Vol. 712 Monday No. 107 13 July 2009

PARLIAMENTARY DEBATES (HANSARD) OFFICIAL REPORT

ORDER OF BUSINESS

Death of a Member: Lord Kingsland Tributes Questions Cluster Munitions Afghanistan International Negotiations: Detainees Business of the House Motion on Standing Orders Parliamentary Standards Bill Order of Consideration Motion Work and Families (Increase of the Maximum Amount) Order 2009 National Minimum Wage Regulations 1999 (Amendment) Regulations 2009 Companies Act 2006 (Consequential Amendments) (Uncertificated Securities) Order 2009 Companies Act 2006 (Consequential Amendments) (Taxes and National Insurance) Order 2009 Companies (Share Capital and Acquisition by Company of its Own Shares) Regulations 2009 Companies Act 2006 (Consequential Amendments, Transitional Provisions and Savings) Order 2009 Community Interest Company (Amendment) Regulations 2009 ACAS Code of Practice on Time Off for Trade Union Duties and Activities Motions for Approval Companies’ Remuneration Reports Bill [HL] Third Perpetuities and Accumulations Bill [HL] Report Coroners and Justice Bill Committee (7th Day) G8 Statement Coroners and Justice Bill Committee (7th Day) (Continued) (Information and Code of Practice on Penalties) Order 2009 Identity Cards Act 2006 (Provision of Information without Consent) Regulations 2009 Identity Cards Act 2006 (Fees) Regulations 2009 Identity Cards Act 2006 (Application and Issue of ID Card and Notification of Changes) Regulations 2009 Identity Cards Act 2006 (Prescribed Information) Regulations 2009 Motions for Approval Coroners and Justice Bill Committee (7th Day) (Continued) Written Statements Written Answers For column numbers see back page

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© Parliamentary Copyright House of Lords 2009, this publication may be reproduced under the terms of the Parliamentary Click-Use Licence, available online through the Office of Public Sector Information website at www.opsi.gov.uk/click-use/ 925 Death of a Member: Lord Kingsland[13 JULY 2009] Death of a Member: Lord Kingsland 926

have sparred with him across the Dispatch Box, as I House of Lords was doing only last Wednesday at what turned out to be his penultimate appearance in this House. Monday, 13 July 2009. I am sure the whole House will mourn his death, salute his courage in fighting illness, and celebrate, 2.30 pm value and remember his life. This House has a lost a fine Member, a man who was a tribute to his party, Prayers—read by the Lord Bishop of Newcastle. this House, and the country he served in a range of ways. He leaves a very large gap on the Benches Death of a Member: Lord Kingsland opposite and in this House as a whole. The House will Tributes miss him; his insight, his courtesy, his skills and his intelligence. We and his family and friends have lost a very great deal in losing Christopher Kingsland. He 2.37 pm was a decent man, a fair man, a good man, and this The Lord Speaker (Baroness Hayman): My Lords, it House is a more diminished place today without him. is with the deepest regret that I have to inform the House of the death yesterday of Lord Kingsland. On Lord Strathclyde: My Lords, I echo the sentiments behalf of the whole House, I extend our condolences of the Leader of the House. Lord Kingsland was one to his family and friends. of the hardest-working Members of the Opposition, balancing his life at the Bar with that of being the Noble Lords: Hear, hear. shadow legal affairs Minister, which allowed him to be involved in almost any aspect of legislation that he The Chancellor of the Duchy of Lancaster (Baroness wanted. He used that option with an energy and drive Royall of Blaisdon): My Lords, I rise to pay tribute to shared by few others. In his 15 years in the Lords, he Lord Kingsland. Members of this House, I know, will built up a formidable reputation for his razor-sharp be shocked to learn of the death of Christopher intelligence and eloquence. The House has lost a hard- Kingsland. The House will want to send condolences working servant of the nation, and we on these Benches to his family and friends for their sudden loss, but this have lost a good loyal friend who was always happy to House has lost a great deal too. This House has lost lend a hand, even before he was asked. one of its most warmly and widely regarded Members. He had a tremendous sense of the value of our Though the lawyers of this House may find it hard to nation’s ancestral constitution, which he understood believe, there are times when this House does not want deeply, and he was greatly saddened by the destruction to listen to lawyers—but not Christopher Kingsland. of the office of Lord Chancellor—not for himself, as This House always wanted to listen to Christopher there are few as devoid of ego as was Lord Kingsland, Kingsland, though from these Benches—as I can but for the loss of a unique institution that he believed personally testify—it was not always a comfortable worked so well. experience. His forensic skills in debating and analysing Lord Kingsland made his home in Shropshire, where legislation meant that taking a Bill through this House he concentrated his political career by representing the with Christopher as your opposition was one of the people of that county in the European Parliament toughest jobs that a Minister has to do. The House from 1979 to 1994. Europe’s loss was our gain, and always wanted to listen to Christopher Kingsland once he had re-established his career at the Bar he because Members knew what they would get: clever, joined the Opposition in 1997 and led for us on most thorough, fair-minded and searching analysis. Skilled of the legal and constitutional Bills that came forward and rigorous in opposition, Lord Kingsland was positive from that time to this. Indeed, so great were his and constructive in opposition too. As we all know, in enthusiasm and dedication that when I spoke to him this House reaching agreement is often as essential as last week to try to limit the amount of time that he winning a vote and Christopher Kingsland was as was spending in the Chamber, he insisted that he was expert and successful a negotiator as he was a debater, well, enjoying himself and could not bear to sit on the and legislation was very often much improved by him sidelines. It was this tenacious spirit that ensured that being so adept at both. the Government did not get their way when they Lord Kingsland’s illustrious legal career saw him repeatedly tried to remove the right to trial by jury. called to the Bar in 1972 and take Silk in 1988. His Of course, politics was not his only love, but it was love of the law and his brilliant legal mind saw him his underlying passion. As the noble Lord, Lord West, appointed as a recorder and subsequently a deputy will affirm, he was a keen sailor in Cowes, and so he High Court judge, work he managed successfully to could not help but offer a word or two of advice on the combine with his work in this House. Before he entered Marine and Coastal Access Bill. your Lordships’ House in 1994, Lord Kingsland served In a world of celebrity and intrusiveness, Lord as a Member of the European Parliament, rising to Kingsland was a deeply private individual—not because become his party’s Chief Whip and leader of the he had anything to hide; on the contrary, he had much Conservative group of MEPs. It was during this time to be proud of, but he never wanted people to make a in the European Parliament that I first met Christopher. fuss. He would have been embarrassed by the tributes I still recall the twinkle in his eye and the wonderful this House makes today. A couple of years ago, he was sense of humour which he would, in time, use to such quietly married to Carolyn, and to her we send our great and painful effect against the government Front deepest condolences for a too-brief period of their Bench in this House. I regard it as a great privilege to lives spent together. 927 Death of a Member: Lord Kingsland[LORDS] Cluster Munitions 928

[LORD STRATHCLYDE] country. He was a dedicated public servant and I, for It is not too much to say that his loss will be keenly one, marvelled at his mastery of legal affairs, his skill felt across the political boundaries that divide this in debate and the clarity of his mind, especially, as far House. I held Lord Kingsland in the highest esteem as I could see, as he never ever used written notes. and with the greatest affection. His was a life of public Meticulous attention to detail and careful and thorough duty and public service, and it will be a long time preparation were his hallmarks. He was never polemical before we see one like him again. and was genuinely and warmly regarded on all sides of this House. We remember his integrity, his graciousness, Lord McNally: My Lords, I know that our conventions his humility and his lightness of touch, as befits a mean that many people who want to pay tribute to skilled and passionate sailor. He will be much missed Lord Kingsland today will be prevented from so doing. by all of us, and from these Benches we send our Occasionally, when one gets that phone call that one prayers and deepest sympathy to Lady Kingsland and of our colleagues has died, the feeling is one of sadness, her family. but it has usually been about a life well lived and long-lived. I do not think that I have felt a feeling such The Lord Speaker: My Lords, I spoke earlier on as that which I felt this morning since I heard of the behalf of the House, but perhaps I may be allowed death of Lord Williams of Mostyn. It was the same one personal sentence of sorrow at the loss of a wise feeling that Lord Kingsland had so much more to and generous man and an admirable parliamentarian. offer and was someone who stretched across this House to all Benches in terms of friendship and respect for the qualities that he brought to this House. Cluster Munitions On these Benches, my noble friends Lord Thomas Question of Gresford, Lord Goodhart and Lord Lester have expressed to me today their personal sadness. Lord 2.47 pm Kingsland was, indeed, a lawyers’ lawyer, but, as has Asked By Baroness Howe of Idlicote already been hinted, he was also a parliamentarians’ parliamentarian. The last time that I debated with him To ask Her Majesty’s Government what steps was during the debate on the Privy Council. I can see they are taking to ratify and implement the convention him hunched over that Box—well briefed, articulate, on cluster munitions. devoid of malice or ideology, but razor sharp. It is indeed a loss to those Benches and to any prospective office that he may have held, but, much more, it is the The Minister of State, Foreign and Commonwealth loss of a very decent man and a very good friend to all Office (Lord Malloch-Brown): My Lords, before the of us. UK can ratify the convention, its prohibitions must be implemented in UK law. A cluster munitions prohibitions Bill is included in the draft legislative programme for Baroness D’Souza: My Lords, this is a terrible shock the fifth Session for consultation. Nevertheless, the for us all, but I think immediately of Lord Kingsland’s Government have begun to implement the convention’s wife and stepchildren and of his many devoted friends key provisions. All UK cluster munitions have been and colleagues in your Lordships’ House and far placed in a destruction programme and cluster munitions beyond. I offer them my sympathies on behalf of the are now subject to the most stringent trade controls. Cross Benches. In my short time here, I was lucky enough to have Baroness Howe of Idlicote: My Lords, I thank the had the benefit of his wise counsel and to witness time Minister for his reply and declare an interest as the and again his fierce adherence to principle, whether on patron of the Port Talbot branch of Soroptomist matters of legal precedence, free speech or parliamentary International. International soroptomism has championed procedure. He seemed to always have time to listen the cluster munitions campaign for many years. I and to be a very good listener, and he was prepared to warmly congratulate the Government on their decision— change his mind if the facts warranted it. announced just after I had tabled my Question, although It must be a comfort to all that he had returned to I am sure for better reasons than that—to introduce his beloved Shropshire for his final hours. I, with many the necessary legislation to ratify the convention banning others, was at a dinner which he and his wife also these terrible weapons, whose victims are almost all attended on Saturday evening in Oxfordshire. He was civilians, especially innocent children. Can the Minister his usual modest, sociable and urbane self. Although, assure the House that this essential Bill will be introduced once again, the shock is very great, I and his friends immediately after the Queen’s Speech? In view of the and family may be comforted to know that his last broad support for the convention from noble Lords of night was a happy one, spent among those who deeply all parties and none—all of us, in other words—will respected him during his long and very distinguished he consider starting the Bill here, thereby ensuring its career in Europe, in the Territorial Army, at the Bar swift route to completion? and in this House. Lord Malloch-Brown: My Lords, let me say to the The Lord Bishop of Newcastle: My Lords, from noble Baroness that I have the best source beside me, these Benches we add our tribute to and give thanks the Leader of the House, who shares her desire to see for the life of Lord Kingsland and the very considerable the Bill introduced. Whether it is introduced in this contribution that he made to the public life of this House or another place first is a matter for parliamentary 929 Cluster Munitions[13 JULY 2009] Afghanistan 930 managers to agree, but I assure the noble Baroness that there is a gulf between the countries that were that, even while we await the enactment of the Bill, we part of the Oslo process and those that still believe are, as I said, moving to make sure that cluster munitions that these weapons are important. We are struggling are eliminated from our arsenal and that the other to find a way to bridge that so that we can universalise provisions of the Bill are essentially enacted by the ban, but it is a long road ahead. administrative arrangements. Lord Howell of Guildford: My Lords, will the Minister Lord Wallace of Saltaire: My Lords, the last US accept that we on this side will give full support to Administration were one of the obstacles to negotiating enabling the legislation to be brought forward for the a cluster munitions convention and the question of UK to ratify this convention? He said that, of the US troops operating with UK troops under such a signatories to the convention, which comprise about convention was very complicated. Can the Minister 98 in all, only 12 have now ratified; I do not want to be assure us that the new US Administration have sufficiently smart but I think that the latest figure is 13. The rest changed policy on this to make life much easier for need to ratify and, on top of that, we need to bring British troops on combined operations? China and America completely on board. Without that, we will not get the safety and security for our own Armed Forces—an issue rightly raised by my Lord Malloch-Brown: My Lords, we hope so. To be noble friend Lord Trefgarne—which they all deserve fair, the new Administration have had a lot on their and which will bring an end to this horrific weapon in plate, so we have not yet been able to have detailed our time. discussions on this issue. It is important to add that a number of key countries in this industry are not Lord Malloch-Brown: My Lords, the noble Lord is signatories. It is not just the US; China, India, Pakistan completely correct. We have to work to persuade other and Brazil are also not signatories. Even beyond the countries to join this. As he is aware, we have looked at interoperability issues regarding the US, there is a lot other routes. A protocol was proposed to the conventional of work to be done to turn this into a universal weapons treaty but unfortunately there does not seem convention. to be a mechanism for bridging the argument between those who feel that that would dilute the convention’s Lord Trefgarne: My Lords, I do not disagree with provisions and those who want no constraints on the principle of banning these dreadful weapons but, the use of these weapons. There is a long diplomatic in view of the large number of nations that will not be road ahead. adherents to the treaty, is the Minister satisfied that that will not place forces at a Lord Goldsmith: My Lords, I add my congratulations disadvantage? Have the Chiefs of Staff been consulted? on what the Government are doing and what my noble friend has said, but could he help us on one point? Lord Malloch-Brown: My Lords, the Chiefs of Staff When the legislation comes forward, will we have any strongly support this. This weapon has done untold difficulties with the definition of cluster munitions, damage to civilians and, in doing so, risks being in because in the past the question has been raised by breach of international humanitarian law. It is exactly some whether certain munitions, especially so-called the kind of weapon that, by killing innocent civilians, smart munitions, fall outside the definition and therefore means that you lose the hearts and minds side of the outside the ban? war. I can say with great confidence that they support Lord Malloch-Brown: My Lords, one of the this. We have never used these weapons in Afghanistan. conclusions—one of the last-minute features, if you The last time that we used them was in Iraq. Even like—of the deal that brought this together was indeed without this convention, these weapons have outlived to draw up a definition that no longer differentiated their usefulness. between so-called smart and, I suppose, non-smart weapons. The nature of the warhead and its indiscriminate Lord Hannay of Chiswick: My Lords, will the Minister number of capsules has been the key condition. Therefore, accept my personal congratulations on the role that he that issue is behind us. played in bringing about the British decision to sign the Dublin convention, which was considerable and Afghanistan not entirely straightforward? How are the Government getting on persuading countries that did not sign the Question Dublin convention when it was open for signature last 2.55 pm December to join it? Will he confirm that speed of our clearing the road to ratification will be a crucial element Asked By Lord Astor of Hever in being part of the governance of this convention To ask Her Majesty’s Government what is the when it comes into force? future role of Her Majesty’s armed forces in Afghanistan. Lord Malloch-Brown: My Lords, on the latter point, I absolutely agree. The convention comes into force six The Minister for International Defence and Security months after the first 30 countries have ratified. It is (Baroness Taylor of Bolton): My Lords, first, I am sure enormously important that we are part of that first 30. that the whole House will wish to join me in offering Twelve have ratified so far, so getting this Bill through sincere condolences to the families and friends of is critical. On the first point, I have to acknowledge Trooper Christopher Whiteside of the Light Dragoons, 931 Afghanistan[LORDS] Afghanistan 932

[BARONESS TAYLOR OF BOLTON] Baroness Taylor of Bolton: My Lords, the numbers Rifleman Daniel Hume, of 4th Battalion, the Rifles, that we have, not just of soldiers but of members of all Private John Brackpool, serving as a Rifleman with the forces, are kept under constant review. Were we to the Prince of Wales’s Company, 1st Battalion, Welsh change our tasking, we would have to look at that. I Guards, Corporal Lee Scott, of the 2nd Royal Tank am not saying that we do not need any more helicopters; Regiment, and Corporal Jonathan Horne, Rifleman I am saying that helicopters are not the simple answer William Aldridge, Rifleman James Backhouse, Rifleman to countering the problem of IEDs. I mentioned the Joseph Murphy and Rifleman Daniel Simpson, all increase both in the number of helicopters and in from the 2nd Battalion, the Rifles. They were killed on flying hours, but we are doing many other things such operations in Afghanistan during this past week. I am as deploying RAF Merlins that have been in Iraq and sure that our thoughts are with not only those families providing more powerful engines to Army Lynxes so but with all those involved in current operations. that they can operate in that atmosphere. Turning to the Question, our troops are in Afghanistan alongside those of more than 40 countries under Lord Clark of Windermere: My Lords, my noble United Nations Resolution 1833, reaffirmed in September friend referred to the fact that operations in Afghanistan 2008. Our aim is to stop Afghanistan becoming a safe are under the aegis of the United Nations. Will she haven for those who plan that can threaten consider reminding the BBC and ITN in MoD press security in the United Kingdom. We are there to help releases that that is the case and that 40 other nations Afghanistan become an effective state, with a view to are fighting alongside us in Afghanistan under the transferring responsibility to the Afghan security forces United Nations’ remit? over time, with international forces moving to a training and supporting role. Baroness Taylor of Bolton: My Lords, that point is very well made. Sometimes this is presented as being Lord Astor of Hever: My Lords, on behalf of these only the United Kingdom and the . Benches, I pay tribute to all those young soldiers. The Obviously we are trying to convince more of the death of so many young men shows the extent of the partners there to provide more armed forces to do sacrifice that military families are making on our their share there. Burden-sharing has improved slightly, behalf. Ministers say, rightly, that it is vital that we but there is still a long way to go and we still press the succeed in Afghanistan, yet, despite promises that our matter. This is an international commitment, because troops will be supplied with everything they need, why the threat from terrorism is international and could do they still fail to provide sufficient helicopters in a strike anywhere. country with the most dangerous roads on earth? Far too many troops are being moved by road and being killed by IEDs. Can the Minister tell the House why Lord Ashdown of Norton-sub-Hamdon: My Lords, the Government turned down the request by commanders may I express the deep regrets and condolences of for 2,000 British reinforcements for Helmand? those on these Benches to the families and friends of those who were so tragically killed last week? There is Baroness Taylor of Bolton: My Lords, I am sure no doubt that overambitious aims and under-resourcing that the whole House agrees with the sentiments expressed have played a part in the position that we are currently by the noble Lord. Our thoughts are with military in in Afghanistan, but is not another cause also this: families. that we have learnt through bitter experience that unless the international community can act to a single I hear what the noble Lord says about helicopters. plan in a unified manner and speak with a single voice, We have to be clear that helicopters are not a panacea. we cannot succeed in these matters? Will the Minister They are not a simplistic solution to the problems that explain why, after eight years and so many deaths, this our forces are facing with IEDs. We have increased is not possible to achieve in Afghanistan? Is not at helicopter numbers by 60 per cent since November least one reason for the sacrifice of so many young 2006. Helicopter flying hours are up by 84 per cent. lives without success being delivered that the leaders We cannot take and hold ground with helicopters; we of the international community have completely failed have to use whatever means of transport or whatever to get their act together under a unified policy in tactics are appropriate at any particular time. In respect Afghanistan? of troop numbers, the Prime Minister announced earlier this year the increase that we are making up to 9,000, particularly to provide security for the elections. Baroness Taylor of Bolton: My Lords, the mission It is important that other countries also do their part has changed over time. When troops first went into and increase their numbers. Afghanistan, they were operating more in the north to get to Kabul to stabilise the situation there, but the Lord Inge: My Lords— real threat from terrorism has always been al-Qaeda, which was centred around the Kandahar area. It is true that not everyone has always realised that threat, Lord Wright of Richmond: My Lords— and many nations operate with caveats of the kind that neither we nor those who are working with us in Lord Inge: My Lords, I thank the Minister for that the south have. It is difficult in an international situation reply. Is she saying in that answer that therefore she to get proper co-ordination, but we are working well believes that we do not need any more helicopters or with our allies in the south and we are happy with any more soldiers on the ground in Helmand province? co-ordination there. 933 Afghanistan[13 JULY 2009] International Negotiations 934

The Earl of Onslow: My Lords— the delegated authority for conducting international negotiations which has been given to any overseas The Lord Bishop of Chelmsford: My Lords— territory. The external affairs of a territory remain part of the special responsibilities of the governor under each territory’s constitution. The Minister of State, Department of Energy and Climate Change (Lord Hunt of Kings Heath): My Lords, let us hear from the right reverend Prelate. Lord Wallace of Saltaire: My Lords, I thank the Minister for that Answer and I thank the Foreign Office for its useful briefing on general entrustments The Lord Bishop of Chelmsford: My Lords, we on and individual entrustments, and the technical terms these Benches too send our condolences and our prayers of which I had not been previously aware. Is it not to those who have lost their lives. Perhaps we in the extraordinary that the Government of Bermuda House might also remember those in the Chaplaincy negotiated directly with the United States Government Service, for whose services there will be considerable that senior members of the White House staff would demand as a result. Is not one of the difficulties that accompany the Uighurs from Washington to Bermuda we face in a situation such as this that the presence of without informing the British Government? Do the large numbers of particularly American and other Government think that it is possible to sustain the western troops in Afghanistan can add strength to the current relationship with our overseas territories in radical Islamist argument that this is about western the western Atlantic and the Caribbean, given the imperial ambitions? Will the Minister accept that, extent of their dependence on the United States for unless we are absolutely clear about the purposes of American money—legal and illegal—in those territories this operation and the boundaries of what we are and the extent to which the American Administration seeking to achieve in a very different and distant now expect to influence what goes on in those territories, culture, hopes for success will be undermined? and I have not even mentioned Grenada yet?

Baroness Taylor of Bolton: My Lords, I am very Lord Malloch-Brown: My Lords, it is extraordinary. happy to pay tribute to the Chaplaincy Service. In the Clearly, there was a real breakdown here. The United present circumstances, it will be strained, but it has States has assured us that it understood that the Prime worked well with those who have been bereaved and Minister of Bermuda had the right to negotiate in this its contribution is very welcome and much appreciated. case because he asserted such to them. It has led us to On the radicalism of people in that country, it is announce a review of the operation of this entrustment, important that we try to work with the people in but it is clear that there was a breakdown. Afghanistan: hence the comprehensive approach and the great deal of care that is taken in developing our tactics and holding territory and working with people Lord Foulkes of Cumnock: My Lords, does my there. However, I remind the House that the terrorism noble friend agree that there is a case for a wider that most shook people on 9/11 happened long before review of the position of our overseas territories, anyone went into Afghanistan or, indeed, Iraq. given that the Turks and Caicos Islands are subject to direct rule from the United Kingdom because of events there? Given the problems in relation to the use of Lord Mawhinney: My Lords— overseas territories as tax havens, as well as the remarkable issue raised by the noble Lord, Lord Wallace, is it not Lord Hunt of Kings Heath: My Lords, I am afraid about time that overall, comprehensive consideration that it is time to move on. was given to the role of the overseas territories, their constitution and their future? British Overseas Territories: International Lord Malloch-Brown: My Lords, I certainly think Negotiations that the overseas territories, which have probably lived Question in the shadows of British foreign policy for a while, are for a number of reasons becoming more central, most 3.04 pm of which have been mentioned in the previous two Asked By Lord Wallace of Saltaire interventions. Tax havens and the impact on the economies of a number of these territories as a result of removing To ask Her Majesty’s Government whether tax privileges, the broader impact of the economic negotiations between British Overseas Territories crisis combined with the criminal issues with which and the Government of the United States for the some have been grappling because of their location acceptance of detainees formerly in United States and now this issue have put them front and centre custody fall within their delegated authority for again. It is in understanding what we do and do not conducting international negotiations. delegate to them, and ensuring that they understand it, that the solution lies. I am not sure that a wider The Minister of State, Foreign and Commonwealth review is necessary for that common sense to prevail. Office (Lord Malloch-Brown): My Lords, negotiations between British Overseas Territories and the Government Lord Campbell-Savours: My Lords, did not similar of the United States for the acceptance of detainees issues arise following the invasion of Grenada in formerly in United States custody does not fall within the 1980s? 935 International Negotiations[LORDS] Refugees 936

Lord Malloch-Brown: My Lords, they did. I suppose know that the Government are putting considerable that we had hoped that they had been resolved then funding into assisting internally displaced persons— and that we had an understanding from future £19 million core funding to UNHCR, £22 million to Administrations, particularly one as typically sympathetic Pakistan, £12.5 million to Sri Lanka, £29 million to as the Obama Administration. But it shows that even Gaza and £16 million to Iraq. in this situation really unfortunate slips can occur. Lord Naseby: My Lords, does the Minister recall Refugees the wonderful support that Her Majesty’s forces gave to Sri Lanka and the Maldives at the time of the Question tsunami? As the biggest problem facing the 300,000 refugees today is the clearing of the mines laid by the 3.08 pm Tamil Tigers, and as India has sent forces there, could Asked By Baroness Tonge not Her Majesty’s Government at least release a couple of teams to help with the de-mining and thereby assist To ask Her Majesty’s Government what is their the earlier re-housing of the refugees? response to the number of refugees resulting from conflicts and climate change. Lord Brett: My Lords, I do not have the answer to that question. However, I shall take it on board, make Lord Brett: My Lords, according to United Nations it known to the quarters that are responsible for the figures there are more than 10 million refugees, more area and respond to the noble Lord. than 14 million internally displaced people and 6.5 million so-called stateless people. The Government provide Lord Avebury: My Lords, does the Minister agree substantial funding to help prevent and respond to that with sea levels rising twice as fast as was predicted forced population movements caused by conflicts and by the IPCC only three years ago and with Britain climate change. We also press other Governments to already planning for a rise in sea levels of one metre in respect and promote the welfare, protection and right its coastal defence planning, we could be looking at as to return of refugees and displaced persons. many as 650 million people displaced from coastal areas and small island states by the end of the century? Baroness Tonge: My Lords, will the Minister remind What are we doing at Copenhagen to steer the discussion us how many Palestinians have become refugees since in the direction of measures that will reduce energy 1948 and how many still want a right of return to their consumption and population growth so as to confine homes? In view of the latest World Bank report on atmospheric CO2 within the limit of 550 parts per Israel’s consumption and control of water in the Middle million equivalent, the minimum that will allow us to East, what can this Government do to ensure clean survive as a world without enormous disasters? water supplies for the refugees and displaced people in the West Bank and, in particular, in Gaza, where they Lord Brett: My Lords, there are many forecasts of are now suffering from water-borne disease? displaced persons and other climatic tragedies arising from climate change which underline the importance Lord Brett: My Lords, from memory, the of getting an agreement at Copenhagen to stabilise figure in 1948 was approximately 750,000, and I think CO and reduce emissions. However, forecasting seems 2 that the refugee population in Israel and the countries to me to be less important than taking action now, as around it is currently 4.7 million. On the water issue, we are doing in this country. We are also providing the noble Baroness referred to the World Bank report. additional funding. There is a £40 million input from The issue of water management in the Occupied the disaster reduction programme at DfID. We are Palestinian Territories is a continuing concern to us. putting money into the international Environmental As the World Bank assessment rightly points out, Transformation Fund, the climate development fund there are a number of obstacles to improving water in Africa and the southern African regional climate sector management and development in the Occupied change fund. There is a whole host of such funds. As I Territories. We continue to press the Government of know that your Lordships like short answers, I am Israel to ease restrictions on movement and access happy to supply a list to the noble Lord. I am sure and seek to make progress on this at the earliest that I would bore the House if I were to read them all possible time. out now.

Baroness Rawlings: My Lords, as we are discussing Lord Roberts of Conwy: My Lords, have the refugees, does the Minister believe that the effect of Government made a further analysis of the figures climate change has played a major role in the conflict that the Minister has given? Surely many of these in Darfur? refugees are in fact economic migrants.

Lord Brett: My Lords, that is a $64,000 question. Lord Brett: My Lords, my understanding of an The conflict in Darfur has many sources though I am economic migrant is someone who moves from one sure that climate change is aggravating a situation country to another to improve his or her lot as the which is fairly intolerable in the first place. I doubt other country offers opportunities of employment that climate change is the major cause of the conflict and income that can sustain the family better than the but I am not an expert in that field. However, I do country that they were born into. We are not talking 937 Refugees[13 JULY 2009] Companies Act 2006 Order 2009 938 about that. We are talking about people who will lose Lord Goodlad: My Lords, will the noble Baroness their lives as rising tides take away islands. We are the Leader of the House give an undertaking that talking about Bangladesh possibly half-disappearing there will be an early response to the report of your and at the glaciers of the Himalayas possibly melting Lordships’ Select Committee on the Constitution, by 2035, creating refugees. These people are not economic published on 7 July, about fast-tracking legislation? migrants; they are refugees. Will she also give an undertaking regarding the report’s recommendation that, before seeking to suspend Standing The Earl of Listowel: My Lords, what steps are the Order 47 that no two stages of a Bill be taken on one Government taking to raise awareness among the day, Ministers should give this House the reasons why public of the plight of the refugees whom the noble the standing order be dispensed with? Lord was just describing and the issues of, for example, child soldiers and the treatment of women? The Chancellor of the Duchy of Lancaster (Baroness Royall of Blaisdon): My Lords, I think that the noble Lord Brett: My Lords, the Government do seek to Lord is probably referring to the next Motion, but I publicise these issues; they seek to make people aware am happy to respond to the point that he makes. As he and to use the media to do so. I have to say that parts will know, it is up to the usual channels when a debate of our media are fixated on migration but not on the takes place, but I fully recognise the importance of the human tragedy behind it, just on the selfish political report from your Lordships’ Constitution Committee. argument of making a case against all migrants. Migration It is in all our interests that it should be debated at the has been very helpful to this country. In the view of earliest opportunity. the Government and, I am sure, of every Member of I have taken on board the point about a Statement this House, migrants have a right to be treated fairly from Ministers if a Bill is to be fast-tracked. I need to and not to be maligned as they are in some of our consult with others, but I can certainly see the merit in national newspapers, day in and day out. a Minister coming forward to the House with a Statement in some shape or form—it may be a Written Statement; Lord Brooke of Sutton Mandeville: My Lords, as we that is yet to be discussed—explaining why a piece of have time slightly on our side, can the Minister suggest legislation needs to be fast-tracked. any work or works which the silent majority could Motion agreed. consult in order to realise the full scale of the contribution made by refugees to this country? Parliamentary Standards Bill Lord Brett: My Lords, I think your Lordships have Order of Consideration Motion a part to play. Everyone I have met in this House has far more expertise than me in almost every subject, 3.19 pm and they are also people of influence in their communities. If we all did a lot more, whether writing to newspapers Moved By Baroness Royall of Blaisdon or speaking in our local communities, to ensure that there is a more balanced view of the important role of That it be an instruction to the Committee of the migrants, we would be doing a great service. We all Whole House to which the Parliamentary Standards have a part to play when it comes to the silent majority Bill has been committed that it considers the Bill in out there or the not-so-silent majority in here. the following order: Clause 1, Schedules 1 to 3, Clauses 2 to 12. Arrangement of Business Announcement Motion agreed.

3.16 pm Work and Families (Increase of the Lord Bassam of Brighton: My Lords, with the leave Maximum Amount) Order 2009 of the House, my noble friend Lady Royall of Blaisdon will repeat the Statement on the G8 at a convenient point after 3.30 pm. National Minimum Wage Regulations 1999 (Amendment) Regulations 2009 Business of the House Motion on Standing Orders Companies Act 2006 (Consequential 3.17 pm Amendments) (Uncertificated Securities) Moved By Baroness Royall of Blaisdon Order 2009 That Standing Order 47 (No two stages of a Bill to be taken on one day) be dispensed with on Monday 20 July to allow the Consolidated Fund Companies Act 2006 (Consequential (Appropriation) (No. 2) Bill and the Finance Bill to Amendments) (Taxes and National be taken through their remaining stages that day. Insurance) Order 2009 939 Companies Regulations 2009[LORDS] Perpetuities and Accumulations Bill 940

Companies (Share Capital and Acquisition different sets of legislation applying to perpetuities by Company of its Own Shares) and accumulations: the legislation applying pre-1964; the legislation applying between 1964 and 2009, or Regulations 2009 whenever this Act comes into force; and this legislation, applying hereafter. It is a great shame that the Government Companies Act 2006 (Consequential have not taken the chance to consolidate all this legislation into one statute. Amendments, Transitional Provisions and It is inherently unsatisfactory to have legislation on Savings) Order 2009 important issues dotted about all over the place. I hope that the Minister will be able to give the House some reassurance that at least the Law Commission, Community Interest Company whose Bill this very largely is, will be asked to bring (Amendment) Regulations 2009 forward a consolidated measure in the very near future.

ACAS Code of Practice on Time Off for Lord Goodhart: My Lords, I should like to take a slightly different attitude to the Bill from that taken by Trade Union Duties and Activities the noble Lord, Lord Hodgson. I am very pleased that Motions to Approve the Bill is about to go through your Lordships’ House. It is the first Bill that has adopted the new procedure 3.19 pm originated some years ago by the noble Baroness, Moved By Lord Young of Norwood Green Lady Ashton of Upholland, when she was Leader of the House. The procedure will enable more technical That the draft orders, regulations and code of Bills of this kind, which result from work done by the practice laid before the House on 4, 9, 17, and Law Commission, to get through. As I think most of 24 June be approved. 16th, 17th, 18th, and 19th Reports us know, there has been great delay in getting totally from the Joint Committee on Statutory Instruments, uncontroversial Bills through your Lordships’ House considered in Grand Committee on 6 July. because of the time that they take. I hope that this Bill Motions agreed. is the precedent to a number of others where the same process will be adopted.

