Vol. 750 Wednesday No. 86 11 December 2013

PARLIAMENTARY DEBATES (HANSARD) HOUSE OF LORDS OFFICIAL REPORT

ORDER OF BUSINESS

Questions Northern Ireland: Royal Residence...... 773 Schools Careers Service: Apprenticeships...... 775 Payday Loans ...... 778 China: Exports ...... 780 National Insurance Contributions Bill First Reading...... 782 Energy Bill Commons Reason...... 783 Anti-social Behaviour, Crime and Policing Bill Committee (7th Day) ...... 798 Criminal Defence Service (Very High Cost Cases) (Funding) Order 2013 Motion to Annul...... 869 Criminal Legal Aid (Remuneration) (Amendment) Regulations 2013 Motion to Annul...... 898

Grand Committee Olympic Legacy (S&T Report) Motion to Take Note ...... GC 53 EU: Fraud (EUC Report) Motion to Take Note ...... GC 174

Written Statements...... WS 73 Written Answers ...... WA 111

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real possibility of tourist potential not just from within House of Lords Northern Ireland and the rest of the United Kingdom, but that many people south of the border will be keen Wednesday, 11 December 2013. to come to Hillsborough Castle for its associations with Her Majesty and the Royal Family, as well as the 3pm important political associations that it also has? Prayers—read by the Lord Bishop of Truro. Baroness Randerson: My Lords, the intention is that the new arrangements will make it easier to Northern Ireland: Royal Residence attract both domestic and foreign tourists to visit Question Hillsborough Castle. It is important to remember that as well as being a beautiful castle—a beautiful building 3.07 pm with beautiful grounds—it has tremendous historic Asked by Lord Lexden significance. It is important to remember that royal tourism alone is estimated to be worth £500 million a To ask Her Majesty’s Government what year to the United Kingdom. Therefore, it is important arrangements are being made to establish a permanent that we open up the castle as much as possible—and Royal Residence in Northern Ireland. considerably more than has been possible in the past. The Parliamentary Under-Secretary of State, Wales Office (Baroness Randerson) (LD): My Lords, in Northern Lord Empey (UUP): My Lords, in welcoming the Ireland Hillsborough Castle is the official residence of Minister’s reply, I will ask her two questions. Firstly, Her Majesty the Queen and has been the sovereign’s Hillsborough Castle is owned by the Northern Ireland residence since 1922. The castle is also the residence of Office. When is it anticipated that it will be transferred the Secretary of State and of the Minister for Northern to the Historic Royal Palaces trust, and will any additional Ireland. Current proposals are to pass the operation trustees, including a trustee from Northern Ireland, be of Hillsborough Castle to Historic Royal Palaces and added to the trust board? significantly to increase public access. However, full royal and ceremonial use will continue unchanged. Baroness Randerson: There will be no change to the ownership of Hillsborough Castle. An agreement will Lord Lexden (Con): My Lords, I thank the Minister be signed with Historic Royal Palaces. It is anticipated, for telling the House about the important decision to following negotiations, that it will be signed next April, place Hillsborough in the guardianship of the Historic but there will be a transition period of two to three Royal Palaces trust. Does not the existence of a permanent years before the full handover to the new arrangements royal residence both symbolise and underline the enduring is complete. On the question of trustees, a Northern commitment of the Royal Family to all sections of the Ireland group already exists in relation to Hillsborough community in this part of our country—a commitment Castle. It is intended that this should be refreshed and perhaps best expressed by the late Queen Elizabeth the set up anew under the new arrangements. It will have a Queen Mother, who once told my noble friend Lord strong representation from Northern Ireland, as well Molyneaux that each night she included in her prayers, as trustees appointed by Her Majesty the Queen. “God Bless Ulster”? Does my noble friend also agree that it is most fitting that the decision should come in Lord Hamilton of Epsom (Con): Does my noble the year that His Royal Highness the Prince of Wales friend accept that if Scotland votes for independence, celebrated his 65th birthday, for the cross-community the future of Balmoral must be called into question? work of his many charitable organisations contributes Would that situation not make it even more important significantly to progress in Northern Ireland today? that there is a royal residence in Northern Ireland?

Baroness Randerson: My Lords, I agree with the Baroness Randerson: My Lords, along with many of noble Lord that the Royal Family is to be commended your Lordships, I am concentrating on supporting the for its loyalty and for the work that it has done with Better Together campaign. I am not making plans, Northern Ireland. We all remember the significance and neither are my noble friends, for any future situation almost two years ago of the Queen’s handshake. The in Balmoral. existence of Hillsborough Castle as a royal residence is guaranteed under the new arrangements, and full facilities for royal access will be there. It will be easy for Lord Bew (CB): My Lords, does the Minister accept members of the Royal Family to use the castle when that the fact that she is able to make this announcement they wish for their royal duties in Northern Ireland. today reverses the great historic error of the 19th century in not having a royal residence in Ireland, and that it Lord Alderdice (LD): My Lords, does my noble can only be done because of the stability brought to friend accept that, given the extraordinary—indeed, Northern Ireland’s constitutional status as a result of transformational—effect of Her Majesty’s visit to the the Good Friday agreement of 1998? Republic of Ireland, and the fact that Hillsborough Castle is not only a royal residence but a place of Baroness Randerson: Hillsborough has been in its enormous political significance on the island of Ireland current situation since about 1922, I believe, but the because of the signing of the Anglo-Irish agreement noble Lord makes a very good point. It is the stability and the importance of other negotiations, there is a of the political situation that has made it possible for 775 Northern Ireland: Royal Residence[LORDS] Schools Careers Service: Apprenticeships 776

[BARONESS RANDERSON] expressed disappointment with the National Apprenticeship the Northern Ireland Office to consider new arrangements Service and recommended that the NAS should be for the management of Hillsborough Castle, and to given statutory responsibility for raising awareness of ensure at the same time that security levels are maintained. apprenticeships,canheexplainhowfartheserecommendations That will be possible under the new arrangements have been carried out? because of the security and political situation. Lord Nash: The National Apprenticeship Service Lord Dannatt (CB): My Lords, I declare an interest funds the Education and Employers Taskforce, which as a trustee of Historic Royal Palaces. Will the Minister is a programme to deliver knowledge about apprenticeships confirm that there has been very widespread consultation to schools. We also had 70 advisers from the National both within Northern Ireland and in Ireland itself, Careers Service and Jobcentre Plus stationed at the and that the experience of Historic Royal Palaces in Skills Show in November. The National Careers Service running five additional palaces in the United Kingdom and the National Apprenticeship Service ran a jobs gives the charity great experience? I hope that the bus road show, and we are pursuing a number of other Minister will also agree that we can have every confidence measures in this area. that this will be a successful and prominent move for the future that will make the castle more available to all people, both tourists and local residents. Baroness O’Cathain (Con): My Lords, is my noble friend aware of the huge amount of work going on in Baroness Randerson: I am delighted to confirm that the area of apprenticeships? Sub-Committee B of the the Northern Ireland Office sought a secure and European Union Committee is taking evidence on prosperous future for Hillsborough, and one that would youth unemployment at the moment, and the great enable it to be opened up to the public. Historic Royal finding is that many large companies are actively Palaces was the obvious choice, because as an organisation getting involved in apprenticeships for the first time in it does not depend on public money and it has a very many years. We have heard about some outstanding well established position through the five palaces it examples of this, and when our report comes out I already runs. Indeed, it is the case that the Royal think that he might be surprised. Family has already signed an agreement with Historic Royal Palaces about the future use of Hillsborough Lord Nash: I am grateful for my noble friend’s Castle. comment. Our priority is to expand apprenticeships, particularly where they deliver the greatest benefits to young people, are of high quality, last longer and are Schools Careers Service: Apprenticeships more rigorous. Of course, since this Government came Question into power, we have delivered 1.5 million new apprenticeships. 3.15 pm Asked by Baroness Bakewell Lord Young of Norwood Green (Lab): My Lords, is the noble Lord aware that, when I speak to young To ask Her Majesty’s Government what steps people in a wide variety of secondary schools as part they are taking to ensure that career services in of the House of Lords outreach scheme, there is little schools make pupils fully aware of apprenticeship or no knowledge of 16-to-18 apprenticeships, and that opportunities open to them. schools are focused on sixth form recruitment? What action are the Government taking to ensure that all The Parliamentary Under-Secretary of State for Schools secondary schools offer impartial guidance, have links (Lord Nash) (Con): My Lords, schools are legally required with local businesses, and invite young apprentices to to secure independent careers guidance for 12 to 18 year-olds, speak to pupils? and that includes information on all education and training options, including apprenticeships. We will publish revised statutory guidance to help schools Lord Nash: I agree entirely with the noble Lord that deliverbettersupporttopupils,includingaboutapprenticeships. links between schools and businesses are key. Schools Young people are most likely to be influenced by can no longer feel that they need just to teach; they hearing directly from employers and apprentices. We have to open their doors to businesses, and businesses will be strengthening the importance of partnerships have to engage with them. In my travels around the between schools and businesses via the National Careers country, I have not found any difficulty with businesses Service. Ofsted is ensuring that careers guidance and wanting to engage with schools; it is usually a question pupil destinations will be given greater priority in of putting in place the structures. The organisation inspections. Business in the Community has a marvellous programme called Business Class which is providing careers advice, mentoring and workplace experience to 300 groups of Baroness Bakewell (Lab): My Lords, I thank the schools. There is the Glass Academy in Sheffield and a noble Lord for that Answer, but given that the House number of other such models. However, we need to of Commons Business, Innovation and Skills Committee widen these efforts, and I know that the Social Mobility report of 2012-13 found that, and Child Poverty Commission made some excellent “awareness and resources in schools and colleges remains lacking”, recommendations in this area a couple of months ago. 777 Schools Careers Service: Apprenticeships[11 DECEMBER 2013] Payday Loans 778

Baroness Howe of Idlicote (CB): My Lords, will the unless they give them a direct line of sight. I have been Minister confirm the steps that I am sure the Government so impressed talking to young people about how the must be taking to ensure that as many girls as boys are experience of going to the workplace and meeting people aware of these apprenticeship schemes, particularly in work has raised their aspirations. From this they in engineering, where there are certainly very many have managed to reverse-engineer backwards what more young boys than young girls taking up these they need to do to achieve this themselves. apprenticeships at the moment? Payday Loans Lord Nash: I entirely agree with the noble Baroness. Question It is very important that we get a higher participation rate of girls in STEM subjects. We are funding the Stimulating Physics Network and the Further Maths 3.23 pm Support Programme to increase the take-up of A-level Asked by Lord Selsdon physics. The STEM Ambassadors programme gives careers advice on more technical qualifications and To ask Her Majesty’s Government what steps apprenticeships. However, as my colleague Liz Truss they are taking to regulate the issue of payday loans said recently, it is excellent teaching and a culture of to those without a regular income. equal aspirations for all that will help engage more girls, so all we are doing to improve the quality of Lord Newby (LD): My Lords, the Government have teaching helps in this regard. made it clear that payday lenders should make loans only to those who can afford to pay them back. From Lord Addington (LD): My Lords, can my noble April 2014, the Financial Conduct Authority will require friend assure me that a teacher or careers adviser will lenders to undertake thorough affordability assessments be able to advise a dyslexic pupil in a one-to-one to ensure that borrowers are able to make sustainable interview that he or she can now access, or will soon be repayments. No later than January 2015, the FCA will able to access, the apprenticeship system, as the barriers cap the cost of payday loans so that borrowers in to dyslexics getting through the functional skills test in financial difficulty do not face spiralling debt. English and maths will be removed? Lord Selsdon (Con): My Lords, I am most grateful Lord Nash: My noble friend speaks with great to the Minister for his reply, but he has not actually passion and personal experience on this subject; I have given me the answer I needed because my skills at heard him do so many times, and we have already met mathematical calculations are not great at the moment. on this subject. The Government are aware of the If my noble friend wanted, for example, to take out a technical issues with assisted technology in the English payday loan for £1,000 to cover him over the Recess, and maths assessments. We are meeting the British what would the rate of interest and repayment be over Dyslexia Association, Ofqual and the Dyslexia Trust a matter of a few weeks? to try to ensure that we send a very clear message to all involved, providers and examiners, that there is the Lord Newby: Almost certainly too high, my Lords. ability to use screen readers, in the case of dyslexia, as well as other assistive technology. I think that my Lord Mitchell (Lab): My Lords, in 2008, 12 million noble friend knows that he has my personal commitment people viewed advertisements for payday lending —if he does not know, I give it to him now—that we companies. Last year, the total was 7.5 billion. Do the will do as much as we can to sort this out. Government feel that the time has come for us to ban advertising for payday lending on television, particularly Baroness Wall of New Barnet (Lab): My Lords, in when it is directed at children? response to my noble friend’s earlier question, the Minister said that it was really down to employers to Lord Newby: My Lords, the Advertising Standards do more work. Is he aware that employers try very Authority has been looking at a rising number of hard to be in touch with schools, but that there is an complaints about payday loan advertising on television. issue around head teachers, in particular, encouraging It has the power to ban misleading ads and already that? As my noble friend Lord Young said, rather than has done so in respect of ads placed, for example, by aiming primarily for academic qualifications, this country Cash Lady and FirstPayDayLoanUK. From April needs very good apprentices; we need women apprentices, next year, the FCA will have the power to ban misleading as the noble Baroness, Lady Howe, said, but we also financial promotions. It will be able to look at advertising need people to get engaged with apprenticeships and and the whole way in which payday loans are promoted be encouraged to do so. That is not evident. under that new power.

Lord Nash: I am sorry to hear the noble Baroness Lord Martin of Springburn (CB): My Lords, there make that comment. I think that it is a two-way street. is deep concern in the social and community-based We need schools willingly to engage with all walks of housing movement because the payday loan operators business for all apprenticeships, but I still hear shocking get access to people’s personal accounts to take the stories about schools being reluctant to send their direct debit. The danger is that when people receive a pupils on them and heads being too focused inwardly. rollover loan, in many cases the payday loan company They cannot give their children a good education has taken all the money out of that account and left 779 Payday Loans[LORDS] China: Exports 780

[LORD MARTIN OF SPRINGBURN] Lord Newby: My Lords, a real-time database is one the housing association with a tenant who is in deep of the things that the FCA will be looking at. In some arrears. Sometimes they are forced to take out eviction of the countries and US states where they have effective notices, which they are very reluctant to do. Can this caps on the cost of payday loans, such systems have be looked into? been seen to work efficiently and be very effective.

Lord Newby: My Lords, this matter has been looked Lord Davies of Stamford (Lab): My Lords, we into. The Financial Conduct Authority, which takes heard a moment ago about the danger of lenders from responsibility in this area from next April, has already other EU countries undercutting any legislation or proposed limiting continuous payment authorities to regulation that we introduce in this country. Has the two payments and reducing rollovers to two. It has the noble Lord considered discussing with the European power to constrain them further than that if that is Commission the possibility of legislating on an EU-wide still seen to be an issue. That is one of the things that basis for the single market as a whole? the FCA will look at as part if its assessment of the total cap of the cost of payday loans, which it is Lord Newby: My Lords, this is a rapidly moving currently considering. area. If you go back five years, it was not an issue. We are discussing with other member states the operation Lord Razzall (LD): My Lords, I will follow the previous of the consumer credit directive, for example, and the two speakers but extend the question a little more way in which the market is evolving. As the FCA widely. What steps do the Government propose to take moves towards putting in place a cap of the total cost to ensure that payday loan operators cannot simply of payday loans, we will see exactly how the system is move their headquarters overseas and operate outside working in the majority of those member states that the restrictions that are going to be brought in? already have a cap and whether there is any real advantage in moving to a Europe-wide system, or Lord Newby: My Lords, under the e-commerce whether the series of national caps is proving effective. directive, which was introduced during the lifetime of the last Government, payday loan operators are able to relocate. However, a majority of EU member states China: Exports already have some kind of cap on the cost of payday Question loans, even if not necessarily as comprehensive a cap as we have, and there is an ongoing debate in those 3.30 pm member states that do not yet have a cap about Asked by Lord Wei implementing one. There are already a majority of EU member states to which it would almost certainly be To ask Her Majesty’s Government what assessment uneconomic or pointless for payday loan lenders to they have made of the prospects of increasing United switch their bases of operation. Kingdom exports to China following the trade missions led by the Prime Minister and the Chancellor Lord Kinnock (Lab): My Lords, when the lenders of the Exchequer. invariably advertise the ease of access to money and, even more crucially, the ease of repayment, can their The Minister of State, Department for Business, Innovation adverts ever be anything but misleading? and Skills & Foreign and Commonwealth Office (Lord Livingston of Parkhead) (Con): My Lords, last week I Lord Newby: My Lords, a lot of effort is being was delighted to help the Prime Minister lead the undertaken by the FCA to make sure that the adverts largest ever UK business delegation to China. Our are not misleading. We debated this at Third Reading bilateral trade and investment relationship with China of the banking reform Bill. The key thing is that is improving. Exports to China have almost doubled people should know what the repayments are, not just since 2009 and more Chinese investment has come in terms of the interest rate—people are very often not into the UK in the past 18 months than in the past desperately familiar with that—but in terms of being 30 years combined. However, there is more to be done, absolutely clear about what they have to repay and especially in focusing on areas where the UK has when. The point that possibly lies behind the noble particular strengths and where these match China’s Lord’s question is whether there should be payday emerging demands. Many of these strengths—healthcare, loans at all. As long as payday loans are legal, people education, the creative industries and agri-tech, to have to make some sort of assessment about whether name but a few—were showcased last week. Several they are going to be in a position to repay them. What agreements in these sectors were signed during the the Government and the FCA are committed to doing visit and these will open further opportunities for UK is to make the costs as clear as possible and limit the exporters. potential downside of less than prompt repayment. Lord Wei (Con): I thank my noble friend the Minister The Lord Bishop of Truro: My Lords, what for his response. I look forward to the future growth in consideration, if any, has been given to introducing a exports that will result from these significant and real-time database of payday loans in order to ensure much needed visits, and congratulate him on the role that the proposed FCA rules can be properly monitored that he played in the most recent one. We know that and enforced and, in particular, to avoid the problem—a inward investment from countries overseas such as special one at this time of year—of people being able China and India can help build our capacity for exporting, to take out multiple loans from different companies at with Jaguar Land Rover, Aquascutum and many other the same time? companies showing the way. However, our current 781 China: Exports[11 DECEMBER 2013] National Insurance Contributions Bill 782 measures of success do not necessarily capture the Lord Livingston of Parkhead: My noble friend is interactions between such investment and exporting. correct that the legal services sector is one of the most What are the Government doing to encourage, measure important sectors for the UK. He may not be comforted and link investment and exporting activities from countries by the fact that we took some accountants on the trip. such as China to grow total trade? The law firms were represented, particularly in discussions on the Shanghai free trade zone, in which the UK is Lord Livingston of Parkhead: I thank my noble going to provide excellent support. The UK legal friend Lord Wei for that point and his efforts in sector is a great strength, not just as an export in its promoting UK-Chinese trade. He is right to raise a own right but as a reason for FDI into the UK, number of areas, including export from the UK, imports because it shows that the rule of law and support from from China and our relationship as regards investment. professional services are very strong. I will certainly During the trip, I was delighted that we announced seek to champion the legal sector going forward. programmes that will help UK investment in China and Chinese investment in the UK, particularly in the area of the supply chain. We have found that, in a Lord Davies of Coity (Lab): My Lords, we know number of areas, to be important in improving our that nothing happens in China except by the leave of overall trade performance. the Communist Party, which controls the whole of China. We know what the British delegation wants Baroness McIntosh of Hudnall (Lab): My Lords, from China. Can the Minister tell the House what the the noble Lord mentioned the creative industries. He Chinese want? will be aware that the delegation of which he was part included members from the cultural sector, including Lord Livingston of Parkhead: The Chinese refer to Sir Peter Bazalgette, chair of Arts Council England, us as partners for growth. Particularly since the third Nick Starr, executive director of the National Theatre, plenum, the Chinese see a real opportunity to partner and Joey the Horse, the puppet star of the National the UK in key areas, as China expands its cities and Theatre’s production of “War Horse”. Does he agree needs to make its environment greener—there are a lot that the cultural sector in this country, particularly the of environmental issues in China. UK products are performing arts, is widely respected the world over for loved in China. The cultural sector was mentioned the skills and products that it can export? Does he also earlier. Yes, we can mention whisky. We have even agree that this is a good reason for the Government to been selling tea to China, which is remarkable. Going continue to give the cultural sector the maximum forward, the UK’s products and services are ideal for possible support? what China needs as a result of the change in its economy. We look forward to continuing to increase Lord Livingston of Parkhead: I thank the noble our exports to China, because we have a lot of ground Baroness for her comments and absolutely agree that to make up. this was one of the highlights of the trip, particularly Joey the Horse, who got a standing ovation at the gala lunch that we held. Joey was the star of the trip, after Lord Howe of Aberavon (Con): No doubt my noble the Prime Minister of course. It was not just in culture friend is aware that during the past year, the China that our DNA was represented, but in the Premier Investment Corporation—a sovereign wealth fund—has League as well. This not only has export potential in taken a 9% stake in Thames Water and a 10% stake in its own right but is an expression of British soft power Heathrow. This year, another Chinese corporation, and its opportunities. We will certainly make sure that Advanced Business Park, has said that it will undertake we include the creative industries as part of our overall a £1 billion redevelopment of the Royal Albert Dock. export effort, and I thank the noble Baroness for her Is it not clear that we are looking not at a single comments about our support of the cultural sector. arrangement but at a joint, substantial, two-way partnership between the two countries? Lord Clement-Jones (LD): My Lords, I warmly welcome my noble friend to his new role, and the Lord Livingston of Parkhead: I thank my noble and success of the Prime Minister’s visit to China. I declare learned friend for that comment. We are certainly an interest as a partner of a law firm. Why did the seeing substantial investment from China into the Prime Minister not find room in his huge delegation UK—and, indeed, vice versa. We visited a city where for any representative of the UK legal services sector? Diageo has made a large acquisition. WPP is a very The sector contributes some £3 billion to our professional strong firm in China. It certainly is a partnership. services exports; it provides crucial commercial and China, as one of the most powerful nations in the dispute-resolution services and support for British world, having a stake in the success and growth of the businesses around the world; and, not least, will help UK economy is certainly no bad thing either. them to take advantage of the new Shanghai free trade zone. I realise that not everybody wants to be accompanied by a lawyer on their travels. National Insurance Contributions Bill First Reading Noble Lords: Hear, hear! Lord Clement-Jones: However, seriously, how does 3.38 pm this square with the continuing support that is being given by the MoJ and UKTI to boost the growth of The Bill was brought from the Commons, read a first the legal services sector internationally? time and ordered to be printed. 783 Energy Bill[LORDS] Energy Bill 784

Energy Bill As my right honourable friend the Minister set out Commons Reason in the other place, we already face a significant investment challenge that will require an estimated 16 gigawatts of new gas plant to be built over the decade from 2015 to 3.39 pm 2024 and around 45 gigawatts in total of all forms of generating capacity in this period. My department has Motion A therefore looked at a scenario where all our coal-fired power stations close by 2025, which is one possible Moved by Baroness Verma risk of this amendment. The results of this analysis show that, as a result, in the 2020s average household That this House do not insist on its Amendment 105, electricity bills would be around 3% to 4% higher, to which the Commons have disagreed for their average non-domestic bills would be around 4% to 6% Reason 105A. higher and average energy-intensive industry bills would 105: Page 125, line 3, at end insert— be around 5% to 7% higher. “(iii) substantial pollution abatement equipment dealing The Government are taking a balanced and with oxides of sulphur, oxides of nitrogen, heavy metal emissions or particles is fitted to the generating station.” precautionary approach that seeks to protect consumers and ensure our security of supply. Our emissions Commons Disagreement and Reason performance standard is ambitious—the first in Europe— The Commons disagree to Lords Amendment No 105 for the but it is right that ambition should be balanced with following reason— measures for a sensible transition. Ultimately we must 105A ensure that we transition to a low-carbon economy in Because it is inappropriate for the fitting of pollution abatement a way that provides certainty for investors, secure equipment to cause the emissions limit duty to apply to energy and is deliverable at the lowest possible cost to existing generating stations. consumers. Amendment 105B proposed by the Motion of the The Parliamentary Under-Secretary of State, Department noble Lord, Lord Oxburgh, would bring all existing of Energy and Climate Change (Baroness Verma) (Con): fossil fuel plants within the EPS regime from 2025, My Lords, we return to discuss the emissions performance thereby requiring them to operate within the annual standard and whether it should be possible to apply it emissions limit set by the EPS. In common with fossil to existing coal plant in wider circumstances than the fuel plants that are consented after the EPS comes into Bill currently envisages. The Government set out in force and to which it will apply, the power to suspend earlier debates, both in this House and in the other the EPS contained under Clause 48 could be used to place, why we believe Amendment 105 is unnecessary. allow those existing plants to operate over and above It has become clear over the course of the debates that their limit should it be necessary to avert a threat to there is an almost unanimous consensus on the need security of supply. I am grateful for the spirit in which substantially to decarbonise our electricity generation the noble Lord proposes this amendment but, ultimately, by 2030. There is a similar consensus that there will be what is at stake with both these amendments is an little or no role for unabated coal generation in that assessment of risk. I ask noble Lords to consider future. carefully whether they can be confident that the In this Bill, the Government have brought forward amendments will not give rise to risks that, were they a suite of measures that they believe will deliver the to materialise, would be difficult and costly to address. outcomes that we all wish to see. The Bill will do so The Government do not have that confidence. The without risk to our security of supply and at the question that noble Lords need to ask themselves is: lowest possible cost to the consumer. The Government do they have the confidence to take that risk? believe that they already have the right balance of It is through the measures in the Bill that we will measures to deliver a secure, low-carbon electricity reform the UK electricity market and attract the capital system at the lowest cost. investment needed to decarbonise our electricity sector Amendment 105, proposed by my noble friend at the lowest cost to the consumer. The Government Lord Teverson, would allow application of the emissions have listened carefully during the passage of the Bill performance standard to any coal-fired power station through this House and the other place and have that fits the pollution clean-up equipment needed to accepted measures that have improved it greatly, but meet the requirements of the industrial emissions directive. the amendments would add an unacceptable risk. This To date, only one station, Ratcliffe-on-Soar, is fitting House insisting on an amendment today will delay the the equipment needed to comply with the directive Bill and will serve only to undermine investor confidence. and there is no evidence that a large number of others I therefore urge noble Lords to consider both the are seeking to do the same. However, this amendment direct and the wider implications of insisting on their could result in all but one of the 12 coal-fired power amendments, given those impacts, and that a significant stations expected to be operational after 2015 being majority opposed this amendment in the elected Chamber. subject to limited hours or forced closure under the The Government do not believe that the amendments directive. There is a risk that this, in turn, could lead to would provide greater certainty without, at the same a scenario where more stations close earlier than might time, creating risks to our security of supply and of otherwise be the case. Were this to happen, it would increased costs to the consumer. On the contrary, require more gas generation to be built earlier than we causing delay to this vital legislation will only create currently project and, crucially, result in increased cost uncertainty and risk delaying investment in our energy to consumers. sector when it is needed most. I beg to move. 785 Energy Bill[11 DECEMBER 2013] Energy Bill 786

3.45 pm The fundamental purpose of the present amendment —and, indeed, the original Teverson amendment—is to make clear that a role for unabated coal in the Motion A1 national energy mix is not foreseen beyond 2025. Moved by Lord Teverson Indeed, that is the Government’s position. In the other place, the Minister indicated that he expected the As an amendment to Motion A, leave out from overall contribution of coal to our electricity generation “House” to end and insert “do insist on its in 2025 to be about 3%. In the unlikely event that Amendment 105.”. external events made it look as though unabated coal would be needed longer, the Bill already contains Lord Teverson (LD): My Lords, I am very aware of provisions to deal with that unlikely eventuality. my noble friend’s remarks. I am also aware of the Noble Lords may ask why we are bothering with various matters around this issue. I believe that it is this now. It is simply to provide an additional crumb important that we still try to reach a compromise of of confidence to those who are contemplating investing some sort. Therefore, I wish to reserve my remarks in new, gas-fired power generation. It is a bad time for and withdraw my amendment in support of the noble investment in energy utilities and it would be helpful Lord, Lord Oxburgh, in trying to reach a compromise. to have a clear indication that gas will be our main I therefore beg leave to withdraw my amendment. means of fossil-fuel generation from the 2020s onwards. It is probably unnecessary to point out that this Motion A1 (as an amendment to Motion A) withdrawn. amendment could have no real effect on energy prices in the foreseeable future. This is mostly because the amendment would have no effect on generation until Motion A2 well into the next decade and partly because power Moved by Lord Oxburgh price is largely determined by the swing producer, which is gas. At present, coal is cheap and is making As an amendment to Motion A, at end insert “, an increased contribution to our power generation. and do propose Amendment 105B in lieu” However, you will have noticed that this does not 105B: Page 46, line 31, at end insert— translate into lower electricity prices but rather into “( ) No fossil fuel plant shall operate after the year 2025 if its better margins for coal-fired power stations. emissions are not less than the statutory rate, unless it has The Government have said it is urgent that this Bill been exempted under the provisions of section 48 (suspension should become law. We agree, and a simple way of etc of emission limit in exceptional circumstances).” ensuring this is to accept this constructive and simple amendment. I beg to move. Lord Oxburgh (CB): My Lords, I do not think that I have any relevant interests to declare, but I draw Baroness Worthington (Lab): My Lords, if there is attention to the published record. no one else who wishes to speak now, I will. We have heard why the Minister feels that we should Here we all are, almost at the end of the process of not persist with the amendment of the noble Lord, electricity market reform in the Energy Bill. We have Lord Teverson, which was passed by this House with a spent many months debating these interventions in the substantial majority. Noble Lords may also have read electricity market and felled a fair few trees printing all the Minister of State’s speech in the other place. the documents. However, despite all this effort, the Bill Having read the arguments, I concluded that there was is still deficient in a number of important respects. It little between the Government and those supporting fails to bring about true competition in generation, the amendment. For that reason, I am today offering a handing yet more power and money to incumbents via differently worded amendment that to many of us the capacity mechanism, and it fails to make clear that seems both to meet the spirit of the amendment of the the objective of all this intervention is to decarbonise noble Lord, Lord Teverson, and to satisfy government our electricity. The net effect of these deficiencies is concerns. that the process of decarbonisation, which the Bill I am doing that in my capacity as unofficial chairman seeks to introduce, is more expensive than it need be. of this House’s unofficial cross-party Energy Bill group, The original Amendment 105 and the new compromise which first carried out the unofficial pre-legislative amendment tabled by the noble Lord, Lord Oxburgh, scrutiny of the Bill at the request of the then Energy seek to achieve the same thing: providing a back-stop Minister in our House, the noble Lord, Lord Marland. for existing government policy that seeks to make The group has held widely advertised regular meetings unabated coal a diminishing part of the energy mix by with the Minister and officials during the passage of preventing lock-in to high-emissions plant in the 2020s. the Bill, and I take this opportunity to place on record This plant can be upgraded to comply with tighter air our gratitude. quality standards. The more coal we burn, the more I also thank the Minister for yesterday convening effort we have to undertake, using more expensive another meeting of the group and for securing the options, to meet the same emissions reduction targets. attendance of the Minister of State for Energy. We The Government’s chosen policy to constrain coal heard what he had to say, and he heard what we had to investment is the carbon floor price, but this is a say. We offered him the amendment that is before you deeply unpopular and very expensive policy. It lacks today, but his officials advised him not to accept it. I credibility as it is a financial Bill measure that can be think that to pretty much all those present the reasons easily done away with. It therefore creates a huge offered for not accepting it were pretty thin. amount of political risk for investors. 787 Energy Bill[LORDS] Energy Bill 788

[BARONESS WORTHINGTON] One of the things that the Government are currently The emissions performance standard underwrites struggling with is that, at the root of this, there is not that policy, reducing risk. The EPS is a tried and tested sufficient clarity in the backing of these decarbonisation policy and it has the benefit of providing absolute clarity objectives. It would obviously be very easy to solve the to the market about what is required. It is already used energy trilemma by simply lopping off one of the legs. in California and Canada and in both cases the limit If you simply say, “All we need to do is keep the lights on emissions applies to old coal plant, not just new. In on at least cost”, there is no problem; you would stick Canada the clarity of that regulation has brought with the coal. It seems that this Government are not forward investment in the world’s first commercial-scale actually committed to decarbonisation as they have CCS plant, which will open next year. In the UK we lopped off one of the legs and are seeking a return to have not followed this but have opted instead to try to coal at just the time when, internationally, we are tax coal off the system—an option that is not delivering pressing everybody else to move away from unabated at the moment. Unfortunately, there is a great risk that coal. this course of action will continue to fail and operators This is a sensible and moderate amendment, and it of coal will decide to sweat their assets for longer, gives clarity to everyone. It reduces investor risk, using the large up-front payments they will now receive particularly for those people operating gas stations from the capacity market. and seeking to invest in new gas stations. I hope that The original amendment required the old coal stations noble Lords on all sides of this House will find that seeking life extensions to operate for only 40% of the they can support this amendment and I hope that the time, under the EPS limit, guaranteeing that they Minister will ultimately support it, too. would be available for the peak but not allowing them to baseload. In rejecting the amendment, the Government Viscount Hanworth (Lab): My Lords, we have been argued in the other place that this change might told that the Energy Bill has two purposes. The first dissuade some plant from upgrading at all and therefore purpose is to secure the much needed investment in reduce the amount of plant available for peaking. new plant for generating electricity. The second is to The noble Lord, Lord Oxburgh, has listened to decarbonise our electricity supply. Amendment 105, these concerns and now tabled an amendment which which has been rejected by the Government, was offers a different approach. His amendment would closely aligned with these two purposes. Its effect was require the limit on emissions equivalent to 40% of to ensure that if there were major upgrades to coal-fired capacity to apply only in 2025, 12 years from now. power stations, such as to enable them to meet the Operators of upgraded plant would therefore be able European emission requirements in respect of sulphates, to use their three-year capacity payments to offset the nitrates and heavy metal contaminations, they should costs of upgrading and continue to sweat their assets also be constrained to meet the emissions performance for another five years at full capacity, which would standards in respect of carbon dioxide that are imposed then be available for 40% of the time thereafter. This by the Bill. The subsequent amendment tabled by the seems like a good deal. By 2025, all but one of the six noble Lord, Lord Oxburgh, reinstates this requirement plants that this amendment would apply to will be but includes a let-out clause that would allow the more than 55 years old, having emitted together over Government to alleviate the requirement, if necessary. 1 billion tonnes of CO2 over their lifetimes, so 2025 is Presumably, this would be appropriate in a case where well past their closure date. the lack of capacity was so pressing as to imply a real This amendment is a compromise but one which danger of the lights going out. still has the benefit of clarity for everyone: clarity for The Minister, Michael Fallon, argued in the Commons the coal plant; clarity for gas investors; and clarity for that to include such amendments would add to the the environment. To leave things as they stand is to risks faced by investors. The logic of his position escapes allow a known unknown to persist needlessly. With no most of us, who believe that the original Amendment decarbonisation targets to guide government policy— 105, or its replacement by the amendment of the noble Lord Forsyth of Drumlean (Con): The noble Baroness Lord, Lord Oxburgh, would clarify the intentions is probably drawing her remarks to a close but before of the Bill in a way that would actually encourage she does so, can she explain to me how what she is investment. Why does that Minister insist on the rejection saying in supporting this amendment is consistent of these amendments? Is it that he wishes there to be a with the leader of the Opposition’s declared policy to loophole in the legislation that would allow dirty, hold down energy prices and with maintaining security coal-fired power stations to remain in operation, of supply? notwithstanding the ostensible purpose of the Bill? There are certainly grounds for such a suspicion. Baroness Worthington: It is absolutely consistent However, the Minister has asserted on several occasions because what we have said is that we will seek out the that he doubts, even with the allowances the Bill least costly forms of carbon abatement. There is no affords, whether any of the old coal-fired power stations cheaper way of reducing carbon dioxide than using have a future. existing gas stations in place of existing coal stations. Perhaps we should believe in his good intentions That is how the UK decarbonised its economy in the and allow ourselves to look elsewhere for the reasons 1990s and that is how we should be doing it again now. for his intransigence. The reasons are not hard to find. However, there is sufficient doubt about that, because The Minister has a need to conciliate a faction in his of the price of coal relative to the price of gas. It is party that is firmly opposed to all measures aimed at absolutely consistent to say that we want to keep staunching the emissions of carbon dioxide. They prices low by supporting this amendment. point to the cases of Germany and the Netherlands, 789 Energy Bill[11 DECEMBER 2013] Energy Bill 790 which are in the act of commissioning unabated coal-fired tactical issues such as the speed of passing of the power stations. They demand to know why Britain legislation but simply on the wording, what their should be imposing constraints upon itself when others opposition in principle could be. The simple fact of are failing to do so. the case is that Parliament several years ago passed an Act of Parliament by huge majorities, committing us 4pm to the very significant decarbonisation of our economy: I believe that the Minister’s stance has the sole an 80% reduction in CO2 emissions by 2050. It is the purpose of allowing this faction to believe that the clear conclusion of all analysis, including that of the intentions of the Energy Bill can be eventually subverted. Committee on Climate Change that I used to chair, If he does not himself intend this outcome—and we that there is no believable path to that emissions must be generous enough to believe this—then he reduction by 2050 which does not involve the very must be intent on bamboozling some of the members significant—almost total—decarbonisation of electricity of his own party whose objectives differ from his own. in particular by around 2030. This is not the sort of consideration that should Clearly that is completely incompatible with a role influence the legislation. The legislation will be greatly for coal other than as providing a small number of clarified by the inclusion of these amendments, which hours a year of peaking capacity into the mid or late would make its intentions unequivocal. On this basis I 2020s. This amendment would simply ensure that that would urge your Lordships to support the amendment possibility would clearly be excluded—with, however, of the noble Lord, Lord Oxburgh. a get-out under Section 48 if that at all endangered an adequacy of supply. It simply seeks to ensure that we will not have unabated coal in significant quantities in Lord Jenkin of Roding (Con): My Lords, I will be the late 2020s, and it does so 12 years ahead, in order brief about this. I understand the argument put forward to influence the decisions on investment that are required by the noble Lord, Lord Oxburgh, and I accept that he for security of supply. is trying to reach a compromise. This Bill started with the support of all parties in Parliament. I was a little I fail to see what the disadvantages of the amendment disappointed to hear the noble Baroness’s complaints are. It would give greater clarity over our plans for that the Bill does not meet many of the requirements coal and over the opportunities for gas, and I therefore that she would wish to see in it, but on the whole her support the noble Lord, Lord Oxburgh, in his amendment. party has supported the Bill. Indeed, it has gone further and recognised that the Bill’s passage is deeply Lord Forsyth of Drumlean: My Lords, I am prompted important to the future of our energy industries here. to rise because of the rather unwarranted attack that My noble friend Lord Lawson described it as the the noble Viscount made on Ministers. None of us worst Bill he had ever seen, took part in the first day of takes responsibility for security of supply in the future. Committee and we have not heard from him since. The The late Baroness Thatcher used to say that the only fact is that everybody else who has taken part in the thing that was certain in politics was uncertainty. passage of the Bill has recognised that the new machinery, None of us knows what the future holds or what the which sets up the electricity market reform as an likely position will be in 12 years’ time. This amendment essential part of our generation and consumption would remove the flexibility that a future Government measures, is crucial for foreign investment—for all would have in order to keep the lights on. It is really investment, but particularly when we have some of the quite wrong of the noble Viscount to present this as larger foreign companies willing to invest in this country. some kind of political matter that is exercising Back- Nothing upsets them more than if they see that there Benchers in the other place, as he did, with Ministers is uncertainty in Parliament over the Bill. responding to that rather than to their responsibility Picking up one point made by my noble friend to ensure that we have security of supply. I notice that Lady Verma, we have offered the other House a chance when I asked the noble Baroness on the opposition to consider the amendment that was carried in this Front Bench about security of supply, she did not deal House. It was firmly rejected by a much larger majority with the issue. there than passed it here. That is the purpose of this At the end of Question Time, we had a Question House. We have done it. It would be extremely damaging about China. We are now importing vast quantities of to the general intentions of this Bill if, yet again, we carbon from China because of the expansion of coal-fired were to send it back to the other place. It would send power stations there, and exporting jobs that would the wrong message. otherwise have been here. To present this as some kind I understand the points, made by the noble Viscount, of neutral political argument— that there may be some marginal advantages. I have had representations from the gas industry about this. The overwhelming reason, however, that we should Baroness Worthington: My Lords— reject the amendment of the noble Lord, Lord Oxburgh, is that the Bill needs to be passed. It should be passed Lord Forsyth of Drumlean: I shall give way in a without any further delay. For that reason, I intend to second, if I may. I bow to the considerable experience vote very firmly against his amendment. of the noble Lord, Lord Turner, in this matter, but there was a thing called the financial crisis, which he is Lord Turner of Ecchinswell (CB): My Lords, I speak also very familiar with, which followed and which has in favour of the amendment. I find it difficult to big implications for jobs and prosperity in future. understand, for anybody who concentrates not on Ministers are entirely right to take account of that. 791 Energy Bill[LORDS] Energy Bill 792

Baroness Worthington: I thank the noble Lord for Pricing is not a problem here. Would coal being giving way. I referenced security of supply in indicating removed from electricity generation lead to the threat that this would create greater certainty for gas investment, of price increases? In the past few years, when coal has not least by changing the merit order so that gas operated come on, we have not seen prices fall; in fact, the more for more of the time. The noble Lord’s interruption coal has come on the system, the more they have gone made me lose my place at the time, but I was going to up. That is the correlation; I would not say it is directly go on to mention that I learnt yesterday that one of causal, but that is the history of how this has worked. our biggest renewable projects, the biomass conversion On security of supply, the vast majority of that coal at Eggborough, is now in jeopardy because Ministers comes from Russia and Colombia, with a little bit in this Government have changed the early CFD feed-in from the United States as well. The security of supply rules in this Bill, which we have yet even to sign into arguments do not, therefore, all run in one direction. law. The rules have been changed midway through so On the question of how the coal generating industry is that the Eggborough project, which currently accounts treated under any of these amendments, it will be free for 4% of our supply and gives us firm renewables that to operate at peak times for a long time. That, along mean that we can back off from wind, is now in deep with contributing into the capacity market, will be jeopardy and is expected to have to close as a result of greatly to the financial benefit of the power station this Government changing their mind. operators. Lord Forsyth of Drumlean: The noble Baroness That is why these amendments are important. I makes my point for me: there is no certainty in the know that this is not important to everybody, but it is future. estimated that our carbon emissions went up by 4.5% last year, at a time when we were hoping to bring them Baroness Worthington: Under this Government. down. That was because of the increase in coal generation of electricity, according to the Department of Energy Lord Forsyth of Drumlean: Under this Government, and Climate Change. under future Governments—whatever. All that the This is a good Bill. I congratulate my noble friend Government are arguing in this regard is, “Don’t close the Minister on all that she has succeeded in doing off options that may, in the event of the unforeseen during the passage of the Bill. This is the only contentious happening, occur”. The noble Baroness, who presumably Lords amendment, and I seriously regret that the has concluded that she is never going to be in government Government have not been able to find a compromise again, has no interest in that, but those of us who or to help us through this important, core issue. believe that our parties will be in government would like to see our Ministers keep their options open. I Lord Dixon-Smith (Con): My Lords, I had not hope that the House will reject this amendment. expected to intervene in this debate, but the previous two speeches have forced me to my feet. I remind the Baroness Worthington: Does the noble Lord accept, House that these amendments, and this part of the though, that because demand for electricity is currently Bill, are talking about 2025. There is only one significant flat, keeping options open squeezes out investment in carbon target which must be met, which applies in new options? 2050. The rest of it is interim planning. If we are being silly here, of which I am quite capable, and sticking to Lord Forsyth of Drumlean: Before I sit down, I say an interim target, we are taking a very short-term view. to the noble Baroness that I would be more persuaded by her if she and her party were to be more open-minded 4.15 pm about the prospects for fracking, for example, in her advocating the future generation of electricity by gas. Lord Turner of Ecchinswell (CB): My Lords, I simply As always, though, the noble Baroness wants it both point out that the interim targets in the form of the ways, and I hope very much that the House will actual budgets are legally binding commitments of support my noble friend and reject this amendment. the Government under the Climate Change Act. Once the budgets are set—three budgets in advance—they Lord Teverson: My Lords, I will comment on the are not merely planning guidelines but are part of the amendment of the noble Lord, Lord Oxburgh. I agree Government’s legally binding commitments. and sympathise with my noble friend Lord Jenkin’s point that the Bill needs to proceed and that we must Lord Dixon-Smith: I am used to the Chancellor of get it on to the statute book. The only reason I have the Exchequer making annual Budgets and I have pursued this is that, as the noble Lord, Lord Turner, been involved in politics indirectly and directly for a suggested, the issue of the continued generation of very long time. If the Chancellor of the Exchequer is electricity by coal is fundamental to the policies of forced to, shall we say, amend interim budgets, it both this and the previous Government, and therefore seems to me that sticking our feet in the ground over needs to be clarified. These two amendments are attempts an energy budget is not exactly wise. to increase as far as possible certainty for investors and clarify the way forward. As the noble Lord, Lord Baroness Verma: My Lords, I am grateful to all Forsyth, said, that is not completely possible, but at noble Lords for their contribution to the debate. I least we can start to close down the risks and probabilities, hope that in my opening remarks I made it clear that which is one of the main purposes of the Bill. That is the Government recognise the intention behind this why the amendment has been pursued. I have been amendment. Of course we share that intention, but I happy—although reluctant—not to pursue my own believe that the differences between us are very narrow, amendment but to try to reach a compromise. even though they are very important. 793 Energy Bill[11 DECEMBER 2013] Energy Bill 794

It boils down to an assessment of risk. All sides in Baroness Worthington: I will just say that the Secretary this debate can agree that we neither expect nor desire of State was at Drax unveiling a new project that is large amounts of unabated coal to be operating in the being enabled under the CFDs. If it is that confidential, 2020s, but, as my noble friends Lord Forsyth and why was he there? Lord Jenkin of Roding have rightly pointed out, we cannot be sure today exactly what will be required in Baroness Verma: My Lords, I shall continue by those years. The Government’s position is that we trying to conclude quickly. The Bill has undergone should take a precautionary approach, given the serious thorough scrutiny and the Government have listened potential for security of supply implications and the very carefully to all the concerns raised during its impact on consumer bills if we get it wrong. We passage through this House. I am grateful to my noble should send a clear signal that unabated coal has only friend Lord Teverson for his warm words. We have a limited future in helping us to transition to a lower responded to a great many of the issues raised by carbon economy by creating an EPS that applies to colleagues from all sides of the House on, for example, any new coal plant. I appreciate the attempt of the domestic tariffs and access to markets, and we have noble Lord, Lord Oxburgh, to find an alternative, but introduced new topics—for example, carbon monoxide no responsible Government could or should take risks and smoke alarms. that potentially put energy security in danger. We must acknowledge that the other place has The noble Baroness, Lady Worthington, raised a accepted 112 amendments and, moreover, has welcomed point on the capacity market; our view is that capacity them. It has recognised the expertise that this House payments are likely to have only a marginal impact on has brought to the scrutiny of the Bill and the real the overall economics of coal plant and more important improvements to it that this House has made. However, drivers on occasions where upgrading will relate to the the other place has decided with a considerable majority overall state of an operator’s plant, an operator’s view that it does not agree with this amendment. The of the market and the value that they place on retaining elected Chamber saw an unprecedented majority for coal as a hedge. Even were they able to do so, this the Bill as it completed its passage through the other could mean that coal plants stay open longer, but they place. Today, we can decide that the Bill proceeds to would operate at low-load factors and hence have low the statute book—a Bill that is essential for protecting carbon emissions, given the evolution of the energy consumers and for ensuring security of supply and market with more low-carbon generation and carbon decarbonisation of our economy. Nothing will send a pricing. The noble Baroness could not give complete firmer signal to investors than that this House will do assurance that energy security would not be at risk. nothing that prevents the Bill receiving Royal Assent. She could not say that prices would stay the same—her own party’s policy does not say that. It is time that we looked at the elephant in the Lord Oxburgh: My Lords, so much for my attempts Chamber—the investors. After months of uncertainty, to find an uncontroversial middle way of bringing all investors are looking at us in dismay.The most important sides together. The temperature of this debate has thing we need to do is to provide certainty for investors been a little higher than I would have expected and, by securing Royal Assent. The Confederation of British indeed, than I would have hoped. I agree with a great Industry has said that the Energy Bill has undergone deal that the Minister has said on both security of significant scrutiny within Parliament as well as by supply and the Bill’s importance for investors. However, industry and other stakeholders and it has the broad the fact is that the amendment increases, rather than support of industry and investors in its current shape. reduces, both those things. If Members with a keen It is important to the success of EMR that the Energy sense of smell have detected a faint aroma in the Bill receives Royal Assent in 2013, allowing investors Chamber, it is the aroma of red herrings. to make those well needed decisions about investment. The Minister spoke of concerns about certainty for investors if my amendment is agreed, and the noble Lord, Lord Forsyth, said the same thing. He is quite Baroness Worthington: I thank the noble Baroness right: we do not really know what is going to happen for giving way. Will she comment on my questions in 10 years’ time, but the Bill contains a measure that about Eggborough, as that is the very first test of allows the Government to disregard these constraints whether this Bill is actually going to deliver? It was if severe circumstances mean that it is necessary to do part of DECC’s announcement on projects that are so. Therefore, that question of security of supply does going forward under the FID enabling scheme but I not really exist. hear that next week they will receive a letter saying As far as looking at certainty for investors is concerned, that they are not eligible for the first tranche because in the near term the necessity is for investment in of a new system that the Government have introduced gas-fired power stations. Everyone agrees with that. of rationing out the CFD contracts. This amendment would improve, not reduce, certainty for investors in the time that we can look forward to. I do not know anyone who does not think that we need Baroness Verma: My Lords, the noble Baroness is new gas-fired power stations, and the amendment of course aware that negotiations that are commercially would help investment in that regard. sensitive cannot be discussed; I will not go further The noble Lord, Lord Jenkin, rightly said that we than that because these are sensitive issues and it have to get on with it. I am going to press this matter would not be right of me to discuss individual plants, to a vote. I do not think that it need delay the passage particularly on issues of commerciality. of the Bill for more than a few days. As far as investors 795 Energy Bill[LORDS] Energy Bill 796

[LORD OXBURGH] Lane-Fox of Soho, B. Rooker, L. are concerned, getting the right Bill before Christmas, Lawrence of Clarendon, B. Rosser, L. which the Government can certainly do if they are so Lea of Crondall, L. Rowlands, L. Liddell of Coatdyke, B. minded, will be the main thing. The fact that that Royall of Blaisdon, B. Lipsey, L. St Albans, Bp. happens a day or two later is neither here nor there, Lister of Burtersett, B. Sandwich, E. and there will be a much more certain basis for investing Lloyd of Berwick, L. Sawyer, L. in new gas. Low of Dalston, L. Scotland of Asthal, B. Lytton, E. Scott of Foscote, L. McAvoy, L. Sherlock, B. 4.24 pm McConnell of Glenscorrodale, Simon, V. L. Smith of Basildon, B. Division on Motion A2 McDonagh, B. McFall of Alcluith, L. Smith of Finsbury, L. McIntosh of Hudnall, B. Smith of Gilmorehill, B. Contents 215; Not-Contents 262. MacKenzie of Culkein, L. Smith of Leigh, L. McKenzie of Luton, L. Snape, L. Motion A2 (as an amendment to Motion A) disagreed. Mallalieu, B. Soley, L. Martin of Springburn, L. Stern, B. Division No. 1 Maxton, L. Sugar, L. Meacher, B. Symons of Vernham Dean, B. Mendelsohn, L. Taylor of Blackburn, L. CONTENTS Mitchell, L. Taylor of Bolton, B. Adams of Craigielea, B. Gibson of Market Rasen, B. Montgomery of Alamein, V. Temple-Morris, L. Ahmed, L. Giddens, L. Morgan of Ely, B. Teverson, L. Alton of Liverpool, L. Glasgow, E. Morgan of Huyton, B. Thornton, B. Anderson of Swansea, L. Glasman, L. Morris of Aberavon, L. Tonge, B. Andrews, B. Golding, B. Morris of Handsworth, L. Touhig, L. Armstrong of Hill Top, B. Gordon of Strathblane, L. Murphy, B. Trees, L. Bach, L. Goudie, B. Neuberger, B. Triesman, L. Bakewell, B. Gould of Potternewton, B. Noon, L. Tunnicliffe, L. Bassam of Brighton, L. Grantchester, L. Nye, B. Turnberg, L. Beecham, L. Greengross, B. O’Loan, B. Turner of Camden, B. Best, L. Grenfell, L. O’Neill of Bengarve, B. Turner of Ecchinswell, L. Bhattacharyya, L. Grey-Thompson, B. O’Neill of Clackmannan, L. Wall of New Barnet, B. Boothroyd, B. Grocott, L. Oxburgh, L. [Teller] Walpole, L. Borrie, L. Hannay of Chiswick, L. Palmer, L. Walton of Detchant, L. Brooke of Alverthorpe, L. Hanworth, V. Patel of Blackburn, L. Warner, L. Brookman, L. Harries of Pentregarth, L. Patel of Bradford, L. Warnock, B. Brown of Eaton-under- Harris of Haringey, L. Patel, L. [Teller] Warwick of Undercliffe, B. Heywood, L. Harrison, L. Pitkeathley, B. Watson of Invergowrie, L. Browne of Ladyton, L. Hart of Chilton, L. Plant of Highfield, L. Wheeler, B. Butler-Sloss, B. Haskel, L. Prashar, B. Whitty, L. Cameron of Dillington, L. Hattersley, L. Prescott, L. Wilkins, B. Campbell-Savours, L. Haughey, L. Prosser, B. Williams of Elvel, L. Carter of Coles, L. Haworth, L. Quin, B. Wills, L. Chandos, V. Hayman, B. Radice, L. Wilson of Tillyorn, L. Christopher, L. Hayter of Kentish Town, B. Ramsay of Cartvale, B. Winston, L. Clancarty, E. Healy of Primrose Hill, B. Reid of Cardowan, L. Wood of Anfield, L. Clark of Windermere, L. Henig, B. Rendell of Babergh, B. Woolf, L. Clarke of Hampstead, L. Hennessy of Nympsfield, L. Rennard, L. Woolmer of Leeds, L. Clinton-Davis, L. Hilton of Eggardon, B. Renton of Mount Harry, L. Worthington, B. Collins of Highbury, L. Hollick, L. Richard, L. Wright of Richmond, L. Colville of Culross, V. Hope of Craighead, L. Rogan, L. Young of Hornsey, B. Coussins, B. Howarth of Newport, L. Crawley, B. Howe of Idlicote, B. NOT CONTENTS Davidson of Glen Clova, L. Howells of St Davids, B. Davies of Coity, L. Howie of Troon, L. Aberdare, L. Bew, L. Davies of Oldham, L. Hoyle, L. Addington, L. Black of Brentwood, L. Davies of Stamford, L. Hughes of Stretford, B. Ahmad of Wimbledon, L. Blencathra, L. Donaghy, B. Hughes of Woodside, L. Alderdice, L. Bonham-Carter of Yarnbury, Drayson, L. Hunt of Kings Heath, L. Allan of Hallam, L. B. Dubs, L. Hylton, L. Anelay of St Johns, B. [Teller] Borwick, L. Eames, L. Irvine of Lairg, L. Arran, E. Bottomley of Nettlestone, B. Eatwell, L. Jay of Paddington, B. Ashdown of Norton-sub- Bowness, L. Elder, L. Jones of Moulsecoomb, B. Hamdon, L. Brabazon of Tara, L. Elystan-Morgan, L. Jones, L. Ashton of Hyde, L. Bradshaw, L. Evans of Parkside, L. Jordan, L. Astor of Hever, L. Bridgeman, V. Evans of Temple Guiting, L. Judd, L. Attlee, E. Brinton, B. Evans of Watford, L. Kennedy of Cradley, B. Baker of Dorking, L. Brooke of Sutton Mandeville, Falkland, V. Kennedy of Southwark, L. Bakewell of Hardington L. Farrington of Ribbleton, B. Kennedy of The Shaws, B. Mandeville, B. Brougham and Vaux, L. Faulkner of Worcester, L. Kinnock of Holyhead, B. Balfe, L. Browne of Belmont, L. Filkin, L. Kinnock, L. Bamford, L. Browning, B. Finlay of Llandaff, B. Kirkhill, L. Barker, B. Burnett, L. Ford, B. Kirkwood of Kirkhope, L. Bates, L. Buscombe, B. Foulkes of Cumnock, L. Knight of Weymouth, L. Bell, L. Caithness, E. Gale, B. Krebs, L. Benjamin, B. Carrington of Fulham, L. 797 Energy Bill[11 DECEMBER 2013] Anti-social Behaviour Bill 798

