Vol. 732 Tuesday No. 219 8 November 2011

PARLIAMENTARY DEBATES (HANSARD) HOUSE OF LORDS OFFICIAL REPORT

ORDER OF BUSINESS

Questions Crime: Self-defence Homicide Economy: Monetary and Fiscal Policy Devolved Administrations: Financial Flexibility Somalia Procedure of the House: Seventh Select Committee Report Motion to Agree Procedure of the House: Eighth Select Committee Report Motion to Take Note Procedure of the House (Proposals 1 to 9) Motions to Resolve Protection of Freedoms Bill Second Reading Protection of Freedoms Bill Committal Motion Protection of Freedoms Bill Order of Consideration Motions

Grand Committee Welfare Reform Bill Committee (11th day)

Written Statements Written Answers For column numbers see back page

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© Parliamentary Copyright House of Lords 2011, this publication may be reproduced under the terms of the Parliamentary Click-Use Licence, available online through The National Archives website at www.nationalarchives.gov.uk/information-management/our-services/parliamentary-licence-information.htm Enquiries to The National Archives, Kew, Richmond, Surrey, TW9 4DU; email: [email protected] 117 Crime: Self-defence Homicide[8 NOVEMBER 2011] Crime: Self-defence Homicide 118

Lord Elystan-Morgan: Does the Minister accept House of Lords that the principle of self-defence, whereby a person is entitled to defend himself or any other person from Tuesday, 8 November 2011. unlawful attack by using no more force than is reasonably necessary, is well ensconced in our law, well understood 2.30 pm by juries, and is fair and clear? Furthermore, does he accept that the common law has enshrined this principle Prayers—read by the Lord Bishop of Bristol. for a very long time; that it was spelt out in detail in the case of Palmer 40 years ago, and, indeed, enshrined in Section 76 of the Criminal Justice and Immigration Crime: Self-defence Homicide Act 2008; and that any doubts that exist exist more in Question the minds of tabloid editors than of judges and lawyers? 2.37 pm Lord McNally: My Lords, as always, there is a great Asked By Lord Mackenzie of Framwellgate deal of wisdom in what the noble Lord says—and a To ask Her Majesty’s Government whether they great deal of accuracy as well. We intend to provide will issue the police with further advice or guidance greater clarity with this new guidance and through the on self-defence homicide cases, in the light of recent clauses in the Legal Aid, Sentencing and Punishment decisions by the Crown Prosecution Service. of Offenders Bill, which will be coming before this House shortly. It is certainly true that, in so doing, we The Minister of State, Ministry of Justice (Lord will be bringing into statute what is already a very McNally): My Lords, the Ministry of Justice is working fixed principle in our common law. with the Home Office to update the code of practice made under the Police and Criminal Evidence Act 1984 Lord Bach: My Lords, Clause 131 of the Bill that to give the police further such guidance. A revised the Minister just mentioned is the one clause that code was published for consultation on 1 November. deals with this issue of self-defence. However, what is That consultation will end on 24 January. not clear about the law as it exists at present? That feeling is quite widespread across the House. Why Lord Mackenzie of Framwellgate: I thank the Minister does it need another clause in another long Bill? for that Answer. Does he agree that when burglars enter an occupied dwelling by criminal trespass and as Lord McNally: I think that the answer to that was a result one of the burglars is killed or seriously indicated in the previous question and by the fact that injured by a householder who is clearly defending the noble Lord has tabled this Question today. There himself, the public reaction generally is that the burglar are newspaper articles and general assertions made deserved everything that he got? It is clear that this about what is right or wrong. Under our common law, matter has to be seriously investigated, but is it really home owners, small shopkeepers and householders necessary, except in serious cases, for the police formally can use reasonable force to defend themselves or their to take the householder into custody and arrest him properties and will not be prosecuted. My right honourable with all the consequences that that involves, including friend the Lord Chancellor has made clear that he searching, placing in cells and so on? Is it not possible believes that the current law is broadly in the right for the police to use their discretion more often and to place. However, we believe that it does no harm, in the investigate the matter by inviting the householder to light of a lot of these questions and articles, to make it co-operate without formal arrest? After all, he is hardly clear in the forthcoming Bill. I think that it will do a likely to abscond. Does the Minister also agree that lot of good in establishing where people, including the recent, highly publicised decisions do not capture the police, are positioned in this. It will also deter any public mood? After all, liberty is precious and should thought that we are drifting towards any kind of not be removed lightly, particularly from an innocent endorsement of vigilantism or keeping a six o’clock victim. special under the pillow. This is a consolidation measure to clarify the law. Lord McNally: My Lords, I fully appreciate many of the points that the noble Lord, Lord Mackenzie, made in that question, which echoed a number of Baroness Farrington of Ribbleton: My Lords, will points that were raised in a debate initiated by my the Minister clarify the question from my noble friend noble friend Lord Blencathra on 20 October. Following Lord Mackenzie about the nature and circumstances that debate the Director of Public Prosecutions, Keir in which formal arrest takes place? Starmer, wrote to me to meet some of the points made in that debate by the noble Lord and other Peers. The Lord McNally: I think that I have made that clear. director made the point that the CPS had explained We are consulting on guidance. However, the trend of that in certain circumstances the police may be advised the Question tabled by the noble Lord, Lord Mackenzie, that an expedited, streamlined file is required following was that somehow policemen could make an instant initial investigations by the police. However, he made judgment. Circumstances are very varied in these situations it clear that the CPS reserves the right to ensure that and the Director of Public Prosecutions has made it adequate time is allowed to conduct a comprehensive clear—and I think that the draft guidance implies review of all the evidence available, in accordance with this—that although police are invited to use common the Code for Crown Prosecutors. sense and discretion when assessing circumstances, the 119 Crime: Self-defence Homicide[LORDS] Economy: Monetary and Fiscal Policy 120

[LORD MCNALLY] Lord Sassoon: My Lords, the Bank of England is Director of Public Prosecutions cannot abandon his completely sticking to its statutory responsibilities responsibilities in examining whether or not a crime and to the letter setting out its monetary policy mandate. has been committed and should be prosecuted. If the noble Lord, Lord Peston, would care to look at the latest commentaries in the Bank’s quarterly documents Lord Foulkes of Cumnock: My Lords, will the Minister —he is nodding—he will see that they identify the make clear to the viewers and listeners from north of risks to inflation on the undershooting rather than the the border that all the answers he has given so far overshooting side. They identify a number of factors apply only to England, and perhaps also to Wales? that will reverse the trend in inflation early in 2012. That is why the Bank decided to recommend increased quantitative easing to the Treasury to ensure that there Lord Elystan-Morgan: Including Wales. is no risk of an undershoot on the inflation target.