Companies’ Remuneration Reports Bill Baroness Anelay of St Johns: My Lords, it might be [HL] appropriate if I were to add one or two words about Third Reading the procedure adopted, to echo what the noble Lord, Lord Goodhart, has just said. I know that Lord Kingsland 3.20 pm would have wanted to put on the record the fact that Bill passed and sent to the Commons. he appreciated that this procedure was appropriate in respect of the Bill. It is an innovation; as the noble Lord, Lord Goodhart, said, it was introduced by the Perpetuities and Accumulations Bill [HL] noble Baroness, Lady Ashton. In practice, the procedure Report has only recently been approved by the Procedure Committee of this House, albeit under certain conditions, 3.21 pm one of which is that the whole House should at some stage have the opportunity to participate in debates on Moved By Lord Bach the Bill, as my noble friend Lord Hodgson has just done; the other condition is that, if at any stage a Bill That the Report be now received. proves to be controversial, there should be a way of ensuring that the procedure does not go ahead. It is Lord Hodgson of Astley Abbotts: My Lords, I was a perhaps a mark of the success of all those who took Member of the Committee on the Perpetuities and part in every stage of this Bill that it has generally Accumulations Bill. While I do not wish to oppose the received a warm welcome. Bill, I want to place on record our disappointment that the Government have not taken steps to consolidate The Parliamentary Under-Secretary of State, Ministry the legislation in this important, if technical, area. of Justice (Lord Bach): My Lords, I thank the noble In brief, the perpetuities legislation sets limits on Baroness, Lady Anelay, the opposition Chief Whip, the period during which a person may set conditions for her remarks. She is absolutely right. This Bill has applying to his or her estate. It applies to every will been under the new procedure and has worked extremely made in this country, so it is potentially very wide in well, not least because of the expert chairmanship of its application. This Bill will raise the perpetuity period the noble and learned Lord, Lord Lloyd of Berwick, from 80 to 125 years, so it is long lasting. Indeed, it when witnesses gave evidence at a committee of this was suggested by one of our witnesses that the Bill House over two or three sittings. The committee also committee should be asked to reassemble in 2135 to received written representations from very distinguished see whether the Bill had stood the test of time. lawyers about this subject. Perpetuities and accumulations legislation was last I am grateful to the noble Lord, Lord Hodgson, revised in 1964, a mere 45 years ago—the twinkling who has taken a keen interest in this Bill from Second of an eye in these matters. We will now have three Reading onwards, for not attempting to disrupt the 941 Perpetuities and Accumulations Bill[13 JULY 2009] Coroners and Justice Bill 942 proceedings of the Bill at this stage, if I may put it that number of additional offences, but, for the purposes way. I have heard his point and I take it on board. I of this debate, we propose to add GBH contrary to shall certainly be in touch with the Law Commission Section 18 of the Offences Against the Person Act. as a consequence of what he has said today. Amendment 183ZA is consequential to that. I stress that the amendments are simply probing in order to Report received. promote discussion, so that we can hear what the Government intend to do. In Clause 62(4) it is open to the Secretary of State Coroners and Justice Bill to amend the list of offences. Are we to presume that Committee (7th Day) murder and manslaughter are to be the guinea pigs in the system, to which other offences will later be added 3.25 pm as the system beds in? If that power is intended to be used, we prefer to debate the extension of anonymity Clause 62 : Qualifying offences in investigations in Parliament and not just leave it to the Secretary of State. I stress again that these are probing amendments, but we may need to return to Amendment 183ZA this matter in more detail on Report. I expect the noble Lord, Lord Thomas, will also want to expand Moved by Lord Henley on the whole question of order-making by the Secretary 183ZA: Clause 62, page 37, line 25, at end insert— of State in subsection (4) when he deals with his “( ) grievous bodily harm with intent contrary to section 18 Amendment 183A in the next group, to which we have of the Offences Against the Person Act 1861 (c. 100) added our names. (shooting or attempting to shoot, or wounding, with intent to do grievous bodily harm, or resist apprehension)” 3.30 pm Lord Henley: In moving the amendment, I shall The same comments apply to Amendment 183ZD, also speak to Amendments 183ZB to 183ZD as well as which would extend the very limited range of weapons Amendments 183AB and 183AC. It is with some involved. Subsection (3) deals with a person being trepidation that I rise to speak to these amendments, shot with a firearm and/or being injured with a knife. put down in my name and that of my late noble friend That ignores damage that could be done with, for Lord Kingsland, who was to have spoken to them. He example, a baseball bat, a crowbar or any number of was also, as we have just been reminded, to have other weapons or objects that can be used as weapons. spoken on the Perpetuities and Accumulations Bill Again, one feels that artificial distinctions are being and tomorrow he was going to speak on the Parliamentary drawn, quite possibly because the Government are Standards Bill. Moreover, he was due to speak in a being deliberately cautious. We feel that we should be number of other debates on this Bill. I shall provide a wary of caution in primary legislation that is followed very pale shadow of him in attempting to bring expertise by bold order-making powers as a method of legislating. to the Bill. Nevertheless, I shall try to do so. Amendments 183AB and 183AC would leave out Clause 62 introduces the concept of anonymity in the requirements that the alleged perpetrator is between investigations of criminal offences in which it is thought the age of 11 and 30 and the requirements that the appropriate that those helping with the investigation criminal group, of which he is likely to be a member, is should be provided with some form of anonymity for mostly made up of people within that age range. their own safety. Applications under Clause 62 can be Investigation anonymity orders would therefore apply made to the court to secure an investigation anonymity to qualifying offences committed by members of criminal order. The first four amendments in this group, groups of any age. The Bill as it stands is targeting Amendments 183ZA to 183ZD, probe the limits of groups of children and young people with measures Clause 62, which establishes the qualifying offences that would not be available in relation to criminal that would attract anonymity if needed. groups, including organised criminal networks dominated At the moment, the qualifying offences are limited by older offenders. to murder and manslaughter. If it is right to have From the age-related conditions in Clause 66, it is investigation anonymity orders, it is right to extend obvious that the Government have in mind the problem their ambit beyond offences of murder and manslaughter. of teenage gangs who have been involved in a number Gangs do not just kill people; they can also hurt them of high-profile crimes. It seems to us illogical that an and inflict non-fatal injuries. Indeed, in the qualifying upper age limit should be placed on the conditions for offences, even attempted murder is excluded. Is it right applications for an investigation anonymity order. I that anonymity orders can be granted only in cases choose the most obvious and most absurd hypothetical where the worst possible outcome has been realised—that situation: if two brothers or friends commit similar or is, the death of the victim? What if the intention was identical crimes, but the first is 29 and the other is 31, to kill, but swift medical action or simple good luck Clause 66 would allow an application to be made in saved the victim’s life, despite the evil efforts of the the former case but not in the latter, even though there alleged perpetrator? is no or very little difference in the crimes; there is no It seems clear that the Government are trying to difference in the fear engendered in the witnesses or restrict anonymity orders. In principle, that is the right anyone who might be able to assist in the investigation. approach, but they are restricting them to excessively To create such a distinction, we would argue, is artificial. limited circumstances. We could have suggested any We appreciate the mischief of youth gang crimes that 943 Coroners and Justice Bill[LORDS] Coroners and Justice Bill 944

[LORD HENLEY] climate of secrecy surrounding investigations where these clauses are trying to address, but the age limit witness intimidation may be an issue. It will provide a will not further that effort and may produce unintended persuasive reminder that at no time must information and unnecessary contortions in practice. I beg to that might reveal the witness’s identity be disclosed move. outside the small circle of people who need to know about it. We hope that this prohibition, backed up by Lord Thomas of Gresford: Since we are just entering criminal sanctions, will give witnesses more confidence into this area, perhaps it might be useful to draw from to come forward. the Government some of the principles that they think are involved. It is my experience and certainly that of Amendments 183ZA to 183ZD seek to extend the my noble friend Lord Carlile—and no doubt that of offences in respect of which the new investigation the Minister—that in many cases already witnesses are anonymity order is available to cover grievous bodily referred to by letters A, B, C or D and investigations harm with intent and cases involving death or injury have been carried out where the anonymity of witnesses caused by any kind of weapon. The impact of these is preserved. Indeed, in all the cases that we have dealt changes would be to allow investigation anonymity with where anonymity has been sought and where orders to be used in a much wider range of cases, witnesses have given evidence behind screens—just removing the Bill’s focus on gun and knife homicides. thinking on the spot, I can go back to 1993 for I need hardly remind the Committee of the particular that—the witnesses are not identified for obvious reasons. problems of witness intimidation in gang cases and What is the purpose behind this extension of the especially those involving homicide. People are reluctant witness anonymity legislation to the investigation process? to come forward due to the understandable fear of It may be a good thing that what has happened as a violent retribution when they know they are providing matter of practice in the past is now to be subject to information about people who have shown that they statutory regulation, in the way that these investigation are willing to kill. While gang-related homicides remain orders are to be put forward. However, if that is the relatively rare and confined to particular geographic case, it seems extraordinary that the Government should areas, for those living in these areas, and for the limit it, as though it were dealing specifically with relatives of victims, the effects are devastating. All gangs or only with murder or one other offence, with violent crime is serious, but crimes that cause death the Secretary of State’s ability to extend the boundaries are particularly so. In addition, the use of a lethal of cases in which this type of order can be made, as we weapon like a gun or knife is likely to have a particularly shall see in the next group of amendments. serious impact on any witness. The new order is therefore Are the Government simply seeking to put into a targeted at the area where the need for action is most statutory framework that which has already existed apparent—homicide cases involving guns and knives. for years? If so, why is it restricted to just two offences, We recognise that serious criminal activity by gangs is with the Secretary of State’s power to extend it, and to not restricted to homicide offences or to homicides gangs? It seems that the necessity for this applies to all caused by particular weapons; but these orders are a sorts of people who are not within the age range of new device designed to target a specific problem, and 11 to 30. I should like some explanation from the the provisions of the Bill reflect this. Minister of the thinking behind these provisions as we We believe that we have developed, in close consultation start this part of the Bill. with ACPO, a useful tool to assist the police in their Lord Tunnicliffe: I am happy to give some explanation investigations; but it has yet to be tested in practice. because the shape of the clause is necessary. We are That is why we have included an order-making creating a new crime in Clause 62. The noble Lord, power to enable the scheme to be applied in future, if Lord Henley, characterised us as creating this crime appropriate, to cases involving other types of offence, with caution; that is fair. In the next group, we will committed in other ways. However, it will be prudent seek to persuade the Committee that an order-making to consider this only after we have gained sufficient power for its extension is appropriate. operational experience of the orders as they stand, so Clause 62 creates, with other clauses in this chapter, that we are in the best possible position to judge a new tool in the battle against witness intimidation. whether it is desirable or necessary to extend the list at Collectively, the clause underlines our absolute a later date. determination to get to grips with gang and gun crime. Amendments 183AB and 183AC would remove the The new tool is the investigation anonymity order. Its age-related conditions for making an order. They are, purpose is to encourage witnesses in fear of reprisals broadly, that the suspected perpetrator was aged at to come forward at an early stage of an investigation, least 11 but under 30 years old when the offence was safe in the knowledge that their identity will be kept committed, and that he or she belonged to a group the hidden. Of course, there are already a number of majority of whose members appeared to be aged at constraints on an authority’s ability to disclose sensitive least 11 but under 30. These conditions are specifically information about witnesses, such as data protection included as part of our strategy to target gang-related legislation and common-law confidentiality duties. gun and knife homicides. The gangs that we are targeting However, these are not strong enough to address the have certain known characteristics. They are relatively severe consequences for certain witnesses if their assistance durable, predominantly street-based groups of young to the police is exposed. people who tend to identify themselves as a gang, with What sets the new order apart from these existing crime and violence integral to the group’s identity. arrangements is a new criminal offence of breaching While we do not deny that there are homicide cases the order. The offence is intended to strengthen the where the perpetrator is over 29, our new order focuses 945 Coroners and Justice Bill[13 JULY 2009] G8 946 on the probable age range of our target group. I trust Report. However, at this stage probably the most that in the light of this explanation, the noble Lord convenient thing to do is to beg leave to withdraw the will feel able to withdraw his amendment. amendment.

Lord Thomas of Gresford: I am very grateful for Amendment 183ZA withdrawn. that explanation. The difference from current practice is that to disclose the identity of a witness who has Amendments 183ZB to 183ZD not moved. been granted anonymity will be a criminal offence. That seems very limited. There is nothing particularly House resumed. wrong with adding a criminal sanction where there is a necessity for a person to remain anonymous. However, I can see all sorts of arguments arising about what a G8 gang is and what criminal activities it has to get Statement involved with to be a gang. This does not address a wide spectrum of cases. Certainly, gang violence is a 3.47 pm scourge on society; but much more serious crime goes on that involves guns and knives. One thinks particularly The Chancellor of the Duchy of Lancaster (Baroness of the field of drugs, where criminal gangs—not youth Royall of Blaisdon): My Lords, with the leave of the gangs—are much more organised to intimidate witnesses. House, I will repeat a Statement made in another place by my right honourable friend the Prime Minister. I have expressed a concern—in relation to witness The Statement is as follows: anonymity orders as well as investigation orders—that the police should not go round offering anonymity to “First, Mr Speaker, I am sure the whole House will everybody. That got out of hand with witnesses, and join me in sending our sincere condolences to the there is a danger that it will get out of hand with families and friends of the servicemen killed in investigations, with police going around telling people, Afghanistan in the past few days. They were: Rifleman “Do not worry, everything that you say will be in Daniel Hume, 4th Battalion the Rifles; Private John secret and your name will never be known”. When we Brackpool, Princess of Wales Royal Regiment, attached are talking about murder and manslaughter, perhaps to 1st Battalion Welsh Guards; Riflemen Daniel Simpson, that is all right; but when we come to the next set of Joseph Murphy, James Backhouse and William Aldridge, amendments, giving the Secretary of State the power and Corporal Jonathan Horne, all of 2nd Battalion to extend the system considerably, I will express further the Rifles; and Corporal Lee Scott, 2nd Royal Tank concern. Regiment. Three of them were just 18 years of age. It is at times of loss and sadness like these that we become ever more aware of the service and the sacrifice 3.45 pm our Armed Forces make for our country. We owe Lord Tunnicliffe: The noble Lord well makes the them, and all those who have been killed or wounded case for the narrowness of the order. We see this as in conflict, a huge debt of gratitude. very particular, early activity focused on an area of I want to make a Statement about the conclusions public concern; namely, gang crime. We hope that the of the G8 meeting, the major economies forum on measure will show its value in those circumstances but climate change, and our outreach meetings with African also its limitations. We shall extend it by order only leaders; and I also want to thank Prime Minister when we have experience of how it is working. Berlusconi for his organisation of the summit. But, first, I will focus on one of the most important challenges Lord Henley: If I have understood it correctly, the considered by the G8. This is a time of great challenge difference between what happens at the moment and for our Armed Forces serving in Afghanistan. I have what the Bill will provide for is that a criminal offence written to the chair of the Liaison Committee and will be created under Clause 64(10) where someone placed a copy of the letter in the Libraries of both discloses information in contravention of an anonymity houses. We are also making time available on Thursday order. That will apply to persons aged between 11 and for a debate on Afghanistan. Perhaps I could take this 30 who have killed someone with either a firearm or a opportunity to update the House on our current strategy knife. As far as I can make out, the only argument that and operations in Afghanistan, alongside 40 other the Government are putting forward is that the measure nations, and our work with Pakistan. is targeted on where it is most needed. Again, it seems Eight years ago, after September 11 2001, the case to us a fairly arbitrary list. As regards being shot with for intervention in Afghanistan was clear: to remove a firearm or being injured with a knife, I am sure that the Taliban regime and deprive al-Qaeda of a safe gangs go out with all sorts of other weapons. I mentioned base for terrorist plots that were a threat to countries the proverbial baseball bat or crowbar. There is no across the world. In 2009, the case for our continued reason why they could not be used. Put simply, it involvement is the same—to prevent terrorist attacks seems a very arbitrary distinction. I appreciate that the here in Britain and across the world by dealing with Secretary of State will give himself power to amend the threat at its source: that crucible of terror on the the measure—we shall discuss that when we reach the border and mountain areas of Afghanistan and Pakistan. amendment in the name of the noble Lord, Lord We must not forget that three-quarters of terror plots Thomas—but, for the moment, I find it all rather against the UK have roots in these areas. To succeed, peculiar. As I said, this is a probing amendment. We we must succeed in both Afghanistan and Pakistan. shall certainly want to come back to this matter on Our strategy, which I set out to the House in April, 947 G8[LORDS] G8 948

[BARONESS ROYALL OF BLAISDON] budget—year on year from £700 million, to £1.5 billion, reflects an integrated approach to both countries. If to £2.6 billion, to over £3 billion this year. That is over progress in one is to be sustainable, we must have and above the defence budget of over £30 billion. The progress in both. Progress requires three things: military Chancellor has made clear that all urgent operational action against terrorists and the insurgency; action to requirements will be met. In the last two years, we have build the rule of law; and economic development to increased helicopter numbers by 60 per cent and, give local people a stake in their future. because we have provided more crews and equipment, In the last few months, the Pakistan Government we have increased capability by 84 per cent. Since have taken action, launching successful operations to 2006, we have spent over £1 billion in urgent operational drive out the Pakistani Taliban from the Swat and requirements for vehicles, including 280 Mastiffs, which Buner regions. While the overwhelming majority of offer world-leading protection against mines and roadside the Pakistani people fully support their Government’s bombs. We will go further this year with the deployment action, operational success has come at a heavy of the new Ridgeback vehicles and of Merlin helicopters. humanitarian cost, with about 2 million displaced. We have just agreed a £100 million programme for the Since we must ensure that that does not become a upgrading of Chinook helicopters. pretext for radicalisation, we are helping to lead in As the Chief of the Defence Staff has said: providing humanitarian assistance to Pakistan for those “The British Armed Forces are better equipped today than internally displaced people, combining our support they have been at any time in 40 years”— for Pakistani military action with development assistance but we are ever not complacent. Our troops operate in and help with reconstruction. In Afghanistan, a dynamic, ever changing environment. This Government international forces must take the lead in the front and our military commanders recognise the need to line, because the Afghan army and police are not yet adapt as conditions develop. Despite the tragic losses able to maintain control alone. Again, our strategy is of the last two weeks, our commanders assure me that to combine coalition military action with civilian support we are having a major impact on the Taliban in central for development and training the Afghan forces to Helmand and that morale is high. But our brave take more control. service men and women know that taking the fight to As the House knows, British troops are today involved the enemy as they are now doing, to prevent terrorism in a major military operation, “Panther’s Claw”, fighting on the streets of Britain, will inevitably put them in to bring security to areas in central Helmand until harm’s way. now beyond the reach of the Afghan Government. The majority of recent casualties have been sustained, American forces are engaged in a similar co-ordinated not in direct confrontation with the insurgency, but operation in the south of the province. We are combining from improvised explosive devices—and from April our military advance with civilian action. When we go we have begun to deploy additional units to tackle this to towns, villages and districts in Helmand, our forces growing threat. are supported by Afghan army and police who, with our help, can hold the ground we have cleared and As I made clear in April when I announced for the prevent the Taliban returning. Our civilian and military period of the Afghan elections the temporary uplift to stabilisation experts work with Governor Mangal and around 9,000 through the summer, we will review that his district governors to follow up with plans for new commitment after the Afghan elections, with the advice roads, clean water, other basic services, and, above all, of our commanders and in discussion with our allies. justice—not the medieval brutality of the Taliban but And at the same time we will continue to strengthen the rule of law. our approach in the ways set out in our April strategy: Earlier this year, we announced an increase in our by better campaign continuity, further improvements numbers for the summer campaign and Afghan election in civilian-military integration, the closest possible period to around 9,000. Today, the figure on the co-ordination with American forces, and above all by ground is 9,100, as commanders rotate troops who a gradual shift towards training and mentoring of the have been fighting at peak intensity. It is right that Afghan army and police. those operating in the most arduous conditions are At the G8 meeting, all members agreed on the given respite when they need it. We keep our force importance of the work now being done in Afghanistan, levels under constant review depending on the operational and I talked directly with President Obama about the requirement, and I have been reassured by commanders challenges we face together. on the ground and at the top of the armed services that we have the manpower we need for the current It has been a very difficult summer, and it is not operations. over yet. But if we are to deny Helmand to the Taliban in the long term, and if we are to defeat this vicious I spoke with President Karzai yesterday. He expressed insurgency, and by so doing make Britain and the his condolences at the loss of precious lives in Helmand world a safer place, then we must persist with our and I urged him to make available this summer, in operations in Afghanistan. addition to the 500 already involved in “Panther’s Claw”, more Afghan army personnel for operations in I am confident that we are right to be in Afghanistan, Helmand, so that our hard won gains can be fully that we have the strongest possible plan, and we have consolidated. Our troops will continue to face a tough the resources we need to do the job. and dangerous battle and we will continue to give their Let me turn to other matters raised at the G8 safety the highest priority. Since 2006-07, we have summit. The summit will be remembered as the climate increased funding to the Afghan operation—it is from change summit where we achieved real progress towards the Treasury reserve and in addition to the defence our goal of reaching a global climate change agreement 949 G8[13 JULY 2009] G8 950 at Copenhagen in December. First the G8 and then The G8 agreed a global consensus on maternal and the Major Economies Forum concluded that average child health “to accelerate progress”on those millennium global temperatures must rise by no more than two development goals where historically we have made degrees Celsius. This is an unprecedented and universal the least progress to date. agreement, taking in developed and developing countries And, in meeting with leading African nations, President alike. It reflects a worldwide consensus unthinkable Obama, I and other leaders agreed decisive action on only a few years ago: that the scientific evidence for food security to avert a hunger emergency, with a climate change is irrefutable and all of us now have a $20 billion package of assistance over three years to duty to act. support the agricultural sector in poorer countries. The summit also agreed, And I am pleased to say that the United Kingdom will contribute $1.8 billion to this initiative. “that developing countries will contribute to a global agreement by promptly undertaking actions whose projected effects on The G8 leaders issued a strong statement on non- emissions represent a meaningful deviation from business as proliferation. We welcomed President Obama’s proposal usual in the mid-term”; to hold a conference in America next March, before that, negotiations on the review of the non-proliferation treaty begin, and the UK Government will be setting “financial resources for mitigation and adaptation will need to be scaled up urgently and substantially and should involve mobilising out their proposals to prepare for this summit in 2010. resources to support developing countries”; We said that if Iran does not respond to the international community’s offer of a supervised civil nuclear programme, and that, in order to take this forward, G20 Finance we will put together a tougher package of sanctions in Ministers should work on this further—considering the autumn. I welcome the solidarity shown by our the proposals the British Government have set out, G8 partners, who agreed that, including the Mexican green fund, and reporting back “embassies in Iran must be permitted to exercise their functions at the Pittsburgh summit in September. effectively … without arbitrary restrictions on, or intimidation of, For the first time, the G8 countries agreed the goal their staff”, of reducing their emissions by 80 per cent or more by and that, 2050, as part of a global goal of at least a 50 per cent “unjustified detentions of journalists and recent arrests of foreign reduction; and that, nationals are unacceptable”. “consistent with this ambitious long term objective, we will On Burma, we reiterated our support to do all we undertake robust aggregate and individual mid-term reductions”. can to secure the release of Aung San Suu Kyi. These are the most ambitious targets ever agreed by The G8 also discussed the measures we must take the G8. together to address swine flu. In the coming months there will be crucial summits: This summit also sent out a second wake-up call on on the global economy in Pittsburgh; on climate change the world economy: strongly reaffirming the commitments at Copenhagen; and on non-proliferation in New York. made at the G20 in London to take, If these meetings are to secure lasting change, now is “all necessary steps to support demand, restore growth and the time for global leadership—to build a new strategy maintain financial stability”; to deliver global growth; to face up to our obligations pledging “to implement swiftly” these measures, and on climate change and poverty; and to face down calling on, those who would threaten our global security. “all countries to act decisively to reinforce the international This G8 has laid the foundations for such progress, economic and financial system”. and once again—within the G8—Britain has played a pivotal leadership role. In advance of the next G20 meeting in Pittsburgh in September, the summit laid the foundations for a new I commend this Statement to the House”. “strategy” to, My Lords, that concludes the Statement. “lead the global economy to stable, balanced and sustainable 4.01 pm growth”, Lord Strathclyde: My Lords, I join the noble Baroness by acting both “individually and collectively”. and indeed the Prime Minister in paying tribute to the We agreed to, servicemen killed last week in Afghanistan. I also “vigorously pursue the work necessary to ensure global financial welcome the progress made at the G8 summit in stability”, several important areas. The key now is to turn these with more bank lending, reform and funding of the G8 statements into practice. Agreement and talk are international financial institutions, and fast progress all very well but action is now needed. on regulation of financial services; and we agreed to The events last week in Afghanistan must be at the do what it takes to make progress on growth, on forefront of our minds. All those who serve in that commodity prices and on trade. And we reaffirmed country should know that they have the support and our commitment to a green recovery by, admiration of all sides of the House. Is it not time, therefore, to be absolutely clear about what our mission “investing in measures encouraging the creation of green jobs”. should be? It must be tightly defined, it must be On development, we agreed that the global recession realistic, and the Government must never lose the is no excuse for abandoning our commitments to the opportunity of explaining why they think we are there poorest. So we reaffirmed our ambitious pledges to and what our objectives really are. When does the increase aid to Africa by $25 billion, and by $50 billion noble Baroness expect this House to be able to have a globally by 2010. further debate on the military consequences of British 951 G8[LORDS] G8 952

[LORD STRATHCLYDE] On the domestic front, the G8 discussed financial troops in Afghanistan? We must learn the lessons of regulation, support for business from banks, and the Iraq and focus predominantly on security and safety, need to get the deficit under control. What can Britain and we must ensure that our troops have the equipment be proud of out of these three things? I sincerely hope that they vitally need and deserve. that the Prime Minister was not offering advice to On Iran, we strongly support the Prime Minister’s others. I do not think that any of us is blind to the line on non-proliferation. We know of the threat. The failure of banks to lend money to those who need it Iranians should disarm. We know all too well of the most, but a long-term recovery also means lowering deplorable post-election violence and the unacceptable the deficit. Can the noble Baroness confirm the IMF’s treatment of our embassy staff in Tehran. Does the finding that this country is heading for the largest noble Baroness agree that we should take a lead in budget deficit not only in the G8 but in the entire G20? pushing for new EU sanctions that should be adopted Is it not the case that we are heading for a deficit of if Iran does not enter into meaningful talks? 14 per cent, which is by far the largest figure since the war? The summit focused on the fundamental quartet of trade, the economy, climate change and development. The foundation of a lasting recovery from this On international development, we on these Benches vicious recession must be sound banking and sound welcome agreement on the food security plan. This public finance. Can the noble Baroness assure the morning, my right honourable friend House that the Government will acknowledge their reaffirmed our own commitment to provide 0.7 per mistakes, will finally stop blaming others and take cent of gross income to be spent on aid by 2013. It is away from the G8 summit the lesson that it is action important to have cross-party and cross-border agreement that this country needs, and not more words? on an issue that deals with people’s lives and welfare. Will the noble Baroness encourage other countries to 4.07 pm do more? Lord McNally: My Lords, until the last few moments Let us also consider the G8 Gleneagles commitments. when we had the party-political broadcast, I was By 2010, development aid was meant to increase by thinking, “What a measured statement from the noble $50 billion, with $25 billion of that going to Africa. Lord, Lord Strathclyde”. The campaign organisation ONE estimated in May I have been involved in these gatherings since the that by the end of this year countries will be on track 1970s, so I have never been overenthusiastic that any to meet only around half of their commitments and one of them would be the decisive major breakthrough. that there will be an $11 billion shortfall in aid to On the other hand, I have not been as cynical as many Africa. What hope is there for the latest G8 summit if about them. I think that it is good that our leaders get there can be no assurance that the Gleneagles together and that there is peer pressure and general commitments are going to be put into effect? Can the encouragement to keep moving forward. From what I noble Baroness tell us what they are doing to honour can see, despite our media’s ever-willingness to make this country’s commitments, always bearing in mind snide comments about Italy—often actively encouraged that aid must be effective and promote real wealth by the Prime Minister of Italy—it seems to have been creation rather than stifle it? a well organised and effective conference. However, On climate change, we welcome the fact that all the the noble Lord, Lord Strathclyde, is right that in terms countries signed up to a 2 degrees target for the first of tying in what is said at international conferences to time, along with the G8’s 80 per cent goal for industrialised what is done domestically, we are looking for action countries. Can the noble Baroness confirm reports not words. that the major economies forum—crucially emerging The House earlier associated itself movingly with economies such as China and India—could not agree the losses in Afghanistan and I have no doubt that on the target and that it had to be removed from the Ministers responsible feel as strongly as anyone in the final communiqué? If that is the case, what prospect is House. However, there must be doubts and real concern there of an agreement with these countries before the about whether there is a tie-up between the strategy vital Copenhagen conference in December? Are there being expounded and the supply of men and equipment not now too many sticking points for us to anticipate a to carry through that strategy. I echo the call from the successful solution to that conference? noble Lord, Lord Strathclyde, that it is time that we Perhaps most important was the discussion on the had a full debate again in this House on Afghanistan, economy. On trade the communiqué says that there as I understand that they will in the Commons—not needs to be agreement in Doha by the end of 2010. to score party points, but to talk through the issues The 2007 G8 spoke of an agreement by the end of and to look at whether the kind of commitment that 2007, and last year we were told that it would be by the this country is making can be justified and that we can end of 2008. The noble Lord, Lord Mandelson, assured carry the British people with us in it. I worry that if it this House last week that, continues to look like an effort purely by the United “the Prime Minister most certainly will be pressing very hard for States and the United Kingdom, we will lose British good, strong, positive conclusions at the G8 in favour of progress public opinion. in the Doha round”.—[Official Report, 8/7/09; col. 670.] I know that there is the emphasis in the Statement Is this the positive conclusion that he envisaged? Is it on 40 countries being committed to Afghanistan, but I still the case that the only stumbling blocks are now wonder whether, as well as the talks with President America and India, and if so, can the noble Baroness Obama, the Prime Minister had talks with any other say what discussions are taking place? leaders, European leaders, to see whether we could get 953 G8[13 JULY 2009] G8 954 some more sharp-end commitment from our allies in Our mission in Afghanistan is absolutely clear. My what is a battle for the security of us all. On the matter noble friend Lady Taylor of Bolton explicitly said at of Pakistan, it is important that we understand that Question Time today: defeat in Afghanistan and further disintegration of “Our aim is to stop Afghanistan becoming a safe haven for order in Pakistan would have massive implications for those who plan terrorism that can threaten security in the United security here in the United Kingdom. Again, that Kingdom. We are there to help Afghanistan become an effective emphasises the seriousness of the issues at hand. state, with a view to transferring responsibility to the Afghan security forces over time, with international forces moving to a On non-proliferation, I take a slightly different training and supporting role”. emphasis from the noble Lord, Lord Strathclyde, although I think that is clear. The noble Lord is right that the his words on Iran were valid. We now have in the Government have to explain their role, but it is in the White House a president who really does seem to be interests of all of us in this House to explain better giving a high priority to nuclear disarmament. We what we are doing in Afghanistan. I hear what noble have the Prime Minister’s own group, on which my Lords have said about the need for a debate. That will noble friend Lady Williams has been serving, looking be taken up by the usual channels. at the British contribution to the review in 2010. This may be one of those opportunities to make progress in I welcome the support from Members on both that area. Benches for what we are doing in relation to Iran. The current situation may well involve the need for future On the climate change summit, as the Prime Minister sanctions, but it is slightly too early to discuss that described it, it is again a question of whether the high need at the moment. The E3+3 has made a clear offer, words of summitry tie in with what is actually happening and we await the response to it. However, I hear what in domestic policy. There is still a worry that that is out the noble Lord says. If sanctions are needed, we will of kilter. It is important that we get Brazil, China and argue for them, but for the moment we wait for the India signed up on issues concerning the world economy. diplomatic way to take its course. I welcome what was just reiterated by the noble Lord, Lord Strathclyde. I refer to the commitment of the The noble Lord, Lord Strathclyde, asked about the Conservatives to development aid. Their commitment prospect of an agreement on climate change because to the ring-fencing of development aid is a major step of the attitude of the MFA. I do not know what the forward in our domestic politics. We now have an discussions were in the MFA, but the agreement at the opportunity to play a really positive role in Africa and G8 was that there is an awfully long way to go before other parts of the world in development with a broad we hit 2050, and who knows what will happen at cross-party consensus. Copenhagen? The fact is that it was agreed that temperatures should not exceed an increase of 2 degrees I have to say that, like most other Prime Ministers I Celsius, that developed nations should cut emissions have come across, the Prime Minister now always by 80 per cent before 2050 and that the whole world looks more at ease, more comfortable, at international should cut emissions by 50 per cent. That is the first conferences than he does back home, but within the time there has been any agreement on that, so we context of these conferences, it seems to have been a should celebrate that. However, I recognise that there worthwhile weekend. is a long way to go before Copenhagen, which is where the agreements must be made. I do not know whether 4.14 pm agreements will be made before that date. Baroness Royall of Blaisdon: My Lords, I am very The Doha round is extremely important. Indeed, it grateful to both noble Lords for their positive comments is the linchpin for ensuring the economic recovery of about the Statement and, most importantly, about the the world. There is the political will to conclude the conclusions of the G8 summit. As the noble Lord, Doha round in 2010. I know that we have heard that Lord Strathclyde, said, it is action and not words that before, but with President Obama in the White House— we want, so we will have to wait to see what the even though the Americans have some difficulties—the summit delivers. Those at the summit pushed for an opportunity must be grasped, and we look forward to accountability report on overseas development further progress on this at Pittsburgh. assistance—there was one report before them, and The noble Lord asked about financial regulations. I they are expecting another in the autumn. There is am very proud of what the Prime Minister has done to much more focus these days on results and outcomes get this country and the world out of the economic and not just on warm words. crisis. I recognise that we are heading for a large I will deal with overseas development aid up front, deficit, as are many countries, but we have a clear because I am very proud of what we in the United strategy for getting out of it. We believe that we must Kingdom are doing to ensure that we meet the 0.7 per invest and continue to invest to ensure that we get out cent target. As both noble Lords have said, it is very of the economic crisis in the best way possible. good that all parties at the moment are committed to I hear the doubts expressed by the noble Lord, it. However, just last week, canvassed the Lord McNally, about Afghanistan and our strategy parliamentary candidates for the Conservative Party there. I am glad he believes that it can be justified. for the next election, and while I entirely recognise However, I shall take this opportunity to say that we that Mr Cameron, his colleagues on the Front Bench should all take more pride in what our troops are and all colleagues in this House are very much in doing in Afghanistan and to express our sadness at the favour of ring-fencing development aid, I do not think death of our troops. I have read the statements made that quite the same is true for the Conservative Party by the families of the 18 year-olds who were killed candidates. over the weekend. Their families are very proud of 955 G8[LORDS] G8 956

[BARONESS ROYALL OF BLAISDON] A couple of other things were said on which I think these troops and we should keep reiterating our pride some clarity would help. It is widely said among in them. This is not something just from the government various agencies that when the western countries give Benches, I recognise that all Members of this House aid to the third world, quite a lot of it is earmarked for share that pride, but it is very important to restate it the purchase of goods from our own countries. If that from time to time. is not so—I see the noble Baroness indicating that With President Obama giving nuclear disarmament perhaps it is not—it might be helpful if we could know a high priority, I agree that this is an opportunity for what proportion is so earmarked. In the past it has the world to grasp and I am glad that the noble sometimes been the case that aid has been earmarked Baroness, Lady Williams, is on the Prime Minister’s not least for the purchase of arms, about which many group. people feel a very bad conscience. It would help if that As for the number of troops that we have in could be clarified. Afghanistan and the need for more, I am confident Finally, I was expecting to hear something—I may that my right honourable friend the Prime Minister have missed it because the Statement ran by us rather had discussions with other EU leaders in and around fast—about international debt relief, on which I know the G8 summit to try to ensure that more troops come the Prime Minister has been very keen in time past. He from other member states of the and has spoken movingly and effectively about it at previous other countries. He continually discusses the issue summits but I do not think that I heard anything about with his counterparts because Afghanistan is not a it today. However, as I and others have said before in matter just for the United Kingdom and the United your Lordships’ House, when the banks and some States. It is a global problem and we need a global other large corporations were in difficulty last year we solution, and we need as many troops from as many remitted debts on an enormous scale so that people countries there as possible. I am very grateful for the could regroup and get back on track. Many of us have support of both noble Lords. urged for many years that that should be done for third world countries. It has been done with very good effect for some, such as Tanzania, but there are many others, 4.21 pm such as the Philippines, where it remains to be done. It seems to me that it is time to do for the very poor what The Lord Bishop of Durham: My Lords, from these we already, at the drop of a hat, do for the very rich. Benches we would like to express the same pride in the Perhaps the noble Baroness will enlighten us on what, troops who are fighting in Afghanistan and the same if anything, the Government propose to do in that regard. sorrow at the deeply regrettable loss of life. My colleagues and I have been pushed by several of those who talk to us to ask why we are in Afghanistan. If the answer is Baroness Royall of Blaisdon: My Lords, I am grateful as was given during Question Time—that we are there to the right reverend Prelate for enabling me again to because we are part of something mandated by the say that we are in Afghanistan because there is a UN—it would be very helpful if that was said more mandate from the United Nations. I accept that we clearly and more regularly. There is a widespread should be much more up front in saying, “We are there assumption that we are there simply because certain as a part of a coherent global force”. politicians thought that it was a good idea at one stage. The Pope and the new encyclical were absolutely Noble Lords may have had their attention drawn to right to talk about the urgent need for the UN to be the new encyclical from Pope Benedict which has more effective. The Government, with the support of come out in just the past week; there was an articles by the Benches opposite, have been doing all that we can the noble Lord, Lord Griffiths, about it in the Times over the past 12 years to ensure that the UN is made this morning. In it the Pope draws attention to the more effective. Trying to get so many nations to agree urgent need globally for the UN to be more effective in to changes is rather like trying to turn round a tanker; what it was set up to do, which it has been prevented however, slowly but surely, some are being made. But from doing by certain countries that are rather anxious there is a need for further reform and we shall continue about what might happen if it really did it properly. to press for it. From these Benches—I speak for myself and, I suspect, On behalf of the Government, I am grateful for for many of my colleagues as well—we would be everything that the churches are doing to ensure that delighted if the Government could say a bit more, a bit we are properly prepared to deal with swine flu. more frequently, about the way in which what we are I can confidently say that these days the vast majority doing coheres with a global international strategy, and of, if not all, aid is not linked to trade. That strong link that is not just something that we, with one or two was broken some years ago and I can categorically say friends, happen to have dreamt up. that there is no link between aid and arms sales. We are grateful also for what we have heard about I do not think that the summit dealt with debt climate change. As noble Lords will know, several of relief. I recall the big three-pronged agreement on debt my noble friends—the right reverend Prelates the Bishop relief, aid and trade at Gleneagles. As a global force, of Liverpool, the Bishop of London and others—have the world did a great deal about debt relief at Gleneagles spoken on that in recent days. On swine flu, the but we have now moved on to other things. That is not churches have done a lot of preparation, hoping neither to say that to some countries, such as the Philippines, to be alarmist nor retrograde in doing what we are it is not still important, but at the moment our focus is doing but nevertheless making appropriate preparations on aid and trade. However, we must not forget debt should there be the kind of national crisis which some relief and I can assure the right reverend Prelate that I have suggested might come. shall take that issue back to the department. 957 G8[13 JULY 2009] G8 958

