Vol. 760 Monday No. 110 2 March 2015

PARLIAMENTARY DEBATES (HANSARD) HOUSE OF LORDS OFFICIAL REPORT

ORDER OF BUSINESS

Questions Parliament: Conventions ...... 1 Defence: Strategic Defence and Security Review...... 5 Tehran: British Embassy...... 7 Astute-class Submarines...... 9 Health Service Commissioner for England (Complaint Handling) Bill First Reading ...... 12 Warm Home Discount (Miscellaneous Amendments) Regulations 2015 Motion to Approve...... 12 Social Security Benefits Up-rating Order 2015...... 12 Mesothelioma Lump Sum Payments (Conditions and Amounts) (Amendment) Regulations 2015...... 12 Pneumoconiosis etc. (Workers’ Compensation) (Payment of Claims) (Amendment) Regulations 2015...... 12 Guaranteed Minimum Pensions Increase Order 2015 ...... 12 Automatic Enrolment (Earnings Trigger and Qualifying Earnings Band) Order 2015 Motions to Approve ...... 13 Employment Allowance (Care and Support Workers) Regulations 2015 Social Security (Contributions) (Re-rating and National Insurance Funds Payments) Order 2015 Social Security (Contributions) (Limits and Thresholds) (Amendment) Regulations 2015 Childcare Payments (Eligibility) Regulations 2015 Motions to Approve ...... 13 Shared Parental Leave and Leave Curtailment (Amendment) Regulations 2015 Companies Act 2006 (Amendment of Part 17) Regulations 2015 Motions to Approve ...... 13 Industrial Training Levy (Construction Industry Training Board) Order 2015 Industrial Training Levy (Engineering Construction Industry Training Board) Order 2015 Motions to Approve ...... 14 Recall of MPs Bill Third Reading ...... 14 Counterterrorism Policy: Syria and Iraq Statement ...... 40 Serious Crime Bill [HL] Commons Amendments ...... 44

Grand Committee National Minimum Wage Regulations 2015...... GC 1 Groceries Code Adjudicator (Permitted Maximum Financial Penalty) Order 2015...... GC 4 Electronic Commerce Directive (Financial Services and Markets) (Amendment) Order 2015...... GC 8 Financial Services and Markets Act 2000 (Miscellaneous Provisions) Order 2015 ...... GC 13 Financial Services and Markets Act 2000 (Banking Reform) (Pensions) Regulations 2015...... GC 14 Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No. 2) Order 2015 Motions to Consider...... GC 17

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The first time a Member speaks to a new piece of parliamentary business, the following abbreviations are used to show their party affiliation: Abbreviation Party/Group CB Cross Bench Con Conservative Con Ind Conservative Independent DUP Democratic Unionist Party GP Green Party Ind Lab Independent Labour Ind LD Independent Liberal Democrat Ind SD Independent Social Democrat Lab Labour Lab Ind Labour Independent LD Liberal Democrat LD Ind Liberal Democrat Independent Non-afl Non-affiliated PC Plaid Cymru UKIP UK Independence Party UUP Ulster Unionist Party

No party affiliation is given for Members serving the House in a formal capacity, the Lords spiritual, Members on leave of absence or Members who are otherwise disqualified from sitting in the House. © Parliamentary Copyright House of Lords 2015, this publication may be reproduced under the terms of the Open Parliament licence, which is published at www.parliament.uk/site-information/copyright/. HER MAJESTY’S GOVERNMENT

PRINCIPAL OFFICERS OF STATE

THE CABINET PRIME MINISTER,FIRST LORD OF THE TREASURY AND MINISTER FOR THE CIVIL SERVICE—The Rt. Hon. David Cameron, MP DEPUTY PRIME MINISTER AND LORD PRESIDENT OF THE COUNCIL—The Rt. Hon. Nick Clegg, MP FIRST SECRETARY OF STATE AND LEADER OF THE HOUSE OF COMMONS—The Rt. Hon. William Hague, MP CHANCELLOR OF THE EXCHEQUER—The Rt. Hon. George Osborne, MP SECRETARY OF STATE FOR THE HOME DEPARTMENT—The Rt. Hon. Theresa May, MP SECRETARY OF STATE FOR FOREIGN AND COMMONWEALTH AFFAIRS—The Rt. Hon. Philip Hammond, MP LORD CHANCELLOR AND SECRETARY OF STATE FOR JUSTICE—The Rt. Hon. Chris Grayling, MP SECRETARY OF STATE FOR DEFENCE—The Rt. Hon. Michael Fallon, MP SECRETARY OF STATE FOR BUSINESS,INNOVATION AND SKILLS AND PRESIDENT OF THE BOARD OF TRADE—The Rt. Hon. Vince Cable, MP SECRETARY OF STATE FOR WORK AND PENSIONS—The Rt. Hon. Iain Duncan Smith, MP SECRETARY OF STATE FOR HEALTH—The Rt. Hon. Jeremy Hunt, MP SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT—The Rt. Hon. Eric Pickles, MP SECRETARY OF STATE FOR EDUCATION AND MINISTER FOR WOMEN AND EQUALITIES—The Rt. Hon. Nicky Morgan, MP SECRETARY OF STATE FOR INTERNATIONAL DEVELOPMENT—The Rt. Hon. Justine Greening, MP SECRETARY OF STATE FOR ENERGY AND CLIMATE CHANGE—The Rt. Hon. Edward Davey, MP SECRETARY OF STATE FOR TRANSPORT—The Rt. Hon. Patrick McLoughlin, MP SECRETARY OF STATE FOR SCOTLAND—The Rt. Hon. Alistair Carmichael, MP SECRETARY OF STATE FOR NORTHERN IRELAND—The Rt. Hon. Theresa Villiers, MP SECRETARY OF STATE FOR WALES—The Rt. Hon. Stephen Crabb, MP SECRETARY OF STATE FOR CULTURE,MEDIA AND SPORT—The Rt. Hon. Sajid Javid, MP SECRETARY OF STATE FOR ENVIRONMENT,FOOD AND RURAL AFFAIRS—The Rt. Hon. Elizabeth Truss, MP CHIEF SECRETARY TO THE TREASURY—The Rt. Hon. Danny Alexander, MP

DEPARTMENTS OF STATE AND MINISTERS Business, Innovation and Skills— SECRETARY OF STATE AND PRESIDENT OF THE BOARD OF TRADE—The Rt. Hon. Vince Cable, MP MINISTERS OF STATE— The Rt. Hon. Greg Clark, MP (Minister for Universities, Science and Cities) Nick Boles, MP (Minister for Skills and Equalities) The Rt. Hon. Matthew Hancock, MP (Minister for Business and Enterprise) Edward Vaizey, MP (Minister for Culture and the Digital Economy) Lord Livingston of Parkhead (Minister for Trade and Investment) PARLIAMENTARY UNDER-SECRETARIES OF STATE— George Freeman, MP Jo Swinson, MP Baroness Neville-Rolfe, DBE, CMG Cabinet Office— MINISTER FOR THE CABINET OFFICE AND PAYMASTER-GENERAL—The Rt. Hon. Francis Maude, MP MINISTER FOR GOVERNMENT POLICY AND CHANCELLOR OF THE DUCHY OF LANCASTER—The Rt. Hon. Oliver Letwin, MP MINISTERS OF STATE— The Rt. Hon. David Laws, MP The Rt. Hon. Greg Clark, MP Joseph Johnson, MP PARLIAMENTARY SECRETARY— Sam Gyimah, MP Rob Wilson, MP (Minister for Civil Society) MINISTER WITHOUT PORTFOLIO—The Rt. Hon. Grant Shapps, MP Communities and Local Government— SECRETARY OF STATE—The Rt. Hon. Eric Pickles, MP MINISTER OF STATE—Brandon Lewis, MP PARLIAMENTARY UNDER-SECRETARIES OF STATE— Stephen Williams, MP Kris Hopkins, MP Penny Mordaunt, MP Lord Ahmad of Wimbledon ii

Culture, Media and Sport—

SECRETARY OF STATE—The Rt. Hon. Sajid Javid, MP

MINISTER FOR CULTURE AND THE DIGITAL ECONOMY—Edward Vaizey, MP

PARLIAMENTARY UNDER-SECRETARY OF STATE—Helen Grant, MP

Defence—

SECRETARY OF STATE—The Rt. Hon. Michael Fallon, MP

MINISTERS OF STATE— The Rt. Hon. Mark Francois, MP (Minister for the Armed Forces) Anna Soubry, MP

PARLIAMENTARY UNDER-SECRETARIES OF STATE— Philip Dunne, MP Julian Brazier, MP Lord Astor of Hever, DL

Education—

SECRETARY OF STATE AND MINISTER FOR WOMEN AND EQUALITIES—The Rt. Hon. Nicky Morgan, MP

MINISTERS OF STATE— The Rt. Hon. David Laws, MP (Minister for Schools) Nick Gibb, MP Nick Boles, MP (Minister for Skills and Equalities)

PARLIAMENTARY UNDER-SECRETARIES OF STATE— Edward Timpson, MP Sam Gyimah, MP Lord Nash

PARLIAMENTARY UNDER-SECRETARY OF STATE FOR WOMEN AND EQUALITIES—Jo Swinson, MP

Energy and Climate Change—

SECRETARY OF STATE—The Rt. Hon. Edward Davey, MP

MINISTER OF STATE—The Rt. Hon. Matthew Hancock, MP

PARLIAMENTARY UNDER-SECRETARIES OF STATE— Amber Rudd, MP Baroness Verma

Environment, Food and Rural Affairs—

SECRETARY OF STATE—The Rt. Hon. Elizabeth Truss, MP

PARLIAMENTARY UNDER-SECRETARIES OF STATE— George Eustice, MP Dan Rogerson, MP Lord De Mauley, TD

Foreign and Commonwealth Office—

SECRETARY OF STATE—The Rt. Hon. Philip Hammond, MP

MINISTERS OF STATE— The Rt. Hon. David Lidington, MP (Minister for Europe) The Rt. Hon. Hugo Swire, MP The Rt. Hon. Baroness Anelay of St Johns, DBE Lord Livingston of Parkhead

PARLIAMENTARY UNDER-SECRETARIES OF STATE— James Duddridge, MP Tobias Ellwood, MP

Health—

SECRETARY OF STATE—The Rt. Hon. Jeremy Hunt, MP

MINISTER OF STATE— The Rt. Hon. Norman Lamb, MP

PARLIAMENTARY UNDER-SECRETARIES OF STATE— Daniel Poulter, MP George Freeman, MP Jane Ellison, MP The Rt. Hon. Earl Howe iii

Home Office— SECRETARY OF STATE—The Rt. Hon. Theresa May, MP MINISTERS OF STATE— The Rt. Hon Lynne Featherstone, MP (Minister for Crime Prevention) James Brokenshire, MP (Minister for Security and Immigration) The Rt. Hon. Mike Penning, MP (Minister for Policing, Criminal Justice and Victims) PARLIAMENTARY UNDER-SECRETARIES OF STATE— Karen Bradley, MP Lord Bates International Development— SECRETARY OF STATE—The Rt. Hon. Justine Greening, MP MINISTER OF STATE—The Rt. Hon. Desmond Swayne, MP PARLIAMENTARY UNDER-SECRETARY OF STATE—Baroness Northover Justice— LORD CHANCELLOR AND SECRETARY OF STATE—The Rt. Hon. Chris Grayling, MP MINISTERS OF STATE— The Rt. Hon. Simon Hughes, MP The Rt. Hon. Mike Penning, MP (Minister for Policing, Criminal Justice and Victims) Lord Faulks PARLIAMENTARY UNDER-SECRETARIES OF STATE— Shailesh Vara, MP Andrew Selous, MP Law Officers— ATTORNEY-GENERAL—The Rt. Hon. Jeremy Wright, QC, MP SOLICITOR-GENERAL—Robert Buckland, QC, MP ADVOCATE-GENERAL FOR SCOTLAND—The Rt. Hon. Lord Wallace of Tankerness, QC Leader of the House of Commons— FIRST SECRETARY OF STATE AND LEADER OF THE HOUSE OF COMMONS—The Rt. Hon. William Hague, MP DEPUTY LEADER OF THE HOUSE OF COMMONS—The Rt. Hon. Tom Brake, MP Leader of the House of Lords— LEADER OF THE HOUSE OF LORDS AND LORD PRIVY SEAL—The Rt. Hon. Baroness Stowell of Beeston, MBE DEPUTY LEADER OF THE HOUSE OF LORDS—The Rt. Hon. Lord Wallace of Tankerness, QC Northern Ireland— SECRETARY OF STATE—The Rt. Hon. Theresa Villiers, MP PARLIAMENTARY UNDER-SECRETARY OF STATE—Andrew Murrison, MP Privy Council Office— DEPUTY PRIME MINISTER AND LORD PRESIDENT OF THE COUNCIL—The Rt. Hon. Nick Clegg, MP Scotland Office— SECRETARY OF STATE—The Rt. Hon. Alistair Carmichael, MP PARLIAMENTARY UNDER-SECRETARY OF STATE—The Rt. Hon. David Mundell, MP Transport— SECRETARY OF STATE—The Rt. Hon. Patrick McLoughlin, MP MINISTERS OF STATE— Baroness Kramer The Rt. Hon. John Hayes, MP PARLIAMENTARY UNDER-SECRETARIES OF STATE— Robert Goodwill, MP Claire Perry, MP Treasury— PRIME MINISTER,FIRST LORD OF THE TREASURY AND MINISTER FOR THE CIVIL SERVICE—The Rt. Hon. David Cameron, MP CHANCELLOR OF THE EXCHEQUER—The Rt. Hon. George Osborne, MP CHIEF SECRETARY—The Rt. Hon. Danny Alexander, MP FINANCIAL SECRETARY—David Gauke, MP EXCHEQUER SECRETARY—Priti Patel, MP ECONOMIC SECRETARY—ANDREA Leadsom, MP COMMERCIAL SECRETARY—Lord Deighton, KBE PARLIAMENTARY SECRETARY (CHIEF WHIP)—The Rt. Hon. Michael Gove, MP iv

LORDS COMMISSIONERS (GOVERNMENT WHIPS)— Mark Lancaster, MP David Evennett, MP John Penrose, MP Gavin Barwell, MP Harriett Baldwin, MP Alun Cairns, MP ASSISTANT GOVERNMENT WHIPS— Andrew Selous, MP Thérèse Coffey, MP Mel Stride, MP Ben Wallace, MP Damian Hinds, MP The Rt. Hon. Tom Brake, MP Lorely Burt, MP Wales Office— SECRETARY OF STATE—The Rt. Hon. Stephen Crabb, MP PARLIAMENTARY UNDER-SECRETARIES OF STATE— Alun Cairns, MP Baroness Randerson Work and Pensions— SECRETARY OF STATE—The Rt. Hon. Iain Duncan Smith, MP MINISTERS OF STATE— The Rt. Hon. Esther McVey, MP (Minister for Employment) The Rt. Hon. Steve Webb, MP (Minister for Pensions) Mark Harper, MP (Minister for Disabled People) PARLIAMENTARY UNDER-SECRETARY OF STATE—Lord Freud Her Majesty’s Household— LORD CHAMBERLAIN—The Rt. Hon. Earl Peel, GCVO, DL LORD STEWARD—The Earl of Dalhousie MASTER OF THE HORSE—Lord Vestey, KCVO LORDS IN WAITING— Viscount Brookeborough, DL Lord Faringdon TREASURER—The Rt. Hon. Greg Hands, MP COMPTROLLER—The Rt. Hon. Don Foster, MP VICE-CHAMBERLAIN—Anne Milton, MP Government Whips, House of Lords— CAPTAIN OF THE HONOURABLE CORPS OF GENTLEMEN-AT-ARMS (CHIEF WHIP)—The Rt. Hon. Lord Taylor of Holbeach, CBE CAPTAIN OF THE QUEEN’S BODYGUARD OF THE YEOMEN OF THE GUARD (DEPUTY CHIEF WHIP)—The Rt. Hon. Lord Newby, OBE BARONESSES IN WAITING— Baroness Jolly Baroness Williams of Trafford Baroness Garden of Frognal LORDS IN WAITING— Lord Ashton of Hyde Lord Bourne of Aberystwyth Lord Gardiner of Kimble Lord Popat The Rt. Hon. Lord Wallace of Saltaire HOUSE OF LORDS

PRINCIPAL OFFICE HOLDERS AND SENIOR STAFF LORD SPEAKER—The Rt. Hon. Baroness D’Souza, CMG CHAIRMAN OF COMMITTEES—Lord Sewel, CBE PRINCIPAL DEPUTY CHAIRMAN OF COMMITTEES—Lord Boswell of Aynho CLERK OF THE PARLIAMENTS—D. R. Beamish, LL.M CLERK ASSISTANT—E. C. Ollard READING CLERK AND CLERK OF THE OVERSEAS OFFICE—S. P. Burton GENTLEMAN USHER OF THE BLACK ROD AND SERJEANT-AT-ARMS—Lieutenant General David Leakey, CMG, CBE COMMISSIONER FOR STANDARDS—P. R. Kernaghan, CBE, QPM COUNSEL TO THE CHAIRMAN OF COMMITTEES—P. Milledge; P. Hardy REGISTRAR OF LORDS’INTERESTS—B. P. Keith CLERK OF COMMITTEES—Dr F. P. Tudor LEGAL ADVISER TO THE HUMAN RIGHTS COMMITTEE—M. R. Hunt DIRECTOR OF INFORMATION SERVICES AND LIBRARIAN—Dr E. Hallam Smith DIRECTOR OF FACILITIES—C. V. Woodall FINANCE DIRECTOR—A. Makower DIRECTOR OF PARLIAMENTARY ICT SERVICE—M. Taylor (acting) DIRECTOR OF HUMAN RESOURCES—T. V. Mohan CLERK OF LEGISLATION—J. Vaughan PRINCIPAL CLERK OF SELECT COMMITTEES—C. Johnson, DPhil

2 March 2015

THE PARLIAMENTARY DEBATES (HANSARD)

IN THE FOURTH SESSION OF THE FIFTY-FIFTH PARLIAMENT OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND COMMENCING ON THE EIGHTEENTH DAY OF MAY IN THE FIFTY-NINTH YEAR OF THE REIGN OF

HER MAJESTY QUEEN ELIZABETH II

FIFTH SERIES VOLUME DCCLX

SEVENTH VOLUME OF SESSION 2014-15

Baroness Stowell of Beeston: I think I will leave it to House of Lords the other party leaders in this House to decide whether they would like to write to Messrs Miliband and Monday, 2 March 2015. Clegg, but I agree with the noble Lord that the primacy of the House of Commons should never be in doubt. I 2.30 pm agree with him that form should always follow function and I am clear that the purpose of this House is to give the public confidence in the laws that Parliament Prayers—read by the Lord Bishop of Norwich. makes. It is an essential part of what we do and should inform what we do and how we do it, both now and in the future, however we may be composed. Parliament: Conventions Question Lord Tyler (LD): My Lords, I—among others, obviously—represented your Lordships’ House on the 2.37 pm Joint Committee that looked at the conventions of Asked by Lord Rooker Parliament. However, that was nine years ago. I suggest to my noble friend that, since that time, the era of To ask Her Majesty’s Government what assessment single-party government may well have disappeared they have made of the effectiveness of the conventions for ever. between the two Houses of Parliament as they have affected government business during the current Noble Lords: Oh! Parliament. Lord Tyler: Therefore, these conventions, as set out The Lord Privy Seal (Baroness Stowell of Beeston) in our report, are long past their sell-by date. Have any (Con): My Lords, while there has been no formal discussions taken place, between the parties in this assessment of the effectiveness of the conventions House and with the other place, on setting up a similar between the two Houses as they have affected this committee after the general election to look at the new Government’s business this Parliament, we believe situation? that they have proved adaptable and continue to stand the test of time. Baroness Stowell of Beeston: I disagree with my noble friend because I think we have proved in the Lord Rooker (Lab): My Lords, I agree that the course of this Parliament that these conventions have, conventions work well while this House is unelected. as I say, stood the test of time. Therefore, I believe that However, may I ask the noble Baroness, in her role as it is unnecessary to constitute another committee and Leader of the House—as opposed to a government that the conventions will be adaptable throughout the Minister—to indicate to the main party leaders that, next Parliament. when they come to write their manifesto paragraphs on Lords reform, they should include issues related Lord Campbell-Savours (Lab): My Lords, my noble to the functions and powers of this House, and its friend Lord Rooker asked a specific question about relationship to the other House, rather than just a whether there would be references to these matters in banal slogan on its composition? If they do not, it is the manifestos of the political parties and the Government. likely that such legislation will get short shrift in your What will happen in the case of the Conservative Lordships’ House. manifesto? 3 Parliament: Conventions[LORDS] Parliament: Conventions 4

Baroness Stowell of Beeston: I am pleased that the Baroness Stowell of Beeston: I think my noble noble Lord is so interested in my party’s manifesto. friend is referring to the Private Member’s Bill, which That suggests he believes it is the only one that really originated in this House, of the noble Baroness, matters. He will not be surprised that I am not going Lady Hayman— to give him any insight into the content of the manifesto before it is published. Noble Lords: Lord Saatchi. Lord Forsyth of Drumlean (Con): My Lords, will my noble friend indicate what the conventions are in Baroness Stowell of Beeston: I thought the noble respect of the Government’s involvement in private Lord was referring to the Bill of the noble Baroness, Members’ legislation? In particular, could she explain Lady Hayman, which is still very much in play. It is why the Government have backed a Bill that guarantees quite right that the Saatchi Bill has gone through this 0.7% of GDP for overseas aid, while blocking a Bill House carefully, but the other House has the prerogative that guarantees 2% of our GDP for NATO? to decide how to deal with it, as it has done.

Baroness Stowell of Beeston: The noble Lord knows that the 0.7% Bill, which was debated in this House on Baroness Kingsmill (Lab): My Lords, could the Friday, is, as he said, a Private Member’s Bill, but it Minister let me know what the Government propose represents a policy that was in the Conservative Party’s to do about the appalling, sexist and outrageous behaviour manifesto at the most recent election. of MPs in the other place? This is an enormous problem. It discourages women, and it is largely the men who do it. Lord Howarth of Newport (Lab): My Lords, if form should follow function, as the noble Baroness said, and if the function of your Lordships’ House is to act Baroness Stowell of Beeston: I am the Leader of as a revising and advisory Chamber, how can it have this House, and therefore I do not speak for the other been right for the Government to alter the form of the House. I am not sure that I would necessarily agree House, as they have, by packing the Benches behind with the comments of the noble Baroness about the her to create a large in-built government political other House, but I am pleased that in this House—in majority? my experience—there is no demonstration of sexism.

Baroness Stowell of Beeston: I take exception to the language that the noble Lord has used. As he knows, it Lord Tebbit (Con): My Lords, if any Members of is important that we continue to refresh this House this House think that they want to rebuff the other with new Members. Of the peerages created during place in any way, there is one very effective way in this Parliament, 47 have been on the Labour Benches. which it might be done. We might send back to them some of the Bills that they failed to discuss, because they keep part-time hours, in exactly the same state as Lord Laming (CB): Could the noble Baroness the they sent them to us. Leader of the House, when she has discussions with the leaders of the other parties, use the opportunity to highlight the work that this House does in revising Baroness Stowell of Beeston: My noble friend is legislation? There may be yet another example today always full of creative ideas. of how many government amendments there are to legislation. This House serves the country extremely well in its function of revising legislation, and I hope Baroness Royall of Blaisdon (Lab): My Lords, I that the Leader will take every opportunity to remind agree with my noble friend who suggested that the people down the other end that we do it rather better. Government are packing this House; I think they are packing the government Benches. I wholeheartedly agree with my noble friend about the purpose and Baroness Stowell of Beeston: The noble Lord is function of this place. I hope that the noble Baroness absolutely right. The fact that we are an unelected will consider suggesting to the Prime Minister that a Chamber right now does not in any way diminish the constitutional convention should be called. One of the important work that we exist to do. In revising and things that it should take into consideration is the scrutinising legislation, we give the public confidence purpose and function of this place. in the laws that Parliament makes.

Lord Cormack (Con): My Lords, I thank my noble Baroness Stowell of Beeston: As the noble Baroness friend for what she has said, but if we are to have knows from the exchanges that we have had previously, continuing amicable relations with another place, for that is not something that the Government are which we all hope, it is not very helpful if another proposing at this time. As far as the Conservative place peremptorily kills off a Bill that has been fairly Party within this Government is concerned, there are exhaustively debated in this place, as it did last Friday. other things that have a higher priority and do not It might well be that some us think we should flex our need a constitutional convention. We want to see muscles on a Bill that came from the other place. those implemented first. 5 Defence: SDSR[2 MARCH 2015] Defence: SDSR 6

Defence: Strategic Defence and Security “we have already had preliminary discussions in particular with the US and France following our engagement in the French Livre Review Blanc and US Quadrennial Defense Review processes”. Question This question is out there, but to be decided by whichever Government emerges after the next election. 2.45 pm Asked by Lord Rosser Lord Touhig (Lab): My Lords, each night some 500 veterans sleep on the streets of London and towns To ask Her Majesty’s Government what, if any, and cities across Britain. I mean in no way to diminish preparatory work has been, or is being, undertaken the importance of the strategic defence review, but in advance of the 2015 Strategic Defence and Security can the Minister indicate when the Government will Review; and whether any such work will be made honour the spirit of the Armed Forces covenant and available, subject to not compromising national face up to this crisis? Our defence depends on the security, prior to the general election. commitment of the men and women of our Armed Forces and we owe them a duty of care when they have Lord Wallace of Saltaire (LD): My Lords, preparatory left the services. analytical work is under way to refresh the risk-based assessment approach taken in 2010. As the review will formally begin after the next election, no decision on Lord Wallace of Saltaire: My Lords, I of course its final scope or approach has yet been made. The acknowledge the importance of the noble Lord’s point, Government have no plans to make any preliminary but I merely stress that I am answering for the Cabinet work available prior to the general election. Office and the Government as a whole. We are talking about a security and defence review that involves the majority of departments in Whitehall feeding into an Lord Rosser (Lab): I thank the Minister for that overall view of threats to our domestic and international response. In the light of that response, is it this security. Government’s intention that there should be a real opportunity, including sufficient time, for an open discussion about our defence and security strategy Lord Soley (Lab): The world is a much more dangerous prior to the 2015 SDSR being finalised? The previous place than it was in 2009, when that that report was Government produced a Green Paper on defence and well received. Now there is a danger of conflict between security before the last election. From what the Minister European Union states and Russia, and there is a has just said, there appears to be no comparable profoundly dangerous conflict in the Middle East as document forthcoming from this Government in respect well. Surely there is a case for a debate, as my noble of the 2015 SDSR. Why is that, particularly when friend on the Front Bench suggested. We really cannot future defence and security strategy is one area where carry on as if there were not a problem emerging in the Governments normally seek to achieve some degree of world that makes the world a much more dangerous consensus? place than it was five or six years ago.

Lord Wallace of Saltaire: My Lords, I agree that Lord Wallace of Saltaire: My Lords, the 2010 SDSR debate and search for consensus are important, particularly was undertaken at speed, in the context of a very wide as we now face a remarkably diverse selection of gap between defence spending commitments and the security threats. The 2009 Green Paper was indeed Treasury’s ability to fund them. We may hope that about defence and not about security in the broader after the next election we shall have a little more sense. I remind noble Lords that, in the national time—perhaps a matter of six to nine months—before security strategy 2010, only two of the eight tier-one the conclusion of the SDSR. I remind noble Lords and tier-two threats identified were directly military; that in 1997-98 Labour’s defence review took well over the others included pandemics, climate change, a year. That will allow more time for the sort of debate cyberattacks, organised crime on a transnational basis, about our role in the world, the threats we face and terrorism and surges of migration. how much we devote to meeting these different threats than we had in 2010. Lord Palmer of Childs Hill (LD): My Lords, given that the French Government invited the former UK National Security Adviser—now the British ambassador Lord West of Spithead (Lab): My Lords, the Minister in Paris—to take part in their recent defence review, is deluding himself there, because the driver will be the could my noble friend the Minister say whether the CSR, which will have to gallop down the track very Government intend to invite an appropriate official fast. I was disappointed with the Minister’s response from France to participate in next year’s strategic to my noble friend on the Front Bench, in terms of the defence and security review? ability to go out and talk to various other people. Does he not believe that we need something like the National Security Forum, and an ability to talk to Lord Wallace of Saltaire: My Lords, the House of academe and experts on military affairs, so as to get an Commons Defence Committee raised that question in input from all parties, moving very fast? The CSR will its report last year. The Government’s response said hit us and we will have to make decisions about that, spending that will have a huge impact on the military. 7 Defence: SDSR[LORDS] Tehran: British Embassy 8

Lord Wallace of Saltaire: My Lords, the process of Lord Wallace of Saltaire: My Lords, I entirely agree consultation and debate with outside bodies is well that Iran is an important country and an important under way. The noble Lord makes his points about player in the broader politics of the Middle East. involving those parties, and I myself have been to see However, the British embassy in Tehran was trashed some of them. I was at the Royal United Services extensively in 2011, much of the equipment was destroyed Institute and at Chatham House discussing precisely and a number of local employees were mistreated. those broad issues behind the SDSR, so the process of There are a number of issues to get around before we consultation with outside experts is under way. I wish go back there. Meanwhile, chargés d’affaires from we had seen more, for example, about Labour’s approach both sides are spending extended periods visiting each to defence and security, which might have fed into a other’s country, so we are already engaged in a dialogue, more public debate before the election. as far as we can.