Cathcart, E. Howell of Guildford, L. Renfrew of Kaimsthorn, L. Strathclyde, L. Cavendish of Furness, L. Humphreys, B. Ribeiro, L. Sutherland of Houndwood, L. Chadlington, L. Hunt of Wirral, L. Ridley, V. Suttie, B. Chester, Bp. Hussain, L. Risby, L. Swinfen, L. Chidgey, L. Hussein-Ece, B. Roberts of Llandudno, L. Taverne, L. Clement-Jones, L. Inglewood, L. Rodgers of Quarry Bank, L. Taylor of Goss Moor, L. Cobbold, L. James of Blackheath, L. Roper, L. Taylor of Holbeach, L. Colwyn, L. James of Holland Park, B. Rotherwick, L. Thomas of Gresford, L. Condon, L. Jenkin of Kennington, B. Rowe-Beddoe, L. Thomas of Winchester, B. Cope of Berkeley, L. Jenkin of Roding, L. St John of Bletso, L. Tope, L. Cormack, L. Jolly, B. Sanderson of Bowden, L. Tordoff, L. Cotter, L. Jones of Cheltenham, L. Sassoon, L. Trefgarne, L. Courtown, E. Jopling, L. Scott of Needham Market, B. Trenchard, V. Craig of Radley, L. Kakkar, L. Seccombe, B. Trimble, L. Craigavon, V. Kilclooney, L. Selborne, E. True, L. Crathorne, L. Kirkham, L. Selkirk of Douglas, L. Trumpington, B. Crickhowell, L. Knight of Collingtree, B. Selsdon, L. Tugendhat, L. De Mauley, L. Kramer, B. Sharkey, L. Turnbull, L. Deech, B. Laming, L. Sharp of Guildford, B. Tyler of Enfield, B. Deighton, L. Lawson of Blaby, L. Sheikh, L. Tyler, L. Denham, L. Lee of Trafford, L. Shephard of Northwold, B. Ullswater, V. Dholakia, L. Leigh of Hurley, L. Sherbourne of Didsbury, L. Verjee, L. Dixon-Smith, L. Lexden, L. Shipley, L. Verma, B. Dobbs, L. Lingfield, L. Shrewsbury, E. Vinson, L. Donoughue, L. Linklater of Butterstone, B. Shutt of Greetland, L. Wakeham, L. Doocey, B. Liverpool, E. Slim, V. Wallace of Tankerness, L. Dundee, E. Livingston of Parkhead, L. Smith of Clifton, L. Walmsley, B. Dykes, L. Loomba, L. Soulsby of Swaffham Prior, L. Wasserman, L. Eaton, B. Lothian, M. Spicer, L. Watson of Richmond, L. Eccles of Moulton, B. Lucas, L. Stedman-Scott, B. Wei, L. Eccles, V. Luke, L. Steel of Aikwood, L. Wheatcroft, B. Eden of Winton, L. Lyell, L. Stewartby, L. Whitby, L. Edmiston, L. McColl of Dulwich, L. Stoddart of Swindon, L. Williams of Trafford, B. Elton, L. Macdonald of River Glaven, Stoneham of Droxford, L. Willis of Knaresborough, L. Empey, L. L. Storey, L. Young of Graffham, L. Falkner of Margravine, B. MacGregor of Pulham Stowell of Beeston, B. Younger of Leckie, V. Faulks, L. Market, L. Fearn, L. Mackay of Clashfern, L. Motion A agreed. Feldman of Elstree, L. Maclennan of Rogart, L. Fellowes, L. McNally, L. Fink, L. Maddock, B. Fookes, B. Mancroft, L. Anti-social Behaviour, Crime and Policing Forsyth of Drumlean, L. Manzoor, B. Bill Fowler, L. Mar and Kellie, E. Committee (7th Day) Framlingham, L. Marks of Henley-on-Thames, Freud, L. L. Garden of Frognal, B. Marlesford, L. 4.40 pm Gardiner of Kimble, L. Mawson, L. Gardner of Parkes, B. Mayhew of Twysden, L. Relevant documents: 12th Report from the Delegated Garel-Jones, L. Miller of Hendon, B. Powers Committee, 4th Report from the Joint Committee Geddes, L. Montagu of Beaulieu, L. on Human Rights. German, L. Montrose, D. Glenarthur, L. Moore of Lower Marsh, L. Gold, L. Morris of Bolton, B. Schedule 7: Powers to seize invalid passports etc Goodlad, L. Naseby, L. Goschen, V. Nash, L. Grade of Yarmouth, L. Neville-Jones, B. Amendment 56YG Green of Hurstpierpoint, L. Neville-Rolfe, B. Greenway, L. Newby, L. [Teller] Moved by Baroness Hamwee Grender, B. Newlove, B. Hamilton of Epsom, L. Northbrook, L. 56YG: Schedule 7, page 169, line 38, leave out paragraph (b) Hamwee, B. Northover, B. Hanham, B. Norton of Louth, L. Baroness Hamwee (LD): My Lords, in moving Harris of Richmond, B. O’Cathain, B. Henley, L. Oppenheim-Barnes, B. Amendment 56YGI shall speak also to Amendment 56YH. Heyhoe Flint, B. Paddick, L. I have to say that I am amazed by the influence of my Higgins, L. Palmer of Childs Hill, L. noble friend the Chief Whip, who just by sitting there Hill of Oareford, L. Palumbo of Southwark, L. has prevented anyone walking in front of me. Hodgson of Abinger, B. Patten, L. Hodgson of Astley Abbotts, Perry of Southwark, B. Schedule 7 deals with the powers to seize invalid L. Phillips of Sudbury, L. passports, and these are two quite small, probing Holmes of Richmond, L. Popat, L. amendments, although they are serious. The first Home, E. Purvis of Tweed, L. amendment would leave out the provision for a constable, Hooper, B. Rana, L. who has various powers of search and seizure, to Horam, L. Randerson, B. Howard of Rising, L. Rawlings, B. authorise a person—any person, Howe of Aberavon, L. Razzall, L. “to carry out on the constable’s behalf a search under this Howe, E. Redesdale, L. paragraph”. 799 Anti-social Behaviour Bill[LORDS] Anti-social Behaviour Bill 800

[BARONESS HAMWEE] fraudulent purpose—it is right that a constable should That is a search which may involve the use of force— be able to remove the document. This would prevent it reasonable force, but nevertheless force. I question being used elsewhere for fraudulent purposes, where whether it is right for such powers to be authorised— the level of checks may not be so robust. perhaps not technically delegated, but to the outside It is also entirely inappropriate that a constable world they would seem to be delegated. should hand back an expired passport to a person My second amendment would leave out the where he or she reasonably believes that it is intended requirement to return an expired travel document, but to be used for a fraudulent purpose. It would send out not where it is thought that it might be intended to be the wrong message to the passport holder and would used for purposes for which it is no longer valid. My simply allow—if not, indeed, encourage—them to question, of course, is: why not? If the document has continue to make use of the document for wrong and expired, what harm is there? Are there no other systems potentially unlawful reasons. I hope, in light of the that are sophisticated and efficient enough to pick up explanation I have given, that my noble friend will whether an expired travel document is, in fact, expired? withdraw her amendment. This seems an odd sanction, merely on the basis of reasonable belief. My particular reason for questioning Baroness Hamwee: My Lords, I will do so but I have it is that it might really irritate people quite unnecessarily. to say that, first, on the issue of the expired passport, I have written “unnecessary aggro” against this, and I there are some good reasons which a passport holder genuinely think that we should avoid causing unnecessary may not even think of at the time. One that immediately aggro, because there are enough sensitivities around occurs to me is the need to be able to show the number passport and immigration controls and so on without of days you have been in the country, which involves adding one which, to my mind at any rate, is not showing when you have travelled out of and back into necessary. I beg to move. the country. There are tax reasons why a number of people need to be able to show that. It is a matter of Lord Ahmad of Wimbledon (Con): I thank my noble the officer’s discretion and reasonable belief but I find friend Lady Hamwee, who explained that these two it difficult to imagine how the conversations would be amendments relate to the powers to seize invalid passports. conducted. I should perhaps ask my noble friend As she has said, they are probing in nature. Such whether he can tell the Committee how one challenges powers may be necessary where a passport has been an officer’s decision. His notes may say, even if I did withdrawn in the public interest; for example, to disrupt not think of it beforehand. a person’s travel overseas due to the serious issue that As regards whether someone other than a constable they may be engaged in terrorism. can exercise the powers of search and seizure, my Amendment 56YG relates to the ability of a constable noble friend says that, in practice, it would be the to authorise a person to carry out a search on their constable. If that is the case, the obvious question is: behalf. The purpose of this provision is to allow a why allow for anyone else to do it? Another question is constable to make use of support if required when whether there will be instructions to officers—guidance, carrying out a search at places other than a port. Such codes of practice or whatever—that might deal with support would be exercised under the authority of a this. I do not know whether my noble friend can deal constable, and I reassure my noble friend that, in view with either of those at the moment—I know that of the type of case to which this paragraph applies, it colleagues are here particularly to talk about the next would in practice be likely to be carried out in the group of amendments—but if he has anything to say, presence of a constable. The authorised person—such that would be good. If not, perhaps he could write to as a police community support officer—would not be me. empowered under the provision to use reasonable force or to require a person to hand over the passport Lord Ahmad of Wimbledon: I will just assure my for inspection purposes. noble friend that I do not think I can add to what I Amendment 56YH, which I think my noble friend have said other than, on the first point about why we labelled the “avoiding unnecessary aggro” amendment, should not restrict the power in that way, it is important relates to expired travel documents. I agree with my that there is a level of flexibility that allows the constable noble friend that there is often little harm in returning to exercise it. In most cases, as I have said, the person an expired document to the passport holder. Indeed, would be someone such as a community support there is provision in paragraph 4 of Schedule 7 for that officer. As far as the document is concerned, my noble very purpose. The provision recognises that the passport friend raised the point about other reasons. Of course holder may wish to retain the expired passport because, it is at the discretion of the officer, but one hopes that for example, it may include extant visas for travel to at that point a case could be made. She raised the issue other countries. It may even provide memories of of tax, which is not one that I was thinking through as places that they have travelled to previously; as well as she spoke. I am sure that there is a list of other a visual record, for good or bad, of how we may have circumstances. However, ultimately, it boils down to looked some 10, or even 20, years ago. the document being the property of the Crown, and it However, on a more serious point, the British passport should remain so. does of course remain the property of the Crown at all times. There is no entitlement to a passport and no Baroness Hamwee: Perhaps after today the Minister statutory right to have access to it. If a person intends could let me know what arrangements there will be for to make use of an expired passport for a purpose for a challenge, and about a code of practice. He nods which it is no longer valid—in other words, for a and, on that basis, I beg leave to withdraw the amendment. 801 Anti-social Behaviour Bill[11 DECEMBER 2013] Anti-social Behaviour Bill 802

Amendment 56YG withdrawn. on the basis that if an officer cannot articulate suspicion after 30 minutes of questions, he certainly should not Amendment 56YH not moved. detain for up to nine hours. Schedule 7 agreed. The Government asked whether respondents had any personal experience of being stopped and detained. Clause 132 agreed. I note that the proportion of those who said that, “Schedule 7 powers are unfair, too wide ranging and should be Amendment 56YJ curtailed”, Moved by Baroness Hamwee was considerably higher than the proportion who said 56YJ: After Clause 132, insert the following new Clause— they had personal experience. Even if you add the “Report by Secretary of State “prefer not to say”responses, it is still a higher proportion. The Secretary of State shall, no later than three months after I was also interested to see the advice to examining the coming into force of section 132, report to Parliament officers following the recent case about, his or her recommendations— “the right to consult a solicitor in private, in person and at any (a) for the introduction of safeguards in respect of legally time during the period of detention”. privileged material, excluded material and special procedures I know of a man who was detained but did not exercise material in respect of a person detained under Schedule 7 that right because he was told by the officer who or 8 to the Terrorism Act 2000, and detained him that this was bound to lead to a delay, (b) for the introduction of a statutory bar to the introduction meaning that his wife and his elderly, infirm mother, in a criminal trial of admissions made by a person with whom he was travelling, would be left even longer detained under Schedule 7 or 8 to the Terrorism Act not knowing what was going on—a practice that I 2000.” hope never to hear of again. Clearly, training in this is Baroness Hamwee: My Lords, in moving an issue. Amendment 56YJ I will speak also to Amendment 56YK. Of course, my underlying point is about the balance I also have Amendment 100A in this group, which is a between protection and security, and individual liberty, consequential amendment. The whole of this group some of which is about what the Government can do deals with Schedule 8, which is Schedule 7—port and through officers and some of which is about safeguards border controls—in the previous legislation. My written into the legislation. amendments have come up as a curtain raiser, though My amendments anticipate what we might be seeking in this debate they are probably more of an epilogue. if this debate were following the report by the independent They relate to future possible action rather than to reviewer of terrorism legislation when we know the anything that might happen immediately, as would outcome of the Miranda case, but I have picked up on other actions flowing, in most cases, from the work of his evidence to the recent Home Affairs Select Committee the JCHR. I am not suggesting that noble Lords who inquiry into this. Amendment 56YJ picks up two of are moving and speaking to them are merely acting as his recommendations, 4 and 7, on the introduction of mouthpieces—I know that that is not the case. safeguards in respect of legally privileged material and My noble friend Lord Lester is unwell and very sorry on a bar to the use in a criminal trial of admissions not to be here to speak to amendments in his name made in the circumstances of such a detention. and to which he has added his name; my noble friend Amendment 56YK shows that I am ever the optimist. Lord Avebury has his instructions. I do not want make I would never expect wording such as this to be used in a Second Reading speech at this point—perhaps speeches legislation, but we are only in Committee. It seeks on these issues will be longer on Report—but I will assurances from the Government about following through make some general remarks. I acknowledge that the on—although I would say, for the purposes of the Government have moved forward a little on the relaxing debate, looking seriously at—recommendations made of the arrangements to which this schedule applies, by the independent reviewer following the Miranda but like others I am eager for more. case. I am sure that my noble friend the Minister will I was interested in some of the comments that the give assurances about that. I remain optimistic but Government included in their publication responding also vigilant. As I said, Amendment 100A is consequential. to the response to the review of the operation of I beg to move. Schedule 7. We do not have the responses published, but there are some interesting and telling comments. A Baroness Kennedy of The Shaws (Lab): My Lords, I self-declared police officer says: will speak to Amendments 57 to 64. It is important to “Schedule 7 should also incorporate a clear commitment and consider the backdrop here. Schedule 7 of the Terrorism implementation process to the Equality Act 2010 general duty of Act 2000 is a highly intrusive police stopping power ‘fostering good relations’”. and it operates outside the normal regulatory framework There are comments about, that covers other police powers of stop and search. “More tactful or less intimidating examinations”. Under Schedule 7, individuals are stopped and they The report says of the community engagement events are not under arrest but they are examined for up to which the Government undertook that, nine hours, under the current arrangements, where “The conduct of examinations was raised repeatedly”. they can be questioned, searched and have their belongings The Equality and Human Rights Commission searched; they can be strip-searched; and they can commented at length on the lawfulness of stopping have samples of their biometric data, including their without suspicion. It said that, DNA and fingerprints, taken from them, regardless of “there should be no power to detain and question for more than the outcome of the encounter and in the absence of a 1 hour”, lawyer. People are stopped under it and are obliged to 803 Anti-social Behaviour Bill[LORDS] Anti-social Behaviour Bill 804

[BARONESS KENNEDY OF THE SHAWS] reasonable suspicion is not what is required. The police co-operate or face arrest, a period of imprisonment or can stop people without any reasonable suspicion at a fine for any refusal. In addition, there is no right to all. Despite this, official statistics on the use of this compensation or assistance in rearranging any flights power illustrate that it has not been used in an or other transportation that they might have missed as intelligence-led approach and that people from ethnic a result of this examination or detention. It is important minority backgrounds are more likely to be subjected to see just how extraordinary these powers are. to the more extreme aspects of the power, particularly Recent research has shown that in 2011-12—the people from Asian backgrounds. That is the basis on examination of this material has only just been which I bring these amendments to this legislation. encapsulated in a report—63,902 stops were carried I know, as the noble Baroness, Lady Hamwee, said, out under Schedule 7. Of these, 2,240 lasted more that a number of groups are calling for a reduction of than an hour and 680, which is less than 1%, resulted the maximum period of detention to one hour. However, in a detention. Although no information has been I am not taking it down as low as that. In my amendments provided on the number of people convicted, and on I am suggesting that going down to six hours, as the what charges, there were just 10 terrorism-related Government have promoted in this Bill, is an advance convictions between 2009 and 2012. I have been involved and to be welcomed, but it should be much lower than in most of the cases and can tell you that none was as a that. I am suggesting that we should take the moderate result of a stop at an airport or any port. We have no course and reduce it to three hours, at which point the convictions based on these stops. person should either be released or arrested. It is worth noting that 97.2% of examinations take less 5pm than an hour, so if we give the police, or those who are Black and minority ethnic groups make up the involved in exercising these powers, the additional couple majority of those subject to the stops—some 56%—even of hours that I suggest in my amendments, we will give though they account for approximately 14% of the the authorities as much practical power as they need. national population. Asians accounted for 27% of I turn to the issue of the power to take non-intimate Schedule 7 stops but are only 7.5% of the national biometric data, including DNA and fingerprints. I population. Blacks accounted for 8% of stops but they suggest that that should be repealed in the light of the are only 3.3% of the population. People from mixed huge concern about its impact. The Government have backgrounds accounted for 3% of stops but are only already said that they will repeal intimate samples 2.2% of the population. People from other ethnic being taken, but I am asking that that be extended to groups, including Chinese and other, accounted for non-intimate samples. 18% of stops, although they are only 1% of the Most of the community, legal, academic and equality population. groups are calling for a much greater awareness among The targeting of black and minority ethnic groups officers of the way in which special powers should be continues to be even more marked when we consider used and that there should be better training. Advice the most intensive Schedule 7 stops. It appears that and assistance should be provided to people who miss shorter stops are made, basically, of white people. The their flights, and so on. The kernel of the amendments people who are detained for any length of time almost is that the minimum threshold of suspicion should be invariably are from ethnic minority groups. Of those reasonable suspicion. It should be on that basis that stops that lasted for more than an hour, 36% were of any individual is stopped. Otherwise, it is impossible Asians, 14% were of blacks, 3% were of people from to have any independent scrutiny of the exercise of mixed backgrounds and 24% were of people from those intrusive powers. We cannot test the use of the other backgrounds. Fewer than 12% of stops that powers if someone says, “It was my sense of smell. It lasted more than an hour were of white people. Therefore, was my policeman’s nose that told me that I should when a police officer says, as the noble Baroness, Lady stop this person”. That is not good enough. Hamwee, mentioned, that this is interfering with the The independent reviewer suggested that there might fostering of good relations, we can understand why. be some test of subjective suspicion, but that cannot Politicians in this House and in the other place have be a test that could be scrutinised in any acceptable or raised concerns, as have civic groups and the Equality sensible way. The PACE code, which governs other and Human Rights Commission. Indeed, the United stop powers, should be extended to cover stop and Nations Human Rights Committee has expressed grave searches conducted under Schedule 7, and Schedule 7 concerns over the use of counterterrorism measures in stops should be monitored under the same framework this country and was particularly concerned over what as all the stop and search powers that we currently it judged to be religious and ethnic profiling in the use have, and data should be shared with community and of these powers. It should concern us as a House that monitoring groups. this is the perception. That is the basis on which I have put forward my David Anderson QC—the terrorism watchdog if amendments, and I look forward to hearing the Minister’s you like—said: response to those recommendations to the House. “I have not been able to identify from the police any case of a Schedule 7 examination leading directly to arrest followed by conviction in which the initial stop was not prompted by intelligence Lord Avebury (LD): My name is attached to the of some kind”. amendments in this group in the name of my noble He is basically saying that when the police make stops friend Lord Lester, who, as my noble friend Lady that go on to lead to further investigation it is invariably Hamwee has already said, is unfortunately indisposed because there has been a reasonable suspicion. Yet, and unable to be present for this debate. 805 Anti-social Behaviour Bill[11 DECEMBER 2013] Anti-social Behaviour Bill 806

Let me say at once that I agree with all the amendments I will give two examples from my own experience. proposed by the noble Baroness, Lady Kennedy, as well First, a British Shia imam, returning to the UK through as those in our name. She made a convincing argument, Heathrow terminal 1, was detained, interrogated at length particularly on the ineffectiveness of the legislation. In and had his fingerprints and DNA taken. I was told spite of the vast number of stops and searches that the samples would be retained indefinitely, for comparison have taken place, we have not had a single conviction. with samples taken at the scene of terrorist offences. I This is not a device for catching terrorists or even wrote to Jacqui Smith, then Secretary of State for the being able to question them—the noble Baroness added Home Office, on 5 December 2008, asking for the samples that none of them had even been charged. This matter to be destroyed, in the light of the case of S and Marper has caused enormous concern to the Joint Committee at the European Court of Human Rights. I finally got on Human Rights and to the Equality and Human the samples destroyed and the imam’s name expunged Rights Commission, with which we have an opportunity from the database on 25 January 2010 after 13 months to discuss the amendments. It is as worried as we are of correspondence and telephone calls with Ministers that Schedule 7 to the Terrorism Act could violate and their offices and various branches of the police, human rights and equality laws and cause immense including SO15, or Counter Terrorism Command. damage to community relations because of its widespread In a second case, which is still ongoing, a friend of negative impact, particularly on our Muslim population. mine, who is a Bahraini national, has been stopped The EHRC made submissions to the Home Office several times at Heathrow and King’s Cross and his consultation on Schedule 7 powers, and again, in complaint was taken over by the IPCC, which issued 2013, it made a further submission to the Joint Committee proceedings against the Metropolitan Police on 10 October on Human Rights in relation to its scrutiny of the Bill. 2013 because it would not investigate the basis for the It seems to me that the EHRC has been ignored. stops. It was expected that some months could elapse We recognise the importance of stop and search before the case was heard in the High Court, and I powers as a tool for crime detection and prevention, would be grateful if my noble friend could give me an and we acknowledge that Schedule 7 forms part of the update on that. As I said to the security Minister, UK’s counterterrorism strategy, which is aimed at James Brokenshire, it is clearly unacceptable that our protecting people in ports and airports and on the police should be harassing and intimidating Bahraini chief modes of transport which have been targeted by refugees here, including British citizens, when they are terrorists in the past. It could also prevent terrorists entitled to protection from the regime that persecuted from entering UK territory. them. Instead, it is clear that our police are acting as agents of the al-Khalifa oppressors. It is odious that However, we believe—with others—that the legal peaceful opponents of any state which violates human form and practical exercise of these powers should rights should continue to be persecuted after they seek comply with equality and human rights legislation. asylum here. It is not simply an operational matter for The powers have to be used appropriately, proportionately the police, but one that touches on our obligations under and in a non-discriminatory manner. In its report, the refugee convention. As I also said to Mr Brokenshire, The Impact of Counter-terrorism Measures on Muslim I do not believe the police would have acted in this Communities, the EHRC noted that Schedule 7 is disgraceful way unless they had been told from on eroding Muslim trust and confidence in policing and high that this is how they were expected to behave. called for greater transparency and accountability around More widely, the EHRC’s statistical analysis of its use. Following the consultation already mentioned, examinations and detentions under Schedule 7 suggests Clause 132 and Schedule 8 to the Bill propose certain that disproportionately high numbers of black and changes to the provisions in Schedule 7 to the Terrorism Asian passengers are being stopped and the disproportion Act 2000 for stopping, examining and detaining people increases further with over-the-hour examinations and at ports. However, I agree with the EHRC that to do still further with detentions. The code of practice on this without the need for reasonable suspicion or other Schedule 7 prohibits reliance on ethnicity as the sole reason limitations is far too broad, lacks efficient safeguards, for examining a person, so the EHRC suggests that an and could be a breach of the requirement that such an investigation be undertaken to see whether that is the interference should be prescribed by, and in accordance practice. However, statistics alone cannot prove that a with, the law pursuant to Articles 5 and 8 of the power is being used in a discriminatory manner; a more European Convention on Human Rights. comprehensive study is needed to see whether the conduct This point has also been made by the Joint Committee of the police under Schedule 7 breaches the Equality on Human Rights and several of the amendments in Act. I hope that my noble friend will say that in light this group are based on its recommendations. This is of the experience, such an inquiry will be undertaken. especially the case when an individual is questioned 5.15 pm about his political and religious beliefs and activities, To look at the amendments for a few minutes, as well as those of others in his community and Amendment 57 would ensure that Schedule 7 powers family. The Islamic Human Rights Commission says it cannot be used inappropriately where the dominant has received dozens of complaints of inappropriate purpose is to gather general intelligence, or evidence questioning, such as officers asking Muslims whether for the security services or others, to use in legal they pray, whether they would be willing to spy on proceedings beyond the statutory purpose of the power, their communities and which party they voted for at which is solely for the examining officer to determine the last election. The commission concludes that, whether the person appears to be, “Schedule 7 has done more to alienate people than address the “concerned in the commission, preparation or instigation of acts issue of national security.” of terrorism”. 807 Anti-social Behaviour Bill[LORDS] Anti-social Behaviour Bill 808

[LORD AVEBURY] in Schedule 8 to the Terrorism Act 2000. As the noble Amendment 57 provides that there is adequate ongoing Baroness, Lady Kennedy, pointed out, between 1 January monitoring and analysis of the use of the power, and 2009 and 31 March 2012, only 3% of examinations that no individual can be forced to answer questions continued for more than one hour, and only one in under the threat of criminal sanction unless they are 2,000 examinations lasted more than six hours. It is arrested as a suspected terrorist who is or has been therefore correctly proposed in these amendments that “concerned in ... terrorism”. the maximum length of detention under Schedule 7 We are advised that statements made by individuals should be reduced from six to three hours. That is during Schedule 7 stops cannot lawfully be relied appropriate. upon in control order or terrorism prevention and On Amendment 62, paragraph 4 of Schedule 8 investigation measures proceedings, nor in asset-freezing inserts new paragraph 11A in Schedule 7 to the 2000 proceedings, because that is not the statutory purpose Act enabling examining officers to copy anything which of Schedule 7. That needs to be made clear. This is given to them or is found during a search and to keep amendment adds safeguards by ensuring that Schedule 7 a copy of such material for as long as it is necessary powers should not be used where the dominant purpose for the purpose of determining whether the person is is to gather general intelligence, or evidence for the or has been “concerned in … terrorism”. security services or others, to use in legal proceedings This is a very wide power, which could lead to sensitive beyond the scope of the statutory purpose of Schedule 7. personal data being retained for indefinite periods Amendments 57A, 61A and 61B, in the name of my of time. Even with a reasonable suspicion that the noble friend Lord Lester, concern the accessing, searching, information retained may prove that the person is examining, copying and retention of data on personal “concerned in... terrorism”, this power has the clear electronic devices. The JCHR said in paragraph 122 of potential to infringe the Article 8 rights of persons its fourth report that these powers in Schedule 7 were, examined under Schedule 7, because of its highly “so wide as not to be ‘in accordance with the law’”. intrusive and open-ended nature. In addition, even if It welcomed the express reference to necessity and further safeguards were implemented, such as limits proportionality in the working draft of the revised on the length of time the data could be retained or code of practice but does not consider that the code is prohibitions on sharing the data, there is still the potential sufficient to circumscribe the width of the powers. The for breaches of Article 8 to occur, resulting from the Joint Committee said that the powers should only be retention of the data. Therefore Amendment 62 correctly exercisable on reasonable suspicion; these amendments proposes that this provision should be removed entirely give effect to its recommendations. from the Bill. Amendment 58 provides that the power to detain and I will not go through the remaining amendments question for more than an hour can be exercised only because time is short, but your Lordships may wish to if the examining officer has by that point formed a note the recent Administrative Court decision in the reasonable suspicion that the person being questioned case of Elosta v The Commissioner of Police for the is or has been “concerned in … terrorism”. This is Metropolis, in which it was held that it is unlawful to another of the amendments recommended by the JCHR. restrict a person who has been detained at a port or I hope that your Lordships would agree with the airport under Schedule 7 to the Terrorism Act to being distinction that it draws between, on the one hand, the entitled to have legal advice from a solicitor on the telephone powers which can be exercised without reasonable only prior to a police interview, rather than having the suspicion—such as the power to stop, question and right to have a solicitor present in person during the request documentation, and physically search persons questioning where the detainee has specifically asked and property—and, on the other, the more intrusive for that greater form of protection. I am pleased to see powers such as detention, strip-searching, searching that Amendment 63 would give effect to that provision. contents of personal electronic devices, the taking of Finally, Amendment 64 would prohibit the collection biometric samples and the seizure and retention of of non-intimate DNA samples without consent from property, including personal information on electronic people who have not been arrested or charged. Taking devices, which should be exercisable only if the examining and retaining samples from a person who has not been officer reasonably suspects that the person is or has arrested or charged, and who is not the subject of been “concerned in … terrorism”. This amendment reasonable suspicion, has serious privacy implications gives effect to the JCHR proposal for a reasonable and should not be allowed. suspicion requirement before the more intrusive powers I hope that all these amendments will be acceptable under Schedule 7 are exercisable, and to its suggestion to the Government. that the threshold for these powers should be the point at which the person being examined is formally detained, Baroness Kennedy of The Shaws: My Lords, before after one hour of questioning. the Minister rises, perhaps I may indicate, as I did not As to Amendments 59, 60 and 61, paragraph 2 of specifically mention it, that I, too, am urging that the Schedule 8 removes the current nine-hour maximum threshold of reasonable suspicion should be the standard time for questioning under Schedule 7. Paragraph 2(3) before downloading, retaining and copying material proposes new paragraph 6A that provides that a person on electronic devices of any kind. Even if the Government may be questioned for up to one hour under paragraphs 2 do not accept the amendment on stopping—that there and 3 of Schedule 7. If the examining officer wants to should be reasonable suspicion at that point—at the question the person for more than one hour, then the very least we should move on to reasonable suspicion person will have to be detained under new paragraph 6 before we start taking people’s devices and entering of Schedule 7, which triggers the safeguards contained into private material and retaining it. 809 Anti-social Behaviour Bill[11 DECEMBER 2013] Anti-social Behaviour Bill 810

Lord Faulks (Con): I, too, am a member of the Joint hear the Government’s response to them as there are Committee on Human Rights. Discussion, as your areas to which the Government may want to give Lordships will anticipate, ranged far and wide over further consideration and on which they may want to this new Schedule 8 amending Schedule 7 of the bring forward amendments before the conclusion of Terrorism Act. Giving the perfectly proper right to stop proceedings on the Bill. and seize and, at the same time, preventing so far as On Amendment 56YJ and the issue of privileged possible any abuse of that power is a difficult balance material, although David Anderson reflects that identifying to strike. However, it is worth recording that we concluded the details of changes is difficult before we have the that the Government had made out a case for a without Miranda judgment, he identifies this as an area where -suspicion power to stop, question and search travellers there need to be safeguards and clarity around those at ports and airports, given the current nature of the safeguards. It is not an area where there should be any threat from terrorism, the significance of international confusion or ambiguity. It would be helpful today if travel, the overall threat picture, and the evidence seen the Minister were to say on behalf of the Government by the independent reviewer demonstrating the utility whether they accept the principle of David Anderson’s of non-suspicion stops at ports in protecting national recommendation in this regard. We are certainly security. Therefore, we also concluded that the retention sympathetic and would welcome the opportunity to of this power under Schedule 7 was not inherently consider further the kind of safeguards that could be incompatible with Articles 5 and 8 of the European introduced. Convention on Human Rights. We are in the slightly unfortunate position of still Also on Amendment 56YJ, I think it was in the awaiting the report by the independent reviewer of Beghal v DPP decision that the court supported the terrorism legislation on the David Miranda case, which introduction of a statutory bar to Schedule 7 admissions will perhaps shed some light on this power generally. The in a subsequent criminal trial, although it also recognised Government clearly pay considerable heed, quite rightly, to that this would have to be given detailed consideration. what the independent reviewer of terrorism recommends David Anderson has now added his support to that of but, with great respect to my noble friend Lady Hamwee, the court and that also forms part of his recommendations. simply subcontracting responsibility, as her Amendment Again, we would be very sympathetic to that and 56YK would, from the Secretary of State to the would be interested to know whether the Government independent reviewer would go rather too far. intend to support that recommendation, which this amendment reflects. This is a very difficult balance to strike. The Government have come some way towards a balance Amendments 56YK and 100A refer to a process by in favour of those who might become the victims of an which effect could be given, almost automatically, to abuse of power. The question is whether they have the recommendations of the independent reviewer of come far enough. terrorism legislation. There is some merit in looking at how recommendations could be acted on more quickly but we would welcome the opportunity to see more Baroness Smith of Basildon (Lab): My Lords, this detailed proposals. It would be helpful to have a has been a useful debate. The issues that have been mechanism to take action more quickly than always raised are around the difficult balance between civil having to wait for the next legislative slot for primary liberties, national security and counterterrorism measures legislation in the Government’s timetable. However, that the noble Lord, Lord Faulks, referred to. The whether secondary legislation, even with the affirmative points made today about those issues are extremely procedure, would give adequate opportunity for effective useful and I look forward to hearing the Minister’s scrutiny by Parliament, which should be making the comments on them. decisions, has to be looked at in some detail. We are greatly assisted today by the supplementary written evidence of David Anderson QC. We are On Amendment 62A, in the names of the noble indebted to him because, when giving evidence on 12 Lords, Lord Lester and Lord Avebury, we would certainly November, he was asked to spell out what changes he be supportive of removing the restrictions if the interview would recommend to the port powers in Schedule 7 takes place in a police station. Amendments 57A, 61A and the Minister, Damian Green, had already said in and 61B would establish limits on the duty to give the other place that he expected recommendations. At information and documents that are held electronically. Second Reading in your Lordships’ House, I said that We have concerns about how this law is currently I thought it was optimistic of the noble Lord, Lord being applied. I note that David Anderson has also Avebury, to hope that we would be able to see any such called for appropriate safeguards regarding the use recommendations from David Anderson while we were and retention of such data. It would be helpful to hear still debating the Bill. I thought he was being optimistic from the Minister whether the Government consider but that optimism was well founded. We are indebted that the problem is a lack of clarity in the existing law and grateful to David Anderson for the efforts that he or whether further action needs to be taken. must have gone to in order to ensure that we had his We would also be sympathetic to Amendment 64ZA on recommendations before we had completed our the periodic review of an individual’s detention. I deliberations—indeed, as we were having our Committee would welcome the Government’s comments on David debates. I hope that the Minister will endorse that. Anderson’s recommendation that the intervals for review That is very helpful and greatly welcomed. should be specified in the schedule, as outlined in the I shall not comment on each individual amendment, amendment, and not just in guidance. There can but a number of the amendments before us today sometimes be a lack of clarity around the purpose of relate to his report. As I said, I will be interested to guidance. The importance of it being in the schedule 811 Anti-social Behaviour Bill[LORDS] Anti-social Behaviour Bill 812

[BARONESS SMITH OF BASILDON] It is right that the independent reviewer of terrorism and not just in guidance was also included in the legislation makes recommendations, but amendments JCHR report. The Government have indicated that 56YK and 100A seek to tie the hands of the Secretary they may support this, so I am optimistic about a of State by, in effect, requiring her to implement the positive response on that one. recommendations of the independent reviewer. It is This is quite a difficult area in which to find the for the Government and Parliament to decide what appropriate balance. The House has heard about the legislative changes should flow from the independent attention to detail that has been given to this range of reviewer’s recommendations. Given the importance of issues. It would be helpful if the Minister could clarify these issues, any such legislative proposals should be in his response the Government’s views on these issues, subject to full parliamentary scrutiny—as with the particularly in the light of the amendments which provisions in this Bill—rather than implemented through reflect so much of what is in David Anderson’s secondary legislation, as my noble friend has suggested recommendations. in amendments 56YK and 100A. Amendments 57 and 58 deal with fundamental 5.30 pm principles of the powers. First, Amendment 57 seeks to qualify the definition of the purpose for which these The Parliamentary Under-Secretary of State, Home powers can be used. The legislation is already clear: Office (Lord Taylor of Holbeach) (Con): My Lords, I they are for the purpose of determining whether a person thank the noble Baroness, Lady Smith, for the way in appears to be someone who has been concerned in the which she has contributed to the debate. All noble commission, preparation or instigation of acts of Lords have recognised the seriousness of this issue. I terrorism. understand that all noble Lords who have spoken have tried to exercise their best judgment in this particularly The noble Baroness, Lady Kennedy, has expressed sensitive area. My noble friends Lady Hamwee and concern that the powers may be used in a discriminatory Lord Avebury, the noble Baroness, Lady Kennedy, way. Accordingly, Amendment 57 also includes and my noble friend Lord Lester—I am sure we all requirements on collecting data. Requiring examining wish him a speedy recovery in his absence—have all officers to collect data on all protected characteristics raised a number of issues through their amendments. from all individuals examined under Schedule 7 would be both very intrusive and extremely bureaucratic. It As has been pointed out, the independent reviewer would also prolong the majority of examinations, of of terrorism legislation, David Anderson QC, has which 63% are completed within 15 minutes. There is a recently made some recommendations for further reforms question as to how useful such data would be. to the powers contained in Schedule 7 to the Terrorism Act. These recommendations, as my right honourable Direct comparison with the UK population is not friend Damian Green reported, are being considered really relevant here. A significant proportion of those by Ministers. We are grateful to the independent reviewer who travel through ports are not UK residents. The of terrorism legislation for his report. use of the powers is based on the current terrorist threat to the United Kingdom, meaning that certain I have to say that, as Mr Anderson has also observed, routes are given greater focus. Consequently, some there is a limit to how far these matters can be considered ethnic groups may be more likely to be examined, but before the conclusion of the judicial review proceedings not because the powers are being used inappropriately. in the case of David Miranda. That being the position, As the independent reviewer of terrorism legislation while I welcome the opportunity to air these important reported in his recent annual report: issues in debate now, I propose only to set out the Government’s preliminary view of the amendments “If the power is being properly exercised ... one would expect— before us today. Subject to the timing of a judgment in that those examined, in terms of breakdown, would the Miranda case, I hope to give a more definitive view “correlate not to the ethnic breakdown of the travelling population, before the Bill moves on to Report—I will make sure but rather to the ethnic breakdown of the terrorist population”. that noble Lords are aware as soon as we are in that He went on: position. “Police are however entitled and indeed required to exercise As the noble Baroness, Lady Smith, invited me to their Schedule 7 power in a manner aligned to the terrorist threat. do, I begin by touching on Amendments 56YJ and As in previous years, I have seen no evidence, either at ports or 56YK, which deal with some complex issues. The first from the statistics, that Schedule 7 powers are exercised in a of these is around safeguards for legally privileged and racially discriminatory manner” related material and the use of admissions in criminal That said, we are working with the police and the proceedings. It is right that the Government are Equality and Human Rights Commission to find a considering these matters and they are doing so now. balance between increasing transparency without There is no need for the Bill to require that consideration increasing the bureaucratic burden. I would also like in future. to reassure the noble Baroness that the statutory code I would like to be clear that the current compulsion of practice for examining officers makes clear that under Schedule 7 to the 2000 Act to answer questions someone cannot be examined based solely on their means that admissions made in an examination would ethnicity or their religion. not normally be considered admissible in criminal The final element of Amendment 57 would remove proceedings. Both the High Court and the independent the compulsion on individuals examined at ports and reviewer of terrorism legislation have suggested that a airports to provide information. This would fundamentally statutory bar be introduced to this effect, and this is undermine the whole purpose of the legislation. Schedule 7 something that we are examining carefully. examinations have led to individuals being convicted 813 Anti-social Behaviour Bill[11 DECEMBER 2013] Anti-social Behaviour Bill 814 for terrorist-related offences and have produced be liable to being transported from the port to a police information which has contributed to long and complex station where facilities are available, extending the intelligence-based counterterrorist investigations and duration of the examination. The questioning of any the disruption of terrorist activity. If someone could person detained for examination under Schedule 7 at a simply refuse to answer questions, the utility of the police station already falls under a code of practice for provision would be fundamentally brought into question. the video recording of interviews. Amendment 58 seeks to introduce a reasonable Amendments 63, 64 and 64ZA relate to areas where suspicion test to be met before an examining officer we are already introducing reforms through the Bill. may detain a person under Schedule 7. Again, this While the Bill ensures that all persons detained under these would undermine the capability of the police to identify powers will have a right to consult a lawyer and to individuals who are involved in terrorism as they have someone informed of their detention, Amendment 63 passed through our ports and borders. Examinations would extend those rights to everyone examined. As I are not simply about the police talking to people who have explained, some 63% of examinations last less they know or already suspect are involved in terrorism. than 15 minutes. More than 96% are concluded within They are also about talking to people travelling to and an hour. Extending statutory rights to all those being from places where terrorist activity is taking place or examined, even briefly, would create an unnecessary emerging to determine whether those individuals appear burden and could well lead to longer examinations to be involved in terrorism, whether that is because than are necessary. I would also like to remind noble they are or have been involved, are going to become Lords that the Bill already ensures that anyone examined involved or are at risk of becoming involved either for more than an hour must be formally detained, so knowingly or unknowingly. there is no question of prolonged examination without these rights applying. For those reasons, I am not persuaded that it would be right to introduce a test of reasonable suspicion. I am pleased that my noble friend Lord Faulks has been 5.45 pm able to explain that the Joint Committee on Human Amendment 64 relates to biometrics. Biometrics Rights has supported this position. However, the play an important part in establishing the identity of independent reviewer of terrorism legislation has recently those travelling through the ports and in assisting the recommended that detention be permitted and continue determination of those involved in terrorism. Samples on periodic review only when an officer is satisfied are taken from less than 1% of people examined under that there are grounds for suspecting that the person Schedule 7. However, a small but significant number appears to be a person concerned with terrorism. We of samples have provided links to counterterrorism are reflecting on this recommendation ahead of Report. investigations and identified individuals using alias Amendments 59, 60 and 61 would further reduce details. It is therefore important to retain this power. the maximum period of detention. The police need However, perhaps I can reassure my noble friend Lord time to carry out checks and questioning. The person Avebury that DNA and biometric material obtained may have a lot to say, detailed or complex questioning under a Schedule 7 examination must be destroyed may be required, inconsistencies in the person’s account in line with the Protection of Freedoms Act 2012. If or documentation may need to be understood, or time the person has not been convicted of an offence, the may be needed to allow the person to consult privately sample cannot be retained indefinitely. We recognise with a legal adviser or to allow for interpretation. We the impact that taking a sample could have on a are already reducing the maximum period by a third person’s privacy and we are taking steps to limit it. I but there is a balance to be struck, and for that reason would remind the noble Baroness that the Bill will I do not believe that it should be reduced further. repeal the current provision in Schedule 7 to obtain intimate samples. Amendments 57A, 61A, 61B and 62 seek to restrict Finally, Amendment 64ZA would build on one of examining officers’ powers in respect of the property the key changes we are making in the Bill: we are of people who are examined. The power to search for introducing a statutory review of detention. We recognise and examine property, including on personal electronic the importance of clear review periods as part of the devices, is an essential part of the Schedule 7 powers. new provisions. Our intention is to address this in the As the independent reviewer of terrorism legislation code of practice for the examining officer, and this is has observed, clearly set out in the draft code we have published. “it is of vital importance that the copying and retention of data However, in the light of the debate today, the Government from mobile phones and other devices should be provided for by will reflect further on whether these periods should be a law that is clear, accessible and foreseeable”. set out in the statute itself. New paragraph 11A of Schedule 7 to the 2000 Act, by This debate has been well worth while. It has given clarifying the law, meets a requirement of the European me an opportunity to explain how the Government Convention on Human Rights that interference with are responding to the independent reviewer’s report convention rights be in accordance with law that is and how the Bill is moving this issue forward. I hope adequately accessible and foreseeable. Amendment 62 that I have been able to give noble Lords some reassurance would take away that clarification. on the issues raised. As I said at the start of my On Amendment 62A, noble Lords will understand remarks, we continue to consider these issues in the that ports, airports and international rail terminals are light of the recommendations in David Anderson’s quite different from police stations, and, as such, recent evidence to the Home Affairs Select Committee. recording facilities are not always going to be available. That evidence was submitted only on 20 November and If recording were mandatory, more individuals would noble Lords would expect us to take a little time to 815 Anti-social Behaviour Bill[LORDS] Anti-social Behaviour Bill 816

[LORD TAYLOR OF HOLBEACH] consider our response given the sensitivity and complexity Amendment 64A of the issues. However, above all, we are awaiting the outcome of the judicial review in the David Miranda Moved by Lord Ahmad of Wimbledon case. We want to reflect carefully on the points made 64A: After Schedule 8, insert the following new Schedule— in the debate today because they have been valuable. Schedule On that basis, I hope that my noble friend will Powers of community support officers withdraw her amendment and that the noble Baroness, Introduction Lady Kennedy, will not press her amendments in the 1 Part 1 of Schedule 4 to the Police Reform Act 2002 (powers knowledge that we will come back to this issue at of community support officers) is amended as follows. Report with clarification of the Government’s position in the light of the report and the judicial review. Additional powers to issue fixed penalty notices 2 (1) In paragraph 1 (powers to issue fixed penalty notices), in sub-paragraph (2)(b), for the words after “in respect of an offence” Baroness Kennedy of The Shaws: My Lords, I thank there is substituted “listed in sub-paragraph (2B)”. the Minister for his very considered response to the (2) In sub-paragraph (2) of that paragraph, after paragraph matters that have been raised. I am grateful to him for (ca) there is inserted— indicating that further thought will be given to some “(cb) the power of an authorised officer of a borough council of the matters that have been part of the debate here. I to give a notice under section 15 of the London Local know that there will be no movement on certain Authorities Act 2004 in respect of an offence under things, but that there might be some movement on section 38(1) of the London Local Authorities Act 1990 or section 27(1) of the City of Westminster Act 1999 others. On that basis, I will not press my amendment. (unlicensed street trading);”. (3) After sub-paragraph (2A) of that paragraph there is inserted— Baroness Hamwee: My Lords, I am extremely grateful “(2B) The offences referred to in sub-paragraph (2)(b) are— to my noble friend for his very helpful response and I (a) an offence under section 72 of the Highway Act 1835 am glad that there will be further opportunity to (riding on a footway) committed by cycling; discuss these things. He has given some important (b) an offence under section 5(1) or 8(1) of the Road Traffic assurances on a number of points. My amendment Regulation Act 1984 involving a contravention of a 56YK was really rather tongue-in-cheek, of course. It prohibition or restriction that relates to— was also a bit of a nod to my honourable friend the (i) stopping, waiting or parking at or near a school Member for Cambridge, who had it down in the entrance, Commons but did not really manage to speak to it. I (ii) one-way traffic on a road, or would not subcontract such matters, but the assurances (iii) lanes or routes for use only by cycles, only by buses of further consideration are very helpful to hear. I or only by cycles and buses; have never doubted the very serious way in which the Government are considering this. (c) an offence under section 24 of the Road Traffic Act 1988 (more than one person on a one-person bicycle); A number of noble Lords will want to take part in (d) an offence under section 35 of that Act (failing to comply discussions of this on Report. In particular, the noble with traffic directions) committed by the rider of a cycle; and learned Lord, Lord Lloyd of Berwick, was not (e) an offence under section 36 of that Act (failing to comply able to stay long enough this afternoon, and I am sure with traffic signs) committed by the rider of a cycle who that my noble friend Lord Lester will be back to fails to comply with the indication given by a red traffic discuss it. I think that I can assure the Committee that light; there will be a pretty substantial debate next time (f) an offence under section 42 of that Act of contravening round. Most importantly, we will be looking at where or failing to comply with a construction or use requirement the Government’s thinking is going before we come about— back onto the Floor of the House. There are clearly (i) lighting equipment or reflectors for cycles, very important discussions to be had. On that basis, I (ii) the use on a road of a motor vehicle in a way that beg leave to withdraw the amendment. causes excessive noise, (iii) stopping the action of a stationary vehicle’s Amendment 56YJ withdrawn. machinery, (iv) the use of a vehicle’s horn on a road while the Amendment 56YK not moved. vehicle is stationary or on a restricted road at night, or (v) opening a vehicle’s door on a road so as to injure or Schedule 8: Port and border controls endanger a person; (g) an offence under section 163 of that Act (failing to stop Amendments 57 to 64ZA not moved. vehicle or cycle when required to do so by constable or traffic officer). (4) After sub-paragraph (4) of that paragraph there is inserted— Schedule 8 agreed. “(5) In this paragraph “cycle” has the same meaning as in the Road Traffic Act 1988 (see section 192(1) of that The Deputy Chairman of Committees (Baroness Gibson Act).” of Market Rasen) (Lab): We come to Amendment 64A. Powers to issue fixed penalty notices: consultation with local authorities I call the noble Lord, Lord Taylor of Holbeach. I am 3 In paragraph 1, after sub-paragraph (2B) (inserted by sorry; I call the noble Lord, Lord Ahmad of Wimbledon. paragraph 2(3) above) there is inserted— 817 Anti-social Behaviour Bill[11 DECEMBER 2013] Anti-social Behaviour Bill 818

“(2C) Before a chief officer of police makes a designation We have made significant reforms to policing to applying this paragraph to any person and specifying or describing enable the police to respond to the individual concerns an offence listed in sub-paragraph (2B)(b)(i), the officer shall of their communities and to give local communities consult every local authority any part of whose area lies within the officer’s police area. direct access to engage with and challenge their local force. Community-focused policing is key to improving (2D) In paragraph (2C) “local authority” means— satisfaction rates and public perceptions of police (a) in relation to England, a district council, a London legitimacy, as well as to reducing the fear of crime and borough council, the Common Council of the City of London or the Council of the Isles of Scilly; and perceptions of local disorder. Police community support officers are, of course, vital in delivering this method (b) in relation to Wales, a county council or a county borough council.” of policing. Taking time to engage and really get to know their communities, the problems they face and General power of seizure their priorities is central to building these strong links 4 After paragraph 2A there is inserted— and helps to shape an effective police response. “General power of seizure 2B Where a designation applies this paragraph to any person— When the Bill was considered in the other place, my (a) that person shall, when lawfully on any premises in the honourable friend Steve Barclay, the Member for North relevant police area, have the same powers as a constable East Cambridgeshire, highlighted inconsistencies in under section 19 of the 1984 Act (general powers of police community support officers’ powers. We have seizure) to seize things; already taken steps to remedy the specific issue he (b) that person shall also have the powers of a constable to raised by adding Clause 135 to the Bill, but we want to impose a requirement by virtue of subsection (4) of that go further to support the important role that PCSOs section in relation to information accessible from such play. We want to ensure that they have the necessary premises; tools to keep the public safe and tackle the issues that (c) subsection (6) of that section (protection for legally really matter to the communities they serve. We believe privileged material from seizure) shall have effect in relation that 18 new discretionary powers introduced by these to the seizure of anything by that person by virtue of sub-paragraph (a) as it has effect in relation to the seizure amendments will do just that. These provisions will of anything by a constable; give chief constables greater discretion and flexibility (d) section 21(1) and (2) of that Act (provision of record of in how they deploy police community support officers seizure) shall have effect in relation to the seizure of to tackle low-level crime and anti-social behaviour. anything by that person in exercise of the power conferred on him by virtue of sub-paragraph (a) as if the I turn first to new cycle powers. Failing to comply references to a constable and to an officer included with road regulations can expose both cyclists and references to that person; and their fellow road users to danger, including pedestrians, (e) sections 21(3) to (8) and 22 of that Act (access, copying as we sometimes see. That is why we want to do more and retention) shall have effect in relation to anything to ensure that road safety regulations are well understood seized by that person in exercise of that power or taken and adhered to. In addition to giving police community away by him following the imposition of a requirement by virtue of sub-paragraph (b)— support officers the power to issue a fixed penalty notice for cycling without lights, the amendments will (i) as they have effect in relation to anything seized in exercise of the power conferred on a constable by give them power to issue a fixed penalty notice for section 19(2) or (3) of that Act or taken away by a cycling through a red light, failing to comply with a constable following the imposition of a requirement traffic direction and carrying a passenger on a cycle. by virtue of section 19(4) of that Act; and We believe that giving police community support officers (ii) as if the references to a constable in subsections (3), a more comprehensive package of cycle-related powers (4) and (5) of section 21 included references to a will put them in a better position to drive improvements person to whom this paragraph applies.” in cycle safety. Powers with regard to charity collectors 5 After paragraph 3A there is inserted— I turn to new traffic powers. We are introducing a “Power to require name and address etc: charity collectors new package of measures to give police community support officers additional powers to issue fixed penalty 3B Where a designation applies this paragraph to any person, that person shall, in the relevant police area, have the powers of a notices. These include for failing to stop for a police constable— constable, driving the wrong way down a one-way (a) under section 6 of the House to House Collections Act street, sounding a horn at night, sounding a horn 1939 to require a person to give his name and address when stationary, not stopping the engine when stationary, and to sign his name; and causing unnecessary noise, contravening a bus lane (b) under regulations under section 4 of that Act to require and opening a door so as to cause injury or danger. a person to produce his certificate of authority.” Paddy Tipping, the police and crime commissioner for Power to stop cycles Nottinghamshire, has indicated a desire to see PCSOs tackling traffic offences. While we do not agree that 6 In paragraph 11A (power to stop cycles), in sub-paragraph (2), for the words after “has committed an offence” there is substituted they should be given the power to issue notices for “listed in paragraph 1(2B)(a) to (e), (f)(i) or (g)”.” more serious traffic offences, we believe that the new package I have outlined is practical at this time. I want to be clear that these measures are not intended to Lord Ahmad of Wimbledon: One of the memorable provide a means to pick on drivers or cyclists, or to parts of the Bill’s passage has been my attempts to be raise revenue. Our focus is improving safety for all my noble friend Lord Taylor—which I have succeeded road users and to do that we must ensure that road in doing on a number of occasions now. regulations are respected and enforced. 819 Anti-social Behaviour Bill[LORDS] Anti-social Behaviour Bill 820

[LORD AHMAD OF WIMBLEDON] engaging residents more actively in local policing. A third area we are covering is parking outside Indeed, in my own personal experience, on one occasion schools. The power to tackle dangerous parking outside two police community support officers knocked on schools is an issue that has been raised in previous my front door—fortunately they were not there to take debates and it is something we wish to address. We me away—to ask me what issues, if any, were causing know that patrolling outside schools is a core function me concern in my own particular locality. Presumably for many PCSOs and this makes them well placed to they were doing a survey of residents’ opinions about use their engagement and problem-solving skills to issues of concern to them. What we now have is a list educate drivers about the risks of dangerous parking. of additional powers for police community support However, we recognise that, on occasions, stronger officers to issue mainly fixed penalty notices. It could action is needed and to address this issue we are giving therefore be argued that these powers will put police them the power to issue fixed penalty notices to individuals community support officers potentially into a more who park in restricted areas outside schools. Local confrontational position with members of the public authorities currently play a core role in parking than perhaps we normally associate with their role at enforcement and we know that a collaborative approach present. to tackle these types of offences is essential. We believe As I understand it, under the original terms of this that chief constables should consider the role a local Bill it had not been the Government’s intention to make authority plays before making any decision to designate considerable additions to the powers of police community this power and we have therefore imposed a duty to support officers. Indeed, in the letter that the noble consult within this provision. Lord, Lord Taylor of Holbeach, kindly sent to us setting Illegal street vendors and house-to-house collectors out the Government’s intentions in this amendment, is another area of concern. In addition to the measures he referred, as has the noble Lord, Lord Ahmad of I have outlined, the amendments aim to support the Wimbledon, to Stephen Barclay’s amendment in the role PCSOs play in promoting crime prevention and other place that led to the Government tabling a new tackling anti-social behaviour issues. Illegal street vendors clause, which I think is Clause 135, conferring powers and bogus house-to-house collectors can cause a nuisance on police community support officers to issue fixed to communities and have a detrimental impact on penalty notices for cycling without lights. As a result those working legitimately.Tackling this type of behaviour of that, something led the Government to say, “Let’s is important. We recognise that illegal street vendors have a further look at what additional powers we can may be more common within highly populated cities give to police community support officers”. We now and that is why we are giving PCSOs in London the have before us a much greater list. The original Stephen power to issue a fixed penalty notice to illegal street Barclay amendment was one additional power, but vendors. This is in line with existing local authority now we have a long list of additional powers not just powers. Giving PCSOs the power to confirm the identity affecting cyclists and not just in connection with traffic- of house-to-house collectors will support their role in related powers; they go further than that. One could providing community reassurance and tackling nuisance make a case for saying that this is beginning to change behaviour. the role of PCSOs. Finally, we will be aligning the powers of PCSOs to We are not standing here opposing this, but my seize and retain material during premises searches question is this: what led the Government to believe with those of police officers. PCSOs already play an that the extension of powers now being proposed—in important role in supporting police officers to execute Committee stage here, the Bill having been through search warrants but their authority to seize material is the other place—is appropriate when they did not limited. Granting PCSOs this power will free up police believe it to be so at the time it was drawn up and when, time by enabling PCSOs to operate more independently bearing in mind the title of the Bill, we can presume of police officers when carrying out this function. that virtually all issues related to policing and the We know that the public value the presence of powers of the police were in fact under review and up PCSOs within the community and we have been clear for consideration? I would be grateful for an explanation that engagement is at the heart of their role. This of why this has been brought forward at this stage, but should continue to be their core function. We believe was not considered appropriate when the Bill was that a distinction between the role of a constable and a being drawn up. I understand that these further powers PCSO should remain and that is why we have taken are the Government’s own view of what they want to time to fully consider the implications of conferring do and are not, subject to what the noble Lord, Lord the powers contained within this proposal. We are Ahmad, may say to me in response, due to any particular confident that they will enhance, not dilute the community pressure from someone. I can see why the Stephen engagement role of PCSOs and I commend the Barclay amendment was made. He raised and then amendments to the Committee. I beg to move. pursued it, and obviously Government Ministers said that they would accept it and take action. Since it appears that these additional powers have 6pm been put forward at a pretty late stage, and therefore Lord Rosser (Lab): I should like to raise one or two presumably over a short timescale, who has actually questions about this proposal. As the Minister has been consulted on this proposed extension? Has there said, the role that we currently associate with police been wide consultation with those who might have an community support officers is one of public reassurance interest in this change of approach? Have the police through visible street patrols and, as again the noble themselves been pressing for this extension for some time Lord said, through community engagement, including but to no avail, and now they find that, metaphorically 821 Anti-social Behaviour Bill[11 DECEMBER 2013] Anti-social Behaviour Bill 822 speaking, they have hit the jackpot, because what they Lord Ahmad of Wimbledon: My Lords, perhaps I have been pressing for has now been agreed at a rather may say first that when those PCSOs arrived at the late stage in the proceedings? door of the noble Lord, Lord Rosser, I am glad that I am putting these points as questions for the Minister they did not take him away. We would have been without and my final question is this. Since the Government his expertise and input in this Bill, so we are grateful have clearly now had a look at what additional powers for that. Equally, he made an important point in it would be appropriate to give police community mentioning it. I come back to a point I made earlier: support officers, powers that begin to change the PCSOs are distinct from police officers, and I think I nature of the job—the operative word is “begin”—without made that clear in my comments. What they do in taking away their former functions, are the Government terms of reassurance is something that the police now going to carry out a full review of the role and themselves do. Again, speaking from my experience of responsibilities of PCSOs? I ask this because what is working with neighbourhood teams when I was a now in front of us gives the impression, again subject local councillor, the police also did similar reassurance to what the noble Lord, Lord Ahmad, may say in exercises. reply, of something that has been drawn up in quite a I turn now to the specific questions that have been short time and is being put forward in the Bill now put to me. The noble Lord, Lord Rosser, asked why we when it had not been the Government’s intention to are proposing this now. Of course, we are responding do so not very many months ago when the Bill originally in line with the scrutiny of the Bill in the Commons. arrived in the House of Commons and throughout its My honourable friend Stephen Barclay raised the issue, passage through that place. but it did go wider and beyond the specifics of his amendments. This is not something that the Government Lord Paddick (LD): My Lords, I should like to say a have only just thought about. I referred in my earlier few words arising from my policing background and comments to a Labour police and crime commissioner, experience. I support to some extent the noble Lord, Paddy Tipping, who wants us to go further. We have Lord Rosser, in what he said, at least initially. Police consulted on this and we have looked at the position community support officers, if they have a useful role, with relevant experts in the field to understand the are seen by the police as a bridge between police implications of the change. We have included discussions officers and the community. Part of the reason they with the police at both the operational and the strategic are able to perform that role is that they have very level, the College of Policing, the partnership agencies limited powers when it comes to enforcement. They and, indeed, national police leaders. As I said in my can be seen as friends of the community and not earlier remarks, this is about enhancing the powers of necessarily come into conflict with it. As we know PCSOs and not about taking away from their engagement. from what happened with traffic wardens when they We believe it is right that the engagement role performed were introduced, they in fact became the enemies of by PCSOs is vital in making police accessible to all, motorists. We certainly would not want to erode the and we do not want to overburden them with enforcement useful role that police community support officers powers that would detract from that. That is why we play in terms of being friends of the community and a have taken a considered position on these new packages. bridge between the community and what it increasingly The noble Lord, Lord Rosser, also asked whether we sees as enforcement officers; that is, police officers. will consider more powers. These changes will mean a The second issue is the need to keep a very clear significant increase in the number of powers available distinction between police officers and police community for designation to PCSOs. That is an important distinction: support officers. The recruitment standards and the this is not something that is carte blanche; it is right training that police officers receive are far higher than that the chief officers should have the freedom to take is the case for police community support officers, account of local circumstances and priorities when particularly in the training of police officers in the use determining how their PCSOs are deployed. That will of discretion. If we are asking police community support be the case in these additional powers that are being officers to use their discretion as to whether they issue proposed. That is why we have taken the time to fixed penalty notices to erring motorists or cyclists, consider and, while we will be exploring a wider role considerably more training needs to be given to them for PCSOs, the Government believe that their particular on the circumstances in which they should use that role is being enhanced. discretion. As I say, there is a clear danger that the I hope that I have covered the specific questions distinction between the police and police community asked by the noble Lord, Lord Rosser. support officers will be eroded if slowly but surely we give police community support officers more and more Lord Rosser: Were local authorities consulted? powers. Thirdly, there is already confusion in the minds of Lord Ahmad of Wimbledon: There was not a general the public as to what police community support officers consultation with all local authorities but, in our can and cannot do. When police community support consideration, as I have said, we talked to partnership officers arrive at the scene of an incident, the public agencies and national police leagues; that, of course, look to them to act as police officers would, and are in some respects includes local authorities’ opinions. surprised to find that they do not have the powers or This is not trying to take away from local authorities: the ability to intervene in a way that the public expect anyone who has worked at local government level of them. Gradually giving police community support knows that local authorities, the police et cetera all officers more powers will add to that confusion among work in partnership in ensuring that we get the maximum the public. level of reassurance. 823 Anti-social Behaviour Bill[LORDS] Anti-social Behaviour Bill 824

