waiting game that retentions might die out of their own accord. There is a general feeling that legislation is needed to bring an end to retentions, so I ask him: what is the plan to reach the 2025 target date, and when will legislation be introduced to achieve it?

I understand that the noble Lord has strong feelings on this issue; indeed, we met to discuss this a few months ago and he has previously asked Questions on it, so I know his passion on the subject. The problem is that there is no general feeling that legislation is required. Some people passionately believe in the need for primary legislation, but obviously there is some opposition as well. We continue to believe that the best way forward is for an approach that all sides can agree on to be taken forward by the Construction Leadership Council.

I thank the Minister for the way in which he has engaged with noble Lords who have taken an interest in this subject. I recall that he told us of the guidelines that have been issued to departments on taking out construction contracts. I ask him to spend a bit of time in the remainder of this financial year chasing up those government departments that are not yet implementing the guidelines, so that in the coming financial year every contract that is signed by a government department has this retentions clause removed.

The noble Lord makes a very good point. The vast majority of government departments no longer use retention clauses. The main exception to that is the Department for Education, and I continue to urge it to follow the lead of other departments in this regard.

My Lords, in April, eight months ago, the Government stated:

“The Government, in conjunction with the Construction Leadership Council, is working to identify a sustainable strategy on retentions for the whole construction sector.”

Will the Minister update the House on where the strategy is? There may not be legislation, but is the strategy coming out?

There are a lot of different factors to take into consideration. This is a complicated area with widely differing views across the sector. In considering the abolition of this contractual practice, there would need to be the development of alternative surety products for the whole industry. That could mean the adaption of existing products, such as performance bonds, or the introduction of new products. It may also involve a range of different products. It is a complicated area, but we continue to take forward work with the Construction Leadership Council.

My Lords, I regret that I was not able to come to the briefing that the Minister gave. It strikes me that this distorts all the figures that come out of the building industry, because even smaller and very trustworthy builders start to pack their quotes in case of retentions. When you look at this as part of the economy, the practice of retentions distorts the whole picture. Getting rid of retentions would allow the numbers to be better and clearer.

I agree with the noble Baroness that if we could achieve that, it would be a great result. One of the workstreams that the Construction Leadership Council is taking forward, as I mentioned in my Answer, is based on the Get It Right Initiative, which would see firms with a demonstrable trade record of good performance and quality products not having retentions levied on them. In my view, that is a hopeful development.

I am delighted to see that the noble Lord has turned up well dressed to ask such a noble question—he puts the rest of us to shame. My understanding is that the Ministry of Defence is one of the central government departments that has done much to abolish the use of retentions in its contracts.

I will try again: could the Minister say whether he agrees or disagrees that retentions in the construction industry are an appropriate or proportionate mechanism for ensuring quality and fair payment?

I can answer that question by saying what we have done in central government in my department: we have substantially abolished them. Most government departments have now got rid of them and only the Department for Education is a laggard. We would be better to do without them, but that is not the same as moving towards a statutory ban.

My Lords, as somebody who initiated a review of retentions when on the Front Bench over five years ago, I have one simple question: does the Minister accept that the delay in dealing with retentions in the construction industry is injurious to the industry and hence to the national interest? Will it be possible to now have more rapid action?

As I said in response to a previous question, I agree with my noble friend that we need to try to drive some action in this area. But a statutory ban is a very blunt instrument, and it would be difficult without some alternative form of surety being put in place, so we are working with the industry to try to develop those models. My noble friend will know the issue very well from the work that she did.

My Lords, the Minister mentioned the lack of consensus in this area. There is never going to be a complete consensus between one party which is withholding funds and the other party which is having them withheld. This is why action is needed by government to address the issue. I accept that the complete banning of retentions is a major step but that is why action is needed now to devise a path towards that eventual goal.

The noble Lord is partly right and there will always be some who will oppose it, but the Build UK Roadmap to Zero Retentions has been developed and is supported by its many clients. The construction firms and trade associations within the membership of Build UK, the Construction Products Association and the Civil Engineering Contractors Association, are supporting this initiative. There are some hopeful signs of consensus going forward.

Alternative Education

Question

Asked by

To ask Her Majesty’s Government what assessment they have made of the number of young people in alternative education.

My Lords, in January 2021 there were 12,800 pupils whose main registration was in a state place funded alternative provision, or AP. A further 9,200 pupils were dual subsidiary registered in state place funded AP, meaning their main registration was at another school. Additionally, local authorities arranged 32,700 placements for children and young people in other independent or non-maintained registered and unregistered settings. Around 59% of these were in independent and non-maintained special schools, many of which are not AP placements.

My Lords, of the 40,000 or so young people in alternative provision it is widely recognised that once they finish their schooling, many leavers—particularly those with special educational needs—still have anxieties of a large institutional environment. The only funded progression opportunity that exists at entry level would be a further education college. Will the Minister look at supporting these year 11 leavers in alternative provision and pupil referral units who require time to develop and progress towards level 2 with post-16 alternative education funding?

I recognise the work the noble Lord has done in this really important area. He is right that the percentage of young people leaving alternative provision who go on to be NEET is far too high. Over the last two years we have provided £15 million of funding for the AP year 11 transition fund, which allows settings to support year 11 students to transition into sustained post-16 destinations. That fund supported over 6,000 pupils, which is about 55% of pupils in year 11.

My Lords, can the Minister tell us where we are up to on the register? She will remember, I think, that some two years ago the Bill on home education passed through this House with support from all sides. I have had letters from Ministers since then saying that it is going to proceed, but it never actually does. It might be a good idea if they at least told me what is happening; it would be quite nice if they told the rest of the House as well. So, can we have an answer to that question: what is happening to the register?

The noble Lord will be aware that we consulted on the register, and he will no doubt be delighted to know that we have responded to that consultation. From the local authority perspective, the consultation showed a clear call for a register, which we support. There was concern expressed by parent groups who educate their children at home. We absolutely understand that many parents go above and beyond to do that, but the safety of children and the fact that we know where they are is all-important.

Is it possible to accept the fact that a lot of people like myself have had to put their children through alternative education largely because things such as dyslexia are not really accounted for? We have had to follow the Steiner school system, which is about helping people with those problems. That is one of the major reasons why there are so many children going through alternative education.

I think the noble Lord uses the term “alternative education” in a slightly broader sense than the noble Lord, Lord Storey, does, but he is absolutely right that it is critical that we support teachers, particularly in mainstream schools, where the majority of children with special educational needs study and learn, to identify as early as possible dyslexia and other similar issues.

My Lords, I assume that the Government agree that the number of children in alternative education is less important than its quality. Can the Minister tell us not only how many Muslim children attend our 2,000 madrassas—which are not inspected by Ofsted—but how the Government are satisfied that radical Islam is not being taught in them?

I can do my best to get the numbers on the noble Lord’s first question, but we need to be extremely careful not to mix up what is a school, which is regulated by Ofsted, and what settings provide additional education. We are tightening up the definition of a school and will be looking for a legislative opportunity to bring that forward.

My Lords, returning to home schooling, I have been very struck by the number of people I have met in the last year or two who have decided to take their children out of mainstream schooling to educate them at home—often, from what I hear, with spectacular academic results. But what assessment has been made about the trends of whether this is increasing, and what assessment has been made about the reasons why people are doing this? We need to listen to what is happening at a grass-roots level to understand this phenomenon.

The right reverend Prelate asks about the trends. One of the reasons we plan to introduce a register of home-educated children is exactly that: it is very difficult to track those trends today. There has been a lot of anecdotal evidence about the increase in the number of children who are electively home educated during the pandemic, but we do not have hard data on that, and we need to. As the right reverend Prelate knows, there are many reasons why parents choose to take their children out of school. Some children will benefit from being home educated, but we also know—to go back to the Question from the noble Lord, Lord Storey—that there are parents who are concerned that their children will end up in alternative provision and want to avoid that, and therefore choose to educate them at home.

My Lords, two and half years have now passed since the Timpson review of school exclusions presented its report, following which the DfE confirmed that it would hold schools accountable for the outcomes of their permanently excluded children—yet a report that the department itself commissioned in May showed that in some multi-academy trusts, schools were refusing to engage with alternative provision. Can the Minister say what instructions have been given to regional schools commissioners to ensure that all schools in multi-academy trusts meet their responsibilities with regard to alternative education provision, which, of course, looks after the high needs of young people?

With regard to the Timpson review, where the noble Lord started, one of the vehicles through which we will deliver on all of the recommendations that we have accepted in the Timpson review will be the SEND review, which, as the noble Lord knows, we plan to deliver in the spring. We have already established behaviour hubs with funding of £10 million. We have included training in the early career framework around behaviour and we are clear in all our guidance that off-rolling students with challenging behaviour is unacceptable.

My Lords, the link between special educational needs—particularly undiscovered special educational needs—and children being excluded is very well established. When we get this review into SEND, how much work has been done in identifying what is needed in teacher training and professional development to spot at least the most commonly occurring conditions? Will that be a key part of the review and will this be taken into account when looking at what will happen to the high numbers of pupils who are being excluded?

The noble Lord is right. About 83% of children in alternative provision have special educational needs and 24% of them are on an education, health and care plan, compared with 4% in the wider population. We will be looking at all the best evidence and research to make sure in the SEND review that we deliver for these children who, for the most part, have had a difficult start in life and we need to support them in the best way we can.

My Lords, given that the reason for young people being in alternative provision is that they have been less than successful in mainstream settings and given that academies and free schools do not have to follow the national curriculum, does the Minister think that there is a reason to look at the national curriculum so that more schools, including all our academies, might think it was fit for purpose?

I do not think that there is any suggestion that the educational quality in our academies is not fit for purpose. I hope the noble Baroness would agree that it is crucial that when we plan provision in an area, we first consider our most vulnerable children—of whom this is an important group—and make sure that they get the education that they deserve.

International Day of Democracy

Question

Asked by

To ask Her Majesty’s Government, further to the speech from the Secretary of State for the Foreign, Commonwealth and Development Office on 8 December at Chatham House on Building the Network of Liberty, what plans they have to support the International Day of Democracy.

My Lords, democracy and freedom are at the heart of the Foreign Secretary’s vision for a “network of liberty” that would use partnerships, technology, trade and security to promote democratic values. We will be working closely with international partners and civil society, including around the International Day for Democracy in September, to advance the frontiers of freedom.

My Lords, last week my right honourable friend the Foreign Secretary said that she was sure she would be able to succeed in setting up the new

“network of liberty that spans the world.”

What progress do the Government believe will have been made in forming that network by the next International Day of Democracy in September 2022, and what progress do the Government expect members of that network to make in preventing further aggression by Russia against Ukraine?

My Lords, my noble friend, of course, is correct on both points in terms of the detail she asks for. First, on the network of liberty, it is very much what we all stand for: the principles of democracy, freedom and liberty. The UK can show quite direct leadership over the next year through the various events we are hosting; for example, on human rights, ranging from the FoRB conference to the LGBT conference. There is also our leadership on media freedom as we build towards strengthening democracy and key pillars in the build-up to the next democracy summit.

Secondly, on Ukraine, my noble friend will be aware of the recent meeting convened by my right honourable friend of key Ministers on the issue of Ukraine and standing together against Russian aggression. However, as I have said before from the Dispatch Box, right now in Europe, particularly with the concerns around Ukraine and recent concerns in a country that my noble friend knows well—Bosnia-Herzegovina—Russian aggression needs to be curbed and my right honourable friend the Prime Minister said as such in his conversation with President Putin on 13 December.

My Lords, in advance of this weekend’s sham elections in Hong Kong, will the Minister call for the release of Hong Kong’s legitimate and democratically elected representatives, who are incarcerated in prison? Following what the Foreign Secretary calls China’s “ongoing breach” of the British-Sino declaration, when do the Government intend to raise an objection under the Vienna Convention on the Law of Treaties—and would not that send a much stronger signal about how to safeguard liberty and democracy than allowing states to trash treaties with no consequences whatever?

My Lords, I agree with the noble Lord, which is why we have consistently called for adherence to the agreements that China has signed. Indeed, the one that it signed when it came to the issue of Hong Kong was an agreement that has been lodged with the United Nations —and it needs to stand up and fulfil its international obligations. On the issue of calling out for the full release of those who have been detained, I agree with the noble Lord, and we consistently do so publicly and bilaterally with China.