Lord Brooke of Sutton Mandeville (Con): My Lords, Baroness Manzoor (LD): My Lords, the UK Home as the SDSR of 1998 sought to reduce the Reserve Secretary is quite right to place an emphasis on visa Forces, and the coalition’s recent SDSR moved in the overstayers being returned to their respective countries opposite direction, if my noble friend is still serving and, of course, embassies play a vital role in that. Can in a coalition Government in the next Parliament, in my noble friend say what the UK Government are which direction does he think it is likely to go? doing to ensure that the Iranian embassy here can be fully opened so that it can help and support the Lord Wallace of Saltaire: My Lords, as the noble Iranian visa overstayers to return to Iran? Lord has remarked, we are in a much more acute security situation, not only in eastern Europe but in north Africa and across the Middle East, than we were Lord Wallace of Saltaire: My Lords, the problems five years ago. One of the questions that whichever of overstayers are not on the British side. It is much Government emerges after the next election will have more a matter of the Iranian Government’s willingness to consider is what spending priorities are, and how to accept people back, in particular if they are being far we need to raise the issue of security within that. I expelled from Britain and have overstayed their formal again stress that an SDSR is not just about military status here. There is a trade-off between opening a spending: there are a wide range of other security visa service in Tehran and the issue of overstayers in threats—some very long term—which that includes. Britain. That is one of the issues that, unfortunately, has not yet been resolved. Tehran: British Embassy Question Lord Kinnock (Lab): My Lords, in the improved relationship that would be signified by the reopening of the embassy in Tehran, will the Government give 2.52 pm emphasis to efforts to re-establish the British Council Asked by Lord Hannay of Chiswick operations in Iran, which were flourishing and of massive use both to the relationships between our To ask Her Majesty’s Government when they countries and to Iranians? That could signify a really intend that the chargé d’affaires to Iran should be important step forward in the building of constructive operating from a reopened British embassy in Tehran. relationships. Lord Wallace of Saltaire (LD): My Lords, the Government remain committed to reopening the British Lord Wallace of Saltaire: As the noble Lord probably embassy in Tehran once we have resolved the outstanding knows, discussions are already under way about the steps required to bring the embassy back to a functional possibility of reopening the British Council operation level and conclude the arrangements for re-establishing in Tehran. I declare an interest in that my wife is an a visa service in Tehran. We are in ongoing discussion officer of the British Academy and the British Institute with the Iranian Government to identify solutions for of Persian Studies also had to close. We have to both sides. recognise that there are some delicate issues at stake. There is the protection of British nationals when they Lord Hannay of Chiswick (CB): My Lords, I thank are there and there is the problem with the human the Minister for that somewhat opaque reply. Do the rights situation in Iran which we should not ignore. Government agree that the case for establishing, on a continuing basis, a voice and a presence in Tehran is Baroness Symons of Vernham Dean (Lab): My Lords, more compelling than it has ever been in the light of as the noble Lord has raised the question of human the ongoing negotiations on nuclear matters, whichever rights in Iran, will he undertake that the Government, way they come out? Either they will be successful, in if they do reopen the embassy, will start a discussion which case they will probably lead to a loosening of again on human rights in Iran and, very particularly, sanctions and considerable commercial opportunities the hanging of underage young people? for British businesses, with which they will need help, or Tehran will become the centre of one of the most dangerous world situations. We surely need to be Lord Wallace of Saltaire: My Lords, I am happy, on there, raising our voice and reporting about what is behalf of the Government, to give that complete going on. assurance. The treatment of journalists, the number of 9 Tehran: British Embassy[2 MARCH 2015] Astute-class Submarines 10 executions and the treatment of women are all very The Parliamentary Under-Secretary of State, Ministry substantial issues on which we will wish to maintain of Defence (Lord Astor of Hever) (Con): My Lords, the an active dialogue with the Iranian authorities. build time and commissioning for each Astute-class submarine continues to reduce as lessons are learnt. Baroness Afshar (CB): My Lords, are the Government For the first boat, HMS “Astute”, this took 170 months aware that the best way of maintaining that dialogue from the start of manufacture until operational handover and controlling some of the abuses in Iran is by having to the Royal Navy. The second boat, HMS “Ambush”, a presence and by having students from Iran coming achieved this in 149 months. here and students from here going there? It is only through interactive relations that it will be possible to Lord West of Spithead (Lab): My Lords, I thank the intervene from the inside in the terrible politics of Minister for that Answer. As he will know, the first Iran. Standing on the outside will not help. build of any class always takes longer. Perhaps he could write to me with the answer to this question: Lord Wallace of Saltaire: My Lords, the Government how long has HMS “Artful”, which is the third of the are very well aware of that and we are anxious to SSNs, taken from laying down to sea trials, compared reopen the embassy.However, we need some reassurances with HMS “Agamemnon”, which is the one that is on the return of equipment to re-equip the embassy, being built at the moment? All the information I have the safety of employees and a number of other issues is that these lengths of time are suddenly starting to before we can finish the negotiations. stretch out, which means that more money will be spent. Is the Minister aware that the US is now very Baroness Morgan of Ely (Lab): My Lords, Labour concerned that the stretching out of timescales may welcomes the appointment of the chargé d’affaires for impact on any future submarines, and worried about Iran as a step towards the re-establishment of full the impact on the common missile compartment that diplomatic relations with the country. Can the Minister the Americans are funding to a large extent, but that elaborate on what assurances the Iranian Government we will be using? have given to the UK Government for the protection of British diplomatic staff and their ability to carry Lord Astor of Hever: My Lords, I will write to the out work without hindrance if and when the embassy noble Lord on the point that he asks about. The is opened? Astute submarine programme required the UK’s nuclear submarine design build capability to be re-established Lord Wallace of Saltaire: My Lords, the noble following a 10-year gap since the delivery of the last Baroness will know that the Iranian Government are Vanguard-class submarine. The consequences are still not simply a monolith. We negotiate on nuclear matters being felt across the whole of the submarine enterprise. as well as on reopening the embassy with the Iranian Further improvements are still needed and we are Ministry of Foreign Affairs. There are other elements working very closely with our key suppliers to ensure in the current Iranian regime which are not as easy to that they make those improvements. negotiate with or to gain assurances from as the Ministry of Foreign Affairs. Baroness Wilcox (Con): My Lords, will the Astute class have female submariners this time? The Earl of Listowel (CB): Following the question of the noble Baroness, Lady Symons, will the Minister also talk to the Iranian Government about the treatment Lord Astor of Hever: My Lords, women officers of children? and ratings will be able to serve on Astute-class submarines from about next year, but this will not be the first class to do so. Seven women officers have completed the Lord Wallace of Saltaire: We will certainly talk submarine officer training course and are now serving about the treatment of children and also about the in the submarine service on board the Vanguard-class treatment of religious minorities. We are all aware of submarines, and in headquarters appointments. Women the treatment of the Bahai, in particular, in Iran who ratings will commence training this year. have suffered very grievously because the Iranian Government recognise only Christianity, Judaism and Zoroastrianism as religions alongside Islam. Other Lord Davies of Stamford (Lab): My noble friend sects are considered heretical and some Christians are and the Minister have already referred to the positive also persecuted within Iran. experience effects that one always gets in building any class of vessel, or in any engineering project, but does he recall that in addition to those effects that one can Astute-class Submarines expect, there was a particular problem at the beginning Question of the Astute-class programme because of the break in continuity and expertise from the previous submarine- 3pm building programmes of the Trafalgar class? Does he Asked by Lord West of Spithead therefore accept that it is vital that we do not run into those problems again, and those excess costs and To ask Her Majesty’s Government whether the wastes of money, and that this time there is absolutely time to build an Astute-class submarine has reduced no gap between the end of the building of the Astute as the shipyard has gained experience of building programme and the beginning of the successor class that type of vessel. programme? 11 Astute-class Submarines[LORDS] Guaranteed Minimum Pensions Increase 12

Lord Astor of Hever: My Lords, the noble Lord Lord Brooke of Sutton Mandeville (Con): My Lords, makes a very good point. Designing and building could my noble friend give a word of description of submarines is one of the largest programmes, and how the naming of warships occurs in the Royal most complex activities, that the MoD and UK industry Navy? Contingent on his answer, would HMS “Adaptable” undertake, and the noble Lord is well aware of that. be a possibility? Addressing the technical issues associated with nuclear submarine capability is exceptionally challenging, and is reflected in the time it takes to design and build a Lord Astor of Hever: My Lords, I wish I could submarine. answer that question. For the benefit of the House, I have mentioned the first three submarines: HMS “Astute”, HMS “Ambush” and HMS “Artful”. The fourth is Lord Palmer of Childs Hill (LD): My Lords, in view called “Audacious”, the fifth is “Anson” and the sixth of the vulnerable international situation, have the is “Agamemnon”. For the seventh, we are still waiting Government been in discussions with BAE Systems to decide on the name. about how to speed up the production of these necessary submarines with Tomahawk missiles if the international situation gets worse, or are we stuck on a timetable that has no connection with the international scene? Health Service Commissioner for England (Complaint Handling) Bill Lord Astor of Hever: My Lords, my noble friend First Reading makes a very good point. We continue to look for ways to optimise manufacturing schedules. For example, we are introducing new technology to support modular 3.06 pm build, an innovative means of testing and commissioning different systems. The Bill was brought from the Commons, read a first time and ordered to be printed. Lord Elton (Con): My Lords, the stretching out of delivery times affects the cash flow of subcontractors, and those difficulties can be hideously compounded Warm Home Discount (Miscellaneous by delays in the settlement of their bills. Is there Amendments) Regulations 2015 oversight of the rate of settlement of bills and, if so, is it satisfactory? Motion to Approve

Lord Astor of Hever: My Lords, I cannot answer 3.07 pm my noble friend’s question from the Dispatch Box, but Moved by Baroness Verma I will take it back to my department and undertake to write to him. That the draft regulations laid before the House on 12 January be approved. Lord Lee of Trafford (LD): My Lords, can my Relevant document: 19th Report from the Joint noble friend give an indication of the extent of Soviet Committee on Statutory Instruments. Considered in submarine activity off our shores and our ability to Grand Committee on 25 February. maintain surveillance? Motion agreed. Lord Astor of Hever: My Lords, I am aware of this but it is probably difficult for me to say too much about the subject from the Dispatch Box. Social Security Benefits Up-rating Order Lord West of Spithead: My Lords, I was not going 2015 to ask about that subject but, as we know, at one stage we had 16 attack submarines but now we have six, and that has an impact on antisubmarine warfare by Mesothelioma Lump Sum Payments submarines. My question really goes back the build (Conditions and Amounts) (Amendment) rate—the drumbeat—of these submarines. The drumbeat was extended unnaturally because we did not wish to Regulations 2015 have the submarines coming off the production line quickly. That means that each boat costs more than it should have done. Is that not correct, or does the Pneumoconiosis etc. (Workers’ Minister believe that we had to build them over that Compensation) (Payment of Claims) timescale? (Amendment) Regulations 2015 Lord Astor of Hever: My Lords, the noble Lord is right but we are working with industry to try to speed up the manufacture of these submarines, and I think Guaranteed Minimum Pensions Increase we are being very successful in that initiative. Order 2015 13 Automatic Enrolment Order 2015[2 MARCH 2015] Recall of MPs Bill 14

Automatic Enrolment (Earnings Trigger Relevant documents: 19th and 21st Report from and Qualifying Earnings Band) Order the Joint Committee on Statutory Instruments. Considered in Grand Committee on 26 February. 2015 Motions to Approve Motions agreed.

3.07 pm Industrial Training Levy (Construction Moved by Lord Bourne of Aberystwyth Industry Training Board) Order 2015 That the draft orders and regulations laid before the House on 14 and 19 January be approved. Industrial Training Levy (Engineering Construction Industry Training Board) Relevant documents: 19th and 20th Reports from the Joint Committee on Statutory Instruments. Order 2015 Considered in Grand Committee on 25 February. Motions to Approve 3.09 pm Motions agreed. Moved by Lord Ashton of Hyde That the draft orders laid before the House on Employment Allowance (Care and Support 21 January be approved. Workers) Regulations 2015 Relevant document: 21st Report from the Joint Committee on Statutory Instruments. Considered in Social Security (Contributions) (Re-rating Grand Committee on 26 February. and National Insurance Funds Payments) Motions agreed. Order 2015 Recall of MPs Bill Social Security (Contributions) (Limits Third Reading and Thresholds) (Amendment) Regulations 3.10 pm 2015 Clause 1: How an MP becomes subject to a recall petition process Childcare Payments (Eligibility) Regulations 2015 Amendment 1 Motions to Approve Moved by Lord Campbell-Savours 3.07 pm 1: Clause 1, page 2, line 4, leave out “10” and insert “15” Moved by Lord Newby Lord Campbell-Savours (Lab): My Lords, it would be an abuse of procedural arrangements at Third That the draft orders and regulations laid before Reading for me to go into great detail on issues that we the House on 13 and 19 January be approved. have raised during previous stages of the Bill. At Relevant documents: 20th and 21st Reports from Second Reading, I set out the principles driving the the Joint Committee on Statutory Instruments. amendments that I tabled; in Committee, my noble Considered in Grand Committee on 25 February. friend Lady Taylor of Bolton set out her views and further embroidered my own; and on Report, we dealt Motions agreed. in great detail with the 20 days and 10 days amendment. It suffices to put to the House the bare essentials of the argument. Shared Parental Leave and Leave The Government’s original Bill provided for a Curtailment (Amendment) Regulations suspension of at least 20 days before the second trigger 2015 provoked a petition for a possible by-election. The Labour Opposition then moved an amendment—which I have repeatedly opposed—reducing the period of Companies Act 2006 (Amendment of suspension from 20 days to 10. Supporters of my Part 17) Regulations 2015 amendment have argued that the Labour amendment in the Commons would lead to a cluster of penalties Motions to Approve of under 10 days, even where penalties of more than 10 days and fewer than 20 days are more appropriate. 3.08 pm We have argued that there will be pressure on members Moved by Lord Popat of the committee from all sides of the House of Commons, and perhaps from people on the payroll, to That the draft regulations laid before the House ensure that decisions are taken in that committee on 12 and 16 January be approved. to avoid petitions and by-elections. The committee 15 Recall of MPs Bill[LORDS] Recall of MPs Bill 16

[LORD CAMPBELL-SAVOURS] I have no hesitation in supporting the noble Lord’s will, in our view, be transformed from a quasi-judicial amendment, although I do not share his views on the one into a political one, where even a lay membership wisdom of recall. Members of Parliament should be will inevitably be compromised. I set out my reasons able to face their electors. However, in the case of for thinking that on Report. Malcolm Rifkind, we are on the eve of a general The 10-day amendment, when considered in the election, and if the Government really believed that it Commons, was supported by only two members of was up to the voters of Kensington to decide, he the Standards and Privileges Committee and was opposed would have been able to go forward as a candidate and by another four—if I recall correctly—while a further put his case to the voters. In practical terms, that is not three abstained. It was opposed by all those on the what has happened, and I believe that that would be Conservative Benches in the House of Commons. My the case in every circumstance where this legislation amendments, at previous stages, would have restored may be required, which is why I do not support the the 20-day provision that was in the original government legislation but do support the noble Lord’s amendment. Bill. I fear that my case has not been helped by the Rifkind-Straw affair over recent weeks. Today’s amendment is a compromise—better than Lord Hughes of Woodside (Lab): My Lords, I think 10 but not as good as 20. However, there is ever we are all agreed that this is not the time to discuss increasing anger over the fact that this amendment recent matters in the press. It is certainly not the time was carried in the House of Commons by Members of for your Lordships’ House to be apparently trying to Parliament themselves, the great majority of whom make things easier for recalcitrant or erring MPs. I did not know what they were doing. The few who have stress, as we all have, that none of us has any time for defended the 10-day provision have deployed a new MPs who transgress the rules or MPs’ discipline in any argument, which I will address very briefly. They say form. that my amendments would weaken the Bill by reducing When we were arguing the case for 15 days rather the number of petitions and by-elections. The idea is than 10, it was not a matter of protecting MPs; it was rubbish. Indeed, my amendments strengthen the Bill, a matter of justice. Things have to be done properly, and I will explain how. There will be cases that require which is what this House is about. In passing, I will say more than a 10-day suspension but do not require a that I welcome the amendments that we will be discussing possible by-election. My amendment enables the higher later when they are moved by the noble Lord, Lord penalties of longer periods of suspension to be imposed Wallace, if only because they destroy the defence he on Members of the other place who sin. offered that we cannot change what has been done in Finally, I need to repeat that I have supported recall the House of Commons. The refrain we have heard for nearly 30 years, following my 15 years’ experience throughout the amendments is that, whatever the case, as a member of the Standards and Privileges Committee the other place has decided and we must not seek to in the Commons and its predecessor, the Select Committee overturn it. on Members’ Interests. I beg to move. I know a lost cause when I see one and I appreciate that the chances are that the Minister will not accept this amendment. However, may I suggest to him a 3.15 pm novel procedure? Wouldhe perhaps accept the amendment Lord Forsyth of Drumlean (Con): My Lords, very on the understanding that the reason for doing so briefly, I support the noble Lord in his amendment, would simply be to allow the other place to look at the although I am not sure that I entirely support him in matter again? This is the last opportunity for that to his argument. He suggests that the very unfortunate be done; there is no other way for this to be discussed circumstances of Sir Malcolm Rifkind and Jack Straw further unless the Minister accepts this amendment. If have weakened his argument but, on the contrary, they he accepts my suggestion of accepting the amendment have strengthened it, at least in so far as my own on the understanding that it is purely and simply to opposition to the Bill is concerned. We have argued allow further discussion in the other place, I give him throughout these proceedings against the basis on my personal guarantee—and, I believe, the guarantee which the Government have introduced the Bill. Where of everyone on this side of the House—that when it people have done something wrong—or, in the case of comes back there will be no opposition whatever if the these two Members, appear to have done something Government decide to press on with 10 days. wrong; we have not yet heard the facts or the circumstances of each case—the immediate reaction of the parties will be to withdraw the Whip, which is what happened Baroness Taylor of Bolton (Lab): My Lords, I would to both Mr Straw and Mr Rifkind, making it impossible liketoaddjustafewwordsbecausethisisanextremely for them to face their electors as Conservative or important issue. I am very grateful that my noble Labour candidates. I do not for the life of me see how friend has raised it again. The remarks made by the this Bill will operate in circumstances where the leaderships noble Lord, Lord Forsyth, show how complex the of political parties rush to judgment before they have issue is, and yet it is treated as very simple. His the facts and remove the Whip. comments about the withdrawal of the Whip and the The noble Lord’s amendment is sensible in that it inability of someone subsequently to stand in a by-election extends the range of penalties so that the penalty can have not been discussed and fully thought through. I fit the misdemeanour. By making the range of penalties think that that shows how hastily this legislation has so slight, it puts the committee in a difficult political been pushed through despite the fact that people have position, which it most certainly should not be in. been talking about it for many years. 17 Recall of MPs Bill[2 MARCH 2015] Recall of MPs Bill 18

However, I support the suggestion made by my reason that I have followed the progress of the Bill noble friend Lord Hughes. In all the times that we throughout its stages in both Houses and I can confirm have discussed this matter in the House, the Minister to your Lordships that a whole number of implications has never said why the Government have changed which have arisen in this House were not addressed their mind and why they are sticking now to 10 days there—for one very simple reason: all the votes were when they thought that 20 days was appropriate. Like on a free vote. I am very enthusiastic about free voting my noble friend Lord Campbell-Savours, I have served in both Houses, but of course when there is a free vote on the Privileges Committee in another place. I can there is not the same guidance from the parties about vouch, as he does, for the fact that the discussions on the full implications of the measures in front of the that committee—in my day it was under the chairmanship House—whether it is this House or that House. of the late Lord Newton—were never political. I can confirm absolutely the point made by the Discussions never led to a schism in the committee noble Lords, Lord Hughes of Woodside and Lord along political lines. I think that there is a very real Howarth, that this issue of what could easily happen—in danger that that is what will happen if we do not seek the terms that have been so forensically analysed by the some changes even at this late stage. noble Lord, Lord Campbell-Savours—in the Standards Committee, simply were not addressed in the debate in Lord Howarth of Newport (Lab): My Lords, I thank the other place. I suggest to my noble friend Lord my noble friend Lord Campbell-Savours for persisting Forsyth that if the recall mechanism was in place, for with this theme, and for bringing this issue back once example, I do not believe that party leaders would feel again at Third Reading however forlorn the prospect that it was appropriate to appear to prejudge the of acceptance of his compromise amendment may outcome of an inquiry by removing the party Whip. I seem to be—and it is. As other noble Lords have said, think that they would be inclined to leave it to the the issue that it deals with is one of very great importance commissioner, the committee and then to the recall for the House of Commons. I believe, in any case, that process—and eventually, of course, to the electorate, by introducing these provisions for the recall process, as is the intention behind the Bill. the House of Commons has demonstrated a catastrophic On those grounds, I hope that my noble friends on lack of self-confidence. Specifically, the means of policing the Front Bench will be prepared to think very carefully its own affairs that the House of Commons has about how we must give the House of Commons traditionally used is the operation of the Standards another opportunity to think through the implications Committee. Through the provisions in the Bill, and of this part of the Bill. particularly through the amendment brought in by the Labour Party to reduce the period of suspension from Lord Cormack (Con): My Lords, I have felt all 20 days to 10 days, which would trigger the recall along that this is a very ill conceived, ill thought-out process, the effect will be greatly to reduce the practical Bill, and one that does no credit to Parliament in capacity of the Standards Committee to perform its general or to the House of Commons in particular. I proper function. have briefly made similar points to those made by the If the House of Commons is to rehabilitate itself in noble Lord, Lord Howarth of Newport, in previous the public esteem, it must be seen to be able to take debates. responsibility, and to provide effective means to take I feel that this is such a bad Bill that it is, frankly, responsibility, for matters of internal discipline and unimprovable and unamendable, but I salute the noble for disciplining Members of Parliament who transgress Lord, Lord Campbell-Savours. He is sometimes a or commit serious wrongdoing. In so reducing the controversial figure but nobody can deny that he is a realistic scope for disciplinary sanctions that the Standards parliamentarian of real status who is deeply concerned Committee can recommend to the full House, the about the reputation of Parliament. He is trying very House of Commons has portrayed a lack of self- hard with this amendment and, in so far as anything confidence and done itself a deep disservice. could improve the Bill, it is probably this, if it were So I add to the plea from my noble friend Lord passed, because it would give that chance for another Hughes of Woodside that the Front Bench will accept place to think again. the amendment simply to allow Members of the House What concerns me more than anything else—I alluded of Commons to think again about this. Very few of to this a few seconds ago—is the status and standing them participated. Very few of them voted in the of Parliament. This great and free country of ours debates. Many of them did not realise the import of depends above all on two things: the rule of law and what was approved by the House. They ought to have the sovereignty of Parliament. In eroding the sovereignty that opportunity to think again, in their interests and of Parliament, we do no one any service. This Bill is in in the interests of parliamentary democracy. I think fact the erosion of the sovereignty of Parliament Bill. that we in your Lordships’ House are fully entitled to This House is clearly not going to stand in the way of offer our advice to them on this matter. As another the elected House, but it does behove us constantly to House of Parliament, and as citizens, we have an remind the Members of that elected House that by interest in the integrity, good name and good functioning their lack of confidence in themselves they are doing of the House of Commons. no one any service.

Lord Tyler (LD): My Lords, I am very sympathetic Baroness Hayter of Kentish Town (Lab): My Lords, indeed to Amendments 1 and 2 in the name of the your Lordships will know that we do not support the noble Lord, Lord Campbell-Savours, for the very specific amendments that stand on the Marshalled List today, 19 Recall of MPs Bill[LORDS] Recall of MPs Bill 20

[BARONESS HAYTER OF KENTISH TOWN] wrong answer. It is a judgment on what is the appropriate despite the arguments that have been made by people connection between a decision in the other place and who, as I think they all said, fundamentally do not like its Standards Committee and the point at which that the Bill. should trigger a recall petition. That is a difficult judgment and one that I say needs to be made by the Noble Lords: Oh! House of Commons, which is where this decision was taken. Baroness Hayter of Kentish Town: Some of them have admitted that they do not like the Bill—we have Lord Forsyth of Drumlean: Is that not the whole just heard that it is fundamentally wrong. There is point—that the House of Commons needs to be able another view, of course: that the status of Parliament to take a decision? A story in the press over the depends not simply on the good behaviour of its weekend suggested that people should be expelled Members but on the ability of constituents, where from the House of Commons for three days for boorish there has been serious misdemeanour, to hold their behaviour. Is it three days or 10 days? What about not Members to account. That is the thrust and drive of declaring an interest? Should that be 10 days or should the Bill, and it is for that reason that my party has it be between three and 10 days? By having a broader supported the idea that, where someone has been spectrum, it is possible to provide a sanction that will found—differently from the case in front of us now— be seen to be appropriate for the offence. Does she see guilty and sentenced to imprisonment, or it is found that it is not about whether it is 10 days or 15 days but by their peers in the other place that they should be the spectrum that is open to the House to show its suspended for a time from the House, they should not displeasure when Members behave badly? automatically be able to continue in the job of representing their constituents. Baroness Hayter of Kentish Town: I do not disagree that it is for the House of Commons to do that, but 3.30 pm they have taken a decision. My noble friends say that Lord Hughes of Woodside: I understand my noble they did not know what they were doing—I would not friend’s position as leading for the Opposition, but I make that comment—but they took a decision by 203 know of nowhere in any election manifesto or decision votes to 124 that this was the figure that it should be. where we stand or fall by a matter of 10 days, 15 days or 20 days. The principle is not being attacked in any Baroness Taylor of Bolton: I understand the difficulty sense by this amendment. I beg of her, as I have asked that my noble friend is facing, because she has been the Minister, at least to think about the possibility— given a position and she has to try valiantly to defend without committing the party at the other end to it, but I do not think that anyone at any stage has change its mind—of looking at the matter afresh, just explained why 10 days is appropriate. If, as my noble to give it a chance. friend on the Front Bench is saying, it is for the House of Commons to make a decision, what is wrong with Baroness Hayter of Kentish Town: I am coming to giving them the opportunity to reflect on this issue the matter of days in a moment. It is right to reiterate again? what many people outside Parliament feel about when someone is judged to have done something that even Baroness Hayter of Kentish Town: My judgment is their peers in the other place consider inappropriate that they would come to the same view. behaviour. In most other walks of life, one would not automatically be able to continue in one’s job. Therefore, Lord Howarth of Newport: My Lords— there should be a possibility for recall at that point. The second point is whether the particular number Baroness Hayter of Kentish Town: Could I finish of days, which is what we are discussing in this what I was saying? Whatever they finally decide, the amendment, is the right one. A different proposal was point is that they have taken that decision. The argument made by the coalition Government at the beginning. It has not been made to my satisfaction that their view is was debated in the other place, although it may not so wrong and our view so right that it is only us who have been debated at great length, and it has certainly are right and not them. been debated here, in Committee and on Report. A judgment has always to be made. Lord Howarth of Newport: My noble friend is very kind to give way. She says that the House of Commons Lord Campbell-Savours: I think that I heard my has taken that decision and she thinks that it would noble friend say that it was debated in the other place. take the same decision again. In the figures that she I defy her to find anywhere in the Hansard report any just gave, less than half the Members of the House of more than a couple of sentences on the issue of 10 and Commons voted. Is it not the role of this House to 20 days. invite the other place to think again in appropriate circumstances? Is that not exactly what we should be Baroness Hayter of Kentish Town: My point is that doing here? it was debated there and the case was made for why it should change. The point I am trying to make is that Baroness Hayter of Kentish Town: As many noble the proposal for 20 days, 10 days, 15 days, five days or Lords will know, I have helped defeat the Government 30 days is a matter of judgment. There is no right or and sent stuff back where I have believed that the 21 Recall of MPs Bill[2 MARCH 2015] Recall of MPs Bill 22 other House was wrong and I wanted it to rethink. We We will deal later with a very helpful amendment have done that on a number of Bills. We have had from my noble friend about the Standards Committee, victories. We have sent things back and occasionally which I hope will address some of the challenges that there has been movement. It is always a judgment call. will be before members of the Standards Committee. On this issue, however, my view is that we have the On this amendment, the decision has been taken by right figure. As I have said before in this House, it is the other place and I think it is right. I hope that my a very delicate balance. What we do not want is such a noble friend will withdraw the amendment. low number— Lord Wallace of Saltaire (LD): My Lords, I pay Lord Campbell-Savours: Before my noble friend sits tribute to the commitment and care with which the down— noble Lord, Lord Campbell-Savours, has pursued this issue. The Government have of course therefore actively Baroness Hayter of Kentish Town: She is a long way considered it over some period of time. from sitting down by the sound of things. I have to say that I do not recognise what the noble Lord described as the widespread anger in the Commons over all this. I have just been checking with my noble Lord Campbell-Savours: She says she has the right friend Lord Gardiner and thinking that through. During figure. Let me put to her a scenario. Imagine a case of the period when the Bill has been going through its non-declaration of interests that is worthy of a penalty Lords stages, I have met members of my own party in of more than 10 days but not 20 days. I can remember the Commons and my noble friend Lord Gardiner has some pretty difficult cases of non-declaration of interests. met members of his own party there. We have met Are we saying that in such a case we should invoke a people from the Labour Party, our opposite numbers procedure which could lead to a by-election that costs and the Bill managers within the Commons on a hundreds of thousands of pounds both to the political number of occasions. It is remarkable to me that what party and the local authorities, with all the inconvenience the noble Lord, Lord Campbell-Savours, has heard of bringing in vast numbers of party workers to has not managed to reach our ears. It has been relatively defend the party interest, because of a case of non- public knowledge that we were indeed managing the declaration where the Member’s defence may be that Bill through this House. they simply made a mistake but where the committee The suggestion that the House of Commons voted realises that it has to invoke a punishment of at least on a substantial change to the Bill without understanding 10 days? what it was doing seems to be stretching matters a little. It may be that this was a catastrophic mistake of Baroness Hayter of Kentish Town: The answer is the Labour Party in the Commons, as the noble Lord, yes. If the MP’s own colleagues—I do not want to use Lord Howarth, said. I recognise the strength of feeling the word “peers”, as it is a bit confusing—believe that among a number of Labour Peers within this House the issue is serious enough for a suspension of at least that it was a catastrophic mistake by their own party. 10 days, they would do so, although I find it hard to All I can say is that this has not reached the Government’s believe that they would so for a mistake. That is what ears. We have not had protests, or suggestions that we this Bill is all about. The trigger may be 10 days or my need to save the Commons from itself in the way noble friend may be right and perhaps it should be proposed. 12 days or nine days—I do not know exactly because it The noble Lord, Lord Cormack, talked about eroding is a judgment call—but this Bill is about saying that, the sovereignty of Parliament and how we have again where their fellow Members of Parliament consider to protect that dimension. However, all those of us that the issue is serious enough, that is the trigger for a who have been out campaigning in recent weeks know recall. that what those of us who are attached to the traditions It is also important that the figure is not so low that of the British constitution think of as the sovereignty we undermine in any way either the sort of normal of Parliament is thought by too many of those on protest that could happen in the House of Commons whose doors we knock as the Westminster bubble. We or the mistake—although I doubt that it would apply have great difficulty in persuading them that it is for a mistake—or misdemeanour that so offends other worth voting at all. They think that all politicians are MPs that they take the MP to the Standards Committee. in here for themselves. This is part of why the recall The essence of the Bill is that a recall will be triggered Bill has gone through a series of consultations over when the suspension is for a certain length of time. the last three years and is now going, not hastily, There is another, separate point. Whether the threshold through both Houses. is five, 10, 15 or indeed 40 days, there will always be the We have considered at length this question of the difficulty—as happens when magistrates hear cases— proper period of suspension which should trigger where the knowledge that the decision can trigger a recall in this House and in other discussions outside by-election will add an extra dimension to the judgments the House. We do not see a strong case for reversing that are taken. That applies both to magistrates in a the decision which the House of Commons took on an court case, if it is about whether there should be a amendment from the Labour Opposition and, having sentence of imprisonment rather than a fine, and to considered it, we are therefore not willing to accept the those dealing with these situations. That is tough. noble Lord’s amendment. Decision-making is tough. I recognise that, but I do The decision of the other place was clearly based not think that the number of days minimises that on the precedent of past suspensions for misconduct effect. recommended by the Standards Committee. The 23 Recall of MPs Bill[LORDS] Recall of MPs Bill 24

[LORD WALLACE OF SALTAIRE] why that has somehow changed the agenda and made Standards Committee has in the past recommended it much more difficult for us to get the amendment 10-day suspensions for receiving payment to ask questions through today. in the House, misuse of access to the House and My noble friend Lady Taylor, who spent some breaching the Code of Conduct—cases which should years on the Privileges Committee with me, drew on undoubtedly be considered as serious wrongdoing. We what is at the heart of our amendment. The committee are not considering cases of innocence or unproven in the Commons will now be politicised; some in the allegation. Commons will think, “Well, if we can change it and get more of a lay membership, somehow the climate Lord Forsyth of Drumlean: I am listening carefully within the committee will change”, but I am afraid to my noble friend’s argument, but surely the Government that is not the case. The fact that by-elections can now considered these matters very carefully when they be precipitated simply by 10 days’ suspension will came forward in the first place with their proposal for infect that committee, whether it has lay membership 20 days. Can he explain to the House why the Government or otherwise. They will be conscious of the debate thought that 20 days was appropriate, with all the going on in Parliament more widely on what happens knowledge about previous penalties imposed by the as a result and what happens during the course of a Standards Committee? by-election with all the expense involved. I have listened to my noble friend. I would love to divide the House today, but I will not do so. There will Lord Wallace of Saltaire: The noble Lord knows be an incident, a decision and a public row, and those very well that the choice of the exact number of days is who argued in defence of this 10-day nonsense will a matter for judgment. We recognise that the House of come to regret what they have done—and that applies Commons took a judgment on that and we are accepting to all Dispatch Boxes in both Houses. On that basis, that judgment. I beg leave to withdraw my amendment. The question of the role and composition of the Standards Committee is also tied up in this. Looking at the next group of amendments, we will continue Amendment 1 withdrawn. discussing the important question of the Standards Committee, on which I recognise that a number of Amendment 2 not moved. members of this House have served. I thank the noble Lord, Lord Campbell-Savours, for his considerable efforts, which I respect, but I nevertheless ask him to Amendment 3 withdraw his amendment. Moved by Lord Campbell-Savours 3.45 pm 3: Clause 1, page 2, line 13, after “Commons” insert “(which may include members who are not Members of Parliament, Lord Campbell-Savours: My Lords, how can I answer whether or not those members are entitled to vote in the committee’s that? I am at a loss. The noble Lord says that he has proceedings)” consulted with his colleagues on the Liberal Benches in the Commons, but I know for a fact that a number of Liberal MPs have expressed concern on whether Lord Campbell-Savours: My Lords, this amendment even they were aware of what they were voting for. was born from an undertaking given by the noble I say to my noble friend Lady Hayter on the Front Lord, Lord Wallace of Saltaire, in winding up in the Bench that many people behind her who support my last debate on Report, at col. 1144 of the Official amendments do not like the Bill. I have always liked Report of 10 February 2015, when he said that he the idea of a Bill that deals with recall, and many of us would consider my Amendment 6, which dealt with who support the position that I have taken on the Bill the issue of lay membership of the Standards Committee. support recall. We are arguing about a very small but My amendment draws on a report of the Procedure highly significant detail in the Bill which we believe Committee on lay membership of the Committee on will have effects which the House of Commons has Standards and Privileges from November 2011. The not as yet taken into account. As I said in an intervention, report states that the Procedure Committee in the there was almost no debate apart from a couple of Commons concluded that, sentences. “if lay members were to be given voting rights, legislation should set the matter beyond a doubt. The Committee believed that I warmly thank my noble friends Lord Howarth of appointing lay members in the absence of such legislation would Newport and Lord Hughes of Woodside for their carry a ‘strong element of risk’, in that it could ‘lead to conflict argument that we should just give the other House between the House and the courts and might have a chilling effect another opportunity. I am absolutely convinced that on how the Committee conducts its work even before such a everyone who supports 10 days will back down in the challenge emerged’”. event that this matter is put before the Commons. That comment in the report came in response to a Therefore, although the noble Lord, Lord Forsyth, Commons resolution of 2 December 2010 inviting the says that he felt that the Rifkind-Straw affair does not Procedure Committee to bring forward proposals from weaken the position, it does so in the sense that it has the Committee on Standards in Public Life for lay put the fear of God into many Members of Parliament membership to be appointed to the Standards and that they cannot meddle with the decision. They would Privileges Committee, which, indeed, is precisely what have meddled with it, but they do not want to. That is has happened. 25 Recall of MPs Bill[2 MARCH 2015] Recall of MPs Bill 26