[LORD AHMAD OF WIMBLEDON] (4) For the purposes of subsection (3), the relevant conditions I turn briefly to the points raised by my noble friend, in relation to a grant by an individual holding an office, rank or who speaks with great expertise in this area. I would not position in a relevant law enforcement agency, that— in any sense seek to challenge that. I believe that the (a) the individual was a designated person for the purposes vital distinction remains between police officers and of section 29, PCSOs. We are merely seeking to enhance the functions (b) the grant of an authorisation was not in breach of any of PCSOs to allow them to engage more effectively in prohibition imposed by virtue of section 29(7)(a) or any the community and to address the very issues he has restriction imposed by virtue of section 30(3), and raised about their effectiveness when they arrive at a (c) any other conditions that may be provided for by the particular point. Our proposals are a proportionate Secretary of State were satisfied. response to what is needed. It will help in community (5) In this section— engagement and effective enforcement in respect of some “relevant law enforcement authority” means— of the lower-level issues that are raised. Neighbourhood (a) a police force in the United Kingdom, and policing will be in a better place for that. I beg to move. (b) the National Crime Agency; “relevant judicial authority” means— Amendment 64A agreed. (a) in relation to England and Wales, the High Court of Justice in England and Wales, Clauses 133 and 134 agreed. (b) in relation to Scotland, the Court of Session, and (c) in relation to Northern Ireland, the High Court of Clause 135: Power of community support officer to Justice in Northern Ireland; issue fixed penalty notice for cycle light offence “relevant person” means— (a) an individual holding an office, rank or position in a Amendment 64B police force in the United Kingdom, and Moved by Lord Taylor of Holbeach (b) an individual holding an office, rank or position in the 64B: Clause 135, leave out Clause 135 and insert the following National Crime Agency. new Clause— (6) In this section— “Powers of community support officers “relevant independent body” must be set out by the Home Schedule (Powers of community support officers) (which Secretary in a motion passed by both Houses of Parliament amends Part 1 of Schedule 4 to the Police Reform Act 2002) before this section is enacted; has effect.” “long-term” must be set out by the Home Secretary in a motion passed by both Houses of Parliament before this section Amendment 64B agreed. is enacted.”” Clause 135, as amended, agreed. Lord Rosser: We indicated at Second Reading that 6.15 pm we intended to propose a new clause on this issue since it was clear that action had to be taken to address how covert policing operations were authorised and managed. Amendment 64C Of course, we support undercover policing, since such Moved by Lord Rosser operations are a vital part of the fight against organised 64C: After Clause 135, insert the following new Clause— crime and terrorism and are essential in keeping “Long-term police authorisation requiring independent approval communities safe. We recognise the dedication and (1) The Regulation of Investigatory Powers Act 2000 is amended bravery of those officers who undertake this work. as follows. However, any such operations must be subject to the (2) After section 32A (authorisations requiring judicial approval) highest ethical and operational standards. That is insert— essential for both their operational effectiveness and “32AA Long-term police authorisations requiring independent public confidence. Our amendment today, therefore, approval seeks to deal with the issue of accountability. (1) This section applies where a relevant person has granted a long-term authorisation under section 29. There are two cases that highlight how important it (2) The authorisation is not to take effect until such time (if is that changes of the kind that we are proposing are any) as the relevant independent body has made an order approving made. The first is the case of Mark Kennedy who, as a the grant of the authorisation. police officer, infiltrated—I think that is the word—protest (3) The relevant independent body may give approval under groups over a period of years: groups which said that this section to the granting of an authorisation under section 29 they were involved in lawful demonstrations, rather than if, and only if, the relevant independent body is satisfied that— crime. The former policeman, it appears, had relationships (a) at the time of the grant— with women in the protest movement and travelled to (i) there were reasonable grounds for believing that the eco-protests across Europe. He later told a Channel 4 requirements of section 29(2), and any requirements documentary of his remorse, including his regrets imposed by virtue of section 29(7)(b) are satisfied in relation to that authorisation, and about and feelings for a woman with whom he had had a long affair. HMIC reviewed the activities of Mark (ii) the relevant conditions were satisfied in relation to that authorisation, and Kennedy and other undercover officers and stated that his actions had led to the collapse of a trial of (b) at the time when the relevant independent body is considering the matter, there remain reasonable grounds environmental protesters and that he had “defied” for believing that the requirements of section 29(2), and management instructions. The report found that any requirements imposed by virtue of section 29(7)(b) Mr Kennedy had helped to unearth “serious criminality”. are satisfied in relation to that authorisation. However, Mr Kennedy said that, while the subject had 825 Anti-social Behaviour Bill[11 DECEMBER 2013] Anti-social Behaviour Bill 826 never been broached directly, it was “impossible” that family showed appallingly bad judgment. Surely, we his superiors had not known he was having a sexual all want to ensure that any operation undertaken is relationship with some protesters. The report suggested accountable, justifiable and in the wider public interest. that an independent body might be required to authorise On Report in the other place, the Minister Damian such undercover operations. It also said that Mr Kennedy Green stated that it was the Government’s, was inadequately supervised and that oversight of “intention to legislate to enhance oversight of undercover law undercover officers needed to be strengthened. enforcement officer deployments”, The second case is that of the Lawrence family. and this could, Twenty years ago, Stephen Lawrence was murdered at “be done through secondary legislation”. the age of 18. He was, of course, the son of Neville He outlined the Government’s proposals to increase and Doreen, who is now my noble friend Lady Lawrence accountability and oversight. However, proper scrutiny of Clarendon, a Member of your Lordships’ House. is necessary and we need the opportunity to scrutinise Stephen was cruelly murdered by racists and there was those proposals as part of this Bill. Damian Green evidence of racism in the way the police inquiry was promised in the House of Commons that he would, conducted. Serious allegations have now been made “lay the appropriate order before the House shortly”.—[Official that the police spied on the Lawrence family with a Report, Commons, 15/10/13; col. 634] view to discrediting them. Peter Francis, a former As I understand it, we have not yet seen the order, undercover police officer and a member of the somewhat although I may be wrong in saying that. However, we controversial Special Demonstration Squad, has spoken feel that it would be much better to deal with an issue of his activities as part of an operation to spy on and of this importance in what the Government regard as attempt to smear the Lawrence family. a flagship Bill on crime and policing. I hope the Minister, when he replies, will be able to give a helpful response. These two cases and other incidents have led to serious concerns about the accountability of the undercover police operations that were undertaken Lord Taylor of Holbeach: My Lords, I am very and raised questions about the accountability of future grateful to the noble Lord, Lord Rosser, for tabling undercover police operations. Our amendment seeks this amendment because I agree with him that the to ensure that all long-term undercover operations whole question of undercover policing is very important. are signed off by a relevant independent body, to I do not think that any noble Lord should be in doubt ensure that, where needed, covert operations are used that covert techniques, including undercover policing, proportionately, sensitively, only when necessary and are an important weapon in the fight against terrorism with clear and improved accountability arrangements. and other serious and organised crime. Undercover Additionally, we do not currently have effective oversight police officers play a crucial role in keeping us all safe. of these operations. There are various options we can It is difficult and dangerous work and I welcome this explore and we hope that the Government will look at opportunity to pay tribute to all who undertake it. these options carefully. Judicial oversight is just one The new clause proposed by the noble Lord seeks that could be considered. to introduce a system of independent authorisation for undercover policing operations. I do not believe There also appears to be an anomaly, because currently, there is any great difference of view between the noble if the police or security services want to enter—perhaps Lord and me on this point. We both believe that there to break in, to bug a room or to intercept a phone must be proper safeguards to ensure that these covert call—they need justification that to do so is in the techniques are used only where appropriate and that interests of national security in order to get a warrant. the mechanisms for approving all such deployments Attaining a warrant requires judicial approval. However, are fit for purpose. However, I hope that it will help those undercover police officers who entered into noble Lords if I set out why I do not believe that this relationships in an attempt to retrieve certain information amendment is required, not least because the Government needed no warrant. have already instigated changes that are designed to Of course—and we appreciate this—undercover meet the concerns that have arisen in the light of some operations vary. Some will be as short as an hour or so allegations of past misconduct, which were sympathetically and may involve relatively minor matters; it would be described by the noble Lord, Lord Rosser. impractical to ask for independent approval for all Undercover deployments are authorised under the such operations. However, our proposed new clause is Regulation of Investigatory Powers Act 2000, commonly intended to target long-term covert police operations, known as RIPA, which stipulates that the use of an and these can span from six months to 12 months or undercover deployment can be authorised only at a even several years. When such operations are undertaken, senior level within the police force or other law enforcement there needs to be clarity about the goals, the methods agency concerned. In giving an authorisation, the and the priorities. Therefore, there should be independent authorising officer must balance the seriousness of the approval prior to any such lengthy operation. It does crime being investigated, and the value of the evidence not necessarily have to come from a judge, but it must likely to be gathered, against the right to privacy of be truly independent, and the very process of seeking the person under investigation and of those others such approval would help to ensure proportionality, who are likely to have their privacy intruded upon, and clarity of objectives and methods. Our proposed such as family, friends and other associates. new clause would help to ensure that operations such Her Majesty’s Inspectorate of Constabulary conducted as the hugely inappropriate and totally wrong campaign a rigorous and independent review of undercover policing against the Lawrence family cannot take place again. last year and made a number of recommendations to That campaign and operation against the Lawrence improve the way authorisations and deployments are 827 Anti-social Behaviour Bill[LORDS] Anti-social Behaviour Bill 828

[LORD TAYLOR OF HOLBEACH] it a case of getting their approval beforehand and, made. Earlier this year, the inspectorate reported on once that prior approval has been given, that is the end the progress made in implementing its 2012 report and of the independent oversight? was generally positive about the work already done. The noble Lord referred to the role played by my ministerial Lord Taylor of Holbeach: The prior approval is of colleague, the Minister for Policing, Criminal Justice course designed to make sure that there is no extension and Victims, the right honourable Damian Green, without the surveillance commissioner being a party who announced to the Home Affairs Select Committee to the decision. I cannot give the noble Lord a clear our intention to strengthen this regime to enhance answer on this but I would suspect that the surveillance oversight of undercover law enforcement officer commissioner could make his approval dependent on deployments. I am pleased to say that the order to give an update at some point during the extended 12-month effect to this commitment was laid in October and is period. I will write to the noble Lord and give him due to take effect on 1 January next year. some indication of how this would operate. I understand I will set out the effect of the changes that the entirely what he is getting at and am quite happy to Government are bringing forward. First, law enforcement investigate and provide that to him. agencies will need to notify the surveillance commissioners —all retired judges—of undercover deployments. In practice, what will happen is that a surveillance Lord Rosser: I thank the noble Lord for his reply commissioner will see the same papers that were presented and for his offer to write to me on the issue that I have to the authorising officer and will have the opportunity just raised. I will obviously want to reflect on the reply to raise any concerns. Noble Lords will appreciate that that we have received but I beg leave to withdraw the most deployments are short-term in nature and, in amendment. many cases, last no more than a few hours. However, some are long-term, and these may give rise to the Amendment 64C withdrawn. greatest concern. Initial authorisations last for a maximum of 12 months. Accordingly, the second change we are Clause 136 agreed. putting in place is that an authorisation can be renewed beyond 12 months only with the prior approval of Clause 137: Extradition barred if no prosecution a surveillance commissioner—who, I remind your decision in requesting territory Lordships, is someone who has held a senior judicial office. In addition, we are increasing the rank of the Amendment 65 authorising officer. Deployments of undercover law Moved by Lord Hodgson of Astley Abbotts enforcement officers will henceforth need to be authorised at assistant chief constable level or equivalent. Any 65: Clause 137, page 104, line 20, leave out “prosecution deployments lasting longer than 12 months will be decision” and insert “decision to try” authorised by a chief constable or equivalent, as well as by a surveillance commissioner, as I have already Lord Hodgson of Astley Abbotts (Con): My Lords, explained. The seniority of those who will now be in moving Amendment 65, I will speak at the same required to authorise these deployments is an indication time to Amendments 66 to 75. With this group, we of how seriously the Government take proper oversight come to Part 12 of the Bill, which is concerned with of undercover law enforcement activity. We believe extradition. As this is the first time I have spoken at that these changes will promote the highest standards this stage of the Bill, I need to remind the Committee of professionalism and excellence in this most sensitive of my interest as a trustee of Fair Trials International. area of policing. We also believe that they will achieve I am very grateful to that organisation for many of the the aims of this proposed new clause by ensuring real-life examples that underlie the amendments that I judicial scrutiny of long-term deployments while shall move to this part of the Bill in the next hour or preserving the flexibility of law enforcement agencies so. I also acknowledge the help that I have had from to act swiftly where necessary. Justice and several other interested parties. Covert activity is a necessary part of the armoury of law enforcement but it is absolutely right, as is the 6.30 pm intention behind this amendment, that it must be I spoke about my general concerns about Part 12 at properly controlled and regulated. That is why the Second Reading and I do not wish to make a Second Government are making the changes that I have described. Reading speech tonight. But I hope that the Committee In the light of these changes and the new regime that will forgive me if on this first group of amendments I we are now putting in place, I do not believe that this explain some of the more detailed background factors amendment is required and I hope the noble Lord will that underlie my concerns and that have led to my withdraw it. tabling these amendments. They are the framework Lord Rosser: I shall of course withdraw the amendment into which the seven groups of specific amendments but, before I do, I have one question for the noble that follow will fit, like pieces in a jigsaw. Lord. Does the proposal that is to be implemented in These amendments are concerned with what is known relation to the role of the surveillance commissioners as a Part 1 warrant, more familiarly known as a also include, for particularly lengthy covert operations European arrest warrant, or an EAW. While the EAW lasting many months, any sort of regular oversight of has had some undoubted successes, there have been the operation by the surveillance commissioners, or is concerns about its practical application. To their credit, 829 Anti-social Behaviour Bill[11 DECEMBER 2013] Anti-social Behaviour Bill 830 the Government asked Sir Scott Baker to undertake a debate on my Amendment 94. It sets the date for the review of the country’s general extradition arrangements, second hearing, normally within 21 days, and it decides including specifically the operation of the EAW.Sir Scott whether to remand a person in custody or on bail, or Baker produced a report containing a set of to accept surrender if the person accepts the charge. recommendations. To their credit, the Government The second hearing is also highly restricted on the accepted some of them and to their additional credit matters that the judge can take into account in determining they have gone beyond Sir Scott Baker’s recommendations whether the warrant should be executed. Here, there in certain areas, such as the introduction of a forum are some technical issues including double jeopardy bar. However, the Government did not accept all the and specialty, considerations of age and passage of Baker proposals and meanwhile the continuing operation time since the alleged offence was committed, and of the EAW has led to further concerns about the way concerns about the physical and mental condition of in which it is being practically applied. the subjected person. What is not discussed are the A few minutes ago I referred to the successes of the facts of the case. So in as little as 35 days a person can EAW.It is incontrovertible that it has led to some very be on their way to another jurisdiction, with all that nasty people being returned to face justice in EU that means for their family, their employment and member states far faster than was possible under the indeed their whole life. In short, that is why I believe legislation prevailing before the EAW was introduced. that proper safeguards need to be in place. Nowhere is this more important and relevant than in As I said at Second Reading, similar amendments this country’s relationship with the Republic of Ireland were tabled at the Committee stage of this Bill in the and its implication for the border in Northern Ireland. other place. Not one was debated, because of the No doubt that is why the Government, having exercised operation of the guillotine. Procedurally, the Government their general opt-out over justice and security under should have the chance to explain their thinking on the Lisbon treaty, have decided to opt back into the this important issue of public policy. EAW directives, a decision I strongly support. With that perhaps overelaborate explanation of the Understandably, governments of every persuasion background to my amendments I turn to the substance have focused on the achievements that concern terrorists, of this first group. As can be seen from the wording, serious criminals, paedophiles and so on. The Amendments 65, 66 and 67 seek simply to change the overwhelming majority of our fellow citizens who words “prosecution decision” to “decision to try” in become involved with the EAW do not fall into these that part of Clause 137 entitled “Absence of prosecution high-profile categories. As I will attempt to illustrate decision”. Amendments 70, 73, 74 and 75 are with real-life examples, too often they concern what consequential amendments to the later parts of the Edmund Burke called the “little platoons”: people clause. who are caught up in a process that their knowledge, This group brings us to an important issue raised experience and contacts—unlike, for example, Members by the different nature of the UK’s judicial system of your Lordships’ House—do not equip them to from most of those of our European partners. Along challenge. with Ireland and Malta, this country has a common What is the scale of this issue? Every day, about law system, with a familiar adversarial judicial system four of our fellow citizens are served with an EAW, where prosecution and defence parade their arguments and about three of these will be surrendered. It is with before a judge and jury for them to determine. Other this group in mind that I have tabled these amendments. European states have an investigative system. This is If we are to deprive one of our fellow citizens of his or not better or worse; it is just different. It does mean, her liberty and hand him or her over to another state however, that a decision to prosecute can mean a for trial and possible imprisonment, which by any decision to continue to collect evidence that may or yardstick is a very fundamental decision, we need to may not lead to a trial. be sure that the appropriate level of safeguards is in The current drafting is ambiguous and could be place. While safeguards undoubtedly exist, they do interpreted as allowing the execution of an EAW not yet provide a sufficiently balanced position. As where a decision to prosecute has been taken, but a many noble Lords are aware, I am not a lawyer, so decision to try has not been. I am aware that under some of my arguments may seem to those Members in Section 2 of the 2003 Act and Article 1.1 of the EAW your Lordships’ House who are learned in the law to framework decision, an EAW is defined as a decision be legally clumsy. On this occasion, I am afraid that I issued for the purpose of prosecution. However, I am the man on the Clapham omnibus, or at least the argue that the test for execution of an EAW should be man in the saloon bar of the Dog and Duck. whether the case is trial-ready in the issuing state. In so far as the man on the Clapham omnibus is Concerns have been consistently raised about the lengthy concerned about these matters he is reassured by the pre-trial detention of those extradited prematurely as fact that there are two hearings before British judges a result of EAWs being issued before the case is as part of the EAW process. He has a touching faith in trial-ready. the British judicial system. Unfortunately, in large A well known case is that of Andrew Symeou, a measure this confidence is misplaced, because the British student who was extradited to Greece in July 2009 hands of a British judge, in hearing an EAW, are to face charges in connection with the death of a substantially tied. The first hearing that takes place young man on a Greek island. Andrew was extradited within 48 hours of arrest is essentially entirely procedural: long before the Greek court was ready to try him and it concerns issues of identity and whether the person endured a year in appalling prison conditions before arrested is the right one, a point I shall return to in the being granted local bail in Greece. Andrew was finally 831 Anti-social Behaviour Bill[LORDS] Anti-social Behaviour Bill 832

[LORD HODGSON OF ASTLEY ABBOTTS] investigation. However, at present the courts will assume cleared by a Greek court in June 2011, almost four that if the EAW contains the statement in Section 2(3) years after the events in question, during which time of the 2003 Act that the person is accused, and is he had not been able to continue his university studies unambiguous in this wording, this correctly reflects and his family had had their lives turned upside down. the state of proceedings and external evidence will not The fact that a decision is taken at some stage to normally be taken into account. charge may mean that the issuing state intends to This approach is based on the mutual trust that proceed to trial, but as Andrew’s case showed, what needs to exist between judicial authorities, and the need matters is whether the issuing state is ready to do so. to ensure that proceedings are swift and uncomplicated. Accordingly, these amendments set the test for executing There are concerns that under the current drafting of the EAW as trial-ready. proposed new Section 12A no change to existing practice Amendments 68 and 71 address the problem of will result. It may be difficult for the requested person too-early extradition by putting pressure on the requesting to establish that there are reasonable grounds for state to make use of other less disruptive measures, believing that no decision to prosecute has been taken such as videoconferencing and temporary transfers. if the EAW states unambiguously that the person is These amendments would ensure that the issuing state the accused and that the EAW was issued for the could not rely on its own refusal to use alternative purpose of prosecution. In order to fulfil the intention arrangements, such as videolinks or temporary transfers, to behind the amendment, it should be specified that the justify extraditing the person in order to charge them. judge should take into account external evidence, which I have already referred to the different legal investigative might include documents from the case file or expert and adversarial approaches. The Government’s objective evidence on the state of the proceedings in the requesting in the proposed Section 12A(1)(a)(ii) and 12A(1)(b)(ii) state. The judge should also have sufficiently broad is to cater for the situation in which a decision has not direction to be able to take into account evidence such been made formally to charge the person, but only as the past record of issuing states in this regard, as because their presence is required in order to do so. In evidenced by other documented cases involving the some countries, such as Sweden, it is a basic defence same country. right for the person to be charged in person. Thus the To conclude, the Government’s proposed amendment English and Irish courts have accepted that an EAW of Section 11 of the Extradition Act by referring to a issued in such cases can nevertheless be considered to “prosecution decision” in Clause 137(1) has moved be for prosecution even though it may include a decision the game on, and I am grateful for that. But for the to charge taken in the future. However, I repeat that reasons explained, I do not think it goes far enough. one of the dangers of the EAW system is that people In this very critical area, the decision to try must may be extradited too early in the process, when the surely be the gold standard and these amendments will case is not trial-ready, resulting in prolonged pre-trial ensure this. I beg to move. detention and uncertainty. I have already mentioned Andrew Symeou. Equally, Lord Faulks: My Lords, I will add just a few comments Michael Turner was extradited to Hungary in November to the excellent and clear introduction of these 2009 and was held in a high-security prison for four amendments by my noble friend Lord Hodgson. He months before being allowed to return home. He then stressed the importance of the matter being trial-ready had to bear the cost of repeated trips to Hungary before extradition takes place, and quite rightly drew a while the case was investigated further. He was finally distinction between the adversarial system, which prevails tried in October 2012, three years later. here, and systems elsewhere of a more inquisitorial nature. The issuing authority might legitimately insist that Of course, if somebody is awaiting trial here, the the person be present in order to be charged but I am question of bail becomes highly relevant before a judge. concerned that this might simply begin a protracted Indeed, a judge will be able to exercise some pressure process between charge and trial. In these circumstances, on prosecuting authorities to get on with it, in order to the use of a temporary transfer under proposed new ensure that somebody is not kept in custody for too long. Section 21B would be more appropriate, enabling the That becomes impossible once somebody has been person to attend and be charged and then return to extradited. The matter is then in the control of the UK while the case is readied for trial. Equally, if the local court, and there may be just the sort of delay law of the issuing state allows the remote attendance described by my noble friend in the case of Symeou; of a suspect using video technology, and this does not not only was he in Greece for a very long time but risk prejudicing the suspect by reason of poor quality when he was granted bail it was so-called local bail, or lack of recording, this option should be used. These which is not the same as being granted bail in your amendments allow the judge to refuse extradition own country, because of all the compromises that have where the issuing state unreasonably refuses to consent to be made in terms of work and family life. to use either method. As my noble friend acknowledged, the Government Amendment 72 requires the judge to consider external have responded to the Baker review but there is still evidence when determining whether there are “reasonable anxiety, as he has so skilfully pointed out. grounds” to believe that no decision has been taken to charge or try the person wanted on an accusation 6.45 pm EAW.Section 2(3) of the 2003 Act already requires the Part 1 warrant to contain the statement that the person Lord Taylor of Holbeach: My Lords, I am grateful is accused of the offence, and it is possible to raise the to my noble friend Lord Hodgson for giving us a issue of whether the EAW has been issued as an aid to chance to debate these issues. He has tabled a number 833 Anti-social Behaviour Bill[11 DECEMBER 2013] Anti-social Behaviour Bill 834 of amendments—some in this group and some to Lord Hodgson of Astley Abbotts: I am grateful to follow—and it was good that he was able to put the my noble friend for that full and very considered different groups in context of the overall value of the response. We are, of course, going around the track for European arrest warrant. The Government attach great the first time today and I have some difficulty value to this facility but are seeking to improve its understanding the conflation of prosecution charge operation by provisions in the Bill. and try and the interpretation of Clause 137 in which I think he said—I hope I have quoted him right—that As the Committee will be aware, the Home Secretary the judge can consider any external factor. Certainly announced in July that she would introduce legislation the advice I have received is that that is far from the to reform the operation of the European arrest warrant case, that the judge’s hands remain very carefully in the UK and increase the protections offered to circumscribed and tied and that the judge would not those wanted for extradition, particularly British citizens. have the width and breadth of discretion that my My noble friend has drawn attention to circumstances noble friend’s remarks suggested. It would be helpful in which the system did not operate as we would have if one could read in some detail what he had to say, as wished. His amendments would revise the resulting it is obviously highly complicated and technical, and provisions in the Bill. then see whether expert external advice believes that Clause 137 will require the UK courts to bar surrender the extraordinarily plausible answer he gave actually of the requested person where the issuing state has not holds up when we come to discuss it further. I beg taken both a decision to charge and a decision to try leave to withdraw. the person, except where the sole reason that such decisions have not been taken is that the person’s Amendment 65 withdrawn. presence in the country is required in order for those decisions to be taken. This will have the same effect as Amendments 66 to 75 not moved. that intended by my noble friend’s Amendments 65 to 67, 69 and 70 and 73 to 75; that is, a person will not be Clause 137 agreed. surrendered before the issuing state is ready to try the person. However, the clause has the added benefit of requiring the issuing state to prove that both a decision Clause 138: Proportionality to charge and a decision to try the person have been made, if the judge has any doubt that either—or Amendment 76 both—of those decisions has been taken. This provides greater protection for the requested person. Moved by Lord Hodgson of Astley Abbotts I can also reassure noble Lords that when deciding 76: Clause 138, page 105, line 23, leave out from “proportionality” to end of line 24 whether there are reasonable grounds for believing that the issuing state has not taken these decisions, the judge can consider any factors or external evidence Lord Hodgson of Astley Abbotts: My Lords, I will that could inform his or her decision. We do not speak also to Amendment 78. These amendments believe it is necessary to set this out in explicit terms, expand the issues a judge can consider in testing the as Amendment 72 would. proportionality of a European arrest warrant. Amendment 76 deletes the words, Finally, Amendments 68 and 71 seek to add a “but the judge must not take any other matters into account”. further restriction, so that extradition could not occur where the person’s presence was required in the issuing Amendment 78 extends judicial discretion as regards state for the required decisions to be made, if that could proportionality by a list of factors, including the cost have been achieved by temporary transfer or video- of extradition, the consequences of extradition for the conferencing. I understand my noble friend’s concern suspect and the public interest aspect. about the need for safeguards. However, I do not Under the Bill, the judge must have regard to the believe that this additional restriction is necessary. As specified matters relating to proportionality so far as I have explained, Clause 137 already ensures that he or she thinks it appropriate to do so, but must not extradition cannot occur in the early stages of an take other matters into account. Thus, the judge is investigation when the issuing state is nowhere near a limited to the three specified matters but has discretion decision to try. to ignore them. As a starting point, I would like the Government to justify why a judge should be able to In addition, if the judge is satisfied that the sole ignore factors that will always be germane to the issue reason that a decision to charge and a decision to try of proportionality. If an offence is serious, extradition have not been taken is the fact that the person is absent is more likely to be proportionate but that does not from the issuing state, there is no reason why the mean that the proportionality test has no place in person should not be extradited so that those decisions serious crimes. Amendment 76 therefore removes the can be taken and the case proceed to trial. In these discretion to ignore relevant factors. circumstances, requiring temporary transfer simply to charge does not seem to us to achieve anything in Under the proposed test, the judge can take into terms of safeguards and seems unnecessary. account just three factors but it is unclear how they are supposed to relate to each other. In any case, the Having heard these explanations and assurances current list of specified matters does not allow a useful and the explanation of how Clause 137 is designed to proportionality analysis. As drafted, the judge would meet my noble friend’s concerns, I hope he will be able be able to take into account the seriousness of the to withdraw his amendment. offence and the anticipated sentence, but since regard 835 Anti-social Behaviour Bill[LORDS] Anti-social Behaviour Bill 836

[LORD HODGSON OF ASTLEY ABBOTTS] analyses—one under the statutory test, excluding anything cannot be had to any other matter, the judge cannot to do with family life, and another under Article 8 balance these against the relevant considerations. For of the ECHR, potentially resulting in confusion and example, it is difficult to see how the judge can decide complication. Unifying the two tests, as would be achieved whether a less serious offence would make extradition by these amendments, would, if anything, simplifying disproportionate if the judge cannot also take into proceedings. I beg to move. account the implication of extradition in terms of the human impact or, indeed, the costs for the UK taxpayer. Lord Faulks: My Lords, Clause 138, “Proportionality”, The financial costs of extradition are high. The will not be an easy one for a judge to interpret, as my Government estimate that the execution of each EAW noble friend has outlined. The question of proportionality costs on average £20,000. In addition, the human impact under the Human Rights Act 1998 is one matter and of extradition can extremely severe. Recent cases under then there is the statutory proportionality, which Article 8 of the ECHR have shown that the extradition apparently is to be restricted to certain specific matters of single parents can drastically disrupt the development mentioned in subsections (2) and (3) of the new of their children. There was the judgment of Lady Section 21A that Clause 138 inserts into the Extradition Hale in HH v Deputy Prosecutor of the Italian Republic Act 2003. I respectfully ask the Minister to explain in 2012. why it is so necessary to distinguish between the two types of proportionality.Proportionality is a fundamental Recognising the need for proportionality checks on principle in EU law and, in particular, under the the operation of the EAW, the European Commission Human Rights Act. I suggest there is scope for confusion recognised that the issue was with, and therefore possible litigation if a judge misdirects “very minor offences which do not justify the measures and himself or herself in applying proportionality in one cooperation which execution of an EAW involves”, sense and not in another. and that there is a, “disproportionate effect on the liberty and freedom of requested 7pm persons”, Lord Taylor of Holbeach: My Lords, as my noble when the EAW is used in such cases. friend Lord Faulks has just said, Clause 138 is dedicated The point of a proportionality test should be to to addressing this issue and bringing the fundamental determine whether, on a case-by-case basis, the human concept of proportionality into extradition matters. and material costs are justified. Indeed, the Council of Much of what my noble friend Lord Hodgson of the European Union’s handbook on how to issue an Astley Abbots proposes has already been included EAW is 125 pages long and explains that, within the Extradition Act 2003, as it will be amended by the Bill. “considering the severe consequences of the execution of an EAW with regard to restrictions on physical freedom and the free It is important to recognise that the judge will movement of the requested person, the competent authorities consider proportionality in addition to the existing should, before deciding to issue a warrant consider proportionality bars to extradition, such as the passage of time and by assessing a number of important factors. In particular these human rights considerations, including any impact on will include an assessment of the seriousness of the offence, the family and private life. Consequently, new paragraphs (d) possibility of the suspect being detained, and the likely penalty imposed if the person sought is found guilty of the alleged offence”. and (e) as provided for in Amendment 78, which seek to merge these existing considerations into the The Bill excludes a balancing exercise that takes into proportionality bar, are unnecessary and would have account all these relevant factors. little practical impact. These amendments therefore provide the judge with Turning to the proposed new paragraphs (f) and sufficient discretion to consider these key factors and (g), which relate to the cost of proceedings in the UK others, including the passage of time, since prolonged and the duration and cost of proceedings in the issuing delays in prosecuting an offence and issuing an EAW state, I do not believe that those considerations are may provide evidence of its very low level of seriousness, relevant. The proportionality bar is designed to provide and the public interest in extradition, since this will additional protection to those whose extradition is vary in line with the seriousness of the offence. Other sought. It is appropriate that the matters concerned factors might include, for instance, the person’s conduct, should relate to the alleged crime and the potential in particular, whether they absconded in order to impact on the person concerned. Of course, costs are evade prosecution or left the issuing state unaware an issue for us all, and that is why the totality of our that they were being pursued. proposals is designed to improve the workings of the I recognise that this will call for a case-by-case test Extradition Act, including reducing unnecessary delays. and a fact-sensitive assessment. However, this need However, costs to the UK arising from the extradition not affect the length or complexity of EAW proceedings. process should not mean a denial of justice where it is An issue raised in relation to human impact would in right that a person is extradited. On new paragraph (g), any event have to be considered under Article 8 of the the costs and the duration of proceedings in the issuing ECHR. Under the operation envisaged by these state are a matter for the issuing state. amendments, the factors considered under Article 8 of New paragraph (h) would require a consideration the ECHR will be considered as part of the statutory of the public interest. That is implicit in any consideration proportionality test but alongside the cost of extradition of extradition by the courts, which look at a range of to the United Kingdom and having greater regard to factors alongside the proportionality bar. Taken together, the seriousness of the extradition offence. Indeed, the statutory bars to extradition provide a broad public under the Government’s proposal, it can be argued interest test, so it is not necessary to include a separate that there will often have to be two separate proportionality test here in the Bill. 837 Anti-social Behaviour Bill[11 DECEMBER 2013] Anti-social Behaviour Bill 838

Finally, new paragraph (i), which refers to other been said, take expert advice on the technical matters matters that the judge believes relevant, is too open-ended which we are discussing this evening and decide whether and leaves too many issues that could be considered. It to take the matter further. In the mean time, I beg could lead to duplication and potential delay as a leave to withdraw the amendment. result of proportionality considerations overlapping with other considerations. My noble friend Lord Faulks Amendment 76 withdrawn. talked about the complexity of these issues and the opportunity that he believed the provisions give for judicial consideration, deliberation and challenges. I Amendment 77 think that the proposals in the amendment would Moved by Lord Hodgson of Astley Abbotts complicate the matter further. I must emphasise that 77: Clause 138, page 105, line 30, leave out “possibility of the the proportionality bar is one among a number which relevant foreign authorities taking” and insert “availability, to the must be considered already, not least whether extradition relevant foreign authorities, of” would be compatible with the requested person’s human rights. Let me assure my noble friend that, in addition to Lord Hodgson of Astley Abbotts: My Lords, in moving the provisions in Clause 138, we will also take a more Amendment 77, I shall also speak to Amendments 79, pragmatic approach to our administrative processes 80, 81 and 87. This set of amendments keeps us in the when an EAW is received. This will ensure that the area we have just been talking about: one of the three most trivial requests are identified and, where appropriate, specified matters. The amendments emphasise the dealt with administratively before even getting to the importance of less coercive, less disruptive measures courts. The aim will be to work practically with other than a full European arrest warrant. Where a state member states to identify alternative solutions for issuing an EAW refuses to use them, the judge could trivial requests. take that refusal into account before granting an EAW. My noble friend Lord Faulks asked: why not merge New subsection (3)(c), which sets out the third of proportionality and human rights? The proportionality the three matters we have just been discussing, currently bar deals specifically with the proportionality of reads, extradition as a way to deal with the conduct alleged. “the possibility of the relevant foreign authorities taking measures Proportionality is indeed a factor when considering that would be less coercive”. interferences with various rights under the ECHR, but Amendment 77 replaces “possibility of”—a pretty low it is considered when examining the specific rights one test, in my view—with “availability of”. Amendments 80 at a time. Our bar adds to that, but deals with the and 81 are essentially consequential. wider issue of human rights within the EAW. The assumption underlying the provision relating I hope that both my noble friends are happy with to less coercive measures is that the severely restrictive the reassurances that I have given them and that my measure of extradition, involving deprivation of liberty noble friend Lord Hodgson of Astley Abbots will be and the physical transport of a person away from content to withdraw his amendment. home and family, should be used only as a last resort. The issuing state should therefore use that mechanism Lord Hodgson of Astley Abbotts: I am grateful to only when other, less restrictive measures are unavailable. my noble friend. He rightly chided me about the list of If other such measures are available—for instance, matters in Amendment 78 and the wide-ranging nature because of the existence of mutual legal assistance of my proposed new paragraph (i), which would insert mechanisms or, once it is negotiated, the European the text, investigation order—extradition should be refused if “any other matter which the judge considers relevant”. they have not been used. The reference to the possibility Although I entirely accept that, I do not understand of using such alternative measures may result in an why three matters are chosen in subsection (3) and that issuing state avoiding their use due to a lack of resources a judge must not take any other matters into account. and/or bureaucratic difficulties in liaison between the That seems to me to be erring on the other side of the competent authorities of the issuing state and the argument. I hope that he will forgive me if I say that, judicial authority that issued the EAW. when I hear Ministers say, “We should be pragmatic I argue that, although the EAW system provides for about this”, it does not reassure me, because in this extradition between judicial authorities, the physical area, where we are dealing with people’s liberty and transfer of a person under an EAW is still a process livelihoods, pragmatism can go awry. between two EU member states which are, as a whole, bound to observe the principle of proportionality. All Lord Taylor of Holbeach: I understand the complexity their authorities, such as ministries of justice or the of the issues that my noble friend is attempting to interior—where these are responsible for mutual legal address in the amendments. If he feels it helpful for me assistance requests—should, therefore, be jointly expected to write a fuller explanation than I am able to give the to search for alternative solutions before choosing the Committee today, I would be very happy to do so. It heavy-handed option of extradition. Accordingly, if may be easier if I do that; I hope that my noble friend an alternative is available, under bilateral or multilateral will accept that. arrangements between member states, this should be used before the EAW. Lord Hodgson of Astley Abbotts: Of course I would Amendment 79 would ensure that, if there are be delighted to receive a letter from my noble friend. alternative mechanisms available to the issuing state, That would also enable me to reflect fully on what has its failure to use them will always result in the refusal 839 Anti-social Behaviour Bill[LORDS] Anti-social Behaviour Bill 840

[LORD HODGSON OF ASTLEY ABBOTTS] transfer, as envisaged by Clause 140, but the issuing of the EAW, irrespective of the gravity of the offence state had refused that request unreasonably. This would or any other matter. The inclusion of the less coercive mean that the judge would have to bar extradition on measures test appears to rest on the assumption that proportionality grounds. This would require our courts the step of issuing an EAW—which involves deprivation to make an assessment of the rationale of a decision of liberty and serious human impact—should be taken made by the authorities in another member state. Given as a last resort. The responsibility is on the issuing this, we do not think it appropriate automatically to state to use less coercive measures if these are available. link a decision not to agree to a temporary transfer with In the handbook on how to issue an EAW, to which I the consideration of proportionality.The EAWframework referred, the section on proportionality encourages decision is clear that temporary transfer must be agreed the authority considering an EAW to use alternatives, by mutual consent, and it is therefore open to the issuing including mutual legal assistance, videoconferencing state to refuse a request, including the UK where we or a summons. The logic that less restrictive alternatives are seeking someone’s extradition to the UK. should be used before issuing an EAW applies regardless of the seriousness of the allegation in question. The 7.15 pm amendment therefore ensures that extradition is always I turn to the government Amendment 81A in this considered disproportionate if other measures are group. This seeks to build on the proportionality bar available. operated by the courts by ensuring that robust, pre-court, The case of Andrew Symeou demonstrates the administrative procedures are also in place. Amendment need for it to be made clear that alternatives should be 81A amends Section 2 to stipulate that the National used in preference to the EAW, irrespective of the Crime Agency must not issue a certificate if it is clear offence at issue. The Greek police and prosecution to the NCA that a judge would be required to order authorities could have made use of mutual legal assistance; the person’s discharge on the basis that extradition for instance by asking UK authorities to obtain evidence would be disproportionate. To facilitate this, the from the witnesses who had allegedly incriminated amendment will enable the Lord Chief Justice of Andrew. These witnesses would have been able to England and Wales, with the agreement of the Lord explain that they had been subject to police brutality Justice General of Scotland and the Lord Chief Justice and did not stand by their earlier evidence, which had of Northern Ireland, to issue guidance in relation to been taken under pressure and without the assistance the proportionality bar to the NCA, which it must of an interpreter. Instead, the Greek authorities opted apply in deciding whether to issue a certificate under to have an EAW issued, requiring Andrew’s extradition Section 2 of the Extradition Act 2003. The content of to Greece to face trial for allegations which might have any such guidance will, as noble Lords will understand, been found to be without basis much earlier if MLA be a matter for the judiciary. had been used. The English court should have been I welcome the broad support for the principle of a able to refuse Andrew’s extradition on the ground that proportionality bar to extradition. I recognise that my alternative measures were available. I beg to move. noble friend takes a slightly different view of how the proportionality bar should be constructed. However, I Lord Taylor of Holbeach: My Lords, as my noble hope that he will accept that the provisions in the Bill, friend explained, his amendments in this group seek to augmented by Amendment 81A, achieve much of widen yet further the proportionality bar to extradition what he is seeking and that he will understand our in Part 1 cases. As I have already indicated, Clause 138 reasons for not wishing to deviate from this approach. will allow the UK courts to deal with the long-standing I ask my noble friend to withdraw his amendments issue of proportionality, which, as I have already said, and support government Amendment 81A. is a fundamental principle of EU law. Lord Hodgson of Astley Abbotts: My Lords, I support Amendments 77, 79, 80 and 81 would require a my noble friend’s amendment. The point at issue is the judge to consider whether the requesting state has less extent to which we are determined to make the physical coercive measures available to it. If so, the judge must transfer of somebody the last resort. How easy is it for bar extradition on proportionality grounds. However, a state that cannot be bothered to take somebody, on even where such measures may exist, they may not be an EAW, without taking all the measures necessary to appropriate in each case, depending on the nature ensure that the person’s life is interrupted as little as of the crime and other factors such as relevant previous possible? I am not convinced that my noble friend has criminal history. It would not be right to require a judge the balance right, but we need to read carefully the to bar extradition wherever less coercive measures are detail of his remarks. In the mean time, I beg leave to available. I therefore prefer the existing subsection (3)(c) withdraw. of the new section inserted by Clause 138—to which my noble friend drew attention—which addresses the Amendment 77 withdrawn. issue more attractively than the choice of words proposed in the amendment. That said, the existence of alternatives Amendments 78 to 81 not moved. is clearly a relevant factor, and that is why the clause specifies that this is one of the factors that the judge must take into account when considering proportionality. Amendment 81A Amendment 87 to Clause 140 is consequential on Moved by Lord Taylor of Holbeach the amendments to Clause 138. It would require a 81A: Clause 138, page 106, line 5, at end insert— judge to conclude that less coercive measures were “( ) In section 2 of that Act (Part 1 warrant and certificate), available if a person had made a request for temporary after subsection (7) there is inserted— 841 Anti-social Behaviour Bill[11 DECEMBER 2013] Anti-social Behaviour Bill 842

“(7A) But in the case of a Part 1 warrant containing the Council of the European Union made on 13 June 2002 on the statement referred to in subsection (3), the designated authority European arrest warrant and the surrender procedures between must not issue a certificate under this section if it is clear to the Member States (2002/584/JHA) (which provides that that decision designated authority that a judge proceeding under section 21A shall not have the effect of modifying the obligation to respect would be required to order the person’s discharge on the basis fundamental rights and fundamental legal principles as enshrined that extradition would be disproportionate. in Article 6 of the Treaty on European Union).” In deciding that question, the designated authority must apply any general guidance issued for the purposes of this Lord Hodgson of Astley Abbotts: My Lords, I now subsection. seek to move Amendment 82 and will speak to (7B) Any guidance under subsection (7A) may be revised, Amendment 93. The background to these amendments withdrawn or replaced. is the existence of two different types of European (7C) The function of issuing guidance under subsection (7A), arrest warrant: a prosecution warrant where a person or of revising, withdrawing or replacing any such guidance, is exercisable by the Lord Chief Justice of England and Wales with is to be prosecuted for a crime, and a conviction the concurrence of— warrant where a person has been convicted and has (a) the Lord Justice General of Scotland, and fled to another country, knowingly or unknowingly. As drafted, the Bill provides for a proportionality (b) the Lord Chief Justice of Northern Ireland.”” check for prosecution warrants but not for conviction Amendment 81A agreed. warrants. Amendment 82 seeks to remedy this by inserting the new clause shown. The amendment creates Clause 138, as amended, agreed. a proportionality check for EAWs to parallel the existing human rights bar in Section 21 which will, under the Bill, be relevant only to prosecution EAWs. Amendment 82 Fair Trials sees many cases where suspended prison Moved by Lord Hodgson of Astley Abbotts sentences imposed in respect of minor offences have 82: After Clause 138, insert the following new Clause— been reactivated, several years after the person left the “Person unlawfully at large: human rights and proportionality category 1 territory, with an EAW then being issued (1) For section 21 of the Extradition Act 2003 there is substituted— on that basis. This leads to the drastic measure of “21 Person unlawfully at large: human rights proportionality extradition being used inappropriately in respect of (1) If the judge is required to proceed under this section (by minor offences. There is the case of Natalia Gorczowska, virtue of section 20), the judge must decide both of the following who was convicted of possession of 4 grams of questions in respect of the extradition of the person (“D”)— amphetamines and given a 10-month suspended sentence. (a) whether the extradition would be compatible with the She left to begin a new life; several years later, with no Convention rights within the meaning of the Human apparent reason for the delay, the sentence was reactivated Rights Act 1998; and and, still later, an EAW was issued, leading to significant (b) whether the extradition would be disproportionate. expense and very nearly to a drastic impact upon her (2) In deciding whether the extradition would be disproportionate, young son’s life. The Committee might like to note the judge must take into account the specified matters relating to that, had the same conduct been the subject of a proportionality. prosecution EAW, it would probably have fallen to be (3) These are the specified matters relating to proportionality— considered as one of minor gravity and unlikely to (a) the seriousness of the conduct for which the requested attract a lengthy prison sentence in application of the person was convicted of the extradition offence; specified matters relating to proportionality to be (b) whether the sentence which the person received in respect considered before granting a prosecution EAW but of the extradition offence was initially suspended; not in the case of considering a conviction warrant. (c) the conduct of the requested person; This rather lengthy amendment to Section 21 allows (d) the passage of time since the person became unlawfully a proportionality analysis, including a broad range of at large; and factors tailored to conviction EAWs. Applying the (e) any other matter which the judge considers to be proposed test, the judge would be able to take into relevant. account the person’s conduct and other circumstances (4) The judge must order D’s discharge if the judge makes one when addressing proportionality—for instance, whether or both of these decisions— the person deliberately evaded onerous community (a) that the extradition would not be compatible with the obligations by leaving the country, or whether the Convention rights; sentence was reactivated systematically, long after the (b) that the extradition would be disproportionate. person left the country and without his or her knowledge. (5) The judge must order D to be extradited to the category 1 Amendment 93 provides discretion to refuse a territory in which the warrant was issued if the judge makes both of these decisions— conviction warrant where the subject is a British national and will serve his or her sentence in a UK prison. The (a) that the extradition would be compatible with the Convention Rights; proposed amendment would allow the judge at the extradition hearing to refuse to surrender a person (b) that the extradition would not be disproportionate. under a conviction EAW if that person is a British (6) If the judge makes an order under subsection (5), he must resident or national, and if it is possible for them to remand the person in custody or on bail to wait for extradition to the category 1 territory. serve their sentence in the UK. It is worded in similar (7) If the person is remanded in custody, the appropriate judge terms to Section 3(1) of the Repatriation of Prisoners may later grant bail.” Act 1984, which also provides for the issue of a (2) In deciding any question whether section 21 of the Extradition warrant to authorise a person’s detention to serve or Act 2003 is compatible with European Union law, regard must be complete in the UK a sentence imposed by a foreign had, in particular, to Article 1(3) of the framework decision of the court. 843 Anti-social Behaviour Bill[LORDS] Anti-social Behaviour Bill 844

[LORD HODGSON OF ASTLEY ABBOTTS] there is no recourse and the person has to be extradited Currently, UK courts have no discretion to refuse in any event. As the Home Secretary said in her to extradite a British national or resident to serve a announcement, the proposed change, sentence in another country on the basis that it is more “could have prevented the extraditions of Michael Binnington appropriate that he or she serves that sentence in the and Luke Atkinson”, UK. This issue has been highlighted in a number of UK nationals who, Fair Trials cases. Individuals have been extradited “were sent to Cyprus only to be returned to the UK six months from the UK following conviction in another jurisdiction later”.—[Official Report, Commons, 9/7/13; col. 179.] yet, following surrender, have been transferred back to to serve the rest of their sentences. However, this the United Kingdom after the lengthy and bureaucratic would have been dependent on the Cypriot authorities prisoner transfer process. This is a waste of time and co-operating. Had Cyprus declined to use the prisoner money. UK courts should be given the option of transfer arrangements, the judge would not have had refusing extradition and allowing the defendant to any legal ground on which to refuse extradition. stay in the UK to serve the sentence. Other member It would make more sense for the Government to states including Belgium, Denmark, Italy and Poland put the policy on a statutory footing, providing proper have included this ground for refusal in their implementing protection for UK nationals and other residents whose legislation. social reintegration would be served by their serving In the announcement that my noble friend referred their sentences in the UK, in line with the relevant to earlier, the Home Secretary stated: provisions of the framework decision. These amendments “Where a UK national has been convicted and sentenced allow the judge to identify residents on a discretionary abroad, for example in their absence, and is now the subject of a basis; equally, Parliament could set reasonable statutory European arrest warrant, we will ask”, criteria. By example, I understand that Dutch law the issuing state’s, provides a five-year residence criterion, which has been considered lawful by the Court of Justice of the “permission, for the warrant to be withdrawn, and will use the prisoner transfer arrangements instead”.—[Official Report, Commons, European Union. I beg to move. 9/7/13; col. 179.] The flaw in this approach is the possibility that the Lord Ahmad of Wimbledon: My Lords, as my noble issuing state will simply not grant permission. friend has said, Amendment 82 seeks to introduce a proportionality bar for post-conviction cases. As my This amendment establishes a legal basis for the noble friend Lord Taylor has said, Clause 138 will judge to refuse extradition and order that the person allow the UK courts to deal with the long-standing serves the sentence in the UK. This possibility is issue of proportionality, which is of course a fundamental provided for in the EAW framework decision, in which principle of EU law in cases where a person is sought paragraph 6 of Article 4 provides that the executing for prosecution. Under the EAW framework decision, judicial authority may refuse to execute the EAW, an EAW can be issued in a post-conviction case only if “if the European arrest warrant has been issued for the purposes a sentence of at least four months has been imposed. of execution of a custodial sentence or detention order, where the We believe that this is a sufficient proportionality requested person is staying in, or is a national or a resident of safeguard in such cases. the executing Member State and that State undertakes to execute the sentence or detention order in accordance with its domestic Perhaps I might also reassure my noble friend that law”. the courts will still consider any representations made that the extradition would breach a person’s human Given this clear legal basis to provide the judge with rights—I believe that he mentioned this in his comments. discretion to refuse extradition and allow the person As now, a person would be extradited only if it was to serve the sentence in the UK, it is disappointing compatible with their rights under the European that the Government have opted for a slightly different Convention on Human Rights. This includes and applies policy, which is not placed on a statutory footing. to those people who are wanted to serve a sentence. The reference to UK nationals in the Home Secretary’s I turn to my noble friend’s Amendment 93. I draw announcement suggests that this reluctance may be your Lordships’ attention to the terms of the Statement because the Government wish the policy to benefit made in July by my right honourable friend the Home only UK nationals and not non-national residents. It Secretary—again, my noble friend referred to this—about follows clearly from the case law of the Court of the reform of the operation of the EAW to enhance Justice that, if the UK implemented paragraph 6 of the safeguards available for British citizens wanted for Article 4 of the EAW framework decision, which extradition. In that Statement, the Home Secretary set applies to both nationals and those staying in or out our commitment to make greater use of EU resident of the executing member state, it would not prisoner transfer arrangements. Where a UK national be able to reserve the benefit of this provision to UK has been convicted and sentenced abroad, for example nationals only. The drafting in the Bill appears to be a in their absence, and is now the subject of a European way of avoiding that constraint. However, the policy arrest warrant we will ask for permission for the warrant discriminates in favour of UK nationals and could be to be withdrawn and will use the prisoner transfer the subject of legal challenge, irrespective of whether arrangements instead. My noble friend acknowledged or not it is placed on a statutory footing. that. The policy adopted in lieu of implementation of Whereas this policy is limited to UK nationals, paragraph 6 of Article 4 of the EAW framework Amendment 93, put forward by my noble friend, decision is also an ineffective protection. If the issuing would broaden the scope of this safeguard beyond state refuses to use the prisoner transfer arrangements, UK nationals to those who are resident in the UK, 845 Anti-social Behaviour Bill[11 DECEMBER 2013] Anti-social Behaviour Bill 846 with the consequential impacts that would lead to, “a specific timeframe within which the person must be returned including those on the public purse. This Government’s to the United Kingdom”, policy is that foreign nationals should, wherever possible, and Amendment 84 would insert the words, serve their sentences in their home country. Therefore “within the period specified in the judge‘s order made under the scope in terms of broadening this beyond UK subsection (5)”. nationals is not something the Government subscribe They make a temporary transfer conditional on the to, based on the policy I have indicated. I hope, based issuing state providing assurance that the person will on the explanations I have given which underlie the be returned within the time allotted for the transfer. Government’s approach, that he will at this time seek The purpose of the temporary transfer system is to to withdraw his amendment. enable the issuing state to complete certain steps in the criminal case which we referred to earlier, such as 7.30 pm charging the person, and to allow the person to return home, without seeking their extradition. However, in Lord Hodgson of Astley Abbotts: My Lords, I have the Bill as drafted, there is no system for ensuring the just one question. As I understood my noble friend’s return of the person. remarks, he said that we now have an effective proportionality test for conviction warrants. My advice The concern is that a person brought before a judge is that we do not have that and that there is no chance or court in the issuing state in the course of a temporary of a proportionality test for that. transfer could rapidly find themselves processed in accordance with the usual course of procedure and While he is reflecting, my other point is on the detained pending trial. I believe that it is therefore question of how we are going to be able to deal with necessary to enable the judge to obtain specific assurances situations where countries do not collaborate. I appreciate that the person will be returned within a fixed period the point about non-national residents. I hope, however, by the judge. The amendment allows the judge to the Government will consider following up examples refuse to grant a temporary transfer in the absence of like that of the Dutch. They have established cases such assurances. where non-nationals would not qualify and therefore the issue which he very properly raises about the Amendments 85 and 86 permit the temporary transfer impact on public funds could be avoided. system to be used more than once. The Bill allows for the temporary transfer scheme to be used once only. I Could he just confirm that there is a proportionality entirely accept that there is a need to ensure that the test for conviction warrants, because as I understand it temporary transfer process is not used repeatedly to there is not? delay extradition, but I believe the current restriction to one use may be too blunt. If a new point comes to Lord Ahmad of Wimbledon: For clarification, I light later in the proceedings suggesting that further repeat that I said that under the EAW framework, an progress could be made by the requested person attending EAW can only be issued in a post-conviction case if a again, then, provided it is not an abuse of the system, sentence of at least four months has been imposed. We the procedure should be available again. It must also believe that is the sufficient proportionality safeguard be unfair to prevent a requested person using a temporary in such cases. transfer just because they have previously agreed to a request, perhaps by the requesting state. There is an issue here of equality of arms. I beg to move. Lord Hodgson of Astley Abbotts: I will not try to absorb all that now; I will read about it in Hansard.In the mean time, I seek to withdraw the amendment. Lord Ahmad of Wimbledon: My Lords, the provisions in Clause 140 will allow a person to speak with the Amendment 82 withdrawn. authorities in the issuing state before any extradition takes place. The clause allows for the person’s temporary Clause 139 agreed. transfer to the issuing state and for the authorities in that state to speak with the person while he or she remains in the UK, for example, via videoconferencing. Clause 140: Request for temporary transfer etc I understand my noble friend’s concerns that there should be safeguards, but I believe that there are Amendment 83 sufficient safeguards already in place. Both parties must consent to a temporary transfer—a Moved by Lord Hodgson of Astley Abbotts temporary transfer is only possible where the person 83: Clause 140, page 107, line 26, at end insert “(which must concerned agrees to it—and in doing so the issuing include a specific timeframe within which the person must be authority would be agreeing that the person would be returned to the United Kingdom)” returned to the UK. If the person was not returned, the issuing state would, of course, be in breach of that Lord Hodgson of Astley Abbotts: My Lords, in moving agreement and the clear terms of the European arrest Amendment 83, I shall speak also to Amendments 84 warrant framework decision. Neither are we aware of to 86. With these amendments I am seeking to address any cases among our EU partners where such agreements some of the weaknesses of the temporary transfer have been disregarded. system. Amendments 83 and 84 seek to ensure that Amendments 85 and 86 relate to the circumstances temporary transfers remain temporary. Amendment 83 in which a person may make a request for temporary would insert in proposed new Section 21B the words, transfer or videoconferencing. I am grateful to my 847 Anti-social Behaviour Bill[LORDS] Anti-social Behaviour Bill 848