Lord Mayhew of Twysden: My Lords, I wish to ask Viscount Slim: My Lords, it is certainly a question a question deriving from what the Statement says of money but it is not just money—it is men and about the funding of the Afghan operation. It states: women on the ground. If I heard the Statement by the “The Chancellor has made clear that all urgent operational Prime Minister correctly, he said that he felt that there requirements will be met”. was sufficient in Afghanistan at the moment. We can Who will determine whether a requirement is urgent say that there are 5,000 troops or forces out in Afghanistan, or insufficiently urgent? Will it be the commanders or but that is a paper figure. When you take away those the Chancellor? killed, wounded, injured and sick, and those moving to and fro, the number comes down. Also, when a unit or a platoon has been slightly decimated, with five or Baroness Royall of Blaisdon: My Lords, I shall read 10 people killed, we do not have an immediate what my right honourable friend the Chancellor said. reinforcement programme that I can see. In most past He stated: wars, we have always been able to reinforce a unit “You can’t send troops into the front line and not be, not be quickly, within 24 to 48 hours, and not doing so has a prepared to see it through in terms of the equipment, the resources very detrimental effect on the unit. What is the immediate that they need … these are things … discussions that we have continually with the chiefs of staff, with the commanding officers, reinforcement programme or system for bolstering a to make sure that these troops are properly supported … we owe unit that has lost quite heavily? it to them to do it”. Baroness Royall of Blaisdon: My Lords, it is important So there is a process. The Chancellor or the Treasury to say that morale on the ground is high, but I understand are in discussion with the commanders on the ground. the points made by the noble Viscount. Our response There is a process and I am sure that the Chancellor to needs on the ground are swift, and that is demonstrated will adhere to that process to ensure that the troops by the way in which we have just provided 700 extra have the equipment as and when they need it. troops to go to Afghanistan to cover the period of the elections. That is a temporary increase in our number Lord Hamilton of Epsom: My Lords, following on of troops and it is not yet clear what will happen after from the question of my noble and learned friend the elections. That demonstrates that we are able to Lord Mayhew, the Prime Minister’s Statement made provide extra troops as and when necessary. I remind clear that the cost of the Afghan operation is £3 billion your Lordships that we always talk in terms of numbers a year, which is funded from the contingency fund. Is of troops, but there are many other personnel in it not the plan that this should be phased out over two Afghanistan, working in development and governance. years? Basically, that means that for all other defence expenditure we are facing a cut of £1.5 billion next Lord Vinson: My Lords, the Minister has been kind year and £3 billion the year after. enough to repeat a Statement that the Prime Minister made that one cannot send troops, by inference, into war underresourced. Does she not mean, in view of Baroness Royall of Blaisdon: My Lords, this is a what has happened, that one should not send troops very complex subject and I am not entirely sighted on into war underresourced? it. I shall come back to the noble Lord, but it is not as simple as he would perhaps say. I do not mean to be Baroness Royall of Blaisdon: No, my Lords, I absolutely rude to the noble Lord but these are very complex mean that we must not and do not send our troops issues. I do not think that we will change the way in into war underresourced. Our troops, as the commanders which the Afghan war is funded in the way he suggests. on the ground will tell us, are very well resourced, However, I shall come back to him in writing. better resourced now than they have been for many years. Lord Forsyth of Drumlean: My Lords, further to what the noble Baroness says, it is not at all complicated. The Earl of Selborne: My Lords, the Statement The issue is whether or not the funds that are needed refers to the $1.6 billion which will be contributed to fight the Afghan campaign are to be provided out towards the food security plan, a figure much to be of the contingency reserve and are additional to the welcomed. However, does the noble Baroness agree defence budget. Can she confirm that that will still be that in the long run, if these intractable issues of food the case? security, particularly in sub-Saharan Africa, are to be addressed, it cannot be done just by aid, however generous? Ultimately, it will have to be done by the Baroness Royall of Blaisdon: Yes, my Lords, as I transfer of suitable technology, particularly in agricultural understand it, that will be the case. The Afghan war is sciences. This country has a proud record of increased still funded out of the contingency reserve. I again production and still has a reasonably successful science quote the Chancellor when he said that we owe it to base. The problem is that the priorities are not determined them. He said: according to the needs of those who need food security. “You can’t send troops in to the front line and not be prepared Do we not need to reorganise the determination of to see it through in terms of the equipment, the resources that how we set our priorities for agricultural research so they need”. that we make a lasting contribution to food security? I realise that there is a distinction with regard to the contingency reserve. Everyone is shaking their head, Baroness Royall of Blaisdon: My Lords, the noble but this is what I am assured by my noble friend Earl makes an extremely important point which I shall behind me, and I will come back to noble Lords in take back to DfID. In terms of food security, the writing. additional money that is being allocated is, I believe, 959 G8[LORDS] Coroners and Justice Bill 960

[BARONESS ROYALL OF BLAISDON] Evidence Act 1999 and contains a list of offences with not just for food aid; it is to assist farmers in the a power for the Secretary of State to amend that countries where aid is needed to produce their own schedule so as to add whatever he thinks fit. I am crops. That is precisely where the noble Lord’s point anxious to hear from the Minister how he justifies so about science comes in. I will take the point back to wide a power being granted in that way.If the Government the department. think that these orders should be limited, they should say in the Bill how they are to be limited. To say, “Well, Lord Hylton: My Lords, is it intended to hold we shall just see how they go and then extend them as further G8 meetings, given that the subject matter we think fit”, is not a proper way in which to deal with involved is probably better discussed in a slightly a serious matter such as this. I beg to move. larger gathering, such as the G20? Lord Henley: I added my name to the first of the Baroness Royall of Blaisdon: My Lords, I think it is noble Lord’s amendments, to leave out subsection (4), the intention of the Canadians to hold a G8 meeting giving power to the Secretary of State to add or omit next year when they hold the presidency but, as I an offence. As the noble Lord implied, we suspect that understand it, President Sarkozy has suggested that Secretary of State will not be omitting any offences—he perhaps under his chairmanship the G8 should be in will merely be adding, and simply adding, omitting or the expanded form of the G14 or the G20. modifying one of the other conditions. That presumably means bringing in baseball bats, or whatever, should that be seen as necessary, or extending the age limit Coroners and Justice Bill from 30. Committee (7th Day) (Continued) I agree entirely with the noble Lord, Lord Thomas, that this seems a peculiar way in which to deal with 4.36 pm criminal law, in that we are giving a power to the Secretary of State to amend it as he thinks appropriate Amendment 183A by, I imagine, merely the negative resolution procedure. We suspect that the Government themselves feel that Moved by Lord Thomas of Gresford they may have gone a step too far in that, before any 183A: Clause 62, page 37, line 30, leave out subsection (4) amendment was tabled by opposition parties suggesting that if there were to be such an order it might be more appropriate to have an affirmative resolution Lord Thomas of Gresford: I shall speak also to procedure, they came forward with that amendment, Amendment 185ZG, which relates to the removal of in Amendment 185A. That seems the absolute bare Clause 86(7). When he was responding to the previous minimum, if we are to change criminal law; Parliament amendment, the Minister told us that the provision for should have a good opportunity to discuss it, under anonymity in investigations is narrowly drawn. The the affirmative resolution. We all know that it is so provision set out in the Bill may be narrowly drawn, easy under the negative resolution procedure for things but under subsection (4), it can be widened to any to slip through without us noticing, try as we do to extent, merely by an order passing through this House keep an eye on them. and the other place to add or omit an offence in the list in subsection (2) or to add, omit or modify a condition I have one other question to put to the Minister. to be satisfied in relation to an offence. Under Will the Minister tell us, with regard to the new paragraph (a) of subsection (4), it is possible, for offences created in these clauses, when the offence for example, to omit paragraph (b) of subsection (2), someone to disclose information in contravention of manslaughter, but I do not think that that is the an investigation anonymity order in Clause 64(10) will purpose. I think it is to add whatever offence occurs to come into effect? If it is not going to come into effect the Secretary of State at the time. It could be driving when the Bill gets , what are the without due care or something of that sort. Government’s plans for bringing it into effect? As the Minister knows, I have a sneaking suspicion that quite So far as the conditions are concerned, although a large amount of government legislation, particularly we are told that this clause is specifically directed legislation that has come in the past from the Home at gangs of young men between the ages of 11 and Office and now comes from the Ministry of Justice, 30 using specific weapons—firearms or a knife—under goes through both Houses of Parliament and is enacted paragraph (a) of subsection (4), all those conditions and then takes some considerable time to come into could be modified as the Secretary of State thinks fit. effect. Sometimes it is repealed before it even comes It can be anything. Getting in through a crack—that is into effect. I would be grateful if the Minister could to say, by using the most serious offences of murder deal with that point as well as the basic point about and manslaughter and limiting it to a particular group— whether it is appropriate that the Secretary of State and then expanding it wholesale without anything should make amendments in this way. other than an order being passed through the House is a bad way to legislate. We have often commented on how ineffective orders are as a method of scrutiny Baroness Butler-Sloss: The proposal concerns me. and change. The Minister was speaking against Amendment 183ZA, Clause 86(7) is concerned with special measures in which would have extended the use of this clause offences involving weapons. Schedule 12 to the Bill beyond murder and manslaughter. However, under adds a schedule to the Youth Justice and Criminal subsection (4), the Secretary of State could enlarge it 961 Coroners and Justice Bill[13 JULY 2009] Coroners and Justice Bill 962 to anything at all, although the Government seem at methods by which the qualifying offence for an the moment opposed to enlarging it in any way. I find investigation anonymity order must be committed. We this sort of clause worrying and very unsatisfactory. I envisage that there may be scope for widening the use am not content by the idea of it being an affirmative of this new investigation anonymity order in the future. . As a member of the Merits The purpose of the order is to encourage people to Committee, I have noticed that quite a few affirmative come forward to help the police who otherwise would statutory instruments slip quietly through the Moses not do so due to fear, which does not in principle Room in Grand Committee without anybody really preclude any offence from possible inclusion. However, looking at them. I do not believe that I have ever seen a let us first tackle the pressing problem of witnesses subsection quite like this, and it seems to me to be very failing to come forward in cases of gang homicide and unsatisfactory. let us see how well the orders work in practice within their current scope. 4.45 pm Any future extension of the scope of the scheme would be considered on a case-by-case basis and any Lord Henley: The only reason I mentioned statutory instrument made under this power would be Amendment 185A is that I thought it was a bare subject to affirmative resolution procedure, therefore minimum to at least make it affirmative. I agree with permitting detailed parliamentary scrutiny. We do not the noble and learned Baroness that both affirmative consider it necessary or desirable for such changes to and negative instruments can slip through. I just be made by primary legislation, especially if we wish mentioned it as I thought it was some indication that to retain the flexibility to add new offences or conditions the Government possibly had felt a smidgen of guilt; at short notice. that they had been caught out; and that is why they brought the amendment forward to try to make it look I remind the Committee that this order-making marginally more respectable. power was considered by the Delegated Powers and Regulatory Reform Committee. In its report on the Bill, the committee did not object to this delegated Baroness Butler-Sloss: The noble Lord has given his power. While it commented that the power was view that clearly the idea of affirmative statutory “significant”, it concluded that, instrument means that the Government are having “this seems sufficiently recognised by the affirmative procedure”. some sort of second thoughts. I suggest that they I spent a year or two on the Merits of Statutory might have third thoughts and wonder whether this is Instruments Committee and have since taken some an appropriate subsection. affirmative orders through in the Moses Room with some of the noble Lords here present. The process Lord Tunnicliffe: All through my life, I have found does not allow things to slip through. Indeed, we will that when I think that something is straightforward see tonight in the Dinner Break business a number of and reasonable, the rest of the world does not. The controversial affirmative orders which will be debated essence of these clauses is taken up in many ways by at some length. I have no doubt that the Government the noble and learned Baroness, Lady Butler-Sloss. We will come under appropriate scrutiny and pressure. It were not against an extension of this provision, but we is worth reminding— think that we should do that after we have seen how it works in a very narrow way to address a problem that Lord Henley: I remind the Minister that it is a we have now. We believe that, if it proves successful question not just of whether things slip through unnoticed. and we understand the right caveats and protections When primary legislation such as this comes before to put around it by order or particularly through the House we have the power to amend it, whereas guidance, it may be appropriate to extend it through when a mere order goes through we do not. Although an affirmative order. the order gets some scrutiny and debate, both by the We are creating a new offence. It will come into Merits Committee and by your Lordships, there is no action—this covers the point brought up by the noble power to make amendments to it. Lord, Lord Henley—by means of a commencement order. We aim to bring it in next spring after development Lord Tunnicliffe: I will comment on the process of of guidance for the police and the CPS. It is not our making an order. While the noble Lord is quite right intention to use this provision, as the noble Lord, that there is no opportunity to amend an order within Lord Thomas, suggested, on every crime. To some the House of Lords, the process of consultation that extent, we have not got across—because in some ways leads to an order is one in which the Government take legislation does not help us—what this new crime is account of inputs to alter and amend. Any future about. For that reason, I should like to write to noble extension of the scope of the scheme would be considered Lords setting out in a little more detail how it would on a case-by-case basis. Any statutory instrument work in effect and what the processes are. I hope that made under this power would be subject to the affirmative from that we will be able to illustrate that we will need resolution procedure, thereby permitting detailed not only a proper set of processes to create one of parliamentary scrutiny. We do not consider it necessary these orders but also some development. It is right to or desirable for such changes to be made by primary keep it narrow and it is right then to consider it for legislation, especially if we wish to retain the flexibility greater expansion. to add new offences or conditions at short notice. I Amendment 183A would remove the order-making remind the Committee that this order-making power power from Clause 62, preventing its amendment in was considered by the Delegated Powers and Regulatory the future so as to include further offences or other Reform Committee, which approved it. 963 Coroners and Justice Bill[LORDS] Coroners and Justice Bill 964

[LORD TUNNICLIFFE] know that others see things differently but, from the The last time the House voted against a Motion Government’s point of view, getting affirmative orders approving an affirmative instrument was 28 March through that are controversial is tough, and there are 2007, on the Gambling (Geographical Distribution of opportunities for the House— Casino Premises Licences) Order 2007, when the Government were defeated by 123 votes to 120. As a Lord Henley: The noble Lord cannot get away with result, noble Lords will recall, that provision—the that. He knows that it is more or less a nuclear option super-casinos provision—was withdrawn by the to vote down an order in this House. The convention is Government. That saw the end of that idea. Before that we very rarely do. As the noble and learned that, records indicate that Governments have been Baroness said, the casinos order was exceptional. It is defeated on three occasions on statutory instruments, exceedingly rare for us to vote down an order. I can one negative and two affirmative. remember scarcely more than two or three occasions Government Amendment 185A relates to Clause 86, in the 30 years that I have been in the House. which extends automatic eligibility for special measures to witnesses to certain gun and knife offences listed Lord Tunnicliffe: The noble Lord is quite right—I in Schedule 12. The amendment responds to a was able to illustrate only one case from the recent recommendation by the Delegated Powers and Regulatory past, and three from the records. However, that is in Reform Committee. Eligibility for special measures is the minds of the Government when they create affirmative determined by reference to a list of relevant offences, orders, especially controversial ones. That is why we which may be amended by order subject to the negative go through a process of considerable consultation resolution procedure. The committee recommended before they are pressed. However, I recognise that that this power should be subject to the affirmative noble Lords may well come back to this on Report. I procedure. We are happy to accept the committee’s hope that, for the moment, the amendments will not recommendation and seek to amend Clause 86 be pressed and that, in the light of the further information accordingly. that I intend to send, the concept of a narrow provision that will be extended very carefully by order will I hope that this also answers the concerns of the eventually appeal to the House. noble Lord, Lord Thomas, whose Amendment 185ZG would remove the power of the Secretary of State to Lord Thomas of Gresford: We will come back to add to or otherwise amend the offences in Schedule 12. this on Report. The Minister should appreciate that This power is included as a sensible precaution to the identity of an informer has been kept secret for provide flexibility for the future. It will enable us, for centuries, and still is. This provision has been introduced example, to add, where appropriate, any new offences to deal with a very narrow area: murder or manslaughter involving the use of knives and guns that may be caused with a firearm or knife by someone between created in the future. It also follows the form established the ages of 11 and 30 who appears to be a member of in the parent legislation, the YouthJustice and Criminal a gang. As I said, I do not know why that should be Evidence Act 1999, where, under Section 18(5), the singled out, but that is what the Government want to Secretary of State has the power to add to or amend do. In so doing, they have simply put a foot in the the special measures provisions by affirmative order. door. Throwing the door wide open is exactly what In the light of this explanation and the conclusions of Clause 62(4) is about. I am very grateful to the noble the Delegated Powers and Regulatory Reform Committee, and learned Baroness, Lady Butler-Sloss, for her support I hope that the noble Lord will feel able not to press on that. I think that both subsections (4)(a) and (4)(b) his amendment. are offensive. The Government should consider how Baroness Butler-Sloss: I will make two points. First, they might properly narrow the discretion of the Secretary I vividly recall the super-casino debate on the affirmative of State if he wishes to extend beyond the particular resolution. It was a quite exceptional situation. My terms and conditions set out in the Bill. I look forward recollection is that the House did not like super-casinos to receiving the letter to which the noble Lord referred, and voted, quite unusually, against the resolution. to see what further thinking the Government can give Secondly, on the subject of Clause 62(4), I am not along those lines. For the moment, I beg leave to opposed to having the opportunity to reconsider, although withdraw the amendment. perhaps it would be preferable to reconsider limiting Amendment 183A withdrawn. the provision to murder and manslaughter and add to it now, as has been suggested in other amendments. Clause 62 agreed. What concerns me is subsection (4)(a). Subsection (4)(b) is perfectly sensible, but subsection (4)(a) could add Clauses 63 and 64 agreed. any offence at all—although I appreciate that, with an affirmative resolution, it may well be that one would 5pm not. However, to move in a Bill from murder and manslaughter to any offence is a considerable leap. Amendment 183AA Moved by Lord Henley Lord Tunnicliffe: I thank the noble Baroness for 183AA: After Clause 64, insert the following new Clause— those reflections. When we write to noble Lords and “Review of investigation anonymity orders set out how the new, relatively narrow law will apply, The Secretary of State must, no later than two years after the and the procedures, conditions and guidance, it will be commencement of this Part, review the operation of investigation clear that we will look to this capability only for anonymity orders made under section 64, and lay a report of that serious offences and will extend it only very carefully. I review before Parliament.” 965 Coroners and Justice Bill[13 JULY 2009] Coroners and Justice Bill 966

Lord Henley: In moving this amendment, I wish to to leave open the opportunity that a person may be speak also to Amendments 183B and 183C in the arrested and held and be subjected to all the problems name of the noble Lord, Lord Thomas of Gresford, of a criminal investigation as a result of a malign and Amendment 184 in the name of the noble Lord, person inventing things against him. It is important Lord Dubs. that giving anonymity to witnesses should be not a The new clause that I propose should be inserted regular thing but only used in exceptional circumstances. after Clause 64 is a simple review clause. The reasoning My suggestion in Amendment 183C—that it should for it is simple and follows on from the debates that we be given only if the court or the justices of the peace have had on the previous two groups of amendments. are satisfied that the witness would be unwilling or The Government are introducing an innovation in the unable to provide such information if the order was form of investigation anonymity orders. As we discussed not made—is essential. If not, you open the door to on the previous amendment, the Secretary of State is the neighbour or tittle-tattler who wishes to do down a giving himself various powers to amend those, as he so particular person. wishes, after their introduction next spring, as I think the noble Lord put it. Much will need to be tried out Lord Dubs: Amendment 184 stands in my name. It and no doubt mistakes will be made and lessons will stems from a recent report of the Joint Committee on be learnt. Therefore, we propose a review so that after Human Rights, of which I am a member. I am concerned two years Parliament will be guaranteed the chance to again with investigation anonymity orders. The Bill look at the scheme again and assess whether it is a provides that investigation anonymity orders should success and is helping to protect those involved in be available in cases of murder or manslaughter where potentially dangerous investigations. I beg to move. death was caused by a gun or a knife. The argument for making such an extension of the provision is to encourage Lord Thomas of Gresford: I wish to speak to witnesses to come forward in the most serious gang-related Amendments 183B and 183C. I do not pursue crimes, where witnesses might otherwise be reluctant Amendment 183B but Amendment 183C would add to do so because they fear reprisals. That is understandable. something to the Bill. In order that the Committee can However, there is a difficulty. understand what it is about, let me explain that the Witness anonymity orders can be applied for by application for an investigation anonymity order will the police or other investigative body as well as by the be made to a justice of the peace by a chief police DPP. However, there is a practical problem about the officer or a director of one of the prosecuting services. effectiveness of such orders. Unless the witness is also The justice of the peace may make an order if he is confident that his or her anonymity will be protected satisfied that there are reasonable grounds for believing at the trial, they are unlikely to come forward at the that the conditions set out in subsections (3) to (8) of investigation stage. Yet the investigating authorities Clause 66 are satisfied. Subsection (8) sets out the are not in a position to know at that point whether condition, such a trial anonymity order is likely to be applied for “that the person who would be specified in the order— by the DPP,let alone given by the court. The requirement (a) is able to provide information that would assist the criminal that an application for such an investigation anonymity investigation … and order should first obtain the consent of the DPP (b) is more likely than not … to provide such information”. would address that practical problem. It would give But that is not enough. These orders should be exceptional the witness confidence that their anonymity would be and should not be applied for or made unless, in protected right through all the stages, not just at the addition to those two conditions set out in subsection (8), investigation stage. a further condition is met, which is that the person When the Joint Committee on Human Rights wrote concerned, to the Minister pointing that out and asking whether there was any reason why the consent of the DPP “would be unwilling or unable to provide such information if the order were not made”. should not be required before an application for an investigation anonymity order was made, the That indicates that it is an exceptional circumstance. Government’s answer was that an investigation anonymity Clause 75(5) sets out as a condition for making a order is essentially an investigative tool to assist the witness anonymity order that, police in their investigations of a particular kind of “the witness would not testify if the proposed order were not crime. They were talking about an early stage of the made”. investigation before the CPS is involved. According to That condition is applied when it comes to giving their response to us, the Government do not consider evidence in court—that the witness anonymity order it appropriate to require the DPP to consent before the can be made if it is the only way of getting the person police apply for these orders. into the box. To emphasise that the investigation orders I have already explained the difficulty. Surely, in the should be exceptional, a similar condition should be interests of witnesses coming forward, it makes sense imposed on the making of those orders. to do this in the way that the amendment suggests I understand where the Government are coming rather than simply saying, “Okay, during an investigation from in seeking to give anonymity to witnesses, but a witness will have anonymity, but we cannot guarantee they should always remember that people may come anything beyond that”. It will make them shut up and forward to the police with malign intent and with the not want to come forward. intention of making false accusations against people. There is a further point which is close to that made To grant wholesale anonymity in those circumstances, by the noble Lord, Lord Thomas of Gresford. The unless the conditions are pretty clearly established, is Joint Committee is also concerned that evidence suggests 967 Coroners and Justice Bill[LORDS] Coroners and Justice Bill 968

[LORD DUBS] Clause 65 makes it clear who can apply for an that the police have in practice not regarded applications investigation anonymity order. It would not be appropriate for witness anonymity orders as exceptional. Without for the DPP to have to consent to every investigation requiring the CPS’s involvement in such orders, there anonymity order application. As was said in another must be a risk that the number of such applications by place, these new orders are an investigative tool which the police would be disproportionately large. should be available to the police during the early stages of an investigation—perhaps on an urgent basis. Lord Thomas of Gresford: My name is attached to Furthermore, any specified prosecuting authority should the amendment of the noble Lord, Lord Dubs, and he be capable of deciding whether or not to exercise the has set out the reasons for it. I add only this. Of course powers without reference to the DPP. These orders are the Director of Public Prosecutions is able to delegate not linked to witness anonymity orders; they are an his responsibility, and in each large police station these independent tool. days a CPS representative is customarily stationed to With regard to the suggestion in the Joint Committee’s advise the police on their investigation and how it report that there is a risk of a disproportionately large should be carried out, and to advise on the charge. number of applications if the director does not have to Therefore, it is not as though an application has to be give consent, perhaps I may answer by saying that approved by the Director of Public Prosecutions in these orders are available only in relation to a narrow person. It would be perfectly possible for the representative class of gang-related homicides. It is difficult to imagine of the CPS who is assigned to a particular police applications being made in disproportionately large station to give the consent that the noble Lord, Lord numbers. More significantly, the Joint Committee’s Dubs, is seeking. That would be an appropriate safeguard, observation overlooks a fundamental aspect of these bearing in mind the narrow scope of the application, orders; namely, that they are intended to protect witnesses as outlined by the Government so far, without the in criminal investigations. Unlike at the trial stage, no criticisms that I have made on its potential expansion. one’s liberty is at issue. There is no practical difficulty in doing precisely what the noble Lord, Lord Dubs, says. It would be The Joint Committee also seems to be saying that, satisfactory that, before going before a justice of the if the DPP gives his consent to the application for an peace, the chief officer should take the advice of the investigation order, he will have then made a decision CPS representative who is advising. on, or will be likelier to know, whether he will apply also for a trial order later on. The implication seems to be that this will address the practical problem raised The Parliamentary Under-Secretary of State, Ministry by the Joint Committee, and in Committee this afternoon, of Justice (Lord Bach): I turn first to Amendment of informants being reluctant to come forward unless 183AA in the name of the noble Lord, Lord Henley, they know that they will get a trial anonymity order. and say in passing how much we appreciate the suddenness However, I have to be frank with the Committee: the with which he has had to take on this major responsibility. police, the CPS and the DPP can give absolutely no I thank him very much for doing so straight away. All guarantee that a court will grant a trial anonymity of us around the House are extremely sad about the order at any stage of a case; nor will the DPP be able circumstances which led the noble Lord to have to to say with any certainty that the informant will take command, as it were, at this stage. indeed be required to provide evidence at trial at these We have some sympathy with the thinking underlying very early stages of an investigation. I repeat that in the amendment. Investigation and anonymity orders our view investigation anonymity orders and trial are a novel measure designed to address the serious anonymity orders are quite separate tools and they problem of gang-related gun and knife crime. As with serve different purposes. There may well be examples everything new, it is uncertain exactly how the orders of where it is impracticable for the CPS to provide will operate in practice. Of course it is right that their cover for urgent police applications, and that is why we operation is closely monitored and we made it clear in ask noble Lords not to press Amendment 184. another place that we intend to keep their working under close review. The noble Lord, Lord Thomas, spoke to his Whether a formal report to Parliament, as envisaged Amendments 183B and 183C. The first proposes the by the amendment, is required is for us another matter. deletion of subsection (8) but Amendment 183C suggests We do not think it is necessary because, as I have said, the insertion of additional paragraph (c) to supplement we intend to review the provisions anyway and keep a existing paragraphs (a) and (b). One of the preconditions close watch on how they are working. So it is not for the grant of an order is that the witness has useful necessary for such an amendment to be in the Bill. information to give, but the deletion of subsection (8) would remove that requirement. There is no point in Amendment 184 would require the Director of making orders in respect of people who have no Public Prosecutions to consent to all applications for information or who would be willing to provide an investigation anonymity order. It would therefore information without anonymity, and that is why, if the prevent police officers and other prosecuting authorities noble Lord had argued for Amendment 183B, we applying for such an order without his or her consent. would have rejected it. The amendment would restrict the power to give consent to the DPP, but we take the point that under Section 1(7) New paragraph (c) proposed in Amendment 183C of the Prosecution of Offences Act 1985 the DPP would require the police to prove that the witness automatically delegates his or her consent functions to would be unwilling or unable to provide information Crown prosecutors who would presumably also be without an order. We think that that is too closely able to give consent. related to our existing paragraph (b), which, with the 969 Coroners and Justice Bill[13 JULY 2009] Coroners and Justice Bill 970 amendment, would remain. It would call into question Lord Dubs: Amendment 185 also stems from a the effect of existing paragraph (b), which, in our report by the Joint Committee on Human Rights. The minds, already sets out a similar condition and would Joint Committee recommended in the report that the probably make it more difficult for the police to obtain Bill should be amended to give the trial judge a an order. We do not want to make the requirements discretion to appoint special counsel to represent the for obtaining an investigation anonymity order unduly interests of the defendant in his or her absence if it onerous. I repeat that we need to bear in mind that we appears to the court to be appropriate to do so in the may be dealing here with the very early stages of an circumstances of the case. In the Government’s view, investigation where the police need to obtain an order there are rarely cases where special counsel might be but have only very limited information at their fingertips. required, and they believe that the present arrangements We think that subsection (8) is appropriate for what permitting judges to invite the Attorney-General to we are trying to do in this field. For those reasons, I request the appointment of special counsel are adequate. ask the noble Lord to withdraw his amendment and The Attorney-General’s guidelines state that such an for the other amendments in the group not to be invitation by a court should be regarded as exceptional. pressed in due course. I wonder whether it ought to be that exceptional. It should not be commonplace, but to date there appears to have been only two applications to the Attorney- Lord Henley: I thank the Minister for his very kind General for special counsel to assist the court with a opening remarks in his response to the amendments. I witness anonymity application, both of which have also thank him for the assurance that the department been granted. will keep these matters under review. I expected him to make that clear and, for that reason, I shall in due Of course, fairness does not require special counsel course withdraw my amendment. to be appointed in every case where an application for Perhaps if I had been more on the ball this morning an anonymity order is made; it will depend on the when I first started looking at these amendments, I circumstances. As I said, however, only two have been would have suggested that they were not very appropriately granted so far, out of a total of 136 applications. It is grouped, in that I think that those in the names of the quite possible that the defence has requested the noble Lords, Lord Dubs and Lord Thomas of Gresford, appointment of special counsel many more times than deal with slightly different matters from the ones that I the two occasions on which they have been requested was getting at. We all know that in an ideal world the by the court. Government Whips Office would like to group all amendments into one supergroup, thereby facilitating There is a certain uncertainty about whether debate and getting through matters somewhat more magistrates’ courts have the power to invite the quickly. We all know that we spend our time undoing appointment of special counsel, because they are creatures the Government’s attempts to put things together. On of statute and therefore do not possess inherent this occasion, I think that they got it wrong, so I jurisdiction. We on the Joint Committee noted that suggest to noble Lords that, when in due course they although the vast majority of applications for witness come to their amendments, they consider doing with anonymity orders have been made in the Crown Court, them as they think fit. However, as I said I would, I three orders have been made in the magistrates’ court. beg leave to withdraw my amendment. As long as there is the possibility of applications for anonymity being made in the magistrates’ court, it is undesirable that uncertainty should remain about whether Amendment 183AA withdrawn. there is power to appoint special counsel in such cases. Clause 65 agreed. Finally I note that at the time of the passage of the 2008 Act, the Government told Parliament that courts had powers under their inherent jurisdiction to appoint Clause 66 : Conditions for making order special counsel as and when the court considered it appropriate. Since that date, however, the Attorney- Amendments 183AB to 184 not moved. General seems to have adopted a different position about the power of the courts to appoint special advocates, arguing that it is the Attorney-General and Clause 66 agreed. not the court that has the power to appoint. There is some doubt here—the situation is uncertain—and some Clauses 67 to 73 agreed. clarity from the Minister would be helpful. Courts can request the Attorney-General to appoint Clause 74 : Applications special advocates, but whether or not to do so is a matter for the Attorney-General. In our view, that Amendment 185 further strengthens the case for putting the power of the court to appoint special counsel on to an express Moved by Lord Dubs statutory footing. We on the Joint Committee remain 185: Clause 74, page 45, line 23, at end insert— of the view that the legislation should be amended to place on an express statutory footing the trial judge’s “(7A) The court has the power to appoint special counsel to represent the interests of the defendant in his or her absence, if it discretion to appoint special counsel, and the right of appears to the court to be appropriate to do so in the circumstances the defence to request the appointment of such special of the case.” counsel. I beg to move. 971 Coroners and Justice Bill[LORDS] Coroners and Justice Bill 972