However, the voting aspect is not a new issue for the Ministers have been open throughout to suggestions House of Commons to consider. It was first considered for improvements and I am extremely grateful, as are in 1876, when Sir Thomas Erskine May, then Clerk of my colleagues, to them and officials for being so ready the House of Commons, argued that it was not an to discuss changes that might be made. The Minister illegal act to appoint lay members with full voting in charge of the Bill, Greg Clark, made a promise at rights to committees on Private Bills. However, since the end of the Commons stages that, then, I understand that both the Clerk of the Commons “the Government were clear on Second Reading that we are open —I think in the last Parliament, but perhaps even to ways to improve the Bill and we stand by that commitment”.— earlier in this Parliament—and the Joint Committee [Official Report, Commons, 24/11/14; col. 681.] on Parliamentary Privilege opposed lay members being He has been true to his promise, and there has indeed given the right to vote. I have therefore tabled this been constructive engagement in your Lordships’ House. amendment to give the Government the opportunity However, I am sorry to report that attempts to find to clarify their position on that matter. another route for triggering recall that would have I consider that this is an important issue. That is obviated MPs and the Standards Committee altogether why I am moving this amendment. On 10 February, at have failed. We tried but it has not been successful. col. 1131 of the Official Report, I argued for a very In the interim, the Standards Committee has produced different approach to the handling of complaints by an extremely thoughtful, positive and authoritative the Commons Standards Committee based on a majority report on its own future and role. As Members who lay membership—which I support—with a right to were here on Report will recall, the report was published recommend, but not vote, and with its recommendations that very morning. It is therefore not surprising that being either accepted or rejected by a committee minority few of us were given the opportunity to read it in of elected Members of Parliament—as elected Members detail. For that reason, I hope that I will be forgiven for of Parliament, they would enjoy full parliamentary reading a critical paragraph of the report, paragraph 34 privilege—as against the majority lay membership. If on page 40, in full: the Minister has difficulty addressing all the points I “A number of criticisms are levelled at the House of Commons am making on this matter, I will perfectly understand disciplinary system both by outside observers and parliamentary if he wishes to write to me after the debate. However, insiders: MPs sit in judgement on themselves; the Commissioner it is very important that at some stage in the near is not truly independent; there is incomplete separation of powers future—certainly in this Parliament—we establish the with the Commissioner acting as investigator, prosecutor and to Government’s attitude to lay members of the Standards some extent adjudicator; the system is disproportionate; the rules Committee being given that right to vote. I beg to are not clear; MPs cannot get advice; the sanctions are insufficient. It is these criticisms which this Report considers and, where move. appropriate, makes recommendation for addressing”. Every Member of your Lordships’ House who has Lord Tyler: My Lords, I speak to Amendment 5, been following the progress of the Bill must recognise which is linked with the amendment just moved by the that that paragraph and the whole report are critical noble Lord, Lord Campbell-Savours. I am delighted to the way in which the recall Bill is supposed to to follow his forensic and forceful analysis of the very proceed; they are vital. That is why we have tabled new serious issues arising from this part of the Bill and amendments to make sure that there is a direct linkage have considerable sympathy with his views. between action that is taken to fulfil the recommendations of the Standards Committee and the implementation Ever since Second Reading, the noble Lord, and of this part of the Bill. indeed noble Lords on all sides of the House, have rightly raised concerns about the effects of the Bill on The Standards Committee also says in terms that it the fragile, non-partisan nature of the Standards needs a more robust, more sizeable independent element. Committee in the Commons. I think that many Members This is why it links so well with what the noble Lord, of your Lordships’ House remain concerned about Lord Campbell-Savours, has just been saying about that. Indeed, it was a theme of the debate we have just the lay members. The committee’s recommendation at had on previous amendments. I note that a number of paragraph 90 is: prominent former Members of the Commons expressed “After considering various Committee sizes we recommend a those concerns, particularly those who, like me, have marginal increase in Committee size from thirteen to fourteen, had to deal with the Standards Committee in a variety with seven lay and seven elected members”, of official roles. thereby building the independent role of those lay In the same vein, and right from the start of this members in all matters that would be relevant to the Bill’s passage through Parliament, beginning in the recall Bill. The report, and that specific recommendation, other place, there have been cross-party endeavours to is the inspiration for Amendment 5, for which I am ensure that the process for triggering a recall petition grateful to have the support of my noble friends Lord is independent of MPs and is seen to be independent Norton and Lord Lexden and the noble Lord, Lord Alton. of MPs. My noble friend Lord Norton raised this It is in that specific section of the Standards Committee issue in the early stages of the Bill’s consideration here, report that we should be putting our faith, trust and and it was the theme of the important report of the confidence if we are to make sure that the Bill has any Constitution Committee of your Lordships’ House. In credibility in the outside world, let alone fulfils the full my view, and that of my colleagues across the House, obligations of the committee and deals with the problems it remains the one crucial weakness at the very heart of to which so many Members of your Lordships’ House the Bill, and it has been the subject of widespread have been referring. Our amendment would ensure concern in both Houses. that the committee’s key recommendation was 27 Recall of MPs Bill[LORDS] Recall of MPs Bill 28

[LORD TYLER] Standards, not only that there should be lay members implemented before the Committee on Standards was of the committee but that there should be equal numbers asked to get involved in this potentially invidious way of lay members and Members of Parliament and that in the recall process. Alongside the other committee the lay members should have votes. It seems to me that recommendations, such as that, those arrangements would not be consistent with the “the body of any Report makes clear whether or not the lay House of Commons taking the responsibilities that I members agreed with the Report”, believe that it should. this change would at least be a start in showing that I also suggest that what we are being invited to the recall process is reasonably independent from MPs, approve is inconsistent, first with Magna Carta, which and is seen to be so. established the principle of trial by peers, and secondly I hope that my noble friends on the Front Bench with the Bill of Rights, which asserts parliamentary will be able to respond positively to this amendment. privilege and insists that the proceedings of Parliament Although the composition of the committee is of should not be questioned or impeached by those who course a matter for the whole House of Commons, I are not Members of Parliament. It may indeed be the understand that the Leader of the House and his case that Parliament has power to set aside Magna colleagues are taking this matter of the relationship Carta—even in its 800th anniversary year—and that it between these proposals and the Recall of MPs Bill has power to discard elements of the Bill of Rights. I extremely seriously. Surely we can now have a firm would suggest only that parliamentarians should draw assurance from the Government that they would not a very deep breath and think very carefully indeed want to see this recall mechanism operated by a committee before they do so. with an insufficient number of independent lay members The noble Lord, Lord Tyler, is always Jacobinical—he sitting on it. has a splendid fury in his reforming drive—but the noble Lord, Lord Lexden, has a profound knowledge 4pm of parliamentary history. The noble Lord, Lord Norton Lord Lexden (Con): My Lords, I rise once more in of Louth, who is not able to be in his place today, is support of my noble friend Lord Tyler, having also deeply knowledgeable about parliamentary privilege. done so on the earlier occasions when he brought The noble Lord, Lord Alton, another of the sponsors forward amendments designed to improve this highly of Amendment 5, is a very experienced former Member imperfect Bill. As my noble friend has made clear, the of the House of Commons. I am startled that some of objective has been the same throughout: to try to find those noble Lords should associate themselves with a way of removing or at least lessening the involvement this kind of drastic change, which, in the present of MPs themselves in the processes by which a recall circumstances, when all of us are intensely concerned petition can be triggered. That central issue was underlined to see how the good reputation of Parliament can be in the report on the Bill that was provided by your better upheld, would surely be in effect an abdication Lordships’ Constitution Committee, and that report of the central responsibility that Parliament has for has been much in our minds during these proceedings. itself and for its own good conduct. I am deeply No one could expect to be seen to be acting utterly opposed to these amendments. impartially in determining a period of suspension when a heavier penalty will trigger recall and a lesser Lord Cormack: My Lords, not for the first time this one will not. afternoon I find myself in complete agreement with As my noble friend has made clear, he and those of the noble Lord, Lord Howarth of Newport. This us who supported the amendment have now taken amendment, well intended as I am sure it is—I have into account a major development that occurred during the highest regard for those who have put their names the passage of the Bill through this House. As my to it—is damaging to Parliament. It is inimical to the noble friend reminded us, news of a very significant spirit of Magna Carta and the Bill of Rights. Frankly, report on the composition of the House of Commons like the noble Lord, I am astonished that people Committee on Standards reached us on the very day whom I regard so highly as doughty defenders of that we consider the Bill on Report. It has now become Parliament should in fact be complicit in an amendment clear that the committee members believe that its that, if passed, could have the effect only of further composition should be changed to give equal emasculating Parliament. I also agree entirely with the representation to MPs and lay members. Now that the noble Lord, Lord Howarth, when he expresses concern committee has gone that far, it would surely be sensible that the committee in another place should have to wait until the committee has assumed its new form recommended this lay participation. That is inimical and acquired the greater independent representation to the whole doctrine of parliamentary privilege, which that is now proposed before it is given its recall is of incalculable importance and, when used correctly, responsibilities. That is what this amendment seeks to is a bulwark of our liberties in this country. do, and I am very glad to support it. There was no prouder day for me than when I was elected to another place. A number of your Lordships Lord Howarth of Newport: My Lords, I argued in who were there are present this afternoon. It is interesting the previous debate that surely the way for the House that those who are expressing particularly acute concerns of Commons to re-establish its good reputation is for about the Bill are mostly those who have served in it to take responsibility for its own self-government another place. When I entered that place, I felt, in the and its own self-discipline. I am therefore opposed to words of, I think, Admiral Rodney in the 18th century, the propositions put forward in these amendments, that there was no higher honour that any Englishman— and indeed by the House of Commons Committee on of course in those days there were no women in 29 Recall of MPs Bill[2 MARCH 2015] Recall of MPs Bill 30

Parliament—could aspire to than being a member of It is encouraging that today there has been backing a sovereign parliament in a sovereign nation. That we from all sides of the House on the need to move should be whittling away at the very foundations of forward in this respect. The Government may say that our parliamentary and civil liberties makes me profoundly the Bill is not the appropriate place to make such a sad. I could not support this amendment; I cannot change—although I note the astute amendment tabled support the Bill in any way, shape or form. by the noble Lord, Lord Tyler, and others—but whether that is the case or not, we are sending an important Lord Campbell-Savours: My Lords, I am sorry to message that all the political parties are determined to part company from my noble friend Lord Howarth of see the Standards Committee work effectively, fairly Newport, but I support Amendment 5. Perhaps it is a and transparently, and in a way that gives voters bit of a selfish reason as to why, which is that it helps confidence in its work. facilitate the alternative approach that I put forward on Report. The amendment says that the committee Lord Wallace of Saltaire: My Lords, I thank the should have, noble Lord, Lord Campbell-Savours, for his references “a number of members who are not Members of Parliament at back to the historical developments. My brief says least equal to the number of members of that Committee who are that there is a record of lay members serving on a Members of Parliament”. Commons committee as far back as 1836, and that it Of course, had the arrangement that I proposed on was in 1876 that Erskine May laid down that while Report been in place, there would be more lay members it was perfectly acceptable for lay members to serve on of the committee than ordinary members. That falls Commons committees it was not acceptable, within precisely within the definition set out in this amendment, the doctrine of parliamentary sovereignty, for them to in that Ministers could actually introduce the scheme vote on such committees. I understand that that is the that I was suggesting in legislation—or indeed the position that we still hold. There have been lay members House could, but it would need legislative support. of Commons committees in the past and there are To remind Members of what that scheme was, now three on the Standards Committee, whose recent essentially there would be 10 members of the committee, report suggests that the number should increase to with seven lay and three elected. The three elected seven. members would enjoy parliamentary privilege because The noble Lord, Lord Howarth, and the noble they are elected. The seven lay members would be Lord, Lord Cormack, have taken us back to Magna effectively advising the committee. They vote and make Carta, the Bill of Rights and a range of other things. I their recommendation, but it is for the three elected should say to the noble Lord, Lord Howarth, that members to decide whether to reject or accept the I am currently reading Professor David Carpenter’s recommendation of the lay members. The elected members very helpful, and massive, book on Magna Carta, and essentially have charge—a responsibility for approving I am becoming a little more doubtful about the beauty the recommendations so that they can be submitted to of Magna Carta, fully put, than I was. Its treatment of the full House of Commons. For that reason I accept women and Jews, for example, is not exactly in line the amendment. It takes us partially down the route with modern habits—just as, if one reads the Bill of that I want to go down, and I hope that the Government, Rights carefully, as I have also done, one learns that its at some stage in the future, will finally select that route. assumptions about Roman Catholics are not ones that would meet with automatic approval in the 21st century. Baroness Hayter of Kentish Town: My Lords, this has been an interesting debate—and not simply because 4.15 pm it is an easier one to respond to. As I said when we discussed this subject in Committee, or possibly on Lord Deben (Con): Oh! Report, we strongly support having more lay members on the Standards Committee. We believe that it is Lord Wallace of Saltaire: Yes, we will make exceptions crucial for that body to have the confidence of the in some cases—particularly for the sons of Church of public, so opening up its work to people who are not England clergymen. MPs is an excellent step towards gaining that confidence. Standards have developed and moved, and we are In other areas of life—in the medical profession, the discussing how we would advise the House of Commons legal profession and other professions—outside and how the Government should respond to the House independent members are now the norm in any of Commons on its proposals to move the Standards disciplinary process. That gives confidence to patients Committee further. The recent report calls for an and clients that someone other than the cohort of increase in the number of lay members—we have had those whose behaviour is being judged is involved in three lay members since 2013—and in their representation the decisions. Indeed, I think I am right in saying that as a proportion of the committee. The Government in most of those other professions there is now a lay already have a high regard for the lay members of the chair of the relevant disciplinary body. Standards Committee and appreciate the very important As my honourable friend on the Front Bench in the role they play in the work of the committee. The three other place said, we want to see a, lay members who currently serve have clearly made a “radical overhaul of the Committee. That would include the valuable contribution and add an important level of removal of the Government’s majority and an increase in the role independence to the process. and authority of its lay members. We propose that at least half the Committee should be lay members and that the Chair of the The Standards Committee report has only very Committee should not be a Member of Parliament”.—[Official recently been published and the Government have not Report, Commons, 27/10/14; col. 69.] found time to agree a formal response—the matter is, 31 Recall of MPs Bill[LORDS] Recall of MPs Bill 32

[LORD WALLACE OF SALTAIRE] committees, into question. The membership and operation after all, in principle for the Commons itself. If I may of the Standards Committee is a matter for the House say as clearly as I can, the Government can see no of Commons and the provisions in the Bill have been reason at all why there should not be an increase in the designed in such a way as to fit in with its disciplinary number of lay members of the committee, as proposed arrangements, however they are constituted. The second in the Standards Committee’s report. The disciplinary recall trigger would work in exactly the same way procedures of the House of Commons are, in principle, whether there were three, seven, 10 or 15 lay members a matter for that House as a whole. It is for the on the Standards Committee, so it would not be Government to facilitate a debate in which the report justified to stop the second trigger from operating of the Standards Committee can be considered in unless the number of lay members was increased. detail and consequent changes agreed. The Standards Committee report also specifically I would urge this House to ponder carefully any says: course of action that might be interpreted as pressuring, “The Committee has said that it will work to implement influencing or leaning on the other place to make such whatever Parliament decides on recall”. a significant change to its disciplinary procedure. After Whether or not the other place decides to act on the all, we come up against issues of parliamentary sovereignty Standards Committee’s recommendations—and, as I and parliamentary privilege. have said, the Government certainly see no reason why it should not in respect of the lay members of that Lord Tyler: I am grateful to my noble friend and committee—the committee’s essential role in holding recognise that he is in a difficult position for the MPs to account for their conduct will remain unchanged. reasons he has just enunciated. We do not want to The noble Lord, Lord Tyler, asked me to guarantee look as if we are telling the House of Commons when in the remaining short weeks of this Parliament that it should take its business, but can he at least, say, on the Commons will reach that decision before Parliament behalf of the Government, that it would be the hope is dissolved. I am unable, standing here, to give any and intention of the business managers for the extremely such absolute guarantee, but I will certainly take that important report from the Standards Committee to be back to my colleagues in the other place and make the addressed and, I hope, action taken before the Dissolution point. of this Parliament later this month? May I appeal to Having given as warm assurances as I can to this the Minister to ignore the pleas from the ultra-conservative House, I hope that enables the two noble Lords to tendency in this House, represented by the noble Lords, withdraw their amendments. Lord Howarth and Lord Cormack, who I think have not read the report of the Standards Committee which Lord Campbell-Savours: My Lords, I am indebted addresses very carefully the issues of parliamentary to the Minister because he has made the position clear. sovereignty and parliamentary privilege? We now know that the Government do not support the Standards Committee’s lay membership being given Lord Wallace of Saltaire: I also give way to the the right to vote, which brings me right back to my noble Lord, Lord Campbell-Savours. Amendment 6 which I moved on Report, which I now believe is a real option. I was also against the lay Lord Campbell-Savours: Can I clarify the position membership being given the right to vote, which was and go back to what I was asking? What is the what I was trying to flush out, because it makes my Government’s position on voting in that committee in amendment more sensible. the event that it were to proceed to implement the All I would like from the Minister is an assurance increased lay membership, to which the Minister referred? that the debate that took place on Report, and if I might modestly say in particular the proposal in my Lord Wallace of Saltaire: I am trying to be as amendment, will be considered by the appropriate helpful as I can on a very recently published Standards authorities. I would ask those who are charged with Committee report. I remind the House of some of the reading these matters in the other place, as invariably history. When the Kelly report from the Committee on they do when we deal in this place with House of Standards in Public Life in 2009 recommended that Commons business, to read the debate and consider there should be lay members on the Standards Committee, that amendment. I think that my proposal was a very the recommendation was accepted in principle and reasonable way to proceed. It would ensure that the referred to the Procedure Committee. That committee, lay membership really felt they were making a contribution in line with parliamentary precedent reported that, and it would not take us down road concerning the while there was a long history of non-voting lay committee issue of parliamentary privilege, which my noble friend members, there was also a long-established precedent Lord Howarth of Newport was essentially alluding to. that only Members of the House could vote. The On that basis I beg leave to withdraw my amendment. Government do not see any reason why we should Amendment 3 withdrawn. override that long-standing precedent. To add a further dimension on the complexity of Clause 9: Recall petition to be made available for the constitutional issues with which we are dealing, signing the Joint Committee on Parliamentary Privilege in June 2013 advised very clearly against legislating on the lay membership of the committee. To do so would Amendment 4 risk bringing the operation of parliamentary privilege, Moved by Lord Gardiner of Kimble as it currently applies to the standards and other 4: Clause 9, page 7, line 19, leave out “8” and insert “6” 33 Recall of MPs Bill[2 MARCH 2015] Recall of MPs Bill 34

Lord Gardiner of Kimble (Con): My Lords, hours for eight weeks and in up to 10 signing places, Amendment 4 would reduce the petition signing period with the costs of premises and equipment, will be from eight weeks to six weeks. On Report, we debated pretty expensive. Indeed, I would be interested to the amendment of the noble Lord, Lord Howarth, to know if the Government have made any calculation or reduce the signing period to three weeks. The Government estimate of how much per week they anticipate this felt that shortening the availability of the petition to process to cost. Anyway, it is highly desirable that it this length of time would make the petition process should be kept to the minimum. unworkable, especially for those who wished to sign by Another argument was very strongly made by my post. However, it was clear from that debate that the noble friend Lady Hayter of Kentish Town that it is decision to increase the number of signing places to a most important to minimise the period during which maximum of 10 could allow us to consider a reduction citizens in a particular constituency would not have in the signing period. the services of their MP available to them, whether in We have listened carefully to the arguments put the constituency or in the House of Commons. forward for reducing the signing period and believe Finally, what is for me the most important argument that a reduction to six weeks is a sensible and practicable is that it is desirable to minimise the period of what I step. I am grateful to the noble Lord, Lord Howarth, think will be an intensely unpleasant political process. and also to the noble Lord, Lord Foulkes, who is not We will see journalistic vultures circling around what in his place today, whose amendments at previous they take to be political carrion. As people witness this stages of the Bill’s consideration have raised this question. experience—I hope to goodness that they never will Having reflected on the issue, we consider that a and that the provisions of this Bill never have to be shortened period of six weeks would strike the right operated in practice—I fear that the unpleasant nature balance between tightening the process and enabling of this political process will deepen the revulsion that proper access to signing. It would allow sufficient time many feel for politics and that any gain in accountability for electors to consider the campaigns for and against will be more than offset by an increase in public signing the petition and enable those who wish to sign disaffection with politics. by post to make an application. While I do not want in any way to be churlish, I Additionally, the revised period would still allow think that the Government have perhaps been unduly the petition officer to check and approve postal timid in reducing the signing period from eight weeks applications in good time for signing sheets to be to only six weeks. My amendment on Report proposed issued and returned, including making the important a period of three weeks and that was perhaps a little check that an elector has not already signed the petition optimistic, but I would have thought that the necessary in person. A further benefit of shortening the signing processes could be transacted in four or five weeks. I period, which was referred to in previous debates, is was unpersuaded by what was a key argument put that constituents will find out the result of the petition forward by the noble Lord, Lord Gardiner of Kimble, sooner, and if a by-election is to be held, this would that ample time should be made available for people enable the election of their Member of Parliament who do not already have postal votes but decide that more quickly. they would like to sign this petition by way of a postal In considering this issue, we have taken very seriously procedure to be able to apply to do so. I think that that the views of your Lordships’ House and we believe is a bit of a luxury that is not really needed. At all that the amendment is a sensible improvement to the events, the noble Lord, Lord Norton of Louth, pointed operation of the recall petition. The amendment has out to us in an earlier debate that a whole general the support of the noble Baroness, Lady Hayter, and election can be conducted in four weeks; we are about the noble Lord, Lord Kennedy, for which I am most to have a general election conducted over a period of grateful. For those reasons, I beg to move. five and a half weeks including the Easter holiday. So I think that insisting on a period of no fewer than six weeks for a petition, which would find its conclusive Lord Howarth of Newport: My Lords, I am most result if only 10% of the electors sign it, is unduly grateful to the noble Lords, Lord Gardiner of Kimble timid. and Lord Wallace of Saltaire, for their characteristic generosity and their willingness to reflect upon the However, as I say, I do not wish to be churlish and I issues that were raised in the debate on Report, to am genuinely grateful. A reduction from eight weeks meet me and my noble friend on the Front Bench, and to six weeks is 25% off, and that is pretty good. I thank the decision they have reached to reduce the signing both noble Lords and I am happy to support the period from eight weeks to six weeks. government amendment. There were four essential arguments in connection with this. One was that, as a result of the most welcome 4.30 pm amendment which the Government themselves brought Lord Tyler: My Lords, I think this is a sensible in on Report increasing the number of signing places compromise. I, too, supported the view that the excessive to up to 10, there will not be the same difficulty for period was unnecessary. Once we had in place the registered electors to find their way to somewhere flexibility on places for signing to take account of where they can sign. geography and demography in areas such as the one I There is also the question of cost. We do not want know and the one the noble Baroness knows, it was a to prolong this process and its associated costs any very sensible thing to move. I do not accept that a longer than is necessary. Maintaining no fewer than further, more drastic reduction to three or four weeks two staff, I should think, who will work quite long would really have been very practical. After all, this is 35 Recall of MPs Bill[LORDS] Recall of MPs Bill 36

[LORD TYLER] met rather more Bill teams than I would like to have not going to be an anticipated event in the same way done, and on one or two occasions I have realised that a general election is. There will be an extension of what you suffer if a Bill team does not do what you postal involvement in the process, and therefore six weeks need for a Monday afternoon Committee stage—on is a reasonable period. A further reduction would be one particular occasion, the legal adviser had missed wrong. This is a good compromise, and I am grateful the ferry back that morning from the Isle of Wight to my noble friend. and we arrived without the full pack that we needed. I am confident in saying that this is one of the best Bill Baroness Hayter of Kentish Town: I add my thanks teams that I have had. to the Minister for tabling this amendment, to which Government Amendments 6, 7 and 8 require the we have added our names. I also congratulate my petition officer to deliver all recall petition returns to noble friend Lord Howarth of Newport, who argued the Electoral Commission as soon as reasonably persuasively both on Report and today. Given the practicable after the documents have been received. move from four to 10 signing places, we really did not These support the more substantive government need the lengthy period of eight weeks. I hope that, for Amendment 10, which will require the Electoral costs and other reasons, there will now be less need for Commission to prepare and publish a report after people to apply for postal votes, and it will be easier every recall petition. These amendments build on those for people to arrange to meet one of the signing first tabled by the Opposition on Report, and I welcome places. While we would not want to rush the petition, their support for our amendments today. I am grateful we think that both the MP and the constituents deserve to the noble Baroness, Lady Hayter, and the noble to have as swift a result as possible so that the MP is Lord, Lord Kennedy, for their constructive engagement not taken away from their normal parliamentary duties on this issue. for an inordinate period, as has been outlined by my In drafting the Bill, the Government have been keen noble friend Lord Howarth. We see six weeks as being to ensure that we create a regulatory environment that an improvement on eight and look forward to this is consistent with existing electoral law. However, we amendment passing shortly. recognise that recall petitions are a new style of electoral event for which there is no one-size-fits-all set of rules Lord Gardiner of Kimble: My Lords, this has been a that can be applied. That said, we have drawn heavily, short but important debate. I am glad that we have as far as we can, on underlying principles from wider been able to reach what I think is a sensible arrangement, electoral law—notably, encouraging participation through after compelling arguments. I beg to move. proportionate regulation and preventing undue influence by wealthy groups and individuals. Amendment 4 agreed. The Government have been grateful to noble Lords for their contributions throughout the passage of the Clause 24: Commencement Bill in terms of how the campaign should be regulated. The Government have also been consistent in our view Amendment 5 not moved. that the spending and donation rules that we have put in place are appropriate to the nature of a recall petition and are fair and workable in practice. We Schedule 5: Recall petition returns appreciate the desire to ensure that the process is properly assessed in what we hope will be the very rare Amendment 6 event of a recall petition taking place. Moved by Lord Wallace of Saltaire The Bill as introduced to this House provides for the Electoral Commission to report on the conduct of 6: Schedule 5, page 56, line 41, at beginning insert “(1)” a recall petition, including how the spending and donation rules work, at its own initiative. Noble Lords Lord Wallace of Saltaire: My Lords, since this is the have expressed a desire to see a formalisation of this last group in this debate, I thank those who have taken process, requiring the Electoral Commission to report part for the constructive role that they have played in after every recall petition. These amendments will the very thorough scrutiny that this Bill has had. I was provide for this. Amendment 9 corrects a minor and a little upset when the noble Baroness, Lady Taylor of technical issue with the drafting of Schedule 5 to the Bolton, suggested that we had done our business Bill. I beg to move. hastily. I think that we have done our business—from Second Reading, through Committee to Report, and now to Third Reading—in the appropriate way in Lord Kennedy of Southwark (Lab): My Lords, my which this House behaves. We have met with those noble friend Lady Hayter of Kentish Town and I have who have expressed their greatest concerns on the Bill, also put our names to the amendments tabled by the and, as the names on the amendment to which I am noble Lord, Lord Wallace of Saltaire, on the role of now speaking show, we have done our best to reach a the Electoral Commission. As the Minister has described, consensus with the Opposition where they have made the amendments have the effect of requiring the Electoral reasonable points, which the Government feel should Commission to take a greater role in the scrutiny of be taken into account. recall proceedings, which is to be welcomed. As a I am also very grateful that we have had such an general principle, the Electoral Commission needs to extraordinarily good and efficient Bill team for this move on from its present position of offering advice Bill. Over the last four and three-quarter years, I have and guidance to more specific areas that it is responsible 37 Recall of MPs Bill[2 MARCH 2015] Recall of MPs Bill 38 for, and to be held account properly by Parliament for address the issue of secrecy and the availability of the its work in those areas. That is my position, although marked register, the details of which still have to be it is a matter for another day. worked out. The specific amendments address the points that I Regrettably, little attention has been given to such have argued were lacking throughout the Bill. I am practicalities or even the principles of the recall process, grateful to the Minister for mirroring the amendments which explains why so much has been left to regulations that we on these Benches put forward in previous —fairly inexcusable, given that the Government have stages of the Bill. The first set of amendments to had an entire Parliament to draft a 25-clause Bill. Schedule 5 ensures that all returns by campaigners are Despite this, the help that we received from the noble subject to checks by the Electoral Commission and Lords, Lord Wallace of Saltaire and Lord Gardiner of delete the phrase “on request”, thereby requiring the Kimble, was much appreciated, and we welcomed it petition officer to deliver a copy of all the recall very much. They were willing to meet us to discuss the petition returns when they have been received. We detail and the principle, so I record my thanks and strongly disputed the Electoral Commission’s view those of my colleagues on these Benches for their hard that these would be little local events with a local feel. work. Also, I join them in supporting and thanking I took the view that that was a silly claim by the the Bill team for their hard work; they have been commission; we all know that these will be national courteous and helpful throughout the process. events attracting enormous media attention. The I thank my noble friend Baroness Hayter of Kentish commission is best equipped to look at the work being Town. We were friends for many years before we came done with returns, as it has both the resources and the into the House—we came in on the same list nearly expertise at its disposal. I did not accept the commission’s five years ago. It is always a pleasure to work with her. note on this when it said that it may need additional Her leadership and hard work on this are much resources to make this work. We all hope that these appreciated by everyone involved. I thank my colleague provisions will be enacted very rarely, and I am very Helen Williams from the opposition office for her confident, as a former commissioner, that this extra contribution; though it was behind the scenes, it was work can be done from existing resources. very much appreciated by me and my colleagues here. I also thank noble Lords on all sides of the House for We believe that these amendments are particularly their work. We have done our job as a revising Chamber, important, given that the Government have not accepted and I am grateful to everyone involved. our concerns about the potential loopholes that have been left open with regards to donations and expenditure We have all expressed the wish that the Bill will received by both accredited and non-accredited never need to be used. However, it is right that it campaigners. This at least goes some way towards should be as fit as possible in case it is. The Minister ensuring that the financial circumstances of campaigns knows that we remain concerned about the possible are subject to some level of scrutiny. Although we are intrusion of big money into the consideration of whether disappointed that the Government have failed to address an MP should continue in Parliament. I hope that he what we from these Benches regard as the inherent is right and we are wrong in worrying about this. That unfairness in the equality of arms of accredited apart, we have made the Bill a bit better than when it campaigners, as well as the lack of safeguards on arrived in your Lordships’ House. I hope that it can permissible donors, we are at least glad that we have now be moved on so it is an Act of Parliament very managed to persuade Ministers that it is paramount soon. that donation returns are checked. Lord Tyler: I wish to comment briefly on these It is hoped that this will go some way to providing amendments. Since the noble Lord, Lord Kennedy, confidence in the financial aspects of recall campaign signed them, I felt it was only right that he should be procedures, which we on this side of the House believe allowed to go first, but I endorse everything he said; could be open to abuse. The Government’s other these are useful improvements. When the Bill first amendment to Schedule 5 is a technical amendment, came to your Lordships’ House there was a certain which clarifies the Bill, and we support it. The amendments mood that somehow we should not be making to Schedule 6 require the Electoral Commission to improvements to it—not that it was incapable of produce a report on the recall petition proceedings improvement, but that somehow we should not be once they have been completed. As I said previously, looking at such internal matters as those with which given that this is an entirely new facet of campaigning, the Bill is concerned because they are so clearly matters I believe that an independent assessment of the process that intimately affect the Commons collectively and would be greatly welcomed, not only by constituents individual MPs. I am delighted that through the whole but by those affected or involved in the process, and by of the debate, at all stages, that apparent lack of everyone else involved. confidence in the role of your Lordships’ House has In conclusion, the amendments made in your fallen away and we have had very serious, helpful and, Lordships’ House have been small but significant in I hope, positive discussions about how to improve this making it more workable for all involved. Perhaps the legislation. most important inclusion in the forthcoming regulations It would be ironic if, simply because the Bill affected will be the requirement on the petition notification so intimately the self-interest of Members of the other card to inform electors of the fact that they are signing place, somehow we felt we could not take any view on what could become a public petition. Given that the it, when as a Parliament we clearly have to take a view Government rejected our judgment that this was de both about the reputation of Parliament as a whole facto a public petition, this is at least something to and about the intricacy and effectiveness of individual 39 Recall of MPs Bill[LORDS] Counterterrorism Policy: Syria and Iraq 40