[LORD AHMAD OF WIMBLEDON] Amendments 88 and 90 remove the requirement for noble friend for bringing to the Committee’s attention leave to appeal. We have spoken about how extradition the suggestion of allowing more than one request to has an enormous impact on suspects’ lives and those be permitted by a UK judge. of their families. Given the problems that, for example, In this particular case the Government are not Fair Trials regularly sees arising at first-instance extradition persuaded that there are sufficiently compelling arguments hearings, there are concerns about any measure that for making such a change. Allowing more than one limits access to appeal courts. The vast majority of those request could be used to delay the extradition process subject to extradition procedures—the “little platoons” to no good end. We would expect the cases to which my that I referred to in my first group of amendments noble friend refers to be very rare, and if such a —cannot afford a lawyer and are therefore represented situation did arise, the individual would still be able to by a duty solicitor. Many duty solicitors have little approach the requesting authorities via their legal experience of extradition cases and therefore may not representatives to provide further information to consider be familiar with the complex conditions of the 2003 in that case. Act and associated case law. This can be contrasted with the position of the requesting state, which is automatically Noble Lords are aware, as my noble friend Lord entitled to representation by a specialist unit of Crown Taylor has emphasised, of the importance we place on Prosecution Service lawyers. The complexity of extradition getting the balance right between ensuring efficient cases also means that there is often inadequate time at extradition processes and the protection of the requested a first-instance hearing for consideration of all the person. We believe that this potential for unnecessary delay relevant facts and issues. If suspects lose their automatic would outweigh any marginal benefits it may bring. right to appeal then, so long as these problems at first I therefore hope, with the explanation I have given, instance remain, there may be cases that result in that my noble friend will be minded to withdraw his people being wrongly extradited. amendment. These problems are demonstrated by the recent case of Krzysztof Juszczak, who in February 2013 Lord Hodgson of Astley Abbotts: I certainly will appealed successfully against extradition to Poland on withdraw it. I am convinced about Amendments 83 the basis that his removal from the UK would constitute and 84, but I cannot see how the ability to get a second a disproportionate interference with his family life temporary transfer is going to cost the Government under Article 8 of the ECHR. Although Mr Juszczak anything. In fact, it would greatly improve the efficacy is the primary carer for his severely disabled stepdaughter, in the administration of justice. If I were an EAW this was not raised by the duty solicitor before the subject, I would be very disappointed that because the district judge, an omission that was criticised as a requesting state had used the temporary transfer system failure of duty by Mr Justice Collins in his appeal up for its own purposes, I was not then able to use it judgment. As this evidence was obtained late in the for myself. It is a shame that we do not have even a process, there is a clear danger that under the proposed measure of equality of arms, always providing for the system Mr Juszczak would have been denied leave to fact that this should not be allowed to detain and appeal. block up the process. I beg leave to withdraw the amendment I recognise the problems raised in the Sir Scott Baker review in relation to the large number of unmeritorious appeals in the extradition process, and understand the Amendment 83 withdrawn. need for a process to ensure that appeals with merit are heard and disposed of more quickly. It must be in Amendments 84 to 87 not moved. the interests of both defendants and the state that the appeal process works to correct genuine errors rather Clause 140 agreed. than to delay the judicial process. However, it is surely equally true, and vital, that suspects are given a full opportunity to get a case together and identify any Clause 141: Appeals valid grounds on which their extradition should be refused, and any appeal process should reflect that. Amendment 88 The Sir Scott Baker review recommended that any Moved by Lord Hodgson of Astley Abbotts leave-to-appeal test should follow the standard required for judicial review—namely, that the defendant must 88: Clause 141, page 108, line 1, leave out paragraphs (a) show an arguable case in order to be allowed to and (b) appeal. The inclusion of any higher standard of proof would be inappropriate, not least because the requirement Lord Hodgson of Astley Abbotts: In moving to demonstrate an arguable case, as is the case in the Amendment 88, I shall speak also to Amendments 88A judicial review process, would suffice to weed out and Amendments 89, 90, 91 and 92. Clause 141 is those cases with no merit. Leave should be sought on about appeals against EAWs. I note that the noble paper, with written reasons provided for the outcome. Baroness, Lady Smith of Basildon, and the noble Defendants must then have a right of appeal against Lord, Lord Rosser, have tabled a stand part debate to refusal to a judge at an oral hearing. Only the judge at remove this clause. I look forward to hearing their first instance or the High Court judge who would hear remarks in support of that fairly blunt instrument. My the appeal should consider applications for leave to amendments, by contrast, offer my noble friend the appeal. If all these safeguards were guaranteed, a Minister a focused, surgical approach to this issue. requirement for leave to appeal might be acceptable. 849 Anti-social Behaviour Bill[11 DECEMBER 2013] Anti-social Behaviour Bill 850

There has been concern that the lack of information appeal against an order subject to obtaining the permission about how the Government’s proposed amendments of the High Court. Essentially, it appears that the will work in practice makes it far from clear that they Government are now proposing to remove a key safeguard satisfy the above recommendations of the Sir Scott for individuals at risk of extradition by repealing the Baker review, and people could still have their lives automatic right of appeal. We have real concerns ruined by an unjust extradition. As this concern remains about this change, which of course removes safeguards unanswered in the Bill as currently drafted, the argument for UK citizens. regarding appeal remains flawed and liable to create The automatic right of appeal is a key safeguard unfairness and inequality of arms. It has also been against the wrongful extradition of individuals, which pointed out that the Government’s proposed amendments allows them to raise new evidence that was not available did not affect the requesting state’s automatic right to at the time of the extradition hearing or to challenge appeal if an extradition request is refused, thus introducing the decision of the original judgment. It was surely a further inequality of arms into proceedings that are this automatic right of appeal that allowed Gary already heavily weighted in favour of requesting states, McKinnon and his family to challenge the initial which have far greater resources than individuals and decision to extradite him to the US, leading ultimately benefit from a strict “no questions asked” regime that to the decision not to extradite him at all. Without the gives courts very little power to refuse extradition. right of appeal, he might have been extradited without The Government have taken concerns in this regard any further consideration of the evidence, old or new, into account, with the introduction of a requirement showing that extradition posed a serious risk to his of leave to appeal against discharge at extradition right to life. Indeed, in the Statement that the Home hearing in Clause 141(2), but this amendment proposes Secretary made on 16 October 2012, she specifically that that requirement should also be omitted in line referred to this issue when she said: with the proposed approach to appeals against extradition “After careful consideration of all of the relevant material, I orders in Clause 141(1). have concluded that Mr McKinnon’s extradition would give rise Amendment 88A would extend the deadline for to such a high risk of him ending his life that a decision to bringing appeals against extradition from seven days extradite would be incompatible with Mr McKinnon’s human to 14. I reiterate my welcome for the introduction of rights”.—[Official Report, Commons, 16/10/12; col. 164.] flexibility in relation to appeal deadlines, but I remain Yet,subject to what the Minister may say, the Government concerned that the current drafting may be insufficient appear to be introducing changes to the Act that to address potential injustices, particularly when linked would mean that if a similar case occurred after this to the proposed removal of the automatic right to Bill had been passed, the Home Secretary would not appeal. Given the impact of extradition on individuals, be able to make the same decision. a standard period of seven days to appeal or seek leave is pretty short. This is often exacerbated by the need to Clause 141 amends Sections 26 and 108 of the 2003 obtain evidence from other jurisdictions and can raise Act to provide that an appeal will lie only with permission enormous challenges when a person decides to change from the High Court, and no indication is given in the their lawyer after the first-instance hearing. Bill of what criteria will be used to decide whether permission should be granted. I hope that the Minister will be able to indicate the reason for the Bill being so 7.45 pm vague over an issue—namely, the criteria—that could We have already discussed the introduction of the have significant human rights consequences. What in leave-to-appeal requirement of the person to comply fact do the Government expect the criteria to be, do with the appeal deadline, but it should also be taken they expect them to be evidence-based and will they be into account if the leave requirement is to be introduced. available for scrutiny? What impact do the Government If the proposal set out in paragraph 10.14 of the believe any likely criteria will have on the number of Baker review is followed, with leave to appeal being cases able to be appealed? sought and granted or refused on paper, the drafting Once an individual has been extradited, of course, needed to produce the leave application could become there is virtually nothing that can be done if new more onerous, complex and time-consuming than for evidence arises to show that that was not the appropriate the current notice. It is therefore proposed that the or fair decision and was contrary to the interests of timeframe flexibility introduced in the amendments to justice or their human rights. Does the Minister not Sections 26(5), 103(10) and 108(5), as amended in agree that, because of that, it is crucial that people accordance with paragraph 4.1 above, be retained but effectively have an automatic right to appeal against a that the permitted period in Section 26(4) should decision to be extradited, or at least some other means also be extended to 14 days. This would follow the of ensuring that justice is done, and that we do not end recommendations of the Baker review at paragraphs 11.75 up in a situation which, frankly, does our own extradition to 11.76. I beg to move. system no credit? I cannot vouch for this personally, but Liberty says Lord Rosser: My Lords, I will be brief with what that extradition experts are of the view that a large has been described as my blunt instrument on Clause 141. number of cases that have been successful on appeal I will not repeat the detailed arguments put by the noble probably would not have been granted leave under the Lord, Lord Hodgson of Astley Abbots. As he said, Bill. Removing the right of automatic appeal will Amendments 88 and 90 seek to preserve the automatic potentially have considerable human rights and legal right to appeal against an extradition order by deleting implications. If the Minister cannot offer some movement provisions in the clause that would make the ability to on this issue when he replies tonight, I hope that he 851 Anti-social Behaviour Bill[LORDS] Anti-social Behaviour Bill 852

[LORD ROSSER] been submitted outside the normal time period, if the will at least be able to explain why the Government person did everything reasonably possible to ensure appear to be taking such a major backwards step, that the notice was given as soon as it could be. having previously placed such emphasis on their concern That point brings me to the matters that my noble for Gary MacKinnon’s human rights. friend Lord Hodgson raised in relation to this in his Amendments 88A, 89, 91 and 92. My noble friend Lord Taylor of Holbeach: My Lords, as my noble proposes to amend Clause 141 to insert a requirement friend has explained, Clause 141 makes the right of for the courts to allow an appeal to be made out of appeal against a decision to order extradition subject time if it is in the interests of justice to do so. As I said, to the leave of the High Court. Similarly, it makes the Clause 141 allows the High Court to hear an out-of-time requesting state’s right of appeal against a decision to appeal where the person has done everything reasonably discharge a person from extradition proceedings subject possible to bring the appeal as soon as possible. Our to the leave of the High Court. Clause 141 also allows approach follows that of the Supreme Court, which the requested person to make an application for leave ruled last year that out-of-time appeals should only be to appeal out of time in certain circumstances. This considered exceptionally. We believe that this provision does not apply to the requesting state. gets the balance right: the timetable for an appeal is clear and there must be an onus on an appellant to The noble Lord, Lord Rosser, using his blunt meet the statutory requirements, as happens in the instrument, gives me the opportunity to broaden the vast majority of cases. debate beyond the immediate amendments and explain how this process will work and why the Government My noble friend is also proposing to extend the feel justified in introducing Clause 141. My noble time limit for appeals in Part 1 cases from seven days friend Lord Hodgson, in tabling his Amendments 88 to 14 days. As he has explained, this was one of the and 90, challenges us on why we are making these recommendations that Sir Scott Baker made in his changes. At present, a person has an automatic right review of our extradition arrangements. We have therefore of appeal against a decision to order his or her extradition, considered it very carefully in developing the provisions and the requesting state also has an automatic right of in the Bill. Our view is that extending the time limit in appeal against a decision not to order extradition—an this way would have no practical effect beyond increasing important factor to bear in mind. the likelihood for delay. As I said, we have introduced new protections where people are unable to submit As noble Lords are aware, the Government their appeals on time through no fault of their own. commissioned a review by Sir Scott Baker of the UK’s We believe that this new provision will address the extradition arrangements. One of the key findings of concerns raised by my noble friend, and indeed by Sir his review was that the success rate of appeals was Scott Baker, on this issue. extremely low: less than 13% in 2010. In other words, the court system is burdened by unmeritorious appeals, What safeguards will exist under these new provisions? a fact to which my noble friend Lord Hodgson referred, We do not believe that we are removing any existing which then delay hearings for all appellants and means safeguards. We need to get the balance right between that justice is deferred. Clause 141 addresses this problem ensuring proper protection for those subject to an by making appeals subject to permission from the extradition request while ensuring that people do not High Court. This filter applies to appeals against, for delay their proper surrender by burdening the courts example, a judge’s decision to order extradition to a with unmeritorious appeals. We believe that this approach Part 1 territory, that is, another member state; a judge’s gets these matters right. The court itself will decide the decision to send a case to the Secretary of State to issues and the relevance of any out-of-time considerations. consider extradition in Part 2 cases, that is, where the The changes set out in Clause 141 will allow the requesting country is not an EU member state; and to courts to focus their attention on the right appeals, a decision by the Secretary of State to order extradition removing the burden of unmeritorious appeals while in Part 2 cases. To provide parity, it also applies to ensuring that proper safeguards are in place for those appeals against decisions to discharge a person. subject to extradition. I commend the clause to the My noble friend Lord Hodgson asked what sort of Committee and I hope that my noble friend will be issues a court would consider in deciding whether to prepared to withdraw his amendment, and that the allow an application to be heard. This will be, as one noble Lord, Lord Rosser, will see the merit in the clause. would expect, a matter for the judge concerned. They will, of course, give full consideration to all the relevant Lord Hodgson of Astley Abbotts: I am grateful to factors raised by the appellant before reaching a decision. my noble friend for that fulsome reply. I am disappointed We do not think that they are appropriate to be set out that the Government have not seen fit to follow up the in legislation, as it is a matter for the court itself Scott Baker proposal for 14 days instead of seven to consider. I understand that noble Lords will have days, given the complexity of the appeal process, questions about what safeguards will be available. Let particularly when linked to the additional steps that me reassure noble Lords that this provision does not the Government are taking to introduce prohibitions prevent anyone from applying for permission to appeal. on and difficulties in getting an appeal process going Once an application has been made, the High Court in the first place. Obviously, however, this is not the will decide which cases proceed to a hearing, but each time to take the argument further. I look forward to application will be considered by a High Court judge. reading with care in Hansard tomorrow what the Furthermore, Clause 141 sets out that the High Court Minister has said. I beg leave to withdraw the amendment. must not refuse to entertain an application for leave to appeal by the requested person solely because it has Amendment 88 withdrawn. 853 Anti-social Behaviour Bill[11 DECEMBER 2013] Anti-social Behaviour Bill 854

Amendments 88A to 92 not moved. authorities decided to withdraw the EAW following a campaign, admitting that they had sought Edmond in Clause 141 agreed. error. He narrowly avoided being separated from his wife and children, including a newborn son, and spending Clause 142 agreed. months or years in an Italian prison awaiting a retrial. Amendment 93 not moved. This amendment is needed to give courts greater discretion to request further information where there are reasonable 8pm grounds to believe that the person sought under an EAW is the victim of mistaken or stolen identity. Amendment 94 Amendment 95 seeks to clarify the approach that a Moved by Lord Hodgson of Astley Abbotts judge should follow in relation to human rights and provide a stronger basis on which to refuse to execute 94: After Clause 142, insert the following new Clause— an EAW on human rights grounds. Many have argued “Request of further information where suspicion of mistaken that the underlying assumption of the EAWsystem—that identity other Part 1 territories can always be trusted to respect In section 7 of the Extradition Act 2003 (identity of person the fundamental rights of those extradited—rests on arrested), after subsection (4) there is inserted— shaky foundations. For instance, it has been reported “(4A) If the judge decides that question in the affirmative, he that in the years 2007 to 2012, Greece violated Article 6(1) must decide whether the person in respect of whom the warrant of the ECHR 93 times in criminal cases. was issued is the person who is alleged to have committed, or to have been convicted for, the offence on which the warrant is Garry Mann, giving evidence to the Home Affairs based. Committee, described his 2004 trial in Portugal as (4B) The judge must decide the question in subsection (4A) on follows, stating that, the balance of probabilities, but if he considers there is reasonable doubt as to that question, he may not decide it in the affirmative “the police … just told me it was some kind of public order unless he has first requested the issuing authority to provide offence … we went into court and there were 12 of us … we had further information within the time specified in the request (which one interpreter … she would try to say something and pass it must not be less than a reasonable time in all the circumstances) down the line of 12, but we did not understand what was going on and the issuing authority has provided him with the information at all … They asked me what I thought in broken English, but requested within that time. again the judge and the lawyer did not speak much English … I never knew the charge that I was facing until 30 minutes before I (4C) If the judge decides the question in subsection (4A) in the was convicted at 11.30 that night … They said there was no time negative, he must order the person’s discharge.”” to call any witnesses. I said I would like CCTV; no time to call CCTV”. Lord Hodgson of Astley Abbotts: My Lords, Amendment 94, which is concerned with mistaken An English court later called on to issue a football identity, and Amendment 95 would insert two new banning order against Garry refused, finding that the clauses into the Bill. Amendment 94 would enable the trial had not complied with Article 6 of the ECHR. judge at the extradition hearing—whether it is a The courts have, however, given very short shrift to prosecution or a conviction warrant—to request more arguments alleging that extradition would lead to a information where there is a real doubt as to whether violation of human rights. In accordance with the the person sought is actually the person suspected or concept of mutual trust, on which the operation of the convicted. This would be particularly valuable in cases EAW is based, the courts assume that the issuing state where there is a reasonable belief that the person will protect the extradited person against any unfairness sought has had his or her identity stolen or where and that past proceedings giving rise to convictions on there is a clear case of mistaken identity. In these days which EAWs are based were fair. A person must show of cybercrime, the former is an increasingly common that they are at risk of a “flagrant” breach of their fair occurrence. trial rights in order to resist extradition. The approach There are currently no grounds in domestic law on is difficult to sustain when there are ongoing systematic which to refuse extradition where there are serious deficiencies in a justice system, which are liable to doubts about whether the person sought is the person impact upon an extradited person. For instance, the who committed the crime or is suspected to have European Court of Human Rights recently found committed the crime. Such a situation has arisen in Italy in violation of Article 3 of the ECHR and several cases where the person subject to the EAW has applied its pilot judgment procedure, recognising that had their identity stolen by the real perpetrator or widespread overcrowding was leading to systematic where that perpetrator has identified someone else as infringements of Article 3. The concept of mutual the person who committed the offence. trust is difficult to defend in such circumstances. If an This is demonstrated by the case of Edmond Arapi, extradited person is going to be detained in the same who was tried and convicted in his absence in Italy and prison, it is plainly likely that their human rights will given a sentence of 16 years. He had no idea that he be infringed. was wanted for a crime or that the trial or subsequent The Government have taken the view that the EAW appeal had taken place until he was arrested at Gatwick framework decision implicitly allows refusal to execute Airport in 2009 on an EAW on his way back from a an EAW on human rights grounds, relying on recital family holiday. The British courts ordered that Edmond 12 and Article 1(3) of the framework decision, which be sent to serve the sentence in Italy, despite clear affirm that the latter shall not have the effect of proof that he was at work in the UK on the day of the modifying the obligation to respect fundamental rights alleged offence. On the day that the High Court was and fundamental legal principles, as recognised by due to hear his appeal against extradition, the Italian Article 6 of the Treaty on European Union and reflected 855 Anti-social Behaviour Bill[LORDS] Anti-social Behaviour Bill 856

[LORD HODGSON OF ASTLEY ABBOTTS] to human rights issues. We discussed this matter in earlier in the European Charter of Fundamental Rights. deliberations in Committee. In all cases, the judge However, the precise content of those fundamental must decide whether extradition would be compatible rights obligations is not clear. In her opinion on the with the convention rights and must discharge the person Radu case, Advocate-General Sharpston suggested if he or she decides that it would not be compatible. that, under the charter, the test was whether there was In his review of the UK’s extradition procedures, a “substantially well founded risk” of a violation Sir Scott Baker found that the human rights bar to which would, extradition did not need amending. The review found “fundamentally destroy the fairness of the trial”, that the bar did not permit injustice or oppression, a slightly different test from the ECHR flagrancy test. and the Government agree with that assessment. We However, for the time being, the precise requirements do not accept that a judge’s approach to human rights of fundamental rights are not defined in EU legislation. needs to be changed. Accordingly the member states enjoy some discretion In conclusion, I am very grateful to my noble friend to apply fundamental rights as they understand them, for giving the Committee this opportunity to consider provided that this does not compromise the unity and various aspects of Part 12 of the Bill. effectiveness of EU law. This amendment therefore falls within the permissible bounds of the EAWframework Lord Lamont of Lerwick (Con): Am I not right in decision. I beg to move. saying that the European Commission has been quite critical of some of the new entrants into the EU’s legal Lord Taylor of Holbeach: My Lords, the additional systems and has instanced poor training of judges and safeguards that my noble friend has proposed through problems of corruption? As long as the criticisms Amendment 94 seek to introduce matters of mistaken continue to be made, does not my noble friend’s identity. It is not something that we believe is necessary. amendment have a real point, or is the Minister saying Clearly, we do not want the wrong people to be that the human rights considerations that he has been extradited; the wider issues relating to identity were talking about would cover that instance? carefully considered during the review of the UK’s extradition arrangements. Sir Scott Baker did not find Lord Taylor of Holbeach: The European arrest any evidence that a person who was subjected to mistaken warrant provisions are indeed Europe-wide, so they identity had actually been surrendered to stand trial. cover a number of different jurisdictions. None the He concluded that there was no need to amend the less, proportionality and human rights considerations Act to require a judge to request further information are written throughout these particular parts of the concerning the requesting person’s identity. Nor did Bill. As I said, Sir Scott Baker investigated this. He felt the Metropolitan Police, the Crown Prosecution Service that the human rights bar to extradition did not or the Crown Office raise concerns about the issue. permit injustice, if it was believed to exist, or oppression, and the Government agree with that assessment. I I agree with expert opinion and I am not persuaded hope that I have satisfied my noble friend and that he that a change is needed here. My noble friend asked will accept that the Government are not operating this about the case of Mr Arapi—I will try to avoid talking mutual extradition facility which the European arrest about particular cases—but, as my noble friend will be warrant provides for in a way which is unreasonable to aware, Mr Arapi was not extradited and the Italian people who are subject to extradition requests. authorities admitted their error in making the request for him rather than another person of the same name. In his review, Sir Scott Baker found that no amendment Lord Hope of Craighead (CB): Perhaps I may assist was needed to the protections already afforded in the the Minister in replying to the question that has been Act with regard to identity as there are already sufficient raised. Recently, the Supreme Court had to consider a procedures in place to protect people who are sought case where an individual was being sought to be as a result of mistaken identity. extradited to Albania. The court was told that there was a high degree of corruption among the judges and The amendment raises the particular issue of a the extradition was stayed so that the degree of corruption judge being clear that the person who has been arrested could be investigated further. The matter is now in the and appears in court is the person who is alleged to hands of the Lord Advocate in Scotland. That is an have committed the crime. This goes to the heart of example of the kind of phenomenon to which the the trial in the issuing stage. It is not a matter for the noble Lord referred—where the standards in one of UK courts. The courts’ consideration of an extradition the new countries are not up to the standards that one request is not one of guilt or innocence but of whether might expect. However, I suggest that the courts are any of the statutory bars to extradition apply. very astute in ensuring that the human rights protection Turning to Amendment 95, my noble friend seeks in relation to a fair trial is preserved. That is a very to make changes to a judge’s consideration of human recent example which I think meets the point that the rights in EAW cases, including expanding the matters noble Lord, Lord Lawson, had in mind. to which the judge should have regard when considering whether extradition would breach a person’s human Lord Taylor of Holbeach: Not for the first time, I rights. am very grateful to the noble and learned Lord, Lord We believe that there are already sufficient safeguards Hope of Craighead, for his intervention in this matter. in the Extradition Act to allow a judge to bar extradition I should say that Albania is not a member of the on human rights grounds. The 2003 Act is drafted to European Union at this stage. However, the principle allow the courts to give the fullest possible consideration applies, as the noble and learned Lord said. Section 21 857 Anti-social Behaviour Bill[11 DECEMBER 2013] Anti-social Behaviour Bill 858 of the existing Act already requires the judge to be satisfied that extradition is compatible with the human Amendment 95ZB rights convention, and that includes the right to a fair trial. Therefore, that already exists in law. Moved by Lord Ahmad of Wimbledon In conclusion, I am grateful to my noble friend for 95ZB: After Clause 148, insert the following new Clause— giving the Committee an opportunity to consider various “Electronic transmission of European arrest warrant etc aspects of Part 12 of the Bill. On a number of the In section 204 of the Extradition Act 2003 (warrant issued issues he has raised, I think that we share the same by category 1 territory: transmission by electronic policy objectives, and in such cases where we have means), in subsection (5)— differences between us, they may well simply be a (a) for “subsection (1), a” there is substituted “subsection matter of drafting. Having had this important debate (1)— and in the light of my comments, I hope that my noble (a) a”; friend will agree to withdraw his amendment. If, on (b) at the end there is inserted— reading the record, he finds that there are still aspects “(b) information contained in the warrant is treated as being with which he is concerned, I hope that he will not received by the designated authority in a form in which it hesitate to raise them with me. is intelligible if the authority receives— 8.15 pm (i) a summary of that information in English, and (ii) the text of the warrant itself, Lord Hodgson of Astley Abbotts: Of course, I shall not hesitate at all. Again, I am extremely grateful to in a form in which it is legible.” my noble friend. He is quite right to remind me that Edmond Arapi was not extradited, although, in the Lord Ahmad of Wimbledon: My Lords, this group words of the Duke of Wellington, it was “a damn of government amendments to Part 12 and Schedule 9 close-run thing” in the sense that the appeal was heard deal with three distinct and largely technical issues. on the day that he was about to go. First, Amendment 95ZB, and the associated I acknowledge the points that my noble friend Amendment 98B to Schedule 9, make minor amendments made concerning the Scott Baker issues of identity to Section 204 of the Extradition Act 2003. That and human rights, although I think that identity is section makes provision for cases where the information going to become more and more important because of contained in a European arrest warrant is transmitted cybercrime and people assuming other identities. I to the United Kingdom electronically. think that that will come back for discussion. I am The amendments to Section 204 are needed to disappointed that we have not been able to find a way support the implementation of the second generation through that because, in my view, it will rise in importance Schengen information system, otherwise known as and relevance. SIS II. Under SIS II, the NCA will be required to My noble friend Lord Lamont asked the critical certify requests entered by other member states for, question: do we have sufficient mutual trust? The “arrest for surrender or extradition purposes”, noble and learned Lord, Lord Hope of Craighead, from the information received electronically under the said that we should have. The point, of course, is that SIS II process. This information will be an English unlike Albania, for which there would be a Part 2 language summary of the information contained within warrant, the process of a Part 1 warrant, which the the EAW, together with the original language version EAW would be, is a great deal swifter. Standing here of the EAW.Section 204 therefore requires amendment on my feet at this moment, I do not know whether the so that certification can take place on the basis of this court has more powers to make investigations in the English language summary, rather than a translation case of a Part 2 warrant, as would be provided by my of the full contents of the EAW. amendments, than it has in the case of a Part 1 warrant. That is something on which I cannot give an Amendments 95ZC and 95ZD relate to Clause 149. answer off the top of my head. However, I am grateful That clause amends the Prison Act 1952 to ensure to my noble friend because I think that he has put his that, in all cases where a person spends time in custody finger on it: is there enough mutual trust? in another member state awaiting extradition to the UK, that time is counted as time served towards the I am grateful to my noble friend and to the Committee UK sentence. As it stands, Clause 149 provides only for having let me rabbit on at some length about these for cases in England and Wales. Therefore, following issues. I beg leave to withdraw the amendment. discussions with the Scottish Government, we have Amendment 94 withdrawn. agreed that analogous provision for Scotland can be made through administrative means. However, with Amendment 95 not moved. the agreement of the Scottish Government, we are taking the opportunity to update relevant provisions Clauses 143 to 146 agreed. in Scots law in relation to cases where a person is extradited to the UK to be sentenced. Section 210 of Clause 147: Non-UK extradition: transit through the the Criminal Procedure (Scotland) Act 1995 makes United Kingdom provision for taking into account time spent in custody awaiting extradition to the UK in cases where a person Amendment 95ZA not moved. is extradited to be sentenced. It is out of date in that it refers to the Extradition Act 1989 which is no longer Clause 147 agreed. in force. Amendment 95ZC amends this provision to Clause 148 agreed. update it in respect of extradition. 859 Anti-social Behaviour Bill[LORDS] Anti-social Behaviour Bill 860

[LORD AHMAD OF WIMBLEDON] (1C) The date of commencement of the sentence is to be a In respect of Northern Ireland, Section 38 of the date the relevant number of days earlier than the date the sentence Prison Act (Northern Ireland) 1953 makes equivalent would have commenced had the person not spent time in custody provision to Section 49 of the Prison Act 1952 in cases awaiting extradition. where a person is sentenced before extradition to (1D) In subsection (1C), “the relevant number of days” means the number of days in the period specified under subsection (1B)(a).” the UK. Amendment 95ZD, and the consequential Amendment 98A to Schedule 9, ensures that time (4) After subsection (2) there is inserted— “(2A) In this section, “category 1 territory” means a territory spent in custody awaiting extradition to the UK from designated under the Extradition Act 2003 for the purposes of another member state is always credited. There is Part 1 of that Act.” currently no legislative provision in Northern Ireland (5) Subsection (3) is repealed.” for taking into account time spent in custody awaiting extradition to the UK from another member state where 95ZD: After Clause 149, insert the following new Clause— “Discount on sentence for time spent in custody awaiting a person is sentenced after extradition. Amendment 95ZD extradition: Northern Ireland also amends the relevant law in Northern Ireland to (1) In section 38 of the Prison Act (Northern Ireland) 1953 ensure that such credit is given. (arrest, etc, of persons unlawfully at large), for subsection (3) Amendments 104A, 104B and 104C to Clause 159 there is substituted— make consequential changes to the extent provisions “(3) The provisions of subsection (2) shall not apply to any arising from the two new clauses inserted by period during which any such person— Amendments 95ZC and 95ZD. These new provisions (a) is detained in pursuance of any other sentence of any will ensure that the UK law is fully in line with court in the United Kingdom in a prison or other Article 26 of the EAW framework decision. Finally, institution, or Amendment 99 implements one of the recommendations (b) is kept in custody in a category 1 territory before, and in the 12th report of the Delegated Powers and Regulatory only for the purpose of, being extradited to the United Reform Committee. That committee recommended Kingdom to serve the term of imprisonment or detention that the order-making power in new Section 189E of referred to in that subsection, the Extradition Act 2003 should be subject to the but shall apply in addition to any other provisions of this affirmative procedure. New Section 189E enables the Act imposing any punishment for an escape. Home Secretary to specify descriptions of persons, (3A) In subsection (3) “category 1 territory” means a territory designated under the Extradition Act 2003 for the purposes of other than constables, who may exercise powers of Part 1 of that Act.” detention, search and seizure in respect of people who (2) In section 26 of the Treatment of Offenders Act (Northern are in transit through the UK and being extradited Ireland) 1968 (duration of sentence), at the end of subsection from one foreign territory to another. Such a power (2A) there is inserted “; or might be used, for example, to designate immigration (c) any period during which he was in custody in a category 1 officers. The Government are content to accept the territory with a view to his being extradited to the United committee’s recommendation in this regard. I beg to Kingdom to be tried or sentenced for that offence (and move. not for any other reason). In paragraph (c) “category 1 territory” means a territory Amendment 95ZB agreed. designated under the Extradition Act 2003 for the purposes of Part 1 of that Act.”” Clause 149 agreed. Amendments 95ZC and 95ZD agreed. Amendments 95ZC and 95ZD Clause 150 agreed. Moved by Lord Taylor of Holbeach 95ZC: After Clause 149, insert the following new Clause— Amendment 95A “Discount on sentence for time spent in custody awaiting Moved by Lord Beecham extradition: Scotland 95A: Before Clause 155, insert the following new Clause— (1) Section 210 of the Criminal Procedure (Scotland) Act 1995 (consideration of time spent in custody) is amended as follows. “Discretion in ordering victim surcharge to offenders under the age of 18 (2) In subsection (1)— In section 161(A) of the Criminal Justice Act 2003 (court’s (a) in paragraph (a), after “United Kingdom” there is duty to order payment of surcharge), after subsection (4) inserted “otherwise than from a category 1 territory”; there is inserted— (b) in paragraph (c)(ii), for “for the purposes of this section” “(5) In the case of offenders under the age of 18, the ordering there is substituted “who was extradited to the United of payment of a victim surcharge may be at the discretion of the Kingdom otherwise than from a category 1 territory”. sentencing body.”” (3) After subsection (1) there is inserted— “(1A) Subsection (1B) applies where— Lord Beecham (Lab): My Lords, I rise to move the (a) a court is passing a sentence of imprisonment or amendment in the name of my noble friend Lord detention on a person for an offence, and Ponsonby, who cannot be in his place tonight. I shall (b) the person is an extradited prisoner who was extradited be uncharacteristically brief. My noble friend draws to the United Kingdom from a category 1 territory. the attention of the Committee, and indeed mine, to (1B) The court shall specify— an anomaly in the present situation on victim surcharge (a) the period of time spent in custody awaiting extradition, orders. The payment may be ordered to be made by and the parents of a young offender who are themselves (b) the date of commencement of the sentence in accordance the victims of a crime. That situation cannot possibly with subsection (1C). have been envisaged originally, but it appears to be the 861 Anti-social Behaviour Bill[11 DECEMBER 2013] Anti-social Behaviour Bill 862 case and there seems to be no court discretion to avoid would be able to pay it, again making responsibility imposing what many of your Lordships would feel is a for paying the surcharge the offender’s rather than ridiculous outcome. The noble Lord may not be able that of his or her parents. to accept the amendment tonight, but I hope that he We believe that it is right that all offenders, including will look at it, as it seems to be anomalous and ought those aged under 18, should take responsibility and to be corrected. make greater reparation towards the cost of victim support services as a result of their actions. It is therefore The Minister of State, Ministry of Justice (Lord McNally) appropriate that the surcharge should continue to be (LD): My Lords, let me confirm at once that the noble ordered when a court deals with an individual, whether Lord, Lord Beecham, has been uncharacteristically as an adult or a juvenile. I hope that I have been able to brief. I am sorry that the noble Lord, Lord Ponsonby, reassure the noble Lord on the points he raised and was unable to move his amendment because I know of that he will be content to withdraw his amendment. his deep and continuing concern on these matters. Lord Beecham: My Lords, I am grateful for what I The Government are determined to provide the might best describe as an uncharacteristically helpful best support for victims of crime, which must be and informative response from the noble Lord, which properly funded, but increasingly by offenders rather I undertake to convey to my noble friend. We are, of than taxpayers. In 2010-11, offenders contributed less course, entirely with the noble Lord and the Government than £1 in every £6 of funding that supports victims’ in wanting to ensure that victims are compensated, services. We intend to raise up to an additional £50 million especially by those who wrong them. He has adequately from offenders to pay for services to support victims explained the situation and my noble friend’s fears of crime. That is why we brought forward reforms seem to be unfounded. I beg leave to withdraw the to the victim surcharge last year, following public amendment. consultation, to ensure that all offenders bear a greater proportion of the cost of victims’ services. Proceeds Amendment 95A withdrawn. from the surcharge are ring-fenced to fund support 8.30 pm services for victims and witnesses. From October 2012, the victim surcharge for adult offenders was increased when ordered with a fine and extended to a wider Clause 155: Court and tribunal fees range of in-court disposals such as conditional discharges, community sentences and custodial sentences. Similar Amendment 95AA provision was made for juvenile offenders who even Moved by Lord Beecham before the changes made in 2012 were required to pay 95AA: Clause 155, page 125, leave out line 9 the surcharge when sentenced to a fine. A key point of the victim surcharge is that all Lord Beecham: My Lords, I shall also speak to offenders, including juveniles, take responsibility for Amendments 95AB, 95BA and 95D in relation to the their offending behaviour and make a contribution issue of court and tribunal fees. At Second Reading I towards funding victims’ services. Juveniles have therefore described the Bill as not so much a curate’s egg as a always been within its scope and I do not believe that curate’s omelette, comprising as it does so many it would be right to introduce discretion to exempt ingredients, both good and bad, mixed up together. It them. Having said that, I recognise the concerns of the is perhaps fitting that the Committee should end with noble Lord about the practicalities. When the offender a debate on a clause which impels me to produce is a juvenile, Section 137 of the Power of Criminal another culinary analogy, for this clause and the process Courts (Sentencing) Act 2000 provides that the parent which has informed it can best be described as half-baked. or guardian might become liable to pay a financial It is perfectly reasonable to update the fees for order made by the court. There may, therefore, be proceedings in courts and tribunals to keep pace with circumstances where the parent or guardian of a juvenile inflation and, in appropriate cases, to seek full-cost becomes liable to pay the victim surcharge when they recovery, provided there is a reasonable and effective have been the victim of the offence. We recognise the scheme for the remission of fees, in whole or in part, issue that such cases raise. for those of modest means or less. Equally, I have few Let me reassure the noble Lord that the court does qualms about fees in cases such as those in the commercial have the discretion not to order the parent or guardian court which the Government are anxious to promote to pay the surcharge if, having regard to the circumstances internationally as a forum of choice, but the approach of the case, it considers that it would be unreasonable of the Government to this clause has been cavalier in to do so. While the court would still need to order the the extreme. surcharge in respect of the juvenile, there are a number On 4 December the Minister wrote to me to say of options open to it when it comes to payment. In that the Government had launched a consultation on this vein, the Justices’ Clerks’ Society issued a circular the provisions of Clause 155, as announced the previous to its members in June this year outlining some of day, that is to say four working days before the clause these approaches. These could include inquiring as to comes to be considered by this House. Had progress any income the offender may be receiving, particularly been quicker on earlier clauses, we would have reached if they are older juveniles, in which case responsibility this clause on the very day that the Minister’s letter for paying the surcharge would fall directly to the reached me. The consultation, incidentally, is to last young person. Additionally, in exceptional circumstances, seven weeks, including the Christmas and new year the court has the power to defer payment of the period. It will end on 21 January, by which time we surcharge until such time as it considers the offender will presumably have reached Report, if not concluded 863 Anti-social Behaviour Bill[LORDS] Anti-social Behaviour Bill 864

[LORD BEECHAM] remainder of the proceedings. Given that, in many it, and there will be little or probably no time at all for cases these will be a mere formality, this looks suspiciously the Government to give their response before the Bill’s like another example of more than full-cost recovery, final stage is reached. though not, of course, for the complex cases where there That is not all. Impact assessments for these proposals are major issues as to income and property, where published on 2 December say next to nothing about such charges might be thought to be not unreasonable. the impact on claimants applying to tribunals or to the Ominously, the Government propose changes to the courts, as opposed to the amounts the Government fees in money claims, including, no doubt at the behest, hope to rake in from increased fees. The Government’s yet again, of their friends in the insurance industry, in attitude to consultation is underlined by paragraph 20 personal injury cases. They go so far as to say that of the current consultation paper which refers to an their proposals, if applied in their entirety, would lead earlier consultation, CP15/2011, Fees in the High Court to reduced fees on claims of around £10,000 or less and Court of Appeal Civil Division, to which, the but, typically, will not be changing those fees. consultation paper records, The Committee will understand that there are many “the Government has not yet responded” questions about these proposals, but there is an overriding after some two years, and which are, the consultation question about the abuse of the legislative process paper says, “superseded”—without, I may say, any which, not for the first time, is being perpetrated by explanation—by the current proposals. this Government. I acknowledge and welcome the concessions made in the Government’s amendments The saga does not end there—perhaps I should say as far as they go. They will ensure that any increase in does not start there—for the Government launched yet fees other than inflation-related increases will have to another consultation last April, this time on fee remissions be approved by affirmative resolution, and that is a for courts and tribunals, with a four-week period for welcome improvement. But will the Government consider responses, and published their response, conveniently, the amendments I have tabled, which seek to ensure that no doubt, for them on 9 September, when Parliament access to justice is a prime consideration before setting was in recess. Interestingly, that document introduced the size of the fee increases, and that the remission a disposable capital test and airily dismissed concerns arrangements are properly scrutinised and agreed? Will that this might have a deterrent effect on claimants. they revise the existing remission arrangements in the There is, incidentally, currently concern about an light of the proposed major changes, and will they review apparently significant drop in employment tribunal the proposals to take disposable capital into account? claims following the hotly contested introduction of fees, which were widely regarded as too high. Perhaps Given the shambles of the process thus far, I have the Minister would save me the trouble of tabling a to say that on Report the Opposition may well press question by agreeing to write to me in the new year for a sunrise clause along the lines of Amendment 95D with details of the number of claims before and after to ensure that there is proper parliamentary scrutiny the imposition of charges. It is, after all, an analogous of the complete package when its final contents are situation to that which this clause deals with. developed. As I say, that is unlikely to be the case before this Bill receives its Third Reading. The Government’s latest consultation paper refers to interviews and research, both of which are said to In addition, in the mean time it will be helpful to have been the subject of a full report published alongside know whether, in the indefinite age of austerity that the consultation, but for which no references are given. the Chancellor has decreed for public services, the Painting, as ever, with a broad brush, the Government principle of full-cost recovery, and especially of more say that they believe, than full-cost recovery, will be extended to other services such as further and higher education, prescription “that all those who issue a court case benefit equally from the charges or other parts of the health service. By what existence of the civil justice system as a whole and should share in contributing towards its indirect costs”, logic, one wonders, would the Government differentiate between some of the proposals they are making in this and, therefore, they divide the indirect costs of the Bill, incorporating more than full-cost recovery for system between all cases that are issued. It is not clear access to justice, and those or other public services? I to me whether the apportionment applies equally to beg to move. all cases, or whether it is in some way proportionate to the amount claimed. On the face of it, this looks very like the application of the principle of the poll tax to Lord McNally: My Lords, I shall not try to follow the cost of making a claim to a court or tribunal. the noble Lord, Lord Beecham, down his culinary Paragraph 60 of the consultation proposes to combine route. One of the pleasures of responding to the noble the fees for issue and allocation to a track—the small Lord is that it is almost like doing a school exam. So claims track, fast track or multi-track—without any clear many questions are fired at you in quick succession. If explanation of the rationale. Paragraph 63 acknowledges I do not cover them all in this reply, I will carefully that the hearing fees for the higher track cases are read what he has said, note the question marks that higher than the average cost of such, but it does not Hansard inserts and try to send suitable replies, including propose to adjust them, thereby importing the concept on the point he made in opening about the figures for of more than full-cost recovery by the back door. In claims at employment tribunals after the introduction divorce cases, while the Government say, at paragraph 71, of charges. that they will maintain the issue fee at £410, already Perhaps I may deal first with the two government above the actual cost price of £270, they will impose amendments in the group, namely, Amendments 95B an extra charge of £300 to cover the cost of the and 95C. These give effect to the recommendation 865 Anti-social Behaviour Bill[11 DECEMBER 2013] Anti-social Behaviour Bill 866 made by the Delegated Powers and Regulatory Reform report of Session 2002-03, the Delegated Powers and Committee relating to the power to charge enhanced Regulatory Reform Committee welcomed a government court fees. Clause 155 currently provides that, when amendment to make the order-making power in what the power to set a fee or fees at an enhanced level is is now Section 92 of the Courts Act 2003 subject to used for the first time, the relevant statutory instrument the negative procedure. Given that previous endorsement should be subject to the affirmative resolution procedure, by the committee, and the fact that the current with any subsequent changes to the fee or fees being arrangements have been in place for some years, I see subject to the negative procedure. The Government’s no good reason why we should now alter the level of intention was that the principle of charging an enhanced parliamentary scrutiny. fee should be subject to a full debate in Parliament, Finally, Amendment 95D would require the Lord after which the negative procedure would provide the Chancellor to report to Parliament on the outcome of necessary level of parliamentary oversight for any the public consultation on these proposals and to obtain subsequent changes to the fee. approval for its response. As the noble Lord indicated, However, the Delegated Powers and Regulatory Reform the Government on 3 December set out their detailed Committee was concerned that this would provide the proposals for using the power to set enhanced fees in Lord Chancellor with a very wide discretion to set the the consultation paper, Court Fees: Proposals for reform. level of fees. Although the legislation requires the Lord This seeks views on a series of proposals for charging Chancellor to have regard to the financial position of enhanced fees, including for money claims, in commercial the courts and tribunals and to the competitiveness proceedings and for divorce, alongside proposals for of the legal services market when setting fees, the reducing the current deficit of £100 million in the cost committee felt it was possible that, in future, very of running the Courts and Tribunals Service. The different considerations might apply and that these consultation closes on 21 January. In the normal way, should be taken into account. The committee therefore we will publish a response to that consultation in due recommended that the power to set an enhanced fee course and Parliament will have an opportunity to should be subject to the affirmative procedure unless consider it when we lay a draft order under Clause 155. the amendment is being made solely to reflect the I therefore take Amendment 95D as a probing amendment change in the value of money. The Government agree rather than an attempt to enshrine in statute the that this change would be appropriate and, accordingly, normal process of reporting on the outcome of a Amendments 95B and 95C will implement this consultation. recommendation. I turn now to the amendments in the name of the 8.45 pm noble Lord, Lord Beecham. Amendments 95AA and As I have said, it is our normal practice to publish a 95AB seek to require the Lord Chancellor to have government response to a consultation once we have regard to the principle of “access to justice” when considered the views of consultees, and we will do so setting fees. I can wholeheartedly agree with the noble with the response to these proposals. Those enhanced Lord that this is an important consideration. However, fees we decide to introduce following the consultation the Lord Chancellor is already under a duty to do will be brought forward by statutory instrument, subject exactly this when setting fees under Section 92 of the to the affirmative procedure. The Government believe Courts Act 2003. Subsection (3) of that section provides that a full debate in both Houses with the benefit of that the Lord Chancellor, the consultation outcome will provide sufficient “must have regard to the principle that access to the courts must parliamentary scrutiny of the proposed enhanced fee not be denied”. increases. Amendment 95BA seeks to make the remission For all these reasons, the Government consider the scheme subject to the affirmative resolution procedure. amendments of the noble Lord, Lord Beecham, to be As noble Lords will be aware, there is already a remission unnecessary. I hope that, as I intend to read his speech scheme in place. Indeed, the scheme has been in place carefully to see his questions, he will read my speech for a number of years, but was updated and revised as carefully to see my answers. I hope he will withdraw recently as 7 October 2013 when the Courts and Tribunals his amendment. Fee Remissions Order 2013 came into force. It is the Government’s intention that the existing remission Lord Beecham: My Lords, I always read the noble scheme will continue to apply in all cases where enhanced Lord’s speeches carefully and I am certainly willing to fees would be introduced. do so on this occasion. I am grateful to the Minister The current scheme provides for certain court and for his reply, and I suspect that this short debate will tribunal fees to be remitted in whole or in part where be seen as something of an aperitif for the rather more litigants meet certain criteria based on their disposable weighty matters that we are about to discuss when the capital and gross monthly income. The existing scheme noble Lord, Lord Carlile, moves his prayers to annul is made under the same order-making powers as apply two other orders. to the setting of fees, for example, Section 92 of the The Minister fails to acknowledge, however, that a Courts Act 2003, which relates to fees payable in respect negative procedure might be sufficient when one is of proceedings in the senior courts, county courts and dealing with a stable situation, but the Government magistrates’ courts. As the remission scheme relies on are here proposing an entirely new basis for the levying the same order-making powers as the statutory of fees: in the first place, to ensure full-cost recovery, instruments prescribing court and tribunal fees, they but, more significantly, potentially going beyond that are subject to the same level of parliamentary to ensure more than full-cost recovery. That puts a procedure—namely, the negative procedure. In its seventh whole different perspective on the likely impact of fees 867 Anti-social Behaviour Bill[LORDS] Anti-social Behaviour Bill 868

[LORD BEECHAM] (3) In paragraph 2 (fingerprinting: persons charged etc)— on litigants or applicants to tribunals. In these (a) in sub-paragraph (2)(b), for “section 61(5B)(b)” there is circumstances, a different procedure than the conventional substituted “section 61(5B)(b)(i)”; negative procedure is required, at least in the early (b) at the end of sub-paragraph (2) there is inserted “, or stages. This is a matter to which we may wish to return (c) in a case falling within section 61(5B)(b)(ii) (fingerprints on Report. destroyed where investigation interrupted), the day The consultation effectively comes after the completion on which the investigation was resumed.” of the process of enacting this Bill, which will allow (4) In paragraph 9 (non-intimate samples: persons arrested the Government to introduce new principles. It is the and released)— wrong way around: the consultation should have taken (a) in sub-paragraph (2), for “within section 63(3ZA)(b)” place and we should have had the result of that before there is substituted “within section 63(3ZA)(b)(i) or we discussed this clause, which makes a significant (ii)”; difference to the way our courts operate. It is now too (b) after sub-paragraph (3) there is inserted— late for that to happen and that is a matter of regret. I “(4) The power under sub-paragraph (1) above may not am afraid that I do not resile for a moment from the be exercised in a case falling within section 63(3ZA)(b)(iii) (sample, and any DNA profile, destroyed where criticisms I made, not of the Minister, who is not personally investigation interrupted) after the end of the period responsible—he is well aware of that—but of others of six months beginning with the day on which the occupying, perhaps, more senior positions, who ought investigation was resumed.” to reflect on the way they are treating Parliament and (5) In paragraph 10 (non-intimate samples: persons charged its due processes when they push forward proposals of etc)— this kind in this way. Nevertheless, in the circumstances, (a) in sub-paragraph (3), for “within section 63(3A)(b)” I beg leave to withdraw the amendment. there is substituted “within section 63(3A)(b)(i) or (ii)”; Amendment 95AA withdrawn. (b) after sub-paragraph (4) there is inserted— “(5) The power under sub-paragraph (1) above may not Amendment 95AB not moved. be exercised in a case falling within section 63(3A)(b)(iii) (sample, and any DNA profile, destroyed where investigation interrupted) after the end of the period Amendment 95B of six months beginning with the day on which the Moved by Lord Taylor of Holbeach investigation was resumed.”” 95B: Clause 155, page 125, line 24, leave out “for the first time” 98: Schedule 9, page 196, line 21, at end insert—

Amendment 95B agreed. “Police Reform Act In Schedule 4, in paragraph 1(2), the word Amendment 95BA not moved. 2002 (c. 30) “and” at the end of paragraph (ca).” 98A: Schedule 9, page 197, line 2, at end insert— “Prison Act (Northern Ireland) 1953 (c. 18) Amendment 95C In section 38 of the Prison Act (Northern Ireland) 1953 Moved by Lord Taylor of Holbeach (arrest, etc, of persons unlawfully at large), in subsection (4), for 95C: Clause 155, page 125, line 27, at end insert— “the last foregoing sub-section”there is substituted “subsection (2)”.” “(8) But subsection (7) does not apply if the statutory instrument 98B: Schedule 9, page 199, line 11, at end insert— only adjusts a fee to reflect changes in the value of money.” “(1) Section 204 of that Act (warrant issued by category 1 territory: transmission by electronic means) is amended as follows. Amendment 95C agreed. (2) In subsections (1)(c) and (2)(c), for “a qualifying form” Clause 155, as amended, agreed. there is substituted “a form in which it is intelligible and which is capable of being used for subsequent reference”. Amendment 95D not moved. (3) In subsection (6)— Clause 156 agreed. (a) at the end of paragraph (a) there is inserted “and”; (b) paragraph (c) and the word “and” before it are omitted.” Schedule 9: Minor and consequential amendments 99: Schedule 9, page 199, line 28, at end insert— Amendment 96 not moved. “section 189E(1)(b);”” Amendments 97 to 99 agreed. Amendments 97 to 99 Schedule 9, as amended, agreed. Moved by Lord Taylor of Holbeach 97: Schedule 9, page 193, line 21, at end insert— Clause 157: Orders and regulations “Police and Criminal Evidence Act 1984 (c. 60) (1) Schedule 2A to the Police and Criminal Evidence Act 1984 (fingerprinting and samples: power to require attendance at police Amendment 100 station) is amended as follows. Moved by Lord Taylor of Holbeach (2) In paragraph 1 (fingerprinting: persons arrested and released)— 100: Clause 157, page 126, line 5, leave out “containing an” (a) in sub-paragraph (2), for “section 61(5A)(b)” there is and insert “containing— substituted “section 61(5A)(b)(i)”; ( ) an order under section 4(5), (b) after sub-paragraph (3) there is inserted— ( ) an order under section 50(4), or “(4) The power under sub-paragraph (1) above may not ( ) an” be exercised in a case falling within section 61(5A)(b)(ii) (fingerprints destroyed where investigation interrupted) Amendment 100 agreed. after the end of the period of six months beginning with the day on which the investigation was resumed.” Amendment 100A not moved. 869 Anti-social Behaviour Bill[11 DECEMBER 2013] Criminal Defence Service Order 2013 870

Clause 157, as amended, agreed. been at the Bar for 43 years now, with 42 years in practice. Over that period there have been pinch points, Clause 158 agreed. there have been negotiations about costs, but they have always been resolved by constructive engagement. Clause 159: Extent We are now in a situation in which, for the first time in my time at the Bar, barristers are intent on withdrawing Amendments 101 to 104C their labour, and they are at loggerheads with a Government who a great many of them have supported Moved by Lord Taylor of Holbeach over the years. That is a sad state of affairs. 101: Clause 159, page 126, line 40, at end insert— I declare my interest at the outset. I am a barrister “( ) sections (Information about guests at hotels believed to who has conducted several very high cost cases, the be used for child sexual exploitation) to (Offences);” category on which I will focus. I was but am no longer 102: Clause 159, page 126, line 41, leave out “section” and involved in a still current case which is not affected by insert “sections (Power to take further fingerprints or non-intimate the changes. I am very grateful to my noble friend the samples), (Power to retain fingerprints or DNA profile in connection Minister for meeting me, with two officials present, on with different offence) and” 26 November. I thought the meeting was useful and 103: Clause 159, page 126, line 42, leave out “135” and insert possibly constructive for the future. I hope he shares “(Powers of community support officers) and Schedule (Powers that view. of community support officers)” 104: Clause 159, page 127, line 5, leave out “, 101” and insert What are VHCCs? They are called “very high cost “to (Possession of firearms by persons previously convicted of cases” but that is somewhat pejorative. In truth, the crime)” letters could also stand for “very high complexity cases”. 104A: Clause 159, page 127, line 21, leave out “and” and insert They are few in number and among the most complex “to” cases that come before any court, criminal or civil, in 104B: Clause 159, page 127, line 23, leave out “Section 109 terms of the law that is involved and the facts that they extends” and insert “Sections 109 and (Discount on sentence for engage. All, by definition, have to be expected to last time spent in custody awaiting extradition: Scotland) extend” more than 60 court days—they are massive cases. 104C: Clause 159, page 127, line 24, leave out “Section 120 Substantial prison sentences may ensue for the people extends” and insert “Sections 120 and (Discount on sentence for convicted, and usually those convicted in this class of time spent in custody awaiting extradition: Northern Ireland) extend” case are not career criminals but people of previous Amendments 101 to 104C agreed. good character. A current case of which I am aware involves nine Clause 159, as amended, agreed. parties, including the prosecution; 20 counsel, including nine QCs; and between 5 million and 8 million pages Clause 160: Commencement of documents disclosed. One might ask, “What all those lawyers are doing, trying to read between 5 million Amendment 105 not moved. and 8 million pages for the defence. Are they just making work for themselves?”. No, not at all. “Disclosed” Clause 160 agreed. in this context means that the documents have been Clause 161 agreed. described by the prosecution as either materially undermining the prosecution case or materially assisting House resumed. the defence case; there is a clear obligation on the defence to examine those documents as best as it can. Bill reported with amendments. These cases are every bit as complex as some of the legendary civil cases involving Russian oligarchs and Criminal Defence Service (Very High Cost the like about which we read, and the huge commercial Cases) (Funding) Order 2013 disputes that some of the distinguished noble and Motion to Annul learned Lords now sitting in the Chamber were involved in in practice and as judges. They demand the same 8.52 pm legal and analytical skills as the most difficult civil Moved by Lord Carlile of Berriew cases. There is an added element. All these cases are heard by juries; so the hugely complex material has to That a Humble Address be presented to Her be translated, as it were—transposed—into a situation Majesty praying that the order, laid before the where it can be understood by a jury. House on 1 November, be annulled. (SI 2013/2804) Some defendants are wealthy and would like to pay Relevant document: 18th Report from the Secondary for their own defences, but they are not allowed to by Legislation Scrutiny Committee. the state. For the most part they cannot use their assets to pay for their defences because they have been seized Lord Carlile of Berriew (LD): My Lords, in speaking by the state. They are the unwilling people who have to the two Motions standing in my name on the Order been thrown on to legal aid and basically obliged to Paper, I should start by saying that I do so with take it or defend themselves. We have had arguments sadness and regret. The fact that we are having this in this House in the past about whether these assets should debate on annulment Motions at all is a symptom of be unfrozen under careful scrutiny and management the breakdown in trust between barristers in criminal to allow them to be used to pay for their defences, but practice and the Lord Chancellor’s Department. I have for a completely strange reason the Government are 871 Criminal Defence Service Order 2013[LORDS] Criminal Defence Service Order 2013 872