Lord Henley: We have tabled Amendment 185ZZA, “The court may make such an order only if it is satisfied that which would do something similar to the amendment Conditions A to C below are met”. in the name of the noble Lord, Lord Dubs. We will In coming to its conclusion, the court must, under also hear later from the noble Lord, Lord Thomas, Clause 76(1), have regard to the considerations set out about his Amendment 185ZE, which pursues the in subsection (2)—six of them. As drafted, all that the same track. judge can do is look at the person in front of him and We all remember the witness anonymity orders that think, “Do I like this chap? Am I told by the policeman were pushed through Parliament last year in response who is making this application something that makes to a court ruling that made an expedited legislative me satisfied as to conditions A, B and C? Have I taken procedure necessary. As a responsible Opposition, we into account all those considerations?”. That is a very agreed to truncated intervals between stages of the difficult task for a judge to undertake. Criminal Evidence (Witness Anonymity) Bill, something The wording in the clause is now almost the same that is only rarely considered, as the noble Lord will be as it was in the witness anonymity Act of last year, aware as a result of tomorrow’s business. We resisted which came under the close scrutiny of the Court of the temptation to amend it at the time. The Government, Appeal in the case of Mayers, Glasgow and others in to their credit, worked closely with us to draft a new the judgment delivered on 12 December 2008 by the law. With the inclusion of a sunset provision, we were, Lord Chief Justice. The Lord Chief Justice made if not wholly content, at least persuaded by the some interesting comments in his judgment about the circumstances to allow the Bill to pass. drafting of the Act and the need for special counsel. Now that we have had the opportunity to give the He said: powers proper scrutiny, we have been able to dust off “Notwithstanding the abolition of the common law rules, it is some of our old arguments. One issue on which there abundantly clear from the provisions of the Act as a whole that, was widespread feeling around the House was the save in the exceptional circumstances permitted by the act, the need for an independent figure who would assess the ancient principle that the defendant is entitled to know the information provided to the court to determine whether identity of witnesses who incriminate him is maintained”. anonymity was granted. In order to assess the need for He went on: an order to be granted, a great deal of information “It is … clear that an anonymity order should be regarded as may be laid at the feet of the court. A judge will, most the special measure of last practicable resort”. likely, not have the resources at his disposal to establish the background matters in respect of a proposal that a 5.30 pm witness be given anonymity. However, through the In paragraph 10 of the judgment, the Lord Chief appointment of an independent counsel, the court Justice set out principles to enable the judge to come could properly analyse the necessary information, and to the conclusion to which he must come. He said: that person would be able to make inquiries to establish “The principles which govern the use of special counsel to if the conditions in Clause 75 and the considerations protect the overall fairness of the trial when the question whether in Clause 76 had been fully satisfied. information should be withheld from the defence is being addressed It seemed to us a year ago, and it still seems to us should be adapted when its possible use arises in the context of now, that the best way to support the conflicting witness anonymity. Nothing in the legislation suggests, and we can see no justification for any blanket rules, one way or the other. interests of defence and prosecution is to appoint an Sometimes special counsel may contribute significantly to counsel, who will have at his disposal fairness of the process, sometimes not. There is however one certain inquisitorial powers to determine the claims of significant difference between the use of special counsel for public the witness who seeks protection. The principle that interest immunity purposes, and such use for the purposes of anonymity in criminal trials should be so exceptional witness anonymity. The former is concerned with the circumstances from the norm demands that exceptional steps are in which non-disclosure to the defence may be appropriate, the latter with whether sufficient and complete investigation and taken to safeguard the rigour and the fairness of the consequent disclosure have taken place”. process. It is clear that he had been reading what I said about We have before us three different ways of achieving this amendment earlier. that. I suppose that we could invite the Government, like Paris, to decide which is the fairest of them all. The Lord Chief Justice continued: “If the judge entertains reservations about the good faith of the efforts made by the prosecution investigation into any relevant Lord Thomas of Gresford: The amendment to which consideration bearing on the question of witness anonymity, an the noble Lord, Lord Henley, spoke, is really a rehash application for witness anonymity will be met with a point blank of what I proposed last year in relation to the witness refusal. The services of special counsel may however enable the anonymity Bill—the Committee will see mine repeated judge to ensure that any investigative steps specific to the case, as Amendment 185ZE. Somehow they managed to get and not perhaps otherwise apparent, have been taken. Our approach theirs first on to the Marshalled List today. I said then to this issue enables us to highlight that the obligations of the prosecution in the context of a witness anonymity application go that the role of independent counsel would be to much further in the ordinary duties of disclosure. As we shall see examine or cross-examine a witness who claims that when we examine the statutory considerations a detailed investigation he is in fear, if there is any doubt about that, or to test into the background of each potential anonymous witness will the circumstances he refers to or his honesty or dishonesty almost inevitably be required”. generally, for the purposes of assisting the court in What detailed investigation into the background of coming to its conclusions. each potential anonymous witness did he have in I remind your Lordships about the scheme for an mind—that the judge should get off the bench and application for a witness anonymity order. Under carry out an investigation himself, or that there should Clause 75(2), as now drafted: be a mechanism, such as the one in my amendment, 973 Coroners and Justice Bill[13 JULY 2009] Coroners and Justice Bill 974 which would enable the judge to be properly informed face a most damning accusation without knowing to ensure that any investigative steps specific to the who his accuser is? With great respect to the Minister, case have been taken? if he concludes that any conscientious judge would The Lord Chief Justice came back to the issue of have applied his or her mind to each and every the special counsel at a number of points in his judgment. consideration in Clause 76(2)(a) to (f) preRvDavis In paragraph 21, for example, he said: last year, how is the situation improved? In other “The defence statement provides the benchmark against which words, all Parliament will have done is convert a rule the disclosure process must be examined. So, for example, a of practice on anonymity that turned out to be illegitimate defendant who believes that he may be the victim of a malevolent into a statutory checklist, but it will not have advanced plot to incriminate him when he is innocent should normally be the situation at all. I hope that I make myself clear. I able to give some indication of his concerns in his defence should be grateful if the Minister will say whether statement, and to indicate the identity of anyone who he believes may have a malign motive to incriminate him. It can then, if there has been close consultation with judges on this raised by him, be the subject of further inquiries, perhaps indeed matter and whether they were of the view that there with the use of special counsel”. was any difference between the statutory check list in Again, he referred in paragraph 35 to considering the Clause 76 and what was done from day to day and considerations, and said: from year to year previous toRvDavislast year. “The difficulties are well within the knowledge and experience One further consideration is that this matter has of trial judges. Sometimes, of course, specific evidence may be not been finally adjudicated on in Strasbourg, which required by the judge so that he can probe it, and indeed if necessary, he can seek the assistance of special counsel”. was mentioned at Second Reading. If the Strasbourg The Lord Chief Justice finally concluded: court was of the view that these conditions, which “The use of the word ‘necessary’ requires that the court must were the very minimum necessary to bring about a just be satisfied to the highest standard that”, conclusion for the defendant, have not been satisfied, conditions A, B and C have been satisfied. He said all that we are doing is rendered utterly nugatory. that it was not enough to satisfy two of the three I do not for a moment argue that there is anything conditions; all must be satisfied. He continued: sacrosanct in the issue of a special counsel. If there are “’Probably’ necessary will not do. Even if the ‘necessity’ other ways of doing it, so be it. It is not the special foundations for conditions A and C are established, the order counsel that is important, but the principle that a cannot be made unless the court is also satisfied that the forthcoming person should not face grave accusations without knowing trial, or the current trial, would be, or continues to be fair”. who his or her accuser might be. But is there any other A five-judge court of the Court of Appeal, with way? That is the experience of other countries which highly experienced judges who are versed in the criminal have gone down this path. I understand that it is the law, came to that analysis of the previous Act. As I experience of New Zealand and . I think I say, the provisions are in the Bill. If the Lord Chief am right in saying that nearly the whole structure of Justice points out the utility of special counsel and the 2008 Act was culled from the New Zealand Evidence seeks to underline my argument, which I advanced on Act 2006. Under that Act, a specific section, which I a previous occasion, how much more must the seem to remember was Section 115, deals with special Government be satisfied before they make a provision, counsel. Is there any other way that the result for whether it is expressed in the terms of the noble Lords, which I have argued can be achieved; that is, that a Lord Dubs or Lord Henley, or my amendment, and judge should have a factual matrix on which to determine how much more important is it that the Government Conditions A, B and C in Clause 75, and paragraphs (a) take this on board and table a proper amendment on to (f) in Clause 76(2)? Report? As regards the Court of Appeal decision of December Lord Elystan-Morgan: I support the spirit of the 2008, to which the noble Lord, Lord Thomas of amendments and in so doing remind myself of the Gresford, referred, the judge would have to be satisfied issue that led to the 2008 Act, which was passed not only as to Conditions A, B and C, but to each of almost exactly 12 months ago. The case of Davis had the six considerations under Clause 76. It must follow been decided, if I remember rightly, on 18 June last because Clause 76 proves or disproves Conditions A, year, and spelt out that the practice that had developed B and C in Clause 75. In other words, is there any way very gradually over the years of allowing anonymity of dealing with this situation, which could be one of was wholly illegal. Parliament had to intervene to grave injustice, without a special counsel? I appreciate legitimate something that was illegal under common that it would be churlish of me to pretend that there is law. The mechanics of that were not difficult because not a problem. Of course there is a problem. There has of the sovereignty of Parliament, but there was a been a problem with regard to witnesses since the second question: how does one remove the injustice dawn of time. which this legitimatisation could bring about? That is At Second Reading, I quoted an article written very much more complicated. some years ago by my noble friend Lord Pannick on The provisions of Clauses 75 and 76 are very similar, this matter. In 70 BC, when Cicero was about to as has already been pointed out, to the wording of prosecute the consul general of Sicily, it was maintained the 2008 Act. If the six matters, which are set out in that it was impossible to proceed with the trial because Clause 76(2) and establish whether conditions A, B it was feared that all the witnesses had been bribed. and C under Clause 75 have been satisfied, are no There is nothing new in this situation. As the House more than what a conscientious careful judge would will remember, there were reports on this by Lord have been doing over the past 15 years or so, how do Diplock and Lord Gardiner. Indeed, this problem they protect the position of a person who may have to cropped up at the time of the trials of the Kray 975 Coroners and Justice Bill[LORDS] Coroners and Justice Bill 976

[LORD ELYSTAN-MORGAN] General to appoint special counsel and both were brothers and the Richardson gang. This is nothing granted. One of our fears is that the proposed changes new at all. But is there any way in which to deal with could have a significant knock-on effect for special the situation to avoid a grave injustice? Therefore, on counsel in other kinds of criminal proceedings. In that basis, I am glad to support the principle underlying principle, the use of special counsel is available in a these amendments. much wider range of cases than anonymity applications. We do not think that this Bill is the place to place Lord Bach: I thank everyone who has spoken in this special counsel in criminal proceedings on a statutory debate. Perhaps I may start by giving a few statistics, footing. which may be of use to the Committee. From July 2008 The Committee will be very grateful to the noble to the end of May 2009, the CPS made 232 anonymity Lord, Lord Thomas, for having analysed the leading applications to the courts. Of those, 206 were granted case of Mayers, which of course discussed the law and 26 were refused. Of the 206 granted, 79 were for relating to special counsel as well as to features of the undercover officers, 63 for test purchase officers and new statutory anonymity regime enacted last summer. 57 were for civilians. The final seven were other In our view, two things stand out from that case. First, investigators or interpreters. Of the 26 applications that the Court of Appeal did not call for special counsel to were refused, 21 were for civilian witnesses and five be placed on a statutory basis. Secondly, it gave no were for undercover police officers. Of the 232 applications, indication that it considered the present arrangements—or 222 were made to the Crown Court, one to the youth as they had worked until that case—unsatisfactory. court and nine to the magistrates’ court. Of the nine As regards the figures, that quoted by the noble applications made to the magistrates’ court, five were Lord, Lord Thomas, is for applications for witness granted and four were refused. I hope that that is anonymity orders and not for applications for the helpful. In that period, two special counsel requests appointment of special counsel. If there is some were made to the Attorney-General, both of which confusion between us about the figures, I will write to she granted. the noble Lord. 5.45 pm Lord Thomas of Gresford: I am concerned. The These three amendments would make statutory noble Lord, Lord Dubs, has the documentation and I provision for special counsel or, as described in two of imagine that he will be able to help us. I understood the amendments, independent counsel. We consider that applications were made to the court but that the the amendments to be unnecessary. The Bill makes no court simply did not pass them on. provision for special counsel because courts may already ask the Attorney-General to appoint special counsel to assist with applications for witness anonymity orders Lord Dubs: My information is that the concern of and can be expected to do so where they consider it the Joint Committee was the very small number of necessary. This option is set out in a practice direction cases in which special counsels have been appointed; issued on 28 August 2008 by the then president of the that is, two out of a total of 136 applications. There Queen’s Bench Division following the implementation may be other figures. I have not checked all the details of the emergency legislation. If any party to the of the report, but that is a fairly small number. proceedings raises the question of special counsel, the court is already in practice bound to consider it. Lord Bach: I suspect that that refers to the number The tradition is that under current arrangements of applications for anonymity witness orders, not for the court asks the Attorney-General, and it is the special counsel. I shall have that checked and write to Attorney-General who appoints the special counsel. noble Lords confirming whether or not I am right. The Attorney-General exercises a general discretion in There is a certain ambiguity in what my noble friend this area and it would be inappropriate to suggest that, has just read out. for example, she will normally comply with the court’s In Mayers, the Court of Appeal focused on the request, although she has done so on the two occasions duties of the prosecution. The role of special counsel where the request has been made so far. in a particular case may be one where special counsel helps the court probe the evidence. It did not suggest Lord Thomas of Gresford: Would I be right in that special counsel carry out a police investigatory thinking that the JCHR report said that something role. The noble Lord, Lord Thomas of Gresford, cited like 120 applications were made to the court and that the court when he said that there was no justification the court should request the Attorney-General, but for any blanket rules, one way or another. The court that the court made only two requests, both of which already has sufficient flexibility to ask the Attorney to were granted? I believe that those were the statistics appoint special counsel when it considers it necessary. before the JCHR. Our approach today is wholly consistent with the Court of Appeal judgment in Mayers. Lord Bach: I am having that checked, but my I do not need to point out that there are significant understanding is that that is not right. I will come differences between the three amendments and I hope back to the noble Lord a little later. We have seen no that none of them will be pressed today. There are evidence that the current arrangements are not working obviously differences between special counsel and satisfactorily. Thus, we are not persuaded that there is independent counsel but I do not need to go into any need to put them on a statutory footing. As I have detail. I was asked by the noble Lord, Lord Henley, said, in two cases, the court has asked the Attorney- to play the role of Paris in choosing between these 977 Coroners and Justice Bill[13 JULY 2009] Coroners and Justice Bill 978 three sirens, if siren is the right expression from all Clause 75 : Conditions for making order that time ago. However, if he will forgive me, I will not choose a Helen today; I take the same attitude to the Amendment 185ZA three temptations on offer and reject them all. I ask Moved by Lord Thomas of Gresford my noble friend to withdraw his amendment. 185ZA: Clause 75, page 45, line 34, leave out paragraph (b) and insert— Lord Dubs: If I have misled the Committee on the “(b) in order to avoid compromising the practice of figures, I apologise, but I do not think I have. I am undercover policing or undercover operations by police relying on the report of the Joint Committee on Human (or both), law enforcement agencies or the security Rights. In its 8th report, House of Lords Paper 57, services, whether in relation to specific operations or page 43, paragraph 1.134, dealing with special counsel, generally” it states: “We are concerned, however, by the very small number of Lord Thomas of Gresford: I want first to address cases in which special counsel has so far been appointed: two out Amendment 185ZE, in the previous group, for the of a total of 136 applications. This suggests that the appointment of special counsel may be being treated as a wholly exceptional purposes of replying to the Minister—as I am entitled course rather than one which fairness may sometimes require on to do. I am rather heartened by the few applications the facts of a particular case. We note that there is no record of that have been granted. As the noble Lord, Lord the number of times special counsel were requested or applied for Elystan-Morgan, said, these witness anonymity orders by the defence but that request or application was not acceded to were being handed out wholesale. I came to the witness by the court”. anonymity Bill last year straight from a case in the Old So there is quite a lot of information. My noble friend Bailey where no fewer than five witnesses in a murder the Minister may have more up-to-date information, case had given evidence with their voices changed. which he could let us have. Acting on behalf of the defendant, I had no idea who they were and it was impossible to cross-examine Lord Bach: I shall write with the latest statistics to them. They were the only witnesses; there was no make the position clear to all noble Lords. I am forensic evidence in support of the prosecution’s case. conscious that I have not really answered the noble Apart from one young lady, the girlfriend of the Lord, Lord Elystan-Morgan, on the points he makes. deceased, who said, “I am not going to give my I do not think he expects me today to go into the evidence anonymously”—even though an order had details of the problems that he has always considered been made in her favour she refused to give evidence in arise in cases of this kind. I hope that in the letter that that way and therefore gave evidence in open court—there I write to noble Lords I will be able to say something was no other evidence against the defendant. It was a about what he asked me today. wholly unfortunate thing to happen and these must be regarded as exceptional orders. Lord Elystan-Morgan: Could the noble Lord also The framework that was put in place last year apply his mind to the question he has already raised: seems to be working and the guidance in Mayers—that that there is no blanket policy one way or the other? these are measures of last resort—will be very influential. I believe I am right in saying that the learned editor The practice of the police offering to witnesses that of Archbold, in the current edition, says of special they would all be treated anonymously seems to have counsel that such an appointment should be very ceased and I am pleased about that. sparingly used. Therefore it does not matter whether However, it is not satisfactory that special counsel the figures given by the noble Lords, Lord Dubs and should be appointed by the Attorney-General. The Lord Thomas of Gresford, are correct; there seems purpose of the amendments was that special counsel already to be a mentality that accepts that there is a should be appointed by the court where the court blanket policy. thinks it is necessary and that the court should not regard it as an exceptional matter when it is required to come to a conclusion on the highest degree of Lord Dubs: I also understand that the Attorney- proof—beyond reasonable doubt—and has to take General’s guidelines state that such an invitation to account of all the considerations and conditions that appoint a special counsel by a court to the Attorney- have to be fulfilled. It is a matter for the court to General should be regarded as exceptional. Whatever consider whether it has enough information. We will the figures, my noble friend may also care to comment have to return to this on Report and see whether we on whether the guidelines say what I believe they say: can have a joint amendment which will perhaps meet that is, that they should be regarded as exceptional. It with the Government’s favour. does not happen often. I now turn to Amendment 185ZA and a series of I am not totally convinced by my noble friend’s amendments that are grouped together that cover reply. I shall ponder what he said when I read Hansard quite disparate matters. I apologise to the Committee in detail. For the moment, I beg leave to withdraw the that they are not being deal with separately. However, amendment. I shall endeavour to cover them all. Amendment 185ZA relates to subsection (3)(b). Amendment 185 withdrawn. The first condition to be met for the granting of a witness anonymity order is Condition A; that is, Amendment 185ZZA not moved. “in order to protect the safety of the witness or another person or to prevent any serious damage to property, or (b) in order to Clause 74 agreed. prevent real harm to the public interest”. 979 Coroners and Justice Bill[LORDS] Coroners and Justice Bill 980

[LORD THOMAS OF GRESFORD] in trivial offences, there should be taken away from the That is an extraordinarily wide concept. The purpose defendant his right of common law and fair trial of the amendment is to confine that possibility in under Article 6 and his right to know the identity of paragraph (b): his accuser. It may be necessary in serious offences, “in order to avoid compromising the practice of undercover but when it comes to the magistrates’ court, it is our policing or undercover operations by police (or both), law enforcement contention that witness anonymity orders should not agencies or the security services, whether in relation to specific be used. Perhaps if a case is triable both ways and the operations or generally”. question of anonymity arises, it should be sent to the The statistics that were given by the noble Lord in Crown Court. answer to the previous question make the point. By far These orders should not be made by justices. If the bulk of the orders that have been granted have only nine such orders were applied for last year, they been to undercover policemen or to those who are will have had very little or no experience of making engaged in investigating food and matters of that sort. the determination and considering those conditions That is what we are seeking to confine the public and the considerations that are set out in the Bill as interest to. To prevent real harm to the public interest, well. We suggest that that is far too complicated and as set out in Condition A, could mean anything. that the magistrates’ court should be left out of this. Subsection (5)(b) introduces the same concept in terms However, the youth court—were the defendant an that were not in the original Act of last year, that there adult, he would have been tried in the Crown Court—is would be real harm to the public interest if the witness a different matter. In that very specific case, when only were to testify without the proposed order being made. one application was made last year, we concede that What public interest is there? I should be glad to hear perhaps an anonymity order could be made but, as a from the noble Lord what the Government have general principle, not otherwise. I beg to move. in mind.

6pm Lord Bach: I should like to deal briefly with the Amendments 185ZB and 185ZC are drafting three government amendments in this group—218B, amendments to emphasise that subsection (6) should 218C and 218D. These are simple, technical amendments be redrafted in a way that makes sense. If they were to improve the appeal procedures in cases that involve accepted, the provision would read: anonymity orders. Amendment 218B would enable a single judge to vary or discharge as well as make an “In determining whether the proposed order is necessary for the purpose mentioned in subsection (3)(a), the court must have order in the interests of the efficient operation of the regard (in particular) to”— Court of Appeal. The power of a single judge of the whether any— Court of Appeal to make an order is also available in “fear on the part of the witness … that the witness or another the service context and in Northern . Accordingly, person would suffer death or injury, or … that there would be Amendments 218C and 218D make a like change. serious damage to property … if the witness were to be identified”, Amendment 218D would also make it clear that a was reasonable. We cannot permit witness orders to be single judge of the Court of Appeal in Northern made because a person has a fear for his personal Ireland cannot discharge or vary an anonymity order safety which is completely unjustified. The person where he or she has already made it in the Crown who applies for such an order needs to satisfy the Court. I will move those amendments in due course. court that the fear of death or injury or serious damage I shall deal with the amendments of the noble to property is founded on something and is not just Lord, Lord Thomas of Gresford, as briefly as I can. the subjective view of the witness concerned. Amendment 185ZA would change the wording of Amendment 185ZD would insert a new clause the second limb of Condition A to refer explicitly to providing that the prosecution should not disclose the avoiding compromising the practice of undercover identity of a witness to other defendants. The Bill policing or undercover operations by police, or both, suggests that a defendant may make an application for law enforcement agencies or the security services. Our a witness anonymity order. In such circumstances, if view is that the amendment is unnecessary. As we the application is made by the defendant, then it is explained during the passage of the emergency legislation necessary to have a provision that nothing in the last year, the public interest wording is intended to Criminal Procedure and Investigations Act 1996 or cover two areas—first, national security interests generally any law relating to disclosure of material by a prosecutor and, secondly, the undercover work of the police and to the defence should apply to the identity of an relevant agencies. Having done so, we believe that anonymous witness who is made anonymous by the further elaboration is unnecessary. Indeed, to change application of the defendant. the wording could cause confusion as to what change These are separate and quite different points. We was intended, bearing in mind that the 2000 Act heard that one application had been made in the youth contains the same wording as this Bill. court—that was the statistic that the noble Lord gave. What is now Clause 75(3)(b) has been in force for Nine applications had been made to magistrates’ courts, almost a year without, to our knowledge, any difficulty. of which five had been granted. When the previous It will be noted also that the present amendment Bill was going through, I pointed out, on behalf of covers only undercover operations; it would not cover these Benches, that magistrates’ courts are not really other circumstances where damage to national security suited to granting witness anonymity orders. In any would be caused by identifying a witness. event, not all courts have the practical means of disguising Amendments 185ZB and 185ZC would, as the noble someone’s voice or identity, or of putting up screens, Lord said, change the order of the words in Clause 75(6). and so on. Nor is it right as a matter of principle that The court will necessarily have to consider any fear of 981 Coroners and Justice Bill[13 JULY 2009] Coroners and Justice Bill 982 the witness and the circumstances to judge whether it Clause 84 : Interpretation of this Chapter is reasonable. I echo what my honourable friend Maria Eagle said in another place: there is no need for us to Amendment 185ZF not moved. get too het up about which bit is subjective and which objective. The point is that the judge would be empowered to make a commonsense judgment in any particular Clause 84 agreed. set of circumstances about whether the fear of a witness was reasonable. No sensible judge—and all Clause 85 agreed. judges are sensible—would make an anonymity order if a witness had a completely irrational fear and there Clause 86 : Eligibility for special measures: offences was absolutely no chance of any danger to safety or involving weapons risk of damage to property. The judge would have to be convinced that there was at least something to it. That is what we are trying to capture generally in the Amendment 185ZG not moved. way that we have phrased the subsection. Amendment 185ZD deals with the extent to which Amendment 185A the anonymity provisions override the prosecution disclosure requirements in the Criminal Procedure Moved by Lord Bach and Investigations Act 1996. The concern is that where 185A: Clause 86, page 50, line 34, leave out subsection (3) and an order is made on a defence application for an insert— anonymity order in a multi-handed case, the prosecutor “(3) In section 64(3) (orders subject to affirmative resolution may be compelled by the 1996 Act to disclose the procedure), in paragraph (a) after “section” insert “17(7),”.” identity of the witness to the other defendants, thus defeating the purpose of this legislation. A trial anonymity Amendment 185A agreed. order overrides any prosecution obligation to disclose material to a defendant under the 1996 Act to the 6.15 pm extent the court thinks fit in any particular case. We do not think the amendment spoken to by the noble Lord is necessary. Debate on whether Clause 86, as amended, should stand Finally, Amendment 185ZF would prevent magistrates’ part of the Bill. courts making a witness anonymity order, which the Lord Thomas of Gresford: We submit that special Bill currently allows. The position at common law was measures should be used only if their use does not that anonymity orders could be made by the Crown compromise the defendant’s right to a fair trial and Court and the magistrates’ court. This position was they are genuinely useful in helping to maximise the preserved in the emergency legislation. Our position is quality of the witness’s evidence, where that quality that if anonymity is required to secure justice, it does would otherwise be compromised because of age, fear, not matter where the case is heard. We see no convincing vulnerability or disability or where protection of identity reason why magistrates’ courts should not be permitted is otherwise exceptionally necessary. It is simply not to make such orders provided that the requirements in the case that all witnesses in weapons cases will fulfil the Bill are met. As the noble Lord, Lord Thomas of these criteria. Gresford, reminded us, since the passage of the Bill in Where special measures will not help to maximise the previous Session, nine orders have been sought in the quality of a witness’s evidence, they should not be the magistrates’ court, of which five have been granted used. First, special measures can have a prejudicial and four refused, which shows that the magistrates impact on the defendant’s trial by suggesting, for seem to have a pretty robust way of dealing with example, that he is a person to be feared. I can assure applications that they do not think to be good applications. your Lordships that, if witnesses appear to be so In the light of the explanations I have attempted to fearful that they have to peep from behind curtains, give, I invite the noble Lord to withdraw his amendment. that is prejudicial to the defendant and cannot be wholly cured by a direction to the jury from the judge. Lord Thomas of Gresford: I have heard the explanations Secondly, we are concerned that special measures could that the Minister gave on behalf of the Government. I impair the quality of evidence if used in inappropriate shall consider them. For the moment, I beg leave to cases in relation to defendants who are under 18 or withdraw the amendment. who have mental health problems or learning disabilities. There are grounds for particular concern since the Amendment 185ZA withdrawn. defendant may be very young or vulnerable to a similar or even greater degree than the witnesses. Amendments 185ZB and 185ZC not moved. Decisions as to special measures should depend not on the witness’s wishes but on the interests of justice. Clause 75 agreed. For that reason, we suggest that this clause be removed from the Bill. Without it, special measures would Clause 76 agreed. continue to be available under the normal criteria of the Youth Justice and Criminal Evidence Act 1999. Amendments 185ZD and 185ZE not moved. These criteria are sufficient to provide for special measures in appropriate cases. For these reasons, we Clauses 77 to 83 agreed. oppose the clause standing part of the Bill. 983 Coroners and Justice Bill[LORDS] Coroners and Justice Bill 984

Lord Tunnicliffe: The provisions in Clause 86 form were largely in favour of this change. I assure noble part of the Government’s strategy to tackle gun and Lords that the provision will not reduce the protection knife crime, which tends to see high levels of witness offered to young witnesses but will ensure that special intimidation. The aim is for this provision to give measures are flexible and tailored to the needs of an witnesses to such crimes reassurance at an early stage individual witness, rather than assuming that all young in the investigation that they will be eligible for special witnesses are the same. measures assistance should that be needed to give evidence in court. In turn, we hope that this will encourage more witnesses to these offences to come Lord Thomas of Gresford: It is my fault that I did forward. Eligible witnesses are able to opt out should not address Clause 87 earlier, but perhaps I may make they not require special measures assistance. one or two points about it. Section 17 of the Youth Justice and Criminal Evidence Act at the moment While the Bill makes eligibility for special measures provides that a witness is eligible for assistance if the automatic for the class of witness, the court will court is satisfied that the quality of the witness’s continue to have full discretion to determine which evidence would be reduced on the grounds of fear or special measures, if any, should be available to any distress about testifying. The court takes into account particular witness. In determining this, the court must a number of factors as well as the views expressed by consider which, if any, of the measures would be likely the witness. Clause 87 gives automatic eligibility for to improve the quality of evidence given by the witness assistance to witnesses in proceedings relating to gun and whether the measures might inhibit the evidence and knife crimes as set out in the schedule, so that it being effectively tested. It is unlikely that a court ceases to be a matter for the discretion of the court would decide that certain witnesses needed the assistance altogether. There is automatic protection, not because of special measures to improve the quality. Essentially, a person is in fear or distress but because of the nature the court will have the test of whether it might inhibit of the crime before the court. the evidence being effectively tested. We consider it imperative that, as far as possible, Clause 87 amends the existing legislation by creating special measures be left to the discretion of the court one rule for all child witnesses and by providing greater to determine on a case-by-case basis, because it is flexibility in the way in which young witnesses may undoubtedly true—and it is my personal experience—that give their evidence. This responds to concerns that the once the jury sees a witness screened off with their present provisions are too rigid and do not give young voice distorted, it will assume that the defendant is a witnesses any choice about the way in which they give dangerous criminal capable of serious violence. Special their evidence. The clause abolishes the distinction measures should not therefore be used automatically, between child witnesses in cases involving sex or violence as Clause 87 suggests. It should be for the court to and child witnesses to other types of offence. It provides weigh the prejudice occasioned by the manner in a presumption that all child witnesses, regardless of which the evidence is given against the need, if there is the type of offence, will give their evidence via video- a need—the fear and distress of the witness—to protect recorded statement and live link, unless this would not the witness. It is a question of balance, not of automatic maximise the quality of their evidence. However, it qualification for these measures. It would have an also provides that the witness may opt out of giving impact on the whole concept of a fair trial if, without evidence this way, wholly or in part, subject to the any request, a witness should be automatically granted agreement of the court. If child witnesses wish to give these provisions. That is why I am opposed to Clause 87. evidence in the courtroom, there is a presumption that I know that the Minister has already dealt with it they will do so behind a screen. Should witnesses not in his reply—I apologise for that—but I was taking it wish to use a screen, they will have a further opportunity in stages. to opt out, again subject to the agreement of the court. We are committed to helping vulnerable child witnesses Baroness Butler-Sloss: Perhaps I may say something to give evidence in the best way possible for them in about Clause 87 from the perspective of a former court, in a way that reduces the trauma of the experience family judge. My own experience, and that of those and enables them to give their evidence. The current who have represented children—particularly child and system, established by the Youth Justice and Criminal adolescent psychiatrists, who have had to help children Evidence Act 1999, is based on the view that all who are likely to have to give evidence—has been that children should be protected from giving evidence in most children are extremely scared about giving evidence the courtroom, particularly witnesses to offences of in court. The younger the child, the more scared they sex and violence. Thus, at present, child witnesses in are, but anyone up to the age of 18 is intensely vulnerable. these cases, regardless of their views, must give their This seems to be one area of the Bill on which the evidence in chief via video-recorded statement and Government are to be congratulated and I for one live link, unless to do so would not be in the interests would like to see the clause go through. of justice. However, these provisions have been criticised for Lord Tunnicliffe: I thank the noble and learned their complexity and inflexibility. After six years, Baroness for her support. I should re-emphasise the independent research shows that many young witnesses role of the court. There is a distinction. Eligibility is want more choice in the way in which they give their automatic, but the court must still determine whether evidence. This view was supported by a review of child a special measure would be likely to improve the evidence that led to a public consultation exercise in quality of evidence, which is the essential test to be 2007. The vast majority of respondents to that exercise applied in all cases. 985 Coroners and Justice Bill[13 JULY 2009] Coroners and Justice Bill 986

Clause 86, as amended, agreed. The 2005 ECHR judgment in the case of SC held that, when there was a risk of a defendant’s being Schedule 12 agreed. unable to participate effectively in criminal proceedings because of youth or “limited intellectual capacity”, it Clause 87 agreed. was “essential” that the courts, “give full consideration to, and make proper allowance for, the Clauses 88 to 90 agreed. handicaps under which he labours, and adapt its procedure accordingly”. Clause 91 : Examination of accused through Crown Courts already have inherent powers to intermediary permit a vulnerable defendant to use an intermediary when giving their oral evidence if it is necessary to ensure that they receive a fair trial. This clause puts Amendment 185B not moved. this power on a statutory footing and extends the availability of intermediaries to vulnerable defendants Debate on whether Clause 91 should stand part of the in magistrates’ courts. Bill. An intermediary’s role is limited to assisting the witness to communicate and understand. They can Lord Henley: Perhaps the Minister will deal with a therefore communicate to the witness questions asked couple of queries. As he is well aware, Clause 91 deals by the court, the defence and the prosecution. They with the examination of the accused through an can also communicate the answers that the witness intermediary, but we have questions about the situations gives. The intermediary may also explain questions in which this will be deemed to be appropriate. Where and answers if it is necessary to enable the witness and a defendant’s level of intellectual ability or social the court to understand each other. functioning is so compromised that he is unable to understand and respond to questions asked in language Intermediaries are independent of the defendant. appropriate to his age by a prosecutor, defence lawyer Their paramount duty is to provide a service to the or the court, it is very unlikely that he will be able to court. They are not on the side of either the prosecution participate effectively in his trial for the purposes of or the defence; they are neutral and take an oath to the the trial being fair according to Article 6 of the court to perform their services faithfully, as a translator ECHR. In these circumstances, he should not be on of a foreign language would. The court may also trial at all, but should be diverted to an appropriate discharge such a direction and, as a safeguard, may alternative process, whether through fitness to plead vary one where this is necessary. The Government or some alternative procedure. intend that this clause will assist those defendants who genuinely have severe recognised communication If the defendant is unable to have a broad problems to give their evidence and thus ensure that understanding of the nature of the trial process, or to they receive a fair trial. have the “effective participation” in his own trial as was demanded in the judgment in the 2004 case of SC v United Kingdom, which includes an understanding 6.30 pm of the significance of any penalty that may be imposed, The questions of whether the defendant is fit to the presence of an intermediary is unlikely to be a plead and the use of an intermediary are two separate remedy. I welcome the Government’s comments on issues. The tests that the court is asked to apply in each that. case are different. In the case of fitness to plead, the Another concern is that the intermediary may not common law test is more stringent and about a defendant’s be wholly independent of the defendant and may risk capacity to comprehend the course of the proceedings giving evidence on his own account when he ought so as to make a proper defence. The law enables the simply to be transmitting the information going to defence or prosecution to make a claim to the court and from the defendant. These concerns have been that the defendant is unfit to plead. This is a matter for brought to our attention by, among others, the Law them to decide. If such a claim is made, the judge will Society and Justice. As I made clear, our opposition determine this only in the light of evidence from to the clause is purely probing in nature at this stage, medical practitioners, at least one of whom must have but we seek assurances from the Government on the special experience in the diagnosis or treatment of two points raised. If what the Minister says is mental disorder. A separate application by the defence unsatisfactory, we might want to come back to the for an intermediary will instead be relevant if a contested matter at a later stage. trial is to proceed and the defendant intends to give evidence and requires assistance with communication Lord Tunnicliffe: I think that the noble Lord, Lord for this purpose. Henley, and I were expecting the amendment to the It does not follow that, when an intermediary is clause to be moved, so if noble Lords will forgive me, I needed in the interests of a fair trial, a defendant shall use my overall notes suitably amended. should not be tried at all. While I understand the Clause 91 enables the court to permit eligible vulnerable concerns that have prompted the amendment, it would defendants to be assisted by an intermediary to be wrong in principle to restrict the ability of the communicate and understand if and when they give defence to apply for an intermediary for a defendant oral evidence at trial. Intermediaries are already available by making it a condition that fitness to plead must be to assist vulnerable witnesses under Section 29 of the determined first. This would be an inappropriate and Youth Justice and Criminal Evidence Act 1999. unnecessary restriction on the defence, particularly 987 Coroners and Justice Bill[LORDS] Coroners and Justice Bill 988

[LORD TUNNICLIFFE] Instead, the court may direct the accused’s attendance bearing in mind their professional duty to their client. by way of a live link when it is satisfied that it is not There will be many defendants who are fit to plead contrary to the interests of justice to do so. There is no and yet, in the interests of a fair trial, require some aid direction on how that is to be assessed or whether communicating when giving their evidence. We expect representations can be made. Similarly, the amendment that fitness to plead will ordinarily be determined first, removes the requirement for consent on the part of the before arraignment. accused to the giving of evidence at preliminary or Following this order would have the additional sentencing hearings. benefit that the evidence of specialist medical practitioners The requirement that the accused consents to live as to the defendant’s fitness to plead might also address link directions is an important safeguard against potential whether, if the trial were to go ahead, that defendant abuse. The physical appearance of the accused in had communication problems for which an intermediary court at pre-trial and sentencing hearings is a prerequisite might be required. However, in the interests of the for the effective exercise of rights under Articles 3, 5 accused, the court may postpone the issue of fitness to and 6. By the accused appearing in court, the court plead to any time up to the end of the prosecution may see first hand whether the accused has been case. The issue of fitness may be raised by the defence, subject to any abuse of any sort. Clause 93(4) of the prosecution or court itself. This provides for the necessary Bill provides that the accused may continue from a flexibility to accommodate circumstances when—for preliminary hearing by live link directly to a live link example, due to the nature of the disability—it may sentencing hearing—for example, when he or she pleads not be appropriate to determine the question from the guilty—at the direction of the court, so that the accused outset. In the light of this explanation, I hope that the may never have the opportunity to present himself or noble Lord will support the clause. herself in court. That increases the risk, however minimal it might be perceived, that an abused prisoner might Lord Thomas of Gresford: We do support the clause. be induced to plead guilty. I have had the experience of defending a person who I apologise to your Lordships for referring always was absolutely deaf and could not speak—so was the to experience, but it is only at the beginning of this deceased and so were four or five of the witnesses, year that I had a situation in which a client who was which meant that most of the trial was conducted in kept in prison suffered from a very bad back injury sign language. It was astonishing to me that those who and was unable to attend the court at any time. That were signing could communicate more quickly than in caused problems from the defence point of view— ordinary speech, so the interpreters of the sign language, problems in getting into the prison to see him and who were telling the jury what was being said, were problems on the day of the hearings in getting proper unable to keep up. The use of intermediaries in such a instructions. Your Lordships may well take it from me situation is very much in the interests of a defendant that live links are not always working. It is difficult, if and I am pleased to see that this clause contains something emerges in the course of a hearing, to take something giving statutory approbation to it. any instructions about it. Therefore, to impose a live link on a defendant when he does not want it is, in my Lord Henley: I am very grateful, as always, to respectful submission, a breach of his right to a fair the Minister for his response to my opposition to the hearing. If, on the other hand, as happened in January clause standing part of the Bill. As I stressed at the of this year, the defendant is unwilling to go to court beginning, my opposition was purely probing. I want because of physical injury, that is a different matter. to consider very carefully in due course—we have the His consent to the hearing is something that he can whole summer in which to do it—what he had to say. I give. To remove that consent altogether is not appropriate, will also consider comments from bodies such as the which is why we oppose the clause standing part. Law Society and Justice on what he said and then decide whether further examination of this clause is necessary at Report. Lord Bach: At present, consent is required for the use of a live link for certain sorts of hearing, while it is Clause 91 agreed. not required for others. It is difficult to justify this Clause 92 agreed. inconsistency. A live link hearing ought to be treated much like any other hearing. Clause 93 : Directions to attend through live link Everyone is aware of the need for increased efficiency in the justice system. We believe that the increased use Debate on whether Clause 93 should stand part of the of live links that this clause provides for will enable Bill. cases to be progressed more quickly and ensure the best use of available resources and technology. Crucially, Lord Thomas of Gresford: Clause 93 seeks to remove the quality of justice will not be affected by these the requirement of the consent of an accused person changes: live link hearings will take place under the before a live link is used at preliminary and sentencing same rules and guidelines as usual, and the defendant hearings. Chapter 4 amends the Crime and Disorder will have access to all existing legal safeguards. Act 1998 in relation to the use of live video links. The Live links now have a history. They were first greatest concern is this clause, which systematically introduced in the Crime and Disorder Act 1998 and replaces the existing requirements in that Act that the were subsequently amended in the Police and Justice accused must give his or her consent to the use of a Act 2006, which also extended live links to cover live link at preliminary hearings and sentencing hearings. certain sentencing hearings. 989 Coroners and Justice Bill[13 JULY 2009] Coroners and Justice Bill 990