Lord Foulkes of Cumnock: Yes, including Wales, Lord Newby: My Lords, does the Minister agree thank you. Will the Minister consider having some with the recent report of the Treasury Select Committee discussion with his counterpart in Scotland about that, in a time of economic crisis, the buck stops with lessons learnt from Scots law, which very often—and, the Treasury, and that it should therefore be able to I think, in this case—is superior to English and Welsh direct the Bank in such circumstances? law? Lord Sassoon: My Lords, it is completely the case Lord McNally: I am very happy to have such that the Chancellor of the Exchequer sets the inflation discussions. The noble Lord would be amazed, in the target for the MPC. I am sure my noble friend is not 18 months I have been in this job, how often the advice suggesting that we should go back on the previous is: “They actually do this a lot better in Scotland”. Government’s decision, which I applaud, to give the Bank of England independence in this area. Monetary policy should be the first line of defence in the face of Economy: Monetary and Fiscal Policy economic shocks. Question Lord Myners: My Lords, monetary policy should 2.45 pm be the first line of defence against the ravages of inflation. I put it to the Minister that the Government’s Tabled by Lord Barnett fiscal policy, draconian as it is, is forcing the Bank of To ask Her Majesty’s Government how they are England to adopt a highly accommodative monetary co-ordinating monetary and fiscal policy in the policy with a disregard for the inflationary consequences, current economic climate. as is evidenced in the Bank’s quarterly report in its failure to achieve any of its inflationary objectives over the past five years. Lord Peston: My Lords, on behalf of my noble friend Lord Barnett, and at his request, I beg leave to ask the Question standing in his name on the Order Lord Sassoon: My Lords, I am sorry that the noble Paper. Lord, Lord Barnett, is not here, because we have not had anything from his quote book for quite a time. I offer the noble Lord, Lord Myners, this from another The Commercial Secretary to the Treasury (Lord place on 23 November 1978, when the noble Lord, Sassoon): My Lords, the independent Monetary Policy Lord Barnett, was asking for cross-party support on Committee has operational responsibility for monetary inflation. He said: policy. Fiscal policy is a competence of the Treasury. “I had hoped to have the support of the Opposition instead When making its monetary policy decisions, the MPC of the carping criticism that we receive constantly … We intend takes into account fiscal policy, among other factors, to make our counter-inflation policy work”.—[Official Report, when judging the outlook for growth and inflation. A Commons, 23/11/78; col. 1468.] non-voting Treasury representative attends monthly Well, as it was in 1978, it is now. We should let the MPC meetings and plays a key role in ensuring the Bank of England get on with it. appropriate co-ordination of fiscal and monetary policy. This includes, when appropriate, briefing the MPC on Lord Forsyth of Drumlean: My Lords, will my noble the Budget. friend confirm that opinion polls show that a vast majority of voters believe that the deficit is the same Lord Peston: I thank the Minister for that. Bearing as the debt? Can I suggest to him that, in order to get in mind that the monetary policy of the Bank of across the difficulties which the Government are facing England is failing in its statutory duty to hit the because of the size of the debt, which is still growing, inflation target set by the Government and does not he should consider putting on the Treasury building a even seem to be trying, and that fiscal policy has got us large screen that shows how the deficit is going up nowhere near full employment or a sustainable rate of every day? real growth, is it not the case that far from there being co-ordination of monetary and fiscal policy, what we Lord Sassoon: The debt is going up. Far be it from see on the part of the Government is simply an utter me to criticise my noble friend, who quite rightly shambles? makes this point. If the deficit was running at the level 121 Economy: Monetary and Fiscal Policy[8 NOVEMBER 2011] Devolved Administrations 122 that we inherited from the previous Government, of that a proportion of the vast resources held under 11.1 per cent a year—the highest deficit level in our management by pension funds could safely and sensibly history—it would not take very many years before our be mobilised to lift investment and infrastructure and, debt got up to the level of the Italian and the Greek through appropriate provision for early access to pension debt. That is why we will continue to keep our deficit lump sums, to lift personal spending? policy on track and keep our interest rates low. I entirely agree with my noble friend that we must be Lord Sassoon: I certainly agree with the noble Lord reminded about the level of debt as well. that infrastructure is one of the themes and priorities of the forthcoming growth review. The Government Lord Eatwell: My Lords, in his first Answer to my are looking at encouraging anything that encourages a noble friend, the Minister said that the Monetary further source of investment into our infrastructure Policy Committee takes account of growth and inflation, from pension funds and others, so I certainly take his but its statutory responsibility is to take account only suggestions on board. of inflation. When did the Treasury change the policy?

Lord Sassoon: My Lords, I will let the noble Lord, Devolved Administrations: Financial Lord Eatwell, read the actual words in Hansard tomorrow. Flexibility [Interruption.] No, I am not changing anything. The Question MPC has to take account of the prospects for growth and inflation when it is judging how to set the direction 2.55 pm of monetary policy. Its target is an inflation target, but it needs to take account of a wealth of other factors Asked By Lord Wigley when making its decision, so that is what it does. To ask Her Majesty’s Government what discussions they have held with the devolved administrations Lord Taverne: My Lords, do the Government not concerning the future working of year-end financial agree that in the present circumstances a simultaneous flexibility. policy by many countries of rigid deficit reduction and fiscal contraction carries the danger of leading to The Commercial Secretary to the Treasury (Lord depression, which will not cure the deficit? Sassoon): My Lords, my right honourable friend the Chief Secretary to the Treasury announced on 18 July Lord Sassoon: My Lords, I certainly agree that that the Treasury has agreed with the devolved different countries should be taking different tracks, Administrations that a modified version of the budget depending on their particular deficit and debt positions. exchange system will apply to their underspends during I can only quote the concluding statement of the IMF, the spending review period. The devolved Administrations in its recent assessment, that: will be able to carry forward DEL underspends up to a “The current policy mix of tight fiscal and loose monetary maximum of 0.6 per cent of resource DEL and 1.5 per policy remains appropriate”. cent of capital DEL from one year to the next.

Lord Kinnock: My Lords, the Bank of England is Lord Wigley: My Lords, does the Minister agree patently seeking to foster growth with its very low that it is much more prudent for the devolved interest rates and record QE, but the Government are Administrations to carry forward, as a capital sum, actually depressing growth to virtually zero with their any money that is unspent at year end rather than to policy of public expenditure cuts that are too far and rush to spend it? Given that the Assembly Ministers, too fast. Is it not patently obvious that there is absolutely as he said, have agreed with the Treasury a formula for no co-ordination in the national interest at all? devolved Administrations to carry forward underspends within these defined limits, why was the Treasury Lord Sassoon: My Lords, I know that it is not for insisting on denying to Wales, and to the National me to ask the questions this afternoon, but I wonder Assembly, some £400 million of accrued underspends how much more expenditure and deficit the noble in Wales, money which Parliament had voted for use Lord, Lord Kinnock, would advocate before we risk in Wales and which had been accumulated on a formula getting into interest rates that are at the level of France, previously agreed with the Treasury? Will the Minister let alone of Italy. Last night the UK had 2.3 per cent now discuss with his Treasury colleagues the possibility 10-year interest rates, and Italy had 6.6 per cent heading of releasing that sum over the next two years to for 6.7 per cent. Which would the noble Lords opposite augment the National Assembly’s much depleted capital like? We will stick to our deficit reduction plan, because resources? that is what keeps interest rates low, and that is what our households and our businesses need. Lord Sassoon: My Lords, sadly, the previous Government left us with a pot of money of some Lord Howarth of Newport: My Lords, if the Minister £20 billion which had been unspent by departments, insists that there is no case for altering the configuration which, if now spent, would simply increase our deficit; of monetary and fiscal policy, may I draw to his it would increase the stock of debt by £20 billion. It attention another suggestion? Will the Government was necessary for the Government, as part of our respond positively and energetically to the proposal deficit reduction strategy, to cancel that EYF, but the put forward by the Society of Pension Consultants stock of cancelled underspends in the devolved 123 Devolved Administrations[LORDS] Somalia 124

[LORD SASSOON] is that there is no consensus on how to measure needs, Administrations was 8.4 per cent of the total, compared which would be required to bring in some needs-based with 15 per cent of expenditure, which the devolved formula. Administrations represent, so what they were prevented from spending was rather less proportionately than Baroness Hollis of Heigham: My Lords, on the applied to the United Kingdom as a whole. contrary, I would suggest to the noble Lord that there is plenty of research on how to bring in a needs-assessed Baroness Randerson: My Lords, the decision not to formula, given that both devolved Administrations allow the EYF for Wales was something which took distribute their money down to local authorities on many people there by surprise. Can the Minister tell us precisely that basis. Would the noble Lord therefore whether it took the Government of Wales by surprise accept that Wales is indeed underfunded, that the or were there discussions with the Government prior Barnett formula effectively misspends and overspends to the decision by the Treasury at the time of the by £4 billion and that a rectification of that would Budget? surely help the Minister to address the deficit?

Lord Sassoon: My Lords, as I have already explained, Lord Sassoon: My Lords, what I said was that there the Government inherited an extremely difficult deficit was no consensus. Of course there is plenty of research position. We took decisions that affected the whole of but there is no consensus, and that is what is needed in the United Kingdom and this one was consequential this area. on decisions that needed to be taken to bring the deficit position under some sort of control so that departments were not completely without controls Lord Myners: My Lords, the Minister brings on their expenditure. After that, there were detailed considerable private sector expertise to his role, including discussions led by my right honourable friend the at Union Bank of Switzerland. Can the noble Lord Chief Secretary, which led to the proposals which are tell the House whether in his private sector experience the subject of this Question. he has ever come across a situation where companies say that if you do not spend the money, it will be taken away from you? What prudence does that encourage? Lord Touhig: My Lords, the £400 million, to which the noble Lord, Lord Wigley, referred, could certainly help to sustain public services in Wales and boost the Lord Sassoon: My Lords, I believe that it was under economy. Parliament has voted that money for the the previous Government in 2006—the noble Lord Welsh Assembly. Does the Minister not think that it is will remember this better than me—that the health arrogance on the part of the Government to ignore service overspent its budget and reserve by £182 million, the will of Parliament? and the previous Government stopped the EYF system. So I really do not think that we need lectures about me and my experience; it was the noble Lord’s Government Lord Sassoon: My Lords, a lot of factors have to who stopped it. be taken into account in setting expenditure for the devolved Administrations, not least our favourite Barnett formula, but the fact remains that expenditure on a Somalia head-count basis in Wales will, in the present period, Question be some 12 per cent higher than the per head expenditure in the United Kingdom. 3.01 pm Lord Eatwell: My Lords, was the Welsh Assembly Asked By Baroness Kinnock of Holyhead consulted before this decision was made? To ask Her Majesty’s Government what action they are proposing through the European Union Lord Sassoon: My Lords, the United Kingdom and other organisations following the Kenyan military Parliament—this House and another place—was not offensive in Somalia. consulted before an awful lot of spending decisions were taken. That is the way that Governments make spending decisions. The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford): My Lords, we are discussing the Kenyan military intervention in Somalia Lord Roberts of Llandudno: My Lords, the Minister with many of our partners, including the EU and has, I think, criticised the Barnett formula. What plans other organisations. The UK supports Kenyan action does he have to bring in a different formula regarding so long as it is undertaken in co-ordination with the Wales and Scotland? Transitional Federal Government, and so long as it complies with international law. We will work with Lord Sassoon:My Lords, would I ever be so bold as Kenya, the TFG, the EU and other organisations, such to criticise the Barnett formula? The Barnett formula as the Intergovernmental Authority on Development, has been widely questioned, not least by the noble to ensure that any action does not impede humanitarian Lord, Lord Barnett, himself. However, the Government’s operations and is consolidated by stabilisation and priority has to be stabilising the public finances. If, in the development of credible, accountable governance due course, the formula is to be superseded, the challenge structures. 125 Somalia[8 NOVEMBER 2011] Somalia 126