Not to take away too much from anything that has been said, before we look too much at the mote in other people’s eyes, might we just look at the beam in our own? The attempt to undermine our human rights legislation will not be received well around the world. We have two reports here written by Members of our House with between them 500 years’ service in Parliament, one called Democracy Denied? and the other Government By Diktat. Can we do something about our own democracy before we preach too much to others?

My Lords, I assure the noble Baroness that, when it comes to the world stage, we have nothing to preach about. I often say that we need to ensure that we make it clear, when we talk to others on a range of the key pillars of democracy, that our own journey was something of a struggle, to get to where we are in 2021. The job is never done. One needs always to reflect on one’s own backyard before we start talking about the importance of democracy elsewhere. That said, I believe that the United Kingdom is and remains a real beacon of democracy around the world, and we continue to share our experiences, lessons and history with others to see how we can strengthen democracy globally.

My Lords, it is fitting that we should discuss the International Day of Democracy as we remember the legacy of Nelson Mandela, who was laid to rest eight years ago today. Does the Minister agree that we could best honour his memory by supporting democratic Governments in southern Africa and standing with those in the region and across the world who strive for democracy against repressive regimes? Will he urge the Prime Minister to send a clear and unmistakable signal of that solidarity by visiting Zambia at the earliest opportunity to meet its recently elected President and visibly demonstrate our support for the people of Zambia and its democracy?

My Lords, I totally agree with the noble Lord. It is vital that we stand with democracies, particularly fragile or infant ones around the world, to see how best we can support them. The noble Lord talks about Zambia, and of course we have worked very closely with other key partners in ensuring that democracy not only prevails but is sustained. Indeed, there are notable achievements; most recently, for example, further afield in Africa, in Sudan, the continuing lobbying has resulted in a sense of the restoration of the legitimate Government—but you can never take your eye of the ball, and the noble Lord makes some very valid points.

The network of liberty is an extremely powerful concept, but does it not exist to some extent already? Is not the growing Commonwealth co-operation on security and defence, which is developing all the time, already part of that network—and is it not an important part of the future story?

My Lords, I agree with my noble friend. Indeed, my noble friend Lady Anelay and I had a brief discussion on this very question about 24 hours ago. The United Kingdom has been over time a strong beacon in supporting democracy around the world, and the Commonwealth network is a huge example of how we strengthen democracies and human rights.

Does the Minister agree that the Council of Europe is an important agency for promoting democracy? Is it not significant that Belarus is the only country in Europe not a member of the Council of Europe? Following the illegitimate election of President Lukashenko, what are the Government doing to try to ensure the return of democracy in Belarus?

My Lords, on the noble Lord’s first point—it is not often that I say this to him—I totally agree with him. He knows my views on the Council of Europe. On Belarus, the United Kingdom has worked very strongly and closely with key partners, including the G7, in calling out the flagrant betrayal of democracy and the continued reliance on Russia. It comes back to the point that my noble friend Lady Anelay raised about Russia and Russian support. It is therefore important that we build alliances, strengthen coalitions and co-operation, and send a clear message to Russia that its aggression, particularly in Europe—but also elsewhere around the world—will not be tolerated. In doing so, however, we must build alliances and partnerships.

My Lords, will the Minister tell the House whether we were consulted before last week’s summit of democracies about the division between the democratic sheep and the undemocratic goats? Did we endorse the choice made by the United States?

My Lords, while the United States played the role of the shepherd, I assure the noble Lord that we were very much not just part of the flock, but part and parcel of the decision-making and setting of the agenda of the democracy summit. I myself met with Uzra Zeya, the lead Under-Secretary of State for this summit, and discussed in detail issues of media freedom and illicit finance, which were very much part and parcel of the discussions at the summit.

My Lords, in her speech, the Foreign Secretary said she would be launching the new development strategy in the new year and that this will focus on providing women and girls with the freedom they need to succeed. Malnutrition is the single largest cause of death in women worldwide and is linked to 45% of the deaths of all children aged under five. Can the Minister explain the Government’s failure to make any financial commitment to this month’s Nutrition for Growth Summit? This is a summit that this country initiated and led on, but it is not now providing leadership on it.

My Lords, on the noble Lord’s point about the international development strategy, yes, that is being worked on and we are looking to publish it early next year. The points that the noble Lord raised about nutrition will be very much integrated into our strategy. The noble Lord talks about the important leadership we have given on the agenda for the summit on nutrition. I accept that, whereas previously we have been able to give quite specific financial support, on this occasion—due to some challenges that we faced with the reduction in ODA spending—we have not been able to provide support in the manner that we have done previously. However, that does not take away from the fact that nutrition will part and parcel of our integrated strategy on development across the world.

My Lords, the rule of law must apply in a democratic country, along with the freedom of the press. That does not happen in Zimbabwe. Will the Minister and the Government condemn the fact that Covid is being deliberately used in many countries, particularly Zimbabwe, to stop by-elections and the normal democratic process?

My Lords, I absolutely condemn such actions. The use of the Covid pandemic as an excuse to suppress human rights and democratic rights around the world is all too apparent. That is why we need the kind of alliances that I have just talked about and that my right honourable friend illustrated in her recent speech. Specific to Zimbabwe, as the noble Baroness will be aware, we have also used our new, autonomous sanctions regime to ensure that those who commit egregious abuses of human rights are held to account.

Sugar Beet: Neonicotinoids

Question

Asked by

To ask Her Majesty’s Government whether they are considering an emergency application for the use of neonicotinoids on sugar beet; and if so, what consideration they will give to the advice of (1) the Health and Safety Executive, and (2) the Expert Committee on Pesticides.

My Lords, I declare my farming interests as set out in the register. An application for the emergency authorisation of Cruiser SB, which contains a neonicotinoid, has been received and is currently being considered against the strict, legal requirements for emergency authorisation. The Health and Safety Executive’s assessment, the advice of the expert committee on pesticides and the relevant evidence included in the application itself are all carefully considered as part of the decision-making process.

I thank the Minister for that reply but let us be clear what we are talking about: this pesticide is lethal to bees and other insects, and it leaches into the soil, causing long-term damage to wildlife. During our deliberations on the Environment Bill, the Minister, the noble Lord, Lord Goldsmith, pledged to work “harder and faster” to address the “dramatic decline in pollinators”, and confirmed that the scientific advice on the damage caused by neonicotinoids was “correct”. Does the Minister accept that any emergency authorisation would make a mockery of previous ministerial assurances? Does he also accept that the use of these toxic pesticides has no place in our sustainable farming plans for the future?

The noble Baroness will be pleased with the progress made that will make these sorts of debates unnecessary in future years. The development of new, resistant strains and the work that has been done, not least at Rothamsted, will mean that we will not have to have this debate in future. We are absolutely committed to protecting wildlife, particularly pollinators—we understand their value—and these decisions are taken in a balanced and careful way.

Will my noble friend assure the House that all other alternative treatments will be deployed on such occasions as this? In particular, can he update the House on where we are with the organic production of sugar beet? I understand that there are alternative treatments, such as breeding aphids that will actually attack the beetle causing the damage to the sugar beet.

The concept of integrated pest management is hardwired into our 25-year environment plan and it is one of the standards in the new sustainable farming incentive, which is the first scheme we are announcing as part of environmental land management. So, absolutely, it is vital. There have been applications this year for any derogations for organic farmers.

Will the Minister make it clear to the House that neonicotinoids are injurious to the health of bees and other pollinators and ought not to be used? What are the Government doing to provide alternatives to these compounds and can he tell us specifically what financial contribution the Government are making to sort this out?

Legislation will come forward—next year, I hope—on gene editing, which is a key measure in finding alternatives to this sort of problem. We are talking about a very small percentage of the area where neonicotinoids were used prior to the 2018 ban, to which the Government are absolutely committed. We are applying very strict conditions—if we go ahead with this; we have not yet made a decision. The last time this derogation was made, those conditions were not met and this spray was not applied. We are a long way from allowing this to go ahead. If it does, it will be under very controlled circumstances.

My Lords, the forecast of virus yellows levels in the 2021 sugar beet crop, produced on 1 March, predicted that 8.37% of the national sugar beet area would be affected by the end of August 2021. As the threshold for the use of neonicotinoids is 9%, can the Minister say whether this threshold has actually been breached and, if not, why are the Government considering emergency neonicotinoid use?

If we did consider giving this permission, we would then have to apply thresholds. They may be different from the thresholds we applied last year. The noble Baroness is absolutely right: that threshold was not reached and so no seed dressings were applied. I hope very much that that will be the case this year.

My Lords, the Minister said that the Government have not yet made their decision, and referred to the advice from the Health and Safety Executive and the Expert Committee on Pesticides. I invite, encourage and ask the Minister to consult, as part of his decision-making, a body such as the Royal Society of Biology, the expert professional body in this field, which is full of an enormous amount of expertise—and, moreover, like other scientific bodies of this kind, has a duty under its charter to serve the public interest. Will he consider approaching it for advice?

We are open to any advice. There are people from the Royal Society, Rothamsted and many other organisations that provide information, much of which was based on the ban that we introduced in 2018 and any of the conditions that we might make for exemptions this time. The noble Viscount is therefore absolutely right to raise the widest possible type of evidence to be sought.

Motor Vehicles (Driving Licences) (Amendment) (No. 5) Regulations 2021

Motion to Approve

Moved by

That the draft Regulations laid before the House on 23 November be approved.

Relevant document: 23rd Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument). Considered in Grand Committee on 14 December.

Motion agreed.

Civil Jurisdiction and Judgments (2005 Hague Convention and 2007 Hague Convention) (Amendment) Regulations 2022

Motion to Approve

Moved by

That the Regulations laid before the House on 16 November be approved.

Considered in Grand Committee on 14 December.

Motion agreed.

Wine (Amendment) Regulations 2021

Motion to Approve

Moved by

That the draft Regulations laid before the House on 23 November be approved.

Relevant document: 23rd Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 14 December.

Motion agreed.

Consumer Scotland Act 2020 (Consequential Provisions and Modifications) Order 2022

Civil Partnership (Scotland) Act 2020 and Marriage and Civil Partnership (Scotland) Act 2014 (Consequential Modifications) Order 2022

Motions to Approve

Moved by

That the draft Order and Order laid before the House on 8 and 16 November be approved.

Considered in Grand Committee on 14 December

Motions agreed.

Police, Crime, Sentencing and Courts Bill

Report (3rd Day)

Relevant documents: 1st, 2nd, 4th and 6th Reports from the Joint Committee on Human Rights, 6th Report from the Delegated Powers Committee, 7th Report from the Constitution Committee

Clause 96: Code of practice

Amendment 66B

Moved by

66B: Clause 96, page 85, line 31, at end insert—

“(2A) The code must provide for reviews to be made or other measures taken by the Secretary of State on a regular basis to ensure—(a) compliance with the provisions in the code of practice as to the giving of discretionary and community cautions, and(b) the consistency of application of the code of practice as between different police forces or Crown Prosecution Areas.”Member’s explanatory statement

The purpose of the amendment is to make provision for regular reviews or other measures to ensure compliance with the Code and consistency of practice across England and Wales.

My Lords, when the Bill seeks to put the cautions regime on to a statutory basis, it is plainly a very important step forward. Although I welcome it, it is unfortunate that this is being done largely by secondary legislation—an issue obviously addressed in many other contexts, about which I do not wish to speak today.

However, it is clear that even in this skeletal Bill, one critical issue is omitted—addressing the issue of lack of adherence to practice and lack of consistency. I outlined the powerful evidence of this in earlier debates and suggested a solution. That is needed because of the significant evidence that cautions can blight the lives of others and, as cautions are in effect part of the sentencing system, they must reflect transparency and command public confidence.

It was, however, evident from the speech of the Minister in Committee that the need to deal with this is recognised as an issue. He said that

“scrutiny and monitoring of out-of-court disposals is vital to successful implementation, accountability and public perception.—[Official Report, 8/11/21; col.1576.]

The Government did not like the way in which I suggested that this be done in the amendment that was before the Committee, but the Minister has very helpfully discussed the issue. The amendment now before the House very much leaves the means to ensure consistency and adherence to the code to the Secretary of State but reflects the principle of the necessity of scrutiny for consistency and adherence to principle. I look forward to the Minister explaining what Her Majesty’s Government intend to do in relation to consistency and how, in due course, the House can review the details of that.

My Lords, I have Amendments 66C and 66D in this group and will speak to Amendment 66B, but I will take them in reverse order if noble Lords will bear with me.