[LORD CARLILE OF BERRIEW] be far better to suspend the operation of these instruments not prepared to allow this to happen. I suggest to your and renegotiate with a profession that is willing to Lordships that that is a stubborn, unreasonable and help. unrealistic approach. Some specific issues have arisen in relation to these As I have said, these defendants are thrown unwillingly instruments. The statutory instrument on VHCCs has on to legal aid representation, like it or not, and the been strongly criticised by the House of Lords Secondary public pay. Theoretically, if they are convicted some of Legislation Scrutiny Committee in its 18th report. the costs can be recovered, but I would like to hear Among other things, the committee suggested that, from my noble friend what proportion of the defence “the House may wish to press the Ministry of Justice to provide a costs have been recovered in these cases. Defence costs more robust argument to support its assertions that the instruments are notoriously difficult to recover. There are a legion will not have an impact on the administration of justice”— of anecdotes, mostly true, about how the families of by which it means an adverse impact—and the committee those convicted can sit quietly on the assets that have therefore drew these instruments, been frozen and live, for example, in expensive family “to the special attention of the House on the ground that they homes for years. Recovery is very unsuccessful. may imperfectly achieve their policy objectives”. There seems to be an implication that the Bar is I agree. being greedy, setting fees that are totally unrealistic, Then we have the extraordinary point that the but I remind your Lordships and particularly my Ministry of Justice is committing wholesale state breach noble friend that these fees have never been set by the of contract, using statute to justify wholesale breach Bar or by any other advocate. They have always been of contract—quite simply reneging on contracts it has set by the Government of the time, and, until now, entered into. On previous occasions when the Government after consultation, discussion and negotiation, which of the time have cut legal aid fees, they have always is a process founded on reason. reduced the fees paid to all future cases. Here, they have Unfortunately VHCCs have developed a substantial cut the fees in mid-case. People who have been committed bureaucracy which is extremely frustrating to those of to cases have seen a savage reduction in their fees—I us who have had to conduct them. They involve case repeat, without consultation. They will be paid 30% managers who are civil servants. I have occasionally less. It does not set a good example of how professional suggested to these case managers that they are “valued organisations should behave and it is a shabby example members of the defence team”, a phrase that I have of government behaviour. repeated on a few occasions in messages to them. Even In addition, legal aid advocate fees have been cut that flattery has failed to secure a single attendance by disproportionately in comparison with other publicly a case manager at a conference in the case, or a single funded professions. We are used to hearing figures attendance at court when there was a critical incident trotted out. Usually Ministers quote VHCC category occurring in a preparatory hearing or the trial. This is 1 fees from the most serious cases, which in fact cover mere bureaucracy, which adds totally unnecessarily to only 1% of VHCCs. Last year 59% of VHCC fees the cost of these cases, the fees for which could be were paid at category 3, which pays £91 per hour for a assessed by the very people who are sitting in the QC and £61 for a led junior. In crude terms, that court—as used to be the case—the associates or court sounds like quite a reasonable amount of money, but clerks, who saw what was going on and were able to let us not forget that every barrister has a chambers, see how much work each advocate had done in the staff, office costs and VAT; as self-employed individuals, case. The lazy got less than the assiduous. they have no pension provision unless they pay for it, they have no sick pay and they do not get paid when they are on holiday. The reality of those hourly rates is 9pm that the barrister is lucky if, in truth, he or she is These two statutory instruments imposed, without taking home more than about 30% of the gross fee to consultation, cuts of at least 30% in the fees for these pay for family life. cases. It is an extraordinarily brutal way of approaching They are not high fees when we remember that a perceived problem. The system is broke, actually. It these cases are, as I said, the most complex and serious is founded on payment per hour for preparation and ones, requiring the most skilled and most experienced per minute for documents. This is not by any means a advocates—people who, if they were doing other work, satisfactory basis. Already much of the work on the would be earning several times that amount in the old fees is unpaid. If we say that 30 seconds per page is private market, which the Lord Chancellor has quite allowed for reading what are sometimes extraordinarily rightly been saying is one of the jewels in UK plc’s crown. difficult financial documents—and that does happen, There is sheer hypocrisy, in my view, in saying that we commonly—much work is unpaid. In some cases, there want the jewel in the crown in those civil cases for is a vast proportion of unpaid work because of the which foreigners are paying but we do not want to massive detail that takes much longer to assimilate have the same quality of representation in domestic than the time that is allowed. In other cases, payment cases, albeit for lower fees, but reasonable ones. by the hour may create less rather than more efficiency What has happened? The rates in the statutory of preparation. instrument came into force on 2 December and they The system is not ideal. It is worthy of root and branch have already been proved to be below the market rates reform. Improvements can be made, but they have to at which those with the necessary skills will work. To be made by co-operation and negotiation. Cutting take a single case as an example, on 6 December at fees by 30% at a stroke is a crude way of dealing with Southwark Crown Court, in a VHCC with five defendants, these problems. I say to my noble friend that it would the advocates of three of them exercised their contractual 873 Criminal Defence Service Order 2013[11 DECEMBER 2013] Criminal Defence Service Order 2013 874 right to terminate their VHCC contract when the 30% As a regulator, I say right now that the retrospection cut came into force. One solicitor contacted 47 sets of of the statutory instrument is the most offending barristers’ chambers and 330 barristers with suitable feature. If the Government simply changed the date of experience. At the new rates, not one was prepared to effect, so that only new instructions offered in future do the cases. The result is going to be that either these were subject to the cuts—objectionable although they cases are done by people who do not have any relevant are—some of the worst effects on the administration experience and do not have the requisite skills, or of justice would be mitigated. Will the Minister tell the people simply go without advocates. House why that should not be the case? Retrospectivity What will happen in court? There are people in is contrary to the law of contract and the rule of law. your Lordships’ House who have immense experience—I For example, when income tax rates are cut, the hope that we shall hear from them—about what happens Government do not expect the payer to take advantage in court when a case is not done properly. It takes of the new rates before the starting date. In fact, such extra time. It takes more intellectual energy from the cuts are normally given a starting date well in advance, judge. It is very tiring. Above all, it raises the danger of to allow parties to plan their affairs accordingly. serious miscarriages of justice. In complex cases lasting The Government have tried to make the UK the many months, as most of these do, the cost to the world’s pre-eminent destination for swiftly resolving country of a failure because of the case not being international high-value legal disputes. That is increasing done properly because of not having appropriately revenue. The UK legal sector output was £27 billion in skilled advocates, is immense. The figures that the the most recent figures, and is set to grow. It has Government have produced are simply misleading. exported £3.6 billion of services and is the largest, by a I have taken up enough time, and I look forward to long way, in Europe. Some 14% of the world’s largest hearing from others in this debate. However, I urge my law firms are headquartered in London. The Government noble friend to accept that he should go back to the should not trumpet the excellence of the UK—as drawing board. I urge the House to accept that this is indeed it is—as a global legal centre whose success and an issue on which—unpopular as barristers sometimes desirability depends on the utter reliability of adherence are—they are probably right. At the very least, the to the rule of law and the quality of its lawyers, and introduction without any proper consultation, in breach then cut at the routes of access to justice and the of contract as I have described, is really not acceptable. development of lawyers here. I can describe it only as double standards. Baroness Deech (CB): My Lords, I speak in support There cannot have been a proper impact assessment of the noble Lord, Lord Carlile. The extent of the of the cuts in terms of lost business, delayed trials and concern about this is evident in the noble and learned the effect on equality and diversity at the Bar. The Bar Lords and noble and legally aware Lords who are is proud of its record in enabling the underprivileged gathered here tonight. In fact, the cuts to legal aid and and those from non-traditional backgrounds and ethnic the way in which they are being implemented are set to minorities to enter the profession. Up to 19% of pupillages take their place in the great pantheon of government in recent years have gone to such young people. That failures, which were foreseen but went ahead anyway. cannot now be maintained. Young people cannot be The list includes home improvement packs, ID cards, expected to go into criminal or family law at those rates the Millennium Dome, child support and so on. I when they have higher than ever university debts behind predict with confidence that, in a few years’ time, people them and, of course, the cost of qualifying as a barrister. will look back at the legal aid cuts and add them to In the past, they were happy to take that on the chin that list. They amount to the suffocation of the criminal because they knew that at the outset, they would get Bar and the weakening of the quality of the judiciary some legal aid work—low rates though they were, they who would have been expected to emerge from it. were enough to survive on. Now, in all conscience, how can we encourage them to join the Bar? I have an interest to declare as the regulator of the Bar, but not as its representative, so I am reluctant to comment on the level of the cut—30%—to payments 9.15 pm to the Bar, but the effects are clear to a regulator. They We are talking about saving £220 million per annum. will damage the administration of justice, the rule of Submissions to the Ministry of Justice on this topic law and equality and diversity at the Bar. There will be allege that cuts have already been made and that there too few advocates ready to take cases at those miserly are other ways of making economic efficiencies without rates, as we have seen. They are dropping them now, damaging the product itself. Most government cuts mid-case, and will refuse new instructions at those rates. have a policy behind them which is often controversial We are talking about contracts entered into before but comprehensible. For example, cuts have been made 2 December where the case will be heard after 31 March, in welfare so that it pays to work; unpopular charges so advocates are being forced by the statutory instrument for spare bedrooms have been applied to try to rationalise to take a 30% cut in their contracted rates mid-case. housing allocation. One may not agree with it, but there The Ministry of Justice may be relying on the is a policy. In legal aid, there is no policy in cutting, profession’s sense of duty to continue the case at 30% save a crude cut. It is not alleged that these cuts will less, but if the case is dropped, it will end up spending make the courts run better, free more funds for them, more because of the cost of getting another advocate make professionals more efficient or increase consumer to repeat months of work already undertaken. The access. There is no rationale at all except a cut. Ministry of Justice is breaching contracts retrospectively One must thus consider the relative morality and and placing future VHCC cases in the statutory instrument effectiveness of government expenditure in these times category, not the former contract mode. of austerity. Take, for instance, the recently reported 875 Criminal Defence Service Order 2013[LORDS] Criminal Defence Service Order 2013 876

[BARONESS DEECH] considering whether the action taken is appropriate, I loss of some £40 million on failed universal credit suggest that we have to ask ourselves three questions. technology, or reports that much foreign aid goes into First, will the action proposed achieve its purpose— the wrong pockets and does not reach the victims of that being to save money? Secondly, is this action disaster. The Public Accounts Committee recently pointed disproportionate in the way that it affects a particular out that the national programme for IT in the NHS section of the legal profession? Thirdly, does it create a has spent more than £3 billion with next to nothing to serious risk of damaging severely the criminal justice show for it, and that the benefits do not outweigh the system of this country? I suggest to the House that, costs which will, in the end, be at least £10 billion. The judged by those questions, this proposal fails all three regional fire control project was scrapped after £500 million of the matters that I have referred to as requirements. had been wasted. One could go on and on. It is the third effect with which I am primarily The Government need to consider what is good concerned, although indirectly that involves consideration economy and what is bad. The savings of £220 million of the first and second questions that I have identified a year in legal aid will not materialise if courts and as well. We are considering here the most eminent cases are disrupted. To maintain the rates, miserly practitioners in the field of criminal law in this country. though they already are, would be a good investment The noble Lord, Lord Carlile, has painted a vivid in the administration of justice and the rule of law. I picture of the sort of cases that we are involved in. It is am certain there are ways—noble Lords will, no doubt, vital for this country’s justice system that those most think of others—whereby funds can be taken from projects difficult and demanding cases are properly tried. If that are not delivering, such as the ones I just mentioned, they are not properly tried the whole of our criminal to keep going the administration of justice and the justice system will be under a dark shadow, which rule of law for which Britain has been famous for this Government will have created without proper centuries. consideration of the information available, to the extent Having put on record my concerns and those of to which consultation has taken place. I say that others about the effects on our renowned legal system, having been in practice at a time when the Bar would, the regulator’s main difficulty would be eased if the to fulfil what it saw as its obligation to justice, take on Government made the changes wholly prospective, so cases up and down the country for the princely fee of that they applied only to instructions newly offered two pounds four shillings and sixpence, irrespective of after 2 December. Then, at least, the strictures about your seniority. Eminent counsel took those cases and breaches of contract and the rule of law will be minimised. took their share of responsibility for that. From what I I urge the Government to think again about the date know of the Bar standards today, I have no doubt that of implementation. Will the Minister assure us that he they would do it today if they had to. will do so and tell the House how much it would cost However, you cannot expect people to go into a to extend the date of activation so that the new fees profession, rise to its top and be treated to the imposition apply only to instructions first offered after 2 December? of an arbitrary cut of the scale proposed here without I urge the ministry to consider the legal system and its damaging the reputation of that profession. These international reputation with due care. Do not kill the people are not only those on whom we rely to conduct goose that lays the golden eggs. the most difficult cases at present; they are also those we rely on to be our great criminal judges of the Lord Woolf (CB): My Lords, I must start by making future. We also rely on them, by the way they conduct a disclosure about my judicial career, my career at the their practice, to ensure that the Bar gets in its recruitment Bar and the fact that, since I retired as a judge, I have programme among the brightest and the most able been a non-resident member of a barristers’ chamber. youngsters going through our universities today. Each Of course, in accordance with the rules within this of the Inns of Court has programmes whereby the jurisdiction, a retired judge cannot go back to the Bar. senior members of the Bar—the sort of members of I congratulate the noble Lord, Lord Carlile, on the Bar I am talking about—visit universities and talk bringing this Motion and on the way he presented it. I to the students who want to know whether they should draw significance from the fact that the House has come to the Bar and, if they do, what sort of work heard two speeches from people who, in very different they should do. They want to know whether they ways, are able to talk about the issues before us, which should take the risk of coming to the Bar in the have been rightly described as highly relevant to the present circumstances. administration of justice and the rule of law. Certainly, when I was doing that, I was always able Having said that, I should make it clear that I also to say to them, “You will have a profession which support what the noble Baroness, Lady Deech, has demands a tremendous amount from you, but you will said from a different aspect, except that I would draw have the satisfaction of knowing that you are involved a different view from hers as to the benefits of merely in a profession where the public at large respect what postponing the date of implementation. I suggest that you do and which contributes to producing a quality that would merely be sticking plaster on a very gangrenous of criminal justice that is admired around the globe”. wound. Something much more is required of the In those circumstances, they have continued to come Government if they are to recognise the responsibilities to the Bar. Who, however, will be able to tell people to that they have to the rule of law, and to which I know come to the Bar when they know that they will be that the Minister attaches great importance. dependent on a Government who apparently consider Equally, I understand why the Government felt that it appropriate to impose a cut retrospectively, as the there was a need to take action to curb the costs of the noble Baroness, Lady Deech, indicated, on the profession? cases with which we are concerned. However, in How can you do so, as a person who has the well-being 877 Criminal Defence Service Order 2013[11 DECEMBER 2013] Criminal Defence Service Order 2013 878 of these youngsters who are thinking of coming to the of criminal cases, by contrast, is generally critical to profession at heart—I speak as the father of three sons real people; usually their very liberty is at stake. More who have come into the law—if you know that what than this, the strength of the rule of law, and indeed we have heard about will be on the cards when it public respect for it, depends above all else on the comes to their career? proper administration of the criminal justice system. There is very real reason for the Government to Very high cost cases, the subject of the swingeing reconsider their approach in this matter. It is very further cut in fees under consideration here, are generally important that they do so. If they do not, they will the most demanding of all the cases in the criminal unintentionally cause serious harm to a profession calendar, as the noble Lord, Lord Carlile, has explained, that it will take years, if not generations, to undo. and usually, and appropriately, they are undertaken by What is at present a profession that the brightest and the elite of the criminal Bar. There already exist few most able want to enter, will be one that they will feel financial attractions for those contemplating practice, they cannot possibly enter because the risks of doing or indeed already practising, in crime at the Bar. If so are so great. you impose these additional cuts, that elite will fall away. I have read, of course, the report of the statutory The Attorney-General himself is said to have instruments committee. I note what it says about the acknowledged at a recent Bar conference that he no Government thinking it will be possible to get people longer expected people of excellence to come to the not out of the top drawer but from a lower drawer to criminal Bar. Consider, if you will, the effect of that upon do these cases. The Government may be right in the future quality of those who practise at the very saying that, but what will be the calibre and quality of heart of the criminal justice system. Consider its impact those persons? I can say, on the basis of my judicial on recruitment, as the noble and learned Lord, Lord career, that, as the judiciary works in this country, it is Woolf, has made plain. Consider its impact on the rule dependent on the Bar. It is dependent on the Bar not of law, and consider its inevitable consequences in terms only for recruits but for the help it gives to the judiciary of the future judiciary. Where shall we find the next to do justice. You do not save money just by fiddling generation of criminal judges? What indeed about the with fees. If there is the need to create savings that the present position, as described by Lord Carlile, with current Government say there is, they should have taken action cases going hopelessly awry because, understandably, before to ensure that judges have the benefit of barristers Counsel are on occasion declining to continue with who are paid not by the hour or by the day, but on a cases with their fees savagely and retrospectively cut. more sensible basis in respect of cases so that they Of course I recognise that the Ministry of Justice have the same incentive as the justice has that cases has many calls upon its budget and that we live in should be disposed of expeditiously and not in the harsh economic times, but I just cannot accept that way that sometimes happens because of how our fees these difficulties justify cuts so inevitably and gravely are structured. Reforms were possible. Cases require damaging to the criminal Bar, to the administration of management, but it has to be possible for the management justice and to the very rule of law. If drastic economies to take place economically. in the legal aid budget are required, and if they must be found in relation to the kind of cases in question 9.30 pm here, better far to my mind that the department revisit Lord Brown of Eaton-under-Heywood (Non-Afl): a measure long ago suggested but, regrettably, hitherto My Lords, I do not think I have any relevant disclosures rejected: the ending of the automatic right to jury trial to make. I have not had a private client for some in complex and protracted fraud cases. Indeed, it is my 34 years since I followed the noble and learned Lord, own clear opinion that not merely would this save Lord Woolf, as Treasury Counsel, and I shall never countless millions of pounds of legal aid funds, it have another. would also make for better justice. This very afternoon, in answer to a Question about That, of course, must be for another day. In the our trade prospects with China, the Minister, the mean time, let us surely strive to safeguard rather than noble Lord, Lord Livingston, said: destroy the quality of the existing criminal Bar. Let us “The UK legal sector is a great strength … the rule of law and annul, not merely postpone, this order and these support from professional services are very strong. I will certainly regulations. I, too, support the Motion. seek to champion the legal sector going forward”. I believe that I quote him accurately. I just wish that he would share his views and commitment with the Lord Lord Hope of Craighead (CB): My Lords, along Chancellor. with others, I am extremely grateful to the noble Lord, For many years the criminal Bar has been the poor Lord Carlile, for tabling these Motions so that we can relation of the various specialist Bars. Over the past debate these important measures. I should make it decade it has already suffered a series of cuts in public clear that I have never practised at the English Bar and funding. Of course it does not earn for the Exchequer never sat in an English court. My experience has been the riches that, for example, the commercial Bar earns of practice, both civil and criminal, north of the when acting, very often on both sides of the litigation, border. However, although I have never sat in an in commercial disputes. However, I argue that the English court, I have sat in a United Kingdom court, work undertaken by the criminal Bar is altogether have had some experience of dealing with criminal more important than most commercial work. Most cases and think that I can speak with some authority commercial cases result ultimately just in the adjustment in support of the points which have been made so of companies’ balance sheets and book entries; they effectively by the noble and learned Lords, Lord Woolf rarely affect the quality of people’s lives. The outcome and Lord Brown of Eaton-under-Heywood. 879 Criminal Defence Service Order 2013[LORDS] Criminal Defence Service Order 2013 880

[LORD HOPE OF CRAIGHEAD] existing arrangement. I do not understand why it is A cut of 30% on fees previously set by the Government there and I suggest that the Government are taking a surely must be regarded in the present financial climate great risk by proceeding along these lines. as severe. I appreciate, of course, that the Minister and Members of the Bar, after all, are not civil servants. those for whom he speaks in this House have very little One of the strengths of the Bar, vital in our modern room for manoeuvre, given the cuts that already have democratic society, is the independence of each one of to be made across the entire department. However, it its members from each other and from anyone else. would help if the Minister in his reply were able to put That is an essential part of the system, which lies at these two measures into their overall context. As I the centre of maintaining the rule of law, which we all understand it, we are dealing here with cases that take believe in. One of the characteristics of their independence a very long time and provide the advocate with the is that advocates cannot be forced to accept terms to benefit of continuity of employment throughout a which they have not agreed or which they find unattractive. long period. As has been pointed out, these are complex That leads directly to the consequences—to which the cases which require unusual amounts of work outside noble and learned Lord, Lord Woolf, drew our attention the court room and are, in comparison with rates —which could be very far reaching and very damaging. elsewhere in the system, better paid. I could therefore Those already engaged in work of this kind might be perhaps understand it if the strategy behind these well advised to withdraw from their contracts, lest measures was to reduce the cost of legal aid at this they be sucked into an ever increasing pattern of cuts. level, so as to keep any reduction at the lower levels, There are many who might be attracted to this kind of with which we are not concerned this evening, to an work in other circumstances who would not wish to absolute minimum—or even to preserve the existing subject themselves to the reformed contract where position at the lower levels. After all, it is at the bottom they are subject to change without any further amendment of the scale that there is real hardship. One hears not of the contract itself. infrequently that the costs of travel and other overheads I therefore have this further question for the Minister: exceed the amounts payable as fees to the advocate. If what assurance can he give to those who may be there is any margin over that, it is often very small. I willing to accept employment on these amended terms would be grateful if the Minster would say whether as to what the future holds for them? This is very this is what the Government have in mind, and give us relevant to the issue of recruitment. Schedule 6, as I an assurance that there is no question of cuts of this have suggested, is open to further amendment. Are we dimension being made elsewhere across the system. to expect further cuts in these rates next year or is it That would be some reassurance to those who are proposed to do so within the life of this Parliament? If deeply concerned about what the Government have in so, what further opportunity will there be—indeed mind in the overall planning. what opportunity will there be at all—for consultation I will direct my remarks to the amendment set before any further amendments are proposed? What out in regulation 3(5) of the Criminal Legal Aid opportunity will there be for an advocate to withdraw (Remuneration) (Amendment) Regulations 2013, as if he decides that the rates that are then proposed are the provision which it seeks to insert affects the advocate’s so completely unattractive that he is not prepared to freedom of contract. The standard terms already provide carry on with that work? These are questions that all for their amendment within the terms of the contract. those engaged in this kind of work would wish to be There is a contractual power to do this, but it is not answered and I hope very much that the Minister will entirely unqualified; this is not the place to debate how be able to do so. extensive that power is. However, when it comes to Lastly, on the point raised by the noble and learned altering the terms for payment, I suggest that it is a Lord, Lord Brown, about jury trials, I come from question of degree. The stage may be reached when Scotland where, as it happens, there is no right to a the amendment proposed, purportedly within the contract, jury trial. It is up to the prosecutor to decide whether is so great that it cannot be altered without the advocate’s the offence should be tried by a judge alone in the agreement. In that situation, if agreement is not reached, sheriff court, with a sheriff and a jury, or in the High the advocate would have a right to terminate the Court with a jury. The length of sentence is affected by contract. that decision, but there is no reason why a case of very That leads me to consider what the effect would be considerable complexity should not be tried before a if the amendment goes through. As I understand it, it single sheriff. The accused has no right to object to would tie the advocate who agrees to this form of that. It raises the issue as to whether there is not contract to the rates set out in Schedule 6. That being considerable force in the point of the noble and learned so, those rates can then be amended by a further order Lord, Lord Brown, that we are reaching the stage without the need for the advocate’s agreement. There where a jury trial in some of these cases may need to is no need to alter the contract: what one does is to be reconsidered. look at the schedule and alter the schedule by a further order. Once the advocate is tied in to such a contract, he or she has no escape from it, however much the Lord Faulks (Con): My Lords, my noble friend reduction in the rates may be. As there is every prospect, Lord Carlile has summarised the arguments against if one is realistic, that the cuts now proposed will not the statutory instruments with his usual clarity and be the last, the stage could be reached when the rates vigour, and I do not wish to weary the House with will become wholly uneconomic—indeed, some may repetition. I would, however, like to add a few words say that this stage has already been reached. That and in doing so should declare an interest as a practising amendment is a profoundly unattractive change in the barrister. I am not a barrister who does criminal cases 881 Criminal Defence Service Order 2013[11 DECEMBER 2013] Criminal Defence Service Order 2013 882 and I very rarely do cases where legal aid is involved. doubt that the criminal Bar is a profession in crisis. However, I have sat until recently as a recorder in the However indifferent the public may be to the individual Crown Court and am thus familiar with our criminal circumstances of barristers, there will, I apprehend, be justice system. far more concern if the system as a whole is degraded. I entirely understand the desire on the part of the Very high cost cases are now likely to be ignored by Government to reduce spending on legal aid. The the most competent barristers. There will thus be a LASPO Act was the Government’s first move in reducing position where the most complex cases will be conducted, costs. There is no reason why lawyers should be in any if the defendants are represented at all, by barristers way immune from austerity, nor should justice be with considerably less experience and competence than recognised as some sort of special case, up to a point. is appropriate. When cases are subject to the control of Nevertheless, what troubled many noble Lords in an experienced judge assisted by experienced barristers, scrutinising that Bill as it went through the House was as we have heard from noble and learned Lords, the the risk of real injustice not to lawyers but to those outcome is very often a significant saving in costs who encountered the system and would be at risk of through the sensible use of admissions and a clarifying being denied access to justice. The Minister reassured of issues. This results in a saving on the legal aid bill those of us who were anxious, particularly in relation and, just as important, a streamlined and well conducted to Part 1 of the LASPO Bill, as it then was, and made trial process. That is unlikely to remain the case. some important concessions. However, the impact of It is not only barristers who are alarmed at the the Act is going to need careful watching to ensure effect of these changes but, as we have heard, judges, that real injustices do not result. who will have to preside over trials in the future. Our criminal justice system, for all the criticisms that it attracts from time to time, is still held in very high 9.45 pm regard not only by the occupants of this country but The Secretary of State has now proposed further by those in other countries. Its reputation, hard won cuts in the legal aid budget, focusing principally, but as it is, is now at serious risk. not exclusively, on criminal legal aid. Perhaps I may I have referred to the Secretary of State. He of say how much I am looking forward to the response of course will also have close regard to his obligations as the party opposite to these proposals. During the Lord Chancellor, requiring him to ensure access to passage of the LASPO Bill, it was often said by the justice. I fear that the fat has been so far removed from party opposite that, had it won the last election, it the carcass of criminal legal aid that these further cuts would have made significant cuts in the legal aid really threaten our justice system. There are changes budget, but it was not apparent from the stance that it and improvements that can no doubt be made in the took to the proposals in the Bill where those cuts disposal of very high cost cases, but I venture to doubt would in fact have occurred. On a number of occasions, that a simple, crude reduction in fees is the way to go the noble Lord, Lord Bach, whom I see in his place, about making the necessary changes. Here, I entirely indicated that the cuts would have come in criminal agree with what the noble Baroness, Lady Deech, said. legal aid. I think that the House would regard it as The changes in welfare are based, as she rightly said, important for the party opposite to be clear—if not on on a principle. It is difficult to discern what principle the detail then certainly in general terms—as to how lies behind these changes. those cuts, necessary as they were, would have fallen on criminal legal aid. I ask the Minister to consult the Secretary of State for Justice and Lord Chancellor and to think very The previous Government were in the habit of carefully about whether the effect of these changes—short, publishing figures for the top earners, in both criminal medium and long-term—are really worth the apparent and civil work, in receipt of funds from legal aid. This saving. was no doubt seen to help in the softening-up process in relation to public opinion before any changes were made to legal aid funding. The figures were usually Lord Mayhew of Twysden (Con): My Lords, I misleading. Unfortunately, this Government have followed acknowledge that I have something to declare, which suit in that respect. is that many years ago I used to conduct criminal cases In a sense, barristers are an easy target; the average as a member of the Bar. I recognise very well what the member of the public has better things to do than drill noble and learned Lord, Lord Woolf, was saying about down for the truth about their earnings and is happy, the fee of two pounds four shillings and sixpence. The for the most part, to accept some of the stereotypical difference between the scenario that he described and pictures of an overpaid man or woman in a wig quietly my own was that he described people of the highest milking the legal aid system. However, I acquit the eminence accepting two pounds four shillings and Secretary of State of describing barristers as “fat sixpence as it was their duty. I was at the bottom of the cats”. He has been at pains to emphasise that he is not heap—the opposite—and was very glad indeed to set upon destroying the criminal Bar, and I entirely have it. accept that that is not his intention. The debate so far has been of the highest quality Over the years, successive Governments have attempted and I shall be very brief as I do not wish to diminish to cut the fat off the criminal justice system and, as we the impact that it undoubtedly had on my noble friend have heard this evening, it is beyond argument that who is about to reply. The trick that the Government criminal barristers are, for the most part, very moderately have to fulfil is that they have to make provision to paid. They are self-employed and have little muscle or reduce the deficit, and must do so in a way that avoids obvious appeal in any negotiating process. There is no unintended consequences. I believe that it is a tragic 883 Criminal Defence Service Order 2013[LORDS] Criminal Defence Service Order 2013 884

[LORD MAYHEW OF TWYSDEN] I was also grateful that mention was made of the fact that the reduction of 30% that has been described Lord Chancellor’s responsibility in terms of his oath. this evening will have an unintended consequence. Members of this House will be familiar with it, but I Fewer people will take the work and the consequence shall repeat it so that the House and others may be will play over to the task of reducing the deficit. It will reminded of what the oath of the Lord High Chancellor increase the deficit for the reasons that high judicial of Great Britain is. The oath that the current Lord authority has emphasised again tonight. Chancellor swore was this: I want to add one additional circumstance that I “I … do swear that in the office of Lord High Chancellor of can foresee. If you are doing a very long case which, as Great Britain I will respect the rule of law, defend the independence my noble friend Lord Carlile described, is one of high of the judiciary and discharge my duty to ensure the provision of complexity, you become associated in the minds of resources for the efficient and effective support of the courts for which I am responsible. So help me God”. instructing solicitors with that case—“Oh Mr Mayhew will not be available; he is tied up in this case which has How does the Minister contend, on behalf of the gone on for months and with many more to come”. Government, that that oath by the Lord High Chancellor When you finish that case, you will find typically that of Great Britain is being discharged? there is no work left and you will have a long gap in Let me help the House as to why I am concerned your practice before you are instructed again. That about whether the Lord Chancellor has taken that will bear on the decision of the advocate as to whether oath into account in bringing these orders forward. I to accept the fee that is offered. That point has not know that when he gave evidence to the Select Committee been made tonight, but it is one that is similar in he seemed to suggest that it was not possible to grant character and perhaps easily overlooked. access to justice to all people at all times. That, if I The Secondary Legislation Scrutiny Committee, in may respectfully say so, is a fundamental misunderstanding its 18th report, has drawn attention to what has been of the Lord Chancellor’s role. It is his duty to ensure said about these measures by three professional bodies. that there are sufficient resources so that access to It has called for a more robust defence, and I look justice for all people at all times can be equally made forward very much to hearing from my noble friend available. Moreover, the wounds that the changes proposed that the Government believe they have a more robust in these orders will inflict may so damage the availability defence to the many points of criticism of profound weight of good access to justice that the cost will be very that have been put before your Lordships this evening. difficult to bear. There are those who say that they know the cost of everything and the value of nothing. Let us be clear: the value of our justice system is very Baroness Scotland of Asthal (Lab): My Lords, this high indeed. has been an extraordinary but sad and rather sobering debate. I am grateful that, from the powerful opening by the noble Lord, Lord Carlile, until the noble and 10 pm learned Lord, Lord Mayhew, sat down I have found no We have already had significant cuts in costs. Noble reason to disagree with one word that has been said, Lords have talked about the 30% cut, but the House save that I shall make a few comments a little later to will be aware that in more serious cases such as those help clarify the views of these Benches for those who of murder, rape, historic sexual abuse, non-very high sit opposite. The reason I say “sad and sobering” is cost cases of fraud and kidnap, fees have been cut that we should be very clear that this is not a parti pris three times since October 2010. Some fees in murder debate. cases have been cut by 59%, in rape cases by 70% and So far we have had the benefit of hearing from two in non-VHCC fraud cases by up to 83%, so this 30% former Lords of Appeal in Ordinary, one former Lord cut comes on top of the very significant cuts which Chief Justice, the current regulator and now a very have been made since 2010, when our Government eminent member of the Bar and recorder. I declare my were last in place. own interest as not only a member of the Bar, a recorder Fairness and equality are right. We in this country and deputy High Court judge, but someone who is in believe that because of the changes we have made over practice and who, although I have not taken legal aid the past 30 or 40 years, the diversity of the Bar and the criminal cases since leaving Government, certainly did diversity of the judiciary, which has started but which in the past. The voices I have just spoken about are perhaps is not yet complete, has been of great benefit joined now by two former Attorneys-General of different to our nation. Increasingly, our profession reflects the complexions politically and, some would say, physically. people it serves. I am therefore grateful to the noble This is something upon which those who are committed Baroness, Lady Deech, for raising the issue of diversity. to justice and the rule of law and concerned about the There was a time when in order to be a member of the quality of justice in our country have now spoken, and Bar, you had to be a person of independent means so far we have spoken with one voice. because it was by no means assured that the money It is very important to hear the echo of what has you would derive from your profession would be sufficient been said, because it is an echo of real alarm and to keep you in a manner that was reasonable as concern. I was struck by the comments of the noble opposed to even comfortable. That changed to allow a Baroness, Lady Deech, about the effect of retrospection, greater number of people to join our profession. I an issue I had intended to alight upon. I was struck by joined the Bar in 1977. I was a person without comfortable the description of the noble and learned Lord, Lord means, state educated, non-Oxbridge and with very Woolf, when he talked about these provisions as “a little opportunity, some might have thought, of succeeding. gangrenous wound”. It is a description with which, Looking at the position we are now faced with, I must regrettably, I wholeheartedly agree. ask myself what a Patricia Scotland of today would 885 Criminal Defence Service Order 2013[11 DECEMBER 2013] Criminal Defence Service Order 2013 886 think of her chances of surviving in this new regime. long, unsociable hours and tackle difficult and, Will we have as diverse a profession in the future or as we have heard, complicated issues of public not? I think that there is only one answer to that. If we importance. want fairness and parity of treatment then, to a certain These further swingeing cuts are simply unsustainable extent, we have to pay for it. and the reality is that they will deter talented individuals There is a moment when we have to decide what from middle and low income backgrounds from entering our values are, what justice means to us, and whether or staying within the profession. Instead, the criminal justice in our country is or is not for sale. I hope that Bar will once again become the preserve of the our view is that justice is not for sale, that we understand independently wealthy. Those without independent its value and not just its cost, and that the Government wealth to sustain them will turn to more financially will think very carefully indeed before they take the rewarding areas of practice or to another profession matter forward, for all the reasons given by noble altogether; we heard about the alluring effect of Lords who have spoken already. The points have been commercial law. They will do so not out of greed but validly made and I thank those who have spoken simply out of a desire to receive an income comparable because, as I listened to them, I have been able to tick to the earnings of other equivalent professionals. off every single thing that I wanted to say, save and Yet instead of treating criminal barristers like other except for those which I know my noble friend Lord professionals, the Government have asked them to Bach intends to cover, and therefore I will not trouble bear wholly disproportionate cuts to their incomes. As the House. However, I ask the Minister to think very the Criminal Bar Association has pointed out in its carefully, and I add my voice to each and every question correspondence with Members of your Lordships’ he has been asked without repetition. House, no other public service professionals have been asked to shoulder cuts on the scale proposed by the Lord Alton of Liverpool (CB): My Lords, perhaps a Ministry of Justice. I think that the noble Lord, Lord non-lawyer might be permitted to detain your Lordships’ Carlile, was quite right to say to us at the very outset House for just a few moments. Although I am not a that this is simply crude. lawyer, I have a daughter who has this year qualified As a consequence of these measures, the criminal as a barrister and should declare that. I was particularly Bar will see an exodus of talent. The results will be far struck by what my noble friend Lady Deech said in her reaching and the consequences borne by society as a remarks earlier on, when she reminded us of the whole. That is my second point. People accused of deleterious effect that the Government’s policies may serious crimes face the prospect of not having anyone well have on this rising generation of young lawyers. of sufficient quality to represent them; and there will Taken together with what the noble and learned Lord, also be a lack of experience to prosecute the more Lord Woolf, said in his remarks about the high ideals serious cases in due course. As we have heard, it will that so many lawyers have when entering the legal also influence the make-up of the Bench as well as the profession, in pursuing this vocation, I think that the years pass. Government need to listen extremely carefully to the It is all too easy to forget the important part that very distinguished contributions that have been made criminal legal aid has played in ensuring a fair and just this evening and with such force. society because the criminal law is not something that I support the noble Lord, Lord Carlile, for two impinges on the everyday life of most of us. Yet when principal reasons. The first is that I think that the liberty and the protection of the public are at stake, it Government’s policies will significantly impede the is paramount that both the defendant and the state possibility of younger people from more disadvantaged have quality of representation. If we accept the backgrounds from entering the law—the point that fundamental principle that all defendants are innocent the noble and learned Baroness, Lady Scotland, has until proven guilty, and may not have actually done just made. Secondly, having represented and been what they are accused of, we should ask ourselves this associated with inner-city areas of Liverpool since I simple question: “If I found myself in court accused was first elected to the city council there as a student of a serious crime and was trying to defend my innocence, some 40 years ago—at about the time when the noble who would I want defending me?”. If the answer is a Lord, Lord Carlile, began to practice at the Bar—I am highly qualified, independent and dedicated advocate, acutely aware that social justice does not just require it has to be understood by us all that the price of these access to health, welfare and decent housing: it also measures is that we will forfeit that, and justice will be requires access to law. That was a point that I made the loser. It is for those reasons that the arguments of several times during the course of the LASPO legislation the noble Lord, Lord Carlile, deserve our support tonight. and return to again tonight. Over the past few decades, much has been done to Lord Thomas of Gresford (LD): My Lords, it is a improve the diversity of those working at the criminal privilege to follow the noble Lord and the comments Bar. However, the further reduction of barristers’ that were made in particular by the noble and learned remuneration proposed by the Government has alarming Baroness, Lady Scotland. Referring back to my own social mobility implications. Criminal banisters have beginnings, I was one of those who, having left university, already sustained a disproportionate reduction in was not in a position to go to the Bar as I had wished. remuneration over the last decade. The noble and I became a solicitor, and as a young articled clerk I leaned Lord, Lord Mayhew, and others have rightly instructed Lord Elwyn-Jones, leading Emlyn Hooson, emphasised the dramatic effect that a devastating 30% in a number of cases. I was attracted by the lustre that reduction will have on those who are now working in surrounded the Bar at that time. Elwyn-Jones was a the profession. In return, they are expected to work Nuremberg prosecutor, as was David Maxwell Fyfe, 887 Criminal Defence Service Order 2013[LORDS] Criminal Defence Service Order 2013 888

[LORD THOMAS OF GRESFORD] advice of people who know what they are talking which my noble friend has recently had brought to his about. When I see some statements from the Ministry attention. Maxwell Fyfe really wrote the European of Justice it annoys me so much because it is clear that Convention on Human Rights. It was the attraction of they do not know what happens at the coal face. They this profession that drew me, after serving as a solicitor do not understand how the legal profession works. I for five years, to pay my 100 guineas to my pupil ask him to think again and take back these measures. master and to enter on a different track as a barrister. I played my part thereafter in civil cases, but more Lord Bach (Lab): My Lords, I declare an interest, often in criminal cases, prosecuting, defending and rather an old one, in having been a junior member of later sitting on the Bench as a recorder. I was proud of the Bar doing criminal law, pretty uniquely, for many the system in which I played such different roles. I was years. I was calculating a few minutes ago that the last proud of the way in which justice could be achieved time that I practised was some 14 years ago. I am not a under the system that we had inherited over so many Queen’s Counsel, although once or twice in this House centuries. I am really sad today—a word that has been I have been called that inadvertently—and much worse used by a number of people—that we seem to be besides—and I have never sat. If anything, I speak as coming to the end of that great tradition at the Bar. I someone who was once a junior criminal barrister. know that my noble friend says no, but that is not how The House owes a huge debt to the noble Lord, I see it. I agree with the noble Baroness, Lady Deech, Lord Carlile of Berriew, for tabling these two Motions. who talked about the suffocation of the criminal Bar His speech and the speeches of noble Lords who have by these proposals. That is what I think it is. spoken have attacked these proposals with passion I do not wish to repeat everything that has been and in trenchant terms. I regret only that this important said so well and ably, and with his usual eloquence, by debate is being held effectively at dead of night, when my noble friend Lord Carlile. He has been an opponent the points made demand a greater audience at a better on many occasions but I have also worked with him on time of day, because the principles that they concern a number of cases. We have worked together on some are of huge importance. All that I can say is thank serious matters. I want to focus on the way in which goodness for Hansard. entry to the Bar will be so curtailed by these provisions. My position on these regulations is fairly simple. When I go to see young people being called to the Bar Some cuts to criminal legal aid are justified; some cuts at the various Inns of Court, particularly Gray’s Inn, to VHCC costs are also justified. I had to make such it saddens me to look at them and their parents, who cuts some years ago in criminal legal aid and VHCC are so proud of them for what they have achieved and rates. I do not resile from having to do that—any how they have worked to get their degrees to become Government would have to do that at a time of economic qualified. Finally, there they are in their fresh wigs and difficulty. But frankly the percentage of cuts that is gowns, all ready to start on a career which has been so being proposed—the crude and absurd figure of 30%— fulfilling in my own life—they are ready for it but there seems to be much higher than any figure for which I are no openings. was responsible and which can possibly be justified. I Today, if you wish to get a pupillage, you will say “absurd”, because quite a lot of the burden of this struggle. Very properly, you receive a minimum level of will not necessarily fall just on eminent Queen’s Counsel payment, £12,000 a year, as a pupil in the common law who lead in these cases, but on junior barristers, either field and criminal field. Last year, a commercial set those being led or who sometimes in these cases are advertised that it was prepared to pay £65,000 per year the sole advocates for a defendant. It will fall too on to a pupil. That, I think, illustrates the huge gap solicitors, which has not been mentioned: that is, between the commercial Bar and the Bar with which I solicitor advocates in court and solicitors who have to am familiar. I accept so much of what the noble and do the preparation for these very long cases. The learned Lord, Lord Brown, said—that we deal with damage that will be done to them has been described people’s lives, and not just with money and contractual extremely eloquently already. obligations and so on, as the commercial Bar does. We If my speech now becomes slightly less generous to make a difference to people’s lives in the profession the Ministry than others have been, I hope the House that we follow. These young people who have come so will forgive me, but one is left with a fairly strong far will not get the pupilages—and if they do, will they impression that the Government really do not care ever get the tenancies? very much any more whether there is a credible, high- quality legal profession practising criminal law, either now or, more importantly perhaps, in the future. We 10.15 pm should not be surprised by what I call this recklessness. I am now leaving the Bar for various reasons. One One must see it in context. reason is that I do not want to be around to watch the Anyone who has followed the Government’s approach struggle that will take place at the criminal Bar and to legal aid from almost the day they came into family Bar as chambers disintegrate because there is office—a point made by the noble Lord, Lord Carlile— not enough income as a result of the changes that we will know that almost immediately they removed the have seen over these past few years. I just do not want Legal Services Commission’s grants for young trainee to watch it. I do not want to have to deal with the sort lawyers in social welfare law firms and advice centres. of disintegration that I foresee. Anyone who has followed this approach will know I appeal to my noble friend Lord McNally to think that the Government do not care very much about the again about these measures that are being brought in consequences of their actions, culminating in the today, to consult properly on them and to take the tragedy—my word—that is Part 1 of the Legal Aid, 889 Criminal Defence Service Order 2013[11 DECEMBER 2013] Criminal Defence Service Order 2013 890

Sentencing and Punishment of Offenders Act, which Lord Beecham (Lab): My Lords, I rise from the has already come close to destroying access to justice lower ranks of the legal profession and many years for hundreds and thousands of our fellow citizens. ago was apt to brief members of the criminal Bar, few—with the exception of the late and much lamented To remove legal aid from social welfare law was Lord Taylor of Gosforth—of the eminence of many tantamount to an attempt to kill it off. Was it ideological? of those who have spoken tonight. I ought therefore to It seems that way. Why would any Government have declare my interest which is, of course, registered. I done something so ridiculous in financial terms and so also have, like the noble Lord, Lord Alton, a paternal monstrous in social terms, destroying a system of law interest because my daughter is a barrister. She also that gave some access to justice, often in the form of sits as a part-time deputy district judge but she is not fairly cheap legal advice, to poor people at the point in at the criminal Bar. their lives when they needed it and in order that their lives could be put back on track? In exactly the same In the earlier debate tonight, I raised the issue of way that many noble Lords and noble and learned how the Government go about or do not go about Lords have spoken tonight about how criminal law consulting on matters of great significance. We are in affects people’s lives, we must not forget how those exactly the same position in relation to the present acts of legal advice on housing or welfare benefits that proposals. The noble Lord, Lord Faulks, on the other have been given to people on legal aid also affected hand, perhaps to protect himself from his colleagues, their lives in very important ways, often so that their threw the question at the Opposition regarding our lives could be put back on track. stance. If he looked at the record he would have seen, as my noble friend Lord Bach’s reply has indicated, It was a policy of supreme ignorance as well as that there were some cuts under the previous Government utter recklessness. Now we see that Act in practice, —indeed, my noble friend Lord Bach put through a this hard-nosed, ignorant approach to our law 5% cut in fees. That is one-sixth of the present cut this continues—all of it forecast in the debates that took Government is inflicting. many hours in your Lordships’ House some time ago. Law centres have been allowed to close. The exceptional We made it very clear in discussions over the legal cases provisions of the Act are now so rarely allowed aid bill that there is a need to look at the cost of the that they might as well not exist. The anecdotes and whole system of justice, not to isolate a particular part evidence as far as domestic violence is concerned are like this and impose a massive swingeing cut on it. One something that this House will really have to consider can look, for example, at the Serious Fraud Office at some stage in the future—all the net results of this which unfortunately again is in the news, having again Government’s approach to legal aid from the moment incurred a significant cost, perhaps because it is they were elected. underresourced. In all events, there are other areas under the auspices of the Ministry of Justice that Here we are again. Anyone in legal circles, practising would repay attention and if we are looking for savings— lawyers who thought that they could just keep quiet and it is accepted that there have to be savings—then while the first stage of legal aid cuts was taking place, we ought to be looking not just at this end of the because all that was about was a few solicitors who did system but at the system as a whole to find sensible this kind of work or advice centres that advised in civil savings that would not impact on access to justice. law, and that criminal law legal aid would be seriously touched, could not have been more mistaken. At least the Bar Council and the Law Society were very much 10.30 pm part of the fight against the LASPO Bill and they In this case, we have proposals which have not been should be commended for that. However, we are in subject to consultation. They were not discussed with this position now with this only the first of a number the Criminal Bar Association, the Bar Council, nor of orders that the House is likely to have to consider. the Bar Standards Board. There is no impact analysis The Government are not satisfied with the havoc—again, beyond what passed for one—pretty flimsy as it was—in I chose my word carefully—they have already caused respect of the original Transforming Legal Aid White and are causing day by day and have turned their Paper, 18 months or two years ago. attention in a very real way to criminal legal aid and To add insult to injury, as other noble Lords have then potentially to destroying a great deal of the pointed out, the Government have entered into the principles behind judicial review. All of which, no dangerous territory of, effectively, retrospectively changing doubt, will come before us in due course. people’s contracts. That is, frankly, outrageous in any These are all to be put into effect, at best, by field. It is an appalling thing for a Government to do statutory instrument. There is no primary legislation to the justice system, and I very much hope that they involved here, so the Government tell us. We have will look again at that. They have made a tentative these big changes taking place with all the restrictions move, because they tempered slightly the cuts in fees that statutory instrument legislation has for Parliament. for transitional cases but, as others have pointed out, All the while, this country’s deserved and historic it still seems to be open to members of the Bar to reputation for having a legal system that protected decline to proceed with a reduced fee. As others have everyone in its own way and allowed everyone some said, that seems likely to lead to increased costs. access to justice is seriously threatened by a Government The Minister must tell the House tonight how the who—and I do not like having to say this—seem to Government will respond to the Bar Council’s concerns have so little idea of what is actually important. Instead as to whether any future changes will be made subject of treasuring our legal system they are in serious to proper consultation. One difference between this danger of demeaning it. situation and that obtaining under the previous 891 Criminal Defence Service Order 2013[LORDS] Criminal Defence Service Order 2013 892

[LORD BEECHAM] I have spoken with somebody who is very active in Government, to which the noble Lord, Lord Faulks, representing experts who give evidence in the family implicitly referred, was that those matters were discussed. courts, but the same people often also undertake criminal They were negotiated. I dare say that it was felt that work. She told me that, in the last few days, she has the Government had the stronger hand in the negotiation, spoken to two medical experts who will no longer but, nevertheless, there was consultation and a position undertake work in the criminal courts. She has spoken was, however reluctantly, agreed. That is not the situation to a solicitor who is finding it extremely difficult to here. It has never been attempted in this case thus far. I find expert witnesses to give evidence in the criminal hope that we may have some assurances from the court. He quite understands that and thinks it will be Minister on that account. increasingly difficult to find experts. We must not The Secondary Legislation Scrutiny Committee has, forget that this is not just a matter for the Bar but for as we have heard, made it very clear that it does not people who play a crucial part both in very complex feel that the Government have made their case for cases and in more general ones, because the cut applies those changes and that they should do so. Others have whatever level of case they are operating in. That can pointed out that it is wrong just to cite the figures, and only impact on the way the system works. the noble Lord, Lord Carlile, referred to the fee figures As ever in this House, this debate has involved a as being gross and not referring to the fact that there huge amount of experience at the highest level of our are substantial overheads. I think that he said that justice system. However, it is not just this House that is VAT was included; he may be mistaken in that respect. indebted to the noble Lord, Lord Carlile, for raising In any event, as far as savings are concerned, it should these problems and initiating the debate. Everyone be noted that counsel will be paying tax. Counsels of who has an interest in our system of justice is indebted the eminence of the noble Lord, Lord Carlile, will be to the noble Lord and other noble Lords who have paying tax at 40%—hopefully, a little higher, in due spoken. That means everyone, because all of us have course. The net savings to the Exchequer, in the bald an interest in our system of justice and securing access assertions of the documents, do not refer to the fact to it. that a substantial loss of tax revenue would also occur, I have referred before to the book The Pursuit of so the net savings to the Exchequer are not as large as Justice by the noble and learned Lord, Lord Woolf. the Government might claim. The pursuit of justice is what those of us who have participated in tonight’s debate—and the Minister—are As the Criminal Bar Association points out, an interested in. The pursuit of justice will be made more inquiry is going on at the moment commissioned by difficult if the Government press on relentlessly with the Government—the Jeffrey inquiry into criminal the changes we are debating tonight. There is still time advocacy. One might have thought that a sensible for them to think again before they inflict great damage Government looking at that problem would have awaited on the system in which all of us have, hitherto, taken the outcome of the commission’s work; the Government such pride. have chosen not to do so. Will the Government look at fees again in the light of what the commission produces? It would have been better to have waited; if they are insisting on going ahead with the changes now, will The Minister of State, Ministry of Justice (Lord they review the situation in the light of the Jeffrey McNally) (LD): My Lords, like the noble Lord, Lord inquiry’s report? I assume that that will take some Bach, I have, on a number of occasions, been promoted time. Will they also look at the impact of these changes above my abilities in terms of legal qualifications. I not only on costs but on how cases are handled, the have been referred to this evening as “learned” and I length of time that is taken and the problems that may was recently introduced, at a conference, as “Lord arise by eminent, senior counsel refusing to undertake Justice McNally”. My more mundane task this evening that work? is to set out the Government’s position on the Criminal Legal Aid (Remuneration) (Amendment) Regulations The longer-term effects on recruitment to the service, 2013 and the Criminal Defence Service (Very High to both prosecution and defence counsel in complex Cost Cases) (Funding) Order 2013. Both these instruments cases and, later, into the judiciary, have been touched were laid before the House on 1 November 2013. upon by other noble Lords. These effects will not Before I get into the detail of the two instruments, I become apparent immediately but there is a real concern want to set the legal aid transformation in context, as about how those things might be affected. was requested by the noble and learned Lord, Lord The discussion tonight thus far has been—for Hope of Craighead. The need for reform of legal understandable reasons, given the history of those aid-funded services to ensure a cost-effective, sustainable participating in the debate—exclusively devoted to the legal aid system is recognised by all the major political impact of these proposals on the criminal Bar. That is parties and has been the subject of debate for a decade a major issue, but there is another group affected by or more. It was the Labour Party that instituted the the regulations: expert witnesses. We had some debate, Carter review. It was the Labour Party that made cuts during the discussions on LASPO, about the cuts for in legal aid prior to 2010 and promised further cuts in expert witnesses of broadly 20%. This is differentially its 2010 manifesto. During the passage of LASPO, it higher in London, because London expert witnesses said that it would not cut civil legal aid but would cut are, in many cases, being paid significantly less than criminal legal aid. Now, it does not like the legal aid those in other parts of the country. They cover a wide cuts. I still wait to hear whether the Labour Party range of professional services, many of which apply to would restore the legal aid cuts if it were to come into both criminal and civil cases. office in 18 months’ time. 893 Criminal Defence Service Order 2013[11 DECEMBER 2013] Criminal Defence Service Order 2013 894

The fact is that changes in technology and its of the changes in the scope of criminal legal aid for increasingly fundamental role in the functioning of prison law, which is being implemented through separate the criminal justice system demand the kind of changes secondary legislation. to working practice and business models seen throughout the public and private sectors in recent years. The 10.45 pm introduction of alternative business structures and an Noble Lords will know that this Government have increasingly well informed customer base are examples given priority to repairing the public finances. Every of changes that present their own challenges, and part of government has had to face the brutal reality which the legal professions must meet. Those changes that we are not as well off as we thought we were and are accompanied by the fact that the number of businesses we cannot borrow our way out of trouble. The Ministry providing criminal legal aid services now exceeds demand of Justice will see its budget reduce by nearly one-third for such services. To put it bluntly, there are too many between 2010 and 2016. No area of our spending has lawyers seeking the work available. New entrants to been immune from scrutiny in these circumstances. the market, new technologies, new working methods Our legal aid system is a major part of the department’s and oversupply in relation to demand are all factors budget, and it is therefore appropriate that we make that force change in any industry, sector or profession. savings there, too. Sometimes, when I hear some of the I urge the Bar to recognise that the change is necessary heartbreaking stories about the legal profession, I to deliver efficient and effective legal services in new think of the 20,000 people that I have had to see go and innovative ways. from the Ministry of Justice in the past three years as For our part, the Government recognise that the part of that programme as well. services the profession delivers are a vital component The policy implemented by these instruments of our legal system and, where necessary, ensure access was the subject of public consultation for eight weeks. to justice and equality before the law. That is why, Transforming Legal Aid: Delivering a More Credible looking more widely, the Lord Chancellor has asked and Efficient System set out a package of reforms Sir Bill Jeffrey to review the provision of independent intended to ensure a sustainable, efficient and criminal advocacy in the courts of England and Wales, credible legal aid system. Around 16,000 responses as just referred to. That review is intended to consider were received from representative bodies, practitioner the experience, skills and future structures that might and other organisations, individual members of the best support the continuing provision of quality, judiciary— independent advocacy services. However, alongside the need to ensure access to justice and a healthy, Lord Carlile of Berriew: My Lords— sustainable legal sector, the profession must also recognise that the Government are obliged to seek the best possible value for money from the legal aid budget. Lord McNally: It is very late and noble Lords have all had a very good time. I turn now to the instruments that are the subject of this debate. They apply a reduction of 30% to the legal Lord Carlile of Berriew: It is very late, but this is an aid fees paid to litigators and advocates in what are important debate, as has been made clear. I have one known as very high cost criminal cases, although I will question to ask. If my noble friend thought it right accept the description of them by the noble Lord, that there should be an extensive consultation on the Lord Carlile, as being very high complexity cases as generality of legal aid, why was there no consultation well. This will save £19 million per annum in a steady on VHCC cases? state. The noble Lord, Lord Carlile, will be familiar with these cases; as he told us, he has undertaken this sort of work in the past. For the benefit of others, I Lord McNally: This is the first time that VHCC should explain briefly that VHCCs are the longest and cases have been cut by this Government. I do not most expensive Crown Court trials funded by legal think that they were cut by the previous Government. aid. Under the current system, they are those cases Were they? I stand corrected. which are expected to last more than 60 days at trial; There was a consultation and this has not come out the overwhelming majority of them relate to fraud of the blue. I have been talking to the Bar for three and offences of one type or another. a half years about these cuts. I hope we do not get an interruption from my noble These cases are managed by the Legal Aid Agency friend Lord Phillips. He came in very late. under contracts with service providers, with work being agreed in three-month stages in advance as the case progresses. Typically, these cases are complex and Lord Phillips of Sudbury (LD): I was not going to. run for a number of years; the amount of preparation involved can be enormous. Although the debate today Lord McNally: Okay, I am sorry—not guilty. has concentrated on fees in VHCCs, I should also mention, for completeness, that the remuneration regulations also make two other changes to the criminal Lord Phillips of Sudbury: Does the Minister want legal aid scheme. As the noble Lord, Lord Beecham, me to? indicated, they reduce fees paid to most expert witnesses involved in legally aided criminal cases by 20%. They Lord McNally: No. These matters have been discussed also amend the category of work in which a provider over a long period. We received 16,000 responses of legal aid services can claim a fee. This is a consequence from representative bodies, practitioners and other 895 Criminal Defence Service Order 2013[LORDS] Criminal Defence Service Order 2013 896

[LORD MCNALLY] I hope that the Bar itself thinks very carefully about organisations, individual members of the judiciary, how we navigate through these matters. I believe that Members of the House of Commons and the House when a very distinguished profession talks about going of Lords, individual solicitors and barristers, and members on strike, it crosses a Rubicon that is very difficult to of the public. The majority of responses did not re-cross. support the Government’s original proposals for As for the idea of funding legal aid from restrained reform, although there was some support for particular assets, it may be that one or more parties might put measures. Some, including the Law Society, specifically that as a suggestion in their manifesto; maybe we will acknowledged that VHCCs were an area where the see that, although I remember the debates in this Government might be able to make savings. House about removing jury trial from High Court cases. We have had lots of suggestions but none with As we said in responding to consultation, the Legal the immediacy with which we can address the issue. Aid Agency analysis of fraud VHCCs shows that the average value of a contract is £1 million and such I accept the point that was made about the present contracts run for three or four years on average. Even system being bureaucratic and the hourly rate-based with a 30% reduction in fees VHCCs will remain high- system not being ideal. I cannot remember which value, long-duration cases that, because of the way noble Lord it was—was it the noble and learned Lord, these cases are managed with regular phased payments, Lord Woolf?—but one of them got very close to bring certainty of income for providers for the extended suggesting one case, one fee, which was one of the first period in which they are instructed in these matters. things rejected by the Bar when we were having those That is why the Government believe that a reduction negotiations that apparently have never taken place. in fees is sustainable in this area. The fact is that we have explored alternatives, and I have no doubt that ideas will continue to be floated. We believe it is right that our reductions should I have said to my own party and I say to all three affect advocates who receive higher levels of legal aid parties that, after what has been a very painful period, fee income, rather than those who are on much lower fee we should look at how we handle legal aid. As we have income. In 2012-13, more than half of those with fee said so often, although to listen to some speeches you income of more than £200,000 worked on VHCCs, would not believe it, since 2010 to when this exercise is compared with just 20% of those with fee income of finished, which is some three or four years away, legal between £100,000 and £200,000. Just 4% of barristers aid will have been cut from just over £2 billion to who earned below £100,000 worked on a VHCC in £1.5 billion. That leaves us with a legal aid expenditure 2012-13. about which I will not bandy words as to whether it is Concerns have been raised about the impact of this the most generous in the world, but it is an extremely fee cut on existing contracts. It is precisely because generous allocation of money by the taxpayer. It is these cases run over a number of years that we must incumbent on all parties to see how we can look at ensure that the ongoing fees represent value for money. that kind of sum and get a better and more efficient We are therefore reducing rates in existing contracts outcome from it. That requires a willingness to where cases are at a relatively early stage and where the contemplate change and flexibility from all parts of ongoing costs are likely to be significant. I cannot give the legal profession. I would hope that we can look at any assurances about changing the position that we it in that way. have taken on this because we are under responsibilities I hear what my noble and leaned friend Lord Mayhew to make these cuts. said about the sacrifices that the high-cost barristers make in losing other business and being out of the We have taken a fair and balanced approach to loop. However, even with a 30% reduction in fees, applying the new rates to existing contracts. The new VHCCs will remain of high volume and long duration, rates do not apply to contracts where cases were at with regular payments that bring certainty of income trial on 2 December or those that, before 2 December, to providers. We believe that it will continue to attract were set to come to trial on or before 31 March 2014. lawyers once they come to see the points that are on These include cases that had a date set at any point in offer. the past for trial on or before 31 March 2014 but that There is no sign of a lack of young people entering date has been vacated and a new date fixed, even if the profession. We all wish the daughter of the noble that trial date is after 31 March 2014; where the trial Lord, Lord Alton, well in it; she certainly knows has taken place but there remain outstanding proceedings, where to come for advice. such as confiscation proceedings; and where the original trial has concluded but a retrial will take place, even if We are looking at the review under Sir Bill Jeffrey. the retrial is after 31 March 2014. We cannot accept all the existing contracts but we have, as my noble friend Lord Carlile knows, tried to A number of points have been raised but I am widen that as far as possible. We had to bring in a conscious of both my time limit and the House’s. I cut-off point somewhere. Noble Lords will have heard have referred to the fact that VHCCs represent a tiny in many other professions where they have had number of total cases; fewer than 1% of the total responsibility the suggestion, “Why don’t you put it Crown Court trials over the past year were VHCCs. I off?”, or, “Why don’t you have a review or do it some understand the points that the noble Lord, Lord Carlile, other way?”. I wish that both the Treasury and the was making about the returning of cases, but we will Government worked differently than they do. The just have to see how this works out. I do not want to noble Baroness, Lady Deech, has the idea that you bandy figures about. can, as it were, go across the meadow picking flowers 897 Criminal Defence Service Order 2013[11 DECEMBER 2013] Criminal Legal Aid Regulations 2013 898 from here and there to finance things. The fact is that every word of this debate and will take note of what I my department, as part of an overall spending review think I described earlier as the finest debating tutorial in response to a very real economic crisis, has had to one could have. If my noble friend is saying that all take across the board cuts of 23% in 2010, a further that has happened in this House in the past couple of 10% after a further review in 2012, and a further 1% in hours has been a demonstration of self-interest by this review. We cannot go plundering other parts of lawyers, one or two non-lawyers, judges and others Whitehall to make up the difference. We have to make who are acting in concert to defy the Government hard, tough decisions about our expenditure at this then, in my view, that demeans what has been a moment, and try to make them in the fairest and magnificent debate. I thank all those who have taken broadest way that we can. Somebody asked whether part for giving me the privilege that I described earlier. we were also targeting other earners. The figures that I I have some sympathy for my noble friend the have, and I will confirm this, are that the cuts that we Minister who sought to respond to the debate. He read have consulted on were of about 7% on average. Of out a familiar litany, but it was a litany without a course we have targeted the higher earners. message save the message of mistake. He allowed Noble Lords made a number of points and I have himself to stray into the suggestion that there had tried to explain the context. We have had a very frank been consultation about the VHCC changes. He sought debate. I will close by saying to the noble and learned to elide into the VHCC changes consultation that had Baroness, Lady Scotland, that my right honourable taken place on completely different legal issues. It is friend the Lord Chancellor is well aware of his important to emphasise at the end of this debate that responsibilities and those of his office. I am sure that there was no—zero, zilch—consultation on these VHCC he will read the report of this debate in Hansard very changes, and that is fundamental to the complaint carefully. I hope that in the mean time the noble Lord, that the Bar makes about the high-handed way in Lord Carlile, will withdraw his Motion. which this unilateral breach of contract has occurred. My noble friend said that the Government were 11 pm “under responsibilities to make these cuts”—those Lord Carlile of Berriew: My Lords, it is now 11 pm were his very words; I noted them as he said them. so I shall be very brief but I do want to reply to the However, with great respect to my noble friend, that debate. Twelve out of the 13 Members of your Lordships’ phrase is meaningless. The Government have the House who have spoken in this debate have spoken responsibility to get it right, not just to make cuts for consistently with the same thread, criticising the the sake of making them. He said in relation to what is Government for the introduction of these statutory going to happen to these VHCC cases, in which there instruments. As I listened to those contributions, I are now no advocates, that “we will just have to see reminded myself of what a privilege it is to be a how this works out”. That took my breath away. It is Member of your Lordships’ House. There were an acceptance that there are now cases with no advocates, magnificent speeches, many of them from the Cross that there is no plan B for these cases and that the Benches, three from noble and learned Lords who promises that the Government made to everyone that have held very senior positions in the judiciary, and it would all be all right on the day have simply been two from noble and learned Members of this House shown to be wrong. I would never accuse my noble who have been Attorney-General on opposite sides, friend of being incoherent but the brief that he had with very different types of practice in their experience. was full of incoherence, and we saw it displayed this evening. I believe that your Lordships have provided my noble friend the Minster with the finest debating tutorial At this late hour, I do not propose to divide the he could ever have had and that the Lord Chancellor House but I believe that I do not need to do so. This could ever have had in how wrong the Government’s debate has been well worth having because of its decision to introduce these statutory instruments has overwhelming effect of showing that the Government been. are wrong in what they have done with these cases and that the explanation which my noble friend sought to give just did not hold water at all. With the permission Lord McNally: My noble friend interrupted me and of the House, I beg leave to withdraw the Motion. I shall interrupt him just once. It only for this reflection: yes, we have had a good debate and I do not doubt the eminence of those who contributed to it, but I have Motion withdrawn. said it before: the legal profession must not exist in a bubble and congratulate or commiserate with itself. I sometimes wish that this House was full to the gunwales Criminal Legal Aid (Remuneration) so that we could have a proper debate on these matters (Amendment) Regulations 2013 and see whether this unanimity of view about the sufferings of the legal profession was quite so evenly Motion to Annul spread as a debate like this might sometimes indicate. 11.06 pm Lord Carlile of Berriew: My noble friend is a much Tabled by Lord Carlile of Berriew liked, popular and witty Member of this House and I will not rise to the uncharacteristic and unjustified That a Humble Address be presented to Her provocation of that intervention. I was about to say Majesty praying that the regulations, laid before the that I hope that the Lord Chancellor himself will read House on 1 November, be annulled. (SI 2013/2803) 899 Criminal Legal Aid Regulations 2013[LORDS] City of London Bill [HL] 900

Relevant document: 18th Report from the Secondary City of London (Various Powers) Bill [HL] Legislation Scrutiny Committee Returned from the Commons Motion not moved. The Bill was returned from the Commons agreed to with Humber Bridge Bill amendments. The Commons amendments were considered Returned from the Commons and agreed to.