Baroness Kinnock of Holyhead: My Lords, I thank rightly alluded. We will continue to help with what is the Minister for his Answer. Will the Minister join me an enormous imposition and burden on Kenya at this in regretting the under-reporting of what is a rapidly difficult time. developing crisis that threatens to escalate into a major military conflict with consequences, as the Minister has said, that inflict further tragedy on the Lord Avebury: My Lords, do I understand from people of Somalia, many thousands of whom are what my noble friend said that the Government consider starving and urgently need humanitarian aid? Is it not that Article 51 confers an unrestricted right of self-defence likely that this Kenyan incursion will perversely bolster under the charter against aggression by a non-state support for al-Shabaab and that it will carry out actor? Or does my noble friend rather consider that if vengeful reprisals in Kenya and beyond? When US a resolution comes before the Security Council we drones based on a remote airfield in Ethiopia are should attempt to impose some restrictions on the flying over the area and the French navy has been extent to which Kenyan troops may occupy large areas active to the south of Kismayo, can the Minister give of Somalia, and that they should be circumscribed in a clear assurance that Her Majesty’s Government do a similar manner to that which applied to the NATO not intend to undertake a similar involvement and invasion of Libya? instead will work for a diplomatic rather than a military response? Lord Howell of Guildford: It has not yet come before the United Nations, and there is strong Lord Howell of Guildford: I totally agree with the evidence at the United Nations that an interest in the noble Baroness, Lady Kinnock, about under-reporting. matter is not encouraged. Indeed, there are indications It is extraordinary how little coverage there has been that if a resolution were pressed it might lead to of a very serious situation affecting the Indian Ocean further validation in precisely the opposite direction nations of the coast of east Africa. As for vengeful to the one that the noble Lord indicated. Of course, retaliation, I am afraid that revenge is one of the Article 51 does not permit unrestricted self-defence; it currencies of the area. The Kenyan military operation requires a real sense of challenge to national security is of course a response to the invasions into Kenya by and that the necessary defence should be proportionate. al-Shabaab and other forces, and it is important to That is very important. That is what the Kenyan note that it is an attempt undertaken with the support authorities will need to establish to satisfy our criteria of the TFG in Mogadishu, to bring some order and for support. control to the situation. We have to face the reality that revenge operations may take place but there has Lord Anderson of Swansea: My Lords, should not to be a firm attempt to bring order and a better kind a key factor in our response be that a friendly of control, at least to the border area between Kenya Commonwealth country, Kenya, has been subject to and Somalia. As to the noble Baroness’s last question, intense provocation from the failed state on its borders, we support the Kenyan action on the conditions that which has harmed its financial interests in terms of I have clearly made: that it is important to ensure full tourism as well as the major humanitarian matter? Is compliance and that it is a legal operation under it not also a factor that the stability of the area might Article 51 of the UN charter. be increased if we were to encourage Commonwealth countries to move towards the recognition of the only Lord Alton of Liverpool: My Lords, has the Minister stable part of Somalia; namely, Somaliland, the seen the reports of 4 November from the United former British protectorate, which wants to join the Nations that the number of Somali refugees fleeing Commonwealth? war and drought to the Dadaab refugee complex in Kenya has increased to a staggering 463,000 people, Lord Howell of Guildford: The noble Lord is absolutely making it the largest refugee camp in the world? right about the challenge to Kenya. We all bear in Catastrophically, the numbers are growing daily. Has mind the stories of the hideous kidnappings that he also seen the reports from Médecins Sans Frontières have taken place, including the revolting story of the thatitcantakeupto40daysforafoodcardtobe pirates or kidnappers who abducted a disabled lady issued to refugees, including children, which is leading and refused her drugs until she died. It is a repulsive to levels of malnutrition and illness growing considerably story. He is absolutely right that there are grievous in the camp? pressures on Kenya and indeed on all Indian Ocean and African states to do something. Co-operation Lord Howell of Guildford: I have seen some but between states—between Mogadishu and Nairobi in not all of the reports. We have also seen reports that this case—must be a sensible starting point for action. there appears to be pressure to reject refugees and to As to the recognition of Somaliland, the problem is run down the numbers in that location. We have that this is not a country recognised by anybody in the urged the Kenyan authorities to continue allowing international community. It would be a one-off refugees in from Somalia. We recognise Kenya’s huge development. We take the view that Somaliland should generosity in hosting refugees, which it has done over decide its own relationship with Somalia. We work many years, and we will continue to support these very closely with it. Its administration is good, in efforts in the coming months. We certainly urge contrast to that of the rest of Somalia, and we support Kenya not to forcibly return Somali refugees over it. However, we do not think that fracturing the area the border. There are obviously major aspects of and recognising a single state individually would help administration and provision, to which the noble Lord matters. It might hinder them. 127 Seventh Select Commttee Report[LORDS] Eighth Select Committee Report 128

