Vol. 710 Monday No. 77 18 May 2009

PARLIAMENTARY DEBATES (HANSARD) HOUSE OF LORDS OFFICIAL REPORT

ORDER OF BUSINESS

Questions Housing: Repossession Immigration: Sangatte Female Genital Mutilation Legal Aid Information Committee Motion to Publish Evidence Terrorism Act 2000 (Code of Practice for Examining Officers) (Revision) Order 2009 Transfer of Tribunal Functions (Lands Tribunal and Miscellaneous Amendments) Order 2009 Freedom of Information (Time for Compliance with Request) Regulations 2009 Housing (Replacement of Terminated Tenancies) (Successor Landlords) (England) Order 2009 Motions to Approve Law Commission Bill [HL] Order of Commitment Discharged Coroners and Justice Bill Second Reading

Grand Committee Business Rate Supplements Bill Committee (2nd Day)

Written Statements Written Answers For column numbers see back page

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© Parliamentary Copyright House of Lords 2009, this publication may be reproduced under the terms of the Parliamentary Click-Use Licence, available online through the Office of Public Sector Information website at www.opsi.gov.uk/click-use/ 1193 Housing: Repossession[18 MAY 2009] Housing: Repossession 1194

which allows landlords to evict people who complain? House of Lords While that provision remains, it is difficult for a complaints and redress scheme to work properly, as the landlord Monday, 18 May 2009. can evict the tenant who complains. Is the Minister aware that in America, where the private rented sector 2.30 pm is much further advanced, that problem has been overcome? Prayers—read by the Lord Bishop of Ely. Baroness Andrews: My Lords, I am very interested Housing: Repossession to hear what the noble Lord has said about American Question practice; I did not know that. The context for this is the Rugg review, which last week published its report 2.36 pm on the private rented sector. It recommended among other things the idea of a lighter-touch national register Asked By Baroness Scott of Needham Market of every private landlord in the country. That would To ask Her Majesty’s Government what protection increase protection both for vulnerable tenants and for is available to tenants of private landlords subject good landlords, which is the solution that we are to repossession proceedings. looking for. When the Rugg review looked at this problem, it found not that the problem is widespread but that the real issue is how to raise standards in the The Parliamentary Under-Secretary of State, private sector. If properties were properly maintained, Department for Communities and Local Government the problem of retaliatory eviction would not arise. (Baroness Andrews): My Lords, I share the concern of We will look at this in that much broader context. the noble Baroness about the problem of tenants who are evicted at very short notice when, through no fault of their own, their landlord is repossessed. We announced Lord Skelmersdale: My Lords, as the Minister has on 13 May that we intend to legislate to provide said, a lot, if not most, of the problem applies to additional protection for tenants caught in this situation sub-lessees, many of whom will be on housing benefit. and we will shortly be consulting on the details. In these cases, will their housing benefit be affected, or will they have to start again with a new claim? Baroness Scott of Needham Market: My Lords, I am grateful to the noble Baroness for that reply. Is she Baroness Andrews: My Lords, I am not properly aware of stories from Citizens Advice of individuals briefed on that, but my sense is that their housing coming out of hospital to find that the locks have been benefit would be protected. This would happen through changed on their property because it has been repossessed? no fault of their own. If the noble Lord will forgive Will the changes to which she refers include giving me, I will write to him. courts the power to defer the possession order to give time, particularly for vulnerable tenants, to make Baroness Hamwee: My Lords, I appreciate that the alternative arrangements? noble Baroness cannot commit to the date of legislation, but she will appreciate that those who are concerned Baroness Andrews: My Lords, I have certainly seen about the problem are also concerned about having to the Shelter report, which has many of the same sort of wait until the Queen’s Speech in the autumn and then stories about people who return home to find that the for new legislation. Will the Government see whether locks have been changed or who are given very little there is current legislation on to which they can add notice to find alternative accommodation. We think some of these provisions? In the mean time, will they that this involves a small minority—about 2,000 people— talk to the relevant parties about the pre-action protocol but that does not make it any less unjust. The problem and steps that the courts may or may not take? is that the landlord has not informed the lender that they have sublet their property and so the tenants have Baroness Andrews: My Lords, I cannot pre-empt no tenancy rights. We plan to legislate at the earliest any legislative vehicle, for the reasons that the noble opportunity for the tenants affected, so that we can Baroness gave, but we will certainly find the first ensure that all tenants in this situation get at least two relevant legislation that we can. We have to consult months’ notice if they need to leave their home for any properly because this is a complicated situation, as she reason. That would put them on the same footing as will know, given her experience. Tenancy agreements other tenants. We are now discussing with lenders and are very complicated indeed. We have to work—and the debt and housing advice providers how to change we are working—closely with lenders, who have been the law to best effect. very supportive on this, as have the lobby groups. We need to improve the current practices when an Lord Best: My Lords, I declare my interest as unauthorised tenant is found in the property. We are chairman of the Property Ombudsman Council, which working to mitigate the impact on tenants whose deals with complaints against estate agents and the landlords are in arrears. For example, in April we managing agents and letting agents of private landlords. extended the period of the possession order to seven I am much encouraged by the Minister’s response, but weeks, which will help. We will try to get as much are the Government addressing the parallel issue of information as we can to tenants who may be vulnerable, evictions under Section 21 of the Housing Act 1988, but the difficulty is in finding them. 1195 Housing: Repossession[LORDS] Immigration: Sangatte 1196

Baroness Gardner of Parkes: My Lords, is the Minister and France have worked together to create one of the aware that there used to be a parallel situation with most secure border crossings in the world at Calais. utilities, such as gas and electricity? People would find This is achieved through the rigorous searching and the bailiffs coming because the man who owned the screening of lorries, exchanging information on the whole block had not paid his bills or done anything changing nature of the threat and by sharing high about them. This was resolved with the utilities by levels of border-control expertise. Last year, we detected agreeing a code of conduct with them, so that they and prevented more than 28,000 individual attempts would check whether there were tenants in a property; to cross the channel illegally. if there were, the utilities would notify the tenants and, in some cases, accept payment—even the landlord’s Lord Naseby: My Lords, while those figures payment—directly from the tenant. Perhaps something undoubtedly sound very impressive, why are so many of that type could be brought in. people under 18 getting into the United Kingdom? Apparently, we do not deport them with the adults Baroness Andrews: My Lords, I am learning a lot in who also get in. Secondly, is not the whole thing made the course of this Question. I am grateful to the noble even worse by the fact that Her Majesty’s Government Baroness for that interesting information, which should have not paid back to Eurotunnel the amount, which go into the consultative process. If there is some way runs into several millions, that it has spent on security? of solving this, we need all the help that we can get. Even today, I am told—I inquired yesterday—about 10 Afghans a day attempt to get into the United Lord Roberts of Llandudno: My Lords, is the new Kingdom. Does that not suggest that Her Majesty’s legislation to be confined to England, or are Scotland, Government’s policy on Afghanistan is somewhat Wales and Northern Ireland also to be kept in tow lacking? on this? Lord West of Spithead: My Lords, that was really a Baroness Andrews: My Lords, my best advice is that series of rolling questions. I do not accept that very it applies to England only, but I will write to the noble large numbers of people under 18 are coming into the Lord if I am wrong. country. There is no doubt that some are, and it is quite difficult almost by definition to know exactly how many get in illegally, but we have been very Lord Bates: My Lords, is not the scale of this successful at picking up the ones who manage to get problem growing dramatically, with repossessions rising through the very strict border controls. We deal with by 50 per cent in the first quarter of this year? Are the under-18s very specifically and carefully to ensure there not two simple further methods that the Minister that we comply with all the safeguards that are there could use? The first would be to ensure that the for people of that sort of age. I will look at the tenants have a right to appear at a court when a question about Eurotunnel and get back to the noble repossession case is being heard against their landlord. Lord in writing. The second would be to allow tenants to remain in a repossessed property under licence, pending the sale of that property. Lord Avebury: My Lords, under Clause 57 of the Borders, Citizenship and Immigration Bill, the UKBA and the contractors who work for it have to safeguard Baroness Andrews: My Lords, those are two interesting the welfare of children under their control, but only in suggestions, which I will refer to the consultative process. the United Kingdom and not at the juxtaposed controls As for where we are with houses that are being repossessed, that are referred to in the Question. Will the Minister it is quite interesting that the CML, which suggested say what the logic is of applying different standards to that there would be in the order of 75,000 repossessions the treatment of children according to whether they this year, is phasing its figures down. In the first are in Yarl’s Wood or Sangatte? Will he also say why quarter we saw only 12,000 repossessions. That is still such a duty would prevent the authorities handing a significant number, but maybe not as many as we over a child to the French or the Belgians, where the thought. child is refused leave to enter or is found to be at risk, as they do at present? What will be contained in this Immigration: Sangatte duty that will stop them doing that? Question Lord West of Spithead: My Lords, the noble Lord is 2.44 pm well aware that we had a long debate on these issues during the passage of the BCI Bill through this House, Asked By Lord Naseby and I do not intend to go into the detail of that again. We liaise very closely with the French and with the To ask Her Majesty’s Government what action is International Organisation for Migration in dealing being taken in Sangatte, France, to stop non-European with people who we think might be under 18. France Union immigrants, particularly young people under signed the convention in May 2006. The cases of 18, from entering the United Kingdom illegally. unaccompanied children who seek asylum are considered by the French authorities. We co-operate daily with The Parliamentary Under-Secretary of State, Home the French authorities. Clandestines under the age of Office (Lord West of Spithead): My Lords, since the 18 are handed into their care and control, and we are closure of Sangatte camp in 2003, the United Kingdom content that they deal with them appropriately. 1197 Immigration: Sangatte[18 MAY 2009] Female Genital Mutilation 1198

The Countess of Mar: My Lords, there are reports Lord West of Spithead: My Lords, the United Kingdom in the press that people who find the French crossing and France remain firmly opposed to any sort of too difficult now pay to fly to Ireland and come in Sangatte reception centre. There has been some confusion from that direction. If those reports are true, will the because there is a facility within our juxtaposed controls, Minister say what discussions he has had with the which is a bit like a portakabin, where we hold people Irish Government to prevent this happening? when they have been pulled off these lorries temporarily. We want to construct a better and more appropriate Lord West of Spithead: My Lords, the noble Countess facility to do that before they are returned to the raises an important point. We have real concerns not French. I think that is where there has been some just about the attempted entry of illegals into the CTA confusion. We are in dialogue with the French about through Ireland but about serious crime and other that, as we are on a number of issues to do with costs issues. That issue was raised in our debates on the BCI around the port of Calais. Bill, and we discussed it. We have had a lot of debates with the Irish Government on this issue. They want us Lord Wallace of Saltaire: Is the Minister aware that to strengthen our border controls, and they have already Sangatte is not the only camp of this sort within the gone about strengthening their own. European Union? There is now a camp at Patras in western Greece for people who have got into Greece, The Earl of Onslow: My Lords, am I right in overwhelming the islands on which they have landed. assuming that these gentlemen who wish to come in As they are allowed off, they get to the western edge of from Afghanistan or Kurdistan are illegal immigrants Greece and then do their best to go illegally from into France when they are in France? If I am right, can Greece into Italy and then beyond. someone explain why the French do not send them back to Afghanistan rather than just leaving them to Incidentally, this is not a French problem, it is a us to send back if they get over? Schengen problem. Malta is similarly overwhelmed. Can the Government assure us that we are now working Lord West of Spithead: My Lords, I would like to very closely with the Governments of Malta and Greece say easily that anyone would rather live in this country as well as that of Italy to cope with the surge of illegal than in France, but I dare not say something like that immigrants being trafficked across the Mediterranean, on the Floor of the House. There is no doubt that if many of them intending to reach either Britain, Sweden someone is genuinely fleeing persecution, they should or other countries in northern Europe? claim asylum in the first safe country that they get to. If they are not in need of protection, we and the Lord West of Spithead: My Lords, what the noble French expect to return them home. There are complexities Lord says is true. There is no doubt that this flow of in French law, but we are dealing with the French very trafficked people—and also some who are not necessarily closely. The new Minister, Eric Besson, has been in trafficked but who are economic migrants—is becoming dialogue with my honourable friend Phil Woolas about a flood. The global financial crisis will probably add this. There is a lot of work to do. The French genuinely to that. I am aware that we are in discussion with want to help, but they have real difficulties. It is very certain countries about this. I do not know the exact complicated, but absolutely anyone who comes should detail of it all. Even three years ago I was involved in be taken in the first country that they get to. This is a discussions with the Maltese about the real problem real problem. they have of picking up shipping that is coming across the Mediterranean, very often in sinking condition. Lord Corbett of Castle Vale: My Lords, how many They are ending up with huge numbers of these people people over the past year or two have the French in their island. It is a real problem. Perhaps I could get found to be illegally present in France and deported to back to the noble Lord in writing about what dialogue their country of origin? Do the French still tolerate is going on because I am not sure about what exactly is this class of people they call people without papers— happening in that area. personnes sans papiers? They are left there, wandering around like lost souls. That does not seem to comply with the undertakings they have given about the treatment Female Genital Mutilation of those seeking asylum. Question

Lord West of Spithead: My Lords, I am not sure of 2.53 pm the status of these people as regards papers. I know this was being addressed by their Minister, Eric Besson. Asked By Baroness Rendell of Babergh It is one of the problems the French authorities have. We are in close liaison with them and we work very To ask Her Majesty’s Government what assessment hard. I do not know the exact number that they have they have made of the decision by the National returned. If I do have that figure, I will get back to my Health Service to advertise surgical reversal of female noble friend in writing. genital mutilations on Somali television in April.

Baroness Hanham: My Lords, Sangatte has gone. The Parliamentary Under-Secretary of State, There were rumours that the Mayor of Calais was Department of Health (Lord Darzi of Denham): My going to establish further reception centres. Will the Lords, female genital mutilation is a cruel and brutal Minister tell us if any discussions have taken place on practice that the Government are determined to tackle. that and, if so, where we are on this? An advertisement from an NHS trust appeared on a 1199 Female Genital Mutilation[LORDS] Female Genital Mutilation 1200

[LORD DARZI OF DENHAM] Lord Patel: My Lords, following the Act, how Somali satellite TV station featuring a midwife giving many prosecutions have there been in this country? advice about surgical reversal of female genital mutilation. Although a local initiative, the Department of Health Lord Darzi of Denham: My Lords, since the Female is supportive of raising awareness in practising Genital Mutilation Act was passed, there has been no communities to improve access to health services. Since prosecution to date. it was aired, 10 women have undergone surgical reversal at the well woman centre. The Lord Bishop of Southwell and Nottingham: My Lords, given the danger of all surgical procedures and Baroness Rendell of Babergh: My Lords, I thank my that prevention is better than cure, will the Minister noble friend for his Answer. Seeing that the group encourage co-operation between his department and which produced this advertisement is receiving at least other government departments in imaginatively and 15 phone calls per week applying for reversals, which creatively trying to design new rights of passage into incidentally would be done in doctors’ surgeries rather adulthood for those cultures, not just the Somalis, than hospitals, does he think it would be a good idea which persist in this destructive practice? to put out this advertisement or a similar one in other languages, because female genital mutilation is carried out in many African countries, not just in the east Lord Darzi of Denham: My Lords, the right reverend of Africa? Prelate is correct that a multi-agency approach is needed. The Department of Health is jointly funding an FGM co-ordinator to co-ordinate the work across Lord Darzi of Denham: My Lords, the noble Baroness the Home Office, the Department of Health and the is correct in relation to the carrying out of these DCSF to ensure cohesive joined-up interventions to procedures in the community. In fact, the example address female genital mutilation. Last week, the she gives applies to a GP practice, where a midwife Department of Health announced a health task force does these procedures under local anaesthesia. The to look at violence against women, which has been Department of Health is supportive of penetrating established to investigate the scale of the problem and such communities with whatever tools are available, identify best practice to share within the NHS. This including advertising and the provision of advice in task force will comprise senior figures from the NHS, different languages. The NHS Choices website also health professionals and the voluntary sector. provides support for such communities. Let us not forget that we also have 14 specialist clinics in the NHS to treat women and girls who have been mutilated. Baroness Howarth of Breckland: My Lords, I hear These clinics have well trained and culturally sensitive what the Minister says about the cultural implications staff who offer a range of healthcare services, including and the knowledge we have of using communities to reversal surgery. deal with such issues. I declare an interest as someone who works with families in ritual abuse. What is the department doing to work with and to support voluntary Baroness Tonge: My Lords, while I welcome the organisations, as they have the people who can get move taken by the Department of Health, is it not into the communities? more important to catch the perpetrators of this violent act against young girls in the first place? I understand that around 500 girls were subjected to female genital Lord Darzi of Denham: My Lords, the department mutilation in the past year and we do not know by is and has been working closely with the Foundation whom, despite it being illegal in this country and for Women’s Health, Research and Development first illegal to take girls abroad for the operation. Surely it to identify the prevalence of this issue, and, secondly is not beyond the wit of the Government, the medical but more importantly, to work in partnership with the profession or the health service authorities to launch a voluntary sector to penetrate these communities. I sting operation to find out who is doing this violent have no doubt that noble Lords will agree that in order act against these children and who is enabling them to to have an impact, we need to approach this issue in a go abroad to have it done. multisectorial fashion, which needs to be sustained. More importantly, it needs to be community led. Lord Darzi of Denham: My Lords, I agree. We need to approach this issue in a number of different ways, Baroness Massey of Darwen: My Lords, are there including identifying those culprits. Legislation has any public education programmes in this country targeted been through these Houses, including the Female Genital specifically at younger women—for example, in schools, Mutilation Act, which makes it very clear that there youth clubs and further education? can be imprisonment of up to 14 years. We also have a reward structure available. I stress that the evidence Lord Darzi of Denham: My Lords, the Department base suggests that communities that have employed a of Health and others have been involved in a number process of collective decision-making have been able of publications, to ensure that such information is to abandon this practice. It is most important to tackle available to those who work in the health service and some of the cultural issues to ensure that families and in schools, ensuring that at a local level we are able communities come to the police to report such incidents to identify children at risk, and to allow professionals and that this change from the social norm is desired at to raise concerns with the social services in relation to a local level. those children at risk. 1201 Female Genital Mutilation[18 MAY 2009] Information Committee 1202

3pm of the current changes would be disproportionate on this group of people and have the real danger of Legal Aid leading to a reduction in diversity at the Bar? Question Lord Bach: My Lords, we know that a large number Asked By Lord Pannick of those working in this field are women, and many are BME too. We have an independent Bar, and it is To ask Her Majesty’s Government whether they clerks in independent chambers who decide who will will maintain the rates of legal aid payments in do what work. It is not for the Government, I am family law cases. afraid, to say that women should do less family work than other pieces of work, and the same goes for BME Lord Pannick: My Lords, I beg leave to ask the barristers. This is important work that should be done Question standing in my name on the Order Paper. In by both men and women. The figures for earnings for doing so I declare an interest as a practising barrister, barristers in this field are as follows: family barristers although not one practising family law. earn on average £44,000 a year from family legal aid work, but of course are able to increase their earnings The Parliamentary Under-Secretary of State, Ministry by working for privately paying clients. In fact, research of Justice (Lord Bach): My Lords, my department and by the Family Law Bar Association shows in a recent the Legal Services Commission have consulted on new report that the average family law barrister has a gross fees for family legal aid cases for 2010. These proposals median annual income of £93,000. are still being developed, and discussions continue with barristers and solicitors. For the first time, the Lord Clinton-Davis: My Lords, have not all, I repeat fees will fairly reward both barristers and solicitors all, legal aid cases fallen disastrously over recent years? with the same fees for the same work. Family legal aid At present, no one but the poorest is able to go to law, costs have risen unsustainably from £399 million per to litigate. What are the Government going to do year to £582 million per year in the past six years. We about this situation? need to control these costs in order to protect services Lord Bach: My Lords, we spend £2 billion per year for vulnerable clients. on legal aid, which is a large amount by any standards. It is arguable that, at £1.2 billion, we spend too much Lord Pannick: My Lords, I thank the Minister. on criminal legal aid. It is not arguable and absolutely However, will he confirm that the ministry is proposing clear that, at £200 million a year, we do not spend to introduce fixed advocacy fees for categories of enough on social welfare law. That is the kind of law family law cases, irrespective of their complexity? This that we have to develop, particularly at a time of will mean a reduction on average of 20 per cent to economic difficulty. 30 per cent of the payment in public funding for substantive hearings in complex cases. Is the Minister Lord Lester of Herne Hill: My Lords, is the Minister aware of the very substantial concern among judges aware that, in the opinion of the Family Law Bar and practitioners about the implications for children Association, at a time of heightened concern over and for parents because the hearings to resolve these child protection, the current proposals for cutting complex and important cases—many involving the family legal aid funding from 2010 will put the most permanent separation of parents and their children—will vulnerable in our society at increased risk not only of now be argued, if these proposals are adopted, by not having suitable representation, but of having no reason of the funding position on one side by representation at all? Will the Minister ensure that the inexperienced advocates, resulting in a much greater Family Law Bar Association is given a fair opportunity risk of a miscarriage of justice? to respond to the Ernst & Young report when it is published before final decisions are taken? Lord Bach: My Lords, we value very much the commitment of all lawyers who work in the interests Lord Bach: My Lords, these proposals do not represent of the most vulnerable members of society who become cuts to the legal aid budget, but are designed to reduce involved in family legal proceedings. That work, which increasing case costs. The proposed fees are based on is of course paid for from the public purse, is never 2007-08 figures with reapportionments across all advocacy likely to be as financially rewarding as that for private cases so that the same costs are payable regardless of clients, but it provides an important public service. who undertakes the work. The House should know The Legal Services Commission has received a number that solicitors do the majority of family work, including, of very constructive and helpful responses throughout these days, some of the most complex and difficult this consultation. No decisions have been made and cases of all. we will be considering those responses as we develop our final proposals. It is likely that the final scheme Information Committee will have more graduation and complexity, and the Motion to Publish Evidence legal Services Commission is working with stakeholders to develop amendments to it. 3.08 pm Moved By Lord Brabazon of Tara Baroness Butler-Sloss: My Lords, I welcome the That the evidence taken by the Select Committee Minister’s comment about more graduation. However, shall, if the Committee so wishes, be published. is he aware that more than 60 per cent of legally aided barristers are women and/or BME, and that the effect Motion agreed. 1203 Terrorism Act 2000 Order 2009[LORDS] Coroners and Justice Bill 1204

Terrorism Act 2000 (Code of Practice for Lord Lloyd of Berwick: My Lords, I understand Examining Officers) (Revision) Order 2009 that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a Motion to Approve manuscript amendment or to speak in Committee. Unless, therefore, any noble Lord objects, I beg to 3.08pm move that the order of commitment be discharged. Moved By Lord West of Spithead Motion agreed. That the draft order laid before the House on 26 February be approved. Arrangement of Business Relevant Document: 8th Report from the Joint Committee on Statutory Instruments. Considered in Announcement Grand Committee on 12 May 3.09 pm Motion agreed. Lord Bassam of Brighton: My Lords, before my noble friend Lord Bach rises to make his speech, I ought to advise the House that there are 44 Members Transfer of Tribunal Functions (Lands on the speakers list for the Second Reading of the Tribunal and Miscellaneous Amendments) Coroners and Justice Bill today. I should advise noble Order 2009 Lords that if Back-Bench contributions were kept to no more than eight minutes, the House should rise not long after the target rising time of 10 pm. Freedom of Information (Time for Compliance with Request) Regulations 2009 Coroners and Justice Bill Motions to Approve Second Reading

3.08 pm 3.09 pm Moved By Lord Patel of Bradford Moved By Lord Bach That the draft orders laid before the House on That the Bill be read a second time. 24 and 26 March be approved. The Parliamentary Under-Secretary of State, Ministry Relevant Document: 11th Report from the Joint of Justice (Lord Bach): My Lords, I will be the first to Committee on Statutory Instruments. Considered in admit that this is a wide-ranging Bill, but I make no Grand Committee on 12 May. apology for that. The Ministry of Justice and its partner agencies face many challenges. There are, quite Motions agreed. rightly, increasing demands for more effective, transparent and responsive public services, enhanced public protection, Housing (Replacement of Terminated improved access to justice and a strengthening of Tenancies) (Successor Landlords) rights and responsibilities. The Bill will contribute to each of these outcomes. (England) Order 2009 It will help criminal justice agencies to focus on the Motion to Approve needs of victims and witnesses, particularly the most vulnerable. It will strengthen the protection of the 3.08 pm public through changes to the law on pornographic Moved By Baroness Andrews images of children and the sentencing of terrorist offenders. It will provide a more accessible and responsive That the draft order laid before the House on coroner service for bereaved families. It will also help 19 March be approved. safeguard the public’s right to have their personal Relevant Document: 11th Report from the Joint information protected and reinforce the responsibilities Committee on Statutory Instruments. Considered in on data controllers to comply with the data protection Grand Committee on 12 May. principles. These are all high aspirations, but there is no reason Motion agreed. why we should not strive to fulfil them and this Bill will play a part in that endeavour. I turn now to the detailed provisions in the Bill. Law Commission Bill [HL] Part 1 lays the foundation for a wide-ranging reform Order of Commitment Discharged of the coroner and death certification systems. The Shipman inquiry and the fundamental review of coroners 3.09 pm and death certification both advocated a radical overhaul Moved By Lord Lloyd of Berwick of the current arrangements. Two changes are essential and are at the core of the provisions in Part 1. The first That the order of commitment be discharged. is to place the needs of bereaved families at the heart 1205 Coroners and Justice Bill[18 MAY 2009] Coroners and Justice Bill 1206 of the coroner service and the second is to restore wholesale reform of the law on murder. However, we public confidence in the protection afforded by the judge that the reform of this particularly sensitive area death certification process, so the Bill will introduce a of the criminal law should be taken forward in a number of key reforms of the coroner system. staged approach. The most pressing areas in need of Bereaved families will, for the first time, have a clear reform are the partial defences of diminished responsibility legal standing in the investigations process, with new and provocation, in order to ensure more just and rights of appeal against coroners’ decisions. The Charter equitable outcomes in individual cases. for Bereaved People, a draft of which has been published With regard to provocation, the new “loss of control” alongside the Bill, will set out clear national standards partial defence will ensure that a defendant who has of service for those who come into contact with the killed in anger will be able to plead the partial defence reformed coroner system. only in extremely grave circumstances. It also makes While maintaining a locally delivered and funded clear that, in this day and age, sexual infidelity on the service, the Bill introduces for the first time national part of the victim can never constitute sufficient grounds leadership through a Chief Coroner. The Chief Coroner for reducing murder to manslaughter. On the other will be responsible for setting national standards, including hand, a person who kills in response to a fear of those for training, supporting local coroners and hearing serious violence should be able to put forward the appeals against coroners’ decisions. defence on that basis, rather than seeking to shoehorn I want to give your Lordships notice of some it into a defence based on killings in anger. government amendments that I intend to bring forward The changes to the partial defence of diminished in Committee which will introduce a further element responsibility will ensure that this area of law is to this national structure. modernised and properly takes into account the needs Aside from their heavy responsibilities for the and practices of medical experts. This is as it should investigation of certain deaths, coroners retain one be, given that it is the evidence of such experts which is residual function dating back to their 12th century crucial to determining whether any claim of diminished origins; namely, the investigation of treasure finds. responsibility is properly made out. Following the debates in the other place, we are persuaded The changes to the law on assisting suicide are of the case for establishing a national coroner for intended to increase public understanding that the law treasure so that in future local coroners can devote all applies to the internet as it does offline. Our aim is to their time to their core responsibilities. I hope this simplify and update the law in this area and not to decision will be particularly welcomed by the noble change its scope. Lord, Lord Redesdale, my noble friend Lord Howarth of Newport and other noble Lords who have played There will be many in this House who want to see a an important role in this field and by their colleagues change in the law with a view to legalising doctor-assisted on the All-Party Group on Archaeology. dying in certain circumstances. Equally, many of your Lordships would be emphatically opposed to such a The Bill will also remove archaic restrictions on the change. This House has debated this issue on a number transfer of investigations between coroners’ areas so of occasions, including in the context of Private Members’ that inquests may more readily be held closer to the Bills introduced by my noble friend Lord Joffe. It is an family of the deceased. Our reforms of the death issue that stirs passions on both sides of the argument certification system will see the introduction of a and I can understand why a number of noble Lords uniform process that is applicable irrespective of whether would welcome the opportunity for a fresh debate. If I a body is to be buried or cremated. Central to these may give some cautious advice, though, the issue of reforms will be the introduction of medical examiners doctor-assisted dying is too important and too profound who will independently verify medical certificates of for it to be slipped into a passing government Bill. It the cause of death and provide medical advice to local warrants a Bill of its own and, in the Government’s coroners. view, a Private Member’s Bill at that. Finally in this part of the Bill are the provisions relating to the certification of coroners’ investigations. Clause 61 sees a return to our debates last Session We introduced these provisions to address a very real on the new offence of incitement to hatred on grounds issue; namely, how to ensure that there is an Article 2 of sexual orientation and, in particular, to the question compliant investigation in those very exceptional and of whether it is necessary to include a provision purporting rare cases where there is highly sensitive material, such to protect freedom of expression. The House will as intercept evidence, that cannot be made public. recall that the consideration of the need for such a That problem remains. But, as my right honourable provision had to be abruptly brought to a close because friend the Lord Chancellor announced on Friday, we of the need to secure early Royal Assent for the have concluded that the provisions in Clauses 11 and Criminal Justice and Immigration Bill, but we made it 12 do not command sufficient support and should be clear at the time that the Government would return to withdrawn. Where it is not possible to proceed with an this issue. inquest under the current arrangements, the Government The offence of inciting hatred on grounds of sexual will instead consider establishing an inquiry under the orientation has a very high threshold. The offence will Inquiries Act 2005 to ascertain the circumstances in be made out only where a person uses threatening which the deceased came by his or her death. words or behaviour with the intention of inciting Part 2 makes a number of important changes to the hatred. There are no circumstances in which the right criminal law. I know that a number of noble Lords will to freedom of speech should justify such behaviour. be disappointed that we are not proceeding with a The additional provision inserted “for the avoidance 1207 Coroners and Justice Bill[LORDS] Coroners and Justice Bill 1208

[LORD BACH] in an inflexible US-style sentencing grid system, where of doubt” is unnecessary and could serve to cause there is no room for discretion to take account of the confusion about the ambit of the offence. In our view circumstances of a particular offence or a particular it should be removed. offender. Nor are these provisions about dictating to The provisions in Part 3 deal with witness anonymity the sentencing council the format of its guidelines. orders. They also mark a return to familiar territory The Bill ensures flexibility in the way guidelines are which we considered last Session. During the passage framed, to allow for the entire range of offences that of the emergency Criminal Evidence (Witness Anonymity) the council may consider. We are also receptive to the Bill, we acknowledged that there needed to be a further argument that Clause 107 of the Bill can be improved and fuller opportunity to consider the detail of the by providing more discretion with regard to the statutory scheme to protect the anonymity of vulnerable components of the guidelines, and accordingly we are witnesses, while safeguarding a defendant’s right to a actively considering what further changes to make to fair trial. Chapter 2 of this part re-enacts, with only this clause. minor modifications, the provisions of that 2008 Act. Part 7 introduces a new civil scheme, which will That Act has now been in operation for some nine enable the courts to order a convicted criminal who months, and all the indications are that it is working has received a payment or other benefit from writing well, including the arrangements for the appointment or speaking about his crimes, to pay the money back. of special counsel where one is needed. The central premise behind these provisions is that it is Chapter 1 of Part 3 seeks to augment the provisions wrong for criminals to benefit from their crimes, whether in respect of witness anonymity at trial with provision directly from the initial criminal act, or subsequently for investigation anonymity orders. The purpose of by exploiting the notoriety they have gained. It is this new order is to encourage witnesses to come distressing enough for victims to have to suffer the forward with information to the police, by providing experience and consequences of the crime itself; that additional reassurance that their identity will be protected. suffering should not be further compounded by the I, of course, freely acknowledge that the investigation knowledge that the criminal is cashing in on the pain anonymity order is innovative. How useful a tool it and hurt they have caused. will prove to be for the police remains to be seen. That I come now to Part 8, which deals with data protection. is why we have, at least initially, limited the availability The provisions in this part are designed to strengthen of these orders to witnesses to gang-related homicides, the protection of personal data by building on the but it is incumbent on the Government to explore all audit, inspection and enforcement powers already available possible means to rid our inner cities of the scourge of to the Information Commissioner. All organisations gun and knife-fuelled gang violence. These orders will hold and use data. In the public sector, personal data be experimental, but an experiment which the police are used to expand opportunities for the most service tells us is worth trying. disadvantaged, to protect the law-abiding majority Part 4 establishes the Sentencing Council for England and to deliver improved public services. While realising and Wales. In doing so, the Bill will implement the these benefits, government departments and agencies unanimous and majority recommendations of the also need to be fully alert to the risks of personal data Sentencing Commission Working Group, chaired by either deliberately or inadvertently falling into the Lord Justice Gage. In bringing together the functions wrong hands. All data controllers have a duty to take of the existing Sentencing Advisory Panel and the action to mitigate such risks, but as a regulator the Sentencing Guidelines Council, the Bill will streamline Information Commissioner needs appropriate powers the process of producing sentencing guidelines. However, to ensure compliance with the data protection principles. we believe that the council will be more than the sum Clause 156 will put on a statutory basis the system of the two bodies it replaces. The council will have new of “spot check”assessments that are currently undertaken duties to monitor the effect of its guidelines and to on government departments by the Information assess the resource impact of the guidelines and of the Commissioner. Assessment notices are designed to Government’s policy and legislative proposals. raise awareness of and compliance with the data protection At its core, the recommendations of the Gage report principles. They are designed to help raise standards; and, in turn, the provisions of the Bill, seek to ensure they are not an enforcement tool in themselves. While greater transparency, greater consistency, and greater these provisions have been welcomed, including by predictability in sentencing. Greater transparency is your Lordships’ Constitution Committee, two issues needed so that there is clarity and openness through have been raised; namely, the scope of the assessment guidelines as to how offenders might expect to be notice regime and the absence of an enforcement sentenced. Greater consistency will ensure a more mechanism. On both these issues we continue to listen even application of sentencing guidelines, allowing for to the arguments. appropriate judicial discretion. Greater predictability I assure the House that we are not unsympathetic will enable Government and Parliament to foresee, to the arguments that have been put forward. I make a with a reasonable degree of accuracy, the total impact couple of observations. On the scope of the assessment on prison and probation resources of sentencing practice, notice regime, there is already a power to apply the guidelines and proposed legislative changes, and to regime to private and third sector organisations exercising plan accordingly. functions of a public nature. I accept there is not a Let me be clear on what these provisions are not neat dividing line between the public, private and third about. They are not about tying individual sentencing sectors and that we need to promote compliance with decisions to the availability of prison places. Nor are data protection principles across all sectors. The question they about forcing judges and magistrates to operate for the House is whether that existing power goes far 1209 Coroners and Justice Bill[18 MAY 2009] Coroners and Justice Bill 1210 enough, or whether certain parts of the private sector on behalf of the Opposition that we welcome that should be subject to assessment notices—perhaps those move, as, I am sure, do many Members of your that process particularly sensitive information or very Lordships’ House. high volumes of data. The first part of the Bill is devoted to the coroners’ On enforcement for non-compliance, it is important service. Broadly speaking, we support what the to put on record that the Information Commissioner Government have done. However, in some respects, we already has a number of separate enforcement tools think that they have not gone far enough, particularly available to him, including issuing an information or in relation to financial arrangements, by which I am enforcement notice or applying for a search warrant referring not to the total amount of money to be under Schedule 9 to the Data Protection Act. But I devoted to the coroners’ service but to the way in acknowledge the argument that a failure by a data which it is to be distributed. The coroners’ courts are controller to comply with an assessment notice should not to be part of the Courts Service and therefore will have direct consequences. All regulatory systems need not get its support. The Chief Coroner has no budget. to be proportionate and targeted. I look forward to Therefore, everything depends on the postcode lottery. debating whether Part 8 of the Bill as drafted gets the I should like to take this matter further in the time that balance right. I have available in this Second Reading debate; but I Before closing, I give notice of one further amendment know that the noble Lord, Lord Ramsbotham, is lying that I intend to table for Committee stage. This links in wait for the Minister further down the speaking list; back to my previous comment on Part 8 that any in due course, the Minister will get a much fuller and regulatory regime needs to be proportionate and targeted. more competent analysis of this problem than I am The House will be aware that the Courts and Legal able to give this afternoon. Services Act 1990 regulates certain types of no-win Briefly, I also draw the Minister’s attention to a letter no-fee arrangements, but not others. Conditional fee issued by the Marchioness Action Group on 23 April. agreements, which allow for a “success” fee to be It says a number of things, but I think that I can added to a representative’s normal fee, are subject to encapsulate its sense of direction in a few sentences. regulation, but the same protection is not afforded to It says: vulnerable claimants when it comes to damages-based “The new Bill does not incorporate lessons learnt after the agreements. These agreements, which are particularly Marchioness, Shipman and Alderhay. It has retained the ‘old’ Coroners System with only a few ‘minor’ amendments to existing prevalent in employment tribunal proceedings, allow laws. We therefore question the validity of the new bill to achieve the representative to take a percentage of any damages a duty of care to the bereaved”. awarded as their fee for bringing a case. We intend to Without addressing myself to the content of that bring forward an order-making power to control how statement, I feel that it needs a response from the these agreements operate. Among other things, it would Minister. The Minister well knows of the bona fides of be possible under the power, which will be subject to this action group and the appalling experiences that its the affirmative procedure, to place a cap on the percentage members have undergone. This issue of a duty of care that can be deducted from damages. We will consult to the bereaved—even if, at the end of the day, the on the detail of the order as the Bill makes its way Government do not feel that it is something that they through the House. The continued absence of controls can put on the face of the Bill—needs a powerful on this type of agreement is not in the public interest. answer. I hope that the Minister will attempt to give We need to plug this regulatory gap as quickly as such an answer at the end of the debate. He may feel possible to provide protection to vulnerable claimants. that something fuller is more appropriate at a later I have no doubt that there are a number of issues stage of the Bill. covered by the Bill that will be robustly debated. I Another matter to which I must direct my attention welcome that. However, I hope that, throughout the under Part 1 is the Government’s decision, last Friday, scrutiny process, we will not lose sight of the needs of to withdraw Clauses 11 and 12. This decision was those who have suffered as a result of crime, and announced in a press release by the right honourable also witnesses and, of course, bereaved families. They gentleman, Jack Straw. deserve the best possible service from criminal justice agencies, coroners and their staff. I commend the Bill Lord Bach: My Lords, it was given in a Written to the House. Ministerial Statement to this House before the press release; it was given in a Written Ministerial Statement to the other House, which was sitting on Friday. I want 3.30 pm to make that clear. It was not done by way of press Lord Kingsland: My Lords, the Minister described release alone. this Bill to your Lordships’ House as “wide-ranging”. We take the view that it could be broken up into Lord Kingsland: My Lords, I am most grateful to several Bills and that it would probably, as a consequence, the Minister. I was not about to make a constitutional get better scrutiny. I prefer to call this Bill a miscellany point about the inappropriateness of making such an or even a farrago, redolent of Mr Churchill’s famous announcement; I was simply using the press release to pudding. explain to your Lordships’ House—for those noble Lords who have not read it—what the right honourable However, I want to start off on a positive note. The gentleman, Mr Straw, said. He stated that, Minister announced that the Government have had “following further discussions in the House and with interested second thoughts about the position of the treasure parties it is clear the provisions still do not command the necessary coroner and have decided to restore it. That was cross party support and in these circumstances the Government the position when the draft Bill was considered. I say will table amendments to remove clauses 11 and 12 … from the 1211 Coroners and Justice Bill[LORDS] Coroners and Justice Bill 1212

[LORD KINGSLAND] law defence of provocation. That was one of the Bill. Where it is not possible to proceed with an inquest under the matters considered by a wide-ranging Law Commission current arrangements, the Government will consider establishing report on murder, published in 2006. Frankly, to refer an inquiry under the Inquiries Act 2005 to ascertain the circumstances back to what I said at the beginning of my speech, I the deceased came by his or her death”.—[Official Report, Commons, 15/5/09; col. 68WS] would far prefer that matter to have been dealt with in the context of a wider reform of the law of murder; As I understand it from what the Minister said, he and, as a matter of detail, I simply do not understand will come forward with amendments in relation to this why, in the Government’s search to raise the hurdle for matter in Committee. However, I should like for a few a plea of provocation, sexual infidelity is singled out minutes to point out to him one or two of the potential as an issue that would not be accepted as a provoking pitfalls of the Inquiries Act, if it is the Government’s factor. intention to use it for the purposes that Mr Straw announced. There are important provisions on encouraging or First, in what circumstances can such an inquiry be assisting suicide. As your Lordships’ House would convened? Here we should look at Section 1(1), which accept, they are entirely a matter of conscience. I await states: with interest the debate on that issue, to which I shall listen and perhaps participate in. “A Minister may cause an inquiry to be held under this Act in relation to a case where it appears to him that— Clauses 54 to 58 deal with prohibited images of (a) particular events have caused, or are capable of causing, children. We entirely accept the necessity for these public concern, or clauses in the Bill. (b) there is public concern that particular events may have occurred”. Clause 61 concerns hatred against a person on This is a very wide-ranging discretion that has been grounds of sexual orientation. I am sure that most of given to the Minister. Will the noble Lord bring forward your Lordships are aware that the clause seeks to in Committee or on Report a clause constraining the reverse the decision of your Lordships’ House in the Minister’s discretion to an appropriate level in relation debate and vote last spring when your Lordships to the task that the Secretary of State for Justice seeks approved the amendment moved by my noble friend the Inquiries Act to perform? Lord Waddington—now Section 29JA of the Public It is clear that a High Court judge can be appointed Order Act 1986. I voted for my noble friend’s amendment to be chairman of an inquiry, but the Secretary of at the time and I intend to do so again. State, under Section 3, has discretion as to whether to add other members. I presume that one consideration However, let me add one point. The Minister said might be whether certain lay members should sit with that the Government stated at the time that they the High Court judge in lieu, in a sense, of a jury. intended to bring back this matter at a later stage. I do not remember exactly what the Minister said at the The section that most worries me, however, is Section 5, appropriate moment; but surely the correct constitutional which states in subsection (1): approach for the Government to have taken would “In the instrument under section 4 appointing the chairman, have been to reverse, in another place, the amendment or by a notice given to him within a reasonable time afterwards, moved by my noble friend Lord Waddington and to the Minister must … before that date… set out the terms of reference of the inquiry”. have come back to your Lordships’ House in the usual way. The Government chose not to do that. Therefore, That is a very reasonable requirement. However, I do not think it constitutionally proper for the Section 5(3) goes on to say: Government to raise the issue at the first opportunity “The Minister may at any time after setting out the terms of after those events took place. Your Lordships are reference under this section amend them if he considers that the entitled to conclude that the Government had reached public interest so requires”. the decision that the amendment moved by my noble Subsection (4) states: friend Lord Waddington was acceptable. That should, “Before setting out or amending the terms of reference the in my submission, be taken into account by your Minister must consult the person he proposes to appoint, or has Lordships when we make up our minds how to deal appointed, as chairman”. with the issue which will undoubtedly be before us One can envisage a situation in which a High Court again as we consider the Bill. judge has been appointed and has accepted the terms of reference; then, at some stage during the inquiry, The clauses on anonymity of witnesses broadly the Minister suddenly issues an alternative term of reflect the emergency legislation, which we previously reference. There is, indeed, an obligation to consult the supported. I just make two observations. First, I am judge; but the judge lacks the power to veto the sorry not to see in the Bill an initiative that received Minister’s decision to alter the terms of inquiry. particular support from the noble Lord, Lord Thomas of Gresford, involving a statutory procedure that would I could go on about the details; but I hope and trust give power to the judge to appoint special counsel to that your Lordships will have heard enough to know look into an application by the prosecution for the that it will simply not be enough for the Government anonymity of certain witnesses. I know that there is a to say, “We will use the Inquiries Act as a substitute common law power for a judge to refer the matter to for Clauses 11 and 12”. Your Lordships’ House needs the Attorney-General; but it is used rarely, the procedure a great deal more than that. with respect to it is unclear and, when it is used, it has I will deal with other parts of the Bill as swiftly as I proved time-consuming. Frankly, I do not understand can, because I know that there is a large number of why the Government are not prepared to put this speakers. Clauses 45 and 46 seek to abolish the common matter on the face of the Bill. 1213 Coroners and Justice Bill[18 MAY 2009] Coroners and Justice Bill 1214

My second observation is the inescapable fact that and academics as well—were never reached on the our hands are tied down tightly by the case of Davis, Floor of the House of Commons. Two days were which itself flows from the jurisprudence of the European allocated there for Report and Third Reading, and on Court of Human Rights. Where the credibility of a the first of those days government last-minute business witness is the decisive issue in a case, it will simply not ensured that debate did not start until 6 pm in the be appropriate or, ultimately, useful to use the anonymity evening, so that the proposals about murder were provisions, however tempting they are in the context never debated on the Floor of the House. of matters such as gang warfare. We refer to the process whereby amendments are As the Minister will have seen from studying the passed by this House, rejected by the other and returned proceedings in another place, the Opposition have to us for further consideration as ping-pong—or, as grave reservations about the terms of reference for the Boris Johnson would call it, whiff-whaff. This language new Sentencing Council for England and Wales. I of the playroom may enable the Government to play know that there is a saving clause referring to the down the significance of the constitutional anomaly “interests of justice”; but what worries me about all that has now been reached whereby the elected this is that judges are increasingly seen—if I may put it House has ceased to debate a Bill in full at all. We can bluntly—as civil servants. They are not seen as independent apply that to all the Bills that come before your under the throne, as they ought to be viewed Lordships’ House. constitutionally. The constraining of their discretion In the field of law reform, there have been two in the Bill is at least one and possibly two steps too conflicting strands in the Labour Government over far. I know that the Minister will say that a very the past 12 years. The enlightened strand comprised distinguished—and indeed he is very distinguished—Lord those who realised the real importance to the people Justice of Appeal, Lord Gage, reached certain conclusions of this country of emphasising and enforcing their in his report. However, his report makes it clear that individual human rights and who have taken the trouble he expects a number of other things to happen before to draw clear lines between the judiciary, the Executive the approach that the Government take in the Bill and the legislature. I give as examples the Human is adopted. Rights Act, the creation of the Supreme Court and the We were very pleased that the Government decided appointment of judges by an independent Judicial to withdraw those parts of the Bill that dealt with Appointments Commission. information sharing. We broadly support what remains However, in more recent years another tendency on this matter, although we would like to see specific has taken control of the Government. Perhaps in the provisions in place to address situations where information light of rebuffs to defective legislation in the courts, is carelessly lost. that tendency does not trust the judiciary and seeks to There are other matters of importance in the Bill to limit and to confine the role and discretion of the which I have not had time to refer. I am delighted to judge—as the noble Lord, Lord Kingsland, said a say that my noble friend Lord Henley will be winding moment ago, to turn the judge into a civil servant. You up on behalf of the Opposition and I have no doubt will recall, for example, the Government’s argument in that he will cover any gaps that I have left. 2004, in the case of the nine foreign detainees held under the Terrorism Act in Belmarsh prison without 3.47 pm trial, that the judicial decision-making was undemocratic. The noble and learned Lord, Lord Bingham, giving Lord Thomas of Gresford: So here we are again, my the lead judgment of the Judicial Committee on which, Lords. A sensible reform of the criminal law would be exceptionally, nine Law Lords sat, said the following, to take a single topic, to carry out research and, after which we should have in the front of our minds: full consultation, to deal with that topic comprehensively but concisely in a single Bill which would pass through “It is of course true that the judges in this country are not Parliament after proper debate and scrutiny by both elected and are not answerable to Parliament. It is also of course true … that Parliament, the executive and the courts have different Houses. It appears from what the Minister has said functions. But the function of independent judges charged to this afternoon that this will happen on the issue of interpret and apply the law is universally recognised as a cardinal assisted dying but not on the law of murder—which feature of the modern democratic state, a cornerstone of the rule one would have thought had much wider implications of law itself. The Attorney General is fully entitled to insist on the for the public of this country. It does not happen, of proper limits of judicial authority, but he is wrong to stigmatise course. I called the last criminal justice Bill, last year, a judicial decision-making as in some way undemocratic”. ragbag. This Bill, to adopt the word of the noble Lord, It is right, when we approach another Bill of this type, Lord Kingsland, is a miscellany of no fewer than to emphasise that the independence and integrity of 15 discrete and complex topics that have been thrown the judiciary, and of the legal profession on which the together. Important issues were crowded out in the judiciary depends and from whose ranks it is constantly other place, and at this stage it is quite impossible for renewed, are vital pillars of democracy.It is no coincidence me to cover even a majority of the issues that arise. I that in states where the lawyers and judges are attacked am, however, supported by my noble friends on these until they become tools of the Executive, democracy Benches, who will themselves deal with discrete matters. does not flourish. It is a constitutional scandal that the Government’s I suspect that the people of this country would not proposals for the reform of the law of murder to want judges swept away from the Bench and replaced which I referred a moment ago—regarded as deeply by elected politicians; nor, to recall earlier defeated flawed and unworkable by all those who have practical government proposals, that ordinary juries should be experience of the criminal law: judges, barristers, solicitors replaced in complex fraud cases by expert juries of 1215 Coroners and Justice Bill[LORDS] Coroners and Justice Bill 1216

[LORD THOMAS OF GRESFORD] conducting on his own without legal representation investment bankers or other City operators. That is from any quarter, but where an interested party—be it what came before us and that is what this House a factory owner, the police, the Prison Service or the rejected. military—instructs solicitors and counsel to protect its I hope to demonstrate the relevance of those own interests, surely there should be a clear right for observations in considering some of the Bill’s provisions. the family to have legal aid. Very often, in factory I start briefly with sentencing—my noble friend Lady accidents, police shootings, prison cell deaths and Linklater of Butterstone will be winding up on this military deaths, there are significant parties whose topic. It is important to consider what is proposed in interests are to minimise or contest the cause of death. the Bill and to see that there is an attempt in Clause 107, The family deserves to be represented. in particular, to confine, cabin and crib the decisions I give an example. In April 2007, two colour sergeants, of judges in sentencing matters. including Mark McLaren, aged 27, were crushed to The Minister said that the Bill is not about restricting death under a Puma helicopter. The landing of five judges, that we do not have grid lines and that there is helicopters in the hours of darkness north of Baghdad supposed to be flexibility. The Sentencing Council was botched, and two of them collided. Mark’s family could be a very positive thing. It could do a great deal was told that legal aid was not available for representation of good in educating the public. My noble friend will at the inquest, although the Ministry of Defence had expand on those ideas in due course. However, it is an instructed counsel. I am pleased to say that the noble example of how the Government’s tendency to try to Lord, Lord Bach, listened to representations from me. cut down the role of judges is made obvious. Following representations, a special procedure was employed, which gives the Legal Services Commission I turn to Part 1, concerning coroners. I declare an discretion to grant legal aid. After much worry and interest in that in my early years as a solicitor, my form-filling, the family was indeed granted legal aid as senior partner was the coroner for Denbighshire and a matter of discretion. At the inquest last December had presided over the largest inquest that this country the coroner heard that Sergeant McLaren had been has seen—the inquest into the deaths of about 280 miners fastened in by a harness that was defective and should in the Gresford Colliery disaster of 1934—so I was have been replaced. aware early in my career of the significance of coroners and the important role that they play. There have been Several soldiers and RAF personnel gave evidence all sorts of reports about coroners. There have been anonymously from behind a blue curtain to the effect draft Bills, pre-legislative scrutiny, changes announced that the blades of the helicopters had not clashed and and a draft charter for bereaved people. You would that this was all wrong. They were cross-examined on think that there was enough meat for a discrete Bill on behalf of the family by an experienced solicitor-advocate. coroners alone, which could be properly discussed and The coroner rejected the anonymous evidence and scrutinised in both Houses. concluded that Sergeant McLaren would not have The greatest controversy has so far been over Clauses 11 been thrown out of the helicopter if he had been and 12. Of course, last Friday, as we have heard, the provided with the correct equipment. The coroner Lord Chancellor withdrew those provisions. However, made recommendations to the Armed Forces Minister timeo Danaos et dona ferentes: the Lord Chancellor’s on this and on four other important safety issues, but statement envisages that the Government will instead the sting in the tale is that the cost of the families’ consider, in undefined cases, establishing an inquiry representation will be deducted from any compensation under the Inquiries Act 2005. I adopt the reservations that the family may subsequently receive. Of course, that the noble Lord, Lord Kingsland, expressed on the taxpayer will pay the Ministry of Defence’s costs this topic a moment ago. Worse than that, Section 19 for instructing counsel at the hearing. We accept many of that Act permits a Minister to issue a restriction notice things about coroner reform. It is good to have a single to the chairman of an inquiry to restrict disclosure or service, but the funding is a different issue, and remaining publication of any evidence—or documents given, with local authority funding will not be satisfactory. produced or provided to the inquiry—on the grounds Part 2 deals with murder, infanticide and suicide. of public interest. That public interest is defined in the The law on murder is widely agreed to be in a mess. In Inquiries Act in far broader terms than in the provisions October 2004, the Home Secretary announced that that the Lord Chancellor is now dropping, including, the Home Office, the Department for Constitutional for example, damage to the economic interest of this Affairs and the Attorney-General’s Office would jointly country—such as the arms trade, shall we say? It would review the law on homicide. The Law Commission give power to the Minister, by the restriction order carried out the first part of that review, although it under the Inquiries Act, to exclude the family from the was precluded specifically from considering whether hearings. My noble friend Lady Miller of Chilthorne the mandatory life sentence should remain. It published Domer will say more on this topic in due course. a report that completely restructured the law on murder The Government often declare their determination into a three-tier system. The first tier would require to put the victim first. Where death has occurred in proof of an intention to kill or of acting with the extraordinary circumstances, the family of the deceased knowledge of a serious risk of death, and would carry are the victims. The noble Lord said a moment ago a mandatory life sentence. The second tier would that they deserve the best possible services. I hope that require proof of an intention to cause serious harm will include a right to legal aid for the family, because only, and would give the judge the discretion to determine at the moment it is refused. There are undoubtedly the appropriate sentence. The Law Commission proposed many inquests that a coroner is perfectly capable of that partial defences of diminished responsibility 1217 Coroners and Justice Bill[18 MAY 2009] Coroners and Justice Bill 1218 and provocation would reduce first-tier murder to 4.06 pm second-tier murder rather than, as at the moment, to Baroness D’Souza: My Lords, on 8 April this year, manslaughter. the High Court in London ordered the release of four The Government have looked at all this and have Rwandans suspected of genocide who were arrested proceeded on a pick-and-mix basis. They have rejected and had been held in the UK since 2006. The evidence the three-tier structure as a whole but have plucked of their active involvement in the terrible events of out the Law Commission’s proposals on provocation, 1994 in Rwanda, painstakingly gathered over many diminished responsibility and infanticide. However, years, indicates that at the very least there is a case to the proposals were carefully designed by the Law be answered. The reason the High Court reached this Commission not to amend the existing law of murder decision is because of an anomaly in UK law which and manslaughter but as part of its proposed three-tier effectively allows impunity from serious crimes. structure. We shall explore in Committee why the Government rejected its proposal that the diminished I speak on this topic because of a long-term interest responsibility partial defence should be available to a in justice for those suspected of heinous crimes and to child or young person under 18 on the ground of introduce on behalf of the noble Lord, Lord Carlile—who developmental immaturity. A purist situation is now unfortunately is unable to be here today—his concern envisaged in which a 40 year-old man can claim diminished and, indeed, his intention to table amendments to the responsibility if he has the emotional maturity of a Coroners and Justice Bill to deal with this gap in the 10 year-old, but a 10 year-old has no defence of law. I acknowledge here the assistance of REDRESS, diminished responsibility for having that very same an anti-torture organisation of which I was once director, lack of maturity. African Rights and the Aegis Trust. On the partial defence of provocation, we have in The amendments that will be tabled would allow this Bill the Law Commission’s mangled proposals jurisdiction in the UK Courts over those present in the and, it appears, from a feminist agenda. First, Clause 44 UK and suspected of crimes against humanity, war provides that a loss of control will reduce murder to crimes and genocide. In so doing, they would address manslaughter if there is a “qualifying trigger”. The the limitations of the International Criminal Court loss of control, however, does not have to be sudden or Act 2001, which came into force in the UK in September temporary as it does in current law. I do not see how 2001, regarding crimes committed after that date. At the loss of control can be anything other than sudden, present the law allows such action only if the suspect is but that is what the Bill says. a UK national or resident in the UK. Another oddity, to which the noble Lord, Lord In the interest of clarity, let me give a hypothetical Kingsland, has referred, is that a thing done or said example. A person who is a UK national or resident that constitutes sexual infidelity is to be disregarded. charged with serious crimes against humanity committed Why should a jury be prevented from considering a after 2001 and outside UK territory is nevertheless loss of control due perhaps to some of the deepest subject to UK jurisdiction. However, should that person passions that can be aroused, and on the other hand be a non-resident who happens to be in the UK, he or take almost the most trivial thing as provocation so she is entirely free to carry on living in the UK with long as it does not involve the concept of sexual impunity. Thus the anomaly is that those suspected of infidelity? extremely serious crimes can visit Britain, live in the There is so much more that I could say and I know UK without taking up residence or visit to obtain that I am wearying your Lordships by continuing as medical treatment and escape prosecution. As the long as I am—although I am now getting some noble Lord, Lord Lester, has pointed out, if a UK encouragement from my left. Are the proposals based citizen and a non-UK resident Iraqi citizen were both on sexual infidelity the result of evidence? The Domestic to commit a crime against humanity, the UK citizen Violence, Crime and Victims Act 2004 provided, in would face the law in the UK but the Iraqi would not. Section 9, for domestic homicide reviews. That was There are other inconsistencies which we would another compendious Bill, of some 63 clauses and seek to remedy within the context of this Bill. A 12 schedules. I cannot find that there has ever been a contradiction, for example, has arisen for all the right domestic homicide review. That is another provision reasons in the case of the four Rwandan suspects in that Act which has not been brought into effect. All recently released. To allow extradition to Kigali might these things are put forward—someone has a bright have infringed the Human Rights Act by risking a less idea in the Home Office to bring it forward, it goes than free or fair trial, ill treatment and/or even the through, there is a solid majority in the other place death penalty. That should not result, however, in their and nothing happens. That is precisely what has happened impunity. The amendments which will be tabled would with the Commissioner for Victims and Witnesses, allow a prosecution to go ahead, not in Rwanda but which has now been resurrected in this Bill. The here in the UK, for these non-residents who conspired provision was passed in 2004 and not at any stage to commit genocide in 1994, within existing UK legislation. implemented. A second anomaly in the law concerns retroactive There are so many other issues here that we will be justice. It is a fundamental feature of UK, European looking at in due course—witness anonymity, encouraging and international law that statutes should not be or assisting suicide, and vulnerable and intimidated retroactive. Justice requires that conduct which was witnesses. For the moment, however, I have gone on not criminal when carried out cannot be penalised. long enough and I shall allow your Lordships to Thus, those who are suspected of serious crimes continue what should be a lengthy and very interesting committed prior to 2001 also have impunity under the debate. International Criminal Court Act. The intention is to 1219 Coroners and Justice Bill[LORDS] Coroners and Justice Bill 1220

