My Lords, I regret to inform the House of the death of the noble Lord, Lord Prior, earlier today. On behalf of the House, I extend our condolences to the noble Lord’s family and friends.
To ask Her Majesty’s Government what are their current priorities concerning United Kingdom participation in the development and implementation of European Union environmental policy.
My Lords, until exit negotiations are concluded, the UK remains a full member of the European Union and the Government will continue to negotiate, implement and apply EU environmental legislation. We aim to be the first generation to leave the natural environment in a better state than we found it. Whatever the new relationship, we will work closely with countries and institutions in the EU and beyond to achieve our shared environmental goals.
My Lords, a European Union environment policy promoting improved air and water quality and higher standards generally has been a positive area of European action and one where the UK has often been proactive. Will the Minister give us more clues about whether the Government will continue with this action post Brexit? Will he tell us when his own department’s environment framework will be published as it is already overdue? How does he propose to ensure continued British influence and involvement in an area of policy so important to our citizens?
My Lords, the noble Baroness is right. This country has been at the forefront of global environmental initiatives—indeed, that was the case before we became members of the EU—and many of the challenges do not respect national borders, so co-operation with our friends within the EU and globally will remain of utmost importance. The UK is a party to about 30 multilateral environment agreements in its own right. The environment framework will, I hope, be published shortly, and will give an opportunity in the consultation process for everyone to play their part. Whether we are talking about invasive species, biosecurity, air quality or marine conservation, we want to work with our partners very closely.
My Lords, my noble friend will be aware that, in fact, our very costly carbon reduction targets are actually ahead of those of the rest of the EU, contrary to the requirements of the Climate Change Act 2008, which said we should take account of these things. Is it too much to hope that Brexit might provide an opportunity for us at least to be more in line with the European Union carbon targets rather than above them or, even better, that we should devise our own in a less costly way than the present very heavy burden on industry and poor families?
My Lords, there will be differing opinions on this. We have a very strong record on the carbon budgets, whatever one’s view. The issues of climate change are real, as my noble friend Lord Ridley said in the Times this morning. So it is very important that we take these matters seriously, and when we leave they will continue to be important for us.
My Lords, one of the key ways that we meet our European environmental standards is by investment from the European Investment Bank, which has already invested £50 billion in wastewater, clean technology for energy, flooding and waste. How are we going to replace that vital funding stream in two years’ time?
My Lords, it is right that the noble Lord mentioned flooding. That is why we have record sums of capital investment: £2.5 billion in flooding investment, as well as a record £1 billion investment in maintenance. That is an example of the UK Government investing strongly in our defences.
My Lords, given that a number of rather nasty tree diseases in Europe are just awaiting their opportunity to get into this country, will the Minister use the opportunity that Brexit provides to strengthen our import controls to make sure those diseases do not get in?
My Lords, I should declare an interest: as Minister for Biosecurity I take these matters very seriously. Our preparations are much advanced. I have been working with the Chief Plant Health Officer and we are in a much better position. Of course we should use the opportunity to see what works in the national interest, and I shall be looking at this very carefully.
My Lords, will the Minister confirm that European environmental standards will all be transferred to UK law when the so-called great reform Act comes through; that none of them can then be disposed of without an order going through both this House and the other place; and that therefore we will have an opportunity to stop any unnecessary rollback?
My Lords, the great repeal Bill will provide an opportunity to ensure that there will be no gaps, to provide certainty for businesses, stakeholders and everyone. It is precisely the case that those standards will be coming back to this country and if there is any requirement for alteration, it would come before Parliament in the normal manner of scrutiny by both Houses.
My Lords, health and flooding have been mentioned, but is it not true that without EU environmental laws on air pollution and clean water, we would have had an even worse situation on air pollution, particularly in London, and would not now be building a supersewer to stop the discharge of raw sewage into the Thames, which is still happening in 2016?
My Lords, what the noble Baroness said about the Thames Tideway project is extremely important: raw sewage is going into the Thames; we must reduce it and work on it. That is why it is a very important investment. However, when I looked into the matter, much of what the noble Baroness mentioned is domestic legislation which even predates our membership of the EU. We will be continuing with our environmental course so that we have a better environment.
My Lords, once the UK has left the EU, in the absence of the European Commission and the European Court of Justice, what bodies will be responsible for ensuring that the UK complies with present EU environmental standards, even taking legal action against the Government when it fails to do so?
As the Government intend that we will leave the environment in a better condition, I very much hope that will not be the case, but the point is that the Government are accountable to the UK Parliament and the electorate, and there are the domestic courts as well.
My Lords, if we are to leave our environment in a better condition, is it not essential that we maintain one of the things that the country can be most proud of: namely, our green belt policy?
My Lords, in my view, the green belt has been one of the great successes, ensuring that we do not get urban sprawl. It is very important that it remains. I think my notes will tell me, if I can find them, that a considerable proportion—it is 13%—of the land area in England is covered by green belt. It is very important to ensure that it remains.
My Lords, what action are the Government going to take to help the solar industry and the insulation industry, which have been so badly damaged by government policy?
My Lords, with reference to what my noble friend Lord Howell of Guildford said, it is important that we have a mix of energy, and that people do not pay more for their energy than is strictly necessary. Those things are an important feature, but we need to be mindful of costs. That is why the Government took the action that they did.
To ask Her Majesty’s Government what discussions they have held with representatives of consumer bodies about the continued protection of consumer rights following the United Kingdom’s departure from the European Union.
Ministers and officials frequently meet representatives from a range of consumer bodies to discuss issues of the day, including EU exit, and we will continue to do so. Details of ministerial meetings are published quarterly on the GOV.UK website. The Government see no reason why the UK’s departure from the EU should have significant adverse effects on consumer rights in this country.
My Lords, we read at the weekend that consumers are already worried about what this will mean for their prices—but there are other rights at risk, such as consumer redress being possible in this country for goods made abroad, victims of accidents in another member state being able to use our courts to pursue insurance claims, air passengers getting compensation for delays and cancellations, and also the many others we have because we are part of a consumer alert system for faulty or dangerous goods. So may I ask the Minister to agree to undertake an audit of EU consumer protections that are at risk after Brexit, and also to meet relevant consumer organisations to see how to reduce the risk of losing those protections?
My Lords, next week the Secretary of State for BEIS is chairing a round table with representatives from a range of consumer bodies and charities, and academics, to discuss, among other things, the impact of EU exit on consumers. These are exactly the sorts of issues that he will want to look at. Of course, the great repeal Bill, which has already been mentioned, will convert EU consumer law into UK law wherever practical, and we will want to ensure that cross-border enforcement is effective, and that our ADR landscape is preserved. These are important aspects of a consumer framework which is very strong: we should be proud of it in this country.
My Lords, if we leave the single market, will not some of the real problems for consumers be over online and mail order purchases? When consumers no longer have the right to bring actions here against EU suppliers post-Brexit, what is the Government’s cunning plan? Is it for consumers to run around with small claims in all the other EU member states?
We will want to work to ensure that enforcement is effective across borders. There is, of course, a mutuality of interest here, because online goes both ways, and there are issues online, such as cyber and counterfeits, which need to be addressed. We are continuing to develop the digital single market in our ongoing work in the Competitiveness Council, and our enforcement regimes are well respected. The noble Lord is right to highlight this area, but I am optimistic that we can find a way forward and that there will be opportunities to do things better, from the studies that we shall be doing and the work that we shall be taking forward.
My Lords, the Minister said that EU consumer law would be converted into domestic law where it is practical. Could she give the House an example of where the Government consider it will not be practical to do so?
That is a difficult question to answer—I am always straight. What I would say is that, as I mentioned earlier, we have planned a series of engagements with consumer bodies. That applies right across Whitehall, so that, for example, the Economic Secretary to the Treasury has been talking to consumer groups—because, of course, financial services are very important—and there have been talks between MoJ and the Legal Services Consumer Panel. It is clear to me that we will be able to highlight, well before March, the particular pinch points, so that in our negotiations we will know which are the important areas that we need to preserve. This is an important piece of work, and I am grateful to the noble Lord for his comments.
My Lords, we do not need to wait for Europe to part company with us—there are already problems. Ryanair has already given an indication of its intention that claims against it by passengers should be made in Irish courts. If I may say so, there is a lot to be done now with consumer rights that is not happening. My personal recent experience was that the telegraph and postal system refused to give a cash refund for faulty goods that it supplied until I suggested that we went to court. It has now said that it will pay. This is happening on a wide scale to those who are making online purchases from companies which are doing rather less than they should.
In general, consumers enjoy strong protections in this country, and we want to seek to preserve those. But where markets fail—the noble Lord has given an example—and competition is not as strong as it needs to be, they may not get a good deal, and the Government will not hesitate to take steps where we need to. We are bringing forward a Green Paper in the spring of next year that will closely examine markets that are not working fairly for consumers. It will look at both specific markets and cross-cutting items, and I look forward to hearing more on those sorts of issues so we can ensure that they are properly looked at as part of that process.
My Lords, British holiday- makers have a history of being ripped off by mobile phone companies while on holiday abroad through communication and data charges. Europe has thankfully sorted this out over the past couple of years, and the charges will be the same. Will the Government insist that British communications and mobile telephone companies keep to that agreement in future so that the rip-off stops and the service remains equitable for British consumers?
I am glad that the noble Lord mentioned roaming, because it is one of the key advances that general EU effort has achieved in recent times. When you go to Europe now, depending on your provider, you can sometimes get your calls within your contract, which I have been fortunate enough to experience. In general, consumer regulations in the area of telecoms will not be affected by EU exit—and, of course, as I have said, the market is changing. However, I assure the noble Lord that roaming, and the benefits of that, will be an important ingredient in influencing our thinking in our exit negotiations.
My Lords, given that we have agreed to participate in the Unified Patent Court, does my noble friend agree that this is an indication of how we can participate in various European organisations, even post-Brexit, to the benefit of consumers?
I entirely agree with my noble friend.
To ask Her Majesty’s Government what steps they are taking to support the United Nations investigation into human rights abuses in Indian-administered Kashmir.
My Lords, we are aware of reports of human rights abuses in Indian-administered Kashmir. Any allegation of human rights abuse in any country is a matter of concern and should be investigated thoroughly, promptly and transparently. As a United Nations member, we support all United Nations bodies and their ability to fulfil their mandates.
I thank the Minister for that Answer. In response to my recent Written Question, the Government confirmed that the Prime Minister discussed Kashmir with Prime Minister Modi when recently in India. Could the Minister tell the House whether human rights abuses in Indian-held Kashmir were raised, and will the Government ask the United Nations Security Council to expand the remit of the UN observers in Kashmir to include in their duties the monitoring and investigation of any human rights abuses?
I thank the noble Lord. I have indicated that we are aware of human rights abuses—or reports, at least, of those abuses—in Kashmir, including in relation to the recent unrest. The UK abides by its commitments under international law, and expects all countries to comply with their international legal obligations. Any allegation of human rights abuse is a matter of concern, which, as I said, would have to be thoroughly, promptly and transparently investigated. In the recent visit to India in November, the Prime Minister discussed a variety of issues with Prime Minister Modi, including Kashmir.
Should the United Kingdom Government not be extremely cautious about getting too deeply involved in Kashmir? After all, it has been a challenge since 1948 and we do not now have a really active involvement there. Would it not be more sensible to concentrate on the areas where we can have considerably more influence?
Both India and Pakistan are important international partners of the United Kingdom. Our long-standing position is that it is for those countries to find a lasting resolution to the situation in Kashmir, taking into account the wishes of the Kashmiri people. It is not for the United Kingdom to prescribe a solution or act as a mediator.
Picking up the Minister’s last point, it is extremely worrying that free speech is being severely curtailed in Kashmir at the moment, so it will be extremely difficult to understand the wishes of the people there. What steps have the Government taken to raise with the Indian Government the suppression of free speech and a free press in Kashmir?
I thank the noble Lord, Lord Collins, for his important question. Prime Minister Modi has underlined the importance of fundamental rights and these are enshrined in the Indian constitution. These include freedom of faith and speech and equality of all citizens. We will continue to work collaboratively with Prime Minister Modi’s Government on a range of issues, including the promotion and protection of fundamental human rights such as freedom of expression and freedom of religious expression.
In September, the UN High Commissioner for Human Rights stated that he believed: “An independent, impartial and international mission is now needed … and that it should be given free and complete access to establish an objective assessment of the claims made by the two sides”. Does the Minister agree? If so, what action will the UK Government take?
I revert to my Answer to the noble Lord, Lord Hussain, in which I made clear that the United Kingdom Government believe that any allegation of human rights abuse is a matter of concern and should be investigated very robustly. As a member of the United Nations, we support all its bodies and their ability to fulfil their mandates.
My Lords, do the Government recognise that terrorism—and the support of terrorists—is the worst form of human rights abuse?
We obviously deplore terrorism wherever it occurs. In so far as there has been terrorist activity in Kashmir, the UK has regularly highlighted, at the highest level, the importance of taking effective action against all terrorist groups. We will continue to advance that argument consistently and robustly.
My Lords, the Minister will remember that we had a referendum in this country a few months ago. Could she tell us how much our Government are encouraging the Governments of India and Pakistan to uphold the promise to the people of Kashmir of a referendum to determine their own future? If that is not acceptable, why is it not being raised at the United Nations by our representatives?
I respectfully observe that there is a distinction to be drawn between a referendum we choose to have in the United Kingdom and the affairs of two independent sovereign countries, in the form of Pakistan and India. The United Kingdom Government have made clear that we believe it is for these two countries and their Governments to determine how to resolve the situation in Kashmir. It must be left to them to take whatever decisions they think appropriate and to move at a pace they consider fitting.
My Lords, is there any merit, as part of our trade agreements with India and Pakistan, in putting human rights at the top of the agenda so that this can be part of negotiations?
I reassure the noble Baroness that, in our diplomatic advocacy, we always insist that human rights are at the top of the agenda. We articulate that position regularly to both Pakistan and India.
To ask Her Majesty’s Government whether, as part of their strategy against Islamic terrorism, they will encourage United Kingdom Muslim leaders to re-examine the Muslim tenet of abrogation.
My Lords, freedom of speech and religion are core values that make our country great. Britain is home to diverse communities, which are free to practise their religion in accordance with the law. The Government’s strategy for tackling Islamist terrorism is firmly based on strengthening our partnership with communities, civil society groups and faith organisations across the United Kingdom.
My Lords, I thank the noble Baroness for that reply, which was helpful as far as it went. I should explain that Islamic abrogation holds that the Koran’s later, violent verses, of which there are many, take precedence over the earlier, peaceful verses, and so it lends support to the jihadists. Have the Government noticed that we can say what we like about any other religion, but we get into all manner of trouble if we try to discuss Islam? If they have noticed, what can they do to encourage civilised national debate about Islam, in the hope that that will encourage our peaceful Muslim friends—who are, of course, in the vast majority—to do more to stand up to their violent co-religionists?
My Lords, I have to say that I think that the first part of the noble Lord’s statement is factually incorrect. We work with communities to make them resilient and we certainly support the discussion of religion, as we are doing now, as we speak. This is a country that prides itself on freedom of speech—unless people are actually inciting others to intolerance or hatred—and that is something of which I am very proud.
My Lords, is the Minister aware that a Muslim scholar, whom I consulted today, told me that there is no unanimity in the Islamic world about which verses of the Koran are abrogated by later verses? It is completely wrong of the noble Lord, Lord Pearson, to ascribe the views of some hard-line Wahhabis and Salafists as though they were the views of mainstream Sunni, Sufi and Shia Muslims. That is not the case, and all that the noble Lord does by repeating this—as he has done before—is to undermine the position of moderate Muslims in this country.
I could not have put it better than my noble friend; that is absolutely right. The vast majority of Muslims in this country share our values and share most of the things that we would aspire to for our children and our communities. We should not make blanket statements about a very small minority.
My Lords, whenever the question of religion is raised in this House, there seems to be an air of embarrassment, as if it were something private that should not be discussed. The reality is that it is very much the concern of us all. The suffering in Syria and the weekend outrages in Cairo and Istanbul show that a force, religion, which has a potential for good, is being used these days as a force for evil. Does the Minister agree with the findings of the Louise Casey report that the interfaith industry has done very little to combat this, and we need an actual discussion of the concerns that people feel, rather than being superficially nice to each other?
My Lords, the noble Lord is absolutely right that religion should be a force for good. It is a particularly pertinent point at Christmas time to consider what religion is a force for. Christmas is a time for giving and doing good to your fellow man or woman. Dame Louise Casey produced an independent report which the Government will consider in due course and comment on in the new year. She addressed what the noble Lord is talking about—namely, that we should not be frightened of saying things.
My Lords, does the Minister agree that the best way to tackle extremism in a religious setting is not for this Government, or any Government, to start identifying particular religious doctrines that they would like to see changed, but rather to concentrate on that building of partnerships? Would she agree with me in commending the approach taken by my colleague the most reverend Primate the Archbishop of Canterbury in building those sorts of relationships of trust and friendship, which are creating a platform on which these issues can be honestly faced and discussed as we try to find a way forward on them?
I completely concur with the right reverend Prelate. I thought that he was going to talk about his noble friend the right reverend Prelate the Bishop of Birmingham, because he does similar work. It is in talking to people through the partnerships that we form that we can form a more cohesive society. I commend the work of the Church of England in this area.
My Lords, while associating myself with the comments of the right reverend Prelate, can I ask the Minister whether she thinks it appropriate for a Question to be put down on the Order Paper of this House which refers to “Islamic terrorism”? She quite rightly referred to “Islamist terrorism”. It is inappropriate to lump in 2.5 million British Muslims in this country as somehow being associated with terrorism. Does she think that this Question being brought constantly to this House by a Member of this House is in fact helping those who want to see division in this society and who want to associate peace-loving Muslims in this country with terrorism? Will she answer that please, and will she also say—
Too long!
Will she also say whether she thinks that is appropriate?
I did not hear the last bit of that question because there was a bit of a noise from the House. This House prides itself on the wide range of Questions that can be tabled. We do not police too heavily whether those Questions are always necessarily accurate or reflect the situation. I cannot remember the noble Baroness’s second point. I will leave it there.
Is there not a real danger of highlighting parts of the Koran, when you could equally make the same points about the Bible? Is it not important that we do not take either of those texts as literal?
My Lords, we have seen with all religions how people can interpret parts of them to their own ends. I was talking just this morning about my own Church and how some things in the past have been interpreted not for evil ends but wrongly. It happens with all texts. It is a question of how we as a civilised society deal with that in the round.
To ask Her Majesty’s Government what discussions they have had with Southern Rail to try to avert the strike action due to start tomorrow.
My Lords, I beg leave to ask a Question of which I have given private notice.
My Lords, my right honourable friend the Secretary of State and my honourable friend the Rail Minister are meeting frequently with GTR to be updated on the latest position and how the operator will provide services on days of industrial action. It is also important to note that this is a dispute between the operator and the unions. My right honourable friend the Secretary of State has also written to union leaders in an attempt to bring this dispute to an end.
Rather than taking sides, should not the Government be trying to put pressure on both sides in this dispute, given the six months of intolerable disruption for consumers in the southern region, and force the parties, through the media, to come to terms through ACAS in the next few days ahead of Christmas?
I agree with the noble Lord. That is exactly what my right honourable friend did: he wrote to both unions and asked them to meet with Southern at ACAS. That was supposed to take place yesterday. That meeting did not take place because the unions had not responded to the invitation from my right honourable friend the Secretary of State. This is not about taking sides—I agree with the noble on that—but about getting this long-standing dispute resolved.
Under the terms of the franchise agreement, the Government receive the fare revenue from GTR, with GTR receiving a subsidy. The Government have accepted that poor performance by GTR has led to a loss of revenue and that, of the GTR estimate of £38 million lost this year from unofficial and official industrial action and poor performance, just £8.4 million has been lost to date due to official industrial action. How much will GTR have to pay back to the Government for fare revenue being less than expected due to its poor performance, which no doubt also reflects through to poor human relations performance?
The noble Lord is aware that there are certain aspects of that contract which are confidential. There is a letter in that respect coming through to the noble Lord, which I signed off this morning. The Government have also committed to extensive compensation and Delay Repay 15 has been launched for long-suffering commuters. But let us be absolutely clear: this is a long-standing dispute and, yes, it involves challenges with the contract itself and with Network Rail, but it also involves challenges with the continued action by the unions. The Secretary of State has been very clear. He has written to the trade unions inviting them to meet with Southern at ACAS and they have not taken up that offer. We need to ensure that we can head off further disputes of this kind and further interruptions to the service because, frankly speaking, over half a million people are going to suffer from further strike action.
Can I ask my noble friend to be very persistent with the Secretary of State? This is just no good. Today, the first two trains this morning were delayed, but we heard no excuse, such as “Sorry, there are no guards” or “no drivers” or whatever. When people then get into the carriages and look at the tabloids that are available today, they see that most of the tabloids have full-page ads from Southern saying, “Oh, we are sorry”, but they hear nothing about it. Why can we not get the board of Southern to go and stand on the cold, wet platforms at 6.15 am and get into London at least an hour late?
I know that my noble friend has raised this issue both in your Lordships’ House and also with me bilaterally. Let me assure her that I do not miss an opportunity to ensure that the Secretary of State is fully aware of the strong sentiments in your Lordships’ House. However, let me also assure her that the Government have set up a scheme by which compensation will be guaranteed to those long-suffering commuters. Regarding her suggestion, I am sure that the board of Southern is listening very carefully. Equally, it did appear at ACAS yesterday and the unions did not. Let us also contextualise this: the dispute with the unions is over driver-only operation of trains, but 99% of the people impacted have signed the new contract. It is about time they got back to work so that the other issues, which are to do with Network Rail and GTR, can be resolved. The dispute is not helping to resolve the issues on the line and it is not helping long-suffering commuters.
My Lords, given that on non-strike days there is continuous disruption on this line—and those of us who travel on it daily have had to suffer the farce that has been going on for longer than six months—can the Minister tell the House what discussions the Government have had with the company regarding the management of its sickness and absence policy? It is precious little comfort to those of us who are trying to get on a train, or waiting for trains, to be told time and time again that there is “a temporary shortage of train crew”. What is the company doing about that? It is all very well to go on about how the union is not doing what you want it to do, but over the last nine to 12 months the company has been coming out of this argument looking shabby indeed.
As the noble Baroness knows, I have acknowledged the fact that the company’s communications have been ineffective and that it has to take responsibility. I have never stood at the Dispatch Box and said that this problem comes from the unions alone. It is a challenge; there are challenges between the company and Network Rail. In that regard, as the noble Baroness will know, my right honourable friend the Secretary of State has appointed Chris Gibb to look specifically at the continuing issues: not at strike days—which, as she rightly highlighted, arise—but at ensuring that the issues on the line can be resolved. A new alliance board has also been established, which includes passenger representatives, and its report will be with the Secretary of State by the end of this month.
My Lords, I declare an interest as a resident of Sussex who attempts occasionally to use this line. I thank the noble Lord for his role in supporting Peers who are interested in this subject. How much worse will this transport crisis have to get in the south-east of England before the Government intervene directly to take control of the situation?
As my noble friend knows, the Government have been taking serious regard of all the concerns that have been raised. My honourable friend the Rail Minister meets with GTR weekly. My right honourable friend the Secretary of State has appointed Chris Gibb to look at the issues which arise between Network Rail and GTR, and his report will come through at the end of this year—at the end of this month. As I said, my right honourable friend the Secretary of State has now written directly to both RMT and ASLEF, asking them to meet with Southern at ACAS, where we hope this issue can be resolved. I agree with my noble friend and with all noble Lords; many in this House and beyond have rightly raised this issue because they are exasperated. That is probably a reflection of the sentiment the Government feel. We are taking major steps to resolve this issue, and I implore all parties, particularly those involved with the dispute, to come forward so that we can tackle the dispute and then the long-standing issues which impact negatively on this line and on many people in the south-east of England.
My Lords, will the Minister consider whether the operators of this service are still fit persons to operate it at all, and will that be taken into account when the franchise comes up for renewal?
The noble Lord raises the specific issue of the contract. I assure him that when we have directly raised issues about the failures of this line, as noble Lords will be aware, GTR has raised the issue of force majeure. We have now gone further and are looking at each case of force majeure, which impacts on 10,000 separate train lines, and which it raised between April and June of this year, to see whether they stack up. The DfT is currently looking at that report to ensure that, every time that is claimed on that contract, it is looked at extensively and we can respond accordingly. Until we have completed that exercise, we cannot hold GTR in breach, because we have to establish whether the basis for it claiming force majeure is valid.
My Lords, will the Minister consider that there is a case for people being summoned to ACAS, not asked whether they would care to come along? The unions are inflicting awful, personal damage on people. A decent industrial relations strategy would let ACAS issue a summons, not an invitation, and it would then have the power to act as an arbitrator in those cases and give a pendulum arbitration decision that would be binding on both sides.