Procedure of the House: Seventh Select The Chairman of Committees (Lord Brabazon of Committee Report Tara): My Lords, I beg to move that this House takes note of the 8th Report of the Procedure Committee. Motion to Agree This is an unusual Motion, since normally I would 3.09 pm invite the House to agree the report, and the House’s agreement to the Motion would give effect to the Moved By The Chairman of Committees committee’s recommendations. However, this report That the 7th Report from the Select Committee makes no recommendations; it contains a number of (HL Paper 206) be agreed to. proposals, and each of these proposals is listed on today’s Order Paper as a separate Motion. In other The Chairman of Committees (Lord Brabazon of words, the Motion that I am now speaking to is purely Tara): My Lords, there are two Procedure Committee preparatory. It gives me an opportunity to describe the reports on the Order Paper today, and I sense that procedure for today’s business, but does not itself noble Lords may find the second of these more interesting commit the House to anything. The substantive decisions than the first. But the seventh report also raises important will be taken when we come to the Motions on proposals 1 matters, so I shall take a few moments to outline the to 9. committee’s recommendations. The Procedure Committee’s report contains proposals As noble Lords will be aware, the Localism and arising out of the Report of the Leader’s Group on Working Public Bodies Bills have now been through both Houses, Practices, chaired by the noble Lord, Lord Goodlad. and are in the final stages of ping-pong. Both are The report was commissioned by the Leader of the likely to be granted Royal Assent in the near future, House, and debated fully in the House on 27 June. As and in the case of the Public Bodies Bill in particular, the report was made to the Leader of the House, it is that may be quickly followed by the laying before for him to decide how to go about implementing Parliament of a number of important draft orders. particular recommendations. The proposals on today’s Clause 11 of the Public Bodies Bill, which was of Order Paper were brought before the Procedure course inserted in your Lordships’ House, sets out the Committee either by the Leader himself, or by the process whereby Parliament will scrutinise these orders. Clerk of the Parliaments at the Leader’s request. A key role is played by any committee which is charged The committee has decided that, rather than express with reporting on any draft order. In particular, if this a view on the individual proposals, we should simply committee recommends that a particular draft order present them to the House in a neutral form, so that be subject to an enhanced affirmative procedure, involving the House may take a view on them. Members of the a longer scrutiny period, and an opportunity to make Procedure Committee themselves have different views, further representations to the Minister, then that and the committee did not attempt to come to a single recommendation will have effect unless the whole House view on the merits of these proposals. agrees by resolution to overturn the recommendation. The effect of the report before the House today will What we did do was to try to put the recommendations be to charge the Merits of Statutory Instruments into a clear, workable form. In some cases, therefore, Committee with the tasks described in the Bill. This we agreed modifications to the original Leader’s Group will involve some technical changes to the committee’s proposals. However, the committee’s agreement to these terms of reference, which are annexed to the report. modifications does not mean that the committee agreed the proposals themselves. The provisions in the Localism Bill relate to orders akin to legislative reform orders, and our recommendation The Procedure Committee’s report covers 10 distinct is that broadly the same procedure, of scrutiny by the areas, which the Leader invited us to consider. The Delegated Powers and Regulatory Reform Committee, Leader’s Group made many other recommendations, should apply. Again, this will require some technical and my understanding is that the noble Lord the changes to the committee’s terms of reference. Leader of the House will, in due course, bring forward I hope noble Lords will join me in paying tribute to more proposals, in a similar format, either to the the work of both committees affected by this report, Procedure Committee or to other committees of the and our confidence that they will undertake their new House, such as the Liaison Committee. tasks efficiently and fairly. But this is a matter for the Leader, not for me, and I I hope this explains the background to the seventh would like to emphasise my own neutrality as Chairman report, and I beg to move. of Committees and Chairman of the Procedure Committee. As I have said, the committee did not Motion agreed. agree or even attempt to reach agreement on the proposals before the House today. I therefore have no mandate from the committee to speak either for or Procedure of the House: Eighth Select against them. My only job is to assist the House in Committee Report coming to decisions. I therefore propose simply to Motion to Take Note move each Motion formally as it is called. In the case where there is an amendment down, that amendment 3.12 pm will then be called. Even where there are no amendments on the Order Paper, noble Lords may wish to speak to Moved By The Chairman of Committees particular proposals. I shall do my best to assist the That this House takes note of the 8th Report House where possible but I will not address the merits from the Select Committee (HL Paper 213) of any of these proposals. Similarly, I shall not prevent 129 Eighth Select Committee Report[8 NOVEMBER 2011] Procedure of the House (Proposal 1) 130 the House from coming to a decision on these Motions Lord Hughes of Woodside: A document was issued by begging leave to withdraw any of them. Today is a by the Government Whips Office saying that the Lord day for decisions, and I shall move each Motion when Speaker should call sides at Question Time, but the the time comes. I beg to move. Order Paper talks about calling groups. Which is correct? Motion agreed. Lord Wakeham: I have no idea. I am speaking only on proposal 1; that is all I know about. I have had Procedure of the House (Proposal 1) many years’ experience of whipping and I consider Motion to Resolve that, like other things, it is best done in private.

3.15 pm The Chairman of Committees (Lord Brabazon of Tara): My Lords, it might be convenient if I intervene Moved By The Chairman of Committees at this point to assure the noble Lord, Lord Hughes, To move to resolve that the role currently performed that the paper that we should be referring to is the by the Leader of the House or Government front Procedure Committee report and/or today’s Order bench during oral questions and oral statements be Paper—and nothing that has been issued by anyone transferred for a trial period to the Lord Speaker, else. or in her absence the Chairman of Committees or another Deputy Speaker; Lord Wakeham: If I may resume, the first point that That the role thus transferred includes the I was making was that the Leader of the House does responsibility to arbitrate between groups within not direct the House but it offers advice. The second the House, but not any responsibility to arbitrate point is that the proposal before us today deals only between individual members by name; with which party or group the Leader thinks should have the next turn; it does not deal with the question That the trial begin at the start of the 2012–13 of two Peers rising from the same Benches. session of Parliament, and continue until the start The third point on this matter, and in my view the of the summer recess 2012; most crucial, is that the working party committee That following the completion of the trial, the completely omitted what is very clear in both the procedure at question time and during oral statements Companion and Erskine May: that the Leader of the should revert to its current form, pending a review Opposition and the Convenor of the Crossbench Peers by the Procedure Committee. have a role to play in the order in the House. That is very important. In my view, in the circumstances when Lord Wakeham: My Lords, I declare an interest in two people from the same party or two Cross-Benchers these matters. I am a member of the Procedure Committee, get up, it should be for the Leader of the Opposition, a former Leader of this House and the only living the Leader of the government party or the Convenor person who has been Leader both of this House and to advise the House which of the noble Lords he of another place—in fact, only the fifth person in thinks the House should most like to hear. It is these British history who has ever held both jobs. I say all failures to implement self-regulation over recent years that because I think what I am going to say will be that have got us into our present difficulty, and the pretty disagreeable to a great many people in the sooner that we get back to proper self-regulation, the House, and I thought that if I said it now, at least they better. In my day, the Leaders of the opposition parties, could not accuse me of a lack of experience. My view the noble Lord, Lord Richard, who is not here, and is that proposal 1 is grossly unfair on the Lord Speaker, the late Lord Jenkins of Hillhead, were both very is bad for the House and would be the end of self- helpful to the House over matters of order. regulation. Secondly, this proposal is unfair on the Lord First, the proposal is bad for the House. The working Speaker. When we set up the office of Lord Speaker, practices report seems to be based on a number of the House had the benefit of three separate Select misconceptions. The Leader’s role is not to make Committees manned by some of our most experienced decisions but to advise the House of what he thinks parliamentarians, taking evidence from virtually all the will of the House is, and that expression of view the other experienced parliamentarians who were not can of course be challenged. The Leader, as is clear members of the Select Committee. Those reports were from the proposal before us, advises only which group very strong in saying that our unique system of self- or party he suggests the House may like to hear. That, regulation needed to be preserved and those conclusions of course, leaves a big gap regarding what happens, as from such an authoritative source should not be is often the case, when two Peers from the same party overthrown from a report which was based on rise to speak. misconceptions and did not in any case consider many of the issues, nor as far as I can see took any evidence Lord Hughes of Woodside: My Lords— from those with the appropriate experience. The recommendations that the role of the Leader Noble Lords: Order! should be taken over by the Lord Speaker poses this problem for self-regulation: will the advice of the Lord Speaker be capable of challenge as is the advice of the Lord Wakeham: I do not mind. Leader? It is not a comfortable thought. It would be 131 Procedure of the House (Proposal 1)[LORDS] Procedure of the House (Proposal 1) 132