[BARONESS D’SOUZA] vulnerable people, not least young people, by so-called amend the Act procedurally to allow the UK courts to suicide websites. This is a very sensitive area where prosecute past acts that were crimes at the time using people frequently act under tragic and burdensome the Genocide Act 1969, the War Crimes Act 1991 and pressures. We must avoid criminalising people who are the Geneva Conventions Act 1957. In so doing, these merely discussing their feelings. We should seek to amendments would simply allow the UK courts to ensure that the operation of the law is compassionate implement existing law in a broader range of cases. towards people who find themselves in a difficult These cases are by no means rare. It is reported position because their relatives wish to end their own that, since 2004, something like 600 cases per year lives. However, it is vital that the law should continue have come up and it is believed that there may be more to prohibit irresponsible or unscrupulous actions which than 100 suspects in the UK at the moment against would have the effect of encouraging or assisting whom there is compelling evidence of involvement in suicide. serious crimes. A further amendment will seek to In Committee, your Lordships’ House must examine establish a dedicated and adequately resourced police the drafting of these clauses so that the lines are drawn unit to follow up such cases. As I understand it, the in the right place, as clearly as possible. We should not Metropolitan Police is fully in favour of such a unit accept any amendments which would relax the existing and funding has been applied for. law and diminish the protection offered to those at Ultimately, the concern is to close a gap in UK law risk of self-destruction. Such a step would be wrong in into which suspects can and do fall, and thus remain itself. It would also be totally inappropriate in the in the UK. This anomaly sends a message to the world context of this Bill, which proceeds from the assumption that serious crimes in the UK will not be dealt with by that the existing law is right in seeking to protect life, the justice system. In turn, this approach perhaps and needs to be changed in order to do so more conveys a further message that crimes against humanity, effectively in today’s circumstances. war crimes and genocide will not be punished due to Thirdly, Clause 61 reopens last year’s argument an easily remedied technicality and that therefore the about incitement to hatred on the ground of sexual UK is a safe haven. Finally, unless we muster the orientation, by removing the provision ″for the avoidance political will to treat these crimes with the full weight of doubt″ which was added to the definition of the of the law, we will be no nearer to building a culture of offence through the efforts of the noble Lord, Lord deterrence for such heinous crimes. Waddington. The change has become symbolic, perhaps even totemic, for people on both sides of the argument, 4.11 pm but it is worth reminding ourselves that the basis of disagreement is relatively narrow. The Lord Bishop of Southwell and Nottingham: My We on these Benches have no problem with the Lords, we are faced again with yet another wide-ranging principle that people should be protected from criminal justice measure, which was described in another inflammatory and intimidating behaviour towards them place as “a Christmas tree Bill” from which many on the basis of their sexual orientation. Nor, indeed, topics could be hung. As previous speakers have do we quarrel with the definition of the offence, which mentioned, a few baubles seem to have fallen off, such provides a high threshold by requiring both the intention as the Government having had better thoughts about to stir up hatred, and words, actions or material of a their proposals on information sharing and certified threatening character. inquests. I shall touch on three subjects in particular which concern these Benches. Our concern is with the potential application of the law to restrict legitimate discussion and expression of First, I welcome the fact that the Bill takes further opinion about sexual ethics and sexual behaviour—bearing steps to support and protect witnesses—they have in mind that existing public order legislation has sometimes been a long-neglected group. The integrity and been used to warrant over-zealous police investigations effectiveness of our criminal justice system depends against people with conservative views on homosexuality. on the ability of witnesses to give evidence to the best It is generally agreed that this should not be so. The of their ability and without intimidation. At the same question is, how is it best avoided? Your Lordships’ time, any measures to assist witnesses must not House voted in favour of a statutory statement that compromise the right of defendants to a fair trial. The discussion or criticism of sexual conduct would not Bill rightly seeks to balance these requirements against of itself constitute an offence. It is hard to see any each other. objection to this most modest of provisions. The worst Last year, your Lordships’ House wrestled with the that can be said is that it might be unnecessary, whereas dilemmas raised by the Criminal Evidence (Witness its removal could be damaging to the freedom of Anonymity) Bill. The need for speedy action was clear. expression. It therefore seems to me that the case for But it will be helpful to revisit those questions, as well Clause 61 is weak, and I hope that in due course your as to consider the new proposals on anonymity in Lordships will not approve it. investigations and help for vulnerable and intimidated My selective focus today does not imply that other witnesses, while remembering that vulnerable defendants matters in the Bill are unimportant. Its provisions on may be among those in need of such help. defences to murder, possession of images of children, Secondly, I welcome the attempt in Clauses 49 to 51 sentencing, legal aid and criminal memoirs are highly to clarify the bearing of the law on assisted suicide significant, as indeed are the issues raised by the noble upon internet material. Since the Suicide Act 1961, Baroness, Lady D’Souza, a moment ago, pertaining to developments in communication mean that powerful the intentions of the noble Lord, Lord Carlile, with influences can be brought to bear on emotionally which I also associate myself. 1221 Coroners and Justice Bill[18 MAY 2009] Coroners and Justice Bill 1222

To return to the analogy of the Christmas tree, and the justice system is now there for those guilty of these proposals are less like baubles than sets of fairy committing acts of genocide or something similar. If lights—complex, tangled and liable to fuse. They require these four people cannot be deported to Rwanda, we more sustained and intricate treatment, which we on as a nation should help the Rwandans as much as we these Benches look forward to in Committee. I support can. All that is required is that the crime of genocide the Bill. be made retrospective to a date—1991 is the obvious one—set before the genocide in Rwanda. I strongly support what the noble Baroness, Lady D’Souza, has 4.17 pm said and I will strongly support the amendment proposed Lord Falconer of Thoroton: My Lords, I, too, support by the noble Lord, Lord Carlile. I hope very much that this Bill. Of all the public services, the justice system is this House would regard such an amendment as something the one that requires legislation to change it. I am that we can do as an indication of our obligation to deeply out of sympathy with those in your Lordships’ scrutinise. I do not believe for a moment that it would House who criticise the Bill for being a Christmas tree. divide any feeling in this House at all. Having been Lord Chancellor and Justice Minister, I The second point that I wish to make relates to know that you have to fight to get particular provisions assisted suicide. The noble Lord, Lord Bach, is absolutely in. I think that the right way in which to judge a Lord right to say that it is wrong for us in this House to try Chancellor or Justice Minister is to look at the extent to embark on any significant changes in the law on to which he can drive through changes within the assisted suicide. What this Bill does, in effect, is to Government and the quality of those changes. I believe re-enact the law with changes to reflect the way in that the Lord Chancellor in this case shows that he has which the law has changed in practice over the past got clout in government and that the judgments that few years. I strongly oppose the law being re-enacted he has made are the right ones in relation to what without reflecting one significant change. The Director changes are required. Although it is easy to say, “We of Public Prosecutions will not prosecute people who, should just move methodically from one area of the in good faith and with good motives, assist a loved one law to another”, if you are serious about change and to go to a clinic in Switzerland or another place where reform in the justice system, you have to pick and suicide is lawful. He will not prosecute because he choose. I think that, by and large, the judgments that rightly believes that it is not in the public interest to the Lord Chancellor has made are accurate. prosecute in those circumstances. I wish to refer to two particular matters. First, I strongly support the plea made by the noble Baroness, Approximately five days ago, the previous DPP, Sir Lady D’Souza, in relation to genocide. What she Kenneth Macdonald, said on the radio that there were described was an entirely correct decision made by the 100 cases in which he had decided not to prosecute in High Court a few weeks ago that four Rwandans these circumstances. It is wrong as a matter of principle, charged with genocide could not be deported to Rwanda as the noble and learned Lord, Lord Bingham of because they would not, by British standards, receive a Cornhill, said on the same programme, that the law fair trial. I do not contest the conclusion of the High should be set to one side by one individual, no matter Court; indeed, I am almost certain that it was the how important that individual is. This House should correct one. However, those people cannot be prosecuted not re-enact Section 1 of the Suicide Act, which makes in this country, because the horror of the Rwandan it a crime to assist suicide, unless it properly reflects genocide, in which 800,000 people died over the space the way in which the law operates at the moment. of three months, took place in 1994 and the law in this There are two further reasons why the amendment country applies only to crimes that have occurred after should be passed. The first is that, if we do not put in a 2002. We need to change the law. detailed amendment, we will not be able to identify the The noble Baroness, Lady D’Souza, referred to the proper safeguards in relation to such a provision. The issue of whether it is wrong to change the law current situation is that the Director of Public Prosecutions retrospectively. The human rights convention says that makes a decision applying his common sense. There it is legitimate to change the criminal law retrospectively are no guidelines as to what is required as a matter of where something is criminal, safeguard; he simply focuses on the facts and comes “according to general principles of law recognized by civilized to an overall decision. The right course is that we nations”. should put in safeguards so that what is required is If I need to say that in 1994 it was recognised by much clearer. civilised nations that genocide was a crime, it seems as The second reason is that there is uncertainty about though I am stating the obvious. However, I have a the law. However much one may, as a matter of principle, legal basis for saying it as well as one of common oppose the idea of this being allowed, it happens. sense, which is that in 1991 the United Nations set up People should know what the law is. Miss Diane Purdy the International Criminal Tribunal in The Hague to should not be forced to go to court to try to seek try those who were guilty of the Yugoslavian genocide. immunity for her partner before he takes her to Civilised nations, as represented by international law, Switzerland. It is wrong that the law is so uncertain, so had committed themselves to the recognition of genocide I will support an amendment in this House not to seek as a crime. We should do the same here, and we should to change the law fundamentally in relation to assisted do it for a particular reason. suicide but to make the law reflect the way in which it The Rwandan nation has done its level best to deal is operated. That is how the law should operate and with the genocide in an acceptable way. There were the one of the functions of this House is to ensure that tribunal hearings in Arusha, which have now finished, that is right. 1223 Coroners and Justice Bill[LORDS] Coroners and Justice Bill 1224

[LORD FALCONER OF THOROTON] I want to mention two other matters regarding Finally, it is a source of great sadness to me that Clause 61. Jack Straw asserted in the Commons that I Viscount Bledisloe is not here today. He participated had always made it plain that my purpose was to make in every justice Bill in which I have been involved since a conviction for stirring up hatred on the grounds of 1997, when I came into the House. His contributions sexual orientation more difficult. Of course, I have were significant and effective. We shall all miss him. never said anything of the sort. What I have said often is that, while not out to weaken the protection that the 4.26 pm Government say that they seek to give gays, I want what is outside the scope of the Bill to be made Lord Waddington: My Lords, in deference to the absolutely plain in order to avoid the scandals of the noble and learned Lord, I will not refer to the Bill as a past and to protect freedom of expression. Not only ragbag, but he cannot deny that it is made up of a have I said that, but Mr Straw’s own notes on clauses collection of unrelated measures, some of such importance say that the free speech clause does not raise the that most would take the view that they should have threshold for the offence or make prosecutions more been the subject of separate Bills. Some in this category, difficult. such as the changes to the law of murder, were scarcely considered in the Commons because of an absurdly It has been suggested that any possible difficulties restricted timetable. can be dealt with by guidance and that that is better than legislation. That, I suggest, is plain wrong. Guidance The Bill contains the new offence of encouraging or is not binding, so it can be ignored. Not only is a assisting suicide. In my view, there is nothing wrong simple, short, pithy free speech clause more likely to be with creating such an offence, but the danger of popping read than reams of guidance, but it is much more it into a Bill such as this is already apparent, with likely to be heeded. Furthermore, there is already pro-euthanasia campaigners indicating their wish to guidance available in the shape of the 2007 CPS Guidance amend the Bill so as to allow assisted suicide to at least on Prosecuting Cases of Homophobic and Transphobic some extent. It would be appalling if they were allowed Crime, which, far from inspiring confidence, seems to to succeed. I agree with the Minister that whether make the case for the free speech clause. Somewhat assisted suicide should be allowed is a very complex surprisingly, the document says that homophobia does and highly controversial matter. The subject, if Parliament not necessarily mean hatred of gays but covers mere wishes to consider it yet again, should be treated as dislike of their practices. Basing their reasoning on the the very important matter that it is and not as if all Stephen Lawrence definition of a racial incident, the that is required is a little tweaking and finessing of authors go on to say that a homophobic incident is existing law. any incident perceived to be such, Clause 61 repeals a provision that only last year the Government put on the statute book. That is truly “by the victim or any other person”. extraordinary behaviour and, so far as I know, behaviour So there you have it. By that guidance, the police are as without precedent. It is not right to say that, being up good as encouraged to investigate incidents that amount against the clock, the Government had no option but to no more than a member of the public complaining to act as they did. Indeed, I was having an early dinner that someone else has had the temerity to criticise with my noble friend Lady O’Cathain, who throughout homosexual practices. Indeed, that is precisely what has been an enormous help to me on this issue and has been happening; it is what has caused outrage and who will speak later on the matter touched on by the precisely what gave birth to the free speech clause. It is noble Baroness, Lady D’Souza. When we were having what happened to the Roberts couple from Fleetwood; dinner that evening last May, there were many hours it is what happened to Lynette Burrows, who dared to left for the amendment to be further considered in the question the desirability of gay adoption on the radio. Commons and for it to come back to us, but after a There is a real danger that similar scandals will occur short while we were told that the Government were in the future, but it is a danger that the free speech not going to contest the matter further. clause can help to avoid. It is then said that the Government made it plain I understand that new guidance is promised, but I that, although accepting the amendment, they would would not like to be in the shoes of the person charged seek the first opportunity to remove it. I have to tell with drafting it. He would clearly be failing in his duty your Lordships—I shall not mince my words—that if he did not give a clear explanation of why there was that is simply untrue. I need only refer your Lordships a free speech clause in the religious hatred offence but to what the Minister said in the other place on 7 May no such clause in the sexual orientation offence and if last year. She said that, he did not explain what weight should be attached to “between now and commencement we will prepare guidance … the right of free speech in one case rather than the explaining the operation of the new offences … Of course there other. It would have to be a work of some ingenuity will be an opportunity—doubtless there will be frequent and subtlety—beyond the grasp, I fear, of most of us. opportunities—to revisit the issue in due course if it is the will of Frankly, I am amazed at the Government’s sheer this House or the other House to do so. On that basis, I would like to propose that we do not disagree with the Lords in their said recklessness in being prepared to create such an anomaly amendment”.—[Official Report, Commons, 7/5/08; col. 808.] in our law. It is ludicrous to suggest that those carefully chosen No decent person supports the stirring up of hatred, words were an indication that the Government were but no reasonable person should object to peaceful going to remove the free speech safeguard in the very criticism and discussion of sexual behaviour. The law, next Session without even waiting to see whether in as it stands with the free speech safeguard, makes the practice it caused any difficulties for prosecutors. point with complete clarity. It is sad that the Government 1225 Coroners and Justice Bill[18 MAY 2009] Coroners and Justice Bill 1226 should be setting out to blur what is now clear and to instigation of hatred— which I hope that very few of remove a protection that events have already shown to us, if any of us in this House, would ever support, be necessary. certainly against people whose sexual orientation is They could not pick a worse time to behave in this for some reason not that of the mainstream—and, on way. There is, right now in this country, an intolerance the other hand, a shrinkage of the concept of what of Christians of a sort that I never thought I would freedom of speech is all about. This is deeply disturbing, see. Street preachers are threatened and Christians whatever our politics may be, and it is the duty of this expressing mainstream orthodox views on sexual House in particular, given its long constitutional behaviour are harassed and abused. A marriage registrar obligations, to ensure that freedom of speech is maintained is bullied at work for asking to be excused from civil when it means only no more than creating some partnership duties; a housing charity worker is suspended offence to somebody, as distinct from arousing attitudes for discussing with a colleague his beliefs about same-sex of hatred or persecution towards them. It is a difficult relationships. balance. It is one that I fear we may be getting quite badly wrong. I fear that, if the Government get their way, not only will this intolerance grow, and those bent on Secondly, I refer to another controversial issue that silencing all who disagree with them gain new strength, has come up—that of assisted suicide. I remind the but many will take the revocation of the safeguard as a House of a commitment by the Minister of Justice in signal that voicing views on morality—even making the other place: jokes about homosexuality—could attract the attention of the police and that they would be wise to keep “We therefore intend to legislate to update the Suicide Act”.— quiet. People will be reluctant to express their views, [Official Report, 17/9/08; col. 142WS.] when the right to express views, including views that She went on to say that the entire Act needed to be other people might not like, is one of the hallmarks of looked at again in the light of new information, concerns a free society. and legal judgments. That was a crucial pledge—that I confess that I am not greatly concerned about the other House should look in detail at the whole what people may think of the Government. I do, issue of suicide and assisted suicide. I say with great however, fear what people will think of us if we respect to the noble Lord, Lord Bach—given the time supinely let the Government get their way on this limitations, he introduced the Bill as thoroughly as he matter. could—that it is not enough to say that this should be left to a Private Member’s Bill. The Government should 4.36 pm stick by the Minister’s commitment given in 2008—that this is a matter that the lower House should consider Baroness Williams of Crosby: My Lords, one of the in detail, because it is too important to be left in great concerns that I have—many people who are abeyance and in a state of uncertainty. currently concerned about the crisis that faces the British Parliament are very much aware of it—is the Thirdly, I strongly support the arguments put forward difficulty that the flood of legislation we now have by the noble Baroness, Lady D’Souza—eloquently provides for those of us who are attempting to scrutinise supported by the former Lord Chancellor, the noble in detail very complex and often very important pieces and learned Lord, Lord Falconer of Thoroton—regarding of legislation. The Bill that we have before us now is the absolute necessity of introducing legislation to one that has the greatest repercussions for civil liberties, ensure that those who are accused of genocide can be for freedom of speech, for issues concerning the rights prosecuted here if they cannot be returned to their of prisoners, and for issues concerning the rights of own country for fear that they would not get a fair those who live here as asylum seekers or are in other trial. We prosecute torturers on exactly the same grounds. ways detained in this country. There is no argument for prosecuting torturers who It is very difficult, in a situation where, at Second cannot be extradited for the reasons given in the Reading, there is precisely one minute for every 20 clauses House of Lords judgment of February 2009 when we of the Bill, actually to deal with it in the way that cannot prosecute those guilty of genocide. Parliament should. I begin by saying that I do hope I add a further factor to the case argued so effectively the Government’s managers will think very carefully by the noble Baroness, Lady D’Souza, and the noble about the current organisation of legislation, which and learned Lord, Lord Falconer; namely, that it is means that we can spend hours and hours and hours inherent in the crime of genocide to seek delay. A on the Marine and Coastal Access Bill and only a UN-assisted trial is taking place of a major torturer limited amount of time on one of the most important who was principally responsible for the deaths of Bills to be put before this Parliament. 1.7 million people in Cambodia 30 years ago. His Having said that, I will use my eight minutes as best name is not easy for me to pronounce but for those I can. I will refer very quickly to the two particularly who wish to pursue the matter he is a Khmer Rouge controversial issues that have come up in the half an leader, Kaing Guek Eav, known as “Duch”. He is hour or so that Back-Benchers have had to discuss before the international tribunal for what was done in the Bill. First, on the question of article 61 and the Cambodia 30 years ago. That is still possibly the worst freedom of speech, I think that the noble Lord, Lord genocide since the Holocaust. It has been in his interest—I Waddington, has made a powerful case and I accept was in Cambodia last year and saw this for myself— the balanced approach that has been made by the literally to bury the evidence as far as possible so that right reverend Prelate the Bishop of Southwell and this terrible man could not be brought before an Nottingham. One needs to have a balance between the international tribunal. 1227 Coroners and Justice Bill[LORDS] Coroners and Justice Bill 1228

[BARONESS WILLIAMS OF CROSBY] avoid conflicts of interests arising. If the medical We are still seeing the digging up of mass burial examiner is paid by, overseen by and potentially disciplined places in Bosnia-Herzegovina, as was indicated by my by the primary care trust or local health board, how noble friend Lord Ashdown in his recent book. Many can he or she be truly independent? What if a colleague people were mutilated before being killed during the or even a partner of the medical examiner, if they are a wars of the former Yugoslavia. Those cases have not GP, is before the coroner and subject to scrutiny and yet come before the tribunal. As the noble and learned investigation? What if there are systematic failures in Lord, Lord Falconer, pointed out, cases are even now the PCT or LHB that actually employs that medical emerging of genocide in other parts of the world, of examiner? which the most recent examples occurred in Bosnia- Herzegovina and not least in Rwanda, as he pointed The medical examiner needs clear blue water between out. We must change the law in this respect and the him and those potentially under scrutiny. Otherwise, Bill is a vehicle that enables us to do it. the bereaved will fear conflict of interest and will not feel that justice has been done. Being linked with the I have two final points. One concerns the crucial local clinical governance system does not determine importance of coroners being seen to be independent. the employer. It would be much safer for the medical As the noble Lord, Lord Bach, pointed out, the Bill examiner to be appointed and managed by the Ministry contains detailed provisions to try to ensure that of Justice and also for there to be a chief medical independence in order to satisfy the bereaved relatives examiner to work along side the Chief Coroner. of the victims of crime, and to satisfy public opinion. In that context, is it sensible for the medical experts, I turn now to the external scrutiny aspect of the who are often a significant part of this process, to be coroner process. There has been emphasis during drawn from the same primary care trust as those consultation on the role of the press in external scrutiny involved in the cases? Should we not consider whether while valuable independent rigorous research has been the doctors and medically qualified people who are ignored. Indeed, it has actually been hindered and essential to the independent process of a coroner’s blocked. Recently, a research project about suicide case should be drawn from a different primary care amongst vets, which had been well approved and had trust from those involved in the case itself? I raised a local research ethics committee, consulted the Coroners’ this—I cannot go into great detail for obvious reasons—in Society out of politeness, which then took delaying the case of the Mid Staffordshire Hospital, which is action that blocked the study. Yet properly conducted deeply concerning. It was a case where a cluster of research will provide both important insights into, and offences did not clearly emerge, partly because those scrutiny of, what is happening in premature deaths. responsible were all involved in the PCT that was Nowhere has that been more needed recently than directly under consideration and examination. in the spate of young deaths in Bridgend. Madeleine Last of all, I want to mention—because it has not Moon, the local MP, has to be commended. She has been mentioned yet and it is important—a ruling worked with great sensitivity to bring many lessons to made by the European Court of Human Rights, as light. We saw social contagion in action. It was seen long ago as 2004, rejecting the blanket ban in Britain previously in suicides in Oxbridge. We are still seeing against anybody who is a sentenced prisoner having social contagion in Bridgend. It is now beginning to the right to vote. The periods are ludicrously long, up appear with other suicides, such as the woman who to 10 years for people who are minor offenders. In killed herself after seeing Anne Turner’s suicide portrayed being so, they destroy the civic responsibilities of on TV and the young man with early lung cancer who those who are in jail. said in a radio interview that he had never thought of I conclude, on eight minutes, by saying that I very suicide until hearing an interview with Nietzsche. much hope that the Government move forward on what is a judgment of the European Court, dating In Bridgend, a general atmosphere of hopelessness back to 2004, with still no single act being taken to pervaded—I saw it first hand in the staff who lived meet that judgment. A blanket ban is not acceptable there. A sense emerged among many young people and is discouraging of the rehabilitation of offenders. that suicide was the thing to do when not coping. We should look at this again and move rapidly in line Internet sites provide information on how to kill yourself. with that decision of the European Court, of which Some are worse than that. They indulge in entrapment we are, after all, respectable signatory partners. and active encouragement and promotion of suicide. Some responsible websites are moderated—they have pop-ups from the Samaritans—but others are dangerous. 4.46 pm They are already illegal in Australia, and the Byron Baroness Finlay of Llandaff: My Lords, reform of report recommended that we do the same. The the coroners’ system is long overdue. I will concentrate Government are to be commended on picking up my remarks on the first part of the Bill. There is a need those recommendations. for consistency and transparency in the system and for Policing such websites is terribly hard, but it can be the bereaved to be better considered. I fear that the done. From 1997 to 2008, the Internet Watch Foundation Bill does not go far enough. achieved a 17 per cent fall in child pornography sites Like the noble Baroness, Lady Williams, who has through monitoring. I am glad that the Government just spoken, I have concerns over medical examiners. have included in the Bill provisions on pseudo- They will be working in parallel to and with coroners. photography of children. That inclusion is essential They need to be of equal status and be able to stand for this work, as some really disturbing images are apart from their other local medical colleagues to emerging, particularly out of Japan. 1229 Coroners and Justice Bill[18 MAY 2009] Coroners and Justice Bill 1230

Inquests into tragic events, wherever they are, need Lord, Lord Joffe. I should simply and respectfully to be conducted near people’s homes, so that distressed correct the noble and learned Lord, Lord Falconer of families do not have to travel. That is to be welcomed. Thoroton, in that the unit called Dignitas is not a The family must be in control of what is supplied to clinic; it has no therapeutic intervention whatever; it is, the media. The Bill and the Explanatory Notes do not quite simply, a suicide service, probably for commercial go far enough. The press intrusion in Bridgend was gain. How do you actually provide immunity for those terrible. Families described having to fight their way travelling abroad? How do you detect coercion—subtle past reporters to get into the coroner’s court, being coercion—whether internal or external? I will not pressurised for quotes, and then misquoted, with school discuss safeguards further, but I am sure that we will friends being bribed for information and photos of revisit those matters. the deceased. Sometimes the first time that the bereaved In the mean time, I simply welcome the Minister’s family had ever seen a photograph was when it appeared statement and I welcome this reform of the coroner in the local paper. system. Some responsible websites are moderated—they The Press Complaints Commission code of conduct have pop-ups from the Samaritans—but others are has been in place since 2008, but it was only after the dangerous. They are already illegal in Australia, and events that I referred to that the editors’ code was the Byron report recommended that we do the same. tightened, indeed to good effect. The press cannot The Government are to be commended on picking up now disclose the method. This has improved the situation. those recommendations. The press have not reported on subsequent suicides, of Policing such websites is terribly hard, but it can be which more than 80 per cent are linked, which further done. From 1997 to 2008, the Internet Watch Foundation demonstrates the effect of social contagion. A complaint achieved a 17 per cent fall in child pornography sites against the Reading Chronicle was recently upheld, through monitoring. I am glad that the Government which was a welcome decision. have included in the Bill provisions on pseudo- The public interest was not served by gratuitous photography of children. That inclusion is essential details, even though they might have sold papers. The for this work, as some really disturbing images are bereaved need privacy. Issues around reporting were emerging, particularly out of Japan. considered in 2007 by the Family Division. The court Inquests into tragic events, wherever they are, need upheld that coroners’ inquests are court proceedings. to be conducted near people’s homes, so that distressed Section 39 of the Children and YoungPersons Act 1933 families do not have to travel. That is to be welcomed. safeguards children and, if it were properly interpreted, The family must be in control of what is supplied to would give children privacy in death, as well providing the media. The Bill and the Explanatory Notes do not privacy for those appearing as witnesses. go far enough. The press intrusion in Bridgend was Why is privacy important? It is because other children terrible. Families describe having to fight their way have to cope with questions back at school and in the past reporters to get into the coroner’s court, being community, and the inquest may occur some time pressurised for quotes, and then misquoted, with school after the death. The inquest lays bare raw wounds that friends being bribed for information and photos of a family have begun to live with, abruptly taking them the deceased. Sometimes the first time that the bereaved back in their grieving. For some, the inquest does not family had ever seen a photograph was when it appeared herald the closure that they hope for. If afforded in the local paper. privacy, the family can go to the press if they want to; The press complaints code of conduct has been in and many do because they want to expose dangers, place since 2008, but it was only after the events that I such as those of carbon monoxide poisoning. However, referred to that the editors’ code was tightened, indeed they need to be afforded some control in their grief. to good effect. The press cannot now disclose the In the 10 years up to 2008, more than 37,000 deaths method. This has improved the situation. The press were recorded as suicides in England and Wales, and has not reported on subsequent suicides, of which more than 27,000 with an open verdict. Compare that more than 80 per cent are linked, which further to the figure of 100 quoted earlier as regards people demonstrates the effect of social contagion. A complaint who have gone to Switzerland. Many of the deaths against the Reading Chronicle was recently upheld, recorded as open verdicts were actually suicides, but which was a welcome decision. some coroners seem to avoid the term “suicide”, perhaps The public interest was not served by gratuitous because of stigmatisation; but without consistent details, even though they might have sold papers. The reporting, we will never get a true picture. It is essential bereaved need privacy. Issues around reporting were that deaths are classified, using the World Health considered in 2007 by the Family Division. The court Organisation’s international classification codes to provide upheld that coroners’ inquests are court proceedings. consistency in verdicts. Deaths can then be centrally The Children and Young Persons Act 1933 in Section 39 collated by the Chief Coroner’s office to reveal trends safeguards children and, if it were properly interpreted, and clusters of any type—not just suicides—where would give children privacy in death, as well providing there is a problem. Any cluster of deaths could then be privacy for those appearing as witnesses. identified early.Independent research must be encouraged, Why is privacy important? It is because other children to provide scrutiny and detect inconsistency. have to cope with questions back at school and in the I welcome the Minister’s opening statements about community, and the inquest may occur some time assisted suicide, and I agree that we should not use this after the death. The inquest lays bare raw wounds that Bill as a Trojan horse to try to revisit the issues that a family have begun to live with, abruptly taking them were looked at during three of the Bills of the noble back in their grieving. For some, the inquest does not 1231 Coroners and Justice Bill[LORDS] Coroners and Justice Bill 1232

[BARONESS FINLAY OF LLANDAFF] contained provisions allowing Ministers to dispense herald the closure that they hope for. If afforded with juries where sensitive information was involved. privacy, the family can go to the press if they want to; Those proposals were introduced without prior and many do because they want to expose dangers, consultation. YourLordships’ Constitution Committee, such as those of carbon monoxide poisoning. However, under the chairmanship of the noble Lord, Lord they need to be afforded some control in their grief. Goodlad, issued a report criticising the proposals as In the 10 years up to 2008, more than 37,000 deaths “constitutionally inappropriate”, because Ministers would were recorded as suicides in England and Wales, and be given the power to decide how an inquest should be more than 27,000 with an open verdict. Compare that conducted rather than needing to apply to a judge to to the figure of 100 quoted earlier as regards people exclude a jury. who have gone to Switzerland. Many of the deaths The parliamentary Joint Committee on Human recorded as open verdicts were actually suicides, but Rights then criticised the Secretary of State’s failure to some coroners seem to avoid the term “suicide”, perhaps explain how the proposals could be consistent with because of stigmatisation; but without consistent Article 2 of the European Convention on Human reporting, we will never get a true picture. It is essential Rights on the right to life. The Government withdrew that deaths are classified, using the World Health the proposals, but then this Bill was introduced containing Organisation’s international classification codes to very similar provisions. Again, there was no prior provided consistency in verdicts. Deaths can then be consultation. The Joint Committee on Human Rights centrally collated by the Chief Coroner’s office to repeated its concerns, and concluded that there was no reveal trends and clusters of any type—not just suicides— need for the provisions. The proposals generally received where there is a problem. Any cluster of deaths could a hostile response. then be identified early. Independent research must be In the light of the criticism, the Secretary of State encouraged, to provide scrutiny and detect inconsistency. then tabled amendments to Clause 11 on Report in the I welcome the Minister’s opening statements about other place. Those amendments were inadequate to assisted suicide, and I agree that we should not use this deal with fundamental defects in Clause 11, as explained Bill as a Trojan horse to try to revisit the issues that fully in the briefing by the organisations Inquest, were looked at during three of the Bills of the noble Liberty and Justice. Any noble Lord who has read that Lord, Lord Joffe. I should simply and respectfully briefing will be puzzled indeed that the Secretary of correct the noble and learned Lord, Lord Falconer of State still suggested, as he clung to the wreckage of Thoroton, in that the unit called Dignitas is not a Clause 11 last Friday, that the clause, clinic; it has no therapeutic intervention whatever; it is, “struck a fair and proportionate balance”,—[Official Report, quite simply, a suicide service, probably for commercial Commons, 15/5/09; col. 68WS.] gain. How do you actually provide immunity for those between competing interests. travelling abroad? How do you detect coercion—subtle When he replies to this debate, will the Minister coercion—whether internal or external? I will not please assure the House that the Government will discuss safeguards further, but I am sure that we will learn from an episode that should cause them deep revisit those matters. embarrassment? They need to consult before they In the mean time, I simply welcome the Minister’s come forward with legislative proposals on sensitive statement and I welcome this reform of the coroners’ issues relating to the judicial process, and they need to system. listen more carefully to what other people say in order that their legislative proposals are coherent and principled. 4.54 pm I remain concerned that although, belatedly, Ministers have now conceded defeat on Clause 11, the Government Lord Pannick: My Lords, as the Minister mentioned, still do not understand the issues raised by that clause the Secretary of State for Justice made a Written and by the opposition to it. As the Minister told us Statement in the other place last Friday. He explained this afternoon, the Government now say that they will that the Government will table an amendment to consider establishing in exceptional cases an inquiry remove Clause 11 and its associated Clause 12. One under the Inquiries Act 2005 to ascertain the circumstances does not want to kick a clause when it is down, but the of a death where evidence cannot or should not be sorry saga of Clause 11, with its power for the Secretary disclosed to a jury. However, those exceptional cases of State to dispense with a jury in an inquest, deserves are precisely the ones where the maintenance of public to be noted in the hope that the Government and their confidence will most require that the evidence is heard successors may learn some lessons as to how not to by a jury. proceed when making legislative proposals in relation The recent inquest into the death of Mr de Menezes, to the judicial process. I am also concerned that the the Brazilian citizen tragically shot by police officers Government still do not understand the issues raised at Stockwell station because of mistaken identity, by Clause 11. involved the consideration of highly sensitive evidence Clause 7 rightly maintains the principle that inquests concerning the Metropolitan Police’s policies for into particular categories of death should be heard addressing the threat posed by suicide bombers. A before a jury. That is in order to maintain public High Court judge sat as the coroner in that inquest confidence in the exercise of state power; for example, with a jury. To the extent necessary, the coroner made if there is reason to suspect that the deceased died in a number of rulings restricting the disclosure of sensitive custody or otherwise in state detention, or as a result documents and information through the use of public of an act or omission of a police officer. YourLordships interest immunity certificates, witness anonymity orders will recall that in 2008, the Counter-Terrorism Bill and the exclusion of the public, where appropriate. 1233 Coroners and Justice Bill[18 MAY 2009] Coroners and Justice Bill 1234

If such measures sufficed in the de Menezes case, Falconer—that the Minister is right to say that this is why is it necessary, I ask the Minister, to dispense with not the Bill in which to attempt a wide-scale reform of a jury in any other inquest? If and to the extent that that law. the legal problem is that the Regulation of Investigatory None the less, the Bill refers to modernising some Powers Act 2000 prohibits the disclosure of intercept aspects of the law that relate to helping people who evidence to a coroners’ jury, then the solution is to wish to end their lives. I agree with the noble Baroness, adopt something similar to Clause 12 of the Bill, no Lady Finlay of Llandaff, that it is important that the longer being pursued, and that is to allow a High Bill will now include issues relating to the potentially Court judge sitting as a coroner to authorise such pernicious influence of the internet. I heard with great disclosure to a coroners’ jury where necessary to ensure concern what she said about the continuing situation a fair inquest. in south Wales, where vulnerable young people have been unduly influenced in that way. However, I think that the Government have missed 5.02 pm an opportunity and an important chance to update Baroness Jay of Paddington: My Lords, I have the law on assisting suicide in another important listened with care to those Members of the House who area—the one to which my noble and learned friend have spoken critically about the size and wide-ranging Lord Falconer referred. I, too, am strongly of the view nature of this large Bill. Personally, however, I congratulate that we should use the Bill to lift the threat of criminal the Government and welcome their intentions of trying prosecution from people who, with the best of intentions, to improve the clarity and fairness of some aspects of accompany loved ones who are terminally ill abroad the legal system when they touch people’s lives, when so that they can get help to die in countries where they are often at their most vulnerable. It is worth assisted suicide is legal. My noble and learned friend saying in this debate, which is led by a number of very Lord Falconer has expressed the case for that in very distinguished members of the legal profession, that strong legal terms. Perhaps I can now put a more however humane and sympathetic their individual personal case to do it from the point of view of some intentions, they represent a system that—if you are a people who have struggled with and been concerned bereaved family, a person confused by the complexities about that question themselves. of the legal aid system, or indeed an intimidated For many people who have travelled abroad in witness—can be very daunting. those circumstances, the extraordinarily difficult decision From a lay perspective, many aspects of the Bill to confront their terminal illness and end their lives seem consistent in their attempts to change laws as far has been compounded by intense concern about the as the general populace is concerned. I particularly possible consequences for people who may accompany welcome, for example, the improved services for bereaved them to jurisdictions where that is legal. For that families mentioned in Part 1. However, I should like to reason, some have gone on that very sad last journey focus my contribution on Part 2, on criminal offences. alone. For example, Dorothy Robbins, who suffered Again, there is much in this part to commend the Bill. from motor neurone disease, was very fearful for her I particularly welcome the change to the laws on family. She did not want her husband to risk prosecution, infanticide and those on provocation, and I say to the so he stayed at home when she went to Switzerland by noble Lord, Lord Thomas of Gresford, that I am herself. After her death, Mr Robbins said: certainly not speaking to a feminist agenda. I have “The crime wasn’t about flying out of the country to die. The some concerns about changes to the partial defence crime was not being able to go out with her and hold her hand”. which falls under the issue of diminished responsibility. Recently, noble Lords may have read reports in the This is in a particular area, as it has sometimes been newspapers about a couple called Penelope and Peter pleaded successfully by those charged with so-called Duff who were both terminally ill and went to Switzerland mercy killing. I am sure that we will turn to the detail together a few months ago. They supported each other when we consider those parts of the Bill in Committee, without any other family member being present, but but it is important to note that although it is sometimes afterwards, their daughter, while saying that her parents said that people charged with mercy killing rarely had done a beautiful and remarkable thing, still openly reach the courts and certainly never go to prison, I was feared the possibility of legal consequences. disturbed to read just this weekend of another 80 year-old My noble and learned friend Lord Falconer has gentleman arrested on suspicion of murdering his already referred to the case of Debbie Purdy, who has wife, who was suffering from advanced Parkinson’s progressive multiple sclerosis and wants to end her life disease. That sort of person might well have pleaded when she finds her condition intolerable. She has diminished responsibility under the previous arrangements, pursued her personal quest to achieve legal clarity for but might find it difficult now. her husband through the courts. She feels that, apart My main concerns are about Clauses 49 to 51, on from her husband’s emotional support, she would encouraging or assisting suicide. As the Minister reminded need her husband to take her to Switzerland when the us at the beginning of the debate, we have had several time comes as she is physically unable to travel alone. opportunities to discuss the principles and details of In February, her plea for clarification was turned some proposals in that area in recent years in your down by the Appeal Court. Nevertheless, she thought Lordships’ House. I remain strongly in favour of a that the judges had been sympathetic and, in her words, change to the law that would enable mentally competent “did everything they could to clarify that Omar”— but terminally ill adults to commit assisted suicide. her husband— However, I am also of the opinion—as expressed “would be unlikely to be prosecuted if he were to accompany me eloquently by my noble and learned friend Lord abroad for an assisted death”. 1235 Coroners and Justice Bill[LORDS] Coroners and Justice Bill 1236

[BARONESS JAY OF PADDINGTON] diminished responsibility. The problem of inquests on The truth, as the noble and learned Lord, Lord detained mental health patients is another. There is Falconer, emphasised, is that although returning relations always an inherent mismatch between the methods of are often questioned by the police, to date there have inquiry of law and medicine, which has led to some been no prosecutions. In other words, the law as it rather unseemly wrangling in court. Reform of the law stands is a fudge, and under this Bill will remain a should be directed at minimising the use of expert fudge. Accompanying a loved one abroad to die is an psychiatric evidence to determine a verdict, and at offence but, in practice, will not be prosecuted. It is using expert opinion at the sentencing stage. not surprising that senior lawyers are now questioning The key problem here is the Government’s failure this position and asking Parliament to act. I quote the to accept the Law Commission’s recommendations to noble and learned Lord, Lord Bingham, who said on introduce two levels of homicide—tiers of murder—which, the radio last week, when asked whether this was at a stroke, would have given the judiciary, rather than unsatisfactory: the Executive, the powers to sentence those who, at “I don’t think this is a legal judgement, I think it’s a political present, are all given a mandatory life sentence. Thus one. But I think we are approaching a point at which the law does we will be stuck with highly unsatisfactory partial not match the expectations of reasonable people … we’re approaching the point at which the law does need overhauling”. defences, such as diminished responsibility for murder only, but not for cases where the victim does not die. In In conclusion, I re-emphasise that the Bill misses those cases of attempted murder, a defendant can the opportunity to lift that fog of confusion and plead only the highly unsatisfactory “insanity”, but anxiety which surrounds a growing practice of British not the more flexible “diminished responsibility”. citizens getting assisted suicide in another country. The lack of clarity simply creates a series of paradoxes. The phrase, No clear signal is sent as to who should be prosecuted “an abnormality of mental functioning”, and, consequently, as to who should be able to travel is an improvement on the current concept of an abroad. Obviously, Parliament is unable to regulate abnormality of mind, as it emphasises mental processes foreign assisted-dying institutions, but by building on rather than a static condition. The new inclusion of the Government’s proposals in this Bill—modernising the idea that the abnormality arose from a recognised the Suicide Act, as it has been described—we could medical condition is welcome, as it ensures that the clarify the law to prevent the needless threat of defence must conform to accepted psychiatric diagnostic prosecutions on one hand and better protect vulnerable criteria and avoid the idiosyncratic diagnosis offered people on another. by some experts. There is however, concern that the I shall refer to the procedures of another place. word “medical” might rule out psychological evidence Noble Lords will be aware that an amendment to this and conditions, but we will need to explore this more effect was promoted by my right honourable friend in Committee. Patricia Hewitt, the ex-Secretary of State for Health. The introduction of the notion of relative incapacity As various noble Lords have pointed out, these clauses is consistent with civil law, for example as expressed in in the Bill were not reached. I very much hope that we the Mental Capacity Act. In some ways, however, the shall be able to discuss similar amendments in your description of the impairment that must be demonstrated Lordships’ House and, very appropriately, give them harks back to the restrictiveness of the early 19th century the scrutiny that they deserve. I ask my noble friend on and the so-called M’Naghten rules, which were highly the Front Bench one more question. The noble Lord, dependent on the defendant’s intellectual grasp of the Lord Kingsland, has already referred to this being a nature of the act and which largely ignore the power matter of conscience. I hope that, if amendments of of delusions and emotions on behaviour. We will need this nature are proposed, we on the government Benches to explore further in Committee what impact this will be allowed a free vote. narrowing of the defence will mean. It could mean that more mentally disturbed perpetrators of homicide 5.12 pm end up with a prison, rather than a hospital, disposal: Lord Patel: My Lords, this is a very important Bill, surely not what is intended. A defendant with severe which touches on a wide range of issues relevant to schizophrenia might quite determinedly kill and with medicine. I shall mention some briefly. There are full self-control but on the basis of psychotic thinking. difficulties, particularly for those who practise psychiatry. Such psychotic thinking could easily fall short of My noble friend Lady Murphy could not take part in satisfying the criteria in Clause 44(1)(a) or (b). Thus today’s debate. I am pleased to speak on her behalf as a severely mentally ill man would be denied any an honorary psychiatrist and will support her in psychiatric defence. Committee. It has been said that infanticide is a distinctive kind First, the new system of accountability and the of human tragedy. Indeed it is, and it is one that has office of the Chief Coroner are very welcome and long always generated enormous sympathy and understanding, overdue. Coroners have not always been keen to take but it is not so very different from other homicides in up the benefits of the extensive training programmes which health and mental health are involved. It seems that are now expected of the judicial classes, leaving extraordinary that the Bill proposes to retain this some of them way behind in medical and legal knowledge Victorian offence; it should surely be abolished. Cases and public expectations. The new system will, in time, that would otherwise come under that offence should cure that and create a better career structure for coroners. be dealt with through the diminished responsibility Other parts of the Bill are more worrying. One area of provisions. The Butler committee recommended as difficulty is the new rules on the partial defence of much in 1975. If the killing was committed in the 1237 Coroners and Justice Bill[18 MAY 2009] Coroners and Justice Bill 1238 context of an abnormality of mind, it is covered by Finally, I welcome the Government’s decision to diminished responsibility. If it was not, a pseudo- withdraw the information-sharing order-making power psychiatric defence is not appropriate. from the Bill. However, if they are planning a fresh Another problem is that the Bill withdraws the public consultation in relation to information sharing, requirement for inquests into deaths in custody to be I hope that they will listen carefully to the medical and heard automatically before a jury. The noble Baroness, biomedical research communities and others so that Lady Murphy, has extensive experience of inquiry any new proposals do not impede medical research, panels into the deaths of detained patients in special while preventing inappropriate use and disclosure of hospitals for mentally disordered offenders and in sensitive information. NHS mental health units, and she will be greatly concerned about this part of the Bill. Again, I believe 5.21 pm that there will be amendments to explore this further in Committee. Lord Goodlad: My Lords, like the noble Lord, Lord The Bill provides that deaths in custody and detention Patel, I view the Bill with great gravity. My late father, will be heard before juries only if one of a limited set who was a psychiatrist, was also a deputy coroner in of circumstances is satisfied. This is not sufficient to Lincoln many years ago, and some of the issues before ensure that such deaths are fully and independently us were, even then, a subject of family discussion. investigated or to give the public the confidence that YourLordships’Select Committee on the Constitution, justice is being done. Deaths that occur in state detention as mentioned by the noble Lord, Lord Pannick, issued are often complex and may require the detailed scrutiny a report on the Bill last Thursday, 14 May, and I of systems and procedures as well as of individual should like to mention three points. First, the committee acts, and these cases are always best dealt with by juries. expressed the view that the ability of Parliament to Clauses 49 and 50 deal with suicide. I welcome the examine the many provisions of the Bill risks being Government’s efforts better to protect young and made less effective by the inclusion in a single Bill of vulnerable people who may be encouraged by others so many issues. I acknowledge the political realities to commit suicide. However, as other noble Lords, animating the support of the noble and learned Lord, including the noble Baroness, Lady Jay, have stated, Lord Falconer, for so-called Christmas tree Bills. This the Government’s reforms fail to address a wider Bill, however, problem with the law; it fails to distinguish between “makes provision for: reform of homicide; possession of pornography those who maliciously encourage suicide and those and other offences; a framework for witness anonymity and protection in investigations and trials; a new institutional framework who compassionately assist the death of a terminally for sentencing; reform of legal aid; and new controls on proceeds ill adult who is suffering but mentally competent. I from the sale of criminal memoires”. look forward to debates on this issue in Committee. Your Lordships’ committee took the view that the, I turn briefly to one or two other areas that relate to “constitutionally important process of legislative scrutiny is hindered medicine and medical research issues. I welcome the by omnibus bills, such as this one, which include too wide a range proposal for greater involvement of bereaved families of proposals, all inherently significant in their own right”. and hope that the reforms will improve the processes Secondly, it says: for healthcare professionals and others who greatly “Clause 11 of the bill makes provision for inquests without juries contribute to the investigation. I support Clause 18, where the national interest would seem to preclude public examination which would make it a statutory duty for doctors to of all the circumstances surrounding a death”. report certain deaths. Clause 19, which creates a new Your Lordships’ committee recommended that it role of medical examiners, is welcome. Like other should be clear on the face of the Bill that a High noble Lords, however, I would like to see greater Court judge, when faced with a certificate, is not details about the skill, training, experience and other merely to accept a ministerial assertion that the national eligibility criteria for the appointment of a medical interest is at stake but that the Secretary of State examiner and the nature of the independence and should be expected to demonstrate to the satisfaction accountability of a medical examiner. Clause 20, which of the judge that such a national interest does in fact makes provisions for regulations about preparatory exist. I am most grateful to the noble Lord, Lord scrutiny and confirmation of medical certificates of Bach, for his correspondence, and I welcome the causes of death, is welcome and may lead to fewer Government’s decision to table amendments to the deaths requiring coroners post-mortem. Bill, withdrawing provisions in respect of certified There is, however, concern about the difficulty in coroners’ investigations by removing Clauses 11 and 12. integrating coroners’post-mortems into research protocols. Thirdly, Part 8, For some research areas—for example, sudden adult “deals with proposed amendments to the Data Protection Act 1998 death—the need for tissue samples obtained at post- … Clause 156 amends the DPA to give the Information Commissioner mortem for diagnosis and research will have to be powers to carry out an assessment to determine whether a public discussed with relatives at a time that is sensitive for body complies with the data protection principles. There is a list them. The ability in such circumstances for coroners of excluded bodies ... The clause allows the Commissioner to enter premises to inspect documents and other material, and to to retain material for a post-mortem examination for a view the data processing activities. These new powers have been limited period to allow for appropriate discussions by welcomed by the Information Commissioner, but they stop short potential research studies with families is important. of those called for by both his office and by”, Examples are the recent brain bank networks established your Lordships’ committee in the, by the Medical Research Council and others for storage “recent report Surveillance: Citizens and the State in that they do of brain tissue for diagnosis and research. I hope that not provide for comparable powers to inspect the activities of coroners’ offices do not impede such research. private-sector data controllers”. 1239 Coroners and Justice Bill[LORDS] Coroners and Justice Bill 1240

[LORD GOODLAD] not done, I can already hear the arguments regarding Your Lordships’ committee welcomed, the adequacy by the “relevant authority”, whomsoever “the Government’s decision to provide a statutory basis for the that might be, which, according to Clause 24, Information Commissioner to carry out inspections without consent “must secure the provision of whatever officers and other staff of public sector organisations which process personal information are needed by the coroners … to carry out their”, systems, but regret the decision not to legislate for a comparable duty. It adds that the, power with respect to private sector organisations”. “relevant authority … must maintain, or secure the maintenance The committee recommended that the Government of, accommodation”. reconsider the matter and stated: My final two short and practical points relate to the “Organisations which refuse to allow the Commissioner to requirement that a senior coroner needs authority carry out inspections are likely to be those with something to hide from the Chief Coroner before he can carry out searches … the protection of citizens’ data may in the absence of legislation be vitiated”, and the fact that, throughout the whole Bill, there seems to be no mention whatever of that most important in the light of, person in the coroners’ system, the coroner’s officer. “the growing exchange of personal data between the public and He or she is the person whom the coroner would ask, private sectors”. “Make sure you get the suicide note or the pills”. The report says that it is disappointing, Alternatively, to use a hypothetical example of what “that the Government have not taken this opportunity to provide happens at present, where perhaps an unusual number the Information Commissioner with powers to assess whether of deaths have occurred in a nursing home or hospital, private sector organisations are complying with data protection principles”. and when time is of the essence, the coroner might wish to send his officer post-haste to obtain the hospital The committee said that, operations notes, or copies of them or other material “clause 156 does not provide procedures for sanctions in case of relating to the deceased persons. non-compliance with an Assessment Notice”. It added: The nearest coroner to your Lordships’ House is the coroner for Westminster, a man of 30 years’experience, “The failure to provide any sanctions for non-compliance by public sector bodies with Assessment Notices calls into question who is both a medical doctor and a barrister. He has the efficacy of the power that is created”. in his time conducted an incredible 12,000 inquests, I hope that your Lordships’ House will return to this including those covering the Iranian embassy siege, point during later consideration of the Bill. the “Marchioness”disaster and 10 fatal bombing incidents. Must he and those other equally experienced coroners The committee said that, waste vital time in the future seeking authority from “the Government’s decision to withdraw the very broad powers the Chief Coroner for a search, rather than immediately on data sharing between departments that had initially been sending the coroner’s officer to gather evidence—dare included in the bill”, I say it—before it is destroyed or mishandled? is welcome, and that, In the Metropolitan Police area, which of course “the principle of minimisation of data-sharing as expressed in paragraphs 274-5”, includes the City of Westminster, the coroner’s officer would be a police officer or member of police staff of the report of your Lordships’ committee, Surveillance: provided from the commissioner’s budget. However, Citizens and the State, which I hope will be debated the office in which he works, the paper on which he soon, is of considerable importance. writes his reports and the chair on which he sits are I know that the noble Lord, Lord Bach, will address provided by Westminster City Council. Similarly, in the issues raised in this debate, including, I hope, those Surrey, the chief constable provides the coroner’s officer on which I have touched, with his invariable wisdom. from the budget for his agreed establishment of officers and staff, but the premises and all equipment used by 5.27 pm the coroner and his staff are paid for by the county council as the relevant authority. There seem to be Lord Imbert: My Lords, I realise that I am but one different and piecemeal systems throughout the 100 or of the 43 Members of your Lordships’ House who so coroner areas in England. Should not the requirement have indicated their wish to speak on the Coroners to provide staff and accommodation be formalised and Justice Bill. No doubt, noble Lords will be relieved nationally, be dealt with through the Ministry of Justice to know that I do not intend to speak for the allotted and centrally funded, as the noble Lord, Lord Thomas eight minutes, but I hope that my few remarks about of Gresford, suggested? this catch-all Bill may carry some weight despite their brevity.I shall not touch on some of the more controversial parts of the Bill, which have been or will be adequately 5.33 pm covered by other noble Lords, and I shall reserve my Baroness Miller of Chilthorne Domer: My Lords, judgment about those important sections until the this Bill rightly reopens the debate of what to do about next stage. inquests that involve particularly sensitive information. However, if these measures are intended to reform We last debated this in your Lordships’ House under the coroners’ system as a whole in this country, why do the Counter-Terrorism Bill last year. At that time, we we not bite the bullet and make it a centrally funded certainly did not feel that the Government’s proposals national coroners’ service that is overseen by the Lord were acceptable. Indeed, today, the noble Lord, Lord Chancellor through the Ministry of Justice? That would Pannick, has spent some time accurately kicking the thereby give power, as well as formal and adequate clause when it was down, as he described it. There is support, to the new Chief Coroner and subsequently certainly still a problem with the Government’s new give help and support to bereaved families. If this is proposals. 1241 Coroners and Justice Bill[18 MAY 2009] Coroners and Justice Bill 1242

The Ministerial Statement last week commended that. I believe that six years is an inhumane time to the use of the Inquiries Act 2005 and talked of using a make a family wait for an inquest to be held. I hope special, that the timescale within which inquests are held will “procedure only in very exceptional and rare circumstances”.—[Official also be the subject of debate in this House. Report, Commons, 15/5/09; col. 68WS.] My noble friend spoke about legal aid, which I am During the passage of this Bill, this House will have to sure the House will, rightly, dwell on. Another criminal debate exactly what the circumstances will be that justice issue about which I feel strongly is the treatment need especial scrutiny. of children within the system. I know that my noble friend Lady Linklater will speak on that. Later, I shall The Inquiries Act 2005 is one answer that the address the sloppy drafting of the Bill in relation to Government have come up with, but that is likely to be criminal memoirs, because I believe that, while the deficient in a similar way as was found under the provisions are justified, they have not been drafted as Counter-Terrorism Bill for coroners; the panel will they should be. have the same problem in that it is not authorised Finally, Part 8 is to be welcomed. The Minister is under the Regulation of Investigatory Powers Act 2000 right to worry that the Government need to continue to receive intercept evidence. The Government will to listen to arguments about the scope of the assessment need to address that, as they intend to for coroners. notice and enforcement for non-compliance. There is What this House should not accept is a system that no reason in these days of PFI and the way in which allows the Government to hold secret inquests, or the public and private sectors work together to have juryless inquests in those cases outlined under Clause 7, such a sharp division between the treatment of the for any reason that is not absolutely accepted by this public and the private sectors in terms of their duties House. It was far from clear when we debated the under data protection. Counter-Terrorism Bill that there would be any case Of course we welcome the withdrawal of the where that would be justified. There might need to be information-sharing system, but some interesting points safeguards. Indeed, we came up with a number of were made at the Information Commissioner’s conference safeguards at that time. I hope that we will do so again. last Wednesday that I hope we will have time to There is also the principle that inquests should be expand on in Committee. For example, Michael Wills open to families. The exclusion of families for part or MP, the Minister for Justice, said that freedom of most of the inquest is highly undesirable. As we debate information requests will be extended to private sector this Bill, we shall need to debate thoroughly the companies holding information of public interest. Since circumstances when a family might be excluded. Recently, Part 8 deals with ICO powers and that office has the Terry Nicholas case, which was one of those that responsibility for the Freedom of Information Act, failed the intercept evidence test, has been resolved by will the Minister consent to introducing those changes the coroner in a thoroughly practical way. I believe into the Bill? that that will be an example to us as we go through this We will be able to make a number of improvements Bill. The coroner used her common sense; she redacted to Part 8, including the one suggested in the March the sensitive information and the family were not 2009 report of the Joint Committee on Human Rights. excluded. The delays that the Rodney family have so The Government should reconsider the Information far suffered because of the difficulties in using intercept Commissioner’s request that the proposed power to evidence are quite unacceptable and I hope that legislation issue assessment notices be extended to data controllers can resolve their case. in the private sector. It is not only data controllers who are involved, because other people may fall under the Indeed, for families, all delays of many years in scope of this provision. We may need to debate this in holding inquests are equally unacceptable. Going through Committee. the inquest process is extremely traumatic for a family member. Not only are they dealing with the grief and shock that such a death brings, but also, if an inquest 5.42 pm is being held, it usually means that the death has been Lord Borrie: My Lords, I want to touch on just two unexpected, violent or shocking, and often all three. parts of the Bill which have not received a lot of The state has two duties at such a time. The first is to attention so far, although the noble Baroness, Lady try to discover the truth of why the death occurred Miller, referred to Part 7 as sloppily drafted, which I and the second is to learn any lessons for wider society. shall come on to. First, however, I want to talk about The fulfilling of these duties should be conducted in Part 4. such a way as to avoid undue further trauma for I am pleased to see the provisions for the role of the family. sentencing guidelines. They are designed to streamline I believe that part of that trauma is induced when and strengthen greater consistency in sentencing across there are the sort of delays of which we have had some our courts. This has already been well developed over examples. My local press, the Western Morning News, some years in order to get rid of random differences in highlighted such a case only last Saturday. It reported sentences that bear no relation to local crime reoffending that Mr Pullman has been waiting since 2003 when his rates. I should say in response to the remarks made by only son Adrian died. The inquest opened and adjourned the noble Lord, Lord Kingsland, earlier, or to the in 2003 and has not resumed. It is not a straightforward noble Lord, Lord Henley, who is in his place, that at case because of the number of agencies involved—care the same time the Bill maintains the discretion of agencies, the local authority, the police et cetera—but judges to ensure the justice involved in deciding a it does not involve national security or anything like particular sentence to fit the particular case and defendant. 1243 Coroners and Justice Bill[LORDS] Coroners and Justice Bill 1244