Currently, first-time offenders can be given a fixed penalty notice—an on-the-spot fine—by the police for a range of offences of disorder including dropping litter, being drunk and disorderly, and the possession of cannabis or khat. This Bill removes fixed penalties for disorder, so if the police want to enforce the law they will have either to arrest those responsible, taking up valuable police resources that should be spent on more serious crimes, or to take no action, leading to an increase in anti-social behaviour. Amendment 66D would retain fixed penalties for disorder.

Currently, first-time offenders can be given a simple caution, where the salutary effect of being found out, arrested and taken to a police station is, in most cases, enough to ensure that they behave themselves in future. It is quick, simple and effective. This Bill removes simple cautions, so if the police want to enforce the law they will have to impose conditions on everyone they caution, including considering whether to impose restrictive conditions, unpaid work conditions, attendance conditions and/or a fine. The police must also consider the views of any victim, including imposing any conditions that the victim or victims suggest. Compliance with conditions must then be monitored and action taken for any breach.

There is no evidence that the existing system of conditional cautions is any more effective than simple cautions, and conditional cautions, of which diversionary and community cautions are a more complex and complicated version, take far more police and other agencies’ time. Can the Minister explain why the Government are getting rid of simple cautions? If the answer is that, given the choice between the bureaucratic nightmare of imposing conditions and a simple caution, the police choose the latter, I have to tell the Minister that, faced with the bureaucratic nightmare of imposing conditions, the police will either release the accused with no further action being taken, allowing the accused to get away with it, or argue that the accused should be charged and sent to court. In fact, I wholeheartedly recommend to the police that, in every case where a diversionary or community caution is being considered, they refer the case to the CPS so that independent prosecutors can advise, not least on the sentence—or, as the Bill calls them, the conditions—the police intend to impose on the accused.

The police want to retain simple cautions. We want to retain simple cautions. Amendment 66C would retain simple cautions. I must say, the Minster has his work cut out to convince me not to divide the House on this issue.

As the noble and learned Lord, Lord Thomas of Cwmgiedd, ably explained, the amendment in his name aims to try to ensure compliance with the code of practice and consistency of application of the code. Academic research into the existing system of conditional cautions is of mainly inappropriate and inconsistent conditions being imposed. I referred to this in detail in Committee. It was not challenged; the House can therefore take it as fact.

The problem with these sorts of problems in the courts has been addressed by sentencing guidelines and the ability to appeal. We need something similar here because the police will, in effect, be deciding whether to enforce the law, whether the accused is guilty of the offence, and the sentence to be imposed, all behind closed doors. The principle of open justice is being undermined by this Government through these changes. Can the Minister confirm whether, unlike now, records will be kept of the numbers of each type of caution administered, and the types of conditions imposed?

It is quite extraordinary that the police are being given the power to be judge, jury and executioner, when, to date, the Government do not know how many conditional cautions have been administered or what sorts of conditions the police have been imposing. Amendment 66B is the least we can do to exert at least some control over what will be the reverse of open justice.

My Lords, speaking first to the amendment tabled by the noble and learned Lord, Lord Thomas, which would make provision for regular reviews of out-of-court disposals, there is a method for this. It is scrutiny panels, which were introduced in previous legislation. They work very unevenly across the country. As a magistrate, I have served on a number of scrutiny panels for the British Transport Police and for a certain area of London, for both adult and youth offences. It is a very interesting exercise because you work with the police, the CPS, probation and some representatives of civil society. We had a rabbi on the scrutiny panel I was on for the British Transport Police, and we reviewed the out-of-court disposals.

The big problem with this approach was that there was no central record of what we were doing with our assessment of the out-of-court disposals. As far as I could find out, neither the Home Office nor the Ministry of Justice collected any of the results of these scrutiny panels. In fact, scrutiny panels do not sit in some areas of the country. Nevertheless, the approach advocated by the noble and learned Lord, Lord Thomas, is a good one. He said that he had held sympathetic discussions with the Ministry of Justice on this matter, so I wish him well with that endeavour.

I too am very sympathetic to Amendments 66C and 66D. As the noble Lord, Lord Paddick, said, simple cautions are quick, simple and, when they work, effective. One of the downsides of being a magistrate is that you see things only when they are ineffective—that is why they have come to court in the first place. Of course, if a simple caution is effective they would not come to court, but the noble Lord makes a very strong point about having something that is quick and simple for the police to administer and which is, for a first-time offender, a salutary experience: they have admitted their guilt, they have got the caution and they are on their way relatively quickly.

It is a similar point for the on-the-spot penalties for littering and other minor offences. A quick on-the-spot penalty will have a salutary effect for someone who is largely law abiding. It seems a pity to lose that from the armoury of the police. If the noble Lord moves his amendment, we will support it.

My Lords, the noble Lord, Lord Paddick, makes a very good case for his amendments. I hope that my noble friend the Minister can satisfy the House, but I think that he will struggle a bit.

My Lords, that is a very encouraging note on which to rise. I thank the noble and learned Lord, Lord Thomas of Cwmgiedd, and the noble Lord, Lord Paddick, for bringing back matters that we discussed in Committee.

I say respectfully that Amendment 66B, tabled by the noble and learned Lord, Lord Thomas, commendably deals with the need for consistency in both the use of, and compliance with, the code of practice that will guide the use of diversionary and community cautions under Part 6 of the Bill. I am grateful to the noble and learned Lord for making time to discuss this matter with me.

For the record—it may have been in the mêlée that occurred when people were leaving—I thought I heard the noble and learned Lord refer to cautions as part of the sentencing framework. Without wishing to split hairs, we see this as separate from the sentencing framework and as an out-of-court disposal, but if the noble and learned Lord did say that, I understood that he was talking in broad terms. I am keen to reassure him and, indeed, the House that a fundamental aim of reforming the out-of-court disposal options currently in use was to improve consistency by reducing the number of disposals and creating two clear and statutory options.

Some attention was paid in Committee to the lack of data currently recorded and available on the use of cautions, whether conditional or simple, and the types of conditions attached to the former. We are keen to address that and believe that the proposals in Part 6 of the Bill, along with the code of practice that will accompany it, will do so. We are currently engaging with the Home Office regarding the outcomes framework so that police can accurately report the number of cautions given, and we will also explore the practicalities of gathering qualitative data from police on the types of conditions used.

We want to preserve the balance between a national framework for decision-making on the one hand and, on the other, operational decision-making that rests on the facts of the case and can be independently and locally scrutinised. We believe that working to develop more effective and consistent scrutiny panels in forces, thereby ensuring independent representation and transparency of findings, would be the most effective course of action. For that reason, we are currently engaging with stakeholders on precisely this issue, including a range of questions on transparency and scrutiny regarding the use and monitoring of the new cautions. It will only be possible to find the balance we seek once we have that feedback. I can assure the noble and learned Lord and the House that this will subsequently be included in the code of practice accompanying this legislation, which will itself be brought before Parliament for scrutiny in due course.

Amendments 66C and 66D, tabled by the noble Lord, Lord Paddick, relate to the essence of the reform that the Bill makes to the out-of-court disposals framework. As I noted in Committee, this reform has its roots in the work led by the National Police Chiefs’ Council, whose strategy in 2017 removed the need for the simple caution, penalty notice for disorder, and cannabis and khat warnings. The Government have listened to the NPCC and are now taking steps to ensure national consistency in the framework that it has helped to develop. The current position is that one-third of police forces have already moved to using only conditional cautions and community resolutions, and many more, including the Metropolitan Police, are currently in the process of moving over to this two-tier framework.

With Amendment 66D, the noble Lord seeks to retain penalty notices for disorder. We have already seen a marked decline in their use by police. The most recent CJS statistics show that the use of penalty notices for disorder has fallen 28% from the previous year. These are distinct from the fixed penalty notices, which are unaffected by Part 6 of the Bill.

I should also make reference to an important matter that was raised by the right reverend Prelate the Bishop of Gloucester in Committee, speaking through—if I can put it in these terms—the right reverend Prelate the Bishop of Durham. This was in regard to the intention behind the use of conditional cautions. The point she made was that they should have the aim of rehabilitation or restoration. The purpose of this is both to address the causes of the offending in order to support the offender to desist from reoffending and to put a welcome emphasis on the wishes of the victim, allowing for appropriate restoration to be made, where appropriate. The fact is that simple cautions and penalty notices do not allow for this victim-centred approach that mandates rehabilitative and restorative actions. I therefore do disagree with the noble Lord, Lord Paddick, that this gives rise to what he called—if I heard him correctly—a bureaucratic nightmare.

Retaining the use of penalty notices and simple cautions would undermine these aims entirely and indeed the reform itself. They are inconsistent with it. I heard the noble Lord say, somewhat in stereo as it was repeated behind me by the noble Earl, Lord Attlee, that I have my work cut out to persuade him not to divide the House. But I hope I have set out the principles that underly the new approach: the conditions support rehabilitation and encourage the offender to desist from reoffending. You simply do not get that with a simple caution or notice. I therefore hope that, having listened to what I have said, both he and the noble and learned Lord, Lord Thomas, will not press their amendments.

Before the noble Lord sits down, could he just confirm that these changes—not allowing fixed penalties or simple cautions—are being made on the basis of no evidence whatever of the efficacy of conditional cautions versus simple cautions? He has just admitted from the Dispatch Box that the Government do not retain any data on the number of conditional cautions versus the number of simple cautions, or about the sorts of conditions imposed, but retain data only on the total number of cautions.

My Lords, I think we might now be in double figures for the times I have been asked that question. I have set out in my remarks, fairly I hope, what lies behind it. The work from the National Police Chiefs’ Council lies behind this; a third of police forces have gone there; and many more are considering it. Whether one calls that evidence or not, that is the basis on which these reforms are predicated. I have answered this question before, and I answered it in Committee. I appreciate my answers may not satisfy the noble Lord, but that is the basis on which we think this is a good idea; and quite a number of police forces already think this is a good idea.

My Lords, I thank all who participated in this debate. I will deal very briefly with the two points that have arisen.

First, the system to ensure consistency and compliance with the code will apply to whatever system is brought into effect, including the conditional cautions or fixed penalty notices. I am very grateful to the Minister for his statement, and it seems to me there is now a proper basis for going forward. I think it is fair to say that, when fixed penalty notices and cautions came to be used much more frequently, attempts were made by the judiciary from about 2005 onwards—therefore spanning both Governments—to try and put in place such a system. I am afraid we did not get very far, but it is encouraging to know the Minister is now behind this.

I hope for two things. One is for us to go forwards, as the noble Lord, Lord Ponsonby of Shulbrede, has said, with the magistrates doing matters locally, and I hope the MA will positively engage. The other is for a national basis. National consistency is important, because to the man on the Clapham omnibus—or whatever the modern phrase is—whether you get required to do something by the court or by the police, it is still part of the same system and it is still the law that requires it. Therefore, I look forward very much to scrutinising, when this comes back, the proposals put forward by the Government in the code.

As to the second part, I am again grateful to all who have taken part. If I may respectfully say so, I think there is a certain lack of wisdom in getting rid, without an adequate evidence base, of something that has been as useful in the past as a simple caution. However, I beg leave to withdraw the first amendment.

Amendment 66B withdrawn.

Clause 98: Abolition of other cautions and out-of-court disposals

Amendment 66C

Moved by

66C: Clause 98, page 86, line 26, at beginning insert “Except for a simple caution,”

Member’s explanatory statement

This amendment would retain the use of the simple caution.

Amendment 66D not moved.

Clause 100: Regulations under Part 6

Amendments 67 and 68

Moved by

67: Clause 100, page 87, line 11, leave out from “90(8)” to end of line 12

Member’s explanatory statement

This amendment provides for regulations under Clauses 81(8) and 90(8) to be subject to the affirmative procedure whether they increase or decrease the maximum number of hours a person may be required to work or attend at a place pursuant to a caution.

68: Clause 100, page 87, line 15, after “increase” insert “or decrease”

Member’s explanatory statement

This amendment provides for regulations under Clauses 82(3) and 91(3) to be subject to the affirmative procedure if they increase or decrease the maximum amount of a financial penalty pursuant to a caution by more than is necessary to reflect changes in the value of money.

Amendments 67 and 68 agreed.

Amendment 69

Moved by

69: Before Clause 102, insert the following new Clause—

“Penalty for cruelty to children

(1) In section 1 of the Children and Young Persons Act 1933 (cruelty to persons under 16), in subsection (1)(a) (penalty on conviction on indictment), for “ten” substitute “14”.(2) Subsection (1) applies only in relation to offences committed on or after the day on which this section comes into force.”Member’s explanatory statement

This amendment increases the penalty under section 1(1)(a) of the Children and Young Persons Act 1933 to 14 years.