[LORD WAKEHAM] Lord Lloyd of Berwick: We considered this question disastrous if it were and the end of self-regulation if it at very great length when we had the Select Committee were not. It would produce a regime for this House on the Speakership of the House six years ago. My which is more restrictive than even the House of view then was, and still is, that intervention at Question Commons which deals with these matters by points of Time is a job for the Leader of the House as leader of order. So we need to think very carefully. the whole House and not as a member of the Government. Secondly, we are asking the Lord Speaker to assume If the Leader is not present, then it would be a job for responsibilities not just from the Leader but also from the Deputy Leader of the House as deputy leader of the Leader of the Opposition and Convenor that are the whole House. It was never my view that it was a not even written down or clearly defined. There are job for the government Front Bench and therefore I do also some very practical matters to be considered. I not understand the terms of Proposal 1, which refers just wonder whether the lonely Woolsack is the right to the job being, place for a Lord Speaker with these roles. When I was “currently performed by the Leader of the House or Government the Leader of the House sitting here, it was the nods front bench”. and the winks from the Leaders of the other parties, That is not the job that we conferred on the Leader of plus, if I may say so, the mutterings of the Clerk, the House six years ago. To insert “Government front which were very valuable in making sure that I did not bench” at that point in the proposal seems either to make mistakes. Even if we pass this Motion, the Lord beg the question or, at any rate, to muddy the waters. Speaker stuck up there will not be in a position to administer it in any fair way. Therefore, my advice to The question for the House is quite simply this: has the House is not to pass this Motion, and, secondly, the present Leader of the House and his predecessors to go back to self-regulation as it should be, because I on this side of the House impartially performed the do not believe that there are many people in this House function that they were then given during the past six who properly understand what self-regulation is. years? I believe that they have. My only criticism, if I may say so, of the present Leader of the House is that Lord Geddes: My Lords, I did not expect to be when everybody is shouting together to get in, he does intervening quite this early in this debate. When we not intervene quick enough. It is very important that last discussed the report by my noble friend Lord he should intervene as quickly as he can when that Goodlad, I used the expression that this recommendation situation arises. If in future he does intervene quickly, was a “slippery slope”. I do not move away from that I see no possible advantage in transferring the job consideration. I intervene with a decade of experience from the Leader of the whole House to the Speaker as a Deputy Speaker and very much in support of my and I see many disadvantages, some of which have noble friend Lord Wakeham. There are practical problems already been mentioned by the noble Lord, Lord in this proposal. I will mention just one or two of Wakeham. Inevitably it will, in the end, lead to a loss them. of self-regulation. The first is that from that position it is impossible to see the original Cross Benches. You simply do not Lord Grenfell: My Lords, I am not particularly have a view. Earlier this year, my noble friend Lord happy with this proposal and never have been. My Colwyn had a brilliant suggestion for resolving that: views have been somewhat confirmed by what the he would use his dentistry experience and get an noble and learned Lord, Lord Lloyd of Berwick, has elevated Woolsack. That had considerable appeal. More just said. However, I wish to take up the point made by seriously, of course your Lordships will know that in the noble Lord, Lord Geddes, who has several times in another place—and I use that expression advisedly—the recent times referred to the “slippery slope”. I simply Speaker sits in an elevated position, so he or she is able do not buy this argument about the slippery slope for to see the House. Believe me, from the Woolsack that the following reason: in a properly self-regulated House, is not possible. the House does not need to go anywhere it does not The only other point I would like to mention is that want to go. It has the power to say, “This far and no if this proposal were agreed to, the Lord Speaker or further”. Whatever changes might be made, they do the Deputy Speaker would be able to call groups. not automatically mean that we are living in fear of a However, as my noble friend Lord Wakeham said, if slide down a slippery slope because they can always be three members of Labour Party—I am not picking on stopped. the Labour Party, but use it merely as an illustration—were to rise simultaneously, they would all have to sit down My second point is that I am not very keen on trial again as the Lord Speaker rose, so there would be periods. The trouble with a trial period is that the confusion to start with. Secondly, if none of those determination of whether that trial period has yielded three or only one gives way, there would be a positive or negative results is very difficult to judge confrontational position and the Lord Speaker would and can be extremely contentious because we do not be almost obliged to start naming names. That is not have clear criteria about how we judge whether they in this recommendation and I would vote very strongly have been positive or negative. Making that determination against it. This means that the Leader of that party or could simply cause more problems for the House. the Leader of the House would then have to nominate On the whole, I feel that the House works well or suggest the Peer concerned. In that respect, we will enough with the system it has, provided, as the noble have gone round in a circle and will be back to and learned Lord said, the Leader of the House and self-determination. I do not approve of this proposal others on Front Benches take the responsibility necessary and I will certainly vote against it if it comes to a vote. to make it work. If they do not, then you are inviting a 133 Procedure of the House (Proposal 1)[8 NOVEMBER 2011] Procedure of the House (Proposal 1) 134 tsunami of requests for some sort of reform which or towering physical presences, and sometimes it is not would probably in the end destroy the self-regulation pleasant competing with one’s own side. Therefore I of the House. would like further consideration of this matter in the future. Baroness Boothroyd: My Lords, I intend to support the proposal before us this afternoon. I am in a great Lord Rooker: My Lords, for two years while the minority of one in believing that this House is self- noble Baroness, Lady Amos, was the Leader of the regulating. I have not found that to be so. I have found House, it was delegated to me to perform the functions it alien to me that a member of a political party who of the Deputy Leader. I can assure the noble Lord, sits on the government Front Bench, whichever party Lord Geddes, that the Lord Speaker can see more may be in power, as a Minister of the Crown intervenes, people around the House than the person sitting on interferes and determines which group in this House the Front Bench can. There were a number of times should be next to put the question. That is not a when I had to be elbowed because I could not swivel decision for a Minister of the Crown—a political my head to see other groups. That is a fact. On the animal, if I may put it like that—to take. To me that is other hand, the configuration of this House is not for the judgment of an independent body, and that is the same as that of the other place, where not only do the Lord Speaker, in whom we all have confidence. We the Clerks sit in front of the Speaker but the Speaker’s would abide by the decisions of that Lord Speaker. I secretary usually stands alongside him giving tips if he would therefore like to see this for a trial period, and I does not spot something. favour the proposition that is before us this afternoon. I take very much what the noble Baroness, Lady Boothroyd, said. As a government Minister, it is not 3.30 pm appropriate to choose who asks questions of the Lord Higgins: My Lords, I also had the privilege of Government. That is the fundamental principle we are being on the Select Committee on the Speakership of dealing with here. That should not be the role of a the House, which, as has been pointed out, came out government Minister, and we need to find a suitable very strongly indeed against the proposal which is way. I can understand those who do not want change. before us this afternoon. Those who did not want a Lord Speaker in the first place can see, in years to come, the neutral person in I would just make one other point, which has been the Chair calling the supplementaries. That in itself touched on earlier, and which I would have thought would be an advantage. I do not have the statistics in might possibly have appealed to the noble Baroness, front of me, but something like 50 per cent of the Lady Boothroyd. In the House of Commons, the supplementaries are asked by 10 per cent of the Members. Clerks sit immediately in front of the Speaker and can That is because they have the loudest voices. It is a lean backwards to give advice. It may be very often bully boy’s tactic. We try to encourage people to come that the Speaker in the other place does not need that into this House in order to use their expertise, but advice, but there are occasions which are highly technical when it comes to Question Time, they look at what and where such advice may be useful. It would be happens and say, “I am not playing a role in this”. quite impossible in this House, as it is presently configured, Doing it that way is not professional and there has to for the Clerks to give advice to the Speaker without it be another way.I think that this is just a small modernising being very apparent—it is not always apparent in the step. other place—that the advice has been given.

Baroness Sharples: My Lords, I have been in your Baroness Quin: My Lords, I do not claim to have Lordships’ House for 38 years and I should just like to the unique experience of the noble Lord, Lord Wakeham, say that I agree with the noble and learned Lord, Lord but having been a member in the other House for a Lloyd. I think that the Leader of the House should be number of years, like many people I think, I often on his feet rather more quickly when two people are compare and contrast the proceedings between both trying to ask a question. Houses. In many ways, the experience of being in the House of Lords is a very favourable one in that respect. However, for the reasons advanced by the Lord Campbell of Alloway: My Lords, I want to noble Baroness, Lady Boothroyd, I feel that it is worth make a very short intervention because everything at least having a trial period where we have these I have on my notes has been said by my noble friend matters judged by the independent voice of the Speaker. Lord Wakeham and the noble Lord, Lord Grenfell, so On this occasion, I would actually like to consider really there is little more to say but this. The question going further down the “slippery slope”, although I is: are we to retain a self-regulating Chamber? If so, normally like the self-regulation approach very much. why dabble with the concept of opening a gateway These days, however, I have to say that Question that can never be closed? To what end and where is the Time—certainly for me and, I think, some others—can justification for it? be quite stressful when one is competing so much with Last night I read the official reports on this. There very active and well prepared Members on one’s own is not a shred of evidence to support proposal 1. side, as well as trying to intervene in Questions in Whatever was said about the Leader of the House and relation to other groups. In many ways, we should the Convenor of the Cross Benches, it forgot to mention consider the Speaker as having the ability in the future the interests of the spiritual Benches. They are all the to call Members because I think that it would create a people who will decide what to do; they have the fairer distribution. Not all of us have booming voices authority. You cannot land this job on a Speaker who 135 Procedure of the House (Proposal 1)[LORDS] Procedure of the House (Proposal 1) 136