[LORD BORRIE] very few cases”. I am talking about individual cases, My right honourable friend Jack Straw said as recently but I would argue that the publication of a criminal’s as 24 March in the other place: memoirs may sometimes have beneficial outcomes in “We are not fettering the judiciary, but we are saying that there terms of assisting rehabilitation of the offender, just as should be a carefully moderated body of guidance”.—[Official learning new skills or discovering one’s artistic talent Report, Commons, 24/3/09; col. 241.] can help in rehabilitation. In any case, as has already He went on to say that that guidance will become the been argued, the Prison Rules and the confiscation framework that sentencing judges and magistrates will provisions of the Proceeds of Crime Act 2002 can be be expected to follow. used to recover what I would call overly large royalties in the occasional case where that seems desirable. I am sure that my noble friend on the Front Bench would agree that consistency in sentencing has been I also draw your Lordships’ attention to the fact an objective pursued by the present Government that the Joint Committee on Human Rights is concerned practically since they came to office in 1997 with the that an exploitation proceeds order, which is the technical Crime and Disorder Act 1998, before which sentencing name for what the Government propose, is in part had been the exclusive preserve of the judiciary in the dependent on the degree to which people, victims and instant case. Over the past few years, the work of my the general public are offended. In other words, the noble friend Lord Carter of Coles and Lord Justice court would have to go into the question of to what Gage, whose name was mentioned by the noble Lord, extent it thinks that the memoirs will offend victims, Lord Kingsland, has been considerable in terms of the the family or the public in general. Is it all worth developments since 1998. The majority of Lord Justice while? As one sometimes does in Second Reading Gage’s working party recommended that a court may debates, I shall put a marker down at this point. If I pass a sentence outwith the guidelines only if it is in get any support, I might seek to delete these provisions the interests of justice to do so. That formula is by saying that they should not stand part of the Bill. followed in the Bill. I personally commend it and I doubt if we would do better if we were to take the 5.50 pm route suggested by the noble Lord, Lord Kingsland, Baroness O’Cathain: My Lords, the noble Baroness, of seeking to amend that phrase. Lady D’Souza, the noble and learned Lord, Lord I come now to criminal memoirs, an entirely different Falconer, and the noble Baroness, Lady Williams of subject, but as we all know, the Bill ranges over many Crosby, who I am sad to say are not in their places at disparate matters. On a number of occasions in recent the moment, have all addressed the issue which I wish years there has been public concern—it might be said to address. I pay tribute to the noble Lord, Lord public outrage—about the publication of memoirs Carlile of Berriew, who has long been concerned about from which convicted criminals have profited. Ian an anomaly in our legislation whereby the International Brady, Mary Bell and Dennis Nilsen are among those Criminal Court Act 2001 does not permit the UK who have profited from the publication of memoirs. A courts to try individuals for crimes against humanity, number of rules are already applicable. The Prison war crimes and genocide where those individuals who Rules prevent the publication of such memoirs while are suspected of these crimes are present, as opposed the author is in prison, and the Serious Organised to resident, in the UK. “Presence” would encompass Crime Agency is able to seek a confiscation order from the war criminal who stayed for an extended holiday the court when money has been obtained in connection in the UK or had medical treatment here. Nor can with the offence. Many noble Lords may recall the two they be tried if the crimes in question were committed men who helped the spy George Blake to escape from before the passing of the 2001 Act. Interestingly, the prison in 1962. They were held by the High Court to UK law against torture does not distinguish between repay the royalties they obtained from the publication presence and residence, and that is another anomaly. of their book entitled How We Freed George Blake The noble Lord plans to introduce the genocide, and Why. crimes against humanity, war crimes accountability Bill to expand the UK’s jurisdiction to prosecute persons The Bill seeks to introduce a civil recovery scheme in the UK who are suspected of committing war whereby the courts could order offenders to pay amounts crimes, crimes against humanity and genocide in or in respect of benefits derived from the exploitation of outside the UK. It would also amend the International any accounts of their crimes. Unlike Part 4 on the Criminal Court Act 2001 which, inter alia, determines matter of sentencing, which I have praised, I rather the UK’s jurisdiction for crimes against humanity, war doubt whether these provisions are really worth while crimes and genocide. However, the publication of the or desirable. I should say to the noble Baroness, Lady Coroners and Justice Bill gives an opportunity to Miller of Chilthorne Domer, that that they are not avoid producing yet another Bill and to produce just badly drafted, they are also not needed. The Bill’s amendments to cover the glaring gap in the International own regulatory impact assessment states: Criminal Court Act. “At most it is projected that two cases a year will arise”. I am told—I hope correctly—that the Government The Government claim that the changes are desirable are minded to give consideration to this Bill. I am to prevent further hurt and distress to victims and giving the Minister the opportunity to please the their families, and indeed concern for victims and their noble Lord, Lord Carlile, and many other noble Lords, families is a theme that runs throughout the Bill, as the but, much more importantly, to remedy a situation Minister has indicated. But that is a large claim to where we could be seen as harbouring truly vile people make for this part when the Government have to who are suspected, with reason, to have participated in admit that the new measure will in practice “capture evil crimes against humanity, war crimes and genocide. 1245 Coroners and Justice Bill[18 MAY 2009] Coroners and Justice Bill 1246

There will be those who have an instinctive aversion to clarify this fairly difficult issue. I dislike all speech to retroactive law-making. In fact, all of us have such crimes of any kind; one speech crime is, of course, the an aversion. In general we should not be able to reach race hate speech crime. It is defined in much broader back to penalise conduct that was not a crime when terms than religious hate or homophobic hate speech enacted. In Latin this is referred to as, crimes. There is no free speech defence, or any free “nullum crimen, nulla poena sine lege”, speech clause in relation to race hate, whereas there is which means no crime, no punishment without a law. in relation to religious hate. I was responsible for With great respect, the noble and learned Lord, Lord introducing the religious hate free speech clause—the Falconer, who is not in his place, is wrong. This does English PEN clause as it is known. The noble Lord, not apply in this case as the proposal does not retroactively Lord Waddington, did something similar in dealing criminalise past conduct. It merely permits the UK with homophobic hate speech. courts to prosecute past acts that were crimes at The question is whether you think that homophobic the time. hate speech is more like race hate speech or religious hate speech. Does homophobic hate speech attack people for the way they are born, for their common Lord Lester of Herne Hill: I am sorry to interrupt, humanity, unlike religious hate speech, which attacks but actually the noble and learned Lord, Lord Falconer, people because of their beliefs or their chosen practices? was saying exactly the same as the noble Baroness. My belief is that it is more like race hate speech than religious hate speech, and therefore the free speech Baroness O’Cathain: I am very grateful to the noble clause that the noble Lord, Lord Waddington, successfully Lord, Lord Lester, for telling me that—I misheard or put into the Bill was not necessary. One can see the misunderstood. lack of necessity; Section 29JA of the Public Order In the interests of keeping the speeches in this Act 1986 provides: debate short and to the point, I will not go into the “For the purposes of the offence of stirring up hatred on the great detailed explanation prepared by the noble Lord, grounds of sexual orientation, discussion or criticism of sexual Lord Carlile, which will be produced in amendments conduct or practices or urging persons to refrain from or modify such conduct is not, in itself, to be taken to be threatening or in Committee. Until then, I hope that we shall have an intended to stir up hatred”. indication from the Minister at the end of this debate that he will give the proposal a fair wind. When one looks at that, the answer is obvious. Of course, there are no circumstances in which such conduct could be taken to involve threatening or intending to 5.54 pm stir up homophobic hatred. Therefore, I do not think Lord Lester of Herne Hill: My Lords, I declare an the clause is necessary and I classify it as dealing with interest as a member of the Joint Committee on an attack on someone’s common humanity. For that Human Rights which has prepared two reports on the reason, I believe that the Government are right. I subject matter of this Bill. The Committee will surely recognise that it is a difficult issue and being a Liberal welcome the fact that at the 11th hour the Government Democrat, I understand that the spirit of liberty is have seen sense and have dropped their original proposals never being too sure if it is right. for secret inquests, but I share the concerns of the That brings me to criminal libel and sedition which noble Lord, Lord Pannick, and those of my noble have not yet been mentioned here. But in the other friend Lady Miller about the Government’s new proposal place, amendments were tabled by Evan Harris MP to and wait to see exactly what that will be. abolish the offences of sedition, seditious libel and On assisted suicide, I strongly agree with the noble criminal libel. Those archaic offences are redundant and learned Lord, Lord Falconer, the noble Baroness, and unnecessarily limit freedom of speech. It is time Lady Jay, and the noble Lord, Lord Patel. As the they were removed from our laws. I declare an interest noble Baroness said, the law as it stands is a fudge. as honorary vice-president of English PEN, which, Those who accompany a loved one abroad to die will along with Index on Censorship, Liberty and Justice, still have to await a post facto decision by the DPP on wrote a powerful joint letter to the Times on 20 March, whether a prosecution is in the public interest. The pointing out that the repeal of these offences is long Court of Appeal has said it is a matter for Parliament, overdue and will send a powerful signal to states and we should not shirk our responsibility. Like other around the world that routinely use charges of sedition noble Lords, I believe that it is time to introduce a and criminal defamation to imprison their critics and clear legislative framework so that a mentally competent, silence dissent. terminally ill person who is suffering has the right to The Law Commission recommended the abolition have a medically assisted death in carefully defined of the offence of seditious libel in 1977 and the offence circumstances, accompanied to Switzerland—if that of criminal libel in 1985. In 1979, in the case of be the right place—and with appropriate and necessary Gleaves v Deakin, Lord Diplock expressed doubt as safeguards. I think the law should provide legal certainty, to whether the law of criminal defamation complied clarifying the circumstances under which someone with the right to freedom of expression in Article 10 of who has accompanied a loved one to die overseas the European Convention on Human Rights. He noted would face prosecution rather than leaving this entirely that the effect of the law is to turn Article 10, to the discretion of the DPP. “on its head. Under our criminal law a person’s freedom of On homophobic hate speech, I support the expression, wherever it involves exposing seriously discreditable Government on Clause 61 as the noble Lord, Lord conduct of others, is to be repressed by public authority unless he Waddington, will not be surprised to know. I will try can convince a jury ex post facto that the particular exercise of 1247 Coroners and Justice Bill[LORDS] Coroners and Justice Bill 1248

[LORD LESTER OF HERNE HILL] speech implications of criminal memoirs, I recommend the freedom was for the public benefit; whereas article 10 requires reading the unanimous decision of the American Supreme that freedom of expression shall be untrammelled by public Court in the “Son of Sam” case. Son of Sam was a authority except where its interference to repress a particular particularly evil criminal who found that the proceeds exercise of the freedom is necessary for the protection of public interest”. of his book about his crimes were to be confiscated. The Supreme Court unanimously held that that violated In its 1985 report, the Law Commission expressed freedom of expression and the right of the public to its strong objection to the law as it stands. According read his memoirs. to the OSCE Representative on Freedom of the Media, Bosnia and Herzegovina, Cyprus, Estonia, Moldova There are serious issues, as the noble Lord, Lord and Ukraine have all decriminalised, and Ireland is Borrie, said. The process of rehabilitation can be likely to follow suit. It took us 140 years to abolish the advanced when former criminals are able to write crime of blasphemy; I hope that this House will see fit books, and if they cannot receive any royalties from to remove these crimes from our statute book as well. I the books, that would penalise them in their free hope that the Government will support the amendments; expression. So although I do not enthusiastically agree indeed, there were straws in the wind indicating that with nasty people writing nasty books, I note that they might do so. some nasty people have made money out of nasty books, and freedom of expression means the freedom On genocide and the International Criminal Court to cause offence to some sections of the public. Therefore Act, I entirely agree with the noble and learned Lord, this is not, as the noble Lord has indicated, a proportionate Lord Falconer, my noble friend Lady Williams of use of our time, nor is it a necessary crime to add to Crosby and the noble Baroness, Lady O’Cathain, and the statute book. support the powerful speech of the noble Baroness, Lady D’Souza. She raised the issue of the presence in this country of suspected war criminals living in conditions 6.06 pm of impunity. Eight years ago I raised the possibility of Lord Lloyd of Berwick: My Lords, when I spoke in rare cases in which neither the International Criminal the debate on the Queen’s Speech in December last Court nor British courts would have jurisdiction over year, I pointed out, as many others had already done, suspects found in the UK. That, we know, is what that we had had five major criminal justice Bills in as happened. My noble friend Lord Carlile of Berriew—this many years. I thought then that this year was going to is like Hamlet without the prince—intends to introduce prove the exception and that we would be spared. How amendments to the Bill. I do not need to say any more wrong I was. Instead of one new Bill, we have two: the about it because so much has been well said already. Bill currently before us, with 166 clauses and 21 schedules, I shall talk briefly about retrospectivity, however. and the Policing and Crime Bill, now in the other Not only, as the noble and learned Lord, Lord Falconer, place, with 116 clauses and eight schedules. has mentioned, does the European Convention treat Successive Lord Chief Justices have said over and war crimes in a particular category for which the again that we cannot go on like this, yet we have normal retrospectivity provision does not apply, but ignored their warnings. Even the professional lawyers one thinks about what our courts did on the crime of and judges are finding it difficult to keep up with the the common-law offence of marital rape. The lawyers pace of change. It is a basic requirement of the rule of in the House will remember that the House of Lords law by which Ministers are bound that the law, particularly reversed a 300 year-old rule that a husband could not the criminal law, should be accessible to all. I invite the be guilty of raping his wife, and it was said in the Minister, as the very first thing he says in reply, to particular case that this involved retrospectivity since explain why we alone among western nations seem to the raping husband was found guilty of something need so much new criminal legislation every year. The that was not an offence before he did it. Throughout a reason may be—I suspect it is—that when Governments challenge based on retrospectivity, the Commission reach the end of 12 years in power, they feel the need maintained, as did the House of Lords, that if you to become hyperactive for fear that it be said that they know perfectly well that what you are doing is wrong, have run out of steam. What a blessing that would be. there is no injustice in a case of that kind. I believe that The present Bill is a good example of what is the same is true with war crimes. wrong. As we know, it has nine parts. The first four all I am delighted that the Government are going to do propose major changes to the existing law. Each, in my something about abuses of the conditional fee agreements view, is of sufficient importance to justify a separate involving vulnerable claimants, especially in employment Second Reading debate, a point that has been made by tribunals where, I am sorry to say, some members of many noble Lords—all except the noble and learned my profession have been misusing the system at the Lord, Lord Falconer. We cannot do that, though; we expense of women in equal pay cases and others. This have to pick and choose. The result is that our debate is most welcome. today is not a debate in the strict sense. We jump from Last but not least, I am delighted by what the noble subject matter to subject matter, and in the end the Lord, Lord Borrie, said about criminal memoirs. I Minister will have the almost impossible task of replying would certainly support him if he introduced an to a multitude of different, disconnected subjects. It amendment. I was amicus curiae in the George Blake should not be like that. It is, though, so we have to case, where we were able to make sure that that appalling, choose. evil man was not able to benefit from publishing his I would like to say much on the subject of the memoirs. That case provides a precedent in a case of sentencing commission, but instead I will concentrate that magnitude but, if anyone is interested in the free my fire on the proposals to modify the rule relating to 1249 Coroners and Justice Bill[18 MAY 2009] Coroners and Justice Bill 1250 provocation. Here one comes up again, at the very first solution. In my view, our best course is to ask the hurdle, to a great irony. Although we have had all this Government to think again on Part 2, or at any rate on criminal legislation since this Government came into the question of provocation—to take it away now and power, there is one area of the law which cries out for come back with it when they have agreed on proposals reform but has scarcely been touched. That, of course, for the reform of the law of murder as a whole. is the law of murder. For many years now, the most senior judges in the land have been saying that the law 6.15 pm of murder is in a mess and needs radical reform, but that cannot be done by the judges alone—it needs Lord Howarth of Newport: My Lords, the Bill raises Parliament to take a hand. momentous constitutional, judicial and ethical issues which are being debated with your Lordships’ customary In 2005, the Government seemed to have got the incisiveness. I shall just consider one item from the message. They invited the Law Commission to prepare extensive menu that the Bill presents, and that is the a new framework for the law of murder, which it so issue of treasure. The Minister reminded the House badly needs. In 2006, the Law Commission produced earlier that, since the 12th century, coroners have had its report. What did the Government do? For nearly responsibility in relation to treasure. It is therefore two years, they did nothing. Then they produced a perhaps not unreasonable that, in the 21st century, we consultation paper, which completely ignored the first should update the legislation. We should not be impetuous 64 pages of the Law Commission’s report. Instead, in these matters, but we should not be dilatory either. they picked out three relatively minor topics including, in particular, the partial defences on a charge of murder— It was a mystery why the provisions on treasure in provocation and diminished responsibility. the 2006 draft Bill were omitted from the Bill which we have before us, but happily we no longer need to I hope that the Minister, when he replies, will explain inquire into that mystery, because today my noble to the House why the Government have still done friend told the House that the Government would nothing about the major recommendations in the Law reinstate in the legislation the provision for a single Commission report. Is it because Ministers cannot national coroner for treasure for England and Wales. I agree on what should be done? Or is it perhaps because am very grateful to him for that. I declare an interest the whole subject of murder, including the subject of as a vice-chair of the All-Party Parliamentary Archaeology the mandatory sentence of life imprisonment, is so Group, and a fellow of the Society of Antiquaries. politically sensitive that it is better not to touch it at all? The draft provisions on treasure were widely supported when they were presented, as certainly will be the The only explanation given in the consultative report Government’s change of heart announced today.Already, is simply not an explanation at all. It is that the it has been generously welcomed by the noble Lord, Government have decided not to proceed on what Lord Kingsland, from the opposition Benches. It will they call a step-by-step basis. But why? It is so very be very much welcomed by the all-party group and the odd for, on the very same page on which they say that, Society of Antiquaries, and by the British Museum, they point out correctly that the law is in a mess, just which has statutory responsibilities for administration because it has developed historically on a piecemeal on behalf of the DCMS of the regime created by the basis without regard to how the law, Treasure Act 1996. It will be welcomed as well by the “as a whole fits together”. National Council for Metal Detecting, which represents By inviting us to proceed now on a step-by-step or the vast majority of people who actually make finds piecemeal basis, surely they are committing the very of treasure. same error which they have identified higher up on the The definition of treasure is complex and derives very same page. To me, it seems little more than a from the 1996 Act but, in summary, it means any gold waste of time for us to be considering the partial or silver finds that are over 300 years old; groups of defences to a charge of murder until we have decided coins in certain circumstances; and, where they are what the definition of murder should be. As the noble prehistoric, base metal groups or hoards of items. Lord, Lord Thomas, pointed out, if it be the fact that The provisions in the draft Bill were retabled in the House of Commons did not have time to consider Committee in another place, and debated on 24 February. this matter at all, then it is little short of what he Mr Henry Bellingham set out the case for them admirably described as being a scandal. and in doing so acknowledged then, as I do today, an It is said in the ministerial foreword that provocation indebtedness to the British Museum for its advice on is an area of the most pressing concern, but here the these issues. Ministers listened to what was said in that Ministers are quite simply wrong. It was an area of debate, and, in due course, accepted its conclusions. pressing concern until the decision of the Privy Council, That seems to me, on a miniature scale, a very good in the case of the Attorney-General for Jersey v Holley instance of how parliamentary democracy ought to in 2005. That was a decision of nine Law Lords, work—a point I think worth making, given that today convened expressly for the purpose of putting provocation it is unfashionable to suppose there is any good whatsoever on a satisfactory basis, and that it has done, so what is in parliamentary democracy in this country. the pressing concern? Why is it right to establish a single coroner to deal A great deal in Part 2 is, to my mind, very questionable. with all cases of treasure? Coroners in many areas, If we were to enact it as drafted, I suspect that it would facing a multitude of pressures—a number of which take many years for the courts to sort it out. The noble have been described by noble Lords earlier—have Lord, Lord Thomas, said that we must deal with all been failing to meet the target set for them in the these things in Committee, but I have a more radical Treasure Act’s code of practice to resolve treasure 1251 Coroners and Justice Bill[LORDS] Coroners and Justice Bill 1252

[LORD HOWARTH OF NEWPORT] delays which have infested the system have tended to issues within three months. The average time taken is bring it into disrepute and to undermine its effectiveness. about twice that. There is much variability: in some Parliament would, therefore, do well to legislate the areas—Durham and Leicester, for example—it has solution that the Government themselves originally been taking a year to deal with these cases. In Bridgend, proposed. it took nearly three and a half years for the coroner to hold an inquest in a particular case of treasure. I of course make no complaint or criticism of the Bridgend 6.23 pm coroner. As was movingly described to us in the speech Baroness Fookes: My Lords, I share with many of the noble Baroness, Lady Finlay, the Bridgend other speakers my disapproval of the unholy mishmash coroner was under the most extraordinary pressure in of provisions in the Bill. The noble and learned Lord, the exceptionally tragic circumstances in that community. Lord Lloyd of Berwick, gave a devastating critique Indeed, any coroner being aware of the urgent desire of this in relation to the criminal justice system. of bereaved families for inquests to be completed Unfortunately, there is a pernicious trend in all legislation could readily be excused for not making the consideration to put together disparate elements in ever longer, of treasure cases his top priority. But evils have arisen bulkier and more complicated Bills. I detected from out of these delays. People who have reported finds my noble friend Lord Kingsland that he disapproves have been prevented from receiving their due rewards, of this trend. I trust that if and when there is a change which is unfair on them, and the prevalence of delays of Government, any Front Bench will take this to has made it likely that others will be deterred from heart and reverse the trend by introducing better legislation reporting finds that they may make. That tends to take and less of it. us back towards the state of affairs that prevailed before the 1996 Act and before the creation of the However, we have to deal with what is before us. I Portable Antiquities Scheme. That was chaos: items of am at least grateful for the new aspects of the coroners’ treasure simply disappeared, important information legislation, which was certainly in need of an update. I about our archaeology and history was not recorded, want particularly to consider military inquests. I declare and lucrative opportunities were provided for criminals an interest as the president of the War Widows’ operating in the antiquities market—a matter which Association of Great Britain. This is a matter of great the Government solemnly committed themselves to concern to the association because, as everybody in tackle seriously when they subscribed to the UNESCO this House will appreciate, sadly there have been many convention. military inquests as a result of recent and continuing conflicts in Iraq and Afghanistan. Nothing can, of Not only will the system of having a single national course, detract from the misery and tragedy for widows coroner be more efficient and speedier, we can expect and close family members when a young man or that a dedicated coroner will be more expert in this woman dies prematurely in the service of this country. field, and it will be cheaper to have a single treasure However, the way in which inquests are conducted can coroner—never a negligible consideration. The BM make a great deal of difference for better or for worse. has computed that the saving will be of the order of Unfortunately, in the past some very unhappy situations £320,000 to £400,000 a year. So the decision that the have developed, partly because, initially, coroners were Minister has announced today will be good for everyone: not familiar with the military background, which made good for the finders of treasure, good for the landowners it more difficult for them to conduct inquests—at any on whose land the treasure is found, good for the rate to the satisfaction of the families. Worse still, museums where these items of treasure should be there were horribly long delays in having an inquest consigned, good for scholars, and good for the public either brought forward or dealt with. I am talking not who appreciate items of treasure and learn from them. simply of months but of years in some cases. Just I did not hear the Minister say earlier whether it imagine the impact on bereaved members of a family was the Government’s intention also to reinstate in the of inordinately long delays, for which they can see no Bill the provisions that were in Schedule 3 to the draft justification. This arose in part from the fact that Bill. That schedule would have brought forward three bodies repatriated from abroad often go to the same amendments to the Treasure Act, all uncontroversial place. The one good point about this is that some and all recommended in the 2002 review. The first coroners, particularly in Oxfordshire and Wiltshire, provision would widen the obligation to report finds have developed great expertise as a result of dealing of treasure to anyone who comes into possession of it, with many such inquests. not just finders. That would put pressure on dealers The noble Lord, Lord Thomas of Gresford, referred and others such as people operating internet sites, to legal aid in the context of the horrible incident of notably eBay. The second alteration would provide a the Puma helicopters that came down in Iraq, and the power for the coroner to require anyone reporting a difficulties the bereaved families faced in obtaining aid find of treasure also to deliver that treasure—if it was in that important inquest. Therefore, this new Coroners in their possession—to the coroner. The third reform and Justice Bill presents a very good opportunity to would extend the limitation period for prosecutions, ensure that none of the problems I have outlined ever which is currently six months. If coroners take a year recurs. However, there are shortcomings in the Bill’s to establish the evidence, it is very difficult indeed for drafting and I should like to suggest changes that the police to proceed. should be made. The present system comprises a chief The system created by the Treasure Act is a success. coroner and deputy chief coroners. I suggest—in this I The number of finds reported has risen from some am supported by a number of service personnel and 25 a year before 1997 to more than 800 in 2008, but the the War Widows’ Association—that one of the deputy 1253 Coroners and Justice Bill[18 MAY 2009] Coroners and Justice Bill 1254 chief coroners should have specific responsibility for I have endeavoured to try to establish from earlier military inquests, thereby enabling real expertise and debates, and from the Minister’s most helpful opening the ability to discern patterns to be developed over the remarks, what exactly the sentencing council will be years. Furthermore, it is absolutely essential that the for. A number of those who support it think that the expertise that has been built up among a few coroners idea is to reduce, or at least control, the prison population. should not be dissipated or lost over time. For that Yet, in the other place, the Lord Chancellor was reason it is essential that any coroner who undertakes adamant that he was not aiming to reduce the prison a military inquest should have proper training. At the population through this measure. He said that the, moment, there is a “may be”as regards training generally. “suggestion that the proposal is driven by a desire to reduce the This should be strengthened so that there is a training prison population is completely untrue. It is belied by the fact … requirement, at least for military inquests—a “must” that the prison population has increased by twice the rate at rather than a “may”. That would constantly bring the which it increased under the Conservative Government. It has whole issue to the attention of the coroners’ service increased by 2,000 places a year and rising”.—[Official Report, and we should not then lose any expertise. Commons, 26/1/09; col. 47.] I am less clear how legal aid should be dealt with Presumably, that is not the aim of the sentencing but I leave that in the Minister’s hands to look at very council. The Minister suggested that it would give carefully. All in all, I regard the coroners’ part of the predictability with regard to the demands on criminal Bill as providing a good opportunity to assist those justice resources. However, it is not clear how that can who sadly lose their lives in war at least to have their be achieved when sentencing is but one of the factors, inquests sympathetically and kindly dealt with. We and perhaps not the largest factor, to influence prison owe them that at the very least. population size. The Minister mentioned that consistency was a 6.29 pm possible reason for such a body. On that, there seems Baroness Stern: My Lords, it is a great pleasure to to be considerable wisdom in the words of Lord follow the contribution of the noble Baroness, Lady Justice Rose that, Fookes. I remember that years ago, when she was in “perfect consistency in outcome is impossible to achieve because the other place and chaired the expenditure committee, of the infinite variety of circumstances with which … the courts she produced many excellent reports on penal policy, are presented”. whose contribution to the subject still stands up today. There is a question about the measuring of consistency. I begin with a general point, echoing the remarks of What will the sentencing council mean by consistency? the noble and learned Lord, Lord Lloyd of Berwick, Is its aim, as some have suggested, to ensure that no that there seems to be no halt in the changes to member of the judiciary is tempted to be independently criminal law. Not so long ago, the Minister was good creative, locally relevant, unconventional, problem-solving enough to provide me with the answer to a Written or imaginative in trying out new approaches or finding Question: how many new imprisonable offences have new ways? In particular, I am thinking here of the been created since 1997? On that date, the answer was excellent work of the community court in Liverpool as that, up to July 2007, Parliament had created 1,472 an example of a creative, locally relevant sentencing new imprisonable offences—1,032 in primary legislation disposition. A sentencing council will certainly curb and 440 through regulations. These ranged from ships any tendencies in that direction, making judges, as the receiving trans-shipped fish under the Merchant, Shipping noble Lord, Lord Kingsland, suggested, more like and Maritime Security Act 1997 to the attachment of civil servants. That is a great reduction in the quality earnings order—finding the debtor’s current employer, and vitality of our legal tradition. under the Tribunals, Courts and Enforcement Act 2007. That figure of 1,472 new imprisonable offences seemed Have the Government given any thought to the to be rather a large number and I think that it might be merits of a sentencing advisory council, such as the worth while keeping that figure up to date. I wonder one in Victoria, Australia, which does not get involved whether the Minister can tell the House how many in designing guidelines for the judiciary, but has the new imprisonable offences, if any, are to be created by role of researching sentencing policy, collecting and this Bill and subsequent regulations. analysing sentencing information, providing information That leads me to a few remarks on the proposal in on sentencing to the government, judiciary and the Part 4for a Sentencing Council for England and Wales. public and providing feedback on the effectiveness of The proposal derives, as I understand it, from the 2007 sentences? Would that not be a model that could report by the noble Lord, Lord Carter of Coles, command the widest support and lead to the best suggesting that, if sentencing were more structured outcome while preserving the independence of our and predictable, the provision of resources to implement much respected judiciary? sentences would be more easily manageable. He suggested I should like to move on briefly to Part 5 and to the Minnesota and North Carolina as models. In this Government’s decision to introduce, by amendment, a respect, it is perhaps worth noting that prison numbers provision in the Bill regarding the responsibility for have risen in Minnesota from 6,200 to 9,900 in six years, deciding on the release of prisoners serving a sentence a rise of 60 per cent. In North Carolina, they have of 15 years or more under the Criminal Justice Act 1991. risen from 31,200 to 39,000, a rise of 25 per cent. The The transfer of this decision-making power from the evidence suggests that the countries where there are Secretary of State to the Parole Board is very welcome. sentencing councils or commissions that lay down As the Minister will be aware, the amendment has guidelines or other strictures are the countries with been welcomed by the Joint Committee on Human high and rising prison populations. Rights as a human rights enhancing measure. It is 1255 Coroners and Justice Bill[LORDS] Coroners and Justice Bill 1256

[BARONESS STERN] The noble Lord, Lord Imbert, pointed out that the always important to note and celebrate decisions that coroner for Westminster was medically qualified and make the criminal justice system more respectful of was a qualified barrister. It has always been my view human rights. that the ideal arrangement for coroners was that they Finally, perhaps I may say a few words on the should be dually qualified as lawyers and doctors. It proposal for exploitation proceeds orders, which could seemed obvious that they needed to be legally qualified, be caricatured as clamping down on ex-prisoners who of course, to carry through the legal and judicial are so successfully rehabilitated that they give up aspects of their work; but if the inquest was to find crime and become writers instead. Clearly, there is an out the cause of death, it was rather obvious that they argument here. Broadcasters and publishers may well needed some expertise on the medical side. However, try to get those who have committed horrendous that is neither to be, nor perhaps is entirely practical, crimes to talk about them so that they can attract an at least in the short term. Therefore, I welcome audience and boost their profits. The fear is, however, the Government’s proposal to institute a medical that, as with other government measures, there will be examiner service. creep. It will start with only two a year but anyone There are a number of questions to be raised. Will with a criminal conviction who wants to become a these examiners be properly qualified? Will they be writer, broadcaster or newspaper columnist will feel professionally independent? Will they be appropriately under pressure about what they write, presumably, for accountable? Will they be adequately resourced? Without the rest of their lives—if I have understood that correctly. these things, they will not provide a proper service to If, for example, a man called Jimmy Boyle, who was the coroners. Will they be professionally qualified? In in prison in Scotland in the 1980s, wrote some rather the Bill, all that I note is that they have to be qualified well known books about it, and is now a successful as doctors who are registered, practising and with five businessman, decided to write his memoirs in his old years’ experience. I hope that the Minister can lay my age, his royalties could be appropriated, even today. mind to rest on this; it would be welcome if there have Will the Minister confirm that that is what is being been formal discussions with the Royal College of proposed? I should have thought that it is an achievement Pathologists to look at whether it might institute some when a convicted person turns to writing in order to form of qualification for medical examiners—perhaps make a living. As the Minister will know, there are a diploma with appropriate training. Or are we to concerns about the drafting of this measure, particularly, assume that these examiners will simply have tired of “the extent to which any victim of the offence, the family of the their other work as general practitioners and have chosen victim or the general public is offended by the respondent obtaining this as part-time work? That would not be adequate. exploitation proceeds from the relevant offence”. Will they be professionally independent? My noble Is the Minister satisfied that the court will be able to friend Lady Williams of Crosby and the noble Baroness, decide whether people are offended? How will the Lady Finlay of Llandaff, raised this question, given prospective author know how to conduct his or her that in the Bill it is clear that the examiners will be new non-criminal career as a writer in this context? appointed by, paid by and accountable to PCTs. However, The Joint Committee on Human Rights says of the the PCTs themselves may well be at fault when it criterion of being offended: comes to any inquest into causes of death. It would be “There is no Convention or common law right to be protected wholly inappropriate that medical examiners could be from offence. The Bill introduces a degree of legal uncertainty required to confront their own employers, to whom which will be entirely dependent on the subjective reaction of a they are financially, clinically and professionally small group of people or the wider public to an individual’s accountable. I can think of no other circumstance actions”. whereby new legislation making such a proposition I look forward to hearing the Minister’s response to would be brought in. That is not necessary; there are this critique by the Joint Committee on Human Rights. other ways of addressing this issue. I assure the noble Lord, Lord Borrie, who is not in his Will the examiners be appropriately accountable? It place, that if he wants to delete these provisions, I appears that in the first instance we will see their would be happy to support him. numbers growing, but there is no indication that there will be a chief medical examiner, as there is a Chief 6.39 pm Coroner. Yet, if there is to be accountability and Lord Alderdice: My Lords, I welcome a Bill that establishment of standards to ensure that local medical addresses inadequacies in the coroners service. I am examiners live up to their professional requirements, simply struck that this major aspect of our administration surely there is a strong case to include in the Bill of justice could not justify a Bill on its own, and that it provision for the appointment of a national medical comes to your Lordships’ House so many years after examiner. the Shipman inquiry, when the Government moved Will the examiners be adequately resourced? My with great alacrity to address the medical consequences noble friend Lady Miller of Chilthorne Domer raised required, while the coronial consequences have taken the question of the current delays in the provision of a much longer time. In that regard, I declare an inquests. On 3 July 2008 a Member in another place, interest as a consultant psychiatrist working in the Mark Durkan, received an Answer from the Minister National Health Service, and my wife is a consultant saying that there were 47 cases in Northern Ireland pathologist in the National Health Service in Northern where the coroner had indicated a need for an inquest, Ireland, although I should point out that she does not but none had been commenced for five years. The provide and has not for many years provided services deaths had occurred more than five years previously, to the coroners in Northern Ireland. and no inquest had yet been commenced. Given that 1257 Coroners and Justice Bill[18 MAY 2009] Coroners and Justice Bill 1258 difficulty, I welcome the notion of partial inquests— psychological contagion, mentioned by the noble Baroness, because that is what they really are—or partial post- Lady Finlay of Llandaff, whereby one or two young mortems proposed in the Bill. There has been a people harmed and killed themselves, and other young combination of difficulties with resources and, since people followed suit. It began to come to my attention the human organs inquiry, a considerable resistance from healthcare workers in the field that many of by many members of the public to have post-mortems these young men had been grossly abused by paramilitary conducted on their departed. The idea that there might organisations or members. I went to the police and be partial post-mortems may have some merit. It is asked whether any investigation had been done. They clear that the coroner may ask a person whom he said, “No crime has been committed. Suicide is not a deems appropriate to conduct an investigation which crime”. I said, “No, no; the cause of the suicide might he deems appropriate. That person does not have to be well have been a crime”. The answer was that there medically qualified; it has generally been assumed had been no investigation, because there had been no that an investigation is large, like an MRI scan, but it serious understanding of the question as to why young does not have to be that at all—there could simply be, people might commit suicide. The attitude was simply: for example, a fine needle aspiration biopsy, which “Well, suicide was the cause of death”. No; that was might be taken by a non-medically qualified person, the mode of death, not the cause. The cause of death such as a medical laboratory scientific officer, and was what led those young people to harm themselves. some kind of presentation would be provided. The As I subsequently found on my further investigations, only way to ensure the quality of such a thing is the it was clear that “bullying” does not address what they medical examiner. That is why I welcome the idea of a suffered; finding no way out, they took the only way medical examiner. that came to their hands—to kill themselves. However, it is not clear that the coroner has any If there is to be a real understanding of what requirement to consult the medical examiner. The happens, it must not be a superficial gloss—“We have coroner could say to himself: “I think it might be such a number of young people killing themselves, so it is and such. Let’s ask this fellow here to take a biopsy, a obviously a psychological contagion”. There has to be few cells or to check up something or other, and we the capacity for the coroner to look seriously at the will see whether or not this is appropriate”. However, matter, to get underneath it and to have the advice we all know perfectly well—for example, from the sad of medical examiners who will themselves have death of the gentlemen at the G20 disturbances—that sufficient training in that regard that they will be able what may initially appear to be a potential cause of to address it. death may not be the cause of death at all. One has to Like other noble Lords, I finish not because I have be very careful when conducting a less than full post- exhausted the possibilities of speaking on the issues mortem that one does not head down the wrong track, here, but because my time has passed. I have to refer to doing a partial investigation that leads one to the Clauses 44 to 46 on provocation, which have already wrong outcome. There needs to be some reassurance been referred to by my noble friend Lord Thomas of on serious consultation by the coroner with a medical Gresford and other noble Lords. I have struggled to examiner. work out how the Bill’s clauses make sense and I That brings me again to the question of a chief would welcome what the Minister had to say. Loss of medical examiner, because if a senior coroner can control does not have to be sudden. I find it difficult to refer locally to a medical examiner, is there not a case work out how it could then be anything other than a for having a national medical examiner to whom the premeditated act—one thought about in advance— Chief Coroner may refer? The Chief Coroner would because if it is not sudden, it is taking place over time. require someone of that stature and experience who If it has happened, then it has been thought about was fully independent of any local medical examiner over a period of time. I cannot for the life of me or the coronial service. understand how one can have a premeditated loss of There is another important issue. Some of these control. One of the things that would be most likely to deaths, sadly, come by the hand of the deceased, and produce an emotional reaction, the discovery of sexual coroners are required to investigate a number of suicides. infidelity, is to be ruled out completely. If some poor Madeleine Moon MP, in whose constituency there lady has the serious disadvantage of a partner who was a tragic rash of suicides by young people, raised snores heavily, and she decides after many years to this question on 26 January at cols. 76-80 in Hansard. poison him slowly over a period, she could well call on She subsequently received some response in writing this possibility. But if some day a similar lady was to from the Minister. However, she raised the question of discover that her husband was being unfaithful and whether or not there could be psychological autopsies, she hit him over the head with a frying pan, she could which would, in other words, try to understand what not call on this. That does not make any sense. However, was going on in the mind of the person, because it was I will welcome any enlightenment that can be showered what was going on in those young people’s minds—not on us by the Minister on this or any of the Bill’s other their bodies—which led to their deaths. One of the aspects that I have raised. difficulties is that if there is not some psychological sophistication on the part of the coroner or the medical examiner, the case will be difficult for them to judge 6.51 pm and assess. Lord Neill of Bladen: My Lords, I am the 24th speaker For example, there were a number of deaths of in the batting order, so it is hardly surprising that some young men by suicide in north and west Belfast a of the points one wishes to make have already been couple of years ago. There was a lot of talk about the enunciated. Your Lordships may be pleased to hear 1259 Coroners and Justice Bill[LORDS] Coroners and Justice Bill 1260

[LORD NEILL OF BLADEN] place. There have now been many occasions—I cannot that I want to be relatively brief and, by taking less purport a list and have not done the research necessary than eight minutes, possibly return some of the time for one. I recall from the top of my mind the then that one or two errant noble Lords have taken. One of Legal Services Bill, where a large block of sections the main topics to which I wanted to speak was the were brought into the Bill in your Lordships’ House failure to deal with the law on murder, following the which had not been considered in the other House at noble Lords, Lord Kingsland and Lord Thomas of all. It has happened to some extent in the political Gresford, and the noble and learned Lord, Lord Lloyd parties and funding Bill that has just been considered of Berwick. I also deplore the inadequate and almost in Grand Committee in the Moses Room, again under laughable manner in which provocation has been dealt the noble Lord, Lord Bach. Here we are having to with. I supported the noble Lord, Lord Waddington, consider provisions that have not been properly dealt some 11 months ago on his free speech clause, and I with. We have thrust upon us suddenly as from Friday support his view now. The provision is in Section 29JA a new statute to look at—the Inquiries Act 2005. of the Public Order Act 1986 and in my view it should As I said, the most important point in all this is that remain there. I will just say something about the the Lords is not truly a reviewing Chamber, because it manner of seeking to repeal it. is asked to undertake the initial task of looking at the On assisted suicide, I approve of the new crime legislation. That is wrong: on some other occasion we clearly created by the Bill, but I cannot see how it need to look at it and see where things have got to in would be right simultaneously to legalise the planning the relationship between the two Houses. of a trip to Switzerland for a would-be suicide. They are diametrically opposed and we reduce Parliament 6.57 pm to a laughing stock, if that is not an extravagant phrase to use at the moment, by having conflicting Lord Turnberg: My Lords, I am even lower in the provisions in the legislation. My final point would batting order than the noble Lord, Lord Neill of have been on the secret inquests provision. I had Bladen, so I have been busily crossing out parts of my strong views in hostility to any such proposal and I speech. I want to speak briefly about two aspects of asked myself when the Government first decided that the Bill. I express an interest as an ex-president of the there was a lack of parliamentary support for those Medical Protection Society, which is a mutual organisation provisions. I have been reading about a lack of it for providing indemnity for health professionals. It has many weeks now. One suddenly has thrust upon one had a keen interest in the Bill for obvious reasons. on Friday the new Section 2 and the procedure under The Bill has been a long time coming, but it is the Inquiries Act 2005, which raises a host of new issues. clearly necessary and welcome, even now. I am happy I want to concentrate for a couple of minutes—three to see, for example, that the original proposals in minutes of your Lordships’ time—on what the Bill has Part 8, previously Clauses 152 to 154, have been thrown up in relation to the manner of legislating. tightened up. Many medical organisations have had That is a theme that the noble Lord, Lord Kingsland, concerns about the issue of confidentiality. It is good first ventilated and the noble Baroness, Lady Williams to hear that the Government will be consulting further of Crosby, had wise things to say on that theme. The on this. It will be important for the medical profession following points seem to be illustrated: first, we have a to be involved in that consultation. repeal of a controversial provision adopted about Leaving that aside, I believe that a number of areas 11 months ago. Whether it is technically unconstitutional need some clarification. Here I focus mainly on the to set about repeating it, there seems to be no new roles and responsibilities of the medical examiner. evidence of any relevance whatever in relation to it; This is clearly going to be an important job. I make no what seems to matter is just how we feel about the apology for returning to this matter, about which the section and then there are attempts to review what was noble Lord, Lord Alderdice, waxed eloquent; I will, said in Parliament, keeping the door open and so on, however, truncate my remarks in view of that. which I have found unconvincing and unsatisfactory It is essential that the medical examiner is well to set about that instantaneous repeal. trained and experienced in every aspect of the role and Secondly, I address the mixture in one Bill of so is able to give a view that is seen to be independent of many different and conflicting topics, which are the employing authority, as has been said. I have incompatible and make it hard to deal with on Second several questions for my noble friend. First, what steps Reading. I do not know what we will do when we get will be taken to ensure that these doctors have the to Committee—it will have to be long. A Bill like this right skills and experience, are well trained and can be that makes proposals covering large areas of human attracted to the job? Secondly, would it not be preferable conduct, from murder to suicide and many other for medical examiners to be employed by the coroners’ topics, could do with prior consideration by a Joint service, for example, rather than by health trusts, to Committee of both Houses. I served once on such a ensure their independence? Would it not be better if committee. They are excellent, because they can marshal these doctors were monitored, as described in the Bill, the evidence relevant to the various provisions. It in such a way that their professional judgment was would have to have to have been given a decent lease of not compromised? Here I resonate to what the noble time to make a report. But the most serious issue, Baronesses, Lady Williams and Lady Finlay, had which affects not just this Bill but two or three others to say. of which I am conscious, is that we are supposed to be I should like now to turn to something a little a reviewing Chamber. We are supposed to be reviewing different: the coroner’s need to determine the cause something that has been considered properly in another of death by post-mortem examinations. The usual 1261 Coroners and Justice Bill[18 MAY 2009] Coroners and Justice Bill 1262 pathologist’s open post-mortem is something that many Inspector of Prisons and preparing my paper Suicide relatives, if they know what it entails, find somewhat is Everyone’s Concern, the charity Inquest arranged disturbing. That is especially the case for Orthodox for me to see the families of 10 people who had taken Jews and Muslims, for whom the deceased should, their lives in prison. It was the most emotional and where at all possible, remain intact and be buried in harrowing day that I spent in that job. Those families’ the shortest possible time. To both religions, post-mortems stories about how they were handled by the Prison of this type are an anathema. If there were alternative Service were shaming. They went into those inquests ways of determining the cause of death, clearly those expecting to learn more about what had happened would be preferable. than an inquest is designed to give. There had also Just as in life a diagnosis can be made in many been delays of up to four years in the inquests. The instances by means of a variety of scans without Prison Service’s attitude was adversarial, and the service recourse to a surgeon’s knife, so it seems likely that the was represented by legal representatives, as the families use of MRI scans, for example, can reveal the cause of were not. It was all summed up by someone who said, death. This technique has been used successfully in a “What would you think if you saw the governor of the number of instances in Manchester, in the north-west, prison”—who was in fact a woman—“raising her arm and invasive post-mortems have been avoided there in and shouting ‘Yeah!’when an open verdict was recorded?”. carefully selected cases. I understand that a trial of My concern about the coroners part of the Bill is MRI scanning versus the usual practice is being carried that it is inadequate in two separate respects. The first out in Oxford. If, as seems likely, this is shown to be is that it is inadequate for the coroners themselves. My helpful to coroners in some although probably not all noble friend Lord Imbert has already asked why coroners cases, it will be welcomed not only by Muslims and are not part of Her Majesty’s Courts Service and, Jews but almost certainly by many others. therefore, under the jurisdiction of the Ministry of There are of course a number of issues that will Justice. This impacts on their resources and their need sorting out, such as costs. I understand that MRI accommodation. If this is a serious part of the judicial scans are currently running at about £500 to £600 in system, why was the inquest into Mr Menezes’s death the private sector, where post-mortem scans are being conducted in the Oval cricket ground because there carried out now. There is also the issue of the availability was nowhere else to go? Why do coroners have to of scanning equipment. However, my point in raising delay inquests because they cannot get suitable this is that these are likely to become less serious accommodation? Surely this is not a matter for coroners obstacles in due course. My question now for my themselves; there must be a system to support them. noble friend is therefore whether he will encourage Why do coroners have to go to local authorities for coroners to consider including non-invasive ways of funding, making funding a postcode lottery? Why do determining the cause of death, such as MRI scanning, they have to seek for all the staff they need? Why alongside the usual, more invasive methods currently cannot they recommend proper legal representation of used. This is certainly mentioned in the Explanatory people who are there? Why do coroners have to wait Notes to the Bill, but can he give this possibility a 40 years for a pension when it is only 20 years for greater push? Such encouragement either in rules of judges? Will the Government give local government practice or verbally in response to my question would the extra funding that the coroners need to carry out be very well received in religious communities. their purpose? When will we hear whether the Chief Coroner himself will have any resources to enable him 7.02 pm to carry out the tasks that he has to do? Lord Ramsbotham: My Lords, as I read through I know that the Government consulted coroners this monster Bill I had an image of a civil servant in preparing the Bill. I also know that the coroners going round the Ministry of Justice pushing a trolley themselves feel that a very large number of their and shouting, “Bring out your dead!”, and people recommendations have not been picked up and included. putting in it any old scrap of legislation that had I would therefore welcome from the Minister details of anything to do with the word “justice”. Coroners were the provisions that the coroners said would help them the first, and all the rest came later. Like my noble and to do their job but which have not been included. It is learned friend Lord Lloyd, I deplore these massive 109 years since the coroners’ system was last looked at. Bills dealing with vast numbers of different subjects. Regretfully, rather than tackling the whole issue root As the noble Lord, Lord Neill, said, the result is that and branch, and all the bits, in one go, there has been a there is inadequate time for the subjects to be properly cherry-picking process which deals with only some of scrutinised in the other place. That is truly the case the bits and by no means all of them. with this Bill. What also worries me is that this is but The second group about which I am concerned are one of five enormous Bills with which this House is the families. The Minister mentioned that families are faced. I wonder what the impact will be on legislative at the heart of the Bill, but the evidence does not back time and what will have to be dropped if the Government up that claim. Take the Prison Service. In 2007-08, the try to get through the contents of all these Bills, because Prison Service spent just under £2 million on legal all the issues need examination in their own right. representation at inquests. In the same year, only 12 of We are all prisoners of our experience. I was extremely 69 applications for extraordinary funding made by glad to hear the noble Baroness, Lady Fookes, talk so coroners to help the legal representation of families movingly about the plight of military widows and and others were accepted. Legal aid is just not obtainable families. I saw their plight when I was Adjutant General for the families, and I include the military as well as during the first Gulf War. Also, when I was the Chief the prison system in this. At times prison families have 1263 Coroners and Justice Bill[LORDS] Coroners and Justice Bill 1264

[LORD RAMSBOTHAM] some big beasts are involved in the proceedings. That to go for means testing. If the families really are at the is just where the random selection of a jury is so heart of the system, why are they not properly represented? important and reassuring, because, drawn from the Are the Government making the resources available in community at large, as we all recognise—or should—they the Bill to enable that to be put right? There is no can look at evidence with the ordinary shrewdness and evidence of it. We have raised the subject many times probable scepticism that sees them through their everyday in this House. For example, when debating the corporate lives. That is good for public confidence, and that is manslaughter Bill, we mentioned that the families of why we have relied on it for so long. Mr Straw’s latest people who had committed suicide were themselves recantation is very welcome and I hope that we shall victims of something that had happened at the hands have an undertaking during the wind-up speech tonight of the state. If the state really means what it says about that there will be no attempt to unpick that withdrawal. families, I would like to see on the face of the Bill Next, I express—rather lightheartedly, but not evidence that that is right. wholly—my sympathy for coroners when they come to I have one small rider to this. I support the comment contemplate in their part of the Bill the subtly and made by my noble friend Lord Patel that it is important mysteriously varied states of mind for which they will that those who commit suicide in special hospitals are be required to examine themselves. It would weary properly looked after. The arrangements for people in your Lordships if I were to identify line by line where special hospitals are not even as good as they are in the items in this menu are to be found, but a glance at prisons where, for example, the Prisons and Probation the first few pages of the Bill and at Schedule 1 reveals Ombudsman is required to investigate all unnatural the following questions that, on occasion, the coroner deaths. I very much hope that we will hear about an will have to ask him or herself: “Have I been made improvement to the Bill to include special hospitals, aware?” “Have I reason to suspect?” “Have I reason to because it will certainly come up when we are amending believe?” “Do I think?” “Does there appear to me?” the Bill during Committee. “Does it appear to me?” “Am I satisfied?” “Am I of the It may seem, with that rant, as it were, on two opinion?” “Have I reasonable grounds for believing?”. issues, that I am totally opposed to the Bill. I am not. I Even a senior coroner will have reasonable grounds for am not opposed to the Bill in general or its aim in believing that a different mental state is intended to be general. I am sad that, instead of focusing on that described by each of those varying tests, but they will issue as a single issue and getting it right, the Government not know what they are. I hope that the Minister will have dissipated it in yet another massive Bill in which undertake to consider whether the coroner’s lot may there is a danger of all that is required going by be made a little happier in that regard. It should not be default. difficult. It is very important that coroners are not faced with difficult mental gymnastics. 7.10 pm Moving on from coroners, I, too, voice my disappointment that the Government have opted for a Lord Mayhew of Twysden: My Lords, it is partly step-by-step approach to the law of murder—and very not to delay unnecessarily the Minister’s reply to the modest and hesitant steps they are. I entirely endorse speech that we have just heard that I curtail my what has been said about the approach to the law of remarks. With this scattergun of a Bill, it is impossible provocation. I personally think it quite wrong that to avoid doing what the noble and learned Lord, Lord special provision should be made to remove from Lloyd of Berwick, has described as jumping from one consideration the fact of sexual infidelity. That is point to another. I shall jump from one to no more entirely mistaken and I hope that it will be corrected than three others. in Committee. The Government have rejected the The first is that I welcome the Government’s Law Commission’s recommendation for a three-way objective—we all do—of modernising and tidying the classification of homicide offences—first and second- law relating to coroners. I regret to say that what I degree murder and manslaughter—which the commission welcome most are the two points from which the thinks would better equip us to deal with the “stresses Government have withdrawn since the publication of and strains” on the law in this field, as it puts it. Those the Bill. The first is that we will not have special stresses and strains are manifest, as we all know. They coroners appointed by the Secretary of State in certain have also rejected the recommendations on the appropriate inquests in the sure and certain hope that the coroners labelling of offences and sentencing. will not prove difficult. Among the many advantages that the commission’s The second is that, since last Friday, the Secretary approach would have is the ability to make a departure of State will not be able to dispense with an inquest from what I regard as the deeply damaging mandatory jury by issuing a certificate in qualifying circumstances. sentence of life imprisonment for every murder. Here, That is immensely important and welcome, as the I reluctantly depart from the policy of my party, but I Minister knows very well, because the Government’s share with it a commitment to honesty in sentencing—it characteristic swipe at jury trial was unacceptable. In is just that that commitment leads me here to the recent times, this House has had to deal with many opposite conclusion. attempts to curtail jury trial. To my recollection, they have all been generated much more by concern for Before I turn, lastly, to an opportunity unfortunately administrative convenience and economy than for concern missed, I come briefly to an opportunity unfortunately for public confidence in the justice system. For example, taken. It is to be found in Clause 61, in which the it is far from uncommon for families to harbour Government propose to flout the wise principle that suspicions of cover-up at an inquest, especially where there must be an end to litigation. Only last year, as we 1265 Coroners and Justice Bill[18 MAY 2009] Coroners and Justice Bill 1266 all know, the issue of a further free speech clause being Murder covers an enormously wide range of evil, added to the provisions of the Public Order Act 1986 from sadistic multiple murder to the mercy killing of a was very fully debated. I will not go over it all again, as beloved spouse or partner. I have felt for a long time we have heard the argument powerfully expressed by that to cover the width of this crime, there should not my noble friend Lord Waddington tonight. Noble be a mandatory life sentence. In that, I agree with the Lords understand the point very well. The Government noble and learned Lord, Lord Mayhew. The Government say that it was cursorily debated. It was not: 138 of have absolutely refused to consider this. Not only that, your Lordships voted in the Division and my noble but when they asked the Law Commission to review friend Lord Waddington’s amendment was decisively the law of murder, they refused to allow it to consider carried. Rather than restore an anomaly whereby a the removal of the mandatory life sentence, which free speech clause remained in the religious hatred meant that it originally provided a wholly incomplete offence in the same Bill but found no place in the new report. The Government did so presumably out of sexual orientation offence, the law ought to be allowed fear of what the Mail and the Sun would say. to rest as it has so been shaped only 11 months ago. I In the case of mercy killings, a life sentence is warmly agree with what has been said by many noble usually avoided by a dubious but merciful interpretation Lords. of the law on diminished responsibility, as set out in The opportunity missed is one that would correct a Section 2 of the Homicide Act 1957. That is likely to manifest deficiency in this country’s jurisdiction to be made more difficult by Clause 42 of the Bill, with a prosecute for war crimes, crimes against humanity and new test of diminished responsibility that is likely to genocide. I entirely endorse what has been powerfully be more difficult to meet than the existing one. Clauses 44 argued by the noble Baroness, Lady D’Souza. Let me to 46 also replace the other partial defence to murder deal with the retrospective question. At present, of provocation, now to be altered and called “lack of perpetrators of those offences in whatever part of the control”. The definition of provocation has always world are within the jurisdiction of United Kingdom been difficult for juries to understand. It creates an courts only if the subjects are UK nationals or technically artificial dividing line where, in reality, none exists. resident in the UK and if the crime was committed The abolition of a mandatory life sentence would after 2001. Currently, there are people technically enable the defence of provocation to be abolished and present in Britain who are suspected of war crimes, diminished responsibility to be limited to cases of crimes against humanity or genocide who cannot be serious mental abnormality, where detention in a secure prosecuted here because the crimes were committed mental hospital would be appropriate. The effect of before 2001—the date when the International Criminal this would be to leave issues such as provocation—and Court Act came into force. The result is that, although many such cases are now treated as ones of diminished their actions were always criminal in our law, persons responsibility—to sentencing by the judge. present but not technically resident in this country cannot be prosecuted for an atrocity crime committed The second issue is the provisions of Clauses 49 to prior to 2001. That needs putting right, as the case 51, which cover assisted suicide. I declare an interest as involving four Rwandan citizens the other day has a member of the organisation Dignity in Dying. I am made clear: they had to be let go. That can be done ordinary member, not an office-holder, though my without changing the substantive law retrospectively, wife is a member of the board. I was an enthusiastic which is not what is proposed. All that needs to supporter of the Bill of the noble Lord, Lord Joffe. change is the procedural law relating to jurisdiction. My personal belief is that assisting the suicide of a The argument has been pioneered by the Aegis Trust person who has a few weeks or months to live, and will and by the noble Lord, Lord Carlile of Berriew. I hope suffer great pain and distress during that period, is not that, when it comes to be debated in Committee, and should not be a crime. I should like to see the Bill Ministers will support it. moving in that direction. It does not. There is much to be achieved in Committee—a It is a matter of serious concern that the Bill does Committee of this unelected House that finds itself not merely restate the existing law, but goes beyond it. having to do the work that the elected House has My concern is with new Section 2 of the Suicide turned its back on. Act 1961, which has been inserted by Clause 49 of the Bill. That new section extends the crime of encouraging 7.19 pm or assisting suicide expressly to cases where the defendant has encouraged the suicide of people not known to Lord Goodhart: My Lords, this is yet another him or her. That is a potential threat to freedom of elephantine Bill. There is far too much in it; indeed, we speech on this issue. It is not just my view, but that of have far too much legislation generally. I disagree with the Joint Committee on Human Rights. Paragraph 1.165 the noble and learned Lord, Lord Falconer of Thoroton, of its report says: on this subject, although I agree with everything else that he said today. It seems that departmental Ministers “We consider that the breadth of the offence remains uncertain and has the potential to have a chilling effect on a range of feel the need to show their power and importance by activities involving reference to suicide or the provision of information getting as much legislation as possible through Parliament, or support around end of life decision making. We consider that whether or not it is needed. this chilling effect could engage the right to freedom of expression I will confine what I say to the part of the Bill that and the right to respect for private life … and would require deals with justice, leaving out coroners. What I will say justification”. is not entirely in line with the official policy of my I do not believe that it is the Government’s aim to party. I will take up three issues. The first of these is prevent serious public discussion of issues relating to the new provision on murder in Clauses 42 to 46. suicide and proposing, if necessary, a change in the 1267 Coroners and Justice Bill[LORDS] Coroners and Justice Bill 1268

[LORD GOODHART] introduction of indeterminate sentences may have been law. The Government’s intention, quite rightly, is to well meant, but it has been not only a failure but an stop the repulsive practice of people using their websites extremely expensive failure. The scheme should go. to encourage teenagers and young adults to commit Finally, I strongly support the speeches of the noble suicide. I understand that. However, it seems to be all Baroness, Lady D’Souza, and others on the proposal too possible to interpret Clause 49 as extending well that non-residents who are present in the United Kingdom beyond that. For example, the moving BBC television should be liable for genocide and other serious crimes programme that dramatised the journey of Dr Anne under international law whenever committed. That Turner to Zurich, with the assistance of her children, seems to have the almost complete support of Members to enable her to commit suicide could well be viewed of your Lordships’ House. as encouraging others to follow the same path. Indeed, the noble Baroness, Lady Finlay, indicated that that has happened in at least one case. Nevertheless, such 7.30 pm programmes should, in my view, unquestionably be Lord Craig of Radley: My Lords, I should like to legitimate. We cannot insist on silence on such important draw attention to two issues which the Bill should deal issues. Clause 49 should be modified to ensure that with better. Both relate to Armed Forces personnel it extends only to the unacceptable behaviour that who have lost their lives while serving overseas and appears on some websites and had tragic effect in whose bodies have been repatriated to the United Bridgend. Kingdom, where an inquest into the cause of death I agree with the noble and learned Lord, Lord must be held. The noble Baroness, Lady Fookes, has Falconer, that the Bill is not the right occasion for spoken forcefully on the first issue, and I underline debating a full-scale change to the law of assisted and add to the points that she made. suicide. That would need separate legislation. I also The House is aware of the significant number of agree with him that we should debate changes to the such service deaths—now well over 300 in the past law concerning travel abroad to countries where assisted six years—mainly on operations in connection with suicide may be legal. I will not go into that in more our deployments in the Middle East and Afghanistan. detail, because I am sure that it will come up later. Most bodies have been flown into either RAF Brize The third issue has not been touched on at all so far Norton in Oxfordshire or RAF Lyneham in Wiltshire. in the debate, and that is the problem of indeterminate The coronal resources available in Oxfordshire and sentences. They were introduced by the Criminal Wiltshire were overwhelmed and there were long delays Justice Act 2003 and subsequently modified by the in holding inquests. The untold anguish, frustration Criminal Justice and Immigration Act 2008. Indeterminate and anger that this provoked in the deceased’s next of sentences may be given for specified offences involving kin and their supporters is also well known. Belatedly, violence. When someone is convicted of such an offence, the Government provided more to strengthen local the judge may be expected to impose an indeterminate arrangements, and the backlog of cases has been much sentence. This overrides the upper limit of sentence reduced. However, arrangements for accommodating provided by law and is akin to a life sentence because and helping the deceased’s next of kin or other relatives the prisoners do not know what their final release attending these inquests are still unsatisfactory. dates will be. At the time of the conviction, the judge One beneficial outcome of concentrating inquests imposes a minimum tariff, but to obtain release after so geographically has been that the expertise of the the minimum tariff has been reached prisoners must Oxfordshire and Wiltshire coroners in dealing with the satisfy the Parole Board that they have corrected their tragedies of operational deaths has been built up and violent behaviour. This usually requires prisoners to is now highly respected. We will, I fear, see our Armed attend training courses. The problem is that these Forces involved in warlike operations for some years courses are simply not available. The result is that ahead, and the risk of further service deaths remains prisoners remain in prison long after their tariff has high. Tragically, six more have died in the past 10 days. expired, not because of their misbehaviour in prison, In their Command Paper 7424, the Government but because they have not been able to attend those undertook to treat fairly all those in the Armed Forces, courses. The consequence of this is obvious and their families, and veterans, because of the special damning. nature of their duties and commitment. Surely there A briefing paper by the Criminal Justice Alliance must be special legislative arrangements for military gives startling figures. As of 12 February, there were inquests. We have learnt the hard way how to do it, more than 5,000 prisoners serving indeterminate sentences. and we must ensure that this lesson is not forgotten. In fact, 1,487 of those had already passed the date of Responsibility must be laid on the Chief Coroner to their minimum tariff, but as of 15 January—only four ensure that there is and will continue to be a special weeks earlier—only 47 recipients of indeterminate military coronal group or team that takes from what sentences had been released on licence. That is about we have learnt and keeps the expertise alive and updated 3 per cent of those eligible for release. This shows that in the years ahead. It would not accord with the the treatment required to obtain release is either totally Government’s commitment to do their best for the ineffective, hopelessly underfunded or both. Indeterminate Armed Forces and their families to ignore the need for sentences met devastating criticism earlier this year in a specialist coronal centre of excellence to deal with a report by the Chief Inspector of Prisons and the the repatriated bodies of Armed Forces personnel. It Chief Inspector of the National Probation Service. is a real live issue now and should not be treated as Degree of violence or a bad previous record rightly some transitory problem for which primary legislation lead to longer sentences and always have done. The is not needed. 1269 Coroners and Justice Bill[18 MAY 2009] Coroners and Justice Bill 1270