My Lords, these amendments follow a discussion in Committee and an undertaking given on Report in the other place in response to amendments tabled by Tom Tugendhat MP, with cross party-support, which sought to raise the maximum penalties for child cruelty offences. We said at that time that we would bring forward proposals for reform as soon as possible.

I pay tribute to Tom Tugendhat and the family of his young constituent, Tony Hudgell, who have campaigned tirelessly for these changes to the law in his name. As a baby, Tony was abused to such an extent by his birth parents that he is now severely disabled. No child should suffer such appalling abuse, especially from those who should love and care for them most. Therefore, it is right to ensure that, in such cases, the punishment fits the crime. I should add that today saw the sentencing of those involved in the tragic death of Star Hobson. I offer my and the Government’s sincere condolences to Star’s friends and family. The violent death of a child as young as Star really is heart-breaking.

Government Amendments 69 and 70 amend Section 1 of the Children and Young Persons Act 1933 and Section 5 of the Domestic Violence, Crime and Victims Act 2004 respectively to increase the maximum penalties in three circumstances. Those for cruelty to a person under 16 rise from 10 years’ imprisonment to 14 years’ imprisonment; those for causing or allowing the death of a child or vulnerable adult rise from 14 years’ imprisonment to life imprisonment; and, finally, those for causing or allowing a child or vulnerable adult to suffer serious physical harm rise from 10 years’ imprisonment to 14 years’ imprisonment.

Government Amendment 70 also adds the offence of causing or allowing the death of a child or vulnerable adult to Schedule 19 to the Sentencing Act 2020. This is a consequential amendment of Schedule 19 which lists offences where the penalty may be life imprisonment. It means that, if the judge determines that the offender is dangerous and the circumstances of the offence are sufficiently serious, the offender must receive a life sentence. Furthermore, a consequence of increasing the maximum penalty for causing or allowing the death of a child or vulnerable adult to life imprisonment is that offenders sentenced to seven years or more for that offence will now spend two-thirds, rather than half, of the sentence in custody.

I am confident that the House will agree, especially in light of the recent appalling cases, that the courts should, where necessary, have the fullest range of sentencing powers available—I underline that these are new maximum sentences—to deal appropriately with those who abuse children and vulnerable persons. I therefore beg to move Amendment 69.

My Lords, it is a pleasure to rise to support government amendments. There are cases of child abuse and neglect that cannot be adequately punished under the current maximum sentences. It is rare for me to urge more punishment; I always try to focus on rehabilitation, deterrence and restitution, but here I see more punishment as appropriate, simply because protecting a child is our natural human response.

A few years ago, a grave was found in Italy containing a 10,000 year-old skeleton of a tiny baby girl, just a few weeks old. She was buried with what would have been quite precious things: an eagle owl talon, shell pendants and some precious stones. This showed us that, first, 10,000 years ago people cared about their children even when they were of a very young age, and we did not necessarily know that—burials from the Mesolithic period are quite rare—and, secondly, the fact that she was a girl showed that it was an egalitarian society and they did not have our western attitude of women being rather less than men.

There is, however, no deterrent effect required from criminal law because if the only thing stopping someone hurting a child is that it is illegal then there is something deeply wrong with that person. We have an innate reaction to child abusers—a natural hatred towards anyone who would do something so vile. However, that is not to say that every single case of child abuse or neglect is the same, so I am pleased that this is an increase in the maximum sentences and that the Government are not messing around with mandatory minimum sentences.

My Lords, we also support these amendments. There has been a ghastly spate of tragic cases of cruelty to children, both those mentioned by the Minister and others. We agree that increasing the maximum sentence from 10 years to 14 in cases of serious harm, and from 14 years to life in the case of death, is both acceptable and to be supported.

Along with the noble Baroness, Lady Jones, we note that the proposals in the government amendments, as the noble Lord, Lord Wolfson, has fairly pointed out, are for an increase in the maximum sentences, and there is no proposal for a mandatory minimum sentence. Nor is there any proposal for a judge to find exceptional circumstances before departing from a minimum, as was the case with the “Harper’s law” amendment to the Bill, made by the Government earlier in these proceedings, and as there is in the proposals to be discussed in the next group.

We agree with the Government that the offences targeted by these amendments are of the most grievous kind. We fully understand that the severity of the proposed penalties is warranted, and we therefore support the amendments.

My Lords, we support the amendments. I read with interest the debate on Report in the Commons, where there was clear support for them across the House. The concern to protect children and vulnerable adults is felt particularly keenly at this point. We have all been deeply shocked and moved by the recent cases, and by the voice of Arthur Labinjo-Hughes—I cannot bear to repeat his words. It is little wonder that the Government feel moved to act on this issue. Our justice system should reflect the public’s disgust and concern at what has happened.

However, I want to say something about the impact of these amendments. As hinted at by the noble Baroness, Lady Jones, increasing sentences will not prevent these crimes. These measures are the right thing to do and we support them, but they will not prevent these crimes. The Government have systematically undermined early intervention and prevention services, which have largely been delivered by local government, along with health in schools, which have combined to protect children and vulnerable adults. I ask the Minister to speak to his colleagues about working urgently and strategically to deal with the now well-understood and reported problems of poor communication, lack of curiosity, excessive case loads and inadequate co-ordination of services that put child services under so much strain and children at risk. Addressing those issues would do far more to safeguard children and vulnerable adults. For today, though, we support these changes, insufficient though they are.

My Lords, I am grateful to all those who have contributed to this debate. I will pick up the point just made by the noble Baroness, Lady Chapman of Darlington. There has indeed been cross-party support on this point in your Lordships’ House, as there was in the other place, and I am grateful to her and the noble Lord, Lord Marks of Henley-on-Thames, for that. I therefore will not shatter the mood of consensus by descending into a debate on early intervention, save to say that I too agree that early intervention is important. I will pass her remarks on to my colleagues and I am sure we will continue that debate at another time.

For today, it is important to preserve that consensus. There is a mood across the House that these amendments are important, for the reasons given by all speakers. I was particularly grateful to have the support—perhaps unusually, if I may say so—of the noble Baroness, Lady Jones of Moulsecoomb, which shows that this issue is a cross-party, and perhaps even a non-party, issue. With those thanks, I commend the amendments to the House.

Amendment 69 agreed.

Amendment 70

Moved by

70: Before Clause 102, insert the following new Clause—

“Penalty for causing or allowing a child or vulnerable adult to die or suffer serious physical harm

(1) Section 5 of the Domestic Violence, Crime and Victims Act 2004 (causing or allowing a child or vulnerable adult to die or suffer serious harm) is amended in accordance with subsections (2) and (3).(2) In subsection (7) (penalty in the case of a person’s death), for the words “liable on conviction on indictment” substitute “liable—(a) on conviction on indictment in England and Wales, to imprisonment for life or to a fine, or to both;(b) on conviction on indictment in Northern Ireland,”.(3) In subsection (8) (penalty in the case of serious physical harm), for the words “liable on conviction on indictment” substitute “liable—(a) on conviction on indictment in England and Wales, to imprisonment for a term not exceeding 14 years or to a fine, or to both;(b) on conviction on indictment in Northern Ireland,”.(4) Subsections (2) and (3) apply only in relation to offences where the unlawful act to which the offence relates is an act that occurs, or so much of such an act as occurs, on or after the day on which this section comes into force.(5) In Schedule 19 to the Sentencing Code (list of certain specified offences carrying maximum sentence on indictment of imprisonment for life), after paragraph 20 insert—“Domestic Violence, Crime and Victims Act 200420A(1) An offence under section 5 of the Domestic Violence, Crime and Victims Act 2004 that meets the conditions in sub-paragraph (2). (2) The conditions are that—(a) the unlawful act to which the offence relates was an act that occurred, or so much of an act as occurred, on or after the day on which section (Penalty for causing or allowing a child or vulnerable adult to die or suffer serious physical harm) of the Police, Crime, Sentencing and Courts Act 2021 came into force, and(b) the offender is liable on conviction on indictment to imprisonment for life.””Member’s explanatory statement

This amendment increases, for England and Wales, the penalties under section 5(7) and (8) of the Domestic Violence, Crime and Victims Act 2004 to life (if a person dies) or 14 years (if a person suffers serious physical harm). The amendment includes a consequential amendment of Schedule 19 to the Sentencing Code, which lists offences where the penalty may be imprisonment for life.

Amendment 70 agreed.

Clause 102: Minimum sentences for particular offences

Amendment 71

Moved by

71: Clause 102, page 88, line 20, leave out “there are exceptional” and insert “such a sentence would be contrary to the interests of justice having regard to”

Member’s explanatory statement

This amendment, along with Lord Marks’ amendment to page 88, line 23, would remove the requirement for the circumstances to be exceptional before a judge was empowered to decline to impose the minimum sentence (for offences of threatening with weapon or bladed article) and would entitle the judge to do so where in the circumstances the judge concluded that such a sentence would be contrary to the interests of justice.

My Lords, of the amendments in this group, Amendments 71 to 78, to which I speak now, replicate the amendments I spoke to in Committee, which were also in my name and the name of the noble Lord, Lord Pannick, whom I thank for adding his support to them. Noble Lords will remember that in Committee we had significant and powerful support across the Chamber, including from noble and learned Lords and two former Lord Chief Justices, among them the noble and learned Lords, Lord Thomas and Lord Judge.

These amendments raise an important point of principle concerning judicial discretion. The proposed provisions in Clause 102 impose mandatory minimum sentences and permit judges to depart from those mandatory minima only in “exceptional circumstances”. That amounts to a serious attack on judicial discretion in sentencing and is likely in many cases to give rise to significant injustice. That is true for all four of the minimum sentences proposed: six months in custody for adults threatening with a weapon or bladed article, and four months for 16 and 17 year-olds; seven years for a third class A drug trafficking offence; three years for a third domestic burglary; and six months, or four months for 16 and 17 year-olds, for a repeat offence of carrying an offensive weapon or possessing a bladed or pointed article in a public place or on educational premises.

I am grateful to the Minister for considering our arguments on this topic and for meeting me to discuss them. However, my understanding is that he is likely to maintain the position he took in Committee. He is likely to argue that the judge’s power to depart from the minimum sentences if they find they are exceptional circumstances allows a judge some latitude. Yet he maintains the position that “exceptional circumstances” is a phrase well known to the law as a threshold and should not be changed.

The reality is that the phrase “exceptional circumstances” allows a judge very limited latitude indeed. It is true that the noble Lord, Lord Ponsonby, with his long experience as a magistrate, has said that magistrates’ courts are in the habit of treating the requirement for “exceptional circumstances” with a degree of flexibility. Perhaps that is true of exceptional hardship in relation to disqualifying people for acquiring 12 points on their driving licences. However, the reality is that, properly applied and precisely because this is a threshold phrase well known to the law, as the Minister says, the requirement for exceptional circumstances is far more rigid and far stricter than that experience of magistrates’ courts would imply. Courts have regularly held the phrase to mean that the circumstances must be completely out of the ordinary for exceptional circumstances to be found. Indeed, it is patently obvious that that is the reasoning behind the proposed provisions in Clause 102. The Government are concerned to ensure that more severe custodial sentences are imposed in the cases to which these minima would apply.

Our amendments, on the other hand, would allow for judicial discretion to depart from the minimum sentences where the judge decides that it would be contrary to the interests of justice to impose such a minimum sentence, having regard to circumstances relating to the offence or the offender. Under our amendments, the prescribed minimum sentences would remain the default position—the default sentences—but judges would have the power to depart from them if they thought that the minimum sentences would be unjust. We believe that if only the Government could trust the judges to apply the law and to do what the interests of justice require in particular cases, they would simply accept these amendments.

The Minister has argued, and I suspect will argue again, that Parliament has the power to legislate for more severe sentences and that judges are obliged to sentence in accordance with the legislation that Parliament passes. That, of course, is a truism. However, I expect he will go further. If and in so far as he goes further and argues that if Parliament passes legislation requiring a particular sentence for a particular offence that is somehow by definition a just sentence, there we part company. Legislatures here and across the world can and do pass unjust laws. In many cases these minimum sentences would not offend against a judge’s sense of justice, but there will be many cases where they do so offend. If they are offensive to judges and to reasonable people’s sense of justice, I suggest that they are probably unjust, whether or not they are sanctioned by statute.