My Lords, industrial relations in this country to a large extent have been dictated by the fact that many people—and rightly so—come willingly to ensure that disputes can be resolved. I hope that all parties concerned in this dispute reflect carefully on their position to ensure that they are acting in people’s true interests. What marks our country’s industrial relations is that, whether you are a union representative, a company representative or an arbiter like ACAS, we come together to resolve disputes amicably and in the best interests of commuters. I hope that that happens in this case.
That the amendments for the Report stage be marshalled and considered in the following order: Clauses 1 and 2, Clause 4, Schedule 3, Clauses 5 to 16, Clauses 18 and 19, Clauses 21 to 51, Schedule 5, Clauses 52 to 60, Clause 17, Clause 3, Schedules 1 and 2, Clause 20, Schedule 4, Schedule 6, Clause 61, Schedule 7, Clauses 62 and 63, Title.
My Lords, I often feel when I have the first amendment after Questions that I should explain to Members of the House that it may not be the showstopper that they will be expecting later in the afternoon. Also in this group are government Amendments 180 and 181, which also relate to the requirement to state nationality. I thank the Government for their amendments. I will leave the Minister to decide whether I am insufficiently grateful or was simply asleep on the job when we debated this previously Amendment 179A deals with the new section to the UK Borders Act introduced by Clause 144. The requirement to state nationality is not a casual inquiry. It will be a criminal offence not to give nationality in the circumstances set out and it will carry sanctions of a fine and imprisonment. We propose in this amendment that the requirement should be made only if the immigration officer or police officer concerned reasonably suspects the individual not to be British. Amendment 179B contains a similar amendment to the requirement to produce a nationality document. We regard this as appropriate if one is to have these provisions at all and believe they should reflect the Immigration Act of earlier this year in which provisions about searching a person or premises for a driving licence require, “reasonable grounds for believing that a person … is not lawfully resident in the United Kingdom” Inserting a requirement of reasonableness seems entirely appropriate Government Amendment 180, which responds to an amendment proposed by the Joint Committee on Human Rights, of which I am a member, seems a little narrower than that proposal, which referred to, “alternative documents sufficient that such a document would normally be issued by the relevant authorities” Our Amendment 180A takes what amounts to documents that enable the establishment of nationality a little further than what would normally be sufficient to establish it. It occurred to us, for instance, that when a person’s country is in a state of conflict it may not be possible to follow through to the establishment in the way that the government amendment requires. In other words, it would not be possible to fulfil the requirement Amendment 181 with regard to pilot schemes is welcome. Can the Minister tell the House where the pilots will take place, how long they will last and, especially, what is “effectiveness”, which is referred to in the amendment? The Delegated Powers and Regulatory Reform Committee has commented on this amendment, which it calls “a sub-delegation of power”—which is one for the real aficionados of constitutional niceties—and said that it, “would expect to be given a compelling justification for any such power of sub-delegation, why it is needed and how it is intended to be exercised” It very delicately made the point, about which I will not be so delicate: “The scope … is potentially significant and could … allow the obligations … to be targeted on different classes of persons” As the Minister will be aware, we are concerned about the possibility of discrimination in the application of the provision The DPRRC went on to say that, “‘piloting’ generally means that powers are being conferred to apply new statutory provisions unevenly and temporarily on an experimental basis. For this reason, we usually expect certain standards to be met in relation to pilot schemes”, which it sets out as: “the intended purpose of the pilot regulations”; use of the affirmative procedure; a requirement on the Secretary of State to “consult interested parties”; to, “provide on the face of the Bill for the maximum duration of any pilot regulations”; and to require the Secretary of State to report on their “outcome and effectiveness” and lay the report before Parliament. The committee makes recommendations to that effect. The Minister will obviously be aware of the DPRRC’s report. I hope she will respond to each of those items Amendment 181A reflects our concern that it will be only too easy for the clauses to allow for racial and ethnic discrimination. It would not be the first time that assumptions have been made by law enforcement officers. The Home Office under the previous Home Secretary was particularly aware of the importance of stop-and-search powers not being applied in a discriminatory fashion and disproportionately. Our amendment would require an assessment in this regard. Amendment 181B would require a report on that assessment—not just on possible discrimination, but on effectiveness Amendment 181BA is on the same theme. We were concerned—I was going to say on these Benches, but it was not only on these Benches—during the passage of the Immigration Bill about what I have heard badged as the “offence of driving while black”: in other words, somebody subject to discrimination who is required to produce a driving licence or documents to prove he is entitled to drive. We suggest in this amendment, admittedly in deliberately quite short order, that the review should focus on the application of the provisions in the relevant clauses in this Bill and the sections in the Immigration Act, the effects of which focus in particular on ethnicity and nationality The Minister may regret putting the pilot scheme into the Bill rather than just announcing it, having all these questions asked of her, but we welcome the careful approach she has signified. We are keen to follow it through, as I hope our amendments and my remarks indicate. I beg to move.
My Lords, on looking at Amendment 179A and Amendment 179B in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, your Lordships might think that they are not necessary. They insert only the word “reasonably” in both cases. I would not agree with that. They are very important additions in the context of this part of the Bill, which concerns the circumstances whereby an individual may be required by an immigration officer or a police officer to state their nationality The words “reasonably” or “reasonable” are often used in a legal context. Your Lordships can find the word “reasonable” in this part of the Bill. I refer noble Lords to page 163, where at line 28 we have “without reasonable excuse”, at line 31 “not a reasonable excuse”, and at line 35 “reasonable cause” These uses of “reasonable” place obligations on the person being arrested for an offence. It is right that in the same part of the Bill the same obligation to act reasonably should be placed on the immigration officer or police officer when requiring someone who has been arrested to state their nationality. They must have some reasonable suspicion that the individual may not be a British citizen. Acting in the way that any prudent person in a similar situation would act is a proper duty to be placed on officers when in that situation.
My Lords, as we have heard, this group of amendments relates to the provisions in Clauses 144 and 145, which confer powers on police and immigration officers to require a suspected foreign national to state their nationality after arrest and to produce nationality documents where required. Following the debate in Committee, government Amendments 180, 181 and 194A seek to address concerns raised then by the noble Baroness, Lady Hamwee, and the Joint Committee on Human Rights. The noble Baroness has tabled a number of amendments of her own, designed to push the Government a little further, but before I respond to these I shall explain the government amendments Amendment 180 concerns the situation where a UK national does not possess a passport and is otherwise suspected to be a foreign national. As recommended by the JCHR, this amendment clarifies that officers are able to take into account alternative documentary evidence which would establish an arrested person’s entitlement to a British passport. Supplementary guidance will also be provided to make it clear to officers what specific evidence would normally be sufficient to establish nationality and can therefore be taken into account in that assessment. Given this, I do not believe that Amendment 180A, which seeks a similar end, is necessary Amendment 181 will enable us to pilot these provisions on a limited basis to ensure that police processes are robust and that there are no adverse consequences for black and ethnic minority British nationals. Following the pilot and in advance of the rollout of these provisions, we will lay a report before Parliament on the outcome and effectiveness of the pilot. Among other things, the report will include a full equality impact assessment. Given this undertaking, I hope that the noble Baroness will agree that Amendments 181A and 181B are also unnecessary. The noble Baroness wanted to know where the pilots will take place. Subject to agreement with the police, one pilot will take place in Hampshire and the other has yet to be agreed Amendments 179A and 179B seek to make it clear that an officer may impose the requirements in Clauses 144 and 145 only when it is reasonable to do so. However, it is already the case that officers may only ever act on reasonable grounds when exercising their powers. Accordingly, I put it to the noble Baroness that there is no need to write this into the Bill. Moreover, in respect of the offences in these clauses there is, in each case, a reasonable excuse defence Finally, Amendment 181BA seeks to provide for a post-legislative review of not just the provisions in Clauses 144 and 145 but also the powers conferred by the Immigration Act 2016 to search for and seize driving licences held by an illegal migrant. There is an established procedure for post-legislative review of all legislation, which takes place three to five years following Royal Assent. Consequently we do not need to make express statutory provision for this While this is not the occasion to reopen the debates on last Session’s Immigration Bill, I shall just make a couple of observations about the new powers in relation to driving licences. During the debates last Session on these powers, my noble friend Lord Bates made a number of commitments addressing the concerns then raised by the noble Lord, Lord Paddick, including a commitment to pilot the power to search for a driving licence in one or two police areas. The pilot will test the operational details so that any impacts can be identified by the pilot scheme and addressed. My noble friend also committed to issuing guidance to police and immigration officers on the operation of these powers and to a public consultation on that draft guidance before implementation. The consultation will raise awareness of these powers and provide an important gateway through which communities will be able to consider and comment on, among other things, appropriate safeguards It is also unnecessary to set up an ad hoc independent review every time we wish to scrutinise police forces’ use of specific powers; Her Majesty’s Inspectorate of Constabulary exists for this purpose. The inspectorate independently assesses police forces and policing activity in the public interest. The PEEL inspection programme —an annual, all-force inspection which assess forces’ efficiency, effectiveness and legitimacy—considers both the extent to which forces use their powers effectively and the extent to which forces treat the people they serve with fairness and respect. In addition, the Home Secretary has the power to commission HMIC to inspect and report on any particular issue if she feels that it requires greater scrutiny than it has received in the course of rolling inspection programmes HMIC has a strong track record in shining a light on police use of intrusive powers and has not pulled any punches in its reports on stop and search. It is largely due to HMIC’s findings that the previous Home Secretary announced increased scrutiny of road traffic stops through their incorporation into the best use of the stop and search scheme. We are therefore confident that the necessary systems to provide effective scrutiny of these powers are already in place. The clear statutory safeguards against the misuse of this power, the commitment to a pilot and a public consultation and the role of HMIC mean that this amendment is unnecessary The noble Baroness also asked about the Delegated Powers and Regulatory Reform Committee’s recommendation. As this is essentially a commencement power, we are not persuaded that the regulation should be subject to a parliamentary procedure. However, I assure the House that we will set out in the regulations the duration of any pilot, and I have already undertaken to lay a report before Parliament on the outcome and effectiveness of the pilot before we commence these provisions more widely I trust that this rather lengthy explanation of the government amendments will provide the necessary reassurance to the noble Baroness, Lady Hamwee, and that she will therefore be content to withdraw her amendment.
Before the Minister sits down, will she address the point I made earlier about page 163 where “reasonable” is used a number of times in respect of suspects but not of police officers. Why is that distinction there? If the Minister would like to write to me, that is fine, but I think it is odd that there is that distinction.
I will write to the noble Lord to clarify that point.
My Lords, I am grateful to the noble Lord, Lord Kennedy. When the noble Baroness writes, perhaps she can also explain this about what the Government did in the Immigration Act 2016. For this purpose, I simply refer to Section 43, which introduces a new paragraph in Schedule 2 to the 1971 Act providing for power to be exercised only if the authorised officer has “reasonable grounds” for believing that, in this case, the driving licence is on the premises. The very fact that that terminology is used in legislation which we passed a mere few months ago must raise the question of why it is not included in the comparable clause in this Bill. I know that the noble Baroness cannot answer this at the moment, but I hope that as well as writing, she might be able to discuss this with officials. It is an intrinsically important point, but also a technical one, as to why it should not be included in this Bill. Perhaps we can come back to this at Third Reading. I am not of course expecting her to do anything other than nod sympathetically, as she is doing The Delegated Powers and Regulatory Reform Committee will no doubt consider the Government’s response, but I note that on the question of the affirmative procedure, the Minister said that she did not think that these regulations should be subject to parliamentary procedure. The committee also suggested, or would require, that the Secretary of State should consult interested parties before making the regulations. I am not sure—I might have missed it—whether she referred to the maximum duration of pilots. I accept that there will be post-legislative reviews, and that everything has to be kept under review, but it is the importance of the subject matter which led us to raise the point about requiring an ad hoc review I do not know whether the Minister has any information as to whether the pilots and guidance under the Immigration Act are going to be introduced in tandem with, and in the same areas as and so on, the pilots under this Bill. Does she have any information about that?
I think that is still under discussion at the moment with various authorities.
My Lords, we will see, but I am glad to note the Home Office’s acceptance of the importance of the issue, which I never had in doubt. I beg leave to withdraw the amendment.
My Lords, I will speak to the amendments in this group in my name and the names of my noble friend Lady Williams of Trafford and the noble Lord, Lord Cashman. The support of my noble friend the Minister signifies that these amendments have been accepted by the Government, and I thank her for all that she and her officials have done to bring about their acceptance. I am indebted to my noble friend for her constant understanding and kindness. I am also delighted to have the support of the noble Lord, Lord Cashman, a strong and constant ally in helping to secure the benefits that gay people in Northern Ireland will obtain as a result of our amendments. His work has been widely noted and appreciated by those who campaigned tenaciously to achieve in the Province all the rights that gay people enjoy elsewhere in our country. The need for equality throughout the United Kingdom on this issue of human rights was strongly supported in Committee by the noble Lord, Lord Kennedy of Southwark, from the Opposition Front Bench, and I thank him most warmly This Bill now incorporates amendments proposed in Committee by the noble Lord, Lord Sharkey, and accepted by your Lordships’ House. They will have the effect of making available in England and Wales pardons to those who were cautioned or convicted under cruel and discriminatory laws, now repealed, that bore so heavily and so unfairly for so long on homosexual and bisexual men. They will make reparation, to the extent that it is possible and practicable, to those still living and remove a terrible stain from the reputations of those who are no longer alive, for the comfort of their families Naturally, gay people in Northern Ireland felt that their part of our country should not be excluded from such an important measure of belated justice. I was glad to act as their representative and spokesman in Committee by bringing forward amendments designed to extend to Northern Ireland what has now been agreed for England and Wales. I had the great good fortune to be able to draw on the wide legal knowledge and accomplished drafting skills of Professor Paul Johnson of York University, who produced the amendments discussed in Committee. It is his work, refined and extended by leading officials of the Home Office, that will now confer on gay people in Northern Ireland the equal rights arising from this major reform, which they want and deserve Laws are not now normally enacted at Westminster, in this and many other areas of policy that have been devolved to Northern Ireland, without the approval of its Assembly, expressed through the adoption of a legislative consent Motion. In Committee, I referred to the strong hope that such a Motion would be passed by the Assembly, and it was duly passed on 28 November. Its smooth passage, preceded by the rapid and successful completion of discussions in the Northern Ireland Executive, owes much to the new, young Minister of Justice in Northern Ireland, Claire Sugden My gay friends in Northern Ireland detect a more relaxed, modern and progressive mood among young people in particular. The Minister gave expression to it at Stormont last week when she said that, “giving permission for Westminster to pass these provisions for Northern Ireland offers an immediate opportunity for the criminal justice system … to right the wrongs of the past” She went on to stress the need to, “ensure that the criminal law in Northern Ireland offers equality of treatment for gay and bisexual men in Northern Ireland, as it would do in England and Wales” These are most encouraging and heartening words The noble Lord, Lord Sharkey, paved the way for the granting of pardons for offences that should never have defaced the statute book in England and Wales by securing the creation, in 2012, of what is known as a disregard scheme, under which application can be made to have such offences wiped from the record. These amendments will authorise the introduction of such a disregard scheme in Northern Ireland. Individuals will be able to apply to the Justice Department to have their convictions for discredited former offences disregarded on criminal records. All successful applications will be followed automatically by the granting of pardons. Automatic pardons will also be given in posthumous cases Very importantly, the amendments confer power on the Northern Ireland Justice Department to add further discredited offences to the disregard scheme by means of regulations. Similar provision is to be made for England and Wales under amendments in this group to be moved by my ally, the noble Lord, Lord Cashman The arrangements to be introduced in Northern Ireland under these amendments will differ from those in England and Wales, at least initially, in one respect: disregards and pardons will be available for past offences committed by those who were at the time at least 17 years of age, not 16 as in England and Wales. This is because until recently Northern Ireland had 17 as its age of consent. Claire Sugden made plain that she is very open to further discussion of this point in the Northern Ireland Assembly I have one further matter to raise relating to Clause 148(4), which provides that posthumous pardons will be made available to those convicted of certain abolished offences under service law. As it stands, however, Clause 148(4) makes posthumous pardons available only to those convicted as far back as the Naval Discipline Act 1866. This is inadequate because, like the equivalent civil law provisions that extend back nearly five centuries to the Henrician statute of 1533, service law criminalised consensual same-sex sexual acts between members of the Armed Forces long before 1866. Between now and Third Reading the Government may wish to consider incorporating these earlier provisions, and equivalent ones in respect of the Army, into Clause 148(4) to ensure that those convicted of service disciplinary offences prior to 1866 are eligible to receive a posthumous pardon in the same way as those convicted after that date. This point has been brought to our attention by the omniscient Professor Johnson I conclude with the words of Councillor Jeffrey Dudgeon, whose case at the European Court of Human Rights in 1981 led to the decriminalising of homosexuality in Northern Ireland. He has said that these amendments, “will right a wrong for a small but very significant group of living people, and also bring satisfaction and comfort to a greater number of relatives and friends of those who died with their reputations scarred by cruel convictions” I beg to move.
My Lords, I am extremely pleased to speak to the amendments by the noble Lord, Lord Lexden, to which I have proudly added my name, and to the other amendments in this group in my name and that of the noble Baroness, Lady Williams My ally, the noble Lord, Lord Lexden, has put the case eloquently and exhaustively for these measures of pardon and disregards to be extended to Northern Ireland, ensuring that the wrongs so often visited upon gay and bisexual men can now be righted, atoned for and, indeed, corrected. He is right to quote Councillor Jeffrey Dudgeon, who, along with so many others, has shown courage and leadership in fighting for LGBT equality in Northern Ireland and elsewhere, as indeed has the noble Lord. I congratulate him on the work that he has carried out exhaustively and with fortitude. I, too, record my thanks to Professor Paul Johnson of York University, who has been invaluable in shaping our approach, and who, with Paul Twocock at Stonewall, has guided me with patience and great wisdom I hope noble Lords will allow me a short moment of reflection. When I campaigned against Section 28 of the Local Government Act in 1988 and subsequently co-founded and chaired Stonewall from 1989, I never imagined that we would achieve equality for LGBT people in my lifetime, nor that I would be in your Lordships’ House to bring together arguably the last pieces of the legislative jigsaw of legal equality for lesbian, gay and bisexual people. I know that we still have much more to do for the trans community, and we will. Yet I remind myself that what we achieve now is not achieved by us but was made possible by a thousand generations of LGBT people and our heterosexual allies who stood up and fought for equality, often giving up their livelihoods, their freedom and, in some instances, their lives. Moments like these make me feel truly humbled as I recognise their sacrifices over hundreds of years In Committee, I moved an amendment to include an offence that was missed from the disregard scheme set up to allow gay and bisexual men who were unjustly convicted under old sexual offences laws to have that crime wiped from their criminal record. The offence, Section 32 of the Sexual Offences Act 1956, titled “Solicitation by men”, also referred to importuning for immoral purposes and was used right up until repeal in 2003 to arrest men for the simple act of chatting one another up in the street or suggesting that they should return to their home. Arrests were often made in police stings, where plain-clothes police officers encouraged gay or bisexual men to approach them. It was a key tool used by the police and the criminal justice system to create the climate of fear that hung over gay and bisexual men trying to meet each other right up to the early 1990s Currently, men convicted under this Section 32 offence cannot have their offence deleted, so they still face having it registered whenever they have a criminal records check made for employment, volunteering or other purposes. When I spoke to this in Committee, the Minister responded to my proposal in an open and positive way, and I am pleased to say that through discussion with her and officials we have developed an holistic approach that not only ensures that safeguarding can be watertight but gives us an opportunity to include other offences that may have been used imaginatively and perniciously in the past to unjustly prosecute gay and bisexual men My amendment gives the Home Secretary the ability to lay down regulations, subject to affirmative action, to amend the Protection of Freedoms Act 2012 to add in additional offences to the disregard scheme where it is shown that they were used in a persecutory way to regulate the lives and activities of gay and bisexual men in the past. We are taking this approach for two very good reasons First, Home Office officials will now need more time to do due diligence on the case law related to the Section 32 “Solicitation by men” offence to ensure that when it is included in the scheme convictions under the offence that would still be illegal today it cannot be open to being deleted from the record. Although there is plenty of evidence and case law demonstrating how Section 32 was used unjustly against gay men in particular, it had a wider scope and it is important that we ensure that anything that remains illegal today is excluded from the disregard scheme Secondly, there is also evidence that other more general offences were used to catch and prosecute gay and bisexual men, such as meeting up, kissing in public and other activities that would be totally legal today. The approach in the amendment will give Home Office officials the scope to investigate these other offences, and as evidence of unfair prosecutions arise the Home Secretary can extend the scope of the disregard scheme to ensure that every gay and bisexual man unjustly convicted in the past can have their criminal record deleted My amendment will also ensure that any regulation that provides for people still alive to have their offence deleted will also extend the pardon to people who are no longer alive. I am extremely pleased that the Minister is co-sponsoring this important amendment and consequential amendments. Although people who are still alive will still need to make an application to have their offence disregarded so that it can be checked against the conditions and then physically removed from the criminal record, the effect of a disregard is much more powerful than a pardon. In supporting the amendment I believe that the Government have the opportunity to send a message to the LGBT community in particular that the disregard scheme and the automatic pardon for people who have since died are all about atoning for the actions of past Governments. It is in effect an apology and a sincere attempt to right the wrongs of the past It also gives us the very important opportunity to raise awareness of the disregard scheme with people who could benefit from applying to have their old conviction or caution deleted from the record. I hope the Government will work with the LGBT media, Stonewall and other organisations to send the message out about who can benefit from applying and to make sure that the process is as straightforward as possible Taking the lead from the noble Lord, Lord Lexden, I wish to thank others who have contributed so valiantly to these amendments and to the cause of equality: the noble Lord, Lord Sharkey, other noble Lords, and my noble friend Lord Kennedy for his comments in Committee. More importantly, a lesson I learned at a very early age is the importance of saying thank you where it matters most. I want to close by thanking the noble Baroness, Lady Williams, personally for the work that she and her officials have put into the amendment. This is an opportunity to do that which is just, right and necessary; and I am proud that we are so doing.
My Lords, briefly, I thank the noble Lords, Lord Lexden and Lord Cashman, for introducing the amendments, and the noble Baroness for supporting them, and ask that she consider the matters still outstanding, to which the noble Lord, Lord Lexden, referred, concerning the Armed Forces. I am very grateful that the Government are also considering other offences mentioned by the noble Lord, Lord Cashman, as a consequence of his amendment.
My Lords, I very much support all the amendments in this group. We have made tremendous progress in recent years in seeking to redress the effects of homophobic legislation. Terrible injustices were suffered, and previous changes to the law and the amendments are intended to go some way to correct that and make amends. They have my full support and that of my party Of course, we need to go further in Northern Ireland, but this is an important step. I want to see the day when LGBT people living in Northern Ireland have exactly the same rights, protections and freedoms as LGBT people living in England, Scotland and Wales. We are a United Kingdom, albeit with devolved institutions, but LGBT people should have the right to get married in Northern Ireland; that must be urgently addressed by the Northern Ireland Assembly and the ministerial team led by the First Minister and Deputy First Minister in Stormont. It is wrong to keep using the petition of concern procedure to block progress in this matter. The UK Government must play their role in championing the rights of LGBT people in Northern Ireland by raising this issue at ministerial and official level. It is not enough for the Government to say that it is a matter for the devolved institution During Committee on the Bill on 9 November, I made clear my support for a range of amendments proposed by several Lords. I was clear that welcome progress was being made, but that the amendments proposed by my noble friend Lord Cashman were in my view the best ones before your Lordships’ House. They were not accepted by the Government, but discussions have taken place outside the Chamber, and the amendments proposed by my noble friend Lord Cashman and the noble Baroness, Lady Williams of Trafford, are very welcome. I thank the noble Baroness very much for listening and working with my noble friend on them I pay warm tribute to my noble friend Lord Cashman. We have been friends for many years. It is his tireless campaigning with others, including the noble Lord, Lord Lexden, that has got us to this point today, and we should be very grateful to them all Although it is not on the subject of the amendments, I will make one final point on equality in Northern Ireland in respect of women’s equality. The Northern Ireland Assembly, Ministers, led by the First Minister and Deputy First Minister, and the political parties must get together to deliver equality for women living in Northern Ireland, so that they enjoy the same rights as women living in England, Scotland and Wales. Again, the UK Government have to play their role by raising that at ministerial level. Although that is a matter for another day, it is an important issue to which we must return. In conclusion, I confirm my full support for the amendments.