[LORD TYLER] Schedule 6: Minor and consequential amendments proposed legislation. I share the concern of the noble Lord, Lord Kennedy, that it may well be that this turns out not to be entirely fit for purpose. Presumably, Amendment 10 it will be tested when, or if, it is used, and that will be Moved by Lord Wallace of Saltaire an obvious moment for us to review the situation, as my noble friend Lord Norton and I said in a previous 10: Schedule 6, page 58, line 32, leave out “may” and insert “must” debate. If we had accepted the view that because it was of such intricate, direct self-interest concern to Members of Parliament then somehow or other we had to Amendment 10 agreed. withhold our views, that would surely have given credence to the idea that the form of your Lordships’ House Bill passed and returned to the Commons with amendments. could not be a matter of concern to the other House of Parliament, which would be patently ludicrous. I am pleased that in fact that situation fell by the Counterterrorism Policy: Syria and Iraq wayside and no one has pressed that. Statement I share with the Minister and the noble Lord, Lord Kennedy, my thanks as an individual Member of your 4.46 pm Lordships’ House to all those who have taken such trouble within the Government to try to make sure The Parliamentary Under-Secretary of State, Home that we had the best possible opportunities to influence Office (Lord Bates) (Con): My Lords, with the leave of the way in which this legislation came before us. In the House, I will repeat a Statement made by my right particular, I thank my noble friends Lord Wallace and honourable friend the Home Secretary in answer to an Lord Gardiner for the impeccable way in which they Urgent Question in the other place. have treated us, giving us every appropriate opportunity “Mr Speaker, as the Government have made clear to try to improve the Bill. It is slightly improved, but I repeatedly, the threat we face from terrorism is grave suspect that some of the issues that we were dealing and it is growing. The House will appreciate that I with earlier today will come back to haunt us before cannot comment on operational matters and individual too long. cases, but the threat level in the United Kingdom, which is set by the independent Joint Terrorism Analysis Centre, is at severe. This means that a terrorist attack 4.45 pm is highly likely and could occur without warning. Lord Wallace of Saltaire: My Lords, perhaps I The Government have consistently and emphatically should add that it has been interesting that, in the best advised against all travel to Syria and parts of Iraq. traditions of this House, the Divisions on the Bill have Anyone who travels to those areas is putting themselves not been one party group against another but have in considerable danger, and the impact that such a often been within and across political party groups. decision can have on families and communities can be That is how it should often be in this Chamber: it is devastating. part of a healthy debate. The serious nature of the threat we face is exactly I have been sitting here today wondering whether why the Government have been determined to act. We the colour of the coat of the noble Baroness, Lady have protected the counterterrorism policing budget, Hayter, was intended to be a heavy hint at her preferred up to and including 2015-16, and increased the budget post-election coalition, but perhaps we can continue for the security and intelligence agencies. In addition, that discussion outside the Chamber. I conclude by we have provided an additional £130 million to strengthen thanking everyone for the lengthy amount of time that counterterrorism capabilities and help to address the we have spent on the Bill. I commend the amendment. specific threat from ISIL. We have taken significant steps to ensure that the Amendment 6 agreed. police and security services have the powers and capabilities that they need. Last year, we acted swiftly to protect Amendments 7 and 8 vital capabilities which allow the police and security services to investigate serious crime and terrorism, Moved by Lord Wallace of Saltaire and to clarify the law in respect of interception for 7: Schedule 5, page 56, line 41, leave out “, on request,” communications service providers. 8: Schedule 5, page 57, line 5, at end insert— This year, we have introduced the Counter-Terrorism “(2) Delivery under sub-paragraph (1) must be as soon as and Security Act. This has provided the police with a reasonably practicable after the officer receives the document in question.” power to seize a passport at the border temporarily, during which time they will be able to investigate the individual concerned—and I can confirm that this Amendments 7 and 8 agreed. power has been used. The Act has created a temporary exclusion order that allows for the managed return to Amendment 9 the UK of a British citizen suspected of involvement Moved by Lord Wallace of Saltaire in terrorist activity abroad. It has strengthened the existing TPIM regime so that, among other measures, 9*: Schedule 5, page 58, line 5, leave out “1” and insert “2” subjects can be made to relocate to another part of the Amendment 9 agreed. country, and it has enhanced our border security for 41 Counterterrorism Policy: Syria and Iraq[2 MARCH 2015] Counterterrorism Policy: Syria and Iraq 42 aviation, maritime and rail travel, with provisions think of just checking the bus station? What measures relating to passenger data, no-fly lists, and security are now being put in place to prevent this happening and screening measures. again? Since its national rollout in April 2012, over 2,000 people have been referred to Channel, the Government’s programme for people vulnerable to Lord Bates: My Lords, the noble Baroness asked being drawn into terrorism, many of whom might about the control orders. She will be aware that they have gone on to be radicalised or to fight in Syria. The related to a different time. The threat which has come Counter-Terrorism and Security Act has now placed from people travelling to Syria has gathered pace over Channel on a statutory basis, and it has also placed the past couple of years. The threat level has increased. our Prevent work on a statutory basis, which will There was also concern, which we discussed at length mean that schools, colleges, universities, prisons, local during the passage of the counterterrorism Bill, about government and the police will have the duty to have the orders being whittled away by the courts. We felt due regard to the need to prevent people from being that we needed to introduce a new measure, the TPIM, drawn into terrorism. Already, since 2012, local Prevent which is more effective and has a higher threshold. projects have reached over 55,000 people and helped That has been more effective in the location element. young people and community groups understand and On the noble Baroness’s point about the removal of challenge extremist narratives, including those of ISIL. the orders being against professional advice, the Home Secretary discussed the proposal with the authorities In addition to this work, and alongside the checks before the decision was taken. They accepted it at that that we have already conducted on a significant number point, just as they are now recommending that the of passengers leaving the UK, we have committed to measure is reintroduced given the renewed threat that reintroducing exit checks, and arrangements to do so we have faced. will be in place by April 2015. These will extend our ability to identify persons of interest from a security, I know that the issue of how on earth this could criminal, immigration or customs perspective. As the happen with the three young girls has caused immense Prime Minister stated last week, the Transport Secretary distress to everyone. It is the subject of an ongoing and I will be working with airlines to put proportionate investigation. The account of the series of events that arrangements in place to ensure that children who are is coming from the authorities in Istanbul is vigorously at risk are properly identified and questioned. challenged by the Metropolitan Police. It informed the Turkish embassy on the very day that it was alerted to The Government are taking robust action. But we the children having gone missing. However, rather have been clear that tackling the extremist threat we than my going further on that, I would be grateful if face is not just the job of the Government, the police the noble Baroness could bear with me in allowing the and the security services. It needs everyone to play investigation currently under way to take its course. their part. It requires educational institutions, social media companies, communities, religious leaders and families to help protect vulnerable people from being 4.53 pm drawn into radicalisation and to confront this poisonous Baroness Hamwee (LD): My Lords, apart from ideology. If we are to defeat this appalling threat and physical measures, does my noble friend agree that it is ideology, we must all work together”. fundamentally important to understand the motivation of young people who are drawn to fight in Syria and Baroness Smith of Basildon (Lab): My Lords, I am to disseminate a counter-narrative to the persuasion grateful to the Minister for repeating the answer to the to which so many of them seem to be subject? shadow Home Secretary. In our debates on the counterterrorism Bill, we Lord Bates: Absolutely, and that is the vital role of referred on several occasions to the 600 or so British Prevent and Channel. I think it is also vital to engage citizens who have travelled to Syria to join the conflict. all communities through putting that on a statutory Each of those 600 has somehow come into contact footing and to engage the religious communities. I am with extremists and been radicalised. When this pleased that my noble friend Lord Ahmad is beside Government came to power, they revoked the relocation me; he is engaging particularly with Muslim communities orders that removed individuals from terrorist networks which are as appalled as we are at what is happening, to disrupt those networks. They took that action against so-called in the name of their faith, which they have professional advice. Do the Government now accept absolutely nothing to do with. We get that message that the removal of relocation orders made it harder and we want to communicate it to as many people as to disrupt terrorist networks, particularly those in possible. parts of London? Given that the Government advice is not to travel to Syria, we all find it absolutely incredible that three Baroness Howarth of Breckland (CB): I welcome 15 year-old schoolgirls were able to make that journey, the Channel and Prevent programmes. Can the Minister taking over 30 hours, without any intervention. When tell us what assessment has been made of their success? were the authorities in Turkey notified? Was it really They are very new and are crucial to change. Do we three days later and, if so, why did it take so long? have inspections? Is Ofsted equipped to inspect such a What communications were there with the British programme? It is the key to ensuring that our children embassy in Turkey and what action was taken by the are safe., and I would be grateful to know whether any embassy to try to locate the young girls? Did anyone of that has been undertaken. 43 Counterterrorism Policy: Syria and Iraq[LORDS] Serious Crime Bill [HL] 44

Lord Bates: Prevent is subject to the Prevent Lord Robertson of Port Ellen (Lab): Does the Minister co-ordinators in local areas. The regional higher education agree that there is something absurd about the security Prevent co-ordinators are run out of BIS. They are in services being blamed in any way for what has happened charge of overseeing the quality when it comes to where people may or may not have gone to Syria to universities. There is talk in the consultation document fight for ISIL? Instead of criticising the security services, of a possible role for an outside body to inspect their which have a huge job not only in detecting or identifying effectiveness, such as the Higher Education Funding people who might be involved in this kind of terrorism Council, but at the moment it rests with those but all other kinds of terrorism at the moment, we organisations in the 30 key priority areas for Prevent. should be giving full support to them. Is it not completely unrealistic to think that everybody who is followed or The Lord Bishop of Norwich: My Lords, while I am identified by the security services should somehow be entirely sympathetic to the Government’s intentions, locked up? There is no prison system yet invented that does the Minister recognise that some individuals would be capable of identifying and imprisoning all may wish to go to Iraq and Syria to oppose rather those who might conceivably in the future be guilty of than support Islamic State? I am sure your Lordships some terrorist act. will be aware of last week’s tragic and comprehensive destruction of the museum in Mosul. That cultural Lord Bates: The noble Lord is absolutely right that vandalism was accompanied by the abduction of when it comes to this, we should pay tribute to the 220 Assyrian Christians, with the intention of obliterating security services for the immense work which they Christianity and the memory of it. It is already reported have done. Since 2010, 750 people have been arrested that some people have travelled to the conflict zone to for terrorist-related offences, 210 have been charged defend Christians. What is the Minister’s advice for and 140 have been successfully prosecuted. It is in the those living in the United Kingdom with family in the nature of these things that we focus on the one or two area who may be tempted to travel to fight for their who got away rather than the many that the security protection? services have detected.

Lord Bates: The right reverend Prelate raises a very Serious Crime Bill [HL] serious and sensitive point. I would say very carefully Commons Amendments that whatever your perspective on the crisis in Syria, our recommendation is that you do not travel. There are other international agencies which are doing incredible 5.01 pm work in trying to bring peace and protect individuals and particular groups in that area. We should give Motion on Amendments 1 and 2 them our full support without adding further to the difficulties by introducing independent people into Moved by Lord Bates that very complex and dangerous theatre of terrorism. That this House do agree with the Commons in their Amendments 1 and 2. Lord Deben (Con): Does my noble friend accept 1: Before Clause 37, insert the following new Clause— that there are many people who are caused great pain “Exemption from civil liability for money-laundering disclosures by some of the comments made in the newspapers, In section 338 of the Proceeds of Crime Act 2002 (money particularly those who have been responsible for the laundering: authorised disclosures), after subsection (4) insert— education of some of these young people? Perhaps he “(4A) Where an authorised disclosure is made in good faith, heard the headmistress of the school which one famous no civil liability arises in respect of the disclosure on the part of character attended. Will the Minister do all he can to the person by or on whose behalf it is made.”” stop people pointing the finger at those who have done 2: Clause 64, page 52, line 32, at end insert— a job, tried to do it as well as possible and are now left “( ) An application to a sheriff for an order under section in this awful position of being blamed for something 59, 60, 62 or 63 must be made by summary application.” that has nothing to do with them and that they could not have prevented? The Parliamentary Under-Secretary of State, Home Office (Lord Bates): My Lords, I shall also speak to Lord Bates: My noble friend is absolutely right. I Commons Amendments 24, 25, 35, 36 and 37. This am sure that whenever we see a horrific crime committed first group of Commons amendments principally makes by an individual, every head teacher wonders if they two further changes to the Proceeds of Crime Act 2002. could have done more. That is in the nature of the Part 7 of the Proceeds of Crime Act places obligations educational professionals that we have. on the “regulated sector”, such as banks and accountants, I am afraid that there are some people who have to submit suspicious activity reports to the National that sadistic, vile, criminal bent within them. That Crime Agency, where the reporter has suspicions that reinforces the fact that what we are talking about here a transaction might be linked to money-laundering or is not any ideological or religious struggle. It is pure the financing of terrorism. This part of the Proceeds and simple criminality—and in the case of that particular of Crime Act provides for a category of suspicious individual, murderous criminality. It is a tragedy for activity reports, called consent SARs. Where there are the family and people who know them, but we should reasonable grounds to suspect that a transaction might not blame ourselves for what an individual had be related to money-laundering, the reporter may seek responsibility for and should have controlled himself. the consent of the National Crime Agency to proceed 45 Serious Crime Bill [HL][2 MARCH 2015] Serious Crime Bill [HL] 46 with the transaction to avail themselves of some defence The Supreme Court ruled in the case of Waya that against a money-laundering charge. Some 14,000 consent the duty on the Crown Court to make a confiscation SARs are submitted each year. order should be qualified so that it did not apply where such an order would be contrary to the defendant’s The National Crime Agency has seven working right to the peaceful enjoyment of his or her property, days to respond to a consent SAR. If consent is refused, as enshrined in Article 1 of Protocol 1 to the European the National Crime Agency has a further 31 calendar Convention on Human Rights. I stress that that does days to investigate the transaction. While the reporter not mean that a confiscation order should not be awaits the NCA’s decision on consent, the activity or made in such cases. The Supreme Court was saying transaction must not proceed. The process can therefore that the amount for which a confiscation order is unavoidably hold up the financial transaction in question. made must be proportionate in light of the circumstances The consequences for a customer whose request or of a case. It is possible that a court may decide not to transaction is so delayed may go beyond mere make a confiscation order, but we believe that that inconvenience and lead to financial loss. A customer would be highly unlikely. The Crown Court would who has suffered such loss may seek to take legal most likely decide to set an amount to pay at less than action against a bank or other institution to recover the full recoverable amount. any losses or otherwise to make a claim for damages. While the Government recognise the concerns of The current situation is, of course, that the Crown customers, we believe that where an institution has Court is bound by the judgment of the Supreme Court suspicions regarding the transaction and reports those as the superior court. The Crown Court should be, to law enforcement authorities in good faith, as the and is, already applying the findings in Waya to law requires it to do, that institution should not be confiscation cases before it. However, we wish to make liable for civil claims for damages. the obligation on the Crown Court explicit and ensure its consistent application. As I have said, that accords The UK is obliged, under Article 26 of the EU’s with the conclusion of the Joint Committee on Human third anti money-laundering directive, to provide Rights, which said that, protection to those who report suspicions of money- “the Bill provides an opportunity to bring greater legal certainty laundering in good faith from incurring civil liability to the legal regime governing the proceeds of crime by inserting for doing so. The common law currently affords such into the statutory framework express language which would give protection through the Court of Appeal ruling in the clear effect to the judgment of the Supreme Court in Waya”. case of Shah, which held that while customers can Commons Amendments 24 and 25 make consequential require institutions to prove that the suspicion that amendments to the commencement clause. gave rise to the SAR was reasonable, provided the Finally, Commons Amendment 2 makes a technical suspicion is so proved, the institution cannot be held change to Part 4 of the Bill, which provides for the liable for loss suffered by the customer as a consequence seizure and forfeiture of substances used as drug-cutting of the institution’s failure to carry out promptly the agents. Clauses 59, 60, 62 and 63 provide for applications customer’s instructions. in respect of various matters—for example, the continued We believe that placing this civil immunity on a retention of suspected drug-cutting agents—to be made statutory footing will provide for greater legal certainty. to the appropriate court. In Scotland, such applications Commons Amendment 1 is directed to that end. That will be made to the sheriff. Commons Amendment 2 immunity from civil proceedings will apply only where provides that in Scotland those applications must be a suspicious activity report is submitted in good faith, made by way of summary application, as distinct from and those in the regulated sector responsible for submitting other forms of application, such as an initial writ or such reports will continue to be liable for any negligent small claim. I beg to move. or malicious conduct. We will work with the National Crime Agency and the Financial Conduct Authority to ensure that the change to the law does not lead to Motion agreed. an abuse of the process. We believe that this amendment to the Proceeds of Crime Act will strengthen the partnerships we have built with the regulated sector Motion on Amendments 3 and 4 and will increase the regulated sector’s trust and confidence in the SAR regime. Moved by Lord Bates Commons Amendments 35 to 37 give effect to a That this House do agree with the Commons in recommendation made by the Joint Committee on their Amendments 3 and 4. Human Rights in its report on the Bill. The Commons 3: After Clause 65, insert the following new Clause— amendments would in turn amend the Proceeds of “Sexual communication with a child Crime Act to give statutory force to the 2012 Supreme After section 15 of the Sexual Offences Act 2003 insert— Court judgment in the case of Waya. The Supreme “15A Sexual communication with a child Court ruling and these amendments relate to the making (1) A person aged 18 or over (A) commits an offence if— of a confiscation order following a criminal conviction. (a) for the purpose of obtaining sexual gratification, A intentionally If the prosecutor applies to the Crown Court for a communicates with another person (B), confiscation order, the court has to consider making (b) the communication is sexual or is intended to encourage B such an order—it has no discretion. In its consideration, to make (whether to A or to another) a communication that is the Crown Court sets a value for payment on the sexual, and confiscation order at what is termed as the “recoverable (c) B is under 16 and A does not reasonably believe that B is amount”. 16 or over. 47 Serious Crime Bill [HL][LORDS] Serious Crime Bill [HL] 48

(2) For the purposes of this section, a communication is sexual The new clause inserted by Commons Amendment 3 if— (a) any part of it relates to sexual activity, or therefore creates a new offence which criminalises a (b) a reasonable person would, in all the circumstances but person aged 18 or over who communicates with a regardless of any person’s purpose, consider any part of the child under 16, who the adult does not reasonably communication to be sexual; believe to be 16 or over, if the communication is sexual and in paragraph (a) “sexual activity” means an activity that a or if it is intended to elicit from the child a communication reasonable person would, in all the circumstances but regardless which is sexual. The offence will be committed whether of any person’s purpose, consider to be sexual. or not the child communicates with the adult. (3) A person guilty of an offence under this section is liable— (a) on summary conviction, to imprisonment for a term not The offence will apply only where the defendant exceeding 12 months or a fine or both; can be shown to have acted for the purposes of obtaining (b) on conviction on indictment, to imprisonment for a term sexual gratification. Ordinary social or educational inter- not exceeding 2 years.”” actions between children and adults or communications 4: After Clause 65, insert the following new Clause— between young people themselves will not be caught by the offence, and it is certainly not our intention to “Child sexual exploitation discourage the discussion of sexual matters in the (1) The Sexual Offences Act 2003 is amended as set out in context of such everyday relationships. The offence, subsections (2) to (6). (2) For the heading before section 47 substitute “Sexual exploitation of children”. which will apply equally online and offline, will be subject to a two-year maximum prison sentence. The (3) In section 48 (headed “Causing or inciting child prostitution or pornography”)— new offence will extend to England and Wales. (a) in the heading, for “child prostitution or pornography” Commons Amendments 15, 19, 41, 44 and 47 are substitute “sexual exploitation of a child”; consequential on Amendment 3. Importantly, Commons (b) in subsection (1)(a), for “to become a prostitute, or to be Amendment 43 provides that the new offence will involved in pornography,” substitute “to be sexually exploited”. automatically attract the notification requirements for (4) In section 49 (headed “Controlling a child prostitute or a registered sex offenders under the Sexual Offences child involved in pornography”)— Act 2003. The Police and the Crown Prosecution (a) in the heading, for “prostitute or a child involved in pornography” Service have welcomed the new offence and agree that substitute “in relation to sexual exploitation”; it will help to ensure that young people are fully (b) in subsection (1)(a), for “prostitution or involvement in protected by the law and will allow the authorities to pornography” substitute “sexual exploitation”. intervene earlier to prevent more serious forms of (5) In section 50 (headed “Arranging or facilitating child offending—for example, sexual grooming and contact prostitution or pornography”)— offending—against children. The NSPCC has also (a) in the heading, for “child prostitution or pornography” strongly welcomed the new offence. substitute Commons Amendment 4 seeks to update the “sexual exploitation of a child”; language used to describe child sexual exploitation (b) in subsection (1)(a), for “prostitution or involvement in offences in Sections 48 to 51 of the Sexual Offences pornography” substitute “sexual exploitation”. Act 2003. In Committee in the Commons, Ann Coffey (6) In section 51 (interpretation of sections 48 to 50)— (a) MP made a compelling case to remove from the statute omit subsection (1); book references to child prostitution and to limit the (b) for subsection (2) substitute— scope of the offence of loitering or soliciting for the “(2) For the purposes of sections 48 to 50, a person (B) is purposes of prostitution so that it applies only to sexually exploited if— adults. Commons Amendment 4 gives effect to these (a) on at least one occasion and whether or not compelled to changes. do so, B offers or provides sexual services to another person in return for payment or a promise of payment to B or a third This Government are clear that children who are person, or sexually exploited, whether for financial gain or other (b) an indecent image of B is recorded; reasons, should not be referred to as prostitutes and and “sexual exploitation” is to be interpreted accordingly.” should be recognised as victims. The Government (7) In section 1 of the Street Offences Act 1959 (loitering or agree that such language is outdated and anachronistic. soliciting for purposes of prostitution), in subsection (1), after This Government believe that it is extremely important “person” insert “aged 18 or over”.” to convey the right messages about the treatment of children and young people who may be exploited or Lord Bates: My Lords, I shall also speak to Commons are at risk of exploitation. It is vital that any legislation Amendments 13, 15, 19, 33, 38, 40 to 48 and 52. relating to prostitution should recognise that children Commons Amendment 3 responds to an amendment who have been subjected to sexual abuse or exploitation tabled by the noble Lord, Lord Harris of Haringey, on are, first and foremost, victims. They should not be Report and again at Third Reading. As the House will stigmatised by legislation which treats them as perpetrators recall, the noble Lord and the NSPCC were concerned of crime or prostitutes. that there might be a gap in the law whereby an adult This is also an opportunity to remove statutory could communicate with a child for a sexual purpose references to child pornography where they exist and without fear of prosecution. We responded by bringing where, for similar reasons, children should always be forward a new offence to deal specifically with those seen as victims. Subsections (1) to (6) in Commons concerns. I pay tribute to the work of the noble Lord, Amendment 4 make the necessary amendments to the Lord Harris of Haringey, in working with the NSPCC 2003 Act. Commons Amendments 38, 42, 45 to 48 to bring forward these changes, which we recognise as and 52 make the necessary consequential amendments being important amendments to the Bill. to other enactments. 49 Serious Crime Bill [HL][2 MARCH 2015] Serious Crime Bill [HL] 50

In addition to amendments to the Sexual Offences Even though they may have been receiving some Act 2003, the Government are also of the view that we kind of payment at the time, it was clear that they should, in the same spirit, amend Section 1 of the were victims. Street Offences Act 1959 so that the offence of loitering The only concern I would raise is on the language or soliciting for the purposes of prostitution would in subsection (2) of the new clause proposed in apply only to adults. This is the effect of subsection (7) Amendment 4. Perhaps further progress is to be made. in Commons Amendment 4 and the associated In the other place we proposed amending the reference consequential Amendment 33. Unlike the amendments to, to the 2003 Act, an amendment to Section 1 of the 1959 “offers or provides sexual services to another person in return for Act would have a material impact in terms of criminality payment or a promise of payment”. and enforcement. It would, in effect, decriminalise That talked in the old-fashioned language and we under-18s selling sex in the street. When considering tried to move on by including, this change it must be noted that, in practice, children and young persons under 18 are rarely arrested for “prepares to engage in, or engages in, sexual activity with”, loitering or soliciting. The Government consulted with rather than “provides … for payment”. However, welcome the police on the impact of this amendment on their as that change would have been, it does not detract ability to protect children from sexual exploitation, from the fact that the Government are ensuring that and they welcomed the change. I am clear that this that is an offence and recognise it as exploitation and change is fully in keeping with the Government’s abuse. approach of treating children as victims, and preventing We welcome these amendments, which are a step any suggestion that they may be complicit in their forward. I know that my noble friend Lord Harris sexual abuse or exploitation. would join us in welcoming the support from the I hope that the House will welcome the proposed Government for his proposals. changes in Commons Amendment 4. By introducing these changes we will make further strides in permanently Baroness Howarth of Breckland (CB): My Lords, I shifting attitudes towards victims of child sexual abuse briefly want to say that this is a real sea-change in and exploitation. I commend these amendments to attitude. I am delighted to hear the Opposition Front the House. Bench because I have, in the past, argued with Ministers on other Benches who could not see the point of 5.15 pm changing the word “prostitution” because they said Baroness Smith of Basildon (Lab): My Lords, I that a crime was still being committed. Everyone now thank the Minister for his explanation of these has understood that the language changes the attitude amendments. It is helpful and we certainly welcome to the child and we are now really seeing children as them. I am also grateful to him for recognising the victims. I am enormously grateful for this sea-change. persistence of my noble friend Lord Harris of Haringey It will change the way in which young people and on this matter. When he first raised the issue the children are dealt with. We know that the police have Government were initially reluctant to take it on had a huge change in attitude in the way in which board not because they were not supportive of what they work with these young people. The All-Party he was trying to do, which was to think differently Parliamentary Group for Children, which looked at around these issues with the child as a victim. Even working with the police, heard from them on numerous though the child might be engaged in sending sexually occasions how helpful it would be if we perceived explicit messages or photographs, the child was still children as victims and no longer as perpetrators of the victim. I referred at the time to a case that I was crimes in this sexual area. I am immensely grateful to aware of whereby an older man was pretending to be a the Government for this work. 14 year- old girl in order to get a real 14 year-old girl to send messages and photographs of herself quite Lord Berkeley of Knighton (CB): My Lords, I welcome willingly. But she was clearly a victim and was being the Government’s move in this direction whereby children exploited. We are grateful to my noble friend for his are regarded as victims. We all know that a 14 year-old persistence and to the Government for taking this can be manipulative, but the important point about issue on board. these amendments is that they put the onus on the We also welcome the change in the language of the adult not to transgress. In other words, they must legislation by removing references to child prostitution make sure that they are not committing a crime and I and child pornography. Both are child abuse. Children am sure that this is what the Government wish to see. cannot agree to be prostitutes. If money is changing Putting the onus on to adults who get into correspondence hands, it is because they are victims. This shows how with children is an extremely good move. thinking has moved on. The noble Lord may not recall but, during the debates on the Anti-social Behaviour, Lord Bates: My Lords, I am very grateful for the Crime and Policing Bill, I proposed amendments brought contributions made in this short debate, particularly to me by the Police and Crime Commissioner for those made by the noble Baroness, Lady Smith. She is Greater Manchester, Tony Lloyd, about being able to right about what is happening here. In some ways, the close down premises being used for child grooming. language needs to catch up with the change in attitudes The response from the Government Minister at that in society, as was said by the noble Baroness, Lady time, Norman Baker, was that the prostitution laws Howarth. We need to do that catching up, but the law should be used. However, of course, those laws could also needs to catch up with the technology, as was not be used because the children were not prostitutes. pointed out by the noble Baroness. We talk about this 51 Serious Crime Bill [HL][LORDS] Serious Crime Bill [HL] 52

[LORD BATES] (d) may be made orally or in writing. applying equally online and offline, because sadly we (6) The duty of a person working in a particular regulated know that more often than not the engagements of profession to make an FGM notification does not apply if the these communications have been in an online community, person has reason to believe that another person working in that where the perpetrator is not visible. It is therefore profession has previously made an FGM notification in connection absolutely right, as was said by the noble Lord, Lord with the same act of female genital mutilation. Berkeley, that we should ensure that responsibility For this purpose, all persons falling within subsection (2)(a)(i) rests with the person who is making that initial contact. are to be treated as working in the same regulated profession. The noble Baroness, Lady Smith, questioned the (7) A disclosure made in an FGM notification does not breach— use of the term, (a) any obligation of confidence owed by the person making “offers or provides sexual services”, the disclosure, or in Commons Amendment 4. I have some sympathy (b) any other restriction on the disclosure of information. with the comments she made, but in amending the Sexual Offences Act we sought to avoid changing the (8) The Secretary of State may by regulations amend this section for the purpose of adding, removing or otherwise altering ambit of the relevant offences. The existing wording the descriptions of persons regarded as working in a “regulated achieves this objective. I should stress that the wording, profession” for the purposes of this section. “offers or provides sexual services”, (9) The power to make regulations under this section— (a) is is used to define the term “sexually exploited” and exercisable by statutory instrument; should be read in that context. With those reassurances, (b) includes power to make consequential, transitional, transitory and appreciative of that welcome, I beg to move. or saving provision. (10) A statutory instrument containing regulations under this section is not to be made unless a draft of the instrument has been Motion agreed. laid before, and approved by a resolution of, each House of Parliament. Motion on Amendments 5 and 6 (11) In this section— “act of female genital mutilation” means an act of a kind Moved by Baroness Williams of Trafford: mentioned in section 1(1); That this House do agree with the Commons in “healthcare professional” means a person registered with any their Amendments 5 and 6. of the regulatory bodies mentioned in section 25(3) of the National Health Service Reform and Health Care Professions Act 2002 5: After Clause 70, insert the following new Clause— (bodies within remit of the Professional Standards Authority for “Duty to notify police of female genital mutilation Health and Social Care); After section 5A of the Female Genital Mutilation Act 2003 “registered”, in relation to a regulatory body, means registered (inserted by section 70 above) insert— in a register that the body maintains by virtue of any enactment; “5B Duty to notify police of female genital mutilation “social care worker” means a person registered in a register (1) A person who works in a regulated profession in England maintained by the Care Council for Wales under section 56 of the and Wales must make a notification under this section (an “FGM Care Standards Act 2000; notification”) if, in the course of his or her work in the profession, “teacher” means— the person discovers that an act of female genital mutilation appears to have been carried out on a girl who is aged under 18. (a) in relation to England, a person within section (2) For the purposes of this section— 141A(1) of the Education Act 2002 (persons employed or (a) a person works in a “regulated profession” if the person engaged to carry out teaching work at schools and other institutions is— (i) a healthcare professional, in England); (ii) a teacher, or (b) in relation to Wales, a person who falls within a category listed in the table in paragraph 1 of Schedule 2 to the Education (iii) a social care worker in Wales; (Wales) Act 2014 (anaw (b) a person “discovers” that an act of female genital mutilation 5) (categories of registration for purposes of Part 2 of that appears to have been carried out on a girl in either of the Act) or any other person employed or engaged as a teacher at a following two cases. school (within the meaning of the Education Act 1996) in Wales. (3) The first case is where the girl informs the person that an act of female genital mutilation (however described) has been (12) For the purposes of the definition of “healthcare professional”, carried out on her. the following provisions of section 25 of the National Health Service Reform and Health Care Professions Act 2002 are to be (4) The second case is where— ignored— (a) the person observes physical signs on the girl appearing to (a) paragraph (g) of subsection (3); (b) subsection (3A).”” show that an act of female genital mutilation has been carried out on her, and 6: After Clause 70, insert the following new Clause— (b) the person has no reason to believe that the act was, or was “Guidance about female genital mutilation part of, a surgical operation within section 1(2)(a) or (b). (1) After section 5B of the Female Genital Mutilation Act 2003 (5) An FGM notification— (inserted by section (Duty to notify police of female genital mutilation) (a) is to be made to the chief officer of police for the area in above) insert— which the girl resides; “5C Guidance (b) must identify the girl and explain why the notification is (1) The Secretary of State may issue guidance to whatever made; persons in England and Wales the Secretary of State considers (c) must be made before the end of one month from the time appropriate about— when the person making the notification first discovers that an (a) the effect of any provision of this Act, or act of female genital mutilation appears to have been carried out on the girl; (b) other matters relating to female genital mutilation. 53 Serious Crime Bill [HL][2 MARCH 2015] Serious Crime Bill [HL] 54