Take the case of an inadequate young man, whether before or after he turns 18, who gives into peer pressure to carry a knife and repeats the offence, or who does so out of genuine fear of gang members, combined with a misplaced belief that carrying a knife might protect him. Or take the case of a drug addict, hopelessly incapable of either giving up drugs or funding his habit, who commits burglary repeatedly and then comes before the court for a third or fourth time at a time when there is at last some hope of his rehabilitation and treatment. Such circumstances in the world of criminal justice are commonplace, but to find them “exceptional” judges would be put in the position of having to act in breach of their judicial oath. That does not mean that the sentences would not be unjust.

To put judges in that position is as wrong as it is invidious. It would weaken the confidence and pride of judges in their position and their work, and the confidence of the public in the judicial system. It might also adversely impact on the ability of prosecutors to obtain convictions. Permitting judges to depart from these minimum sentences where it would be just to do so would also promote rehabilitation and reform where that is, or might be, achievable. Mandatory minimum sentences would do none of that.

I also support Amendment 82A, tabled by the noble Lord, Lord Ponsonby, and my noble friend Lord German, which would introduce restrictions on sentences of six months or less. We on these Benches would go further and introduce a positive presumption against such short sentences, which, on all the evidence, do nothing to reduce reoffending—rather, they do the contrary—or to cut crime. I will leave it to the two noble Lords to set out the case for this amendment more fully. I beg to move.

My Lords, I support the observations made by the noble Lord, Lord Marks. On previous occasions, and indeed in Committee, I expressed my real anxiety about mandatory minimum sentences, particularly in the context of this group of amendments. I share the noble Lord’s view that a mandatory minimum sentence of this kind is capable of doing very considerable injustice.

I appreciate my noble friend the Minister’s view about exceptional circumstances, which he has explained before. I recognise that there is an ability on the part of the judge in exceptional circumstances to disapply the minimum sentence, but I share the noble Lord’s view that the concept of “exceptional circumstances” means something way out of the ordinary—exceptional. That means that the proviso, in my view, will be seldom applied.

The amendment moved by the noble Lord goes much further than that and, in my interpretation of it, imports the concept of fairness and justice. I agree with him. Because that is my interpretation of the amendment —namely, that we are introducing the concept of fairness and justice as a means of disapplying the minimum mandatory sentence—I shall support the amendment if the noble Lord seeks the opinion of this House.

My Lords, I have added my name to the amendment proposed by the noble Lord, Lord Marks, and I agree with everything that he said and, indeed, what has been said by the noble Viscount, Lord Hailsham. There is no doubt that there is a real difference, both in principle and in practice, between exceptional circumstances and what is required in the interests of justice. It seems to me that, whether or not the circumstances are exceptional, it is essential that the court has a power not to impose a sentence that the judge believes to be contrary in the circumstances of the particular case to the interests of justice.

I am surprised and disappointed to hear from the noble Lord, Lord Marks, that a Minister of Justice, particularly one as wise and fair as the noble Lord, Lord Wolfson, should resist an amendment that confers power on the courts to avoid imposing a sentence that the judge believes would be contrary to the interests of justice. How can that possibly be right? If we are to have more minimum sentences—and I share the concerns as to whether we should—it is absolutely essential that the judge has a discretion to impose a sentence that he or she thinks is in the interests of justice.

My Lords, I entirely agree with the noble Lords, Lord Marks and Lord Pannick, and my noble friend Lord Hailsham.

I have had the opportunity on a number of occasions, sitting as a recorder, to pass sentence in cases where, in one case after another, advocates have suggested that I take an exceptional course—and sometimes I have been persuaded to take an exceptional course. It seems to me that the word “exceptional” provides an opportunity for a judge in the interests of justice to depart from the minimum sentence. But this is a decision taken by the Government in response to a particular set of offences, and the general public would perhaps agree with that policy; it requires judges to think long and hard before deciding that there are exceptional circumstances. I note that the noble Lord, Lord Marks, suggested that there may be many cases where they consider it in the interests of justice not to pass a minimum sentence. It seems to me that that is a question of policy that the Government have identified and, although naturally I favour as much judicial discretion as possible, it seems to me a policy decision that they are entitled to take.

I do not want to re-enter an old argument but, in Committee, I was almost embarrassed when the Minister pointed out that I was completely wrong about mandatory minimum sentences. Not being a lawyer, I thought that I had made some sort of legal error, but apparently not. Clause 102 will lead to gross injustice for anyone who is convicted of these offences, except in exceptional circumstances. That is revealed by the very clever wording of the amendments tabled by the noble Lord, Lord Marks of Henley-on-Thames, which contrasts those exceptional circumstances with a much preferable

“contrary to the interests of justice”.

These amendments bring justice into play rather than pure, unmetered punishment. I and my noble friend will be supporting the amendments.

The deterrent effect of these minimum sentences would still be in play, but there would also be the freedom that, when justice requires, a person is not given one of these mandatory sentences—so the Government can still hold their “tough on crime” stance and even call this “crime fortnight” while justice is still served—although it would be good if they could admit their own crimes sometimes.

My Lords, I will say a few words in support of Amendment 82A dealing with short custodial sentences. The value of this amendment is that it places greater emphasis on alternative disposals, which fits in with what I thought was the Government’s policy of trying to rehabilitate offenders. Sending people to prison for a short period is counter- productive. One knows what happens in prisons. To send people for a short sentence is wasteful of public money. If there is an alternative to a custodial sentence, then it should be adopted. The proposal made in this amendment has a great deal behind it.

As for the other issues, speaking as a former judge I tend to support what the noble Lord, Lord Faulks, has said. If I was faced with the choice of words, I would find it easier to work with the Government’s wording than the wording proposed in the amendments.

My Lords, I agree with much of what has been said. On Amendment 82A I reiterate what has been said, and I hope will be said later, about primary carers. We know the damage short sentences do to families. We also know that close to half of those leaving custody go on to reoffend within a year of their release, but two-thirds of those sentenced to less than 12 months go on to reoffend.

This is not pie in the sky; if we look at Germany, which performs better on virtually every metric including reoffending, they imprison a far smaller proportion of the population and sentencers have to make two assessments before sentencing. First, they have to show that a community sentence is inappropriate and, secondly, they have to say that a short sentence will suit the need better. I commend Amendment 82A.

My Lords, I have added my name to Amendment 82A. I apologise to the House for being a few moments late into the Chamber; my little legs would not carry me fast enough from committee to Chamber.

Amendment 82A amplifies the debate we had on short sentences in Committee. It does not seek to ban short sentences but sets out to reduce the use of custody for less serious offences for which there are better options within the community. The argument made in Committee, that there are already guidelines and the Sentencing Code to guard against the overuse of short sentences, is disproven by the way in which the matter does not arise in sentencing at the moment.

The current arrangements—the ones the Minister spoke of in Committee—appear to be robust in theory because imprisonment is already reserved for serious offences and custody is already described as a last resort. As principles, these sound restrictive but have not proven to be so in practice. The current arrangements regarding the custody threshold are an unsatisfactory test because they can be interpreted as permissive when an offender has experienced all other possible forms of sentence even though their latest offence is not that serious. The problem with this is that it magnifies the roundabout, which is short sentences without any opportunity for rehabilitation, being outside for a very short period, reoffending and coming back through the system yet again.

This Bill creates a strange ladder of offences because, if you add in the additional features of the community sentences, which is detention in people’s homes, then that increases the features of the system in this first part of the ladder. The ladder then has a rung which has a much shorter stage to the position of imprisonment. We could say that the position after this Bill will be that the first part of the community sentences has much more amplification of the measures that can be used to deal with the sorts of crimes we have been talking about.

The amendment is designed to build a consensus around the use of custody, aligning the evidence of better outcomes with a choice of sentence. It also aligns with the Government’s position. In the 2020 White Paper from the Ministry of Justice, A Smarter Approach to Sentencing, the Government said:

“While short custodial sentences may punish those who receive them, they often fail to rehabilitate the offender or stop reoffending. Evidence suggests that community sentences, in certain circumstances, are more effective in reducing reoffending than short custodial sentences.”

This is the Government’s position, as outlined in 2020. This amendment makes reforms based on the length of sentence, by clarifying the principles for opposing imprisonment. For this reason, I commend it to the Minister. It would help reduce reoffending. It would help people rehabilitate. It would remove the great problem, as expressed by the Government, that short sentences punish those who receive them but fail to rehabilitate the offender or to stop reoffending.

My Lords, I will speak very briefly to this group of amendments. In particular, I support Amendment 82A in the names of my noble friend Lord Ponsonby and the noble Lord, Lord German. I declare my interest as a trustee and vice-chair of the Prison Reform Trust.

In Committee, I tried to make the arguments, both social and economic, against the use of short custodial sentences and in favour of robust community sentences, where appropriate. I will not repeat those arguments this afternoon. Suffice it to say that, in 2020, over 40,000 people were sent to prison, the majority of whom had committed a non-violent offence. Almost half were sentenced to serve six months or fewer.

As many voluntary and charitable organisations have pointed out, and as we have just heard, short prison sentences have proven less effective than community sentences at reducing reoffending. Short-term prison sentences have a particularly harmful effect on women, who often have primary care responsibilities. We will debate that later today. In 2020, the National Audit Office estimated that the annual cost per prison place was £44,640, whereas for a community sentence it was, on average, £4,305.

I support the views expressed by the noble Lord, Lord German. I have two quick examples which show why Amendment 82A is totally in line with the Government’s own recent policy statements. First, the Ministry of Justice’s Female Offender Strategy clearly states:

“We will support a greater proportion of women to serve their sentence in the community successfully and reduce the numbers serving short custodial sentences by … Ensuring that courts have better and more comprehensive information about female offenders to inform sentencing decisions”.

The Government support community sentences. As a committed member of the Minister’s Advisory Board on Female Offenders, I fully endorse this strategy. I believe it is totally consistent with Amendment 82A.

Secondly, there is the Government’s recently published From Harm to Hope: A 10-Year Drugs Plan to Cut Crime and Save Lives. They have committed £780 million to this programme, £120 million of which will be used to increase the number of offenders and ex-offenders engaged in the treatment they need to turn their lives around. The plan goes on to say that this enhanced spending on drug treatment and recovery will also drive down crime by cutting levels of drug-related offending.

I agree, and I believe these programmes will be successful if they are clearly linked to community sentences, not short-term prison sentences. Such community sentences, with treatment requirements—whether for drugs, alcohol, mental health conditions or a combination of all those requirements—properly funded and overseen by the reconstituted National Probation Service, will give the judiciary the confidence to administer them, as opposed to the expensive and futile experience of a short prison sentence.

I therefore believe that recent government policy announcements are totally in line with our proposals in Amendment 82A, and I feel sure that the Minister will give a very positive response to the proposal.

My Lords, I have no objection to short prison sentences per se. The problem I have is that our current prison system is so hopelessly ineffective at rehabilitation. That is why in Committee I tabled my Amendment 241, a proposal for drastic reform. I am grateful for the response I got from the Committee, and indeed from my noble friend the Minister, and that is why I saw no need to table it on Report.

My Lords, I will speak first to Amendment 82A, to which I put my name, together with the noble Lord, Lord German. It specifies that short periods in custody should not be an inevitable response to someone with a history of relatively minor offending and that sentencers should be required to state the reasons for giving a prison sentence up to and including six months.

A coalition of views has been expressed in support of the amendment. We have, if she does not mind being described in this way, a campaigning right reverend Prelate who consistently talks about short prison sentences, particularly as they affect women, and my noble friend Lord Bradley with his expertise in this area regarding harmful effects on women in particular but also people with mental health problems. I also include myself in the coalition, because I regularly sentence short sentences.

The point I have made in these debates before is that, while the reoffending rate is indeed as bad as the right reverend Prelate said—there are high reoffending rates—in my experience as a sentencer, I sentence short sentences only when a community sentence has failed. I literally cannot remember a time when I have sentenced a short custodial sentence where there have not been—sometimes multiple—failures of community sentences. When I sentence, I am comparing a 100% failure rate for the community sentences of the people in front of me with the 60% failure rate of those who come out of short custodial sentences and reoffend within a year, so I am making a very unfortunate calculation when I give short custodial sentences.

Nevertheless, the noble Lord, Lord German, made absolutely the right point. We are trying to help the Government realise their own policy. The Government acknowledge what I have just said regarding the inevitability, sometimes, of short custodial sentences. The real answer is to come up with a robust, community-based approach that works and that sentencers have some level of belief in. I look forward to the Minister’s response to Amendment 82A.