The Bill was returned from the Commons with the amendments agreed to. House adjourned at 11.06 pm. GC 153 Arrangement of Business[11 DECEMBER 2013] Olympic Legacy (S&T Report) GC 154

2010. Although we focused on sport, we recognised Grand Committee that exercise includes a much broader range of activities, such as recreational walking, gardening and housework. Wednesday, 11 December 2013. Both of our questions were highly relevant to the Government’s two objectives for the Olympics. These Arrangement of Business were, first, to ensure top performance of our athletes Announcement in winning medals and, secondly, as part of the legacy of the Games, to encourage the nation to be, 3.45 pm “healthier, happier and more active”. The Deputy Chairman of Committees (Lord Brougham On the first of these two objectives, Team GB surpassed and Vaux) (Con): My Lords, welcome to the Grand expectation, winning more medals than in any Olympics Committee. We are expecting Divisions, in which case since 1908. The haul of 65 medals, against a target of I ask the noble Lord who is speaking to stop while we between 48 and 70, included 29 gold, placing Britain adjourn for 10 minutes. third in the gold medals table and fourth in the total medals table. This was a stunning success, but might the performance of Team GB have been even better Olympic Legacy (S&T Report) with more systematic appliance of better science? One Motion to Take Note of Team GB’s greatest Olympic successes was in cycling, winning seven out of 10 track cycling gold medals. 3.45 pm While the majority of this remarkable success is down to the athletes themselves, it is thought that some of it Moved by Lord Krebs is attributable to the meticulous attention to detail of Matt Parker, “head of marginal gains”. He analysed That the Grand Committee takes note of the down to the last detail the factors that might make Report of the Science and Technology Committee that marginal difference between a medal and no on Sport and exercise science and medicine: building medal: techniques such as spraying tyres with alcohol on the Olympic legacy to improve the nation’s to remove dirt and increase the friction at the start of a health (1st Report, Session 2012-13, HL Paper 33). race; heated shorts for the cyclists to keep their muscles warm; and measures to reduce the chance of athletes Lord Krebs (CB): My Lords, I start by thanking the succumbing to performance-diminishing infections may members of the Science and Technology Select Committee all have contributed to the fraction of a second difference for their excellent contributions to this report, and our that is needed to win gold instead of silver. specialist adviser, Professor Ian Macdonald, Professor However, as our inquiry showed, even in the of Metabolic Physiology at the University of Nottingham. outstanding cycling team, not all the techniques believed I also thank the Minister for the Government’s response to enhance performance of elite athletes are based on to our report. I am particularly delighted to see that sound evidence. For instance, we were told by an the Minister who will respond to the debate is from the expert witness that feeding elite athletes large quantities Department of Health as many of the recommendations of antioxidants to help muscle recovery not only does in our report refer to health as well as to sport and not have a beneficial effect but may even be detrimental. exercise. So when we look ahead to the next Olympics, there We conducted the inquiry, which resulted in the may be room for even better performance by our report Sport and Exercise Science and Medicine: Building athletes by deploying the best scientific knowledge. on the Olympic Legacy to Improve the Nation’s Health, during the run-up to the 2012 Olympics. The inquiry Our second question was about using scientific had two purposes. First, we wanted to find out how knowledge to help the Government’s objective of getting robust the research and evidence base for improving the population as a whole to become healthier through the performance of our elite athletes is. Secondly, we exercise. The health benefits of exercise are undisputed asked how this knowledge for helping elite athletes and affect a wide variety of health outcomes. The might be translated into treatments and preventive Department of Health told us that there was research interventions that could help improve the nation’s to show that exercise could help to prevent or manage health. Our focus was on biomedical research rather more than 20 chronic conditions, including coronary than the engineering science that refined and improved heart disease, stroke, cancer, type 2 diabetes and a the equipment used by elite athletes and amateur number of mental health problems. Yesterday’s news sports men and women alike. story about an article in the British Journal of Sports Medicine lamenting the lack of exercise by children Our inquiry included sport and exercise science, even used the emotive language of “child neglect” to which is about understanding the physiology, nutrition, refer to the health problems that will arise because genetics and biomechanics of the human body in children are not encouraged to do enough exercise. order to improve performance as well as sport and exercise medicine, which is about the treatment and Scientists do not yet understand the biological prevention of ill health that might arise from exercise: mechanisms that give rise to such far-reaching benefits for instance, muscle strain or joint injury. We did not of exercise. One theory is that exercise promotes a investigate the important issue of behaviour change—how process called autophagy, in which worn-out surplus to encourage people to become more active—because or malformed proteins and other components of our we had already completed an inquiry into this topic in cells are recycled. Perhaps an understanding, through GC 155 Olympic Legacy (S&T Report)[LORDS] Olympic Legacy (S&T Report) GC 156

[LORD KREBS] The Government welcomed our recommendation research, of exactly how exercise benefits our bodies that training at all levels for health professionals should would help to improve and enhance the advice to the include the need to support the prescription of exercise population at large on exercise, and thereby increase for both prevention and treatment of ill health. We the benefits. also suggested that physical activity should be added How robust is the research into sport and exercise to the quality outcomes framework for GP practices. I science and medicine? One fundamental problem of would welcome comment from the Minister on what research on elite athletes is that, by definition, there progress has been made in this area and whether any are very few individuals to work on. Furthermore, measurable change in disseminating activity guidelines elite athletes are understandably reluctant to be exposed and encouraging physical activity by health professionals to invasive measurements that might interfere with has been achieved. their training or become part of a control group in an At the same time, the National Institute for Health experiment to test the efficacy of a particular intervention. and Clinical Excellence—NICE—has a role in ensuring For this reason, most of the research on elite athletes that any prescription of exercise for chronic disease is is observational and anecdotal. That is not to say that based on sound evidence. Could the Minister please all sport science and medicine is weak, but several of update us on NICE’s assessments and how they are our witnesses, including the Physiological Society and being translated into recommendations? Many of us the Ministry of Defence, were critical of weak who exercise do things that we believe—and are told—are methodologies. good to do, like stretching before or after exercising, One way to improve the quality of research is to or engaging in muscle-strengthening as well as aerobic carry out the work on non-elite athletes and the wider exercise. I would be interested to know how robust the public and explore the two-way flow of understanding evidence is to support these particular pieces of advice between those groups and elite athletes. We heard and information that are in the general public’s mind. about examples of well known techniques that are Finally, I turn to the National Centre for Sport and supported by good evidence—altitude training to improve Exercise Medicine, which the Government established stamina, and carbohydrate loading for long-distance as part of their commitment to a lasting public legacy runners—as well as those for which there is no evidence from the Olympic Games, as well as to improve support of benefit, including taking ice baths after vigorous for elite and non-elite athletes. The Department of sport and, as I have already mentioned, taking anti-oxidant Health’s vision for the centre was for it to be, supplements. “a hub of clinical and research expertise”, UK Sport is the arm’s-length body of DCMS charged with funding research to enhance the performance of used for the following objectives: elite athletes, with a budget, we were told, of about “increase exercise in the community; develop strategies to prevent £20 million over the period between 2009 and 2013. diseases related to inactivity; and prevent, diagnose and manage We were surprised that DCMS did not appear to have injuries for both professional and amateur athletes”. in place any mechanism to ensure that UK Sport was The centre was established with a £30 million grant to commissioning science of the highest quality, comparable three consortia. However, we were told in our inquiry to that in fields of basic biomedical research. The that no ongoing funding for posts or research was Government’s response did not specifically address provided and therefore there is a question about the that point, and I would welcome clarification from the sustainability of the centre. We also suggested that the Minister about how DCMS carried out that quality centre should take the lead in developing a national assurance. strategy for sport and exercise science and medicine. I now turn again to the relevance of sport and Could the Minister please update us on the progress of exercise science and medicine to the wider public. the national centre and how its sustainability is being Most but not all of our witnesses agreed that the established, and also on the production of a national findings from research on elite and non-elite athletes strategy? had relevance to the wider population. Examples include No one can doubt the importance of sport and the use of exercise and muscle conditioning to improve exercise. The health of the population at large would back and knee pain in osteoarthritis, conditions that be hugely enhanced if people exercised more. The affect many people in this country. prestige and entertainment provided by our elite athletes Advice to the public on exercise is contained in the was vividly demonstrated by our national success at Chief Medical Officer’s guidelines on physical activity. the 2012 Olympics and by Andy Murray’s Wimbledon These guidelines exist, but how many people are aware triumph. Science and medicine can make an important of them? I have no doubt that all noble Lords in this contribution to the realisation of these benefits of Room are acutely aware that the CMO recommends sport and exercise. The United Kingdom has an absolutely that 19 to 64 year-olds do 150 minutes of moderate outstanding science base in the biomedical sciences exercise or 75 minutes of vigorous activity a week, and but the evidence that we heard suggested that there is that there are specific guidelines for people such as insufficient cross-fertilisation between this excellent myself who are over 65, but we found in our inquiry science base, carried out in our world-class universities no strategy for ensuring that those guidelines were and institutes, and the application of that science to more widely disseminated to the public. Indeed, we improving the performance of our elite athletes and were told of one survey of 48 GP practices in 28 London the health of the nation. I look forward to hearing boroughs, which found that none of the GPs was other noble Lords’ contributions to this debate and aware of the latest CMO guidelines. the Minister’s reply. I beg to move. GC 157 Olympic Legacy (S&T Report)[11 DECEMBER 2013] Olympic Legacy (S&T Report) GC 158

3.58 pm benefits. I say again that it is perfectly reasonable for UK Sport—a DCMS arm’s-length body, as the noble The Earl of Selborne (Con): My Lords, the Committee Lord, Lord Krebs, reminded us—to spend government will be most grateful to the noble Lord, Lord Krebs, money and, for that matter, lottery money on promoting for the way he introduced this debate and for chairing the agency’s primary objective of winning more medals the inquiry. I served on that committee and was in competitions. I am all for that. UK Sport also enormously interested and impressed by it, particularly receives money from third parties that are not subject at the seminar that started our deliberations where I to the same commitment to share the benefits that learnt a lot about the quality of the sport and exercise derive from public funds. With commercial organisations science and medicine in this country. It seemed very there may well be a confidentiality clause, and I recognise timely with the Olympics just about to start to have an that. However, it should be a condition of receiving inquiry into the extent to which the two objectives set public funds for there to be an obligation to promote out in paragraph 1 of our report were being delivered. the sharing of the research findings that I mentioned I will confine my contribution this afternoon to the in order that the wider public might benefit. That is second of those two objectives: how can the R&D not happening; the links between some of the elite base, research, other athletic research and the wider public “be translated into treatments and preventative interventions to are not as strong as one would have hoped. improve the nation’s health?”. For healthcare professionals plenty of information After all, if one thinks about it, the justification for is available. We have heard about the Chief Medical spending public money on sport and exercise science Officer’s guidelines on physical activity. However—I must ultimately rest on its role in improving national repeat what the noble Lord, Lord Krebs, told us—there health. That is not to say that winning more medals is does not seem to be an effective mechanism for promoting not a perfectly laudable objective; it is clearly good for this information, the guidelines and other advice, to national morale and we should be proud about it. the medical professionals. Surveys show that their However, Dame Tessa Jowell, who we quote on page 8, knowledge of the guidelines is, frankly, disappointing. paragraph 3, was right when she said that the goal of At paragraph 36 we point out that Sport England told increasing participation in sport was, us that exercise prescription should “sit alongside” “not just about increasing participation in sport for the sake of it pharmaceutical and surgical interventions. Yet GPs … it was also to tackle one of the most serious health epidemics have no incentive to prescribe exercise; I can quite see facing the UK, that of obesity”. that many GPs say that that is all very well but it is When you realise that the Department of Health had most impractical for them to tell some of their more put an estimate on the direct and indirect cost of obese patients to go out and take exercise. What they physical inactivity in England among our population want is a prescription. Nevertheless, as a layman, I am at large at approximately £8.2 billion, you realise that fairly confident that in many cases a prescription we are talking of sums that concentrate our minds which simply said “Go out and take more exercise” wonderfully. would be a jolly sight more effective than a surgical or We have not gone into behavioural change. It is one pharmaceutical intervention. thing to estimate the cost but one knows how difficult If you think about the quality and outcome framework, it is for the most observant commentators to change there are incentives to GPs to do this, that and the even their own behaviour, let alone that of other other. One incentive is to list those of their patients people. Nevertheless, it is clear that this goal is well who fall into the category of obese, but the incentive is worth achieving, and if sports and exercise science and to put them on the list, not to take them off it. Once medicine can impact on the population at large and they are on the list, GPs get paid for keeping them reverse what is, in the case of obesity, an epidemic that there. That is not exactly an incentive for them to tell has been running for many years, it will be something their patients how to get below the magical figure at well worth attempting. As well as mentioning obesity, which they are considered obese. Clearly the quality as the noble Lord, Lord Krebs, reminded us, Tessa and outcome framework needs to be revised. Adding Jowell could have mentioned the 20 other chronic physical activity to the quality and outcome framework, conditions identified as lending themselves to prevention as Sport England suggested, might be a good start. It or alleviation through physical activity. So we seek to would save a lot of money—I am quite confident of increase participation levels in sport and exercise for that. You would perhaps even make a very modest all ages in order to capture the health benefits for the dent in the culture change we are looking for so that population at large. people recognise that exercise can help solve some of The Government must be given credit for having the problems that we are facing as an ageing and ever put together a number of cross-departmental initiatives, more obese population. We need to raise the profile of listed at paragraph 45. They involve, of course, the physical activity. Department of Health, the Department for Transport We have heard that there are up to 20 different and the Department for Education. It was a bit of a chronic conditions which could benefit from physical surprise, I have to say, that the then DCMS Minister, activity, and I shall not repeat them. I am surprised, as when giving evidence to us, said that, a complete layman, how little understanding there “the baseline for ... the whole sport plans, is driving up participation appears to be of why physical activity can help with so in sport; it is not a bigger drive on the nation’s health”. many of those conditions, including, for example, That does not make a lot of sense. We all agree that we mental health problems, cancer, type 2 diabetes and want more people to participate. Why? I think we all the like. This is clearly a field of great potential interest recognise that it is because there are going to be those and benefit and one where sports and exercise medicine GC 159 Olympic Legacy (S&T Report)[LORDS] Olympic Legacy (S&T Report) GC 160

[THE EARL OF SELBORNE] One obvious thing that I had not even thought has a unique contribution to make alongside the medical about until this report came out is that, if you are an and biological sciences. It would be enormously helpful elite-level sportsman, you do not want to be experimented if there could be much greater collaboration in order on. It is a bit of a no-brainer. Who does want to be to ensure that these helpful insights are captured. experimented on, to be perfectly honest? They want to However, as I said earlier, that will happen only if we be treated, helped, supported—yes. But they will take have a culture where research findings—particularly on a revolutionary new course of action only if they those funded by the public—are made available to the absolutely have to. That is a very logical point of view wider research community and, through that, to the to take. It is always going to be anecdotal when slight public at large. changes in practice occur. I am increasingly aware that I am not qualified in 4.07 pm my own sporting life. Although I flirted with the top Lord Addington (LD): My Lords, this is one of of my sport, I am totally aware that we were amateurs; those papers that when you pick it up and read it although we did not think that we were amateurs, we makes you think, “Oh!”. I have raised sport and absolutely were. I remember the shock when a first-class exercise medicine on numerous occasions, and the rugby club got its first diet sheet. Those days are long noble Lord, Lord Hunt, and the noble Earl, Lord gone. But having worked a little bit with the elite level, Howe, have been dragged in. My approach has always I can say that trying to change the culture of behaviour, been about enhancing general medicine and making when people’s whole lives have been dominated by sure that people are encouraged to take up sport, trying to achieve performance, is something that acquires because they are put back together again quickly to scientific language, if nothing else. Trying to identify carry on with the rest of their lives and to carry on exactly what you are getting out of it is a very important with sport. factor here. To get benefit for wider society in terms This report is a fairly academic paper, and I feel not just of health but of community support and that it misses some of the point. You do not play a interaction is another very important point that is not sport or push yourself to keep fit; that is a by-product. covered here. If we could all stay fit by jogging 2.3 miles every third Sports medicine has important lessons to teach day or whatever it is, everybody would be happy. We ordinary medicine. It is a simple fact that a sportsman would have the medical benefits. We could get on with knows that, if you get a bump, you get it treated it without trouble, but we do not. We know we do not. quickly; you do not go to your GP and wait three We need an incentive and a reason to take the exercise weeks for a physio appointment, because then you to get the benefit. This report slightly missed the point would find that a muscle was weakened or that there that you do sport because it gives you a buzz. Enjoyment was a slight imbalance in how you walked that has led is not quite the right word. Sport at various levels gives into an imbalance in your entire body, which means you a buzz, a feeling of achievement, the competition that you might have to take time off work. The noble and the thrill. Exercise sometimes provides you with Lord, Lord Hunt, said that it was a very sensible idea another good feeling: the chance to get outside. These to get more physios involved in accident and emergency, feelings are going on. Although the report mentions when I raised this issue a few years ago. We are still not the psychology, I do not think it got under the skin of quite there yet, because we do not take soft tissue why you are doing it. injuries seriously enough. Sport has already taught us, Having said that, the report is right about the fact and given us examples, that you should intervene early that we do not co-ordinate, in trying to make sure that on those things to stop them becoming chronic. We we get the benefit of the health agenda—and, presumably, have simply not adopted that yet. the preventive health agenda—and the saving that the nation gets. The two bits do not speak to each other. I have always been something of a fan of having sport more closely linked to the Department of Health I have come to the conclusion that sports are slightly so that we can get those benefits together, especially worse than political parties for wanting to sit in darkened preventive stuff. Certainly, exercise is a factor in controlling rooms talking to each other about themselves—only weight and gives you an incentive not to carry extra slightly, but probably worse. They do not like people weight—by which I mean surplus weight. My rants intervening on what they do, and change is usually against the body mass index are well recorded here, forced on them—usually by a failure to perform at a and I think that we will leave the subject there. But a certain level, to achieve an increase in numbers or, sensible approach to how to control weight and stay classically, to compete at the level to which they aspire healthy is something that probably should be led by or that they are used to. So when the report says that the Department of Health. the science of elite-level sport is unclear, that does not surprise me very much. I suspect that the art of coaching The report is interesting because it starts to open a and getting the best out of people is at odds with door to what is going on. When you open a door you scientific method. The psychology involved, and the do not know what you will find, but here was a signs that you are responding to what goes on around corridor leading to interesting places which was perhaps you, are probably not approached best by this. There felt to be irrelevant to sport, at least at the moment. It is also resistance to intervention. Sharing—and we are is an interesting start but to think that the Olympics much better at sharing now than we were before, would change the culture overnight was a total probably because we have to take on funding from misconception. It will not be the only misconception outside government, and it is taken seriously—still has about the Olympics. My noble friend and I have been not gone into the culture. sitting on a committee which looked at this issue and GC 161 Olympic Legacy (S&T Report)[11 DECEMBER 2013] Olympic Legacy (S&T Report) GC 162 we got the impression that many people felt that, once maximising performances in competition and reducing the Olympics arrived, the days would be longer, the the number of training days lost to injury.Clive Woodward summers warmer and we would be guaranteed to win was a pioneer in aligning and integrating this approach gold medals not only for the next 20 years but for the for the British Olympic Association—I declare an next 30 years. interest in having had the privilege of being chairman This has been an interesting start to a debate that from 2005 to 2012, through Beijing and London—and needs to go further, and for that I thank all noble while there are wider benefits we should not overstate Lords who sat on the committee. the case for its application to recreational sport. That said, there is room for wider dissemination of 4.15 pm research where it does not impact competitive advantage Lord Moynihan (Con): My Lords, I congratulate for young athletes. Other countries do better in this the noble Lord, Lord Krebs, and his Select Committee respect. The NHL and NFL in the United States are on their report on sport and exercise science. It considers examples. The NFL collates data centrally and provides in detail whether there is any evidence that the Games public awareness programmes without disclosing the have left a lasting legacy to encourage the nation to be, internal secrets of the sports scientists at the Miami Dolphins or Seattle Seahawks. Australia and South “healthier, happier and more active”. Africa deliver excellent sports science research. It questions whether the science-based support for high-performance athletes, as measured by medals at The main reason for the difference is the sources of the Games, was sufficiently comprehensive and adequately funding. In countries where research is funded by disseminated to assist future generations. In commending those without vested interests, the prospect for the work of the committee on reviewing sport and dissemination is enhanced. For countries such as ours, exercise science as applied to elite athletes and how where tight funding control is exercised via our Premier that work can be disseminated to a wider public, it is League football clubs and governing bodies of sport, of no surprise to me that very little elite research is operating as they do in a highly competitive global published in the United Kingdom. market, the opportunity for long-term funded research It is certainly true that some sports fare better than is restricted. others in this respect but in our flagship sport— On the wider issue of an Olympic legacy to improve football—those who earn a living dance to the tune of the nation’s health, it is universally accepted that we the paymaster. When Alex Ferguson employed a team need to address the challenge caused by obesity among of sports scientists, he did not want its work made young people, the expensive consequences we face as a publicly available to Chelsea. As a result, the Premier country from having low levels of physical activity, League has no research-based ethic, in part because of inadequate facilities, and an absence of policies to the powerful marketing machine of professional sport address improving the nation’s health. I regret that we in the United Kingdom, and in part because there is still have a department of sickness, whose default little equipment research as the great confounder is the position to sport is the treatment of sports injuries, constant change of kit for commercial gain. The public rather than a proactive Department of Health geared want to buy the style of football boots used by Messi to improving the nation’s health. It is not as if the or Bale. The money is in the kit that people want to challenge came to light only during the Games. I own. Tennis players will employ one model of shoes would argue that government had a better approach for a year and the likes of Adidas and Nike, with their to the subject 150 years ago, when the modern Olympic research teams, will fiercely guard their commercial-in- Games were constructed on the premises of preparing confidence research. Every season brings a new range a physically active and fit generation—in that case, of kit—new ski shapes and sizes; new tennis shoes. principally of men to fight for king and country. That commercial reality is a major inhibitor to long-term research. Indeed, between the two world wars the British Government made comparisons with Germany and Secondly, it is very difficult to extrapolate the science Italy and quickly recognised that as a nation we were of elite sport down to the recreational player. The physically ill prepared. The then Minister for Health, science required to provide a marginal gain to Chris Sir Hilton Young, later Lord Kennet, asked at a dinner Hoy is of little relevance to the recreational cyclist in of the BMA in 1935 whether something could not be the country lanes this weekend. The outstanding work done, that Sir Clive Woodward, his team, the coaches and the intricately woven sports scientists undertook for “to bring home the benefits of physical culture, which was a Team GB in 2012 only marginally impacts on wider culture of mind as well as of muscle”. participation. For this is specialist science; it is world- The challenge was accepted and was followed by the leading scientific knowledge. It was borne out by establishment of the BMA’s Physical Education 29 gold medals, as opposed to one in Atlanta only Committee, the Central Council for Recreative Physical 16 years before when such specialist knowledge was Training, which became the CCPR and now thrives as absent. the Sport and Recreation Alliance under the chairmanship This valuable work is now being taken forward by of Andy Reed. It was established then, in 1935, as the UK Sport and its subsidiary the English Institute of first significant body to receive government funding to Sport, focusing as they are on performance solutions meet the grave concern about the physical health of based around a holistic range of science, medicine, the community. It is indicative of the approach at the technology and research designed to increase the time that of the 34 original members of the council, probability of success by optimising training programmes, no fewer than 14 were members of the medical profession. GC 163 Olympic Legacy (S&T Report)[LORDS] Olympic Legacy (S&T Report) GC 164

[LORD MOYNIHAN] will to translate inspiration into participation through I declare a somewhat distant interest in that one of improved facilities and a transformational change in them was my grandfather, who was the president of priorities capable of matching the brilliance of the the Royal College of Surgeons at the time. Games. Alongside those 14 sat seven physical educationalists The opportunity for health and education to lead and three prominent politicians, including Herbert this agenda remains as strong as it did 80 years ago. Morrison. The wider aims they pursued resonate to Physical activity, not just sport, is the key to keeping this day. They sought, people healthy and reducing the burden on the healthcare “to establish the closest link between the Council and those system. In Raising The Bar, the report I wrote with responsible for physical activities in voluntary organisations and Kate Hoey when the bid was won in 2005, we called on to investigate the best methods of placing the specialised knowledge the Government to: begin work on pioneering a of the physical training associations at the service of the population”. nationwide programme of sport and exercise medicine, They wrote their own mandate, echoed in parts of this new report; substantially increase “to help to improve the physical and mental health of the community the number of training schemes for GPs as well as for through physical recreation, by developing existing facilities for sport and exercise positions; prescribe physical activity recreative physical activities of all kinds and also by making to patients, both for remittal and for preventive healthcare provision for the thousands not yet associated with any organisation”. goals; and plough half the money saved by the proposals The last 80 years have seen successive Governments into the provision and maintenance of suitable sport struggle to translate these aspirations into political and recreational facilities. reality, despite subsequently hosting the Olympic Games in London on two occasions. Of course, at the heart of such a programme is the need for co-ordination in government. In my view, the However, as the Select Committee report and its Department of Health should lead a major cross- recently published sister report on Olympic legacy government strategy to promote the health benefits of highlighted, hosting the Olympic Games in London physical activity, so as to reinforce its importance. It offered a unique opportunity to this country to raise was hoped that the Cabinet committee would launch the bar. Those of us involved with sport saw this as this nationwide sports legacy to encourage the nation being a once-in-a-lifetime opportunity to take wide- to be, to quote from the report, ranging steps to create opportunities for a more active society on a national and integrated scale. Hosting a “healthier, happier and more active”. great Games was always, in my view, more than 17 brilliant Indeed, we have had a raft of welcome initiatives days of Olympic sport and the breathtaking excellence labelled legacy projects, but no more initiatives in total of the Paralympic Games. As important was the objective than have been launched on an annual basis since the to leave a lasting sports legacy for young and old, inception of the National Lottery. To us who are able-bodied and disabled, the length and breadth of passionate about sport they are very welcome—to the country.The sponsoring department for the Games— many other people they may pepper the daily bulletins the DCMS at the time we won the bid to host the with government press releases—but they have not Games in 2005—set a target shared with the departments transformed the landscape of the health of the nation. for education and health in the DCMS public service Now we have this report which concludes with agreement 2005-2008 to: disappointment at, “Halt the year on year increase in obesity among children “the apparent lack of joined-up thinking in Government about under 11 by 2010”. the Olympic health legacy”. In reality we have witnessed a growing prevalence of The scientific case for a unified, high-priority national obesity among all age groups during this time. campaign could not be stronger. The twin causes of so So why were the Olympic Games so important in much of the burden on the National Health Service this context? I would argue that the remarkable success are either genetic or environmental. On the environmental of the Games—the brilliance of Sir John Armitt and side, so many diseases are preventable if you maintain Sir David Higgins in overseeing the design and build a healthy lifestyle. We need lifestyle departments, with of the facilities for the Games on time and on budget, teachers qualified in relevant disciplines in every school, and the platform they created for the BOA to field its both primary and secondary. We need to design largest and most successful British team in over a opportunities which young people enjoy. If you want hundred years, coupled with the work of the organising to try to improve the health of the nation it has to be committee in putting on the Games—led to a level of through a sport that people can do by themselves. A national commitment and inspiration that was sport requiring 22 people to take part is never going to unparalleled in our time. be easy to facilitate and roll out nationwide. If you want to get girls involved, which should be a priority, 4.24 pm it has to be in activities they want to do. They do not all want to take part in outside team sports, which is why dance is such an important option. Sitting suspended for a Division in the House. In closing, the report also calls for further work to be undertaken on international best practice. There is 4.33 pm no better place to begin than Finland. No more than Lord Moynihan: My Lords, for politicians the Olympic 30 years ago—I speak with affection and respect for Games were manna from heaven. The inspiration was that great country—it was characterised as a heavy- there, and public enthusiasm backed by all-party support smoking, heavy-drinking, unfit country.It has completely was in abundance. What was needed was the political changed. The past two decades have been marked by a GC 165 Olympic Legacy (S&T Report)[11 DECEMBER 2013] Olympic Legacy (S&T Report) GC 166 major shift in emphasis from competitive and elite One of the problems I see going forward—and I sports to health-enhancing physical activity for all, as have seen way too much of it—is that of literally seen most clearly in two successive sports Acts and a reinventing the wheel: we do not learn from the past, government resolution. Now, increasingly, multi-sectorial somebody comes along with a new idea and sometimes initiatives have led to substantial changes in the public wastes money doing things that have previously been funding of sports organisations, services and the done. Overall, lottery funding has significantly helped construction of sport and recreational facilities. It is a our athletes by ensuring they get the right support at system built on the enthusiasm of volunteers. In stark the right age. As an athlete who benefited from it, I contrast, it is also a country where local authorities think that is tremendous. We need to keep urging are central to the delivery of facilities. In the UK, national governing bodies to invest and use sports sport and recreational provision is a low-priority, science. Some sports are using less of it now than they discretionary-line item in local authority budgets, too were 15 years ago. often to be cut first. Overall, there has been a positive influence on the Finland’s sports policy places health enhancement general population. The design of sports equipment at before competitive or high- performance sports. It Paralympic Games level has led to better design of prioritises well-being and health and supporting children’s day chairs. They are lighter, stronger and more aesthetically and young people’s growth through sports. It recognises pleasing. Certainly in amputee running, the work that the health benefits of the cradle-to- grave approach has gone into the development of prosthetics for sprinters that is so important. We need a health and fitness has had a massive positive influence on non-runners in programme that is both low-cost and designed from terms of their walking gait and equipment, and it is cradle to grave. Cycling, swimming and, in Finland, more generally accepted that they deserve really good cross-country skiing figure prominently—all activities prosthetic equipment. There have been some very that you can do from five to 105. A similar nationwide positive things that we need to keep pushing forward. approach in this country would be politically popular. Finally, I commend the work of the committee. I can think of no better leader of that initiative than I am very pleased and I am grateful for being allowed the Minister. to speak. We have a nation inspired by the Games. Surely it is time to translate that inspiration into participation 4.40 pm and, in so doing, embed recreational activity as a fundamental building block for a true Department of Lord Hunt of Kings Heath (Lab): My Lords, I, too, Health in the 21st century. welcome this debate and the report of the committee chaired by the noble Lord, Lord Krebs. I think it is a truth universally acknowledged that the Olympic Games in London were outstanding and never to be forgotten 4.38 pm and that the legacy is as important. The argument for Baroness Grey-Thompson (CB): My Lords, I thank investing in sports science in elite performance and in noble Lords for allowing me to speak briefly in the non-elite sports and exercise has been very persuasively gap. put by all noble Lords who have spoken in the debate I am a huge fan of the benefits of sport and exercise this afternoon. science if it is used in the right way. In my career I have The question first posed by the noble Lord, Lord undergone numerous tests, aerodynamics, skinfold Krebs, was: the performance of Team GB in the measurements, maximum lung capacity testing, something Olympics was outstanding, but could it have been even called a VO2 test—there is nothing like pushing on a better if even more use had been made of science? The treadmill until you feel you are about to collapse, and noble Lord, Lord Moynihan, answered in the affirmative then having needles stuck into you—and I can confirm and pointed the way forward in terms of there being a that ice baths are indeed vile. On one memorable very strong case for future investment in science in birthday, my husband bought me three metres of relation to elite sport. aluminium so that I could build a racing wheelchair The noble Lord, Lord Krebs, referred to heated that was one kilogram lighter than that which was shorts. As a commuting cyclist, I am very attracted to commercially available. the idea, particularly as Christmas is coming up and I agree with the noble Lord, Lord Moynihan, about the winter will, no doubt, get colder. More seriously, it history. There is an assumption that not much has would be good to hear from the noble Earl, Lord gone on before and that sports science testing has been Howe, about future investment in sports science in used for a long time. I also agree with the noble Lords, elite and non-elite sports. The noble Lord, Lord Lord Krebs and Lord Addington, that athletes do not Moynihan, made a very important point when he said want to be used as guinea pigs—I certainly did not—unless that there is a problem with the sharing of knowledge it is your own idea, and then it is marvellous. However, with the vested interests of investors in sports science it is quite difficult sometimes to get sports scientists to as opposed to the non-vested interests. That does not think about doing things in a different way. necessarily have to be government, but government Within limited careers, it is important that we can, no doubt, play an important role. disseminate the information so that it goes through to The other question that arises from this is about the quality coaching, the teaching of good physical literacy, extent to which we are investing in science to increase and enables us to educate our young athletes right our knowledge of the impact of exercise on good through to senior squad level, so that they remain health. This is the second argument that has been put injury free for as long as possible. in your Lordships’ debate this afternoon. The noble GC 167 Olympic Legacy (S&T Report)[LORDS] Olympic Legacy (S&T Report) GC 168

[LORD HUNT OF KINGS HEATH] which the Government refer in their response to the Lord, Lord Krebs, and other noble Lords referred to report of the noble Lord, Lord Krebs, or, as the noble the health benefits of exercise, and it is striking that Lord, Lord Moynihan, suggested, we should simply although this is increasingly known about, it does not make it clear that a good health outcome is the number seem to have much impact on the general public’s one priority. I believe that something more needs to desire to exercise. The post-legacy figures for the public happen in this area. taking up sport or more generally taking part in exercise have been very disappointing. The figure of Noble Lords have not really mentioned the role of 150 minutes of moderate exercise per week seems as the Department for Education despite the fact that it far off for many of the population as it ever was. has a crucial role to play in this area. We have seen Noble Lords probably know that I live in Birmingham, very regrettable reductions in government support for and my understanding of the latest statistics there is school sport and I hope that the noble Earl’s department that 22% of young people in Birmingham are classified has actively pointed out to Mr Gove the error of his as obese. That is a shocking figure. We know the ways. Following the reaction to the original cuts in impact that that will have in future years in terms of government support for school sport, the Department health inequalities and demands being made on the for Education partly retracted its proposals and established health service. As we know, we have an epidemic of the School Games project—as we are told in the diabetes in many parts of society and of the country. Government’s response—which attempts to provide As regards the figure of 22% obesity among young more opportunity for pupils of all abilities to take part people in Birmingham, you do not need much knowledge in competitive sport in schools. But I would like to see of science to know that that will lead to huge pressures more—and I would like to see the Department of being put on the health system in that city in the Health become the champion in Whitehall of the need coming years. to promote school sports, competitive sports and other exercises. I wish to ask the noble Earl, Lord Howe, about the role of general practitioners. A number of points have I would also like to hear more about how we can been made in that regard. It was argued persuasively encourage sports clubs to work in schools. The noble that if GPs were to prescribe exercise that might have a Baroness, Lady Heyhoe Flint, has done so much to positive impact in terms of people’s response. We encourage girls to take part in competitive sports; she know that as regards health issues, particularly smoking, will know of the Chance to Shine project, which is nothing is more effective than a GP telling a patient about encouraging state schools to come back to that he or she needs to think about giving up smoking. playing cricket. Part of that approach is to encourage It would be helpful to ensure that GPs are all facing in local cricket clubs to send their coaches into schools. I the right direction on this issue. would like to hear more about how the Government Does the noble Earl think that health and well-being might encourage that in future. boards ought to prioritise investment in sport and exercise vis-à-vis local authorities and the health service? We then come to the issue of investment. The noble After all, health and well-being boards recognise that Lord, Lord Krebs, referred to the role of the National local authorities have a big role to play in this area. Centre for Sport and Exercise Medicine. Clearly, there Local authorities are also responsible for running is a concern here about its future viability. Can the extensive leisure services—or at least they were—and Minister give the Committee some comfort that the have a wider role in this area in liaising with schools. Government recognise that continued funding support Surely sport and exercise ought to be a major priority needs to be provided? Does he think that the Department in joint strategic needs assessments, which attempt to of Health’s own research and development fund could bring together wider health policies. Will the noble come up with some support? It seems a persuasive Earl assure the Committee that the Government will argument that, given that the department is concerned push health and well-being boards in that direction? I with improving the health of people in this country, would argue that they could be the local equivalent of and given that sports and exercise clearly have a vital the committee set up by the BMA in the 1930s, and its role to play in doing so, I would have thought that the successor organisations, to which the noble Lord, argument for some support and funding from his own Lord Moynihan, referred. department’s R&D fund, which is not extensive but is very significant, ought to be considered. Another very important point raised by the committee of the noble Lord, Lord Krebs, was the attitude of the The noble Lord, Lord Addington, suggested that Department for Culture, Media and Sport towards the the noble Earl, Lord Howe, and I were interlopers in health benefits of sport. The Government reject the this debate. However, I have no doubt that the committee’s assertion. My own experience in government encouragement of sports and exercise can play a critical suggests that there is a gap between the Department of role in improving the nation’s health and well-being. I Health’s policy of encouraging exercise and the DCMS’s am also in no doubt, having listened to the debate and focus on sport. Indeed, I have taken part in theological read the report, that investment in science and science debates between the two departments on where one research could help us and use that knowledge to element ends and the other begins. This is a fruitless encourage more of the population to play a part. exercise as it is patently obvious to anyone with any When one looks at some of the great health problems common sense that sport and exercise go together. If that we face—of frailty, dementia and obesity—one those departments find it difficult to resolve that issue, can see emerging research that suggests that exercise something else needs to happen. That could involve and sports can very much help us to meet some of assistance in the form of a Cabinet committee, to those challenges. Given the department’s role, does the GC 169 Olympic Legacy (S&T Report)[11 DECEMBER 2013] Olympic Legacy (S&T Report) GC 170

Minister not accept that it could play a much bigger health and wellness domains. These typically involve role in this whole area in future? I hope that the partnerships with universities and necessitate the sharing department will accept that opportunity. of knowledge—for example, vitamin D supplements for bone injury and soft tissue injury recovery. There 4.53 pm are a number of other channels, including formal and informal events where knowledge is shared within and The Parliamentary Under-Secretary of State, Department outside the elite sport community. I think we can of Health (Earl Howe) (Con): My Lords, first, I therefore be reassured about one of my noble friend’s congratulate the noble Lord, Lord Krebs, on securing central points—that taxpayer funding should lead to this debate and on the excellent work of the Select benefits to the wider public. Committee on Science and Technology, which he chairs, in highlighting the important issues associated with Translational health research is a high priority for sport and exercise science and medicine. The Government the Government. In August 2011 we announced a have welcomed the Committee’s report and its focus record £800 million to support this through biomedical on the quality and application of research in this area. research centres and units funded by the National Institute for Health Research. Some of this money has We agree that the biomedical basis for improving been used to establish a new research unit at Leicester performance of elite athletes needs to be of the highest and Loughborough. This unit is helping to expand quality possible and meet international peer review lifestyle interventions available for the prevention and standards. For this reason, UK Sport and the English treatment of chronic diseases. The funding is also Institute of Sport have robust processes in place to enabling the NIHR biomedical research centre at quality-assure the projects that they support. For example, University College London Hospital to study the all projects are reviewed by an independent research mechanisms through which exercise promotes health, advisory group, which includes a number of leading and how to deliver effective exercise strategies. experts in the field of sport science. Our elite sport programme is the envy of the world. An important link in all this, which was mentioned UK athletes continue to perform strongly at the highest by the noble Lord, Lord Krebs, is the first ever National levels, thanks to the funding and technical support Centre for Sport and Exercise Medicine, a legacy bid they receive from UK Sport and the home country commitment of the 2012 London Games. The £30 million sports institutes. Based on Team GB’s performance, project funded by health is on track, with the London there is no reason to doubt the quality or appropriateness hub now actively functioning and treating patients. of the research. Loughborough is anticipated to become operational in 2014, and Sheffield will be the final site to become In the light of this success, it makes sense for this operational in late 2015. As well as supporting elite knowledge to be shared so that it might benefit non-elite athletes, the centre’s influence will extend to local sports men and women. Indeed, there are a number of NHS hospitals and primary care facilities to provide a ways in which UK Sport disseminates research findings. service for anyone who plays sport. Public Health However, it is important to remember that the end England is overseeing the continuing development of goal of research is to support and maximise athletic the national centre and is keen to ensure that the performance on the world stage. Although UK Sport centre performs a clear leadership role for sport and and the English Institute of Sport concede that more exercise science and medicine for the next five years could be done to disseminate their findings, they need and beyond. Public Health England is supporting the to do so without compromising the UK’s competitive national centre to position it as an international voice edge. on sport and exercise medicine, with strong links with The committee’s report rightly highlights the societal the wider physical activity agenda and a global academic and economic costs of inactivity—a point well made platform. PHE is considering an outline business case by the noble Lord, Lord Hunt—and the benefits of for funding in 2014-15 to support co-ordination across exercise in promoting health and treating chronic disease. the national centre and as pump priming for long-term Indeed, the UK CMOs’ report, Start Active, Stay sustainability. The centre is keen to be seen as an Active, contains recommendations across the life course independent organisation which generates income through on the levels of physical activity needed to achieve direct patient care and research funding. It has appointed these benefits. The noble Lord, Lord Hunt, mentioned R&D leads to start that work. We can see the makings the research funded by my department. I can tell him of the centre as a sustainable long-term organisation that the department’s National Institute for Health going forward. Research funds a wide range of research on the benefits of physical activity. The noble Lord asked about the centre as a source of a national strategy. Public Health England is, once I completely agree with my noble friend Lord Selborne again, working with the national centre to develop a that it is of crucial importance that breakthroughs in sport and exercise medicine network of academics to sport and exercise science and medicine are translated help collaboration in research funding bids across into health benefits for patients and the public whenever multiple academic units. However, potential for conflict relevant and applicable. For example, characterising of interests has emerged as a stumbling block in the mechanisms by which heart function improves developing a national research strategy. with exercise in elite athletes and the military can help explain how heart function is impaired in people with In the context of public health, the noble Lord, diabetes or with high blood pressure. There are numerous Lord Hunt, asked about the role of health and well-being examples of where the work of UK Sport and the boards and his view that they should be prioritising English Institute of Sport is linked to benefits in the investment in exercise. Many noble Lords would identify GC 171 Olympic Legacy (S&T Report)[LORDS] Olympic Legacy (S&T Report) GC 172

[EARL HOWE] This year saw the introduction of two new QOF with that view but we must remember that health and indicators for physical activity. Those measured the well-being boards have been given, quite explicitly, the percentage of patients with hypertension who had freedom to prioritise their own spending in relation to been screened for inactivity and, of those not meeting local public health priorities. However, I expect Public the guidelines, the percentage offered brief advice on Health England to show the way in the area for local how to be active. I have to tell him that these indicators health and well-being boards to follow. have been retired from the 2014-15 QOF as part of the We envisage that the national centre will continue exercise to free up space for GPs to provide more to attract grants from the research councils and deliver personalised care. That agreement saw a reduction of work of the highest quality, with the support of their the QOF by more than a third. However, the NHS world-leading host institutions. health check programme continues to recommend that patients should be screened for their physical activity Given the important health benefits of physical levels and the delivery of brief advice or an exercise activity, the Select Committee was right to focus attention referral for those who are shown to be inactive. At the on the training of health professionals at all levels to same time, we are actively considering the case for be able to prescribe exercise for prevention and treatment. continued monitoring of the retired QOF indicators Clearly, the content and training curricula for doctors to help inform NHS England’s developing primary is determined by the medical schools and royal colleges, care strategy. but the Department of Health will work closely with Public Health England and other interested organisations We are committed to the dissemination of the UK to make the case for physical activity in healthcare. On Chief Medical Officer’s guidelines for physical activity, a more practical level, I am pleased to announce that to both the public and medical professionals, and we Public Health England has commissioned an e-learning are working with Public Health England and other module on physical activity for healthcare professionals, organisations to help make healthcare professionals to be distributed by BMJ Learning. aware of those guidelines. The noble Lord, Lord Krebs, mentioned the National My noble friend Lord Addington asked why there Institute for Health and Clinical Excellence. NICE are not more sports injury people in A&E to treat soft plays an important role in turning research evidence tissue injuries. I agree that athletes understand the into authoritative and practical guidance for practitioners importance of prevention. Sport and exercise medicine and commissioners. Where appropriate, both its public is, as he knows, a young specialism. Part of the work health and clinical guidance recognise the contribution of the National Centre for Sport and Exercise Medicine that physical activity can play in the prevention, will be to scale up sports and exercise medicine services management and treatment of particular conditions, and it will be important to ensure that supply is linked ranging from obesity to osteoarthritis and low back to demand. pain. I assure the noble Lord that many of NICE’s clinical guidelines recognise the important role that The noble Lord, Lord Krebs, asked about the quality exercise and physical activity can play in the management assurance of research initiated by the DCMS. I have of individual conditions. For example, its clinical guidelines already alluded to that very briefly. There is no specific on osteoarthritis and low back pain already recommend monitoring or assessment undertaken by the DCMS exercise. I am confident that NICE will continue to of the research commissioned by its arm’s-length bodies. consider the role of exercise and physical activity in However, UK Sport acknowledges that further steps the management of particular conditions, where the are necessary to provide stringent assessments of standards evidence allows. and has already made progress on this for the next funding cycle from 2013-17. This includes the appointment The noble Lord, Lord Hunt, asked about the scope of an independent, technically structured sub-committee for disseminating exercise guidance for specific chronic in addition to the research advisory group that has conditions to GPs. We are exploring the options for a been in existence for a number of years. That will national dissemination of this learning, which would provide a more extensive overview of all investments need to be underpinned by better training for doctors in science, medicine and engineering. in the benefits of physical activity. The new e-learning package commissioned by Public Health England Sport is a key part of a wider physical activity represents an important step in that direction. agenda, with an important role to play in getting and Exercise professionals also play an important role keeping people active and thereby improving their in supporting the most vulnerable patients to exercise health and well-being. All sport is physical activity but as part of their treatment for a range of conditions—for an important part of Sport England’s youth and example, as part of cardiac rehabilitation. Ukactive community strategy is pilot funding to support how has been working with the royal colleges and training sport can best contribute to improving health and, at organisations for the fitness industry to develop new the same time, grow weekly sports participation. There professional and operational standards for exercise are important links between elite sport and the health referral. That work is awaiting the update by NICE of of the public. its existing recommendations on the use of exercise Aligned to the ambition of getting more people referral schemes, which it plans to publish in September participating in sport once a week, Sport England has next year. focused its work on tackling inactivity as this is where The noble Lord, Lord Krebs, asked about the we can make a significant contribution to reducing possibility of incorporating physical activity into an health inequalities and produce the greatest potential indicator in the quality and outcomes framework. health benefits. GC 173 Olympic Legacy (S&T Report)[11 DECEMBER 2013] EU: Fraud (EUC Report) GC 174

Returning to elite sport, the fruits of National and women. There may well be an art to it but that Lottery funding are there to be seen in Team GB’s does not mean there cannot be science as well working recent success in the Olympics. I was reminded today alongside the art. The point made by the noble Lord, that in 1996 GB won only one gold medal. In 2000, Lord Moynihan, and others about learning the lessons that went up to 11; in 2004 it was 9; in 2008 it was 19; of history and from other countries is immensely and last year it was 29 gold medals. important. Although we are obviously doing many However, the lasting impact of sport and healthy things very well, we must not forget the possibility of living has always been at the centre of the legacy healthy plagiarism from other countries and the history ambitions of the Olympic and Paralympic Games. books. Our 10-point plan includes: elite sport, world-class I thank the noble Earl, Lord Howe, for his responses facilities, major sports events, community sport, the to the questions raised during the debate. I was encouraged strategy for youth and community sport, the charity to hear about additional investment in sport and Join In, school games, physical education and disability exercise science and medicine, the sustainability of the sport. For example, there will be £150 million a year national centre and the e-learning module that will for primary school sport starting in September 2013 help professionals to disseminate the importance of and £1 billion over four years to boost youth and exercise to patients and the public at large. I also noted community sport. and welcome that he said that there was an emphasis In his Autumn Statement, my right honourable on disseminating and publishing the results of work friend the Chancellor of the Exchequer announced on elite athletes so that it could benefit the wider that the Government will provide £150 million of community. I still very much hope that a national funding to continue the school sport premium into the strategy for sport and exercise science and medicine academic year 2015-16, meaning that primary schools will emerge in the not-too-distant future, but I am very will be able to put in place longer-term plans to pleased with the responses obtained. improve their PE and sport provision. This is not just Motion agreed. about elite sport. It will help people start to be and stay active, whether through sport or wider physical activities. EU: Fraud (EUC Report) My noble friend Lord Moynihan asked about a Motion to Take Note cross-government push. The Olympic and Paralympic Legacy Cabinet Committee is the focal point for legacy and is well placed to ensure a joined-up approach to 5.15 pm sport and physical activity. The Department of Health Moved by Lord Stoneham of Droxford is obviously the lead department for health in promoting That the Grand Committee takes note of the physical activity. We are working with other departments Report of the European Union Committee on to support active lifestyles. Departments have jointly The Fight Against Fraud on the EU’s Finances made available £300 million to raise the game in (12th Report, Session 2012–13, HL Paper 158). primary school sport. The Department for Transport awarded £77 million to increase cycling in eight of our major cities, with £1.2 million from the Department of Lord Stoneham of Droxford (LD): My Lords, this Health to support walking. More than a million more Motion was at one stage in the name of the noble people are playing sport than in 2005. I suggest to Baroness, Lady Corston. As noble Lords may already noble Lords that that progress is positive. As regards know, the noble Baroness was unwell last week and is the Government’s effort, all this adds up to a significant recuperating at home. Therefore, I am speaking on her investment in health-enhancing physical activity, driven behalf. by what we have learnt from sport and exercise science The European Union Committee’s Sub-Committee and medicine. E on Justice, Institutions and Consumer Protection, of which I am a member, prepared the report which is 5.11 pm now before the Grand Committee. The Motion invites the Grand Committee to take note of the report The Lord Krebs: I thank all those who have taken part in Fight Against Fraud on the EU’s Finances. I welcome this debate. It has been a privilege to hear the contributions the involvement in this debate of my noble friend Lord of all noble Lords, but particularly of those who have Newby. Given his experience in Customs and Excise, I first-hand experience of participating in elite sports as cannot think of a Minister more qualified to reply to a Olympians or other forms of competing at a very high debate on fraud. level. In July last year, under the considered and diligent One theme has come through repeatedly: the huge stewardship of the predecessor of the noble Baroness, importance of the health benefits of sport and exercise Lady Corston—the noble Lord, Lord Bowness—the in tackling the chronic diseases that plague the population sub-committee of which I am a member decided to of this country and will cost us huge amounts of launch an inquiry into fraud on the European Union’s money in future. The noble Lord, Lord Addington, finances. The committee sought to gauge the vulnerability raised a very important point when he talked about of European Union funds to fraud and assess the the enjoyment of sport and exercise. Perhaps the key effectiveness of the European Union’s anti-fraud system to encouraging people to be more active is to show and the effectiveness of the member states in pursuing them the enjoyment that can be obtained from it. He any crimes perpetrated against the European Union’s also referred to the art of coaching elite sports men budget. GC 175 EU: Fraud (EUC Report)[LORDS] EU: Fraud (EUC Report) GC 176