[LORD CAMPBELL OF ALLOWAY] power should be transferred from somewhere that—let does not have the authority and should never have it. I us be blunt—does not operate that wonderfully at am not criticising any person or Speaker; I am talking present. I defy anyone to say that it is a model in how it about how the House should be run. It should be run operates at present that others should follow. It is a by the arrangement of consultation that was referred small change in the right direction without any fear to by my noble friend Lord Wakeham. that has been expressed or any likelihood of being The last thing is that this is a question of crucial justified in the exercise. I urge the House to support importance which also relates to other outside concepts this unanimous proposal from a committee on which I that would have to be considered in legislation. It is was very proud to serve. It was a very diligent committee quite wrong that we should now, without justification that took evidence from everywhere across the House, or evidence simply to please some concepts, do away and we should let this proposal go forward. with the maintenance of self-regulation of the House. It is the same sort of problem that we will have later on Lord Alderdice: My Lords, I suppose that all of us with retention of the ethos of the House. come to these matters very much with our own experience, so it is perhaps no great surprise that a very distinguished Lord Grocott: My Lords, I know the concerns that Leader of your Lordships’ House should take the view are being expressed principally, although not exclusively, that things should stay with the Leader, and a very on the other side of the House. They basically imply distinguished lady who was Speaker in another place that we are in danger of ending up with a situation like should feel that the Speaker is the more appropriate that of the Commons Speaker. I sympathise with person. I therefore confess to having a good deal of those concerns. We do not want a Speaker in the sense sympathy for what the noble Baroness said, as I found of someone who has to adjudicate constantly on points myself in that situation some time ago. of order and decide on balance whether difficult issues should be debated and so on. We do not want to go in Of course, the way in which one conducts oneself that direction for all sorts of reasons which I think are as a Speaker is not identical in different Chambers. well understood. However, I strongly support the proposal Whatever the sense of authority might be in the other because I do not think there is any risk whatever of place, in the place in which I served there was the idea that happening under this change. that the Speaker should exercise authority over some of the Members of that place rather than facilitate Indeed, I would offer as a kind of reassurance to and persuade them. I need only state that idea for those opposite that all these kinds of anxieties were noble Lords to understand my point. In fact, I took as expressed five years ago when the Speakership in its my guide Speaker Lenthall, who when confronted by present form was established in this House. It was pretty the monarch and asked to identify Members of the vehemently opposed in all sorts of ways, while all sorts other place said that he had neither eyes to see nor lips of forebodings were expressed as to what it would to speak other than the House gave to him. result in. I put it to the House that those forebodings have simply not been fulfilled. The Speakership has That is what we are talking about. We are not worked extremely well. I think that should be of some talking about an end of self-regulation because we are reassurance to those who feel that something serious, not talking about new powers for anybody. We are even cataclysmic, will happen if we support this proposal. simply talking about an element of the responsibility that lies currently with the Leader of the House to be My main concern for wanting to be assured that taken not by the Leader but by the Lord Speaker, who this proposal will go through, and why I support it, is has been elected by noble Lords. It is not a change the issue that has not been mentioned. We are here to to the procedures, the authority or responsibilities. It serve the public and part of that is for our procedures is simply that a different person undertakes those to be intelligible. Let us leave aside the term “self- responsibilities on behalf of the House and in sympathy regulation” at the moment—if there is regulation in with the House—not exercising authority over the House. any debate or at Question Time, it comes spasmodically from the government Front Bench. That is totally We should not think of this as an end of self-regulation unsatisfactory for the reasons given by the noble Baroness, or even a change to self-regulation. This is simply a Lady Boothroyd, and for the practical reasons given question as to who is the most suitable person and in by my good and noble friend Lord Rooker that you the most suitable place to undertake this. I have no physically cannot see. In no Chamber anywhere on criticism of my noble friend the Leader of the House, this planet or at any time in this planet’s history has who conducts himself with great decorum and a good the person responsible for order had half the audience deal of subtlety and has helped us through the difficult sitting behind them. We are an absolute one-off on expansion of our numbers and the pressure on the that, which is the position that we are in at the moment. work of the House. I must say, however, that there are some points of difficulty in our work, particularly at I simply put it to the House that we should do as Question Time. every other representative organisation that I, or I guess anyone else in this Chamber, have ever had any experience of by having the person with a kind of 3.45 pm responsibility for easing things along sitting in the I did not find it a particular difficulty in coming to centre and at the front—so far as there is a front your Lordships’ House to force my way to the fore to here—of the audience, which would make it immediately ask questions—with my background I had to pull intelligible to people watching in this Chamber or on myself back a little from time to time because I knew television. It is such a minimal change. It does not I was no longer competing with the noble Lord, Lord advocate any new powers; it simply says that the Bannside, and others in another place— 137 Procedure of the House (Proposal 1)[8 NOVEMBER 2011] Procedure of the House (Proposal 1) 138

A noble Lord: Never! really is the way the House sees itself functioning. I think it wants to hold to a degree of self-regulation Lord Alderdice: Never. However, I appreciate for whereby the House as a whole calls for the Peer they many other noble Lords coming into the House from wish to hear. That is really the preferable position other places—many of them not political chambers—it for us to hold to, but there does seem to be a little is not a great encouragement to involve oneself in the uncertainty. business of questions. I take very seriously what the In conclusion— noble Lord, Lord Rooker, says about the number of people who engage at Question Time not being entirely Noble Lords: At last! satisfactory. We might, by this very, very modest change, be able to send a signal to ourselves and others that we want Lord Alderdice: I am grateful for the indulgence of to see a greater involvement of the House as a whole. I the House. In conclusion, this is the most modest of accept that there is no ideal place to sit in this Chamber changes, which, as the noble Lord, Lord Grocott, says, to see everyone. The Lord Speaker would obviously would be much more comprehensible to those outside— have some difficulty seeing those who are in wheelchairs and we hope that an increasing number is observing but, as has already been observed, the Leader of the our procedures—and would in no way take away from House has considerable difficulty seeing those who sit the self-regulation of this House. behind him, so there is no ideal place. However, some things have been adduced in the Lord Wright of Richmond: My Lords, in the light of debate that really do not apply and are actually a the remarks of the noble Lord, Lord Rooker, I shall protection against the slippery slope over which noble speak a little more softly than usual. I regard this Lords have great anxiety. There is no need with this proposal as a sad reflection of the decline in standards particular change for technical advice to be provided of courtesy, of self-regulation, of discipline and of to the Lord Speaker. There are no points of order, and brevity in this House, and I shall oppose it. no complicated questions of procedure apply in this case. Therefore the experience that I had to have, as indeed do Speakers in other places, of having a Clerk Lord Stoddart of Swindon: My Lords, I say to the either in front or beside to give the kind of technical noble Lord, Lord Grocott, that the Speaker we elected advice that is not easily facilitated in your Lordships’ has virtually the same powers as the Lord Chancellor, House, simply does not apply with this very modest who was summarily dismissed by Mr Blair. The role of change. All that is being asked for— the Speaker is no different from what went before. When this House was discussing whether we should have an elected Speaker, one of the reasons given in The Countess of Mar: What would the noble Lord favour of having an elected Speaker was that there suggest should happen if people from those Benches, would be no difference from the previous situation. his Benches or this Bench got up at the same time and One of the arguments against it was the thin-end-of- would not sit down? the-wedge argument: that although there would be no initial plans, there would be moves later on to give the Lord Alderdice: I am very grateful indeed to the Speaker more powers. And so it has happened, because noble Countess for raising that question. I think my that is what is proposed today. I agree with the noble noble friend the former Leader of the House raised a Lord, Lord Wakeham, in one respect: the House should very interesting question that I saw raised a few eyebrows. not vote for this proposal today. I do not agree with He indicated that that responsibility lay with the leaders him about handing power to party leaders, which of the groups. I am not sure that I have observed the really would be a retrograde step. leaders of the groups and the Convenor intervening in When I came here 28 years ago and saw how the that way.That would be a move away from self-regulation House of Lords worked, I said, “It simply is not of the Chamber as a whole. The Lord Speaker move possible that a Chamber like this can regulate itself”, that is being proposed would not change that question; but I quickly found that it could, and did, regulate it would simply change identification of the groups, itself, and that its self-regulation was good for democracy not the sides of the House, whether we are talking —much better than in the House of Commons. I really about the Convenor of the Cross-Benchers, Labour, enjoyed it. That was in a House not of 823 Members Conservatives, Liberal Democrats or indeed the Bench but of 1,183 Members. It should be easier for the House of Bishops. to regulate itself now than it was when there were a lot However, if the suggestion made by my noble friend more Members. Lord Wakeham and pointed to by the noble Baroness One of our present problems—and there are problems; were to be adopted and it was for the leaders of the there is a lot of shouting, which ought not to go various groups to indicate which of their colleagues on—arises from the fact that there is a coalition should address the House, it would become extremely Government and that the House is not sure whether inappropriate for the Leader of the House to undertake the Liberal Democrat party should have a voice apart that as the leader of the Conservatives. If it were to be from the coalition. Frankly, that has to be settled. The taken in that way—and I am not sure that we actually only people who can settle it are the political parties are in that position—it would be even clearer that it and the usual channels. I wish they would set about it, should be the Lord Speaker who undertakes that. and then we would know who was entitled, and when, However, I find myself somewhat doubtful that that to speak, particularly at Question Time. 139 Procedure of the House (Proposal 1)[LORDS] Procedure of the House (Proposal 1) 140