A further aspect of these inquests is that too often not cater for a defence attaché who is murdered in a the MoD is represented by counsel, while families friendly country, the sudden untimely death of service have no automatic recourse to legal aid. Government personnel who are mentoring friendly forces and are counsel, the costs of which now run into millions of not engaged in conflict, or anyone in the Armed pounds, are said to be present to assist the coroner. An Forces who is unlucky enough to come to a violent inquest is not an adversarial court, so it is asserted end because of an accident or incident overseas, on there is no need for the deceased’s next of kin or land, at sea or in the air and far from any combat or family to be legally represented. Provision is said to be operational training area. When the bodies are repatriated available in special cases to consider an application for and an inquiry is held in Scotland, all next of kin and legal aid, but it is complex and unhelpful. The noble families deserve the same fair treatment that is promised Lord, Lord Thomas of Gresford, outlined a special to the Armed Forces in the command paper, The example of this. Extra costs on the legal aid budget are Nation’s Commitment. Why should Clause 14 be limited also prayed in aid of refusal, which is offensive to the to those who have died when on operational duty? bereaved and does not chime in any way with the To conclude, the Bill must provide for continuing undertaking to deal fairly with the families of service coronal expertise—a coroner’s centre of excellence—in personnel. This was a specific cross-government the hearing of military inquests. It must ensure fairer undertaking, so it is as much a duty for the Ministry of treatment for the deceased’s relatives by giving them Justice, the devolved Administrations and the Ministry aid to be represented legally at those inquests where it of Defence not to cavil over the cost of making is evident that the MoD will be fielding counsel. such provision. Clauses 14 and 15 should cover inquests for any Indeed, now that the military inquest coroners have service person who meets an untimely end overseas built up their expertise, perhaps the MoD should no and for others who are subject to service law at the longer have to field counsel at these hearings to assist time of their death, not just for those killed on operations. the coroner: otherwise, it might be for the coroner who The active service definition used in the Bill is inadequate will preside at the inquest to authorise legal aid for the and offensive. Do the Government recognise these deceased representatives, if requested, whenever the weaknesses in the Bill? Will they table appropriate MoD is represented by counsel. If the Government amendments to be considered in Committee? are still not prepared to assist relatives with legal aid, surely they must restrict the MoD’s reliance on the use of such counsel. 7.39 pm Noble Lords will have seen that Clauses 14 and 15 Lord Elystan-Morgan: My Lords, about a year or deal with the death of service personnel abroad but so ago when we were involved with the Criminal are limited to covering arrangements for investigations Justice and Immigration Bill, I made the rather irreverent in Scotland and investigations in England and Wales suggestion that, as an obverse to the Bill of Rights of despite the body being brought to Scotland. Although 1689, we might consider that Parliament be limited to I do not question the need for special arrangements to no more than one criminal justice Bill a year. Little did deal legislatively with the application of the Fatal I know then that we would be involved with legislation Accidents and Sudden Deaths Inquiry (Scotland) Act, dealing with the anonymity of witnesses within a will the Minister give examples of why the Secretary of matter of months only, and that indeed we have this State would, as Clause 14 states, think it, Bill now, which is one of the most compendious of “appropriate for the circumstances of the death to be investigated Bills in relation to miscellaneous provisions of the under the Fatal Accidents and Sudden Deaths Inquiry (Scotland) criminal law. Act”? I speak with some feeling as a former circuit judge. It is not clear to me whether this is a specific issue or Time and again one was confronted with a brand new just a catch-all phrase to cover any unforeseen eventuality. labyrinth that somehow or another the innocent judge I have one further important point to make about would have to find his way through, even without the Clause 14. Subsection (2) refers to a person as being mythical ball of twine. Having thought that one had engaged in “active service” or in, somehow or another managed to find a way through it, it was only to discover that Parliament was already “activities carried on in preparation for, or directly in support of, active service”. discussing the next labyrinth that would be placed before the humble judge. Clause 14 goes on to state, in subsection (6), that, I would like to confine my remarks to Part 4, which “’active service’ has the same meaning as in section 8 of the deals with sentencing. I do so in the knowledge that Armed Forces Act 2006”. many people who are concerned with the administration Section 8(3) of the Armed Forces Act states: of the criminal law feel deep disquiet with regard to “In this section ‘active service’ means service in … an action or the attitude taken by the Government in relation to operation against an enemy … an operation outside the British sentencing reform. I appreciate that many people at all Islands for the protection of life or property; or … the military levels feel that there are grave dangers in what is occupation of a foreign country or territory”. proposed in that part of the Bill. I appreciate that a However, the whole section is about just one offence: great deal can be argued in favour of change in relation desertion. Is it not just plain wrong and abhorrent to to sentencing but I doubt very much whether the rely on a section about desertion when considering Government have hit upon the right approach in this those who were tragically killed on operations while case. I share the fears of those people and feel that, on duty? A better formulation must be found. Moreover, despite the arguments that are advanced by Government active service, as defined, is not wide enough. It does and indeed the solid basis for their policies laid down 1271 Coroners and Justice Bill[LORDS] Coroners and Justice Bill 1272

[LORD ELYSTAN-MORGAN] first instance—it means that the Sentencing Council in the excellent report of Lord Justice Gage and his can from time to time, provided it has made the proper working party, nevertheless there are very considerable consultations set out in Part 4, make new law. That is a dangers and complexities. law, however, that will never be scrutinised by Parliament. I invite the House for a moment to consider these It is ironic that Lord Justice Gage’s working party—I matters. My submission is that in the first place the have the highest admiration for those persons and for Government are involving themselves in a very the work they did—ultimately decided to reject what is revolutionary development in so far as it seeks to curb called the “Minnesota and North Carolina rigidity of the discretion that sentencing judges have in passing sentencing” system and opted for the New Zealand sentence. Often one is told that the law has been system. The wording of Clause 111 is directly lifted changed and that judges are now constrained by changes from the Sentencing Act 2002 of New Zealand. In in the law. I do not think that happens when you make New Zealand, however, those changes have to go a sentence a subject of either maxima or minima. All before the legislature. I cannot remember whether it is you are doing is moving the area within which the by way of a negative or positive provision; it does not judge exercises discretion. Whenever you deal with make a great difference. discretion per se, you are treading on a path that is The noble Baroness, Lady Stern, made an excellent extremely dangerous and could ultimately lead to tyranny. point when she quoted the Secretary of State for I do not suggest that that is brought about by Part 4 Justice as saying that these proposals had nothing at but it could lead in that direction. all to do with prison population. Well, I could well The situation up to now has been that the Court of have been fooled. If one looks at the excellent report Appeal has given guidelines from time to time, the of Lord Justice Gage’s working party, the first paragraph advisory body from 1998 has given guidelines, and the of the introduction deals with nothing but prison Sentencing Guidelines Council under the 2003 Act population. Therefore Lord Justice Gage and his has given guidelines. There have been ample guidelines. colleagues must have regarded this as the most important They have, however, been guidelines and no more. The consideration. Did that august body fool itself or was relevant section of the 2003 Act—Section 172—says the situation clear from the very start that all this was that the sentencer shall have regard to the sentencing brought about in the shadow, as it were, of the problem guidelines in relation to the offender’s case. He is fully of prison population? entitled to depart from them, although the sentencer I make this suggestion. In Britain we incarcerate has the duty then of spelling out why and that becomes more people per 100,000 than any other country in a matter of record. Under Clause 111 of the Bill, western Europe, with the sole exception of Luxembourg. however, something entirely different occurs. The sentencer We have never examined the position in detail and, there is obliged under the wording of that clause to unless and until we do that, we should not seek to act follow—not to have regard, but to follow—and that piecemeal. There may be dozens of reasons. Many are situation is entirely different. To my mind, it creates a suggested without any specific findings by Lord Justice mandatory situation where there is that obligation, in Gage’s working party. We should, however, go deeply the first instance at any rate, upon the sentencer to into the whole question of why it is that this happens. follow the guidelines. It is true that there is an escape Are the people of England and Wales more evil or clause which entitles the sentencer to have regard to more disposed to crime than those of other countries? the interests of justice and to justify not following the Is it because we have so many statutes that carry a guidelines in a proper case. That means, however, that sanction of imprisonment? Is it for some other reason the onus in the first instance is upon the sentencer to or perhaps for many other reasons? That would be the act within that peremptory order in Clause 111. beginning of wisdom. We should therefore not take One does not know how this will be interpreted by any drastic action such as we have in Part 4 unless or the Court of Appeal in years to come if this provision until that is done. becomes law. In the case of R v Salina Martin, a case determined by the Court of Appeal in 2007, it said 7.49 pm simply that guidelines are guidelines—no more, no less. In other words, this was a liberal interpretation Lord Taverne: My Lords, I shall make a brief comment that does not affect the sovereign authority vested in on the section of the Bill that deals with assisted the sentencer ultimately to determine sentence. This suicide. Our law is in a mess. It needs urgent clarification has created a whole new situation. I suggest that it was and I hope that it will be amended at a later stage. Why wholly unnecessary. The Sentencing Guidelines Council is reform urgent? It is because when people commit was working well; the Secretary of State for Justice at what the law says is a serious crime, the Director of Second Reading in the other place went out of his way Public Prosecutions will not prosecute. As we have to praise its efforts and achievements. It had only been now learnt, he has not done so in something like in existence for a few years and was now bedding 100 cases, which is an extraordinary situation. The down. There was ultimately no reason at all for urgency is underlined by an important report that having it extinguished and recast in the way that Part 4 appeared in the Times last week stating that more and brings about. more desperate people are asking nurses how they can By acting in that way, the provision creates a situation help to get them to Switzerland. They are asking where there is a flouting of Parliament and a voiding urgently for a code of conduct. of the processes of Parliament for this reason. If the In the past, the injustice or absurdity of a law has situation brought about by Part 4 creates a mandatory often forced change because juries would refuse to responsibility on the judge—I believe it does in the convict. When the offence was stealing and anything 1273 Coroners and Justice Bill[18 MAY 2009] Coroners and Justice Bill 1274 worth more than five shillings was a hanging offence, Only the most consummate casuist can support the juries had to make two findings; namely, did the law as it stands. It is not sustainable logically and, accused steal and what was the stolen object worth? If much more important, morally. In the words of Bumble an accused stole, say, £10, the jury would often find the Beadle: that, “Yes, he was guilty of theft, but the £10 stolen “The law is a ass”. was worth four shillings”. In due course the law was The least we can do is clear up the terrifying uncertainty changed. In earlier times one could also escape the for those—there are more and more of them—whose gallows by claiming benefit of clergy. An accused relatives desperately want to go to Switzerland for could claim to be a clergyman if he could read the relief. 51st psalm. Those who were illiterate would learn it off by heart. After 1547, the privilege of claiming benefit of clergy was sometimes extended to Peers of the 7.55 pm realm. But that law also fell into disrepute. Lord Moran: My Lords, I feel very strongly about The position we have now reached is no less absurd. the enormous importance of unrestricted freedom of The Director of Public Prosecutions does not believe a speech in our country. This does not of course apply prosecution for assisting suicide in Switzerland would to the incitement of hatred, which I believe is already result in a conviction, which is not surprising. Every an offence, but it should apply to the protection of opinion poll shows support of more than 80 per cent rational debate and discussion, and the expression of for legalising suicide, which includes Catholics and opinion on anything, including homosexual practices. Protestants as much as non-believers. Church leaders—I Last year, I voted for a free speech clause in the am sorry that none are present—are completely out of Criminal Justice and Immigration Act 2008, which touch with their congregation on this issue. This popular was put forward by the noble Lord, Lord Waddington. support is not based on ignorance or a temporary I was concerned about reports that people who expressed fashion. It has been consistent over a long period and their deeply held religious convictions on homosexuality is based on the personal experience of miserable deaths had been harassed by overzealous police officers who of relatives and friends. sometimes threatened them with jail for what was Recently, the former Director of Public Prosecutions, described as homophobia. Sir Ken Macdonald, said on Radio 4: I therefore deplore the insertion of Clause 61. It “I think we have reached the stage ... where prosecutors are seems extraordinary that the Government should put effectively deciding that in an entire category of case they’re not this forward, so showing an apparent indifference to going to apply the public interest in favour of a prosecution. That the preservation of free speech. It is interesting that opens up the question as to whether the law is still appropriately framed and I think it is an indication that we may have moved, leading homosexuals such as Peter Tatchell and Matthew society may have moved, beyond the law and that the law needs to Parris should support a free speech clause. The churches catch up a bit”. are clearly against Clause 61 and I wholly agree with In the same programme, the noble and learned the excellent speech made by the right reverend Prelate Lord, Lord Bingham, made a statement which has the Bishop of Southwell and Nottingham. Liberty, an already been quoted. He said that, organisation which seeks to protect civil liberties and “we are approaching a point at which the law does not match the promote human rights for everyone, reportedly opposes expectations of reasonable people″. the Government’s approach on free speech grounds. The noble and learned Lord’s remedy for this flaw is I believe that the Government, and any Government very humane and completely in line with public opinion of our country, should do all that they can to protect and actual practice. He said: and promote freedom of speech and never compromise “I think the best possible situation is where you’ve got a on this. They ought to put it much higher among their general practitioner, knows the family, knows the family’s wishes, priorities. knows the patient, appreciates the extent to which the patient is in pain and gently ups the dose of painkiller to a point where it is in fact lethal”, 7.57 pm which happens all the time. Baroness Dean of Thornton-le-Fylde: My Lords, the Let me remind your Lordships of the present law. noble Baroness, Lady Fookes, and the noble and gallant To withdraw life support, to turn off a ventilator or to Lord, Lord Craig, referred to coroners and inquests switch off a life support machine—a positive act that related to military personnel, which is the area on directly causes death—is not a crime. To provide a which I, too, shall concentrate. This is a long-awaited lethal drug that leaves it to the patient to decide Bill. Certainly, from the area in which I am interested, whether or not to use it is a crime, with a penalty of a it is a long time coming, so I very much welcome it. I possible 15 years’ imprisonment. To increase a dose of am also delighted that my noble friend Lord Bach is painkillers gradually until it proves lethal, as the noble the Minister taking this Bill through. He was a Minister and learned Lord, Lord Bingham, suggests, is not a at the MoD at the time of the pensions Bill for the crime. To administer sufficient painkillers in one dose Armed Forces and he assisted in making some that proves lethal is a crime, punishable by 14 years’ considerable changes. So I am quite optimistic that we imprisonment. To help someone commit suicide in may get a listening ear to what we are seeking. Switzerland is not a crime for which you will be A number of noble Lords have referred to the prosecuted. To assist suicide in Britain, where those decision on Friday to change the Government’s stance who are forced to go to Switzerland would much in the Bill in regard to inquests held in secret. I think prefer to die, is a crime for which you will be prosecuted that I could be forgiven for coming to the conclusion and is subject to a penalty of 14 years’ imprisonment. that one or two of those noble Lords were rather 1275 Coroners and Justice Bill[LORDS] Coroners and Justice Bill 1276

[BARONESS DEAN OF THORNTON-LE-FYLDE] It would help the families and would help avoid some disappointed that that had happened and that they of the heartbreaking situations we have seen, with so were looking forward to some fun in the Chamber had many reports of families still not satisfied. that been left in the Bill. I have to say that had that These are a few amendments that I would like to see been so, I would have joined in the fun. I certainly did to the Bill, but, my goodness, they would make an not support secret inquests. awful lot of difference to the well-being of families Last July, a consultative meeting took place of who have lost loved ones in the service of their country. bereaved families who had had experience of Oxford They would also go a long way to help meet the and its coroner. They had lost loved ones—men, women, commitment that the country has to those people. sons, husbands, daughters and wives—in Armed Forces operations. I was privileged to be at the end session of that day, which was organised by the Royal British 8.04 pm Legion and supported by the War Widows’ Association. Baroness Warnock: My Lords, this Bill has been I must declare an interest as vice-president to the called a ragbag, if not a dog’s breakfast. I suppose the president, the noble Baroness, Lady Fookes. At the items in the Bill are linked together vaguely by a end of that day, which was very moving—these families concept of justice, but like my noble and learned had experienced delays and problems in trying to get friend, Lord Lloyd of Berwick I pity the Minister an open decision quickly for their loved ones—they when he has to make some sense of all the completely made it clear that what they wanted was a system in different topics that have been touched on today. which they had confidence. Certainly, with the extra I shall speak briefly on one topic: Clauses 49 and 50 resource that has been put into Oxford, that confidence seek to amend the Suicide Act 1961 with the aim of was starting to build up. From their experience, it is bringing it up to date. What I say will be a footnote to clear that a coroner dealing with military inquests has what has already been said by other noble Lords, to be trained. If they are not trained in military including the noble Lord, Lord Taverne. I understand investigations, the inquest will not give families confidence and applaud the Government’s desire to be able to or assurance that the outcome will give them closure prosecute those who publicise suicide over the internet, and allow them to continue their lives. and, for whatever motive, malicious or missionary, I should like to see an amendment ensuring that positively encourage young people to kill themselves. one of the deputy senior coroners will be specifically My noble friend Lady Finlay has spoken very eloquently responsible for military inquests. Alternatively, before on this subject and I agree with everything that she a referral can be made, the Chief Coroner should says. Clauses 49 and 50 would criminalise in exactly ensure that whoever is dealing with the case is trained. the same way, and to the same degree, these dangerous I accept that there well may be a difference between people who are putting young lives at risk and who are fatalities in the Armed Forces suffered in normal broadcasting their thoughts and encouragement to the day-to-day work and training, and those suffered in world at large as the other group of people who, operations overseas. That may be something we need perhaps with agonies of conscience, assist individuals to consider. who they know and love to end their lives when living Part 6 of the Bill refers to representation. I would is no longer tolerable to them. like the Bill amended to provide legal representations These two target groups are so radically different, for families. There is no doubt that there is full legal one from another, that they really cannot be treated in representation at the inquest. We are told it is to help the same way by the law. From the cases we know the coroner; we would like the families to have legal about, the notion of encouraging suicide is miles away representation to help the coroner too. It would give a from the thoughts of those who often are persuaded much more balanced outcome. Having said that, I am only with great difficulty to help their relatives to go not aware of any family who has had a military abroad. I am thinking of the well publicised case of fatality which has been refused legal support at an the Turner family where the three children were eventually inquest, but it would be good to see such a provision persuaded that their mother, a doctor, really did want in the Bill. to end her life before it became more intolerable than The facilities for families are also of concern. They it was. There was simply no question of encouraging are in a traumatic situation, with no privacy—it is all suicide because they did their very best to dissuade her over the papers—their lives are turned upside down from going, but at last were won over and in the end and they have to face the delay we have been talking felt that what they had done was right. If the law treats about. When they turn up for the inquest, there is not cases that are so different from one another as if they only a moral requirement but a responsibility of duty are the same, that will lead to total confusion. As the of care to ensure that the facilities they have are good noble Lord, Lord Taverne, reminded us, it goes without and help them face the inquest. That is not always the saying that the issue of accompanying relatives abroad case at the moment and I would welcome discussing it has become urgent because of the much-publicised in Committee. recent cases. Also, none of the more than 100 people I should also like to see an amendment to provide who have done this has been prosecuted, although that an inquest is by jury where the death has occurred there is no doubt whatever that under the 1961 Act during military training, or, more importantly because they were assisting a suicide and therefore committing of recent events, the individual is under 18. We have a crime. had the Deepcut report, with all the concerns there are Some lawyers think that the status quo should stay about it. With a fatality affecting someone under 18, it as it is or that the law as it would be amended by would help if the inquest took place in front of a jury. Clauses 49 and 50 will be adequate. For myself, I 1277 Coroners and Justice Bill[18 MAY 2009] Coroners and Justice Bill 1278 believe that the present situation is fraught with too The first of the three amendments that I ask the much uncertainty. The fact is that the Director of Minister to replace in the Bill, because they would Public Prosecutions has not clearly stated why no one make life a great deal easier, is to widen the obligation has been prosecuted. To say that this is because no to report finds of treasure to anyone who comes into jury would convict is to give away the situation, to give possession of treasure. At present, the duty to report away how people in general, through the jury, feel treasure in the Treasure Act 1996 rests solely with about the act of assisted suicide. It acknowledges that those who find treasure. The British Museum has an people do not regard it as a crime and therefore they agreement with eBay to monitor its site for potential would not find guilty a person who had done it. To say treasure, although it is thought that many items of that it would not be in the public interest is to explain treasure are sold by third parties without applying the nothing. So there is no clarity in the law at the moment, appropriate due diligence tests. The amendment would and a law that never leads to a prosecution is both encourage best practice. futile and open to abuse. We need a clear law that I have had a number of meetings with eBay on this contains safeguards so that only those who really want after the passing of the Dealing in Cultural Objects to die and who are able to prove it will be taken to (Offences) Bill, a Private Member’s Bill that I had the Switzerland. joy of taking through your Lordships’ House. When I In saying that the law should be changed, I am found the legal representative for eBay and said that I merely echoing the words of, among others, the noble would like to talk to him about this, his first answer and learned Lord, Lord Bingham, and Lord Justice was: “How the hell did you get this number?”. It is not Scott Baker, who asserted that the law must be changed the easiest thing tracking down eBay. I am not saying and that it is the task of Parliament to change it. The anything about the quality of the company, but there present Bill affords Parliament a chance to do that and is a major problem with the fact that a market could amendments will be brought forward at a later stage be created in finds. We know from the English Heritage that can be discussed in detail. report on nighthawking that the illicit selling of finds is a major problem. If this market is created on eBay 8.10 pm and takes hold, we will see a large number of our sites Lord Redesdale: My Lords, many noble Lords have raided. Of course eBay has made agreements with complained that this is a ragtag Bill or a dog’s breakfast, other European countries on this. We asked it why it as the noble Baroness, Lady Warnock, just said, but had not signed an agreement in this country and it for some of us this is a fantastic thing. Those involved said that it was because our legislation is not as strong in legislation to do with heritage or archaeology always as legislation in other European countries, which I find their issues tagged on the end of something else, believe says something about how we prioritise our so to find them in this Bill is a wonderful feeling. heritage. This is an extremely important amendment Before I thank the Minister for accepting the amendment and I hope that the Minister will look at it kindly, on the coroner for treasure, I should say that I am because there are a large number of APPAG members almost disappointed because I have with me a briefing who are going to enjoy a few discussions on this. If he with coloured tags for an incisive and decisive argument. just accepted what of course was a government I have never been so well prepared for an amendment, amendment, against which it is going to be very difficult but he has shot the fox, as the expression goes. However, to argue, that would shorten the course of the Bill. I thank the Minister for accepting the arguments The second point is to give the coroner powers to and for the work done by other noble Lords, including require anybody who reports the discovery of found the noble Lord, Lord Howarth of Newport, and all treasure to deliver it to the coroner. We know of a case those in the All-Party Parliamentary Archaeology where Bronze Age axes were reported to the coroner Group. but some of the best of them were kept out of the However, I think that the Minister would be upset if report, which meant that there was a real problem in I said that I would leave it at that and that I was going finding out about their existence. to sit down, so there are a few points that I want to The third point, which I think is extremely important make. I thank the Minister for putting something back in making sense of the Treasure Act at all, is to allow that had been in the draft Bill, so these are almost more time for prosecution to be brought under the government points. Three other small points that would Act. The case that I just mentioned took a long time be of incredible value to those of us in the heritage and, even though the police were prepared to prosecute, community were contained in Schedule 3 to the 2006 the statute of limitations, which at present is at six months, draft Bill. If they were included, life would be a great is not long enough to deal with the process. If a coroner’s deal simpler for those in the heritage sector. They all report is taking a year—or in some cases two years—the concern aspects of treasure. Some noble Lords may statute of limitations kicks in and the whole system is not be aware of the growing number of finds due to made a farce. the Portable Antiquities Scheme, which is now looking at much stronger funding due to the Government’s These would be three small but valuable changes. work. Treasures are being brought to light by metal They would not be very costly but would make the job detectorists in areas the majority of which would have of the coroner for treasure announced by the Minister been destroyed by the actions of industrialised farming. far more relevant. I believe that they would make our Noble Lords can go to the British Museum to see the heritage far safer from that small minority of people treasure exhibition or catch it on tour to appreciate among the metal-detecting community who use metal the value of the finds that are coming up through the detecting for profit rather than for extending the Portable Antiquities Scheme. knowledge of our heritage. 1279 Coroners and Justice Bill[LORDS] Coroners and Justice Bill 1280

8.17 pm 8.21 pm

Lord Hylton: My Lords, most of this Bill is well Lord Alton of Liverpool: My Lords, at the beginning outside my knowledge and experience. However, I of 2008, following the delays in implementing many of know that coroners’ inquests in Northern Ireland proved the recommendations that arose from the murder of unsatisfactory during the long years of violence. That patients by Dr Harold Shipman and the subsequent was partly because of major delays between deaths murder in 2002 of patients at Leeds General Infirmary and inquests into them and partly because of the by the nurse Colin Norris, I tabled a series of Questions triangular low-level warfare that was going on at that to the Government, which were answered on 25 March time. There must be ways in which the workings of the and 21 May 2008. In response, the Government indicated historic coroners’ courts can be improved and better their intention to legislate, and I welcome large parts satisfy the relatives of those who have been killed. of the Bill before us today. I intervene for two reasons only. The first concerns The Shipman murders led to an inquiry that published Clause 61 and freedom of speech. After only one year, six reports and 228 recommendations, at a cost to the the Government seek to remove the amendments that public purse of £21 million. Weaknesses were discovered your Lordships made on 21 April 2008. Surely it is too in the death certification process, in the requirement soon for it to be known whether the amendment has for one doctor alone to certify a death and to decide produced adverse or unintended consequences. I fear on referral to a coroner, and in the failure to cross-reference that Her Majesty’s Government may have caved in to notified deaths and to look for trends and patterns. pressure from the fashionable homosexual lobby. What Among the recommendations were many other proposals evidence is there that this important defence, protecting to strengthen the system of public protection. freedom of expression and speech, has done the slightest harm? The burden of proof is surely entirely on the After the trial, the Shipman inquiry, chaired by authors of the Bill. There was doubt, and the amendment Dame Janet Smith, decided there was enough evidence tabled by the noble Lord, Lord Waddington, removed to suggest that Shipman had probably killed around it. Innocent people should not have to be investigated 250 people, of whom 218 could positively be identified. unnecessarily. About 80 per cent of his victims were women. In the case of nurse Colin Norris, he was convicted on 8 March I agree with my noble friend Lord Moran, who, 2008 of murdering four elderly patients and attempting alas, is not here, that so-called homophobia should to murder another. not be made into a crime. When words are in fact threatening or intended to stir up hatred, they should I recognise that the Bill goes some way to try and be treated as an offence, but, where they express prevent a repetition of these appalling crimes, but I genuine opinion criticising certain behaviour in a should like to hear from the Government how many reasonable way, they should be given full protection. I of the 228 recommendations of the Shipman inquiry urge the House to resist Clause 61 and to leave the have been incorporated into this legislation and what Public Order Act 1986 as it is. Free speech is always further measures will be needed to deal with the being whittled away; we should rally to its defence. failings identified by the Norris inquiry. My second point arises from Clauses 49 to 51 about In addressing end-of-life issues, this question of suicide. Suicide is an awful thing whose repercussions public protection must surely be our paramount concern. affect many others apart from the deceased. There is a It is why the Government have rightly resisted any temptation for some who would be afraid to cause attempts to use the Bill to make assistance with suicide death by murder or manslaughter to achieve the same or the killing of patients legal. In any event, during the end by the suicide of their victim. That is why, rightly, life of this Parliament in your Lordships’ House we the Bill makes encouraging or assisting suicide a serious have had the benefit of a Select Committee and several offence, punishable by up to 14 years’ imprisonment. Private Members’ Bills, while, on the most recent vote On 20 March, when the Bill was in the other place, that was taken in this House, the proposal to permit some Members, led by the right honourable Patricia assisted suicide was defeated by a substantial majority. Hewitt, proposed an amendment to create a new exception Constitutionally, the correct place for this matter to be to the provisions of the Bill, which would have made tested is surely in another place. I agree with the encouraging or assisting suicide lawful if the death Minister that to use the Bill in that way would be occurred in another country where self-destruction quite wrong. was allowed. That would run directly counter to the purpose and intentions of the Bill. In the context of this Bill, there would be no logic in making the law more restrictive in dealing with doctors I argue that many people, especially the feeble-minded, and nurses who set out to take the lives of their the frail, the elderly, the confused or the chronically ill, patients, such as Shipman or Norris, while simultaneously are particularly vulnerable. They deserve our protection giving a green light to the approval of euthanasia. By against coercion or persuasion to take their own lives. amending the Suicide Act 1961, this Bill also rightly Exceptions to the offence of encouraging or assisting outlaws predatory websites that encourage or promote suicide will place temptations in front of would-be suicide. It introduces an offence of encouraging or exploiters who would benefit from someone else’s assisting suicide. It would make no sense and defy death. On the contrary, we should be providing safeguards logic—and, indeed, introduce a dangerous, contradictory for a vulnerable group of people. I urge your Lordships fault line—if we were to make it an offence to promote to resist amendments of the kind described just as suicide on the internet and then to approve the promotion strongly as you would defend free speech. of suicide overseas. 1281 Coroners and Justice Bill[18 MAY 2009] Coroners and Justice Bill 1282

The prohibition on the promotion of suicide is a sought safety in numbers and gathered in churches, good and welcome provision, and nothing should be public buildings and schools. Thousands of men, women placed in the Bill which contradicts or weakens our and children—including the children from a nearby determination to protect the vulnerable. Our laws are orphanage—fled up the hill to Murambi. The authorities tough, but they are administered with compassion and told them that they would be safe there, but then cut common sense. It is not a fudge, as some noble Lords off the water and electricity supplies. They survived have suggested, to leave open the possibility of prosecution for two weeks until 3 am on 21 April 1994. Then, where motives are shown, for instance, to be pecuniary Interahamwe militiamen—Interahamwe means “those gain. Merely because some people have not been who work together”—and soldiers arrived, and they prosecuted is not a reason for setting aside a law that surrounded the school. Armed with guns and grenades, has protected many thousands of people. I would they began killing. They killed for over six hours. By briefly remind your Lordships that when it was decided the morning, thousands of civilians were dead. Only to allow voluntary euthanasia in Holland it led to four survived, unconscious and left for dead by the involuntary euthanasia. Nearly 1,000 deaths a year are murderers. involuntary out of a total of 4,000. So we need to be In my report I described how: clear where we are proceeding if we give the green light “56,000 bodies were found there, and we walked from classroom to what is being suggested. It is, of course, the reason to classroom, viewing 852 remains that have been disinterred. why all of the Royal Colleges and the British Medical Within a few days of the massacre, a volleyball court had been Association take the view, shared by the Government, built on top of one of the mass graves which, we were told, the that the law should not be changed. French peacekeepers then used in their leisure time”. My second point—and here I will follow my noble Murambi is now a memorial. Some of the mass graves friend Lady D’Souza, the noble Baroness, Lady Williams have been excavated. The classrooms are filled with of Crosby, the noble and learned Lord, Lord Falconer, human remains. In some cases the corpses have been and the noble Baroness, Lady O’Cathain—concerns preserved in quicklime and retain tufts of hair and the question of genocide charges and bringing charges recognisable features. In the classrooms lie thousands against those who have committed crimes against of white skeletons, sometimes frozen in the positions humanity in other jurisdictions. Several of us in this in which they fell. It is as if a man-made Pompeii had House, while Members of another place, took part in swept over the hill and through the buildings. Some the parliamentary passage of the War Crimes Act 1991. still clutch their rosaries; some of the women were That dealt with suspected Nazi-era war criminals who clearly pregnant and skulls bear the marks of the had made their way to these shores during the chaos machetes used to hack them down. that followed the Second World War. During those It takes a lot of planning to kill thousands of proceedings, the noble Lord, Lord Carlile of Berriew, people: orders must be given for roadblocks to be set made a memorable and moving speech, where he up; petrol must be requisitioned for the vehicles that began by drawing our attention to what he described transport the killers up the hill; grenades and ammunition as an “unregisterable interest”. Two of his grandparents, must be distributed to the soldiers; avid killers need to two of his uncles, an aunt and many cousins were be praised, and slackers exhorted to work harder and killed during the Holocaust. They were doctors, teachers to kill faster. Genocide is a vast criminal enterprise. and postmasters—normal people murdered because It is alleged that some of the criminals responsible of their racial origins. I know he would not mind my for what happened at Murambi have visited the United bringing this painful memory to the attention of the Kingdom, and that some are still here. However, due House, because his purpose in 1991 was to remind his to what the former Director of Public Prosecutions listeners that they should not forget the victims—not has called jurisdictional gaps—these have been identified just the dead, but also the living: especially the living, in your Lordships’ House today—amounting to impunity who often crave justice just as any other victim of any gaps, suspects from Rwanda and some other modern so-called “normal” crime would do. atrocities cannot be prosecuted here. Those are gaps The Nazi Holocaust holds a particular horror for that we need to fill. the world, and rightly so. That is why Parliament The accusations that I have mentioned are included eventually passed the War Crimes Act 1991, which in the original ruling by the Westminster Magistrates’ specifically related to crimes committed in Nazi-occupied Court. These accusations are also repeated in documents Europe. However, the victims and survivors of modern filed at the international criminal tribunal for Rwanda— genocides and crimes also want justice. disturbing documents which I have with me here in the My noble friend Lady D’Souza raised the issue of Chamber and which I have read. the Rwandan suspected genocidaires, who can neither Ten days ago I chaired a public lecture in Liverpool be extradited to face trial nor prosecuted here. I visited given by Luis Moreno-Ocampo, the Prosecutor for the Rwanda in 2004 and published a report in October of International Criminal Court. He emphasised the need that year through the British charity the Jubilee Campaign. for jurisdictions like our own to strengthen our domestic In paragraph 3.28 of the report, I described the Murambi provisions in hunting down the perpetrators of genocide genocide site in south-west Rwanda. Murambi was a and crimes against humanity. This Bill gives us the technical college, which, as I said, chance to accede to that request and to ensure that we “served to remind us of the hellish reality of Rwanda’s recent are no safe haven for those who would avoid prosecution. past.” Like the War Crimes Act, it would not turn Britain The school is a collection of long, single-story brick into a global court, but neither would it allow these buildings, situated on the top of a hill, with 66 classrooms. islands to be used as a bolthole for men such as those At the beginning of the genocide, many Tutsi Rwandans who orchestrated events at Murambi. 1283 Coroners and Justice Bill[LORDS] Coroners and Justice Bill 1284

8.32 pm noble Lord, Lord Elystan-Morgan, with great care, but I will put a different point of view on this subject. Lord Joffe: My Lords, I should like to follow the Consistency of approach in sentencing is important in Minister’s cautionary advice that the Bill is not the order that justice should be done and seen to be done. place to introduce a debate on assisted dying. I understand If two offenders who have committed a similar offence and agree with that advice, but as the Bill includes and have similar culpability appear before two different clauses dealing with assisted dying and seeks to change courts and receive a significantly different sentence, the law on diminished responsibility to the detriment this disparity undermines public confidence in the of mercy killers, I will touch on Clauses 42 and 49. fairness of the criminal justice process. It also discredits I had intended to raise the issue of protecting the judicial process. individuals who assist their loved ones to travel to It is particularly important that minority-ethnic countries where assisted dying is lawful in order to end communities should have confidence that there are no their suffering by ending their lives. However, the racial disparities in sentencing, and that offenders noble and learned Lord, Lord Falconer, the noble from different ethnic groups receive sentences which Lords, Lord Lester and Lord Taverne, the noble Baroness, are consistent and governed by guidelines which minimise Lady Jay, and others have spoken so eloquently on this the scope for unconscious racial bias. I ask the Minister issue that I have nothing to add and simply associate to ensure a proper system of monitoring to ensure that myself with their proposals and views. I had also unconscious racial bias has no place in sentencing intended to talk about the proposed changes to the decisions. law on murder. However, having listened to the incisive and brilliant speech of the noble and learned Lord, As the Minister has said, the government reforms Lord Lloyd, I have very little to add but thought that I are based on the findings of an expert working group would touch on Clause 42, which provides that the chaired by Lord Justice Gage. The working group only sentence the courts can impose on mercy killers sensibly ruled out excessively rigid options, such as in charged with murder is life imprisonment. However, some American systems, in which guidelines consist of the noble Lord, Lord Goodhart, has convincingly numerical grids from which courts must take their covered that point. Accordingly, I will be very brief. sentences. The Gage working group rightly considered that these systems do not allow sentencers enough I underline the injustice and disporportionality of scope to depart from the guidelines—for example, to imposing the same punishment on a mercy killer driven reflect on matters of personal mitigation. Instead, it by compassion and acting at the request of the terminally recommended a system which is similar in many ways ill patient as on a murderer who has killed for gain. to the current Sentencing Guidelines Council, with How they can possibly both be liable for the same four main differences, which I will spell out. sentence strikes me as a grave injustice. The Ministry of Justice’s consultation paper states in relation to the The first difference is that there will only be one suicide clause: body—the new Sentencing Council—instead of two as now, the Sentencing Advisory Panel and the Sentencing “Our aim is to ensure that the law in this area is just, effective and up-to-date, and produces outcomes which command public Guidelines Council. This is a sensible move. At present, confidence”. outside experts and organisations are consulted three It is difficult to understand how mandatory life sentences times over the same set of guidelines, first by the for mercy killers can be considered just. It is even more Sentencing Advisory Panel, secondly by the Sentencing difficult to understand how the Government can believe Guidelines Council, and thirdly by the Justice Select that the Bill’s outcomes will command public confidence Committee in another place, which also scrutinises the when opinion surveys consistently show that 80 per draft legislation. Combining two bodies into one should cent of the population are in favour of assisted dying help streamline the process and enable guidelines to be and when two Lord Chief Justices, including the current produced in a shorter timeframe. Lord Chief Justice, a previous Director of Public Secondly, when it produces guidelines, the Sentencing Prosecutions, the Bar Council, the Law Society, Liberty Council will also produce a resource assessment of and Justice all support the Law Commission’s their likely impact on prison places and the resources recommendation that before changing the law, extensive of the probation service. This again I welcome. There consultation needs to be undertaken. Will the Minister is little sense in devising guidelines which could have a outline the reasons for not following the Law significant impact on the need for prison places or Commission’s recommendations? probation resources without any assessment of this impact. I cannot think of any other body issuing 8.35 pm guidelines which would be allowed to do so. The Bill does not say that the guidelines have to fit within the Lord Dholakia: My Lords, we all agree that this is a currently available number of prison places; it simply wide-ranging Bill. At this stage, I will avoid the temptation says that the council must publish an assessment of to speak on various aspects of the proposed legislation. the demand for prison places which the guidelines will Many noble Lords have concentrated on specific produce. This will enable the Government to plan and provisions and I shall follow the same practice. I will allocate resources accordingly and will enable expert concentrate my remarks on Part 4, particularly Clauses 104 bodies commenting on the draft guidelines to do so in to 122, which establish a new Sentencing Council for the knowledge of the resource implications. I hope England and Wales. that this significant move will assist in relieving the This provision should help to build on the work of pressure on the Prison Service. More importantly, the current Sentencing Guidelines Council in achieving some of us who took part in the Question for Short greater consistency in sentencing. I listened to the Debate of the noble Lord, Lord Ramsbotham, last 1285 Coroners and Justice Bill[18 MAY 2009] Coroners and Justice Bill 1286

Thursday expressed serious concern about the probation 8.44 pm service, and I trust that there are indicators established to work out the resource implications on this service. Baroness Emerton: My Lords, like other noble Lords, I would like to speak on one small but none the less Thirdly, the Sentencing Council will be required to important part of this Bill, referred to in Sections 49 monitor the impact of its guidelines on sentencing to 51, which seek to amend the Suicide Act for England practice and publish information on the sentencing and Wales and the Criminal Justice Act for Northern patterns of different courts. This proposal is also Ireland. These sections are designed to update the two welcome. Indeed, it is elementary common sense that laws in such a way as to outlaw internet websites that any organisation or body issuing guidelines should promote or encourage suicides. I am sure I speak for monitor their subsequent impact. It will help the the whole House in condemning such unwholesome Sentencing Council in framing future guidelines to websites—they may well have been a factor in recent know whether its past guidance has had the results it spates of suicides among young people—and in intended, or whether there have instead been unforeseen supporting the Government’s decision to tackle them. or unintended consequences. Publishing information The subject of assisted suicide is a live one in the on the sentencing patterns of different courts will help media at the moment, and there are those who wish to to demonstrate how far the council’s guidance is achieving see it legalised for certain categories of people, such as the aim of consistency of approach. those who are terminally ill or have chronic and Fourthly, there will be a different statutory test degenerative conditions. As has already been referred governing cases in which courts depart from the guidelines. to in your Lordships’ House this afternoon, we have At present, courts have to consider sentencing guidelines debated this subject at length on three occasions during and give reasons if they depart from them. Clause 111 the past six years but have not been persuaded that a requires courts to follow the guidelines, change in the law has to be made. “unless the court is satisfied that it would be contrary to the The question of whether assisted suicide should be interests of justice to do so”. legalised is complex and controversial and, I suggest, Some critics of the Bill have suggested that this is too not fully understood. I believe that this House has restrictive a test, but in my view it is entirely proper made its views firmly known, almost exactly three that a court departing from the guidelines should have years ago to this day. Assisted suicide is far too important to show that this is in the interests of justice. What and complex an issue to be passed into law through an other good reason could there be for passing a sentence amendment to a Bill such as this which addresses a different from the guidelines than that this is necessary wide range of issues, and in which the Government’s in the interests of justice? I therefore welcome the proposals to amend the Suicide Act comprise just provisions for the new Sentencing Council. three clauses out of over 150. I hope therefore that the However, there is one strange omission in the types House will agree that it could not contemplate such a of experience which will be sought when recruiting serious change in the law simply as a side issue to members to the council. It will have eight judicial other legislation. members and six lay members. Schedule 13 sets out a There is one argument that the House may hear number of areas in which the lay members will have from those who want to see this Bill amended to experience. These are criminal defence, criminal legalise assisted suicide on which I feel I should comment. prosecution, policing, sentencing policy and the It has been suggested that there is a difference between administration of justice, the promotion of the welfare malicious encouragement of suicide and compassionate of victims of crime, academic study or research relating assistance with it and that, while encouragement should to criminal law or criminology, and the use of statistics. be outlawed, assistance should not. This is, as I am This is a logical list of areas in which lay members of sure the House will recognise, a wholly spurious argument. the Sentencing Council might be expected to have Yes, of course there is a difference between maliciously expertise. However, the schedule does not include any egging someone on to commit suicide and helping mention of experience in the rehabilitation of offenders. someone to do so who has asked for assistance in This seems a strange omission, in view of the requirement compassionate circumstances. But these are the extreme in Clause 106 that the Sentencing Council should have fringes of the spectrum. Most people who might seek regard, among other things, to the effectiveness of assistance with suicide are in the grey area in between, different sentences in preventing reoffending. It would and they are the ones who would be put at risk by an surely, therefore, be helpful for the council to have amendment designed to give licence for assisted suicide input from a member or members with practical to a small minority of highly resolute people. The law experience of preventing reoffending by rehabilitating is there primarily to protect vulnerable people from offenders. I give notice that I will move an amendment abuse—people who might seek assistance with suicide to Schedule 13 to rectify this omission, unless of not because it is what they want, but as a result of course the Minister takes steps to rectify this in or pressures either from others or, more often, from before Committee. within themselves. With this caveat, I welcome the proposals for a In any case, legalising assistance with suicide is Sentencing Council as a logical development of the tantamount to encouraging it. If Parliament were to current Sentencing Guidelines Council’s excellent work say that encouraging suicide should be against the law to promote greater consistency in sentencing. We shall but assisting it in certain cases should be legal, we of course monitor the outcomes in due course. They would in effect be discouraging it for most people but will determine if our confidence in these clauses is encouraging it for others. What sort of message would justified. that send from this House to seriously ill and other 1287 Coroners and Justice Bill[LORDS] Coroners and Justice Bill 1288

[BARONESS EMERTON] opinion, it is recognising, as other royal colleges realistically vulnerable people? I hope that your Lordships’ House and helpfully have, the diversity of opinion among its therefore will support the Government’s amendments membership. It is also apparently responding to requests and resist any attempts to amend them further to from patients who anxiously ask nurses about the allow assistance with suicide. possibilities open to them. These are some aspects about which nurses are at present forbidden from discussing with them. The reality is that the public, the 8.48 pm media and Parliament are discussing assisted dying Viscount Craigavon: My Lords, I would like to but nurses often simply cannot do so with their patients. focus on the small but important part of the Bill The recent debates in Parliament on assisted dying, relating to the circumstances of assisting suicide. I partly promoted by the noble Lord, Lord Joffe, have support what has already been said, in particular by moved the public discussion on, as has the steady the noble Lords, Lord Goodhart and Lord Joffe, work of Dignity in Dying and many of those who, about the need further to clarify the legal position of however desperately ill, have courageously assented to those who might be compassionately assisting in this their predicament being publicised. As the noble and country the death of a terminally ill, suffering, competent learned Lord, Lord Falconer, said, as this Bill is re-enacting adult as against those who might maliciously encourage the suicide law, this quite properly could be the opportunity suicide. I support an amendment fully to emphasise to make one change in this area. As he said, it would and reflect that crucial difference in law. help to identify safeguards and would end uncertainty My main point here is to comment on the well for those accompanying friends and relatives, as against publicised position of those who now accompany the leaving it to the discretion of one person, the DPP, terminally ill to Switzerland. I do not shy away from however wise. The noble Baroness, Lady Jay, simply reminding the House again of the widely accepted called this “a lack of clarity”. opinion polls that show that over 80 per cent of the To the extent that Parliament fails to deal with this population would support a change in the law on aspect, we are in danger of bringing ourselves into assisted dying. The stories of those taking the effort disrepute. One might ask how many more people have and expense to go and be accompanied to Dignitas in to take this passage to Switzerland before we stir Switzerland are a tangible and urgent reminder to us ourselves to do something about this. This can and that something needs to be done. should be the occasion for this fairly minor change. Last week I was very much influenced listening to The Minister said in opening that we should wait the excellent Radio 4 discussion programme “The Law for a Private Member’s Bill to sort this out as part of and Death”, which has been mentioned by the noble some whole, perfect solution. How long will we have and learned Lord, Lord Falconer, and the noble Baroness, to wait for that? He said that this was too important to Lady Jay. The programme was attempting to elucidate be slipped into a passing Bill. In my opinion it is too the current state of the law and where it might be important to be left out of this opportunity. The going, with a former senior Law Lord, the noble and benighted comfort of the status quo should not be learned Lord, Lord Bingham of Cornhill, and the acceptable to us. Do we want to imagine that we might former DPP, Sir Kenneth Macdonald, among others. have the same law, unamended, for the next five or The DPP reminded us that in his tenure there were 10 years—quite a possibility—and to guess how many over 90 Dignitas cases where, after examining the more desperate people will have to make the journey evidence as well as assessing the public interest, there to Switzerland? As the noble and learned Lord, Lord were no prosecutions. Perhaps I may quote, as the Bingham, was trying to tell us, these numbers are a noble Lord, Lord Taverne, did, the noble and learned symptom and a sign that Parliament should act. How Lord, Lord Bingham, the former Lord Chief Justice much further prompting do we need? I look forward and former Master of the Rolls. He said: to supporting an amendment at the next stage that can “I think we are approaching a point at which the law does not help the terminally ill and their relatives and friends in match the expectations of reasonable people”. these tragic circumstances. He went on to say that, “if in nearly 100 cases the DPP is saying I do not think it is in the 8.54 pm public interest to prosecute, it is getting awfully close to a situation where Parliament ought to be saying, well, we had better have Baroness Linklater of Butterstone: My Lords, at some rules”. Third Reading in the House of Commons, much He said that one or two cases might be an anomaly but concern was expressed at the lack of adequate time 100 is something that we should be seriously paying available to debate large parts of the Bill. It therefore attention to. falls to this House, despite our being a revising Chamber, I am following the noble Baroness, Lady Emerton, to rectify some of those omissions. If the range and whom I think of as somehow representing the Royal number of speakers tonight is anything to go by, that College of Nursing—but perhaps she no longer does. will be the case. A few days ago, the Times published a very helpful It has now become routine that Home Office or article about what the Royal College of Nursing was Ministry of Justice Bills consist of a mix of myriad doing to put discussion of assisted dying into some elements that have little to do with each other and in sort of framework for nurses. It is apparently consulting which there is a lack of overall consistency or vision in its membership on whether to reconsider its stance, what is trying to be achieved. Despite all the legislation perhaps from being officially opposed to a stance of of the past 10 years, we are still living with a criminal neutrality. From having in the recent past a monolithic justice system that is full of contradictions, resulting 1289 Coroners and Justice Bill[18 MAY 2009] Coroners and Justice Bill 1290 inevitably in public uncertainty, a lack of understanding cumbersome process. We must have a framework in and—ultimately and dangerously—a lack of confidence which stability and consistency in sentencing can be or trust in what the system is achieving for the public achieved, without overly constraining the discretion of good. sentencers, while also commanding the understanding Thus, for example, it is stated policy that prison and confidence of the public. The Bill’s proposals should be used only as a last resort for the most offer a start to achieving this. I emphasise that it is a dangerous, violent and prolific offenders—quite rightly. start because there is a lot of work to be done. At the same time, we have seen an unprecedented rise We are very glad that the sentencing grid, as proposed in custodial sentences, due in part to legislative changes, by the noble Lord, Lord Carter, has been rejected and with more than half of those prisoners serving short that the current proposal in the Bill broadly reflects, sentences of six months or less, who of course do not instead, the conclusions of the working group under fit the “dangerous, prolific or violent” profile. The Lord Justice Gage, who had looked closely at the inevitable result is prison overcrowding at unacceptable Carter proposals. The wording of the Bill is that the levels and an equally unacceptable prison building courts must have regard to the guidelines, but there is programme. also the important caveat, Simultaneously, the Government’s stated policy is “unless the court is satisfied that it would be contrary to the that alternatives to custody should be available for all interests of justice to do so”. but that group of offenders for whom prison is appropriate—violent, dangerous or prolific—but they I am well aware that this is causing real concern for have failed to give the probation service and the voluntary sentencers and that it will require careful scrutiny. or private sector adequate resources to make that However, it is a serious attempt to balance the need for essential policy a properly functioning reality. Instead consistency with the need for judicial discretion. It will of creating a system in which offenders are less likely be important to ensure that it never becomes an exercise to reoffend and society is safer through the greater use in predicting prison numbers, or that its emphasis is of community penalties, we have one in which more perceived to be on the punitive, as opposed to the people go to prison, more people reoffend and, restorative and rehabilitative, element of sentencing. unsurprisingly, the citizen does not feel any safer or The Bill also includes a duty for the council to more confident. monitor both the operation and effect of its guidelines. The ultimate irony is that, while the prison population That could and should show how effective the council has risen by 30 per cent during the past 10 years to an is in promoting consistency and the extent to which its unprecedented 83,000, the number of people found guidelines are being followed, which must then inform guilty by the courts has remained almost the same, its practices. The proposed duties on the council to having risen by about 2 per cent. What has changed is carry out impact assessments on the resource implications that we are sending more people to prison for lesser of court decisions on the prison, probation and youth offences and for longer—we are tougher, at an enormous justice services on one hand, and the potential impact human, social and financial cost. of policy and legislative proposals on the other, are The aspirations for the Bill, as expressed in the very important and could have far-reaching implications. Ministry of Justice Explanatory Notes, are for, That could highlight the crying need for better resourcing “more effective, transparent and responsive justice”, for probation and other services if sentencers are to expressed with, see their decisions realised, as they should expect, instead of the lack of available drug or alcohol treatment “clarity, fairness and effectiveness”. services, a domestic violence course or a mental health Until our system of justice is far more coherent and treatment programme, which is routinely the case today. consistent, and one which the community knows about and understands—for that is the basis of confidence The publication of the potential impact of policy and trust, is it not?—we will continue to suffer from a and legislative proposals will mean that Parliament is crisis of confidence and trust in our criminal justice in a far better position to make informed decisions system. before it gives its assent to any further legislative At this stage, I must add my wholehearted endorsement changes. This could, for example, have been the case and relief at the sensible decision by the Lord Chancellor with the indeterminate sentence for public protection, to remove Clauses 11 and 12, where provision was about which my noble friend Lord Goodhart spoke at made for secret inquests, which has been spoken to so impressive length. Indeterminate sentencing has resulted eloquently by many noble Lords, including my noble in a surge of over 5,000 prisoners in the population, colleagues. The confidence that we all need—not to with the majority left in a penal black hole, unable to speak of the needs of the bereaved families—will now earn their release for lack of the necessary courses to not be compromised, as it would have been. do so. This is an absolute lack of justice. The council’s I concentrate my few remarks on what is a potentially role in informing and educating the sentencing process significant part of the Bill in the opportunities that it could serve the interests of better decisions and better offers: that on sentencing and the proposed Sentencing justice. It is, indeed, devoutly to be wished. Council. Given the unprecedented explosion in the However, there are at least two features that are numbers of the prison population during the past crucially lacking from this part of the Bill, which 10 years against a background of almost unchanged seriously undermines the potential for positive change. numbers of people being found guilty by the courts, it The first, as was referred to by my noble friend Lord offers the possibility of change. The way in which the Dholakia, is an overarching and explicit commitment Sentencing Advisory Panel and Sentencing Guidelines to the prevention of reoffending in the Bill. It is, after Council operated turned out to be a rather slow and all, a key element in the purposes of sentencing and 1291 Coroners and Justice Bill[LORDS] Coroners and Justice Bill 1292

[BARONESS LINKLATER OF BUTTERSTONE] I start by being very kind to the noble Lord and should inform all our thinking, planning and practice. congratulating him first on introducing this Bill—or, All the evidence shows that the Government’s policy rather, this whole series of Bills—to the House, and of community sentencing really cuts crime at far lower then sitting through the entire debate. I remind the cost to the taxpayer and with greater benefits to the House that he is the only person in this House who has victims, the community and, of course, the offenders. sat through every single speech—good luck to him—and A key element in its success is that sentencers are who will have to wind it up at the end. Those are the regularly given the opportunity to visit and see what is last congratulations that I will offer him. currently available to them at any one time in their I will not speak much to the merits of the Bill, particular areas when they are considering their disposals. because my noble friend Lord Kingsland set out our It will make all the difference to those kinds of decisions. views—to the extent that he could on such a wide-ranging I have seen the effect of this, having chaired the Bill—at the beginning of the debate. I shall concentrate Rethinking Crime and Punishment initiative over the on the process by which the Bill has been brought to past seven years. We ran demonstration projects in us, because that has been of considerable concern to a various parts of the country and found that the initiative large number of Peers who have spoken. This Bill is had an effect on many of the sentencers that was like the Criminal Justice and Immigration Bill—that almost an epiphany. farce of a Bill that we had last year and that was first The other gap in the Bill is a duty on the Sentencing introduced in another place. Half its clauses were Guidelines Council to engage with local communities added to it on Report in another place, and then half and to inform, educate and consult them about its role of those clauses were removed in Committee in this and what is happening. This should be a core function place. We now have a Bill of equal size this year before of the council: one that underpins its work. The Bill this House—a Bill which, as many noble Lords have talks about the council “promoting awareness”, which said, could be quite a number of different Bills. There is fine but inadequate. A specific public information are nine parts, 166 sections and 21 schedules. I think it and consultative role must be included. The public was the former Lord Chancellor, the noble and learned need a trusted authoritative source to counter Lord, Lord Falconer, who implied that Lord Chancellors misinformation about sentencing and to explain how were judged by their weight, and by that I mean the and why the system works. A role of this kind has the weight of legislation they put through— potential to put right and close the gap in public confidence and trust. This is at the core of the aims of Lord Falconer of Thoroton: I did not imply it, my the Bill. It gives rise to questions such as what the Lords, I said it. composition of the council should be, but its importance cannot be emphasised enough. I have already spoken for 11 minutes and know that Lord Henley: My Lords, the noble and learned we are probably all desperate to get home. I am now Lord and the noble Lord, Lord Bach, would find it winding up my remarks and I hope noble Lords will considerably better if they passed fewer Bills, took agree that it is beyond anyone to do justice to the more time over them and tried to get them right. range and depth of the contributions this evening. I will offer some advice to the noble Lord. Many This has been an extraordinarily important and wide- years ago, in the long distant past when I was a ranging debate and I have hopes that the good parts of Minister in the Department for Social Security, we the Bill will be enhanced and developed by the very used to push through an all-singing and dancing social long processes of Committee and beyond. security Bill every year. Politically it was very difficult— We have heard a great deal about the enormous legislatively it was equally bad. It did not allow Parliament amount of legislative work that we do in this House—the time to scrutinise these Bills adequately and after a noble and learned Lord, Lord Lloyd, talked forcefully while we found it a great advantage to break these about the amount of legislation that we have already things up and have a number of discrete Bills. That had—but at the same time there have been calls around allowed both Houses more time to spend on the the House for separate Bills on a whole range of issues process and also allowed them to get it right. It was that are already in this Bill. They are unfortunately good for Parliament, it was good for legislation and it mutually exclusive. Suicide, genocide and murder are was good for the statute book. No one can say that three themes that have come up again and again in something like this is good for the statute book, incredibly important debates. I hope that these and particularly when it is the fourth, fifth or sixth—I other important elements of the Bill will now be put in cannot remember which—criminal justice Bill we have their place and given the sort of scrutiny that will do seen in the past four, five or six years. them all justice. On that note, I thank everyone on The first question I would like to put to the Minister behalf of my part of the House for their extraordinarily is how many Bills have there been. Just to get things in interesting contributions. perspective, will he remind us how many parts of all of those Bills have never even brought into effect? Here we are labouring away on legislation and half of these 9.08 pm Bills, or large hunks of them, are not brought into Lord Henley: My Lords, the noble Baroness, Lady effect. I would be grateful if the Minister would take Linklater, says that it will be rather difficult for anyone advice on that and offer us some help. to wind up a debate such as this. I look forward to the If the Minister wants a sign of the size of this Bill noble Lord, Lord Bach, trying to do so in the time and the number of subjects it covers, it was brought available after I have sat down. home to us very firmly by the noble Lord, Lord 1293 Coroners and Justice Bill[18 MAY 2009] Coroners and Justice Bill 1294