My Lords, I am so pleased to be able warmly to support the amendments proposed by the noble Lord, Lord Cashman, and my noble friend, Lord Lexden. I also acknowledge the spirit of very positive co-operation that has led to the amendments. I recognise that they will continue to strengthen the efforts made by this Government to tackle the historical wrongs suffered by gay and bisexual men in England and Wales—and now Northern Ireland—who were criminalised over a long period for something that something that society today regards as normal sexual activity I shall deal first with Amendments 181D, 181E and 181F, tabled by the noble Lord, Lord Cashman. As he explained, they will enable the Secretary of State to extend, by regulations, the list of offences eligible for a disregard under the provisions of the Protection of Freedoms Act 2012. The regulation-making power enables the necessary modifications to be made to Chapter 4 of Part 5 of the 2012 Act, and provides for corresponding provision for pardons to that contained in Clauses 148 and 149 of the Bill In Committee the noble Lord made the case for other offences being included in the disregard process, in particular the offence of solicitation by men which is in Section 32 of the Sexual Offences Act 1956. As I indicated at that time, the Government are broadly sympathetic to this, but we need more time to work through the implications of adding offences to the disregard scheme, and in particular the conditions that need to be satisfied before a conviction could be disregarded. In recognition of the fact that we should not rush that consideration, Amendment 181D enables the Home Secretary to add other abolished offences to the disregard scheme by regulations, subject to the affirmative procedure. It is important that, in taking this forward, we are able to distinguish between activities that are now no longer illegal and those that are still illegal. This amendment also gives us scope to consider what other offences may be appropriate for inclusion, so it is to be welcomed as a signal of our continued commitment to address these historical wrongs As my noble friend Lord Lexden explained, the amendments in his name introduce a comparable disregard scheme in Northern Ireland to match that already in operation in England and Wales. They also introduce the same approach to statutory pardons as that contained in Clauses 148 to 150 of the Bill As I indicated in Committee, as these provisions relate to transferred matters in Northern Ireland, it is right that this House should respect the usual convention that the UK Parliament legislates in respect of such matters only with the consent of the Northern Ireland Assembly. I am pleased to say that the Assembly adopted the necessary legislative consent Motion on 28 November My noble friend Lord Lexden pointed out the important difference in the Northern Ireland disregard scheme; I thank him for explaining it to the House so that I shall not have to go through it again. I am pleased that we have been able to work fruitfully with the noble Lord, Lord Cashman, and with my noble friend, and I commend their amendments to the House My noble friend Lord Lexden pointed out an apparent contrast in the approach taken in Clause 148 as between civilian and service offences. That clause confers posthumous pardons for convictions for buggery and certain other abolished offences tried in the civilian courts, which date back to the Henry VIII statute of 1533—whereas posthumous pardons for convictions for the equivalent offences under service law reach back only to 1866. My noble friend said that it was in fact the Navy Act 1661 which first criminalised buggery in the Armed Forces. While the intention behind Clause 148(4) is to capture only relevant service offences that could have been prosecuted in either civilian or service courts, my noble friend may have alighted on a very valid point. I therefore undertake to consider this matter further with a view to bringing back a suitable amendment at Third Reading.
My Lords, I must express most grateful thanks to all noble Lords who have taken part in the debate. Those who will benefit from these measures in Northern Ireland will derive great satisfaction from this part of our proceedings today. There is, as the noble Lord, Lord Kennedy of Southwark, emphasised, more to be done—but these measures will, I think, assist the new pattern of more tolerant, inclusive and peaceful life that is evolving in this important part of our country.
My Lords, Amendment 181M is in my name and that of my noble friend Lady Hamwee. I tried to make it clear in Committee that the specific offence of being a suspected person loitering with intent to commit an indictable and later an arrestable offence under that specific part of Section 4 of the Vagrancy Act 1824 and how it was used against the black community is seen by the black community—and by many others, myself included—as as much of a clear historical wrong as the offences that we have just debated In Committee, the Minister suggested that, without looking at the facts of individual cases, it is impossible to know whether the conduct in question would still be an offence today. In Committee, I described exactly how, in circumstances where a person behaved in a way that would have amounted to an offence today, they would have been charged with a substantive offence—for example, attempted theft of or from a motor vehicle, or attempted burglary. I suggested that it was only when behaviour did not amount to an offence under other legislation that individuals would have been charged with an offence of being a suspected person under Section 4 These offences are important and symbolic to the black community and how they have in the past been, and continue to be, discriminated against in the criminal justice system. I beg to move.
My Lords, this amendment in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, was debated in Committee. It is fair to say that it did not get a warm welcome from the Minister in responding to the debate. I was surprised to learn that the Government had no data at all on the number of people affected by the law before it was abolished. Clearly, the amendment is not going to be accepted by the Government tonight, but the noble Lord is right to keep raising the issue and I hope that it will keep being raised. It is only by doing so that we can explore what options are available to us, what happened in the past and whether it was right and whether, with hindsight, the offence should have been removed from the statute books many years before it actually was, as it was used in a way that discriminated against black people I hope that, when the Minister responds to this short debate, she can focus particularly on the amendment. In her response in Committee, the focus was as much on the previous debate, so I hope that it can focus particularly on the points voiced before us here today.
My Lords, I thank both noble Lords for explaining the amendment, which was of course also tabled in Committee, seeking to confer a pardon on persons, living and deceased, who were convicted under that part of Section 4 of the Vagrancy Act 1824 which was repealed by Section 8 of the Criminal Attempts Act 1981. Section 4 of the Vagrancy Act 1824 was originally a wide-ranging provision, and some of it is still in force today. The part with which the noble Lord’s amendment is concerned is the offence of being a suspected person, frequenting, in effect, any public place, “with intent to commit felony”, or, as it became, an arrestable offence. The noble Lord has illustrated from his own experience, and the Home Affairs Select Committee identified in 1980, that this so-called “sus” offence was used in a discriminatory and unfair way, particularly in relation to young black men. However, as the noble Lord has also acknowledged, not every conviction under this provision, certainly not going all the way back to 1824, was wrong or unfair. In fact, the Home Affairs Select Committee concluded: “The most powerful argument against ‘sus’ is that it is a fundamentally unsatisfactory offence in principle”.
I am grateful to the Minister, who perhaps lulled me into a false sense of hope and optimism by saying that the Government are not “currently” minded to agree to this. We clearly do not want to go back more than 200 years—I think the law was aimed at dealing with soldiers returning from the Napoleonic wars and begging in the streets—but where it is a question of discrimination against the black community perhaps we can do some work and target any future consideration more accurately. I am grateful to the noble Lord, Lord Kennedy of Southwark, for his support, and I beg leave to withdraw the amendment.
My Lords, in moving Amendment 182 on anonymity before charge, I refer to an earlier amendment which I moved in Committee on 2 November. It proposed substituting “lack of evidence” for “insufficient evidence” when police communicate a decision not to charge. Eight noble Lords spoke in support and I have now had the Minister’s letter of 1 December saying that the Government agree to replace the phrase “insufficient evidence” with revised wording which will be incorporated in fresh guidance, to take effect by next spring. However I am afraid that their suggestion of the words, “the case failed to reach the evidential test”, does not quite hit the spot. Frankly, “no case to answer”, would be better but that is probably a discussion for another day I am glad that the Government listened to the Committee. I am grateful to the Minister for using her influence on the Home Office. I hope she will do so again, after this debate. The matter is really very simple. There have, particularly in recent years, been a number of instances when the police have released the names of suspects or publicly identified them at a very early stage in their investigations into allegations and complaints, particularly of sexual impropriety. A most notorious example was on 14 August 2014 when the Yorkshire police arranged for the BBC to film and broadcast their entry into the house of the pop star Sir Cliff Richard. Sir Cliff must have gone through hell before it was eventually accepted that he had no case to answer There are many other examples. We may remember the wholly inappropriate way in which, on 3 August 2015, a superintendent of the Wiltshire police posed for television cameras in front of Sir Edward Heath’s final residence in Salisbury, encouraging people to claim that the former Prime Minister had misbehaved with children. The superintendent was launching an investigation on which the Wiltshire police have now spent over £700,000 of taxpayers’ money, with the chief constable of Wiltshire apparently determined to continue his fishing expedition indefinitely The method of fishing adopted by Wiltshire police seems to vary between the utterly naive and the patently absurd. I have been told by a former member of the Downing Street staff that they were contacted by one of the investigating officers, who asked, first, whether they had noticed any untoward incidents at any time in the behaviour of the then Prime Minister and secondly, whether they had noticed any young men slipping in and out of No. 10 Downing Street. Surely the Wiltshire police and crime commissioner has a role in pointing out the opportunity-cost of this farce and guiding the chief constable on priorities in the use of limited police resources In Committee a number of noble Lords raised this issue of the police being free to name suspects and the Minister is on record as saying that, “it is absolutely right and proper for the police to have operational independence in deciding whether to name a suspect”.—[Official Report, 16/11/16; col. 1466.] My response to that is simple. Searching a house is an operational matter, on which the police must make a judgment. However, to search a house they have to obtain a magistrate’s warrant before they do so. Indeed, the centuries-old requirement for a search warrant forms part of the fundamental protection of our liberties, under both statute and convention, which has its roots in Magna Carta The impact of modern social media means that naming suspects is a powerful weapon; indeed, sometimes even a lethal one. I am not saying that it is never sensible for suspects to be named, sometimes even at a very early stage in an investigation. In sexual cases, or cases of fraud, for example, it may be necessary for there to be publicity that will encourage other victims of the alleged offenders to come forward. Indeed, the media have always had an important role in exposing allegations in the pursuit of justice. However, the media have to follow court directions restricting reporting—and they do so Hitherto it has been left to the police to make a judgment on whether to name a suspect. However, it has now been shown that all too often the police cannot be relied on to make the right judgment. In their recent decisions on naming suspects they have aroused much public resentment and indignation. This has resulted not only in often irreparable damage to the reputation of innocent persons but undermined confidence in, and therefore support for, the police History teaches us the need for vigilance in the defence of liberty. In September 1793, at the height of the reign of terror during the French Revolution, the so-called Committee of Public Safety passed the Law of Suspects, which meant that suspects, once named, could be put under the guillotine without any trial. This continued until July 1794, when Robespierre himself was guillotined. We are a million miles from that. But the road is the same and we must not take a single step along it. It is to halt and, indeed, remedy an unacceptable situation that I am advocating the urgent need for a check on the exercise of unsupervised police powers to publish the names of suspects. That is why in Amendment 182 I propose that the police should be required to obtain a magistrates’ warrant before publishing the name of a suspect who has not been charged. I realise that my amendment as drafted may not be the full answer, but I am anxious that the Government should address what has become a serious problem. I look forward to hearing the views of other noble Lords and, of course, of the Minister. I beg to move.
My Lords, we have Amendment 187 in this group but, before I address that amendment, I would like to speak briefly to Amendment 182. In Committee, some noble Lords asked why sexual offences should be a special case when it comes to pre-charge anonymity. Amendment 182 addresses that question by including all offences. However, there are three reasons why we cannot support this amendment. As I will set out shortly, not only do we believe that sexual offences are a special case, but the law acknowledges that they are a special case in which the normal principles of free speech and open justice are restricted. We believe that these are important principles that should be restricted only in those cases where there are specific reasons for doing so. In sexual offences cases alone, the identity of the complainant or victim is protected. For similar reasons, we believe that the identity of the accused should be protected up until the point of charge Secondly, in Committee, we also heard compelling reasons why the accused should be able to lift the ban on publicising his identity, if he wishes. The accused may wish to complain at the injustice of his case or appeal for alibi witnesses to come forward, for example. Amendment 182, as drafted, would not allow that The third reason is that we do not believe the magistrates’ court is the right place for such a decision to be made. We believe that such an important decision should be considered by a judge of a higher court Amendment 187 is substantially different from the amendment we moved in Committee in a number of respects. First, it is as close as possible to the wording of the legislation that currently protects complainants or victims in sexual offences cases. Secondly, it allows the accused to lift pre-charge anonymity at any stage if he wishes to do so. Thirdly, as well as specifying the minimum rank of police officer who can make an application, and the Crown Court as the appropriate court for hearing an initial application from the police for the ban to be lifted, it would specifically require the judge to have particular regard to the possibility that further witnesses might volunteer evidence relating to sexual offences committed by the accused. We believe that such cases will be rare and such applications will be exceptional, as I will explain We had a long debate on this issue in Committee, and I do not want to make my case again as it is a matter of record. However, I want to address the remarks made by other noble Lords in that debate, having had an opportunity to reflect on what they said. I will address head on, and at an early stage, the shocking picture that is emerging of allegations of historic child abuse at football clubs. Most of the initial allegations that attracted so much publicity, and gave rise to the unprecedented number of further allegations being made across the length and breadth of the country, involved the former football coach Barry Bennell. Bennell was convicted of sexual abuse offences in the United States in 1994, and convicted of further sexual offences in the United Kingdom in 1998, and again in 2015, for which he served terms of imprisonment. These are not cases where pre-charge anonymity would have had any adverse effect. Indeed, I suggest that these cases point to a change in culture where victims of sexual abuse are more willing to come forward. Therefore, they undermine to some extent an argument against pre-charge anonymity on the grounds that victims need to be given confidence to name people who have been accused but not yet charged The noble Lord, Lord Pannick, made this point in Committee—that publicity can lead others to come forward with supporting evidence that helps to make the case against a person who is rightly accused. But what if somebody is not rightly accused? What if somebody like Nick comes forward and makes highly damaging and groundless allegations against individuals? Is it right that these allegations and the identity of the accused are put into the public domain? How do we safeguard against others coming forward with similarly damaging and groundless allegations, particularly when the details of the allegations are made public? There is a view that the law on similar fact evidence has gone too far and that this can result in convictions based on multiple uncorroborated allegations, all of which could be false. I am not legally qualified to comment, but surely a balance needs to be struck between shoring up uncorroborated allegations by trawling for others and protecting the reputation of the accused.
My Lords, I shall speak to Amendment 187. I do so with very great hesitation. I apologise to the noble Lord, Lord Pannick, for speaking before him. I feel great reticence, speaking on this as a non-lawyer. That may be key: I have got in early to speak before I can be corrected by all the lawyers. I have not entirely made up my mind. I am speaking to the amendment; I will listen very carefully to what the Minister says The reason I am speaking in the debate at all is because I feel I owe it to the memory of my friend Lord Brittan. He was also the friend of my noble friends Lord Howard and Lord Deben. I saw a lot of Lord Brittan in the final weeks of his life. I saw the tremendous suffering caused to him by being wrongly accused of a rape offence. The Henriques report concluded that the proceedings against Lord Brittan should have been ended much earlier. It catalogued a whole series of mistakes, in this case and in others. There was a total of some 43 errors. It is the case of Lord Brittan that prompted me to intervene, but the last thing that I would argue, or that he would have wanted argued, is that this is about important people or public people. This is about everybody who might find themselves in this sort of situation I acknowledge, too, the argument that the noble Lord, Lord Paddick, to some extent refuted about why there should be an exception only for cases of a sexual nature. Personally, I would toy with the idea of going much wider than just offences of a sexual nature, as I believe Commissioner Hogan-Howe would also argue I have seen the letter sent by the End Violence Against Women coalition to Cliff Richard and Paul Gambaccini. It talks about the amendment proposing defendant anonymity. It is not. A defendant is a person who has been charged. Up to that point they are accused. The noble Lord, Lord Paddick, referred to the ambiguity of the word “accused”. I was glad he did, because I wondered whether I was the only person who felt this as a lay man. It is not very clear to me but, as I understand it, “accused” might include interviewed under caution or arrested under bail. Is it really right that a person’s name should be released to the public and the press simply because they have been interviewed under caution when no further action is taken I remember particularly vividly a case which, while not a sexual case, made a big impact on me. It was the case of the teacher, Mr Jefferies, who lived in Bristol in a flat next to a poor girl who had been murdered. I do not know whether it was the police who released it or how his name came to be in the public domain, but I cannot imagine the suffering. I think Members of this House have had letters from Mr Jefferies about what he suffered and the damage to his reputation. People just assume that the damage to someone’s reputation will go away because charges do not follow but that is not reality. That is not what happens; there is always an element of the public who think, “No smoke without fire”, and there is permanent damage to an individual’s reputation, which can be absolutely life shattering Naming people before charging undermines the presumption of innocence at the heart of our system of justice. Usually, when people’s names are released it is seriously damaging to their reputation, even if they were not charged but just held for a period or their home was searched. The public are not always very rigorous in observing, in their own discussions or in what is written, the principle that one is innocent until proven guilty I also wonder, as a non-lawyer, about the effect on the trial itself. It is one thing to talk about the effect on the individual, but what about the effect on the trial of releasing someone’s name before it? How quickly will a jury be able to forget the evidence that has been put forward The argument that is made for pre-charge publicity is that it will bring forward further possible victims and allegations that can be followed up. Therefore, crimes can be pursued, but does that really have to be pre-charge? Such further evidence can also come forward after a person has been charged. We know that such situations can lead to false claims being made. I am not suggesting for one minute that false allegations of rape are common—they are not; I know that—but some of the evidence we have seen of historical sexual abuse has indicated that there have been cases where some people have come forward with allegation that are completely false. They may have seen the names of people on television and somehow convinced themselves. Sometimes it is people who are not very well who make these allegations It seems to me that the rights of the innocent are extremely important. I hope that, whatever arguments the Minister puts forward, she will not use the phrase “It is a question of finding the right balance” too much. The rights of the innocent are extremely important. The noble Lord, Lord Paddick, quoted the old maxim, which I was going to quote myself, “Better that 10 guilty men go free than that one innocent person be convicted”. I have the greatest possible sympathy with the amendment of the noble Lord, Lord Paddick. I will listen to the Minister and then make up my mind, but regardless of whether I vote or do not vote for the amendment, I absolutely want to be convinced that something will be done about this situation. Nothing has been done about it and I cannot imagine that we will be happy if the amendment is rejected and nothing further is done. I remain convinced that there has been a lot of suffering and a lot of injustice done in the present situation.
My Lords, this is a very difficult issue. The speeches that your Lordships have heard from the noble Lords, Lord Marlesford, Lord Paddick and Lord Lamont, make a very powerful case. I cannot agree with it and I shall briefly attempt to explain why. The starting point is that we must all, of course, have enormous sympathy for Sir Cliff Richard, Paul Gambaccini, Lord Bramall, Harvey Proctor, the late Lord Brittan—and, of course, Lady Brittan—and the many others who have been wrongly accused of sex offences. They have been subjected to what is, on any view, an outrageously unfair procedure. I agree with the noble Lord, Lord Lamont, that they have been caused irreparable harm by a combination of the absence of any credible evidence for the allegations, the length of time it has taken the police to investigate these matters and the contempt of the police and the public for the presumption of innocence, to which the noble Lord, Lord Lamont, averted. In a famous 1935 case, Lord Sankey, the Lord Chancellor, called the presumption of innocence the “golden thread” that runs through our criminal law. It is very regrettable that so many of us, and our newspapers, proceed on the opposite principle that there is no smoke without fire, even when the smoke is no more than the hot air blown out by deluded fantasists. On that, I entirely agree. There is simply no dispute about that The question is whether either of these amendments is a sensible way forward, and in my view they are not for three reasons. First, in the context of alleged sex offences, publicity can lead, and has led, to witnesses coming forward with supporting evidence that helps to convict a person who is rightly accused and—this is the way the world works—it may be that only on hearing that an allegation against a named person is being taken seriously by the authorities do potential witnesses who say that they suffered the same problems and attacks in the past have the confidence to come forward. The noble Lord, Lord Lamont, pointed out that these people can come forward after a charge is brought, but the problem is that if supporting witnesses do not come forward at an earlier stage, a charge may never be brought. The prosecution authorities may not proceed. Of course, as the noble Lord, Lord Paddick, rightly said, some of those who come forward will not be telling the truth. That is undoubtedly correct, but the legal process addresses that issue in a trial. It is not sufficient that these amendments would allow a judge to give permission to publicise the identity of the person who has been accused. I do not see how a judge will be able, in any particular case, to assess the likelihood of unknown witnesses coming forward The second reason why I am troubled by these amendments is that there is, sadly, still great reluctance by victims to report allegations of rape and sexual offences. There is no ban on publicising the names of persons suspected of other serious offences, such as murder or terrorism, and—the noble Lord, Lord Rosser, made this point in Committee—there is real concern that to give a special privilege to those accused of sexual offences could exacerbate the concern of many alleged victims that the law does not take sexual offences as seriously as it should, so making it even less likely that they will report the allegations. I do not think it is an answer for the noble Lord, Lord Paddick, to point out that the law grants anonymity to the alleged victim in sexual offences cases. The alleged victim is granted anonymity because of concern that publicity would deter complainants from bringing forward their allegations, which is an entirely distinct argument The third reason is the one given in Committee by the noble and learned Lord, Lord Judge, who I am pleased to see in his place. It is that under these amendments it would be unlawful to tell the public that a person suspected of a serious crime has been arrested and so has lost their liberty, albeit for a short period. I think the noble Lord, Lord Paddick, misunderstood this point, which was not that a person could be held incommunicado Prohibiting publication of who is accused and of what in this context would be wrong in principle. It would deflect attention away from the true mischief, which is the lack of respect for the presumption of innocence. Indeed, as the noble Baroness, Lady Williams of Trafford, said from the Front Bench in opposing a similar amendment in Committee, at col. 1466, to enact an amendment of this sort conferring anonymity would serve only to undermine the presumption of innocence of those who are accused of sexual offences.
My Lords, I support Amendment 182 and am grateful to the noble Lord, Lord Marlesford, for moving it. Having spent over 50 years as a criminal lawyer, interspersed with ministerial office, I hope I have some knowledge of how the criminal law operates and of how the police operate too. I fully understand the concern that my Front Bench may express that it is important to send a strong message to potential and current victims. Of course that is important, but it is also important that a strong message goes from this House that we are concerned that justice is seen to be done to all, which is equally important. That was always a guiding light when, as attorney, I had to take decisions of this kind. The presumption was that every person is innocent until he is proved guilty. I venture to suggest that my experience in this field may not be unhelpful, as a prosecuting and defending practitioner, as a Crown Court recorder for more than 20 years and as Attorney-General, when I had to take personal decisions to prosecute and to ensure the balance was right and give appropriate instructions to those who actually prosecuted We have heard the expression this afternoon, “No smoke without fire”. It is an old adage. Cases in recent years have been totally unacceptable. The picture of the police superintendent standing outside the house of Sir Edward Heath and inviting persons to come forward reminded me of what might have happened in Nazi Germany. Leon Brittan did not know at all, and his family did not know until he was dead, that he had been exonerated. Lord Bramall, in very difficult circumstances, had every part of his house searched; Sir Cliff Richard, likewise. I would like to know in detail exactly the operational reasons for disclosure. Should they not be spelled out and should they not be supervised by someone? Why should they be the decision of any police officer who would like to disclose a name rather than having this supervised by a court Frequently we hear reports in the press that a white or black, middle-aged man has been arrested in south London, and in the usual kind of case that is more than adequate. I remember when Denis Healey, my former boss, was breathalysed on the way out of this House after attending a dinner. It was in every newspaper the following morning. Why was that? Did any money change hands for the disclosure of that suspected offence? Of course it took two or three weeks for him to be fully exonerated. This is what happens in real life, and I have often wondered, as a practitioner, why it is the same kind of solicitors that turn up at a particular station when somebody important or in the public eye is arrested. I wonder why. It needs investigation, clarification and supervision. I have tried to get the Law Commission to consider this problem. We should have all the arguments on both sides looked at properly, and those of us who are anxious would know what is the better solution. Because there is controversy in this House, its attitude and the attitude of Her Majesty’s Government is that they will not investigate. The problem will not go away. It offends my sense of justice to have anyone in the public eye given all this publicity when eventually it turns out that there is nothing in it. Any one of us might be put in this position, and people would come out of the woodwork to make allegations, as they tend to do Of course, if it is of help that a name is published, let us have it supervised by a judge. That is the basic control that is required. As the noble Lord, Lord Lamont, indicated earlier, if people are to be encouraged to come forward, why do they not come forward after a charge has been made? After a charge, everyone would know that a particular person is going to go before a court. Why should it be at the moment of arrest, when the evidence is only one-10th complete at that stage in many cases? I support the amendment.