I turn to the other amendments in the group. As I said in Committee, the Labour Party will abstain—with reluctance—if the noble Lord, Lord Marks, chooses to move his amendments to a vote. The point made by the noble Lord, Lord Faulks, was essentially the point the Minister will make, which is that what we are seeing here is the Government’s response to a particular set of offence types and that it is a policy decision on behalf of the Government, which they are entitled to take and which they see as a response to public demand. Frankly, I am not comfortable with the position I am taking on this, but the view of the Opposition is that we will abstain if the noble Lord, Lord Marks, decides to move his amendments to a vote.

My Lords, this group of amendments broadly covers topics related to custodial sentences. We debated them at some length in Committee. The Government have listened carefully to the arguments put forward by noble Lords in support of these amendments. In particular, I am grateful to the noble Lord, Lord Marks of Henley-on-Thames, and others for discussing them with me. However, the Government remain unpersuaded that these amendments are necessary. I will briefly explain the reasons why and will begin with Amendments 71 to 78 in the name of the noble Lord, Lord Marks.

As the noble Baroness, Lady Jones of Moulsecoomb, reminded us, we had a lengthy debate in Committee on Clause 102 and minimum sentences. For the avoidance of any doubt, this clause does not introduce any new minimum sentences or new offences. Rather, it seeks to ensure that courts depart from imposing the minimum sentence only in exceptional circumstances. We are making sure that in these cases, where a minimum sentence applies, the criteria by which the courts can depart from the minimum sentence are consistent and are set out.

The amendments use the term

“contrary to the interests of justice”.

This term is not itself unusual, indeed at Section 59 of the Sentencing Code courts are directed to follow the relevant sentencing guidelines unless

“satisfied that it would be contrary to the interests of justice to do so”.

However, as the noble Lord, Lord Marks, accepts, these amendments would create a new and different test in respect of which a court can depart from imposing a minimum sentence when sentencing for these specific offences. The noble Lord’s amendment could be seen, as I think he tacitly accepted, as creating a lower threshold at which the courts may depart from imposing the minimum sentence, whereas the Government intend to raise and clarify the threshold.

As I explained in Committee, the necessity for this measure is supported by the data. In 2020, approximately half of all adults convicted for a third-time domestic burglary offence received less than the minimum sentence, even after taking account of the early guilty plea. We should not forget that minimum sentences are, in the main, for repeat offences which have a large community impact.

I know that concerns have been raised that Clause 102 may lead the courts to impose the minimum sentence in situations that they regard as unjust, because they cannot find the circumstances to fall within the ambit of “exceptional circumstances”. Concerns have also been raised that what constitutes “exceptional” might be treated as being subjective, leading to inconsistent application.

I can, I hope, reassure the House that courts are well accustomed to determining whether there are exceptional circumstances. There is a body of case law relating to the minimum sentence for certain offences involving firearms which already applies unless there are exceptional circumstances. This provision aligns the minimum sentence provisions with that test. Without wishing to turn Report stage into a seminar, in R v Nancarrow—the reference is 2019, EWCA Crim 470; old habits die hard—the Court of Appeal established a number of relevant principles, including that circumstances are exceptional if the imposition of the minimum sentence would be arbitrary and disproportionate. The court should also take a holistic approach and consider whether the collective impact of all the relevant circumstances makes the case exceptional. Therefore, judicial discretion for the court to consider fully the facts of the case and decide on the appropriate sentence in light of the statutory regime is retained in this measure.

I respectfully disagree with the noble Lord, Lord Marks, that this is an attack on judicial discretion. It is not a case of the Government not trusting judges; indeed, we have minimum sentences. The noble Lord is not suggesting that we should not have any minimum sentences, so the issue between us is not whether a judge has full discretion or no discretion—I am not advocating no discretion; the noble Lord is not advocating full discretion—but the ambit of that judicial discretion. I suggest that that is a matter of policy and therefore properly a matter for Parliament.

So, although I am grateful to the noble Lord, Lord Pannick, for his generous adjectives, which I hope to retain despite our disagreement on this issue, I would say that this matter is properly one for Parliament because it is a question of setting out the ambit of judicial discretion. In our system, sentencing is a mixture of parliamentary legislation and judicial application. I therefore agree with the description given by the noble Lord, Lord Faulks: Parliament can properly decide what the ambit is of departing from a minimum sentence, as a matter of policy.

I hate to disagree with the Minister on this matter of policy, but of course Parliament can do what it likes. The question is whether that is wise.

We must distinguish carefully between whether it is wise, which is a point we can make about any legislation, and whether it is proper. When the point is put against me that this is an attack on judicial discretion and a case of not trusting judges, I hear it as a matter of policy and constitutional propriety first and a matter of wisdom second. So far, I have addressed the point on constitutional propriety. My noble and learned friend is right to say that Parliament can do what it likes; my point is that, here, Parliament is doing what is constitutionally proper as well. As to whether it is wise, I set that out earlier.

In these circumstances, it is proper to endorse the exceptional circumstances test. A system in which 50% of people are not being given the minimum sentence is, I suggest, one in which something is going seriously wrong. Although I pay great respect to anything said my noble and learned friend, the point put briefly but clearly and firmly by the noble and learned Lord, Lord Hope of Craighead, ought to carry serious weight with the House.

The Minister mentioned a Court of Appeal authority on this matter. Can he confirm whether that authority suggests that, if a judge in an individual case believes it would be contrary to the interests of justice to impose the minimum sentence, that is a strong indication that there are exceptional circumstances?

As we found in Committee, it is very tempting for Ministers to start parsing or glossing the term “exceptional circumstances”, and I hope the noble Lord will forgive me if I do not do so. That phrase has been used in statute and considered at the very highest level by the judiciary. The application of statute is properly a matter for the judiciary. In these circumstances, it is not helpful for a Minister on his feet to start parsing or glossing what has been said by the Court of Appeal. With genuine respect, I will leave that matter there and leave it for the Court of Appeal to explain what “exceptional circumstances” means. However, I repeat that the noble and learned Lord, Lord Hope of Craighead, said in terms that he found that test not a difficult one to apply—indeed, he found it an easier and more straightforward test to apply than the interests of justice.

Amendment 82A, tabled by the noble Lord, Lord Ponsonby of Shulbrede, with the support of the noble Lord, Lord German, would require a court imposing a custodial sentence of six months or less to state its reasons for being satisfied that neither a fine nor a community sentence could be justified.

The noble Lord, Lord German, reminded us of the Government’s position set out in 2020, which, of course, I stand totally by. There are plainly issues of rehabilitation and reoffending when it comes to short sentences, and that is why, as I explained in Committee, provisions in the Sentencing Code already ensure that custody should be a last resort in all cases, and for the shortest term possible. Even where the custodial threshold is met, courts retain discretion to impose non-custodial sentences after taking into account wider considerations. The code also places a duty on the court to explain its reasons for passing any sentence, and this can include an explanation of the factors the court has taken into account in making its sentencing decision.

This amendment also sets out a series of principles for courts to have regard to when imposing a custodial sentence of six months or less. For the most part, these are included in the independent Sentencing Council’s Imposition of Community and Custodial Sentences guidelines. As courts are already under a statutory duty to follow any sentencing guidelines relevant to the offender’s case, the Government do not consider it necessary to put these principles on a statutory footing.

As the noble and learned Lord, Lord Hope of Craighead, said, if an alternative sentence to custody can properly be handed down, it should be. While I do not propose again to gloss the sentencing guidelines, I respectfully agree that that is a useful summary of them. Again, as the noble Lord, Lord Ponsonby, said with his own experience, it is often only when community sentences have failed that a custodial sentence is handed down. That, again, is in accordance with the approach set out in the sentencing guidelines.

Of course, I listened very carefully to what was said by the noble Lord, Lord Bradley, with whom I have had discussions on this and other issues, and by the right reverend Prelate the Bishop of Gloucester—I was going to say the “campaigning” Bishop of Gloucester, but I will leave out the adjective, although she might like it. I hope that they will each be satisfied with—and certainly understand—what I have said and the reasons for the Government’s position on these amendments. For the reasons that I have set out, I urge the noble Lord to withdraw his amendment.

My Lords, I am very grateful for the support that I have had for my Amendments 71 to 78 from Members of the House and for all the contributions to this important debate. I am also grateful to the Minister for his response. However, when one analyses it, what he was saying about discretion cannot survive a proper reading of what is meant by “exceptional circumstances”. Certainly, it is the case that authorities have analysed exceptional circumstances, including the Court of Appeal authority of Nancarrow that he mentioned.

Nevertheless, the nub of it is that “exceptional circumstances” means circumstances that are very unusual, and what the Minister did not address was my point that there are many situations which in general experience are commonplace, and the circumstances are common- place, but where it would nevertheless be unjust—contrary both to the judges and to any normal sense of justice—to impose the minimum sentence. Because the circumstances are not exceptional, the judge would be bound to impose that sentence.

In answer to the points of the noble Lord, Lord Faulks, of course it is the case that judges are daily addressed on the basis that they should take an exceptional course of leniency, and it is not surprising that, as a recorder, he has been asked to take that course many times. However, that does not mean that he has been asked to find that circumstances are exceptional. It is interesting that the test for the sentencing guidelines and departing from them is “contrary to the interests of justice”, and not a requirement that there should be exceptional circumstances.

On the matter of policy, I respectfully suggest that the answer to the Minister’s point was comprehensively expressed by the noble and learned Lord, Lord Garnier. He used the word “wise”. It may be that the Government are entitled to legislate in this way, but is it wise? The Minister said that there was a difference between “wise” and “constitutionally proper”. The point I am making is simply that, although it may be a matter of policy in the sense that the Government can have the policy and can legislate—as the noble and learned Lord, Lord Garnier, said, Parliament can do what it likes—the question is: is it bad policy? We say that it is bad policy because it forces judges to do what they would not otherwise do, having regard to the interests of justice.

In respect of the point made by the noble and learned Lord, Lord Hope, of course it is right that it may be easier to apply a test of exceptional circumstances, because the authorities are so clear, but the point about the interests of justice, as the noble and learned Lord, Lord Judge, picked up in Committee, is that sentencing decisions are difficult.

I am grateful to the noble Lord for giving way. My point is that I would be drawn into arguments with myself about policy in deciding whether to do what Parliament has asked me to do. I am afraid that, as a judge, the constitutional position is that I have to accept what Parliament has laid down. I do not like minimum sentences; they are a very blunt instrument, and I can think of cases where I would not want to be driven down that road. But that is not my position as a judge. I have to follow what Parliament has said, but I have leeway with the phrase which has been inserted in the Bill. That is my point.

My Lords, I understand that point. It is very rare that I disagree with the noble and learned Lord, but it is still the fact that what Parliament decides, judges must implement. If they decide that there is an exceptional circumstances test, that is far more limiting than an interests of justice test. That is my point and I will close on it—except to say that the default position under my amendment is to accept minimum sentences and simply to allow the judges to depart from those sentences where it is just to do so, having regard to all the circumstances. I do not believe that there has been any answer presented to that central position, on which I therefore wish to test the opinion of the House.

Amendments 72 to 78 not moved.

We shall now move on to the amendments that follow those to Clause 102. We begin with Amendment 78A. I should inform the House that the noble Baroness, Lady Brinton, will be taking part remotely.

Amendment 78A

Moved by

78A: After Clause 102, insert the following new Clause—

“Minimum sentence for an offence under section 1 of the Sexual Offences Act 2003

(1) This section applies where—(a) an individual is convicted of an offence under section 1 of the Sexual Offences Act 2003, and(b) the offence was committed after the commencement of this section and at a time when the individual was aged 18 or over.(2) The court must impose an appropriate custodial sentence (or order for detention) for a term of at least the required minimum term (with or without a fine) unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify it not doing so.(3) In this section “the required minimum term” means seven years.”

My Lords, I shall move and speak to the amendments in the name of my noble friend Lord Ponsonby—this amendment and Amendments 78B and 78E, as well as Amendments 78C and 78D, which the noble Baroness, Lady Brinton, has also signed.

The amendment would introduce a minimum sentence of seven years for rape, apart from cases in which the court is of the opinion that there are exceptional circumstances relating to the offence or offender that justify the court not doing so. This issue was raised in the previous debate. I should refer to my noble and learned friend Lord Falconer who spoke on this issue in Committee. I was going to be incredibly nice about him but I see that he is not here, so I shall just move on. He said:

“The framework for sentencing by the courts has to be set by Parliament. The way Parliament does this—as the two former Lord Chief Justices made clear—is by setting a maximum sentence, and the courts then reflect on what they conceive to be the justice of the case, as determined by the maximum. In exceptional cases—I use that word advisedly—it is appropriate for there to be minimum sentences as well. If there is a minimum sentence, the judge’s discretion is removed, but that is because Parliament is saying that a particular offence merits a minimum sentence except in exceptional cases … There is nothing wrong with Parliament doing that. Rape is, in our view, one of those cases.”—[Official Report, 10/11/21; col. 1807.]