Thomas of Gresford; at about the 16 or 17 minutes Part 2 deals with murder, infanticide, suicide and into his speech he reminded the House that he had not partial defence to murder. As has been made clear by even got beyond Part 2. There were Parts 3 to 9 still to the noble Lord, Lord Thomas, my noble friend Lord go. He quite rightly left many of those to his noble Kingsland and many others, this should be part of a friends. much wider reform of the whole offence of murder. I will stick to the process of the Bill and would like Again, the Government should take note of the desirability to make a few points, starting with Part 1 on coroners. of consultation on these matters. The House should Despite the fact that the Minister made his opening be reminded of what the noble and learned Lord, speech very well, I will give the figures to underline the Lord Lloyd of Berwick, said when he commented on weakness of this Falconer method, if we can call it the Law Commission’s report on murder. He reminded that, of legislative steamrollers. The noble Lord devoted us that the Government completely ignored the first four minutes to Part 1; Part 2 got another four minutes 64 pages, I think it was, of that report, while admitting but large parts of Part 2, such as infanticide, were that the law was a mess. never mentioned. Similarly, I do not think we had The noble and learned Lord suggested that the anything on child pornography and images of children. Government should take the whole of Part 2 away, Part 3 got two minutes. Part 4 on sentencing got three think again and come forward with proper proposals, minutes, I think. Part5Idonotthink was mentioned having taken proper note of what the Law Commission at all, and neither was Part 6 on legal aid. Criminal has to say. I do not know whether the Government will memoirs had a minute. We had two minutes on Part 8 take note of what the noble and learned Lord has said on data protection, and again nothing on Part 9. I or even what the Law Commission said in its report. mention this to remind the Minister that we will have But I will offer a little bet to the noble and learned to spend quite a considerable time on the various parts Lord that at some stage during the course of this Bill, of this Bill as it goes through. He might find—or the we will see either this section or another large section business managers might—that they have to look quite mysteriously and rapidly removed by the Government hard at what gets squeezed out as the Bill goes through as they try to speed up its passage when they get into the House. problems trying to get it through in good time, bearing As my noble friend made clear, we broadly support in mind the vast range of subjects with which it deals. I what the Government are doing on Part 1 covering do not know whether the noble and learned Lord coroners, particularly after we received the letter on would want to take up that bet, but if he does not, I Friday that was to ensure that we had seen it in good will have it with the noble Lord, Lord Bach, instead. time for Second Reading—I did not get my copy until But I leave that to him. Monday—and now that we have heard that Clauses 11 Part 2 further deals with suicide and assisted dying and 12 are to be removed by the Government. Again, recommendations. A range of noble Lords remarked to stress how the whole process has gone wrong, it is that this should be discussed discretely as a separate worth reminding the House, as the noble Lord, Lord Bill—if I remember correctly, the Government suggested Pannick, did, what has happened in the past. Some a Private Member’s Bill—and that is the correct approach. very similar provisions to Clauses 11 and 12 were I would go further and agree with the noble Baroness, introduced without consultation in the Counter-Terrorism Lady Williams. This is a matter on which the Government Bill and then, after it had gone through another place, should take the lead. They should offer a Bill on which they were withdrawn by the Government. Now, a year there should be a free vote, certainly on this side of the or so later, they are brought into this Bill, again by the House, but also on all other sides of the House. The Government and, again, there has been no consultation. Government should provide the appropriate time to Vast amounts of time have been wasted in another deal with a matter of this sort. place—it could have debated other clauses, but due to its procedures it did not even manage to do that—because We accept the necessity to include provisions about the Government were not prepared to consult on this the images of children, to which my noble friend Lord issue in advance. They insisted on going through with Kingsland referred. But again we heard nothing from it and then they withdrew it. the noble Lord when he opened the Bill as to what these clauses will do. It would be right and proper for No doubt the noble Lord will tell us that the him to address that matter when he speaks at the end. Government are a listening Government and that they listened to what we all said, which is why they responded. I move on to Clause 61, “Hatred against persons on This is a pretty chaotic way of legislating. If the noble grounds of sexual orientation”. This was the amendment Lord had consulted properly, we might have been in a moved in the Criminal Justice and Immigration Bill of better position with this Bill. There might not have last year by my noble friend Lord Waddington, an been the necessity for the Government to withdraw amendment that was discussed at some length in this Clauses 11 and 12—quite rightly, we believe—at this House and then voted on on a free vote. My noble late stage after they had been debated to such a friend Lord Kingsland—and I think he got some considerable extent. Why they withdrew them, I do agreement on this matter from the noble Lord, Lord not know, particularly as they will probably bring Neill—suggested that it was unconstitutional, or, if them back in another Bill in due course. Perhaps the not unconstitutional, jolly nearly unconstitutional, to noble Lord could advise us on whether there were overturn it sometimes only 11 months after it was concerns about the timing of the Bill—or was it just passed. It might be that, it might not be that; I accept because the Government noticed the number of speakers the advice of my noble friend. To me, it is just plain who had put their names down on Friday when the shoddy. That amendment went through this House, letter came out? the Government agreed to it purely because they had 1295 Coroners and Justice Bill[LORDS] Coroners and Justice Bill 1296

[LORD HENLEY] responsive service generally. I apologise to the noble worries about timing on the whole of that Bill, and Lord, Lord Henley, for making my opening speech they signed up to it. I think it behoves the Government much too short for his liking; I shall try to make up for therefore, to stick with that and I hope that the it now if I possibly can. But I should gently remind Government will accept that something that has been him, when he criticises us for introducing too many passed by this House and by another place—that has Bills, of some interesting figures. Between May 1997 been agreed to—should stay in this Bill and I again and May 2007, 56 pieces of Home Office legislation await comments from the noble Lord in due course. were passed. It might be said that that number is far I do not want to take up too much time on the next too many, but it compares with 68 Acts in the period few sections that the noble Lord dealt with, such as between 1990 and 1997, including 19 Bills in the Part 3 on criminal evidence, Part 4 on sentencing and pre-election Session of 1996-97. Perhaps the noble the miscellaneous criminal justice provisions in Part 5, Lord has some experience of what he speaks and I but I note everything that has been said. I move on to have to listen to what he says. Part 7 dealing with criminal memoirs. The noble Baroness, It is not surprising with such a wide-ranging Bill Lady Miller of Chilthorne Domer, welcomed it but that a number of noble Lords have taken severe issue thought that it had been sloppily drafted. It was the with some of the content. Even where there is general noble Lord, Lord Borrie, though, who probably got it support, noble Lords quite properly want to probe the right when he said he had considerable doubts as to detail. I welcome that and look forward, not with whether it was needed at all. I have to say, and I shall completely unmixed views, to a detailed scrutiny of put it to the noble Lord, Lord Bach, that this again is the Bill in Committee. I agree with the noble Lord, something we see repeatedly from the Government—what Lord Henley, that we will be here for a long time, but one might call legislative grandstanding. There are we will get through the Bill. A large number of points complaints that something is happening, so the have been made and I have a limited time in which to Government feel that they must legislate, whether it is speak, so I shall do my best to answer as many necessary or not. As the noble Lord, Lord Borrie, has questions as I can. Before I indulge in that, the noble told us, there are already adequate remedies in place. Lord, Lord Goodlad, referred to the report of his So we are doing something that the Government insist committee, the Constitution Committee of this House. is necessary, but we advise is not necessary. Again, I It was published only last week. We welcome the suggest to the noble Lord that he properly takes the committee’s contribution to the debate on the provisions advice of his noble friend and quietly withdraws that in respect of certified coroners’ investigations and section of the Bill. It might speed up its passage assessment notices. We are studying the findings and through this House. will respond as quickly as we can. I could go on, but I will not, because at this stage all I now move straight to Part 1 on coroners. Many of us would be grateful to hear from the noble Lord noble Lords have welcomed the decision to withdraw the answers to a great many of the questions that have Clauses 11 and 12, although I must say that I agree been put to him. I will end again with a plea. He with my noble friend Lady Dean when she said that suggested that when we were in government, we produced she was at the same time a little sorry. No doubt noble massive Bills. Well, we actually did learn and realised Lords were looking forward to quite a bit of fun on that smaller, more discrete Bills very often were a more those clauses, which dealt with the need to protect effective way of legislating and produced better law. I sensitive material that may be relevant to a coroner’s do hope the Government can learn that in the short investigation. As I made clear in my opening speech time they have left available to them. and others have reminded me, if I ever were to forget, although we are withdrawing the clauses, the issue has 9.23 pm not gone away. The noble Lord, Lord Pannick, suggested that rather than establishing an inquiry under the Lord Bach: My Lords, this has by and large been a Inquiries Act, we should lift the bar on the admissibility constructive debate and I thank all noble Lords who of intercept evidence. I should make the position clear have taken part. It has been a debate of real quality on the Inquiries Act, although no doubt we will debate and I thank noble Lords for giving up their time. the issue in some detail. I said that we would consider I also welcome the broad measure of support from using the Act in the rare cases where these matters all sides of the House for a number of the individual arise, but in all of them, rare as they may be, we will, if provisions in the Bill. The poor Bill itself has suffered possible, try to work under the existing system. That is a bit. It has been described in various ways today: as a our first preference. dog’s breakfast, a ragbag, a Christmas tree, as elephantine, The noble Lord, Lord Kingsland, made a series of as a whole series of Bills and as a myriad mix—and points about coroners and asked whether the Government those were only the nice phrases about it. I most liked will bring forward an amendment to constrain the the description by, I think, the noble Lord, Lord ambit of an inquiry established to investigate the Elystan-Morgan, who said it was “compendious”. I circumstances of a death. Our immediate response is am not quite sure I understand what that means, but I to say no, we do not believe that an amendment is like the sound of it. necessary. The terms of reference of the inquiry itself I am pleased, too, that the need to change the law under the Act will limit the inquiry accordingly. He on coroners has been largely accepted. It is something mentioned the duty of care in the “Marchioness” case. that has long been wanted. We need to give the system Clause 34 enables the Chancellor to issue statutory a new lease of life, give bereaved families a stronger guidance setting out how the coroner system will voice, and provide a more effective, transparent and operate for those who come to use it. It is intended 1297 Coroners and Justice Bill[18 MAY 2009] Coroners and Justice Bill 1298 that a charter for the bereaved will be the very first service. We considered very carefully whether a national guidance issued, and a copy was published with this coroners’ organisation should be established, but we Bill. It sets out in detail the standards of service the concluded that retraining and local ownership, while bereaved can expect and clarify how they can challenge creating national leadership, was the best model. We coroners’ decisions. think this package of reforms will ensure that the The noble Lord also asked about the budget of the service provided by coroners will be more consistent Chief Coroner. He or she will have a budget, be through standards set by the Chief Coroner. We also supported by one or more deputies, and have an office believe that measures in the Bill will reduce coroners’ with staff. Again, he or she will be funded to administer workload and will therefore release resources so they a new appeals system, administer training for coroners can be directed on providing services to the bereaved. and their staff, introduce standards and best practice, At the same time we think it important to keep the and introduce the charter for the bereaved. service as a local one, ensuring it can remain responsive to the needs of local people. As to the important point of legal aid, raised first by the noble Lord, Lord Thomas of Gresford, and Moving on, I want to say a word about military mentioned by the noble Baronesses, Lady Miller and inquests. The noble and gallant Lord, Lord Craig, the Lady Fookes, our case is that the purpose of an noble Baroness, Lady Fookes, and others were concerned inquest is actually to establish the facts. They are not about the Bill not providing for a specialist military adversarial proceedings in the same way as a trial, coroner. I reassure them that despite this the Bill will with a prosecution and defence, and coroners have ensure that the current expertise in military inquests ensured and will continue to ensure that the process is will be retained and built on. First, the new Chief thorough and impartial. They are under a duty to Coroner will issue guidance and set standards in relation assist families and ensure that their questions are to certain types of death. The draft charter for the answered. bereaved states that we would expect that to include We are not persuaded that legal aid needs to be standards in relation to deaths on active service, and routinely made available for coroners’ inquests. The the guidance will ensure that all coroners are well ministry has provided legal aid in every inquest into equipped to investigate military deaths. If a particularly the deaths of service personnel where the Legal Services complex case arose that required specific skills or Commission has recommended it, and I understand experience, the Chief Coroner would be able to transfer that it recommended it in every case where it has been that case to the best qualified coroner. Greater flexibility sought. Since January 2003 it has been granted in in the new system should also, we think, minimise the 16 such inquests. However, legal aid is not currently backlogs that may occur at present and enable a case available as a matter of course in other inquests and, to be transferred to a coroner area nearer to a bereaved as the Legal Aid Minister, with a very, very tight family than the place to which the body was repatriated. budget indeed, frankly I cannot see that changing in This will significantly benefit bereaved service families. the immediate future. My noble friend Lady Dean, I think, was concerned about this point, as well as others. The noble Baronesses, Lady Williams and Lady Finlay, asked about death certification and the The noble and gallant Lord, Lord Craig, asked independence of medical examiners. Of course it is when the Secretary of State would think it appropriate vital that the public are confident that medical examiners for a death to be investigated in Scotland. If the will carry out an independent scrutiny of a medical deceased is a member of the Regular or Reserve certificate of the cause of the death. The Bill attempts Forces who is on active service overseas or preparing to ensure this independence in two ways: first, by or training for it or is a civilian subject to service specifying that PCTs in England and local health discipline accompanying such a person, and the deceased’s boards in Wales can have no role in relation to the way family lives in Scotland, that is when it will be appropriate. in which medical examiners exercise their professional At present, a death in these circumstances will be judgements as medical practitioners; and, secondly, by subject to an inquest, but if an investigation is able to enabling regulations to specify what is required to take place in Scotland instead of an inquest it will demonstrate independence. obviously have beneficial effects, in that the deceased’s We think that two protocols will be required. A family will not have to travel to England. national protocol—prepared in consultation with the Will medical examiners have specific qualifications? medical royal colleges, the BMA and others—will set Will the Chief Coroner have a medical adviser? These standards on the minimal level of scrutiny for medical questions were mentioned by various noble Lords, examiners. A second local protocol agreed by the PCT such as my noble friend Lord Turnberg and the noble in consultation with the area’s senior coroner will set Lord, Lord Alderdice. A detailed training curriculum out the minimum distance—including any relationships has been developed by an intercollegiate group established with the deceased or the attending doctor—between by the Academy of Medical Royal Colleges, led by the the medical examiner and the dead. Our approach will Royal College of Pathologists, about which a particular ensure, we hope, that medical examiners are both question was asked. Medical practitioners will be assessed properly independent and able to influence clinical following completion of the training and, if successful, governance arrangements where necessary. accredited to act as medical examiners. Practice as There were many other questions on coroners—one a medical examiner will also be reflected by the in particular was raised by the noble Lords, Lord arrangements for the revalidation and relicensing of Imbert and Lord Ramsbotham. Their complaint was medical practitioners when introduced by the General about why we had not established a national coroner Medical Council. 1299 Coroners and Justice Bill[LORDS] Coroners and Justice Bill 1300

[LORD BACH] I come to Clause 61, which is, of course, a matter Medical support to the Chief Coroner will be provided we will debate in full, and no doubt vote on. I think I by a national medical adviser. He or she will advise am entitled to point to the fact that the House of and provide leadership on all medically related matters. Commons has voted twice by huge majorities in favour I think that answers that question. of what we are proposing in this Bill. That is something The Bill allows coroners to request an MRI scan as that, at least, this House has to take notice of, even if it a non-invasive post mortem. Research is continuing, decides to continue the attitude it took last year. I do but there are issues about cost and the availability of not think there is any constitutional outrage at all in equipment. coming back this year with a proposition we had last year. It is quite clear why we did not come back to this I shall move rapidly on to Part 2, which deals with House on it last year. The noble Lord will argue his homicide. I heard clearly the points made by the noble case, no doubt with great passion as he did last year, and learned Lord, Lord Lloyd of Berwick, on this but this matter should be decided on the issue itself. It issue; he queried our staged approach to the reform of is not a constitutional issue as such. the law of murder, as did other noble Lords. The Law Commission’s recommendations for this important As far as the Sentencing Council is concerned, and sensitive area are indeed ambitious and wide-ranging, some very interesting comments were made. I am very but we think it is better to stage our reforms to get grateful for the great support shown to it, and I think them right. We will be looking in due course at the that is a fair adjective, by the noble Lord, Lord Dholakia, commission’s other recommendations, particularly those and the noble Baroness, Lady Linklater, whose speech—if for a new structure for homicide and complicity to I may say so—was outstanding, in the course of a murder, in the light of the effect of changes to the pretty outstanding debate. Their support is much partial defences. I need to make it clear to the noble appreciated. I know their concerns about this, which and learned Lord that the murder provisions in the were expressed very clearly by the noble Lord, Lord Bill were debated in Commons Committee but, Elystan-Morgan. Though I often agree with him, I unfortunately, not on Commons Report. think that on this occasion, he was slightly exaggerating We will undoubtedly refer to the partial defences in the dangers involved. due course. I hope the House will forgive me if I quote The Bill makes clear that the court must follow the some outsiders who seem, at least from the terms of guidelines laid down by the Sentencing Council unless these quotations, to be in favour of what we are the court is satisfied that it would be contrary to the attempting to do. On the question of provocation, the interests of justice to do so. That is stronger than the organisation Liberty, which is not often known for its present duty on sentences, which is simply to have support of what the Government intend to do, said regard to guidelines. However, that enhanced duty is this: based on the Gage Commission’s view that there should “With respect to the first of these”— be a presumption that guidelines drawn up by a body that is, killing in response to the fear of serious violence— with a judicial majority and chair should be applied to ensure greater consistency in sentencing. “Liberty welcomes the proposal as a reasonable response to some of the current problems arising under the provocation We recognise, of course, as did the working group, response”. that there has to be discretion to do justice in the That was in October last year. The Law Commission individual case. That is why the Bill provides that, even itself said in the document Murder, Manslaughter and where an offence is sub-divided into categories, the Infanticide in November 2006, after the important sentencer can sentence within the entire range of the House of Lords decision that the noble and learned guidelines. That means that, in the Sentencing Guidelines Lord referred to, which I think is called Holley, that, Council’s current robbery guidelines, the sentence can “the partial defences remain misleading, out-of-date, unfit for be from one to 12 years; and even then, the sentencer purpose or all of these”. can still depart from the offence range if it is in the So there are various views, but I know that the noble interests of justice to do so. “In the interests of justice” and learned Lord’s view and that of the noble and is a very important expression. Again, we will debate learned Lord, Lord Mayhew, is that we should be sentencing views in due course. doing all this as one; I understand that. The noble Baroness, Lady Stern, asked me how I turn to provocation and the issues around sexual many new offences this Bill created. I am glad to be infidelity. The fact that the thing done or said constituted able to tell her that it creates 15 new offences. Eight are sexual infidelity is to be disregarded by the Bill. However, wholly new, and the remaining seven update offences it may be taken into account in so far as it also in the Coroners Act 1988. We will have a debate about amounts to something other than sexual infidelity. We the number of imprisonable offences that have been will come back to these issues in due course. invented, as she argued, by this Government. I think The noble Lord, Lord Joffe, asked me why we are that even she would agree that some of those, in some not using reform of partial defence and diminished of the fields where we have changed the law, were responsibility as an opportunity to update the law undoubtedly right and proper to create. relating to mercy killers. The Law Commission, in its Many noble Lords spoke about genocide, war crimes report, made clear its view that the use of the defence and crimes against humanity—all of them were in of diminished responsibility should not be stretched favour of movement on this issue. We know that the so far that it becomes a back-door route to a partial noble Lord, Lord Carlile, intends to table an amendment excuse for caring but rational mercy killers. We agree in Committee to make the offences of genocide, war with that position. crimes and crimes against humanity retrospective. We 1301 Coroners and Justice Bill[18 MAY 2009] Coroners and Justice Bill 1302 remain keen to ensure that no one escapes justice for derived from the publication to be repaid. I emphasise crimes as devastating as those in question, so graphically that the courts will have a wide discretion on whether described by noble Lords, particularly the noble, Lord to impose an order. Alton. The International Criminal Court Act 2001 The noble Lord, Lord Lester, was delighted with already allows for UK residents or nationals to be what we had done with regard to conditional fee prosecuted here for such crimes irrespective of where agreements. We are also pleased as we think that it is they were committed, but this does not apply to offences the right course and that it will be popular. I noted committed prior to 2001. As my right honourable what the noble Lord said about sedition. This issue friend the Lord Chancellor said in another place, we arose in the other place. We accept that there is a case are actively considering this issue, and I have no doubt for the abolition of these rarely used offences. We need that we shall have an interesting debate in Committee to be confident that they can be abolished without on this very important area of concern. further ado. It is open to the noble Lord to table a We heard many passionate speeches on assisted suitable amendment for Committee which would allow suicide, either for a change in the law or for maintaining noble Lords an opportunity to debate the issue. I the law as it is. I was asked whether there would be a assure him that the Government would welcome such free vote on the Government’s side. The answer is yes. a debate, but I say no more about it tonight. Indeed, I There will be a free vote on an amendment of the kind say no more about anything tonight. I have gone on that my noble friend Lady Jay proposed. However, I for longer than I meant to. Once again, I thank all must repeat the observation that I made many hours noble Lords for the part they have played in a most ago in my opening speech; namely, that we do not illuminating and interesting debate and look forward think this Bill is the appropriate vehicle in which to to seeing them in Committee. pursue a change in the law on this sensitive issue. Nevertheless, I look forward to listening to the debates Lord Craig of Radley: My Lords, before the Minister in Committee. sits down, I raised a point about active service and using the definition in the Armed Forces Act which We heard some interesting speeches on criminal relates solely to desertion, which seems a very inappropriate memoirs. I think there will be interesting debates on definition to be using in the context of this Bill. that, too. I make it clear that this is not an attack on freedom of speech or on legitimate publishing businesses. Lord Bach: My Lords, I remember the noble and We are not banning criminals from writing about their gallant Lord making that point. I hope that I may acts, no matter how ghastly they may have been. We write to him with a fuller reply to it. are just saying that if a criminal publishes material Bill read a second time and committed to a Committee about his crimes or an act that can cause distress to of the Whole House. victims and their families, the court will have the power—if it wants to use it—to order any benefit House adjourned at 9.49 pm.

GC 509 Business Rate Supplements Bill[18 MAY 2009] Business Rate Supplements Bill GC 510

Whitehall imposes an awful lot and I think that this Grand Committee is something that it could very usefully impose. It is an utterly feeble response to a practical suggestion. I Monday, 18 May 2009. became the chair of my local authority’s planning committee at a time when planning was being opened Business Rate Supplements Bill up to the public quite dramatically. I discussed with officers my proposal that copies of planning applications Committee (2nd Day) should go into local libraries so that people could see them somewhere that was convenient. The arguments 3.30 pm that I was faced with were the cost and breach of Clause5:Prospectus copyright. I said, “Well, let’s do it and see what happens”. Nothing happened, except that people were able to go Amendment 18 not moved. and see the applications somewhere local to them. I do not think that this is a major item in terms of complication, complexity or cost. I hope that the Government can Amendment 19 look more favourably on it. Moved by Baroness Hamwee Amendment 22 provides that as well as the prospectus 19: Clause 5, page 3, line 33, after “prospectus” insert “and a being available at all reasonable times of the day, it summary of it” should be available for a reasonable period of time, which speaks for itself. It may well be implied that that Baroness Hamwee: I will speak also to Amendments 20, would have to be so, but if the reasonable times of the 21 and 22. These amendments are about the prospectus day are spelt out, I wonder whether I am right in that has to be issued as part of the consultative process. thinking that “for a reasonable period” would not In part they come from the Federation of Small Businesses. actually be implied. The prospectus may be a complex document; I think it These are minor matters compared with the totality will have to be. My amendments provide for summaries of the proposals in the Bill, but they would make it a of the prospectus, not to avoid the need for clarity, but great deal simpler for those who are going to be asked to ensure that the information is accessible in every way. to pay to find out what they are being asked to There may well be campaigns around the proposals contribute to and to be able to take decisions accordingly. for the use of the business rate supplement. We all I beg to move. know how readily issues can be oversimplified. It is important that people can find a jargon-free explanation Lord Jenkin of Roding: My appearance at the table of the proposal which they can absorb without having here beside my noble friends Lord Bates and Lord to spend too long on it. My amendments propose that Cathcart does not suggest that we have changed places. a summary as well as the full prospectus should be on I hope noble Lords will forgive me, but it is simply the website and available for inspection. easier for me to hear sitting here than it has been when Amendment 21 is about the availability of the sitting behind. A number of us in the House suffer prospectus. It follows an amendment tabled by my from various levels of hearing impairment and I am honourable friend the Member for North Cornwall in certainly one of them. We will see how we get on. the Commons Committee. Like him, I am proposing I support the amendments, but I would like to add that a copy of the prospectus should be available at the one thing. I do not know whether other noble Lords principal offices of the billing authorities, if the levying have been following the proceedings of the Select authority is not also the billing authority. Committee under the chairmanship of the noble Lord, I thought that my honourable friend’s amendment Lord Renton of Mount Harry, which is looking at the produced one of the less persuasive responses from relations between this House and the public. One of the Government on this Bill. The Minister argued that the things that has stood out even from just the first putting a copy of the prospectus in what would essentially two or three evidence sessions—I spent part of the be a small number of town halls would create additional weekend looking through the most recent one—is that costs and that accessibility should be balanced with concentrating on written documents being available at those additional costs. He said: libraries and being sent within certain deadlines or “We need to show some restraint, therefore, in the requirements available for inspection within a certain number of that we place on authorities”. days is yesterday’s technology. Increasingly, one is There are a lot of requirements being placed on authorities hearing that it is the availability of electronic and I would have thought that copying a prospectus or communications, and in particular of the internet, running off another copy from the computer was not that is important. Huge numbers of people and businesses nearly as onerous as some of the things that they may in this country and elsewhere rely on the internet to be have to do. He said: aware of what is going on. If one is going to ask local “Making copies available in the principal offices of the lower-tier authorities putting together their prospectus for a authorities could lead to confusion for ratepayers”, BRS to make sure that the people who are going to be who might think that the upper-tier authority was affected by it have an early opportunity to see what is responsible. He also said that, there and perhaps an opportunity to comment, that is “good local authorities … would respect the views of key stakeholders by far the most effective method now. That is today’s and ensure that copies were available but does he believe that we in Whitehall should impose that throughout the country?”.—[Official and tomorrow’s technology. I am not quarrelling with Report, Commons Business Rate Supplements Bill Committee, the noble Baroness’s amendments, which are a useful 27/1/09; cols. 137-38.] addition to the Bill, but I hope that local authorities GC 511 Business Rate Supplements Bill[LORDS] Business Rate Supplements Bill GC 512

[LORD JENKIN OF RODING] remember that we are dealing with the business now recognise that if they are going to communicate community, which, by and large, is rushed off its feet, with the businesses in their area, it might make a great particularly at present. It does not have the luxury of deal of sense that they should do it primarily through government relations departments to pore through electronic means. these documents; it has to do it itself. Anything we can I believe that this is what we are going to have to do. do to make the document as succinct and clear as We await the report of the Select Committee, but possible, to make it electronically available, and to having seen some of the evidence I hope that it will make it possible for responses to be given in that same recognise that. Some noble Lords already have their format would surely be in keeping with the modern own blogs. That is one of the ways in which you reach era. a wider audience. It is not necessarily for a conversation— you can waste an awful lot of time doing that—but 3.45 pm simply to make information available. It seems to me that that is what the clause and the amendments are Lord Jenkin of Roding: I hope the noble Baroness about and I would be grateful if the Minister could will forgive me—we are in Committee—but there was comment on that. one more thing that I meant to say. Towards the end of last week we received from the department what we were referring to last Monday as the road map, containing Baroness Hamwee: I wonder whether it would help the draft proposals on ballot and administration the debate if I confirmed to the noble Lord that one of arrangements. I had understood the Minister’s covering my amendments relates to the requirement to place an note to say that we would get a hard copy. I have not electronic copy on the website. I am seeking a summary had that; it has not arrived. This morning I printed off of the document to go on the website as well as the full the attachment to her minute. I am afraid that on my document. printer upstairs, that took a good deal of time and a very large quantity of my scrap paper. We have had Lord Bates: I join my noble friend Lord Jenkin of this before with government departments. I will not go Roding in welcoming these sensible amendments, which through all the difficulties. Ministers are desperately reflect the world as we now have it. The key point here anxious that documents should reach noble Lords must be engaging with the local business community here in time and they do not. It was helpful that we and the people who might pay the business rate had the electronic copy, which enabled me to have it supplement. That is the purpose of Clause 5, we are with me this afternoon, but we ought to have had a told. These amendments simply expand that by providing hard copy. The noble Baroness may wish to make her a summary. That is a very good idea. A lot of these own investigations, but it seems that somewhere along documents that will come forward will, necessarily, be the line there has been a failure of communication. extraordinarily long to cover the legal and financial data as well as the detailed plans. Simply saying that consultation consists of posting a huge pdf file on a The Parliamentary Under-Secretary of State, government website somewhere so that somebody can Department for Communities and Local Government download all 360 or 400 pages of it and trawl through (Baroness Andrews): Let me start by apologising if it is clearly unacceptable, as well as being pretty bad noble Lords did not receive hard copies. I was very practice for the environment when it comes to printing glad that we were able to get it out in the time that we such a document. It ought to be there. suggested we would on the Wednesday by e-mail, but I In supporting the amendments I should like to will certainly look into that. press a little further to ask whether we can look at This has been an extremely helpful debate. It is very methods that have been employed in the private sector good to have all those ideas on the record for future to communicate with people and to get feedback. For reference, not least for local authorities, levying authorities example, if this was a private sector document I am and businesses as they come to draw up their prospectuses. sure there would be a page of frequently asked I completely understand and absolutely share the questions as well as a summary of the document. motivation behind the amendment. Much of what Essentially, people want to check what it means for the noble Baroness said appeals to me. Clearly, we them and how much they have to pay. That is pretty want to be absolutely sure that copies of the prospectus simple. We should make sure that that information is are going to be readily available for the people who are available. liable to pay the supplement. I take the point that the Another point on which the technology has been noble Lord, Lord Bates, made about how busy the available for a long time is the whole area of blogging. business community are. You can see on the BBC website and many commercial However, I have to endorse much of what my noble websites that this is a very good way not only of friend said in the other place, because it runs through allowing people to see what the document means for the Bill. We are trying not to over-prescribe. We are them, but of seeing what other people in the local area trying to signal to local authorities that they are free to have said about it. I would have thought that it would go further than the minimum standards that we are be the true mark of open government to move into laying down in the Bill. We are often berated for being allowing people to post responses on websites so that too top-heavy in relation to local authorities. This is it all becomes part of the public domain rather than one instance in which we are very conscious that local having to wait for the final document, which then authorities are going to have to do things their own again in hard copy summarises all the representations way. For example, we are leaving it to authorities to that have been made at great length. We also have to decide how best to conduct the consultation that they GC 513 Business Rate Supplements Bill[18 MAY 2009] Business Rate Supplements Bill GC 514 must carry out with those who are potentially liable I applaud the noble Lord, Lord Jenkin of Roding, for the supplement. Clearly, these projects are going to for being so ambitious as to think that we might differ in size and scope and it is going to depend on anticipate tomorrow’s technology. I am barely catching what existing networks there are and what technologies up with yesterday’s, but he is absolutely right. are commonly used and so on. The noble Baroness leaves me with a question, In the same vein, let me reassure the noble which I suppose is rhetorical: if we leave it to local Baroness that we are leaving it to authorities to decide authorities to decide how to deal with the prospectus, how to design their prospectus, but Schedule 1, for why do we need Clause 5(3)(a), for instance, which example, requires them to include cost-benefit says that the levying authority must place an electronic information. I am very happy to put on the record copy on its website? Simply requiring the authority to that there is nothing to stop any local authority publish this prospectus, on the basis of her argument, setting out an executive summary or a freestanding would be enough. However, I am not going to get any summary. It definitely must be in jargon-free further at this point. These may seem small matters, language. It is extremely important that people know but they could be fairly significant. I am obviously what they can expect from their contributions. grateful to the Minister for her reference to guidance. Levying authorities can choose to send a summary to At this stage I beg leave to withdraw the amendment. every business in their area. On Amendment 21, for example, hard copies of the prospectus must be made Amendment 19 withdrawn. available at the levying authority’s principal office. As the noble Lord, Lord Jenkin, rightly said, they have to be able to make the maximum use of the speediest Amendments 20 to 23 not moved. and most relevant technology these days. We are requiring levying authorities to make electronic Clause 5 agreed. copies of the prospectus available on the website. There is no reason on earth why they should not make Schedule 1 : Information to be included in a prospectus the summary available on the website in the same for a BRS. form. When we come to look at where this information is going to end up, again authorities are going to want Amendment 24 not moved. to make sure that its location is clearly signposted so that those with an interest can access it, but they can go further if they choose to make further copies Amendment 25 available in billing authority offices or local libraries Moved by Lord Jenkin of Roding or other resource centres. That is absolutely fine. We would welcome and encourage the maximum spread 25: Schedule 1, page 21, line 18, at end insert— of this sort of information for the local community “(d) the likely impact of the imposition of a BRS on those contributions towards funding public transport works and we definitely agree on the point about reasonable that are treated as allowable deductions. times and reasonable periods. In this Schedule— We actively encourage authorities that think this is “public transport works” means works undertaken to provide the best approach for their area and their project to services on which members of the public rely for getting them use all the vehicles that they have available to them, from place to place when not relying on facilities of their own; but I do believe that we should not put unnecessary “allowable deductions” means expense occurred in the course detail in Bill. We should not tell authorities how to do of carrying on a business under Schedule A or Schedule D things. I have stood here more often than I care to (Cases I and II) of the charge to tax under the Income and remember being asked, “Why does the Minister not Corporation Taxes Act 1988.” trust local authorities?”. I do trust local authorities to do the right thing in their area. It is proper that Lord Jenkin of Roding: I beg to move Amendment 25 minimum standards are put in place, but I also think standing in my name and that of my noble friend Lord that they have to decide what is best and what Brooke of Sutton Mandeville. I have been asked to communication will be most effective and most proffer his apologies to the Committee. He had expected persuasive. this amendment to be dealt with last Wednesday. He is In the light of this debate, it is important that we not able to be in his place today and I readily agreed to spend some time on the guidance and make sure that it add my name to the amendment and to move it. reflects the breadth and scope of what might be possible The amendment inserts a further requirement for so that we pick up some of these ideas and reflect the prospectus when a supplementary business rate is them in guidance. I hope that the noble Baroness will sought. The authority would have to assess the impact be satisfied with that. of the proposed supplementary rate on voluntary contributions that businesses may already be making Baroness Hamwee: I recognised that I was going to to support public transport projects. The amendment be caught by my own argument. In response to the had to be drafted in that form to put it within the rules points made by the noble Lord, Lord Bates, about of the House. frequently asked questions and blogs, I have written, The issue that I wish to raise briefly this afternoon “Nothing to preclude that”. I am aware that I might is more fundamental. Through the amendment I seek be arguing against myself, although it would be quite to explore how far the voluntary financial contributions nice to see whether we could be the first group of made by businesses to fund public infrastructure projects people to get the word “blog” into primary legislation. from which they benefit are tax-deductible. GC 515 Business Rate Supplements Bill[LORDS] Business Rate Supplements Bill GC 516

[LORD JENKIN OF RODING] to the Crossrail scheme will, without doubt, do so That is why the voluntary contributions concerned are in the context of much-improved cross-London defined in the second part of the amendment as those communications that the scheme will bring to their that are allowable against tax as business expenses business operations, and therefore because they are under the Income and Corporation Taxes Act 1988. benefiting from it. I am well aware that the whole question of whether Therefore, the case for deductibility appears entirely local authorities should have powers to raise additional legitimate. However, in view of the importance of the business rates is contentious. I read the Second Reading Crossrail scheme and the incentive which deductibility speech of my noble friend Lord Bates and I very much may provide to businesses which might be inclined to understood what he was saying, but I do not intend or contribute voluntarily, it really would be helpful if the need to take a position of that question this afternoon Minister could indicate the position in general terms when dealing with this rather specific amendment. either today, or perhaps—she may prefer to consult—in The motivation behind the amendment is prompted correspondence. Of course, I will understand if she by the funding of the Crossrail project. I think it is fair wishes to write with a substantive reply, but I am sure to say that there is general agreement that an additional that she understands that tax deductibility may be business contribution is necessary to support Crossrail. quite important to a business that is contemplating On Second Reading of the Crossrail Bill I asked the making a voluntary contribution. I should have thought Minister what would happen if the voluntary contributions that the Government would wish to support anything from business were for some reason not forthcoming. which could help this absolutely crucial infrastructure I have not checked it out, but my recollection is that forward. I beg to move. we would have to deal with that if it happened. Of course, the remedy, following the reports to which 4pm much reference has been made, was that there should Baroness Andrews: I am grateful to the noble Lord be new legislation, which we now have before us, to for how he introduced the amendment and the provide the contribution from the private sector to background, which is useful to have on the record. I help to finance that hugely important project. am sure that the noble Lord, Lord Brooke of Sutton The City of London Corporation agreed in October Mandeville, will be pleased that we have had a full 2007 to contribute £200 million out of its own coffers. explanation in that form. I can be quite swift in It also agreed to seek voluntary contributions—that is answering this. It clearly raises an important point as why this issue arises—up to a total of £150 million to whether voluntary contributions to BRS will be from businesses that will benefit from Crossrail. Of permitted deductions from corporation tax, as is the course, as we all recognise, raising voluntary contributions case with rates generally. at the present time must be particularly challenging, I can confirm, as the noble Lord has asked, that but any business considering making them is likely to BRS builds on the current business rates system. As be more favourably inclined to do so if it can be sure such, any BRS payment a local business is required to that such contributions will be tax-deductible as a make towards the cost of the project will be a permitted business expense. deduction from corporation tax. The position of business rate payments is quite The noble Lord has raised the other important clear. The Business Income Manual, produced by Her matter. It is complex and I will have to write to him. I Majesty’s Revenue and Customs for its staff and published will surely do so as swiftly and as comprehensively as I for the information of taxpayers in accordance with can. In the mean time, however, I hope that the noble the code of practice, provides: Lord having put that on the record as he has will “Business rates are payable in respect of non-domestic premises. enable business partners, particularly those in Crossrail, If part of the premises is used for domestic and part for non-domestic to see that we are seriously debating the issue. purposes, the charge is limited to the non-domestic part. Business rates are therefore usually an allowable deduction in computing Lord Jenkin of Roding: Before I withdraw the profits assessable under Schedule D Cases I, II or under Schedule A.”. amendment, those who asked me to table it have had If business rates are deductible, it follows that the some discussions with Her Majesty’s Revenue and supplementary business rates envisaged by this Bill Customs which they did not find particularly positive. will also be deductible. Perhaps the Minister will confirm It is difficult to see why that should be so. I hope that that. the noble Baroness, to whom I am most grateful for undertaking to write, can put the case as firmly as she As a matter of policy, if supplementary rates levied can. It is clearly in the interests of all of us who want to support public projects are deductible, it would to see this great scheme come to fruition. This project seem right in principle that voluntary contributions has been in my consciousness for well over 20 years, made by businesses for precisely the same purposes and one now sees the prospect of it starting; indeed, should receive precisely the same treatment. This seems the Prime Minister dug the first hole, or whatever it to be supported by the law if businesses make was, for one of the stations the other day. However, contributions because they would benefit from the there is no question but that tax deductibility of voluntary improvements, which presumably will usually be the contributions could make a considerable impact upon reason prompting them to contribute. It is a long time the willingness of business to put them up. since I was practising at the tax bar, but my recollection is very clear. A business expense is allowable if it is Baroness Hamwee: Before the noble Lord withdraws incurred wholly and exclusively for the purposes of his amendment, as I assume he is about to, can the the business. Those who make voluntary contributions Minister confirm that she can write to us before Report? GC 517 Business Rate Supplements Bill[18 MAY 2009] Business Rate Supplements Bill GC 518

The noble Lord has raised an extraordinarily important partnerships between the public and private sector point which will affect our attitude to the whole Bill. If and on the private sector having a real seat at the table we do not have definitive response before Report, we when decisions were made. will be really rather stuck. The amendment simply makes that point and seeks to put it in the Bill so that it cannot be avoided. It gives Baroness Andrews: I completely understand what a structured role for business to oversee the use of the noble Baroness is saying. I shall do my very best. funds and the delivery of projects; it draws on its expertise; and, as business will have made a contribution to a project, the amendment acknowledges its right to Lord Jenkin of Roding: With that, I beg leave to sit at the table to ensure that the promised benefits are withdraw the amendment. delivered. I beg to move. Amendment 25 withdrawn. Baroness Hamwee: I support the noble Lord in his thinking behind the amendment. I am not quite sure Amendments 26 to 32 not moved. about being involved in the oversight but the principle is quite right; businesses need not only to be kept Amendment 33 informed but there should be a mechanism allowing their views to be made known. In my mind I equate Moved by Lord Bates business rate payers with shareholders in a company; 33: Schedule 1, page 22, line 16, at end insert— they are not necessarily on the board although they “11A A description of the arrangements by which persons may have a representative on the board. The second paying BRS shall— subsection of his amendment could lead to quite (a) be kept informed of what monies have been raised in complex arrangements, but his points are quite right. pursuance of the BRS and how they have been expended, and Lord Moynihan: Picking up briefly on my noble (b) be represented upon the governing body of any friend’s comments perhaps I may ask the Minister organisation set up for the purposes of delivering the objectives of the BRS, or, if such an organisation is not whether in giving her reply—which I am sure will be as to be set up, how such persons are to be involved in the comprehensive as ever—she will focus on the two oversight of the delivery of such objectives.” critical issues of the amendment: first, what she considers to be the appropriate apparatus for the strength of that voice; and, secondly, the continuity, so that it is Lord Bates: The amendment is fairly straightforward not a one off but the continuity principle is respected. and I will not take a great deal of time in introducing it. I shall be grateful, however, to hear the Minister’s response. Baroness Andrews: I shall try to do that because these are important points. They go to the heart of the The amendment seeks to follow the theme of ensuring commitment that the partnership makes to ensure that that businesses are kept involved in and apprised of all the partners are fully informed in their ownership how a scheme is going. Once they have committed and of what is being done. The amendment is in two parts contributed to a scheme, they deserve to be kept and would require levying authorities to expressly set informed to ensure that the project proceeds according out in their perspective how they will involve stakeholders to plan. This fits in with the point made during in the delivery of BRS objectives. Second Reading about the contribution that businesses can make to major projects which extends way beyond If a levying authority intends to set up an organisation their financial contribution. The knowledge and expertise to deliver the BRS-funded project, the amendment involved in delivering projects on time and to budget is proposes that the prospectus should explain how BRS higher in the private sector than in the public sector, ratepayers are to be represented on the governing particularly under this Government. I do not want to body. Where no such organisation is proposed, the impose any further disappointment or sadness—as prospectus should describe how those who would be has already been said, the Prime Minister is digging liable for the BRS would be involved in overseeing the holes—but that has been observed. delivery of the project. The key point is what happens once the money has We have talked quite a lot in the Committee about been committed and approval has been given; how are the notion of the Bill being a flexible framework with businesses kept involved? The proposal in the amendment safeguards within which local authorities can tailor follows the recommendation made in the Lyons inquiry what they do to suit their community and partnership that businesses should have a strong voice in the final and how they should operate in order to levy a BRS decision on the supplement and that that voice should for their specific economic development project. The be continuous throughout. By what mechanism can Bill already requires levying authorities to set out in this achieved? In a business improvement district, for their prospectus how they will provide business with example, there are boards of directors, governance information about progress on the BRS-funded project. bodies, governing bodies and special purpose vehicles That is a very important point because this will be a can be established, and representatives of the business dynamic project that may take many years, and it is community can be on them. I have alluded in previous vital that business is kept continuously up to date with debates to the City Challenge schemes which were what is being delivered under the commitments. I introduced by the Conservative Government in the am sure that that is partly what Lyons meant by a 1980s and 1990s. They were based very much on “strong voice”. That would have to be clear in the GC 519 Business Rate Supplements Bill[LORDS] Business Rate Supplements Bill GC 520

[BARONESS ANDREWS] One of the problems that we may be wrestling with prospectus and one would have to ensure that that was is that, because the partnerships will be different in what was delivered in terms of the communication each area—for example, there may be third-sector strategy. partners in some areas, or levying authorities or different The second part of the amendment relates to sorts of private and public partnerships—we may not governance. As the noble Baroness, Lady Hamwee, want to identify just one partner in the way that the said, issues are raised here concerning the nature of noble Lord suggested, bearing in mind that we shall the governance choice, and it involves complexity. have to try to represent and encourage a range of Every area is different, with different needs and levels partnerships. of partnership working, and different resources at their disposal. Therefore, flexibility and local autonomy Lord Bates: We are getting a little bit closer—I are very important in order to tailor governance thank the Minister for that—but we are not quite procedures for projects. there, because all the partners are not necessarily Given that the projects may be using BRS to a equal. The amendment stipulates that representatives— greater or lesser extent, I would be afraid that, if we obviously, not all—of those people who are contributing were to lay down anything more than a broad set of to the project be present. The noble Baroness, Lady principles here, we might end up with a governance Hamwee, rightly said that it may be analogous with body that was not fit for purpose, or it might be fit for shareholder/stakeholder involvement, where there may one type of purpose but not for another. We need to be representatives on the board to look after the respect potential diversity and ensure that the governance shareholders’ interests, and that it might be entirely arrangements are as good as they need to be and right appropriate that, on projects of this nature, where we for each area. For example, we might find that a are borrowing a lot of that language in talking about project is managed by a few key local businesses or by ballots and prospectuses, we see that through and say, an outside contractor, and both will require a different “Yes, there ought certainly to be some business set of governance methods. They may choose to draw representation on the board, not simply for tokenism on the expertise and experience of businesses that may but to monitor that the promised benefits are delivered”. not have to pay the supplement because, for example, they fall below the £50,000 rateable value threshold. Baroness Andrews: Yes, I take the noble Lord’s We must not emphasise one aspect of governance point. Perhaps he will let me think about what he said. more than another, although of course there must be We have some scope in guidance, again, to ensure that. clear governance procedures for every project. Although It is probably the judgment that we would come to. I respect the intention behind the amendment, we Will he leave that with me? Perhaps we can talk about should not bind the hands of local authorities and it between now and Report. My main point was that business regarding how they wish to manage their we should not tie the various projects in the various project. I hope that having that on the record will help local areas into a formula for governance which will be the noble Lord. neither adequate nor appropriate in some cases. However, I take the noble Lord’s point about business, because, Lord Bates: Not exactly. Normally the Minister is after all, this is a Business Rate Supplements Bill and extremely helpful, but not on that point. I shall respond business is a key partner in all of this. more generally on the amendment but, specifically, could circumstances be conceived where a business rate supplement levied in a given area was the subject Lord Bates: I am reassured by the Minister saying of a ballot and therefore the subject of an affirmative that she will take the matter away and look at it, in resolution in that ballot? As a result, voluntary particular the points of my noble friend Lord Moynihan, contributions and business rate supplements would be which were succinct and went to the heart of the issue. levied in that area in order for the project to go ahead He said that appropriate opportunity should be given and there might be no business involvement. Is that a to the business community. conceivable possibility? Lord Moynihan: It is extremely helpful that the Baroness Andrews: No, I should not have thought Minister will go away and think about my noble that it was a conceivable possibility because the whole friend’s important suggestion; namely, to see whether point is that the partnership with business makes this it is possible to place in the Bill not the details—which different from the partnerships that exist at the moment. as the Minister stated, will differ from area to area—but Therefore, there must be a business element. the principle that business will have a strong voice and that there will be continuity of representation. That 4.15 pm would be enshrined in the Bill and taken into account Lord Bates: Therefore, if a circumstance where that in the context of each case, the detail of which neither might be the case is not conceivable, would it not be we need nor would it be appropriate to delve into appropriate to have it stated somewhere in the Bill or because that flexibility is needed. I hope, however, that its schedules? the principle will be accepted.

Baroness Andrews: I am not certain that I am following Lord Bates: I am grateful to my noble friend for the noble Lord’s argument. I am not quite sure what making that point. We understand that there needs to he would want to see in the Bill which is not expressed be flexibility in these matters to fit local circumstances, already in terms of that partnership. which will take many different forms. However, establishing GC 521 Business Rate Supplements Bill[18 MAY 2009] Business Rate Supplements Bill GC 522 the basic principle of engaging business and giving it as a partnership working together for something that its voice will, if nothing else, perhaps ease the way for is recognised to be of mutual benefit and of benefit to the contributions which the business community is the local area. about to make. If they are making serious contributions We have to recognise that to achieve this is an issue and they have a seat at the table to ensure that the of trust. However good the representatives of the investment goes according to plan, that will surely be business community may be, there will always be some helpful. It might even be more helpful should there be businesses for financial or other reasons that are less additional voluntary contributions raised towards a happy. Amendments 38, 39 and 40 address Clause 6, particular project from the private sector. Again, seeing which is about consultation. Amendment 38 would that there is good representation from the business delete the requirement for the levying authority simply community would aid that process. to think whether it was appropriate to consult, but would actually require it to do so. That is a necessary Baroness Andrews: All that I would add is that I reassurance to a business community. It will be consulted could not conceive of a governance arrangement for not just because the levying authority wants to but one of these projects that did not have the business because the authority must consult. Should levying partners on it as they are so critical to it. If it helps to authorities be reluctant to consult, for whatever reason, have that on the record, I have just put it there. the knowledge that they are required to do so would encourage them in proper thinking from the start. If there is to be consultation the results clearly should be Lord Bates: The Minister has been clear in that published, which is the purpose of Amendment 39. regard. It is a commitment for which we are very Similarly, Amendment 40 requires a levying authority grateful, but it would give a great deal more comfort, to publish a revised version of its initial prospectus notwithstanding the high standing of the Minster, if regardless, not simply whether it thinks it might want that could be expressed somewhere in the Bill or in its to in the light of the consultation. attached schedules. With those assurances I am happy Amendment 46A moves on to Clause 10 and again to seek leave to withdraw the amendment. would require a levying authority to specify charges— previous, current and future—as suggested in the Amendment 33 withdrawn. amendment. Amendment 63 relates to Clause 29 and requires consultation before regulations are made. Amendments 34 to 37 not moved. Amendment 66 similarly inserts regulations about ballots. The amendments, particularly the first three, Schedule 1 agreed. would go a considerable way towards the reassurance that we have been talking about for quite a part of this afternoon in making clear to levying authorities Clause 6 : Consultation what is expected of them and, similarly, giving some reassurance to the business community of what it may expect—that the consultation will take place not Amendment 38 because a levying authority thinks it may be Moved by Lord Tope appropriate, but because it is appropriate in all circumstances. I beg to move. 38: Clause 6, page 4, line 21, leave out “think whether it would be appropriate to” Lord Bates: We are quite comfortable with the Lord Tope: I shall also speak to Amendments 39, amendments. The only concern that we have about 40, 46A, 63 and 66. them is the extent to which they add to the bureaucratic and time delays that may be involved. Again, this links At Second Reading, I expressed my concern that back to a debate that we had on an earlier amendment; there seemed to be, perhaps understandably, some that the greater use of technology might enable this polarisation between the business community on the process to be conducted in a speedier way. Certainly, one hand fearing that the evil local authorities would we support the general thrust of the amendment. rush to impose unwanted and unnecessary taxes on them, and on the other, local authorities fearing that businesses would automatically be against any tax Earl Cathcart: I was not going to speak this simply because it was a tax, however worthwhile the afternoon; in fact I was slightly apprehensive about project might seem. I believe strongly that it will not be having to speak this afternoon. The last time we were like that. Indeed, any successful project for BRS could in Grand Committee, the helicopters were going not be like that. The process will work, I expect, in overhead the whole time, and it was extremely much the same way as a successful BID works in its difficult to hear. It must have been very difficult for preparation—in partnership. The representatives of Hansard to have got down all our words accurately. If the business community will work with the levying the Committee remembers, last time in Grand authority in partnership to conceive the project and Committee, I was talking about the dualling of the work out the prospectus, and by the time that is done I A11, and I said that that would be of benefit to those would expect them to campaign together for a “yes” businesses around the A11. I went on to say that it vote if there is a ballot, or for a successful outcome to would probably be of little benefit of King’s Lynn any consultation. Idealist as I am, I do not necessarily and then I said—I will have to say this clearly—“and see this as one side against the other. I see it very much market towns around King’s Lynn like Downham GC 523 Business Rate Supplements Bill[LORDS] Business Rate Supplements Bill GC 524

[EARL CATHCART] I was slightly puzzled by the argument that the Market, Swaffham”, and I went on to list a whole raft noble Lord, Lord Tope, put forward simply because he of towns. Imagine, to my horror, when I read Hansard rightly talked about the nature of the trust implicit in the next day, and it said: a project such as a BRS. It will involve a significant “I mentioned King’s Lynn. There are lots of down-market amount of commitment and there will have to be a King’s Lynns, such as Swaffham, Dereham, Fakenham”.—[Official complete understanding of what everyone is signing Report, 11/5/09; col. GC328.] up for. Therefore, the quality of the consultation between It listed a whole raft of towns. It was not my intention business and the levying authority and the frankness to say that at all. They say when you are in a hole, stop that is involved will be important. However, the digging; but it is worth my while getting up this amendments are about requiring authorities to do afternoon to dig a little bit further to try to put the that, which seems to do a little beyond the notion of record straight, because everyone will know that I am trust. a strong supporter of all things Norfolk. Amendments 38 to 40 and 46A all relate to the I will say a few things about the amendment. It consultation that authorities will be required to undertake imposes a duty on the levying authority to consult on before levying or varying a BRS. I could not be more the proposal in an initial prospectus and to publish the supportive of the general principle that the consultation results of that consultation. However, the consultation has not only to be serious in purpose but to lead to a can be ignored; we have been there before in earlier reflection in the prospectus of what has been consulted debates. Providing the business rate supplement is on and agreed. That is at the heart of what will make a below 33 per cent of the total cost of the production project a success. of the project, the levying authority can press on Amendment 38 requires authorities to consult regardless. This ties in with the up-market King’s businesses that they think will become liable for the Lynn point that I made earlier. Of course, it can supplement at some point in the future. I certainly benefit all those businesses around and along the A11, agree that local businesses should have confidence but it will have no benefit to those other areas in the that, if they are to be affected by a BRS, they will be north-west of Norfolk. They can be consulted on, but consulted. However, I have to deal with the amendment the levying authority can completely ignore that in its own terms, and requiring this to happen as a consultation. matter of course could lead to some very unwelcome This ties in with something else that I tried to bring uncertainty. up during our previous day in Grand Committee. I The Bill currently provides that levying authorities suggested that it would be better if a local authority must consult all those who will be liable for the asked the business community what infrastructure supplement, as well as the lower-tier authorities in the projects it would like most, and then one might be able area and other persons whom it considers relevant. to get a consensus. The consultation process would Clause 6(5) also makes it clear that, in considering probably be much more favourable if it were done by which other persons should be consulted, the authority asking the business community what projects it wanted, must consider whether to consult those who might rather than the infrastructure levy saying, “This is the become liable for the supplement at some point in the project that we are going to do. What do you think future and pay particular attention to those persons. about it?”. That, in itself, is a mark of the integrity of the process. Because these projects will, in many cases, span a 4.30 pm number of years, the possibility that other businesses might be swept up in the threshold should also clearly Baroness Andrews: I am very glad that the noble be taken account of. The problem is that there is an Earl had the opportunity to correct Hansard. I cannot inherent uncertainty in predicting changes. It is obvious imagine what his postbag from Swaffham and other that it will not always be possible for levying authorities parts of rural Norfolk has been like. to identify who might be available. Earl Cathcart: I had to go back last weekend under the cover of darkness. I crept in and kept a very low Lord Moynihan: I am grateful to the Minister, but I profile. I am hoping that, if Hansard gets it right understood the intervention of the noble Lord, Lord today, I shall be able to go back to Norfolk in daylight Tope, to be different to that. I thought that he was hours. arguing that rather than adding greater uncertainty, the introduction of the amendment would reduce uncertainty. At the moment there is a double level of Baroness Andrews: We have all had experiences of uncertainty in the Bill. The first uncertainty arises Hansard and of problems that we have created. I because the levying authority has the freedom to remember when I was a health Whip confidently “think” whether it would be appropriate to consult. promising to spend most of the NHS budget on So, before it does anything else, it can sit down and aromatherapy. I read the report of it in Hansard the determine the outcome to that process. That could be following day and had to make some urgent corrections. a very uncertain process and, as it is written today, The noble Earl’s point about the validity and integrity would be an uncertain process. Having then decided of the consultation process and the extent to which it who it thought would be appropriate, the levying is a serious exercise is important. Many is the time that authority then has a second opportunity where uncertainty we have debated the nature of consultation in the field could exist, because it is asked to consider who it of housing and local government, and this is another thinks might become liable to pay a chargeable amount; opportunity to do so. a second issue. GC 525 Business Rate Supplements Bill[18 MAY 2009] Business Rate Supplements Bill GC 526

If the Minister is seeking to remove some of this Can the Minister give an example of when it would uncertainty, she would do well to support the admirable be inappropriate? If it was a compelling argument, it amendment tabled by the noble Lord, Lord Tope, could be a reason to keep the wording in the Bill as it particularly since both clauses which provide for is. She has given the case when it would be appropriate, such flexibility relate back to the consultation on the so in that context the phrase could be deleted from the prospectus, where already there is further opportunity Bill altogether. I apologise to the Minister, but it for consideration as to whether the authority thinks would be helpful to understand the purpose of the others should be consulted. Clearly that is not the case words, as it is in subsection (5) for those who are going to be “think whether it would be appropriate”, charged but, nevertheless, in the context of Clause 6 it in Clause 6(5), and whether they assist the legislation. would add yet another level of uncertainty. This could helpfully be clarified by acceptance of the amendment of the noble Lord, Lord Tope. Baroness Andrews: I gave two examples of what I thought would be the parameters of potential uncertainty. Baroness Andrews: I am grateful for the intervention. I am not sure whether I can give a better example. We will have to ask the noble Lord, Lord Tope, to Clearly, I shall have to write to noble Lords on this explain his amendment in due course. I shall plough point to explain the significance of our language. As on with my interpretation and we can then ask him to the Bill is drafted, levying authorities can use their adjudicate. discretion to conduct a consultation that is proper and proportionate in relation to their plans. The amendment would make it more difficult for levying authorities to Lord Tope: The noble Lord, Lord Moynihan, explained use their discretion. my amendment very well indeed and far better than I would do. If the Minister ploughs on, as she puts it, I While I am certain that we want as full a consultation may become more clear what further explanation is as possible and an anticipatory consultation, I do not needed. want to bind the levying authority in the way that the amendment would do. I do not know whether the noble Lord wants to intervene now, or whether I Baroness Andrews: Clearly the certainty that we are should go on to the other amendments. looking for may be contained in the word “require”. My argument is that there is an uncertainty about trying to predict what is likely to happen in the future Lord Tope: I do not think that we are getting for businesses that might become liable because we anywhere by pressing this further. I accept the Minister’s cannot predict revaluation and so on. It is because of offer to write to us; we are just not making ourselves the difficulty in predicting who might become liable very clear. I am extremely grateful to the noble Lord, that we want to leave it to the discretion of the levying Lord Moynihan, who clearly understands my authority to make the right judgment for its area. That intentions—possibly even better than I do. Even deleting is why the Bill is drafted in the way that it is. the words proposed by Amendment 38, subsection (5) For example, if there were a number of businesses still allows the levying authority, in an area who occupy premises with a rateable value “to consult persons who the authority thinks might become of £49,500, they at first would not be liable for a BRS; liable”. but if the levying authority intends to levy its BRS for Those words imply a discretion, or judgment. I do not 15 years, it is quite likely that those businesses will understand the point that the Minister is making, and become liable for BRS in its lifetime because there equally she does not understand me, but it is not would be at least two revaluations during that lifetime. appropriate to press the amendment. We will have the Therefore we would expect the levying authority to opportunity to read the Minister’s letter and perhaps use its discretion and consult those businesses which better understand each other, and then insert the are on the margin from the outset. But if the project is amendment, which I am sure will be readily accepted going to take a longer time, for example, more than when we do understand each other as we get to the 15 years, businesses occupying premises with a significantly next stage. lower rateable value now might in due course see their rateable value approaching the £50,000 threshold. But Baroness Andrews: I am very grateful to the noble they might not—it is a hard judgement to make—and Lord for his gracious offer. We are discussing a complex this is why Clause 6(5) states that, in considering concept and are dealing with different timescales for which other persons should be consulted, the authority different BRSs, within which periods there may be must consider whether to consult those who might different opportunities for re-evaluation, and so on. It become liable. We have introduced that degree of is difficult to be categorical, apart from the general flexibility and discretion into the Bill. principle that I am trying to explain, but clearly failing Lord Moynihan: The Minister gave a very good to do so. I would appreciate the opportunity to write example that would be amply covered by the amendment to noble Lords to try to set out some models of how I of the noble Lord, Lord Tope. A better example with think this will operate. which she might be able to assist the Committee would I turn to Amendments 39 and 40, with which I hope be to show how it could be inappropriate to consult I will have more success. They would require levying those who a levying authority might believe at some authorities to publish the results of the consultation stage in the future could pay a chargeable amount and on the initial prospectus. Amendment 40 would require therefore should be consulted. levying authorities to publish a revised initial prospectus GC 527 Business Rate Supplements Bill[LORDS] Business Rate Supplements Bill GC 528