My Lords, as a non-lawyer, I hesitate to disagree with the noble Lord, Lord Pannick, but it seemed to me that he undermined his case right at the beginning when he said that there were allegations that were ridiculous and had no basis at all, yet the police announced these allegations to the world. I happen to know about this because, as I was seen at the funeral of my late friend and colleague, Leon Brittan, I was for some time followed by certain people claiming that they had evidence of his wickedness. They were silly enough to state that evidence, which was total nonsense. It was without any foundation. It could not have been true However, I do not want to talk about my friend. I want to talk about somebody whom I do not know at all, although I have met him: Lord Bramall. The allegation against Lord Bramall could have been proved to have been entirely wrong merely by looking at the date on which it was claimed, because at that point he was in a public place, at which it could not have been as alleged. The issue is not that we wish to restrict the opportunities of giving to others the chance to come forward. It is simply, narrowly, to say that somebody other than the police has to be involved before such an announcement is made in public There are too many examples of the police giving information to others in all sorts of circumstances. A relation of mine was in precisely such circumstances. What the police told the press was entirely proper and complimentary, but she did not want that to be given out. But the police did—they were clearly paid for it—and it resulted in a long and extremely congratulatory article. The issue was that the police decided that they would make that decision, when there was no reason for it. That was a happy example, but there are some terrible examples. I say to the noble Lord, Lord Pannick, that we cannot live in a society in which there is no guard against those who give out such information before a charge has been laid All we are saying—the two amendments have different ways of doing this and it may be that neither is satisfactory—is that it should not be up to an individual policeman or an individual police force to make this kind of allegation before there is any charge. It should go to someone else. If I may say so to the noble Lord, Lord Pannick, this someone else may not be able to judge whether allowing this will bring forward more witnesses, but what he or she is able to judge is whether it is a load of old rubbish. At least he or she can assess whether what is proposed as the basis for investigation has some foundation. That is why it is perfectly proper to say that a judge or a magistrate might take this role I therefore beg my friend—I can call him that because the noble Lord and I are usually on the same side—to recognise that it is too dangerous an insult to the British legal system for people to be seen as guilty when they are innocent on the say-so of an individual policeman. All I am asking is that it should be on the say-so, in the quietness and care of a proper circumstance, of someone whose future does not depend on the publicity, who can look at the evidence and say, “Really, officer, I don’t think there looks like being anything in that because of x, y and z. Perhaps you might find out more about it before you move in this way”. That is what we ask.
Before the noble Lord sits down, does he think it is in the interests of the potential defendant for a judge to determine that there really is something in the allegations, and therefore to authorise that publicity is appropriate? Is that not seriously damaging to the presumption of innocence?
Not at all. The fact is that what the judge would be deciding is whether that name should be put forward at that point, and in most cases he would probably say no. I can think of very few cases when publishing the name in connection with an allegation would reduce the number of people coming forward if that name were later published at the point of an actual charge. It would therefore affect a limited number; in fact I do not believe there are any in this group. But if there were, I would want someone to be able to say, “In this particular case, it is so important that I will allow it to be done”.
My Lords, like the noble Lord, Lord Pannick, I was not intending to take part in this debate. However, with his great skill as an advocate, he has persuaded me to support my noble friend Lord Paddick’s amendment. I want to try to explain why. The main reason is that the noble Lord, Lord Pannick, with his usual brilliant, destructive analytical skill, has explained objections to the amendments but has not answered the fundamental question from the noble Lord, Lord Lamont: what safeguards does he propose to put in place of either or both these amendments? I am sure we will hear that from the Minister in her reply As a lifelong friend of Leon Brittan and his wife, during that one year while he was dying I witnessed the destruction of both of them through the callous misconduct of the police service, to which there was and is no effective remedy. The United States, which takes due process very seriously under its written constitution, has not abolished the grand jury. When the grand jury is investigating a federal crime, the one thing that is absolutely clear is that there must be no publicity for any of the evidence that it is investigating before deciding whether to recommend that the prosecution should be brought. The reason for that is the same reason that noble Lords have expressed today about the unsatisfactory nature of our legal system at present—it is the need to protect the innocent before the presumption of innocence has been applied at a trial Whether either of these amendments is acceptable or not, I believe that some kind of safeguard is needed—not just through guidance or a code of practice, but a binding legal rule that will protect people in the position of Lord and Lady Brittan from the kind of scurrilous allegations that were made, and the misconduct of the police in failing even to tell them before he died that they were satisfied there was no evidence against him. They allowed him to die not knowing that. There needs to be a prophylactic rule. If the Minister is against these amendments, I ask her to indicate in answer to the noble Lord, Lord Lamont, what the Government propose instead.
My Lords, I have spoken about this issue on a number of occasions over the years, most recently in Committee on this Bill. I start where I left off on the last occasion, when I quoted the case of a woman who rifles through the dustbin of a reputable consultant, finds a used condom, smears the contents on herself and makes a false allegation of rape. As the accused has no right to anonymity, he is suspended as a consultant psychiatrist, hauled before the GMC, shunned by his friends, attacked on the internet, loses £100,000 that was part of his income, and is totally discredited in his own community. A life destroyed as indeed was the case made by Cliff Richard when he recently attended a meeting in the House I do not want to do a rerun of the speech I gave on a previous occasion. Suffice to say that the noble Lord, Lord Paddick, on that occasion and on this occasion, as a former serving police officer, in my view—and I say to others to read what he said in Committee—made the case completely. My contribution on that occasion was a modest add-on, as indeed it will be today. It will be about the political background to this matter Over the years, the resistance has essentially been in the Commons, but the Commons membership has now changed. Anyone who knows procedure in the Commons will know the position there is very different from in here. One can table an amendment in here and have it heard; in the Commons that is not the case. It has to go through two obstacles. First, it might not be selected by Mr Speaker, because there is a selection of amendments in the Commons. Secondly, it might not be heard because of the procedural changes that were made at the beginning of this decade in the use of the guillotine and timetabling in the House of Commons. I am arguing tonight that we please give the Commons the opportunity to consider again this matter, which it has not been able to consider for some years What support do we have for the change? The fifth report of the Home Affairs Select Committee in 2003 unanimously said, in the Commons, that, “we believe that sex crimes do fall ‘within an entirely different order’ to most other crimes. In our view, the stigma that attaches to sexual offences … is enormous and the accusation alone can be devastating. If the accused is never charged, there is no possibility of the individual being publicly vindicated by an acquittal” This all-party Select Committee in the House of Commons in 2003 went on to recommend unanimously, “that the anonymity of the accused be protected only for a limited period between allegation and charge” Then in 2003 an amendment was moved by Lord Ackner, whom some Members may recall. I understand that he was a prominent Silk, much called on nationally for his services, and a judge. I want to read the wording of his amendment in 2003 on “Anonymity of defendant in rape etc. cases”: “The defendant in rape etc. cases shall enjoy the same right to anonymity as is enjoyed by the complainant”. In other words, he was arguing for anonymity not just at charge nor even to conviction but beyond, in the event that a person was not found guilty. I have the Division list here. When that matter was brought before this House, all those on the Conservative Benches—who I am told are being whipped today; I hope that is not the case—voted in favour of the Ackner amendment for anonymity through the whole process, which would mean that, if someone was not convicted, they would retain their anonymity and would be identified only in the event of a successful conviction My noble and learned friend Lord Falconer argued during the same Bill that pre-charge and accused persons should not be named. He supported ACPO guidance. That is one of the problems: the guidance does not work. That is why we are standing here today. If the current guidance worked, there would be no need for an amendment. It does not work. My noble friend Lady Kennedy of The Shaws, who is unfortunately—
I am here.
Oh, she is here. What my noble friend said is very interesting, because she is one of the great lawyers on our side specialising in human rights. Perhaps I may draw attention to her view at the time on anonymity right through to conviction. She said: “I strongly urge that this House does not consider allowing anonymity for anyone who is charged with rape. But the Government might look sensitively at the issue of whether someone should be covered with anonymity until the point of being charged … The reason that women will come forward when they see that a man has been charged with rape is because they are confident that they will not be so readily disbelieved if he is clearly doing it to other women”.—[Official Report, 2/6/03; col. 1085-6.] It is quite clear that, at that time, my noble friend at least had some sympathy for the principle behind today’s amendment The former Prime Minister, David Cameron, told Parliament that he believed that, “there was a case for saying that between arrest and charge there was a case for anonymity” “I think”, he went on to say, “this does represent a good way forward”.—[Official Report, Commons, 2/6/10; col. 428.] My right honourable friend Caroline Flint, speaking on behalf of the Labour Party in the House of Commons, said, “the serial nature of the crime that we are talking about is important, because when a crime is reported and people hear the name of the person who has been charged, they feel confident to come forward and stand by the victims”.—[Official Report, Commons, 7/6/10; col. 150.] Even there, from a spokesman from the Labour Front Bench in the Commons, is an admission that, post-charge, people do come forward. I am not claiming that she would support me on this amendment, but I ask the House to judge her view on the basis of the record to which I just referred The Home Affairs Select Committee report in 2014 stated: “We recommend that the … right to anonymity should also apply to the person accused of the crime, unless and until they are charged with an offence”. In other words, for the second time the Home Affairs Select Committee of the House of Commons, only two years ago, made the same recommendation—again unanimous We then have Sir Bernard Hogan-Howe, a practitioner in the field dealing with these matters. He too says he supports pre-charge anonymity Finally, there is the letter of 24 March last year from Theresa May, who is now the Prime Minister, to Keith Vaz, which says: “The Government accepts the committee’s conclusion”— that is, the report I just referred to, supporting pre-charge anonymity— “that there should, in general, be a right to anonymity before the point of charge, but there will be circumstances in which the public interest means that an arrested suspect should be named” All these assurances are diluted by the guidance being given to police officers, because that guidance does not work. It is about time that we stood up in Parliament, recognised the deficiency in the way the law is operating and put on the statute book something that requires police officers to operate in a particular way. In this case, as the noble Lord, Lord Paddick, suggests in his amendment, they should at least be required to apply to a judge for permission to release a name The product of all this law as it currently exists, and the present arrangements, is that reputations are undermined, families are discredited—as I said in my contribution in Committee—there are suicides, public lives and reputations are destroyed, and individuals are sacked from their employment. I have a desk full of letters written over the last 15 years by men all over the country—many of them in prisons; we do not know what happened in those particular cases—objecting to the way the law works I implore the House: please give the House of Commons the opportunity to reconsider this matter. If I lose in the Commons, fair enough—but at least give the Commons the opportunity. It is in our hands. If we vote for the amendment tonight, the Commons will reconsider the matter.
My Lords, I support what has just been said by the noble Lord, Lord Campbell-Savours, and the amendment tabled by my noble friend Lord Paddick. I apologise for not having been here right at the beginning of the debate. Reflecting something said by the noble Lord, Lord Campbell-Savours, I should state that although this issue affects a number of Members of your Lordships’ House, it affects multiples of ordinary people who are not Members of your Lordships’ House, who have been affected by regional publicity in such cases I am almost as dyed in the wool—indeed, dyed in the Welsh wool—a criminal lawyer as the noble and learned Lord, Lord Morris of Aberavon, and I recall two criminal trials in which I appeared that particularly disturb me. In one, which I prosecuted, the defendant was, to my enormous surprise, convicted and sentenced to 12 years’ imprisonment, and had to wait a number of months before the Court of Appeal overturned the conviction on very good grounds. In the second, a case in which I defended, my client was convicted of a number of offences and subsequently, after I had been sacked as his counsel, deservedly won his appeal. Those are just examples of the many cases up and down the country in which local and regional publicity has been a powerful driver I want to make two points—they are of quality—which were not covered by the noble Lord, Lord Pannick, either in his speech this afternoon or in the article he wrote on this subject, which I read a little time ago. The first relates to the quality of non-recent sexual offences. In relation to most offences on the criminal calendar, there is no doubt that a crime has been committed and the investigation is as to who committed that crime and whether that person interviewed was involved in that crime. In the case of non-recent sexual offences, it does not need me to persuade your Lordships’ House that there have been numerous allegations of offences which never occurred. The damage that can be done—wherein I move to my second point—when the police work on the assumption that the complainant, often called the victim, is telling the truth means that those cases are quite different. I am not making this up.
The noble Lord ended his remarks by saying that a grave injustice is caused to those when you have publicity of the kind identified, and I entirely agree. It has been very well illustrated by what my noble friends Lord Lamont and Lord Deben said about Lord Bramall and Lord Brittan. I was Lord Brittan’s PPS in the other place and I know how deeply distressing the allegations were. That also applies to Harvey Proctor; the allegations against him were wholly grotesque and must be immensely damaging. So there really is an underlying mischief of a very serious kind. My noble friend Lord Marlesford and the noble Lord, Lord Paddick, are much to be congratulated on bringing forward these amendments If I may say to the noble and learned Lord, Lord Morris of Aberavon, my former pair for a short period of time in the other place, he is absolutely right—the problem will not go away. That means that we have an opportunity to address it. It is a continuing problem for this reason: usually the information is disclosed by a police officer, usually for money. That is not going to go away unless we intervene by statute. The truth always is that, if you give power to officials or opportunities to officials, on occasion they will abuse it. The noble Lord, Lord Lester of Herne Hill, rightly asked about the safeguards. Although I look forward very much to my noble friend’s contribution from the Front Bench, I do not think for one moment that there are effective safeguards outside statute I turn briefly to the amendment proposed by my noble friend Lord Marlesford, Amendment 182. I agree with one part of it very robustly. His is much more far-reaching than is the amendment proposed by the noble Lord, Lord Paddick, because it applies to all offences—and I think that he is right about that. Allegations of fraud can achieve very high publicity and be immensely damaging, so I have a great deal of sympathy with the scope of Amendment 182. Where I have greater doubt is with two other parts of the amendment. With respect to the accused person, there is no provision for him or her to consent to publicity as there is in the amendment proposed by the noble Lord. Secondly, I am uncomfortable about the concept of the magistrates’ court being the court in which representations as to public interest are to be determined. I am in favour very much of what the noble Lord says with regard to the judge of the Crown Court The noble Lord, Lord Pannick, is a much more distinguished lawyer than I am ever going to be, but there are two points that I would make. First, he says that there may be occasions when an accused person will not be charged because witnesses will not come forward, absent publicity. There is truth in that, but then you have to look at the proportionality of the whole. Yes, there may be one or two such cases, but for an awful lot of cases great injustice will be done to people against whom allegations are made that are wholly unfounded. Finally, the noble Lord suggests that the judges in chambers will not be able to assess and determine the relevant arguments and whether there is a public interest in disclosure. There may be some force in that, but I think not much at the end of the day, because judges in chambers and Crown Court judges are pretty experienced about this sort of thing. They will have to consider quite frequently public interest immunity certificates which have very broad quality concerns attached to them. So in applying the principle of proportionality, the argument advanced by the noble Lord, Lord Pannick, is wrong in that respect. I make one rider: I hope that the rules of the court which will doubtless be introduced if the amendment is passed will make provision for the person against whom the allegations are made to have the opportunity to make representations to the Crown Court judge With respect to my noble friend Lord Marlesford, I shall not support his amendment, should he seek your Lordships’ opinion—but, unless my noble friend Lady Williams surprises me with her argumentation, I shall support the amendment proposed by the noble Lord, Lord Paddick.
My Lords, I am glad I arrived in time to hear my noble friend Lord Campbell-Savours praying me in aid of this amendment, because I do indeed support it. That may surprise many people, because I am ardently an exponent of justice for women and keen to see that the system is alert to the ways in which women often are failed by it. I have written about this for all my professional life of 40 years in the courts. I take this position and I have not changed, my noble friend will be happy to know At the time, back in 2003, the point that I was making in opposing Lord Ackner’s amendment was that Lord Ackner was taking issue with the fact that women got anonymity so why should not poor men charged with rape get anonymity? He suggested having equality. It was an argument that was, I am afraid, familiar to me from old judges: “You want equality, Ms Kennedy, we will give you equality”. It did not take account of the fact that the lives of women in society are so often different from those of men. With rape, particularly, women often just could not face coming before the courts to testify against the person who had raped and violated them. I do not have to rehearse in this House the whole baggage around rape: we know why women have been handicapped in coming forward and why the statistics are so low. We know the difficulty of dealing with things that happen in private, but we also know the ways in which women’s whole lives would be affected by the sense of dishonour attached to rape, and for many women this is still the case. Many more women are becoming brave and saying they do not need anonymity but it was given to women in the 1970s to try to redress the balance of law’s historical failure. It recognised something that I want to say very slowly to this House: treating as equal those who are not equal does not create equality We do justice by looking beyond the courtroom doors and knowing what really goes on in society. For that reason, we introduced anonymity into the system when that flew in the face of principle. We do not want anonymity in our courts. We want people to stand there and accuse, to face their accuser and to hear what the evidence is. We want justice to be open and for the public to hear it. But the decision was made to give anonymity to women to encourage them to come forward when these terrible events had happened to them. Lord Ackner advocated—and he found some friends in the House—that we had equality in 2003 and should treat everybody equally. But if we had equality, we would not still be hearing women arguing for equal pay and about domestic violence and violence towards women You cannot give total anonymity to an accused all the way through a trial because we know that there are cases where people come forward at the right point and say, “This happened to me, too”. If the Savile case and others have taught us anything it is precisely that. However, you do not solve one injustice by visiting another injustice on people. That is why I feel very strongly that the police should not disclose names until the point of charging. We have here a rather unpleasant alchemy of the police and media coming together. I have worked on many cases where a tip-off was given by police to the press who were then standing outside the police station to photograph people as they exited. It never comes to a charge, but the accusation has already been made. Why does that happen, you may ask yourself? In the old days it used to be because the police officer had been promised a drink or a case of whisky would be sent round at Christmas from the local newspaper or a more major national one. I am afraid it could take even more unpleasant forms than the drink at Christmas I remind the House that not long ago a woman called Rebekah Brooks—then Rebekah Wade—gave evidence to a Select Committee about the amount of money paid by her newspaper to police officers for precisely the kind of information we have been talking about, which blights people’s lives. From Cliff Richard to Paul Gambaccini, a whole set of people have suffered the consequences of this kind of publicity. The strength of this amendment is that it is not saying that the door is closed. Many women are assisted by the fact that other women will ultimately come forward because they hear that a charge has at last been brought against somebody. They are not standing alone and then they have courage. However, you also have to prevent other injustices. That is why you protect people by giving them the cover of anonymity until the point of charging. Then, and only then, should a name be put into the public domain How do we deal with police misbehaviour? I know there are noble Lords who do not think the police ever misbehave: they do. Happily, it does not happen as often as many people think but it is too often and police misbehaviour is behind most of this kind of publicity. If the standing order is not working and the principles are not being adhered to, how can you give teeth to preventing police officers doing this? The only way is if they face sacking or prosecution if they are discovered to have interfered with due process. We must have stronger responses to police misbehaviour of this kind.
My Lords, the issues raised by these amendments are extremely difficult. First, in view of all that has been said, it is difficult to distinguish, from this aspect, between sexual offences and other offences. There is much to be said for the view that if pre-charge publicity is to be outlawed, it should be so for all offences My second point relates to the safeguard, embodied in the amendment tabled by my noble friend Lord Marlesford and the noble Lord, Lord Campbell-Savours, of application to a magistrates’ court for an order. I think I am right in saying that in respect of both Lord Bramall and Sir Cliff Richard there must have been a warrant to search their homes. A warrant of that kind must have been based on some sort of evidence that was accepted by, I assume, a magistrate. There is, therefore, a question about whether it is a sufficient safeguard for a magistrate to give the order. As the noble Lord, Lord Pannick, has said, if a judge has said that there is enough to go forward, there is a slight difficulty in the clear way to a trial because a judge has already come to some point of view. However, that point of view is not that the accused is guilty; it is that there is sufficient difficulty in the evidence that in that judge’s judgment it would be right, in the interest of justice to all parties, for publicity to be allowed. There is a lot to be said for the view that publicity, up to the moment of charge, should not generally be allowed for sexual offences or others I have not found it easy to come to a conclusion about this and I have thought about it a fair amount. I have come to the conclusion that Amendment 182 is better but I would like to see a possible modification, in the light of what I have said, of the responsibility for allowing the matter. As I said, I think there were magistrates’ warrants for search in the two cases I mentioned: they turned out not to be particularly satisfactory.
My Lords, I have been quoted on both sides, so I want to say something for myself. The most shocking aspect, to me, of the issues we are discussing was the BBC helicopter flying overhead while Sir Cliff Richard’s home was searched. There are many different aspects. Many of your Lordships have spoken today of your concerns about individuals you have known or individuals about whom you have known, who have been, in effect, traduced and brought low by publicity in the way in which we have been discussing. I do not support any such publicity, but I respectfully wonder whether we are addressing the wrong remedy in the wrong Act. For example, what is there to prevent a simple Act of Parliament that makes it a criminal offence for a police officer to disclose the name of any individual who is suspected of a crime, before he has been arrested? It should not be too difficult. I do not want to repeat what I said last time, but the problem I invite noble Lords to consider is this. An arrest has to be justified. An arrest that is not based on reasonable grounds for suspicion is unlawful. Notice that I pick the moment of arrest—I am not talking about the allegation or the police officer telephoning the local press to say, “We are about to arrest the local schoolmaster”, or whatever it may be; nor am I addressing the issue in the context of sexual offences. The same story should apply to all offences An arrest must be lawful. Please can we bear in mind what the consequences of a lawful arrest are? You are detained. You are removed from your home, if that is where you are on arrest, or the street, the town or the city, or your office, or even when you are out having a drink with your friends. You are removed and you are not a volunteer: you have to go. If you resist arrest, you are committing an offence, and down to the police station you go, if that is where they take you. But you are completely in the hands of the arresting officer, and you go through a process. You remain detained, either while further investigations are made or until such time as further evidence emerges or it is decided that, after all, you can be allowed to go, for now, on bail. This is a process that nobody goes into voluntarily. Please can we remember that it is the first stage in the operation of the criminal justice process—and often, of course, culminates in a trial, conviction and sentence My concern about both these amendments is that they fail to address the problem that arrest is part of the criminal justice process. If they are adopted or if either one is adopted, we end up not with a situation that is incommunicado, if I may say so to the noble Lord, Lord Paddick. We end up with a veil being drawn against any reporting of the fact that one of our fellow citizens has been arrested. I find that troublesome The idea of criminal justice being secret is abhorrent to all of us in this country; we do not want formal trials to be conducted in secret. This part of the process, I suggest, should not be seen as a private matter. The exercise of the power to arrest and the consequences of it are public matters. There are many hard cases we have heard about and there has been much abuse of the process, but these issues should be addressed in a different form of legislation.
My Lords, I have been listening with a great deal of care to all that has been said. I have no doubt that Amendment 182 does not go quite far enough, in the sense that if there is to be the intervention of legal process before a court, it needs to be by a judge and not a magistrate. I am in the extremely unusual position of not knowing which way I am likely to vote. I find it very difficult. I am very attracted by what the noble and learned Lord, Lord Mackay of Clashfern, says: that prior to charge, no one who is being investigated should have the information disclosed. But I do think that one has to point out—as, indeed, the noble Lord, Lord Campbell-Savours, and other noble Lords pointed out—that sexual offences, particularly with celebrities, are a special case that sells newspapers. In one of the magistrates’ courts where I used to prosecute and defend as a very young barrister, the custody officer told me that it was £25 for the information to be provided. So one knows about it, and the police have, indeed, been criticised I happen to know someone prominent in a particular career—I will not say which—who is about to be charged with an offence committed at the age of 13 against a girl of seven. Everybody locally knows about it. For him, that is quite as awful as it would have been for Lord Bramall or Lord Brittan, save for the fact that this man is not likely to be dying. But this very personal thing—it may or may not be true—of someone in their forties or fifties accused of what he did at the age of 13, which has suddenly come out in relation to a girl of seven, is a shock The question that I pose to the Minister is this. If we do not do anything by way of legislation, what can we do to protect those who are innocent and have been vilified, and those who may be innocent, and the presumption of innocence, as the noble Lord, Lord Pannick, has rightly pointed out, is there but is totally ignored by the media, and consequently largely ignored by the public? The approach that “there is no smoke without fire” is attractive, and if the press say something—well, it may be true. If we do not do anything, how do we stop an injustice? With huge hesitation, therefore, I am likely to support the argument of the noble and learned Lord, Lord Mackay of Clashfern, rather than my very close friend, the noble and learned Lord, Lord Judge.
My Lords, I will not detain the House for long. I was the Home Secretary back in 2003 when, as has been referred to this afternoon, many of these issues were debated, and I was responsible for the justice system at that time. We struggled with it then and we struggle with it today. I commend the debate and the very substantial arguments that have been made on both sides. I am struggling to know which way to vote on Amendment 182. My instincts are to vote with the Government but to require an answer to the question that the noble Baroness has just put. It is made more difficult now, in 2016 and going into 2017, than it was 14 years ago. The reason for that is social media I take the point very strongly that the arrest is part of the process. Arrest prior to charge is extraordinarily difficult to deal with, if someone’s name is out on social media but they then cannot make statements that can be reported in the mainstream press, to actually indicate at least some side of the story that they are intent on putting. With the best intentions, we may take the wrong decision—as usual, for the right reasons—and end up with people who we seek to protect not being able, in the present era of social media, to protect themselves. I look forward to the Minister pulling together the very difficult arguments at the end of this debate.