[LORD STODDART OF SWINDON] term that is used: “I think it is the turn of the Cross- My final point is a personal point. All we have Benchers”; “I think it is the turn of the Labour heard about is the political parties and the Cross Party”. That narrows things down such that when it Benches. Although I sit among the Cross-Benchers, gets to the stage of two Labour Members arguing with and they are very kind to accept me among them, I am one another, they should have the good sense to allow an independent Labour Peer. I have not yet registered someone else to get in; or to say to themselves, “Last myself as a political party and I do not want to have to week, I got in and perhaps I will let a colleague do it do so, but if parties are going to be called rather than this week”. individuals—the recommendation is that people should I very much enjoy being able to ask questions, not be named—I shall be in some difficulty. I shall including about apprentices. I remind the House that I have to register myself as a political party, the Independent came out of engineering. One of the loveliest things Labour Party, the previous one having become defunct that my old foreman used to say was, “Michael, if it quite a long time ago. For all those reasons, including works, don’t fix it”. I would leave things as they are. the personal reason, I believe that the House should vote against this recommendation. 4pm Lord Campbell-Savours: My Lords, I go back to the Baroness Hooper: My Lords, the House of Lords contributions of the noble Lords, Lord Wakeham, has a reputation for courtesy and good manners, as and the noble and learned Lord, Lord Lloyd of Berwick, the noble Lord, Lord Wright, has already said. The because they raised two very important issues. They basic system is very simple: speakers at Question Time pointed to the need for the Front Bench to retain the and in debates rotate around the various political role that it currently has. I will argue quite simply that groups. I believe it is the responsibility of every Member it is impossible for the Front Bench to carry out that of your Lordships’ House to understand this simple role. That has always been my position. In the principle and to give way gracefully, as appropriate. correspondence that I had with about 500 Members That is what self-regulation means. It is also what four years ago, when 300 or so Members replied and good manners mean. I hope very much that your gave their views on the matter, an overwhelming majority Lordships’ House will continue to operate in an effective of those who responded said that they were in favour and efficient manner without having to make this of changing the role of the Lord Speaker. It was clear change. that there was considerable concern about the role of the Front Bench—Labour was in government at the time—in carrying out that responsibility. Lord Martin of Springburn: My Lords, when I came The noble Lord, Lord Wakeham, and the noble here two years ago, I looked forward to asking questions, and learned Lord, Lord Lloyd of Berwick, both referred because as a Speaker I was not able to. Of course, in to the need to intervene earlier, but therein lies the politics, many of us do not go and read a big book as problem, because the Front Bench cannot intervene to how things are done—we watch and we listen. The earlier without appearing to be political. noble Lord, Lord Rooker, mentioned the bully boys and those who get in more than others. I watched and listened, and the person that seemed to get in a great A noble Lord: Rubbish! deal more than others was the noble Baroness, Lady Gardner; and she could not be described as a bully Lord Campbell-Savours: The noble Lord opposite boy. I said to myself that I would take a good example says, “Rubbish!”, but some of us, including the noble as a good thing and listened to the noble Baroness and Baroness, Lady Boothroyd, watch what is happening how brief her questions were. I would be delighted if a on the government Front Bench during Question Time. Speaker or the Leader of the House was able to help The noble Baroness, Lady Anelay, very effectively an individual by saying that a particular individual seeks to have some influence on what is going on in the should be called. However, the proposal is not to call Chamber and often talks among her colleagues on an individual; it is to say which section of the House the Front Bench as to who should be called. We are should have their turn, which is very different. To me, pointed to by Ministers on the government Front that is not going to help the person who is quiet-voiced Bench, almost inviting us or identifying us to intervene and quiet-minded. If the proposal did say that an during the course of the debate. individual would be picked, I might have a different point of view. Lord Grenfell: This may be a hypothetical question, It seems shambolic, but, in a way, this place seems but it comes to my mind. When the noble Lord says to work at Question Time. There is a fairness about it, that it should not be in the gift of the Leader of the such that the quiet person often does get called. We House because of the political implications, would we talk about the Leader of the House being a Minister now be granting those powers to the Woolsack if we of the Crown, but the Leader of the House in the still had a Lord Chancellor—because he was a political other place is a Minister of the Crown. The Leader of figure, too? the House, although a Minister of the Crown and a member of a majority party, still has an obligation to look after the needs of the House and to be fair. I have Lord Campbell-Savours: We do not have a Lord seen that fairness demonstrated by the noble Lord, Chancellor; we now have an independent Lord Speaker. Lord Strathclyde, when he has said whose turn he I am arguing that we should take that role away from thinks it is. Correct me if I am wrong, but that is the the political and give it to the independent Chair of 141 Procedure of the House (Proposal 1)[8 NOVEMBER 2011] Procedure of the House (Proposal 1) 142 our proceedings, thereby enabling early intervention Lord Dubs: My Lords, I have the feeling that our in a House which, during Question Time, is often procedures work pretty well on the whole. However, unruly, and which has led to public criticism when the one area where they do not work well is at Question people see adults on television standing screaming, Time. All I would say is that a House that approaches shouting and bawling at each other across the Floor of matters with more dignity than the Commons becomes the House. Anyone in this House who can claim that extremely undignified when we get to Question Time that is a dignified spectacle misunderstands what is or questions on Statements, and I do not like that. expected of this House. Your Lordships will notice that everybody who has spoken is what I would call an old hand. I do not think Lord Hamilton of Epsom: My Lords, I am absolutely that any of the newer Members have spoken. But I staggered that any Member of this House who has have talked to some of them, and they said that they served in the other place—or the House of Commons, do not like Question Time, and do not take part in it, I am pretty agnostic on what we call it—should be because they feel that they do not get a fair share of it. advocating greater authority for our Speaker. I fear They do not like having to outshout the bullies, and that I do not remember the halcyon days of the noble they feel that it is more dignified not to do that. That Baroness, Lady Boothroyd. I remember her authority we should allow new Members to feel this way is a being constantly challenged on totally bogus points of condemnation of our procedures. order. You have only to pick up a Hansard from I believe in the dignity of this House, and I do not yesterday, which will be like any other Hansard from believe that this change will make us become like the the House of Commons. It will show that after every Commons. All it will do is transfer responsibilities Question Time, people leap to their feet with points of from the Front Benches to our Speaker, who we voted order which are not points of order. They are people for, and who we all respect. We are not going to who missed out on Questions—they have not managed challenge our Speaker if we do not agree with which to get in, so they ask their question anyway—or they groups she points to. We will accept her decision with bring up some constituency matter that happens to good grace, as we accept with good grace what the concern them. That is all completely bogus. The authority Leader of the House does from the Front Bench when of the Speaker is constantly challenged in the House he points to one group or another. of Commons, and it will be challenged here if we give authority to our Lord Speaker. We do not want to go There are, of course, other difficulties, which have down that path; it is a very retrograde step. We should been referred to already, and I would like us to go a bit learn from the House of Commons and stay with a further. It is all right to say which group or side is system that works very satisfactorily as it is. going to come next, but what about those who are not members of a group or of a side? What about UKIP Lord Brooke of Alverthorpe: My Lords, I am finding or Independent Labour? How do they get a fair share? this a very strange debate indeed. I always thought It is quite hard for them. In the Commons, the Speaker that when we had a Leader’s Group, the Leader of the makes a point of ensuring that small minorities get a House was on the group and presented the report to share, probably a bigger share, but there is no such the House. Then it went back to the Procedure Committee. safeguard here. Yes, we defer to the Bishops’ Bench; The Procedure Committee then went through the report we do that because we do that, and we have always and then presented its report with recommendations done it, and that is not a bad thing either. However, we which it unanimously backed. We knew precisely where have no tradition of knowing how to cope with UKIP we stood then and had very strong leadership. Times or Independent Labour, or any individuals. Though change, and the report has been presented today in a the proposal does not go this far, I would have thought very different way, in a neutral fashion. I have been that the Lord Speaker, from the Woolsack, would be waiting to see who will speak on behalf of whom in in a better position to be fair to all the Members of defending the current position or advocating change. this House. This is a small but important step. It will It looks as if we have a new style of neutrality, which add a bit to the dignity of the House and keep us as a we have not had before. In those circumstances—and I self-regulating House. say this as someone who saw the House regulating itself well when I first came in, with civility, courtesy and discipline; and no doubt I am now as much part Lord Ribeiro: My Lords, as a new Member who has of it as anyone else—it has changed. We should recognise not spoken, I would like to say a few words. Few of my that we have changed, and move on. I have again friends would consider me a shrinking violet, but there heard criticism of the Leader today, saying that he is no question that, for new Members, speaking in this does not intervene in the way that Leaders intervened House is a steep learning curve. I have been fortunate in the past. I am moving then to say that I am going to have two or three Questions at Question Time. One with the change, and I am hard pressed on this. I do thing that is very surprising is that the Member who not like the state that we have got ourselves into, and puts the Question often has less time to ask their therefore if changes come, I have got to go with question than do those who ask questions afterwards. them—unless, of course, somebody will stand up firmly Brevity is the key. It has been emphasised that some of and say “No, we are stopping it. We are going back to us are able to keep our questions fairly brief. Self-regulation what it was like before, and I am the individual who is not just about the Leader of the House determining will ensure that that happens”. I do not know who that who speaks and when; it is about the Members themselves individual is in the House, and who is going to say it. recognising that they have 30 minutes in which to deal But the question I pose to the Leader is: is he going to with four Questions, and that that can be done speak this afternoon? satisfactorily only if people keep to time and allow 143 Procedure of the House (Proposal 1)[LORDS] Procedure of the House (Proposal 1) 144