(2) A person exercising public functions to whom guidance is them by the victim and/or are visually confirmed. The given under this section must have regard to it in the exercise of duty will be limited to victims aged under 18 at the those functions. time the case is identified. (3) Nothing in this section permits the Secretary of State to We recognise that some individuals working within give guidance to any court or tribunal. these professions may be less likely to encounter cases (4) Before issuing guidance under this section the Secretary of State must consult— of FGM and visual evidence in particular. We are clear that introducing this duty does not mean that (a) the Welsh Ministers so far as the guidance is to a body exercising devolved Welsh functions; there will be a new requirement for professionals proactively to look for cases or evidence; they will be (b) any person whom the Secretary of State considers appropriate. expected to report only known cases which they encounter (5) A body is exercising “devolved Welsh functions” if its in the course of their usual professional duties. functions are exercisable only in or as regards Wales and are wholly or mainly functions relating to— Furthermore, the position in terms of suspected or at risk cases will remain the same. We expect professionals (a) a matter in respect of which functions are exercisable by the Welsh Ministers, the First Minister for Wales or the Counsel to refer such cases appropriately, as set out in the General to the Welsh Government, or multiagency guidelines on FGM, using the existing (b) a matter within the legislative competence of the National safeguarding framework and procedures. Likewise, the Assembly for Wales. introduction of this duty will not mean that non-regulated (6) The Secretary of State may from time to time revise any practitioners no longer have a responsibility to report guidance issued under this section. cases of FGM, known or otherwise. We will ensure (7) Subsections (2) and (3) have effect in relation to any revised that there is appropriate guidance explicitly to capture guidance. good safeguarding practice for such practitioners. (8) Subsection (4) has effect in relation to any revised guidance Where professionals become aware of cases, the unless the Secretary of State considers the proposed revisions of duty will require them to make a report to the police the guidance are insubstantial. within one month. As we will make clear in the guidance, (9) The Secretary of State must publish the current version of this is a maximum timeframe. We expect the majority any guidance issued under this section.” of reports to be made within shorter timescales. The (2) Consultation for the purposes of subsection (4) of section 5C one-month timeframe allows for exceptional cases where, of the Female Genital Mutilation Act 2003 (inserted by subsection for example, a professional has serious concerns that a (1) above) may be, or include, consultation before the coming into report to the police may result in an immediate safeguarding force of this section.” risk to the child and therefore consultation with colleagues or other agencies prior to reporting is essential. Baroness Williams of Trafford (Con): My Lords, As highlighted by some consultation respondents, in moving this Motion, I will speak also to cases will have safeguarding and criminal elements, Commons Amendments 20, 39 and 49 to 51. Commons which must be considered in tandem. FGM is a criminal Amendment 5 introduces a new mandatory duty for offence and we therefore believe that it is right for health and social care professionals and teachers in reports to be made directly to the police. We recognise England and Wales to report cases of female genital that there may be concerns about this approach and mutilation to the police. The Government are clear that some are of the view that reports should instead that FGM is an extremely harmful crime. It is child be made to social care. However, we are clear that abuse and can cause extreme and lifelong physical and when a report is made, it will not necessarily result in psychological suffering to women and girls. We have immediate arrests or court action. The police will taken a number of steps to put a stop to FGM, work with the relevant agencies to determine the most including a communications campaign to raise awareness appropriate response. of FGM, a suite of resources for front-line professionals In preparing to introduce the duty, we will work and communities, the launch of the Government’s closely with the police to put in place a clear system FGM unit and, of course, the various measures to that supports an effective multiagency response. In strengthen the law included in the Bill. addition, through the new FGM unit, we will work Those in safeguarding professions are of course key with local communities and professionals to explain to helping to achieve this. There is a striking disparity the duty and its primary focus on safeguarding girls between what we know about the likely prevalence of and women to help manage any anxieties or concerns FGM and the number of cases referred to the police. which could prevent communities from engaging with We believe that introducing a mandatory reporting vital services. Where a professional fails to comply duty will both ensure that professionals’ responsibilities with the duty, this will be dealt with in line with in this area are clear and also increase referrals to the existing disciplinary frameworks, which may include police. referral to the relevant professional regulator or the The consultation on how best to introduce a new Disclosure and Barring Service. This approach will mandatory reporting duty closed on 12 January and ensure that the sanctions imposed reflect the specifics we published the Government’s response on 12 February. of the individual case and it takes into account the The proposed duty takes into account the feedback we views of the majority of consultation respondents. We received from a wide range of respondents, including will work closely with the bodies responsible for sanctions healthcare professionals, education professionals, to ensure that due regard is given to the seriousness of community groups and members of the public. The breaches of the duty. duty will apply to all regulated health and social care In addition to the duty, Commons Amendment 6 professionals and teachers in England and Wales in confers on the Secretary of State a power to issue respect of cases of FGM which either are disclosed to statutory guidance on FGM and requires relevant 55 Serious Crime Bill [HL][LORDS] Serious Crime Bill [HL] 56

[BARONESS WILLIAMS OF TRAFFORD] Baroness Williams of Trafford: The noble Baroness individuals to have regard to it. This will take the form is correct. of multiagency guidance for front-line professionals, which will help ensure a more effective response to Baroness Smith of Basildon: So are we discussing FGM, support improvements to multidisciplinary those amendments now? Have they been wrongly grouped? working, and promote effective implementation of the Or are the amendment numbers that the noble Baroness new mandatory reporting duty. The guidance will sit has incorrect? Are we, in fact, discussing Amendments 50 alongside existing guidance and legislation on and 51 rather than Amendments 24 and 25? safeguarding, which will remain unchanged and which are, of course, critical to preventing FGM. Commons Baroness Williams of Trafford: My Lords, I apologise Amendments 20 and 39 provide that the new reporting to the House. Let me clarify the fact that we are duty and statutory guidance will apply to England debating Amendments 50 and 51. and Wales only. Noble Lords will recall that on Report in this Lord Patel (CB): My Lords, I shall speak to House the Bill was amended to provide for FGM Amendments 5 and 6 in particular. Before I start, let protection orders for the purposes of protecting a girl me say that I absolutely agree with the Minister that against the commission of a genital mutilation offence female genital mutilation—FGM—is a horrible procedure, or protecting a girl against whom such an offence had and it is right to criminalise it, with the severest of been committed. Commons Amendments 25 and 26 penalties for anybody involved. I have seen many are essentially consequential to provide for legal aid to adolescent girls and young women whose subsequent be made payable in FGM protection order proceedings. health has been affected by female genital mutilation— Amendment 25 amends Schedule 1 to the Legal Aid, occasionally resulting in death during childbirth, but Sentencing and Punishment of Offenders Act 2012 to much more often in the horrible condition known as provide that civil legal aid may be made available for obstetric fistula, which I have seen in Africa. I am the making, varying, discharging and appealing of therefore totally committed to making sure that this FGM protection orders. The civil legal services available horrible procedure is made illegal and removed. will be subject to the exclusions set out in Parts 2 and 3 During the passage of the Bill through the Commons, of Schedule 1 to LASPO. Part 2 of Schedule 1 makes the Government introduced an amendment to make it clear that certain types of legal aid services are not a duty for regulated healthcare professionals to notify available; for example, those relating to a claim in tort police of female genital mutilation, and the amendment in respect of negligence even when they might otherwise was accepted there. Like the professional organisations— fall within the descriptions of legal services under particularly the regulators of the medical profession, Part 1. the General Medical Council and the British Medical Part 3 of Schedule 1 provides that the civil legal Association, and some of the colleges, particularly the services listed in Part 1 of Schedule 1 do not generally Royal College of Paediatrics and Child Health—I am include advocacy, but this is subject to exceptions. concerned about that amendment. Advocacy in the relevant civil courts, including the Our concern is about the proposed duty to report family court, is already caught by these exceptions. FGM in all known cases in girls and young women However, Amendment 26 ensures that advocacy in under 18. That duty will be a significant step change in proceedings to vary or discharge FGM protection the law. I am not aware of any other circumstances orders in the Crown Court and the magistrates’ court in which healthcare professionals are required to refer is also included within the exceptions so that legal aid patients to the police without any regard to the potential for advocacy will be available in such cases. impact on the patient. That is what concerns me—the The Government consider that an amendment to potential impact on the patients, particularly young the scope of the civil legal aid scheme in England and girls under 18, including 16 to 18 year-olds. Wales is appropriate in these circumstances because of Doctors are required to make the care of patients the important nature of these anticipated proceedings. their first concern, but of course they have to balance Amendment 24, which is also in this group, is a minor that duty against wider public interest considerations. drafting amendment. I know this issue was raised by There are clear circumstances in which they should the noble Baroness, Lady Smith of Basildon, at Third disclose information to an appropriate agency. For Reading so I trust that these amendments will be example, it might be necessary to protect a specific welcome to the Opposition and indeed to my noble person or people, or the public more broadly, from a friends. risk of death or serious harm, or to assist in the investigation or prosecution of a crime. The General Medical Council guidelines in Protecting Children and 5.30 pm Young People: The Responsibilities of All Doctors make Baroness Smith of Basildon: Before the Minister sits that absolutely clear. down, could she clarify something about the amendment The proposed duty, however, allows no scope to numbers? She referred to Amendments 24 and 25, consider the best interests of the child or young person. neither of which is in this group: they were consequential In effect, the duty mandates that the wider public amendments in group 1. The issue of FGM protection interest in investigating whether or not a crime has orders attracting civil legal aid seems to be covered by been committed would always outweigh the girls’ rights Amendments 50 and 51. According to the amendment and interests, including those of the individual child list, government Amendment 24 is in group 1 and or young person. It is difficult to see how that satisfies government Amendment 25 is in group 8. the proportionality argument or requirement of Article 8 57 Serious Crime Bill [HL][2 MARCH 2015] Serious Crime Bill [HL] 58 of the European Convention on Human Rights. It Baroness Howe of Idlicote (CB): My Lords, also means that doctors will sometimes be obliged—I Amendment 5 after Clause 70 is clearly a well intentioned agree, in rare circumstances—to act against what are measure, but I am concerned that if mandatory reporting considered to be the best interests of the patient. That of FGM is implemented in isolation it could have is in conflict with the primary duty of doctors. unintended consequences. Like my noble friend Lord The Royal College of Paediatrics and Child Health Patel I am worried, in particular, that professionals also found that, will have no discretion and will be obliged to report, “there is no credible or conclusive evidence that ... mandatory even when it may not be in the best interests of the reporting … better protects children at risk of harm, and its child. The evidence from other countries where mandatory introduction would undermine that cultural approach of risk and reporting of child abuse in general has been introduced responsibility sharing that has been developed in the current suggests that there could be similar unintended system. Mandatory reporting still raises more questions than it consequences if a duty was introduced for FGM. provides answers”. Most notably: women and girls could be discouraged In response to the Government’s consultation, the from seeing healthcare professionals because of concerns professions argued that any duty to report FGM about catapulting themselves or friends and family should include a “reasonable excuse” for not reporting into criminal investigations; professionals may seek to if it would be contrary to the best interests of the child avoid discussions that could lead to disclosure if they or young person to do so. Further consideration needs are fearful of the consequences; and individuals would to be given to the position of young women between be likely to report on any occasion when they come the ages of 16 and 18. There is no clear line between into contact with a girl who they believe has undergone childhood and adulthood. While under-18s have a FGM, resulting in a girl being visited by police or different status in law, at 16 it is presumed that young social workers on multiple occasions in the short space people have the ability to make a whole range of of time before they are 18, which could be a fairly decisions, including about their own care. Discussions traumatising experience. about the treatment and care of a 17 year-old may be indistinguishable from those relating to an adult. Particular Will the noble Baroness please clarify what would risk may arise in the context of maternity care, and happen in instances where the duty to notify police of here I have a particular concern. A young woman may FGM is not in the best interests of the child? Surely it not present to healthcare services if she fears it will is vital that the guidance on this piece of legislation is result in a referral to the police. Young women who fully and carefully considered, and that experts who have undergone female genital mutilation as children deal with these cases are fully involved. Can she also will be at increased risk during maternity care and clarify the intentions for the guidance on how this childbirth. They require particular and extra care during duty will be implemented, and confirm whether this labour. That duty would undermine the provision of guidance will be subject to full consultation? care that might be given to them. There are many positive aspects to the Bill which I Baroness Meacher (CB): My Lords, I add a few absolutely support. It makes a real difference to the words of strong support to those of my noble friends lives of children and young women. This particular Lord Patel and Lady Howe. It seems that this is trying duty goes counter to that and I wish there was a to deal with the problem after the horse has bolted. As phrase saying that in some circumstances there might the Minister knows, we argued at length earlier in be a need to protect children and young women. If we discussions on the Bill about the need to tackle this cannot change this today, I hope that at least there will matter at source, where these ideas are being pressed—by be a commitment on the Minister’s part to make sure the leaders and religious leaders of some communities that the guidance will reflect our concern. who believe that this is necessary to save you from hell and such matters. To go down this road will be quite Baroness Walmsley (LD): I wish to speak to dangerous, because there will be an inclination by Amendments 5 and 6 and hope that, in the further families and communities to hide these children from consultation on the guidance, the Government will be view. Not only may they not seek medical attention—that able to address the concerns raised by the noble Lord, would be incredibly serious, as my noble friend Lord Lord Patel. I have a question for my noble friend the Patel has said—these girls and women need extra Minister. There is nothing in the amendment about healthcare and may get none at all if they are hidden sanctions for not fulfilling this very serious duty to away. But you can also imagine that these children report a very serious crime, but the letter from the may be hidden away from “ordinary” English schools, noble Lord, Lord Bates, referred to the fact that the because teachers may come to know about what has sanctions would be professional and employment happened, and these families and communities will be sanctions. I wonder whether my noble friend can under more pressure to set up separate schools, not clarify what that means and say why the Government integrating with our society. That would be absolutely feel that such sanctions to this new duty would be any retrograde to encourage in some way. more effective than the professional sanctions that Obviously this is an unintended consequence. I am already exist within professional associations for the sure the Government’s motives are utterly right and sort of misconduct that we are talking about. To pure, but these things can have the most devastating ignore knowledge of such a serious crime is not the unintended consequences, and one can just imagine sort of thing we would expect of a professional. Some the greater isolation, being kept away from healthcare, of us feel that overlooking such a serious crime must schools and so on. These children will be incredibly require a more serious sanction than just leaving it to vulnerable if these amendments go through, and I put the professional associations to deal with. on record again that we need to tackle FGM—and my 59 Serious Crime Bill [HL][LORDS] Serious Crime Bill [HL] 60

[BARONESS MEACHER] consequences has been discussed throughout our debates. goodness, we need to tackle it—at source. It is probably I have just read again the letter from the Minister, far too late in the day, but really it is the community Karen Bradley, to Seema Malhotra MP setting out and religious leaders who need to be stopped when why the Government have brought this new clause they are preaching non-authentic Hadith and pressing forward. A consultation was held on 5 December on for FGM on that unauthentic basis. Even at this late how to introduce mandatory reporting for FGM. As stage I plead with the Minister to take a step back and other noble Lords have said, it is a little strange that think whether this is the right way forward. I profoundly we did not have the benefit of that consultation when believe it is not. The most eminent QC in this country, we held our previous discussions. It would have been Dexter Dias, who knows about these things, would say helpful to have the consultation and the Government’s the same. Go to the community and religious leaders; response, but they were not made available to us, do not try and deal with this after the event when these although the other place did have the benefit of seeing children have already been tortured. them when it discussed these issues. The purport of the amendments which have been 5.45 pm put forward in your Lordships’ House on this issue is Lord Berkeley of Knighton: My Lords, as the noble not just to deal with the problem afterwards, but to Lord, Lord Bates, knows, I have taken a great interest prevent it happening in the first place. It is also about in this subject. I am in favour of the Government sending a strong message that FGM is something we taking every action they can, but having listened to my cannot tolerate at all. I have some concerns about noble friends on these Benches, I have to say that we mandatory reporting, but it is to be hoped that they should row back from this new clause. As I listened to can be addressed in the guidance and the review my noble friend Lord Patel, I could imagine the process. I think it is clear that we need to ensure that circumstances of a seriously ill child whose parents where health professionals are aware of instances of knew that if they took her a hospital and she was FGM, they should report them so that action, whether examined, they would be putting themselves at risk. that be medical or legal, can be taken. The concerns As we have heard, we could be creating an even worse which have been raised are ones that the Government situation. We have to try to seize the whole problem of will want to address when they are considering the FGM, but it must be done at an earlier stage. I have guidance. If they find that there is any evidence of suggested before that if there is to be anything mandatory, women not presenting to medical practitioners for perhaps it must be examination at a much earlier care during pregnancy, it should be examined. stage, but that is another matter.

Baroness Howarth of Breckland: My Lords, I found Baroness Meacher: I just want to check whether the this quite extraordinary when I read about it in the noble Baroness agrees that reporting to the police newspapers. That is not because I do not think that the could actually deter families from taking these children Government should be taking a strong line—I admire to the health services. In saying that reporting needs to that—and not because we need to take action against happen, I am very worried if this goes to the police. FGM—many of us have spoken about it—but because we had an in-depth debate in which the noble Baroness, Baroness Smith of Basildon: I am not sure that I Lady Walmsley, and I held slightly different views accept that a family whose daughter had undergone about mandatory reporting. When we looked at FGM and became seriously ill would not want that to mandatory reporting in its broader sense, it was clear be dealt with. It is quite a big jump to make, to put that the differences between us were all about unintended pressure on a family in that way. The noble Baroness consequences and not having thought through the says that they will not, but if that becomes evident, the issue from beginning to end. I was under the impression Government will have to look. As I said, I have slightly that mandatory reporting was to be taken away and conflicted views on this, but the House of Commons, I there would be an in-depth look at the issue with a am sure, had the benefit of the consultation—although different sort of consultation, after which we would that was slightly split. I look forward to the response come at it again. FGM is at the most complicated end from the noble Baroness the Minister. of mandatory reporting, as we have heard from my I come back to the point on legal aid. One issue that noble friends, so I had assumed that it would be I raised with the Minister in earlier debates was whether included in that further debate. I am surprised that the legal aid would be available for FGM orders. At that provision has been brought forward in this way, even time, she was unable to confirm that they would. We though most of us would want any possible action raised the point that without such legal aid, which is taken to prevent FGM. available for forced marriage orders, there would be no My final point is that this clause cuts across the FGM orders. The point about prevention, which the basic principle that the child’s needs are paramount, noble Baroness made, is that unless you have the something which is repeated in all our children’s legislation. orders, there is not going to be prevention of FGM. Here, the child’s needs are no longer paramount—the We have had several conversations; the noble Baroness community wish to take action becomes paramount. I promised to write to me on several occasions, and I hope that this will be taken away looked at again in think she was frustrated that no correspondence was relation to the arguments which have been made. forthcoming. I am pleased now that the Government have confirmed that legal aid will be available for Baroness Smith of Basildon: My Lords, what is FGM orders. So we support the new clause, but I always clear when we debate FGM issues is how would be grateful if she could address some of the complex they are. I think that the law of unintended points raised in this debate, because justified concerns 61 Serious Crime Bill [HL][2 MARCH 2015] Serious Crime Bill [HL] 62 have been raised. That does not take away from the police. However, I reassure noble Lords that a report fact that the whole purpose of this is to try to prevent to the police will not necessarily immediately trigger a FGM from ever occurring and women from suffering criminal investigation: when a report is made, the such abuse. police will work with the relevant agencies to determine the most appropriate course of action. In preparing to Baroness Williams of Trafford: My Lords, it is introduce the duty, we will work closely with the police probably best to start with the point that not only is to ensure that a clear reporting system is in place prior FGM illegal but it has been illegal for 30 years, and to its introduction. In addition, we will have ensured that all healthcare professionals—indeed, all professionals that there is a reasonable timeframe within which —who come into contact with children have a general professionals are required to make the report to the safeguarding duty to those children. That is the underlying police, to allow time for consultation with other agencies issue within the law, and it has been so, as I said, for in sensitive or complex cases. three decades. As noble Lords have said, FGM is a Finally, I confirm that the Government will ensure terribly complex issue, and there are things beyond the that there is adequate time for consultation with law that we also need to do in terms of changing the stakeholders prior to the introduction of statutory culture and the practice of FGM. guidance. I will start with the points made by the noble Lord, I again apologise to the House for the confusion Lord Patel. The mandatory duty to report has actually about the provisions relating to legal aid. The relevant received support from organisations such as the Royal amendments in this group are indeed Commons College of Nursing and the Royal College of Midwives, Amendments 50 and 51. I think the noble Baroness, but the noble Lord pointed out the concerns raised by Lady Smith, asked what legal aid will be available for the BMA. It has actually been supportive of the orders made in criminal proceedings. The Commons majority of the FGM measures in the Bill but it has amendments make civil legal aid available for victims highlighted some concerns in respect of the mandatory and third parties who may wish to apply, vary or reporting duty, particularly what it means for victims. discharge an FGM protection order. The Government appreciate that introducing a mandatory reporting duty will impact on many different sectors, and we recognise that this is very complex. However, Baroness Smith of Basildon: The noble Baroness is we believe that it will be an important step forward in aware that the orders are not based on criminal tackling FGM. proceedings; they are civil orders. The confusion was caused because the Government have placed a civil FGM is already a hidden crime, and introducing a provision within the criminal law, whereas our proposal clear mandatory duty will provide clarity for professionals was for a civil provision, wholly within civil law. I on their responsibilities to report to the police. It will think that is what, partly, created the confusion around also lessen the onus on the girls to report FGM by legal aid. It is purely a civil matter, although it sits putting responsibility on those whose job it is to within criminal legislation. safeguard girls who have been victims of what is a crime and what is child abuse. Of course, we recognise that there are existing legal and professional responsibilities Baroness Williams of Trafford: I thank the noble in relation to safeguarding, and the new duty will have Baroness for clarifying that. I think I referred to this in to be seen in the context of the existing statutory my introduction, but the Government have made some guidance—for example, Working Together to Safeguard quite tough choices in deciding which matters would Children. remain in scope of legal aid. The ministry took account Some concern has been expressed that the duty may of the importance of the issues at stake, the individual’s act as a barrier to individuals accessing healthcare ability to present their own case and the availability of services. The Government recognise this risk, which is alternative sources of funding. Legal aid continues to why we are clear that there will be no requirement for be available in the most serious of cases, for example professionals to work outside their usual professional where people’s life or liberty is at stake or where their duties to actively seek out cases of FGM. We have children may be taken into care. Legal aid is available focused the duty on known cases of FGM rather than where not providing it would be likely to result in a suspected ones, and the new FGM unit working with breach of the individual’s rights under the European government departments is conducting a programme Convention on Human Rights or European law. I of outreach with professionals and front-line communities, confirmed in my remarks at the beginning that civil which will explain how the new duty, in tandem with legal aid will be provided. other government reforms, will work in practice. We My noble friend Lady Walmsley asked about the are also updating the multiagency guidelines on FGM progress of the consultation on whether to introduce a and putting them on a statutory basis to support more general duty to report suspected abuse of children effective implementation of the duty. and vulnerable adults. As my noble friend will know, There were also concerns about cases being referred following the earlier debates on the Bill in the House to the police and the fear that this may act as a further the Government committed to undertake such a deterrent to individuals accessing services. The consultation, and the outcome of that consultation Government have carefully considered the options for will be reported on within 18 months of Royal Assent. when referrals should be made, and we recognise that My noble friend also asked about sanctions for cases have both a criminal and a safeguarding element. failing to report cases of FGM. The proposal will use FGM is a criminal offence and we therefore believe existing disciplinary frameworks to consider sanctions. that the most appropriate reporting route is via the Given that in health these may include General Medical 63 Serious Crime Bill [HL][LORDS] Serious Crime Bill [HL] 64

[BARONESS WILLIAMS OF TRAFFORD] Baroness Finlay of Llandaff (CB): Before the noble Council and Nursing and Midwifery Council fitness Baroness sits down—I was waiting in case she covered to practise proceedings, there can be a wide variety of an area which I think may be important—can she recommendations made as to suitable action, which confirm to the House that the guidance about the may include retraining, supervision or other measures. investigation of a reported case will include the ability to see whether it may be an index case in an area where 6pm FGM is being promoted, so that the prevention aspect The noble Baroness, Lady Meacher, made a very of discovering one case can be built in and built on so good point about legislation not always being the that the community at risk is actively targeted with answer, and I think I covered that in my earlier remarks. education and support to try to ensure that the girls at It is around changing the culture, raising awareness risk who are not yet subject to FGM are more adequately and improving training for professionals, and people protected? being aware that this is—and has been for so many years—a criminal offence. Baroness Williams of Trafford: My Lords, I do not Lord Patel: I am sorry to interrupt the Minister. know the ins and outs of particular cases, but I see She repeated that it has been a criminal offence for where the noble Baroness is coming from, which is 30 years and I absolutely agree. However, what has that there may be learning about raising awareness in been a criminal offence for 30 years is to perform the communities involved. She certainly has a point, female genital mutilation, and we have failed to prosecute but perhaps I could write to her in due course. anybody for doing so. This might be a means to provide encouragement when a prosecution does come Motion agreed. along, but we have to be aware, as my noble friend Lady Howe said, that there are serious things that may happen because of the amendment. If this amendment had already been in the Bill, we would have explored it Motion on Amendments 7 and 8 in Committee in great depth. I am encouraged that the Moved by Lord Bates Minister says the guidance in the consultation will be wider. I hope that in the formulation of the consultation That this House do agree with the Commons in document, the noble Baroness and Ministers will also their Amendments 7 and 8. consult the professionals and teachers. It is not only 7: After Clause 70, insert the following new Clause— the British Medical Association that did not like this “Controlling or coercive behaviour in an intimate or family amendment; it is also the General Medical Council, relationship which is the regulator. If I do not report a case, I am (1) A person (A) commits an offence if— breaking the law after this legislation, the General (a) A repeatedly or continuously engages in behaviour towards Medical Council will be obliged to investigate me and another person (B) that is controlling or coercive, it might be to the point that it removes my licence to (b) at the time of the behaviour, A and B are personally practise—I am temporarily still licensed to practise connected, (c) the behaviour has a serious effect on B, and though maybe not for long. Therefore, it is a serious (d) A knows or ought to know that the behaviour will have a amendment to address. serious effect on B. (2) A and B are “personally connected” if— Baroness Williams of Trafford: I thank the noble (a) A is in an intimate personal relationship with B, or Lord and pay tribute to his years and years of experience, (b) A and B live together and— of which I have none. I take his point that although it (i) they are members of the same family, or has been a criminal offence for 30 years, there have not been any prosecutions brought. This legislation has (ii) they have previously been in an intimate personal relationship with each other. not come without extensive consultation with a variety (3) But A does not commit an offence under this section if at of different stakeholders or without raising awareness the time of the behaviour in question— within the population as a whole—that is why the Girl (a) A has responsibility for B, for the purposes of Part 1 of the Summit sought to raise awareness. The noble Lord is Children and Young Persons Act 1933 (see section 17 of that absolutely right: it will not be done by legislation alone. Act), and The consultation will involve a wide range of (b) B is under 16. stakeholders. What we had before was certainly not (4) A’s behaviour has a “serious effect” on B if— perfect or else we would not be revisiting it 30 years (a) it causes B to fear, on at least two occasions, that violence later. We can only hope that, by raising awareness, will be used against B, or trying to change culture and putting in place the (b) it causes B serious alarm or distress which has a substantial various measures that we have, we will actually get to a adverse effect on B’s usual day-to-day activities. better place for these girls in the future. We are going (5) For the purposes of subsection (1)(d) A “ought to know” to watch progress as time goes on. that which a reasonable person in possession of the same information I will just mention to the noble Lord, Lord Patel, would know. that we received 150 responses from a wide range of (6) For the purposes of subsection (2)(b)(i) A and B are different areas when the consultation closed on 12 January members of the same family if— and we have had various workshops with healthcare (a) they are, or have been, married to each other; professionals. I hope that gives him some comfort (b) they are, or have been, civil partners of each other; (c) they regarding the Government’s intention. are relatives; 65 Serious Crime Bill [HL][2 MARCH 2015] Serious Crime Bill [HL] 66

(d) they have agreed to marry one another (whether or not the relationships where abuse is interspersed with periods agreement has been terminated); of affection. That rules out those cases of domestic (e) they have entered into a civil partnership agreement (whether abuse where controlling and manipulative perpetrators or not the agreement has been terminated); play on the affection of their partners or family members (f) they are both parents of the same child; to avoid detection. (g) they have, or have had, parental responsibility for the same The Government understand that coercive and child. controlling behaviour can be harder to recognise, but (7) In subsection (6)— can be every bit as damaging to its victims as physical “civil partnership agreement”has the meaning given by section 73 violence. To quote one victim of domestic abuse who of the Civil Partnership Act 2004; responded to our consultation, “child” means a person under the age of 18 years; “my bruises faded, but the psychological scars didn’t”. “parental responsibility” has the same meaning as in the Children Act 1989; In recognition of the harm that coercive and controlling “relative” has the meaning given by section 63(1) of the behaviour can do, the Government have expanded the Family Law Act 1996. non-statutory definition of domestic violence and abuse (8) In proceedings for an offence under this section it is a to send a clear message that abuse is more than just defence for A to show that— physical. Last summer, we ran a consultation to ask (a) in engaging in the behaviour in question, A believed that he whether the law also needs to be strengthened to or she was acting in B’s best interests, and provide better protection to victims of domestic abuse. (b) the behaviour was in all the circumstances reasonable. Eighty-five per cent of respondents told us that the law needs to be strengthened; 55% highlighted the (9) A is to be taken to have shown the facts mentioned in subsection (8) if— (a) sufficient evidence of the facts is adduced need for a new offence to make sure that a person to raise an issue with respect to them, and causing someone they are in a relationship with to live (b) the contrary is not proved beyond reasonable doubt. in constant fear faces justice for their actions. (10) The defence in subsection (8) is not available to A in Commons Amendment 7 provides for just such an relation to behaviour that causes B to fear that violence will be offence. The new offence makes it clear that abusing used against B. someone in a relationship is every bit as serious (11) A person guilty of an offence under this section is liable— as stalking or harassing a stranger. It applies to repeated (a) on conviction on indictment, to imprisonment for a term or continuous behaviour in relationships which, not exceeding five years, or a fine, or both; when incidents are viewed in isolation, may appear (b) on summary conviction, to imprisonment for a term not unexceptional, but has a significant cumulative impact exceeding 12 months, or a fine, or both.” on the victim’s everyday life. It causes them to feel fear, 8: After Clause 70, insert the following new Clause— alarm or distress. “Guidance When I first spoke on this issue in the House last (1) The Secretary of State may issue guidance about the year, I said that legislation on this issue must be investigation of offences under section (Controlling or coercive approached judiciously. I stand by that. There is a behaviour in an intimate or family relationship) to whatever persons balance to be struck. Every relationship has its own the Secretary of State considers appropriate. power dynamics and this is not about outlawing arguments (2) The Secretary of State may revise any guidance issued or saying that couples cannot disagree. It must be clear under this section. (3) The Secretary of State must arrange for any that the new offence does not apply to volatile relationships guidance issued or revised under this section to be published.” which stop short of being abusive. To capture this balance, key elements of the new offence are the need Lord Bates: My Lords, I shall speak also to Commons to establish the repeated or continuous nature of the Amendments 17 and 21. behaviour and the ability of a reasonable person, We can all agree that domestic abuse is a serious whether part of or external to the relationship, to and pervasive crime; a point well made by the noble appreciate that the behaviour will have a serious effect Lord, Lord Wigley, on Report. It is shocking that in on its victim. the past year more than 2 million people in England We have made sure that the new offence does not and Wales were abused by those closest to them, and duplicate existing criminal law. Child abuse does not even more shocking that 85 women were murdered by fall into the ambit of the new offence because it is a current or former partner. covered by existing offences. Nor does the new offence However, comparing those figures to the number of apply to extended family members who have never people who reach out for help and access the criminal lived with the victim, because stalking legislation would justice system shows that, despite prosecution and capture those circumstances. conviction figures reaching their highest ever levels We must also be on our guard against the application under this Government, domestic abuse is still vastly of the new offence in circumstances where control underreported. A stark comparison of crime survey may be necessary to secure a loved one’s safety. For and Crown Prosecution Service figures suggests that example, I am sure that none of us would want to see just one in 20 of those abused by their families and the spouse of a person struck by mental illness imprisoned partners have access to justice. for medicating them or protecting them from situations The sad fact is that we are still grappling with a which may cause them harm. I am equally sure that we reality where many people think a crime has been would not want to see the parents of an unruly teenager committed in a relationship only if violence is involved. convicted for proportionately curbing the behaviour Even the courts have taken the view that stalking and of their wayward child. That is why we have included a harassment legislation does not apply in ongoing defence in the framework. 67 Serious Crime Bill [HL][LORDS] Serious Crime Bill [HL] 68