The current situation, as I say, is inconsistent in into account the wishes of the defendant. So while it that defendants already in prison cannot veto the use may not be enough for him merely not to consent, he of live links for their preliminary hearings, but they will be asked his wishes regarding live link and, of can veto the continued use of a live link for sentencing course, about any particular needs that the defendant if they plead guilty during the preliminary hearing. might have that might render the use of a live link Such defendants must give separate consent if they are unsuitable. As I say, the court can rescind any live link to give oral evidence at this sentencing hearing. The direction at any time in the proceedings. So where it is defendant’s consent is also necessary where he has or becomes inappropriate to have a live link direction, been convicted and is to be sentenced at a live link the case can be sent for a regular court hearing in the hearing from prison called for this purpose. Again he usual manner. I should add that no trials can take must also give separate consent if he is to give oral place under a live link; they have to take place in court evidence at that hearing. itself. I should also add that the defendant has the In virtual court hearings where the defendant is at chance through the live link of seeing the Crown the police station, either having been detained there or prosecutor, the tribunal and all other interested parties having returned there to answer what is described as “live link bail”, the defendant’s consent to the live link 6.45 pm is required. These police station-to-court live links are There has been concern about defence representatives. a new initiative—indeed, an oral Question about them Where the defence representative is at the magistrates’ was asked in the House just a couple of weeks ago—and court, that lawyer will be able to communicate privately are being operated, as noble Lords may know, as a with the defendant using the video link in advance of pilot in four London police stations. As of 3 July, the hearing. For such discussions the defendant will 23 cases have been heard that way. There has been an use a live link from a private interview room in the average of four hours between charge and first hearing, police station through which he will be able to see and and approximately 75 per cent of cases heard so far hear his lawyer at the magistrates’ court. The defendant have resulted in a guilty plea and sentence, meaning will be alone for the duration of such discussions, thus that the cases have been concluded on the day of preserving confidentiality. charge, demonstrating the potential of virtual courts We are moving forward with this scheme because so to speed up justice for all those involved. That, of far it seems as though it has worked well. Of course we course, includes defendants too. are watching it with extreme care. If there are any signs that it is not working well, we will look carefully The clause will remove the requirement for defendants’ to see what we should do about it. The safeguard for consent to live links in the following situations: first, the defendant is that the tribunal has the right to say preliminary hearings where the defendant is at a police no to such a link. It also has the right to stop any link station—virtual courts—and hearings to sentence the taking place if it is felt to be unjust. We therefore ask defendant where he has pleaded guilty during that that Clause 93 stand part of the Bill. virtual court hearing; secondly, hearings to sentence the defendant where the defendant is in prison and has pleaded guilty during the preceding live link preliminary Lord Thomas of Gresford: I hear what the Minister hearing; and, thirdly, hearings arranged for the purpose says. I have limited experience—but I have experience. of sentencing a defendant already in custody. In those What I think is not understood is the physical limitations last two situations the clause also abolishes the requirement for the use of live links. In a very busy Crown Court that a defendant must give separate consent if he is to that I know of, which has some 17 courts operating, give oral evidence during these types of hearings. there are two rooms where it is possible to take instructions along the lines that the noble Lord has mentioned. Of The safeguard in the clause adds a requirement that course there is a queue. You have to wait. It is quite a live link direction is not to be given in any of these impossible to go back, as I said earlier, to take instructions circumstances unless the court is satisfied that it is not as a case develops. That is just physically impossible. contrary to the interests of justice to give the live link Although the equipment can work, sometimes it direction, and, importantly, a court can rescind a live does not. link direction at any time for the same reason. In I am afraid that we are moving towards a situation practice, this will mean that a court will take into where defendants are going to be even more packaged account a defendant’s view on the use of a live link, or up and removed from the ambit of the courtroom any particular needs he may have that renders the use where the judge can see and hear a real person. If this of a live link unsuitable. goes through, the judge will be able to sentence a It hardly needs saying that these changes have person without his consent to a live link. He cannot enormous potential to increase the speed, efficiency ask him any genuine real questions by live link. He and effectiveness of our criminal justice system without cannot appreciate the atmosphere in which the case is affecting the quality of justice. This will, we hope, being advanced. We are approaching what used to be deliver a better deal for victims and witnesses as cases called a 1984 situation, with defendants popping up will be resolved more quickly; a better deal for the on a screen and being popped away without any taxpayer, as precious resources will be used more physical contact with the court scene. I think that this efficiently; and a better deal for the defendant himself is a retrograde step, but I will not oppose the matter or herself, as their case will be progressed more quickly. any further. The noble Lord asked how a court will satisfy itself Clause 93 agreed. that it is not contrary to the interests of justice to give a live link direction. My reply is that the court will take Clauses 94 to 99 agreed. 991 Coroners and Justice Bill[LORDS] Coroners and Justice Bill 992

Clause 100 : Powers in respect of offenders who assist Well, if he is acting personally, one might have gone investigations and prosecutions further. Rather than giving his title, we could have used a whole raft of titles, such as “Lord Mandelson Amendment 185C of Foy in the county of Herefordshire and of Hartlepool in the county of Durham, Lord President of the Moved by Lord Tunnicliffe Council, Secretary of State, Deputy Prime Minister”—the 185C: Clause 100, page 61, line 13, leave out “Enterprise and whole lot. I honestly do not know. Regulatory Reform” and insert “Innovation and Skills” Put simply, can the Minister tell us why we cannot Lord Tunnicliffe: These are purely technical have just “the Secretary of State”, as we have always amendments which do not affect the substance of the had in the past? When does the Minister expect to seek clause. Clause 100 extends to the Financial Services to amend the Bill further when the Prime Minister Authority and the Secretary of State for Business, changes the title of that department again? Is this an Enterprise and Regulatory Reform the statutory powers appropriate way to go about things? If the Minister is in the Serious Organised Crime and Police Act 2005 going to suggest that the clause stays as it is, might this for prosecutors to confer immunity from prosecution be one of those occasions where we have a new in respect of defendants who co-operate in the regulation-making power—it could even be negative; I investigation and prosecution of others. There is also would not even insist that it be affirmative—so that we provision for defendants who turn Queen’s evidence to could change the title as appropriate by means of receive a reduction in their sentence in return for their negative instruments? co-operation. Following the machinery of government changes Lord Tunnicliffe: The noble Lord, Lord Henley, announced by the Prime Minister last month, it is makes the case for spelling out which Secretary of necessary to replace the various references to the State quite well. I believe—and I will write to the Secretary of State for Business, Enterprise and Regulatory noble Lord if this is not correct—that it is essentially Reform with references to the Secretary of State for for the avoidance of doubt. Our amendments already Business, Innovation and Skills. Following Royal Assent pick up his suggestion. There will be no requirement it will be possible, in response to any future machinery for future changes to the Secretary of State’s title in of government changes affecting this clause, to amend primary legislation. It will be covered in the transfer of this provision through a transfer of functions order. I functions order, as I said earlier. That will have the beg to move. power to change the title in this case. Lord Henley: I am somewhat intrigued by these I, too, was curious about what “acting personally” amendments, which we are told are minor and technical. means. My answer begins: In my experience, references to “the Secretary of State” “There is no intention that the Secretary of State will actually in any legislation refer simply to “the Secretary of use these powers himself”, State” on the basis that “the Secretary of State” is a which I thought was a great start. The powers will be single legal entity. You then infer from the Act which used by an appropriately senior prosecutor within the Secretary of State it is. So, in my days in education, department. Where a Secretary of State is ordinarily when we were passing education Bills, when the Bill granted a power in legislation, unless otherwise specified said “the Secretary of State”, that meant the Secretary this power may automatically be exercised on his of State for Education. behalf by a large number of officials within his Later, under this Government, what was the department. We want to ensure that these powers can Department of Education started changing its name be delegated by the Secretary of State only to no more with monotonous regularity. If we had put in the than two appropriately senior prosecutors within the words “the Secretary of State for Education”, every department. That is the sole reason behind the use of time a new education Bill came through, further drafting the phrase “acting personally”. amendments would presumably have had to be made to a whole host of bits of legislation, suggesting that his or her name should be changed to whatever the Lord Henley: This is complete nonsense. I suggest Government had decided that that department should that the noble Lord takes the amendment away, goes now be called. back to his draftsmen and suggests to them that we go This has happened in this case because the Government back just to “the Secretary of State”. He is creating started by saying “the Secretary of State for Business, more confusion by specifying which Secretary of State, Enterprise and Regulatory Reform”, which is a pretty because it casts into doubt all the other statutes that silly title anyway, and now want to change it to the refer simply to “the Secretary of State”. I suggest that almost sillier title of “the Secretary of State for Business, the Minister has another look at it and comes back Innovations and Skills”. We understand that that also with further amendments on Report that put us back includes universities, but for some reason they did not onto the normal footing that we understand, on the want to add that to the title. basis that we all know who the Secretary of State is. We always find a means of understanding what any Anyway, on this occasion we are told that we will particular statute means. have the full title of the Secretary of State. Perhaps the Minister can assist me. It might be because, on this occasion, we have in Clause 100(3)(a), Baroness Butler-Sloss: What does the Minister think “the Secretary of State for Business, Enterprise and Regulatory a court might do with this? If the phrase is “acting Reform, acting personally”. personally”, I do not see how you can delegate. 993 Coroners and Justice Bill[13 JULY 2009] Coroners and Justice Bill 994

Lord Tunnicliffe: I have every faith in those who (6) The police shall give the Commissioner such assistance as drafted these clauses. I am sure that when we come he may reasonably require so that he can fulfil his functions under back and probably propose precisely the same clauses this section. everybody will be convinced by the extensive arguments (7) The Commissioner shall be entitled to interview terrorist I shall field. However, I recognise the mood of the suspects with their consent, and may require such interviews to take place in the absence of the police and he may also attend Committee and shall withdraw the amendment. I expect interviews, conducted by the police. to retable the amendments on Report. I suspect that (8) The custody officer shall inform the Commissioner whenever they will be the same, but we will be backed up both by the prosecution are to make an application for the extension of more reasons for why it is necessary to name the the period of detention and the Commissioner shall be entitled to Secretary of State and by a response to the question be present at the hearing. about how we believe a court might react. I beg leave (9) The Commissioner shall make an annual report to Parliament to withdraw the amendment. as to the carrying out of his functions under this section.”

Amendment 185C withdrawn. Lord Lloyd of Berwick: The purpose of the amendment is to require the Secretary of State to appoint an Amendments 185D and 185E not moved. independent commissioner for terrorist suspects. The commissioner would have two main functions. First, Clause 100 agreed. he would be able to monitor the detention and treatment of suspects detained under Section 41 of the Terrorism Clause 101 : Bail: risk of committing an offence Act 2000. Secondly, he would act as the eyes and ears causing injury of the judge when the prosecution apply for an extension of time from seven days to 14 days and, ultimately, to Amendment 185F not moved. 28 days under the provisions of Schedule 8. Eight months ago, in November 2008, I moved an Clause 101 agreed. almost identical amendment to the Counter-Terrorism Bill. That amendment was supported by the noble and Amendment 186 had been withdrawn from the Marshalled learned Lord, Lord Mayhew, who I am glad to see in List. his place, the noble Viscount, Lord Colville of Culross, the noble Lord, Lord Dear, the noble Baroness, Lady Amendments 186A to 186C not moved. Manningham-Buller, and many others, including the two opposition Front Benches. At the end of the debate, the noble Lord, Lord West, said that at first he Clause 102 : Bail decisions in murder cases to be made had been minded to resist the amendment, but that, by Crown Court judge having listened to the debate, he would accept the amendment in substance, but needed more time to Amendments 186D to 186F not moved. look at the wording. This Bill seemed to present a good opportunity to bring back the amendment before Clause 102 agreed. the Committee.

Amendment 187 7pm Moved by Lord Lloyd of Berwick I will remind the Committee of the benefits that will flow from the amendment, if it finds favour. I can 187: After Clause 103, insert the following new Clause— do so briefly, because we went into it at some length “Independent Commissioner for Terrorist Suspects last year. There are two main benefits. The first is that (1) The Secretary of State shall appoint a person to be known it will bring reassurance to members of the Muslim as the Independent Commissioner for Terrorist Suspects (the community—a point made very strongly on the previous “Commissioner”) and such appointment shall be subject to the occasion by the noble Baroness, Lady Falkner of approval of the Lord Chief Justice, and shall be on such terms as Margravine. It comes about in this way. When terrorist to length of service and remuneration as the Secretary of State shall determine. suspects are arrested, often in circumstances of great publicity, and then released without charge after 28 days (2) The principal function of the Commissioner shall be to monitor the detention and treatment of terrorist suspects held or whatever period it may be, it causes much resentment. under section 41 of and Schedule 8 to the It is resented, naturally, by the suspect himself. However, (c. 11) and in particular to give the judicial authority such it is also resented by the suspect’s neighbours, and by independent assistance as it may require in deciding whether or the Muslim community at large. The presence of an not to extend the period of detention, and to perform such other independent commissioner at Paddington Green would related functions as the Secretary of State may determine. do much to reassure the Muslim community, not just (3) In order to fulfil his functions under this section, the that the suspects are being well treated, as should Commissioner shall be entitled to visit Paddington Green Police surely go without saying, but also that the police are Station, and any other place of detention where terrorist suspects are held, so as to ensure that the questioning of suspects is being getting on with the investigation as quickly as they carried out diligently and expeditiously, and in accordance with can. In other words, the community needs to be reassured the provisions of Schedule 8 and PACE Code H. that suspects are not being detained for a day longer (4) Such visits shall take place at the discretion of the Commissioner than is absolutely necessary. The amendment that I and may be unannounced. am moving will be in accordance with recent government (5) The custody officer shall inform the Commissioner within policy, which is to remove, so far as can be done, the 24 hours of a terrorist suspect being detained. causes of alienation among ethnic minorities. The 995 Coroners and Justice Bill[LORDS] Coroners and Justice Bill 996

[LORD LLOYD OF BERWICK] he needs in making his important decision and for policy sometimes goes under the name “Respect”. I reassuring the Muslim community that suspects are may be wrong about that, but I hope that the Minister, not being held longer than is absolutely necessary? I when he replies, will say at least that this idea comes beg to move. within the general scope of that important policy. The second benefit flowing from the amendment is Lord Condon: As a former police commissioner, I less obvious, but is equally important in the interests support the amendment, but not without reservations. of justice. As the Committee knows, suspects are I see a number of practical problems relating to the detained in the first instance for seven days. An application disruption of the meticulously planned chronology of can then be made before a judge to extend the period the questioning of terrorist suspects. However, I believe to 14 and ultimately 28 days. As things stand, the that, on balance, the greater good that may be achieved judge has nothing to go on except what he is told by by the creation of the commissioner post far outweighs the prosecution. It is true that the suspect’s counsel any potential problems. As the noble and learned may be present and can make submissions. However, Lord said in moving the amendment, the potential neither the suspect himself nor his counsel will have engendering of confidence in the wider community by access to the closed material; so counsel’s submissions means of these provisions is well worth while. I support on the point of whether there should be an extension the amendment. will be based necessarily and to a large extent on Lord Elton: I am a complete amateur in this matter. guesswork. I have just one question to ask the noble and learned The advantage of having a commissioner is that, Lord, Lord Lloyd of Berwick. Does he foresee a unlike counsel, he will have seen all the closed material possibility that an assiduous commissioner might disagree in relation to all the suspects who are being investigated. with Her Majesty’s Government on substantive points He will be in a much better position than counsel to from time to time? If that were the case, would it not assist the judge by expressing an independent view on be better to give some security of tenure and describe whether, for example, the police are getting on with the circumstances in which he might be required to the investigation as quickly as they should; or, to take relinquish his post? another example, on whether the case against some of the suspects is so weak that they ought to be released Lord Lloyd of Berwick: I could certainly foresee the at once. Since the commissioner will be present at the commissioner being appointed for, say, five years. I hearing of the application for an extension, he will be should have thought that that would give him sufficient able to express his concerns to the judge and can be security. questioned by the judge about them. Of course, the prosecution will be able, so far as it can, to answer Lord Mayhew of Twysden: I assure the Minister the concerns. who is about to reply that my support for this proposal I remember well, when we were asked to extend the has not diminished in any way since I expressed it detention period to 42 days, that a great deal was when we went into all this last November. As regards made of the fact that it would be a judge who made the police objection that their investigations would be the decision on whether to extend the time. That was hampered if the commissioner was present in police to be the great safeguard; but that safeguard is illusory stations, exactly that misgiving was expressed when I unless the judge has heard both sides of the argument. had some responsibility for and I That is the object of the amendment. introduced a system, staffed in the first instance by Sir Louis Blom-Cooper QC, whereby a commissioner There are only two arguments the other way. The was present when the police questioned a suspect. In a first is a fear on the part of the police that it will very short time, Sir Louis Blom-Cooper secured the hamper their investigation to have the commissioner support of all concerned with this procedure, including present at Paddington Green. I do not understand the police. I very much endorse what was said in that their concern. The commissioner will be present during regard by the noble and learned Lord, Lord Lloyd of interviews at Paddington Green as an observer—nothing Berwick, a few minutes ago. more. He will not stop the police conducting the There is a necessary but inherent weakness in the investigation in any way that they may think appropriate. procedure for the extension of detention from seven to He will not stop them asking any questions that they 14 and ultimately to 28 days. It is a necessary weakness want to ask. I hope that the Minister will explain why but it can be addressed by having a commissioner the police are so concerned, if indeed they are. The present and informed in the way in which the noble fear that the presence of the commissioner will hamper and learned Lord has described. It is not easy for a their investigation reminds me greatly of the fears that judge to determine whether the case for an extension used to be expressed when it was first suggested that has been made, particularly where the defence counsel interviews should be recorded. Now the recording of is not able to see the strength of a case against him. interviews is seen as the most natural thing in the Judges in this rather unwelcome position need all the world: indeed, the police positively welcome it. The support that they can get. I believe that that is provided role of the commissioner being present at interviews to a significant extent by the terms of the proposed will come to be seen in the same way. new clause. The second objection is on the ground of cost. It is said that the cost of a single commissioner at Paddington Lord Hylton: I intervene to support the amendment Green will be £50,000 a year. Is that not a small price as a trustee of an English charitable organisation, to pay for ensuring that the judge gets all the help that Forward Thinking. Over the past four or five years it 997 Coroners and Justice Bill[13 JULY 2009] Coroners and Justice Bill 998 has worked, through Muslims, with Muslim communities authorisation of extended pre-charge detention do in England to break down feelings of alienation and not satisfy the requirements of either habeas corpus or being in a ghetto that may, and do, exist. We have had Article 5 of the European Convention on Human Rights. some success. The amendment would prevent English This amendment would help in that regard. The committee Muslims from feeling that they were being attacked or has found that the hearing of an application for further vilified for supporting terrorism. Therefore, I am all in detention is not fully adversarial and that judicial favour of it. oversight is inadequate as a result of the narrowness of the questions that the court is required to answer in Baroness Butler-Sloss: I, too, support the amendment. making its decision. The establishment of a commissioner It is very important that not only the terrorist suspect would help in all those respects. but his family, children, friends and neighbours within The Government may have alternative ideas. If the Muslim community are all reassured. This matter they involve the statutory reviewer of terrorism legislation usually, but not necessarily, involves Muslims but could taking on a further duty in this respect, I should point also affect Sikhs or other local communities. It is out that the noble Lord, Lord Carlile, is already a very important to have the reassurance provided by the busy man. It would be difficult for him to take on the appointment of a commissioner. If any problem arises full role that is required to provide the reassurance regarding how the commissioner should exercise his that a special commissioner would be able to offer. powers, I have no doubt that the noble and learned I very much hope that the Government will think Lord, Lord Mayhew, would give advice on that. However, yet again about this. If the way in which we conduct I should have thought that guidance could be provided these trials continues to be criticised, it seems to me to the commissioner on the appropriate way to carry that not only is justice not delivered but we provide out his duties. It is important that those who may be grounds for potential appeal. Above all, we ought to incorrectly suspected of terrorism, and are rightly do our very best to ensure that the proceedings that we picked up by the police in these dangerous days in conduct not only deliver justice but are seen to deliver which we live, should know that someone will be there justice to all those involved, particularly minority to keep an eye on them. communities.

Lord Thomas of Gresford: This matter was debated Lord Brett: Before I respond to the amendment, I at length on a previous occasion when the noble Lord, pass on the apologies of my noble friend Lord West of Lord West of Spithead, said that he would like to Spithead, who—partly, I suspect, because of the speedy accept the substance of the amendment. On that occasion, passage of business in the past hour or so—is not able my noble friend Lady Falkner of Margravine, who is to be present due to government commitments. He present, said how important it was to restore confidence very much wanted to take part in this debate. I hope among ethnic minority communities. We support the that the Committee accepts his regret that he is not amendment. able to be present. Members have already recalled the depth of the 7.15 pm debate that we had on a previous occasion, which is Baroness Neville-Jones: I, too, support the amendment undoubtedly why the contributions of the noble and put forward by the noble and learned Lord, Lord learned Lord and other noble Lords, reiterating positions Lloyd. The Government are apparently worried about previously taken, have been modest in length and have the proposal for an independent commissioner and not repeated the argument to which my noble friend are concerned that his presence would somehow cause Lord West of Spithead sought to respond. As the delays in judicial hearings. They are perhaps worried noble and learned Lord, Lord Lloyd, has pointed out, that police investigations would be delayed because of my noble friend gave a commitment to establish such a the need to accommodate the commissioner at short role at Third Reading on the Counter-Terrorism Bill notice. These arguments, which seem to rest on on 17 November. We have heard again, very much in convenience and administrative efficiency, do not seem shorthand form, many arguments from those who to me to be the whole story. As the noble and learned favour such a position. Although the case that the Lord, Lord Lloyd, pointed out, the presence of the noble and learned Lord and others is one in which commissioner could make the proceedings more efficient they believe strongly—on the occasion that we last as well as having the advantage of reassuring minority considered it, it brought forward a lot of sympathy communities, as he pointed out. across the House—I am afraid that the Government I go further: reassuring communities outside the cannot accept the amendment. legal process, and the families of those involved, that Since the debate last November, we have consulted the process is fair and just is a form of efficiency. What further with the police, prosecutors and the Courts are you trying to do at the end of the day? We should Service, in Scotland and Northern Ireland as well as in be trying to deliver justice and convince the outside England and Wales. As a result of those consultations, world that justice is being delivered. It is inefficient not we now believe that an independent commissioner as to go the necessary short distance to increase the envisaged by the amendment would have a detrimental possibility of being able to do that. I am disappointed effect on the conduct of terrorist investigations. that it appears that this idea will not be included in the Two main arguments have been made for establishing legislation, as there is no government amendment. an independent commissioner. The first is that judges We ought also to bear in mind the fact that the who consider extension applications do so on the Joint Committee on Human Rights has consistently basis of limited information and that the police do concluded that the current arrangements for judicial not conduct investigations quickly enough. That is 999 Coroners and Justice Bill[LORDS] Coroners and Justice Bill 1000

[LORD BRETT] unannounced visits to suspects and can discuss with why Amendment 187 provides for an independent them their treatment and conditions of detention. commissioner to advise a judge at extension hearings They may examine custody records and inspect detention on whether continued detention is justified. It is worth facilities. A report is completed after each visit. Secondly, pointing out, however, that judges are already required in 2008, Her Majesty’s Inspector of Prisons and Her by legislation to ensure that suspects are not detained Majesty’s Inspectorate of Constabulary began jointly for longer than necessary and that investigations are to inspect prison custody suites. They have unfettered carried out “diligently and expeditiously”. The application and unannounced access to such facilities and can by police or the CPS for extended detention is a interview detainees. Part of their role is to ensure rigorous process; it is not a rubber-stamping job. Indeed, adherence to PACE codes and the appropriateness of an independent report of the inspection of the treatment and conditions in which suspects are held. counterterrorism division of the Crown Prosecution Thirdly, the noble Lord, Lord Carlile, already has a Service in April this year found that, in all pre-charge statutory role in relation to the operation of the Terrorism detention cases that were reviewed, extended detention Act 2000. That includes visits to custody suites and had been applied only where it was properly justified. reporting annually on the operation of pre-charge The second argument for an independent commissioner detention. Therefore, there are a number of very strong is that the commissioner would ensure that suspects independent safeguards to ensure that suspects are were not ill treated and thus provide communities with properly detained and their welfare is looked after. reassurance. Many of your Lordships will know that Finally, I point out that the role envisaged by this PACE code H already sets out the detailed conditions amendment would be too much for one person. The for detention of suspects. It includes access to medical noble and learned Lord referred to Paddington assistance, legal advice, visits from friends and family, Green as the centre where this would take place. provision for religious observance, exercise, meals and However, over a nine-month period in Northern Ireland, reading materials. All interviews with suspects are the independent commissioner for detained terrorist already recorded. Again, it is worth noting that there suspects conducted 61 visits and interviewed detainees have been no complaints from suspects that PACE on 122 occasions. That involved only one place of code H has not been adhered to or that the conditions detention. We therefore assess that at least five of their detention have not been satisfactory. commissioners would be required to cover the whole Against the arguments in favour of an independent United Kingdom, particularly as suspects are increasingly commissioner for suspects, we also have to look at the likely to be detained outside London. Assuming views of those who deal with the process on the that each commissioner would cost in the region of ground—the police, the prosecutors and those who £50,000 per annum, we estimate that the cost would be deal with the application for detention in our courts. a minimum of £250,000 a year, not the £50,000 figure As I said, we have consulted further all these organisations. that the noble and learned Lord refers to. For these Their strongly held view is that allowing a commissioner reasons, I unfortunately cannot accept this amendment. a role in extension hearings would delay those hearings. That said, there are a number of things that we can The question was raised: why was there police concern? do to provide further reassurance on the detention of One aspect of it is that there is a belief that suspects terrorist suspects. First, we can look at extending the will insist on the commissioner being present, therefore role of independent custody visitors. In particular, the delaying interrogations, briefings, conversations—call role could be extended to provide an annual report to it what you will—while the commissioner is found, the specifically in relation to custody and that they will insist on interviews with the visits that involve the detention of terrorist suspects. It commissioner for reasons that will delay prosecution. may also be possible to extend their role so that they can view recordings of any interviews with a suspect, The period between arrest and charging is one of as is now the case in Northern Ireland. Additional considerable pressure and there are concerns that training could also be given specifically on the detention unannounced visits from the commissioner and the of terrorist suspects before charge. Secondly, we could need to provide him or her with papers again would ensure that the noble Lord, Lord Carlile, was informed delay investigations, achieving the exact opposite of of all arrests under Section 41 of the Terrorism what is intended by the proposal. It is also possible Act 2000. He would then be able to visit any detention that suspects could use the role of the commissioner facility where suspects were held and to view interview to manipulate and control the time available for an tapes. He can already attend any extension hearings investigation. As I said, the police were concerned that he may choose and he can reflect the outcome in about people requesting private interviews or insisting his annual report on the operation of terrorist legislation. on the presence of the commissioner in police interviews. Given that, I therefore ask the noble and learned Lord There are clear and strong operational reasons for not to withdraw his amendment. If that is not possible, I establishing an independent commissioner of the sort am afraid that the Government have no choice but envisaged by the amendment. to resist it. There is also a case for saying that such a commissioner is unnecessary. Suspects’ interests are already looked Lord Lloyd of Berwick: As always, I am grateful to after by independent reviews in three different bodies. the noble Lord for what he has said and for offering It might help if I briefly say what those are. First, the certain alternatives that came to mind. However, I Police Reform Act 2002 already provides for independent have not been persuaded that the amendment will not custody visiting of persons held in police detention, bring the benefits that I outlined and which other including those detained under counterterrorism noble Lords have supported. Therefore, I wish to test legislation. Custody visitors can make random, the opinion of the Committee. 1001 Coroners and Justice Bill[13 JULY 2009] Identity Cards Act 2006 Order 2009 1002

7.28 pm Tope, L. Wallace of Tankerness, L. Tyler, L. Walmsley, B. Division on Amendment 187 Verma, B. Walpole, L. Waddington, L. Contents 145; Not-Contents 103. Wakeham, L. Waverley, V. Amendment 187 agreed. Waldegrave of North Hill, L. Wilcox, B. Wallace of Saltaire, L. Williamson of Horton, L. Division No. 1 CONTENTS NOT CONTENTS Addington, L. Kirkwood of Kirkhope, L. Adams of Craigielea, B. Howarth of Newport, L. Anelay of St Johns, B. Knight of Collingtree, B. Adonis, L. Howells of St. Davids, B. Ashdown of Norton-sub- Lamont of Lerwick, L. Ahmed, L. Hunt of Kings Heath, L. Hamdon, L. Lang of Monkton, L. Alli, L. Janner of Braunstone, L. Astor of Hever, L. Lee of Trafford, L. Amos, B. Jay of Ewelme, L. Attlee, E. Lester of Herne Hill, L. Anderson of Swansea, L. Jordan, L. Barker, B. Lindsay, E. Andrews, B. Judd, L. Bhatia, L. Linklater of Butterstone, B. Archer of Sandwell, L. King of West Bromwich, L. Bilimoria, L. Liverpool, E. Bach, L. Kirkhill, L. Barnett, L. Bonham-Carter of Yarnbury, Livsey of Talgarth, L. Layard, L. Bassam of Brighton, L. B. Lloyd of Berwick, L. [Teller] Lea of Crondall, L. [Teller] Brougham and Vaux, L. Low of Dalston, L. McIntosh of Hudnall, B. Butler-Sloss, B. Luke, L. Berkeley, L. Blackstone, B. Mackenzie of Framwellgate, Cathcart, E. Lyell, L. L. Chadlington, L. McColl of Dulwich, L. Borrie, L. McKenzie of Luton, L. Chalker of Wallasey, B. McNally, L. Bradley, L. Malloch-Brown, L. Colwyn, L. Maddock, B. Brett, L. Condon, L. Marland, L. Brookman, L. Mandelson, L. Cope of Berkeley, L. Marlesford, L. Campbell-Savours, L. Maxton, L. Courtown, E. Mawhinney, L. Carter of Coles, L. Moonie, L. Crathorne, L. Mayhew of Twysden, L. Chester, Bp. Morgan, L. Crickhowell, L. Meacher, B. Clark of Windermere, L. Morgan of Drefelin, B. Denham, L. Miller of Chilthorne Domer, Clinton-Davis, L. Morris of Handsworth, L. Dholakia, L. B. , B. Morris of Yardley, B. Dixon-Smith, L. Montrose, D. Davidson of Glen Clova, L. O’Neill of Clackmannan, L. D’Souza, B. Morris of Bolton, B. Davies of Oldham, L. Patel, L. Dundee, E. Naseby, L. Desai, L. Patel of Blackburn, L. Dykes, L. Neuberger, B. Donoughue, L. Pendry, L. Eden of Winton, L. Neville-Jones, B. Drayson, L. Rea, L. Elliott of Morpeth, L. Northesk, E. Dubs, L. Rendell of Babergh, B. Elton, L. Northover, B. Elder, L. Richard, L. Falkland, V. Norton of Louth, L. Elystan-Morgan, L. Rosser, L. Falkner of Margravine, B. O’Cathain, B. Farrington of Ribbleton, B. Royall of Blaisdon, B. Fearn, L. Onslow, E. Faulkner of Worcester, L. Sheldon, L. Feldman, L. Oppenheim-Barnes, B. Filkin, L. Simon, V. Ferrers, E. Pannick, L. Foster of Bishop Auckland, L. Snape, L. Finlay of Llandaff, B. Plumb, L. Foulkes of Cumnock, L. Soley, L. Fookes, B. Rawlings, B. Gale, B. Taylor of Bolton, B. Forsyth of Drumlean, L. Razzall, L. Giddens, L. Temple-Morris, L. Fowler, L. Reay, L. Golding, B. Thornton, B. Freud, L. Rennard, L. Goldsmith, L. Tomlinson, L. Gardner of Parkes, B. Roberts of Conwy, L. Gordon of Strathblane, L. Tunnicliffe, L. [Teller] Geddes, L. Roberts of Llandudno, L. Gould of Potternewton, B. Turnberg, L. Glenarthur, L. Rodgers of Quarry Bank, L. Graham of Edmonton, L. Wall of New Barnet, B. Glentoran, L. Rotherwick, L. Grantchester, L. Warwick of Undercliffe, B. Goodhart, L. Rowe-Beddoe, L. Grocott, L. Watson of Invergowrie, L. Greenway, L. Scott of Needham Market, B. Harris of Haringey, L. Wedderburn of Charlton, L. Hamilton of Epsom, L. Seccombe, B. [Teller] Hart of Chilton, L. West of Spithead, L. Hamwee, B. Selsdon, L. Haskel, L. Whitaker, B. Hanham, B. Sharples, B. Haworth, L. Whitty, L. Harris of Richmond, B. Shaw of Northstead, L. Henig, B. Wilkins, B. Haskins, L. Sheikh, L. Hilton of Eggardon, B. Woolmer of Leeds, L. Henley, L. Shephard of Northwold, B. Hollis of Heigham, B. Young of Norwood Green, L. Higgins, L. Shrewsbury, E. Hodgson of Astley Abbotts, Shutt of Greetland, L. House resumed. Committee to begin again not before L. Skelmersdale, L. Hooper, B. Steel of Aikwood, L. 8.40 pm. Howard of Rising, L. Stern, B. Howe, E. Stewartby, L. Identity Cards Act 2006 (Information and Howe of Aberavon, L. Stoddart of Swindon, L. Code of Practice on Penalties) Order 2009 Howe of Idlicote, B. Strathclyde, L. Hurd of Westwell, L. Sutherland of Houndwood, L. Motion to Approve Hylton, L. Swinfen, L. James of Blackheath, L. Taylor of Holbeach, L. 7.40 pm Jenkin of Roding, L. Taylor of Warwick, L. Moved By Lord West of Spithead Kilclooney, L. Thomas of Gresford, L. Kimball, L. Thomas of Winchester, B. That the draft order laid before the House on King of Bridgwater, L. Tonge, B. 6 May be approved. 1003 Identity Cards Act 2006 Order 2009[LORDS] Identity Cards Act 2006 Order 2009 1004