The amendment does not force judges to pass unjust sentences. There should be a minimum sentence for rape, which should be departed from only in exceptional circumstances. Victims need to see this happen. The reason that we are particularly concerned about this issue is the wider context in the justice system, which we should not ignore because confidence in the justice system is at an historic low, with just one in 67 rape complainants seeing their case come to court. It can take four years for that process to be completed.

The latest data from the CPS shows that the number of rape convictions fell by 6.7% in the last quarter. There are 3,357 victims of violent and sexual crime who have already been waiting over a year for their day in court, and a further 654 victims of those horrific cases have been waiting for over two years. Victims are not reporting; too many of those who report would say that they would not report a crime again; or they drop out of the process before any case comes to court. Parliament needs to show victims that it considers rape a crime of such seriousness that it is prepared to reflect that view in law.

Amendment 78B would introduce a maximum sentence of two years for publishing the identity of a sexual offences complainant. We are keen to test the opinion of the House on this amendment but we will, of course, listen to what the Minister has to say. This is an important issue and we should like the Government to, in some way, accept this measure. I am sure I do not need to explain to noble Lords just how distressing publication of the identity of a complainant is for the victim and their family. Fear of publication puts victims off reporting. The law understands this already and attempts to protect victims. Amendment 78B sends a signal that people who reveal names could have a sentence as high as two years. It does not say that that should happen in every case or that two years is a minimum sentence, but Parliament should mark the seriousness of this issue and the fact that people can be put under enormous pressure by the threat or fear of publicity.

In Committee, the Minister was sympathetic to the objective of this amendment and accepted that the unlawful naming of people whose identity is protected by law ought to be appropriately punished. We understand that the Attorney-General has invited the Law Commission to undertake a review of the law of contempt of court, with particular reference to the interface between that and the criminal law, including the specific breach offences under discussion today.

Because this offence causes so much distress to the complainants affected, and because this change could be made today without delay, we ask the Minister to consider accepting this amendment. If the Government bring forward additional legislation to respond to the Law Commission recommendations, they can then extend provisions to cover perhaps a greater number of types of victims whose identity is also legally protected. We would greatly welcome that and, if it could happen at the earliest opportunity, we would welcome that too.

Amendment 78C would create a new duty on the Secretary of State to nominate a government department to have the duty to inform victims and their families of the type of sentence, the time limit for application to the unduly lenient sentence scheme and that applications should be made to the Attorney-General. Amendment 78D proposes that, in exceptional circumstances, the time limit to apply to the ULS scheme should be flexible. This should include but not be limited to where the relevant body has failed to inform the victim or their family of the scheme and their rights under it until it is too late. Unfortunately, the ULS scheme is not sufficiently well-known by victims at the moment. We want victims and their families to be informed of the type of sentence that has been passed and what rights they have under the scheme so we can avoid situations where victims find out at only the very last moment that these rights exist and are unable to take advantage of them through no fault of their own.

Amendment 78D would allow the time limit of 28 days which applies to the ULS scheme to be extended in very exceptional circumstances. We accept that it should be extended in only exceptional circumstances, which should include but not be limited to where the relevant body obliged to notify the victim or their family of the existence of the scheme has failed to do so. These amendments make the ULS scheme more effective in that a government department would have responsibility for informing the victim and there would be some flexibility in cases where something has just gone wrong and the victim is unfairly disadvantaged.

Amendment 78E would ensure that those found guilty of abduction, sexual assault and murder would receive a whole life order as a starting sentence. My noble and learned friend Lord Falconer of Thoroton argued in Committee that a whole life term should be the starting point. The judge can of course take into account other factors, but there should never be a debate about whether a whole life term could be imposed, as we have seen.

I make clear to the Minister that it is his response on Amendment 78B that we are most keenly interested in today.

My Lords, the noble Baroness, Lady Brinton, will be taking part remotely, so I hope she is there now. Baroness Brinton, are you with us?

My Lords, I welcome this further opportunity to speak to Amendments 78C and 78D in the name of the noble Lord, Lord Ponsonby, on the unduly lenient sentence scheme, to which I have added my name, and to Amendment 82B in my name on home detention curfews.

First, I thank the Minister for trying to set up a meeting. It was unfortunate that he had to cancel it and that, because of the emergency coronavirus legislation, I was not free to meet him either yesterday or today. Further, as an aside, it is good to see the Government finally publish their consultation on a victims law and I hope that, after the consultation, legislation will swiftly follow. We have been waiting a long time and today’s amendments are very definitely there to help victims.

Turning first to Amendments 78C and 78D, in Committee, speakers made clear how the ULS scheme plays an important role in our justice system, providing the right for individuals to apply to the Attorney-General’s Office where they believe a sentence to be unduly lenient. As the Minister clarified earlier, the unduly lenient sentence scheme does not provide a direct right to appeal, but instead provides an individual, including victims of crime and bereaved family members, with the opportunity to have their concerns considered by the courts.

On Amendment 78C, we hope that the Minister will acknowledge both the intent and practicalities of such a proposition. The Government’s own victims’ code of practice is clear that victims deserve the right to be told about this scheme and that the responsibility for informing victims of crime about it is assigned to the witness care units. The problem is that the witness care unit is the wrong authority to have this responsibility, because it interacts with only those who are witnesses in court, thus excluding many victims, including bereaved family members.

Amendment 78D seeks to allow flexibility in the 28-day time limit in exceptional circumstances, which would remain at the discretion of law officers when considering the application. If the Minister is concerned about the perceived risk this poses to the certainty for the offender, we believe that allowing a degree of flexibility in exceptional circumstances, as is given to the offender in this case, at the discretion of law officers, does not pose such a risk.

Part of the current problem, and its true risk to finality in sentencing, lies in the current backlogs facing our court system. One recent unduly lenient sentencing case has taken 10 months to reach the Court of Appeal. This does not resolve the fundamental problem that victims face, which is that the criminal justice system should ensure that victims are aware of their rights, have sufficient opportunity to exercise them and have the same rights of flexibility in truly exceptional circumstances. We believe that these amendments, rather than posing a risk to justice and its efficiency, seek to ensure that justice is truly served and that victims of crime have the right—as the Government have set out elsewhere—to a fundamental role in this process.

I turn now to Amendment 82B, which seeks to amend the policy framework governing the use of home detention curfews to exclude those who have previously breached protective orders and who have a history of stalking, harassment, domestic abuse and coercive control. During the debate in Committee, we discussed the fixated and obsessive nature of these offenders and the risk this poses to victims and the public. We gave worrying examples of cases where high-risk offenders were released on home detention curfew, only to appear outside their victim’s home or work, often despite court injunctions not to contact their victim.

After Committee, Victoria Atkins, Minister for Prisons and Probation, wrote to the Victims’ Commissioner for London, stating that the scheme provides a transition to the community for lower-risk offenders. If we are to believe that this Government take violence against women and girls seriously, can the Minister explain how they can consider those convicted of stalking and domestic abuse as lower-risk offenders? The Minister himself stated, in a recent event held by the Domestic Abuse Commissioner, that domestic abuse is at the top of the Government’s agenda and reforming and reframing their response is their top priority.

Support for this amendment would present a small step in the right direction to give victims of such violence the trust and confidence that the justice system is committed to tackling violence against women and girls. I will not press Amendment 82B to a vote, but would welcome a meeting to see if we can make some progress on reducing the contradiction highlighted by Victoria Atkins for something that would provide real support for victims.

My Lords, I appreciate that the noble Baroness who moved the lead amendment in this group is concerned primarily with Amendment 78B, but perhaps I might be forgiven if I focus exclusively on Amendment 78A. This relates to the new clause, which would apply a minimum mandatory sentence of seven years to the offence of rape.

I am against this proposed new clause and think it profoundly wrong. I am against it for essentially two reasons. First, as one who has practised in the criminal courts for many years, I know that the offence of rape carries within it a very broad spectrum of culpability, from the most serious kinds of offence to ones significantly less serious. That should be reflected in the ability of the judge to impose the appropriate sentences.

Already a life sentence is the maximum that can be imposed. This takes me to my second point—that I really think the amendment is unnecessary. Anybody who goes to have a careful look at the guidelines published by the Sentencing Council as to how courts should approach sentencing for rape will come to the conclusion that public protection is already appropriately safeguarded. In fact, the spectrum of custodial sentences set out in the Sentencing Council guidelines is between four and 19 years. There is a whole host of considerations set out to assist the judge in determining what level of sentence should be imposed.

That takes me to the last point that I want to make. If you go to the Sentencing Council’s guidelines, as I am sure many of your Lordships have done, you will see a whole range of mitigating circumstances—as well, of course, as aggravating circumstances. Those mitigating circumstances are circumstances that a trial judge could take into account when imposing a determinate sentence of less than seven years. In the new clause proposed in Amendment 78A, nothing is said, for example, about what the consequences would be of remorse or contrition, nor about the making of an early plea, although that of course now attracts a mandatory reduction as a general proposition. Nothing is said about what happens if the defendant has been assisting the prosecution, nor about the time spent on bail. All those things are built into the sentencing guidelines of the council, but they do not appear in the proposed new clause.

If the amendment was to be accepted by your Lordships’ House, very considerable injustice would be done. I also happen to think that it is wholly unnecessary.

My Lords, I shall speak to Amendment 78B, on the maximum sentence for disclosing the identity of sexual offences complainants. I understand the motivation for this amendment and agree with the sentiment underlying it. The current level is obviously inaccurate and inappropriate, but it should not be addressed in isolation. It is correct that the present provisions for dealing with disclosure need revision, as they were passed in 1992 and plainly directed at conventional print, radio and TV media, antedating the internet. For newspapers and TV stations, a fine is generally appropriate. Since 2015, a level 5 fine has meant an unlimited one, which could run to hundreds of thousands of pounds for a newspaper that does this either deliberately or inadvertently. But we all know that today a malicious individual can cause similar damage with a post on the internet, and imprisonment may well be appropriate.

These are serious sexual offences—I do not deny that at all—but there are other matters of great sensitivity that will not be covered by this; it could well cause offence and upset if they are not dealt with at the same time, and they should all be looked at as a whole. The ones that I pull out in particular are, for example, to be found in Section 71 of the Female Genital Mutilation Act 2003. There is still only a fine if you disclose identity, when really it is a very sensitive matter—but, for historical reasons, it remains just a fine. So too if you disclose the name of someone involved in slavery—it is also only a fine—and so too with witnesses in the context of youth justice, which also results in only a fine. All those cases are dealt with in a magistrates’ court. Those things, which are all sensitive and difficult, would be better dealt with in the round. It might be that, for one category of offences, it was thought that the maximum sentence ought to be more than two years, and for others two years, but you want to look at them as a package and reach a considered decision.

This is a worthy amendment, in one sense, but it should not be pursued. Instead, I urge the Government to bring on the review with the Attorney-General that has been promised, really get cracking on it, and look at all offences of the unlawful disclosure of witnesses’ names. I am sure that, if the Government’s officials have time after Christmas, they could draw up a list of all those categories pretty swiftly and get on with it, so they are all dealt with as a whole. I call on the Minister to give appropriate assurances in that respect.

The noble Lord, Lord Sandhurst, identifies the need for consistency, and he is right. I wonder whether this amendment was not provoked by the appalling case of Phillip Leece, who not only committed rape but named the victim and posted grossly insulting material on the internet. That is something that was probably outside the scope of those who drafted this legislation. Newspapers are regulated—as I know, as the regulator of newspapers—but social media remains wholly unregulated. There is significant work to be done in this regard, which Parliament will grapple with when looking at the online safety Bill. This is just the sort of matter that a duty of care should deal with, in a proper system to prevent this sort of posting taking place.

I am sure that the Attorney-General is thinking carefully about contempt of court aspects. Of course, there is a power on the part of the judge to deal with the matter much more seriously than with the derisory fines that are currently imposed, but it is something that has to go to the administration of justice, and it is not always predictable or easy to identify what cases will or will not constitute contempt of court—so I welcome that.

Although I wholly understand why this amendment has been proposed, it seems that it would be stark and inconsistent with other provisions—but it addresses a mischief that very much needs to be addressed.