[LORD BATES] examine how successful this is, they also look at the Of course, we also need to be sure that manipulative resources that are available for the police to take the perpetrators cannot use the defence to escape justice. action that is needed. To address this, the defence will not be available where the victim has been caused to fear violence. To rely on the defence, a defendant will need to show that a reasonable person would agree that their behaviour 6.15 pm was reasonable in all the circumstances. This is not an Lord Bates: My Lords, I am grateful to the noble easy test to meet if you have perpetrated a campaign Baroness for welcoming the amendment and for her of control against another person. additional emphasis on the point that this could be The maximum sentence of five years’ imprisonment seen as a preventive measure. That is absolutely right for the new offence recognises the damage that coercive and I hope that that will be the case. or controlling behaviour can do to its victims and is On the noble Baroness’s specific point, the Home commensurate with the maximum penalty for stalking. Secretary has not shied away from the fact that the Of course, the new offence cannot be implemented police need to do more. That is why she has launched without an effective police response, so the work that the review by Her Majesty’s Inspectorate of Constabulary the Home Secretary is doing to drive improvements on the police response to domestic abuse. That report through her national oversight group on domestic identified that police practice in using the current law abuse remains as high a priority as ever. is inadequate. The chief inspector also highlighted The new offence, together with the guidance for failures in leadership that mean that strategic priorities investigators provided for in Commons Amendment 8, are not being realised in front-line policing and there is will make it easier for the police to protect victims and a front-line culture in which domestic abuse is often bring those who abuse them to justice. This will send a not regarded as a serious crime. The Government are clear message that domestic abuse in all its forms will clear that this is not good enough. Lasting, meaningful not be tolerated in our society.Commons Amendments 17 improvement must happen now; and to make sure that and 21 are consequential on Amendments 7 and 8. change happens, the Home Secretary has established I beg to move. and is chairing the new national oversight group. This work is the Government’s main priority on domestic abuse and will lead directly to better protection of Baroness Smith of Basildon: My Lords, I welcome victims. However, in addition to important operational these amendments. As a long-term patron of Basildon improvements, the new offence will strengthen the Women’s Aid, for over 20 years, I am very much aware protection available to victims trapped in cycles of that coercive and intimidating behaviour is often a abuse and help front-line agencies provide a better precursor to violent behaviour. I have spoken to women response to this serious crime. I appreciate the cross-party and found that it can start with, “Oh, I like to see you support on this issue. in that dress”. In one case, it went from what somebody wore and whether they wore make-up through to, if Motion agreed. they even washed, they were seen as trying to attract other men, and that then led to violence. It can start very simply with what somebody wears or make-up Motion on Amendments 9 and 10 and end in violent behaviour. Moved by Lord Bates Not only does the amendment recognise that That this House do agree with the Commons in controlling or coercive behaviour in such relationships their Amendments 9 and 10. is dangerous, it could also be a preventive measure, because it could nip the problem in the bud before it 9: After Clause 71, insert the following new Clause— gets to violent and more abusive behaviour. The “Throwing articles into prisons amendment recognises how dangerous such controlling After section 40CA of the Prison Act 1952 (inserted by behaviour is. Even if it does not lead to violent behaviour, section 71 above) insert— controlling behaviour is dangerous and corrosive to “40CB Throwing articles into prison the individual. That is recognised in the courts already. (1) A person who, without authorisation, throws any article or Ongoing, day-in, day-out controlling behaviour has substance into a prison is guilty of an offence. led to cases where the woman being victimised has (2) For the purposes of subsection (1)— turned on and been violent towards the perpetrator of (a) the reference to an article or substance does not include a such behaviour. The courts have now recognised that reference to a List A article, a List B article or a List C article (as slow-burn behaviour. Intimidation has consequences, defined by section 40A); so the amendment is very welcome. (b) the reference to “throwing” an article or substance into a prison includes a reference to doing anything from outside the The Minister talked about the effective police prison that results in the article or substance being projected or response. Passing a law does not, on its own, make conveyed over or through a boundary of the prison so as to land something happen, and he recognised that. In my inside the prison. area, the number of police officers and the pressure (3) In proceedings for an offence under this section it is a that they are under has an impact on the police’s defence for the accused to show that— ability to investigate and act on such issues. Too often, (a) he reasonably believed that he had authorisation to do the domestic violence can, as the noble Lord and the act in respect of which the proceedings are brought, or Home Secretary have recognised, come further down (b) in all the circumstances there was an overriding public the list of priorities. I hope that, when the Government interest which justified the doing of that act. 69 Serious Crime Bill [HL][2 MARCH 2015] Serious Crime Bill [HL] 70

(4) A person guilty of an offence under subsection (1) is “communications provider” means a person providing a service liable— that consists in the provision of access to, and of facilities for (a) on conviction on indictment, to imprisonment for a term making use of, any telecommunication system (whether or not not exceeding two years or to a fine (or both); one provided by that person); “court” means— (b) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine (or both). (a) in relation to England and Wales, the county court; (5) In this section “authorisation” means authorisation given (b) in relation to Scotland, the sheriff; for the purposes of this section; and subsections (1) to (3) of “custodial institution” means— section 40E apply in relation to authorisations so given as they (a) in relation to England and Wales, a prison, young offender apply to authorisations given for the purposes of section 40D.”” institution, secure training centre or secure college; 10: After Clause 71, insert the following new Clause— (b) in relation to Scotland, a prison or young offenders institution; “Prevention or restriction of use of communication devices by “enactment” includes— prisoners etc (a) an enactment contained in subordinate legislation within (1) Regulations may make provision conferring power on a the meaning of the Interpretation Act 1978; court to make a telecommunications restriction order. (b) an enactment contained in, or in an instrument made (2) “Telecommunications restriction order” means an order under, an Act of the Scottish Parliament; requiring a communications provider to take whatever action the “telecommunication system” means any system (including the order specifies for the purpose of preventing or restricting the use apparatus comprised in it) that exists (whether wholly or partly in of communication devices by persons detained in custodial institutions. the United Kingdom or elsewhere) for the purpose of facilitating (3) Regulations under this section must— the transmission of communications by any means involving the use of electrical or electro-magnetic energy.” (a) specify who may apply for telecommunications restriction orders; (b) make provision about giving notice of applications; Lord Bates: My Lords, I shall speak also to Amendments 16, 22, 23 and 28. Control and order is a (c) make provision conferring rights on persons to make representations; fundamental foundation of prison life. Without it, safety cannot be guaranteed and the rehabilitation (d) specify the matters about which the court must be satisfied if it is to make an order; of prisoners cannot take place. It is known that the throwing of packages containing contraband, including (e) make provision about the duration of orders (which may psychoactive substances—often inappropriately referred include provision for orders of indefinite duration); to as “legal highs”—is a key method of supplying (f) make provision about variation (including extension) and drugs into prisons. In some cases, it is co-ordinated by discharge of orders; criminal gangs involved in a wide range of criminality. (g) make provision about appeals. The presence of new psychoactive substances in (4) Regulations under this section may— prisons, now drugs of choice among many prisoners, (a) make provision for a telecommunications restriction order is a significant and growing problem that we must to specify that a requirement of the order is not to apply in address urgently. These drugs are having an increasingly particular circumstances; destructive impact on prison security and order and (b) make provision authorising a court to include in an order a the welfare of individual prisoners, with increasing requirement for the person applying for the order to pay any or all evidence of links to mental health problems and violent of the costs of complying with it; behaviour. (c) make provision about time limits for complying with While it is currently a criminal offence under the orders; Prison Act to convey a number of items including (d) make provision about enforcement of orders (which may controlled drugs into a prison, non-controlled substances include provision creating offences); are not covered by that legislation. As such, those (e) make provision about costs (or, in Scotland, expenses) in caught trafficking a range of new psychoactive substances respect of legal proceedings; have been able to evade justice. This is not acceptable. (f) make different provision for different purposes; Commons Amendment 9 will create a new offence (g) make incidental, consequential, supplementary or transitional of throwing or otherwise projecting any article or provision, including provision applying any enactment (with or substance into a prison without authorisation. The without modifications). clause will criminalise the trafficking of new psychoactive (5) The power to make regulations under this section is substances into our prisons and also captures the exercisable— throwing of other articles into prison that could pose (a) in relation to England and Wales, by statutory instrument a threat to prison staff and prisoners. We must not made by the Secretary of State; tolerate those who damage prison health and order by (b) in relation to Scotland, by the Scottish Ministers. throwing items such as new psychoactive substances (6) A statutory instrument (other than a Scottish statutory into prisons. This new offence will help to stop this instrument) containing regulations under this section is not to be harmful practice. made unless a draft of the instrument has been laid before, and Commons Amendment 10 seeks to prevent the approved by a resolution of, each House of Parliament. unauthorised use of mobile phones in prison. The (7) Regulations made by the Scottish Ministers under this unauthorised use of mobile phones presents serious section are subject to the affirmative procedure. risks to prison security. They have been used to plan (8) In this section— escapes and support the commission of serious “communication device” means an item specified in section 1(3) crimes by organised criminals. In January, we saw the of the Prisons (Interference with Wireless Telegraphy) Act 2012 sobering reports of the conviction of a prisoner in (mobile telephones etc); Wandsworth prison who had used his mobile phone to 71 Serious Crime Bill [HL][LORDS] Serious Crime Bill [HL] 72

[LORD BATES] On the specific issue of SIM cards, the National arrange the importation of machine guns into this Offender Management Service currently uses a range country from Germany. I am sure that we all agree of different techniques to detect and seize phones that such use of mobile phones in prison is completely already in prisons, including the use of detection unacceptable. technology and regular cell and prisoner searches. The National Offender Management Service uses a However, despite the success of these approaches, as range of techniques to detect and seize phones in mobile phone technology advances and the size of prisons. However, despite the success of these methods, handsets decreases it is becoming easier for prisoners as mobile phone technology advances and the size of to conceal illicit phones and move them around the handsets decreases, it is becoming easier for prisoners prison estate. It is for the Crown Prosecution Service to conceal illicit phones in prison. Disconnecting phones to decide whether to prosecute an individual for possessing would be a cost-effective and future-proofed method a mobile phone in custody. Due to the way in which to prevent the unauthorised use of phones in prison. mobile phones are typically used in prisons, with Mobile network operators have asked for a clear legal multiple prisoners potentially sharing one phone, it is framework to support disconnection. Amendment 10 often not possible to attribute handsets and SIMS to will therefore enable the Secretary of State—or, in specific individuals. Scotland, Scottish Ministers—to make regulations In many ways, I agree with the noble Lord that conferring a power on the civil court to make a identifying the number on the SIM card is tremendously telecommunications restriction order. Such an order difficult when you are still searching for the device. will require a mobile network operator to disconnect However, in the light of experience, we are simply those SIM cards and handsets that are found to be in trying to make it as difficult as possible for the individuals use in prisons without authorisation, effectively putting concerned to do this. NOMS uses a range of measures those devices beyond normal operational use. to stop phones and SIM cards getting into prisons. In the unlikely event that a genuine customer’s However, due to the high number of deliveries, post phone is disconnected in error, NOMS will advise the items and individuals entering and leaving prisons mobile network operator that the telecommunications each day, it is impossible entirely to prevent SIMs and restriction order no longer applies. This will allow the handsets making their way on to the prison estate. network operator to expedite the reconnection of Those are the points that I have, which I hope have the service. This will be done quickly, without the need been some help. There might just be some communications to return to court to vary the order. The customer’s data on their way to help me. The signal of an phone can still be used to call the emergency services, unauthorised phone or SIM card can be detected should that need arise. As an additional safeguard, without physically seizing the phone SIM in question. NOMS will report annually to the Interception of Blocking has a role but can be expensive to use. The Communications Commissioner, providing the details answer is therefore probably quite straightforward—it and frequency of any erroneous disconnections for is now, anyway. Through the detection devices we can scrutiny by the commissioner’s office. identify a SIM, even if we have not managed to locate It is unacceptable that prisoners should continue to it, and block it in the process. I hope that with that use mobile phones to carry out criminal activity outside general reassurance, the House will accept these prison. Having the power to disconnect illicit phones amendments. in prison will help to tackle that flagrant disregard for the restraints of their incarceration. Our view is simple: Motion agreed. we must constantly seek ways to improve prison security. These new offences will do exactly that. The other Motion on Amendment 11 amendments in this group are consequential on these two new clauses. I commend these amendments to the House. Moved by Lord Bates That this House do agree with the Commons in Lord Harris of Haringey (Lab): My Lords, this is their Amendment 11. pure curiosity on my part but, in relation to Amendment 10, might I understand how it would be 11: After Clause 73, insert the following new Clause— possible to tell the communications providers that “Codes of practice about investigatory powers: journalistic they should apply a telecommunications restriction sources order to a specific SIM card unless said SIM card had In section 71 of the Regulation of Investigatory Powers Act 2000 (issue and revision of codes of practice), after subsection (2) already been seized and obtained by the prison insert— authorities—in which case, why would it be needed? “(2A) A code of practice under subsection (1) that relates Also, what steps have been taken to look at technological (expressly or otherwise) to the exercise and performance, in systems that would jam the signals inside prisons? connection with the prevention or detection of serious crime, of powers and duties conferred or imposed by or under Part 1 of this Act— Lord Bates: Those are very reasonable points to (a) shall include provision designed to protect the public make. On general jamming in the prison compound, I interest in the confidentiality of journalistic sources; recognise of course that some individuals working (b) shall not be issued unless the Secretary of State has first within that compound need to have mobile devices, consulted the Interception of Communications Commissioner which can be used to communicate. By that, I am and considered any relevant report made to the Prime Minister referring to the staff prison officers. under section 58.”” 73 Serious Crime Bill [HL][2 MARCH 2015] Serious Crime Bill [HL] 74

Lord Bates: My Lords, I shall speak also to Commons for applications to determine the source of journalistic Amendments 14, 30 and 34. I will first deal with the information. Legislation will be required in the next Commons amendments. Parliament in the field of investigatory powers to give Commons Amendment 11 relates to the use of effect to the recommendations of David Anderson QC, powers under Part 1 of the Regulation of Investigatory the Independent Reviewer of Terrorism Legislation, Powers Act—RIPA—to identify journalistic sources. which will give Parliament the opportunity to put into The House will recall that this important issue was law the full recommendation of the independent raised by my noble friend Lord Strasburger on Report commissioner. I hope that the Government’s approach in October. I hope I speak for the whole House when I provides reassurance to your Lordships that the say that a free press is fundamental to our democracy Government take very seriously the issue of the protection and nothing should be done which might endanger of a free press and free expression. that. I hope that Commons Amendment 11, in combination with the other measures I have outlined, including a When the issue was before us previously, I said that requirement to use the judicially authorised production it would be premature to take action in advance of order route and a commitment to future legislation, knowing the findings of a report into the issue by will assure your Lordships of the Government’s intent the independent Interception of Communications in this area. I reiterate that the Government are committed Commissioner. We now know the commissioner’s findings to giving full effect to the recommendations made by and the Government immediately accepted in full the the Interception of Communications Commissioner. recommendations contained in his report when it was We are doing as much as we can in the Bill, given the published last month. Those included that there should limitations of its scope, and will return to this issue in be judicial authorisation of requests for communications the next Parliament. I recognise that my noble friend data which are intended to determine the source of Lord Strasburger would like the Bill to go further. I journalistic information. While the commissioner did look forward to hearing what he has to say about his not find widespread or systematic abuse, and found Amendment 11A and I will respond to that when that the number of cases where police forces had winding up. In the mean time, I invite your Lordships sought to obtain communications data for the purpose to agree with the Commons amendments. of determining journalistic sources were few, he found that a lack of sufficient care and attention in some 6.30 pm applications, including in the consideration of the implications for freedom of expression, was such that we needed to act. Motion on Amendment 11A (as an amendment to Amendment 11) We have not been able to bring forward in the Bill the legislative changes required to give full effect to the Moved by Lord Strasburger commissioner’s recommendation relating to judicial That this House do agree with Amendment 11A as authorisation, given that the scope of the Bill is limited an amendment to Commons Amendment 11. to serious crime. However, I trust that Commons 11A: Line 10, at end insert— Amendment 11 will make it clear that we will address “(aa) shall include provision designed to protect the the underlying principle as far as possible when we confidentiality of personal information obtained in can. It provides that any code of practice issued under connection with a person’s acting as a minister of religion, RIPA that deals with the use of the investigatory as a healthcare professional or as a Member of Parliament; powers under Part 1 of that Act in relation to the (ab) shall include provision about the circumstances in prevention or detection of serious crime shall include which notice of legal proceedings relating to notices and provisions which protect the public interest in the authorisations under Part 1 of this Act in respect of data confidentiality of journalistic sources. It also requires should be given to persons to whom the data relates;” the Secretary of State to consult the Interception of Communications Commissioner and to have regard to Lord Strasburger (LD): My Lords, when this Bill any relevant reports that he has made. was last debated in another place, the Home Office rejected a new clause tabled by Julian Huppert and Noble Lords will also be aware that we intend to lay backed by cross-party Back-Benchers that was very very shortly for parliamentary approval the draft similar to this Amendment 11 but had a number of acquisition of communications data code of practice. key differences. My amendment seeks to probe the That follows a public consultation on the draft code justification, if there is any, for the Government’s and addresses both the responses to that consultation omission of those provisions. and the Interception of Communications Commissioner’s The first of these relates to the protection that is recent report. The code, when approved, will require due to other privileged material, as it is rightly intended law enforcement to use production orders, which are to be provided for journalistic material. This is what judicially authorised, under the Police and Criminal might be called medical privilege, religious or spiritual Evidence Act 1984—or the equivalents in Scotland and privilege and elected representative privilege. When an Northern Ireland—for applications for communications individual makes contact with a doctor, priest or MP, data to determine journalistic sources. they are entitled to a higher level of confidentiality Nevertheless, it is clear that a long-term solution than applies to other matters. Therefore, just as journalistic will have to wait until after the election. However, to material should be subject to a process involving judicial be clear about our intent, the Government published authorisation before communications data are accessed last week a draft clause that will give full effect to the by the police, so should this sort of communications commissioner’s recommendation on judicial authorisation data. 75 Serious Crime Bill [HL][LORDS] Serious Crime Bill [HL] 76

[LORD STRASBURGER] it will be appropriate also to provide that that notice The justification for providing protection in respect does not have to be given when there is a risk that such of journalistic material in RIPA, provided by the notice might significantly prejudice a criminal investigation Government when they eventually agreed, was that it because, for example, the journalist, himself or herself, was necessary to protect whistleblowers who could be is a suspect, or, if given notice, could destroy evidence, identified by the police accessing the communications or because the journalist might tip off a contact who data of journalists. Surely the same applies in respect was a suspect in a criminal investigation that might of the communications data of Members of Parliament, lead to the suspect destroying evidence or absconding. and their equivalent in the European Parliament, the That is why my amendment seeks to require that Scottish Parliament, the Welsh Assembly and the Northern the code of practice makes provisions for the circumstances Ireland Assembly. Why are the Government in their in which the journalist could and should be notified of new clause providing only that the code of practice an application to access communications data that is should protect whistleblowers’ identity when they go likely to lead to the identification of a confidential to the press and not when they go to their MP to source. It should make no difference to the question of reveal serious wrongdoing? whether, without prejudice to an investigation, a journalist The second justification given by the Government can have the opportunity to make his or her case to the for judicial authorisation before the police could access judge when the data in question are held by a third journalists’ communications data was that there was party telecoms company. confidential information inherent in the “metadata” The courts have found it extremely useful to hear that would be obtained; namely, that someone identifiable representations from the media about non-broadcast had contacted a journalist. Exactly the same applies in footage when the police had applied under PACE for respect of communications data relating to medical the release of that material. The protection of practitioners. The fact that a certain person has been whistleblowers requires that the only people who can in communication with a healthcare professional with speak up for them in court before they are identified a specific specialty in itself reveals confidential information. under this legislation are given notice of the application, Obvious examples are mental health care professionals, subject to not prejudicing the investigation. This is a STD clinics, obstetricians and so forth. The Home concern for my party and the National Union of Office has provided no justification for failing to provide Journalists. protection for such data, nor indeed in providing for Before I finish, I should like to raise a number of safeguards to be written into the code of practice, which questions to the Minister on this area. After Julian the amendments before us deal with. This is even more Huppert tabled his new clause, which would provide peculiar when one sees that the Government’s proposed for judicial oversight in RIPA for applications relating change to the code of practice, which was all they were to journalistic sources, the Government agreed to offering before the IOCCO’s report was published, make a temporary arrangement that the police would makes specific reference to the types of privilege—medical, be directed to use PACE when such circumstances spiritual and Member of Parliament—which my arose, and that this would be achieved by a change to amendment would require a code of practice to deal the code of practice. My first question is: when will the with. It is not good enough for the Home Office to say Government bring forward the proposed code of practice, that it wants to go no further than the recommendations because time is short before Parliament prorogues? in the IOCCO’s report because that report in several Secondly, will my noble friend and officials meet urgently places made reference to the equivalent public interest with me and the National Union of Journalists to that attaches to the confidentiality in these areas. discuss the form of that code of practice? Thirdly, is it The second matter that my amendment deals with intended that the code of practice will, as I have is the question of notice for journalists of an application indicated by this amendment, set out the circumstances to a judge when their confidential sources’ identities in which journalists can be given notice of an application may be revealed. Under PACE, when the journalist under Schedule 1 of PACE, even though the existing holds the confidential material—called “excluded PACE provisions do not provide that they be given material” under PACE—the default position is that notice because they are not holders of the data or the journalist is given notice; that is, that the application material? Fourthly, will the Home Office take the is heard by the court inter partes. When it comes to opportunity in this code of practice to make it clear RIPA and communications data, the person who holds that the police should use PACE procedures for other the material will in general be a telecoms company or forms of privilege before obtaining communications an ISP. They are not going to be in a position, of data relating to the other forms of privilege that I have course, to contest any application. They have no significant set out, as well as to communications data that might interest in protecting the confidentiality of any of the reveal contact between a lawyer and his or her client? information they provide to the police, providing that As I explained, the Government’s previously proposed the police are acting within the law. It is only the change to the code of practice did specify that journalist who can and should, if circumstances permit, consideration needs to be given to these other forms of assist the court in identifying the degree of public privilege on the same basis as that given to journalistic interest in identifying any of his or her sources. privilege. By analogy with the provisions in PACE, it seems The Government, in response to Mr Huppert’s only right that there should be provision in the new proposed new clauses, also published draft clauses legislation that the Government have promised after that they said would be included in any update of the election to provide for judicial authorisation for RIPA legislation following the report of the Anderson journalists to be given notice of the application. No doubt review, early in the next Parliament. Those draft clauses 77 Serious Crime Bill [HL][2 MARCH 2015] Serious Crime Bill [HL] 78 were made available to Members of the other place and Organised Crime made clear in the House of only about an hour before the debate on Mr Huppert’s Commons last week, the Government hope that the new clause. It therefore seems appropriate to use this code of practice will be in place as soon as possible, opportunity to ask the Government to explain some but obviously this will be subject to parliamentary of their provisions before this legislation goes approval. My noble friend asked whether the Minister through, given that Members of the other place were and officials will urgently meet with him and the not given that opportunity before deciding not to press National Union of Journalists to discuss that code of Mr Huppert’s new clause. practice. Officials have already met with the National My first question is why there is a provision in the Union of Journalists early in the process. The NUJ draft clauses to bypass judicial authorisation for RIPA has also responded to the consultation, and we have requests for telecoms data in the circumstances of considered their response. Following the consultation, “imminent threat to life”, when such provision does we have implemented significant changes in the code, not exist in PACE. Why is the threshold used by the as I have stated, and will publish it shortly. However, I Government to decide when the journalistic privilege am of course very happy to meet my noble friend and requirement to put the application before a judge is any others from the NUJ whom he wishes to bring triggered higher in their draft clauses than in PACE? with him. The draft clause states that the requirement for judicial It was also asked whether the code of practice will authorisation is triggered when the purpose in whole set out the circumstances in which journalists can or in part is to identify a journalist’s sources, whereas be given notice of an application under Schedule 1 in PACE the threshold or test, much more appropriately, of PACE. My honourable friend Karen Bradley is that the application is likely to reveal the source. As I addressed the issue of providing notice to the House have explained, I believe there should be circumstances of Commons when considering these amendments in in which a journalist should be notified of an application another place last Monday. It has never been the to access their communications data, and that this practice in this country that those who are subject to a should be included in the new legislation. communications data application are notified. There The Government’s draft clause, unlike PACE, does are obvious reasons for that, given that the crime may not even provide for notice to be given to those who be under active investigation. We do not intend to hold the data. Will the Government explain this or depart from that, but we are of course very happy to reconsider it? The Government’s draft clauses do not listen to concerns. contain the same provision as in PACE for it to be an offence to destroy material sought under an order granted by a judge. Will the Minister please explain 6.45 pm this? Finally, will the Minister explain why in the draft My noble friend asked whether the Home Office clause there is no provision for the judge making the will take the opportunity to make it clear in this decision to have regard to the public interest in maintaining code of practice that the police should use PACE the confidentiality of journalistic sources? This was procedures for other forms of privilege before obtaining proposed by the amendment in the other place. I beg communications data relating to other forms of privilege, to move. such as that between a lawyer and client. As I mentioned, the draft code of practice was consulted on. It already Lord Bates: My Lords, in responding to my noble makes it clear that special consideration must be given friend Lord Strasburger, I pay tribute to him for the to any applications for data that relate to a person who way he has engaged with this issue. We have had some is a member of a profession that handles privileged or conversations about this, and I know that this is a otherwise confidential information. Following the subject he feels very passionately about. He also brings consultation and the commissioner’s recommendations, a great deal of expertise to the role, and a knowledge the detail of the considerations of necessity and of how communications actually work. proportionality have significantly increased in the code, The special case being made for journalists here which will shortly be laid before Parliament. is the fact that not only did the Interception of My noble friend asked whether there was provision Communications Commissioner confine his particular in the draft clauses to bypass judicial authorisation for examination in his report to looking at journalists, but RIPA requests in the event of an imminent threat to someone who speaks to, say, a lawyer does not reveal life. This is to cover a situation in which communications what was said. If someone is trying to establish the data to identify a journalistic source is required with source of a leak, knowing who spoke to a journalist extreme urgency. For example, if a bomb warning was may be more important than actually knowing what telephoned to a journalist, or a newspaper officer, the was said. This does not extend in the same way to police would want urgently to establish where the call other professions. That is what we are trying to say. It was made from. That would technically count as trying is a different way of looking at the particular situations to identify journalistic sources. in which journalists find themselves. I also say to my The Interception of Communications Commissioner noble friend that we will very shortly lay before Parliament looked at the Government’s threshold test for journalistic for approval the draft acquisition of communications privilege in great detail. His recommendation, in data code of practice, following the public consultation. paragraph 8.9 of the report, was: That will provide another opportunity to look at this. “Judicial authorisation must be obtained in cases where My noble friend asked some specific questions about communications data is sought to determine the source of journalistic when the Government will bring forward the proposed information”. code of practice. As the Minister for Modern Slavery We clearly sought to effect that, as I mentioned. 79 Serious Crime Bill [HL][LORDS] Serious Crime Bill [HL] 80