[LORD STONEHAM OF DROXFORD] suggested that EU funds were no more prone to fraud In addition, the inquiry was timed to coincide with than national budgets, while the UK Government the publication of a directive aimed at protecting the argued that EU funds, European Union’s financial interests through the criminal “will always be vulnerable to fraud”. law. We saw more than 30 individual witnesses and some members of the committee, including myself, The UK’s National Fraud Authority which, until travelled to Brussels, where we saw all the relevant EU its recently announced abolition by the Home Secretary, agencies and bodies tasked with dealing with fraud, was tasked with co-ordinating anti-fraud action in the plus a number of MEPs. We are very grateful to all UK, told us that the current level of fraud suffered by those who submitted evidence to our inquiry. the UK public purse amounts to about £20.3 billion per annum, which suggests that for 2011 in the UK, Since 2011, the Commission has produced a number 3.4% of the public purse was lost to fraud. So, in line of legislative proposals designed to improve the protection with the Commission’s evidence that the EU’s budget of the EU’s financial interests which are highlighted in is no more prone to fraud than national budgets, the the report. In addition, since the report’s publication committee took the estimate for fraud in the UK and in April this year, the Commission has also brought applied it to the EU’s annual budget for 2011 and forward a regulation reforming Eurojust—the European arrived at a figure for fraud on the EU’s budget for Union’s criminal justice agency—and the controversial 2011 of ¤4.82 billion, a figure more than 10 times proposal introducing the concept of the European more than the Commission’s official figure. Public Prosecutor’s Office, which is designed to prosecute The committee’s report recognised the various caveats crimes affecting the Union’s financial interests. The and warnings that have been applied to the process of Government have decided not to opt in to the Eurojust deriving these figures for fraud on the EU’s budget proposal, against the express view of this sub-committee, from national figures. Nevertheless, it is clear to the and the coalition agreement has ruled out the UK’s committee that the Commission’s official figure for participation in the European Public Prosecutor’s Office. 2011 of ¤404 million offers only a glimpse of the levels European law makes combating fraud on the EU’s of fraud perpetuated against the EU’s finances. If the finances the responsibility of both the European Government are right that EU programmes will always Commission and the individual member states, but the be vulnerable to fraud, and in some member states member states’ authorities remain responsible for increasingly so, the final figure will be even greater. I administering 80% of the money. Given this fact, the note that in its recent impact assessment in support of overwhelming weight of responsibility for the protection the proposed European Public Prosecutor’s Office, the of the EU’s financial interests falls on the individual Commission suggested that the actual level of fraud member states and, in the context of criminal frauds, on the EU’s budget was in the region of ¤3 billion, so their crime-fighting bodies. it is moving towards the committee’s figure. The report recognises the hidden nature of criminal In their formal response to this report, the Government fraud. We understand that estimating the levels of expressed concern about our estimate of the level of fraud perpetrated in the individual member states with EU fraud, adding that they did not recognise the any degree of accuracy is very difficult. These problems committee’s figure. We were disappointed with the are magnified once you introduce the additional Government’s lack of engagement with this key conclusion complexity of the European Union’s 28 member state of our report, so I offer the Minister an opportunity structure, but these difficulties should not allow the during this debate to engage with this aspect of our member states to ignore their responsibilities. conclusions. Given this disappointing context, we were I plan to concentrate on four key aspects of our unable to see how the member states’ and Commission’s report: first, the vulnerability of EU funds to fraud claims to protect the EU’s financial interests could be and their potential scope for fraud; secondly, fraud justified. We hope that the introduction of the directive specifically in the UK related to EU funds; thirdly, the on protecting the EU’s financial interests via the criminal European fraud concerning VAT; and, fourthly, the law, which introduces an EU-wide definition of fraud European Union’s anti-fraud structure. I turn first to on the EU’s finances, will help to alleviate this problem. one of the main conclusions of our report; namely, the We also looked specifically at the extent to which vulnerability of EU funds to fraud. In 2011—the year fraud against the EU’s budget was committed from that forms the main focus of the committee’s inquiry—the within the UK and assessed the rigour of the EU’s budget was ¤141.9 billion. In 2011, the total Government’s duty to report evidence of fraud to the government revenue in the UK for the same year was Commission. I regret that the picture that emerged £589 billion. The UK’s budget is three and half times was not good. The committee recognised that the the EU budget. same difficulties that apply to estimating fraud on the Under its obligation to report annually on its anti-fraud EU’s budget also apply to assessing the levels of EU work, the Commission produces a figure for fraud in fraud committed from within our shores. None of our the European Union based on the frauds reported to it witnesses was willing to place a precise figure on the by the relevant member state authorities. The figure problem, but the National Fraud Authority suggested for 2011 was ¤404 million, or 0.28% of the EU’s 2011 a figure of £41 million, about 1% of the total EU-funded budget. Many of our witnesses told us that this was an expenditure in the UK. However, it warned us to treat underestimate of the problem, and Rosalind Wright this estimate with a “high degree of scepticism”. QC, former director of the Serious Fraud Office in the What emerged is that no single government department UK, said this figure represented the tip of the iceberg. or body appeared to co-ordinate or take ownership of The Commission rejected the iceberg analogy and the UK’s fight against EU fraud. The Government GC 177 EU: Fraud (EUC Report)[11 DECEMBER 2013] EU: Fraud (EUC Report) GC 178 told us that they take all these matters seriously and remains an agency of limited powers. Budgetary EU fraud “extremely seriously”, but the responsibility restrictions force it to be selective about the cases it to deal with fraud and to report it to the Commission pursues. We are concerned that if OLAF were to be falls on the individual department dealing with the seen as a body whose recommendations are never relevant funds. When asked, the Minister was not followed up by the individual member states which “sure”whether the Government collated all the different lack enthusiasm in dealing with EU fraud, its effectiveness departmental figures into one place. This lack of will be questionable. We also fear that the relationship co-ordination concerned us and confirmed our view between the EU’s crime-fighting agencies—Europol, that individual member states, including the UK, do Eurojust and OLAF—as currently constituted represents not devote significant resources to pursuing EU fraud a tangled web which undermines any co-ordinated and, as is their responsibility under EU law, to reporting response to fraud on the EU’s finances. it to the Commission. Finally, given that it was repeatedly proposed as a We therefore recommended in the report that the solution to the problems inherent in the EU’s anti-fraud Government nominate a single department or agency system, the report briefly addressed the then unpublished to co-ordinate the fight against EU fraud in the UK proposal for a European Public Prosecutor’s Office. and to take responsibility for attempting to quantify This was brought forward by the Commission in July, the problem. In their response to us, the Government and we issued a reasoned opinion challenging the agreed that this information should be shared between proposal on subsidiarity grounds. We concluded the government departments and that, while there is room report by asking the Government how they would for improvement, such sharing already takes place. We propose tackling the flaws identified in our report welcome this, although we have wondered why it has without participating in the European Public Prosecutor’s been so difficult for the committee to get a clearer Office proposal. We have as yet not received a satisfactory estimate of the level of the problem in the UK, even reply to that question and would be grateful if the allowing for the nature of fraud, from those witnesses Minister could address the issue in his reply. we saw from the relevant national bodies. While combating fraud in the EU’s finances may Furthermore, on 2 December the Home Secretary pose unique challenges for both the EU’s institutions by way of a Written Statement announced the abolition and individual member states, protecting the public in March 2014 of the National Fraud Authority. I purse in these difficult economic times remains the note that her Statement makes no mention of EU responsibility of us all, as we say in the opening fraud, nor does it assign responsibility for dealing with chapter of the report. Those of us committed to the problem to any specific UK body. I therefore have countering negative public scepticism about EU to ask the Minister: who will be responsible for leading institutions also have every interest in a more vigorous the fight against EU fraud in the UK after 31 March approach to eradicating the perception and reality of 2014? fraud. I beg to move. I turn now, briefly, to VAT fraud or carousel fraud, as it is often known. This is a highly technical fraud 5.30 pm perpetrated against the VAT system involving a series of often non-existent transactions involving the purported Lord Bowness (Con): My Lords, I thank my noble movement of goods and services within the EU’s friend Lord Stoneham of Droxford for his comprehensive single market. At the outset of our inquiry, the introduction of this report and for his support—together Government were of the view that VAT fraud was with that of the noble Lords, Lord Rowlands and outside the scope of our investigations, but it was clear Lord Anderson of Swansea, the noble Earl, Lord from the evidence received that this remains a very Sandwich, and my noble friend Lord Eccles—during significant problem throughout the EU. The report is the conduct of this inquiry under my chairmanship of clear that the committee understands the Government’s the sub-committee. I am sure that we all want to send opposition to any EU measure or action which would the noble Baroness, Lady Corston, good wishes for extend the EU’s competence into tax enforcement in recovery from her illness. the UK, but we argue that this legitimate concern should not allow fraud which diminishes the amount I am delighted that the House, albeit eight months due to the EU to be ignored or not pursued with after publication, now has the opportunity to debate vigour. We have our doubts that existing EU measures this report. I will emphasise a few points, although are tackling this problem and, therefore, the report they have been covered very adequately by my noble called on the Government to suggest alternative robust friend. I particularly regret the rejection by Her Majesty’s measures to combat VAT fraud. In their response the Government of the suggestion that one department Government reassured us that they are fully committed have overall responsibility for ensuring that the fight to fighting VAT fraud and that it is “pursued with against fraud is kept to the forefront of everyone’s vigour” by HMRC. Perhaps the Minister will confirm attention. I note from the response that the Government what that figure will be. We do not doubt their believe that individual departments are best placed to determination, but are the Government sure that the detect, prevent and rectify fraud or irregularities and other member states’ authorities pursue this problem that reducing this to a single department would lead to with similar enthusiasm and vigour? duplication and slow down the process. Of course, the report did not advocate that but rather that one The committee considered the quality of the EU’s department should have responsibility for co-ordinating current institutional framework for dealing with fraud. the efforts of each. While we understand a lack We found that OLAF—the EU’s anti-fraud body— of knowledge of the amount of undetected fraud, GC 179 EU: Fraud (EUC Report)[LORDS] EU: Fraud (EUC Report) GC 180

[LORD BOWNESS] to him that it was not really relevant to the point. it is less understandable why, in evidence, the However, perhaps we should remember that it is not Government were unable to give us a total figure for an easy matter to deal with. The stringency of the detected fraud. rules and the fact that the money is dealt with by We also advocated one point of contact between member states leads to a difficult situation in the OLAF and the United Kingdom. The Government Union’s accounts. To put that in context, I read in the highlighted the difficulties of different jurisdictions Times this morning that the Auditor-General has declined within the United Kingdom. However, that should not to sign off the accounts of the Department for Work create a problem. This is still one country with a and Pensions and that depending on whether you national Government. There could well be a single believe the Telegraph or the Daily Mail this is the point of contact. What happens thereafter would and 24th or 25th consecutive year in which that has occurred. should remain a matter for the relevant devolved Administrations. 5.37 pm We are also well aware of the Government’s position on the European Public Prosecutor’s Office. Indeed, Lord Davies of Stamford (Lab): My Lords, I the Committee and the House made their position on congratulate the noble Lord, Lord Bowness, who was that clear. I do not know whether the present proposal the chairman, and his sub-committee on their decision will go ahead under enhanced co-operation but the to focus on this extremely pertinent matter and on the recommendation in the report urged the Government thoroughness of their engagement in this revealing to make clear what proposals they would bring forward inquiry. I also take the opportunity to welcome my to tackle this problem. Like my noble friend Lord noble friend Lady Morgan to the Front Bench on a Stoneham, I ask the Minister to explain further. European issue. It is the first time I have had the privilege of standing beside her or behind her on a We were singularly disappointed by the apparent European subject on which she has been leading for lack of engagement by the Government and HMRC my party. in the course of this inquiry and report. That appeared to stem from the belief—a proper one—that matters Three particularly striking and salient points emerge of taxation are the exclusive prerogative of the member from this report. The first relates to the amount of states. However, protecting one’s turf should not exclude fraud. The Commission suggests that fraud was running recognition of a problem or the search for a solution. at ¤400 million in 2011—I have taken this figure from That I felt particularly true of the problem of VAT the report—which would be 0.28% of the current fraud and its international elements, coupled with the budget of the EU. That is a very low figure indeed. complicated and some may say tenuous connection The committee obviously thinks that that is an between VAT gathered and money due to the European understatement and has decided that it wants to multiply Union. It seemed and still seems to be an area of that to produce a figure that corresponds to the fraud legitimate inquiry for the committee. That view was estimated to exist in this country as a proportion of its confirmed when the Minister told us, “Oh, it was only public expenditure. It came up with figure roughly a very small proportion of the money that went to the 10 times greater than the commission has proposed. It European Union compared with VAT totals as a whole”. does not have any reason for that particular multiple That small sum was £2 billion. and it may be that the truth lies between those two figures. However, what is inconsistent with the picture The committee went to Brussels and saw OLAF. given by this report is the notion, which is purveyed We were singularly concerned about the apparent the whole time in Eurosceptic propaganda, that the discord between the director and the supervisory European Union is a sink of iniquity in terms of committee, which evidenced itself in the morning that fraud. Clearly the level of fraud is, at worst, comparable we were there. I do not know what the outcome is. with the level of fraud in this country. That is a bad Perhaps the Minister, having seen our report and the situation. All fraud is regrettable and must be dealt response, will be able to bring us up to date on the with thoroughly. It should be of particular concern to present position. parliamentarians because it is our job to monitor the We also talked to a number of MEPs and the performance of governance in this area. Nevertheless, relevant committees. They showed considerable concern the figures before us will be quite surprising for the and awareness of the problem—a view shared, I believe, British public, who are used to being fed the propaganda by my colleagues on the committee—but perhaps do line by the media in this country that the level of fraud not have the power necessary to make a real difference. in the EU is vastly greater than here. Some of the I will be interested to hear from the noble Baroness, analogies that the noble Lord, Lord Bowness, has Lady Morgan of Ely, who is winding up for the cited about British government departments’ records Opposition for the first time in a European debate in in that area reinforce that. which I have taken part, how, in the light of her The second matter is very salient. It is quite clear considerable experience in the European Parliament that the overwhelming majority of fraud, perhaps and of matters of this kind, she sees the problem being 99%, arises in the area where national Governments dealt with. are disbursing EU programmes. It does not arise in the Having been got up at a somewhat ungodly hour to institutions of the Union where fraud is an extremely be interviewed about this report by a radio presenter, rare event. That is even more striking in relation to the he missed the whole point of the report and raised false propaganda that I referred to. There is an irony with me the question of the European Union’s accounts here because the Eurosceptic lobby in this country, not having been signed off by the auditors. I suggested which is very powerful, as we know, always makes out GC 181 EU: Fraud (EUC Report)[11 DECEMBER 2013] EU: Fraud (EUC Report) GC 182 that this fraud is a consequence of too much European The report does not avoid the question of what we integration and is part of the evil of European integration do about it and the inquiry took a lot of evidence on or, they would say, the evil of European federalism. that subject. For example, I refer noble Lords to the In actual fact, ironic as it is, it is quite clear from these testimony given to the committee and quoted on figures and from the reality of the position that the pages 34 and 35. Paragraph 97 states: reverse is true. If in fact these programmes were all run “The Director-General of OLAF”— by the European Commission with disbursements under that is one perspective, but a very important one— the CAP, the structural funds or the cohesion funds “gave us a vivid account…of the multi-jurisdictional problems and were the responsibility of European officials, there confronting OLAF on a routine basis. He argued that such would not be anything like the same kind of problem. multi-jurisdictional crimes against the EU’s budget are ‘European There would be vastly less fraud. The problem is that by nature, because you cannot say it is specific to this nation or the national states are disbursing this money, and it is that one’. He was clear”— in the national states that the losses, fraud and corruption this is my emphasis— occur, in some nation states much more spectacularly “that the solution to this problem is an EPPO”— than in others. I shall come on to that in a moment. in other words, a European public prosecutors office. In a way, the reality is not evidence of an excess of “Most of the witnesses agreed … Rosalind Wright QC”— federalism in the European Union but an argument she is, of course, a former director of the Serious for an insufficient degree of federalism in the European Fraud Office— Union. I do not suggest for a moment that it is “offered two reasons in favour of an EPPO; first, the current practical to have all the community budget disbursed unwillingness of the Member States to prosecute these crimes … by an enlarged Commission. In the United States, a and, second, the fact that ‘most of these very large frauds are lot of federal programmes are actually run by the committed across national boundaries’. Drawing on her time at individual states, and they are responsible for making the Serious Fraud Office, she explained that in such cases it had been hard to bring everyone together under one jurisdiction and disbursements under those programmes. Nevertheless, that an EPPO would help”. that is a very important and authoritative corrective to The committee itself, which is an all-party organisation the prevailing and utterly false impression given in this and has always to express itself with great reserve and country quite cynically by the media purveying a care—I understand these things because I sit on another picture that is the exact obverse of the truth. sub-committee of this House—is absolutely clear, using The third salient point that emerges very strikingly parliamentary language. It said that, from this report is that there have been quite serious “it is unfortunate that the Government have ruled out participation impediments in some of the member states in following without first having had the opportunity of considering the up on allegations of fraud or prima facie evidence of details of any proposal and without knowing what form an EPPO fraud that have been brought to their attention by would take”. OLAF. I refer noble Lords to the very interesting It is quite obvious what is going on here: the Table 1 on Page 29 of the report. It is headed, Government are not taking into account the national interest. They are not making, or even attempting to “OLAF referrals to Member States”. make, an objective analysis of where the national The left hand column shows the number of referrals interest lies in this matter and what the right solution by OLAF of prima facie evidence of fraud. All the to those serious problems should be. They are not columns are interesting but for the sake of brevity I doing that and should be. It is what they are paid to do switch right away to the far right-hand column which and it is what we expect a Government to do in a shows the level of convictions. Noble Lords will see democratic country but they are not doing it. They are that for all 27 member states—there were 27 at that excluding the obvious, pragmatic solution, a priori, time—there were 199 convictions out of 1,030 referrals. without waiting for the details and on the basis of I calculate that as being roughly 18%. That is the what one can only describe as prejudice or ideology. average. One sees immediately that the United Kingdom That is simply not good enough. is slightly below that. I calculate that figure as being Now, I am very familiar with this Eurosceptic about 15%; so in this country we are not quite as good prejudice—it is nothing more than that: a refusal to as the average. The worst performers are Italy, Poland look pragmatically and open-mindedly at issues involving and Greece, which all have a record of about 6% or 7% anything to do with the European Union. That is very of convictions in relation to the number of referrals. pervasive in the Tory party and was one reason why, Far and away the star performer is Germany, with seven or eight years ago, I left the party. We have almost 40% of referrals resulting in convictions. before us now a Minister who is a Liberal Democrat. I did not think such prejudice was pervasive in the OLAF is a single organisation involving people Liberal Democrat Party and look forward with great who will be working on different cases involving different interest and expectation to see how he will defend the fraud allegations in different parts of the Union at any actions, or deliberate inaction, of this Government in one time, so one can assume that their standard of a case where an important national interest is being performance and the solidity of the cases that they explicitly and deliberately neglected. make will be the same irrespective of the member state where the fraud happens to have occurred. That means that there is an enormous discrepancy in the extent to 5.47 pm which these allegations of fraud are followed up. That The Earl of Sandwich (CB): My Lords, I follow the is a very serious matter for EU taxpayers as a whole. noble Lord, Lord Davies, in much of what he said. As The question is: what do we do about it? a former member of sub-committee E, I thank the GC 183 EU: Fraud (EUC Report)[LORDS] EU: Fraud (EUC Report) GC 184

[THE EARL OF SANDWICH] decision to prosecute. We were told that, in principle, noble Lord, Lord Stoneham, for his introduction of to investigate a case of fraud against the EU budget, the report and our chairman, the noble Lord, Lord OLAF is supposed to request information from the Bowness, for all that he did. I also thank our senior judiciary in the member state involved. As the noble legal adviser Mike Thomas, ably supported by Messrs Lord, Lord Davies, said, one of our key witnesses, Ridout, Mitchell and others. Mr Thomas’s outstanding Rosalind Wright QC, said that judiciaries in member work on this made the evidence much more intelligible states are, and our conclusions more fit for purpose. We wish him well in his retirement next year. “in some cases … reluctant to investigate their own nationals for a fraud on a subsidy that is being paid centrally from Brussels”. As the noble Lord, Lord Davies, said, the subject of fraud in the European Union is enough to get everyone We heard from Professor Spencer and others that, excited, not only the Eurosceptics but also those who even after an investigation, OLAF has no powers to consider the UK to be free of blame and squeaky compel member states to act. Some call it toothless—but clean. The fact is that fraud exists everywhere: not just that is just the point. It was a conscious decision of the abroad but in this Palace, in the City and in businesses member states not to give it those powers. Because of all over the country. Noble Lords will remember that this, at ¤404 million in 2011, the total amount of fraud one of the biggest frauds occurred in the al-Yamamah is being wholly underestimated by the Commission. contract. After that was investigated by the SFO and The Government’s response throws doubt on the discussed at length in Parliament, it was abruptly estimates of ¤5 billion, although they are derived from hushed up by the then Attorney-General in the public National Fraud Authority figures. As the noble Lord, interest. Of course, that was all about a princely sum, Lord Stoneham, said, in explaining the difficulty of even for a prince, and it was assumed by most people estimating the amount, the Government say that the that it was the way things worked in Saudi Arabia. But Commission’s database is constantly being updated no: the SFO calmly and correctly reminded us that and that it makes no distinction between “suspected there are two parties to every contract who shared and established fraud”. Irregularities are sometimes responsibility equally. That is worth mentioning in included and sometimes not. Again, if we and other this case. member states are reluctant to investigate, we are This country is in no position to complain about never going to find out how serious the problem is; we the European Union or other EU states. In fact, if our are just going round in circles. consultants wish to teach anti-corruption measures to developing countries, as they do daily around the Communications with OLAF have been inadequate, world, they may be qualified to do so but they cannot to say the least, and what we call a lack of enthusiasm expect countries such as Kenya and Afghanistan to all round for reporting fraud is, to me, the most look up to us as angels of accountability. We may be serious issue. A related problem for OLAF is that higher in the transparency index but we are all in the there is no single point of contact in the UK Government mud together. The Commission protests that fraud in and very likely not in other Governments either. The the EU is no worse than fraud in the member states Commission’s response agrees with our analysis, saying and it is right that there always seems to be a presumption that member states have a continuing duty to provide of member state innocence. The EU institutions usually the information. The Commission refers to the recent get blamed for the failure to prosecute when in fact it tightening of the system through new investigative is more likely to be the individual country concerned. procedures, mentioning a new regulation establishing As our report states, responsibility for avoiding fraud a clearer legal framework. Her Majesty’s Government’s does not rest solely with the Commission. The treaties comment is that “progress is being made”. We shall require both the EU institutions and the member hear in a minute what that means. states to counter fraud affecting the financial interests of the EU. The Commission invests rather a lot of hope in establishing an EPPO, which it conceives as a There are, of course, recent examples of general “decentralised structure” integrated into the national fraud in both the EU and national Parliaments, and judiciaries. We all hope that that will never happen. the issue can lead to strong emotions. In some cases, it can come to blows; last June, an Italian MEP called On the question of a UK focal point, the Commission Raffaele Baldassarre was caught red-handed on YouTube says that there must be a national body designated to entering a lift in the European Parliament. He proceeded, co-ordinate what it calls anti-fraud co-ordination services, on camera, to box the Dutch journalist who was which will strengthen the co-operation between OLAF accusing him of fraud. Astonishingly, in southern and member states. Perhaps the Minister will update Europe, the public do not always notice when their us on the likelihood of any such co-ordinated service representatives are accused of fraud. There was another in the UK, and on any further conversations between case, which I shall not go into, of a Maltese MEP who the Home Office, the City of London police and faced criminal charges for alleged fraud over three others involved. years. This was uncovered by the anti-fraud office, The Government’s response merely says that there OLAF. is room for improvement; it quite reasonably rejects That brings me to one of our main recommendations, the idea of a new department, mentioned by the noble that while OLAF itself needs to improve its act and Lord, Lord Bowness, but it seems to me and to him protests that it is already doing so, member states must that we are putting off the more fundamental question give more support to OLAF, including taking the of co-ordination—unless the Minister proves us wrong. GC 185 EU: Fraud (EUC Report)[11 DECEMBER 2013] EU: Fraud (EUC Report) GC 186

5.54 pm to wise implementation of answers to these problems? When there are problems there is always a temptation Viscount Eccles (Con): My Lords, I go back a long to design new institutions or seek more legal procedures. way to 1949 and the Council of Europe. If ever there However, in my experience, for all the people who were a referendum, I cannot imagine voting to come claim to have a good plan to do this or that, few could out of the European Union. That does not mean that I implement such a plan if it were put into place. Therefore, cease to think about the problems facing Europe and for me, it is important to implement measures within speculate a bit on how much of a contribution we can the existing systems. How can we make the existing make to the solutions to those problems. structures work better? Reference has been made to I have to record that I was new to the committee OLAF and I completely agree that there is a pressing when it started this inquiry, and new to the procedures need to co-operate and exchange data. Whether it is of sub-committees preparing reports, although I had sensible to have that channelled into one place, I leave read quite a number of them. As I went into that I to others to decide. If people are willing to work with thought about the background—the financial crisis, of and talk to one another, we do not necessarily need fairly rapid change, the expansion of the membership just one focal point. of the Union and the identification of problems. There However, of one thing I am certain: that is, in the is of course a rather large gap between the identification difficult circumstances that pertain, particularly within of problems and the practicality of solutions to them. the eurozone, we need to work with what we have. I do I was also minded to think that many empires have not see any future in having new centralised institutions. fallen because they were top heavy. Today we know As for the United Kingdom, we should cope better very many things and how to do them; in fact, there is than we do with any fraud that is perpetrated here. We a lot that we know about how we could do them if we should seek to minimise fraud and prosecute those had the resources, but we do not. We do not have the committing it. As regards cross-border fraud, we should money and, more importantly, we do not have the offer others maximum co-operation, but seeking a people. The people who are capable of implementing centralised, European Union-wide silver bullet to solve some of the things that we would like to see implemented these problems will not work and we should not are spread very thin. contemplate it. In considering the report, I wondered: where do we, the United Kingdom, rightly come into this picture? The report says with great accuracy that fraud is 6.01 pm opaque. As the noble Earl, Lord Sandwich, said, it is Lord Rowlands (Lab): My Lords, while I have listened also endemic. It does not matter what we are going to to the debate I have tried to recall the evidence we do, it will not disappear, because human nature is best received and the witnesses we heard. I regret to say seen as a constant. Therefore, the first question that that my abiding impression of the evidence we took we might ask is: how many programmes do we want? and the witnesses we heard was that there was a kind What level of expenditure within those programmes of collective buck-passing going on and that no one do we want? What complexity do we want those was willing to accept responsibility. Everybody said programmes to have? What are we actually trying to that they hated fraud and that it was a serious issue, do with them? If we had fewer programmes we would but you did not sense that dealing with it was a have less fraud. The more complex the programmes priority for any of the institutions. I do not know are, the greater the army of people. I have applied for whether other members of the committee were left European money in the past, and the number of with that impression. people who will advise you on how to knock down Our report found a lack of enthusiasm, a lack of that money from the tree is legion. It is a profession—and, uniformity of approach and weakness in the ability of of course, those people could be doing something else, OLAF to fulfil its remit. The noble Lord, Lord Bowness, perhaps adding more value. So is that the right use of reminded us of the rather extraordinary day when we resources? We should think rather more seriously about witnessed a kind of internal warfare going on before the objectives we are looking for. our very eyes. I hope to goodness that when the We then come to another danger and another question. Minister replies to the debate, he will reassure us that Are we right to be judging others by ourselves? Almost OLAF has got over that spat. This lack of co-ordination certainly not. The Commission, after all, is sui generis, and enthusiasm are partly reflected in the incredible and I join others in saying that there is absolutely no divergence of assessment in relation to the size of the point in being highly critical of the Commission because fraud, which reflects the fact that there is no collective there is fraud against its programmes. That does not grappling with this problem. Incidentally, there is no make any sense at all. I completely agree with that. lack of activity on this issue. I calculated that no fewer Then we think about the members, their objectives, than 13 documents and legislative proposals dealing the reasons why they are members in the first place with various aspects of fraud were presented to our and their capacity to implement programmes. If they committee. It is not a question of lack of activity on take advice, which they do, there are many imaginative the part of the Commission or anyone else but rather, ways of providing that advice. That imagination can it seems to me, a lack of effective follow-up, and of extend into how you spend the money, as well as how matching that activity with effective operational action you get it in the first place. on the ground across the piece. I cannot get excited about the uncertainty in the There have been suggestions about reforming OLAF figures. My question is: what do you do about the and Eurojust, and my noble friend Lord Davies mentioned situation? What is the United Kingdom’s contribution the EPPO. The committee did not, and has not, endorsed GC 187 EU: Fraud (EUC Report)[LORDS] EU: Fraud (EUC Report) GC 188

[LORD ROWLANDS] 6.08 pm the concept of the EPPO. I am sure that he did not intend to create the impression that it had. It did not Baroness Morgan of Ely (Lab): My Lords, I thank endorse that concept in the report and has not undertaken the noble Lord, Lord Stoneham, for his introduction. a full inquiry into it. I hope that noble Lords do not I also thank the committee for its work not just on this have the impression that it has endorsed that concept. report, but over many decades. The reputation of this That is certainly not the case. Of course since we did committee is second to none. Certainly during my our report, the Commission has come forward with a years on the budget control committee in the European proposal. I am afraid to say that, as it was brought Parliament, we used to look forward to giving evidence forward, it certainly would not have gained my support to your committee because we knew that there would in any shape or form; I am not sure about other be a thorough investigation, with sophisticated members of the committee. I shall tell my noble friend understanding of the complexities of the way in which why. First, this House, the other House and indeed EU finance works—so I feel privileged to speak in 11 Parliaments found the Commission’s EPPO proposal front of you today. offensive to the whole principle of subsidiarity. The clamour for change and the screaming headlines It is not only that. I have one other suggestion why against the EU when the Court of Auditors published the Commission’s proposal is fundamentally flawed, its annual report were things we learnt to live with on and it is exactly one of the points that my noble friend an annual basis. I learned then—this is underlined in made. The draft seeks to propose exclusive criminal the report—that the picture is much more complicated. jurisdiction to one office, seeking to override national There needs to be a better understanding than the one needs and priorities. I am afraid that that does not those screaming headlines suggested. make any sense. As my noble friend rightly points out, We need to be absolutely clear of what we are 80% of the budget is delivered at national level. It talking about when we discuss fraud. The Court of cannot be the exclusive criminal jurisdiction of one Auditors first takes sample payment transactions in new office to deal with the issue, when in fact the the EU at EU level, national level, regional level and disbursement of such money is overwhelmingly conducted even down to individual beneficiary level. Any errors at national level. It has to be a shared responsibility found in these audits are classified as either quantifiable— with shared co-operation. Indeed, the treaty obliges which means there is a potential impact—or not. The the Commission and member states to deal with this impact rate of the error is then extrapolated to reach a together. Therefore, rather than looking for a solution most likely error rate. That then applies to each in a brand new, single office of the kind my noble department, and then to the budget as a whole. It is friend obviously rather likes, I would look for an completely different from the way in which we do alternative form of enforced shared co-operation between things in Britain and that is probably part of the institutions, governments and national and European reason for the misunderstanding. agencies. That is where the future solution to these We should be clear that those error rates cannot problems lies. simply be translated into an amount lost. Let me give My final point is that, within those improvements an example. If you have a tender process to build a that we should have in co-operation and shared road and someone completed the forms in a way responsibility, and within our own arrangements, is which did not comply with all the rules, that does not the question of having a single agency or point of mean that the road was not built or that you did not contact. Interestingly, over a year ago in the evidence get value for money; it means that the forms were not that we received, there was a volunteer: Commissioner completed in the correct way. That would be counted Leppard of the City of London Police volunteered to as a problem; it would be put into the figures as be the first point of contact, as members might recall. problematic. Indeed, in his evidence, he said that his force was in discussion with the Home Office to develop the concept As the noble Lord, Lord Stoneham, reminded us, of the first point of contact being the City police. That 80% of finance is controlled by member states. In fact, was November 2012. We are a year on. How much the money never leaves Britain. It does not go to the progress has been made? Is the proposal still considered EU and come back; it never leaves Britain. Therefore significant? How far have we got with it? If we have it is expected that member states should put systems in got very little from it, it will only reflect what we all place to protect the EU’s financial interests. fear: that there is not a willingness to carry some of It is also worth noting that the Court of Auditors the reforms and changes through. has signed off the EU account for the sixth year in That specific proposal was put on the table just over succession. It has given a clean bill of health to the 12 months ago—one organisation saying, “We will be Commission’s accounting books. That means that every the only point of contact to co-ordinate activities, euro spent from the EU budget was duly recorded in including the devolved Administrations”. When the the books and properly accounted for. However, for Minister comes to reply I would be grateful if he payments the court requires an error rate of less than would tell us how far that proposal has gone. I would 2% before the EU budget can be declared to be free judge the success of the changes that have occurred by from material error. At the moment the error rate is our doing at least the one thing that we can do below 5% but, as it is not close enough to that 2% , it ourselves: to decide on one single point at which the will not sign off the payments account. co-ordination of these activities takes place. If we do Turning to the subject of the report, deliberate not do that, we will not be seen as combating European fraud is different from errors. It constitutes a criminal fraud. action and has to be dealt with severely. The question GC 189 EU: Fraud (EUC Report)[11 DECEMBER 2013] EU: Fraud (EUC Report) GC 190 being asked in the report is whether the systems and The prosecution of fraud remains a national matter, mechanisms that are in place are adequate to measure and while the UK does not want to sign up to the fraud and defend the EU against it. Is the UK taking European Public Prosecutor’s Office, I question whether up that responsibility and policing this area seriously? we take our responsibilities seriously in terms of prosecuting fraud against the EU budget. I remember The recommendations made in the report seem on several occasions hearing how OLAF investigations eminently sensible. The proposals to establish a were passed on to member states but were not pursued government agency or department to take overall with any vigour in the member state. We heard evidence responsibility and for OLAF, the anti-fraud unit of from some very senior British police enforcement the EU, to have one point of contact make sense. representatives who suggested that although they OLAF did not exist when I was in the European understood their responsibilities, they had an inbox Parliament but was set up while I was there. I can full of domestic crimes and targets on specific crimes assure noble Lords that there was a great deal of that they had to meet so, somehow or other, EU fraud in-fighting when it was set up, but I hope things have cases always seemed to find their way to the bottom of settled down since then. the in-tray. What is the Government’s target for It makes sense to have one point of contact. I was a prosecution? We have heard that 18% are prosecuted. member of the Budget Control Committee in 1999 What is the target? That seems to be a way to get this when the Commission was forced to resign in response to the top of the in-tray of those police enforcement to the failure to take seriously the matter of fraud agencies. against the EU budget. The subsequent report written Finally, will the Minister outline the timetable for by the wise men suggested that it was impossible to the proposed fraud directive, and explain how he find anyone, at any level, in the Commission to take intends to use the expertise of the European committee responsibility. That phrase stood out to everyone. My in the Lords for those deliberations? concern is that having sat in the European Parliament for 10 or 15 years considering this issue and hearing that it is up to the member states to do something 6.18 pm about it, I do not want to come back to the UK and Lord Newby (LD): My Lords, I am extremely grateful hear, “It is not our problem. It is a difficulty for the to my noble friend Lord Stoneham for his introduction EU. We all have to work together”. to this report, to all noble Lords who have spoken and to the committee itself for the detailed report into the This falling between two stools is the problem here. fight against fraud on the EU’s finances. It is a fate that we must avoid in the UK. Knowing who is responsible for collecting and collating information It may be blindingly obvious, but I start by saying and where the buck stops is fundamental to good that the Government also take fraud and the management governance. I take issue with the suggestion that the of taxpayers’ funds very seriously. We have adopted an multiple jurisdictions of the UK provide a block to increasingly robust stance on financial management, this. We manage to organise this for every other aspect and we remain committed to securing and enforcing of the EU’s relationship with the UK, so why not in the most effective means of fighting fraud at both a the area of fraud? national and EU level. Fraud against the EU budget remains a matter of great concern, and this Government Of course, the amount of fraud is by its nature have adopted a leading role in calling for improvements difficult to quantify, so the Commission’s figures are to the way EU finances are managed. only estimates, but it seems that there is a lack of I remind noble Lords that we are the first Government enthusiasm to engage with the detection and reporting to take a firm stance on fraud against the EU budget of fraud against the EU. This is underlined by the fact by voting against the Council’s decision to recommend that the Commission has reported a very low number discharging the Commission of its responsibility to of irregularities as fraudulent in the UK, which has a manage the EU budget. We took a stand by abstaining relatively high EU spending rate compared with other on the Council position on discharge of the 2009 EU member states, suggesting a degree of non-compliance budget and increased the pressure by voting against with reporting principles. Will the Minister therefore the Council’s recommendation to discharge in 2010 explain what control systems and mechanisms are and 2011. We have also continued to encourage like- being put in place to detect fraud, in particular in the minded, budget disciplinarian member states to join higher risk areas? us in sending the strongest possible message that financial It was extremely disappointing that the Government management needs to be improved. In 2010 and 2011, did not answer the issue of VAT fraud against the EU Sweden and the Netherlands joined the UK in voting budget seriously. Of course, a larger proportion of against the Council’s discharge recommendations and VAT goes to member states, but the contribution to issued a joint statement calling for improvements to the EU’s budget is fundamental. The figure of £2 billion the way EU funds are managed. that was suggested by the noble Lord, Lord Bowness, We have also been at the forefront of the drive for is fundamental to the revenue stream of the EU. real changes to improve errors within EU budget Carousel fraud is not insignificant. While nobody is expenditure. For example, in the light of the European suggesting that the EU should extend its competence Court of Auditors’ reports confirming that much of into tax enforcement, it is entirely legitimate for the the expenditure error is due to excessively complex Commission to question member states on their pursuit rules, the Government successfully worked with allies of this fraud which has a material effect on the to push for the significant simplification of the complex Commission’s budget. rules for beneficiaries of EU funds. I note what the GC 191 EU: Fraud (EUC Report)[LORDS] EU: Fraud (EUC Report) GC 192

[LORD NEWBY] on fraud against the EU funds they receive and spend. noble Lord, Lord Bowness, said about it being This does not demonstrate a lack of commitment or disappointing that the Court of Auditors has been dedicated resource but reflects the UK’s national unable to provide a positive statement of assurance for arrangements for handling EU funds. When one is the most recent budget, as has been the case for a talking about funds being spent by Administrations in number of years. The noble Baroness, Lady Morgan Northern Ireland and Scotland, it is natural for them of Ely, explained why it is quite difficult to get to the to be contacting the EU directly with information. necessary level of assurance. As the noble Lord reminded Furthermore, the Government have a new approach us, and as I have, over the years, reminded Eurosceptics to fraud because the creation of the National Crime within your Lordships’ House, it is a very long time Agency has given us the opportunity to pull expertise since the DWP budget received a similar assurance in anti-fraud work into a dedicated Economic Crime statement. Command. The ECC will work closely with national When the Government replied to the report in July, police forces and partners, as well as with the EU and the Financial Secretary gave a detailed response to all international equivalents. However, the Government the findings. While that response still reflects the remain of the view that the Commission, as the recipient Government’s overall position, I will seek to respond and collator of fraud statistics, is best placed to provide to some of the additional requests for clarification a breakdown of fraud at an EU level and within made by noble Lords. individual member states. I shall come back to the question of the single point of contact. A number of noble Lords raised concern over the estimated level of fraud against the EU budget. The A number of noble Lords raised the issue of VAT Government appreciate that the Commission’s assessment fraud, which has been and remains a significant problem. of the amount of fraud against the EU budget is an It is, however, worth pointing out that since 2005-06 estimate and cannot give a full picture, by which I NTIC fraud estimates have decreased from between mean that the real level of fraud is necessarily going to £3 billion and £4 billion to around £1 billion in 2011-12, be higher than the figure that it has produced. In order which demonstrates that effort has been put in to to get more nearly to a figure, it is therefore important tackle this very serious, arguably the single biggest, to ensure that the quality and consistency of reporting area of EU fraud that affects the UK. We have had a by all member states is of a standard that allows the significant positive impact. Commission to receive accurate information upon We take seriously all forms of fraud, which is why which to base its estimate. in the 2010 spending review HMRC was allocated an It is also important that other contributing factors, additional £917 million to help it recover unpaid tax such as the constant updating of the database, are and excise duties in the next four years, of which some resolved to improve the data that the Commission £90 million is being spent on tackling organised criminal receives and holds. The noble Baroness, Lady Morgan attacks, and we have had some significant successes. of Ely, explained some of the complexity of the process, Further, the number of criminal prosecutions across a and although it is very easy to damn it on the basis range of taxes, including VAT, is to be increased that it should be possible to sort this out, in practice it fivefold. I am not sure that that is quite the target that is extremely difficult in a 27-member Union to get the the noble Baroness was looking for, but it is an indication kind of consistency and quality of reporting that gives of the Government’s ambition in this area. However, it us absolute confidence that the final correct figure has is clear that VAT fraud is not solely a concern for the been reached. As the recipient of reporting information UK and, noting the committee’s concern and points from member states, the Government believe that the raised by noble Lords, I can confirm that we encourage Commission is best placed to provide such a clear other member states to maintain the pressure to reduce estimate, but more work needs to be done. VAT fraud within their jurisdictions with the same enthusiasm and vigour that we employ. I am sorry that the committee finds the Government’s decision not to recognise its estimate of actual fraud I turn to our engagement with the European anti-fraud disappointing, but we maintain the view expressed by office, OLAF. It is clear that its success relies on the Financial Secretary in his substantive response. I effective co-operation with partners in member states, have a lot of sympathy with the noble Viscount, Lord third countries, international organisations and EU Eccles, who said that we should not get excited about institutions. The Government fully cooperate with the absolute estimate of fraud but should worry much OLAF’s work in the UK. Its efforts to detect and more substantively about bearing down on it. tackle fraud, including through seeking financial redress for the EU budget where possible, is highly important With that that in mind, I turn to our reporting of to us. The UK, through the National Crime Agency, fraud against the budget. The Government remain provides a number of UK-wide liaison services and is committed to this work and do not accept the view taking steps to improve our engagement with Europol, that we are lacking in enthusiasm or drive in our Eurojust and OLAF. This includes, through the NCA, approach to tackling such fraud. In line with existing providing bureau services to Europol and Interpol reporting obligations, the Government rigorously collate and being home to the UK Financial Intelligence comprehensive data on fraud and consistently report Unit. It does this through the Europol national unit, them to the Commission. which is based in the UK International Crime Bureau As identified in the committee’s report, the UK of the NCA and is supported by the UK national unit does not have a central department or agency responsible based in The Hague. The ENU provides a channel for for the fight against fraud. Individual departments all UK law enforcement engagement with Europol. and agencies are responsible for monitoring and acting The Government believe that the NCA’s work with GC 193 EU: Fraud (EUC Report)[11 DECEMBER 2013] EU: Fraud (EUC Report) GC 194 these agencies and services, including Eurojust, Europol have structures that are very similar to the proposed and OLAF, will strengthen co-operation with our EPPO in that they combine investigative and prosecuting European and international partners to fight cross-border functions, what is the ideological objection to accepting fraud. the EPPO? It appears that we have already accepted I return to the question that many noble Lords that those two functions should be shared by the same raised about our response to the requirement to provide agency.The Minister will know that there is no suggestion a single point of contact. This is, as noble Lords that the courts—the judicial function—should be mentioned, something that has been under discussion combined with the EPPO. The EPPO having decided for some time. City of London Police has indeed to prosecute would have to do so in front of judges offered to be such a contact point and continues to be who would be quite independent from it. in discussion with the Home Office. As noble Lords will be aware, the Home Office works in an extremely Lord Newby: As I said, among other things there deliberative way and I hope that we will have a decision are differences between the SFO’s investigative powers on this as soon as possible. and the EPPO proposal’s powers. As I should have said, it was a component of the coalition agreement Lord Rowlands: I apologise for interrupting the that the UK would not support our involvement with Minister. What is “as soon as possible”, given that we such an organisation. That remains our view. have already had a 12-month pause? Lord Davies of Stamford: I am grateful for what is Lord Newby: My Lords, it is a slightly flexible clearly a very honest and frank statement by the definition. The best I can do is draw to the Home Minister. That gets to the heart of it. His previous Office’s attention the strength of feeling that clearly remark left the impression that he was desperately exists in your Lordships’ House that this decision trawling around to find some minor detail of difference should now be taken quickly. between the structure of the SFO and the proposed Moving on to the European Public Prosecutor’s EPPO to justify a decision that cannot be justified on Office, the Government accept that multijurisdictional pragmatic grounds. As he said, it is essentially a political crime against the EU budget is European in nature but decision. The Committee, the House and the public believe, as noble Lords pointed out, that an EPPO is will be grateful for his frankness. not the only or the right solution to the problem. The noble Lord, Lord Rowlands, gave some of the arguments for that, but I repeat our view: a centralised European Lord Newby: My Lords, I think that the noble Lord prosecutor with harmonised powers to initiate is slightly confused about the difference between a investigations and order investigative measures is political decision and a sensible decision. Just because incompatible with the division of responsibilities in something is in a political agreement does not mean many EU countries where law enforcement and that there are not very serious substantive reasons for prosecutors have different roles from that of the it, apart from any reasons that he would disapprove of. independent judiciary. As such, it would require I am sure that that is the case in this particular fundamental changes to those member states’ legal example. systems and existing operational structures to implement There were two final things that I wanted to pick up the Commission’s vision of a supranational body with on. The noble Lord, Lord Bowness, asked about the powers of investigation or prosecution within UK relationship between OLAF and the Supervisory jurisdiction. Committee and what could be done and might be The Committee asked how the UK would address happening. This is an extremely unfortunate dispute the shortcomings in existing processes for tackling that has arisen, and there is a limited amount that the fraud in the absence of being a participating member UK Government can do on their own to resolve it. We of the EPPO. The Government will continue to focus accept that the Supervisory Committee has an important on preventing and tackling fraud against the budget role but, equally, it is important that it does not and draw on their new approach to policing fraud. On operate in such a way as to impede OLAF’s work. We the response to identified crimes, the Serious Fraud are trying as best we can not to knock heads together— Office uses a similar model to the EPPO by bringing that is perhaps too strong—but to use what influence prosecutors and police together to fight serious fraud we have to get these two bodies to work together. It is but there are differences. There are limits to the SFO’s extremely depressing to read that part of the committee’s statutory investigative powers but the existence of the report and evidence because it is the kind of thing that SFO at national level is evidence of a domestic model legitimately gets the EU and its ways a bad name. that is similar to the EPPO proposal. Further, the The final issue that I want to address, which the creation of the National Crime Agency’s Economic noble Baroness raised, is on how we would engage Crime Command means that we have an opportunity with committees on the PIF directive. This has raised to pull expertise in anti-fraud work into a dedicated difficult issues for the UK, and Ministers across policing unit. The ECC will work closely with national government have been considering how best to approach police forces and partners as well as the EU and the proposal. Discussions within government are now international equivalents. reaching their final stages, and we hope to be in a position to offer the relevant scrutiny committees a Lord Davies of Stamford: I am grateful to the fuller explanation shortly. At the same time, we will Minister for giving way. If, as on the Minister’s own seek to address the concerns about the opt-in trigger admission, the Serious Fraud Office and the ECC point. GC 195 EU: Fraud (EUC Report)[LORDS] EU: Fraud (EUC Report) GC 196

[LORD NEWBY] of his comments. He said that more work needs to be This has been an extremely useful debate on an done on estimating the level of fraud, and the committee extremely important issue. I hope that I have been able will certainly welcome that. He talked about the new to explain how the Government are tackling it. I approach with the National Crime Agency; that is realise that I will not have satisfied noble Lords in something that we will want to look at, particularly every respect, but I will speak sternly on noble Lords’ with its additional emphasis in setting up a special behalf to colleagues in the Home Office so that we group on economic crime. I am not sure that we got might make progress at least in that respect. quite the single-source co-ordination that we were Finally, I thank the committee for its work and for looking for, but we appreciate the efforts that the holding the Government to account in this area of our Government and Treasury are making on tax fraud in work. general and his reassurances on the work being done on VAT. 6.37 pm I accept that it is very difficult to give a perspective on OLAF, but my noble friend said that the National Lord Stoneham of Droxford: I thank my noble Crime Agency would strengthen relationships with friend for his response and everybody who has spoken OLAF and Eurojust, which we welcome. in this debate. I have already thanked, but would like to do so again, the noble Lord, Lord Bowness, for his I am sure that we wish to emphasise and support leadership of this group. I would also like to mention the strength of feeling that my noble friend will Tim Mitchell, as well as Mike Thomas, and thank communicate to the Home Office, via the strong arm—we them for their support during this investigation. hope—of the Treasury, in relation to what needs to be done regarding the single point of contact. We look We had a number of speeches from members of the forward to the Government developing their alternative committee, and I appreciate their support and also to the European Public Prosecutor’s Office proposal. that of the noble Lord, Lord Davies. It was good to I thank all Members of the Committee for their support hear a pro-European being so pointed in his comments, in what has been a very interesting debate. both on our report and on the Government’s approach. On the Government’s response, I understand that my noble friend was in great difficulty in going further Motion agreed. than the response that we have already had, but those of us who were listening carefully appreciated a number Committee adjourned at 6.40 pm. WS 73 Written Statements[11 DECEMBER 2013] Written Statements WS 74 Written Statements Introduction – Democratic Republic of the Congo Baroness Ashton will cover recent political progress Wednesday 11 December 2013 in the Democratic Republic of the Congo during her introductory remarks, focusing in particular on the opportunities this represents. EU: Development Foreign Affairs Council, Iran Foreign Affairs Council and General Baroness Ashton is expected to update the FAC on Affairs Council the E3+3 talks with Iran taking place on 9-13 December Statement in Vienna. Discussion is likely to focus on the outcomes of the negotiations, the implementation timetable of agreements, and any implication for EU sanctions. The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Southern Neighbourhood Office (Baroness Warsi) (Con): My Honourable Friend the Minister of State for Europe (David Lidington) On Syria, the UK will ensure intensive preparations has made the following Written Ministerial Statement: for the Geneva II peace talks. This will include encouraging the EU to give the National Coalition its political My Right Honourable Friend the Secretary of State backing, so the moderate opposition can negotiate for International Development will attend the from a position of strength. We will encourage EU Development Foreign Affairs Council on 12 December, institutions and member states to donate generously at my Right Honourable Friend the Secretary of State the UN’s humanitarian aid conference in January. We for Foreign and Commonwealth Affairs will attend will use the attendance of Russian Foreign Minister the Foreign Affairs Council on 16 December, and I Sergei Lavrov to send a united message that the Syrian will attend the General Affairs Council on 17 December. regime must allow this aid to get to those who need it The Development Foreign Affairs Council and the in Syria. Foreign Affairs Council will be chaired by the High Representative of the European Union for Foreign Lebanon is the country hosting the most Syrian Affairs and Security Policy, Baroness Ashton of refugees (over 830,000) and most at risk of overspill Upholland, and the General Affairs Council will be from Syria. The UK has increased hugely our chaired by the Lithuanian Presidency. The meetings humanitarian and security support to Lebanon this will be held in Brussels. year. We hope the FAC will agree Conclusions reiterating Development Foreign Affairs Council EU support for Lebanon’s stability, and to call for the urgent formation of a new Lebanese government and Post-2015 Agenda for all parties to abide by the policy of disassociation Ministers will discuss next steps for the EU in the from the Syria conflict. international post-2015 process, following the UN Millennium Development Goals Review event in Eastern Partnership and EU/Russia relationship September and current discussions in the Open Working Group. Conclusions on “Financing Poverty Eradication Ministers will discuss the outcomes of the Eastern and Sustainable Development beyond 2015” will be Partnership Summit in Vilnius and how this may adopted. impact on EU-Russia relations. Recent events in Ukraine are also likely to be covered. The UK was disappointed Agenda for Change with Ukraine’s decision to delay signature of the Ministers will receive an update on implementation EU-Ukraine Association Agreement, which it regards of the Agenda for Change, including programming of as a missed opportunity. We are watching events in EU financial instruments. Baroness Ashton will also Ukraine closely and continue to call for dialogue update on progress on joint programming and the between all parties and for the rule of law to be results framework. Ministers will be invited to exchange respected. The UK will stress that the door remains views on these issues. open for Ukraine if it decides that it wants to sign the Progress on Policy Coherence for Development Association Agreement in the future. Baroness Ashton will reflect on the progress the EU Central African Republic is making on Policy Coherence for Development, and Ministers will adopt Conclusions on the 2013 Annual The Central African Republic (CAR) will be discussed Report on Policy Coherence. in light of the UN Security Council Resolution which Regional Issues authorised the deployment of the African-led International Support Mission to CAR (MISCA) and the deployment Ministers will discuss the Great Lakes. Other regional of French forces to support MISCA in the discharge items are still to be confirmed. of its mandate. Foreign Affairs Council Introduction – Review of the European External Middle East Peace Process Action Service In support of the ongoing talks, the UK will press Baroness Ashton will outline the recommendations for a firm offer of EU economic and security incentives made in her review of the European External Action to both parties in the event of a deal, whilst making Service and comment on the views received from clear our concern at the possibility of actions that Member States. might damage the progress of these negotiations. WS 75 Written Statements[LORDS] Written Statements WS 76

Western Balkans CSDP’s effectiveness, strengthen European nations’ capabilities and improve competition and transparency Baroness Ashton is likely to update Ministers on in the European defence market, in a way that is the EU-facilitated Serbia/Kosovo Dialogue and Ministers complementary to NATO. will discuss opening accession negotiations with Serbia, which will also be discussed at the GAC. We were European External Action Service pleased to see broadly successful municipal election re-runs in Kosovo, which are a key part of the April The Presidency hope to agree GAC conclusions on Dialogue Agreement, whilst acknowledging that there the review of the European External Action Service is more to do on other Dialogue agreements. The UK (EEAS). The review was sent to Foreign Ministers by is clear that Serbia’s negotiating framework must ensure Baroness Ashton in July 2013. As the Government set full normalisation before Serbia can join the EU. We out in its 27 August Explanatory Memorandum to also want to see Kosovo’s Stabilisation and Association Parliament on this issue, we welcome the review as an Agreement proceed swiftly towards completion in the opportunity to strengthen the EU’s collective weight spring and avoid re-opening questions of status. in the world in areas that support and complement UK international objectives. Burma We agree that despite a difficult start, the EEAS has Our priority is to agree Conclusions that incorporate started to contribute to UK and wider EU foreign language calling for reform of the Burmese Constitution policy objectives, including Baroness Ashton’s role in in advance of the report from Burma’s Parliamentary securing the Serbia-Kosovo agreement and in leading Constitutional Review Committee, which will present the E3+3 process with Iran. We support Baroness its recommendations for reform on 31 January 2014. Ashton’s assessment in the review of the three main We will stress the importance of reviewing those clauses elements of EU foreign policy to have emerged from which prevent the participation of individuals from the first two years of operation of the EEAS; namely being selected for Burma’s Presidency on the basis of the ‘Neighbourhood’, the ‘Comprehensive Approach the foreign nationality of spouses or offspring. We to crisis management’, and ‘international issues where expect the Conclusions will also reflect the outcomes our collective weight allows the EU to play a leading of the Baroness Ashton-led EU-Myanmar Task Force role in the world’. Of course, the EEAS is not perfect which visited Burma on 14/15 November. and there are still some outstanding issues to be resolved. Lunch with Lavrov To this end, we broadly welcome the proposals for change in the EEAS review. Russian Foreign Minister, Sergei Lavrov, will join Ministers for a discussion over lunch at the FAC. The Enlargement and Stabilisation and Association Process UK will use this as an opportunity to reiterate the Council conclusions benefits that can accrue when the EU and Russia The GAC will discuss the Commission’s Annual co-operate fully, for example, the E3+3 negotiations Enlargement Package, published on 16 October, and on Iran. We will also set out our view that the EU’s agree conclusions on the enlargement strategy and the relationship with Eastern Partners will bring benefits Western Balkans, Turkey and Iceland. The December to Russia as well as the region and that Russia’s GAC is the annual opportunity for the Council to take pressure on the region is counter-productive. stock and give direction to the EU’s enlargement General Affairs Council strategy and pre-accession reform priorities for individual countries. The General Affairs Council (GAC) on 17 December will focus on: preparation for the 19-20 December The Government’s views on the Package were set European Council; the review of the European External out in my Explanatory Memorandum of 28 October Action Service; and the Enlargement and Stabilisation 2013. We will broadly welcome the Commission’s and Association Process. The GAC will also receive a approach in this year’s Package, reiterating our continued de-brief from the informal Ministerial meeting on firm support for future EU enlargement on the basis Cohesion Policy held on 26 November in Vilnius. of strict but fair conditionality, with countries moving forward on merit as they meet the conditions. We will Preparation of the 19 - 20 December European Council also take the opportunity to introduce our thinking, in The GAC will prepare the 19 and 20 December the context of future enlargement, on how to return European Council, which the Prime Minister will attend. the concept of free movement to a more sensible basis The December European Council agenda will focus and look forward to a future debate. on three main issues: Common Security and Defence The GAC will be considering progress by all of the Policy (CSDP); Economic and Monetary Union; and Western Balkans countries and Turkey, with particular Economic and Social Policy. There will also be attention on Serbia and Albania. Conclusions on Enlargement, the content of which will be discussed at this GAC. I additionally expect Cohesion Policy there to be an update on the Taskforce for the Mediterranean and on completing the internal energy Ministers with responsibility for cohesion policy market. met in Vilnius on 26 November to discuss progress in preparing programmes for the 2014-20 funding period. The UK priorities for the European Council are This included their experiences to date in applying likely to be: protecting the integrity of the single new arrangements in the regulatory package agreed market, in relation to Economic and Monetary Union; between the Council and European Parliament, such and on CSDP, agreeing a range of actions to improve as the preconditions to be met before spending on WS 77 Written Statements[11 DECEMBER 2013] Written Statements WS 78 specific priorities can start, the requirement to concentrate substantive amendments. The UK with other Member funding on a limited number of objectives, the States and the Commission successfully resisted most strengthening of results orientation and improved of these, mainly on the grounds of the need to avoid coordination between different funds. For this item, increasing the reporting burden on Member States. the Presidency will present its conclusions from the The limited changes which have been agreed would meeting. not substantially increase the reporting burden. We expect the Presidency to provide an update on EU: Energy Council negotiations of the Nuclear Safety Directive, which is currently being discussed at official level in Brussels. Statement The Greek delegation will outline priorities for its forthcoming Presidency: advancing the internal energy The Parliamentary Under-Secretary of State, Department market, energy security and infrastructure, energy pricing of Energy and Climate Change (Baroness Verma) (Con): and costs, external energy policy, the 2030 framework In advance of the forthcoming Energy Council in and energy efficiency. Brussels on 12 December, I am writing to outline the Over lunch, Ministers will discuss energy prices and agenda items to be discussed. competitiveness. We expect the Council to reach political agreement on the Proposal to amend the Renewable Energy Directive and the Directive relating to the quality of Government: Ministerial Responsibilities petrol and diesel fuels. The proposal is intended to Statement address Indirect Land Use Change (ILUC), which occurs when production of biofuels from crops grown Lord Gardiner of Kimble (Con): My Right Honourable on existing agricultural land results in the displacement friend the Minister for the Cabinet Office (Francis of production on to previously uncultivated land. Maude) has made the following Written Ministerial The UK continue to believe the most appropriate Statement: way to address ILUC is through the introduction of The new List of Ministerial Responsibilities has ILUC factors and a cap of 5% on biofuels from food been published today. Copies have been placed in the crops. However, the majority of Member States favour Vote Office and the Libraries of the House. Copies a high cap on biofuels from food crops. The current will also be sent to each Hon. Member’s office in this proposal is for a 7% cap, which represents a compromise House. between Member States. The proposal also includes The list can also be accessed on the Cabinet incentives for advanced biofuels, which seek to support Office website at: https://www.gov.uk/government/ them in a cost effective way. publications/government-ministers-and- However, a number of Member States still have responsibilities significant concerns about the proposed political agreement and discussions will continue at the Council to try to resolve these issues. The UK will seek to Health: Dementia ensure that any political agreement includes the best Statement possible outcome for the UK. Following the identification of five priorities in the The Parliamentary Under-Secretary of State, Department area of energy policy at the May 2013 European of Health (Earl Howe) (Con): My Rt hon Friend the Council, the Lithuanian Presidency will report on Secretary of State for Health (Jeremy Hunt) has made progress towards completing the Internal Energy Market the following written ministerial statement. and invite Ministers to endorse a Council report to go to the European Council in March 2014. A Health Ministers Summit of the Group of Eight was held in London today. The summit identified and The Presidency will then present a report on the agreed a new international approach to dementia research, progress and achievements in EU external energy policy to help break down barriers within and between since the November 2011 European Council conclusions, companies, researchers and clinicians and secure a and set out further measures to strengthen and improve new level of cooperation needed to reach shared goals EU external energy policy. Ministers will be asked to faster than nations acting alone. The following items endorse the report. The Presidency will also present a were on the agenda for discussion: round-up of recent and upcoming events and Pre-summit briefing on the UK Prime Ministers developments in international energy relations. Dementia Challenge The Presidency will provide information on the The UK presented to the meeting on the UK Prime agreement reached with the European Parliament on Minister’s dementia challenge which includes dementia the recast Regulation concerning the notification to friendly communities, health and care and research. the Commission of investment projects in energy infrastructure in the EU, which requires Member States Ministers’ and European Commission’s Prepared to report biennially on their planned new energy Statements infrastructure investment projects or those to be Statements were be made by Canada, France, Germany decommissioned. The previous Regulation was annulled and Italy. These were followed by statements from after successful European Parliament action to change Japan, Russia, UK, United States and the EU. the legal base (to an energy base, which requires Improving Life and Care for People Affected by co-decision). The EP also proposed a number of Dementia and their Carers WS 79 Written Statements[LORDS] Written Statements WS 80

The meeting held an exchange of views on the • the rate of total individual insolvencies per 10,000 action that can be taken to provide better and more adults in each constituency in 2012 ranged from concrete measures for improving services and support 6.7 to 59.2. for people with dementia and their carers. • any comparison of rates between years at this Preventing and Delaying Dementia local level should take into account that small The meeting held an exchange of views on the changes in the number of insolvencies can have a action that can be taken to stimulate greater investment large impact on the rate. and innovation in dementia prevention, diagnosis, Full details are available at http://www.insolvencydirect. treatment and care. bis.gov.uk/otherinformation/statistics/ Social Adaptation to Global Ageing and Dementia regionalstatisticsmenu.htm. The meeting held an exchange of views on the action necessary to adapt to ageing society and to Statistics at local authority level were published on reduce the impact of dementia. 12 July 2013 at the same web address. As part of the agreement reached, countries have Related statistics, covering individual and company agreed to: insolvencies in England and Wales up to 2013 Q3 are - set an ambition to identify a cure or a disease- available at http://www.insolvencydirect.bis.gov.uk/ modifying therapy for dementia by 2025—backed otherinformation/statistics/insolvency-statistics.htm by a commitment to together significantly increase the amount spent on dementia research and Overseas Aid increase the number of people involved in clinical trials and studies on dementia; Statement - a new Global Envoy for Dementia Innovation, following in the footsteps of global envoys on HIV Baroness Northover (LD): My Rt Hon Friend the and Aids and on Climate Change—the Global Minister of State for International Development has Envoy will bring together international expertise to made the following statement. stimulate innovation and co-ordinate international I would like to inform the House of the publication efforts to attract new sources of finance, including today of the Multilateral Aid Review Update report. exploring the possibility of a new private and philanthropic fund to support global dementia In 2011 this Government published the Multilateral innovation; Aid Review (MAR) – the first systematic assessment of the performance of the 43 multilateral organisations - develop an international action plan for research—in that the UK supports through core funding. The particular to identify current gaps and how to fill MAR is a central part of our wider efforts to ensure them; that we scrutinise the value for money of each pound - share information and data from dementia research we spend, whether we do so directly or through other studies across the G8 countries to work together organisations. Our efforts in this area were recognised and get the best return on investment in research; by the PAC who gave us their Civil Service Award for and the most improved government body on value for - encourage open access to all publicly-funded dementia money and financial management in 2013. Other donor research to make data and results available for further countries have emulated our approach. research as quickly as possible The findings of the Review confirmed the important A copy of the declaration and communique has role multilateral organisations play in supporting the been placed in the Library. Copies are available to hon UK to meet its development and humanitarian Members from the Vote Office and to noble Lords objectives—delivering humanitarian support in countries from the Printed Paper Office. affected by conflict such as Syria or by natural disasters such as the Philippines, on promoting the rights of Insolvency Service women and girls, and in ensuring that developing countries have the infrastructure they need to support Statement their economic growth. The Review also had a major impact on our spending decisions. While some high The Parliamentary Under-Secretary of State, Department performing organisations received considerable increases for Business, Innovation and Skills (Viscount Younger in funding, some poor performing institutions had of Leckie) (Con): My Hon. Friend the Parliamentary their funding stopped altogether and others were asked Under Secretary of State for Employment Relations to make urgent reforms if they wished to secure any and Consumer Affairs (Jo Swinson) has made the future funding from DFID. The Review also highlighted following statement. the strengths and weaknesses of multilateral organisations, The Insolvency Service has today released Official and enabled us to give them a clear list of future Statistics covering the number of individual insolvencies priorities and essential reforms. (bankruptcies, debt relief orders and individual voluntary The MAR Update has been undertaken to assess arrangements) in each parliamentary constituency in whether the multilateral organisations have made the England and Wales, for the period 2000 to 2012. These progress we asked for. The report being published show that: today sets out the results of this work. It shows that all • the rate of total individual insolvencies per 10,000 of the multilaterals have made improvements over the adults in England and Wales peaked at 30.9 in two years since the Multilateral Aid Review, that those 2009, and has fallen each year to 24.5 in 2012. organisations we asked to make urgent reforms are WS 81 Written Statements[11 DECEMBER 2013] Written Statements WS 82 making progress, and that some multilaterals which waste, making the link to wider work on resource were already doing well are doing even better. There efficiency and sustainable consumption and production. have been significant improvements in crucial areas It sets out the aims and priorities, along with actions such as the management of finances, and how businesses, the wider public sector, civil society and organisations work with others. This is encouraging, consumers can take to benefit from waste prevention. but more needs to be done. Not all organisations made Many individuals and organisations are already the progress we expected of them, and the performance taking action to reduce waste which is highlighted in of some in critically important areas, such as the the Programme. To encourage further action, we will empowerment of women and girls, could be improved. support change in a number of ways. For example, we The Department for International Development will bring industry together under a new Sustainable (DFID) remains committed to strengthening multilateral Electrical Action Plan to catalyse action and seek effectiveness. Over the next year we will use the evidence commitment on designing products for optimum life. from this Update to work with multilaterals and other Alongside this, we are supporting pilot projects and partners to bring about further change. There will be a trials of takeback and hiring/leasing schemes to particular focus on areas where progress has been too demonstrate the benefits of resource efficient business slow. We will also work with other governments to models and supply chain innovation. ensure that the methodology and evidence base for Supporting and making it easy for individuals to future multilateral effectiveness assessments continue take action is equally important. We are developing a to improve, providing a sound basis for a full reassessment 2 year, £800,000 scheme to support communities to of the value for money that multilateral organisations take forward innovative waste prevention, reuse and offer in 2015. In doing so, we will seek to address repair activities. We will also develop a web-based issues raised with us by multilateral organisations, and postcode locator to provide a practical tool to enable in the informed commentary by the International householders to find their local reuse and repair services. Development Committee and others. Specific actions for Government are highlighted I am placing a copy of the MAR Update report in and we will lead by example by continuing to reduce the Libraries of both Houses. waste across the public sector and using Government Buying Standards to support cost effective sustainable procurement. The Programme does not propose any Water Management: Waste Water new regulation. It also fulfils a requirement of the Statement revised Waste Framework Directive (2008/98/EC). At the same time as publishing the Programme, we The Parliamentary Under-Secretary of State, Department are also publishing: for Environment, Food and Rural Affairs (Lord De • An evaluation of the usefulness of measures identified Mauley) (Con): My Hon. Friend the Parliamentary in the revised Waste Framework Directive along Under Secretary of State (Dan Rogerson) has today with a summary of existing activities made the following statement. • A summary of the responses received and the Today I am announcing the publication of the government response to the call for evidence and Waste Prevention Programme for England. The consultation published earlier this year Programme fulfils a commitment in the 2011 Government • An overview of evidence used to produce the Review of Waste Policy in England. Programme Preventing excess waste from arising delivers As waste is a devolved matter, Wales, Scotland and environmental, economic and social benefits, and is Northern Ireland have developed their own programmes. key to moving towards a more sustainable economy. Further information on the Programme is available The Programme demonstrates the benefits of reducing on the Government website.