[BARONESS ANDREWS] the consultation. Therefore, since local authorities will following the consultation but before the publication be expected—and expect—to do that, the amendment of the final prospectus. I completely understand that a is unnecessary. consultation process needs to be transparent, it must Amendment 46A relates to the consultation demonstrate that the concerns and comments regarding arrangements in place for when a levying authority the BRS will be taken seriously and that that will be wants to vary a BRS in a way that is not highlighted reflected in the final plans for the project. I agree. That even as a possibility in the prospectus, which would be is why, following the consultation, levying authorities a major and unprecedented change. Clause 10(2) and (3) will be required to publish a final prospectus incorporating requires that, in such cases, the levying authority sets the comments and views expressed, reflecting how the out its proposals in a variation proposal document. supplement will work following the comments made This document will then be used as the basis for a by local businesses and others. consultation on the proposed change, mirroring the That final prospectus will provide local business prospectus and consultation arrangements for a new BRS. with clear information on the details of the supplement Amendment 46A would require levying authorities to be implemented, and there should be absolutely no to set out in the variation proposal document what surprises for business at that stage. It should mean that changes they wanted to make to the BRS chargeable there is certainty about the level of the supplement, its amount. That is a fair enough point, but it is unnecessary duration and so on. There will be clarity on the for two reasons. First, a variation to a BRS will not expected costs and benefit of the project that will take always affect the chargeable amount; for example, an on board comments made during the consultation, authority might want to extend the duration of the and we will be clear about how the supplement might supplement without changing the chargeable amount. have changed as a result of the consultation. Secondly, and more importantly, the Bill already makes provision which the noble Lord is seeking. Where the 4.45 pm chargeable amount is to change, Clause 10(2)(a) requires It might reasonably be anticipated that if local that this is set out in the variation proposal document. businesses have been involved in the development of Therefore, the Bill makes it clear that if the levying the project the consultation would not raise any significant authority wants to alter the chargeable amount in a issues or objections. It would be the final stage in an way that was not set out as a possibility in the prospectus, ongoing process and, therefore, modifications would details of the change will need to be set out in the be relatively minor. proposed variation document and therefore consulted on. However, I understand that things do not always go Amendments 63 and 66 relate to the consultation according to plan. Clause 6(6), therefore, is designed and scrutiny arrangements for the regulations that the to make it clear that there is flexibility in the process. If Government will in due course make, assuming that the proposals need substantial revision as a result of the Bill is successfully passed. Amendment 63 would the consultation, Clause 6(6) requires the levying authority require a consultation on a number of regulations to to publish a revised initial prospectus if the authority be made. I draw noble Lords’ attention to the consultation thinks it necessary or appropriate to do so. This would paper that the Government published on Wednesday allow the levying authority to seek comments on the 13 May—I should say in response to an earlier point revised proposal, including funding, before finalising that the hard copies were made available on Thursday, the details of the project and the supplement. and I am sorry if noble Lords did not lay their hands However, that will not always be necessary. To on them. The paper sets out the detailed policy proposals require a revised initial prospectus in all cases goes on how levying authorities will be expected to administer further than what will be needed in many cases and BRS, such as the accounting and ballot arrangements. perhaps not far enough in a few rare cases. We should It also sets out how the Government envisage that allow local authorities the flexibility to decide what is billing authorities might recoup the costs of collection. right for their area and for their proposal. To require a The consultation will be open until 19 August and will revised initial prospectus in all cases goes further than provide an opportunity for local authorities and businesses the usual consultation process and may not always to comment on the detailed running arrangements for be necessary. BRS prior to the laying of the regulations. That is a As a revised version, rather than minor variations, full three-month consultation process that will be formative of the initial prospectus will not always be necessary, in the role of business in working through those it would be inappropriate to make this a mandatory regulations. aspect of the BRS process in the Bill. As I tried to Amendment 66 would require the regulations on highlight when we were discussing Clause 5, the BRS the detailed ballot arrangements to be subject to the sets a minimum standard in terms of the consultation affirmative procedure, and the same for the regulations process. Other steps may well be appropriate governing the appeals process for the apportionment depending on the specific circumstances of the of rateable value of partially empty properties. project—in this case, substantial revisions to the The Bill as drafted is consistent with provisions prospectus following the consultation. Again, I feel already place. I have spoken before about how we have that that should be left to local discretion and tried to mirror the BID arrangements wherever possible appropriate action. for BRS, because people are familiar with them. The I turn to Amendment 39. In carrying out the regulations governing the ballot process for BIDs are consultation, levying authorities will be expected to subject to the negative resolution procedure. The follow best practice, including publishing the results of regulations on the apportionment of rateable value for GC 529 Business Rate Supplements Bill[18 MAY 2009] Business Rate Supplements Bill GC 530 partially empty properties for business rates in general—as Clause 7 : Holding of ballot opposed to BRS—are also subject to the negative resolution procedure. As BRS builds on the national business rates system, it makes sense that the regulations Amendment 41 should be subject to the same procedure. Moved by Baroness Valentine In terms of the content of the regulations on BRS, 41: Clause 7, page 4, line 32, at beginning insert “Subject to we have made our intention clear; the BRS will be section 27(1A),” consistent with the processes already in place for national business rates and BIDs, so there should not be any surprises. I am conscious that what we have Baroness Valentine: As I shall eventually withdraw been discussing is rather technical and detailed, and I Amendment 41, I shall speak to the substantive am happy to meet noble Lords to talk about that amendment in this group, Amendment 62. First, I process between now and Report, if that would be declare an interest as chief executive of London helpful. First, a non-profit-making business membership organisation. There has been near unanimity across the House, Lord Tope: As always, I am grateful to the Minister and certainly from the Front Benches, on the importance for her full and detailed reply. She is right that we will of ensuring that the Bill provides funding to deliver need to read and think about it and we will probably Crossrail. There is a similar consensus that, whatever discuss it. We had some considerable exchanges on the merits of ballots for other projects, it is not needed Amendment 38, and we concluded that we would in the case of Crossrail. As the noble Lord, Lord receive a letter and consider it further in the light of Bates, put it succinctly, and I believe accurately, during that. the first day in Committee: I did not understand the reply on Amendment 39. “We are at one with the case for the Greater London Authority I think it was to the effect that local authorities are having the capabilities laid out in the Bill to raise funds … as its expected to publish the results of the consultation; contribution towards Crossrail, to ensure that that major infrastructure therefore an amendment requiring them to publish the project goes ahead, which we support fully. That has had a democratic test at the ballot box, and the people of London have results of the consultation is not necessary. I do not expressed a view that is supportive of Crossrail.—[Official Report, follow that argument at all. It seems perverse. In my 11/5/09; col. GC 306.] quite lengthy experience of consultation, including Yet there seems to be some confusion about whether with my own authority, the one area where we most the Bill as currently drafted would allow the mayor to often fall down is not responding to the consultees proceed with Crossrail, despite his success at the ballot about the results and the outcome of the consultation. box, without a further vote. There is similar uncertainty So while good intention and good practice would over what government regulations might provide this always be to publish the revisions, that does not always clarification and whether any such clarification would happen in practice, whether by commission or omission. withstand judicial review. I do not understand that. Unless I misunderstood the Minister, which is quite possible because the infamous My amendment seeks to provide absolute clarity in helicopters were back again, saying it is not necessary the Bill that there is no requirement to hold a ballot in because it is expected is rather illogical. We will wait to relation to a BRS levied by the mayor for the purposes read the debate and consider the rest of the amendments of raising money for a project where the project has in that context. begun before the Bill becomes law and when the BRS is levied on or before 1 April 2011. I want to put on record something about the consultation document. I have not raised this before I hope that the Minister will indicate the Government’s and I had not intended to raise it, but since the support for this simple but effective measure to give Minister has two or three times today referred to it certainty to the Mayor of London’s power to meet his being available on Wednesday, I shall raise it. In fact, mandate and the Government’s commitment to the it was emailed to me—I can speak for no one else—at funding and delivery of Crossrail. I beg to move. 4.40 pm on Thursday afternoon. I have not yet received a hard copy. I have printed it off, which is Lord Bates: I support these amendments, to which I fine. I am not complaining about that. It may well be have had the honour of putting my name. I very much that the hard copy got to the House of Lords Library support and echo the sentiments expressed and just by 4.40 pm on Thursday, but I suggest that not many want to make two points in addition to those that have of us were here to rush to the Library to collect it for already been made clearly and effectively by the noble our weekend reading. I put on record that it was Baroness, Lady Valentine. 4.40 pm on Thursday afternoon, and the covering There is a strong sense of commitment from the letter that came with it is dated Thursday; so let us be business community to the whole Crossrail endeavour, a bit clearer about that. I beg leave to withdraw the and there is no doubt that it will bring substantial amendment. benefits to that community across London. There have Amendment 38 withdrawn. already been substantial delays. Therefore, if there is any ambiguity in the Bill which could be open to legal Amendments 39 and 40 not moved. challenge, it is far better that it is dealt with in the weeks surrounding the Committee and Report stages of the Bill rather than be played out at length in Clause 6 agreed. the courts. GC 531 Business Rate Supplements Bill[LORDS] Business Rate Supplements Bill GC 532

[LORD BATES] I have listened to the repeated calls in your Lordships’ It is clear that Crossrail has been studied and scrutinised House and during the passage of the Bill in another by the Department for Transport and the Treasury for place for an exemption for Crossrail. I certainly agree many years. My noble friend Lord Jenkin of Roding with the argument that it brings major benefits across referred to it being in his consciousness for 20 years, the capital, commands wide support, and is already and I think that it has been actively considered over a underpinned by an Act of Parliament. Therefore, with long period. Crossrail was included in the Government’s the agreement of the Committee, I would like to 2005 election manifesto, and it has been scrutinised by accept the noble Baroness’s Amendment 62. She has Parliament on two occasions—through the Crossrail already anticipated me asking her to withdraw her Act 2008 and the Finance Act 2008. Crossrail is huge Amendment 41, which is unnecessary to the correct in scale—indeed, it will qualify as a nationally significant functioning of Amendment 62, which we support. infrastructure project under the Planning Act 2008—and I hope that that will be welcomed by the Committee. it will deliver benefits that will accrue way beyond London. I think that those are compelling reasons for Noble Lords: Hear! Hear! accepting the modest measures proposed in the amendment. The one argument that the Minister could put Baroness Valentine: I thank the Minister very much forward, and on which I take this opportunity to indeed. I beg leave to withdraw Amendment 41. express a view, is that other business rate supplement schemes might be caught by the provision of the 2011 Amendment 41 withdrawn. start date, although I do not think that that will be the case. In the survey that we discussed in debate on an Amendment 42 not moved. earlier amendment, it was pointed that, of the 96 chief economic development officers consulted, none had Amendment 43 had been withdrawn from the Marshalled any immediate plans, and I think that by the time all List. the consultation has taken place, we will be considerably beyond 2011. Clause 7 agreed. This initiative is clearly needed and welcomed because it gives rise to a major infrastructure project at a time when the City of London most desperately needs it. It Clause8:Approvalbyballot was the subject of a ballot—namely, in the mayoral elections, when Mayor Johnson made it very clear that Amendment 44 not moved. it was one of his key ambitions. Therefore, we should do anything that we can do to ensure clarity in the Clause 8 agreed. process and to speed up the delivery of this important project. Clause9:Regulations about ballots

5pm Amendment 44A Baroness Hamwee: We support the amendment. Moved by Baroness Hamwee 44A: Clause 9, page 6, line 5, at end insert— Baroness Andrews: I am grateful for what noble “( ) Nothing in subsection (3) is to be taken as requiring a Lords have said. It shows once again what a cross-party lower-tier authority to accept a delegation or to prevent it accepting initiative Crossrail is and how much cross-party support a delegation on conditions including as to the cost of the exercise is committed to it. That goes as much for what Members of the function.” in another place as well as your Lordships have said. As the noble Lord, Lord Bates, said, it is a project that Baroness Hamwee: I shall raise a number of, I hope, will bring significant benefits to London and the south- short points. The first amendment in the group would east. I am grateful to the noble Baroness, Lady Valentine, amend Clause 9(5) to ensure that a levying authority for bringing forward her amendments and arguing could not delegate if the billing authority did not want that the project is vital to the economic development to accept the delegation or to accept it only on certain of London. It has certainly been a long time in the terms; for instance, as to the cost of whatever the planning stages and it is good to know that the first function is. I had in mind in particular protecting both physical stage of construction started last week. the London boroughs and all the so-called “second-tier” The key to the noble Baroness’s amendment is that authorities if the levying authority were to be able to the financial package that will support Crossrail includes impose a function in a way which the billing authorities the BRS contribution. That is well below the one-third found unacceptable. I may be told that it is implied threshold that the Bill requires for a ballot, but, that the delegation would have to be accepted. My nevertheless, the amendment seeks to give the Crossrail amendment is to probe that and have it placed on the project even greater certainty against challenge or record. If I am told that it is not implied, I may want arguments for a ballot, which, as the noble Lord, Lord to come back to it. Bates, said, would in turn import possible delay and Amendment 45 would require consultation about risk into the project. We clearly want to avoid that; we variations to extend to the billing authorities. It seems need as much certainty as possible. to me that the billing authorities as well as the rate GC 533 Business Rate Supplements Bill[18 MAY 2009] Business Rate Supplements Bill GC 534 payers have a stake in the variation, because of the Amendment 44A raises an important issue about administration of the variation, which could be required that relationship, which we quite appreciate. It by that variation. provides that billing authorities need not accept a I wondered whether to withdraw Amendment 57, levying authority delegating to them the function of but it will give the Minister an opportunity to confirm running a BRS ballot. It allows a billing authority that the March date is a date normally applied for the which does accept the delegation of that function to national non-domestic rate. I tabled the amendment impose conditions on that acceptance and to charge to probe the need to ensure adequate time for the for running the ballot. First, I certainly agree with the billing authorities and to give the Minister an opportunity spirit of the amendment and hope to show the noble to explain how the supplementary rate fits in with the Baroness that it is not strictly necessary. NNDR. I believe that under the current legislation the Secretary of State calculates the NNDR multiplier A levying authority simply could not force a billing and the small business NNDR multiplier and serves a authority to undertake ballot functions other than by notice on the billing authorities, “as soon as is reasonably agreement. In the consultation paper, which we publish practical”after doing so. I am keen to have confirmation this week, we are inviting views on whether levying of what the statutory position is as well as what the authorities should have powers to delegate the function practice is at present. Amendment 57 reflects my perhaps of running the ballot to one or more of the billing greater concern about the imposition of the BRS authorities in its area. If stakeholders feel that there mid-year. It would require at least 30 days’ notice in should be some flexibility for levying authorities to order for all the administration to be put into place. decide how to run ballots, this would be agreed locally. Thirty days would not by any stretch of the imagination A levying authority could not force a billing authority be a long period. in practice, nor could it rely on Clause 9 to do it. In the consultation paper, we also address the issue of any Amendment 64 would require regulations—this is costs that might be incurred by a billing authority in a London point—to be published in draft within a running a ballot for a levying authority. Our view is month after the commencement of the Act and to be that this is something that levying authorities and made not later than 30 September 2009. My noble billing authorities should be able to reach agreement friend spoke in the previous Committee sitting about on. This is clearly now a matter for consultation, and the concern of the London boroughs, expressed to us we will be interested to see how stakeholders respond through London Councils, about the burden on the to those issues. Clause 9 ensures that levying authorities boroughs. I make it clear that the 30 September date have the power not to run the ballot themselves. comes out of my head; it is my probing of this. I However, it does not force billing authorities to undertake would not like the Government to think that they can those functions. relax because London Councils is only seeking 30 September; that is not the case. The consultation Amendment 45 would require a levying authority on the document to which reference has been made to consult the billing authorities in its area if it wanted ends on 19 August. There is not a lot of time to put to change an existing BRS in a way that was not the new arrangements into place. The London anticipated as a possibility in the prospectus. I agree boroughs will have to set up systems, and the systems with the noble Baroness that it is important that all are going to have to go live in a year when the those who will be affected by a variation in an existing boroughs have to contend with revaluation of BRS should be able to have their say about the proposed non-domestic rates, a new transitional relief scheme changes. Again, I reassure the noble Baroness that and the deferral scheme for 2009-10 NNDR bills provision is already made for this. Clause 10(5) makes announced by the Treasury in April. It really is it clear that, when consulting on a proposed variation, important that they are given every opportunity to Clause 6 applies in the same way as it does to a put the arrangements into place, which argues for consultation on a new BRS. Therefore, the levying decisions that are as swift as possible. I beg to move. authorities are already required to consult lower-tier authorities in their area if they want to propose a Lord Bates: These are all sensible amendments and variation to an existing BRS. we are happy to support them. A couple of issues that they raise could perhaps be responded to. First, when Amendments 57 and 57A are about the notice that will the regulations for Crossrail, which have been in a levying authority must give to the billing authorities the pipeline for some time, come out? Is there any in the area requiring them to commence billing. I indication of when they will be available? I ask that in assure the noble Baroness that she was right in what the context of Amendment 64. Amendment 57 is she said. Amendment 57 is concerned with BRSs that particularly sensible in a time of economic uncertainty, are to be billed for with effect from the beginning of a and we support it. The extension of notice period also financial year. Currently, the levying authority will very much fits in with that. With that proviso, we are need to serve notice on billing authorities before 1 happy to give our support. March if they want to levy the supplement from the start of the annual billing round on 1 April. That means requiring levying authorities to provide notice Baroness Andrews: A number of amendments in before 1 February, a month earlier. Amendment 57A, this group explore the relationship between the levying as I understand it, would require a levying authority and billing authorities. That will clearly be a key to give a minimum of 30 days’ notice to billing authorities element in the smooth running of any BRS project in if they want their BRS to be first levied partway two-tier areas. through a financial year. GC 535 Business Rate Supplements Bill[LORDS] Business Rate Supplements Bill GC 536

[BARONESS ANDREWS] In our consultation paper on Wednesday we set out I absolutely understand the concern that billing our proposals on collection and enforcement, which authorities must have adequate notice of a BRS. Obviously will later be reflected in the regulations made under they need to ensure that they have time to make the Clause 21. Consulting on the policy as opposed to the necessary arrangements. draft regulations provides us with greater flexibility to set out the various options and their respective pros and cons. Frankly, I think that that is the key to a 5.15 pm better consultation, and certainly one on which the The 1 March deadline for BRS, which will be billed partners feel they have more influence. It is more from 1 April was, as the noble Baroness suggested, effective than if we were simply presenting what would chosen for consistency with the upper tier authority’s look like near finalised regulations. It is therefore an timetable and that of the GLA to issue its council tax important opportunity for billing and levying authorities, precepts for the forthcoming year and within the budget- business and other partners to consider the proposals setting process. The rationale is to ensure that the in detail and to provide feedback before the regulations arrangements dovetail with the existing administrative are laid before both Houses for consideration. arrangements as far as possible. In that way the The noble Baroness said that the timetable was very administrative burden on levying and billing authorities tight and I agree that it is unnecessarily restrictive. The should be minimised. It will also avoid potential confusion consultation will give billing and levying authorities a that would be caused by having different timetables for good indication as to how collection and enforcement different preparations needed before the commencement arrangements might work, albeit subject to consultation. of the financial year. Obviously, we appreciate that levying authorities will Obviously, if the amendment were accepted all the want to have administrative arrangements at the earliest benefits of consistency would be lost and the BRS opportunity, but I cannot give noble Lords a definitive would be running to a different timetable. On top of timetable for laying the regulations. Clearly we want that, the amendment could also cause problems in the them in place as soon as possible, and we shall do that short to medium-term. The GLA, which intends to in the autumn, which is as much as I can say at the levy a BRS from 1 April 2010 as part of the funding moment. The noble Lord, Lord Bates, asked about the package for Crossrail, could well face difficulties in regulations for Crossrail, and I can tell him that we are meeting the timetable proposed by the amendment. currently aiming for mid-October. That is a more The timetable is particularly tight considering that specific timetable because much more preparation has before the levying authority can notify the billing already gone into them. We aim to have the general set authority it will have to have prepared a prospectus, of regulations as soon as possible after the consultation completed the mandatory consultation and revised period has finished in the autumn. the proposals as necessary. To shorten it by just a month would put additional pressure on the timetable. Lord Jenkin of Roding: Before the noble Baroness, That is unnecessary, given the longer-term considerations Lady Hamwee, withdraws the amendment, while we of marrying preparations needed for the start of the may take some exception, as I did earlier, to the way financial year. this consultation paper has reached us, it is right to The issue with a BRS that is to start part-way put on record that its late publication is causing through a financial year is slightly different. For that considerable dismay to local authorities. I hope the we have not put in place a specific timetable for a noble Baroness understands that. The note that I have notice that must be served for billing to commence. had this morning from London Councils—I repeat, I Again, it is consistent with the wider framework of am one of its joint presidents—tells me that it is the Bill, but we expect that billing mid-year for BRS disappointed and frustrated that the DCLG consultation, will be the exception, not the norm. It is right that we as issued last week after much delay, is not the draft allow for flexibility but it will lead to a greater regulations. It had been led to expect that it was going administrative burden, not just for billing authorities to consult on the draft regulations, but it is only, but for business as well. Because of that the timetable “draft proposals on the ballot and administration arrangements”, has to be agreed between the levying authority and and, as such, is the policy relating to the regulations the billing authority. The approach of not prescribing rather than the regulations themselves. The note goes a timetable fits in with our general policy of allowing on to say that while the document is welcome, it still is as much discretion as possible, which is the right not a substitute for seeing the detail of the regulations. approach here. The noble Baroness said that we shall not receive Amendment 64 concerns the consultation arrangements the full regulations until October; did she say that? on the regulations covering the collection and enforcement of BRS. It would require consultation on the draft Baroness Andrews: In the autumn; early autumn. regulations to start within one month of the commencement of the Act—assuming it reaches Royal Assent—and to Lord Jenkin of Roding: The early autumn; September be made no later than 30 September 2009. I understand or October. I insist on behalf of the London boroughs why the noble Baroness has posited her argument and that they want to see these regulations as swiftly as her concern that there should be adequate consultation possible. on the arrangements for collecting and enforcing BRS. On a minor point, we asked about these a week ago The final arrangements also need to be in place in and were told that they would be published. I have not good time to enable levying and billing authorities to had a chance to read the documents. Indeed, while I complete the necessary preparations. was waiting for the hard copy, I ran off the 49 pages GC 537 Business Rate Supplements Bill[18 MAY 2009] Business Rate Supplements Bill GC 538 on my printer, which is not a very fast one, this Clause 10 : Variations morning. London Councils says that the consultation was published only last Thursday, Amendments 45 to 47 not moved. “not allowing much time to assess how the scheme is proposed to work, or giving all the detail for the scheme”. Clause 10 agreed. It continues: “This level of detail is vital to the success of the first BRS that will Clause 11 agreed. be raised—that for the Crossrail scheme in London”. There is considerable dissatisfaction with the way in 5.27 pm which this matter has been handled. I hope the Minister is under no illusions about that. Sitting suspended.

Baroness Andrews: What I said in response to the 5.38 pm amendment was sincerely felt. We have never said that we would publish the draft regulations, because we Clause 12 : Rateable value condition thought that publishing the policy would give London councils and all councils, in this three-month period of consultation, much more opportunity to decide for Amendment 48 themselves what the regulations would contain and Moved by Lord Bates how it would work. I take the point that London Councils clearly wants to discuss detail, and I shall be 48: Clause 12, page 8, line 21, at end insert— happy to set up a meeting between its representatives “( ) After the revaluation of rates in April 2010, the amount and my officials. We can then talk about the consultation prescribed by regulations must increase by the same percentage paper and how the consultation process might proceed. as the percentage increase in the average rateable value for a hereditament in the 2010 Rating List compared to the 2005 Would that be helpful? Rating List.”

Lord Jenkin of Roding: Again, as I have raised the Lord Bates: This is a minor, probing amendment to point on the consultation paper, that is a very helpful test where the Government stand in relation to the suggestion and I will see that the officials in London £50,000 threshold for the business rate supplement. Councils are aware of that and that they follow it up as What is going to happen is that, as rateable values swiftly as possible. They cannot administer this scheme increase, as we hope they will, particularly as the within what the noble Baroness said was a very tight country climbs out of recession, and as prices increase, timetable unless they have enough information to make more and more businesses will come within the reach the detailed preparations. At the risk of quoting a of the £50,000 threshold. The Minister has made clear hackneyed phrase, the devil is in the detail, and that on a number of occasions that the desire is not to see they have not got yet. I welcome the suggestion of a small businesses unduly impacted by these measures consultation; I hope it will relieve some of their anxieties and to see them exempted. Therefore, we want to and perhaps help the Minister to produce a swifter know what position the Government are thinking of scheme. in relation to upgrading this threshold when it comes. On a specific technical point, it would be good if Baroness Hamwee: It is indeed a helpful suggestion, the Minister would comment on the position of those and I thank the Minister for that. On the timetable, of businesses which have been exempt this year because which we now have some bits of the jigsaw, it will they are under the £50,000 threshold. Next year, there clearly not be possible to meet 30 September because is the revaluation. Does that mean that those businesses 40 days from 19 August takes us to about then. I have that are exempt this year will also be exempt next noticed that spring comes later in the House of Lords year? Clearly, businesses next year are going to be in than in much of the rest of the world, as does autumn, for a very tough time when it comes to business rates. which too often runs well into November. The 3 per cent deferral in the increase in the business I am grateful to the noble Lords who have spoken. rates, which was due to be levied on 6 April this year, On the other amendments, I was seeking the concurrence has been moved to next year. There will be the revaluation with the NNDR. I certainly do not want to complicate itself, community infrastructure levies, congestion charging the process. I realise that if my amendment were to be and workplace parking levies. A whole range of things included, I could cause a fit among the officers at the are being talked about that will hit businesses just as GLA for whom I have much respect. I have no wish to they are potentially struggling to emerge from this complicate their lives, because I know how difficult it very deep recession. I wonder whether the Minister, is to fix meetings to make decisions. who has been in generous mood to the Committee this Going backwards, on the costs of delegation, I afternoon in giving way on a number of points, might suppose that the possibility of refusing a delegation like to extend that generosity to hard-pressed businesses covers the point if the costs cannot be sorted out. I am by giving a positive response to this minor amendment. grateful to the Minister for that. I beg leave to withdraw I beg to move. Amendment 44A. Amendment 44A withdrawn. Baroness Andrews: The noble Lord has sketched out the context in terms of the difficulties that businesses Clause 9 agreed. are facing, like the rest of the country. I was pleased, GC 539 Business Rate Supplements Bill[LORDS] Business Rate Supplements Bill GC 540

[BARONESS ANDREWS] 5.45 pm for example, that we were able to deal with the potential Lord Bates: I am grateful for the Minister’s reply. I 5 per cent increase on business rates. Businesses will be am obviously disappointed that the businesses which able to pay a 2 per cent annual increase in 2009-10 and are exempt this year will not be exempt next year but, the remaining 3 per cent over the following two years. nevertheless, I accept the explanation that has been That will help to smooth out rates payments. given. I beg leave to withdraw the amendment. This is a useful amendment that enables me, I hope, to reassure the noble Lord. I will deal with the Amendment 48 withdrawn. specific question on the threshold first, and then say a little about the amendment because it raises some Clause 12 agreed. interesting questions. I understand the noble Lord’s concerns that if the rateable values increase—on the basis of past revaluations, it is more likely that they Clause 13 agreed. will increase rather than decrease—then the threshold of £50,000 that was committed to in the White Paper will protect fewer businesses than we might expect Clause 14 : Chargeable amount: supplementary based on current rateable values; that is, more businesses will find themselves over the threshold. Amendment 48A They might technically find themselves brought within the scope of BRS on that basis. Moved by Lord Best 48A: Clause 14, page 11, line 5, at end insert— I stress that levying authorities have the freedom to “(8A) No later than five years after the date on which this provide additional safeguards for business. The baseline section comes into force and, after then, at intervals no shorter is £50,000. If levying authorities are concerned about than five years, the Secretary of State shall publish a report the impact on business on the basis of the next revaluation, following a review carried out by him of the upper limit of the they are sensible enough to know that the way to deal multipliers set out in subsections (6) and (7). with that is to raise the threshold above £50,000. They (8B) When carrying out a review under subsection (8A), the can do that to exempt businesses that have come into Secretary of State shall consult— the net as a result of revaluation. They will also be able (a) levying authorities; to stagger the supplement—for example, setting the (b) such representatives of local government as appear to BRS so that premises with rateable values just above him to be appropriate; and the threshold will attract a lower supplement than (c) such organisations representing businesses as he thinks premises with rateable values that far exceed the threshold. fit. They have the scope to do that within the 2 per cent. (8C) If, in a report published under subsection (8A), the Within the terms and spirit of the partnership that Secretary of State concludes that the upper limit of a multiplier they are trying to construct around BRS, there is should be varied, he may by regulations amend subsections (6) scope for local authorities to be flexible and proportionate and (7) by varying the upper limit.” about what they are trying to do. Lord Best: I shall speak also to Amendment 66A. The amendment itself raises interesting questions. At Second Reading, I declared my interest as president One reason that we cannot accept it is that tying the of the Local Government Association and I raised the threshold increase into a national hike, as the amendment question of the limit on business rate supplements implies, does not deal with the serious variability that which local authorities would be permitted to levy. we get in our local communities and the need to This limit is currently clearly specified in the Bill at 2p protect those communities, particularly smaller businesses. in the pound. This is half of the limit of 4p in the Based on the 2007 figures, we know that more than pound which was recommended by Sir Michael Lyons 90 per cent of non-domestic properties will be exempt in his independent review of these matters in March from BRS, and that in 2010 rateable values will change 2007. The amendments accept the Bill’s 2p limit at this to reflect the movements there have been in the property time, rather than pushing for the Lyons recommendation. markets since the last revaluation in 2005. There will All the LGA is seeking is a requirement on the Secretary be variation between regions and sectors: in some of State to consult at five-yearly intervals on whether places properties will face an increase in their RV; the limit is still appropriate, with the opportunity, if it others will see a fall. For rate payers who will face a is not appropriate, to change the limit. This would significant rise in their rate bills on revaluation, we mean that primary legislation would not be needed if have the transitional relief scheme which staggers any change was desired. increases over a period of time. Local authorities work closely with their local We need to balance three key issues: the interests of businesses and understand and share concerns about business; the need to allow local areas to raise meaningful placing excessive burdens on business during the current levels of revenue; and the need to allow flexibility so recession. The noble Lord, Lord Tope, noted that that local needs can be taken into account in any BRS. some people might fear that councils are sitting waiting At the current time, the methodology set out in the to levy the maximum supplements as soon as they can. Bill around the £50,000 threshold gives us that certainty. In reality, a recent survey by the Chief Economic It also gives us the important local variability which Development Officers’ Society did not find a single will help the levying authorities do what is right for local authority that is planning to use the power to their areas. apply an additional supplement during the recession. GC 541 Business Rate Supplements Bill[18 MAY 2009] Business Rate Supplements Bill GC 542

Amendment 48A specifically provides for consultation that there ought to be gradations and a scaling before with local authorities and the business sector. If, following somebody moves all the way up to 2p, depending on this consultation exercise, the Secretary of State concludes the size of the business. that the upper limit should be varied, then it could be Timing is also critically important. Certainly, economic changed by regulation. Changes in the limit would still forecasts point to our being in a period of sustained require an affirmative resolution, so there are further economic difficulty for some three to four years. Therefore, safeguards. the idea that this power of flexibility could be introduced The amendment gives the power to vary the limit, by the Secretary of State just as businesses are emerging which means it could be reduced as well as increased. I from that would be regarded by us as unhelpful. would not pretend that in sunnier economic times in Finally, one of the things that we have always been the future local authorities might not seek to make the suspicious of, with the reduction of local authority case for setting a higher limit that would provide extra business growth initiative funding from about £1 billion revenues that could make a real difference; after all, to £250 million or something of that order, is that this the current limit restricts any extra revenue to a maximum is not additionality, but we are seeing the already of less than 5 per cent of the total business rate. But hard-pressed business community being asked to the Secretary of State could use the provision to supplement a gap in funding. reduce the limit, and I hope that provides comfort to any noble Lords who are nervous about these amendments. I beg to move. Baroness Hamwee: We support the amendment. The noble Lord, Lord Best, will not be surprised because I have made the same points at different Lord Jenkin of Roding: There is merit in this proposal. stages. It is a Bill for the long term. If local authorities I am a vice-president of the Local Government are to be trusted in the way in which we have been Association; I am not sure that I have declared that discussing, they should be trusted to this greater extent. interest before. However, it gives me an opportunity to It seems a little perverse to put—I was about to say a repeat what I said last week: we will need before legislative block, but it is not in legislation; it would Report to look at a more general amendment to the require another primary legislative building block to Bill to give the Government a clear duty to review and extend the scope of the BRS. the power to make changes by appropriate subordinate legislation rather than, as the noble Lord, Lord Best, has said, having to come back to primary legislation Baroness Andrews: That was a helpful debate to for changes. tease out some of the arguments around the amendment. I understand that it wants to make provision for the Various items here have been suggested for review. Secretary of State to vary the upper limit through However, after perhaps five years—I suggest that as a regulations and make it possible to increase or decrease possibility—we really need the Government to come the level of the supplement depending on the state of back and review the whole scheme. The amendment the economy. I can see that that has some attractions, would require careful drafting so as not to give complete but I have an argument against it. carte blanche to sweep it all away and start again through subordinate legislation. However, that seems In an earlier debate, I set out the provisions in the a better way of proceeding than having a series of Bill and the way in which they need to balance safeguards piecemeal reviews of different aspects of the BRS at with the ability to raise useful sums of cash. The 2p different periods. limit guarantees businesses the maximum BRS that they might be expected to pay. Examples of the kinds of Lord Bates: I hesitate to disagree with my distinguished revenues that can be raised are set out in paragraph 3.4 colleague and noble friend Lord Jenkin, and with the of the White Paper. The noble Baroness, Lady Hamwee, considerable expertise that the noble Lord, Lord Best, mentioned the long term, and indeed, Crossrail is an brings to these matters. However, I must. It follows example of a long-term project. We know that such through our general theme of concern about the burdens major construction projects will take years to complete. that are being placed upon the business community. The amendment raises the possibility that the maximum The sum of 2p may seem inconsequential, but it is the rate could be changed and, by implication, increased, equivalent of £750 million nationally—around 5 per which introduces a significant level of uncertainty for cent of the total to be raised. business and the levying authority. It is in the nature of these things that whatever the I hear what the noble Baroness says, but certainty is top level, people tend to claim up to the maximum in important in constructing sustainable partnerships. any walk of life. Therefore, to remove that barrier Under the Bill as drafted businesses can be sure of the from 2p and to give the Secretary of State the power to maximum BRS bill that they may be expected to pay. vary the upper limit up to 4p is giving too much at The amendment would reduce that certainty. Yes, it this stage. would be there for the next five years, but what about We are certainly supportive of the review of the the following five years or the five years after that? scheme’s progress. A radical new tool is being proposed. Levying authorities need clarity on how scenarios We have our misgivings about it outside London, but would be handled. It is possible that transition it is none the less appropriate to seek its review. As well arrangements will have to be made, but that all adds to as the Local Government Association having argued levels of uncertainty that we do not need in the system. for it, business organisations such as the CBI have I say to the noble Lord, Lord Best, that when it made representations that we should seek to retain the comes to reducing the 2p rate, as the noble Lord, Lord current 2p level—indeed, not even 2p. The point is Bates, pointed out, we have allowed scope within the GC 543 Business Rate Supplements Bill[LORDS] Business Rate Supplements Bill GC 544

[BARONESS ANDREWS] My amendment seeks to pin down the question of levying arrangements that takes care of that point. Put reliefs. It did not occur to me until reading the clause simply, the levying authorities can set up a levy to the that different reliefs might be applied to BRS from maximum of 2p, and within that they will have the those applicable to NNDR in the same area. I do not discretion to vary the supplement as they see fit. They suppose that my drafting is particularly good, but I can certainly propose a lower supplement in their am seeking to understand whether it is expected that initial prospectus, and vary it in response to the the BRS will be fully in line with the NNDR and the consultation. That is a better way forward as it brings reliefs that apply and, if so, whether it is required. I flexibility, negotiation and some certainty. Despite the beg to move. fluency of the noble Lord, Lord Best, and the support received from the noble Baroness, Lady Hamwee, I Lord Bates: I rise to support the noble Baroness in and the noble Lord, Lord Bates, are at one on this her Amendment 48B but also to speak to amendments amendment. I cannot accept it. standing in my name and that of the noble Earl, Lord Cathcart. They are probing amendments which give Baroness Hamwee: Can the Minister tell us whether us an opportunity to put some real concerns on record. there is any difference conceptually or philosophically The amendments deal with the sections of Clause 15 between the uncertainty that she ascribes to this relating to the application of relief and would impose amendment and the uncertainty that all businesses a requirement to grant relief for empty property in this outside London currently feel as they do not know category. In the 2007 Budget and without proper whether they will be subject to a 2p rate once the Bill is consultation, Gordon Brown peeled back the empty passed? property rate relief for commercial and industrial premises. The rise in empty property tax raised an 6pm estimated £950 million net in extra tax in 2008-09. Baroness Andrews: Each BRS as it comes along will There was no offsetting reduction in the rates elsewhere. have to subscribe to the Act—as I hope it will then be. The tax changes came into effect in April 2008, just as An authority will be able to make its own decisions on the economic downturn was starting to bite. what it needs and how its partnerships will function The tax rise is particularly harmful in a recession, on that basis. as firms are unable to rent out vacant properties due to a lack of demand in the economy. There are many Lord Best: I make two general points in defence of cases of this up and down the country. It is axiomatic the amendments. They are about giving local authorities that a policy which may have seemed appropriate to greater freedom to be the place shapers for their area; the then Chancellor in the 2007 Budget is entirely they are about the politically consensual move towards inappropriate during the downturn. Last week, I walked decentralisation, devolution and localisation; they are around an office building in Darlington where every about the opportunity that local authorities might single unit used to be occupied. The business there was have in the future to do more without central government very good and well maintained, and the office space dictating exactly how they are funded. That is the was available on a kind of flexible leasing basis. You philosophical base to the amendments. It is also worth used to be able to walk along all three corridors and pointing out that, increasingly, local authorities are find the place bustling with businesses. Now, in that acting as partners with local businesses. That sense of same business building in Lingfield Point in Darlington, mutual mistrust which existed in the past is evaporating, many units are completely empty. As a result, the I am pleased to say, in many areas. Protecting local owners are carrying the extraordinary additional burden business from local government is perhaps no longer of the empty property rate. the priority that it might have been years ago. However, Although this does not apply in the case that I have with the strength of the alliance that is opposed to the just mentioned, and draconian as it may seem, many amendment, I fear that I must withdraw it. people are knocking down entire sheds, as they are known in the commercial property world, to avoid Amendment 48A withdrawn. paying that rate. That is happening in much the same way as I suppose was the case when the window tax Clause 14 agreed. was levied and people started bricking up their windows. The fact that landlords take such draconian action indicates just how near to the bone many of them are Clause 15 : BRS relief with their business premises at this time. I think we need to put on the record just how dangerous the Amendment 48B decision to abolish empty property rate relief was and the damage that it is doing. We have rehearsed some of Moved by Baroness Hamwee these arguments before but I want to put them on the 48B: Clause 15, page 11, line 19, leave out from “BRS” to end record. We talk about raising additional funds through of line 20 and insert “shall apply in relation to BRS reliefs that are the business rate supplement but this will be entirely no less favourable to ratepayers than the most favourable reliefs additional. applied by the relevant billing or levying authorities” In the previous debate, I referred to the fact that business growth initiative funding has been cut by Baroness Hamwee: Clause 15(1) states that a levying almost £700 million. Here, we see empty property authority can apply, rates raising an extra £950 million. It seems very likely “such reliefs … as it thinks appropriate”. that here we are seeing already hard-pressed businesses GC 545 Business Rate Supplements Bill[18 MAY 2009] Business Rate Supplements Bill GC 546 being asked to shoulder the burden of additional not go into the ways in which we have tried to do that, taxation to cover a gap in the Government’s finances. but an enormous sum of money has, in different ways, That point needs to be put on the record. gone into supporting businesses, including the construction In the 2008 Pre-Budget Report, the Government industry, during the current recession. It is on that announced that they will increase the threshold to basis that we are temporarily increasing the threshold £15,000 for 2009-10 only; yet they are merely exempting at which the owner of an empty property becomes some small firms from this tax for one year and liable for business rates. This financial year, empty continuing with the tax hikes in 2010-11. The reduction properties with a rateable value of less than £15,000 in revenue from the temporary threshold increase is will be exempt from business rates. That is an estimated only £185 million in 2009-10. This compares with a 70 per cent of empty properties. This is best targeted previous forecast of £900 million in 2009-10—hence, at helping those small businesses manage short-term the net increase from the change in empty property pressures which are due to the difficult property market rates is still an additional £715 million. conditions. I think that the Government have recognised how The reasons which led us to make the changes we disastrously poor the timing of the abolition of the did are still right in principle. It is right to charge rates empty property rate was, and they have taken steps, as when properties stand empty. It increases incentives best as they are able when they are running a and energy to re-let and reuse and it avoids subsidising £170 billion deficit, to try to recover some ground. owners of empty properties. The noble Lord will be However, it is too late for many businesses that have disappointed, but a blanket exemption from BRS for gone under and many landlords are taking the empty properties is overly prescriptive. We need to draconian steps that I mentioned earlier. The point of ensure that we are consistent in the freedoms and tabling this probing amendment was to provide an flexibilities that we are offering local authorities. opportunity to put on the record that, when we introduce these charges, they impact on real Lord Bates: The Minister said that the idea of businesses in a very real way. It cannot be assumed empty property relief was to get owners of properties that boom and bust has been abolished because bust to re-let the properties rather than let them stand may be with us for some time. We hope not—we pray empty. Surely she would acknowledge that in the not—but it may well be. It is therefore absolutely right present economic climate that is not an option. The that we should be cogniscent of the impact, intended idea that it is not applicable for businesses with a or otherwise, that such measures can have upon rateable value of over £50,000 does not stand if the businesses in this country. I beg to move. test is the ability to re-let. I am sure the owner of Lingfield Point in Darlington would love to have no Baroness Andrews: These are two very important empty properties whatever within his facility, but he amendments and there have been two powerful arguments just cannot help it. These businesses are stopping in explication. Amendment 48B seeks to ensure that trading or going into receivership and therefore the the relief given for BRS is no less favourable than the rules designed in 2007 simply do not apply in the relief given for the national business rate. We were current environment, nor probably for the foreseeable certainly at pains to ensure that. In developing our future. proposals for BRS, we were particularly keen that the overall approach to BRS mirrored that for NDR. It is 6.15 pm already provided for in Clause 13 and, to use the noble Baroness’s language, means that if a rate payer receives Baroness Andrews: I certainly accept the point that relief on their rates bill, that same level of relief will be it is difficult in the current climate; I have no argument applied when assessing liability to BRS. It is fully in against that. That is why for this financial year those line with NDR. I hope that reassures the noble Baroness properties with a rateable value of less than £15,000 on that point. will be exempt. That is why it captures so much. The We have designed the Bill so that the provision noble Lord is right that these concerns are very difficult applies to those ratepayers in receipt of small business at the moment. rate relief, charity or CASC relief, rural rate relief, I may be able to reassure him, because the current discretionary rate relief or hardship relief. Those ratepayers draft of the Bill leaves it to the levying authorities to will receive the same percentage reduction in their determine whether liability for BRS should extend to BRS bill as they receive from their rates bill. For the empty properties in an area. They have that discretion. example, if a registered community amateur sports That will be part of the negotiation that is possible club—I am sorry the noble Lord, Lord Moynihan, is between the levying authorities and local businesses. It not in his place because I would like to see his face is very much appropriate, not least in the areas that the light up when I say this—is receiving 80 per cent noble Lord is so familiar with and has been describing, mandatory relief from business rates, the club will that the decision should be made at local level. The similarly be entitled to an 80 per cent reduction in its right approach will depend on the specific nature of BRS liability. I hope that will be helpful on the record. the project and the local area. The local authority can, On Amendments 49 and 50, I listened hard to what if it so wishes, exempt empty properties. The safeguards the noble Lord said about the significance and impact in the Bill apply equally both to occupied and unoccupied of empty properties and empty shops, particularly on properties. Both will benefit from the £50,000 threshold. the young, and I quite understand the case that he is Both will benefit from the 2p upper limit. I would have making. We should certainly do all that we can to thought that it would be possible—I will have to check support businesses during the current recession. I shall this—to have a different rate for empty properties. GC 547 Business Rate Supplements Bill[LORDS] Business Rate Supplements Bill GC 548

[BARONESS ANDREWS] It may be possible to vary the rate. If the noble Lord Amendment 50A will allow me, I will come back to him on that. I am not certain of my ground there. Moved by Lord Bates If a levying authority wants to levy its BRS on the 50A: After Clause 15, insert the following new Clause— owners of empty properties, they will certainly have to “Power for levying authority to cancel BRS be consulted in the same way, and if it goes above a A levying authority that imposes a BRS on non-domestic third of the total cost they would be entitled to vote. ratepayers in its area has the power to cancel that BRS in Crucially, just as we have mirrored the reliefs of BRS response to a request from the non-domestic ratepayer as it alongside NDR, we are trying to establish consistency considers appropriate.” wherever we can, and this approach mirrors our approach to NDR. Rates are now paid on occupied and empty properties, but we are leaving it to the discretion of Lord Bates: I shall be brief. The amendment relates levying authorities to decide in this case whether to to trying to secure some specific responses from the exempt owners of empty properties. Government. If a business that is currently liable to the business rate supplement in the circumstances that I hope on that basis there will be some comfort for have been outlined were to cease trading and still owed the noble Lord in relation to his amendment. business rate supplement, what mechanism is in place to deal with that? Will the local authority simply line Baroness Hamwee: I do not know whether the up as a creditor along with other creditors to the noble Lord wants to come back on his amendment company? If a major retailer, say a B&Q superstore or before I respond. a Woolworth’s, is on the brink, is there flexibility to ease the situation? I merely seek to elicit information from the Minister on the position. I beg to move. Lord Bates: No. Baroness Hamwee: I have added my name to Baroness Hamwee: I am still a little puzzled. I Amendment 61B in this group referring to the provision understand that the reliefs are captured by the formulae allowing the Secretary of State—or the Welsh in Clause 13, but then why is Clause 15(1) necessary? Assembly—to cancel a BRS if it, It says that a levying authority may apply such reliefs “thinks that a levying authority has … acted in a way that is as it thinks appropriate. Does that mean that it could materially inconsistent with information provided by it”. apply greater reliefs than those which will already have My amendment would except, been taken into account in reaching the cash amount under Clause 13? Does it mean that it can make up its “minor or incidental information on which ratepayers could reasonably be expected not to have relied”. own local reliefs? I remain a little puzzled. Can the noble Baroness help? I expect that the Minister will tell me that my concern is met because the two national authorities can simply decide if it is minor or incidental information Baroness Andrews: As I understand it, that allows and would not exercise their power to cancel, but I local authorities to move the threshold above £50,000 should be grateful if the Minister would confirm that I and allows the BRS, for example, to be levied at less have understood that correctly. than 2p. Those reliefs are being referred to in that— Baroness Andrews: I shall start with Amendment 50A, Baroness Hamwee: With respect to the Minister and which seeks to put beyond doubt that when a ratepayer her officials, who have just given her that bit of prompting, requests it, the levying authority may cancel its BRS. I that is not a relief. That is the basis for calculating the am sure that the noble Lord knows that that is already BRS threshold. Perhaps I just have to contain my covered in the Bill. There is nothing preventing a puzzlement, but I wonder whether I might discuss this levying authority stopping a BRS early in a controlled with the Minister after today. way. For example, it can choose not to proceed with a later stage of the project in the light of representations Baroness Andrews: I am happy to do so. I am sure received. That would amount to a variation of the the language is sufficiently flexible for it to be appropriate. BRS and, as we have previously discussed, depending I take the point that the noble Baroness is making, and on what is written in the prospectus, it is possible that I am happy to discuss. such a variation could be made automatically. Otherwise it would technically require consultation in accordance with Clause 10 and, in some cases, even a ballot, Baroness Hamwee: In that case, I beg leave to although that would not be arduous if a substantial withdraw the amendment. number of representations had been received. In other cases, if the levying authority simply abandons Amendment 48B withdrawn. the project, the Secretary of State has the power in Clause 21(4) to provide in regulations that when the BRS is to come to an end, ratepayers do not continue Amendments 49 to 50 not moved. paying for a project that is no longer happening. I hope that the noble Lord is reassured that levying Clause 15 agreed. authorities can end a BRS early. GC 549 Business Rate Supplements Bill[18 MAY 2009] Business Rate Supplements Bill GC 550

Amendment 61B considers the role of the Secretary Baroness Hamwee: On the second of the two of State by making it clear that he cannot intervene amendments, in regard to cancellation I was not concerned when a levying authority has departed from a minor with minor inconsistency but with material inconsistency or technical aspect of its BRS plans on which businesses in a minor matter with minor information, which is considering the original proposals will not have relied. different. However, what she had to say before that Clause 24 is sensible in that it allows the Secretary of section of her notes reassured me and I am grateful State to intervene and potentially to cancel BRS and for that. order the return to businesses of the sums paid in those circumstances when a levying authority acts inconsistently with information that it has provided to Lord Bates: It may be because of the stage that we business at key stages of the BRS process. That cuts have reached in Committee that I am slow on the across the fundamental requirement of the integrity of uptake, but I posed a specific question and I am not the scheme and the partnership. The information is sure that the answer that the levying authority can end included in its final BRS prospectus or in a variation a scheme early answered that question. Let me phrase proposal under Clause 10 in the course of a consultation it again. For example, if a retail premises with a with business, or in connection with the holding of a rateable value of £1 million—it is a substantial business—is ballot. So this is very much a nuclear option. currently paying a major business rate supplement contribution to the order of £20,000 and falls into I do not expect levying authorities will be acting financial difficulty, with whom does the liability rest? inconsistently with the information that they give business. Is it with the levying authority? What would happen Of course we know that mistakes can happen and that with the scheme if that £20,000 was the difference difficulties can arise, but I expect that if that ever between some of the improvements going ahead and happens, the levying authority’s business will spot it; not going ahead? How would that be handled? Could they will be able to anticipate it and be only too ready any compensation be forthcoming from the Secretary and able to pull up the levying authority, and so they of State to compensate for that? should. The levying authority should act quickly and decisively to get back on track to deliver the BRS and My final question is whether in the business plan the project it is promised to. and prospectus which are put forward for any scheme, it would be advisable to introduce some contingency In very rare cases, a levying authority’s local partners— or reserve so that, in such circumstances, the costings for example, the ones on the regional improvement would be there to finish the project, even if one or two and efficiency partnership—might step in to help it get of the major contributors were no longer there. back on track to deliver the project set out in the prospectus; there are good intervention processes available. It is only in the most exceptional cases, therefore, when 6.30 pm local engagement with business and other partners has Baroness Andrews: I am sorry. I gave a very abstract failed to resolve the problems a levying authority answer to that specific set of questions. My understanding might be facing, that the Secretary of State would is that the prospectus has to cover a number of different consider stepping in. Even then, cancellation would be contingencies. It has to set out what would happen if the last resort because the projects we are contemplating things went awry in different ways, and I think that it are complex, long term, innovative and no doubt would have to spell out how a major contributor going expensive. We want BRS to work and to deliver what bust under those circumstances would be dealt with. is promised, and working together to achieve that will Paragraph 23 of Schedule 1 says that there must be a always be the first resort, and cancelling of the BRS, contingency process for dealing with unforeseen with all its implications, will always be the last. circumstances. I think that we discussed refunds at one I can offer the noble Baroness further reassurance. point, which is part of the notion of contingency. I The Secretary of State’s power under Clause 24 does sense that if things reached a critical stage, the prospectus not extend to allowing intervention in response to might have to be revisited and varied in terms of the minor technical issues where a levying authority does project. Therefore, those sorts of circumstances would something slightly different to what is in its prospectus certainly be covered. I hope that that is of more help in circumstances where business would simply not be to the noble Lord. interested. She has already quoted Clause 24(1) and the requirement for there to be a material inconsistency. The Secretary of State’s power applies where there is a Lord Bates: I beg leave to withdraw the amendment. material inconsistency between what the levying authority has said it will do and what it is doing. A minor inconsistency will not trigger the power; it is there to Amendment 50A withdrawn. be exercised only in extreme circumstances where the BRS and the project being delivered are different to what was clearly set out and promised. I confidently Clause 16 : Interaction with BID levy expect the use of the power in other circumstances to be the subject of a challenge through the courts. I understand the noble Baroness’s concerns and the The Deputy Chairman of Committees (Baroness reasons she has tabled the amendment, but I hope that Pitkeathley): I should tell your Lordships that, if I have given sufficient reassurance to both her and the Amendment 51 is agreed, I cannot call Amendment 52 noble Lord. for reasons of pre-emption. GC 551 Business Rate Supplements Bill[LORDS] Business Rate Supplements Bill GC 552

progress and engaging local businesses in projects to Amendment 51 improve their local communities. With that explanation Moved by Lord Bates and those caveats, I beg to move. 51: Clause 16, page 11, line 37, leave out subsection (1) and insert— Baroness Hamwee: I have Amendments 52 and 55 “(1) Where a person is, by reference to a hereditament, liable in this group. Amendment 52 would amend Clause 16, for BID levy in respect of all or part of a financial year in respect which relates to the interaction with the BID levy. of which the person is, in relation to that hereditament, subject to Clause 16(1) provides for setting rules for the interaction. a BRS imposed by the authority, the chargeable amount payable My amendment would require consultation with those in relation to the BRS shall be offset in accordance with subsection (2).” liable for it and the billing authority—which may be different from the levying authority for BRS—because Lord Bates: Amendment 51 would mean that, where we do not agree that there should be an automatic a person was liable for a business improvement district offset; there are likely to entirely different objectives levy and subject to the business rate supplement imposed for a BID and BRS in a particular area. Not everybody by that authority, the chargeable amount payable in paying the BID contribution will be liable for BRS, reference to the business rate supplement would be but, before the levying authority comes to a view, it offset to avoid double-charging. should undertake a consultation. Amendments 53 and 54 also stand in my name and I have tabled Amendment 55 in the hope that the that of my noble friend Lord Cathcart. Amendment Minister can explain “consistently” in the context of 53 would leave out the words, Clause 16(4). We are told that the rules must, “to the extent specified in the rules”, “apply consistently in relation to BID levies”. and Amendment 54 would leave out subsection (4), Does that mean all BIDs within the levying authority’s which states how the rules must be made. As the Bill area? I do not know that they can, because subsection stands, the levying authority is enabled to make rules (4)(c) requires application uniformly throughout the regarding what to do when a person is liable for a area. My imagination ran out over “consistently”. business improvement district levy and subject to a business rate supplement. Our amendments would Baroness Andrews: Perhaps I may deal with the remove the levying authority’s right to make rules offset first and Amendments 51, 53 and 54. Linked to about that and, instead, specify that liability for the that is Amendment 55A, which relates to Crossrail. business improvement district levy would be offset Amendment 52 has a different focus. It would leave against the amount that the person would pay for the the decision whether to have an offset to the levying business rate supplement. authority, but proposes, as the noble Baroness has just Amendment 55A, which is consequential, would said, that it first be required to consult those liable for add the words: the BID levy and the relevant billing authority. “This section does not apply to the Crossrail project”, Amendment 55 probes the definition of “consistently”, which may come as some relief to the mayor’s office, if which I hope that I shall have an answer to by the time to no one else. I come to the end of my speaking note. The argument for this proposal is obvious in that I have listened carefully to the arguments. The businesses could well see themselves being charged concerns expressed have been raised not only today twice for the schemes. The whole issue of additionality but also in the other place. One very clear message that under this heading is also brought into question. We has emerged from these debates, which I hope that the do not want to risk harming the business improvement noble Lord, Lord Jenkin, takes as much pleasure from district schemes. Everyone has said that, where they as I do, is that BIDs have been a great success and are operate—and of course some, such as the New West a popular initiative. We are determined that they should End Company, operate here in the capital—they seem continue to grow alongside BRS. to do a very good job of integrating businesses and I should explain why I, like the noble Baroness, improving the local area, and we do not want to harm Lady Hamwee, do not think that an automatic offset them. At the same time, huge pressures are currently is the right way forward and why it cuts across the being put on businesses, as I mentioned earlier. Therefore, whole thrust of the Bill, which is to devolve the key the fear that levying authorities will raise a business decisions to local partners and not impose on them. I rate supplement but at a sufficiently low threshold so do not think that I need to rehearse the difference that a ballot is not triggered is real. Because businesses between the BRS and the BID, because I think that are under so much pressure, they will not be able to noble Lords are very familiar with the scale, the scope vote against the business rate supplement and will and the set of objectives. then be forced to vote against the business improvement As we all now know, the Bill provides an opportunity district levy where they do not have a vote on the for local authorities to work together to develop proposals community improvement levy. that will enhance economic development. Authorities So there are a range of schemes. The amendments will have the flexibility to decide how the levy should aim simply to remove duplication and introduce tax be set, subject to the overall limit of 2p in the pound of simplification. Taxation under this Government has rateable value. They can decide whether to offer more become a nightmare for anyone involved in business— generous safeguards to businesses. They can, for example, perhaps not so for the accountants, who I am sure set the threshold for liability above the £50,000 threshold. quite welcome the complexity. Simplicity in dealing They can decide, as we have just debated, to exclude with these matters will be very important in monitoring empty properties. GC 553 Business Rate Supplements Bill[18 MAY 2009] Business Rate Supplements Bill GC 554

Against that background, it is therefore absolutely in the levying authority’s best interests to ensure the right and consistent that we should leave the decision robustness of its business case and to ensure that work about a potential offset for those paying BID levies to on the preparation of the prospectus involves detailed the local levying authority. Amendment 55A provides discussions with local business and other interested that the GLA would not be required to offset BID parties, covering the whole range of matters that should liabilities against BRS liabilities for its Crossrail BRS be in the prospectus. partners. The choice will be there for them, to be Given that requirement, it would be unnecessary to worked out in negotiation with local partners, bearing require them formally to consult about whether there in mind the full set of local factors. I recognise and should be an offset for those paying BID levies before understand that there are strong and persuasive calls they carry out their formal consultation on the prospectus. for an automatic offset. There are equally strong calls, Again, we should leave it to authorities to determine such as that from the noble Baroness, Lady Hamwee. how best to engage with businesses, and to have that I give the noble Lord two arguments, not from the conversation before they finalise their prospectus. Government but from groups that are deeply involved in these situations, such as the South Bank Employers 6.45 pm Group. It is an association of major organisations on Amendment 55 seeks to clarify whether a levying the South Bank in the Waterloo and Blackfriars areas authority could choose to treat BIDs in its area differently; which helps to deliver a BID-type benefit for their for example, by offsetting the BID liability of persons local area through an alternative but voluntary BID in BIDs established before the BRS was imposed but levy. It considers that having an automatic offset for providing no offset for persons in BIDs established BID payers would be unfair. It said: after the BRS was imposed. The noble Baroness asked “The fact that businesses have chosen to contribute to this quite rightly about the interpretation of “consistently”. fund of local additionality … should not in any way relieve them I hope it is sufficient to tell her that the BID rules of the obligation to contribute to a major pan-London project must be the same for all BIDs. The same level of offset like Crossrail”. should apply wherever the BID is and whenever it is It points out that this means that businesses that are established, be it before or after BRS. I hope that that not in BIDs, for whatever reason, would not benefit answers the noble Baroness’s question. Clause 11(4)(c) from an offset for BRS because of factors outside requires the BID rules to, their control. The group argues: “apply uniformly throughout the levying authority’s area”. “This would be seriously unfair on major businesses which are I think that the explanation that I have given is an not in BID areas, whether because they have voted against the BID proposals or because a BID proposal has not come forward, extrapolation of that point. The noble Baroness does or because the area is not seen as suitable for a BID”. not look at all convinced. There speak the employers. Baroness Hamwee: The noble Baroness is puzzled, The chief executive of British BIDs, Dr Julie Grail, because the explanation seemed, as the Minister herself said that, decided, to be of subsection (4)(c)—the uniform “a full offset in London would be a ridiculous and dangerous application. But consistency is in addition to uniformity, move and would give an open door to every business community and that is where my puzzlement remains. I am sorry in London to go and get itself a cheaper business rate supplement”.– to have bowled the Minister a slightly awkward ball; I –[Official Report, Commons, Business Rate Supplements Public Bill Committee, 20/1/09; col. 47.] had thought that I had warned her, or asked somebody to warn her, about this, but it is obvious that I did not. Lord Bates: The Minister makes a good point, but she accepts that we were arguing that London and Baroness Andrews: I know that the noble Baroness Crossrail should be exempt. We were not proposing is forensic in her analysis of the language of legislation. that London should be— I shall have to write to her. Lord Jenkin of Roding: Before my noble friend Baroness Andrews: I take that point entirely. However, withdraws his amendment, I acknowledge the kindness there are enough reasons not to go down this route of of the Minister in saying that I would be as pleased as an automatic offset, particularly when the crucial point she is about the success of the BIDs. She obviously is that levying authorities can use their discretion on knows that I introduced a Bill into the House of Lords whether to have one or not. to introduce BIDs more than four years before the I do not need to rehearse our arguments on Government. As the noble Baroness, Lady Hamwee, Amendment 55A. As the noble Lord said, we have will remember—because she took a full part in it—my already had that debate. Bill went through all stages in the House of Lords. It I am afraid that Amendment 52 is unduly prescriptive, had its First Reading on 20 May 1997 and finally had although I understand why the noble Baroness has its Third Reading on 6 April 1998. It was debated at tabled it. We debated levying authorities setting out some length on the Floor of the House. It then went to their detailed plans in their prospectus last week, another place and, of course, as a Private Member’s including whether they intend to offset BID levies Bill that the Government did not want at that stage to against liabilities for BRS. In the draft guidance that support, it fell. we issued in January for consultation, at paragraph So you may imagine my astonishment when Part 4 3.41, we make the point that business will have the of the Local Government Act 2003 came back and, lo scope to challenge prospectus assumptions at the and behold, introduced BIDs. Even more astonishing consultation stage. For that reason, we advise that it is was the fact that it incorporated almost word for word GC 555 Business Rate Supplements Bill[LORDS] Business Rate Supplements Bill GC 556

[LORD JENKIN OF RODING] 1990s and what led the then Conservative Government what had been in my Bill in 1997. What really stuck to introduce the single regeneration budget. The in my throat, and why I mention this, was the total complexity was such that no one quite understood the failure of the Minister on that occasion even to system so it had to be simplified. That is not flagging acknowledge that there had been an earlier Bill in this up the single regeneration budget rerun for the next House. One of the least attractive characteristics of Queen’s Speech, if there is one. The Minister has the present Administration is that they are determined responded, for which I am grateful, and I beg leave to to give no credit to anybody else at all, even when it is withdraw the amendment. as obvious a case as that. That rankled; it really rankled. As the Minister can understand, I am not a Amendment 51 withdrawn. person who bears grudges on the whole, but that was something that stuck in my throat. Amendments 52 to 55A not moved. So, yes, as the Minister has acknowledged, I am delighted that BIDs have been such a success, but the Government need to reflect on whether simply to take Amendment 55B over somebody else’s legislation almost word for word Moved by Baroness Valentine and introduce it as their own Bill without any acknowledgment is the best way to legislate. 55B: Clause 16, page 12, line 9, at end insert— “( ) Schedule (Amendments to Local Government Act 2003) Lord Bates: I almost wanted to delay rising to allow contains amendments to the Local Government Act 2003 (c. 26) the Minister to respond, but I am happy to give way at applicable in any business improvement district where a BRS is imposed.” any stage if she wishes to do so.