My Lords, I will not delay the House long, either. We have rightly concentrated on the rights of the innocent; they are fundamental to our system. But I will address your Lordships very briefly on the position of victims. Victims’ groups complain, not without justification, that in the past they have not always been taken seriously by the police or prosecuting authorities. Victims need to be encouraged to come forward. We should not underestimate the courage it takes to report offences of the sort we are concerned with to the police. You may not be believed. You may have to face—so you think—the ordeal of being cross-examined by men in wigs who suggest that you have lied. You may feel very alone, particularly if you have been abused by someone in authority Noble Lords will have seen the footballers coming forward many years after the event, and the courage that it took and the incredible upset that it caused them in a macho culture to admit what had happened so many years ago. I take the example given by the noble Lord, Lord Carlile, of someone in a care home. They come to the police many years later. Their evidence is the first of any sort of being abused in a care home by somebody who runs the care home. After they have given their account, the man who is running the care home denies vociferously that he abused this character. There is a suggestion that he may have come forward for financial motive. But what if others come forward? The first complainant may feel that he cannot go through with the matter at all unless some of the other people, whom he knows very well have been abused, do so In Committee, I raised the point with the noble Lord, Lord Paddick, that I was concerned that his amendment might result in the police charging rather earlier than they would otherwise have done because they want to flush out potential corroborative witnesses; and that that might be inappropriate. I did not suggest there was any lack of bona fides on the part of the police; this is a very difficult decision to make. However, I suggest that there is that real risk, even with CPS involvement. It is most important that people are encouraged to come forward to give evidence in appropriate cases Of course, safeguards have been mentioned, whether in the magistrates’ court or the High Court, but this is a police operational matter. Despite judges’ ability to deal with many difficult things, it is not the right case for them to consider. I suggest that if there is a need for a tightening of the guidelines or for further offences that deal with police behaviour, so be it. But, focusing on the victim, I am for the moment not satisfied that there needs to be a change in the law.
My Lords, I will address a couple of points briefly. First, I will address the difference between Amendments 182 and 187 on the central question of whether it is right to extend pre-charge anonymity to all offences or to sexual offences only. I completely appreciate the logic of the position adopted by the noble Lord, Lord Marlesford, and the noble and learned Lord, Lord Mackay of Clashfern. However, I believe that there is a distinction to be drawn between sexual offences on the one hand and other offences on the other I believe that the noble and learned Baroness, Lady Butler-Sloss, was right about this. It seems to me that a particular stigma attaches to accusations of sexual offences, which is generally more difficult to rebut where such accusations are made than where an accusation is made of another offence against the person or of offences against property. It is often far more difficult in sexual offence cases to clear conclusively and for ever the name of a suspect who is not charged than it is in the case of other offences. As the noble and learned Baroness pointed out, there is also the interest of the press in sexual offence cases. I suggest that that is why so much publicity has been given to sexual offences, particularly historical offences, in this debate and in your Lordships’ House generally A further point is that the nature of the evidence in sexual offences tends to be historical and tends to involve pitting the word of the claimant against the word of the victim. In those circumstances, the no smoke without fire rubric gains currency. I see this as a question of balance in which the balance in the all-offences case mentioned by the noble Lord, Lord Marlesford, comes down against pre-charge anonymity, whereas it comes down in favour of it in respect of sexual offences. It is a case of the robustness and security that we as a society allow to the presumption of innocence The second question I wish to address is that of the stage at which anonymity should cease. I entirely take the point made by the noble and learned Lord, Lord Judge, that the arrest is part of the criminal process and therefore that there is, generally speaking, a public right to know because the liberty of the subject is being taken away at that early stage. However, I cannot get away from the central point that arrest can be effected by a police officer on reasonable suspicion only. That reasonable suspicion frequently arises when the suspect has been given no chance to offer a full explanation which, if he were offered that opportunity, might dispel the suspicion altogether—whereas, to justify a charge, it has to be shown that there is evidence which would, if it were accepted at a trial, lead to a conviction by a court of law. I believe that that distinction is important, and that again the balance is against lifting anonymity at arrest and keeping it therefore at charge I then come to the question of witnesses coming forward. I completely appreciate the concern that exists around the House and outside it that witnesses should not be deterred from coming forward. But I also agree with the point made by the noble Lord, Lord Lamont, that in most cases, if evidence from further witnesses is available, it will come forward after charge, so that forbidding pre-charge publicity will delay further evidence rather than prevent it coming to light altogether. There is nevertheless a concern, raised by the noble Lords, Lord Faulks and Lord Pannick, about the possibility of pre-charge anonymity preventing genuine witnesses—notably other victims—coming forward with allegations that might lead to a suspect being charged when he would otherwise escape justice altogether. That is why the detail of the proviso inserted in the amendment of my noble friend Lord Paddick addresses this point precisely, and it is very different from the amendment that was presented in Committee Under this amendment a judge is entitled to say that he is, “satisfied that it is in the interests of justice to remove or vary a restriction provided for”, and to, “direct that the restriction shall be lifted or shall be limited to such extent and on such terms as the judge considers the interests of justice require” The amendment further states: “In considering an application … the judge shall have particular regard to the possibility that further witnesses might volunteer evidence relating to sexual offences allegedly committed by the person” I believe that that is the best we can do in striking a balance between encouraging witnesses to come forward and enabling them to know about allegations in appropriate cases, and protecting suspects from unjust publicity that causes the dreadful consequences of which we have all heard It is all a question of balance and I appreciate that it is a very difficult balance to strike. But I suggest to your Lordships’ House that the amendment proposed by my noble friend Lord Paddick strikes that balance accurately and should be supported.
My Lords, I note that the noble Lord, Lord Marks of Henley-on-Thames, concluded his comments by saying that it is a matter of balance. I would concur with that view, but the balance concerned depends on which side of the fence you feel you might fall. I do not intend to detain the House for too long, since we have already had a number of Members expressing a desire to hear from the Minister. Nevertheless, I do intend to set out our position We do not support either of these amendments. Amendment 182 provides for pre-charge anonymity in all cases, including sexual offences, except where a magistrates’ court decides otherwise. Amendment 187 provides for pre-charge anonymity where a person has been accused of committing a sexual offence unless a judge decides otherwise. I am not a lawyer, and it may well be that my lack of knowledge of the law will be displayed in what I have got to say. But at present, as I understand it, there is an assumption of anonymity before the point of charge, except where the police decide to use their discretion in cases where they believe that disclosure of the identity of the person suspected but not charged is likely, for example, to lead to further evidence coming forward which will enable a stronger case to be made, which will enhance the likelihood of a successful prosecution We had a lengthy debate in Committee on the issue of pre-charge anonymity. We on this side acknowledged that a case could be made for going down this road. However, we also referred to the reality that there is evidence—for example, in sexual offence cases, where disclosing the name of the person alleged to have committed such offences has led to other victims coming forward and to a stronger case being able to be made against the accused to secure a successful prosecution. We have evidence that victims of sexual offences are often reluctant to come forward because of feelings that they will not be believed if it is their word alone against that of the alleged perpetrator. This is particularly so where that individual is a well-known and respected—at least, respected at that time—figure. We know too that there are sometimes feelings of shame about such offences, or feelings that such offences have to be tolerated, and a desire not to talk about it. These are feelings that are being expressed now with respect to the rapidly emerging scandal of sexual offences against young people in the football world—people are coming forward now that they know they are not alone We know too that the reporting of and convictions for sexual abuse cases are very low. Perhaps we should be spending some time considering why that is the case. We also need to take into account the fact that victims of sexual abuse—innocent people in spades—have had their lives darkened, including when the sexual offences were committed by well-known public figures. Of course, the victims themselves are rarely well-known public figures. During the passage of the Sexual Offences Act 2003, one reason we gave for not changing the law was precisely to avoid giving the impression that there is a presumption of doubt about the credibility of the complainant in sexual offence cases. I am afraid I do not wholeheartedly agree with what I think the noble Lord, Lord Paddick, was saying. Frankly, granting anonymity specifically for those suspected of sexual offences could imply that a person making a complaint in respect of such an offence was not to be believed in the same way as someone making a complaint involving another individual in relation to any other kind of serious offence, such as murder, fraud or, yes, child cruelty.
My Lords, I am not a lawyer. When the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss, say this is a very difficult issue, I know that this is a very difficult issue. I am grateful to the noble Lord, Lord Paddick, for retabling the amendment on pre-charge anonymity for those accused of sexual offences and to my noble friend Lord Marlesford for his amendment, which proposes pre-charge anonymity for a person accused of any crime. I know this is a subject which we have debated frequently and in which noble Lords have a great deal of interest, and we have the legal experts of the land here to assist us Like other noble Lords have said, I will not repeat all the points I gave in my responses to the amendment in Committee, save to say that the Government fully understand the anguish felt by those who have had their reputation questioned and tarnished following unfounded allegations made against them. My noble friend Lord Lamont very articulately outlined the names of some of them, although I will not go into individual cases. As the noble and learned Lord, Lord Judge, indicated in our earlier debate, such anguish will arise whether the unfounded allegation was in relation to allegations of sexual offences, which is the premise of the amendment in the name of the noble Lord, Lord Paddick, or with regard to other offences, which is the reasoning behind my noble friend’s amendment However, I reiterate that the notion that someone is innocent until proven guilty, as the noble Lord, Lord Pannick, says, is absolutely central to our justice system and the rule of law. There must never be an assumption that being charged or arrested for any offence indicates that a person is guilty of a crime, so the Government have every sympathy for the underlying aims behind both of these amendments. As noble Lords will know, the Government also start from the position that there should, in general, be a presumption of anonymity before the point of charge and believe that there is also a general acceptance that there will none the less be exceptional circumstances in which the public interest means a suspect should be named. The noble Lord, Lord Campbell-Savours, articulated that. The Government’s position remains that we are not persuaded that legislation is the right way forward at this time. As with any offence, it is absolutely right and proper for the police to have operational independence in deciding whether to name a suspect, and the Government firmly believe that non-statutory guidance, rather than primary legislation, is the appropriate vehicle for guiding the police in these operational decisions. It is absolutely vital that the police are able to exercise their own judgment and act swiftly in circumstances where releasing the name of a suspect may, for example, prevent further harm. The introduction of a statutory scheme would hamper the police’s ability to act in this way. We know that such identification can help other victims to recognise that they are not the only ones who have suffered, as the noble Lord, Lord Rosser, said. This is particularly the case with regard to sexual abuse allegations, where the ability of the police to name an individual accused of such an offence might give encouragement to other victims to overcome their reluctance to come forward—and many of them are very reluctant. Victims must feel that they can report the abuse to the police as well as get the support they need We have seen recently the significant effect of increased willingness by victims to report what happened to them in the shocking scale and nature of allegations of non-recent child sexual abuse in football. I am sure the whole House will want to join me in paying tribute to the bravery that some ex-footballers have shown in coming forward publicly after so much time in what must have been terribly difficult personal circumstances. Their courage has clearly given confidence to many others to come forward. But had the legislation put forward by these amendments been in place today, the media in this country could have been prevented from reporting the claims of some of these alleged victims. Of course, as with any allegation, it is now for the police to take forward and investigate in order to establish the facts and, where appropriate, to bring prosecutions A question was asked—I cannot remember by which noble Lord—about whether the police should believe all victims. The police should always focus on the credibility of the allegation rather than on the credibility of the witness. As I have just outlined in the case of allegations in football, I cannot emphasise strongly enough that we must not undermine victims’—
I do not quite understand how the shocking cohort of football cases relates to the issue in these amendments. These football cases have not followed a specific arrest or arrests. Indeed, the three convictions of Barry Bennell in 1994, 1998 and, I think, 2002, did not produce a cohort of reporting; media publicity of the issue, not of an arrest, produced it. So what does it have to do with this issue?
I am trying to illustrate that alleged victims’ willingness to come forward is now more common because they feel that they can come forward and they are more likely to be believed. There are not huge numbers of convictions in sexual abuse trials, and to go back to the position where anonymity was granted would be a retrograde step.
Can the Minister clarify that? I think she just said that there is a low conviction rate in trials involving sexual offences. That is not accurate. In rape cases, for example, the conviction rate at trial is more or less over 50% and more or less in line with the conviction rate in other offences.
Many cases do not come to trial. I was trying to illustrate the reluctance of people to come forward. People are still reluctant to do so, and the Government do not want to create an environment in which we go back to the practices of times gone by, which is why we have so many allegations of historic sex offences Noble Lords asked about safeguards, and of course, as my noble friend Lord Faulks said, we have the magistrates’ court and the High Court. We have College of Policing guidance, which states that the police should not routinely release information about suspects before charge. However, it also makes clear that there are limited circumstances in which the release of such information can be justified.
Will the Minister address the issue that was raised by most of the speakers, on the position of people who commit suicide, whose families break up, whose reputations are destroyed or whose careers end, or who are destroyed in their communities, only because the Government of the day—of both major parties—have insisted on pursuing this arrangement, which is clearly not in the public interest? Will the noble Baroness address the agony of the people involved? The fact that some of them are prominent is not so important. Hundreds—there may well be thousands; we do not know—of people out there suffer similarly.
I think I addressed that right at the beginning of my speech, when I said that the Government completely acknowledge the pain that some people have gone through in the course of the last few years—and in the course of history—due to being wrongly accused of crimes which they did not commit. I absolutely acknowledge that point. The noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss, said that it is an incredibly difficult issue, and I recognise that I was going to say something else. The College of Policing is currently developing—
The Minister acknowledges that there is a problem and that there have been cases of monstrous injustice to individuals. Several of us have asked whether the Government will go forward, not backwards, with some alternative to either of these amendments. Can she tell us precisely what she proposes to do, with revised guidance, codes of practice or anything else, so that we can be satisfied that the Government will solve the problem?
I was just about to say—I do not know whether the noble Lord will be satisfied by it—that the College of Policing is currently developing authorised professional practice on media relations, and its guidance makes it clear that decisions should be made only on a case-by-case basis when it comes to the releasing of names. I am not sure that I have satisfied noble Lords but I have tried to explain how we have tried to achieve balance in the protection of anonymity for persons who are accused pre-charge.
I wonder whether the Minister is going to deal with this difficult issue with its complicated argument by referring it to the Law Commission so we can have an independent view that may not be forthcoming from the College of Policing.
I think that I have explained that the Government feel that we currently have the balance right and that we should preserve that presumption of anonymity—so I will not be doing what the noble and learned Lord suggests. I hope that my noble friend will withdraw his amendment and that the noble Lord, Lord Paddick, will not press his.
My Lords, there are two differences between my amendment and that of the noble Lord, Lord Paddick. The first is that the noble Lord, Lord Paddick, suggests that a judge should arbitrate on the question of anonymity. The second is that the noble Lord, Lord Paddick, restricts his anonymity to sexual offences of various sorts. I give way at once on the question of who should deal with the anonymity. It is probably too complicated and difficult to be done by a magistrate and the point made by my noble and learned friend Lord Mackay of Clashfern about warrants probably not being justified in two of the cases we mentioned is a good one. On that I would certainly be ready to change my amendment On the question of whether it should apply widely or merely narrowly to sexual offences, I will give three examples of why it should apply widely. First, I was struck by the recommendation of the noble and learned Lord, Lord Morris of Aberavon, on the benefit of it being wider. Secondly, my noble and learned friend Lord Mackay of Clashfern was attracted by that. So, too, were my noble friend Lord Hailsham and the noble and learned Baroness, Lady Butler-Sloss. I will just give three examples of why that should be the case My noble friend Lord Lamont mentioned the case of Mr Jefferies of Bristol, whose whole life was traduced and ruined. It was nothing to do with sex; it was to do with a case of murder. If ever there was an example of somebody who should not have been named in the way that he was, it would be him. The noble Lord, Lord Carlile, mentioned care homes. Abuse in care homes, even in children’s homes, can be of a non-sexual nature. It can be malicious or psychopathic. There have been many cases also of accusations of abuse of the elderly in care homes. So I do not see the justification for saying that anonymity—whether or not we have it—should be confined only to sexual offences. If there is to be anonymity, it should be for all offences—but clearly the procedures and rules are inadequate at present and should be modified and considered I am afraid that I would not regard the College of Policing as the obvious candidate to rewrite this book. I would have much preferred something more serious. But I would be happy to withdraw my amendment on the basis that the Minister will come back with something rather more substantial on the need for reform—something not to be put forward in detail but to be expressed as an intention at Third Reading. I would not vote for the amendment of the noble Lord, Lord Paddick, merely because I think it is quite wrong to limit it to only sexual affairs. I beg leave to withdraw my amendment.
My Lords, I will speak also to Amendment 184 in this group. I will also mention the fact that my noble friend Lord Paddick will be dividing the House on Amendment 187—that would happen after the debate on Amendments 183 and 184.
Oh!
My Lords, I will not move Amendments 183 and 184.
My Lords, I realise that the House wants to move to a vote on the very important and significant debate we have just had. I do not know whether there is a mechanism whereby I could come back to Amendment 185 at Third Reading so that we do not lose this debate because this, also, is a very important question with regard to the anonymity or otherwise of people involved in rape cases. I would be grateful for some guidance on this matter.
I am afraid that if the noble Lord wants to press this amendment he has to press it now. We cannot go back to it again because we have to go in order.
I will speak as rapidly as I can and I am sorry that this is going to detain the House. Amendment 185 is in my name and those of the noble Baronesses, Lady Howe of Idlicote, Lady Brinton and Lady Cohen of Pimlico. I thank them for their support I do not apologise in the slightest for returning to a matter that I raised in Committee, since most of the countercase put by the Government in Committee triggered dismay and incredulity among those involved in cases such as those I highlighted then. To the extent that there was any validity in the Government’s countercase, I have adjusted the wording of the amendment to respond constructively. The impact of this new clause would be to prohibit the police in England and Wales from disclosing the name of the victim of rape or attempted rape to the alleged perpetrator—
My Lords, I would be grateful if noble Lords could be quiet because I cannot hear what the noble Lord, Lord Wigley, is saying. It is important for proceedings that I can hear and understand what he says.
I am grateful. I have rarely had that trouble in the past. As I was saying, it is the question of disclosing the name of a victim of rape or attempted rape to the alleged perpetrator where both are strangers to each other and where disclosure could potentially put the victim at further risk of harm from the accused. This is necessary because in this day and age any individual with basic IT skills, armed with the name and location of the victim, could easily obtain the full address. It is difficult to imagine circumstances where the victim would not be either at risk or feel, understandably, at risk. I remind the House that it is estimated that 10% of all rapes and attempted rapes are committed by strangers. This means that there are some 9,000 reported attacks each year. In other words, 9,000 women are being put at risk each year if their names are disclosed. There will be thousands more who never report it because of fear, shame or lack of confidence in the police and judicial system. The feelings of a victim were courageously described only last Thursday by Michelle Thomson MP in another place The amendment was tabled following the harrowing experiences of Victim M, to which I referred in Committee and shall now summarise briefly. I am grateful to Voice 4 Victims for providing this information. I pay tribute to them for the support they give such victims and for their determined campaigning on this and associated issues Victim M was followed by a stranger, attacked, suffered an attempted rape and was told to stop screaming or she would be killed. Two off-duty police officers heard her screams and arrested the man. Subsequently, M learned that the police had, in fact, given her full name to the man. This has had a devastating impact on M. She is terrified that he will find her and attack her again. He is expected to be released from serving half his seven-year sentence in July next year. M has changed her name, moved flat twice and removed herself from the electoral register to prevent him finding her The amendment moved in Committee was later withdrawn. Since then, Voice 4 Victims has consulted a range of experts. The clause has been redrafted to take on board those comments, especially those emanating from the police. The police have been very supportive. They themselves believe that clarification of the law is needed. From these comments it is generally agreed that a name should never be given if three conditions are met: the parties are strangers; disclosure might conceivably put the victim at risk; and non-disclosure would not undermine the completion of a fair trial, a point raised by the Minister in Committee After disclosure in her case, M contacted a number of police forces. Their policies on disclosure were totally inconsistent. The responses varied greatly, with no fewer than five distinct approaches followed by the police: the name being given during the interview on arrest; at the point of charge; if the case goes to court; disclosed in a statement given to the alleged perpetrator’s defence team; or not given until the case is in court, where it is a matter for the judge to decide M is to be commended for the comprehensive manner in which she followed up to discover such a wide and inconsistent pattern of behaviour by the police. She received a letter from Commander Jones of the Metropolitan Police, who said: “There is no specific policy or legislation which covers the issue of providing the name of a victim of rape to the suspect. Instead it is an operational decision taken by the officer in the case on a case-by-case basis. In the case of a stranger rape, it would be very rare for the suspect to be informed at the point of arrest. For a domestic or acquaintance case, this would be more common” This view was reinforced by Neil Smith of the Metropolitan Police’s sexual offences, exploitation and child abuse command in the Guardian newspaper on 27 October this year M made contact with other victims. They have similar experiences. Victim A said, “Once he had my name he found me and messaged me on Facebook. He lives maybe a couple of hours away, so when I next moved and changed jobs I also changed my name by deed poll”. Victim B said, “I was 23. He was about 50. If he googled my name, I couldn’t think of every website it might bring up. I could kind of imagine what he might do”. Victim C said, “He was arrested a couple of days later and at that point would have been told my full name. I did not realise he was told my name then. The fact he knows my name and details is something I have always hated and part of what makes me regret ever going to the police”. I ask the House, in particular the Minister and her advisers, to note that last sentence and to ponder its far-reaching implications on whether this situation leads to people not going to the police when there has been a rape or an attempted rape. This theme is repeated by Victim D, who responded to M by saying, “Your message sums up the reasons I felt I didn’t want to go to the police. I didn’t want my life ruined by my name being released and people finding out. I suffered severe depression and was suicidal for years. Thank you for working to fix this problem”.
My Lords, I have added my name to Amendment 185 in the name of the noble Lord, Lord Wigley, for all the reasons he has explained so eloquently, even though pushed to deliver them very quickly. I shall be much briefer If someone has been sexually assaulted by a complete stranger and has then reported the details to the police, it is clearly important that when the police then interview potential suspects they do not under any circumstances, whether the potential offender has been charged or not, disclose the identity of the victim to such suspects. In the past, perhaps, this would not have been so vital, but today if the attack has been carried out by a sexual predator, the availability of the internet, Facebook and all the other many ways of identifying where a victim lives will inevitably mean that the attacker can continue to harass their victim via all or any of these means. Indeed, I am sure noble Lords will have read many harrowing stories of just such instances—we have heard one or two of them already—where the named victim has ultimately been forced to leave the area and resettle in a completely different, new part of the country, changing their names too The noble Lord’s amendment is vital. I very much hope that the Minister will be able to accept it in its entirety.
My Lords, I am conscious that your Lordships want to vote on Amendment 187, so I shall be brief, but I have to say that this proposal is, to my way of thinking, one of the most unjust that I have heard in your Lordships’ House for some time. It is worth identifying what it says. I shall come to the proviso in a moment, but what it says that somebody who is accused of rape is not to know the name of the accuser—the complainant. For that matter, somebody who is accused of actual bodily harm or grievous bodily harm is not to know the name of the accuser or of the witnesses. I ask rhetorically: how on earth can a defendant or his representatives prepare his case for trial without knowing the name of the accuser or the witnesses? After all, they may not have been there. They may be notorious liars. There may be lots of other reasons to distrust their integrity The substantive clause here precludes the police from giving the name of the victim or the witnesses to the accused person. That is curiously reminiscent of the procedure underlying lettres de cachet in pre-revolutionary France, as described in A Tale of Two Cities. Let us look at the proviso, because it needs a bit of probing. The proviso in subsection 1(b) of the proposed new clause is so far as, “non-disclosure would not impact on … a new trial” Who is to judge whether it impacts on a fair trial? I can tell noble Lords from the language of the proposed new clause that it is to be the police or the Crown Prosecution Service. So the police or the Crown Prosecution Service, who are party to the procedure, who are making the allegations, will judge whether it is fair to disclose the identity of the victim or the witness. How can that possibly be fair? What procedure is there in the proposed new clause for the accused person to challenge that determination? There is none at all We are told, “Ah, the judge will let it in”, but the judge cannot when there is an absolute prohibition. There is no procedure here whereby the decision of the police officer or the Crown Prosecution Service can be challenged. Probing a little further, what about police statements? I am sure my noble friend knows full well that police statements have to be served on the defendant prior to trial so that they can prepare and understand their case. If the identity of the witness or the victim has to be redacted out of the statements, what possible purpose is there in serving the statements at all? One merely has to identify these things to see that this would be struck down, certainly by the courts. It is a clear contravention of the provisions in the convention now in domestic law in favour of a fair trial Incidentally, on proposed new subsection 1(c), regarding the protection of people, bail conditions can do that. There may be a case for strengthening bail conditions but there is absolutely no case for introducing a measure that will do a profound injustice in our courts. I hope my noble friend the Minister will give a robust response to this.