[LORD BATES] (3) The Secretary of State shall consider the assessment made My noble friend asked in which circumstances a under subsection journalist should be notified of an application to (1) and— access their communications. As I have said, my (a) determine and publish a strategic plan to tackle substantiated honourable friend Karen Bradley has already stated concerns identified in the assessment made under subsection (1); the Government’s view on this issue, providing notice or in the debate in the House of Commons on 23 February, (b) publish a statement and explanation in relation to why a that it was never the practice in this country that those plan under subsection (3)(a) is not required. who are the subject of an application for communications (4) Any strategic plan under subsection (3)(a) must include, but need not be limited to, steps— data are notified, as serious crimes may be involved. (a) to promote change in the social and cultural patterns of The Government’s draft clauses do not contain the behaviour with a view to eradicating prejudices, customs, traditions same provisions as PACE. In response to that point, and all other practices which are based on the idea of the acquiring communications data is not the same as inferiority of women and which may amount to pressure to seek a acquiring a notebook or even a phone handset. The termination on the grounds of the sex of the foetus; data are retained by the communication service providers, (b) to ensure best practice exists in identifying women being either for their own business purposes or under data coerced or pressured into seeking a termination on the grounds of the sex of the foetus, or at risk of being so, and in the provision of retention legislation. I can think of no circumstances protection and support to potential victims; and where, on receiving an order granted by a judge for (c) to promote guidance to service providers, health professionals communications data, whether from a journalist or in and other stakeholders. any other circumstances, a communications service (5) The Secretary of State must lay a copy of the plan, provider would have any reason to delete that data. determined under subsection (3)(a), before each House of Parliament Finally, my noble friend asked why there is no within 6 months of the publication date of the assessment under provision in the draft clauses for the judge making subsection (2).” the decision to have regard to the public interest. The draft clauses require the judge to ensure that the Baroness Williams of Trafford: My Lords, noble requirement in Sections 22(1) and 22(5) of the Regulation Lords will be pleased to hear that I have only one of Investigatory Powers Act are satisfied. Section 22(1) amendment to deal with here—I hope I can get it ensures that the application is necessary and Section 22(5) right—which is Commons Amendment 12. Unlike the ensures that the application is proportionate. other Commons amendments we are considering today, I totally accept that those answers, as far as they go, Amendment 12 was tabled by a Back-Bench MP, Ann may not be entirely satisfactory to my noble friend, Coffey. It was agreed by the Commons on a free vote but I hope that the overarching commitment that I by 491 votes to just two. As in the Commons, the have given to continue our discussion on this very Government are not taking a view either for or against important issue will enable him to withdraw his motion. Amendment 12, and there will again be a free vote in this House should it go to a Division. That said, it might assist noble Lords if I provide the House with Lord Strasburger: My Lords, I gave my noble friend some background. the Minister advance notice of my questions. He has The Government have been consistently clear that made a very good attempt at answering them and I abortion on the grounds of gender alone is already thank him for that. Obviously, the devil will be in the illegal. The Department of Health repeated that in detail of the code of practice. I will very gladly accept guidance issued in May 2014, and it is important to his invitation to come and discuss that with him. stress that all independent sector providers have agreed Clearly, we will all return to this subject in the new to comply with, and operate on the basis of, the Parliament when the Anderson review is delivered. department’s guidance—and that they must do so as For now I am very happy to withdraw my motion. part of their licensing conditions. The department has also undertaken detailed analysis Motion on Amendment 11A (as an amendment to to investigate whether the gender birth ratio in the UK Amendment 11) withdrawn. varies by the mother’s country of birth beyond the range that might be expected to occur naturally. The analysis, first published in May 2013 and updated in Motion agreed. 2014, concluded that, when broken down by the mother’s country of birth, no group was statistically different Motion on Amendment 12 from the range we would expect to see naturally occurring. The Department of Health has rightly committed to Moved by Baroness Williams of Trafford repeat that analysis annually when new birth data That this House do agree with the Commons in become available. However, I stress that the Government their Amendment 12. will remain vigilant, will continue to monitor data and 12: After Clause 73, insert the following new Clause— will be fully open to any other evidence that comes to light. Anecdotal reports of sex-selective abortion have “Termination of pregnancy on grounds of sex of foetus been raised from time to time. Anyone with evidence (1) The Secretary of State shall arrange for an assessment to of individual cases should report this to the police to be made of the evidence of termination of pregnancy on the grounds of the sex of the foetus in England, Wales and Scotland. investigate. (2) The arrangements made under subsection (1) shall be such It is against that background that Commons as to enable publication of the assessment by the Secretary of Amendment 12 would require a further assessment of State within 6 months of the date of Royal Assent to this Act. the evidence that terminations are taking place on the 81 Serious Crime Bill [HL][2 MARCH 2015] Serious Crime Bill [HL] 82 ground of the sex of the foetus alone. In addition to (iii) in the Female Genital Mutilation Act 2003, paragraph (b) the analysis that the Department of Health is undertaking of the subsection (2) inserted in section 5 by section 69(4)(b) on an annual basis in this area, any other evidence that above; comes to light could be considered. The Department (iv) paragraph 4(5)(b) of the Schedule inserted in that Act by of Health is already considering what further sources section 70(2) above; of evidence can contribute to our knowledge on this (v) section (Controlling or coercive behaviour in an intimate or important issue. The amendment would further require family relationship)(11)(b) above; the Secretary of State for Health to consider the (vi) in the Prison Act 1952, subsection (4)(b) of the section 40CA assessment and either to determine and publish a inserted by section 71 above; strategic plan to tackle substantiated concerns identified (vii) in that Act, subsection (4)(b) of the section 40CB inserted in the assessment, or to give a statement and explanation by section (Throwing articles into prisons) above.” as to why such a plan is not required. (b) the reference to a fine in paragraph 2(2)(a) of the Schedule to the Female Genital Mutilation Act 2003, inserted in that Act As I have said, it is for the House to decide whether by section 68(2) above, is to be read as a reference to a fine not to agree Commons Amendment 12. In considering exceeding level 5 on the standard scale.” the matter, noble Lords may wish to take account of the short debate in the House of Commons and the outcome of the Division in that House, as well as the Lord Bates: My Lords, as the House is well aware, views of noble Lords as expressed in this debate today. there is no greater duty for a Government than the protection of its citizens in the face of a significant Motion agreed. and very real threat to our safety and security. We are in the middle of a generational struggle against a deadly terrorist ideology. In such a climate, it is more Motion on Amendments 13 to 17 important than ever to ensure that the police and our Moved by Lord Bates security and intelligence agencies have the right capabilities they need to tackle the threat from terrorism, both at That that this House do agree with the Commons home and abroad. in their Amendments 13 to 17. Only a short while ago, this House scrutinised a 13: Clause 75, page 79, line 16, at end insert— package of new powers in the newly enacted Counter- “( ) Subsection (7) of section (Child sexual exploitation) and Terrorism and Security Act 2015. This Act significantly paragraph 1A of Schedule 4 do not apply in the case of an offence adds to the tools at our disposal to counter the threat proceedings for which are started before the commencement of posed in particular by British-born violent extremists. that subsection.” It disrupts the ability of people to travel abroad to 14: Clause 75, page 79, line 16, at end insert— fight, and to return here. It enhances our ability to “( ) The amendment made by section (Codes of practice about monitor and control the actions of those in the UK investigatory powers: journalistic sources) applies only to a code of who pose a threat, and it combats the underlying practice that is issued or revised on or after the day on which this ideology that feeds, supports and sanctions terrorism. Act is passed.” It is right and proper that we brought forward and 15: Clause 75, page 79, line 26, at end insert— enacted that legislation at the earliest opportunity, but “( ) in the Sexual Offences Act 2003, subsection (3)(a) of the we must also act at the earliest opportunity to ensure section 15A inserted by section (Sexual communication with a that when individuals who may pose a threat to our child) above;” security have already travelled abroad to places of 16: Clause 75, page 79, line 28, at end insert— conflict, such as Syria and Iraq, to engage in terrorist- “( ) in that Act, subsection (4)(b) of the section 40CB inserted related activities, they too are not beyond the reach of by section (Throwing articles into prisons) above.” the law when they return to the UK. 17: Clause 75, page 79, line 32, at end insert— To this end, Commons Amendments 26, 27 and 29 “( ) section (Controlling or coercive behaviour in an intimate or provide for Clause 72 of the Bill to come into force on family relationship)(11)(b).” Royal Assent. The House will recall that Clause 72 will ensure that we are able to prosecute individuals who Motion agreed. have prepared and trained for terrorism overseas by extending the extraterritorial reach of the offences in Motion on Amendment 18 Sections 5 and 6 of the Terrorism Act 2006. Let me be clear that this measure does not come without Moved by Lord Bates safeguards. The Bill already makes clear that prosecutions That this House do agree with the Commons in cannot be brought retrospectively—that is, in respect their Amendment 18. of activities undertaken before the measure is commenced. We are also working with our law enforcement and 18: Clause 75, page 79, line 32, at end insert— security partners in advance of Royal Assent to ensure “( ) In relation to an offence committed before section 85(1) of that this change is communicated to those who will the Legal Aid, Sentencing and Punishment of Offenders Act 2012 comes into force— use it. (a) a reference to a fine in the following provisions is to be read I hope your Lordships will agree that, given the as a reference to a fine not exceeding the statutory maximum— immediacy of the threat we are facing from terrorism (i) section 60(3)(a); and foreign fighters in particular, there is an overriding (ii) in the Sexual Offences Act 2003, subsection (3)(a) of the necessity to ensure that our law enforcement and section 15A inserted by section (Sexual communication with a security partners are provided with the right tools, as child) above; early as possible, to protect the UK public, and that 83 Serious Crime Bill [HL][LORDS] Serious Crime Bill [HL] 84

[LORD BATES] “Regulation of Investigatory Powers Act 2000 (c. 23) this power should be available immediately. The other In section 71 of the Regulation of Investigatory Powers Act 2000 amendments in this group are minor or technical in (issue and revision of codes of practice), in subsection (8), for nature. I beg to move. “(3)” substitute “(2A)”.” 35: Schedule 4, page 105, line 33, at end insert— Motion agreed. “16A In section 6 of the Proceeds of Crime Act 2002 (making of order) at the end of subsection (5) insert— “Paragraph (b) applies only if, or to the extent that, it would Motion on Amendments 19 to 58 not be disproportionate to require the defendant to pay the Moved by Lord Bates recoverable amount.”” 36: Schedule 4, page 108, line 3, at end insert— That this House do agree with the Commons in “31A In section 92 of that Act (making of order), at the end of their Amendments 19 to 58. subsection (6) insert— 19: Clause 76, page 79, line 45, leave out paragraph (d) and “Paragraph (b) applies only if, or to the extent that, it would insert— not be disproportionate to require the accused to pay the recoverable “( ) sections 65 to (Child sexual exploitation);” amount.”” 20: Clause 76, page 79, line 45, at end insert— 37: Schedule 4, page 110, line 21, at end insert— “( ) sections (Duty to notify police of female genital mutilation) “41A In section 156 of that Act (making of order), at the end and (Guidance about female genital mutilation);”. of subsection (5) insert— 21: Clause 76, page 79, line 45, at end insert— “Paragraph (b) applies only if, or to the extent that, it would not be disproportionate to require the defendant to pay the Controlling or coercive behaviour in an intimate or “( ) sections ( recoverable amount.”” family relationship) and (Guidance);” 38: Schedule 4, page 111, line 35, at end insert— 22: Clause 76, page 79, line 46, leave out “section 71” and insert “sections 71 and (Throwing articles into prisons)” “( ) In Schedule 2 to that Act (lifestyle offences: England and Wales), in paragraph 8 (prostitution and child sex), sub-paragraph (2) 23: Clause 76, page 80, line 1, at beginning insert— is amended as follows. “( ) Section (Prevention or restriction of use of communication ( ) In paragraph (b), for “child prostitution or pornography” devices by prisoners etc) extends to England and Wales and substitute “sexual exploitation of a child”. Scotland (but not Northern Ireland).” ( ) In paragraph (c), for “prostitute or a child involved in 24: Clause 77, page 80, line 26, leave out “32” and insert “31A” pornography” substitute “in relation to sexual exploitation”. 25: Clause 77, page 80, line 32, leave out “42” and insert “41A” ( ) In paragraph (d), for “child prostitution or pornography” 26: Clause 77, page 80, line 34, leave out “The following substitute “sexual exploitation of a child”.” provisions” and insert “Sections 67 to 69” 39: Schedule 4, page 111, line 38, at end insert— 27: Clause 77, page 80, line 36, leave out paragraphs (a) and “Female Genital Mutilation Act 2003 (c.31) (b) In section 8 of the Female Genital Mutilation Act 2003 28: Clause 77, page 80, line 40, at end insert— (extent etc), in subsection (4) after “Scotland” insert “and sections “( ) section (Prevention or restriction of use of communication 5B and 5C do not extend to Northern Ireland”. devices by prisoners etc);” 40: Schedule 4, page 112, line 1, at end insert— 29: Clause 77, page 80, line 40, at end insert— “In section 54 of the Sexual Offences Act 2003 (sections 51A “( ) section 72 and paragraph 60 of Schedule 4 (and section 74(1) to 53A: interpretation), for subsections (2) and (3) substitute— so far as relating to that paragraph);” “(2) In sections 51A, 52, 53 and 53A “prostitute” means a 30: Clause 77, page 80, line 40, at end insert— person (A) who, on at least one occasion and whether or not compelled to do so, offers or provides sexual services to another “( ) section (Codes of practice about investigatory powers: person in return for payment or a promise of payment to A or a journalistic sources);” third person; and “prostitution” is to be interpreted accordingly. 31: Clause 77, page 81, line 17, at end insert— (3) In subsection (2) and section 53A, “payment” means any “( ) Consultation for the purposes of subsection (2), (3), (6) or financial advantage, including the discharge of an obligation to (7) may be, or include, consultation before the day on which this pay or the provision of goods or services (including sexual Act is passed.” services) gratuitously or at a discount.”” 32: Clause 78, page 81, line 26, leave out subsection (2) 41: Schedule 4, page 112, line 1, at end insert— 33: Schedule 4, page 103, line 38, at end insert— “ In section 78 of the Sexual Offences Act 2003 (meaning of “Street Offences Act 1959 (c. 57) “sexual”), for “except section 71” substitute “except sections 15A and 71”.” 1A (1) The Schedule to the Street Offences Act 1959 (orders under section 1(2A): breach, amendment etc) is amended as 42: Schedule 4, page 112, line 1, at end insert— follows. “()Insection 136A of that Act (meaning of specified (2) In paragraphs 2(3), 3(3) and 5(4), for paragraphs (a) and prostitution offence etc) subsection (2) is amended as follows. (b) substitute “a magistrates’ court acting in the relevant local ( ) After paragraph (a) insert— justice area”. “(aa) an offence under section 48 of this Act committed by (3) In paragraph 9(2), for paragraphs (a) and (b) substitute causing or inciting a child to be sexually exploited within the “any magistrates’ court”. meaning given by section 51(2)(a);”. (4) Omit paragraph 9(4). ( ) In paragraph (b), for “section 48 of this Act, or Article 38 (5) In paragraph 10(4), for paragraphs (a) and (b) substitute of the Northern “to a prison”. (6) Omit paragraph 10(5). Ireland order,” substitute “Article 38 of the Northern Ireland (7) In paragraph 11(1) omit “youth court or other”.” order”.” 34: Schedule 4, page 105, line 32, at end insert— ( ) After paragraph (b) insert— 85 Serious Crime Bill [HL][2 MARCH 2015] Serious Crime Bill [HL] 86

“(ba) an offence under section 49 of this Act committed by ( ) In paragraph 7(e), for “abuse of children through prostitution controlling the activities of a child in relation to sexual exploitation and pornography” substitute “sexual exploitation of children”.” within the meaning given by section 51(2)(a);”. ( ) After paragraph 13A insert— ( ) In paragraph (c), for “section 49 of this Act, or Article 39 of “13B An offence under section 66 of the Serious Crime the Northern Ireland order,” substitute “Article 39 of the Northern Act 2015 (possession of paedophile manual).” Ireland order”. 48: Schedule 4, page 113, line 28, after “Wales),” insert “in ( ) After paragraph (c) insert— paragraph 4 (prostitution and child sex), in sub-paragraph (2)— “(ca) an offence under section 50 of this Act committed by (a) in paragraph (b), for “child prostitution or pornography” arranging or facilitating the sexual exploitation, within the meaning substitute “sexual exploitation of a child”; given by section 51(2)(a), of a child;”. (b) in paragraph (c), for “prostitute or a child involved in ( ) In paragraph (d), for “section 50 of this Act, or Article 40 pornography” substitute “in relation to sexual exploitation”; of the Northern Ireland order,” substitute “Article 49 of the Northern Ireland order”. (c) in paragraph (d), for “child prostitution or pornography” substitute “sexual exploitation of a child”. ( ) Subsection (3) of that section is amended as follows. ( ) Before paragraph (a) insert— ( ) In that Part,” “(za) an offence under section 48 of this Act committed by 49: Schedule 4, page 114, line 18, at beginning insert “Part 1 causing or inciting a child to be sexually exploited within the of” meaning given by section 51(2)(b);”. 50: Schedule 4, page 114, line 19, at end insert— ( ) In paragraph (a), for “section 48 of this Act, or Article 38 of “( ) After paragraph 15 insert— the Northern Ireland order,” substitute “Article 38 of the Northern Ireland order”. “Female genital mutilation protection orders ( ) After paragraph (a) insert— 15A (1) Civil legal services provided in relation to female genital mutilation protection orders under paragraph 1 of Schedule 2 “(aa) an offence under section 49 of this Act committed by to the Female Genital Mutilation Act 2003. controlling the activities of a child in relation to sexual exploitation within the meaning given by section 51(2)(b);”. Exclusions ( ) In paragraph (b), for “section 49 of this Act, or Article 39 (2) Sub-paragraph (1) is subject to the exclusions in Parts 2 of the Northern Ireland order,” substitute “Article 39 of the and 3 of this Schedule.”” Northern Ireland order”. 51: Schedule 4, page 114, line 23, at end insert— ( ) After paragraph (b) insert— “()Part3ofthatSchedule (advocacy: exclusion and exceptions) “(ba) an offence under section 50 of this Act committed by is amended as follows. arranging or facilitating the sexual exploitation, within the meaning ( ) In paragraph 6— given by section 51(2)(b), of a child;”. (a) omit “and” at the end of paragraph (a); (b) at the end insert ( ) In paragraph (c), for “section 50 of this Act, or Article 40 of “, and the Northern Ireland order,” substitute “Article 49 of the Northern (c) proceedings for the variation or discharge of an order Ireland order”.” under paragraph 1 of Schedule 2 to the Female Genital Mutilation 43: Schedule 4, page 112, line 3, at end insert— Act 2003.” “( ) After paragraph 24 insert— ( ) In paragraph 8— “24A An offence under section 15A of this Act (sexual (a) omit “and” at the end of paragraph (c); (b) at the end insert communication with a child).”” “, and 44: Schedule 4, page 112, line 18, at end insert— (e) proceedings for the variation or discharge of an order under paragraph 1 of Schedule 2 to the Female Genital Mutilation “( ) Schedule 15 to that Act (specified offences for purposes of Chapter 5 of Part 12) is amended as follows. Act 2003.”” ( ) After paragraph 116 insert— 52: Schedule 4, page 114, line 27, at end insert— “116A An offence under section 15A of that Act (sexual Anti-social Behaviour, Crime and Policing Act 2014 (c. 12) communication with a child).”” “ In section 116 of the Anti-social Behaviour, Crime and Policing Act 2014 (information about guests at hotels believed to 45: Schedule 4, page 112, line 18, at end insert— be used for child sexual exploitation), in subsection (8)(a), for “( ) In paragraph 136, for “child prostitution or pornography” “prostitution and pornography” substitute “sexual exploitation”.” substitute “sexual exploitation of a child”. 53: In the Title, line 2, after “1933,” insert “the Sexual Offences ( ) In paragraph 137, for “prostitute or a child involved in Act 2003, the Street Offences Act 1959,” pornography” substitute “in relation to sexual exploitation”. 54: In the Title, line 4, after “2005”insert “, the Prison Act 1952” ( ) In paragraph 138, for “child prostitution or pornography” substitute “sexual exploitation of a child”.” 55: In the Title, line 8, leave out from “children;” to “to” in line 9 46: Schedule 4, page 112, line 18, at end insert— 56: In the Title, line 8, after “children;” insert “to create an “( ) Schedule 15B to that Act (offences listed for the purposes offence in relation to controlling or coercive behaviour in intimate of sections 224A, 226A and 246A) is amended as follows. or family relationships;” ( ) In paragraph 35, for “child prostitution or pornography” 57: In the Title, line 9, after “prison;” insert “to make provision substitute “sexual exploitation of a child”. for the prevention or restriction of the use of communication ( ) In paragraph 36, for “prostitute or a child involved in devices by persons detained in custodial institutions;” pornography” substitute “in relation to sexual exploitation”. 58: In the Title, line 11, after “crime;” insert “to make provision ( ) In paragraph 37, for “child prostitution or pornography” about codes of practice that relate to the exercise and performance, substitute “sexual exploitation of a child”.” in connection with the prevention or detection of serious crime, 47: Schedule 4, page 112, line 18, at end insert— of powers and duties in relation to communications;” “ ( ) Schedule 34A to that Act (child sex offences for purposes Motion agreed. of section 327A) is amended as follows. ( ) In paragraph 7(b), for “15” substitute “15A”. House adjourned at 6.57 pm.

GC 1 Arrangement of Business[2 MARCH 2015] National Minimum Wage Regulations GC 2

I turn to the reason for this debate. An important Grand Committee element of ensuring compliance is the clarity and accessibility of information. Since their introduction Monday, 2 March 2015. 17 years ago, the regulations have been amended numerous times, resulting in 27 separate sets of regulations. For such important legislation that is directly relevant to so many workers and their employers, lack of clarity Arrangement of Business could result in people not being paid what they are Announcement legally entitled to. This draft instrument consolidates the 27 sets of regulations into one in order to make the rules clearer and more workable for employers and 3.30 pm workers alike. The Deputy Chairman of Committees (Baroness In response to an eight-week consultation last summer, McIntosh of Hudnall) (Lab): My Lords, I remind the most of the 22 respondents told us that, while they Committee that if there is a Division in the Chamber, welcomed the consolidation, even greater clarity would the Committee will adjourn for 10 minutes from the be welcome, particularly in the guidance. We agree. sound of the Division Bell. Once these regulations take legal effect, we will review the guidance during 2015 in order to improve the information available to individuals and employers. I commend the draft regulations to the Committee. National Minimum Wage Regulations 2015 Motion to Consider Baroness Donaghy (Lab): My Lords, these proposals seem to be eminently sensible and are to be welcomed— and it is very good to have cross-party agreement on 3.30 pm the success of the national minimum wage. As the Minister will know, I served as one of the first members Moved by Lord Popat of the Low Pay Commission; we established the first That the Grand Committee do consider the figure for the minimum wage. More importantly, we National Minimum Wage Regulations 2015. established the framework for what was included—and what was not—in the minimum wage, such as overtime, Relevant document: 21st Report from the Joint London weighting and all the other important details Committee on Statutory Instruments that have led to the continuing success and recognition of the minimum wage. I do not think that it is remembered now what Lord Popat (Con): My Lords, before turning to the pressures there were before the minimum wage was reason for this debate, I will focus on the success of the established—political pressures and also pressures on national minimum wage. Recognition must be given to the Low Pay Commission—for absolute secrecy, because the Labour Party for introducing the national minimum any leaks would have undermined the whole venture. I wage, which last year was voted the most successful remember one of the away weekends that the Low Pay government policy of the preceding 30 years. Commission had in its first few months. It was in the The key reason for its success is its simplicity. An days before everybody had a mobile phone. We independent Low Pay Commission provides balanced were incommunicado in this particular place. Relatives advice to the Government about minimum wage rates. could get through only by ringing the residential place But setting the rate is just the start. The Government we were staying in and using the code word have taken action to create the conditions for economic “chrysanthemum”. Has the world not changed in growth and higher living standards. Since the election, 17 years? It seems laughable that so few people had an extra 1.88 million people are now in work, and mobiles. I am not sure how many relatives of mine wages are now growing faster than inflation. could even have said the word “chrysanthemum”. The Government also have a major role to play in Nowadays, we underplay—not deliberately, because ensuring that the minimum wage is enforced. That is it is so well established on a cross-party basis—the why we have increased enforcement budgets by 50% importance of the minimum wage. I very much hope over this year and next. There are now tougher penalties. that it will remain a cross-party venture and that we do We have increased the financial penalty percentage not play politics too much with this issue. The Low from 50% to 100% of unpaid wages owed, and the Pay Commission does a very important job representing, maximum penalty from £5,000 to £20,000. Provisions on a tripartite basis, all the interests involved in the in the Small Business, Enterprise and Employment world of employment—and long may that continue. Bill will change the scope of the maximum penalty from a per business basis to a per worker basis. There are also reputational consequences. The Lord Young of Norwood Green (Lab): My Lords, I, Government have already named 162 employers who too, welcome this particular statutory instrument and have not complied with the national minimum wage. the introduction by the Minister. I thank my noble Such bad publicity will be an additional deterrent to friend for her historical assessment. I am sure that her employers who might otherwise be tempted not to pay relatives could have said “chrysanthemum”. They might the national minimum wage. have had trouble spelling it, but that is another matter. GC 3 National Minimum Wage Regulations[LORDS] Groceries Code Adjudicator Order 2015 GC 4

[LORD YOUNG OF NORWOOD GREEN] Groceries Code Adjudicator (Permitted I thank the Minister for recognising that we introduced Maximum Financial Penalty) Order 2015 the minimum wage—though, I have to say, that was against the wishes of some and with dire predictions Motion to Consider about the millions of jobs that would be lost. I am glad that we have put that behind us and I welcome 3.41 pm the enthusiasm now. Moved by Lord Popat Obviously, anything that simplifies and clarifies is to be welcomed. I welcome the point about the That the Grand Committee do consider the enforcement budgets being increased. I am interested Groceries Code Adjudicator (Permitted Maximum in whether the statistic of 162 employers being named Financial Penalty) Order 2015. is, as I presume, for 2013-14. Maybe I missed the Relevant document: 22nd Report from the Joint precise date. I just wonder whether the number of Committee on Statutory Instruments employers being reported is going up. Is the number of queries to workers’ rights helplines increasing? I note from the Explanatory Memorandum that the Lord Popat (Con): My Lords, the order sets the Minister is due to clarify the guidance this year. It is maximum financial penalty that may be imposed by really important that we get that right. As a matter of the Groceries Code Adjudicator, and completes the set interest, are we keeping any statistics on the fact that, of regulatory powers available to the adjudicator to over the recent past few years, we have now had ensure that the large supermarkets deal fairly with introduced the concept of a living wage? I do not their suppliers. expect the Minister to have any information on that, Before moving on to the purpose and effect of the but I wonder if we are keeping any statistical evidence order, it might be helpful if I talked a little about how on it. If he has something on it, better still. Other the adjudicator came to be created. The genesis of the than those questions and comments, I am happy to Groceries Code Adjudicator regime is to be found in support this. the market investigation into the supermarkets conducted by the then Competition Commission between 2006 Lord Popat: I thank the noble Lord, Lord Young, and 2008. The commission found that the problems in and the noble Baroness, Lady Donaghy, for their the sector were concentrated in the commercial dealings contributions to this debate. As I said in opening, this between the largest supermarkets and their direct suppliers. was the best legislation we have had in 30 years. I hope It therefore used its powers under the Enterprise Act 2002 the noble Lord will believe that when I got the Motion to introduce the Groceries Supply Code of Practice in from the officials, I insisted on putting the point that 2009. this was Labour Party policy and the best legislation The scope of the code is precisely defined. It governs we have had in some years. I thank the noble Lord for the commercial relationships between the 10 largest his approval of this Motion. UK supermarkets—those with a turnover of more I commend the noble Baroness, Lady Donaghy, for than £1 billion a year—and their direct suppliers of her work on the national minimum wage and the work food, drink and household products. The code requires that she did with the Low Pay Commission. What a the supermarkets to deal fairly with their suppliers success story. I am glad that it is cross-party issue and and it includes specific provisions, among other things, that as a Government we are doing something for the governing terms of supply agreements; the timing of people in this country who are at the bottom end of payments; marketing and promotional costs; and the market in terms of the wages that they are on. I am payments as a condition of being a supplier. It does glad that my Government have raised the allowance not cover indirect suppliers further down the supply for people to have that extra money. The personal chain. Nor does it govern questions relating to pricing, allowance has gone up from £6,000 to roughly £10,000 which are the responsibility of the Competition and in the past five years. Markets Authority under general competition rules. The noble Lord, Lord Young, made a point about The Competition Commission required the the employers named in 2013 and 2014. We are naming appointment of code compliance officers by the more employers. The revised naming and shaming supermarkets. It discussed the possibility of a regulator scheme came in in October 2013. The new rules are to enforce the code, but did not go so far as to part of the Government’s efforts to toughen up the recommend one at that time. I appreciate that many enforcement of the national minimum wage and increase felt that the absence of a regulator was an unsatisfactory compliance. The 162 employers were mentioned earlier. arrangement from the start. The Commons Select Between them they owed substantial sums in arrears Committee on the Environment, Farming and Rural to their workers, and by naming and shaming employers Affairs, for example, described it as akin to setting the it is hoped that bad publicity will be an additional rules of the game but then failing to appoint a referee. deterrent to employers who would otherwise be tempted not to pay the national minimum wage. We received Ministers shared that view. That is why they legislated more complaints about the national minimum wage for the creation of the adjudicator to enforce the code. through the helpline during 2014-15 and we continue Christine Tacon took up her post as the first adjudicator to increase awareness of the national minimum wage in June 2013. Ministers were also determined that the among employers and employees. I commend the adjudicator should have the enforcement powers necessary regulations to the Committee. to ensure compliance with the code. Those powers are extensive. The adjudicator has a duty to arbitrate any Motion agreed. dispute that is referred to her by a supplier, and she GC 5 Groceries Code Adjudicator Order 2015[2 MARCH 2015] Groceries Code Adjudicator Order 2015 GC 6 has the discretion to arbitrate if the referral is by a 10% and more in the competition regime—and it is a supermarket. The adjudicator may also launch an maximum. The adjudicator’s published guidance makes investigation where she judges that there are reasonable it clear that the GCA will adopt a proportionate grounds to suspect that a supermarket has breached approach to its enforcement powers and will seek the code, or has failed to comply with earlier statutory voluntary compliance wherever possible. The agreement recommendations made by the adjudicator. that she has secured from most of the supermarkets to limit their forensic accounting exercises to the previous 3.45 pm two years, when six had been common, is an excellent I shall take a moment here to clarify some of the example of her ability to get results without the need confusion that has grown up around the adjudicator’s to pursue formal proceedings. powers of investigation. This was highlighted most Where the adjudicator relies on her formal enforcement recently by the EFRA Select Committee, which powers, her guidance makes it clear that she will do so recommended in its report on dairy prices that the by applying the well established Macrory principles on GCA be given the power to launch proactive investigations. regulatory penalties. These state that a sanction must The Government will respond in detail to the committee be proportionate, must deter further non-compliance shortly. But to be absolutely clear, there is nothing in and must aim to eliminate any financial benefit from either the legislation governing the adjudicator or her non-compliance. statutory guidance that means that the GCA must On the latter point, we have seen recently that, by simply sit and wait for evidence to be brought to it. manipulating the timing of payments to and from Far from it—the adjudicator has wide powers to suppliers, supermarkets can very quickly accrue huge investigate, and the Government expect her to rely on sums. That makes the 1% maximum in this order them to be an active and visible guardian of the code. essential if a full and proportionate range of sanctions I know that Ministers are pleased that Christine is to be available to the adjudicator. The Government Tacon has quickly established her profile and authority appreciate that some noble Lords may still have concerns through her extensive engagement with the sector, not about the level of the maximum. I hope that they will least by requiring the various internal and external be reassured to know that there must be a statutory investigations in the Tesco case to include the groceries review of the GCA’s performance next year, during code in the terms of reference. This is surely proof of which this order may be looked at again. the adjudicator making good use of the proactive I have said that the order is about giving the adjudicator powers of investigation that the legislation already all the tools that she needs to do her job—but powers grants her. are only half of the picture. The adjudicator must also Where the adjudicator conducts an investigation have the necessary resources and the capacity to be an and finds that there has been a breach of the code, effective regulator. That is why Ministers were pleased currently she may take one of two forms of enforcement to approve an increase of almost 40% in the GCA’s action. She may issue the supermarket with levy funding—from £800,000 this year to £1.1 million recommendations as to its future conduct to ensure next year. compliance with the code, or she may “name and In closing, I repeat that in debating this order today shame” the supermarket by requiring it to publish we are reflecting Parliament’s will to give the Groceries information about the adjudicator’s investigation. Code Adjudicator access to the full range of enforcement However, it was the will of Parliament that the adjudicator options that she needs to do her important job as should also have the power to impose a financial effectively as possible. I am confident that granting the penalty. Provisions to introduce a fining power by adjudicator this additional power will strengthen her secondary legislation were therefore added to the Groceries ability to deliver fairness in the commercial relationships Code Adjudicator Bill during its parliamentary passage. between the supermarkets and their suppliers. A fair These required the adjudicator to consult on the method and transparent market is good news not just for for determining the maximum penalty, which she did suppliers but for the sector as a whole and for consumers. between July and December 2013, and to make It will promote competition and foster innovation. I a recommendation to the Secretary of State. This hope therefore that noble Lords will support the order. recommendation was for a maximum penalty of up to 1% of UK turnover, which Ministers accepted. These regulations implement that recommendation. Lord Young of Norwood Green (Lab): My Lords, we I should put on record that these regulations cannot do support it. I welcome the introduction by the have retrospective effect. That means that the adjudicator Minister but I have a couple of points to make. I will not have the power to impose a penalty in respect welcome the Government’s decision to reject the retailers’ of any breach of the code that predates the making of view that somehow the maximum penalty should be the regulations. I know that some of the supermarkets much more complex, and to keep it simple at 1% of have expressed concern about the level of the maximum. turnover. The question of whether this is absolutely They have pointed out that, for the largest retailers, the right figure is something that we can look at in the 1% equates to hundreds of millions of pounds. On the review next year. other hand, suppliers who responded to the GCA’s I also welcome the point about the wide powers of consultation tended to favour a much higher maximum, investigation and the increase in resources. It must in some cases up to 5% of turnover. have been a coincidence but, as I was flicking through On balance, Ministers consider the recommended the pages of the Sunday Times business section, I 1% to represent an appropriate and proportionate happened to notice a little article about a German maximum. It is modest compared to the figures of supplier to a company complaining that the company GC 7 Groceries Code Adjudicator Order 2015[LORDS] Electronic Commerce Directive Order GC 8