Relevant Documents: 14th Report from the Joint Finally, it provides for the code of practice on civil Committee on Statutory Instruments, 19th Report penalties to come into force. A civil penalty regime will from the Merits Committee. be in place to encourage individuals’ compliance with the requirement to notify changes, such as a change of The Parliamentary Under-Secretary of State, Home name or address, that would affect the accuracy of the Office (Lord West of Spithead): My Lords, these register, to surrender an identity card or to report a draft statutory instruments are being made under the card lost or stolen. The code sets out when a civil Identity Cards Act 2006, which received Royal Assent penalty should be issued and how the amount of the in March 2006, and together will enable the Government penalty should be calculated. It explains the processes to deliver on their 2005 election manifesto commitment in an accessible format and is the one document for to introduce identity cards. which we have a legal requirement to consult, although we have in fact carried out a 12-week public consultation We are discussing five draft statutory instruments, on the entire package of secondary legislation. whereas we had laid before the House a package of six separate affirmative statutory instruments. However, The civil penalty scheme will not be punitive or as the announced in a Written Ministerial revenue-raising. If there is good reason for failure to Statement on 30 June, the sixth order, the draft Identity comply or if the requirements of the Act have been Cards Act 2006 (Designation) Order 2009, has now complied with, the usual procedure will be to waive been withdrawn. The explanatory memoranda published any penalty. We do not expect to need to apply the at the same time as each of the statutory instruments civil penalty regime to any great extent. However, refer to this sixth order, and therefore those references without it, there would be a serious gap in our ability should be ignored. The decision to withdraw the to ensure that the register was up to date and reliable. designation order was made so that obtaining an The imposition of civil penalties would not lead to any identity card will now be on an entirely voluntary sort of criminal procedure, so a person on whom a basis—just as it is for for British citizens— penalty was imposed would not receive a criminal including the identity cards that will be issued to record and there would be no possibility of imprisonment airside workers at and London City as a result. The maximum penalty allowed for in the later this year, and as they are issued in where Act is £1,000, which incidentally is the maximum fine the vast majority of the population chooses to carry for failure to update driving licence details with the them. DVLA. However, as the code of practice makes clear, the basic penalty level would be £125. This also means that the concerns of the aviation Secondly, I move on to the draft Identity Cards sector unions have been addressed. This was the key Act 2006 (Provision of Information without Consent) issue which was drawn to the House’s attention by the Regulations. The purpose of these regulations is to Merits of Statutory Instruments Committee in its ensure that information from an individual’s entry on 19th and 20th reports on these statutory instruments. the national identity register can be provided to a As usual, we are very grateful for these reports and limited number of government departments for defined have taken them fully into account. functions, and to specify who can receive information Through a phased commencement of the provisions on behalf of the prescribed individuals in the security of the Identity Cards Act, we will start to issue voluntary and intelligence services, the Serious Organised Crime identity cards to airside workers, but also to ordinary Agency, the police and Her Majesty’s Revenue and people resident in Greater Manchester, starting in the Customs. The Identity Cards Act does not allow autumn, and with a subsequent extension to other information to be provided from the national identity parts of north-west England. register to any private sector organisations without the consent of the individual to whom the information I will briefly run through the purpose of each relates. The regulations extend the list of government statutory instrument. Initially, I shall explain the purposes departments to which information may be provided of the draft Identity Cards Act 2006 (Information and without consent and set out the function. They are Code of Practice on Penalties) Order. First, to confirm primarily based on our experience of providing the identity of and identity card applicants, information from passport records, and they establish this order sets out the government departments and a transparent and clear framework for data provision organisations which may be required to provide from the national identity register. information in support of an identity card application The Identity Cards Act 2006 (Fees) Regulations or to verify information already held on the register. establish a fee of £30 for either a first or a replacement The prescribed organisations listed in the SI were identity card. These regulations also establish a number engaged throughout the 12-week consultation process of cases where the fee is waived. There is a waiver of and are content to be included in the order. the fee where the original card issued to an individual Secondly, the order will enable the police to verify proved to have been faulty or damaged in the the identity of people where there has been a death or manufacturing or issuing process. In addition, we have serious injury but there is no criminal investigation—for agreed to waive the fee for airside workers at Manchester example, such as following a major natural disaster. It and London City airports for an initial 18-month will allow information from an individual’s entry on evaluation period. the national identity register to be provided, without It is also important to note the matters for which we their consent, to the Scottish Crime and Drug are not charging a fee. Any change that does not Enforcement Agency and to the Security Industry require a replacement identity card to be issued, such Authority, as is currently the practice with passports. as a change of address, will be free of charge. 1005 Identity Cards Act 2006 Order 2009[13 JULY 2009] Identity Cards Act 2006 Order 2009 1006

I turn now to the draft Identity Cards Act 2006 such an event has occurred. Where the change relates (Prescribed Information) Regulations 2009. These set to a change of information recorded on the card itself, out the information that will be printed on the face of such as a change of name, the notification process is the identity card and held electronically in an encrypted the same as that necessary to get a replacement card. form on the chip. There is a statutory requirement in However, to report a lost or stolen card, or changes the Identity Cards Act for some information to be of information that do not relate to the information encrypted as a safeguard. on the card, such as a change of address, the change The regulations make provision for a national identity can be made by calling a telephone service to be card that will be issued to British citizens and British established by the Identity & Passport Service, during subjects with a right of abode. As this card will include which the individual will be asked for their “shared the holder’s nationality, it will be valid as a travel secret”. Finally, these regulations also set the validity document within Europe. The second type of card, the period of the identity card which again, in line with identification card, will be issued to European economic passports, will be 10 years. area nationals, including Irish nationals, who are resident I trust that this explanation has clarified the purpose in the United Kingdom and it will not include nationality. of these five statutory instruments and I commend As a result, it will not be a valid travel document. It them to the House. I will of course be very happy now can therefore also be issued to British citizens who are to deal with any points or questions that noble Lords not entitled to be issued with a travel document—for might have. example, people such as drug traffickers on whom the court has put a limitation or travel restriction. Baroness Hanham: My Lords, I thank the Minister As listed in these regulations, the information on for introducing these five statutory instruments, which both card variants will be very similar to that on the I shall deal with now. I have a Motion to Resolve for personal details page of the passport. The card will discussion later on. also incorporate a chip which will include the same This is a slightly unreal debate. The Minister said information as recorded on the front of the card, that these statutory instruments, which implement the along with two images and a digitised arrangements for the provision of identity cards, were image of the holder. Additional security features will due to have come to this House several weeks ago, but also be included in the chip, such as cryptographic were delayed on the appointment of the new Home keys and certificates. These will provide protection for Secretary for his reconsideration. I think we all hoped the information on the card, as well as prevent the that he would reconsider them out of existence. recorded being read by those unauthorised On 30 June, in a Written Statement, the result of his to do so. This is all in line with specifications for cogitations was announced. It was that only the intention biometric travel documents recommended by the to make airside workers have compulsory ID cards in International Civil Aviation Organisation. As was made addition to those already required by their employers clear as part of the public consultation, the holder’s was to be changed from compulsory to voluntary. It address and national identity registration number will was evident that the concerns of the unions, which had not appear on these cards. been against compulsion, had weighed heavily on the The Identity Cards Act 2006 (Application and Issue Home Secretary and he had thus given in. Hence of ID Card and Notification of Changes) Regulations the departure of one of the six statutory instruments—the 2009 outline how an individual can apply for an Identity Cards Act 2006 (Designation) Order 2009 identity card and what information must accompany from those we are considering today. their application during the initial phase of the National This has blown a hole in the Government’s strategy Identity Service. The application form will be very for ultimately having compulsory identity cards and similar to today’s passport. At a National Identity has made it inevitable that they will now be issued to Service customer centre, applicants will be able to those who apply for them, apart from foreign nationals, record their , have their photograph taken and those who want them. That is a far cry from the and register “shared secrets”. These act as a password original intention, and there must now be a serious that will allow them to report a lost or stolen card or a question as to the level of take-up there will be. change of address over the telephone once they are The rationale for introducing identity cards for all registered. citizens has had a slipping genesis. When first promoted The form will request some basic personal information in 2005 it was to prevent terrorism. Then when it about the applicant, such as name, address, address became obvious that it most certainly would not do history, gender, nationality, date and place of birth, that, the script changed to one of helping prevent national insurance number, a contact telephone number identity fraud and to help prove eligibility for social and signature, as well as the name of a referee who has security purposes. It is now to enable citizens to travel agreed to vouch for their identity, similar to the in Europe without a passport and, as a Minister in the countersignatory for a passport, and information that other place said, to provide us all with a secure and confirms that they are entitled to a travel document. reliable means of proving our identity. So, we are some When an applicant does not already hold a valid way from where we started. Why should we want to do , there will be some additional that with a government-inspired ID card when there requirements to verify their nationality.These regulations are many other ways that citizens can prove who also introduce a requirement to update key personal they are. details on the register within three months of a change The question is whether there is any justification to and to report a lost, stolen or damaged identity card enter on another expensive government-inspired and within a month of the cardholder being aware that controlled venture which will involve yet another national 1007 Identity Cards Act 2006 Order 2009[LORDS] Identity Cards Act 2006 Order 2009 1008

[BARONESS HANHAM] voluntary scheme? The provisions in this order make database with all the hazards that that involves—of it very clear that this process is not directed towards the Government not having the finest record regarding enabling individuals to identify themselves, but a move their databases. We do not believe that there is such a by the Government to hold a considerable amount of justification. information on each individual who is misguided enough My honourable friend Chris Grayling has written to opt to have an ID card. Such information can then, to all the contractors involved in, or bidding for, the under the regulations, be passed to other bodies. Indeed, work to implement this strategy, putting them on under the Identity Cards Act 2006 (Provision of notice that if the Conservatives win power at the Information without Consent) Regulations 2009, that forthcoming general election, this entire scheme will information can be passed on without the individuals be cancelled. It is clear that the savings on identity consent. Can the Minister tell us why, under those cards alone will be very significant. The detail in the circumstances, anyone would risk applying to hold five remaining statutory instruments raises many questions. a card—especially someone who had something to Turning to them not in the order in which the Minister hide? What safeguards will be in place to prevent has dealt with them, just to make it easier for everybody, any information between agencies and government I refer first to the fees regulations 2009, which introduce departments going AWOL or falling into the wrong hands? a £30 fee for each identity card. Can the Minister The orders and provisions have not changed since explain, perhaps better than the Minister at the other they were printed, prior to their being withdrawn for end, how that sum was arrived at? Is it based on the further consideration. They are still couched in terms baseless case of known cost of the number of cards of a mandatory identity card scheme. Neither the that will be issued annually? If so, when might the words nor the provisions are appropriate to something scheme be expected to break even? Does the Minister that is now purely voluntary and should be for the agree that the estimated costs for identity cards have benefit of the individual, rather than of the Government. already risen by more than £160 million. The two remaining orders—on the application for The current card production contract, which was and issue of ID cards, and the notification of changes entered into on the policy of a fast roll into compulsory regulations and prescribed information—give details cards has, according to the Minister responsible for of the reams of information that will be required when borders and immigration has capacity to issue 250,000 applying for documents and the information that will cards annually. As this is now permanently a voluntary be put on the card. The Minister said that some of scheme, take-up simply cannot be known, but the fee that will be encrypted. Can he tell us which bits of will stay at £30 for the next two years. Will the Minister information will be encrypted? That was not made tell us whether it is likely that, as with passports, the clear in the other place. costs will spiral thereafter? Having read all the orders, the one thing that strikes I have a few further questions on this regulation. one forcefully is that an ID card will be of no greater What is the contracted cost for the ID card scheme value than a , which will indeed be alone, as opposed to a joint one with biometric passports? of some value. In order to travel further than the Is it correct that any airside worker who decides to borders of Europe, one will still have to have a biometric have an identity card will be issued with one free of passport. In applying for an identity card, one is charge, and to how many other categories of people giving government departments and bodies a carte will free cards apply? Is it intended to issue free cards blanche to hold and pass between them personal for all the lucky over-75s, and young people? If so, information about those who have cards. What is now when will the orders be laid to that effect, as the being proposed is a complete pig-in-a-poke in comparison regulations on fees today do not do that? Why would to where this all started. the over-16s want another identity card to identify I have not touched on the register, which will also have themselves when they can already access one to prove to be maintained, as I know that the noble Baroness, their age? Lady Miller, has tabled an amendment to Motion Moving on to the Identity Cards Act 2006 (Information which, I believe, will draw attention to the dangers of and Code of Practice on Penalties) Order 2009, the the register, so I will leave it to her to make the points first question that springs to mind concerns the list of about that, but I know that we will agree on them. specified persons from whom the Secretary of State The scheme, if it ever had a purpose, has lost it now. can obtain information to verify information for an The Government have, to all intents and purposes, ID card or a request for inclusion on the register. Will given up with it, and the opposition parties are committed he say what possible role a credit agency should have to seeing that any work on implementation will be in that regard? Further, what reason is there for including curtailed once the Government are in opposition. details of the referee on the register? Presumably, such My observations were on the order. I shall move the a referee is marked as for a passport—a magistrate or Motion standing in my name later. some other person of integrity or position. Once their bona fides have been established, why should Baroness Miller of Chilthorne Domer: My Lords, their name be kept on the register? Why indeed, would we on these Benches have consistently opposed the they want to act as a referee if their details are held introduction of the ID card scheme. We have never after verification? seen it as likely to be effective against terrorism. We There will now be a civil offence for failure to have not seen it as solving any problems, but as raising amend information such as an address, and a fine. some new ones, and as a very expensive thing to Does that apply as much to the referee as to the introduce when the money could be so much better applicant? What room is there for a civil offence in a spent. 1009 Identity Cards Act 2006 Order 2009[13 JULY 2009] Identity Cards Act 2006 Order 2009 1010

Personally, I associate these Benches with the criticisms circumstances. It was never envisaged that it should be of the scheme made by the noble Baroness, Lady shared between departments, and it does not accumulate Hanham. Some of her specific questions are ones that over time. The NIR would be much more active, I would also like to ask the Minister—especially about accessed by all sorts of public service deliverers. The the position of referees. If they get the information Minister has given some details of how it would be wrong, what is the penalty on them? accessed, but that access is recorded as an audit trail of The part of the scheme on which I want to concentrate the number and type of organisations who have accessed my remarks this evening is what lies behind the ID someone’s record, which actually creates a profile of a cards, which are, after all, just bits of plastic—albeit person’s life. As Dr Palmer said in the other place: with biometric information on them. What lies behind “The original reason why the audit trail was to be included the ID cards is the national identity register. In that was to protect people and give them the reassurance that they regard, I want to raise three points. First, is the scheme could see which organisations had been looking at their data. If actually voluntary? Secondly, the Government tell us we are serious about that ... we should give the individual the power either to dispense with the audit trail or to edit it”.—[Official that the national identity register is not substantially Report, Commons, 6/7/09; col. 788.]. different from the passport database, but I believe that Do the Government intend to respond to that suggestion, it is. Thirdly, the Government claim that the national which came from their Benches? identity register will be useful. For what? First, everyone who applies for any designated Then there is the provision of information without document must register personal details on the NIR consent of regulations. In the Coroners and Justice database, according to Section 5(2) of the Identity Bill, we have just thrown out—or the Government Cards Act 2006, which mentions designated documents. withdrew, after opposition in another place—the The fact is, therefore, that for the purposes of everyday information-sharing clause. We feel that this provision living, the database will be compulsory for anyone brings back wide-ranging interdepartmental information- who wants a designated document. The first designated sharing in a new guise. In other words, the NIR can document will be a passport. Then, any official licence, create a detailed profile of every citizen accessed by a registration certificate or permit can be designated. range of agencies. That includes many documents used in everyday life, What is the register meant to do? According to the such as driving licences. Can the Minister confirm Home Office website, it will help to protect people which documents the Government intend to designate? from identity fraud and theft and to ensure that people If designation is widespread, the idea that the scheme are who they say they are. Those are big claims, but it will be voluntary is completely false. People will be is not clear whether either of them is achievable. The unable to go about their lives as normal without team at the LSE, including top privacy experts such as registration on the database. That problem is increased Simon Davies, investigated the Government’s claims by the fact that there is no mechanism for being about savings on identity fraud and found that they removed from the NIR once you are on it. So it is not could not be backed up. Prominent technology experts voluntary. such as Jerry Fishenden, the national technology officer The Minister talked about fines. He said that the at Microsoft, have warned for a long time that the Government do not intend to be punitive, but it will be scheme could trigger massive identity fraud. It may—we interesting to see how that operates when it comes in. believe that it will—create far more problems than it If you forget to notify authorities of your change of will solve. address, a £1000 fine, which is at the maximum, sounds Finally, we return to cost. The Government say that pretty punitive. the scheme will cost about £5 billion over the next In the debate on identity cards in the other place 10 years. The LSE estimated that it would be more like last Monday, the Minister suggested that the NIR is £20 billion, but we feel that the real cost, besides all the not much different from the passport database, but it money, will be to our privacy. The national ID scheme is clear that it is a completely different type of database is not voluntary, and the database is the clearest indication in two ways. The first is in what is stored. At the of that. After the noble Baroness, Lady Hanham, has moment, just a small amount of personal information moved her Motion, I will move mine. is stored on the UK Passport Service database: name, age, date of birth, place of birth and nationality. Lord Roberts of Llandudno: My Lords, linking the Schedule 1 to the ID cards Act sets out 50 pieces of identity card with the passport interview offices clearly information—the Minister has listed some of them—that shows that a network is being set up with the long-term the NIR can hold on each citizen, in addition to aim of being used for ID purposes and building a fingerprints and facial scans, and current and past UK national database. We know that every new passport and overseas places of residence throughout the lives applicant over 16 years of age will have a face-to-face of anyone on it. Those are all included. The legislation interview. We know that until about 10 months ago—I on the register states that further information can be am waiting for the Government’s updated figures— added. There is also the potential for links to other 216,000 people had gone through the personal passport government databases. The amount that will be stored interview procedure. Not a single one was refused a on the NIR is completely different from what is stored passport. If you add that to the estimate of about now. It would be helpful if the Minister agreed with 600,000 people a year who apply for passports, probably me on that point. half a million people who applied for a passport had a The second difference concerns what it will be used face-to-face interview. It will be interesting to see for. The passport database is a passive or inert database. exactly how many of these people have been accepted Its data is accessible to the police in very limited and whether any have been refused. 1011 Identity Cards Act 2006 Order 2009[LORDS] Identity Cards Act 2006 Order 2009 1012

[LORD ROBERTS OF LLANDUDNO] database being accessed by unauthorised persons or We know that the interviews were established for by a disk being lost in transmission from one place to this network. In an Answer to a Written Question last another? I entirely understand the case for a compulsory December, the Minister in the other place said: ID card system, although I disagree with it, but surely “we will build upon existing practice for interviewing first time a voluntary ID card makes no more sense than a adult passport applicants”.—[Official Report, Commons, 15/12/08; voluntary income tax or a voluntary sentence of col. 518W.] imprisonment. Clearly the passport interview offices were part of the network to be set up to provide the necessary Earl Ferrers: My Lords, I should be grateful if the administration for identity cards. I think that 68 out of Minister could help me out of a fog. I am sure that the 69 offices are already operational and that about when he was in the Navy he got into intense fogs and 468 officers are in place. We also know that these managed to find his way out of them. I find the whole interviews are going ahead day by day. If not one business of identity cards enormously complicated. applicant has been refused, does that make the scheme As my noble friend Lady Hanham said, you can prove a white elephant? If the scheme is not to proceed, does who you are quite easily in lots of different ways, that mean that we have spent scores of millions of including credit cards, driving licences and so forth. pounds on a scheme that is of no use whatever? Will Therefore, why do we have to have another one? That the Minister enlighten us as to whether the passport seems to me to be a fairly fundamental thing. interview scheme is to continue—as I said, the long-term aim was to provide procedures for the identity card—if I think that the Minister said that it will not be identity cards are not going ahead? What has been the compulsory and that it will be voluntary. I agree with cost? Perhaps the Minister will be able to give me the the noble Lord, Lord Pannick. What is the point of updated figures on these 68 offices. that? About 20 years ago, I had the privilege of being an ornament in the Home Office. At that time a lot of As part of the scheme, the 30 or 40 remote places people said that we should have voluntary identity that did not really justify a full-time, or even a part-time, cards. I said that I could not see any point in it being office were to have video links. If biometrics such as voluntary because all it would mean was that all the fingerprints are to be collected, will the Minister say goodies would get the voluntary card and all the how you can process fingerprints by video link? Not baddies would not bother. Therefore, from the point only are ID cards ill thought out but the very structure of view of catching the baddies, there would be no on which they are to be based does not meet the purpose. demands of biometrics in any way. Will the Minister The same applies with this: what is the point of it say how many of these remote video links have been being voluntary? Why should people be obliged to buy established and are operational? The whole scheme is something which will not be of much help to them, a condemnation of an ill thought out, half-baked unless you come to a point where you say, “If you have white elephant. not got an ID card, you cannot have a passport, a driving licence or whatever else”? But in that case it 8.15 pm becomes compulsory. Will the Minister be good enough Lord Selsdon: My Lords, I have to admit that I have to explain whether it is voluntary or compulsory? If spoken more on identity cards in my time in your so, what is the reason for saying which it is? Lordships’ House than on any other subject except I fear also that this will create more penalties. The trying to save the shipbuilding industry from Government—bless their heart—think that the best nationalisation. I will not inflict what I have said on way to run the country now is to create more penalties the Minister, but I can send it to him; it is all in the for everything that you do. We really do not want to Library. I have a very simple question for him. As have a new identity card produced and have a range of someone who has had an identity crisis all his life, I penalties, including one whereby if you forget to say have to ask myself—and I have been asked—“What is you have changed your house, you get done for £1,000 your name? Nomen nomini”. What is the Minister’s or whatever it is. In fact, I thought that it was £5,000, name, what is his full name, and what is his legal so I suppose we can be grateful for small mercies. name? I doubt whether one is entitled to have a legal The noble Baroness, Lady Miller, said that this is name in the United Kingdom, and in my identity crisis supposed to protect the individual. It rather looks as if I have suffered from having a long name and having it is giving more information to the Government, 25 numbers in my alphanumeric code on my passport. which is a major worry because they want more I thought the best thing that I could do would be to information on everything and we are rapidly becoming take a colour photograph of my passport. I was then a police state. The Minister should heed this. It is not told that that is not legal in this country, so someone just a passing flippant remark. It is a fact that the else did it for me to prove who I was. If the Minister Government want more information and if you do not will answer my simple question, I will feel very happy. provide it, you are a baddie and you will get caught for it. Lord Pannick: My Lords, I agree with the powerful My noble friend Lord Selsdon was interested in case made by the noble Baronesses, Lady Hanham knowing the names of people. Perhaps I may offer the and Lady Miller. If obtaining an identity card is to be Minister this advice: again, when I was in the Home entirely voluntary, and if the purposes of the card are Office, we had problems over the new computerised in essence the same as the purposes of a passport, how passport. I said, “My name is Ferrers and therefore it can the Government begin to justify the cost that it must say Ferrers”. I was told, “No, no, the computer will involve and the real risk of the contents of the does not work that way. It has got to have Shirley 1013 Identity Cards Act 2006 Order 2009[13 JULY 2009] Identity Cards Act 2006 Order 2009 1014 written on it”. I said, “If I go to a place overseas and have little to add to what has already been said but I ask to cash a cheque and I am asked my name— invite the Minister to comment on three points. First, Ferrers—and my card says Shirley, that will not marry can he confirm that the ITAO standard requires no up”. I was told, “But then it will say on the bottom, if more than a digitised impression of a biometric you look at page 13A it will say that the proper name fingerprint—that is to say, that the whole of the ID of the person is Earl Ferrers”. It took two years to get Cards Bill is a glorious piece of gold plating? that sorted out, but I warn the Minister that he is Secondly, can he comment on the way in which the opening a big elephant trap. grandiose ambitions of the source Act have been substantially scaled back? I have in mind, in particular, Lord Marlesford: My Lords, I find the introduction the complete abandonment of the principle of a clean of these orders is a sad occasion because they reveal database, which is very important to the reliability of once again the unreconstructed and, certainly, the data that sit on it, and of the collection and unenlightened, muddled thinking of the government recording of iris and facial biometrics. At the very machine on this issue. I will put it as simply as I least, this has to call into question the utility of the possibly can in the hope that even at this late stage the whole scheme which, to be fair, was decidedly suspect Government might take on only what is really needed. in the first instance in any event for technological I recognise that what I am going to say is not universally reasons. agreed. Thirdly, would the noble Lord care to comment on Ever since I have been a Member of your Lordships’ why it is deliberately legislated to entrench inequity in House, I have believed that it is necessary to have a fees? I cannot see why any individual would wish to national identity database, which should include apply for an ID card but, for those who do, why is it biometrics. I have always been opposed to identity that airside workers at Manchester and London City cards for all sorts of reasons, including, first, the fact , in these straitened , are exempt that it is culturally unattractive for people to have to from fees, whereas the rest of those in the pilot area carry cards; secondly, they are pretty useless; and, are expected to pay £30? I look forward to the Minister’s thirdly, if they include biometric details they are dangerous answers. because if the object of the card is to identify a particular person, you can be sure that any serious Lord Elton: My Lords, my remarks are not really criminal or terrorist will ensure that the biometrics on directed at the Minister at the Dispatch Box but at the the card coincide with his or her own biometrics. That Chancellor of the Exchequer. This scheme is hugely is technologically possible and I would not accept the unpopular, hugely expensive and will quite possibly be Government saying that it is not. On the other hand, very short-lived. The Government are desperate to cap if there is a central identity register database and it their expenditure. They are already spending money becomes necessary to discover whether someone is that they do not have. Should not this scheme be the who they say they are, the biometrics of that person first one to be axed? can be taken and they can be compared with the biometrics on the central national identity base. I 8.30 pm therefore reject the need for any identity card. Lord West of Spithead: My Lords, I thank noble However, we have—and have had for generations—a Lords for the various important points they have need for passports, which have, for international reasons, raised and for the 47 questions that have been asked. I become more and more complicated. I say to the shall try my best to answer them. noble Lord and to the Government that any purpose for which an identity card under these orders is alleged I certainly will be getting an identity card. On my to be necessary can be met by a passport. Let those way back here in a car tonight, I started counting all people who have particular jobs, posts or accesses, and the various documents that I have to have to say who I for whom it is necessary that the government machine am. I thought about my last visit to a prison to see should be able to ensure their identity, be issued with a some prisoners and what I was asked for there; about passport—if necessary, as is proposed under this scheme, my last visit to Buckingham Palace, where I was asked with a free passport. We would not then have a new for all kinds of things, including a passport, a photo national identity database. I agree with the noble and God knows what; and about my last visit to an Baroness from the Liberal Democrat Front Bench that event at St Paul’s, where I was asked to prove my if there is to be a national identity database it should identity with a whole raft of different things. I thought be the same one as the national identity passport base; to myself, “How jolly nice it will be to have one simple we do not need another one. It should be a national document to do this”. identity database, neither more nor less, and should The National Identity Service is a major undertaking not be used to store other information. If the Government which will eventually provide us with a secure and were to focus their thinking in the direction that I have reliable means of proving our identity whenever we suggested, they could achieve both the needs of fighting wish to do so. There will be significant benefits to crime and terrorism—and, indeed, prevent fraud, which individuals from holding an ID card. There will not be is a huge cost to the taxpayer that we can ill afford at a plethora of different ways of having to prove who the present time—without having an identity card. you are. As to whether this was introduced for the They would then save all the costs involved in that. purposes of counterterrorism, I have been in government for only two years, but when I was asked about this in The Earl of Northesk: My Lords, I declare an my first week, I said that its prime role was not as a interest as an unpaid adviser to the Enterprise Privacy counterterrorist measure but that it would stop people Group, and 80/20 Thinking. I having lots of different identities. We know very well 1015 Identity Cards Act 2006 Order 2009[LORDS] Identity Cards Act 2006 Order 2009 1016

[LORD WEST OF SPITHEAD] Lord Pannick: My Lords, have the Government that al-Qaeda, for example, has at least 30 identities done any research on the likely take-up of a voluntary for their people. They will not be able to do this when card in this country? biometrics are attached. It will be the most convenient, secure and, at £30, the most affordable way of asserting Lord West of Spithead: My Lords, I am not aware one’s identity in everyday life. They will be valid for of what that will be. I do not think that we have done travel throughout the instead any specific research on it. I am just quoting what has of a British passport, just as our neighbours in Europe happened on the continent. are able to use their identity cards to travel here. I am sure that those in this House who have gone through the various controls will have noticed lots of our The Earl of Northesk: My Lords, I have it in mind colleagues in the European Union using their ID card that the latest cost summary projected over the 10-year to do exactly that—to go backwards and forwards. period from when it was issued is that 95 million ID cards would be issued. That projection is whatever The regulations are based on the current tried, that projection is, but it is something like half as much tested and familiar arrangements for application for a again of the population of the UK. Therefore, what passport under the royal prerogative. The process for faith can we have in costs if they are based on a applying the information on the identity card and the scenario where one and a half times the population of data-sharing arrangements match very closely those the UK will end up being issued with ID cards? already in place for passports. I understand the concern that introducing these cards is a major step. It is a major step; however, we will be appointing someone to Lord West of Spithead: My Lords, I do not recognise the new post of identity commissioner to reassure the those statistics, just as I have not recognised a number public that the way in which the National Identity of the other statistics. The cost of the service for a Service is operated not only is lawful but also meets rolling 10-year period is reported to Parliament on a the needs of the public. six-monthly basis. The latest estimated cost of the service for 10 years is £4.945 billion. That sum will be Earl Ferrers: My Lords, why do the Government covered by the cost of the cards themselves over the want to introduce a new identity commissioner? That 10-year period. The estimated cost of issuing identity is just another extra person, is it not? cards to foreign nationals is £379 million in the same period. Lord West of Spithead: My Lords, to ensure the safety and security of these data, as a number of noble Lord Higgins: My Lords, I am sorry to interrupt the Lords mentioned. We have said a number of times Minister’s argument, but am I right in thinking that that in the past data have not been as well looked after his response to the intervention by the noble Lord, as they should have been. Lots of data are needed to Lord Pannick, was that the Government have carried run life nowadays, I am afraid, and there is no doubt out absolutely no investigation into the extent to which that we are better at looking after them than we have a voluntary scheme might be taken up? In all events, if been over the past few years, and we need to get better. they have, he is not aware of it. We cannot just ignore these data; we need them—

Earl Ferrers: My Lords, I hesitate to interrupt the Lord West of Spithead: My Lords, I am not aware noble Lord again, but he said that he is introducing of a specific poll having been done, but our assessment the post of identity commissioner to make sure that is that 60 per cent of the population have said that everything works right. He cannot do it on his own, so they support the introduction of identity cards and I presumably there will be a plethora of people underneath am sure that that is the sort of number that we are him, and that means more bureaucracy. looking at. However, there has not been a specific, Gallup-type poll on that statistic. Lord West of Spithead: My Lords, there will be a I go back to costs, where there is a lot of loose talk mechanism to make sure that the database is run about people saving huge amounts of money. The correctly. There will be an independent person to setting-up costs so far are £245 million. That would be make sure that things are being done properly, which I lost if we decided not to go ahead with the scheme. We think is appropriate. If we were not doing it, I imagine will not make some vast saving. If people have worked that I would be standing here and people would be on the basis that this is going to bail out something in saying, “Why the hell haven’t we got someone doing budgetary terms, they have a rude awakening coming this?”, so it makes sense. to them. The debates on cost are very interesting. There is a The debate has often overlooked the corresponding lot of loose talk about how much money can be saved benefits of the service to the wider economy. They by not doing this. If anyone’s plans are made on the have not been addressed at all. The impact assessment, basis that the amount of money this is in theory which was published with this legislation, forecast costing will suddenly be available for spending to bail a current best estimate of net economic benefits of out some other issue, they are living in cloud-cuckoo-land. £6 billion arising for the National Identity Service. The noble Baroness, Lady Hanham, mentioned take-up. This was discussed in relation to the Merits Committee I say again that these cards are voluntary in France, reports, in which the figures were slightly larger, but I where there is a huge take-up because of the value and think that £6 billion is more accurate over a 30-year ease of using them. There will be a large take-up here, period. That is to say nothing of the non-monetised Iamsure. benefits, such as better assurance of the identities 1017 Identity Cards Act 2006 Order 2009[13 JULY 2009] Identity Cards Act 2006 Order 2009 1018 of those working in sensitive positions, enhancing such as security requirements will be set out in an immigration control and contributing to wider public MoU or the contract and the scheme will be overseen security. by an independent commissioner. Governments are often accused of being short-sighted The noble Baroness said that the provisions were and short-termist, but with the national identity scheme not suitable for a voluntary scheme. The provisions for we are building a better and more secure identity applying for a voluntary identity card are based on, scheme that will have real benefits for individuals, for and will be very similar to, the existing procedures for society as a whole and for the United Kingdom economy. applying for a passport. In short, these statutory instruments are supported by On encryption, the information to be encrypted is some useful benefits when one looks at how they can outlined in Regulation 5 of the prescribed information be utilised in the long term, particularly in the way in regulations. It is the information held on the face of which we are improving how government runs. There the card—name, date of birth, gender, nationality should be no doubt that this is a significant undertaking where that is recorded on the card, facial image, expiry and a long-term investment, but it is one that is worth date and ID card number. In addition, two images of making. Any suggestion that we should cut the plans fingerprints will be recorded on the chip. The proposals for identity cards would save very little but would align with the requirements of the International Civil waste much investment that we have already made and Aviation Organisation, to which I think one speaker the benefits that we expect in the longer term. referred. The noble Baroness, Lady Hanham, asked whether the purpose of identity cards has changed. The Identity The noble Baroness asked why the details of referees Cards Act sets out the statutory purposes of identity have to be held. As now with passport applications, it cards as being, is right that we hold information on referees in case we find that there has been a false or bogus application. “the provision of a convenient method for such individuals to prove registrable facts about themselves … and … the provision Furthermore, fingerprints are not required from the of a secure and reliable method for registrable facts about such referee—I think that the noble Baroness mentioned individuals to be ascertained or verified wherever that is necessary that. in the public interest”. The noble Baroness, Lady Miller, referred to the These were the statutory purposes of the scheme passive nature of the passport database. Provision of established in 2006 and I believe that they remain the information between departments will be no different same today. from what occurs for passport records, to support The noble Baroness asked when identity cards will public protection and service delivery. The passport break even. That clearly depends on the take-up. A lot database also, quite naturally, holds information on of the cost relates to the central database, which will when someone changes their name or other details on be required for passports anyway. Going down the their passport. other route will not be a large saving. She also asked The noble Baroness also asked why we need such why we need an ID card when other forms of identification wide-ranging data-sharing powers. They are no more are available. There is no uniform standard for proving wide-ranging than existing powers for passports and ID. It is remarkable how many documents one has and there is no doubt that, in areas such as prevention can carry. Having something simple and straightforward and detection of crime or helping to combat illegal such as this will be very attractive to people and immigration, it is in the public interest to share information I believe that they will like having it, because they held on the national identity register. want it. The noble Baroness asked what information the Baroness Hanham: My Lords, would the Minister register will hold. The information that can be held on agree that we have a sort of continental drift in this ID the register is defined by category of registrable facts, card system? We are now justifying it on the basis that defined in Section 1 of the Act. For example, there is it will be really convenient and all the rest of it, but core biographical information—I have mentioned already that is not where we started. The Minister may say name, address, place and date of birth, gender et that that was where he started, but in 2005 the whole cetera—unique biometric records such as fingerprints, rationale for identity cards was that they would prevent photographs and signature, administrative data, which terrorism. We are a long way from there. will be a record of past core biographic details listed when you registered, and a record of your application. Lord West of Spithead: My Lords, the noble Baroness Most of the 50 items of data referred to by the noble refers to a period before I was here, but I said very Baroness are administrative and not personal. shortly after my appearance in this House that that The noble Lord, Lord Roberts, asked about passport was not the major driver of the scheme. I believe, interviews. The whole purpose of the interview for a however, that being able to prove one’s identity is first-time passport is to deter bogus or multiple extremely valuable—I think in terms of the cybersecurity applications for passports. In many other countries in strategy and the risks to people’s identity through that the world, a personal interview is expected before a medium. It is another area where people like to be able passport is issued. We believe it to be a safer and more to prove their identity straightforwardly and easily. secure method than relying on postal applications. The noble Baroness asked what safeguards are in The fact that few bogus applications have been picked place to protect the data. The data-holding organisation up does not necessarily mean that the system is not must be approved by Parliament or by a Secretary of working; it means that people are wary when they are State. Without the consent regulations set out, there making those applications. The noble Lord also asked are a number of safeguards. Additional obligations why we should have the interviews at all. No one has 1019 Identity Cards Act 2006 Order 2009[LORDS] Identity Cards Act 2006 Order 2009 1020