Before the noble Viscount sits down, is the point not that the complainant may say that the person who allegedly assaulted him or her is a stranger but may have an oblique motive for so saying? How is the defendant therefore able to defend himself or herself without being able to know who the accuser is? It is a palpable injustice which was not covered, I regret, by the passionate speech by the noble Lord, Lord Wigley, which omitted that crucial point.
I could not agree more with the noble Lord. I agree with him as I agreed with him on the previous debate. We are dealing here with the possibility of profound injustice and we should guard against it.
My Lords, my name is also attached to this amendment, but I would not normally have spoken given that the noble Lord, Lord Wigley, and the noble Baroness, Lady Howe, were such distinguished proponents of it. At the moment there is a choice of injustices. Perhaps we should have provided—and I should be glad to provide at Third Reading—a clause saying that a judge may decide whether the name should be disclosed. This is, however, also a modern offence. In the old days it might not have mattered very much if you disclosed only the name of the accuser. These days, the perpetrator has no trouble at all, because of the spread of social media, and these cases are more frequent One reads of cases all the time and I want to disentangle this from the issue of rape. It is not entirely about rape. It is about being knifed in the street or pushed under a Tube train by a perfect stranger, as I am sure we have all read about, and being terrified thereafter in case he or she comes and does it again. Therefore, I would be very grateful if the Minister would understand the strength of feeling and the injustice being done. If we can put in a clause at Third Reading offering the possibility of review by a judge if necessary, I would be glad to do so.
My Lords, as the noble Lord, Lord Wigley, has explained, this amendment is designed to strengthen the protection for the victims and witnesses of a sexual or violent assault by a stranger. I sympathise with this objective but, as I indicated in Committee, there are difficulties. I am grateful to the noble Lord for taking on board the points I made in response to his earlier amendment on this issue. He has now come forward with a substantially revised amendment. I fear, however, that this serves only to highlight again the challenges of legislating in this area It is vital that the criminal justice system supports and protects victims and witnesses, particularly victims of sexual offences, who are especially vulnerable. As I stated in Committee, there are already a number of means whereby those at risk of further harm, or who are deemed to be intimidated, can be safeguarded. I shall not repeat these measures now, other than to say that there is a wide range of options available for their protection. To intimidate a witness is a very serious criminal offence Of course, the right to a fair trial is a cornerstone of our criminal justice system. The noble Lord, Lord Wigley, has rightly acknowledged this in the revised amendment before us today. However, to say that the identity of a victim or a witness may be withheld from the defendant except where to do so would compromise the defendant’s right to a fair trial is almost always a contradiction in terms. As my noble friend Lord Hailsham said, fundamental to a fair trial is the right of the accused to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him. The accused cannot be expected to prepare a proper defence if he does not know who is accusing him of the alleged crime, and without that there can be no fair trial In exceptional circumstances, there is already provision for anonymity of victims or witnesses from the accused, through a witness anonymity order. A number of conditions must be met for this to apply, including that it would protect the safety of the witness or another person, that it is in the interests of justice for the witness to testify and the witness would not testify if the order were not made, and that it would be consistent with the defendant receiving a fair trial. It is an exceptional measure of last resort. This means that in the minority of cases where those accused of violent or sexual assault are strangers, the court can decide to grant victim or witness anonymity, provided these other conditions are met.
On that very point, if the court determines at that stage whether or not to release information, surely there is every case to get consistency prior to that. I quoted five cases, I think it was, of different responses by the police in different parts of London. The absence of any consistent approach to this underlines that there is a serious problem. If the Government were willing to review how the mechanism of referring to the courts, which the Minister mentioned, can be brought in in a way that avoids the variety of ad hoc responses by the police, that might be one way forward. I would be very grateful if the Minister would consider that.
The problem is that, as I said earlier, it is an exceptional measure of last resort. This means that, in the minority of cases where those accused of violent or sexual assault are strangers, the court can decide to grant victims and witnesses anonymity, provided that the conditions are met While I cannot for these reasons support the noble Lord’s amendment, he has raised an important point about the consistency of practice both across and within police forces about the disclosure of the address and telephone number of a victim. Crown Prosecution Service policy on prosecuting cases of rape clearly states that addresses of victims and witnesses should not be disclosed to the defendant during court proceedings. The same is true of victims’ or witnesses’ telephone numbers or email addresses. However, we do not know how aware the police are of this policy, so we will explore with the College of Policing whether it would be appropriate for additional guidance to be given to police forces to ensure that this practice is universally followed.
Before the Minister sits down, I say that in the case with which the noble Lord, Lord Wigley, and I are most familiar, the police disclosed the victim’s name quite automatically to the perpetrator about 20 minutes after they had arrested him on the evidence of two policemen. It is all very well to say that you can wait to have a court make a decision, but a policeman made a decision at the earliest possible stage, and that is the issue that the noble Lord, Lord Wigley, and I are attempting to address.
I am sure the noble Baroness will understand that I cannot go into individual cases. CPS policy on prosecuting cases of rape clearly states that witnesses’ addresses should not be disclosed to the defendant unless already known. The CPS does not disclose the addresses, email addresses or phone numbers of victims or witnesses in any case unless already known. That is why we are looking at ways to ensure that this approach is similarly applied by police forces While the amendment is well intentioned, for the reasons I have given, I do not consider that it will help advance the noble Lord’s cause. He has alighted upon an important issue regarding the consistency of practice adopted by criminal justice agencies in relation to the disclosure of a vulnerable victim’s address or other contact details, and I am ready to explore further how this might best be addressed. On that basis, I hope the noble Lord will feel able to withdraw his amendment.
My Lords, I am grateful. I realise that the House wants to move forward rapidly. I was grateful for the contributions made by the noble Viscount and the noble Lord, Lord Carlile, to the contra argument with regard to the rights of the defendant. Of course I recognise that they are important. The question seems to revolve around the inconsistency of the police response, which the Minister has accepted needs to be looked into, and whether, while it was reasonable to withhold addresses and telephone numbers in the past, it might now be necessary to withhold the name because of the ease of getting addresses from information available on computer-based systems these days. If the Government are prepared to review those aspects of the question, we will feel that we have made some progress on this issue. If the Minister can indicate that the Government are willing to look at those aspects, I will be prepared to withdraw the amendment.
We realise that certain aspects need to be addressed, which is why I said that I am ready to explore further how this might best be addressed.
I am grateful to the Minister. On the basis of that assurance that there will be an investigation into those aspects of the question, I beg leave to withdraw the amendment.
My Lords, I am mindful that the House wishes to move on this evening, and I am grateful to the Minister for her assurances dealing with the matters that I raised in my speech. I previously indicated to the Clerk of the Parliaments that I would speak to the amendment, but I will not move it this evening Amendment 187
My Lords, in the absence of any credible alternative, I wish to test the opinion of the House.
My Lords, in moving Amendment 187A, I declare an interest as a trustee of Paladin, the National Stalking Advocacy Service. It is four years since a stalking law was introduced, following an amendment that I tabled in this House which was the culmination of terrific work by the independent parliamentary inquiry, whose adviser was the excellent Laura Richards and which included the noble Baronesses, Lady Brinton and Lady Howe of Idlicote. It was strongly supported by colleagues in the House of Commons, notably Yvette Cooper and Stella Creasy. I pay tribute to the Government for the progress made since 2012, the introduction of the offence of coercive control and last week’s announcement of stalking orders. Stalking destroys lives. Some 40% of the victims of domestic homicide have been stalked, including Jane Clough and Holli Gazzard, and the punishment must fit the crime. When I tabled the original amendment, it was always the intention that the maximum sentence be 10 years. However, due to the two tiers in the Protection from Harassment Act, the higher test mirrored Section 4 harassment and became five years by default. Experience now tells us that this is not enough My amendment mirrors a 10-minute rule Bill introduced by Alex Chalk, the Conservative MP for Cheltenham, and supported by MPs from all parties, including Richard Graham, the MP for Gloucester, whose constituent, Dr Eleanor Aston, was stalked for eight years by a former patient, Raymond Knight. When he was sentenced to five years—the maximum sentence—the judge stated that he would like to have given Knight a longer sentence as he was a serious risk to Dr Aston. This case is not unique; I could cite numerous other examples, including Kristine Carlson and Katie Price. Extending the maximum penalty would set the tone, allow for greater flexibility and make it clear that stalking is a serious offence. An increased maximum sentence is necessary for the most serious cases, particularly where there is repeat offending. At present a defendant who pleads guilty to this most serious offence, even if it is a repeat offence against the same victim, will serve a maximum of 20 months. This is insufficient to protect the victim Sadly, too few cases still result in a stalking charge, and, when they do, the sentencing does not reflect the serious nature of the crime. This was highlighted as a cause for concern when we were meeting Home Office lawyers to discuss the drafting of the stalking legislation in 2012 and given the proposed maximum sentence of five years. Training is important. So, too, are sentencing guidelines. The maximum penalty should reflect the serious impact that this psychological crime has on the victim Stalking is a long-term pattern of behaviour. It is persistent and intrusive, and it engenders fear, alarm or distress. It results in long-term psychological harm and can escalate to violence and murder. Stalking is about fixation and obsession. It is clear that when people fixate and stalk, they are psychologically unstable. A significant minority are psychotic, and some may suffer from undiagnosed personality disorders. Currently, stalkers are not routinely assessed, and they should be. More robust sentences would allow for a robust mental health assessment which informs diagnosis, treatment and management The Minster may well say that the Sentencing Council is undertaking a review and that it would be precipitate to pre-empt that review. The Sentencing Council reviews sentences within the framework set by Parliament, so it is for us to act and then for the Sentencing Council to build its guideline around the maximum tariff Of course, it is true that, alongside the stalking, there may be other offences—for example, assault or arson—that can be charged. But in a significant number of cases, stalking is the only offence, a very grave offence, which can lead to the victim being a prisoner in their own home, developing post-traumatic stress disorder, losing their job, losing their relationship, losing their mental health and ultimately losing their life. It is a serious offence and must be treated as such. Paladin’s research shows that victims feel unsafe due to short sentences. Preventive orders do not lead victims to feel safe because it is the very nature of the stalking offence that means such boundaries are prone to being breached. In the most serious cases, the only time a victim truly receives any respite is when his or her stalker is behind bars. Victims continue to live in fear and are terrorised and terrified when the stalker comes out. It is clear that short sentences do not allow for any form of diagnosis, treatment or management, so the behaviour continues in a revolving-door fashion. This is costly to victims and to the criminal justice system It is important to highlight the fact that stalking occurs over an extended period of time. Often, stalkers are prosecuted only for breaching restraining orders. The maximum sentence for criminal damage, burglary and offence against property is 10 years. These offences are acute and one-offs. Allowing judges greater flexibility on sentences will acknowledge the repetitive nature of stalking, which can span multiple years, offences and breaches Some victims have felt helpless due to the long-term, insidious and persistent nature of this crime—as in the case of Helen Pearson, who was almost killed by Joe Willis and attempted suicide twice. The escalation to murder should be clearly understood. These cases are called “murders in slow motion” for a reason, and we have an opportunity to intervene earlier and prevent them. It is one of the few crimes where early intervention can prevent serious psychological damage, violence and murder. That is precisely why we need to increase the maximum sentence My amendment would give judges the greater flexibility they require in sentencing to allow the sentence to fit the crime and thus better protect the victim whose life is being torn apart. I beg to move.
My Lords, I very much hope that your Lordships do not support this amendment. My reasons are both general and particular. As to my general reason, I am very cautious about any inflation in sentencing. Our prisons are already grossly overcrowded. When I was Prisons Minister at the back end of the 1980s, we had a prison population of some 44,000. We now have a prison population of just short of 85,000, and that makes for gross overcrowding. Until very recently, I was on the monitoring board of a local prison. As a member of the Bar, I go to prisons, and the facilities in prisons are overstretched almost beyond imagining. In this respect, the POA is right. I am very anxious that we should not do anything that tends to make courts increase the overall level of sentences. In the past five years, the average sentence has increased from 12.3 months to 16.4 months, and conditions in prisons are dire That takes me to the second point, and I shall be very brief. Five years—the existing maximum—is a long sentence, even when one takes into account the fact that the offender will not serve the whole of it. Being shut up in custodial circumstances in most of our prisons is a deeply unpleasant experience. If the offender is rational, then five years is a perfectly good deterrent. If the offender is not rational, then increasing the sentence will make no difference whatever to his conduct. All we are doing is to drive up the overall level of sentences, and that is thoroughly undesirable.
My Lords, I recognise the point that the noble Viscount has made about the general increase in the level of sentencing, which has caused me considerable concern for quite some time. However, there is force in the point that the noble Baroness made about repeat offences. The people who commit this kind of offence tend to be victims of an obsession. There must be a risk that a number of these perpetrators will do it again, and if the first sentence is ineffective as a deterrent a judge is really inhibited in visiting the appropriate penalty on a repeat offender, particularly if it is even a further repetition, if he is restricted to the levels that presently exist. For that reason, among the others that the noble Baroness mentioned, I would be inclined to support her amendment.
My Lords, I strongly support the amendment. While I accept what the noble Viscount, Lord Hailsham, said about overcrowding, we need to differentiate between many offences that do not deserve a custodial sentence, and in fact would be more effectively dealt with by a non-custodial sentence, and those that really need long custodial sentences, for the very reasons that the noble and learned Lord has just articulated. These are offences where, particularly in the case of repeat offences, a longer custodial sentence is needed. That is why we will support the noble Baroness should she decide to divide the House.
I will be brief. As the noble Lord, Lord Paddick, has indicated on behalf of the Liberal Democrats, if, having heard the Government’s reply, my noble friend Lady Royall decides to test the opinion of the House, we too shall be supporting her amendment in the Division Lobby I will not go through all her points but my noble friend has referred, as have others, to the issue of repeat offences. She referred to why the maximum sentence is five years at present. She referred to the level of cross-party support that there has been on this issue, and to the relationship of the maximum sentence for this offence with other offences that have a maximum of 10 years. She also made reference to the stalking orders and the Government’s announcement there, which was welcome, but of course it does not address the issue of what the appropriate maximum length of the sentence is. My noble friend also stressed that stalking costs lives in certain circumstances, and causes psychological harm. I think she has made an extremely powerful case. As I said, if she decides, having heard the Government’s response, to test the opinion of the House, we shall be with her in the Division Lobby.
My Lords, I pay tribute to the work that the noble Baroness, Lady Royall, carries out as a trustee of Paladin to support and give a voice to victims of stalking Obviously it would be wrong of me as a Minister to comment on individual cases, particularly on sentences imposed in those cases. However, I want to express my sympathy for the victims of these crimes, which can have significant effects on their lives. It is important to consider the evidence of how sentencers are using the range of penalties available to them today. It is very rare that sentences are given that are near to the current maximum. In 2015 only three people received sentences of over three years for the Section 4A offence, and the average custodial sentence was 14.1 months. The evidence therefore suggests that judges are finding their current sentencing powers for this offence sufficient We must also bear in mind that, in addition to this specific stalking offence, this type of offending can be charged under other offences such as assault, criminal damage and grievous bodily harm with intent. When an offender is convicted for one of those offences, they will face a maximum penalty of 10 years for criminal damage or life imprisonment for GBH with intent I reassure noble Lords that the Government are taking steps to ensure that stalking is dealt with seriously. As the noble Baroness acknowledged, last Wednesday we announced plans to introduce a new stalking protection order aimed at ensuring that pre-charge options are available to the police to protect victims of stranger-stalking to the same level as victims of domestic violence and abuse. Breaches of these orders will be a criminal offence carrying a maximum penalty of five years’ imprisonment Alongside the work of government, the independent Sentencing Council is currently considering sentencing guidelines for intimidatory offences, including the stalking offence covered by the noble Baroness’s amendment. The council aims for its definitive guidelines to come into force in early 2018, following a consultation on the draft guidelines early next year. I encourage the noble Baroness and others to respond to the consultation We are also looking at the wider picture of how stalking offences are dealt with and prosecuted. Her Majesty’s Inspectorate of Constabulary and Her Majesty’s Crown Prosecution Service Inspectorate are currently carrying out a joint inspection on the effectiveness of the police and CPS response to cases involving stalking and harassment, and to examine the service received by victims In setting maximum penalties, we must also consider the penalties available for other, related offences. These include the other offences under Sections 2 and 4 of the Protection from Harassment Act, which can cover similar offending behaviour. We should consider carefully the potential impacts of creating such a large difference between the maximum penalties for the Section 4 and 4A offences, as the amendment proposes. Other relevant offences include assault occasioning actual bodily harm or grievous bodily harm, for which the statutory maximum penalty is five years’ imprisonment. To increase the maximum penalty for stalking offences causing fear of violence would mean that the penalty for causing fear of violence would be higher than that for causing the violence itself We recognise that it is often the case that raising the maximum penalty appears to be a straightforward solution to a problem. I do not think it is a straightforward solution in this case. It may be necessary in due course but, before moving to raise the maximum, we should give careful consideration to the implications for other related offences and avoid creating anomalies in the criminal law However, I recognise the strength of feeling about this issue and the harm that can be caused by the most serious stalking cases. The Government will therefore review the operation of the Section 4A stalking offence and related offences. We will consider the maximum custodial sentences available to the court and, in addition, consider mental health sentences to consider how best to identify and address the underlying issues that are present in the most serious cases. The review will supplement the work being done by the Home Office to prevent stalking by looking at the ultimate sanctions available for those who continue to commit offences. I hope this review will also provide further material for the Sentencing Council to draw on as it produces sentencing guidelines for stalking and related offences. Given this commitment to review the operation of Section 4A, I hope the noble Baroness will feel able to withdraw her amendment.
My Lords, I am grateful for that response from the Minister and for the contributions from other noble Lords. Of course I hear what the noble Viscount, Lord Hailsham, says. I too loathe prisons; I recognise that they are overflowing and that the conditions inside many of them are abhorrent. However, I agree with the noble Lord, Lord Paddick, that many people who are sentenced to prison should not be there, but that does not mean to say that the people who in my view should be in prison should not be there. So I do not agree with the noble Viscount It is true that other crimes can be taken into account but I am referring to one specific crime, stalking, and I think we should take that specific crime seriously. It should not always have to be taken into account along with other crimes The Minister pointed out the potential differences between sentences; as she says, actual bodily harm has a maximum of five years. However, I believe that is because the harm that is caused does not have to be really serious; typically, it is bruising. What we are talking about here is something that blights people’s lives and those of their families year after year I am grateful for the offer from the Minister for a review but, as I mentioned in my speech, this is something that I and many others, including the noble Baroness, Lady Brinton, cared about four years ago when we argued that the maximum sentence should be 10 years. The last four years have shown us that a five-year maximum is not enough, and I therefore wish to test the opinion of the House.
My Lords, I move the amendment on behalf of my noble friends Lord Paddick and Lady Hamwee. We debated an exactly similar amendment in Committee. It arises from the Ched Evans case and concerns the restriction on the admission in cross-examination of evidence about a complainant’s sexual history in sexual offences cases. The amendment arose from our concern to ensure that the restriction on the admissibility of such evidence in cross-examination was as strong as we had always believed it to be under Section 41 of the Youth Justice and Criminal Evidence Act 1999 At the end of that debate, the Minister said that the Government had carefully considered the concerns that had been raised about the provision; that they would determine how best to look at how it was working in practice before deciding whether any further action needed to be taken; and that they would do that as soon as possible. A trenchant question from the noble Lord, Lord Kennedy of Southwark, elicited the answer that that was indeed a promise of a review, which is what we had been seeking The reason for tabling the amendment again on Report is to ask the Minister to elaborate further on the review that she has in mind. We are interested to ask what timescale is proposed for the review; who will carry it out, and how; what the terms of reference will be; and how evidence for the review will be collated. I hope that she will be able to respond on those questions at this stage and I beg to move.
My Lords, I shall be very brief. I have no objection to my noble friend answering the questions posed by the noble Lord; it is obviously right that she should. My objection lies to proposed new subsection (3), because I do not think that the existing law needs any change. If one looks at the primary legislation, one sees that the ability of defence counsel to ask questions or call evidence is hedged about by judicial restriction and can be exercised only relatively rarely. I have been in court many times when this has happened, and there is no sense that the legislation is being abused, that evidence is being adduced unnecessarily or that cross-examination is being done wrongly At the end of the day, I believe that the law is right as it stands. Although I have no objection to a review and no objection to the questions put by the noble Lord, I do not think we need to change the law—and I am therefore bound to say that subsection (3) of the proposed new clause poses problems as far as I am concerned.
My Lords, I will add just a footnote to what the noble Viscount said. Some years ago, there was a challenge to Section 41 of the 1999 Act on the ground that it was incompatible with the convention right to a fair trial. I sat upstairs in a committee room as a Law Lord with the Appellate Committee. We were very careful to restrict the ability of counsel to explore these matters, as far as we possibly could consistent with the right to a fair trial. I am glad to hear that, from the noble Viscount’s experience, the system is working very well. On the other hand, when we were framing our restrictive view as to how the section should be applied, we were looking to the future; we did not have the benefit of experience. Like the noble Viscount, I have no objection to a review, which I suppose might serve some useful purpose by informing everyone as to whether the system is really working as the Law Lords expected it should.
My Lords, the noble Lord, Lord Marks, raises the important issue of the protection of complainants of rape and sexual offences from being questioned about their sexual history. As I previously made clear, it is vital that victims have the confidence to report crimes as terrible as rape, and that they have confidence that the criminal justice process will bring offenders to justice. Our message to those who are willing but currently worried about reporting such offences is that they should feel confident about doing so When we first debated the issue, I assured noble Lords that we would look at how Section 41 of the Youth Justice and Criminal Evidence Act 1999 was working in practice. As the noble Lord asked, perhaps I may provide a bit more detail. The Justice Secretary and the Attorney-General have advised me that this will include examining the original policy intent of Section 41, its implementation and how it is operating in practice I can confirm that this work will be led by officials in the Ministry of Justice and the Attorney-General’s Office. They will consider carefully the concerns that have been raised and seek views from the judiciary, practitioners and victims’ groups. This work will be completed in the first half of next year. We have already made clear our commitment to carry out this work and, in our view, there is no benefit in making it a statutory requirement. In the light of the detail that I have provided, I hope that the noble Lord will feel happy to withdraw his amendment.
My Lords, I am very grateful to the Minister for the further detail that she has given on the review. I quite accept her position that there is no need for a statutory requirement for it, so I propose to withdraw my amendment. However, in response to the speeches of the noble Viscount, Lord Hailsham, and the noble and learned Lord, Lord Hope, I make clear to the House, for those who may not be familiar with it, that concerns have arisen in the light of the decision of the Court of Appeal in the Ched Evans case, in which the admission of such evidence in cross-examination was permitted in a case in which many thought that it would be excluded. It is for that reason that this has become a matter of additional concern, and for that reason that we are extremely grateful that the review is to be carried out. I beg leave to withdraw the amendment.
My Lords, this amendment is in my name and that of my noble friend Lord Paddick. In Committee the noble Baroness, Lady Finlay, proposed an amendment which is now in the Bill as Clause 155. Our amendment is not to challenge the clause but to ask for clarification. I have two questions. It became clear after the clause was agreed that the issue is more contentious than I had appreciated. It is about ending the automatic requirement for an inquest for those detained in the circumstances that are the subject of the provision. It is not about there being no right to an inquest; the noble Baroness made that entirely clear However, there seems to be a wider issue about the application and impact of deprivation of liberty safeguards—DoLS is the acronym. I was asked, as other noble Lords no doubt were, by Liberty to table an amendment to remove the clause. I said: “No: that is not only inappropriate but our procedures would not allow it”—but it seems right to ask two questions The Government are aware of the first question. The Liberty briefing suggested that cost saving was at the heart of the amendment to the legislation. The noble Baroness, Lady Finlay, described the emotional stress for families, and I do not think she came anywhere close to cost savings. I would be grateful if the Government could tell us what cost saving is likely to be achieved by the change, or otherwise allay that fear. The second question, as is obvious from the amendment, is: what consultation did the Government undertake before the amendment that they supported on the previous occasion? I beg to move.