Baroness Andrews: I am happy to put it on the Baroness Valentine: As Amendment 55B is record that I do not think that it is either good politics consequential, I shall focus on Amendment 60A, which or good practice not to acknowledge the origins of is grouped with it, and apologise for its length and some legislation. It is all much better government if complexity. there is clearly consensus of opinion behind what we This amendment provides the ability to broaden the do. I am sorry that it happened in that case. way that business improvement districts are funded by giving BIDs the power to decide whether or not to Lord Jenkin of Roding: I could tell you who it was, include property owners as well as occupiers as but not here. contributors to their funding. I, too, join the Minister in paying tribute to the noble Lord, Lord Jenkin, for Lord Bates: It is nice to see peace breaking out all his work on BIDs legislation. At a time in which over the Committee. In this wonderful, fast-moving businesses will be hit by both BRS and BID levies, world in which we work, I am sure that imitation in these measures will go some way to mitigate the impact the policy process is the sincerest form of flattery. I am by spreading the overall burden of both levies from sure that the Government have spent much of the past occupiers to both occupiers and owners. As the noble three years in Queen’s Speeches, and certainly in their Lord, Lord Bates, and I mentioned at Second Reading, Budgets, flattering Her Majesty’s Loyal Opposition by an occupier will potentially be hit by an uplift in rates, picking up so many of our ideas. an absence of empty property rate relief and the sharp In seeking leave to withdraw the amendment, I effects of revaluation due to the valuation having been should perhaps do so with some optimism, given the taken in April 2008 at the peak of the market. remarks of my noble friend Lord Jenkin of Roding. BRS is but one more levy, and for occupiers who While we are arguing against double charging and on are already funding a BID it seems a reasonable request the need for burdens on business to be released, and of government to reduce the burden by allowing the the Minister is making a valiant defence on why that cost to be spread to owners, a move which most cannot be the case, it may be that in six or 12 months property owners support. After discussion with existing some proposed new legislation called the local levying business improvement districts, the amendment allows tax simplification Bill will be introduced which will for flexibility in both the financing of BIDs to include answer all the points that have not been answered here. owners and/or occupiers, and for flexibility in the way I say sincerely, and not in any churlish way, that that the levy is calculated. efficiency of legislating when things can be dealt with I should like to touch on four areas of detail in the in one place at one time aids the process. Speaking amendment. First, proposed new paragraph 3(5) gives from a business perspective, on taxation matters and two options for the means of calculating a BID levy to so on, businesses hate—yes, paying it, but to a greater be paid by a property owner: the first is the allocated extent—the uncertainty and complexity of the rules. proportion and the second is the allocated multiple. While we converse fluently in the language of business The allocated proportion is where the amount paid is rate supplements, community improvement levies, business divided up as 30 per cent by owners and 70 per cent by improvement districts and growth initiatives, the average occupiers, or whatever proportion is agreed between person out there, who is actually paying, has no clue the two. The allocated multiple is where the calculation about any of them. It is deeply confusing. is based on a multiple of rateable value. These are There is no one with more experience and knowledge complicated proposals and I shall speak later to a of local government finance than my noble friend local authority veto as a last resort to ensure fair and Lord Jenkin, but this was how it went in the 1980s and equitable use of the funding mechanism. GC 557 Business Rate Supplements Bill[18 MAY 2009] Business Rate Supplements Bill GC 558

The second area of detail relates to proposed new “During the consultation process it was also suggested that paragraph 6, which seeks to retain the principle of property owners, as well as rate payers, should be liable for the 50 per cent by value and 50 per cent by number that is levy, and the Select Committee report on the Draft Bill recommend applied to occupiers at the moment. By aggregating that property owners should be included”. and ensuring that the two together, 50 per cent by That was in 2002, so we are going back a long way. value and 50 per cent by number, vote in favour, the The Select Committee in another place said: BID takes place. “We recommend that the Government works with the British The third point of detail relates to the local authority Property Federation and other business organisations to find the best way of involving property owners as contributors to Business veto in proposed new paragraph 7. As a last resort, the Improvement Districts, if necessary amending primary legislation local authority can verify that the arrangements to and certainly covering this point in regulations and guidance”. deal with the allocation are fair and equitable, particularly However, that recommendation did not commend itself in relation to the allocation by multiple under proposed to the Government. When amendments were moved new paragraph 3, which is fairly complex. in the other place proposing that owners should be Proposed new paragraph 10 deals with where a included, the then Minister, Nick Raynsford, for whom leasehold interest may or may not be counted as I have considerable respect, led the charge against ownership. It suggests that if a lease is longer than including owners. seven years, a person should be treated as being a However—surprise, surprise—on this occasion, the property owner. honourable gentleman who moved the amendment in Those are the points of detail that I wished to raise the other place proposing that owners should be included in relation to the amendments. I now wish to make in BIDs was the right honourable Nick Raynsford MP. two specific comments on issues that the amendments There is more joy in heaven over a sinner that repenteth do not capture. First, the amendment deals only with and so on, and it is very good that we now have his BIDs where there is a BRS; it does not deal with BIDs support on this matter. I hope that that augers well for outside BRS areas. This clearly creates a two-tier support from the Government. arrangement for business improvement districts. I believe there is a legal problem with sweeping up BIDs outside The noble Baroness’s amendment may well not be the BRS areas in the Bill and I am in discussion with in the form in which it should finally appear in legislation the Bill Office about that. but that is frequently the fate of those who move amendments. They then wait for government amendments The other issue relates to the passing on of costs to that have the benefit of being drafted by parliamentary tenants. It has been a worry that owners, if billed, will counsel. However, the noble Baroness’s final point is pass on the costs to tenants. In my view, this is not a very important. Because the Bill is concerned with the significant risk. Indeed, where property owners are business rate supplement, the amendment has had to voluntary contributors to BIDs already operating, be drafted, on advice from the Public Bill Office, so that has not been the experience. I do not believe this that it applies only to BIDs where there is a BRS levy. issue needs to be dealt with in the Bill. That gives rise to the astonishing anomaly that, if we Finally, I appreciate that my amendment is complex do indeed agree that owners as well as occupiers but, as I understand it, the principle has cross-party should pay a contribution to a BID levy, it can apply support. Given the pressures on business at the moment, only in areas where a local authority has decided to I urge the Government to support these proposals and put forward a proposal for a business rate supplement. to accommodate the most unusual desire from the BIDs in other areas would affect only occupiers and property community to be taxed. I beg to move. not owners, but that would be wholly illogical. I, too, have had discussions with a helpful gentleman in the Public Bill Office. The reason is not so much the 7pm Long Title of the Bill, but simply the Bill’s general Lord Jenkin of Roding: I support the amendment intention as evidenced by its provisions. It would be and congratulate the noble Baroness, Lady Valentine, inappropriate, and therefore impossible, to have an on having dealt with such a complex subject—the amendment that would cover BIDs that are not in a schedule is indeed a complicated document—so briefly district which was going to have a BRS. When I asked and clearly. I want to add just one or two points. what would be necessary to achieve that, the answer The first is that the pressure for owners to be was that it would probably require an amendment to included within the BID system has existed from the the Long Title of the Bill. I said, “What do we have to beginning. When my Bill, to which I referred in rather do to do that?”, and was told, “We can’t do that in this intemperate terms on the previous amendment, was House. It will have to be done in the other place”. This introduced, we had amendments to do that. The means that there must be a peg in the Bill as it leaves Government made it clear then that they did not really this House and goes back to the other place which approve of that but, as they knew that the Bill would would enable those who wish to support owners being not make any progress in the other place, we got included in BIDs in every area to have an amendment owners included in the final version. When what became to the Long Title. the Local Government Act 2003 was introduced, it I hope that I have made myself clear. This is the sort very wisely went through a pre-legislative committee—the of procedural difficulty that one finds oneself in, with Transport, Local Government and the Regions rules that have grown up over a long period and for Committee—which reported on this issue. The research which I have always felt a great respect. It is therefore paper published by the House of Commons Library for the Government to ensure, when we come to stated: Report or Third Reading, that there is a provision in GC 559 Business Rate Supplements Bill[LORDS] Business Rate Supplements Bill GC 560

[LORD JENKIN OF RODING] has been so ably moved. I am pleased to add my the Bill that would allow the other place to make the support to the amendment, which stands also in my change in the Long Title, as I have suggested. We name. could then have the logical position that, if owners can be included—it is only a power—in a BID, then it could apply to all BIDs and not just those which Baroness Hamwee: We, too, support the amendment. happen to have a business rates supplement applied. I Given the time, and knowing that we are aiming to very much hope that the amendment, or the spirit and finish Committee stage this evening, which imposes a purpose of the amendment, moved by the noble Baroness, perhaps unnatural constraint—I shall not say why—I Lady Valentine, commends itself to the Minister. have three questions. First, as I recall it, the problem with owners coming into the BIDs arrangements was identifying them and arranging to collect money from Lord Bates: I feel as though I have sat through them. I am sure that the noble Lord, Lord Jenkin, who a master class in parliamentary draftsmanship, carries a lot of credit for all this, will remember in consequential detail and research of the history of the more detail than me, but if those problems were Bill. I am immensely grateful for the way in which the identified at the time of the original proposal, I would noble Baroness, Lady Valentine, moved this hideously be interested to know, whether it is from the noble complicated amendment. What is trying to be achieved Baroness, Lady Valentine, or from the Minister, whether now makes perfect sense. the problems have been solved. I cannot ask anything. Perhaps my only function in My second question is just for the noble Baroness, this debate is to give the Minister’s team time to who referred to the double lock. Reading the amendment, concoct great answers to the challenges that have been I wonder whether there should be extra locks so that presented. This is simply a case of perfect logic and the owners and occupiers as one body are satisfied sense. Why should any business engage any tenant of a before they get to the double-lock stage. Perhaps the retail premises in improving its local area? The answer idea was considered and discarded. There are two is that it would increase the footfall into that area and constituents; rather than aggregating them, should potentially enable it to sell more produce and therefore there not be separate processes first? make greater profits. That is the logic. Hitherto, however, an important group of people was exempted from My third question follows the comments of the that: the property owners themselves. If you are renting noble Lord, Lord Jenkin. I had written down “Long out a property at £15 per square foot, and if it is Title and scope of Bill”. At the beginning of a Committee valued at £10 million, to use an illustrative sum, then stage, we postpone the Long Title. I do not understand when the business improvement district is established the procedures as well as I should but postponing it and improvements in the local area take place, you suggests to me that we shall come back to it right at clearly have a more secure tenant. You may find that the end of the Committee stage. Does that give us when you come to re-let or renegotiate, you can increase some help and—no pun intended—some scope? your rent per square foot. In addition, you have a capital value increase because, as the rental values 7.15 pm increase, so the asset’s capital value increases. Baroness Valentine: I will try to pick up some of So it is obvious that, whereas the tenant may only those points. On the information to collect the money benefit in one way—the bottom line in terms of sales—and from owners, I believe that Julie Grail of the business potentially then fall foul of their rent being increased improvement districts organisation—I cannot remember by the landlord in subsequent years, it follows that the the name—said that it is possible to get the information property owner is benefiting most from this on two to collect using local estate agents. There is some counts. Therefore, the fact that they should contribute evidence, to which the Minister might refer. seems to be an omission from earlier drafts of the Bill Aggregate versus separate is a valid question that and should certainly be corrected now, even if it needs can be argued either way. I would probably have a to be done in such a complicated way. strong view if I were to think longer about it; it When the amendment was debated in Committee deserves further reflection. I will not enter into the in the other place on 27 January, at cols. 184-186 of issue of postponing the Long Title. the Official Report, and on Report on 11 March, at cols. 337-338, concern was expressed that there should be no perverse consequences. I took that to mean that Baroness Andrews: I am grateful to everyone who the purpose of the amendment ought to be to ameliorate has spoken in the debate, particularly to the noble the cost of the project; it should be a mechanism not Baroness for moving the amendment. As the noble for increasing the overall take from the business Lord, Lord Jenkin, made clear, it raises complex issues. community but for spreading the burden more widely He took us through some of the most recent and so that some of our concerns about the impact on longer-term history and put forward some challenges, business, which we have mentioned on a number of which he will understand I cannot respond— occasions, may be softened by including property owners in the measure. It would be helpful if we could hear Lord Jenkin of Roding: There is not the time. assurance from Ministers that, should the amendment be acceptable, those guarantees in terms of the overall take and spreading the impact on businesses would be Baroness Andrews: I may have more than enough upheld. Perhaps that should be mentioned in the Bill if time but in terms of the Long Title, it is not so much it is not directly referred to in the amendment which for the Government but for the House itself. If the GC 561 Business Rate Supplements Bill[18 MAY 2009] Business Rate Supplements Bill GC 562 noble Lord will leave that challenge with me, I will Baroness Hamwee: Perhaps I did not catch it but is certainly think about the scope and the issues that it the noble Baroness saying that the Government’s would raise. amendment will extend to all BIDs or only to BIDs in BRS areas? The noble Lord has taken us through the attempts made by Nick Raynsford in the other place to amend the Bill. He proposed that there should be scope to Baroness Andrews: It will extend only to BIDs ballot property owners in BIDs in areas where a BRS where a BRS is in place. is in place. Creating an additional income stream for the BID from the property owners would provide an Lord Jenkin of Roding: As I understand it, the offset for occupiers against their liability and it would noble Baroness also said that she would examine the also overcome the concern of property owners who question of the Long Title. make voluntary contributions that others “free ride” on the benefits that their contributions bring. Baroness Andrews: This is a matter not for the We all agree that BIDs are an important Government but for the House authorities and so on, complementary policy to give local authorities a range to which the noble Lord himself alluded. However, I of choice to support economic development. It will will read the debate properly, and I certainly know come as no surprise to the Committee that we have what has inspired it. Will the noble Lord allow me to been working on proposals to address the issue that think about the matter before we continue our discussions? has been raised by the noble Baroness, Lady Valentine, this afternoon, so I am happy to put on the record that Baroness Valentine: I thank noble Lords for their we will be tabling amendments on Report. We will constructive contributions and look forward to discussing certainly be discussing the nature of the amendments the amendment further. I beg leave to withdraw the with her. amendment. The noble Lord, Lord Bates, asked whether it meant that everyone will get to pay less. If owners are to be Amendment 55B withdrawn. signed up, they must have an interest in the project, so Amendment 56 had been withdrawn from the Marshalled increasing income to fund more owners and focusing List. on better projects has some merit. I will have to write to noble Lords to follow through on some of the issues Clause 16 agreed. that I am addressing, as there is no time to go into sufficient detail. If the noble Lord will leave it with me, Clause 17 agreed. I shall write to him on that as well. Our amendments will propose that when a bid is in Clause 18 : Notice to billing authorities before start of place, those proposing a new BID or the body financial year running an existing BID, can choose whether they Amendment 57 not moved. want to involve property owners. If the BID, body or proposer choose to involve property owners, they can Clause 18 agreed. ballot them. We intend that there should be flexibility so that the BID, body or proposer should be able to decide whether property owners should be balloted at Clause 19 : Notice to billing authorities during the same time as, and as part of the ballot of, financial year other ratepayers, or to hold two separate ballots. Amendment 57A not moved. Clearly, those are issues that we need to discuss and get right. Clause 19 agreed. The level of the property owner BID levy will be Clause 20 agreed. set out in the BID proposal. Where the purpose of the property owner BID is to offset the BRS liability of those also liable for a ratepayer BID, the extent of the Clause 21 : Collection and enforcement offset will be as specified in the BID proposal. We will, wherever possible, replicate for property owners Amendment 58 the arrangements that currently exist for ratepayer Moved by Baroness Hamwee BIDs. However, when certain details are specific to property owner BIDs, we propose to deal with these 58: Clause 21, page 14, line 19, leave out “prescribed” and in regulations. insert “reasonably determined by the levying authority” I shall write to noble Lords following up this debate, Baroness Hamwee: I shall speak also to Amendments as I am leaving out quite a lot of detail due to our 61A and 61C. Amendment 58 relates to the abandonment having three more groups with which to deal. When I of a project and to collection and enforcement in that write, I shall certainly address some of those issues situation. I seek to take out the provision that the and I shall also give the Government’s view on the Secretary of State may prescribe the date when the matters raised by the noble Baroness, Lady Hamwee, BRS is treated as having come to an end. I believe that which she addressed to the noble Baroness, Lady that should be a matter for local authority discretion, Valentine. I hope that with that rather brief summary, and my amendment simply asks the Minister to justify noble Lords will be content. the Secretary of State’s role. GC 563 Business Rate Supplements Bill[LORDS] Business Rate Supplements Bill GC 564

[BARONESS HAMWEE] Perfectly pragmatically, we think that only a party Amendment 61A is an amendment to Schedule 2 outside the levying authority would have that degree and was prompted by the Minister’s letter following of impartiality and would be seen to be acting impartially. the first day of Committee. The letter, for which I If we left the decision with the levying authority, it thank her very much, dealt with BRS refunds. At would put it in a vulnerable position because, unless it 4.56 pm on Thursday, having just received the letter, I decided to stop collecting the BRS the day the project dictated this little amendment. I am sure that it is not was abandoned—and I cannot see that that would very good but it gives me the scope to ask whether happen—it could be open to claims that it was acting there can be, as she seemed to imply, no circumstances dishonourably. That is why we have made provisions where a refund is desirable or proper before the end of for a BRS to be collected and enforced beyond the a project. abandonment of a project. It allows for the decision to When we debated refunds on the previous Committee be made in a way that would not leave the levying day, I was aware that there are provisions for refunds authority open to allegations of unfair play. That is at the end of a project. However, it has occurred to me why the Bill gives the Secretary of State the power to that there might be circumstances where a refund is specify this in regulations. appropriate part-way through a project—for example, if there is a bit of stop-go. I may be told that the right 7.30 pm thing there will be to vary the amount of the BRS in a Amendment 61A, on refunds, broadens the provisions subsequent year. in paragraph 3(1) of Schedule 2 to the Bill, which I do not know whether paragraph 3(1)(a) of Schedule 2 deals with refunds where a BRS has ended and the relates to the BRS for a particular year or to the BRS BRS revenue account is in credit. The amendment coming to an end. I am not clear what that means. It would allow the Secretary of State to make regulations does not seem a natural reading to relate it to a governing refunds in general, including in cases where particular year within a number of years. a BRS has not come to an end. Finally, as regards Amendment 61C, if I have read I absolutely understand that there needs to be clarity Clause 24(7) correctly, the cancellation does not apply in terms of how refunds should be handled, including where a BRS has come to an end. Does that mean that in cases of overpayment. The amendment is, however, if the Secretary of State cancels the BRS at a particular covered by Clause 21, which already makes provision date, a rate payer who has failed to pay the BRS due for the Secretary of State to make regulations governing before that date is able to avoid paying? I hope that is a refunds of BRS. Clause 21(2)(a) makes provision for clear question even if my introduction to the amendment the Secretary of State to make regulations in respect was a little garbled. Clause 24(7) reads to me as of refunds in those cases where a ratepayer has overpaid though it might be possible to avoid enforcement during the course of the BRS. That is achieved by simply because the BRS has ended. I beg to move. reference to the Local Government Act 1988. The noble Baroness’s precise question was whether this Lord Bates: We do not have a particularly strong covers arrangements during the course of the BRS. I view on Amendments 58 and 61C. I am sure they are understand that it does. I hope that that will help. worthy, but we do not have a firm view on them. Amendment 61A seeks to ensure that the Secretary of Amendment 61C would allow a levying authority State might give refunds or credits. Clearly, we wholly to continue collecting or recovering the BRS even if it support that as it is consistent with our approach to had been cancelled by the Secretary of State. The Bill the Bill. In many projects which have begun recently, provides that the collection and recovery should cease the costs of raw materials such as steel fabrication and if a BRS is cancelled by the Secretary of State. As we so on have declined dramatically, as have the costs of have just debated, the Secretary of State will intervene labour in certain parts of the country as people are only as a last resort—for example, when the levying eager to find work. It is important that, where a authority has used the supplement for a different project comes in under budget thanks to good purpose than was set out in the prospectus and has management, there is the flexibility to refund the not met the requirements set out for variations in money whence it came. We are very supportive of Clause 10. Amendment 61A. I absolutely agree that it would not be right to ask local businesses to continue paying the BRS for a Baroness Andrews: Amendment 58 would potentially project that has gone so wrong. It is right that all allow the levying authority to determine when to stop attempts to collect the BRS in such circumstances collecting and enforcing a BRS for a project it had should cease. As I remember it, that is the answer to abandoned. The reason we do not think the amendment the noble Baroness’s question; in other words, yes. I is appropriate is not because we do not think levying hope that I have remembered the question correctly authorities would behave honourably but because it and that the answer is, indeed, “yes”. With that, I hope assumes circumstances where relationships and projects that the noble Baroness will withdraw her amendment. have collapsed and a fair degree of chaos obtains because things have not worked out as they were supposed to. Under those circumstances, it is important Baroness Hamwee: I cannot quite remember how I to avoid the potential for people to claim that the framed the question. I am not sure whether I was levying authority is acting in a prejudicial or unfair expecting the answer “yes” or the answer “no”, for the way. If things have gone that sour, those who are classicists among us. I will have to go back and read paying the supplement have to have confidence that that. My concern was essentially about evasion, so if the BRS will cease as soon as possible. the answer is “yes” it might be a bad one. GC 565 Business Rate Supplements Bill[18 MAY 2009] Business Rate Supplements Bill GC 566

I note what the Minister says about Amendment 58. enforcement of BRS, including the costs of collection. I am still not sure that Amendment 61A, on the It also floats different options for calculating the costs refunds, has got to the point that the noble Lord, Lord of collection. Bates, and I seek. The answer was framed in terms of It is right that billing authorities should be able to overpayment. It is a pretty technical point, even though cover the legitimate costs that they incur in collecting it might seem to be an entirely common-sense one to and enforcing payment of BRS; we are agreed on that. the ratepayers. In my mind, the BRS is not the same But it is equally important that such costs should be sort of animal as national non-domestic rates for this proportionate to the amount of BRS collected. Those purpose. It deals with a particular project, which may businesses that will be paying the supplement will speed up, slow down, or change a bit and so on. I can accept that there are administrative overheads associated therefore see that there could be circumstances where with any project; but those costs must be reasonable. a refund would be appropriate for BRS, but which Sums must not be diverted away from the project into would be completely inappropriate—simply nowhere collection costs. That is why we have framed the powers near to applying—for the NNDR. Again, it might be in Clause 22 in the way we have. It means that there is useful to discuss this after this stage. I beg leave to provision for reimbursing billing authorities their legitimate withdraw the amendment. costs, which should reassure business. The consultation document invites views on Amendment 58 withdrawn. whether these costs should be a fixed percentage of the annual total amount of BRS to be collected, or Clause 21 agreed. whether this should be a fixed amount. A third option is whether this is something that should be agreed Clause 22 : Administrative expenses locally between the levying authority and the billing authority, subject to an upper limit to provide reassurance for business. Amendment 59 The three-month consultation period will give Moved by Baroness Hamwee stakeholders the opportunity to express their views on 59: Clause 22, page 14, line 26, after “incurs” insert (“including these options or to come forward with alternative expenses incurred in preparation for collection or recovery)” ways of addressing this issue or, indeed, any of the proposed arrangements for administering BRS. I reassure Baroness Hamwee: We are speeding up to finish this the noble Baroness that our intention, subject to the before the witching hour of 7.45 pm. Amendment 59 outcome of the consultation, is that a billing authority would provide for expenses incurred in preparation for should be able to recover the reasonable costs incurred collection or recovery of the BRS to be recovered in preparing for, collecting and enforcing BRS. I hope, under Clause 22. Amendment 60 would take out the with that on the record and with the consultation subsection about the administrative expenses to be period about to begin, that the noble Baroness can rest paid by the levying authority not exceeding the amount assured that a good solution will be found. prescribed in regulations. On that second point, I would have thought it should be the actual amount Baroness Hamwee: Of course, I tabled these that is borne by the levying authority. amendments before the consultation document was Generally, I do not believe that the billing authorities published. This may not be a good, liberal attitude should be out of pocket. That point has been made in but, on an issue that would not be subject to consultation, particular by London Councils, and it applies more the billing authority should not be stuck with costs broadly. In London, there is a particular point, in that that are essentially imposed upon it by the decisions of it will be the first area to have a BRS and it will play a the levying authority. However, I will think about pathfinder role. It will have set-up costs, software what the noble Baroness has said, and I beg leave to upgrades and so on, which will benefit those who withdraw the amendment. follow after. Those additional costs incurred by the boroughs should be recognised and the costs repaid. Amendment 59 withdrawn. London Councils made the quite proper points that these matters should be in the Bill and not in regulations, Amendment 60 not moved. which are relatively easily changed, and that the recovery of costs is a point of principle. I beg to move. Clause 22 agreed. Baroness Andrews: I hope that I can satisfy the Clause 23 agreed. noble Baroness on this point. Amendment 59 would enable billing authorities to be able to recover the costs that they incur in preparing for the collection Amendment 60A not moved. and recovery of BRS. Amendment 60 would remove the power for the Secretary of State to set a cap on the amount to be paid by levying authorities. Schedule 2 : Accounting We have issued the consultation paper with our proposals for secondary legislation that will be needed Amendments 61 and 61A not moved. to enable BRS to be levied. The consultation paper covers the arrangements for the collection and Schedule 2 agreed. GC 567 Business Rate Supplements Bill[LORDS] Business Rate Supplements Bill GC 568

Clause 24 : Power to cancel a BRS As the amendment is phrased, I can almost hear a collective sigh of, “Well, of course there could be no Amendments 61B and 61C not moved. instance where there was no fault; there would be no retrospective element to a business rates supplement”. Clause 24 agreed. However, I am afraid that we have precedent in the taxes on ports which were levied retrospectively. In Clauses 25 and 26 agreed. May 2006, the Valuation Office Agency undertook a revaluation of 55 statutory ports in England and Wales. It concluded in 2008 that there was a case for Clause 27 : Special introductory provision revaluation of those single businesses and then decided to backdate it to 2005. The effect was to fling many viable businesses into severe difficulty at this critical Amendment 62 time. In fact, a number of them have been forced into Moved by Baroness Valentine insolvency. Technically, although they have longer to pay off the arrears—they can do so over eight years—this 62: Clause 27, page 17, line 4, at end insert— has meant that the effect of those arrears must be held “(1A) The requirements under section 7(1) or 10(7) to hold a on their balance sheets. ballot do not apply in relation to a BRS imposed by the Greater London Authority for the purpose of raising money for expenditure The Treasury Select Committee has looked into this on a project where— and has argued that there should be no retrospection (a) the project begins before the commencement of section on this particular tax. It was debated, as I am sure the 1; and Minister recalls, on the Floor of the House on 18 March. (b) the chargeable period of the BRS begins on or before 1st There, the Government were defeated by 77 votes April 2011. to 69, if my memory serves me correctly. Therefore, (1B) Where a BRS is, or is proposed to be, varied, the there was a moral case for tackling this iniquitous tax, reference in subsection (1A) to the BRS includes a reference to which is placing so many businesses in difficulty at the BRS as varied or proposed to be varied.” present. The point of tabling the amendment at this stage is simply to say that it is unthinkable that there Amendment 62 agreed. would be circumstances where the events suggested in the amendment would give rise to a charge on the Clause 27, as amended, agreed. taxpayer. Therefore, in the interests of consistency, the Government should extend the spirit of joy and generosity which has broken out here in the Moses Room to these Clause 28 agreed. needy businesses which have not been at fault but have been clobbered with this retrospective tax of £124 million. Clause 29 : Regulations etc I beg to move.

Amendments 63 to 66A not moved. 7.45 pm Baroness Hamwee: The noble Lord and the Amendment 67 Minister will not be surprised to hear that we support the amendment. It has just occurred to me that it is Moved by Lord Bates not logical that this amendment is allowed to be 67: Clause 29, page 19, line 2, at end insert— tabled when a more extensive amendment about BIDs “( ) For the avoidance of doubt it is hereby declared that outside BRS areas is not. I do not see the distinction, Regulation 14(6) of the Non-Domestic Rating (Alteration of although I do not expect the Minister to respond Lists and Appeals) (England) Regulations 2005 (which provides to that. that the alterations made to correct inaccuracies in local rating lists shall have effect from the day on which alteration is made) shall apply to any lists affecting the liability to pay BRS; and Baroness Andrews: I am afraid that the joy will now where such an alteration affecting liability to pay BRS is made, it be confined because, much as I would like to cave in shall in no case have retrospective effect without error or default completely and agree to the noble Lord’s amendment, on the part of a ratepayer.” I am afraid that I cannot do so. However, I know why he has raised the question of the ports. We had a long Lord Bates: I am conscious of the time and the and, I believe, thorough and honourable debate on sheer joy that overcame the Committee as we heard what had happened regarding ports, and I shall not the government Front Bench concede an amendment. reiterate any of that here. The noble Lord has put his That has been a rare treat and worth sitting through views on the record and I completely respect that. We four hours for. We appreciate it. did what we could within the law, although I do not I say at the start, in case people are getting a little think that “generously” is a word that he would agitated, that I do not intend to speak to the amendment accept. for more than a couple of minutes or delay the Committee With this group of amendments we come up against further. However, I want to raise an important point. the fact that BRS, as we have said throughout this The two amendments in this group would alter the debate, builds on the non-domestic rating system. In legislation to say that, where an alteration is made due particular, liability to BRS, and the level of liability, to an error which is not the fault of the ratepayer, will be based on the rating list entry for any given there shall be no retrospective effect. property. Rating lists can be changed by valuation GC 569 Business Rate Supplements Bill[18 MAY 2009] Business Rate Supplements Bill GC 570 officers to ensure accuracy and therefore the accuracy Lord Bates: I cannot say that I am grateful for that of rates liability. Sometimes this can lead to backdated response, as obviously I am not. Perhaps I am more increases in rates liability and sometimes also to reduced grateful that I was allowed to table the amendment, liability. given the comment of the noble Baroness, Lady Hamwee, who is expert in these matters. I can say only that the However, the point is that, in the context of the points have been made and the comments are on the practicalities involved in ascertaining the need for record, and we will hope that the authorities which changes to a rating list and then establishing what were gracious and charitable enough to allow this change is required, backdating has been an essential amendment to be tabled in Committee might be so and, frankly, a fair part of the normal functioning of inclined when it comes back on Report. I beg leave to the rating system. It ensures consistency and fairness withdraw the amendment. between ratepayers, and it should carry through into the BRS system. I believe it is only right that we Amendment 67 withdrawn. maintain this consistency; otherwise, businesses occupying properties of the same rateable values will be liable for Amendment 68 not moved. different BRS bills. It would be unfair to businesses that had been paying the correct supplement if others Clause 29 agreed. had been paying smaller BRS bills. Therefore, much as I would like to continue the Clauses 30 to 32 agreed. spirit of co-operation, I am afraid that I cannot do so, but I appreciate that it is not inappropriate to end Bill reported with amendments. this Committee stage on an issue of substantial interest. Committee adjourned at 7.50 pm.

WS 107 Written Statements[18 MAY 2009] Written Statements WS 108

to achieve taking one year with another, a 3.5 per Written Statements cent average rate of return based on the operating surplus expressed as a percentage of average net Monday 18 May 2009 assets; and to pay invoices within 10 days.

Companies House: Targets Statement Correction to Commons Written Answer Statement

The Minister of State, Department for Business, The Parliamentary Under-Secretary of State, Enterprise and Regulatory Reform & Foreign and Department of Health (Lord Darzi of Denham): My Commonwealth Office (Lord Davies of Abersoch): My honourable friend the Parliamentary Under-Secretary honourable friend the Parliamentary Under-Secretary of State, Department of Health (Ann Keen) has made for Economic and Business (Ian Pearson) has made the following Written Ministerial Statement. the following Written Ministerial Statement. I regret that the Written Answer given to the honourable I have set Companies House the following targets Member for Halton on 30 March (Official Report, for the year 2009-10: col. 896W) was incorrect. Customer Data provided were not validated and this did not to achieve a score of more than 86 per cent in each come to light until queries were raised about data for a quarterly Companies House customer satisfaction subsequent Question. In addition, it is worth noting survey; that Wakefield sits outside the North West catchment to achieve on average a monthly compliance rate area and should not have been included in the previous for accounts submitted of 95.3 per cent; table. to achieve an electronic filing target for accounts of The correct information is given in the following 20 per cent; table. to achieve an electronic filing target for other Table: The number of severe/complex burn cases treated by each burn centre in the North West in each year since 20031 transactions of 67 per cent; North to ensure that 95 per cent of electronic documents West Catchment can be accessed within 60 seconds by search customers Area 2003 2004 2005 2006 2007 2008 Total from the Companies House Direct download area; to resolve 97 per cent of all complaints within five Paediatrics days; and Manchester 10 5 7 8 12 13 55 Liverpool 35323521 the chief executive to reply within 10 days to all Preston0000000 letters from members of Parliament delegated to Paediatrics 13 10 10 10 15 18 76 him to reply. total Process Adults Manchester 9 10 13 16 16 19 83 to ensure that 95 per cent of electronic transactions Liverpool 7 5 8 11 10 15 56 received are available to view on the public record Preston0000000 within 72 hours; Adult 16 15 21 27 26 34 139 to ensure that 95 per cent of paper transactions total received are available to view on the public record Uncoded 11 2 within eight days; data NW total 66 25 31 37 41 52 216 to ensure that 99.5 per cent of images placed on the Companies House image system are legible and Source: The National Burn Injury Database (NBID) was established in complete; and 2003 and had no data available before this time. to ensure that Companies House Direct, WebCheck 1: Data do not include readmissions. and WebFiling are available for 99 per cent of the 2: Uncoded for paediatric or adult case. time between the hours of 7 am and midnight. People to ensure that our average work days lost per person Government Contracts are no more than 10; and Statement to improve the operational energy efficiency rating of Companies House’s headquarters building by 10 per cent. The Parliamentary Under-Secretary of State, Ministry Finance of Defence (Baroness Taylor of Bolton): My honourable to achieve by 2010-11 a reduction, in real terms, of friend the Parliamentary Under-Secretary of State and 15 per cent compared to 2007-08 in the operational Minister for Defence Equipment and Support (Quentin monetary cost of the registry per company on the Davies) has made the following Written Ministerial register (three-year target); Statement. WS 109 Written Statements[LORDS] Written Statements WS 110

The Government have accepted the findings of the The House of Commons Health Select Committee Review Board for Government Contracts as detailed published its report on health inequalities on 15 March in its report of the 2009 annual review of the profit 2009. The government response to this report (Cm 7621) formula for non-competitive government contracts. has been laid before Parliament today. The board’s recommendations will be implemented in accordance with arrangements subsequently agreed The government response welcomes the committee’s with the industry side and recorded in an addendum support for its work on health inequalities. Cross- to the published report. I will be placing a copy of government action on health inequalities has helped the report in the Library of the House. The contribute to major improvements in the health of the recommendations will be implemented for new people in disadvantaged groups and areas over the past non-competitive work with effect from 1 June 2009. 10 years. The Government also welcome the committee’s support for the health inequalities target, for the post-2010 strategic review of health inequalities announced on Health: Inequalities 6 November 2008, and for the practical suggestions Statement contained in the report.

The Parliamentary Under-Secretary of State, The Government have used the experience of the Department of Health (Lord Darzi of Denham): My past 10 years to shape their approach to the health right honourable friend the Secretary of State for inequalities agenda and develop practical, evidence-based Health (Alan Johnson) has made the following Written programmes and policies. We are committed to continue Ministerial Statement. this work. WA 243 Written Answers[18 MAY 2009] Written Answers WA 244 Written Answers Bahrain: Human Rights Question Monday 18 May 2009 Asked by Lord Avebury To ask Her Majesty’s Government what human Africa: Ilemi Triangle rights issues were raised during the visit by the Question Minister of State at the Foreign and Commonwealth Office, Bill Rammell, to Bahrain in April; what Asked by Lord Alton of Liverpool explanation was given to the Minister for (a) the detention of 26 human rights activists; (b) stopping To ask Her Majesty’s Government what discussions human rights campaigners from leaving the country; they have had with the authorities in southern (c) the blockage of human rights blogs and websites; Sudan, Kenya and Ethiopia about resolving the (d) discrimination against Shia citizens; and disputed borders of the Ilemi Triangle; and what (e) granting citizenship to large numbers of foreign assessment they have made of the chance of conflict Sunnis. [HL3213] in the area arising from competition for natural resources, the discovery of oil, and from inter-ethnic conflicts. [HL3552] The Minister of State, Foreign and Commonwealth Office (Lord Malloch-Brown): During meetings with the Bahraini Government my honourable friend the The Minister of State, Foreign and Commonwealth Minister of State for Foreign Affairs, Bill Rammell, Office (Lord Malloch-Brown): No discussions have welcomed the King’s decision to release 178 prisoners taken place with the authorities in southern Sudan, and call for a renewed national dialogue in Bahrain. Kenya and Ethiopia about resolving the disputed borders While the specific issues raised were not addressed of the Ilemi Triangle. No recent assessments have been during this visit, our embassy in Bahrain maintains an made by the Foreign and Commonwealth Office about ongoing dialogue with the Bahraini authorities on the chance of conflict in the area arising from competition human rights issues. This dialogue includes discussion for natural resources, the discovery of oil or from of specific human rights cases. inter-ethnic conflicts.

Africa: Malaria Banking Question Questions Asked by The Earl of Sandwich Asked by Lord Laird To ask Her Majesty’s Government what research they have carried out into any negative effects of To ask Her Majesty’s Government in what form the United Kingdom’s anti-malaria programmes in and when they received the depositions of (a) Northern Africa on local production of, and trade in, mosquito Rock, (b) Dunfermline Building Society, and (c) the nets. [HL3403] Presbyterian Mutual Society. [HL3145]

Lord Tunnicliffe: Long-lasting insecticide impregnated The Financial Services Secretary to the Treasury bed nets are a key part of efforts to reduce malaria. (Lord Myners): I am not aware of any depositions Monitoring local production and markets is important. made to the Government by Northern Rock, Dunfermline The Department for International Development Building Society or the Presbyterian Mutual Society (DfID) supported programmes in Nigeria and nor am I aware of the form such depositions would Mozambique, managed by the Malaria Consortium, take. to monitor the source of nets. This helps track changes With regard to Northern Rock, after taking all the in the size and production of the net market from local wider considerations into account, the Government suppliers. These programmes are working closely with concluded that private sector alternatives did not protect local distribution networks to understand how best to the taxpayer’s interest when compared with a period foster local markets. Mozambique now has good data of temporary public ownership. from research over three years, which are currently being analysed. There appears to be no evidence that The Government and the Bank of England took DfID support has undermined local net production, action in respect of Dunfermline Building Society rather the contrary, as it is actually creating and expanding after the Financial Services Authority had ruled that it the market. Social marketing and communication activities was no longer capable of trading as a going concern. are promoting long-lasting insecticide treated nets, The affairs of Presbyterian Mutual Society (PMS) which are much more effective than cheap, imported are a devolved matter for the Northern Ireland Executive; and low quality untreated nets, thereby helping to the society is now in administration. ensure that the market is more quality conscious. Asked by Lord Monson In Ghana, DfID has supported the London School of Hygiene and Tropical Medicine to conduct research To ask Her Majesty’s Government what percentage with a voucher scheme in collaboration with private of individuals whose taxable annual income exceeds sector sellers, to promote the local trade of insecticide (a) £100,000 or (b) £150,000 are employed in banking treated nets. or other financial services. [HL3323] WA 245 Written Answers[LORDS] Written Answers WA 246

Lord Myners: Around one in five people with incomes We do acknowledge the need to implement the exceeding £100,000 are employed in the finance judgment in a timely manner but we also recognise intermediation industrial sector. The proportion rises the over-riding importance of introducing a proportionate to one in four for those with incomes exceeding £150,000. response which has been subject to wide public debate These estimates are based on the Survey of Personal as well as consideration by Parliament. That is why on Incomes for 2006-07 projected to 2010-11 in line with the 7 May 2009 the Home Secretary launched the Budget 2009 assumptions. They do not take account public consultation “Keeping the Right People on of behaviour or changes to the pattern of employment the DNA Database”. The consultation paper sets out by industry sector since 2006-07. the Government’s proposals to implement the S and Marper judgment and the proposed framework to ensure public protection and safeguard the rights of Banking: Loan Guarantee Scheme the individual. Question The responses from the consultation will assist in Asked by Lord Barnett the forming of draft regulations to be submitted to Parliament for approval later this year. Until Parliament To ask Her Majesty’s Government how much has amended the Police and Criminal Evidence Act 1984 has been spent in the current financial year under on the retention of DNA and fingerprints, the current the small firms loan guarantee scheme; and what is law remains in place. the proportion of the guarantees available under the scheme. [HL2160] Individuals who wish to have their DNA samples and fingerprints destroyed can apply to the chief police The Parliamentary Under-Secretary of State, officer of the force which took the samples and fingerprints Department for Business, Enterprise and Regulatory for them to be removed under the exceptional case Reform & Cabinet Office (Baroness Vadera): During procedure. The decision whether or not to agree to the FY 2008-09, Her Majesty’s Government have spent request for removal is a matter for the discretion of £84.6 million on the small firms loan guarantee (SFLG). the relevant chief police officer. The Government guarantee under SFLG is 75 per cent of the value of the loan. Care Services SFLG was replaced by the enterprise finance guarantee Questions (EFG) on 14 January 2009. Asked by Lord Ashley of Stoke Biometric Data To ask Her Majesty’s Government whether they Question will grade all employers of social care workers and publish their results. [HL3392] Asked by Lord Avebury To ask Her Majesty’s Government whether, apart The Parliamentary Under-Secretary of State, from the destruction of the fingerprints and DNA Department of Health (Lord Darzi of Denham): The samples of the applicants in the case of S and regulation of adult social care providers is now the Marper v United Kingdom, as reported to the responsibility of the new independent regulator, the Care Committee of Ministers of the Council of Europe Quality Commission, which took over from the (1051st meeting (DH), 17–19 March 2009), in respect Commission for Social Care Inspection, the Healthcare of how many other persons whose DNA and Commission and the Mental Health Act Commission fingerprints were taken before the judgment in this on 1 April 2009. All providers of regulated health and case have the samples been destroyed and retained adult social care services must be registered with the respectively, and what algorithm they are now following, Care Quality Commission. in determining whether to retain or destroy samples The Commission for Social Care Inspection published taken after the judgment. [HL2893] quality ratings of adult social care providers and the Care Quality Commission will continue to do so. The Parliamentary Under-Secretary of State, Home Office (Lord West of Spithead): Other than the relevant Asked by Lord Ashley of Stoke fingerprints and DNA samples belonging to S and Marper, no fingerprints or DNA samples have been To ask Her Majesty’s Government what destroyed as a result of the judgment of the European qualifications are required for a person to be employed Court of Human Rights (ECHR) in the case of S and as a carer. [HL3559] Marper v United Kingdom. Article 41 of the Convention for the Protection of Lord Darzi of Denham: The Domiciliary Care Agencies Human Rights and Fundamental Freedoms provides Regulations 2002 and associated national minimum that if the court finds that a violation has occurred, standards (NMS) set out the qualifications required of just satisfaction must be made to the injured party. staff who are employed to care for people in their own The application of the judgment to others in similar homes. situations must be considered in the light of the full The regulations require that all care workers must content of the judgment. The judgment does provide have integrity and be of good character, have the for the member state to consider the scope for achieving experience and skills necessary and be physically and a proper balance with the competing interests of tackling mentally fit for the purposes of the work which they crime and preserving respect for private life. are to perform. WA 247 Written Answers[18 MAY 2009] Written Answers WA 248

The NMS for Domiciliary Care Agencies require Change4Life is a new initiative, supported by the that care or support workers delivering personal care department, bringing together health and education who do not already hold a relevant care qualification professionals, industry and the third sector with the are required to demonstrate their competence and shared aims to improve children’s diets and levels of register for the relevant NVQ in care award—either activity so reducing the threat to their future health National Vocational Qualification in Care level 2 or and happiness. level 3—within the first six months of employment New growth charts have been launched and training and complete the full award within three years. packages and tools have been developed to help The regulations stipulate that agencies should ensure professionals identify weight issues. that employees receive training and appraisal which Primary care trusts have a local responsibility to are appropriate to the work they are to perform, ensure staff are trained around local priorities such as together with suitable assistance, including time off, childhood obesity. for the purpose of obtaining qualifications appropriate to such work. Children: Poverty Children: Nutrition Question Questions Asked by Lord Ouseley Asked by Baroness Cumberlege To ask Her Majesty’s Government what initiatives To ask Her Majesty’s Government what measures they propose to realise the target of reducing the they are taking to provide parents with nutritional level of child poverty by half by 2010; and what guidance for one- to three-year-olds, in light of the initiatives have been successful in the past 10 years 2009 Infant and Toddler Forum poll of 1,000 mothers in reducing child poverty. [HL3590] in which 43 per cent of mothers say they have not received clear and consistent advice on feeding the The Parliamentary Under-Secretary of State, under-threes. [HL3497] Department for Children, Schools and Families (Baroness Morgan of Drefelin): Since 1998-99, 500,000 children The Parliamentary Under-Secretary of State, have been lifted out of relative poverty and the number Department of Health (Lord Darzi of Denham): The of children in absolute poverty has halved from 3.4 to Healthy Child Programme (Child Health Promotion 1.7 million. Government measures announced since Programme) is the core programme that oversees the Budget 2007 will lift around a further 500,000 children health and development of children aged 0-5 years from relative poverty. and supports parents to protect and promote their The causes and consequences of child poverty are child’s health. The programme provides for a number multiple and complex. Tackling child poverty requires of development reviews at which health professionals a holistic, sustainable strategy: work that pays; responsive are expected to discuss the child’s nutrition needs from financial support; improvements in children’s life chances; breastfeeding onwards. As announced in Healthy Weight, and safe, cohesive communities. Healthy Lives: One Year On we will provide additional guidance to practitioners and the National Health Service on the review when the child is 2 to 2½ years Communications Data old, including recommendations on promoting healthy Question nutrition and physical development, and that we will support children in the important early years of their Asked by Baroness Miller of Chilthorne Domer development through a single set of evidence-based messages on healthy eating and active play. To ask Her Majesty’s Government what assessment they have made of the (a) processing capacity, Asked by Baroness Cumberlege (b) energy, and (c) storage capacity that would be To ask Her Majesty’s Government what training required to implement the collection and storage by exists for health and childcare professionals (HCPs) communications service providers of third party on child nutrition for one- to three-year-olds, in data crossing their networks, as proposed in the light of the Department of Health’s Child Health consultation on Protecting the Public in a Changing Promotion Programme stating that advice and Communications Environment. [HL3422] information on family nutrition should be given by HCPs. [HL3498] The Parliamentary Under-Secretary of State, Home Office (Lord West of Spithead): Analysis has been Lord Darzi of Denham: The core training of health undertaken of the processing capacity, energy requirements visitors is around child health and includes food and and storage capacity of the options set out in the nutrition. consultation on Protecting the Public in a Changing As part of the Healthy Child programme (HCP), Communications Environment. Making this analysis formerly the Child Health Promotion Programme public would allow criminals and terrorists to understand (CHPP), we are developing an e-learning programme better the current and possible future capability available to support professionals with their professional to the UK’s law enforcement, security and intelligence development. As part of this, we are looking at modules agencies to obtain communications data in support of that are likely to include health and nutrition. their statutory functions. WA 249 Written Answers[LORDS] Written Answers WA 250

Crime: Suspicious Activity Reports prompting the involvement of the State Security forces Question to demolish the extension. There are differing reports on the level of force used and we are still trying to Asked by Lord Marlesford verify the facts. We do understand, however, that the owner gifted the building to the Coptic Church only To ask Her Majesty’s Government how many after the demolition of the extension. names are on the suspicious activity reports database We actively raise human rights including the freedom of the Serious Organised Crime Agency. [HL3208] of religion with the Egyptian authorities and remind them of their international obligations whenever The Parliamentary Under-Secretary of State, Home appropriate. Office (Lord West of Spithead): The Serious Organised Crime Agency’s database, known as ELMER, on which suspicious activity reports are recorded, does Embryology not have the capability to provide the information Questions sought. Data on the volumes of SARs received, including Asked by Lord Alton of Liverpool by sector, are available in the Suspicious Activity Reports To ask Her Majesty’s Government further to the Regime Report 2008 on the SOCA website. Written Answer by Lord Darzi of Denham on 6May(WA 117), whether the Horizon Scanning Data Entry: Error Rates Panel of the Human Fertilisation and Embryology Authority (HFEA) ensures that the HFEA is aware Question of potential licence applications and is prepared Asked by Lord Taylor of Holbeach with an authority policy or position, as currently stated on the HFEA website. [HL3484] To ask Her Majesty’s Government further to the Written Answer by Lord Carter of Barnes on 31 March (WA 220), what is the highest error rate allowed for The Parliamentary Under-Secretary of State, data entry in the Department for Business, Enterprise Department of Health (Lord Darzi of Denham): The and Regulatory Reform; which system employs it; Human Fertilisation and Embryology Authority (HFEA) how frequently results are checked against it; and has advised me that its Horizon Scanning Panel is what proportion of checks show that the standard aware of potential licence applications and informs the authority accordingly. has not been met. [HL3165] The latest horizon scanning report can be found on the HFEA’s website at www.hfea.gov.uk/157.html. The Parliamentary Under-Secretary of State for Communications, Technology and Broadcasting (Lord Asked by Lord Alton of Liverpool Carter of Barnes): The department does not employ large volume data entry processing systems. Its IT To ask Her Majesty’s Government further to the services and systems have been outsourced. The Written Answer by Lord Darzi of Denham on department’s office automation, finance and HR corporate 6May(WA 117), in what circumstances a licence systems are designed to make use of appropriate field application might be viewed more favourably when validations to help ensure data quality. These validation under consideration by the Human Fertilisation techniques include data type restrictions, table look and Embryology Authority than when submitted to ups, check balances and limits, check digit formulas as a research council for funding. [HL3485] well as system specific data and processing checks. Lord Darzi of Denham: The Human Fertilisation and Embryology Authority (HFEA) has advised me Egypt that it cannot comment on a research council’s criteria Question for awarding funding to research projects. Asked by Baroness Cox The HFEA may issue a research licence only for the purposes outlined in the Human Fertilisation and To ask Her Majesty’s Government whether they Embryology Act 1990, as amended by the Human will make representations to the Government of Fertilisation and Embryology (Research Purposes) Egypt about reports that their state security forces Regulations 2001. A licence committee of the HFEA demolished the services building belonging to the would refuse a research licence application if it was Coptic Orthodox Diocese of Masrah Matrouh, not satisfied that the proposed research was necessary assaulting the Coptic priests and Coptic women or desirable for one of the prescribed purposes and and men, on 26 April at 7.30 am. [HL3479] that the use of an embryo was necessary. Asked by Lord Alton of Liverpool The Minister of State, Foreign and Commonwealth Office (Lord Malloch-Brown): The facts of this case To ask Her Majesty’s Government further to the are not totally clear. We understand from informal Written Answer by Lord Darzi of Denham on contacts, however, that the building in question was 6May(WA 117), whether the Human Fertilisation privately owned by an Egyptian Coptic Christian. A and Embryology Authority would decline to grant second storey had apparently been added illegally a potential licence or would revoke a current licence WA 251 Written Answers[18 MAY 2009] Written Answers WA 252

if the ultimate aims of a potential or current licensee’s committed to meeting their share of the EU renewables work included any use of nuclear transfer in directive target of 15 per cent of total UK energy reproduction, or if the project would not derive being sourced from renewables by 2020. stem cells for use in treatments. [HL3486] Following a consultation over summer 2008, we will publish a new UK renewable energy strategy later Lord Darzi of Denham: The Human Fertilisation this spring. This will set out a package of measures to and Embryology Authority has informed me that the meet the UK’s share of the 2020 target. granting or revocation of a licence would be considered We understand Vestas’ announcement primarily with reference to the requirements of the Human concerns production facilities that supplied blades for Fertilisation and Embryology Act 1990, as amended export to the US onshore wind turbine market. There by the Human Fertilisation and Embryology (Research are a number of suppliers active in the UK onshore Purposes) Regulations 2001. wind market including Vestas, and commercial decisions on the supply of turbines for renewable generation are Lord Alton of Liverpool: asked Her Majesty’s of course a matter for the companies concerned. Government: To ask Her Majesty’s Government further to the Equality and Human Rights Commission Written Answer by Lord Darzi of Denham on Questions 6May(WA 117), whether the Human Fertilisation and Embryology Authority (HFEA) proposes to Asked by Lord Ouseley reiterate public comments made by the former HFEA To ask Her Majesty’s Government further to the chair in January 2004 about DrPMZavos’s work; Written Answer by the Lord President (Baroness and, if so, when. [HL3553] Royall of Blaisdon) on 24 April (WA 419–20), to whom the results of the Equality and Human Rights Lord Darzi of Denham: The Human Fertilisation Commission staff survey were made available and and Embryology Authority has advised me that it sees on what basis. [HL3222] no need to reiterate the public comments made by its former chair in January 2004. The Lord President of the Council (Baroness Royall of Blaisdon): The results of the Equality and Human Energy: Power Stations Rights Commission staff survey have been available to all members of staff, via the commission’s intranet Question site, since 19 December 2008. A copy was also released Asked by Lord Reay to a journalist following a specific request. To ask Her Majesty’s Government what is their Asked by Lord Ouseley projection of the replacement cost for all power stations in the United Kingdom which are due to be To ask Her Majesty’s Government further to the phased out of production in the next 12 years. Written Answer by the Lord President (Baroness [HL3407] Royall of Blaisdon) on 24 April (WA 419–20), whether the Equality and Human Rights Commission The Minister of State, Department of Energy and has made copies of its staff survey available to the Climate Change & Department for Environment, Food press; and how members of the public can obtain and Rural Affairs (Lord Hunt of Kings Heath): Capital copies of that survey. [HL3223] costs for different generating technologies vary and it cannot be assumed that replacement generation will Baroness Royall of Blaisdon: One journalist has be on a like-for-like basis. requested a copy of the staff survey and a copy was The Redpoint Report on Dynamics of GB Electricity supplied. As an internal document, the commission Generation Investment, for the 2007 energy White Paper, does not intend to formally publish the survey. However, lists capital costs for various types of generation in the interests of transparency, a copy would be (www.berr.gov.uk/files/file38972.pdf page 75). provided in response to any specific request.