[LORD WEST OF SPITHEAD] person’s family name but not the name by which he is been denied a passport because the interviews are known. I think that the Minister will run into a lot of pointless; they are a part of the process. As I said, the trouble over that. The right name must be put on fact that no one has been arrested does not prove that the front. they are not having an impact in deterring people from fraud. Lord West of Spithead: My Lords, I shall get back 8.45 pm to the noble Earl on that issue. I shall investigate the Shirley issue in a little more detail to find out exactly The noble Earl, Lord Northesk, talked about the what the position is. figure of 95 million ID cards. There are 96.7 million passports and identity cards; many may opt for both. I The noble Earl, Lord Northesk, asked why we were am talking about issues of those, as in places such as giving ID cards free to airside workers but not to the France and , where they are used. The numbers general public. The identity cards for airside workers also need to account for replacement cards, lost cards will be issued at no cost for the first 18 months, while and changes of name. That is the sort of number of we evaluate the cards at Manchester and London City applications that is going through. airports. We believe that there are valuable benefits to be gained by issuing the cards; as I have said, they will As for the remote video links, the video interview provide a single, consistent means of proving identity. service started this year and will still be in place to We believe that waiving the fee will enable us to conduct interviews to help to verify identify for evaluate the benefits that the cards bring. These process passports. The noble Baroness, Lady Miller, asked improvements will also benefit the rest of the aviation what documents would be designated; no document industry. can be designated without the approval of both Houses of Parliament. The Government are considering designating passports and immigration documents, The Earl of Northesk: My Lords, I apologise to the but not in the immediate future. Minister, but would he confirm that in the first instance the fees will be exempt simply for airside workers at The noble Baroness, Lady Hanham, asked when we Manchester and London City airports, rather than were bringing forward regulations about the over-75s. across the piece? We are looking at options that could allow those aged over 75 to receive ID cards free of charge, but that will Lord West of Spithead: My Lords, as I understand not form part of the initial few months of the rollout. it, that is correct. If I am wrong on that, I will get back However, it is being looked at and in due course a to the noble Earl in writing. further set of fees regulations may be laid before the House to submit proposals for parliamentary approval. I have quite a large number of other answers here. I The noble Baroness, Lady Miller, touched on why think that maybe the best thing would be for me to the individual does not have the power to edit his audit look at these with the Box and write individually to trail. There is a statutory requirement to record any those involved. Time is marching on and we might slip instance when information from an individual has well beyond the first watch. been recorded on the register, which will be provided only to prescribed government departments or those Lord Marlesford: My Lords, will the Minister kindly named in the Act for the prevention and detection of answer my fundamental point? If we have a perfectly serious crime. The power to edit a record may undermine good voluntary system of passports, which has its own those law enforcement efforts. database that is being developed to be more efficient and effective with biometrics and so on, why do we I am delighted that the noble Lord, Lord Selsdon, also need a voluntary system of identity cards with a is supporting the ship-building industry. He asked new database? It is a very simple question. what a legal name was. For the purposes of identity assurance, it is important that each person has a name used for official purposes; an individual can choose Lord West of Spithead: My Lords, these are cheaper that name but the national identity register will lock and handier to carry. My youngsters have now grown that name to a set of biometrics, including fingerprints. up, but when they were in their mid-teens I would That means that a person cannot have multiple identities much rather that they had had an identity card each. or assume the identity of another person. That point They can easily tell someone that they have lost them was raised by the noble Lord, Lord Marlesford, about by phoning through. We cannot yet do that with being able to change biometrics. We believe that it is passports; maybe in the future we will be able to. I impossible to change the biometrics on the card. We think that there is a huge utility to them. I will have no would know that it had been done, but even if it was difficulty in having one. It will be jolly useful and I not detected and the person who had the card had a look forward to having it in my wallet. I think that false identity, he would certainly have no other identity there will be an awful lot of people who will want to or we would know that he was trying to have one. do that and will find them extremely useful. The noble Earl, Lord Ferrers, also talked about a Perhaps I may write to individuals. I believe that name on a card. I can reassure him that there will be a these five draft statutory instruments are essential for space on the reverse of the identity card for titles or the introduction of the card. I believe that having the any other name legitimately used by the holder. card is a good thing and that it will be very useful for people and that in time we will look back on this and Earl Ferrers: My Lords, the Minister says that the think, “My goodness me, why was there all this fuss?”. name will be on the reverse of the identity card. In Research has shown a consistent level of public support other words, on the front of the card will be the for this—60 per cent. I therefore commend these statutory 1021 Identity Cards Act 2006 Order 2009[13 JULY 2009] Identity Cards Act 2006 Regs 2009 1022 instruments to your Lordships’ House and I trust that the explanation that I have given has reassured the Motion noble Baroness opposite. Moved by Baroness Hanham Motion agreed. That this House regrets the Government’s decision to proceed with the draft Identity Cards Act 2006 (Information and Code of Practice on Penalties) Identity Cards Act 2006 (Provision of Order 2009, the draft Identity Cards Act 2006 Information without Consent) Regulations (Provision of Information without Consent) Regulations 2009, the draft Identity Cards Act 2006 2009 (Fees) Regulations 2009, the draft Identity Cards Motion to Approve Act 2006 (Prescribed Information) Regulations 2009 and the draft Identity Cards Act 2006 (Application 8.51 pm and Issue of ID Card and Notification of Changes) Regulations 2009 before the case for continued Moved By Lord West of Spithead investment in the identity cards project has been That the draft regulations laid before the House put to the British people at a general election. on 6 May be approved. 14th Report from the Joint 19th Report from the Merits Committee. Committee on Statutory Instruments, 19th Report from the Merits Committee. Baroness Hanham: My Lords, I rise to move the Motion standing in my name on the Order Paper, which regrets the Government’s intention to implement Motion agreed. these instruments. I believe that they should not be implemented and I therefore beg to test the opinion of the House. Identity Cards Act 2006 (Fees) Regulations 2009 Amendment to the Motion Motion to Approve Tabled by Baroness Miller of Chilthorne Domer Moved By Lord West of Spithead After “project” insert “, in particular the National That the draft regulations laid before the House Identity Register database,”. on 6 May be approved. 14th Report from the Joint Committee on Statutory Instruments, 19th Report from the Merits Committee. Baroness Miller of Chilthorne Domer: My Lords, I am in full agreement with the noble Baroness, Lady Hanham. Motion agreed. Lord Taylor of Holbeach: My Lords, may I ask which amendment we are being asked to consider? Is Identity Cards Act 2006 (Prescribed the noble Baroness moving her amendment? Information) Regulations 2009 Motion to Approve Baroness Miller of Chilthorne Domer: No, my Lords. Moved By Lord West of Spithead Amendment not moved. That the draft regulations laid before the House on 9 June be approved. 17th Report from the Joint 8.54 pm Committee on Statutory Instruments. Division on Baroness Hanham’s Motion. Motion agreed. Contents 157; Not-Contents 98.

Motion agreed. Identity Cards Act 2006 (Application and Issue of ID Card and Notification of Division No. 2 Changes) Regulations 2009 Motion to Approve CONTENTS Addington, L. Bonham-Carter of Yarnbury, Moved By Lord West of Spithead Anelay of St Johns, B. [Teller] B. Astor of Hever, L. Brougham and Vaux, L. That the draft regulations laid before the House Attlee, E. Burnett, L. on 9 June be approved. 17th Report from the Joint Avebury, L. Byford, B. Committee on Statutory Instruments. Barker, B. Cathcart, E. Bates, L. Chadlington, L. Bell, L. Chalker of Wallasey, B. Motion agreed. Bilimoria, L. Chester, Bp. 1023 Identity Cards Act 2006 Regs 2009[LORDS] Coroners and Justice Bill 1024

Clement-Jones, L. Marlesford, L. Bach, L. Hunt of Kings Heath, L. Colwyn, L. Masham of Ilton, B. Bassam of Brighton, L. Janner of Braunstone, L. Cope of Berkeley, L. Mawhinney, L. [Teller] Jordan, L. Crathorne, L. Mawson, L. Berkeley, L. Judd, L. Crickhowell, L. Mayhew of Twysden, L. Bilston, L. King of West Bromwich, L. De Mauley, L. Meacher, B. Borrie, L. Layard, L. Dholakia, L. Miller of Chilthorne Domer, Boyd of Duncansby, L. Lea of Crondall, L. Dixon-Smith, L. B. Bradley, L. Lipsey, L. D’Souza, B. Monson, L. Brett, L. McKenzie of Luton, L. Dundee, E. Montrose, D. Brookman, L. Malloch-Brown, L. Eccles, V. Morgan, L. Butler-Sloss, B. Mandelson, L. Eccles of Moulton, B. Morris of Bolton, B. Campbell-Savours, L. Eden of Winton, L. Naseby, L. Carter of Coles, L. Massey of Darwen, B. Elliott of Morpeth, L. Neuberger, B. Chandos, V. Maxton, L. Elton, L. Neville-Jones, B. Clark of Windermere, L. Moonie, L. Falkland, V. Newton of Braintree, L. Clinton-Davis, L. Morgan of Drefelin, B. Falkner of Margravine, B. Northbrook, L. Crawley, B. Morris of Handsworth, L. Fearn, L. Northesk, E. Davies of Coity, L. Morris of Manchester, L. Feldman, L. Northover, B. Davies of Oldham, L. [Teller] O’Neill of Clackmannan, L. Ferrers, E. Norton of Louth, L. Desai, L. Pendry, L. Flather, B. O’Cathain, B. Donoughue, L. Pitkeathley, B. Fookes, B. Onslow, E. Drayson, L. Quin, B. Forsyth of Drumlean, L. Oppenheim-Barnes, B. Dubs, L. Rendell of Babergh, B. Fowler, L. Palumbo, L. Elder, L. Richard, L. Freud, L. Pannick, L. Elystan-Morgan, L. Rosser, L. Gardner of Parkes, B. Patten, L. Evans of Parkside, L. Royall of Blaisdon, B. Geddes, L. Pearson of Rannoch, L. Farrington of Ribbleton, B. Simon, V. Glentoran, L. Plumb, L. Faulkner of Worcester, L. Snape, L. Goschen, V. Rawlings, B. Foster of Bishop Auckland, L. Soley, L. Greenway, L. Razzall, L. Foulkes of Cumnock, L. Stone of Blackheath, L. Hamilton of Epsom, L. Reay, L. Gale, B. Taylor of Bolton, B. Hamwee, B. Rennard, L. Golding, B. Temple-Morris, L. Hanham, B. Roberts of Conwy, L. Gordon of Strathblane, L. Thornton, B. Harris of Richmond, B. Roberts of Llandudno, L. Gould of Potternewton, B. Tomlinson, L. Haskins, L. Rotherwick, L. Graham of Edmonton, L. Tunnicliffe, L. Hayhoe, L. Rowe-Beddoe, L. Grantchester, L. Turnberg, L. Henley, L. St John of Fawsley, L. Grocott, L. Wall of New Barnet, B. Higgins, L. Scott of Needham Market, B. Harris of Haringey, L. Warwick of Undercliffe, B. Hodgson of Astley Abbotts, Seccombe, B. Hart of Chilton, L. Watson of Invergowrie, L. L. Selkirk of Douglas, L. Haskel, L. Wedderburn of Charlton, L. Hooper, B. Selsdon, L. Haworth, L. West of Spithead, L. Howard of Rising, L. Sharples, B. Henig, B. Whitaker, B. Howe, E. Shaw of Northstead, L. Hilton of Eggardon, B. Whitty, L. Howell of Guildford, L. Sheikh, L. Hollis of Heigham, B. Wilkins, B. Hunt of Wirral, L. Shephard of Northwold, B. Howarth of Newport, L. Woolmer of Leeds, L. Hurd of Westwell, L. Shrewsbury, E. Howells of St. Davids, B. Young of Norwood Green, L. Hylton, L. Shutt of Greetland, L. [Teller] Inglewood, L. Skelmersdale, L. James of Blackheath, L. Stern, B. Coroners and Justice Bill Jenkin of Roding, L. Stewartby, L. Committee (7th Day) (Continued) Jopling, L. Strathclyde, L. Kimball, L. Swinfen, L. King of Bridgwater, L. Taylor of Holbeach, L. 9.06 pm Kirkham, L. Taylor of Warwick, L. Kirkwood of Kirkhope, L. Thomas of Gresford, L. Knight of Collingtree, B. Thomas of Walliswood, B. Clause 104 : Sentencing Council for England and Lamont of Lerwick, L. Thomas of Winchester, B. Wales Lang of Monkton, L. Tonge, B. Leach of Fairford, L. Tope, L. Lee of Trafford, L. Trimble, L. Lester of Herne Hill, L. Tyler, L. Amendment 187A Lindsay, E. Verma, B. Moved by Baroness Linklater of Butterstone Linklater of Butterstone, B. Waddington, L. Liverpool, E. Wakeham, L. 187A: Clause 104, page 64, line 7, at end insert— Livsey of Talgarth, L. Waldegrave of North Hill, L. “( ) The purpose of the Council shall be— Luke, L. Wallace of Saltaire, L. Lyell, L. Wallace of Tankerness, L. (a) to issue guidance to sentencers, having particular regard Lyell of Markyate, L. Walmsley, B. to the effectiveness of each form of sentence in reducing McColl of Dulwich, L. Walpole, L. re-offending; Maddock, B. Warsi, B. (b) to gather and provide information and statistics for Marland, L. Wilcox, B. monitoring— (i) compliance with sentencing guidance, planning and NOT CONTENTS policy development; and Adams of Craigielea, B. Amos, B. (ii) the attitudes of sentencers and the public to the Adonis, L. Anderson of Swansea, L. guidelines; and Ahmed, L. Andrews, B. (c) to inform, consult and engage with the public on penal Alli, L. Archer of Sandwell, L. issues.” 1025 Coroners and Justice Bill[13 JULY 2009] Coroners and Justice Bill 1026

Baroness Linklater of Butterstone: Having not yet The first function, in proposed new paragraph (a), is, spoken on this Bill and not having been present earlier “to issue guidance … having particular regard to the effectiveness due to my flight being delayed, I hope that the Committee of each form of sentencing in reducing re-offending”. will bear with my saying for the record how desperately sad and sorry we are at the loss of Lord Kingsland. He In my Second Reading speech, I indicated that I would is a huge loss to this House. I admired him hugely for come back to the reduction of reoffending being one his expertise, knowledge and skill. I will also miss him of the key performance indicators, if you like, of the very much as a friend. way sentencing as a whole works. Thus the overarching We have reached Part 4, a small but none the less purpose should be that sentencing reduces offending very important part of the Bill concerning the sentencing or reoffending, which is the ultimate test of both its council. I will speak to the four amendments in this effectiveness—another key element—and the extent to group collectively. Amendment 187A states what the which our criminal justice system is getting it right. overarching purposes of the sentencing council should This really should be on the face of the Bill. be. This is a very important and necessary part of the There is much in the Bill about guidelines but not process of defining and giving a framework and context enough emphasis on effectiveness. Indeed, there is a to the role of the new sentencing council proposed in plethora of evidence of what is effective in reducing the Bill. The aim of the amendment is to clarify what reoffending, most obviously community sentences as the council is for, what it is meant to achieve and how opposed to custody, restorative justice, residential this will be arrived at. drug and alcohol treatment, specialist mental health I welcome these proposals, albeit with some important provision, and small localised units around the country, amendments which I hope will commend themselves to name but a few—and all well known to criminal to the Government. I see them as representing an justice practitioners in the community. Effectiveness in opportunity to take forward through the council the reducing reoffending means a better protected public; delivery of criminal justice in this country in an improved victims at the heart of the criminal justice system, and perhaps more creative way. No body or organisation because there will be fewer; and the best possible use takes decisions in a vacuum. This is as true for sentencers of public resources. Instead, the reality is the deeply as for anyone else. Their job is extraordinarily difficult, serious problem of our use—more our overuse—of hugely important as their decisions can change lives, prison and the less effective response whereby we and is often a lonely one. Knowledge of the law, skill outstrip any other European country with all the and experience are the tools, but it is now generally damage caused by overcrowding, and the cost, both accepted that it is necessary for there to be a broad economic and social. framework within which sentencers of all descriptions interpret the law as laid down by Parliament before Today figures show that sentencers are more likely making their decisions according to the facts of the to pass custodial sentences than ever before, and that cases before them. when they do they sentence for longer, in the Crown As the Explanatory Notes claim, the framework Court in particular, although that is no longer so true should therefore provide for, in the magistrates’ courts. The steady flood of new “a more consistent and transparent sentencing framework”. legislation in the last 10 years or so has contributed The exponential rise in the use of custody to unacceptable significantly to the current situation, including most levels over the past 10 years or so against a background obviously the increase in mandatory sentencing and of falling crime rates and virtually unchanged numbers specific new sentences such as IPPs—they will be of people being sentenced by the courts has led to the discussed later in the Bill—and the suspended sentence, need for a strategy to address the problems of prison both of which have been far more frequently than was overuse and sentencing disparity.Almost most important ever predicted. That is coupled with a more risk-averse of all, it is the issue of public perceptions of and lack Parole Board, the rise in recalls following breach and of confidence in our criminal justice system, as represented prison being more likely to be used for breach of by the sentencing decisions being made, that must be community orders. Everyone has become more risk addressed. averse, as they see it, and all that despite the relative ineffectiveness because reoffending rates following custody I suggest that the council should have three distinct average about 50 per cent but can get as high as 80 per functions. They follow a model drawn up originally in cent for very young prisoners, while with community New Zealand but which never left the drawing board penalties reoffending rates are around the 37 per cent as a new Government came in. Now it has been mark and in many cases are much lower. Furthermore, developed in a report for the Prison Reform Trust by the general public have shown from countless polls Mike Hough and Jessica Jacobson, on which this and studies that they do not favour the so-called tough amendment is based. The three functions of the council approach, namely the use of custody, when they have are set out in the amendment and would achieve two the facts. key objectives. The first is greater consistency and stability in sentencing practice, thereby ideally preventing If the stated purpose of reducing reoffending through any further upward drift in sentencing severity. The effective sentencing was implemented, custody would second is to reduce the politicisation of sentencing remain—as it should be and as government policy policy and practice. These objectives are interdependent states—the sanction of last resort for those dangerous, because the stability of sentencing practice depends violent and prolific offenders from whom we need to on the reduction in the temperature of political and protect the public, and for whom there really is a public debate on sentencing, which would in turn chance that prison, over a longer period, could achieve relieve pressure on the courts. positive outcomes. That is what prison is for. 1027 Coroners and Justice Bill[LORDS] Coroners and Justice Bill 1028

[BARONESS LINKLATER OF BUTTERSTONE] trusted and accessible information could do so much Paragraph (b) of my amendment on the purpose of to redress the balance and, in so doing, create a more the council is, constructive climate of public debate on penal issues. “to gather and provide information and statistics”, In the mean time, until I come to it again, I simply whereby monitoring and compliance with the guidelines re-emphasise the importance of all three elements of can be tracked. Despite the significant amount of guidance, research and engagement being spelt out as information in the annual Ministry of Justice sentencing the core purposes of the council. I beg to move. statistics publication for England and Wales, showing sentencing patterns, there is no information at all on Lord Borrie: I say at once that the noble Baroness the degree of judicial compliance with the guidelines. has expressed sentiments in relation to the late Lord No one has any idea to what extent they are being Kingsland which I obviously share. I think that it does followed, or with what outcomes. Indeed, the Prison no harm at all that, in addition to the major and Reform Trust points out that most sentencing commissions significant tributes paid earlier this afternoon, in the have a duty to collect analysed and published statistical course of a Bill on criminal law we should especially information. Therefore, our lack of knowledge of remember the contribution that he made over many, judicial compliance is a weakness, and there is no way many years on, as the Opposition would no doubt of knowing what impact any given guideline has on point out, many, many Bills also dealing with criminal prison capacity. law. The practical implication of this part of the amendment I also share the general view of the noble Baroness, is that judges will have an added chore at the end of Lady Linklater, that at the very beginning of Part 4, the case, or the day, to fill in a form giving this which for the first time in the Bill deals with sentencing, information. However, this can be designed to be one wants to have an expression of the purposes of the minimally tiresome and is very important in terms of sentencing council for England and Wales, which is set the information that it can give. Its justification is that up under the Bill. I make that as a general point. One the information is hugely important if the attitudes of often finds Bills announcing the setting up of a new sentencers and the public are to be better understood. body and it takes a considerable amount of foraging If these basic statistics were available, they would also about in the Bill before one finds out what the new make it possible to obtain an idea of the extent to body is supposed to do. It may be obvious to some which disposals were indeed achieving the goal of extent—this is a sentencing council—but it is not reducing reoffending. It would identify guidelines which entirely obvious, and I am glad that the amendment secure high levels of compliance and those which do refers not only to sentencing with special regard to not. Where compliance is low, this might indicate reducing reoffending but to the other issues mentioned either a need to adjust the guidance or the practice, in proposed new paragraphs (b) and (c). I welcome which, in turn, would feed into the guidance issued by that. the council. The ultimate aim would be to bring guidance It is most helpful that the amendment has been and practice into alignment by a process of mutual brought forward but I have a question for the noble accommodation. Essentially, it would be a flexible and Baroness. Has she adequately taken into account existing responsive process that was adaptable to the needs of Clauses 114 and 115, which deal respectively with all concerned. monitoring and promoting awareness of sentencing matters? Much of what she referred to in terms of Ever since the SPA and the SGC were established, informing, consulting and engaging with the public on sentencers—the people who actually do the business—have penal issues assists the public’s awareness of sentencing not been canvassed systematically on the use and matters. I know that she must be aware of those impact of the guidance. It would be extremely helpful clauses because she, together with the noble Lord, if the council was able to conduct original research Lord Thomas of Gresford, has tabled an amendment and periodically survey the opinions of the judiciary to one of them, but how does that relate to this issue? for the future. Therefore, it is proposed in the amendment However, I do not want that question to spoil my main that the council should have the capacity to commission view, which is that the purposes of the council should research into other aspects of the sentencing process. certainly be spelt out right at the beginning of Part 4. This, in turn, would feed into the developments of sentencing guidelines, as is suggested by our Amendment 188B. It is intended that statistics could Baroness Linklater of Butterstone: The noble Lord not only be compiled, but provide a core of knowledge makes a very fair point. I feel that there are recurring to inform policy and future development, whereby the themes. Rather like doing a piece of knitting, you system could become much more responsive and come back to the same stitch; you do a kind of transparent over time, as it is intended. backstitch and there it is again. The amendment may not add very much more but I think that it makes the Finally, the most innovative element of the amendment argument coherent at this point. is paragraph (c), which states that the council’s purpose will be, Baroness Stern: I am grateful to the noble Baroness, “to inform, consult and engage with the public”, Lady Linklater, and to the noble Lord, Lord Thomas on its role. I shall return to this issue later in the Bill, of Gresford, for tabling Amendment 187A and the but I refer to it now, as it is part of the amendment. other amendments in this group, which, as the noble There is so much lack of information, or so much Lord, Lord Borrie, said, permit us to have a discussion misinformation, given to the public through the media. about what sort of sentencing council we should have A sentencing council that was a source of authoritative, and what its priorities should be. 1029 Coroners and Justice Bill[13 JULY 2009] Coroners and Justice Bill 1030

It is clear from clauses in the Bill that we shall come the public appreciate that sentencing is complex, that on to that the main function of the council will be to many factors about the person and the situation should produce and police the application of sentencing be taken into account, and therefore, that prescription guidelines. This group of amendments gives us the and rigidity is not the pathway to justice. This is useful opportunity to consider, albeit briefly, a sentencing research and, as far as I know, it is the most detailed council with a slightly different emphasis—a council that we have on the subject. that has a remit to look at sentencing and the effects of The document produced by the Sentencing sentencing; to study and report on sentencing generally; Commission working group called, A Summary of to look perhaps at matters such as why sentences in Responses to the Consultation Paper suggests that there England and Wales are much longer than those passed is considerable opposition among the judiciary and in general in western Europe; to enter into a range of magistrates to the proposal to strengthen the force of activities to enable the public to be better engaged in the guidelines and much support for the view that they what sentences can achieve and the processes by which should be advisory at most. How far sentencing can be a sentence is arrived at by a sentencer; and to be a reduced to a formula and how far it is an exercise research, consultative, advisory and educational body, involving a complex weighing-up of many ethical following the model of the body in the state of Victoria considerations of culpability and the interests of the in . victims and the wider society can perhaps be seen in An example of the sort of work such a body might the case of Schumann. Angela Schumann was jailed do is the study commissioned by the Sentencing Advisory for 18 months after jumping from the Humber Bridge Panel called Public Attitudes to the Principles of Sentencing, with her young daughter in her arms in a suicide published last month. The research examines public attempt, which they survived. She then pleaded guilty attitudes to a number of issues: the purposes of sentencing; to attempted murder and, as I said, was jailed for the impact of common aggravating and mitigating 18 months. factors relating to the offence and the offender; and Allowing her appeal against the prison sentence, whether the relative costs of custodial and non-custodial the noble and learned Lord, Lord Phillips, who was sentences should impact on the sentence chosen. The Lord Chief Justice at the time, said: findings of that study are of some interest and relevance “We have asked ourselves, is it really necessary or was it really to this debate, and I shall refer to just some of them. necessary to send this unhappy woman to prison to punish her for In brief, the public see different objectives applying the momentary aberration which led her to try and take her own to serious crimes from those that should apply to less and her child’s life? ... There is one word that you will not read in serious crimes, which is a common-sense, expected the sentencing guidelines and that is ‘mercy’... There are occasions where the court can put the guidelines and authorities on one side approach. The public are more concerned with the and apply mercy instead”. objectives of punishment and deterrence when considering In so far as the amendments move away from the the sentencing of serious crimes of violence. But support model of the sentencing council that the Government for rehabilitating offenders is high, even for those are proposing and suggest that we would benefit from convicted of serious crimes of violence. I am sure that something with much broader concerns, they are welcome. that will be welcomed. A big majority believed that I can see great advantages in a body with a broader use of a weapon increased the seriousness of an offence. consultative and educational remit, and very few Only a minority thought that theft from the state was advantages, if any, in most of the proposals in subsequent more serious than theft from an individual. Where the clauses. victim was vulnerable the offence was seen as more serious. I end by pointing out that when countries establish Particularly interesting is the finding that when the bodies such as the Sentencing Guidelines Council, survey respondents were asked to consider examples their prison populations always rise. With our high use of burglary, assault and fraud, and asked whether all, of prison already, it is worth thinking about whether almost all, most, only some or no offenders convicted that is the path to follow. It seems perhaps appropriate of these crimes should be imprisoned, the public did this evening to end by citing what Lord Kingsland said not see these offences as either always requiring custody at Second Reading. He said: or never requiring custody. It seems that the public are very flexible and are prepared to say that it all depends. “what worries me about all this is that judges are increasingly seen—if I may put it bluntly—as civil servants. They are not seen However, the researchers conclude that people take as independent under the throne, as they ought to be viewed the view that the decision to imprison should be constitutionally. The constraining of their discretion in the Bill is affected by many aggravating and mitigating factors, at least one and possibly two steps too far.”—[Official Report, not simply the nature of the offence. 18/5/09; col. 1213.] The research also found, as the noble Baroness, Lady Linklater, has already suggested, that people are Baroness Butler-Sloss: I support the amendment. I misinformed about the extent to which the courts use especially support the speech just made by the noble custody, and their perspectives on sentencing are shaped Baroness, Lady Stern, and the important point that a by the mistaken belief that the courts are lenient. It sentencing council should be advisory, rather than in concluded that any attempt to accommodate public some senses intimidating and certainly, if not carefully opinion on sentencing principles will achieve little arranged, leaning on the judiciary. Clearly, it is important until these misperceptions about current practice are to have advice. All sentencers require it. addressed. I am very attracted by the wording of the amendment The research seems to suggest two things. First, tabled by the noble Baroness, Lady Linklater, because there is a considerable job to be done in informing the it emphasises three separate matters. With all three, I public about the actual levels of sentencing. Secondly, entirely agree, but I am especially attracted by new 1031 Coroners and Justice Bill[LORDS] Coroners and Justice Bill 1032

[BARONESS BUTLER-SLOSS] “There is to be a Sentencing Council for England and Wales”, paragraphs (b) and (c). It is extremely important that but does not say much more. A purpose clause might the effectiveness of sentencing is monitored, that research make it easier for all of us to understand what was is done—especially research to see the extent to which going on, and I would certainly welcome the Government’s prison is really working and the extent to which young response. people, especially those aged under 18, get the right approach from the courts and from those who are Lord Thomas of Gresford: In supporting the taking them to the courts. amendments in the name of my noble friend Lady I am also really attracted by the provision in new Linklater, I reflect over a somewhat lengthy career that paragraph (c) about informing, consulting and engaging sentencing has gone up and up to an extent that would with the public on penal issues. That seems highly have been unrecognisable when I started out at the desirable. I give just one instance. The public are very Bar. I wonder why that is. It seems that the confidence punitive about young people. The public often see of the judiciary—I refer to the Crown Court, to recorders children and young people as evil rather than as and so on—has been shaken by the constant sniping, children who may have had very bad backgrounds by both government and the press, at their discretion that have caused them to behave in a way that is totally and what they do. The Government’s role has been to unacceptable to the public. If the council were to try to curb the discretion of the judiciary in sentencing, “inform and engage” with the public on penal issues, a and the press’s role has been to criticise judges as being great deal of good could be done in the public perception, completely out of touch. No one rises to the bench in fuelled as it is by the press, especially the popular the criminal courts—to the Crown Court bench or press, of the offences of some children. Some children even as a recorder—unless they have had a lifetime’s are bad and have no good reason to be behaving as experience in the criminal law. They really know what they do. Others have considerable mitigating reasons they are talking about, and over time they may from for their offending. It is extremely important that the their experience be best able to distinguish between sentencing council should have that really very valuable one case and another and to determine where there role, and, if I may respectfully say so, I commend the should be justice and where there should be mercy. noble Baroness, Lady Linklater, for this amendment. That is their job and their profession. Then along As the noble Lord, Lord Borrie, has said, the amendment comes a Minister with no experience of the criminal cuts across Clauses 113 to 115, and I boldly suggest to law who says, “You are doing it all wrong. This would the Minister that it would be very useful at the beginning not go down well in my constituency. They do not like of this part of the Bill. Almost everything else in this”, and increasingly tries to lay down lines that the Clauses 113 to 115, if really needed, could most usefully judiciary must toe. That is wrong, because he does not go into guidance and not be part of primary legislation. have the expertise. The sentencing council could be a very positive thing because it will include people who Lord Henley: I will add a few brief words to this really know what they are talking about. I have every debate. First, I thank the noble Baroness, Lady Linklater, confidence that it will perform the proper task of for her very kind words about my late friend Lord issuing guidance to sentencers. Kingsland, which were echoed by the noble Lord, If there has been a shaking of the confidence in Lord Borrie, and put into very useful terms by the sentences then it is necessary to get clear information noble Baroness, Lady Stern, when she quoted my late about what is effective. What is the best way of friend at Second Reading talking about judges being rehabilitating prisoners and giving people a chance to seen as mere civil servants and not as independent renounce their criminal ways and perhaps to build lions under the throne, or whatever the expression new lives for themselves? To what degree do sentencers was—I am trying to remember it from my days doing move away from the guidance they are given? What the Bar exams. Certainly they had that independence. sort of discretion do they have? In particular, as this I am also very interested in everything that the amendment suggests in paragraph (c), how can they noble Baroness, Lady Linklater, had to say about try to take over from the red-top press the role of Amendment 187A as she took us through it and about informing the public of what sentencers do and how what the purposes of the council could be. Similarly, I effective they can be? I fully commend my noble friend agree with the noble and learned Baroness, Lady for putting these purposes at the beginning of the Butler-Sloss, that purpose clauses can be very useful clause and giving a context within which everything on certain occasions and can often lead to us being else that follows can be understood. I support the able to delete other parts of the Bill. I am a great one amendment wholeheartedly. for deleting other parts of Bills, as the noble Lord, Lord Borrie, is on some occasions. On this occasion, The Parliamentary Under-Secretary of State, Ministry he suggested that Clauses 114 and 115 would become of Justice (Lord Bach): It is a pleasure to see the noble unnecessary to some extent if the purpose clause Baroness, Lady Linklater, taking part in Committee. suggested by the noble Baroness’s amendment was We have missed her. However, I think that we could put in. have presumed that she would return after her Second At this stage, having said that I was interested in Reading speech on this part of the Bill. She knows what the noble Baroness had to say particularly about that she is respected around the House for her expertise reoffending, which is almost our best guide to whether in this field. Our general discussion tonight on sentencing prison is working, I will be very interested to hear is one that I am sure we will continue in the groups to whether the Government think there is some merit in come—which, alas, will not be debated today. I shall having what amounts to a purpose clause immediately concentrate on the amendments in the name of the after Clause 104, which says simply: noble Baroness. 1033 Coroners and Justice Bill[13 JULY 2009] Coroners and Justice Bill 1034

I remember the Second Reading speeches of the offences, the consideration of the impact on public noble Baroness and the noble Lord, Lord Dholakia, confidence may be more important than relative who saw great prospects and hopes for the sentencing effectiveness. council. They were optimistic about it. The noble Lord, Lord Thomas of Gresford, began to be optimistic Lord Elystan-Morgan: In the case of R v Martin in about it in his remarks a few minutes ago. However, I 2007, the Court of Appeal said that guidelines are am afraid that I will disappoint the noble Baroness guidelines and no more. Is it intended that that basic tonight in the Government’s reaction to these amendments, situation should be fundamentally changed by this which create statutory purposes for the new sentencing legislation? council. These purposes include issuing guidance with particular regard to reducing reoffending, gathering Lord Bach: I do not want to escape entirely from information on compliance with guidelines and engaging answering the noble Lord’s question today but we will with the public on penal issues. We understand the be debating these guidelines and the form that they intent behind the amendments but doubt whether it is will take in some detail when we come to discuss other necessary to have statutory purposes for the council in amendments. Undoubtedly the form these guidelines this way and, if it is right to do that, whether these take will be different from what they have been in the purposes are the right ones. past, but it will be very much a question of argument whether they actually change the judges’discretion—which The duties on the council are set out in Part 4, I know is in the back of the noble Lord’s mind—in Chapter 1. If these amendments were carried, they what they are able to do. I put it guardedly because we would slightly skew those duties in a way which we do shall see how the other amendments play out. not believe is helpful. It is clear that one purpose of the council is to issue guidelines. In passing, I should I take the point of my noble friend Lord Borrie, say that guidelines have been in existence for quite a who is much more supportive than I am able to be of long time. But I am not sure that it is correct to say in the noble Baroness’s amendments. She said that we the purposes of the council that it should propose did not know enough about how sentencers follow guidelines having particular regard to the effectiveness guidelines. This is covered to some extent by Clause 114, of sentences in reducing reoffending. Reducing reoffending which places duties on the council to monitor departures, is a key part of the Government’s penal policy. No the effect of the guidelines and consistency. Other one, particularly in this Committee, would underestimate duties in Clause 113 relate to assessing the impact of its importance. It is an important consideration when guidelines. Indeed, under our provisions the council considering guidelines but it is not the only one and it will need to collect new data in order to discharge will be more important in some guidelines than in these duties. others. It would be less important in guidelines dealing I know that the noble Baroness, Lady Linklater, with very serious offences which, for public protection would prefer statutory purposes, but some of the reasons, will require long custodial sentences. The matters that she raises in her amendments are, I agree, amendment underplays the importance of the other to be found in Clauses 113, 114 and 115. Although it is factors to which the council must have regard that are always tempting to follow the suggestions of the noble set out in Clause 106(11)(a) to (e), to which no doubt and learned Baroness, Lady Butler-Sloss—I think that we will come the next time we meet. her description of them was “bold”—I am not really in a position to do so this evening and doubt that I will 9.45 pm be even when the Bill has progressed further. It is for those reasons that I ask the noble Baroness to withdraw Amendment 187C seeks to add to the skills of her amendment, not out of any deep hostility to her judicial members in Schedule 13, proposals but because, in our view, the purposes should “experience … for evaluating evidence on the effectiveness of not be statutory. I have no doubt that we will return to different sentences”. this matter on another occasion. Of course the judicial members of the council will be experienced sentencers; they will all be experienced in Baroness Linklater of Butterstone: I thank the noble evaluating evidence of many different things. On the Lord for his very kind opening remarks, which I other hand, there will also be non-judicial members greatly appreciate. I thank other noble Lords as well who are specialists in research and academic fields. We for their extraordinarily interesting and important therefore we do not think that this addition is a contributions. necessary requirement. I still want to stick to my basic premise, which is Amendments 188B and 188C would mean that in that we have an overarching sense of priorities, and proposing sentencing guidelines the council must have that reducing reoffending and the effectiveness of specific regard to one factor; namely, the comparative sentencing are key. All the other elements that the effectiveness of the different sentencing options. The Minister then referred to come, as it were, within that amendments give the comparative effectiveness of framework—for example, the fact that a long custodial sentences first place in the list of relative factors which sentence for a very violent crime is entirely appropriate. inform the work of the council in preparing guidelines. In such circumstances, you can argue—as I did—that We do not think that that approach is right. The there is a place for prison for certain offenders and Government’s concern is that these amendments certain types of offences and that prison is able to do seek to give priority to one factor when there is no the very constructive work which ultimately will prevent prioritisation of the factors in this list. Prioritising one reoffending in the same way as many other different factor would be at the cost of the other equally important situations. I do not think, in making that case, that the factors. In some guidelines, especially for more serious Minister has undermined mine. I will think very hard 1035 Coroners and Justice Bill[LORDS] Coroners and Justice Bill 1036