My Lords, I am most grateful to the noble Baroness. Lady Hamwee, for speaking to me beforehand; we have had some discussion. I would like to go straight to answering both those questions, from my perspective, as I was the person who tabled the original amendment. I must declare my interest, as I now chair the National Mental Capacity Forum. I took over and started to do that in September of last year In terms of consultation, when I was listening to the voice of the person who had been on the receiving end of the Mental Capacity Act it was very evident very quickly that the automatic requirement for an inquest was causing an enormous amount of distress to families. It was also through that process that Ann Coffey MP consulted widely in her constituency and further afield—and coroners have been asked. So this was not brought forward lightly There was also consultation with the adviser to the Care Quality Commission, who feels strongly that DoLS are a useful process for safeguarding people who are particularly vulnerable. He was very supportive of the process following the judgment of the noble and learned Baroness, Lady Hale, which clearly laid out the acid tests under which DoLS should be applied As for cost savings, I see there being absolutely none. Actually, there is a possibility that costs might go up. Although unnecessary inquests will not, I hope, happen, so coroners will not be taken away from inquests that really do need to happen by the bureaucratic process of the unnecessary inquests, of which there were almost 7,000 last year, that find that death was due to natural causes, it is possible—indeed, I hope that this will happen—that more people will be inclined to make a deprivation of liberty safeguards application if there is a doubt about whether somebody is being deprived of liberty, because the deterrent of knowing how much distress would be caused to people, including families, will be removed Care home, clinical and hospital staff find it very distressing to say, “We’re going to go through this process of applying for a deprivation of liberty safeguards authorisation—and, secondarily, by the way, that means that there will automatically be a coroner’s inquest”. For those who culturally need a burial very rapidly after somebody has died, that causes profound upset—as it does to other families. As one coroner’s officer said, to me, “Sadly, sometimes the first time the families realise there has to be an inquest is when I have to pick up the phone to tell them, and they are deeply distressed” I suggest that by putting this measure in place we are removing a barrier to the deprivation of liberty safeguards, which are a way of protecting the rights of the most vulnerable person, because there is an inspection process. It must be necessary, proportionate and in the person’s best interests, and the person has a power to appeal to the Court of Protection against a deprivation of liberty safeguard. So people have far greater rights than somebody who ought to have a deprivation of liberty safeguard authorisation in place but where no application is being made. So I hope that this will increase the rights of the most vulnerable as well The process of scrutiny is that the Care Quality Commission has to be notified when a standard DoLS is in place. It will know whether a place has unusually many or unusually few DoLS applications, and will look in depth at the quality, the atmosphere and the culture around the way that care is given there. With all due respect to coroners, I think that the CQC is far more likely to detect where things are going wrong than a coroner’s inquest on a single case. But I reiterate that if a family have any concerns whatever, irrespective of whether there was a DoLS in place, they can ask for a coroner to look at a case when somebody has died. If they are suspicious, they can ask the question.
My Lords, I am grateful to the noble Baroness, Lady Hamwee, for raising this important issue. The Government take seriously their responsibilities to the very vulnerable group of people in society whom this amendment concerns. I also thank the noble Baroness, Lady Finlay, for her deep knowledge of this issue, and for the words that she has spoken this evening Coroners in England and Wales play a critical role in investigating the deaths of persons where there is a suspicion that death may have resulted from violence or unnatural causes, or indeed where the cause of death is unknown. Coroners will continue to have this duty with regard to persons who have been deprived of their liberty as authorised under the Mental Capacity Act 2005. There is no restriction on when or by whom deaths can be reported to a coroner. Indeed, the registrar of deaths has a duty to report deaths to the coroner where he or she considers that the coroner’s duty to investigate may apply The Government recognise that there is a need to improve the scrutiny of deaths that are not investigated by a coroner. The Coroners and Justice Act 2009 contains provisions to introduce medical examiners who will contact the deceased’s family and those involved in the deceased person’s care to identify any concerns as part of a reformed death certification process We consulted on our proposals earlier this year and aim to publish our response to the consultation in the new year. This will of course be particularly relevant to vulnerable people in hospitals and care homes, regardless of whether they are being deprived of their liberty. Medical examiners will not just be responsible for scrutinising individual deaths not investigated by the coroner but will have a role in analysing data on deaths across their area. They will identify patterns and contribute to lessons that will reduce avoidable deaths. They will also have a duty to report to coroners deaths for which a coroner’s investigation may be required The effect of Clause 155 will be that the death of anyone subject to a deprivation of liberty safeguards authorisation, or an appropriate Court of Protection order, will no longer trigger an automatic coroner’s investigation. We supported this change in the law in the light of views expressed by the then chief coroner, his honour Peter Thornton QC, in his 2015-16 annual report. He called for immediate action to remove deprivation of liberty safeguards cases from the definition of “in state detention”—a point that, just prior to his recent retirement, he reiterated to the Minister for Victims, Youth and Family Justice The issue here is not simply one of the resources needed to undertake these inquests. The then chief coroner had addressed this to some extent through his 2014 guidance, revised in 2016, which set out a streamlined process. But, as he has said, these inquests “serve no good purpose”. It cannot be right that more than 20% of inquests undertaken each year are unnecessary, with all that that implies in terms of added anguish for bereaved families I thank the noble Baroness for raising the profile of this important issue, but I hope that she will accept that the Government’s recently completed consultation on reforming the death certification process will, when its proposals are implemented, complement and support the work of our coroners who investigate suspicious deaths I think that the noble Baroness, Lady Hamwee, asked who we consulted in the consultation. The Ministry of Justice consulted the former and current chief coroner. Having said that, we consider that this removes any further need for further consultation on the coroner’s statutory duties, and I hope that the noble Baroness will therefore be content to withdraw her amendment.
I thank the Minister, but I cannot restrain myself from observing that her answer has been that there has been a consultation and that the Government will publish their response to it next year. I say that as nicely as I can, because clearly a lot of work has gone on with regard to this—and I am grateful to the noble Baroness, Lady Finlay of Llandaff, as well, for filling out the information that she gave pretty comprehensibly to the House on the last occasion. I beg leave to withdraw the amendment.
I thank the Minister for meeting me and others to discuss this group of amendments about support for victims. I was pleased that she said that the Government would bring proposals forward to strengthen victims’ rights; I was slightly less pleased that it was “in due course”. We have heard an awful lot tonight about an awful lot of reviews in future, and I am mindful of the amendment proposed by the noble Baroness, Lady Royall, after which we were also told that there would be future reviews on stalking law. Much of the difficulty that faces victims navigating the criminal justice system is because nobody is taking hold of the evidence that we have about what is and is not working There has been a substantial amount of legislation over the last few years, with the victim personal statement scheme in 2001, witness care units, the code of practice for victims of crime from April 2006, the victims’ fund, victim support, restorative justice, and of course the creation of the Victims’ Commissioner. In January 2015, the noble Baroness, Lady Newlove, said in her first Victims’ Commissioner report: “I raised concerns about the process, the process was almost worse than the actual journey of being a victim” Her report noted that justice agencies failed to demonstrate “compassion, empathy and patience” when handling complaints from victims. She said that, “victims feel ignored, unimportant and confused when raising concerns about their treatment” The report took into account the experiences of over 200 victims and assessed the performance of all criminal justice agencies listed in the victims’ code, and the review found that inadequate attention was paid to the “personal touch” that was needed The Government responded thereafter, and there has sadly been very little progress—and the Public Accounts Committee published earlier this year a report that noted that the, “system is bedevilled by long standing poor performance including delays and inefficiencies, and costs are being shunted from one part of the system to another … The criminal justice system is not good enough at supporting victims and witnesses …Timely access to justice is too dependent on where victims and witnesses live … The Ministry has been too slow to recognise where the system is under stress, and to take action to deal with it … There is insufficient focus on victims, who face a postcode lottery in their access to justice due to the significant variations in performance in different areas of the country” So “due course” is just not good enough; we need to move forward and need it urgently. The core of the problem is that victims’ rights are currently not covered by entitlements in the victims’ code, originally designed in 2015 to make the system more responsive and easier to navigate. It is just not legally enforceable and places discretionary accountability on to the agencies, and victim feedback strongly suggests that agencies often fail to apply the code. Agencies that should be guided by the code are aware that a failure to provide the service does not make the service provider liable to any legal proceedings.
I will be brief, but my name is attached to most of the amendments which we are now addressing. A victims’ rights Bill was introduced in the other place last year by the then shadow Home Office Minister, Sir Keir Starmer, and it had all-party support. As the noble Baroness, Lady Brinton, has said, victims’ rights are largely covered by entitlements in the victims’ code and affected by various other initiatives in recent years. However, the key thing is that the code is not legally enforceable and feedback from victims suggests that it is not applied by the relevant agencies. Maybe that is because they are aware that a failure to provide the service does not make a service provider liable to any legal proceedings. Lack of information and support to victims are the major areas of concern, with victims prioritising the right to information, protection, treatment and support as the highest priorities. These amendments place victims’ rights in a statutory framework and place a statutory duty on the Secretary of State to publish and implement a strategy to provide training for all relevant professionals and agencies on the impact of crime on victims. In essence, these amendments lay down what support should be offered to victims, how that support is managed, what training is necessary to put it into place and how complaints can be pursued. These amendments have our support.
My Lords, I hope that my noble friend will understand that, given the further business to which the House has to attend tonight, I will confine myself to saying that we on these Benches enthusiastically support her amendments.
I thank the noble Baroness, Lady Brinton, for meeting with me, and for tabling these amendments again so that this House has a further opportunity to debate the important issue of victims’ rights Some of the amendments seek to place aspects of the Code of Practice for Victims of Crime on a statutory basis. This is a statutory code, provided for by the Domestic Violence, Crime and Victims Act 2004, and as such all criminal justice agencies are required to provide the services victims are entitled to under it. Many of the entitlements for victims included in the proposed amendments are already in the code. Some are for all victims of crime, while others are enhanced entitlements for the most vulnerable victims of crimes such as stalking and domestic and sexual abuse. Placing them on a statutory footing separately will not ensure compliance, nor guarantee that those entitlements are delivered effectively. The effect would merely be symbolic, and make amendment and updating of entitlements more difficult As I said before, we recognise the importance of training for professionals who work with victims. Under the police educational framework and national curriculum, police officers and staff receive training on the code throughout their careers. Officers and staff can receive training on the code at various stages of their careers. This training is supported by a new online package launched by the College of Policing. All Crown Prosecution Service staff who attend court have been given face-to-face training on the new Speaking to Witnesses at Court guidance and on how to interact with victims and witnesses at court without undermining the fairness of the trial. This is supported by a comprehensive package of e-learning, which barristers who appear for the CPS in court are expected to complete We also appreciate that more can be done in relation to certain categories of crime. That is why, for example, the College of Policing, as part of reviewing its guidance on stalking and harassment investigations, is looking at whether police officers fully understand the offences and are receiving appropriate training. It is also why Her Majesty’s Inspectorate of Constabulary and Her Majesty’s Crown Prosecution Service Inspectorate are carrying out a joint inspection to assess the effectiveness of police forces and the CPS in dealing with cases involving stalking and harassment, and to examine the service received by victims. The CPS is developing a training package for its prosecutors to improve the quality of charging and review decisions in stalking and harassment cases There has also been a concerted effort to improve the response of the police in domestic abuse cases. In its most recent national thematic inspection of the police response to domestic abuse, Her Majesty’s Inspectorate of Constabulary found improvements in police attitudes towards victims and front-line officers’ understanding of the importance of dealing with victims in a supportive way. Since 2014, every police force has published a domestic abuse improvement plan, new guidance has been published by the College of Policing, new training has been successfully piloted and for the first time, police are now collecting data against a national standard on all domestic abuse recorded crimes. A joint police and CPS witness care review is looking to identify clear performance measures which would include timeliness of communication of information to witnesses as set out in the code. In addition, Her Majesty’s Courts & Tribunals Service is undergoing an audit by the Government Internal Audit Agency on the effectiveness of arrangements in place for victims and witnesses, against requirements in the victims’ code and the witness charter. Results are expected in the first quarter of 2017 In order to determine what is required to strengthen further the rights of victims of crime, we are looking at available information about compliance with the victims’ code, and considering how it might be improved and monitored. We are also looking carefully at the range of proposals that have been made by the Commissioner for Victims and Witnesses and others. We are focused on making sure we get this work right, and ensuring that any future reform proposals are evidence-based, and an effective and proportionate approach Finally, in relation to Amendment 188, which seeks to provide a direct route of complaint for victims to the Parliamentary Ombudsman, I should add that on 5 December the Cabinet Office published a draft public service ombudsman Bill. The Bill will improve access to the ombudsman’s services by allowing for all complaints to be made with or without the help of a representative and in a variety of formats to meet the digital age. When the Bill is brought before your Lordships’ House, it will provide a further opportunity for noble Lords to test whether the measures I have set out are delivering the improvements to the experience of victims in their interaction with the criminal justice system that we all want to see I hope that, having further debated these issues and received greater detail of the work that is being undertaken both by the Government and by the criminal justice agencies, the noble Baroness will be content to withdraw her amendment.
I thank the Minister for her response, but sadly, many of the concerns I have raised were not particularly well articulated. There is no doubt that there is an entitlement to victims to have support. The fundamental problem is that there is no duty on the agencies to deliver it. The Minister said that police receive training when they first start their careers, and they can receive training later on. The problem is that, in practice, it does not happen consistently. The experience of victims, as outlined both tonight and at earlier stages of the Bill, demonstrates that it is still woefully inadequate in some parts of the country. The College of Policing clearly has an important role, but there are real concerns that there is a focus on the domestic abuse improvement plan without understanding that stalking and coercive control are key issues as well I accept the points the Minister has made about the draft public services ombudsman Bill, but there is more in Amendment 188 than is covered in that draft Bill. I believe that I have noble Lords’ support, and I would like to test the opinion of the House.
With your Lordships’ leave, I will repeat as a Statement an Answer given in another place by my right honourable friend Matthew Hancock. The Statement is as follows: “As honourable Members know, Sky plc announced on Friday 9 December that it had received an approach from 21st Century Fox to acquire the 61% share in Sky plc which it does not already own. The announcement made clear that the independent directors of Sky plc and 21st Century Fox have reached agreement on price. However, the offer is subject to further discussion, and Sky has advised that there is no certainty at this stage that an offer will be made. The terms of any deal will obviously need to be agreed by the non-21st Century Fox shareholders of Sky plc. The announcement also said that under the takeover code, 21st Century Fox is required to set out its intentions by 6 January 2017. The Government have had no prior information from either of the parties, and there has been no contact with either Sky plc or 21st Century Fox about the possibility of the bid The Secretary of State has power to intervene in certain media mergers on public interest grounds, as set out under the Enterprise Act 2002. Government guidance on the operation of the public interest merger provisions under that Act gives an indication of how the intervention regime will operate in practice and the approach the Secretary of State is likely to adopt in considering cases. However, the important point is that each transaction will be looked at on its merits, on a case-by-case basis. The guidance makes clear that the Secretary of State will aim to take an initial decision on whether to intervene on public interest grounds within 10 working days of notification of the merger to the relevant competition authority or the transaction being brought to her attention, whichever is later The role of the Secretary of State here is a quasi-judicial one, and it is important that she acts independently and is not subject to improper influence. It would be inappropriate for me or the Secretary of State to comment further on this proposed bid. In the light of Friday’s Statement, and given the role of the Secretary of State is a quasi-judicial one, the department is putting into place procedures to ensure that the Secretary of State’s decision-making process is scrupulously fair and impartial. These will include guidance for other Ministers, special advisers and officials on dealing with the parties to the bid or any other interested parties to ensure representations are made only through proper channels, the designation of named officials who will support the Secretary of State in her decision-making process and guidance on how they should conduct themselves, ensuring no one who has a potential conflict of interest is involved in the process We are, of course, aware of the wide interest from Parliament given the issues raised by the 2010 bid by News Corp for Sky and the advice DCMS received from Ofcom in December 2011. However, if a formal bid is made by 21st Century Fox and accepted by the Sky plc shareholders, then the bid will need to be considered on its merits and in accordance with the legislation. At this stage we cannot comment further”.
My Lords, I thank the noble and learned Lord for repeating the Statement made in response to an Urgent Question in another place. I think a lot of people were concerned to hear last Friday that 21st Century Fox had struck a deal for the total takeover of Sky. Five years ago, a similar bid was abandoned after the Murdoch family and their friends and News Corporation were engulfed in the eye of the phone-hacking storm The concerns of 2011 were not just about the serious wrongdoing that was being uncovered by the phone-hacking scandal. They were also about the concentration of media power in fewer and fewer hands. I note that the noble and learned Lord has confirmed that the Secretary of State has power to intervene in certain media mergers on public interest grounds, as set out in the Enterprise Act 2002, and we look forward to having further details about that. I further note that the guidance makes clear, as the noble and learned Lord said, that the Secretary of State will aim to take an initial decision on whether to intervene on public interest grounds within 10 working days of formal notification of a merger to the relevant authorities and such formal notification has yet to be received. We will see how this matter transpires There is also the question of whether James and Rupert Murdoch—if they are to acquire the balance of Sky—are fit and proper persons to be licence holders of a regulated television service such as Sky. This is a matter for Ofcom. Last time round, had the bid not been withdrawn, I am sure the noble and learned Lord would agree that it is highly unlikely James or Rupert Murdoch would have passed this test. A lot of water has passed under the proverbial bridge since then, including confirmation of illegal activity, illegal payments and phone hacking in organisations controlled by them. Will the Minster confirm that this fit and proper person test is urgent and that Ofcom needs to attend to it forthwith?
My Lords, we too want to see public interest and fit and proper investigations before any merger is given the go-ahead. We certainly do not want to see an American-style Fox News in the UK. We also need to know what the Government are up to to ensure that they are—as the Minister said they intend to be—scrupulously fair. I have one simple question. Given the numerous meetings that have taken place between government Ministers and Murdoch executives and the recent meeting between the Prime Minister and Rupert Murdoch, do the Government now agree that they should implement Lord Justice Leveson’s recommendations 83 and 84 immediately so that minutes are kept of such meetings and the content of the matters discussed made public?
My Lords, I will respond first to the noble Lord, Lord Stevenson of Balmacara, on the fit and proper person test. Under the Broadcasting Act 1990, Ofcom needs to be satisfied that a holder of a broadcasting licence is a fit and proper person. That is entirely a matter for Ofcom. On a change of control, Ofcom may consider the issue but will do so only once the transaction has been completed With respect to the points raised by the noble Lord, Lord Foster of Bath, of course the process of dealing with this transaction will be fair and will be carried out, as I indicated before, by the Secretary of State discharging a quasi-judicial function. There is no present intention to deal with the matters in Leveson that the noble Lord refers to. As regards his suggestion of a recent meeting between the Prime Minister and Rupert Murdoch, I point out that the only recent meeting was in September, when the Prime Minister was attending a meeting with certain journalists and correspondents from the Wall Street Journal and Mr Murdoch arrived unannounced, as it were, at that meeting. I can advise the noble Lord that there was no discussion at that time of the present transaction.
On the Ofcom adjudication on the fit and proper person, will my noble and learned friend the Minister confirm that the Government will make no recommendation of their views either for or against?
As I indicated before, the matter of determining fitness to hold a broadcasting licence is entirely a matter for Ofcom.
My Lords, the Small Charitable Donations and Childcare Payments Bill is a short Bill—just nine clauses—and a technical Bill, but it is not unimportant. Indeed, contained within it are positive and pragmatic changes intended to simplify and improve the operation of both the gift aid small donations scheme and the tax-free childcare scheme The charity sector is one of this nation’s great assets. Many noble Lords will have experience of working for charities or serving as trustees and patrons. They will therefore be familiar with the important work charities do, as well as the challenges and pressures they face. Of course, noble Lords serving on the Select Committee on Charities are currently gathering evidence on charity governance and the challenges of sustaining the charity sector The Government recognise the importance of the charity sector and it is for that reason that they provide support to charities and donors through a generous package of tax relief worth more than £5 billion last year. This is up from £4.7 billion in 2014-15 and £4.4 billion in 2013-14. One of the most valuable tax reliefs available to charities is gift aid, which was worth around £1.3 billion last year. Gift aid allows charities to reclaim from HMRC the basic rate of tax paid by individuals on their donations To claim gift aid, a charity must obtain a declaration from the donor confirming their status as a UK taxpayer. This process works well, particularly for large donations, and I am sure noble Lords will be pleased to hear that gift aid repayments to charities continue to grow. But the Government recognise that there are circumstances where it is just not practical or feasible for fundraisers to stop donors and obtain a gift aid declaration, leading to a gap in the amount of gift aid claimed. The gift aid small donations scheme is intended to help address this gap by allowing charities to claim a gift-aid-style top-up payment on small cash donations Noble Lords present may recall that, during the passage of the Small Charitable Donations Act 2012, the Government committed to a full review of the gift aid small donations scheme after three years of operation. The Bill is the result of that review and the Government have listened to the charity sector. Indeed, the vast majority of the provisions within the Bill were originally put forward by the charity sector itself The Bill will make the gift aid small donations scheme simpler and more flexible so that it can benefit a greater number of charities and donations. I pay tribute to the hundreds of charities, representative bodies and others that took the time to engage with HMRC during the course of the review. I am pleased to report that the reforms in the Bill are forecast to benefit charities by up to £15 million per year. The new rules will particularly benefit the up to 9,000 new charities that apply for recognition by HMRC each year The Bill is intended to make life easier for charities. It will therefore substantially simplify the eligibility criteria of the gift aid small donations scheme, making it much easier for smaller and newer charities to access top-up payments. Charities will no longer need to wait for two years before making their initial claim, nor will they need to have claimed gift aid in at least two out of the previous four tax years, as they do currently Removing these rules will leave just one remaining condition that charities must meet to access payments: the gift aid matching rule. This rule requires charities to claim gift aid of £1 for every £10 claimed under the gift aid small donations scheme. It is necessary to retain this rule to maintain a link between the small donations scheme and the full gift aid scheme. A link to the main scheme is important, both as a means of incentivising charities to engage with gift aid and to allow HMRC to ensure that charities comply with the rules. It is the Government’s view that these changes strike the right balance between simplifying the scheme—making life easier for charities—and maintaining an effective deterrent against the dishonest minority who would seek to exploit the rules The Bill also relaxes and clarifies the operation of the community buildings rules. These rules are intended to deliver fairness and broad parity of treatment for charities structured in different ways. Without these rules some charities would be able to claim vastly more than others for no reason other than differences in the way the charities are structured. For many charities, the community buildings rules work very well. For example, many local churches have been able to benefit from the rules. Indeed, the Archbishops’ Council recently commented: “Parishes were able to claim record levels of Gift Aid, with a significant part of this increase arising from the use of the Gift Aid Small Donations scheme” This is to be welcomed and we of course want churches to continue to benefit from the valuable extra income provided by the gift aid small donations scheme However, it has also become clear that other charities have been less able to fully utilise their community buildings allowances, most notably Scouts and other uniformed groups which, although based in community buildings, undertake most of their collections outside the building. The Bill therefore relaxes the community buildings rules to allow charities to include donations collected outside the building but within the local area under their community buildings allowance. This change could benefit any local charity that regularly meets in a community building, such as a village hall or community centre. There is no requirement for the charity to own the building outright The Bill will also future-proof the gift aid small donations scheme. The scheme is intended to allow charities to claim a gift-aid-style payment on small, fleeting donations, such as those placed into a collection tin or church offering. However, noble Lords will be aware that cash transactions are declining as electronic payments become ever more prevalent. The Government have already worked with the charity sector to put processes in place for claiming gift aid on most forms of electronic donations, such as SMS and online During the review of the scheme, charity representatives demonstrated examples of the innovative new contactless collection technology being developed. The Government accept that in many ways these donations are analogous to the small cash donations made on the spur of the moment by passing individuals. The transactions are small, almost instant, and there is very little time to stop the donor to solicit a gift aid declaration. The Bill will therefore ensure that the gift aid small donations scheme remains relevant for years to come by opening it up to donations received using contactless collection terminals As I have explained, the Government are taking action to simplify the gift aid small donations scheme so that more charities are able to benefit. Last year 21,300 charities claimed a total of £26 million in top-up payments, a not insignificant amount, but we accept that it is lower than forecast. HMRC will therefore undertake a targeted communications exercise to promote greater awareness of the gift aid small donations scheme I shall now address the tax-free childcare provisions contained in one clause of the Bill. This clause is concise and technical but it nevertheless effects important changes and reflects the elements of the tax-free childcare scheme which make it innovative and cutting-edge. The Government brought the foundation stone of this ambitious scheme, the Childcare Payments Act, before noble Lords in 2014. Secondary legislation followed soon after and now, in 2016, the Government are testing tax-free childcare with parents and preparing to launch it in early 2017. Tax-free childcare will be rolled out gradually and responsibly, with parents of the youngest children being invited to join the scheme first until it is available to all eligible parents by the end of 2017 Around 2 million families will be eligible for tax-free childcare in the first year and may access up to £2,000 of government support with childcare costs per child per year or £4,000 for disabled children. Parents will apply through a straightforward online process and open a childcare account for each child. They may then pay money into their accounts, and for every £8 a parent pays in, the Government will pay in an additional £2. The balance may then be spent on registered childcare needed to allow parents to work I now turn to the substance of the clause. The first change relates to the mechanism by which parents retain access to the scheme by reconfirming each quarter that they remain eligible to receive tax-free childcare. A successful reconfirmation ensures access to government support for the coming entitlement period. Entitlement periods standardly last for three months, but HMRC may vary them when new accounts are opened or to ensure alignment of dates—for instance, when a further child is added or when a new household is formed. The Bill will allow greater flexibility over how entitlement period dates can be amended. This will ensure that parents’ childcare account dates will align so that the number of times they need to reconfirm their eligibility for tax-free childcare can be minimised The other changes affect how parents who are dissatisfied with HMRC decisions can ask for them to be reviewed. They will establish standard, online forms that parents can use if they want to query a decision. This will make the process a lot more straightforward and convenient and makes for a truly digital scheme. However, we will still make sure that everyone is able to ask for a review. Those who, for any reason, are unable to use the online form will still be able to raise their queries using the non-digital channels that they used in applying for the scheme The Bill will make the gift aid small donations scheme more flexible and generous so that it can benefit a greater number of charities and donations. It will also make it easier for parents to interact with tax-free childcare. This Bill is good news for charities and for working parents, and I commend it to your Lordships.