[LORD YOUNG OF NORWOOD GREEN] this matter. I read the article in the Sunday Times and had a four-month payment regime, whereas, interestingly, have a copy with me. I will refer it to officials and write Germany has a one-month regime. I have not been to the noble Lord. able to verify that but the Groceries Code Adjudicator Motion agreed. commented that she did not propose to launch an investigation into this. I was a bit surprised at that, as I thought the area would be worth some investigation. Four months seems a significant period of time for a Electronic Commerce Directive (Financial company to withhold payment to its direct suppliers. I Services and Markets) (Amendment) would welcome the Minister’s response to that. Order 2015 Motion to Consider Lord Popat: I am grateful to the noble Lord, Lord Young, for his contribution and for accepting this SI. 3.58 pm He mentioned the penalty of 1%. In many ways, he is right; I think it is best to keep it simple. One per cent is Moved by Lord Newby a maximum. Bearing in mind that the turnover of large supermarkets can exceed £1 billion, 1% can be a That the Grand Committee do consider the substantial sum of money. Again, if we find that this is Electronic Commerce Directive (Financial Services not the correct amount, we can always review the and Markets) (Amendment) Order 2015. legislation. Relevant document: 17th Report from the Joint The noble Lord mentioned the article in the Sunday Committee on Statutory Instruments Times. I have a copy of it attached to my file. Lidl was the supermarket in question. I am sure that this matter will be investigated by Christine Tacon. The payment Lord Newby (LD): My Lords, I shall speak also to period is longer in the UK than in Germany, but there the draft Financial Services and Markets Act 2000 has been no Grocery Code Adjudicator investigation. (Miscellaneous Provisions) Order 2015. I am pleased The Grocery Code Adjudicator is independent. The to introduce these statutory instruments. Small Business, Enterprise and Employment Bill, which The Government have fundamentally reformed is having its Report stage tomorrow, is looking at regulation of the consumer credit market, transferring prompt payment and will probably incorporate what regulatory responsibility from the Office of Fair Trading Lidl has done to its suppliers by delaying payment for to the Financial Conduct Authority on 1 April last as long as four months. It might come under that year. The FCA is better resourced and more empowered jurisdiction rather than the Grocery Code Adjudicator. than its predecessor and has been equipped with flexible rule-making powers to ensure that it keeps pace with developments in the market. The FCA regime is already Lord Young of Norwood Green: That might be the having a significant positive impact and is helping to case, but the Grocery Code Adjudicator made a public deliver the Government’s vision for an effective and statement that she did not intend to investigate it—so sustainable consumer credit market that is able to it is an important decision. There ought to be some meet consumers’ needs. dialogue with the Grocery Code Adjudicator to find out why this does not merit at least something, even if The raising of standards will improve further as the it is not a formal investigation. It is quite an important FCA undertakes authorisation assessments to assess issue, and I would have thought that it merited some firms’ fitness to trade—a process that has already investigation. I cannot say that I am completely satisfied begun for those industries regarded as the riskiest, with the reply. I am not expecting the Minister to including payday lending—and these instruments to respond now, but when he has had further opportunity be debated today help to support the effectiveness of to reflect, perhaps he will. the FCA’s regulatory regime. First, the e-commerce order provides the FCA with powers to tackle credit firms, including payday lenders, Lord Popat: My briefing states that the GCA is which abuse their rights under the e-commerce directive independent and the small business Bill will look into to evade FCA rules. As noble Lords will be aware, the it. I will certainly write to the noble Lord. The article Government have taken robust action significantly to states that the company pays its suppliers in Germany improve protections for consumers in the payday lending in 30 days but takes four months to pay in the UK—so market. The Government transferred regulatory it is something that we must look at. responsibility to the FCA’s powerful new regime and The GCA’s published guidance commits her to a legislated to require the FCA to introduce a cap on the stepped approach to enforcement. The adjudicator cost of payday loans. has said that wherever possible, she will rely on informal The Government strongly welcome the payday lending regulatory actions to secure compliance with the code. rules introduced last year by the FCA, including limits For example, the adjudicator has secured the agreement on rollovers and the use of continuous payment of most of the supermarkets to limit forensic audits of authorities, and tougher requirements around affordability transactions with suppliers to the previous two years, assessments. On 2 January, the FCA’s cap on the cost rather than six years. The GCA meets Ministers regularly of payday loans came into force, as required by the and its performance will be reviewed by Ministers in Government. Consumers are far better protected 2016, so I think it is best if I write to the noble Lord on under the FCA regime. The FCA has a wide-ranging GC 9 Electronic Commerce Directive Order[2 MARCH 2015] Electronic Commerce Directive Order GC 10 enforcement toolkit to take action where wrongdoing for the SI would be: “Closing a Gigantic Payday is found, and the rigorous authorisation process for Lending Loophole”, because, as the Minister said, payday lenders is under way. that is exactly what the SI does. FCA regulation is already having a dramatic impact On 9 December 2013, in response to amendments on the payday market—indeed, the FCA found that put down by the noble Lord, Lord Mitchell, and by the volume of payday loans fell by 35% in the first six me, the Government finally accepted the need for months since it took over regulation. These data are strict control of payday lending. The FCA rules that from before the cost cap took effect in January. followed capped the cost of payday loans and limited The Government are committed to preventing the the number of permitted rollovers. They also created gaming of the FCA’s regulatory regime, including the the conditions for real-time data-sharing by lenders in risk that lenders seek to relocate abroad and lend back order to reduce the incidence of multiple simultaneous into the UK. The important powers in this order will loans. The Treasury and the FCA are to be congratulated protect UK consumers by giving the FCA powers to on that. Together, with some prompting from your take action against credit firms that abuse their rights Lordships’ House, they have entirely changed the nature under the e-commerce directive to establish themselves of the payday loan sector in the United Kingdom. in another EEA member state but lend primarily to What started out as outrageous and cruel usury has the UK. The powers will enable the FCA to require been reduced to more or less sensible costs and more credit firms to comply with FCA rules—including, in or less sensible limits. The capacity of payday lenders the case of payday lenders, the price cap—or require to inflict terrible damage, as they were doing, on the them to seek full authorisation to continue carrying most disadvantaged has been severely reduced, and I out their activities. The order therefore represents an am pleased to be able to say that many payday lenders important reinforcement of the FCA regulatory regime, have simply shut up shop in the UK as a consequence helping to protect UK consumers from unfair costs of the new regime. and harmful practices. I do not think that the situation is ideal yet because, I turn now to the miscellaneous order. This order for many of us, the number of rollovers is too high, will address a number of technical issues to ensure there is not yet a proper real-time database of loans that consumer credit regulation strikes the right balance outstanding and there is no mechanism for automatically between proportionate burdens on business and providing preventing multiple simultaneous loans. Of course, as robust protections for consumers. In particular, the we speak, payday lenders are busy changing their order makes several provisions to minimise unnecessary business models in ways that will require continued regulatory burdens on firms. vigilance on our part. We will have to see how all that For example, the order adjusts the working definition works out. of a “domestic premises supplier”. This definition is In the debate of 9 December 2013, I raised for the important because it requires firms selling goods in a first time the question of what seemed to me a gigantic customer’s home to comply with the higher regulatory loophole in the proposed new regulations. This was standards in the FCA’s “full permission”regime, thereby the loophole to do with the e-commerce directive, helping to protect consumers from the pressure-selling which we are discussing. As the Minister said, this of goods or services on credit. However, it is important directive would allow any payday lender to avoid our that this definition is drawn correctly to minimise regulation if they were based elsewhere in the EEA unnecessary regulatory burdens on businesses and and were trading in the UK only electronically. This support the provision of goods and services to consumers. would mean that any payday loan company could The order ensures that firms providing goods or continue to operate in the UK but entirely outside our services in a home where no attempt is made to sell rules, caps and limits if it were based in the EEA and other goods or services, or anything extra provided is had no bricks and mortar presence here in the UK. free of charge, are not regarded as “domestic premises I asked the Treasury at the time what it intended to suppliers”—for example, where a mobility aid supplier do about this. I had subsequent conversations with the simply visits the customer’s home to measure up before Minister and officials about the problem. This order a contract is signed, or where a kitchen supplier delivers is, as the Minister correctly said, the solution to that and installs an item after it has been ordered. These problem. It closes the gigantic loophole in the regulations. firms can therefore benefit from the FCA’s lower-cost If payday loan companies based abroad now try to use “limited permission” regime. the e-commerce directive to avoid UK regulation, they The order also makes a number of other technical can now be stopped from operating in the UK or adjustments to ensure proportionate regulatory burdens. forced to comply with our rules if they want to continue For example, it ensures that solicitors—who are already to operate in the UK. This is a very good and very subject to their professional regulatory regime—will necessary step forward, and I am delighted that the not require FCA regulation when undertaking credit Government and the FCA have acted. activities incidental to the firm’s professional services. As the Minister said, this new order adds to the I beg to move. protection against the immoral and unscrupulous exploitation of the most vulnerable people in our Lord Sharkey (LD): My Lords, I will speak only to society. However, it is a Treasury order and it is written the first of the two orders before us. This order has the in the Treasury’s normal, deathless—meaning, obvious- usual eye-catching name for such things: The Electronic on-the-face-of-it—prose, which means that there are Commerce Directive (Financial Services and Markets) just a couple of questions that I would like to ask the (Amendment) Order 2015. A better and clearer name Minister. GC 11 Electronic Commerce Directive Order[LORDS] Electronic Commerce Directive Order GC 12

[LORD SHARKEY] I see the importance of extending the scope to domestic New Regulation 11A lists the kinds of activities premises suppliers. I went to the order—and you know that the order will apply to. Can the Minister say that you are driven to your limit when you actually whether this list includes debt management companies? read the order—and I found that, I know that he is aware of the wholly unacceptable “domestic premises supplier” means a supplier who … sells, offers charges and practices of some companies operating in to sell or agrees to sell goods, or … offers to supply services or this sector. contracts to supply services … to customers who are individuals while the supplier, or the supplier’s representative, is physically New Regulation 11B (2)(a) seems a little ambiguous. present at the dwelling of the individual”. It says that the authority must be satisfied that the I am gripped of the importance of the regulations incoming provider, applying in those circumstances. The key issue is the “directs all or most of its activity to the United Kingdom”. caveat in sub-paragraph (3B), which says: The question is: how is “most” to be interpreted here? “A supplier who acts as described in sub-paragraph (3A) on Does it mean “most” by weight of advertising, “most” an occasional basis only will not be a domestic premises supplier by number of customers or “most” by the value of unless the supplier indicates to the public at large, or any section lending to those UK customers? How will the authority of the public, the supplier’s willingness to attend”, arrive at a measure of whichever interpretation of and so on. It seems that the differentiation is on “most” it wants to use? I very much hope that my whether they advertise or not. If I have got that noble friend the Minister will be able to say that the wrong, I would be grateful to the Minister for writing FCA will be able to use all or any of the above to me. I cannot see how the words of the provision interpretations and that it will be able to use, as a translate to the picture that he has just described, with conclusive determination, whatever measures it considers what I would have thought was almost peripheral to reasonable. suppliers not being covered rather than this specific thing, whereby, Those are details but, in this area, detail is often “unless the supplier indicates to the public at large”. absolutely critical. However, I do not want the detail to overshadow my congratulations to my noble friend I do not know what that means other than that they the Minister and the FCA. They have closed a potentially are in the advertising business. very damaging loophole in the payday regulations. Finally, does the Minister know of any specific instances where the issues that the order remedies have manifested themselves, or is this anticipatory and intended Lord Tunnicliffe (Lab): My Lords, I start by welcoming to stop a problem before it arises? Is he satisfied with the noble Lord, Lord Sharkey, to our debates. The the FCA’s performance as a regulator so far, since it noble Lord, Lord Newby, and I feel flattered that we took up those responsibilities from the OFT? are now three instead of our usual two on these instruments. The noble Lord, Lord Sharkey, and 4.15 pm colleagues on my Benches are to be congratulated on Lord Newby: My Lords, I thank both noble Lords the campaign they have waged on this issue. The noble who have participated in this debate. I, too, congratulate Lord’s description of the e-commerce directive and a the noble Lord, Lord Sharkey, on his persistence in gigantic loophole is absolutely valid, and I join him this area and on drawing this issue to the attention of commending the Government on closing that hole. the Government for the first time, I think. When he However, we believe that this is only part of the way first did so, it was by no means clear that there was a forward. The payday scandal has been attacked in the legal route which enabled us to deal adequately with sense that many unscrupulous operators have been payday loan companies which just moved offshore. He driven out of the market, and that will go further, but spurred the creative minds in the Treasury to come up we wish to promote safer and more ethical forms of with a legal route, so we are extremely grateful to him lending. We will try to ensure that co-operatives and for that. mutual ownership models are able to compete on a He asked a couple of very specific questions, including level playing field. We will look to give greater power whether the provisions include debt management to local authorities to eliminate the spread of payday companies. The answer to that is yes, they do. He lending shops in town centres, and we will want to asked how one defines “most” and gave a number of investigate ways in which to support mutuals—for contributory definitions of “most”. It is for the FCA example, by improving the regulatory structure in to determine that definition on a case-by-case basis. It which they operate and making available support from will take into account all the factors in deciding how the British investment bank. The sad fact is that we to do it. have problems in our society that mean that short-term The noble Lord, Lord Tunnicliffe, spoke of the loans are needed. It is not just about driving out the Labour Party’s wish to promote a safer and more bad guys; it is about creating opportunities for a new ethical lending environment. I think we all share that breed of good guys. We already have credit unions to wish. That is why we have taken action on payday turn to as an example. lending and have taken a range of actions to promote On the second order—and I thank the Minister for mutuals and credit unions, including giving £38 million showing us how the two orders fit together—the to the credit union expansion project and undertaking Explanatory Memorandum makes perfect sense, except a review of how we can promote credit unions further. for the part of it that he explained, which I am left Credit unions are, in the medium term, probably the having trouble understanding. Paragraph 7.1 says: best bet we have for many people having easy access to “To extend the scope of the limited permission regime in proper financial services and small loans. A key thing relation to ‘domestic premises suppliers’”. now will be to get credit unions up to the ease-of-use GC 13 Electronic Commerce Directive Order[2 MARCH 2015] FinancialServicesandMarketsAct2000 GC 14 level that the payday loan providers have. To be critical Financial Services and Markets Act 2000 of the payday loan sector, its great strength and weakness (Banking Reform) (Pensions) is that it is so easy to use. It is not so easy to get access electronically to your credit union account or to loans Regulations 2015 via credit unions. One of the key things that the credit Motion to Consider union expansion project is doing is improving back-office infrastructure to enable credit unions’ systems to be 4.21 pm more user-friendly, particularly for young people who Moved by Lord Newby are used to electronic methods of banking. I do not think we disagree on that. That the Grand Committee do consider the The noble Lord, Lord Tunnicliffe, asked about the Financial Services and Markets Act 2000 (Banking definition of “domestic premises supplier”. The key is Reform) (Pensions) Regulations 2015. to ensure that firms selling in the home, where there is Relevant document: 21st Report from the Joint a risk of pressure selling, are subject to greater regulatory Committee on Statutory Instruments scrutiny. We are clarifying that this includes where firms promote themselves as being willing to visit consumers in their homes. That makes them a domestic Lord Newby (LD): My Lords, these regulations premises supplier, irrespective of the number of visits ensure that a ring-fenced retail bank cannot be liable they make. This will make it easier for firms and the for pensions obligations arising from other parts of its regulator to judge on which side of the line they fall. I wider banking group. These regulations are the final think—and I will write to the noble Lord if I am piece of secondary legislation necessary to bring about wrong on this—that there is a big difference between a the ring-fencing of retail banking from investment company that sells in its shop or online and then just banking. In completing this process, these regulations delivers stuff to your house and a company which represent the final piece of legislation needed to complete comes and gives a quote in your house. That is the sort the biggest ever overhaul of Britain’s banking system. of distinction we are trying to make. If I can expand On election, the Government set themselves the on that further in any helpful way, I will do so. task of fixing the banking system following the worst banking crisis in the entirety of British history. In 2010 Lord Tunnicliffe: I thank the noble Lord for that we set up the Independent Commission on Banking—the promise. I find the description that he just gave entirely ICB—led by Sir John Vickers to consider the options understandable and reasonable but then I look at the for structural reform of the banking sector. The ICB draft legislation. It takes a heroic understanding of recommended ring-fencing core retail banking services words to move from those in the order to the explanation from investment banking and trading. I have just heard. If nothing else, I shall value the letter that explains how you move in such a way. Ring-fencing will insulate crucial core retail banking services, such as the taking of personal deposits, from Lord Newby: It will be a great pleasure to give the shocks originating elsewhere in the financial system, noble Lord something of such value. We will attempt and will make banks simpler and easier to resolve. to do that. This will help curtail the implicit government guarantee Finally, the noble Lord asked whether we were enjoyed by banks that are seen as too big to fail, and satisfied with the performance of the FCA in taking will protect taxpayer money from ever again being over the reins of the OFT. The short answer is yes. used to provide solvency support for failing banks. Looking at the payday loans element alone, the impact One of the recommendations of the Independent of the FCA, combined with the legislative procedures Commission on Banking was that ring-fenced banks that have been put in place, has been very dramatic in should not have any liabilities to group-wide pension a direction that most people would welcome. The schemes. The Financial Services (Banking Reform) relative speed with which it was able to get the cap Act 2013 gave the Government the power to ensure agreed and implemented is an example of that. The this, and these regulations exercise that power. They short answer to that question is yes, but of course both require ring-fenced banks to make arrangements to the Government and Parliament will scrutinise carefully ensure that they do not have any shared pension what it does in future. liabilities with other group members or outside companies—with the exception of other ring-fenced Motion agreed. bodies within the same group, and wholly owned Financial Services and Markets Act 2000 subsidiaries. The regulations also give powers to the (Miscellaneous Provisions) Order 2015 banks and to the trustees of banks’ pension schemes Motion to Consider to ensure that the necessary changes can be made, and set out the role of the regulators, the PRA and the 4.20 pm pension regulator for monitoring and assessing the Moved by Lord Newby changes. That the Grand Committee do consider the The regulations are a necessary part of ensuring Financial Services and Markets Act 2000 that there is a robust ring-fence in place protecting (Miscellaneous Provisions) Order 2015. core banking services. Any shared pension liabilities could pose a huge risk to the viability of the overall Relevant document: 22nd Report from the Joint ring-fence and could threaten the ability of the ring-fenced Committee on Statutory Instruments bank to maintain the provision of vital services. Motion agreed. Collectively, the large banks run their pension schemes GC 15 FinancialServicesandMarketsAct2000[LORDS] FinancialServicesandMarketsAct2000 GC 16

[LORD NEWBY] Also, what progress is being made in this whole at a deficit that reaches the multiple billions of pounds. ring-fencing process? As the Minister will recall, there This means that were a non-ring-fenced investment was a degree of scepticism from our Benches and bank to fail, the ring-fenced bank could suddenly be other places that the timescales that the banks had to left with a large pension liability in the many millions, create their ring-fence structures were extended. Can or even billions, of pounds that it might be unable the Minister give the Committee some indication of to pay. what progress the banks are making in that extended Although implementing these regulations will have timescale and what processes the Government and some transitional cost to the banks, the measure is presumably the PRA, the FCA or whatever is the clearly good value for money. The cost to the banks is appropriate combination are putting in place to ensure hard to estimate, but the Treasury expects it to be in that the banks are progressing towards their ring-fenced the tens or low hundreds of millions of pounds. This is state and that we do not once again end up in a relatively small in comparison to the cost of the broad situation where too-big-to-fail institutions land us with ring-fencing package. a fait accompli and say “We haven’t done it yet: we’ll do it later”. With those comments, I have no objection Furthermore, ring-fencing itself is the best strategy to the regulations in principle because, as the Minister for structural reform of UK banks. The plan to ring-fence said, they complete the picture to create ring-fenced UK banks is based on the comprehensive work of the entities. Independent Commission on Banking. The mechanisms by which ring-fencing will help financial stability are clear. The ring-fenced retail banks will be insulated Lord Newby: My Lords, I thank the noble Lord for from shocks elsewhere in the financial system. They his comments. On the consultation and the publication will have higher capital requirements, which will improve of the consultation response document, I am sorry their resilience. Ring-fencing will make banks’ structures that it was not published earlier. It has now been simpler and will provide additional options to the published. Compared with most SIs that we take regulator for a bank to be restructured, which will through your Lordships’ House, this is actually—though help resolution in the case of failure. By ensuring important—quite short, and has a single purpose. economic and operational independence, ring-fencing will achieve the objective of complete separation of retail banking from investment banking while still Lord Tunnicliffe: I also take the point that compared allowing the bank to benefit from its relationship with with the importance of the SI this is a modest point, the wider banking group. but to a poor opposition spokesman like myself, without a wonderful array of staff behind me, if a document is We firmly believe that this is the most cost-effective not signalled in the EM I have great trouble actually and proportionate option, and one that will ensure the finding it. While I am sure that the statement has been long-term stability of the sector. The regulations play published and is right, surely it should be a matter of a key part in building a robust ring-fence and a stable discipline that it should be published before it is laid, banking sector, and I commend them to the Committee. and every effort should be made to make sure that any documents referenced are referenced in the Explanatory Lord Tunnicliffe (Lab): My Lords, I sat through the Memorandum. creation of the Act to which these regulations relate. Broadly speaking, it had cross-party support. This is, Lord Newby: I agree with the noble Lord. It is very as the Minister pointed out, a key element in completing difficult from the document itself to gain any sense of the picture and therefore I welcome it. However, having where pressure points or disagreements might be, and spent several years serving on the Merits of Statutory things should be published promptly, as the rules Instruments Committee of your Lordships’ House, suggest. I can only join in its complaint—it is now called the House of Lords Secondary Legislation Scrutiny The noble Lord asked how the ring-fence process is Committee—from its 26th report, published on going. This is the final piece of secondary legislation 10 February. The committee said: required to implement ring-fencing. By passing it now, we have fulfilled our commitment to legislate for ring- “In the EM, HMT gives limited information about the consultation fencing by the end of the Parliament. Further ring-fencing process which was held from July to October 2014, referring only to a number of technical changes made in the light of consultation rules, which do not require legislation, are now being responses, as well as to two substantial changes in order to limit consulted on in two consultation papers and being put the burden on the banks and regulators. Though the draft Regulations in place by the PRA. The PRA’s first ring-fencing were laid on 21 January, HMT had not published the summary of consultation closed in January, and it is on course to responses by 10 February. We are clear that Departments should publish its second consultation paper later this year. publish their consultation summaries no later than the time of The big banks that have to implement ring-fencing are laying the instruments concerned before Parliament, as we set out in the report of our inquiry into Government consultation practice. fully engaged with the PRA and, in January, gave their In our view, Parliament should be asked to consider secondary initial plans for ring-fencing to the PRA. So there is a legislation only when Government have provided adequate bit of an iterative process going on between the drafting information, including about consultation, to support such of rules and the banks’ own thoughts about how best consideration”. they might do it. The other thing that has been happening I agree with the comments in that report. I believe that is that Lloyds and RBS have been making changes to that general principle should be kept to and I am their business by winding down certain of their activities, disappointed that the Treasury, in this particular case, both in terms of geographical spread and contracting has failed. some of their investment banking activities in anticipation GC 17 FinancialServicesandMarketsAct2000[2 MARCH 2015] Financial Services and Markets Act 2000 GC 18 of ring-fencing coming into effect. As far as we are transfers of safeguarded rights and interests to trust-based aware and can see, both the regulators and the banks schemes that can be accessed flexibly. The Government appear to be on track to have the ring-fencing successfully want to ensure that the consumer interest is prudently implemented in due time by 2018. accounted for in the context of the new pensions freedom, and therefore this instrument has been brought Motion agreed. forward to ensure the proper operation and consistent regulation of advice provided under the safeguard. The approach of defining the appropriate independent Financial Services and Markets Act 2000 advice required under the advice safeguard by reference (Regulated Activities) (Amendment) to a new FCA-regulated activity was indicated during (No. 2) Order 2015 the Lords Committee stage of the Pensions Schemes Motion to Consider Bill on 12 January this year. Amendments to the Bill were the made at Lords Report stage on 27 January to 4.33 pm provide that the appropriate independent advice required by the Bill should be provided by a person who, Moved by Lord Newby “has permission under Part 4A of the Financial Services and Markets Act 2000 … to carry on a regulated activity specified in That the Grand Committee do consider the regulations made by the Secretary of State”. Financial Services and Markets Act 2000 (Regulated The House was informed in early January that the Activities) (Amendment) (No. 2) Order 2015. Treasury would lay an instrument to create the relevant Relevant document: 23rd Report from the Joint regulatory activity. This is the order we are now debating. Committee on Statutory Instruments (Special attention The Financial Conduct Authority will set out in a drawn to the instrument) forthcoming consultation paper the precise standards of advice it will require. This paper, which will be Lord Newby (LD): My Lords, this instrument creates published very shortly, taken together with the Pension a new regulated activity in the Financial Conduct Schemes Bill, its regulations and this order, will ensure Authority’s regulated activities order. The new activity that the advice safeguard is robust, effective and fully concerns the giving of advice on the conversion or operational when the pension freedoms come into transfer of a class of pension benefits known as force in April 2015. safeguarded benefits, which are defined in the Pension I commend the order to the Committee and beg to Schemes Bill 2014-15, but are best understood as move. benefits that the Government have taken a decision to safeguard, because they offer a guaranteed income in Lord Tunnicliffe (Lab): My Lords, I thank the Minister retirement that is assessed to be particularly valuable. for presenting this order. He has clarified my only They include benefits commonly referred to as defined concern of understanding. I wish I had had the benefit, but also include benefits that offer other guarantees conversation with him four or five working hours ago. or promises. This new activity relates to a safeguard As I understand it, the order does all sorts of bits and being created by the Pension Schemes Bill 2014-15 in bobs, but its essence is in Article 7.8 which fills a hole the context of the new pensions freedoms announced in the FCA applying these standards to the transfer to at Budget 2014. The advice safeguard requires scheme trust-based schemes. It took me a great deal of time to trustees and managers to check that members have find out the difference between a contract-based scheme received appropriate independent advice before and a trust-based scheme. I shall not repeat my transferring or converting safeguarded rights into rights understanding lest I have it wrong, but that seems to which can be accessed flexibly, and before paying an be the essence of the order. uncrystallised funds pension lump sum in respect of The “Regulatory Triage Assessment – final stage” safeguarded benefits. This safeguard will ensure that document offers three alternatives. Option 2 is: members have fully considered the implications of “Amend the FCA’s Regulated Activities Order via statutory giving up rights that provide a valuable guaranteed instrument such that advice on occupational transfers is fully income in retirement. It is important that this safeguard regulated”. is operational from 6 April 2015, when the new pension It does not give a very convincing reason why it should freedoms come into force. not do this. It is not that we are not supporting this In July 2015, the Government’s response to the Bill. The Opposition have not opposed the general consultation on freedom and choice in pensions committed essence of what the Chancellor is trying to do, but the that advice required under the safeguard would be size of what is happening and the importance of provided by an FCA-authorised adviser. This instrument quality advice cannot be overstated. helps deliver on that commitment. This instrument I believe it has been estimated that perhaps some provides for advice on the conversion and transfer of 500,000 defined benefit scheme holders may seek transfers safeguarded benefits into flexible benefits to be regulated almost straightaway. I think that a firm called Hargreaves by the FCA in accordance with the regulatory framework Lansdown has done that. Given the very sudden established by the Financial Services and Markets discontinuity that will occur in April, is the Minister Act 2000. confident that the advice industry has the capacity to Without this order, the FCA would regulate only meet people’s needs? Does the pensions industry have advice on transfers of safeguarded rights to contract-based the ability to meet the apparently thousands of transfer schemes. The new regulated activity created by the requests that it will face? Is the Minister happy that instrument allows the FCA to regulate advice on all the mechanisms are available to protect the public GC 19 Financial Services and Markets Act 2000[LORDS] Financial Services and Markets Act 2000 GC 20

[LORD TUNNICLIFFE] no longer have to take an annuity. There is a different from fraudulent operators? Does the Minister think and larger challenge there in terms of providing support that the Government have done enough to educate the for people in that category. As the noble Lord knows, public on the size and challenge of the changes they we are setting up a completely new guidance service to face? I happened to come across an article in the advise people in that category. That service will have Observer this weekend which was rather less than three strands—web-based, telephone and face-to-face— reassuring. It said: and is being developed by my colleagues in the Treasury. “Figures from insurance company Zurich show that, while the When I talked to them about this earlier, they assured average length of retirement is 25 years, over half the population me that they feel they are on track to have enough believe they will be retired for 20 years or less. Most people also people and adequate systems in place to deal with the predict they will not live beyond 85. But figures suggest half of very large number of requests they will get. people retiring now could live to 90 or beyond”. One other thing that my colleague, Steve Webb, said That does not show an appropriate level of public about the change on 1 April was that he suggested understanding in facing this significant change. The people spend the day in bed rather than worry about noble Lord’s colleague, Steve Webb, the Minister in changing their pensions literally on day one. It is the other place, did not exactly use resoundingly assuring important that people take time to get not just the language in the article. He said: guidance but also to think about how they want to “We wouldn’t be doing it if we thought it was a disaster, but dispose of the funding they have in their pension pot. you do take a risk when you trust people with their own money”. I completely share the concern of the noble Lord I wish that his tone had been slightly more reassuring—I and several commentators that many people do not hope that the Government have a rather greater aspiration understand pensions at all. They have a pension but than the avoidance of disaster. I hope that in the short that is about all they know about it. One of the great time left before April they will do their best to improve potential benefits of this change and the fact that the level of education among the general public so everybody will get free guidance is that it will help that not too many people make decisions that they people to understand how a pension works. I think subsequently regret. there is a view in a lot of people’s minds that a pot of money called a pension is somehow different in some Lord Newby: The noble Lord is quite right to mysterious way from any other pot of money. The describe the order as filling a hole in the regulatory truth is that it is a pot of money available for them to structure. That is exactly what it does. He talked about dispose of, now pretty flexibly. People will need to two separate changes that are taking place from 1 April. confront their own mortality, possibly in a way that The relatively narrow one in terms of the number of they did not feel they needed to in the past. That is people we think are likely to take advantage of it is the undoubtedly a challenge to people but one that they flexibility for people with a defined benefit scheme or should face up to, and not just because of how they other safeguarded scheme to move to a more flexible deal with their pensions. It also affects a whole raft of scheme. That is what the order covers. People in that ways in which they think about their later years. For category are required to take advice via a regulated many people on the normal retirement age, that period adviser. We think that the majority of people with will be 30 years or more—a third of their life. safeguarded pensions will find, on taking that advice, It is a challenge. We are putting in place robust, we that it is in their best interests to retain them. However, hope, measures through the guidance systems in terms it is for them, in discussion with the IFA community, of these safeguarded pensions—the subject of this to decide on a case-by-case basis. order. That advice will ensure that people get the level I was asked whether there are enough properly of support they need to take the correct decisions and qualified people to do the work. There are about enable them to get the very best out of their pension 20,000 registered IFAs and around 7,000 of those are savings. Of course, at this stage we do not know pension transfer specialists so it is quite a body of whether our systems will be as robust as we hope they people. Given all the other changes that have taken will be. We do not know quite how people will respond place in the financial services sector, the concern of to this. However, I think we have behaved responsibly the IFAs in recent years has been that there was not in not only opening up the freedoms but also putting enough work to go around—or would not be in in place a system to ensure that people can exercise future—on their old model of operating. I suspect those freedoms in a responsible manner for their own that for this category of people, there will be adequate benefit. advice. The article to which the noble Lord referred and Motion agreed. many of his later comments were about the more general freedoms under which, from April, people will Committee adjourned at 4.49 pm.

Volume 760 Monday No. 110 2 March 2015

CONTENTS

Monday 2 March 2015 List of Government and Principal Officers of the House ...... 1 Questions Parliament: Conventions ...... 1 Defence: Strategic Defence and Security Review ...... 5 Tehran: British Embassy ...... 7 Astute-class Submarines ...... 9 Health Service Commissioner for England (Complaint Handling) Bill First Reading ...... 12 Warm Home Discount (Miscellaneous Amendments) Regulations 2015 Motion to Approve...... 12 Social Security Benefits Up-rating Order 2015 ...... 12 Mesothelioma Lump Sum Payments (Conditions and Amounts) (Amendment) Regulations 2015...... 12 Pneumoconiosis etc. (Workers’ Compensation) (Payment of Claims) (Amendment) Regulations 2015 ...... 12 Guaranteed Minimum Pensions Increase Order 2015...... 12 Automatic Enrolment (Earnings Trigger and Qualifying Earnings Band) Order 2015 Motions to Approve ...... 13 Employment Allowance (Care and Support Workers) Regulations 2015 ...... 13 Social Security (Contributions) (Re-rating and National Insurance Funds Payments) Order 2015 ...... 13 Social Security (Contributions) (Limits and Thresholds) (Amendment) Regulations 2015 ...... 13 Childcare Payments (Eligibility) Regulations 2015 Motions to Approve ...... 13 Shared Parental Leave and Leave Curtailment (Amendment) Regulations 2015 ...... 13 Companies Act 2006 (Amendment of Part 17) Regulations 2015 Motions to Approve ...... 13 Industrial Training Levy (Construction Industry Training Board) Order 2015...... 14 Industrial Training Levy (Engineering Construction Industry Training Board) Order 2015 Motions to Approve ...... 14 Recall of MPs Bill Third Reading...... 14 Counterterrorism Policy: Syria and Iraq Statement...... 40 Serious Crime Bill [HL] Commons Amendments ...... 44 Grand Committee National Minimum Wage Regulations 2015...... GC 1 Groceries Code Adjudicator (Permitted Maximum Financial Penalty) Order 2015 ...... GC 4 Electronic Commerce Directive (Financial Services and Markets) (Amendment) Order 2015...... GC 8 Financial Services and Markets Act 2000 (Miscellaneous Provisions) Order 2015...... GC 13 Financial Services and Markets Act 2000 (Banking Reform) (Pensions) Regulations 2015 ...... GC 14 Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No. 2) Order 2015 Motions to Consider...... GC 17