WA 111 Written Answers[11 DECEMBER 2013] Written Answers WA 112

rejected the contention that there is a systemic deficiency Written Answers in Ireland’s asylum or reception procedures amounting to a real risk of asylum applicants, including children, Wednesday 11 December 2013 being subjected to inhuman or degrading treatment on return to Ireland. The Court also rejected the assertion of a real risk of refoulement. The ruling does Apprenticeships not disturb the position of Ireland in the list of safe Question countries at Part 2 of Schedule 3 to the Immigration and Asylum (Treatment of Claimants, etc.) Act 2004. Asked by Lord Adonis To ask Her Majesty’s Government how many apprentices employed by the Driver and Vehicle Aviation: Air Quality Licensing Agency on 1 November 2013 were (1) under Questions the age of 21, (2) aged between 21 and 25, and (3) aged over 25. [HL3827] Asked by The Countess of Mar The Minister of State, Department for Transport To ask Her Majesty’s Government whether they (Baroness Kramer) (LD): The Driver and Vehicle Licensing will take up the recommendation of the Science Agency did not employ any apprentices on 1 November and Technology Committee in its report Air Travel 2013. and Health (HL Paper 121, Session 1999–2000) that a full-scale epidemiological study be conducted The DVLA is currently recruiting 12 apprentices on air crew; and, if so, when. [HL3703] who will be in post by 31 March 2014. All will be aged between 16 and 24. The Minister of State, Department for Transport (Baroness Kramer) (LD): The Government has no Asil Nadir plans to require UK based airlines to monitor air Question quality in aircraft cabins. The European Aviation Safety Agency would be responsible for introducing proposals Asked by Lord Maginnis of Drumglass for the compulsory monitoring of air quality in all To ask Her Majesty’s Government whether aircraft cabins. There has been no indication that the allegations that Asil Nadir had sought to bribe Agency intends to introduce such proposals. Mr Justice Tucker in the 1993 Polly Peck trial were Asked by The Countess of Mar investigated; if so, by whom; what was the outcome; and whether the matter was again raised in the 2012 To ask Her Majesty’s Government whether they trial. [HL3710] intend to provide funding to Cranfield University to complete its Aircraft Cabin Air Sampling Study, The Advocate-General for Scotland (Lord Wallace published in 2011, and to investigate the chemical of Tankerness) (LD): The allegation that Asil Nadir profile and dosage of a typical fume event on board sought to bribe Mr Justice Tucker was investigated by an aircraft. [HL3704] the Metropolitan Police. No charges were brought following this investigation. Information regarding the Baroness Kramer: The Department for Transport allegation was presented to the jury as part of the has completed four research studies into cabin air. agreed facts of the case in the 2012 trial. These were formally submitted for review to the Committee on Toxicity (COT) in May 2012. The COT Asylum Seekers reviewed the Department’s studies at COT meetings Question on September 17 and 29 October. The Department will consider the Committee’s findings and recommendations Asked by Lord Laird once it has received their report. To ask Her Majesty’s Government, further to Asked by The Countess of Mar the Written Answer by Lord Taylor of Holbeach on 18 November (WA 129), on what grounds they To ask Her Majesty’s Government, in the light remain satisfied that the Republic of Ireland is a of the Felderhof-KLM ruling in the Netherlands safe country for the removal of asylum seekers’ on 18 September, whether they have plans to insist children from the United Kingdom in accordance that United Kingdom-based airlines monitor air with its position in the list of safe countries at Part quality in aircraft cabins; and what contingency Two of Schedule Three to the Immigration and plans they have should a European ruling require Asylum (Treatment of Claimants, etc) Act 2004, compulsory monitoring of air quality in all aircraft given the judgment of the Northern Ireland High cabins. [HL3705] Court in the matter of the application by ALJ and A, B and C. [HL3671] Baroness Kramer: The Government has no plans to require UK based airlines to monitor air quality in The Parliamentary Under-Secretary of State, Home aircraft cabins. The European Aviation Safety Agency Office (Lord Taylor of Holbeach) (Con): The Written would be responsible for introducing proposals for the Answer on 17 October 2013, Official Report, columns compulsory monitoring of air quality in all aircraft WA 90-91 also concerned the case of ALJ and others. cabins. There has been no indication that the Agency It noted that the Northern Ireland High Court fully intends to introduce such proposals. WA 113 Written Answers[LORDS] Written Answers WA 114

BAE Systems • 2011-2012—£41.323M Question • 2012-2013—£41.092M The Defence Sections in question each have one or Asked by Lord Willis of Knaresborough more resident Defence Attaches, some of whom have To ask Her Majesty’s Government what support responsibilities for other countries which have Non- they will provide in order to retain skilled engineers Residential Accreditation (NRA) status. The figures who currently work for BAE Systems in Portsmouth above include costs associated with the NRAs. within the United Kingdom workforce. [HL3752] The figures exclude operational costs (and until 2011-12 Iraq costs were operational) and training The Parliamentary Under-Secretary of State, Department costs. The figures also exclude the USA, where the for Business, Innovation and Skills (Viscount Younger costs of the accredited attaches are subsumed in those of Leckie) (Con): BAE Systems is consulting with of the larger British Defence Staff US. In 2012-13 the employees and the Unions to explore ways of avoiding, attaché costs were estimated at around £2.3 million. reducing and mitigating potential job losses. This will There is no mechanism to break down the cost of include retraining, redeployment and flexible working attaché effort by “purpose of activity”. Attaché output arrangements, as well as providing support for employees in support of defence and security exports varies from who wish to retire or seek external opportunities. country to country and over time. BAES have a strong track record in this area and it is hoped that many job losses will be mitigated. The existing UK wide Talent Retention Solution Competition Commission will help match skilled workers to engineering jobs in Question Portsmouth. At the end of last week (29 November) Asked by Baroness Kidron there were 781 companies registered on the Talent Retention Solution website with 421 vacancies in the To ask Her Majesty’s Government whether the South of England. Department for Business, Innovation and Skills has We are working with Job Centre Plus and Skills set out any guidance to the Competition Commission Funding Agency colleagues in a local taskforce convened relating to the assessment of cultural value in its by Portsmouth City Council, which will help support judgments; and, if no such criteria exist, whether those impacted. The Skills Funding Agency will work they have any plans to introduce any. [HL3855] with colleges and training providers in the Solent area to ensure that support is available to any employees at The Parliamentary Under-Secretary of State, Department risk of redundancy. £2.5m of Skills Support for for Business, Innovation and Skills (Viscount Younger Redundancy European Social Fund money is available of Leckie) (Con): The Department has not issued any to support this work. In addition, £5m from the “Solent such guidance and does not plan to do so. Futures” Regional Growth Fund programme is being used to fund reskilling of affected employees at risk of The Competition Commission (CC) is an expert, redundancy, to support them into new job outcomes. independent organisation whose powers are set out in the Competition Act 1998 and the Enterprise Act We have also established an industry-led Maritime 2002. The range of powers includes the power under Forum to advise the Solent Local Enterprise Partnership Part 3 of the Enterprise Act 2002 to decide whether a (LEP) on future skills needs in the marine sector in merger gives rise to a substantial lessening of competition that area. within any market or markets in the UK. Furthermore, the National Careers Service is available to offer free impartial careers advice to those impacted on updating skills or retraining for alternative employment. Courts: District Judges Questions British Embassies: Military Attachés Asked by Lord Beecham Question To ask Her Majesty’s Government whether Asked by Lord Roberts of Llandudno the recruitment of additional district judges for appointment to magistrates’ courts is continuing; To ask Her Majesty’s Government what was the and what proportion of courts they regard as cost of maintaining the defence attaché network in appropriate for such appointments. [HL3788] each of the financial years (1) 2009–10, (2) 2010–11, (3) 2011–12, and (4) 2012–13; and of these costs, what proportion is attributable to support for defence The Minister of State, Ministry of Justice (Lord and security exports. [HL3821] McNally) (LD): The need for recruitment to the judiciary in the magistrates’ courts, including District Judges (Magistrates’ Courts) is determined in accordance with The Parliamentary Under-Secretary of State, Ministry a protocol agreed in December 2012 by a group led by of Defence (Lord Astor of Hever) (Con): The Defence the now Senior Presiding Judge. The ‘Protocol to Attaché network is funded from the Defence budget. support Judicial Deployment in the Magistrates’ Courts’, The costs for the years detailed were: requires a local assessment of judicial needs to be • 2009-2010—£36.260M made annually. The decision to recommend the • 2010-2011—£38.958M recruitment of additional District Judges and Magistrates WA 115 Written Answers[11 DECEMBER 2013] Written Answers WA 116 rests with the relevant Presiding Judge and HMCTS The UK’s Intelligence and Security Committee (ISC) Delivery Director, following local consultation with undertook an investigation into initial Snowden (PRISM/ the judiciary. The recruitment of District Judges NSA) allegations. Its report of 17 July concluded that (Magistrates’ Court) will therefore continue subject to the Government Communications Headquarters (GCHQ) business need. has not circumvented or attempted to circumvent UK There is no fixed proportion of courts where such law by using the National Security Agency’s (NSA) appointments are made; appointments are determined PRISM programme to access the content of private in accordance with business need. communications. Asked by Lord Beecham Asked by Lord Laird To ask Her Majesty’s Government how To ask Her Majesty’s Government whether they many district judges have completed the Judicial have any plans to prosecute, under the Data Protection Appointments Commission selection process in the Act 2000 or other legislation, organisations which last year. [HL3789] have transferred information to countries outside the United Kingdom. [HL3832]

Lord McNally: Among recruitment exercises which were completed in 2012/13, eleven candidates were Salaried District Judges at the time of application for The Minister of State, Ministry of Justice (Lord these posts. The results do not include fee-paid deputy McNally) (LD): It is for the Information Commissioner district judges. Some of these candidates may have to investigate alleged breaches of the Data Protection applied for more than one position during this time-period. Act 1998; and if appropriate, take any necessary enforcement action, which could include criminal These figures exclude exercises where initial prosecution. recommendations were made during 2012/13 but are not fully completed, such as the 2012 Circuit Judge recruitment. Results from April 2013 to date were published the 5th December at http://jac.judiciary.gov.uk/about-jac/ Driving: Over 70s 823.htm and will not be included in this PQ. Question This information derives from information provided by the candidates themselves. There is no way to Asked by Lord Maginnis of Drumglass independently confirm the completeness or accuracy of this data. To ask Her Majesty’s Government what confidential and personal medical records are required by the Driver and Vehicle Licensing Agency (DVLA) from those over 70 applying for the renewal of a driving Data Protection licence; what medical qualifications are held by the Questions officials at the DVLA who adjudicate on those records; what are the arrangements for secure storage Asked by Lord Laird of such records; and whether the procedures differ in the different nations of the United Kingdom. To ask Her Majesty’s Government what assessment they have made of the effectiveness of the Data [HL3781] Protection Act 1998, Article 8 of the European Convention on Human Rights and the Official Secrets Acts, in the light of recent allegations about The Minister of State, Department for Transport the transference of data to foreign powers through (Baroness Kramer) (LD): The Driver and Vehicle Licensing the secret monitoring of communications. [HL3715] Agency does not routinely require access to medical records to support a driving licence renewal application at the age of 70. The Senior Minister of State, Department for Communities and Local Government & Foreign and All applicants must declare if they have a relevant Commonwealth Office (Baroness Warsi) (Con): The medical condition and if they meet eyesight standards. UK has one of the world’s strongest legal and regulatory If a condition is declared, decisions are made by frameworks governing the use of secret intelligence. officials in the DVLA’s Medical Group or a Medical UK legislation is fully compatible with the right to Adviser. Decisions are based on operating instructions privacy in Article 8 of the European Convention on which are authorised by the Medical Advisers, who Human Rights (ECHR). Our secret intelligence agencies are qualified doctors and licensed by the General are subject to the provisions of the Data Protection Medical Council to practice medicine. Act 1998 and additional UK statutory controls and Medical information is held on a specific system, safeguards, including the relevant sections of the which is protected by a number of physical, electronic Intelligence Services Act, the Human Rights Act 1998, and procedural barriers. and the Regulation of Investigatory Powers Act, and robust oversight mechanisms including the These arrangements apply to applications from drivers Intelligence Security Committee and the Interception in Great Britain. Driver licensing in Northern Ireland of Communications Commissioner. is a devolved matter. WA 117 Written Answers[LORDS] Written Answers WA 118

Drones Energy: Plutonium Question Question Asked by Lord Hylton Asked by Lord Avebury To ask Her Majesty’s Government what proposals To ask Her Majesty’s Government what priority have been made or trialled by NATO to use drones is being given to the disposal of plutonium as part and other reconnaissance aircraft to improve safety of the plan to clean up the nuclear complex at at sea, particularly in the Mediterranean. [HL3745] Sellafield; and whether they will now publish the report by the Nuclear Decommissioning Authority (NDA) on the subject, as indicated in a press release The Parliamentary Under-Secretary of State, Ministry by the NDA on 1 August. [HL3980] of Defence (Lord Astor of Hever): NATO is not currently examining such proposals directly. The Parliamentary Under-Secretary of State, Department of Energy and Climate Change (Baroness Verma) (Con): The priority regarding plutonium at Sellafield is to manage it within facilities designed to keep it safe and Energy: Coal Fired Power Stations secure until a decision regarding its future management Question has been taken. As we noted in our 2011 consultation response, there will be many steps to go through Asked by Lord Hylton before we reach the point of taking a final decision regarding the future management of plutonium in the To ask Her Majesty’s Government whether they UK. Only when the Government is confident that its are supporting the global pact on emissions, to be preferred option could be implemented safely and signed in 2015; and whether they will seek to promote securely, that it is affordable, deliverable, and offers (1) the fitting of filters on the exhausts of existing value for money, will it be in a position to proceed. coal-fired power stations, and (2) carbon capture and storage on new coal power stations, as part of The NDA paper referenced in their press release of that pact. [HL3786] 1 August forms part of the wider consideration of the policy on plutonium management. It is an important and complex issue and that it is vital that Ministers have the time to consider it carefully. Only when those The Parliamentary Under-Secretary of State, Department wider considerations have concluded, will the NDA be of Energy and Climate Change (Baroness Verma) (Con): in a position to publish this public version of its advice The UK is committed to negotiating by 2015, the new to DECC. legally binding deal, with mitigation commitments for all, to come into force by 2020. The UK’s key objective at the recent Conference of Parties, last month in EU: Trade Agreements Warsaw was met; all nations have now agreed to start their homework to prepare for a global climate Question change deal in 2015, including identifying their own Asked by Lord Pearson of Rannoch contributions to it. We now have a work programme, with timetables. To ask Her Majesty’s Government whether We expect all countries to have mitigation commitments international trade and investment agreements entered as part of the 2015 legally binding agreement that we into by the European Commission on behalf of are negotiating. But it is for individual countries to member states have also been signed by the member choose what policies and measures they pursue to states (1) before the Lisbon Treaty came into force, achieve their own emissions reductions targets. Within and (2) afterwards; and whether they will list the the EU, we expect that an economy wide absolute agreements in question in each category. [HL3700] emissions reduction target will be adopted, and we want individual EU Member States to then be free to The Minister of State, Department for Business, choose the low carbon path they take to achieve their Innovation and Skills & Foreign and Commonwealth share of the EU target. Office (Lord Livingston of Parkhead) (Con): The Lisbon Outside of formal negotiations, the UK has joined Treaty and previous EU/EC/EEC treaties have stated the United States in agreeing to end support for public where competence lies in relation to trade and investment financing of new coal-fired power plants overseas, policy. Who signs therefore depends on the scope of except in rare circumstances such as when plants fully each agreement and the treaty in force at the time. deploy CCS technologies. Accordingly, some trade and investment agreements I refer the noble Lord to the Written Ministerial between the EU and non-EU countries have been Statement made by my rt. hon. Friend the Secretary to signed by the EU alone since they deal only with the House of Commons on 21 November 2013, Official matters within EU competence. Examples of this include Report, Column 56WS on public financing of coal the customs union agreements with Andorra, Turkey plants overseas: and San Marino. http://www.publications.parliament.uk/pa/ However, the majority of trade and investment cm201314/cmhansrd/cm131121/wmstext/ agreements (both pre and post-Lisbon Treaty) have 131121m0001.htm#13112169000004 dealt with matters within both the EU and the Member WA 119 Written Answers[11 DECEMBER 2013] Written Answers WA 120

States’ competence and therefore have been signed by Baroness Northover: The World Health Organisation the Member States as well as the European Commission. is looking into the issue of water quality and its These include agreements with the following countries impact on health. The research will be shared when it or regions: the Faroe Islands, Norway, Iceland, Switzerland is completed. (also covering Liechtenstein which now participates in Asked by Baroness Tonge the European Economic Area), the former Yugoslav Republic of Macedonia, Albania, Montenegro, Bosnia To ask Her Majesty’s Government what assessment and Herzegovina, Serbia, Algeria, Egypt, Iraq, Israel, they have made of food availability in Gaza. Jordan, Lebanon, Morocco, Palestinian Authority, Syria [HL3737] (although the trade provisions of this agreement are currently not applied), Tunisia, Chile, Mexico, South Africa, South Korea, the CARIFORUM States (Antigua Baroness Northover: Fresh food prices on Palestinian and Barbuda, Bahamas, Barbados, Belize, Dominica, markets have reached record highs. Combined with the Dominican Republic, Grenada, Guyana, Haiti, the rising price and limited availability of fuel, this has Jamaica, Saint Lucia, Saint Vincent and the Grenadines, seriously affected the ability of the poorest people to Saint Christopher and Nevis, Suriname, and Trinidad afford nutritious food. UK support to the World Food and Tobago), Albania, the Central American countries Programme helps to provide up to 5,300 food vouchers (Costa Rica, El Salvador, Guatemala, Honduras, to poor households in Gaza each year. The UK also Nicaragua and Panama), and the Andean nations of funds food distribution to poor families in Gaza and Colombia and Peru. A full list is available on the DG school students through its core support to the United Trade website. Nations Relief and Works Agency. The UK is also a signatory to numerous multilateral Asked by Baroness Tonge trade agreements and two plurilateral agreements negotiated between World Trade Organisation Members. To ask Her Majesty’s Government whether any Details of these are publically available on the WTO ministerial visit to assess the humanitarian situation website. at first hand in Gaza is planned. [HL3738]

Gaza Baroness Northover: DFID is concerned about the Questions situation in Gaza. Ministers visit the region regularly; Asked by Baroness Tonge the Minister of State last visited Gaza in April 2013. Officials regularly brief ministers on the humanitarian To ask Her Majesty’s Government what discussions situation there. they have held with the government of Israel concerning the case for intervention on humanitarian grounds in Gaza. [HL3734] Government: Ministerial Visits Baroness Northover (LD): We continue to raise our Question concerns with the Israeli government regarding the movement and access restrictions that are the root of Asked by Lord Ashcroft much of the humanitarian need in Gaza. In particular, we want to see Israel lift restrictions on the import To ask Her Majesty’s Government who were the of construction material for the private sector and business representatives and their respective companies international organisations, and allow the export of who accompanied the Prime Minister on his visit to goods to Israel and the West Bank. In the meantime, China in December 2013. [HL3793] we continue to support the UN Relief and Works Agency, the International Committee of the Red Cross The Chancellor of the Duchy of Lancaster (Lord and others to provide humanitarian aid to the people Hill of Oareford) (Con): I have placed in the Library of of Gaza. the House a list of the business representatives who Asked by Baroness Tonge accompanied the Prime Minister to China. To ask Her Majesty’s Government what assessment they have made of the ability of essential health services in Gaza, such as operating theatres, to Graphene function through fuel shortages there. [HL3735] Question Baroness Northover: The World Health Organisation Asked by Lord Empey reports that shortage of fuel disrupts hospital services on a daily basis. This includes intensive care units, To ask Her Majesty’s Government how many cardiac care, and operating theatres. We will continue patents involving possible uses for graphene have to monitor the situation closely. been registered by companies based in the United Asked by Baroness Tonge Kingdom. [HL3917] To ask Her Majesty’s Government how they assess the risks of cholera, typhus and polio for the The Parliamentary Under-Secretary of State, Department population of Gaza; and what assessment they for Business, Innovation and Skills (Viscount Younger have made of the adequacy of plans for emergency of Leckie) (Con): On the 6th of December 2013 there vaccination. [HL3736] were 161 published patent applications relating to WA 121 Written Answers[LORDS] Written Answers WA 122 possible uses of graphene from patent applicants with Health: International Healthcare Workers an address in the United Kingdom in the European Patent Office patent document database, which has Question world-wide coverage. So far, three of these applications Asked by Baroness Tonge have been granted. To ask Her Majesty’s Government, further to the Written Answer by Earl Howe on 18 November (WA 144), whether the Department of Health and Gypsies and Travellers the Department for International Development work together to implement the World Health Organisation Question Code of Practice on the International Recruitment of Health Personnel; and, if not, why not. [HL3857] Asked by Lord Avebury To ask Her Majesty’s Government which local authorities have allocated land for a Traveller site in their local development plans; and what action they The Parliamentary Under-Secretary of State, Department will take in respect of any failure by local authorities of Health (Earl Howe) (Con): The Department has in England to do so under the terms of their commissioned NHS Employers organisation to promote Planning Policy for Traveller Sites. [HL3776] the use and adherence to the principles of the World Health Organization Code of Practice on the International Recruitment of Health Personnel. The Department The Parliamentary Under-Secretary of State, Department continues to work with the Department for International for Communities and Local Government (Baroness Stowell Development (DfID) on reviewing the definitive list of of Beeston) (Con): As I set out in my answer of 30 October developing countries which should not be targeted for 2013, Official Report, Column WA257,this information recruitment of healthcare professionals. is not collected centrally. More broadly, three quarters DfID engages in a number of countries with acute of local planning authorities now have a published shortages to help build their health workforce capacity. local plan. All Local Plans at this stage can be viewed The United Kingdom believes the most appropriate on local authorities’ own websites. way of addressing health worker shortages in low- and Once a Local Plan is submitted for examination by middle-income countries is to support health systems an independent inspector, it is tested for consistency and human resource planning to enable retention and with national planning policy, including Planning Policy better distribution of the health workforce. for Traveller Sites. Following the examination, the inspector reports either that the plan is sound and can be adopted or that the plan is unsound and should be withdrawn. Health: Ophthalmology Question Health: Autism Asked by Lord Harrison Question To ask Her Majesty’s Government what plans Asked by Baroness Browning they have to introduce a National Institute for Health and Care Excellence (NICE) Quality Standard To ask Her Majesty’s Government what discussions for cataract treatment within the National Health they have had with the National Autistic Society Service; and what discussions they have had with and others about including provisions on autism in NICE and NHS England on this subject. [HL3865] the new mandate to Health Education England. [HL3740]

The Parliamentary Under-Secretary of State, Department The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con): Cataracts are included as of Health (Earl Howe) (Con): The Government’s mandate a topic in the library of quality standards referred to to Health Education England will be reviewed for the National Institute for Health and Care Excellence 2014-15 to ensure that the objectives are current (NICE) in March 2012. NHS England is now responsible and meaningful to the needs of our health and care for commissioning NICE quality standards relating to systems. NHS services and is responsible for liaising with NICE The issue of including autism in the core curricula about the prioritisation of NHS quality standards in for doctors, nurses and other clinicians has been raised development. by the National Autistic Society during the current Ministers have had no discussions with NICE and review of the adult autism strategy. It was also discussed NHS England on this topic, although officials may by the Autism Programme Board, which is over-seeing discuss individual quality standard topics with NICE the review of the adult autism strategy, at its meeting and NHS England as part of the development of on 22 October. NICE’s quality standards programme. WA 123 Written Answers[11 DECEMBER 2013] Written Answers WA 124

Homeless Families and Chapter 55.10 of the Enforcement Instructions and Guidance are being applied consistently in line Question with established legal principles. The Home Office’s Asked by Lord Alton of Liverpool general approach to the handling of cases of food and fluid refusal in immigration detention has been consistently To ask Her Majesty’s Government how many upheld by the Courts, most recently by the Court of children they estimate to be living in Britain in bed Appeal. and breakfast or temporary accommodation. [HL3142] Immigration Removal Centres: Fire Safety The Parliamentary Under-Secretary of State, Department Question for Communities and Local Government (Baroness Stowell of Beeston) (Con): As of 30 September 2013, in England, Asked by Lord Roberts of Llandudno there were 42,150 households including children who To ask Her Majesty’s Government what fire were housed in temporary accommodation. Of these, prevention measures were in place at the Campsfield 2,100 households were housed in bed and breakfast House Immigration Removal Centre up to and style accommodation. including the week beginning 14 October, and in To place this in context, across the last Parliament, particular whether there were (1) working sprinklers, the average number of households including children (2) provisions in place for evacuation in case of fire, in temporary accommodation was near 113,360. and (3) regular fire drills; who was, or is, responsible This Government has strong protections in place to for the implementation of security at Campsfield prevent families with children being placed in unsuitable House Immigration Removal Centre; and on what accommodation for unacceptable periods of time. The basis those responsible were appointed. [HL3110] law is clear that families with children can only be placed in bed and breakfast accommodation as a last The Parliamentary Under-Secretary of State, Home resort and then for no more than 6 weeks. Office (Lord Taylor of Holbeach) (Con): Home Office Moreover, we are investing £470 million over four Immigration Enforcement takes the welfare of detainees years (2011-12 to 2014-15) to help local authorities extremely seriously and complies with all relevant fire and voluntary sector partners prevent and tackle safety legislation. homelessness, rough sleeping and repossessions. This With regard to the specified issues: investment has meant that the average time spent by households in temporary accommodation has reduced (1) Campsfield House IRC does not have a from 20 months at March 2010 to 13 months as of sprinkler system September this year. (2) Campsfield House has a full evacuation plan in Furthermore we have provided £2 million of targeted the event of a fire or other major incident support for seven councils with excessive B&B use, so (3) Fire drills are carried out at regular intervals that they can reduce numbers and develop long lasting (4) The service provider, Mitie, is responsible for solutions. We have also changed the law so that councils the implementation of security procedures and for can place families in suitable and affordable private the appointment of appropriate personnel to meet rented homes. This will mean shorter waiting times for the requirements of the operating contract. homeless households and less time spent in expensive temporary accommodation. Figures for Wales and Scotland are a matter for the Immigration: Deportation relevant devolved administration. Question Asked by Lord Roberts of Llandudno Immigration To ask Her Majesty’s Government whether the Question Home Office received e-mails, or any other form of Asked by Lord Roberts of Llandudno correspondence, from the United Nations Joint Human Rights Office regarding the deportation of a non- To ask Her Majesty’s Government how the policies Congolese national between June and September in Detention Service Order 03/2013 and Chapter 2012. [HL3762] 55.10 of the Enforcement Instructions and Guidance are being applied to food- and fluid-refusing detainees The Parliamentary Under-Secretary of State, Home whose condition deteriorates to a point where they Office (Lord Taylor of Holbeach) (Con): The Home are critically ill or at end of life; and whether there Office received one email dated 7 July 2012 from the are additional policy criteria which are being applied UN Joint Human Rights Office (UNJHRO), Kinshasa. to the continued detention of food- and fluid- This noted that the UNJHRO had been informed that refusers. [HL3812] one of the five returnees on the flight from the UK on 8 June 2012 was refused entry because he claimed not The Parliamentary Under-Secretary of State, Home to be a national of the Democratic Republic of Congo Office (Lord Taylor of Holbeach) (Con): The policies (DRC). He was then sent to his alleged home country and procedures set out in the Detention Services Order the following day. The e-mail also stated that the WA 125 Written Answers[LORDS] Written Answers WA 126

UNJHRO had conducted enquiries but had no evidence Local Authorities: Finance of any further detentions of individuals returned on 8 June. Question The Home Office asked the Foreign and Asked by Lord Shipley Commonwealth Office (FCO) to investigate this allegation of the deportation of a non DRC national. EGO did To ask Her Majesty’s Government whether they so through the Direction General de Migration (DGM) intend to adopt a multi-year funding settlement for of the Government of the DRC, which is responsible local authorities aligned to the fixed terms of for processing returns and other migration matters. Parliament in order to support local authorities The DGM informed the FOCI that it had not been with their financial planning. [HL3728] involved in the deportation of an incorrectly documented returnee from the UK to a third country in June 2012. The Parliamentary Under-Secretary of State, Department The DGM were also aware that the UK would accept for Communities and Local Government (Baroness Stowell back any returnee that they were not satisfied was a of Beeston) (Con): We currently have no plans to align DRC national. local government finance settlements with Parliamentary terms. The new Business Rates Retention scheme offers Istanbul Convention certainty and predictability for local authorities in the local share of business rates, which remains unchanged Question until reset except for annual uprates in line with the Asked by Baroness Scotland of Asthal Small Business Rates multiplier. To ask Her Majesty’s Government why they have not yet ratified the Istanbul Convention after signing Migration Impact Fund it on 8 June 2012; and when they plan to do so. [HL3659] Question Asked by Baroness Scotland of Asthal The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con): The To ask Her Majesty’s Government why the criminalisation of forced marriage is a vital component Migration Impact Fund was cancelled; and whether of the UK’s compliance with the articles of the Istanbul a needs-based assessment has been conducted on Convention. The Coalition Government has brought the provision of support for local councils, housing forward provisions in the Anti-Social Behaviour, Crime associations, schools and hospitals with large Roma and Policing Bill to criminalise forced marriage and populations. [HL3493] the timetable for ratification of the Convention is subject to our receiving Royal Assent for the Bill. The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Stowell Justice: Lay Magistrates of Beeston) (Con): The last Administration’s Migration Impact Fund was ineffective and did not represent Questions value for money, especially in light of the need to Asked by Lord Beecham tackle the deficit left by the last Administration. To ask Her Majesty’s Government how many lay This Government has adopted an alternative approach magistrates have (1) retired, and (2) been appointed of introducing stronger controls on immigration and in the last year. [HL3790] addressing the “pull” factors that previously led to unsustainable impacts on this country. The Prime Minister recently outlined our plans to tackle benefit The Minister of State, Ministry of Justice (Lord tourism and the abuse of free movement rights within McNally) (LD): Between 4 December 2012 and the European Union. 3 December 2013: We also have clear integration strategy to bring 1,083 magistrates retired. together disparate communities, including, for example, 329 magistrates were appointed. supporting English language training. Asked by Lord Beecham To ask Her Majesty’s Government what budget is allocated centrally to promote the lay magistracy National Institute of Health and to potential recruits. [HL3791] Care Excellence To ask Her Majesty’s Government what budget Questions is available to each advisory committee to promote Asked by Lord Clement-Jones the lay magistracy to potential recruits. [HL3792] To ask Her Majesty’s Government whether they Lord McNally: There is no centrally allocated budget have any plans to change the remit of the National within HMCTS for recruitment of lay magistracy. Institute of Health and Care Excellence to enable it Magistrates are recruited and selected by 47 local to assess combination therapies either under the advisory committees and any recruitment costs would current technology appraisal process or under the be met from local budgets. proposed value assessment. [HL3923] WA 127 Written Answers[11 DECEMBER 2013] Written Answers WA 128

The Parliamentary Under-Secretary of State, Department The Parliamentary Under-Secretary of State, Home of Health (Earl Howe) (Con): The National Institute Office (Lord Taylor of Holbeach) (Con): HM Passport for Health and Care Excellence has appraised a number Office request law enforcement agencies with a statutory of medicines that are licensed for use in combination power to place restrictions on the ability of an offender with other therapies and will continue to be able to to travel outside of the United Kingdom or to require do so. them to surrender their passport to notify HM Passport Office of any such restriction, but the details of those Asked by Lord Clement-Jones serving custodial sentences are not routinely notified To ask Her Majesty’s Government what discussions to Her Majesty’s Passport Office. they have had with the National Institute of Health and A person applying for a British passport is required Care Excellence about its negative recommendations for identity validation purposes to provide details of in respect of cancer drugs in 2013. [HL3924] any passport held currently or previously, irrespective of the country of issue. There are no plans to extend this requirement to existing passport holders. The Earl Howe: Ministers and officials have regular Royal Prerogative provides the Secretary of State with discussions with the National Institute for Health and the power to require any necessary and relevant Care Excellence (NICE) on a range of issues relevant information in connection with an application for a to its work, including on the outcomes of some of its British passport. technology appraisals. The Government believes that NICE, as an independent body, must be allowed to make its RAF Menwith Hill recommendations without political interference. Question Asked by Baroness Miller of Chilthorne Domer NHS: Mid-Staffordshire NHS Trust To ask Her Majesty’s Government, further to Question the Written Answer by Lord Astor of Hever on Asked by Lord Mawhinney 26 November (WA 272), whether the use of RAF Menwith Hill is still subject to a renewable security To ask Her Majesty’s Government, further to of tenure agreement; and, if so, when the agreement the remarks by Earl Howe on 19 November (HL Deb, was last renewed and for how long. [HL3892] col 865), why they decided not to introduce a statutory individual duty of candour, as recommended by the The Parliamentary Under-Secretary of State, Ministry Francis Report on Mid-Staffordshire NHS Foundation of Defence (Lord Astor of Hever) (Con): The use of Trust. [HL3851] RAF Menwith Hill by the United States Visiting Forces is no longer subject to a renewable Security of The Parliamentary Under-Secretary of State, Department Tenure Arrangement. of Health (Earl Howe) (Con): The right way to meet the objective of enhanced candour by individuals is by strengthened references to candour in professional Religious Tolerance regulation. This will include being candid with patients Question when mistakes occur whether serious or not, and reporting “near misses” for errors that could have led Asked by Lord Bourne of Aberystwyth to death or serious injury, as well as actual harm. To ask Her Majesty’s Government what steps Alongside this, the organisational duty of candour they are taking to promote religious tolerance in will drive a more open culture throughout organisations, the workplace. [HL3714] including its staff.

The Parliamentary Under-Secretary of State, Department Passports for Business, Innovation and Skills (Viscount Younger of Leckie) (Con): Legal protection for employees from Questions direct and indirect discrimination as well as from Asked by Lord Marlesford harassment or victimisation because of religion and belief is provided by the Equality Act 2010. To ask Her Majesty’s Government whether details The Equality and Human Rights Commission of those serving custodial sentences are supplied to (EHRC)—the UK body with the statutory remit to the Identity and Passport Service to prevent the protect, enforce and promote equality—has issued a improper use of passports while such persons are in targeted guide for employers which can be accessed on custody. [HL3665] their website at: http://www.equality humanrights.com/ To ask Her Majesty’s Government when they advice-and-guidance/your-rights/religion-and-belief/ expect to announce the requirement for those holding This good practice guide aims to help employers or applying for British passports to notify the Identity understand how to recognise and manage expressions and Passport Service of other non-British passports of religion or belief in the workplace and includes held; and whether such a change could be made examples of requests that employees may make and under the Royal Prerogative. [HL3666] how employers might deal with them. WA 129 Written Answers[LORDS] Written Answers WA 130

The EHRC have also published Shared understandings: and the United Nations High Commission for Refugees. a new EHRC strategy to strengthen understanding of The UK has now increased its pledge for the Syrian religion or belief in public life. Part of this work will relief effort to £500 million. This represents the UK’s seek to assess whether there is currently sufficient largest ever response to a humanitarian crisis. protection for people with a religious or other belief. Asked by Lord Boateng In addition, the public sector equality duty (PSED), requires public bodies to have due regard to the need Toask Her Majesty’s Government what consultation to eliminate discrimination, harassment and victimisation they have had with Syrian faith groups in preparation on grounds of religion and belief; to advance equality for the Geneva 2 talks; which groups have been of opportunity; and to foster good relations between involved; and when they occurred. [HL3807] people of different religions. The Senior Minister of State, Department for Communities Sudan and Local Government & Foreign and Commonwealth Question Office (Baroness Warsi) (Con): We are actively engaging Asked by Lord Alton of Liverpool with our international partners to bring about a political transition in Syria through the Geneva II process. This To ask Her Majesty’s Government when they includes efforts to support the Syrian moderate opposition, last raised the issue of restrictions on religious the National Coalition, for Geneva II. Wehave encouraged freedom with the government of Sudan; when they them to draw representation from the diverse strands last called upon that government to abide by of Syrian society.The Coalition includes representatives international standards of freedom of religion or from across Syria’sdiverse communities, including Christians. belief; and whether they have encouraged that We also engage with broader Syrian society, for example, government to amend or repeal legislation and on 16 October I met Patriarch Gregorios III, the leader practices which infringe on religious liberty and of the Melkite Greek Catholic Church, for discussions related rights. [HL3748] on the Geneva II process as well as the situation of Christians in Syria and the humanitarian crisis. We The Senior Minister of State, Department for Communities also fund project work which brings together and and Local Government & Foreign and Commonwealth builds dialogue between different Syrian communities Office (Baroness Warsi) (Con): On 15 November I gave including different faith groups. a speech in Washington stressing the need for an international response to the persecution of Christians Asked by Lord Boateng and other religious minorities, and for unity in confronting To ask Her Majesty’s Government what steps the intolerance and sectarianism that leads to minority they will take to ensure that all Syrian faith groups communities being persecuted. In the case of Sudan, are represented at the Geneva 2 talks in January we regularly press the government to respect freedom 2014. [HL3808] of religion for all its citizens, and raise this both bilaterally and in relevant multilateral organisations. We raise incidences of restrictions on religious freedom, Baroness Warsi: We are actively involved in working including our concerns at the expulsion of foreign with the National Coalition to ensure that their delegation nationals connected to Christian groups. We continue at Geneva II fully represents the diversity of Syrian to encourage the government of Sudan to embark on a society, including its different faith groups. We are also process of political reform, including adoption of an encouraging the UN to consider options for a formal inclusive constitution that respects human rights including role for civil society at Geneva II. The purpose of freedom of religion. We will continue to monitor the Geneva II is for the Syrian parties to agree on a situation through our Embassy in Khartoum and to political transition on the basis of the Geneva I raise our concerns at a high level with the Government communiqué which makes it clear that there should be of Sudan. no future sectarianism or religious discrimination.

Syria Tanzania Questions Question Asked by The Lord Bishop of Coventry Asked by Baroness Kinnock of Holyhead To ask Her Majesty’s Government whether they plan to participate in the resettlement programme To ask Her Majesty’s Government what assessment for Syrian refugees administered by the United they have made of reports that African Barrick Gold has used Tanzanian police to provide security Nations High Commissioner for Refugees. [HL3600] at the North Mara Gold Mine. [HL3837] The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con): The Government The Senior Minister of State, Department for Communities shares the deep concerns regarding the continuing and Local Government & Foreign and Commonwealth humanitarian crisis in Syria. However, the Government Office (Baroness Warsi) (Con): According to African has no current plans to resettle Syrian refugees either Barrick Gold, the company has signed a memorandum as part of, or in addition to, its annual resettlement of understanding with the Tanzanian police force for quota. We continue to believe that the priority should the provision of police force patrols in the general area be to provide humanitarian assistance to displaced surrounding the mine. Police only enter the company’s people in partnership with neighbouring countries property in cases of emergency. WA 131 Written Answers[11 DECEMBER 2013] Written Answers WA 132

Teachers: Misconduct Thames Tideway Tunnel Question Question Asked by Baroness Manzoor Asked by Lord Berkeley To ask Her Majesty’s Government how long To ask Her Majesty’s Government when they investigations into allegations of misconduct by intend to respond to Lord Berkeley’s letter of teachers last on average; whether there are any 1 November to Lord de Mauley in respect of the milestones in the investigation process; and whether Thames tideway tunnel. [HL3969] there is a maximum limit on how long an investigation can take. [HL3847] The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord De Mauley) (Con): I replied to the noble Lord on 9 December. The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con): Responsibility for the regulation of Third Parties (Rights Against Insurers) serious misconduct passed to the Secretary of State Act 2010 for Education on 2 April 2012. As at 30 November 2013, The National College for Teaching and Leadership Question (NCTL) had concluded 1,384 investigations into Asked by Lord Laird allegations of misconduct by teachers. The average time to conclude a case was 7.8 weeks. To ask Her Majesty’s Government when the Third Parties (Rights Against Insurers) Act 2010 There are four milestones within the process: will come into force; whether it will come into force 1. Initial assessment – to establish that the on the same day in England and Wales, Scotland individual is within jurisdiction and that the referral and Northern Ireland; whether it will come into is not for a minor offence such as a one-off driving force entirely on that day; and why there has been a offence. delay since enactment. [HL3831] 2. Initial review meeting – after reading of all the referral papers an assessment is made by officials The Minister of State, Ministry of Justice (Lord as to whether, if all the allegations are proven, McNally) (LD): I refer the noble Lord to my Written there is any prospect of a prohibition order being Statement of 25 April 2013, Official Report, column imposed, taking account of the Secretary of State’s WS178. The position remains that we intend to introduce published advice on the prohibition of teachers. legislation to amend the Third Parties (Rights Against Insurers) Act 2010 as soon as parliamentary time 3. Post investigation meeting – where a case proceeds permits and to commence the Act as amended as soon following the initial review meeting a full investigation as reasonably possible thereafter on the same day takes place. On completion of that investigation, across the whole of the United Kingdom. officials determine whether there remains any prospect Implementation of the Act was delayed initially by of a prohibition order being made, referring once work on other priorities and more recently by the need more to the published guidance. to amend it. The principal aim of the proposed 4. Public hearing – if a case moves forward from amendments is to bring within the scope of the Act the post investigation meeting it is prepared and claimants to whom it does not apply but who would scheduled for a public hearing before a panel of have been covered by the Third Parties (Rights against publically appointed members. A panel comprises Insurers) Act 1930 or the Third Parties (Rights against three members, with at least one lay member and at Insurers) Act 1930 (Northern Ireland). least one teacher member. There is no prescription as to majority. If the panel find the facts proved and that those facts amount to ‘unacceptable Treatment of Detainees professional conduct’, ‘conduct that may bring the Question profession into disrepute’ or ‘conviction, at any Asked by Lord Hylton time, of a relevant offence’ then they must make a judgement about whether to recommend the To ask Her Majesty’s Government what conclusions imposition of a prohibition order by the Secretary for United Kingdom policy and practice they draw of State. from The Report of the Constitution Project’s Task Investigations are reliant on a number of external Force on Detainee Treatment, published in the factors including on-going police investigations and United States on 16 April. [HL3746] the co-operation and availability of witnesses. There is no maximum limit on how long an investigation can The Senior Minister of State, Department for take. We do monitor progress against internal performance Communities and Local Government & Foreign and indicators. 98% of initial assessments should conclude Commonwealth Office (Baroness Warsi) (Con): The within 3 working days (target met), 95% post investigation Government has noted the Report of the Constitution meetings should conclude within 20 weeks (target Project’s Task Force on Detainee Treatment. The met), and 90% of all cases should conclude within Government has made clear its commitment to learn 52 weeks. All targets have been met. any lessons that emerge in relation to the work of our WA 133 Written Answers[LORDS] Written Answers WA 134 security and intelligence agencies in the aftermath of To ask Her Majesty’s Government when they the terrible events of 11 September 2001. The Government expect commitments 7 and 16 of their delivery plan has published Consolidated Guidance to Intelligence following the most recent review of waste policy in Officers and Service Personnel on the Detention and England will be completed. [HL3754] Interviewing of Detainees Overseas, and on the Passing and Receipt of Intelligence Relating to Detainees (known as the “Consolidated Guidance”) which is overseen by The Parliamentary Under-Secretary of State, Department the independent Intelligence Services Commissioner for Environment, Food and Rural Affairs (Lord De and strengthened the powers of the Intelligence and Mauley) (Con): Commitment 2 was to develop a Material Security Committee under the Justice and Security Recovery Facility Code of Practice. The Government Act 2013. We keep policy and practice in this area will deliver this commitment through. regulations that under regular review. we aim to introduce early next year. Commitment 4 was to put in place Voluntary Responsibility Deals for packaging and particularly to Visas raise recycling levels for metal and plastic packaging. Question Defra is not developing specific responsibility deals with the metal and plastic industry. Instead, these Asked by Lord Hodgson of Astley Abbotts sectors have been developing their own work to raise To ask Her Majesty’s Government what research recycling levels, for example the Metal Matters campaign, was undertaken to support the statement in the and the plastics industry is in the process of launching Home Office Research Report 71 Student Visitors a similar initiative which Defra is supporting. that abuse of the student visitor visa system is Commitment 5 was completed on 26 June 2012 “minimal”. [HL3474] when the Hospitality and Food Service Agreement was launched. The Parliamentary Under-Secretary of State, Home Commitment 7 is to produce a National Waste Office (Lord Taylor of Holbeach) (Con): The research Prevention Programme; this is due to be published examined a sample of student visit visa applications shortly. The revised Waste Framework Directive requires between 2011-12 taken from the Home Office Central that Member States publish Waste Prevention Reference System and a sample of student visitors not Programmes no later than 12 December 2013; we are requiring visas arriving at Heathrow airport in November currently on track to meet this target. 2012. Commitment 9 was to launch a Zero Waste Award. The results show that the visitor route is being used No work is currently being taken forward. This is in as the government intended—attracting high value, line with our stated priorities: we will focus on the low risk migrants who contribute positively to economic essentials of waste policy that only the Government growth. It also makes clear that short-term students can and must do. are attending accredited institutions and most are Commitment 10 was to decide what further action doing English language programmes or university may be needed with respect to single-use carrier bags. exchanges. There is no evidence of displacement from On 14 September the Government announced that a the main student route, for longer periods of study at mandatory five pence charge for single-use plastic higher levels, into the student visitor route. bags will be introduced from autumn 2015. A Call for Key indicators of abuse—including forgeries and Evidence was launched on 25 November seeking evidence enforcement arrests—for those who entered the UK on how the charge will work in England. on a student visitor visa are low. Commitment 11 relates to a number of projects we Home Office Research Report 71 Student Visitors: are funding through our Action Based Research https://www.gov.uk/government/uploads/system/ programme. The current service model trial is a three-year uploads/attachment_data/file/205318/horr71.pdf pilot and is due to report in early 2016. Commitments 12-14 all relate to waste prevention and are covered in the Waste Prevention Plan for Waste Management England, due to be published this month. Questions Commitment 15, relating to consumer confidence in products, was completed in July 2012. Asked by Lord Willis of Knaresborough Commitment 16 is to work with standard-setting To ask Her Majesty’s Government when they organisations to encourage waste prevention requirements expect commitments 2, 4, 5 and 9 to 15 of their in product standards. This work was included in the delivery plan following the review of waste policy in British Standards Institution’s 2013/14 programme and England in 2011 to be completed. [HL3753] is due to be completed in March next year. Wednesday 11 December 2013

ALPHABETICAL INDEX TO WRITTEN STATEMENTS

Col. No. Col. No. EU: Development Foreign Affairs Council, Foreign Health: Dementia ...... 78 Affairs Council and General Affairs Council...... 73 Insolvency Service ...... 79 EU: Energy Council ...... 77 Overseas Aid...... 80 Government: Ministerial Responsibilities ...... 78 Water Management: Waste Water...... 81

Wednesday 11 December 2013

ALPHABETICAL INDEX TO WRITTEN ANSWERS

Col. No. Col. No. Apprenticeships ...... 111 Homeless Families ...... 123 Asil Nadir...... 111 Immigration...... 123 Asylum Seekers...... 111 Immigration: Deportation ...... 124 Aviation: Air Quality ...... 112 Immigration Removal Centres: Fire Safety...... 124 BAE Systems ...... 113 Istanbul Convention ...... 125 British Embassies: Military Attachés ...... 113 Justice: Lay Magistrates...... 125 Competition Commission...... 114 Local Authorities: Finance ...... 126 Courts: District Judges ...... 114 Migration Impact Fund...... 126 Data Protection ...... 115 National Institute of Health and Care Excellence...... 126 Driving: Over 70s...... 116 NHS: Mid-Staffordshire NHS Trust ...... 127 Passports ...... 127 Drones ...... 117 RAF Menwith Hill ...... 128 Energy: Coal Fired Power Stations ...... 117 Religious Tolerance...... 128 Energy: Plutonium...... 118 Sudan...... 129 EU: Trade Agreements ...... 118 Syria ...... 129 Gaza ...... 119 Tanzania ...... 130 Government: Ministerial Visits ...... 120 Teachers: Misconduct ...... 131 Graphene...... 120 Thames Tideway Tunnel ...... 132 Gypsies and Travellers ...... 121 Third Parties (Rights Against Insurers) Act 2010 ...... 132 Health: Autism ...... 121 Treatment of Detainees...... 132 Health: International Healthcare Workers ...... 122 Visas ...... 133 Health: Ophthalmology ...... 122 Waste Management ...... 133 NUMERICAL INDEX TO WRITTEN ANSWERS

Col. No. Col. No. [HL3110] ...... 124 [HL3659] ...... 125 [HL3142] ...... 123 [HL3665] ...... 127 [HL3474] ...... 133 [HL3666] ...... 127 [HL3493] ...... 126 [HL3671] ...... 111

[HL3600] ...... 129 [HL3700] ...... 118 Col. No. Col. No. [HL3703] ...... 112 [HL3789] ...... 115 [HL3704] ...... 112 [HL3790] ...... 125 [HL3705] ...... 112 [HL3791] ...... 125 [HL3710] ...... 111 [HL3792] ...... 125 [HL3714] ...... 128 [HL3793] ...... 120 [HL3715] ...... 115 [HL3807] ...... 130 [HL3728] ...... 126 [HL3808] ...... 130 [HL3734] ...... 119 [HL3812] ...... 123 [HL3735] ...... 119 [HL3821] ...... 113 [HL3736] ...... 119 [HL3827] ...... 111 [HL3737] ...... 120 [HL3831] ...... 132 [HL3738] ...... 120 [HL3832] ...... 116 [HL3740] ...... 121 [HL3837] ...... 130 [HL3745] ...... 117 [HL3847] ...... 131 [HL3746] ...... 132 [HL3851] ...... 127 [HL3748] ...... 129 [HL3855] ...... 114 [HL3752] ...... 113 [HL3857] ...... 122 [HL3753] ...... 133 [HL3865] ...... 122 [HL3754] ...... 134 [HL3892] ...... 128 [HL3762] ...... 124 [HL3917] ...... 120 [HL3776] ...... 121 [HL3923] ...... 126 [HL3781] ...... 116 [HL3924] ...... 127 [HL3786] ...... 117 [HL3969] ...... 132 [HL3788] ...... 114 [HL3980] ...... 118 Volume 750 Wednesday No. 86 11 December 2013

CONTENTS

Wednesday 11 December 2013 Questions Northern Ireland: Royal Residence...... 773 Schools Careers Service: Apprenticeships...... 775 Payday Loans ...... 778 China: Exports ...... 780 National Insurance Contributions Bill First Reading ...... 782 Energy Bill Commons Reason...... 783 Anti-social Behaviour, Crime and Policing Bill Committee (7th Day)...... 798 Criminal Defence Service (Very High Cost Cases) (Funding) Order 2013 Motion to Annul...... 869 Criminal Legal Aid (Remuneration) (Amendment) Regulations 2013 Motion to Annul...... 898 Grand Committee Olympic Legacy (S&T Report) Motion to Take Note...... GC 153 EU: Fraud (EUC Report) Motion to Take Note...... GC 174 Written Statements...... WS 73 Written Answers...... WA 111