My Lords, this is a money Bill, so the horse is off down the road before we even have sight of the stable door, let alone a chance to bolt it. Nevertheless, it is a good Bill and certainly has my support. I shall focus my remarks on the charitable section. It is a good Bill for the charitable sector for two reasons. First, it simplifies the 2012 Act. Those of us who had the pleasure of seeing that pass through your Lordships’ House—as I recall it, the noble Lord, Lord Newby, was the coalition Minister in charge of it—drew attention to some of the complexities, which the Government are now addressing. It is important to place on record one’s thanks to the Government for having honoured their commitment to have a three-year review and coming forward with the result we have before us tonight Sometimes calling it the gift aid small donations scheme can confuse people because it is not gift aid. Gift aid is related to the donor’s ability to pay tax; this is a pure top-up. You just get additional money from the Government for raising a certain amount of money. That is an important distinction which sometimes gets lost in translation There are a handful of points I would like to make. First, I congratulate my noble friend and the Government on the simplification of the means for being registered for this and on the fact that you no longer have to be in existence for two years or to have claimed gift aid in at least two of the previous four years. This is self-evidently of huge importance to new charities struggling to get going. It is a very welcome step forward. However, the 25% or thereabouts take-up remains disappointing. It is hard to know exactly why this is happening. Partially, it may be the complexity and partially it may be ignorance of the scheme among smaller charities; I will come back to that in a moment, but this is a welcome development Less welcome is the continuation of the 1:10 ratio—the need for £1 of gift aid to access £10 of top-up—which obviously involves a lower level of record-keeping or no record-keeping. One of the challenges to charities, particularly small charities, is the moving ratio. You have to keep your eye on how much you have in each of these two pots in order to be able to claim the top-up. One does wonder whether it would not have been simpler to have a fixed amount. Under the present regulations, the maximum you can claim I think is £8,000, so you have to find gift aid of £800 to justify it. Do we really need to keep that ratio constant throughout, or would it be easier to have a fixed amount, say £250 or £300—I do not know what number, but some smaller amount—that you have to reach and then you are free to claim the full amount or any amount up to the full amount without further ado, further inquiry and further record-keeping? I suspect that what the Revenue is really concerned about is being able to convince itself that the claimant—in this case the charity—is a proper operation. Therefore, so long as a reasonably substantial sum of gift aid is being claimed—one could discuss what that would be—the Revenue should not be concerned about the amount, particularly given that there is a cap on it in any case. It would be able to see that there was a bona fide charity making the claim Thirdly, also disappointingly, a matter much discussed in Committee in the other place was the type of donations that qualify. I am sure my noble friend will put me right if I am wrong, but as I understand it, cash and contactless payments qualify, while cheques and text donations do not. I find this quite a hard distinction to justify. Arguments that a cheque writer can be contacted to fill in a gift aid form show, in my view, a touching faith in our fellow human beings. People will just not bother, and perhaps I can give the House an example One of the reasons that charities do not merge is the problems with standing orders. When a charity disappears, the standing orders in its name have to be re-signed in the name of the new entity. The banks will not accept standing orders to the old charity, even though it can be proved that it had merged perfectly satisfactorily and that everything was above board, blessed by the Charity Commission and so on. It has to be re-signed and readdressed. The failure rate of re-signing is about 85%, since you write to people, they do not bother to write back and gradually the whole thing falls away. I strongly suspect that in this case, where you are having to write to people and say, “Thank you for your cheque; we are very grateful, can you please sign this additional gift aid form?”, nothing will happen at all, or it will happen only in a small minority of cases. If this is the case with cheques, for which there is a certain degree of effort in terms of finding a stamp, finding an envelope and writing the cheque, for a text donation, which you do on impulse—you are sitting watching a programme, you are moved by what you see and you think, “This is a terrible thing and I am going to text a donation”—the idea that you can be followed through to get the gift aid is slightly fanciful. In particular, there is an £8,000 limit, so the danger of this thing running away with the Revenue is quite small. I hope that the Government will think about that aspect and some of the weaknesses in the present approach My noble friend made an important point on the issue of low take-up. Clearly, ignorance and lack of knowledge and sophistication among smaller charities mean that quite a lot of them do not know about the availability of the scheme. Those of us here who are involved in the National Citizens Service Bill were mildly—I will put it no higher—surprised at the emergence of the Revenue as a recruiting sergeant for the National Citizen Service. There is nothing wrong with that, but as various Members of your Lordships’ House said, a brown paper envelope from the Revenue usually has bad news rather than something that is likely to encourage you to participate. But if we are going to use the NCS model again, and if the Revenue is going to be open-minded and even-handed about it and publicise the scheme through its network to those small charities that they are aware of, that is a very welcome development, and the Government ought to be congratulated on it To conclude, this is a good Bill, and the Government should be congratulated. Your Lordships’ House can do nothing about it anyway, but I hope that the Government will think carefully about the possible changes and improvements that I and no doubt other noble Lords will wish to suggest. Perhaps we can persuade my noble friend to follow the noble Lord, Lord Newby, and promise us a review three years from now, in which case I look forward to seeing Members of your Lordships’ House again in 2019.
My Lords, I also welcome this Bill, particularly its emphasis on flexibility and simplicity, as already outlined by my noble friend the Minister. I will confine my remarks to small charitable donations and, in particular, the ways in which the Bill could benefit smaller charities. I am acutely aware that many of the charities I had the privilege of working for before I entered your Lordships’ House—such as Cancer Research UK, Macmillan Cancer Support and the Royal British Legion—are household names. They have to work hard to raise funds, but perhaps not as hard as smaller, community-based charities. There are more than 163,000 charities in the UK, 92% of the public believe that charities play an essential or very important role in society, and two-thirds of us have donated to a charity in the past year—yet when it comes to donations received to fund the vital work of charities, the picture is mixed Overall, charitable donations have remained consistent over the past decade. This is proof that the public continue to be generous in their support for the causes that they care about. Indeed, Britain is ranked as the most generous country in Europe. That is the good news. But this also hides a worrying trend: smaller charities are receiving a lower proportion of charitable donations than they did only six years ago. According to the Lloyds Bank Foundation and NCVO’s Navigating Change report, donation income had fallen across the board for small charities by 10% for those with an income under £100,000. It is therefore very important that we look at ways in which smaller charities in particular might be helped in their fundraising efforts The gift aid small donations scheme, brought in by the coalition Government, is undoubtedly very welcome and very well intended—and, as noble Lords have already heard, it is making a difference. Indeed, it is the sort of scheme that should bring significant benefit to smaller charities—those that need it most. It has been widely praised and supported by charities, and I know that the sector commends the Government for introducing it. But the sector also believes that the scheme has yet to fulfil its potential The fact is that it is not working as well as it could. In particular, smaller charities are struggling to access the scheme. Only one-quarter—21,300—of the 84,000 charities that the Government originally forecast would be using the scheme by now are actually doing so. I appreciate that this is acknowledged in the intention behind the Bill being debated today, which looks to simplify and extend the scheme. I also know that it is welcomed by the sector, yet it would like the Bill to go further Those in the sector tell me that there remain significant obstacles to smaller charities accessing the scheme, particularly around what has already been mentioned as the matching rule or requirement. We know that the matching rule is a serious obstacle to smaller charities accessing the scheme because, when they were surveyed by charity bodies including the Institute of Fundraising, the NCVO, the Small Charities Coalition, the Association of Independent Museums and the Charities Finance Group, 50% of the smallest charities that responded wanted to see the matching requirement reduced or removed. These organisations make up the majority of the charity sector and should be the focus of our support. If the smallest charities are struggling to access the scheme because of this requirement, surely that runs counter to a key and welcome objective of the changes to the scheme that we are debating today: to ensure that the scheme operates as effectively and flexibly for the greatest number of charities I understand from the previous stages of the Bill that the main objection to removing the matching rule altogether is that it is considered a safeguard against the potential fraudulent use of the scheme because it provides an audit trail, and because the matching requirement is important to act as an incentive to induce charities that currently are not using gift aid to start doing so. However, removing the matching rule would still mean that charities go through the process of registering with HMRC to use the scheme and to register with gift aid. By this, I mean that a charity would still register with the Government’s Charities Online website; it would still register with the gift aid online registration process; and it would still make claims under the gift aid small donations scheme through the same government website. So why does HMRC appear to believe that such assurances are insufficient to monitor those claiming and to deter potential fraudulent activity? What evidence has been put forward by HMRC of the ineffectiveness of these measures from a fraud perspective? If the scheme is significantly undershooting its proposed targets, could we not be looking pragmatically at how to ensure that the scheme achieves its full potential This Friday marks the Government’s Local Charities Day initiative, when we all celebrate the wonderful contribution that smaller local charities play in our communities and our country. The Bill that we are discussing today is very welcome because it is intended partly to benefit those very organisations by simplifying the gift aid small donations scheme. What a wonderful further cause for celebration it would be if the Government could commit to considering new ways to improve this important scheme, including by amending the matching requirement.
My Lords, I declare a non-pecuniary interest, in that I am an unpaid adviser to a company called Charity Checkout, which exists to assist small charities in particular to increase their ability to accept digital donations It is a great pleasure to follow the noble Lord, Lord Hodgson. He was indeed here almost four years ago exactly when we discussed this measure in the original Bill. I also echo some of the points made by the noble Lord, Lord Shinkwin. Back in 2012, noble Lords welcomed that Bill—as we do with this Bill today—and the Government’s intention to assist small charities However, as we did then, we have to regret that when HMRC comes into contact with the charitable sector things seem to go horrible wrong. Tomorrow we are going to talk about the digital economy and all sorts of ways in which the country will move to a new, bright digital economic future. As a user of HMRC services, I am constantly being told that everything will move online, but somehow when the charitable sector and HMRC come together, we are back to something that is maybe not quite “The Flintstones” but is Heath Robinson-like in its complexity. And so it has proved to be. The projections for this scheme were that it would raise in excess of £100 million and that it would involve all the charities, as the noble Lord, Lord Shinkwin, said. But it has not, and that is principally because of the complexity of doing so. I just do not ever get the impression that people within HMRC understand how difficult it is for small charities to deal with some of the forms and so on that they put out That said, there is much in the Bill to welcome. There are a quite a number of important improvements. The change in the upper limit to £8,000 will definitely make a great difference to those charities that can handle the complexity of this. I am very glad that we have got rid of the bizarre rules about where activities take place and which buildings would be considered to be within the scheme and which would not I share the warm greetings of the noble Lord, Lord Hodgson, for the fact that organisations will no longer have to have claimed gift aid in the preceding two years. I know that the Government consulted on whether a charity should have to wait two years until it could register for the scheme. The Government listened to the sector and agreed that the charity did not need to wait at all. Actually, I would have made a different decision. I would have insisted that charities had to have existed for a year, because they should be able to provide an annual report and an annual account that proves that they are a bona fide organisation. I would have done that rather than some of the other things, and I would have perhaps taken a different view particularly on things like the linking scheme. Nevertheless, the Government have made that decision—wrongly in my view, as I think charities should be more accountable. The main point I want to follow up on, as did the noble Lord, Lord Hodgson, is the extent to which this linking mechanism is really working. The Minister in another place, Rob Wilson, cited the main reason for keeping it as deterring fraud by creating an audit trail. He went on to cite examples of frauds perpetrated by charities over the past year. From the totals that he prayed in aid in evidence to the House of Commons, that must have been gift aid frauds—they seem to have been big and systematic frauds. They do not seem to be fraudulent use of the small donations scheme. I would like to hear what evidence there is that the linking of the two schemes has managed to limit fraud I end with two points. I asked the Minister some Written Questions about the cost of administering gift aid and the gift aid small donations scheme. They are not separated out, so it is impossible to give a breakdown. When we talk about a review—as we inevitably will; this machine breaks down and needs to be repaired every couple of years—could we have a full analysis of the cost and cost-effectiveness of doing it this way? We are the only country in the world that runs a scheme like this, and I rather suspect that it is not the most cost-effective way for the Treasury to support charities. I suspect that we may move to a system whereby the initial registration for gift aid changes, has to be digitised and can be one where a donor can give permission for multiple donations to be made, particularly if it is done via an intermediary We also need to look at whether we should have a standard rate for gift aid and some kind of cap. That could be much more simply administered and might well end up being a lot more beneficial for the charitable sector than this clunky, although well-meaning, scheme.
My Lords, I declare an interest as a trustee of two small charities, neither of which I think benefit from gift aid or the SDS. I thank the Minister for introducing the Bill and all the speakers. Like others who have spoken, we broadly support the Bill and want to move it through as quickly as we can within the circumstances of this money Bill arrangement The Bill is aimed at simplifying the small donation scheme so that it benefits the greatest number of charities and increases access for smaller and newer charities. However, I feel that the Bill as drafted will not meet that objective, and I do not think that the Government have been listening to the small charities which have been complaining about the current scheme, because they have certainly been talking to us, and they do not tell the same story We all agree that smaller charities are facing significant financial and capacity challenges, which makes schemes such as the SDS, which support development of new income sources, all the more important. As the noble Lord, Lord Shinkwin, said, these charities face the greatest challenges accessing the scheme due to its restrictive requirements. In support of that view, we have been told that uptake is much lower than forecast, with only a quarter of the 80,000 charities that the Government forecast would be using the scheme by now actually using it. Surely we all want to make that change for the benefit of smaller charities. However, as we have been reminded, this is a money Bill, so there is nothing further we can do about it in this House. We can rant and rage, but it will not have much effect on the words in the Bill. That is a pity, because there are clear ways in which the scheme could be reformed further to improve its accessibility. I suggest that the Minister and his officials take careful note of these points, and we hope that there will be opportunities to address them in later Finance Bills, either piecemeal or as a whole, because I think they will make a difference The main evidence that we have received seems to be about changing the matching requirement. All noble Lords who have spoken have mentioned that the matching requirement requires charities to make a certain volume of gift aid claims through the traditional system in order to access the SDS. In practice, this is £1 of gift aid for £10 via the donation scheme. A priori, it is more difficult for small charities to comply with this, as in their earlier years they often raise small amounts of gift aid or lack the capacity, as they are operating with volunteer staff, to process the gift aid donations. The suggestion by the noble Lord, Lord Hodgson, of a fixed annual amount has some merit, and I would support that, if it were brought forward When the Minister introduced the Bill, he said it was vital that schemes such as the SDS have appropriate and effective measures in place to prevent fraud and ensure that taxpayers’ money is well spent. Obviously that is true. However, in order to use the SDS, charities have to register not only with the Charity Commission, their own effective and efficient regulator, but with HMRC, under the normal gift aid scheme. Like the noble Baroness, Lady Barker, I am sceptical about whether there is really any evidence to demonstrate the extent to which the matching requirement is a necessary mechanism to prevent fraud and error, how effective it is and whether the matching ratio of one to 10 is necessary to stop fraud. I would be grateful for any evidence that could be provided, perhaps by letter The Government have stated that the small proportion of organisations affected by the matching rule means it does not need to be changed. Surely this is disingenuous. It is also ironic: because the claims from the groups concerned are small, organisations affected by the rule are more likely to be the smaller organisations that the Government wish to help with the scheme I have two further points. We do not believe that restricting the scheme to cash or contactless payments does enough to help charities or encourages them to use gift aid. The noble Lord, Lord Hodgson, made some points about that, and I agree with him. The Government could significantly expand the support available to small charities by expanding the types of donations used in the scheme and ensuring that charities which rely on texts, cheques or one-off online donations are not penalised. Will the Minister give consideration to that Finally, despite the community buildings requirement, local civic groups—the scouts and girl guides have been mentioned—are restricted in their ability to use the main SDS allowance as it is currently designed, as they are treated as being one organisation, so they can have only one joint claim for gift aid. This is despite these groups having to fundraise for their own activities locally, and often not being financially dependent on each other. We recommend that HMRC end this interpretation when it can be demonstrated that local groups not only raise their own funds but are not financially dependent on each other. Again, will the Minister agree to take this idea back Having said that, we support the Bill, including its formulations about childcare, and we wish it well.
My Lords, I am very grateful to all those who have taken part in this short debate for their contributions and for their broad support for the objectives of the Bill. I have noted, and will touch on, some of the very helpful suggestions that have been made One of the questions was when there would be an opportunity to have another look at the scheme. All tax policy remains under constant review, and the scheme we are discussing is no exception. In addition, HMRC publishes a national statistics package every year, providing a wealth of data, including the total amounts claimed under the gift aid and small donations schemes. This transparent approach allows interested parties to monitor the take-up and effectiveness of charitable tax reliefs constantly. But all suggestions made during the debate will of course be looked at by the Ministers and officials who have responsibility for taking this important policy forward Quite a lot of the comments were focused on the link between the small donations scheme and gift aid. There are a number of arguments for nudging people towards gift aid wherever possible. First, the gift aid scheme is not cash limited, whereas the small donations scheme is, so the more people can put on the gift aid side, the more people will be outside the cap. Also, with gift aid the charity gets a list of the donors who support it, which obviously does not happen with the small donations scheme. There is also the issue of safeguards against fraud, which I shall come to in a moment On the issue of publicity for the scheme, a number of noble Lords commented on the fact that the take-up has not been as high as we, or they, would have wished. As I said, we will publish the scheme, and I take note of the comment by my noble friend Lord Hodgson that publicity should not come in brown envelopes marked “HMRC”, which strike terror into the hearts of most citizens. We should find a more user-friendly way of publicising details of the scheme A number of noble Lords suggested that the matching requirement might be dropped. This was raised during the review that the Government undertook. The matching rule was not identified as an issue in the vast majority of responses. Even the charity finance groups and the NCVO’s own call for evidence response acknowledged that only 5% of the charities that they surveyed claimed no gift aid, which does not wholly support the assertion that the matching rule is a significant barrier for most charities. The argument was also put forward that it was excessive and that one way around this would be to have a fixed amount. HMRC requires a regular pattern of gift aid claims to be able to ensure that a charity is and continues to be compliant with the main gift aid scheme. It is a sort of proxy for compliance, having the link between the small donations scheme and gift aid. The organisations continuing compliance with gift aid and HMRC’s ability to check a number of claims is the closest proxy to help to assure compliance under the new scheme. Requiring a number of gift aid claims to be made, which includes the provision of donor declarations alongside claims for top-up payments, increases the protection against fraud and abuse, which I shall come on to in a moment The scheme is at risk from fraud. The Government believe that a matching requirement is an important anti-fraud element of the scheme. Even if a charity appears to be compliant for the first few years or with the first claim, changes in charity personnel can affect an organisation’s attitude to compliance, so HMRC will continue to need some evidence on which to base its assessment of the risk that the charity poses in relation to the scheme. There are some unfortunate examples of individuals exploiting charitable status for criminal purposes. In May this year three individuals were jailed for a total of 22 years for defrauding HMRC of £5 million in fictitious gift aid claims; in April three individuals were jailed for a total of 11 years for submitting fraudulent gift aid claims totalling £340,000; and in January two individuals were jailed for a total of five years for attempting to fraudulently claim £500,000 in gift aid from HMRC. This demonstrates that there is some risk of abuse in the scheme I was pressed by my noble friend Lord Hodgson to extend the gift aid small donations scheme to include other forms of payment—direct debits, cheques and credit card payments. The aim of the scheme is to allow charities and community amateur sports clubs to claim a gift aid-style payment on cash donations received in circumstances where it is difficult or impractical to collect donors’ details. Giving by cheque means that the donor is giving their details to the charity, and the extra amount of information needed to make a gift aid declaration is relatively small. If it is practical for a donor to write a cheque, it seems reasonable to assume that it is practical for the donor to make a gift aid declaration at the same time. When a charity has an ongoing relationship with a donor, you should use gift aid if at all possible.
My noble friend is doing a splendid job with a brief that is not entirely his. The Revenue always produces these stupendous figures—£5 million here and £5 million there—but we are talking about an £8,000 maximum per charity, so there is a limit to the extent to which bad boys can run away with the ball. I am not asking for a response—just to place on the record that the Revenue is being unfair to my noble friend by talking about £5 million being cheated out of charities when we are talking about a very limited scheme. It was an unfair speaking note that it gave my noble friend.
I take full responsibility for any speaking notes that I deliver. If one looks at some possible structures, you can have a charity with a number of community buildings and each one could claim £8,000—so it is not necessarily capped at £8,000. Depending on the structure of the charity, it would be possible to claim a much larger figure. I take on board the point that my noble friend has made Progress is being made on making SMS slightly more user-friendly. SMS text giving is an easy way for donors to give to charity; donors simply send a short code to a six-digit number to donate a set amount via their phone bill. There is an established process for donors to gift aid SMS donations. Following the initial message, a reply is sent to the donor, thanking them for their donation and asking for their name, house number, post code and confirmation that they are a UK taxpayer. If the donor replies with this information, gift aid is added to the donation. HMRC is working closely with the sector and we are introducing new legislation in April 2017 to simplify the process for claiming gift aid on donations made through digital intermediaries.
The Minister is saying that there will be a legislative initiative in the forthcoming year, reflecting on the text side of things. A number of noble Lords raised the question of whether that clause would be applied. I take the point that a text message contains some metadata which would be useful if you wanted to pursue gift aid. I still do not get the point made by the noble Lord, Lord Hodgson, about why, if you are going to accept that for gift aid, we cannot see it applied to the SDS scheme as well. It is a way of transferring cash but, unless you have very agile, slim and slender thumbs, it is not easy to do all the stuff that you are asking for. It would fit perfectly into the idea of being additional cash.
None the less, there is an advantage in getting it scored as gift aid rather than as a small donation, because there is a cap on small donations but not on gift aid. It is in the charity’s interest to try and nudge donations, wherever possible, down the gift aid route rather than the small donations one. The noble Lord asked about the take-up of the scheme and said that it might be too restrictive and complex. Some 21,300 charities took advantage of the gift aid small donations scheme in 2015-16, claiming a total of £26 million. Take-up of the scheme continues to grow year on year, but I take the point that it has come in below the forecast. That is why we are removing a number of eligibility requirements and relaxing the community buildings rules, which will make it simpler and easier to claim, particularly for smaller charities, and make it possible to score donations that are not collected in community buildings but in the local area. I hope this will help a number of charities which do not claim at the moment to do so. I turn to the point made by my noble friend Lord Hodgson about fraud. Although the headline maximum payment of £2,000 is modest, fraudsters can hijack or set up multiple charities and claim multiple amounts. The community buildings rule enables some charities to claim significant amounts of top-up payments in their own right, so it can potentially add up. In any event, we have a duty to ensure that public money is spent properly. Any amount of taxpayers’ money going to fraudsters is a significant issue. The noble Baroness, Lady Barker, suggested that we should abolish gift aid and—if I have understood her correctly—give charities a top-up on all donations received. This would be a radical reform, but it would not be welcomed by many in the charity sector. In fact, in 2010, charity representatives on HMRC’s gift aid forum considered whether gift aid should be reformed, including removing the link to individual tax contributions. However, they concluded that gift aid should remain as a tax relief. We are open to representations on how we can improve gift aid but are not currently considering reforms along those lines Finally, the Government are anxious to continue general support for charities. Some 73% of adults give money to charity in the average month. We are the most generous nation in Europe, so there is much to celebrate. We are offering incentives to encourage giving: we provide a generous package of tax reliefs for charities and donors which was worth £5 billion last year. The Government are proud to support the Grow Your Tenner fundraising campaign, which starts today. We have contributed £245,000 to match donations from the public through the campaign to local charities and community groups. We funded the small charities fundraising training programme to help small charities build the skills needed to fund-raise effectively and later this year we are going to hold a local charities day to celebrate and promote engagement with local charities and community groups If I have not touched on all the points made—and I am conscious that I have not—I will write to noble Lords dealing with the issues they raised. In the meantime, I thank them for their suggestions. Even if I was totally persuaded by their arguments, this is a money Bill so, as the noble Lord, Lord Stevenson, implied, there is nothing we can do about it. I hope, on that basis, we can make progress with the Bill. I beg to move.