[BARONESS LINKLATER OF BUTTERSTONE] Amendment 187A withdrawn. about what he has said; I may well be tempted to return to it later. Indeed, when we get to Clause 115, I Clause 104 agreed. will want to expand a little on the educational and public engagement roles which, while overlapping, are House resumed. distinct. In the mean time, I beg leave to withdraw the amendment. House adjourned at 9.53 pm. WS 63 Written Statements[13 JULY 2009] Written Statements WS 64

An error has been identified in the Written Ministerial Written Statements Statement released to the House on 10 June (Official Report, col. 37WS). In the Defence Support Group Monday 13 July 2009 Key Target 1 (Quality) the words “per annum” were omitted from the land business performance measurement metric. Corporate Manslaughter and Corporate The correct wording of key target 1 should have Homicide Act 2007 been: Statement “Deliver an improved quality performance by achieving fewer than four attributable major customer concerns within DSG’s air The Parliamentary Under-Secretary of State, Ministry business and reducing upheld customer complaints within the of Justice (Lord Bach): My honourable friend the land business by 5 per cent per annum against the 2007-08 out Parliamentary Under-Secretary of State (Claire Ward) turn”. has made the following Written Ministerial Statement. The Corporate Manslaughter and Corporate Homicide EU: Environment Council Act 2007 received Royal Assent on 26 July 2007. An organisation is guilty of the new offence if the Statement way in which its activities are managed or organised causes a death and this amounts to a gross breach of a The Parliamentary Under-Secretary of State, relevant duty of care to the deceased. A substantial Department for Environment, Food and Rural Affairs part of the breach must have been in the way activities (Lord Davies of Oldham): My right honourable friend were managed by senior management. the Secretary of State (Hilary Benn) has made the The majority of the Act was implemented on 6 April following Written Ministerial Statement. 2008, with the exception of Section 2(1)(d) which I and the Minister for Energy and Climate Change makes the duty of care a custody provider owes to a (Joan Ruddock) represented the UK at the Environment person who is detained a relevant duty of care, and Council in Luxembourg on 25 June. Section 10 on publicity orders where we await guidelines to be issued by the Sentencing Guidelines Council. Member states agreed the council conclusions on biodiversity and invasive alien species. The conclusions Procedures for caring for some of society’s most highlighted the urgent need to make further progress vulnerable or volatile people are highly complex. When on protecting biodiversity and stressed the need for an the legislation was passed we explained that a period EU framework to tackle invasive alien species. The of three to five years would be needed for custody UK welcomed the conclusions and stressed the need providers to prepare for implementation of Section 2(1)(d). for any biodiversity targets post 2010 to be achievable We are publishing a second annual report today and measurable. Furthermore, the UK agreed that a which should be read in conjunction with the 2008 comprehensive approach to invasive alien species was report. Our second annual report discusses the progress needed but this should explore all options to ensure made by the various custody providers since this time that targeted measures were taken at whatever levels last year and what remains to be done. While implementing would be most effective. The Commission said that it the Act provides a useful catalyst and driver, reducing would submit a proposal on invasive alien species in deaths in custody is a core part of long-term work by 2010. the Government together with custody providers and this long term agenda is reflected in the report. Ministers reached political agreement on the recast industrial emissions directive, which incorporates several We have made significant progress in the past pieces of existing EU legislation on industrial emissions, 12 months and we remain on course to commence the notably the integrated pollution prevention and control implementation of Section 2(1)(d) by April 2011 as directive. The UK successfully made the case for further previously announced. flexibility in the large combustion plant provisions in The report includes developments in Northern Ireland order to ensure increased protection of the environment for which my right honourable friend the Secretary of without compromising moves to low carbon generation State for Northern Ireland has responsibility under and security of supply. In addition, the UK successfully the Act. secured a higher threshold for anaerobic digesters to Copies of the report can be found in the Libraries come within scope of the directive. of both Houses. The report is also available in the Vote The presidency provided an update on progress on Office and the Printed Paper office and on the Ministry the soil framework directive. The Commission underlined of Justice’s website at www.justice.gov.uk. the urgent need for an EU legislative framework for the protection of soil, as soil degradation did have Correction to Commons Written significant cross border impacts and could affect the Ministerial Statement internal market. The UK stated that it still had significant Statement concerns regarding the cost and complexity of implementing the proposed directive and called for a The Minister for International Defence and Security different approach which recognised the differences (Baroness Taylor of Bolton): My honourable friend the between member states. Parliamentary Under-Secretary of State and Minister Over lunch member states discussed international for Equipment and Support (Quentin Davies) has climate change, where the UK set out its priorities in made the following Written Ministerial Statement. the run-up to Copenhagen. The UK stated that the WS 65 Written Statements[LORDS] Written Statements WS 66

EU needed to maintain engagement bilaterally and Prisons: Drugs multilaterally with key partners at the same time as continuing internal discussions on development of an Statement EU negotiating position ahead of Copenhagen. Ministers adopted conclusions on the management The Parliamentary Under-Secretary of State, Ministry of bio-waste. The conclusions stressed the importance of Justice (Lord Bach): My honourable friend the of bio-waste management and urged the Commission Minister of State (Maria Eagle) has made the following to complete its impact assessment with a view to Written Ministerial Statement. preparing an EU legislative proposal if appropriate. I am making this Statement to update the House of Under any other business, Ministers discussed a the progress we have made in implementing the Blakey suggestion from Austria that authorisations for cultivation report Disrupting the Supply of Illicit Drugs into Prisons of genetically-modified crops should be taken at member which was published in July 2008. state level; the UK stressed the need for early agreement David Blakey CBE QPM DL, a former Inspector on the proposal to address illegal timber entering the of Constabulary and Chief Constable of West Mercia, EU market; and finally, the UK welcomed the was commissioned to conduct a review into the Commission communication on carbon capture and effectiveness of the Prison Service’s measures for disrupting geological storage (CCS) in emerging and developing the supply of drugs into prisons, and to make countries. recommendations for improvements. The Blakey report made 10 recommendations, all of which were accepted by the Government. Over the past 12 months we have made significant Older People progress in implementing all the recommendations: Statement we have equipped all prisons with a body orifice security scanner (BOSS chair) to detect internally concealed items such as mobile phones. The rollout The Parliamentary Under-Secretary of State, was completed in May and the chairs are now in Department for Communities and Local Government & use across the estate; Department for Work and Pensions (Lord McKenzie of we have also equipped all prisons with portable Luton): My honourable friend the Minister of State high-sensitivity metal-detecting wands. These were for Work and Pensions (Angela Eagle) has made the also rolled out in May; following Written Ministerial Statement. we are seeking to make full use of the Offender I am pleased to announce that we are today publishing Management Act to prosecute those caught Building a Society for All Ages a strategy setting out a attempting to bring drugs and mobile phones into programme of action to respond to the challenges and prisons, which carries a sentence of up to 10 years’ opportunities presented as our society grows older. imprisonment; As a country, we are living through an enormous every prison now has a nominated senior manager demographic shift with more of us living for longer in post who is responsible for delivering its local than ever before. While this is not a new phenomenon, drug strategy; and the UK has just passed a tipping point. In 2007, the we have published a new good practice guide to number of adults below state pension age compared assist prisons in tackling drug supply routes, to those over it began to decline for the first time in including advice on working with others. We will 25 years. This is a result both of greater individual shortly be publishing a mobile phones good longevity and also of the baby boomer generations practice guide to focus on minimising, finding and born after the Second World War starting to reach disrupting mobile phones that are smuggled into state pension age. prisons. Across society, we will all need to act to make the In addition, work continues to strengthen prison most of these opportunities. We need to ban unjustifiable intelligence gathering, and to trial and roll out mobile age discrimination and end outdated attitudes which phone blockers, in line with David Blakey’s too often drive our expectations and treatment of recommendations. older people. Achieving this will enable individuals to Tackling the supply of drugs and mobile phones lead the later life that they want and allow society to into prisons requires a multi-agency response, and we harness the skills and experience of our older population are working closely with the police and other key to the benefit of all our communities and our economy. partners. I would also like to pay tribute to the continuing Building a Society for All Ages sets out a programme hard work of staff to reduce the supply and impact of of action to support change by individuals, in families, drugs and phones. in the workplace and the economy and in public services and communities. It includes measures to support people to look forward and plan earlier and Serious Organised Crime Agency to encourage them to remain active and participate Statement fully in society in their later lives. We also set out plans to improve the provision of information, help and The Attorney-General (Baroness Scotland of Asthal): support for those who need it. My honourable friend the Parliamentary Under-Secretary Copies of the report are available in the Vote Office of State for Crime Reduction (Alan Campbell) has and the Printed Paper Office. made the following Written Ministerial Statement. WS 67 Written Statements[13 JULY 2009] Written Statements WS 68

I am laying before Parliament the Government’s action against all organised criminals, making the new Serious Organised Crime Strategy—Extending principle of lifetime management a reality—from the Our Reach: A Comprehensive Approach to Tackling traditionally “hard to touch” at the top end, through Serious Organised Crime. Copies will be available in to the long tail operating at the lower end of the the Vote Office. organised crime spectrum. Serious organised crime is a large and growing Secondly, we will consider all approaches to tackling problem. Trafficking in drugs and people, fraud and organised crime. We will use whatever tools work best financial crime cost the UK Exchequer in the region to have maximum impact. Whenever we can we will of £30 billion a year. However, the impact of organised prosecute. But we will also go further in using non-criminal crime is not remote: its victims range from those proceedings—administrative, immigration, regulatory whose lives are ruined by drug addiction to women or tax powers—to disrupt the activities of those involved who are trafficked for sexual exploitation. If it is in serious organised crime and do even more to recover allowed to take root, organised crime can create a their finances and assets. vicious downward spiral of fear, intimidation and Thirdly, we will ensure that the whole of Government economic decline, which tends to harm the most vulnerable play their part in the fight against organised crime. We members of society in some of our most deprived will strengthen the criminal justice system approach communities. So as well as being a question of national (from prevention through to imprisonment) and also security, organised crime is also a question of social bring to bear the powers of agencies working outside justice. of law enforcement—like local authorities or bodies Since publication of the 2004 White Paper One Step such as the DVLA, the Health and Safety Executive, Ahead the police, the Serious Organised Crime Agency or local housing offices—to combat organised crime and other law enforcement agencies have made significant together. progress in the fight against organised crime. It is no Finally, we will maximise collective efforts overseas— exaggeration to say that the UK is a world leader in from capacity building in states at risk from organised this area. However, five years on, serious organised crime through to strengthening multilateral institutions. crime continues to evolve. We are facing new high-tech Similarly, we will work closer with the private sector, crimes that did not exist five years ago and organised for example, in preventing e-crime, and with the public criminals are increasingly basing themselves in weak to engage their help in the response. and failing states to avoid detection and traffic their Serious organised crime threatens our safety, damages drugs. our communities and subverts our economy. The This means that now is the right time to update and magnitude, scope and sophistication of serious organised strengthen our response. Today’s strategy sets out the crime in the 21st century demand an equally sophisticated reforms we will make to ensure that Government, law and ambitious response from Government to tackle it. enforcement, businesses and citizens are equipped with Both government departments and law enforcement the necessary tools to reduce the harm caused by agencies will have a key role to play in implementing organised crime. We will go further than ever before in this strategy. That is why I am also pleased to announce taking the fight to organised criminals through four the appointment of Sir Ian Andrews as the new chairman key approaches. of the Serious Organised Crime Agency. I believe that First, we will ensure that all organised criminals are Sir Ian has the necessary skills and experience to help within our reach. Using new techniques to create a guide SOCA through the coming years, so that it can radically improved intelligence picture, we will take play a full part in delivering this strategy.

WA 181 Written Answers[13 JULY 2009] Written Answers WA 182 Written Answers Alcohol Question Monday 13 July 2009 Asked by Lord Taylor of Warwick To ask Her Majesty’s Government whether they Abergele: Explosion intend to prevent the expansion of unlawful controlled drinking zones. [HL4782] Question Asked by Lord Roberts of Llandudno The Parliamentary Under-Secretary of State, Home Office (Lord West of Spithead): The Criminal Justice To ask Her Majesty’s Government whether they and Police Act 2001 (Sections 12 and 13) provides for will release all relevant documents relating to the designated public places orders (DPPOs). These orders deaths by explosion at Abergele on the evening can be applied for by a local authority for use in areas before the investiture of the Prince of Wales in July that have experienced alcohol-related disorder or nuisance. 1969. [HL4605] A DPPO does not make it a criminal offence to consume alcohol within a designated area. An offence The Parliamentary Under-Secretary of State, Home is committed if an individual refuses to comply with a Office (Lord West of Spithead): Information of historical constable’s request to refrain from drinking. The Home and national interest dating back to the time of the Office published guidance on DPPOs in December investiture would have been transferred to the National 2008 and this can be found by using the web link at Archives. Some information selected for preservation http://www.crimereduction.homeoffice.gov.uk/ by the National Archives may be retained in departments alcoholorders/alcoholorders01.htm. for security reasons. The Home Office is currently searching for any Banking: Asset Protection Scheme information that might be held and will then assess its Question sensitivity to decide whether or not it can be released. I will write to the noble Lord as soon as a more substantive Asked by Lord Oakeshott of Seagrove Bay response is possible. To ask Her Majesty’s Government what are the value dates being used for assets entering the Asset Protection Scheme for (a) Royal Bank of Scotland, Access to Work Scheme and (b) Lloyds Banking Group. [HL4842] Question The Financial Services Secretary to the Treasury Asked by Baroness Scott of Needham Market (Lord Myners): As set out in “Statement on the To ask Her Majesty’s Government whether Government’s Asset Protection Scheme” published on councillors are eligible for funding from the Access 26 February, the eligible assets for the scheme are to Work scheme; and, if so, whether that eligibility valued at 31 December 2008. has been communicated to Jobcentres distributing the grant. [HL4869] British-Irish Intergovernmental Secretariat Question The Parliamentary Under-Secretary of State, Department for Communities and Local Government & Asked by Lord Laird Department for Work and Pensions (Lord McKenzie of To ask Her Majesty’s Government what decisions Luton): Some, but not all, disabled councillors will be have been taken by the British-Irish Intergovernmental eligible for Access to Work support. One of the basic Secretariat since its creation. [HL4873] eligibility criteria for Access to Work is that applicants should be in or about to start paid employment. Since Baroness Royall of Blaisdon: Since its inception, the 2007, councillors elected to office in Scotland have British-Irish Intergovernmental Conference (BIIGC) been paid a salary rather than an allowance and are has met on 20 occasions. Decisions taken by British therefore able to claim Access to Work provided that and Irish Ministers at the BIIGC are contained in the all other eligibility conditions are satisfied. joint communiqué issued after each conference. These Councillors in England and Wales receive various are published on the Northern Ireland Office website levels and types of allowances. Those councillors who at www.nio.gov.uk. receive only reimbursement of travel, mileage and meal allowances will continue to be treated as voluntary Census workers and are therefore not eligible for Access to Question Work. Where councillors receive allowances other than those outlined above, they may be eligible for Access Asked by Lord Laird to Work support, provided that they meet the other To ask Her Majesty’s Government further to the eligibility conditions including being paid at least the Written Answer by Baroness Crawley on 24 June national minimum wage. (WA282), whether they will review the census question The Access to Work guidance was clarified from on religion which currently permits one Christian the start of 2009 and staff who administer Access to answer without denominational distinction and lists Work claims and payments were reminded of the five other religions; and why that question is as it is. eligibility criteria. [HL4806] WA 183 Written Answers[LORDS] Written Answers WA 184

Baroness Crawley: The information requested falls http://www.ons.gov.uk/census/2011-census/2011- within the responsibility of the UK Statistics Authority. census-questionnaire-content/question-and-content- I have asked the authority to reply. recommendations-for-2011/index.html. Letter from Karen Dunnell, National Statistician, to ONS is currently testing a revised wording to the Lord Laird, dated July 2009. question on religion that asks “Which of these best As National Statistician I have been asked to reply describes you?” with no changes to the “No religion” to your recent question asking whether the census and pre-designated religion tick-boxes. question on religion which currently permits one Christian More information about the further question testing answer without denominational distinction and lists programme is available on the website: five other religions will be reviewed; and why that http://www.ons.gov.uk/census/2011-census/news- question is as it is. (HL4806) and-events/additional-questionnaire-testing-planned/ The religion question was introduced in the 2001 index.html. census as a voluntary question and has been designed The programme of testing is not complete and to collect information on religious affiliation, which is consequently no decisions have yet been made about required by many users of census statistics for monitoring any of the possible revisions. The draft census order, equality and planning of services. which sets out the topics and particulars to be collected Question development for the 2011 census began in by each question, is currently scheduled to be laid 2005. A detailed and lengthy process of user consultation, before Parliament for approval around mid-October. prioritisation of user requirements and qualitative and quantitative question testing has been carried out Children: ContactPoint to inform decisions on the topics, content and design Question of questions to he included in the 2009 census rehearsal Asked by Lord Moynihan and 2011 census. To ask Her Majesty’s Government what steps As part of this process ONS has already considered they are taking to avoid data theft or loss from the the feasibility of an extended list of Christian ContactPoint database. [HL4633] denominations in the England and Wales census but rejected this approach for a number of reasons. The Parliamentary Under-Secretary of State, Testing of a question with Christian denominations Department for Children, Schools and Families (Baroness indicated that some respondents may interpret and Morgan of Drefelin): ContactPoint is an online directory answer the expanded question differently, which would to enable the delivery of co-ordinated support for make it difficult to compare data with those from the children and young people. It will be the quick way for 2001 census. Trends in religious affiliation over time practitioners to find out who else is working with the are required by many census users, primarily for service same child. ContactPoint will contain basic identifying planning: three-quarters of the respondents to the information about all children and young people in 2007 consultation regarded comparability with the 2001 England up to their 18th birthday and contact details census question as essential. for their parents/carers and for services working with In addition, different and potentially a higher number the child or young person—nothing more. It does not of categories would be needed in Wales, which would and will not contain any financial information (such make comparison across England and Wales difficult. as bank details) or case information (such as case notes, assessments, medical records, exam results, Furthermore, space constraints on the census comments or subjective observations). questionnaire for England and Wales mean that providing ContactPoint was developed, and is being implemented, detailed breakdowns of the Christian category would taking a cautious, step-by-step approach. We are result in losing other questions or compromising the implementing ContactPoint in accordance with national questionnaire design, thereby putting the quality of information security policy and standards. ContactPoint responses and their comparability with 2001 data at therefore has a significant set of appropriate security risk. measures and controls in place. Our security measures A key reason for including a question on religion in and management of those are continually assessed. the 2001 census was to provide statistics on minority This includes assessment by independent bodies, including, religions. This helped to provide benchmarks so that and approved by, CESG, the UK’s National Technical employers and public authorities, for example, could Authority for Information Assurance. All ContactPoint fulfil their duties under the Race Relations Act. The users must state clear reasons for accessing a child’s proposed 2011 question lists five other religions in record and all use of the system will be subject to addition to Christian: Buddhist, Hindu, Jewish, Muslim monitoring and audit. Sanctions are in place for misuse and Sikh. These religions are included as they are under the provisions of the Data Protection Act and widely recognised as being the largest of the minority Computer Misuse Act. religions within the UK, although it is also proposed that there will be a “write-in” option, where those who Climate Change wish to record themselves under any other religion maydoso. Questions Full details of this consideration are set out in an Asked by Baroness Noakes information paper relating to the development of the To ask Her Majesty’s Government what process 2011 census religion question, which available on the they are following to appoint a new chair of the website: Committee on Climate Change. [HL4864] WA 185 Written Answers[13 JULY 2009] Written Answers WA 186

To ask Her Majesty’s Government whether they The Parliamentary Under-Secretary of State, have advertised for a new chair of the Committee Department for Communities and Local Government & on Climate Change. [HL4865] Department for Work and Pensions (Lord McKenzie of Luton): To date 69 key officers in the London Fire To ask Her Majesty’s Government what is the Brigade (LFB) have been trained and issued with expected time commitment of the chair of the Airwave radio handsets to facilitate interoperability Committee on Climate Change. [HL4866] with relevant responders. In addition, some 80 officers who operate LFB’s eight incident command units The Minister of State, Department of Energy and have been trained in the use of the Bronze Interoperability Climate Change (Lord Hunt of Kings Heath): Lord Radios (Airwave) which are carried on LFB’s command Turner was appointed as chair of the Committee on units. The main rollout of Airwave to LFB’s front-line Climate Change for a five-year period from 28 January appliances is planned to commence 3 August 2009. 2008. This involves an estimated time commitment of Asked by Baroness Neville-Jones approximately four days per month. A recruitment exercise to find a successor to Lord To ask Her Majesty’s Government what are Turner was undertaken in summer and autumn 2008, the Common Talk Groups on the Airwave but no candidate was considered appropriate. We are communications network that has been provided to continuing to review the position and whether to the emergency services. [HL4795] undertake a further recruitment exercise. In the mean time, we are grateful to Lord Turner for agreeing to remain as chairman of the committee. Lord West of Spithead: Talk groups that allow inter-working between individual police forces, government agencies and blue-light services are in all police Airwave Cycling radios and are also available for use by non-police Question Airwave users, such as the ambulance service, where appropriate. Asked by Lord Berkeley The sets of talk groups are: Police Hailing Group; To ask Her Majesty’s Government whether the Sharer Hailing Group; Dedicated Air to Ground Group; Department of Energy and Climate Change is four “local” Police Interoperability Groups; Dedicated implementing the Government’s Cycle to Work Firearms Unit Group; Dedicated Protection Team Scheme. [HL4112] Group; Dedicated Immigration Service Group; Dedicated Government Agency Group; Silver Level Inter-Agency Group; three Bronze Level Inter-Agency Groups; All-User The Minister of State, Department of Energy and Interoperability Group; Police Mutual Aid Groups; Climate Change (Lord Hunt of Kings Heath): The and Multi Agency Mutual Aid Group. department has agreed to implement the Government’s Cycle to Work Scheme. Details will be developed in due course.

Government Equalities Office Emergency Services: Common Talk Question Groups Asked by Lord Dholakia Questions Asked by Baroness Neville-Jones To ask Her Majesty’s Government whether the Government Equalities Office and the non- To ask Her Majesty’s Government how many departmental public bodies it sponsors ring-fenced officers of (a) the , (b) the funds in order to pay non-consolidated performance City of London Police, and (c) the British payments to senior staff in (a) 2007, (b) 2008, and Transport Police in London, have been trained to (c) 2009; and, if so, how much was ring-fenced in use the Common Talk Groups on the Airwave those years. [HL4810] communications network. [HL4703]

The Parliamentary Under-Secretary of State, Home The Chancellor of the Duchy of Lancaster (Baroness Office (Lord West of Spithead): All officers in the Royall of Blaisdon): Since the Government Equalities three forces are trained on how to access and use the Office was established on 12 October 2007, it has not Airwave Talk Group facility, as part of their general made provision for ring-fencing non-consolidated radio training. performance payments for senior staff. The process for the current financial year is currently under review in Asked by Baroness Neville-Jones accordance with Cabinet Office guidance. To ask Her Majesty’s Government how many The Government Equalities Office sponsors the officers of the London Fire Brigade have been Equality and Human Rights Commission (EHRC). trained to use the Common Talk Groups on the The EHRC has not made provision for ring-fencing Airwave communications network. [HL4705] such payments for senior staff. WA 187 Written Answers[LORDS] Written Answers WA 188

Homeless People Year NIIS staff

Question 1998 29 Asked by Lord Hylton 1999 45.5 2000 44 To ask Her Majesty’s Government whether they 2001 30 will respond to the Salvation Army’s report The 2002 34 Seeds of Exclusion 2009 concerning homeless people, 2003 41 with particular reference to mental illness and 2004 36 unemployment; and whether they will draw the 2005 37 report’s data from Dublin to the attention of the 2006 36.5 Government of the . [HL4821] 2007 36.5 2008 30.5 The Parliamentary Under-Secretary of State, 2009 29.5 Department for Communities and Local Government & Department for Work and Pensions (Lord McKenzie of Luton): CLG will be meeting the Salvation Army in Northern Ireland: Weapons September to discuss the Seeds of Exclusion 2009 report and closer working on homelessness. My officials Question will send a copy of the report to the Irish Government Asked by Lord Hylton highlighting the references to homelessness in Dublin. To ask Her Majesty’s Government whether the recent decommissioning of weapons by loyalist groups Housing: HomeBuy Direct in Northern Ireland is assisting progress towards the of criminal justice and penal Question administration. [HL4694] Asked by Lord Dykes To ask Her Majesty’s Government how many Baroness Royall of Blaisdon: The Government households have used or applied for the HomeBuy welcome the confirmation by the Independent Direct scheme. [HL4656] International Commission on Decommissioning of a major decommissioning event by the UVF/Red Hand Commandos and a significant move on decommissioning The Parliamentary Under-Secretary of State, by the UDA/UFF in Northern Ireland. While a decision Department for Communities and Local Government & on the timing of the devolution of policing and justice Department for Work and Pensions (Lord McKenzie of remains for the Assembly to make, such steps send a Luton): As at the end of June, 194 properties had been clear signal that all sides of the community in Northern sold through HomeBuy Direct. We do not hold centrally Ireland are committed to the political process. data on the number of households that have applied for HomeBuy Direct. Police: Northern Ireland Northern Ireland Office: Staff Questions Question Asked by Lord Kilclooney Asked by Lord Laird To ask Her Majesty’s Government what progress they have made in providing a new police college in To ask Her Majesty’s Government how many Northern Ireland; where it is to be located; at what staff were employed in the press office of the Northern stage it is in the planning process; when tenders will Ireland Office on 1 January in each year since 1998. be invited; what is the expected date for beginning [HL4675] construction; and whether a budget has been agreed. [HL4836] Baroness Royall of Blaisdon: The Northern Ireland Information Service (NIIS) conducts all press office Baroness Royall of Blaisdon: The design for the new work on behalf of the Northern Ireland Office. In combined police, fire and prison service college has addition, it has since 1999 provided an in-house media commenced and is presently at concept design stage. monitoring service for Ministers, senior officials in the The design and business case are due to be completed Northern Ireland Civil Service and a range of external in autumn 2009. stakeholders. The college will be located at Desertcreat in Cookstown. Over this period, staff within the service have also A full planning application is due to be submitted in had responsibility for any premises-related issues that November 2009. The tendering process is due to take concern Block B, Castle Buildings. place in mid to late 2010. Construction is planned Details of staffing levels within NIIS on 1 January to commence by end 2010 and completed by end 2012 of each year since 1998 are listed in the following or early 2013. The cost of the project is estimated at table. £150 million. WA 189 Written Answers[13 JULY 2009] Written Answers WA 190

Asked by Lord Laird authority controlled) trusts or charities and independent school swimming pools, are made aware of the To ask Her Majesty’s Government whether the recently revised criteria for capital funding of swimming Police Service of Northern Ireland will provide pools. [HL4677] e-mail addresses which the public can use to contact the service when seeking information about particular incidents. [HL4972] The Minister for Communications, Technology and Broadcasting (Lord Carter of Barnes): This is a matter for the Amateur Swimming Association, which is Baroness Royall of Blaisdon: That is an operational responsible for the management of the capital funding matter for the chief constable. I have asked him to allocation. reply directly to the noble Lord, and a copy of his letter will be placed in the Library of the House. Asked by Baroness Northover To ask Her Majesty’s Government further to Schools: Specialist Services the Written Answer by Lord Carter of Barnes on Question 19 June (WA 238), whether they will place in the Library of the House a copy of the recently revised Asked by Lord Moynihan criteria for the capital funding of swimming pools. To ask Her Majesty’s Government what steps [HL4678] they are taking to ensure that children and young people are able to access school-based specialist or Lord Carter of Barnes: The recently revised copy of targeted services without it being recorded on the Amateur Swimming Association’s capital funding ContactPoint. [HL4630] of swimming pools has been placed in the Libraries of both Houses. The Parliamentary Under-Secretary of State, Department for Children, Schools and Families (Baroness Asked by Baroness Northover Morgan of Drefelin): ContactPoint is a tool to help to To ask Her Majesty’s Government further to improve the well-being of all children, help to keep the Written Answer by Lord Carter of Barnes on them safe and ensure that no child slips through the 19 June (WA 238), whether they will place in the net of support services. It provides a quick way for Library of the House copies of the conditions of authorised practitioners in different services to find Sport England’s funding agreement and Sport out who else is working with the same child, which will England’s guidance to national governing bodies enable them to work together and provide faster, more on managing their capital funding. [HL4679] co-ordinated support to meet a child’s needs. ContactPoint will contain basic identifying information about all children and young people in England up to their Lord Carter of Barnes: The 2009-13 National 18th birthday and contact details for their parents/carers Governing Body Funding Memorandum of Agreement and for services working with the child or young for Capital Build has been placed in the Libraries of person—nothing more. both Houses. In order to provide the service for which it is Asked by Baroness Northover designed, it will be important that ContactPoint contains contact details of practitioners, in schools and elsewhere, To ask Her Majesty’s Government further to who work with a child in order to offer them additional the Written Answer by Lord Carter of Barnes on services. The department has worked with partners to 19 June (WA 238), whether the previous requirement determine what constitutes an involvement that should in Sport England’s Whole Sports Plan 2009-13 be recorded on ContactPoint as a specialist or targeted Capital Fund for swimming pool facility funding, service. ContactPoint guidance offers examples of when which stated that to fit the selection criteria for the it is appropriate for a practitioner to record their fund swimming pools were required to “buy and contact details on a child’s record. It is not our intention utilise ASA products and services”, constituted a to capture every minor interaction with a school pupil. breach of the conditions of Sport England’s funding Accordingly, membership of a music, chess or running agreement or Sport England’s guidance to national club, for example, would not warrant the inclusion of governing bodies on managing their capital funding. practitioner contact details on ContactPoint. Schools [HL4680] will need to exercise some discretion and professional judgment. Lord Carter of Barnes: Sport England has been informed that the ASA has withdrawn this requirement Sport: Swimming from its criteria for capital guidance. Questions Asked by Baroness Northover Asked by Baroness Northover To ask Her Majesty’s Government further to To ask Her Majesty’s Government further to the Written Answer by Lord Carter of Barnes on the Written Answer by Lord Carter of Barnes on 19 June (WA 238), what procedures are in place to 19 June (WA 238), how they will ensure that all monitor whether the conditions of Sport England’s relevant persons or bodies, including schools, swimming funding agreement and Sport England’s guidance pools managed or owned by independent (non-local to national governing bodies on managing their WA 191 Written Answers[LORDS] Written Answers WA 192

capital funding are breached; and what processes out sanctions should capital funding agreements be are in place for Sport England to deal with such breached. Section 9 (Books, accounts and records) complaints. [HL4681] and Section 10 (Review of the 2009-13 National Lord Carter of Barnes: Sport England has advised Governing Body Funding Memorandum of Agreement that the 2009-13 National Governing Body Funding for Capital Build) set out procedures that are in place Memorandum of Agreement for Capital Build sets if conditions of the funding agreement are breached. Monday 13 July 2009

ALPHABETICAL INDEX TO WRITTEN STATEMENTS

Col. No. Col. No. Corporate Manslaughter and Corporate Homicide Act Older People ...... 65 2007...... 63 Prisons: Drugs ...... 66 Correction to Commons Written Ministerial Statement .... 63

EU: Environment Council ...... 64 Serious Organised Crime Agency...... 66

Monday 13 July 2009

ALPHABETICAL INDEX TO WRITTEN ANSWERS

Col. No. Col. No. Abergele: Explosion ...... 181 Emergency Services: Common Talk Groups ...... 185

Access to Work Scheme ...... 181 Government Equalities Office...... 186

Alcohol...... 182 Homeless People...... 187

Banking: Asset Protection Scheme...... 182 Housing: HomeBuy Direct ...... 187

British-Irish Intergovernmental Secretariat...... 182 Northern Ireland Office: Staff...... 187

Census ...... 182 Northern Ireland: Weapons ...... 188

Children: ContactPoint...... 184 Police: Northern Ireland ...... 188

Climate Change ...... 184 Schools: Specialist Services ...... 189

Cycling...... 185 Sport: Swimming ...... 189 NUMERICAL INDEX TO WRITTEN ANSWERS

Col. No. Col. No. [HL4112] ...... 185 [HL4705] ...... 185

[HL4605] ...... 181 [HL4782] ...... 182

[HL4630] ...... 189 [HL4795] ...... 186

[HL4633] ...... 184 [HL4806] ...... 182

[HL4656] ...... 187 [HL4810] ...... 186 [HL4821] ...... 187 [HL4675] ...... 187 [HL4836] ...... 188 [HL4677] ...... 190 [HL4842] ...... 182 [HL4678] ...... 190 [HL4864] ...... 184 [HL4679] ...... 190 [HL4865] ...... 185 [HL4680] ...... 190 [HL4866] ...... 185 [HL4681] ...... 191 [HL4869] ...... 181 [HL4694] ...... 188 [HL4873] ...... 182 [HL4703] ...... 185 [HL4972] ...... 189 Volume 712 Monday No. 107 13 July 2009

CONTENTS

Monday 13 July 2009 Death of a Member: Lord Kingsland Tributes ...... 925 Questions Cluster Munitions ...... 928 Afghanistan...... 930 British Overseas Territories: International Negotiations ...... 933 Refugees ...... 935 Business of the House Motion on Standing Orders...... 937 Parliamentary Standards Bill Order of Consideration Motion ...... 938 Work and Families (Increase of the Maximum Amount) Order 2009 National Minimum Wage Regulations 1999 (Amendment) Regulations 2009 Companies Act 2006 (Consequential Amendments) (Uncertificated Securities) Order 2009 Companies Act 2006 (Consequential Amendments) (Taxes and National Insurance) Order 2009 ...... 938 Companies (Share Capital and Acquisition by Company of its Own Shares) Regulations 2009 Companies Act 2006 (Consequential Amendments, Transitional Provisions and Savings) Order 2009 Community Interest Company (Amendment) Regulations 2009 ACAS Code of Practice on Time Off for Trade Union Duties and Activities Motions for Approval...... 939 Companies’ Remuneration Reports Bill [HL] Third Reading ...... 939 Perpetuities and Accumulations Bill [HL] Report...... 939 Coroners and Justice Bill Committee (7th Day)...... 941 G8 Statement...... 946 Coroners and Justice Bill Committee (7th Day) (Continued) ...... 959 Identity Cards Act 2006 (Information and Code of Practice on Penalties) Order 2009 ...... 1002 Identity Cards Act 2006 (Provision of Information without Consent) Regulations 2009 Identity Cards Act 2006 (Fees) Regulations 2009 Identity Cards Act 2006 (Prescribed Information) Regulations 2009 Identity Cards Act 2006 (Application and Issue of ID Card and Notification of Changes) Regulations 2009 Motions for Approval...... 1021 Coroners and Justice Bill Committee (7th Day) (Continued) ...... 1024 Written Statements...... WS 63 Written Answers...... WA 181