Energy: Wind Generation Ethiopia Question Question Asked by Lord Bradshaw Asked by Lord Alton of Liverpool To ask Her Majesty’s Government what impact the proposed cut in production announced by Vestas To ask Her Majesty’s Government following the will have on its targets for wind generation. recent visit to Turkana by Her Majesty’s High [HL3507] Commissioner to Kenya, what assessment they have made of the potential threat to the sustainability of The Minister of State, Department of Energy and Lake Turkana of the building of the Gibe III Climate Change & Department for Environment, Food hydro-electric dam on the Omo River in Ethiopia; and Rural Affairs (Lord Hunt of Kings Heath): The what response they have had from the government Government do not have a specific target for the level of Ethiopia to the representations they made about of energy to be sourced from wind generation, but are the potential social and environmental impact of WA 253 Written Answers[LORDS] Written Answers WA 254

that project; and what discussions they have had Australian review which it cited: (a) explicitly took with the European Investment Bank and the African the York report as the basis for its findings under all Development Bank about the implications of that headings; (b) found only three additional “small” project. [HL3551] studies on bone fracture (5.3.1.3), and four on cancer which should be interpreted “with caution” The Minister of State, Foreign and Commonwealth (5.4.1.3), all but one of which were of the lowest Office (Lord Malloch-Brown): Our high commissioner level of evidence (“Level IV”); (c) found no recent in Nairobi visited the town of Turkana (with relevant studies on Down’s syndrome (5.5.1.2) and confirmed Kenyan Ministers) in late April 2009 to launch a York’s finding of a “weak” association with water Department for International Development programme, fluoridation; (d) found one “Level IV” study each the Hunger Safety Net Programme, which forms part on coronary heart disease and kidney stones (5.5.1.3); of the UK’s investment in Kenyan social protection. and whether they consider that it is accurate, in the No recent assessment has been carried out by the light of York’s mixed evidence of harm in these Foreign and Commonwealth Office (FCO) of the areas, to describe such evidence as providing “nothing” potential threat to the sustainability of Lake Turkana to support claims of harm. [HL3356] posed by the building of the Gibe III hydro-electric dam on the Omo River in Ethiopia, including during The Parliamentary Under-Secretary of State, the high commissioner’s visit. The FCO has made no Department of Health (Lord Darzi of Denham): The recent representations relating to the potential social York report did not refer to “mixed evidence of harm” and environmental impact of the above project nor but concluded that there was “no association” between had discussions with the European Investment Bank water fluoridation and bone fractures and cancers and and the Africa Development Bank about its implications. “the miscellaneous other adverse effect studies did not provide enough good quality evidence of any particular outcome to reach conclusions”. In its public statement EU: Legislation on its review, the Australian National Health and Question Medical Research Council concluded that “there is no clear association between water fluoridation and overall Asked by Lord Stoddart of Swindon cancer incidence or mortality” and there is “little effect on fracture risk,” in fact, “it may lower overall To ask Her Majesty’s Government further to the fracture risk”. The statement recommends fluoridation Written Answer by Lord Carter of Barnes on 28 April of drinking water as “the most effective and socially (WA 28), and in the light of the proximity of the equitable means of achieving community wide exposure election to the European Parliament, whether they to the caries prevention effects of fluoride”. will reconsider their decision not to undertake research into the proportion of United Kingdom legislation Asked by Earl Baldwin of Bewdley originating in the European Union, in order to provide this information to voters. [HL3285] To ask Her Majesty’s Government further to the Written Answer by Baroness Thornton on 20 April (WA337), how they reconcile South Central Strategic The Minister of State, Foreign and Commonwealth Health Authority’s decision, given the support of Office (Lord Malloch-Brown): UK legislation of EU 28 per cent of respondents by one measure and origin may be directly applicable in member states. 32 per cent by another during the recent consultation Other legislation requires incorporation into national on water fluoridation in the Southampton area, law. This is sometimes done by primary legislation, with the assurance given by Lord Warner that sometimes by secondary legislation, but on other occasions “fluoridation schemes would only be introduced by administrative means. In yet other situations, domestic where the local population were in favour”. legislation which is being amended for other purposes [HL3358] may also incorporate changes to reflect EU directives. This makes it extremely difficult to determine how Lord Darzi of Denham: We have full confidence in many legislative measures have been introduced in the the South Central Strategic Health Authority’s (SHAs) UK as a result of EU measures. Such figures would judgment. The legislation requires SHAs to take account also have only a very limited purpose: some EU measures of the cogency of the arguments made during a may require numerous pieces of domestic legislation consultation. In his advice to South Central SHA, the to bring them into effect, or a number of EU measures Director of Public Heath noted that the consultation may be given effect in one piece of domestic legislation. highlighted the challenge of discussing public health We therefore remain of the view that it would entail issues in the age of the internet where people need to disproportionate cost to research and compile this try and evaluate the mass of information available on information. water fluoridation, some of which is unreliable and inaccurate. The results of the telephone survey showed Fluoridation that a quarter of those people who opposed water Questions fluoridation did so because of a fear that it would damage their health, but successive research studies Asked by Earl Baldwin of Bewdley have found no association between water fluoridation To ask Her Majesty’s Government further to the and systemic illness. The survey also found that 69 per Written Answer by Baroness Thornton on 20 April cent of respondents had little or no knowledge of (WA 336), whether the Answer recognised that the fluoridation. WA 255 Written Answers[18 MAY 2009] Written Answers WA 256

Gaza Government Departments: Staff Absence Question Questions Asked by Lord Dykes Asked by Baroness Warsi To ask Her Majesty’s Government whether they To ask Her Majesty’s Government what the will ask the government of Israel to pay towards the rates of staff (a) absence, and (b) sickness absence, restitution to civilians in respect of deaths, injury were at (1) HM Treasury, and (2) each of its agencies and the destruction of buildings and other assets in and non-departmental public bodies, in each of the the recent Gaza conflict. [HL3435] past three years; and what the targets for HM Treasury were in each case. [HL3237] The Minister of State, Foreign and Commonwealth Office (Lord Malloch-Brown): We are deeply concerned by the deaths and injury of innocent civilians in conflict, The Financial Services Secretary to the Treasury and the destruction of civilian buildings and assets, (Lord Myners): Sickness absence data for all central including in the recent Gaza conflict. We would welcome government departments from 2005 to 2007 were an Israeli contribution to compensation for innocent published annually by the Cabinet Office at http://beta. civilians. But any claim for compensation is a matter civilservice.gov.uk/about/who/statistics/sickness.aspx. The for the individuals concerned—or their relatives—and last report was for the financial year 1 April 2006 to Israel. 31 March 2007. From 1 April 2007 it became the responsibility of Government Departments: Bottled Water individual departments to produce sickness data and the Cabinet Office has published a combined Question departmental quarterly report. This is available on Asked by Baroness Warsi http://www.cabinetoffice.gov.uk/reports/absence.aspx. In respect of the financial year 2007-08, the average To ask Her Majesty’s Government how much working days lost due to sickness for HM Treasury the Ministry of Justice or its predecessors spent on and its agencies were: bottled water in each of the past five years. [HL3566] HMT 4.7 days; The Parliamentary Under-Secretary of State, Ministry National Savings and Investments 5.8 days; of Justice (Lord Bach): The data requested are not Government Actuary Department 4.2 days; held centrally. However, it should be noted that all Office Government Commerce 4.0 days; government departments have been encouraged to Office Government Commerce Buying Solutions replace bought-in bottled water with tap water for all 7.7 days; and meetings. Furthermore, with regards to the use of Debt Management Office 4.2 days. water coolers, government sustainability policy encourages There are no published absence targets. Data for public sector organisations to change arrangements 2008-09 are not yet available. from bottled water coolers to plumbed-in mains fed provision so that tap water can be used where possible. Asked by Baroness Warsi To ask Her Majesty’s Government what the rates of staff (a) absence, and (b) sickness absence, Government Departments: Outstanding were at (1) the Department for Business, Enterprise Debts and Regulatory Reform, and (2) each of its agencies Questions and non-departmental public bodies, in each of the past three years; and what the targets for the Asked by Lord Forsyth of Drumlean department were in each case. [HL3241] To ask Her Majesty’s Government what are the total debts outstanding to government departments and their agencies. [HL3082] The Parliamentary Under-Secretary of State for Communications, Technology and Broadcasting (Lord To ask Her Majesty’s Government what is the Carter of Barnes): Arrangements for absence such as total amount owed to the public sector in unpaid annual leave, maternity leave, and training are agreed debts. [HL3083] locally between line managers and their staff. Asking each individual line manager in the department for The Financial Services Secretary to the Treasury details would incur disproportionate cost. (Lord Myners): Information on debtors to government The Cabinet Office has introduced a revised format departments and their agencies can be found in the for reporting sickness absence statistics across the resource accounts of individual departments. These Civil Service. The new format was introduced at the are available in the House of Commons Library and end of March 2008 and sickness absence reports for on departmental websites. the department’s predecessor, the Department of Trade Information on the total amount owed to the public and Industry, for 2003, 2004, 2005 and 2006-07 are sector in outstanding and unpaid debt, disaggregating published on the Civil Service website along with data out amounts owed between public bodies, would be for other departments and agencies at www.civilservice. available only at disproportionate cost. gov.uk/about/who/statistics/index.aspx. WA 257 Written Answers[LORDS] Written Answers WA 258

I have approached the chief executives of the Insolvency Name of Non- and Companies House and they will respond to you Departmental Public Sickness absence rates shown as directly. body Average working days lost per person Asked by Baroness Warsi 2006-07 2007-08 2008-09 Human Fertilisation 5.10 6.70 6.50 To ask Her Majesty’s Government what the and Embryology rates of staff (a) absence, and (b) sickness absence, Authority were at (1) the Department of Health, and (2) each Human Tissue 4.00 4.00 5.00 of its agencies and non-departmental public bodies, Authority in each of the past three years; and what the targets Monitor- 2.10 2.80 2.90 for the department were in each case. [HL3280] Independent Regulator of NHS Foundation Trusts Postgraduate 5.20 11.00 7.50 The Parliamentary Under-Secretary of State, Medical Education Department of Health (Lord Darzi of Denham): and Training Board Information about absences other than sick leave is Asked by Baroness Warsi not held centrally and to establish it would incur disproportionate cost. All staff are entitled to 30 days To ask Her Majesty’s Government what the annual leave per year. rates of staff (a) absence, and (b) sickness absence, The figures for sickness absence in the department were at (1) the Department for International and its agencies for the past three years are given Development, and (2) each of its agencies and below: non-departmental public bodies, in each of the past three years; and what the targets for the department Sickness absence rates shown as average working days lost per person were in each case. [HL3283] DH MHRA PASA

2008-09 5.6 6.0 5.1 Lord Tunnicliffe: The Department for International 2007-08 5.3 6.9 4.7 Development (DfID) does not keep comprehensive 2006-07 6.5 central records of all non-sickness related absences. (1) The average number of working days lost to sickness absence in the Department for International The figure for 2006-7 is combined, because in that Development (DfID) from 2006 onwards, are shown year (and before) the report was prepared in that way in the table below: by an external company directly from payroll data. Reducing the level of sickness absence is an important Year 2006 2007 2008 issue for the whole Civil Service. All government Average working days 5.0 4.4 6.0 departments have been set a target of reducing the lost to sickness absence average days of sickness absence per person per year to 7.5 or less. Through this period, DfID worked towards a target More information on sickness absence is available of 5.5 average working days. on the Civil Service statistics website at www. civilservice.gov.uk/about/who/statistics/sickness.aspx. (2) During the period 2006 to present, DfID has had two non-departmental public bodies (NDPBs). The figures for sickness absence in the past three Crown Agents Holding and Realisation Board was years for the non-departmental public bodies associated wound up on 1 April 2008, and Commonwealth with the department are given below: Scholarship Commission is still in operation. None of these non-departmental public bodies employed any Name of Non- staff. Departmental Public Sickness absence rates shown as body Average working days lost per person 2006-07 2007-08 2008-09 Guantanamo Bay The Alcohol 0.00 0.00 1.00 Education and Question Research Council Asked by Lord Maginnis of Drumglass Appointments 5.86 9.78 5.44 Commission To ask Her Majesty’s Government further to the Commission for 11.65 12.49 11.92 Written Answers by Lord Malloch-Brown on 20 April Social Care Inspection (WA 343) and on 30 March (WA 188), what has Council for 6.20 3.70 1.90 been the total cost of transport by air and car, Healthcare including accompanying officials, involved in returning Regulatory each of the 14 Guantanamo Bay detainees released Excellence to the United Kingdom; what are the budgeted General Social Care 2.44 2.00 2.57 ongoing costs for each detainee in the United Kingdom; Council and which of those released are categorised as Health Protection 8.17 8.32 9.00 United Kingdom nationals and which as previously Agency legally resident in the United Kingdom. [HL3056] WA 259 Written Answers[18 MAY 2009] Written Answers WA 260

The Minister of State, Foreign and Commonwealth Asked by Lord Laird Office (Lord Malloch-Brown): We requested the release and return of UK nationals from Guantanamo Bay in To ask Her Majesty’s Government further to 2003. We also requested the release and return of the Written Answer by Lord Darzi of Denham former legal residents in 2007, in order to see the on 30 April (WA 58–59), whether the healthcare detention facility closed as quickly as possible by reimbursement waivers for Denmark, Norway and helping reduce the number of detainees. All the return Malta are mutual; and for what reasons no money operations involved officials from the Foreign and was claimed from Cyprus, Iceland, Latvia, Lithuania Commonwealth Office and from our embassy in and Poland in 2007–08. [HL3502] Washington, accompanied by officers of the Metropolitan Police Service to ensure the security of the flight and Lord Darzi of Denham: The waivers, as part of the to comply with police procedures during the return. In bilateral agreements the United Kingdom has with all cases military or private charters were necessary Denmark, Norway and Malta, are mutual. The UK both to ensure security and because no other flights did not make claims against Cyprus, Iceland and were available from Guantanamo Bay to the UK. Latvia in 2007-08 either because no citizens from A total of 14 individuals have been returned from those countries were treated by the National Health Guantanamo Bay to the UK, nine nationals and five Service, the necessary data were not captured to allow former legal residents, in five separate operations between the UK to make a claim or claims are still being January 2005 and February 2009. The total transport assessed. costs involved, including accompanying officials, was approximately £617,000. Health: Irish Citizens Of the UK nationals, Tarek Dergoul, Jameal Udeen, Questions Shafiq Rasul, Rhuhel Ahmed and Asif Iqbal, were returned to the UK on 10 March 2004. Feroz Abbasi, Asked by Lord Laird Moazzam Begg, Martin Mubanga and Richard Belmar To ask Her Majesty’s Government further to the were returned on 25 January 2005. Written Answer by Lord Darzi of Denham on Of the individuals previously legally resident in the 6May(WA 120), how much the United Kingdom UK, Bisher Al Rawi, was returned to the UK on pays the Republic of Ireland per pensioner to fund 1 April 2007; Abedennour Sameur, Jamil el Banna health treatment; and how much the Republic of and Omar Deghayes were returned on 19 December Ireland pays the United Kingdom per pensioner. 2007; and Binyam Mohamed was returned on 23 February [HL3499] 2009. With respect to the budgeted ongoing cost on return The Parliamentary Under-Secretary of State, to the UK, the entitlement to support for an individual Department of Health (Lord Darzi of Denham): The in the UK is assessed on their particular circumstances, United Kingdom and the Republic of Ireland make including a range of factors such as personal and payments to each other to cover the cost of providing family circumstances, employment and immigration healthcare to each other’s citizens, including pensioners status. As a matter of policy we do not comment on and their dependants. Payments for pensioners and individual cases. their dependants are made on the basis of an average cost, which is in line with European Union (EU) regulations (1408/71). Each European economic area Health: Former UK Residents (EEA) member state’s average costs are scrutinised Questions and agreed by an EU-level group of which the UK is a member. Asked by Lord Laird The Republic of Ireland’s most recently agreed annual average cost for pensioners and their dependants To ask Her Majesty’s Government further to is for 2004 and is ¤8,322 per head. The UK’s most the Written Answer by Lord Darzi of Denham recently agreed annual average cost for pensioners and WA 58–59 on 30 April ( ), whether the devolved their dependants is for 2003 and is £2,605.81 per head. administrations supply them with details of non- nationals provided with healthcare in order to arrange Asked by Lord Laird reimbursement under European Union Regulations To ask Her Majesty’s Government further to the (1409/71); and what numbers were involved in the Written Answer by Lord Darzi of Denham on past three years. [HL3501] 6May(WA 120), whether the number of years pensioners have paid national insurance is part of The Parliamentary Under-Secretary of State, the health treatment calculation in relation to payments Department of Health (Lord Darzi of Denham): The to the Republic of Ireland for United Kingdom devolved Administrations do not supply details of the pensioners residing there; from what data source overseas visitors they treat in order for the United the numbers are estimated; and whether the amount Kingdom Government to make claims against other varies each year. [HL3500] member states. The devolved authorities do not cover the cost of healthcare for their citizens in other European Lord Darzi of Denham: The number of years pensioners economic area member states under European Union have paid national insurance contributions plays no regulations nor does England reimburse the devolved part in the calculation of payments the United Kingdom authorities for the cost of treating overseas visitors. makes to the Republic of Ireland under a bilateral WA 261 Written Answers[LORDS] Written Answers WA 262 agreement. The payments each country makes for Asked by Lord Laird pensioners and their dependants are based on an agreed average cost and the numbers of pensioners To ask Her Majesty’s Government further to the each country is liable for on the basis of a triennial Written Answer by Lord Malloch-Brown on 5 May survey. The numbers do vary due to demographic (WA 102) concerning their assessment of human shifts. rights in other countries, what was meant by “our missions overseas regularly report on a variety of issues, including human rights, where appropriate”; Houses of Parliament: Cyclists who decides whether a country is appropriate; and on what basis. [HL3414] Question Asked by Lord Laird The Minister of State, Foreign and Commonwealth Office (Lord Malloch-Brown): British diplomatic missions To ask Her Majesty’s Government whether they overseas—including high commissions, embassies and have consulted or propose to consult the appropriate consulates—report events, activities and other information authority about rearranging foot and cycle paths in relevant to our policy goals back to the Foreign and the area of the Palace of Westminster to allow Commonwealth Office (FCO), and to other government more clearly marked areas for cyclists. [HL3579] departments. Reporting on human rights issues can be requested directly by the FCO or other government The Minister of State, Department for Transport departments. Examples include when preparing the (Lord Adonis): Decisions about restricting the use of FCO’s annual human rights report, assessing whether particular sections of road between different classes or not to grant an export licence, or taking forward of user, and the placing of associated traffic signing work to eradicate torture or promote freedom of and road markings, are the responsibility of Westminster expression globally. In addition posts use their own City Council, which is the relevant highway and traffic judgment in reporting significant developments and authority in this instance. providing analysis relevant to policy priorities.

Human Rights Identity Cards Questions Questions Asked by Lord Laird Asked by Baroness Miller of Chilthorne Domer To ask Her Majesty’s Government how the To ask Her Majesty’s Government how a business requirements for appointment to the Northern Ireland or an employer without a biometric reader will Human Rights Commission differ from those for check whether an ID card is genuine. [HL3419] the Equality and Human Rights Commission; and what are the reasons for any differences. [HL3248] The Parliamentary Under-Secretary of State, Home Office (Lord West of Spithead): The identity card will Baroness Royall of Blaisdon: All appointments for contain a number of visual security features that can the Northern Ireland Human Rights Commission and be verified by those businesses without access to a the Equality and Human Rights Commission are biometric reader, in order to confirm that the card made in accordance with guidance from the Office of presented is genuine. Guidance on these features will the Commissioner for Public Appointments. Beyond be made available at the appropriate time to businesses this, some differences stem from the different statutory and employers. bases for appointments to the two bodies. The Equality Asked by Baroness Hanham Act 2006 established the Equality and Human Rights Commission (EHRC). Under the terms of Act, To ask Her Majesty’s Government in light of the EHRC can have no fewer than 10 and no more than increase in cost of ID cards, how much they expect 15 commissioners including the chair. Candidates are each card to cost an individual who asks for one. selected on merit and are required to meet the standards [HL3444] of an independent panel before they can be considered for appointment. The Minister for Women and Equality has the final decision on appointments, based on the Lord West of Spithead: ID card specific costs remain unchanged as set out in the response to PQ HL3449. panel’s recommendations.. In making appointments to the Northern Ireland Human Rights Commission, Similarly, the fee to an individual also remains unchanged. the Secretary of State has an obligation under Section In 2009 and 2010, the ID card will be issued to 68(3) of the Northern Ireland Act 1998 to, as far as volunteers at a charge of £30, in line with ministerial practicable, secure that the commissioners, as a group, commitments. The charging strategy beyond 2010 has are representative of the community in Northern Ireland. not yet been agreed. In the most recent public appointments process to the Asked by Baroness Hanham commission in 2007, candidates were assessed against the following published criteria: corporate focus, To ask Her Majesty’s Government under what responsibility and accountability, judgment and strategic conditions the proposed implementation of ID cards thinking, and specialist expertise. is being undertaken. [HL3445] WA 263 Written Answers[18 MAY 2009] Written Answers WA 264

Lord West of Spithead: The rollout of the National The Minister of State, Foreign and Commonwealth Identity Service and proposals for the introduction of Office (Lord Malloch-Brown): We have expressed our identity cards are described in the National Identity concerns regarding the Baha’i community in Iran on Service Delivery Update 2009 published on 6 May 2009. several occasions to the Iranian Government and, A copy of this document is available in the Library of alongside our EU partners, continue to express our the House and may be found at www.ips.gov.uk/identity/ firm opposition to all forms of discrimination and downloads/Doc_D_percent20IPS delivery_report_8.pdf. oppression. Most recently my right honourable friend The Identity Cards Act 2006 sets out the statutory Bill Rammell, Minister for the Middle East, issued a basis for the introduction of identity cards and the statement on 16 February 2009, backed by an EU detailed arrangements, such as the information on the statement on 17 February 2009, expressing our concern card, the application process and the fee to be charged, about the seven imprisoned leaders and calling for the will be set out in secondary legislation under the Iranian Government to allow independent observation Identity Cards Act. of the judicial proceedings. Asked by Baroness Hanham The Iranian authorities are reluctant to engage with the international community, and refuse to receive To ask Her Majesty’s Government whether they formal representations on human rights issues from have taken steps to have cancellation penalty clauses the EU. In this context we believe the most significant built into the ID card contracts; and, if so, what impact we can have is by ensuring that international they are. [HL3448] attention remains focused on the human rights environment in Iran. We will continue to urge Iran to put an end to persecution of religious minorities and Lord West of Spithead: All contracts for the National respect the right to freedom of religion and belief as Identity Service contain provisions for termination. described in Article 18 of the International Covenant Termination provisions are based on Office of on Civil and Political Rights, to which Iran is a state Government Commerce guidance and include terms party. for ending a contract in the case of poor performance or where a decision is made to terminate early (for Asked by Lord Carlile of Berriew “convenience”). In the case of termination for convenience where 12 to 18 months’ notice is given a supplier To ask Her Majesty’s Government what is their may recover costs incurred and those associated with assessment of the number of Baha’is killed and terminating the contract. Where less than 12 to 18 months’ imprisoned in Iran since 1 January 2000. [HL3112] notice is given, in addition to costs incurred, anticipated profit lost as a result of the decision to terminate may be claimed. Lord Malloch-Brown: The use of short-term detention Asked by Baroness Hanham in Iran is particularly fluid and difficult to monitor, To ask Her Majesty’s Government what has therefore it is difficult to accurately determine the justified the increase in costs of the development of number of Baha’is imprisoned in Iran since 2000. ID cards; and what changes have been made in the However, Foreign and Commonwealth Office officials terms of contracts which have been entered into. are in close contact with the National Spiritual Association of the Baha’ is of the UK, who have provided information [HL3449] dating back to 2004. Our records show that 228 Baha’is have been arrested Lord West of Spithead: The ID card specific costs in since August 2004. Of those: the last cost report were £1,190 million for the time three are currently imprisoned in Iran; period of October 2008 to October 2018 in 2008-09 prices. In this cost report the cost is £1,310 million for 81 have been arrested and released on bail and are the time period of April 2009 to April 2019 in 2009-10 awaiting trial; prices. nine have been arrested and released without bail; The contracts just awarded in April 2009 for application 84 have been tried and sentenced and are free and enrolment and National Biometric Identity Service pending appeal or summons to begin serving their have not increased these total costs. The contracts for sentences; passport design and production and card design and 10 have been tried and sentenced and have production will be awarded later in 2009. completed their prison terms; eight have had charges cleared in their original trials or have had their verdicts overturned on appeal; Iran and Questions three have served their prison sentences and have Asked by Lord Carlile of Berriew begun their terms of exile. Whilst we have received reports of members of the To ask Her Majesty’s Government what Baha’i community being killed or executed since 2000, representations they have made and propose to we cannot directly attribute those deaths to the fact make regarding the safety and freedom of association that they were Baha’is. The last documented killing of and worship of the Baha’i community in Iran. a Baha’i in Iran dates back to July 1998, with the [HL3111] execution of Mr. Rúhullah Rawhani. WA 265 Written Answers[LORDS] Written Answers WA 266

The persecution of individuals based solely on the The Minister of State, Foreign and Commonwealth grounds of their religion or beliefs is wholly unacceptable, Office (Lord Malloch-Brown): The Government have and alongside our EU partners we have repeatedly not made representations to any country on the expressed our firm opposition to all forms of compatibility of Sharia to human rights law. However, discrimination and oppression. We will continue to the UK makes frequent representations to countries urge Iran to respect and protect its religious minorities that violate human rights law whatever legal system and free all prisoners held due to their faith or religious they have. practice. Asked by Lord Hylton Mortgages To ask Her Majesty’s Government what responses Question they have received from the Government of Iran Asked by Lord Dykes concerning their representations about the trial of seven leaders of the Baha’i faith in Iran. [HL3568] To ask Her Majesty’s Government what steps they will take to assist the development of building societies as primary sources of mortgage finance Lord Malloch-Brown: We have expressed our concerns for home buyers. [HL3261] regarding the Baha’i community in Iran on several occasions to the Iranian Government and, alongside our EU partners, called for the seven imprisoned The Financial Services Secretary to the Treasury leaders to be given a fair trial with independent observers. (Lord Myners): On 19 January, the Government However, the Iranian authorities are reluctant to engage announced measures designed to reinforce the stability with the international community, and refuse to receive of the financial system and support lending in the formal representations on human rights issues from economy, benefiting individuals and businesses. These the EU. build on measures announced on 8 October last year. In this context we believe the most significant impact Although UK building societies only have a 20 per we can have is by ensuring that international attention cent share of the mortgage market, the sector has remains focused on the human rights environment in traditionally had a strong role in providing mortgages Iran. We will continue to urge Iran to put an end to and savings products. The Government are keen to persecution of religious minorities and respect the support the sector and the 3 million adult members right to freedom of religion and belief as described in buying their homes this way. Article 18 of the International Covenant on Civil and The Government will put forward further proposals Political Rights, to which Iran is a state party. in a forthcoming paper to strengthen the mutuals sector. This will include actions relating to the development and design of capital instruments and the potential for Israel shared services between mutuals. Question Ofsted Asked by Lord Dykes Question To ask Her Majesty’s Government what steps Asked by Lord Ouseley they are taking to support the Government of the To ask Her Majesty’s Government whether, having United States’ efforts to persuade the Government regard to the report of the Office for Standards in of Israel to support the two-state solution. [HL3434] Education (Ofsted) on Haringey Council’s child protection services shortly before the death of Baby The Minister of State, Foreign and Commonwealth P, any action will be taken regarding Ofsted. Office (Lord Malloch-Brown): Both the UK and the US [HL3591] have been clear, in public and in private, on the need to pursue a two-state solution in the Middle East. The The Parliamentary Under-Secretary of State, UK will continue to work alongside the US and other Department for Children, Schools and Families (Baroness parties to help achieve this objective, which we regard Morgan of Drefelin): I respectfully refer the noble as a priority. My right honourable friend the Foreign Lord to my reply to him of 13 January (WA 132). Secretary reinforced our commitment during his intervention at the UN on 11 May 2009. Olympic Games 2012 Question Asked by Lord Patten Justice: Sharia Law To ask Her Majesty’s Government further to Question the Written Answer by Lord Davies of Oldham on Asked by Lord Tebbit 23 April (WA 412) that the Government Olympic Executive (GOE) “is the only body overseeing To ask Her Majesty’s Government whether they the entire Olympic project”, what is the role of the have made representations to other countries that London Organising Committee of the Olympics in impose Sharia law within their borders about its staging the 2012 Games, given the GOE’s “specific effect on human rights. [HL3473] focus on staging”. [HL3367] WA 267 Written Answers[18 MAY 2009] Written Answers WA 268

Lord Davies of Oldham: The London Organising that earnings uprating will be introduced at the beginning Committee of the Olympic Games and Paralympic of the next Parliament, at which point an assessment Games (LOCOG) is responsible for preparing and of affordability will be made taking into account the staging the 2012 Olympic and Paralympic Games. To fiscal position. deliver the whole range of services required to host the Games, LOCOG works with a number of partner Police: Records of Questioning organisations, including the Government. Question The team focused on staging within the Government Olympic Executive is responsible for ensuring the effective Asked by Lord Berkeley and efficient delivery of the government guarantees To ask Her Majesty’s Government whether police given to the IOC as part of London 2012 bid, which officers are required to keep a notebook or tape outline the public services that need to be delivered for recording of questioning of a suspect before and the Games. These include, for example, provision of after an arrest; whether such records are expected public sector-owned venues, provision of broadcasting to be made available to any person wishing to make spectrum and guidance on the importation of goods a claim against the police; in how many cases and visas. The team also leads on planning across involving the Metropolitan Police in the past two government on, for example, national operations during years requests for such evidence have been refused the Games and international dignitary visits. due to it being mislaid; and what disciplinary action The staging team also leads on carrying out the has been taken against police officers for failure to appropriate assurance of LOCOG’s work, reporting retain such records in a safe manner. [HL2991] to the Minister for the Olympics and the DCMS accounting office in relation to the Government’s The Parliamentary Under-Secretary of State, Home guarantee to the IOC to act as the ultimate financial Office (Lord West of Spithead): The code of practice guarantor should there be any shortfall in the LOCOG on the statutory power of arrest by police officers budget. (PACE Code G) issued under the Police and Criminal Evidence Act (PACE) 1984 requires that the arresting officer must record in his pocket book or by other Pensions: Uprating methods of recording information about the nature Questions and circumstances leading to the arrest; the reason or reasons why arrest was necessary; the giving of the Asked by Baroness Noakes caution; and anything said by the person at the time of To ask Her Majesty’s Government whether their arrest. Such a record should be made at the time of the 2009 Budget projections assume that up-rating the arrest unless impracticable to do so. If not made at the basic state pension by reference to earnings will time, the record should then be completed as soon as commence in 2012–13 or 2013–14; and, if not, what possible thereafter. the impact on public sector net borrowing and net The information given by the arresting officer on debt would be if up-rating commenced in either of the circumstances and reason or reasons for arrest those years. [HL3196] must be recorded as part of the custody record. To ask Her Majesty’s Government whether the PACE Code E on the audio recording of interviews economic forecasts in the 2009 Budget show that with suspects requires that audio recording must be the introduction of earnings up-rating of the basic used at police stations for any interview with a person state pension is affordable in 2012–13; and, if not, cautioned for an indictable offence. At the end of the what improvement in the forecast would be required interview, the suspect must be handed a notice which explains how the audio recording will be used; the to achieve affordability. [HL3197] arrangements for access to it; and that, if the person is To ask Her Majesty’s Government whether the charged or informed that they will be prosecuted, a fiscal position shown in the forecasts in the 2009 copy of the audio recording will be supplied. Budget show that the fiscal position will allow the PACE Code of Practice C for the detention, treatment introduction of earnings up-rating of the basic and questioning of persons by police officers provides state pension in 2012–13; and, if not, what improvement that a solicitor or appropriate adult must be permitted in the fiscal position would be required. [HL3198] to consult the custody record as soon as practicable on arrival at the police station and any other time when The Financial Services Secretary to the Treasury the person is detained. A copy of the custody record (Lord Myners): The Government have committed to must be made available if requested by a solicitor or relink the uprating of the basic state pension to earnings. appropriate adult after a person leaves police detention. Their objective, subject to affordability and the fiscal This entitlement lasts for 12 months after release. The position, is to do this in 2012, but in any event by the detainee, appropriate adult or legal representative shall end of the next Parliament at the latest. be permitted to inspect the original custody record The 2009 Budget set out the Government’s overall after the detainee has left police detention. assumption for public sector current expenditure (PSCE) The Metropolitan Police advise that they do not for the three-year period beyond 2010-11 in table C4. hold a central record of instances where requests for Departmental budgets, and announcements on their evidence made by persons wishing to make a claim content, will not be set for this period until the time against the force has been refused due it being mislaid. of the next spending review. The Government have Disciplinary action against individual police officers committed to making a statement on the precise date or police staff is an operational matter for chief officers. WA 269 Written Answers[LORDS] Written Answers WA 270

Police: Stop and Search Once the Bill becomes an Act, and Ofcom takes Question responsibility for regulation of the postal services market, it will conduct a market assessment which will Asked by Lord Dear help decide which products should be provided as a universal service. Ofcom will consult fully, including To ask Her Majesty’s Government in relation to with Consumer Focus, before it reaches decisions on the latest figures showing exercise of police stop this very important area. and search powers, what proportion of those searches related to operations specifically against knife crime. [HL3313] Presbyterian Mutual Society Questions The Parliamentary Under-Secretary of State, Home Asked by Lord Mawhinney Office (Lord West of Spithead): The information requested is not available. Information on the individual To ask Her Majesty’s Government how many circumstances of stops and searches is not reported to savers in England they estimate have lost part or all the Home Office; therefore, it is not possible to identify of their savings in the Presbyterian Mutual Society which stops and searches resulted from operations since it went into administration. [HL3273] specifically against knife crime. To ask Her Majesty’s Government how many Available information from 2007-08 shows that, of savers in Scotland they estimate have lost part or all the 1,045,923 stops and searches conducted in England of their savings in the Presbyterian Mutual Society and Wales under Section 1 of the Police and Criminal since it went into administration. [HL3274] Evidence Act (PACE), 98,529 were for offensive weapons To ask Her Majesty’s Government how many (including knives). Also, 12,447 arrests for possession savers in Wales they estimate have lost part or all of of offensive weapons resulted from stop and search their savings in the Presbyterian Mutual Society procedures under Section 1 of PACE during this period. since it went into administration. [HL3275] Additionally, 53,250 searches in anticipation of violence To ask Her Majesty’s Government how many were conducted under Section 60 of PACE, under savers in Northern Ireland they estimate have lost which 759 persons were found to be carrying an offensive part or all of their savings in the Presbyterian weapon and dangerous instrument. Mutual Society since it went into administration. [HL3276]

Postal Services: Northern Ireland The Financial Services Secretary to the Treasury Question (Lord Myners): The Presbyterian Mutual Society is currently in administration. The Government have Asked by Lord Browne of Belmont made no estimate of the number of members of the society who may have lost part or all of their investment. To ask Her Majesty’s Government whether, The administrator website now states that his report is following the changes envisaged in the Postal Services delayed, that he will be providing a statutory progress Bill and the change of regulatory framework for report on or before 16 June and he hopes to put a postal services, the commitment to a continued formal arrangement to the members in September. Universal Services Obligation for postal services means that the obligation will continue to apply to citizens, businesses and consumers in Northern Ireland Railways: Electrification on the same terms as those in the rest of the United Kingdom; and whether any subsequent changes in Question the obligation will be agreed in consultation with Asked by Lord Bradshaw Consumer Focus and specifically with the Consumer To ask Her Majesty’s Government when they Focus post covering Northern Ireland. [HL2980] will authorise the electrification of the railway line from Gospel Oak to Barking. [HL3506] The Parliamentary Under-Secretary of State, Department for Business, Enterprise and Regulatory The Minister of State, Department for Transport Reform & Cabinet Office (Baroness Vadera): The (Lord Adonis): Transport for London is considering Government’s first priority is to secure the provision whether there is a business case and funding for this of a strong universal postal service. We want to protect scheme. customers by securing the universal postal service, at the current standards we enjoy in the UK, and this will, of course, include customers in Northern Ireland. Railways: Franchises The new Postal Services Bill enshrines in legislation Question the minimum requirements of a universal postal service. Asked by Lord Bradshaw The result is that the minimum requirements of the universal postal service are protected—there will always To ask Her Majesty’s Government on what date be at least one collection and at least one delivery of cap and collar protection for revenue shortfall came letters every working day, and there will always be a into effect, or comes into effect, for each train one price goes anywhere service. operating company. [HL3394] WA 271 Written Answers[18 MAY 2009] Written Answers WA 272

The Minister of State, Department for Transport Retirement Age (Lord Adonis): The information in respect of train Questions operators which have franchise contracts with the Department for Transport is set out in the table below. Asked by Lord Taylor of Warwick

Train Cap and DFT Cap and TOC To ask Her Majesty’s Government what aims, Operating Collar Entitlement Collar Entitlement relating to social or employment policy, justify the Company arrangement State Date arrangement Start Date United Kingdom’s statutory retirement age. East Revenue 11-Nov-07 Revenue 11-Nov-11 [HL3199] Midland share support Trains (EMT) National Revenue 09-Dec-07 Revenue 09-Dec-11 The Parliamentary Under-Secretary of State, Express share support Department for Business, Enterprise and Regulatory East Coast (NXEC) Reform & Cabinet Office (Baroness Vadera): The UK Northern Revenue 12-Dec-04 Revenue 12-Dec-08 does not have a mandatory retirement age. The Rail share support Employment Equality (Age) Regulations aim to tackle TransPennine Benefit 01-Feb-04 Revenue N/A unjustified age discrimination in employment and Express share support vocational training. The default retirement age, which (TPE) employers may use if they wish, and the employee’s First Revenue 01-Apr-06 Revenue 01-Apr-09 Capital share support right to request working beyond retirement age were Connect introduced to deliver the Government’s labour market London Revenue 01-Apr-06 Revenue 01-Apr-10 objectives of recognising the need for workforce planning South share support Eastern and avoiding adverse impact on the provision of Railway occupational pensions and other work-related benefits. Southern Not 26-May-96 N/A Our position was also set out in the joint Written applicable Statement by the then Secretary of State for Trade and Stagecoach Profit share 04-Feb-07 Revenue 04-Feb-11 Industry and the then Secretary of State for Work South support Western and Pensions to the House on 14 December 2004 at (SSW) col. 127WS. Arriva Revenue 11-Nov-07 Revenue 11-Nov-11 Cross share support Asked by Lord Taylor of Warwick Country (AXC) To ask Her Majesty’s Government what assessment C2C Not N/A Not N/A they have made of whether raising or abolishing the applicable applicable United Kingdom’s statutory retirement age would Chiltern Not N/A Not N/A applicable applicable improve the current economic situation. [HL3200] National Revenue 01-Apr-04 Revenue 01-Apr-08 Express share support East Anglia (NXEA) Baroness Vadera: We are of course monitoring the First Revenue 01-Apr-06 Revenue 01-Apr-08 developments in the labour market and have introduced Greater share support a wide range of help for businesses and households in Western order to help them deal with the current economic London Revenue 11-Nov-07 Revenue 11-Nov-11 situation and prepare for the future. Midland share support (LOM) In terms of the policy on the default retirement age Virgin West Revenue 12-Dec-06 Revenue 08-Dec-08 we remain committed to undertaking an evidence Coast share support (VWC) based review. With the assistance of representatives of the business community, trade unions and age groups we are in the process of gathering the evidence which Railways: Level Crossings will be needed to enable us to undertake this review in 2011. If the conclusion of the review is that the Question evidence demonstrates a default retirement age is no Asked by Lord Bradshaw longer necessary, we will take the necessary steps to remove it. To ask Her Majesty’s Government whether the consultation on improving road safety will include the misuse of railway level crossings. [HL3508] Roads: Traffic Officers The Minister of State, Department for Transport Question (Lord Adonis): The Department for Transport published Asked by Lord Jopling on 21 April a consultation document on a new road safety strategy. To ask Her Majesty’s Government further to Although this made no mention of railway level the Written Answer by Lord Adonis on 30 April crossings, the Road Safety Act 2006 gave the Secretary (WA 77), whether the introduction of traffic officers of State new powers to improve safety around railway has released the police from traffic duties and patrols; level crossings, either following a request from the and, if so, what is the financial saving to police crossing operator or at his own instigation. budgets. [HL3386] WA 273 Written Answers[LORDS] Written Answers WA 274

The Parliamentary Under-Secretary of State, Home The maths specialist programme aims to train 13,000 Office (Lord West of Spithead): Prior to the introduction primary teachers over 10 years so that every primary of Highways Agency traffic officers, it was estimated school will have access to a math specialist who will that the associated transfer of particular roles and improve maths teaching and learning. responsibilities would free up the equivalent of 540 full- By 2010-11, we aim to provide one-to-one tuition time equivalent police officers. The police remain, to 300,000 children a year in each of English and however, responsible for tackling crime and enforcing mathematics. the law on roads as elsewhere and for investigating road traffic collisions. Police patrols can also provide reassurance and increase public confidence. It is for Social Care individual chief officers to decide how to deploy their Question resources as they consider most effective and appropriate, Asked by Lord Ashley of Stoke including the resources freed up by the introduction of traffic officers. To ask Her Majesty’s Government what checks are made to ensure the social care system is working Schools: Internal Management efficiently. [HL3532] Question The Parliamentary Under-Secretary of State, Asked by Lord Dykes Department of Health (Lord Darzi of Denham): Monitoring of adult social services’ efficiency in England To ask Her Majesty’s Government what priority is undertaken by a number of organisations: the Care they give to continuity rather than change in the Quality Commission (CQC), as part of its role as the internal management of schools. [HL3432] independent health and social care regulator, the Audit Commission, and the Department of Health. The Parliamentary Under-Secretary of State, The CQC was established by the Health and Social Department for Children, Schools and Families (Baroness Care Act (2008) and replaced the Commission for Morgan of Drefelin): All schools need to balance the Social Care Inspection, as well as the regulators for benefits of continuity and change in striving to improve healthcare and the Mental Health Act. Under the all aspects of their provision. Schools have three-year provisions of the 2008 Act, the CQC carries out a funding settlements which give them the confidence number of activities related to the regulation of local and stability to plan their budgets for the long term. health and social care services, including registration Revised school improvement and performance of providers to ensure minimum quality standards are management arrangements are in place to support met, regular reviews of providers and commissioners more streamlined school strategic planning. of services, and inspections of particular care services. The CQC undertakes periodic reviews of all local Schools: Teaching Mathematics authority adult social services, and publishes its assessment Question of the quality of those services, and their capacity to deliver improved outcomes for local people. This judgment Asked by Lord Taylor of Warwick includes a specific criterion on the local authority’s To ask Her Majesty’s Government why one in efficient use of resources to meet the needs of its local five primary school children do not have a secure community. grasp of essential mathematical skills. [HL3516] The CQC’s assessment of adult social care is further used as part of the evidence base for the annual The Parliamentary Under-Secretary of State, comprehensive area assessment (CAA) published by Department for Children, Schools and Families (Baroness the Audit Commission. The CAA, which will be published Morgan of Drefelin): The premise of this Question is for the first time in October 2009, brings together the wrong. In 2008, 79 per cent of children reached or assessments of six national regulators to form an exceeded level 4+, the expected level in key stage 2 overall judgment of the delivery of public services in a (20 per cent more than in 1998 and 2 per cent more locality. It will publish an area assessment (providing than in 2007). An additional 15 per cent of pupils an overall judgment on the locality) and an additional achieved level 3 in 2008 and it would be wrong to organisational assessment of the local authority suggest that a child achieving this level does not have a management. This latter assessment will make a scored secure grasp of basic mathematical skills. At level 3, a judgment on two corporate areas: managing performance pupil has a range of mathematical skills; for example and use of resources, and so will contribute towards the ability to solve whole number problems involving the checks on efficiency in adult social care. multiplication and division, use simple fractions, recognise The Department of Health also works to support negative numbers and extract and interpret data from efficiency in adult social care, and has put in place a simple tables and lists. number of programmes to help local authorities achieve In 2008, fewer than 36,000 children (less than 6 per efficiencies. For instance, the Care Services Efficiency cent of pupils) failed to reach level 3 at KS2. For these Delivery programme has invested about £5 million per children, the department is rolling out new programmes year to specifically support the local efficiency agenda to raise standards in maths. The Every Child Counts through working with local authorities to improve intensive intervention programme targets the lowest planning and procurement, developing more efficient attaining 5 per cent of pupils and will have national systems for the assessment and delivery of care with a coverage from September 2010. strong focus on re-ablement and recovery. Additionally, WA 275 Written Answers[18 MAY 2009] Written Answers WA 276 the Partnership for Older People Projects have supported Separately, the commission may also consider the 19 local pilot programmes to develop a wide range of viability of continued registration of the provider. The innovative services and focus on early interventions to provision of inaccurate information to the commission reduce long-term care needs. would be a serious matter, which would be considered in the context of the case and the overall safety of Social Care: Employers people using services. From April 2010, we are introducing a new registration Questions framework for providers of regulated health and adult Asked by Lord Ashley of Stoke social care activities. We are currently consulting on a number of policy issues to support the new framework, To ask Her Majesty’s Government whether they including what incidents should require notification to will make the reporting of all missed visits by social the commission. We are intending to set out the categories care workers mandatory. [HL3389] of information that providers will need to supply to To ask Her Majesty’s Government whether they the commission in regulations which we will put before will make provision for penalising employers of Parliament later this year. The Care Quality Commission social care workers who do not fulfil their legal will be able to take enforcement action against providers requirements. [HL3452] of regulated activities who do not meet the requirements. To ask Her Majesty’s Government whether they We have no specific plans to make the reporting of will make provision for prosecuting firms providing all missed visits by social care workers mandatory at social care workers who provide inaccurate information this time. However, the proposals in the consultation about missed calls. [HL3453] for incidents that require notification include: an allegation that a person who uses services has The Parliamentary Under-Secretary of State, been abused; Department of Health (Lord Darzi of Denham): The an incident which is reported to, or investigated by, regulation of adult social care providers is now the the police and involves the health and well-being of responsibility of the new independent regulator, the people who use service; and Care Quality Commission, which took over from the Commission for Social Care Inspection, the Healthcare an allegation of misconduct in relation to Commission and the Mental Health Act Commission registration requirements against a person working on 1 April 2009. The new commission will take a for the purpose of carrying out a regulated activity. risk-based proportionate approach to its regulatory The Care Quality Commission is currently working role. to develop the precise detail, content, format and The commission has a range of enforcement actions timescale of notification it will require. it can take against registered providers of adult social In addition, all providers of regulated activities will care who do not fulfil their legal obligations. These need to meet a set of registration requirements in include: order to register with the Care Quality Commission, a formal non-statutory caution; and to maintain registration. These include requirements a notice requiring improvement within a specified to treat people with dignity and respect, keeping records time period; of the provision of care and treatment, and involving conditions that place restrictions on registration people in making informed decisions about their care (for example, preventing the provider from running and treatment. a particular service or preventing further admissions Where providers are not meeting the registration to a service); requirements, the commission will have the flexibility prosecution of organisations and/or individuals— to use its independent enforcement powers to bring resulting in fines or, in extreme cases, imprisonment; poor providers back into compliance or to prevent and ultimately people who use services from being exposed to serious risk of harm. cancellation of registration, which closes the service down. The commission could also refer the matter to another body, for example, the police. Social Care: Inspectors National minimum standards for domiciliary care providers recognise that people want care workers Questions who are reliable, dependable and arrive and depart at Asked by Lord Ashley of Stoke the time expected. They specify that care staff should arrive at the home of the person using the service To ask Her Majesty’s Government how many within the time band specified and work for the full social care inspectors there are; and how they are time allocated. They also say that people who use distributed around the country. [HL3454] services should be kept informed about their care and told in advance of any changes. If any agency fails to meet its obligations contained The Parliamentary Under-Secretary of State, in service specific regulations in relation to operation Department of Health (Lord Darzi of Denham): Inspection and the care of its customers, the commission will of adult social care providers is now the responsibility consider if a prosecution is suitable and in the public of the new independent regulator, the Care Quality interest. Commission, which took over from the Commission WA 277 Written Answers[LORDS] Written Answers WA 278 for Social Care Inspection, the Healthcare Commission The Parliamentary Under-Secretary of State, and the Mental Health Act Commission on 1 April Department of Health (Lord Darzi of Denham): The 2009. General Social Care Council (GSCC) was established I am informed by the Care Quality Commission under the Care Standards Act 2000 as the regulator that the number of social care inspectors it employs is for social care workers in England. Similar bodies as shown in the table below. have been established in Scotland, Wales and Northern Ireland. Social care inspectors employed by the Care Quality Commission The functions of the GSCC are to promote high Location Position Total standards of conduct and practice among social care West Midlands Pharmacy Inspector 3 workers and high standards in training. The council Regulatory Inspector 89 has wide general powers to enable it to carry out these Service Inspector 1 functions effectively, efficiently and economically subject Total 93 to any directions or guidance from the Secretary of State. It is specifically required to maintain a register South-West Pharmacy Inspector 4 of social workers and such social care workers as are Regulatory Inspector 98 specified in regulations. Currently the council registers Service Inspector 1 social workers, including visiting social workers from Total 103 relevant European states, and student social workers. London/South-East Pharmacy Inspector 5 The council is required to grant applications for Regulatory Inspector 228 registration if they are satisfied of the applicant’s Service Inspector 6 good character and fitness to perform the work required Total 239 and may require certain training conditions to be fulfilled and impose other conditions relating to conduct Newcastle/York and Pharmacy Inspector 2 Humber and competence. They have powers to register applicants Regulatory Inspector 117 unconditionally or subject to conditions or refuse applications. They may also remove or suspend applicants Total 119 from the register and can restore registrations. Eastern / East Pharmacy Inspector 3 Midlands The council is required to make rules about the Regulatory Inspector 143 requirements for application to and removal from the register and the maintenance of the register. It may Service Inspector 3 also make rules relating to requirements as to conduct Total 149 and competence, the approval of courses in relevant North-West Pharmacy Inspector 5 social work, further training and training for social Regulatory Inspector 91 care workers, and the visiting of places at which Service Inspector 3 relevant courses are given or examinations held. Rules Total 99 made by the council which may make provision for the payment of fees must be made with the consent of Grand Total 802 the Secretary of State. Asked by Lord Ashley of Stoke The council is, subject to appropriate consultation, also required to prepare, publish and keep under review To ask Her Majesty’s Government whether social codes of practice for social care workers and their care worker inspectors notify people before making employers or those seeking to employ them. These visits. [HL3530] codes may also include social workers when carrying out the functions of approved mental health professional. Lord Darzi of Denham: The regulation of adult social care providers is now the responsibility of the Sport: Security new independent regulator, the Care Quality Commission, Question which took over from the Commission for Social Care Inspection, the Healthcare Commission and the Mental Asked by Baroness Neville-Jones Health Act Commission on 1 April 2009. To ask Her Majesty’s Government what steps The commission has the power to conduct an they have taken to protect travelling sports teams inspection of any registered service provider at any from potential attacks similar to the one recently time if it considers it appropriate, with or without made on the Sri Lankan cricket team in Lahore. prior notification. [HL2583]

The Parliamentary Under-Secretary of State for Social Care: Regulator Communications, Technology and Broadcasting (Lord Carter of Barnes): The Government’s refreshed counter- Question terrorism strategy, CONTEST, published in March, Asked by Lord Ashley of Stoke aims to reduce the risk of international terrorism to the UK and our interests overseas, so that people can To ask Her Majesty’s Government what powers go about their lives freely and with confidence. This the regulator of social care workers possesses. includes sports teams in the UK and those travelling [HL3531] overseas. WA 279 Written Answers[18 MAY 2009] Written Answers WA 280

The police have long-standing arrangements in place Each authorisation will last for a maximum of 28 days to work closely with sports organisations to ensure as set out in Section 46(2) of the Terrorism Act 2000. that security requirements are adequately considered. However, it is open to the chief officer to share this Security at sporting events is kept under constant information where he thinks it is appropriate on a review as a matter of course based on assessment of local level. risk, which takes into account both threat and vulnerability. There are well established and exercised plans in place to deal with a wide range of potential situations. The Terrorism Act: Section 44 Powers Government’s long-standing policy is not to comment Questions on specific protective security measures as to do so Asked by Baroness Miller of Chilthorne Domer could compromise any arrangements that are in place. To ask Her Majesty’s Government what is the geographical extent of each of the authorisations Swine Flu under Section 44 of the Terrorism Act 2000 that are Questions in force. [HL3468] Asked by Baroness Neville-Jones The Parliamentary Under-Secretary of State, Home To ask Her Majesty’s Government what is the Office (Lord West of Spithead): The Home Office does projected total cost of their response to the outbreak not make the fact of the existence of an authorisation of swine flu. [HL3441] in any particular area public while it is running or for how long a particular force has had an authorisation. The Parliamentary Under-Secretary of State, This includes the geographical extent of each of the Department of Health (Lord Darzi of Denham): The authorisations. It is the responsibility of an ACPO costs of responding to the swine flu outbreak cannot rank officer in the relevant police forces to justify be fully evaluated, or accurately predicted, at this time. reasons for an authorisation to cover a whole force area or a designated area. It is open for the chief Asked by Baroness Neville-Jones officer of the relevant police force to share this information where they think it is appropriate. To ask Her Majesty’s Government what discussions they have had regarding the naming of swine flu Asked by Baroness Miller of Chilthorne Domer and the dissemination of information about it. [HL3478] To ask Her Majesty’s Government how many authorisations under Section 44 of the Terrorism Act have been subject to legal scrutiny, as referred Lord Darzi of Denham: At the outset of the outbreak, to in Home Office circular 027/2008. [HL3469] World Health Organisation (WHO) officials were referring to the new virus strain as “swine flu”. On 30 April Lord West of Spithead: Under Section 36 of the 2009 the WHO decided to refer to the new influenza Terrorism Act 2006 a report on the operation of the virus as “influenza A (H1N1)”. Following this WHO provisions of the Terrorism Act 2000 and Part 1 of decision, HM Government considered the question of the Terrorism Act 2006 must be laid before both the naming of swine flu, and decided to continue to Houses of Parliament every 12 months. use the term “swine flu” in order not to confuse the public in our communications. The reviews of and reports on these Acts are carried out by Lord Carlile of Berriew QC in his role as We have also produced a leaflet entitled Important independent reviewer of terrorism legislation and this information about swine flu. This contains important includes scrutiny of Section 44 authorisations which information about this flu outbreak and started going he conducts twice yearly. The only legal challenge to a out to all United Kingdom households on 5 May. We Section 44 authorisation was in R (Gillan) v Commissioner expect everyone to receive their leaflet by 19 May. of Police for the Metropolis [2006] UKHL 12. The challenge was rejected by the House of Lords. Terrorism Act Asked by Baroness Miller of Chilthorne Domer Question To ask Her Majesty’s Government what community Asked by Baroness Miller of Chilthorne Domer impact measures have been taken in areas where authorisations under Section 44 of the Terrorism To ask Her Majesty’s Government how many Act 2000 have been made. [HL3470] authorisations under Section 44 of the Terrorism Act 2000 are in force; and how long they have been Lord West of Spithead: A community impact in force. [HL3467] assessment is completed by all forces prior to a Section 44 authorisation being confirmed. Forces need to consider The Parliamentary Under-Secretary of State, Home whether it is appropriate to consult representatives of Office (Lord West of Spithead): The Home Office does the local community in advance of authorising the not make the fact of the existence of an authorisation powers. However, any decision not to consult with in any particular area public while it is running or for the community, due to operational reasons, should be how long a particular force has had an authorisation. fully explained and justified by the authorising officer.

Monday 18 May 2009

ALPHABETICAL INDEX TO WRITTEN STATEMENTS

Col. No. Col. No. Companies House: Targets...... 107 Government Contracts ...... 108

Correction to Commons Written Answer ...... 108 Health: Inequalities...... 109

Monday 18 May 2009

ALPHABETICAL INDEX TO WRITTEN ANSWERS

Col. No. Col. No. Africa: Ilemi Triangle...... 243 Health: Irish Citizens...... 260

Africa: Malaria ...... 243 Houses of Parliament: Cyclists ...... 261

Bahrain: Human Rights...... 244 Human Rights ...... 261

Banking ...... 244 Identity Cards...... 262

Banking: Loan Guarantee Scheme ...... 245 Iran...... 263

Biometric Data ...... 245 Israel...... 265

Care Services...... 246 Justice: Sharia Law ...... 265

Children: Nutrition...... 247 Mortgages...... 266

Children: Poverty...... 248 Ofsted ...... 266

Communications Data...... 248 Olympic Games 2012 ...... 266

Crime: Suspicious Activity Reports ...... 249 Pensions: Uprating...... 267

Data Entry: Error Rates...... 249 Police: Records of Questioning...... 268

Egypt ...... 249 Police: Stop and Search...... 269

Embryology ...... 250 Postal Services: Northern Ireland ...... 269

Energy: Power Stations ...... 251 Presbyterian Mutual Society...... 270

Energy: Wind Generation ...... 251 Railways: Electrification ...... 270

Equality and Human Rights Commission ...... 252 Railways: Franchises...... 270

Ethiopia...... 252 Railways: Level Crossings ...... 271

EU: Legislation...... 253 Retirement Age...... 272

Fluoridation ...... 253 Roads: Traffic Officers ...... 272

Gaza ...... 255 Schools: Internal Management ...... 273

Government Departments: Bottled Water ...... 255 Schools: Teaching Mathematics...... 273

Government Departments: Outstanding Debts...... 255 Social Care...... 274

Government Departments: Staff Absence ...... 256 Social Care: Employers...... 275

Guantanamo Bay...... 258 Social Care: Inspectors ...... 276

Health: Former UK Residents ...... 259 Social Care: Regulator ...... 277 Col. No. Col. No. Sport: Security ...... 278 Terrorism Act ...... 279

Swine Flu...... 279 Terrorism Act: Section 44 Powers ...... 280 NUMERICAL INDEX TO WRITTEN ANSWERS

Col. No. Col. No. [HL2160] ...... 245 [HL3323] ...... 244

[HL2583] ...... 278 [HL3356] ...... 254

[HL2893] ...... 245 [HL3358] ...... 254

[HL2980] ...... 269 [HL3367] ...... 266

[HL2991] ...... 268 [HL3386] ...... 272

[HL3056] ...... 258 [HL3389] ...... 275

[HL3082] ...... 255 [HL3392] ...... 246

[HL3083] ...... 255 [HL3394] ...... 270

[HL3111] ...... 263 [HL3403] ...... 243

[HL3112] ...... 264 [HL3407] ...... 251

[HL3145] ...... 244 [HL3414] ...... 262

[HL3165] ...... 249 [HL3419] ...... 262

[HL3196] ...... 267 [HL3422] ...... 248

[HL3197] ...... 267 [HL3432] ...... 273

[HL3198] ...... 267 [HL3434] ...... 265

[HL3199] ...... 272 [HL3435] ...... 255

[HL3200] ...... 272 [HL3441] ...... 279

[HL3208] ...... 249 [HL3444] ...... 262

[HL3213] ...... 244 [HL3445] ...... 262

[HL3222] ...... 252 [HL3448] ...... 263

[HL3223] ...... 252 [HL3449] ...... 263

[HL3237] ...... 256 [HL3452] ...... 275

[HL3241] ...... 256 [HL3453] ...... 275

[HL3248] ...... 261 [HL3454] ...... 276

[HL3261] ...... 266 [HL3467] ...... 279

[HL3273] ...... 270 [HL3468] ...... 280

[HL3274] ...... 270 [HL3469] ...... 280

[HL3275] ...... 270 [HL3470] ...... 280

[HL3276] ...... 270 [HL3473] ...... 265

[HL3280] ...... 257 [HL3478] ...... 279

[HL3283] ...... 258 [HL3479] ...... 249

[HL3285] ...... 253 [HL3484] ...... 250

[HL3313] ...... 269 [HL3485] ...... 250 Col. No. Col. No. [HL3486] ...... 251 [HL3530] ...... 277

[HL3497] ...... 247 [HL3531] ...... 277

[HL3498] ...... 247 [HL3532] ...... 274

[HL3499] ...... 260 [HL3551] ...... 253 [HL3552] ...... 243 [HL3500] ...... 260 [HL3553] ...... 251 [HL3501] ...... 259 [HL3559] ...... 246 [HL3502] ...... 260 [HL3566] ...... 255 [HL3506] ...... 270 [HL3568] ...... 265 [HL3507] ...... 251 [HL3579] ...... 261

[HL3508] ...... 271 [HL3590] ...... 248

[HL3516] ...... 273 [HL3591] ...... 266 Volume 710 Monday No. 77 18 May 2009

CONTENTS

Monday 18 May 2009 Questions Housing: Repossession...... 1193 Immigration: Sangatte...... 1195 Female Genital Mutilation ...... 1198 Legal Aid...... 1201 Information Committee Motion to Publish Evidence ...... 1202 Terrorism Act 2000 (Code of Practice for Examining Officers) (Revision) Order 2009 Transfer of Tribunal Functions (Lands Tribunal and Miscellaneous Amendments) Order 2009 Freedom of Information (Time for Compliance with Request) Regulations 2009 Housing (Replacement of Terminated Tenancies) (Successor Landlords) (England) Order 2009 Motions to Approve...... 1203 Law Commission Bill [HL] Order of Commitment Discharged ...... 1203 Coroners and Justice Bill Second Reading ...... 1204 Grand Committee Business Rate Supplements Bill Committee (2nd Day)...... GC 509 Written Statements...... WS 107 Written Answers...... WA 243