My Lords, I shall speak briefly to this group of amendments. First, I turn to the minimum sentence for rape of seven years, subject to an exceptional circumstances disregard or permitted departure. We acknowledge and endorse everything that has been said to the effect that rape is the most appalling crime. The terribly low success rate of prosecutions of which the noble Baroness, Lady Chapman of Darlington, spoke is acknowledged by everyone and has been the subject of a great deal of research by parliamentarians, policymakers and the Government. It needs addressing. The problems that she talked of, of low reporting rates and very high withdrawal of support, along with very low conviction rates, all need addressing. However, I am not convinced that a minimum sentence would address any of those things. Furthermore, for all the reasons, which I shall not repeat, I believe that the use of an exceptional circumstances test for the ability of judges to depart from a minimum sentence is simply wrong.

I also agree with the noble Viscount, Lord Hailsham, when he pointed out that, as anybody who has dealt with rape cases in criminal courts knows, rapes are so very different, the one from another. He was right to point to the very wide range of sentences endorsed in the sentencing guidelines, which mean that courts treat rape very differently, from the milder cases to the very serious cases that merit life imprisonment. I also have some concern that, in some cases, it would make juries even less likely to convict if they knew that there was a minimum sentence of seven years. I cannot support, and I do not think that we cannot support generally, the proposition that this seven-year minimum sentence should be legislated for.

By contrast, Amendment 78B, which would increase the sentence for publishing the identity of sexual offences complainants, is one that we do support. I suspect that it is not often realised quite how serious an offence this is. Sometimes there is a substantial risk of further harm when the identity of a complainant is published. There is very often significant fear on the part of the complainant if her name—as it is usually, although it may be his name—is published. There is almost always really significant distress caused by an unlawful publication. It is of course open to complainants to waive anonymity if they wish. But if they do not wish their identity to be published, to have the law flouted in the way the offence requires seems to me to justify a sentence of imprisonment in some cases. It is important to hear that these are only maximum sentences that we are dealing with.

I agree with the noble Lord, Lord Sandhurst, that there are other cases of unlawful disclosure that should be considered and reviewed but, that being the case in an ideal world—and we all know that these things do not happen as fast as they should—that is no reason for not doing anything at all. So we support Amendment 78B.

For all the reasons given by my noble friend Lady Brinton and, no doubt, to be given by the noble Lord, Lord Ponsonby—the noble Baroness, Lady Chapman, has already spoken to it—we support Amendment 78D on the duty to inform under the unduly lenient sentencing scheme, as well as the extension of the time limit for complaint in respect of unduly lenient sentences. In Committee we went through the reasons for the whole-life order to be taken as a starting point in cases of abduction, sexual assault and murder, and we do support that—again, because it is only a starting point—and this ranks right up there with the other serious offences for which a whole-life order is appropriate.

We support for the reasons given by my noble friend Lady Brinton her amendment on home detention curfews as well.

My Lords, these amendments, introduced by the noble Baroness, Lady Chapman, on behalf of the noble Lord, Lord Ponsonby, include those aimed at increasing penalties for sexual offences, those focused on enabling victims to challenge a sentence perceived to be unduly lenient, and those aimed at restricting additional offenders from release on home detention curfew. We debated these at some length in Committee, and we listened carefully to the arguments put forward by noble Lords in support. There are obviously some emotive and important issues here, and I welcome the opportunity to set out the Government’s position again this evening. But while the sentiment behind the amendments is fully supported by the Government, we do not consider them to be either necessary or the right course of action.

Let me start with a point on which I think there is common ground, as was set out by the noble Baroness, Lady Chapman. Victims must feel that they are put right at the heart of the criminal justice system. They must be supported so that they can engage properly at every step of what can be an incredibly difficult journey. As the noble Baroness, Lady Brinton, set out and referred to, last week we launched a package of measures to help achieve this: a consultation on a new victims’ law; a national rollout of provision of pre-recorded cross-examination for sexual and modern slavery victims; national criminal justice and adult rape scorecards; and a progress report on the end-to-end rape review action plan. We believe that those initiatives, individually and collectively, will raise the voice of victims in our criminal justice system and give them the justice they deserve. That especially includes the victims of often horrendous crimes of sexual violence.

I will address first the amendment regarding minimum sentences for rape. There is no dispute across your Lordships’ House that such crimes should be punished with sentences that match the severity of the offence. But the noble Baroness, Lady Chapman, is proposing that a court be required to impose a minimum custodial sentence of seven years for a rape offence committed under Section 1 of the Sexual Offences Act 2003,

“unless … there are exceptional circumstances … which justify it not doing so.”

Rape offenders already receive very significant sentences. The courts can, and do, pass sentences of life imprisonment. In 2020, of those who received a custodial sentence of less than life for a Section 1 rape offence, the average sentence was almost 10 years—117.5 months—an increase of almost 15% over the last decade. More than two-thirds of adult offenders sentenced for a Section 1 rape offence received a custodial sentence of over seven years, which is the minimum proposed by the amendment.

In this Bill, and in legislation introduced last year, the Government are ensuring that serious violent and sexual offenders, including rape offenders, sentenced to over four years now spend two-thirds of their sentence in prison, as opposed to having automatic release at the halfway point. However, the nature of this offence and the wide range of circumstances which the court may need to take into account are complex, as my noble friend Lord Hailsham pointed out. I also agree with the noble Lord, Lord Marks of Henley-on-Thames, although, while I know what he meant, I am not sure I would use the word “mild” for any case of rape. I know he did not mean it in that way. What we are dealing with here is different degrees of seriousness of an offence, and I know he meant that.

I was keen to help the noble Lord out, because I think we all knew what he meant, but it is important in these areas to make sure that the record is really clear. I think we all agree that it is especially important, therefore, because we are dealing with different degrees of seriousness in a complex offence, that we maintain judicial discretion for the courts to consider the full facts of a case before them and decide on the appropriate sentence.

Although the sentence lengths for rape have increased, we have long recognised that the decline in the number of effective trials for rape and serious sexual offences is a cause for significant concern. Let me take a moment to mention some of the wider action we are taking: we have introduced legislation to tackle crimes including stalking, forced marriage, FGM and the those set out in the Domestic Abuse Act; we have committed to more than doubling the number of adult rape cases reaching court; we published the end-to-end rape review on 18 June; and we want to improve the number of rape cases being referred by the police, being charged by the CPS and reaching court. I have already mentioned the victims Bill. In July, we published the tackling violence against women and girls strategy, and we hope that also will help us better target perpetrators and support victims of these crimes, which disproportionately, although not exclusively, affect women and girls.

I turn to Amendment 78B, which would increase the maximum penalty for publishing the identity of sexual assault victims—currently a summary, non-imprisonable offence—to two years in custody. We do not dispute that the current maximum penalty is too low. Our concern, however, is that it would not be right to legislate, as the amendment does, only for the Sexual Offences (Amendment) Act 1992.

The naming offence in Section 5 of that Act protects complainants in sexual assault cases and was later extended to cover human trafficking cases as well. The effect of this amendment would be that the penalty for breaching these restrictions would be markedly different from the penalty for other offences also involving the breach of anonymity. Two of these, in relation to female genital mutilation and forced marriage, are modelled on the 1992 Act, and it therefore would be difficult to impossible to justify treating these identical offences differently from the 1992 Act offence.

There would also be glaring and unjustifiable discrepancies with the penalty for breach of other sorts of prohibition on identifying a participant in a trial, some of which might have been imposed for a witness’s protection. I made that point in Committee. With respect, it was not directly addressed by the noble Baroness, Lady Chapman, and we therefore remain unpersuaded that it is appropriate to legislate selectively—

Having very kindly accepted that the maximum is wrong, the Minister’s only point appears to be that it would put it out of sync with these others. What work is being done in the Ministry of Justice and when can we expect to see legislation bringing them all to a position where there is an appropriate maximum sentence? This matters very considerably to victims of a Section 1 crime.

My Lords, it certainly matters. I am a little concerned that the noble and learned Lord has seen my notes because that was precisely the point to which I was coming when he intervened. I am grateful for the intervention and for the points made by my noble friend Lord Sandhurst and the noble Lord, Lord Faulks, which I endorse. We need consistency and a fair approach in this area. We will begin by drawing up, as my noble friend Lord Sandhurst invited us to, a list of relevant offences, to ensure that we capture this issue fully.

There may be others, but I am coming to the next stage. The noble and learned Lord is very keen.

Also part of the framework is the law of contempt of court, which we must consider if we are to look at this area properly. In some circumstances, it might be an alternative to charging the appropriate breach offence, although conduct is usually dealt with as a contempt only where some harm to the administration of justice was likely. It also does not attract the investigatory powers which these offences attract.

My right honourable friend the Attorney-General has already independently asked the Law Commission to examine the law of contempt in this regard. I could not say this in Committee because at that point I was saying that we would invite the Law Commission to do it. In fact, they have already committed to such a review. We have asked them to add in the breach of anonymity offences, both for Section 5 and related offences.

The noble and learned Lord says “years”. It will take some time, but the alternative is to legislate on a piecemeal basis. I do not want to explain to a victim of FGM who is named why she is being treated less favourably than a victim of any other offence. We want consistency in this area. If we have a Law Commission to ensure that we look at the law holistically in an appropriate way, it will deliver a coherent approach to penalties for all offences involving breach of reporting restrictions.

Moving to Amendments 78C and 78D, the unduly lenient sentence scheme allows anyone—the CPS, victims, witnesses, or members of the public—to ask for certain sentences imposed by the Crown Court to be considered by the law officers, where that sentence is felt to be unduly lenient. I underline that point. Anybody can ask the law officers to consider referring the sentence to the Court of Appeal. I am afraid that a number of my colleagues at the Bar have taken the view that it is somewhat improper for Members of Parliament to invite the Attorney-General so to consider. I underline again that anybody can ask the Attorney-General to consider referring a sentence to the Court of Appeal. That is how the scheme operates. It is then for the law officers to decide whether to refer the case to the Court of Appeal, which may then decide to increase the sentence.

Amendment 78C places a duty on the Secretary of State to nominate a government department to inform victims of the details of the scheme. We recognise the importance of victims being aware of the scheme and being clear on how it operates. However, the duty is not necessary. The revised Code of Practice for Victims of Crime—the victims’ code—which came into force on 1 April, already provides victims with the right to be informed about the existence of the scheme. Furthermore, it includes a requirement for the witness care unit to inform victims about the scheme following sentencing. Therefore, that provision is unnecessary.

Turning to the timing point, an application by the law officers to the Court of Appeal must be made within 28 days of sentencing. The absolute time limit of 28 days reflects the importance of finality in sentencing. That point of finality in litigation is sometimes marked by a Latin tag, which I will not trouble your Lordships with, but it is particularly important when it comes to sentencing. While we will keep the operation of the scheme under consideration, including the time limit, there are no current plans to remove the certainty of an absolute time limit in any circumstances.

Amendment 78E would expand the circumstances where a whole life order would be the starting point to include cases of murder involving the abduction and sexual assault of a single person. I explained in Committee that of course we sympathise enormously with the concerns that underpin this amendment, but we do not agree with its purpose. Our current sentencing framework can and does respond to these horrendous cases. The courts can, and do, impose lengthy sentences that fully reflect the gravity of this type of offending and the appalling harm that it causes to families of victims and the community generally.

All those convicted of murder already receive a mandatory life sentence. The murder of a single victim involving sexual conduct has a starting point, when determining the minimum time to be served in prison—the tariff, as it is sometimes called—of 30 years. This can be increased depending on the circumstances of the individual case and the presence of aggravating factors. Additionally, as was demonstrated by the sentencing of Wayne Couzens for the horrific murder of Sarah Everard, there is an existing discretion to impose a whole life order if the seriousness of the individual case is exceptionally high, which Wayne Couzens received.

Amendment 82B, tabled by the noble Baroness, Lady Brinton, seeks to prevent the release on home detention curfew of any offender who has previously breached a protective order and who has been convicted of offences relating to stalking, harassment, coercive control, or domestic abuse. I set out in Committee the importance that we attach to this area. The noble Baroness was quite right to refer to my comments made in another part of the Palace at an event organised by the right reverend Prelate the Bishop of Gloucester, and I stand by them.

I have asked officials to consider the risks presented by such offenders, to ensure that all appropriate safeguards are in place to protect victims and the public and to ensure that unsuitable offenders are not released on home detention curfew. Once that review is complete, I will update t