[LORD RIBEIRO] those who speak too frequently and stop others speaking others to have a say as well. I do not think that there is or those who speak at too great a length. I get the a problem with the system as it stands. It is for us to impression that there is no effective discipline in that look at how we behave. respect. It would help if one knew that someone who sins will be dealt with afterwards. Lord Kakkar: My Lords, I have had the privilege of sitting in your Lordships’ House for only 18 months The Countess of Mar: I was very impressed with but I have received the warmest of welcomes, particularly what my noble friend Lord Wright had to say and with at Oral Questions. I have also learnt three unique what the noble Baroness, Lady Hooper, said about characteristics of your Lordships’ House. The first is courtesy and observing other people. I think that this that all noble Lords are equal. There is no stronger is a temporary problem. The noble Lord, Lord Stoddart, manifestation of that characteristic than at Question said that we are a smaller House than we used to be, Time, when one has the privilege to be heard because but in fact an extra 100 people sit in the House each it is the will of your Lordships that one should be day, so there is more pressure on the House. We have heard. Secondly, this is a self-regulating Chamber and had a sudden influx of people who do not understand noble Lords hear from whom they want to hear in the the rules. I think that they are now bedding down, so context of the Question being discussed and the expertise the proposal is unnecessary, if not premature. that is present in the Chamber at the time of the discussion. Finally, I have learnt that there is a very 4.15 pm important constitutional role for the Leader of the House which goes far beyond his responsibility as a Lord Palmer: My Lords, I have a quick question of member of the Cabinet and far beyond his responsibility clarification. If this Motion is agreed, are we going to as leader of the governing party in this House—the adopt the idea of the noble Lord, Lord Colwyn, to obligation to every Member of your Lordships’ House actually raise the Woolsack? As the noble Lord, Lord to serve their interests and to ensure that the will of Geddes, mentioned, you cannot physically see these the House is properly communicated and understood. Benches from the Woolsack. I would be grateful for To divide the Leader of the House from the specific the Leader’s response. responsibilities that we discussed at Oral Questions today runs the risk of removing this overall obligation Lord Pearson of Rannoch: I should thank my noble which the Leader of the House has to all noble Lords. friend Lord Stoddart—if I may refer to him as that—and the noble Lord, Lord Dubs, for what they said about Baroness Butler-Sloss: My Lords, after the comments the minority parties and independents in your Lordships’ of the noble Lord, Lord Dubs, I am very tempted to House. I would comment further, however, by saying say—as yet another fairly recent Member of this to the noble Lord, Lord Campbell-Savours, and others House, having joined just over five years ago—that I who feel that we behave extremely badly at Question am not entirely happy with the way in which Question Time, and that this does not do us any good with the Time is seen by the public. We do not behave as well as public, that I think that the public see a substantial we should. However, I do not think that the current difference between Questions in your Lordships’ House proposal would make it much better, for all the reasons and Questions, particularly Prime Minister’s Questions, that have been given. It seems to me that two things in the House of Commons. The members of the should happen. First, I think that the Leader of the public who I talk to always say how well behaved your House or the Chief Whip should occasionally make it Lordships’ House is in comparison to the other place. clear whose turn he or she thinks it is. That is not always as clear as it might be. Secondly, it is time that Lord Campbell-Savours: Perhaps I may just refer to we, as Members of this House, used self-regulation to this myth about the distinction between the two Houses mean self-regulation of each individual—we should and ask the noble Lord whether he appreciates that in behave better. We should sit down when other people the Commons people do not stand and bawl at each are standing and hope that we will have a chance, but other across the Floor of the House. if we do not get a chance to speak, we should hope that we will have a chance next week. That is one of the reasons why I do not speak very often at Question Noble Lords: Oh! Time. I feel that others have something to say and I want to speak only when I really have something to Lord Campbell-Savours: No, they do not. I would say. If we are proud of self-regulation, we have an suggest that Members go to the Public Gallery in the obligation to regulate ourselves. Commons and see what goes on there. This is one of the only Houses in the world where Members bawl at Lord Lucas: My Lords, I am for self-regulation but each other to be heard on the Floor of the House. I think that the usual channels could help us a little. We could be clearer, as the noble Lord, Lord Stoddart Lord Pearson of Rannoch: I simply cannot agree of Swindon, said, about whose turn it is and what the with the noble Lord. As someone who tries to get in rules are. I think that there is a blockage in the usual on Questions quite a lot—only because I am interested channels which should be cleared. It creates conflicts in a subject which is quite topical at the moment—I every Question Time, which is unnecessary. I also would have thought that when noble Lords get up who think that the leaders of individual parties should be have not spoken and do not speak very much, the much better at disciplining their own members—either courtesy in your Lordships’ House is definitely there, 145 Procedure of the House (Proposal 1)[8 NOVEMBER 2011] Procedure of the House (Proposal 1) 146 to hear the new person, to give them a chance and so it from our own Peers’ Gallery and I have watched it on. So I think that this aspect of our bad behaviour—and on television. Presumably, the House of Commons I speak also as someone who gives way a lot, and I am has its own ways of behaviour, customs and traditions. very happy to go on doing it—is exaggerated. However, I wonder whether any fair-minded, reasonable I am not sure that this Motion on the Order Paper citizen who sat in our Gallery and then that of the really helps us. As I understand it, the Lord Speaker House of Commons would really believe that the would simply choose a group, whether the Conservatives, House of Commons is better behaved. I think not. the Cross Benches, Labour or the Bishops—though A number of Peers, including the noble and learned we normally give way to Bishops in any case. Time Lord, Lord Lloyd, and my noble friend Lady Sharples, would be taken because it would go to the leader of said that part of the problem was that I am not up on the chosen group to decide who was going to speak. I my feet quickly enough to bring order to the House. I am not sure that, as drafted, this takes us forward at will respond to that. I do not see my role as that of a all. Speaker bringing order. As others, including the noble Finally, I would ask the Leader of the House, if he Lord, Lord Martin of Springburn, said, I see my role is going to speak, if he could clarify a doubt which the very much as trying to guide the will of the House to noble Lord, Lord Stoddart, mentioned, and which is put itself back in order. However, if the proposal is in the minds of many of us when we decide whether not agreed and the powers are retained by the Leader, we are trying to get in at Question Time. Are the I would not mind having my own little experiment of Government one group, and does each speaker from leaping to my feet with greater alacrity and seeking to the Government count as a question asked by the guide the House more urgently. Government, or are we in fact dealing with the Liberal Democrat party and the Conservative Party, and therefore The second criticism of my role was made by the do they each get a shot at Questions as the groups noble Baroness, Lady Boothroyd, the noble Lords, revolve around the Chamber? Lord Grocott and Lord Campbell-Savours, and others. They said that my role is essentially political as a Minister of the Crown and that these powers should The Chancellor of the Duchy of Lancaster (Lord not be vested in someone who is so clearly a politician. Strathclyde): My Lords, what an extraordinary debate. I understand the impeccable logic of that, but I still I have never seen the House so impeccably well behaved, think that it is completely wrong. Ministers in all sorts gracefully giving way to each other without being of roles also have to be able to carry out an independent asked and without any intervention from me or anybody role of leadership, which is what I very much try to do else. If it were like this all the time we would never as Leader of the whole House. I hope that the House need to have this debate. can recognise when I am being nakedly political and This debate has been in gestation for some years, also when I am representing the interests of the whole since the noble and learned Lord, Lord Lloyd of House, which is what I try to do at Question Time. Berwick, published his initial report, which settled the position for two or three years. It has become an A number of questions were asked about my increasingly hot topic and I very much welcome the interpretation of the rules. The usual channels, through debate that we have had today and the report of the the Chief Whips, have decided and agreed that the Leader’s Group. It is important that we have this Liberal Democrats and the Conservative Party at Question discussion. Time are treated as one group. Therefore, we take it in I ought to lay out my cards at the very start of this turns. That gives an advantage—contrary to what the debate. I do not favour the proposal. If it is called to a noble Lord, Lord Rooker, might believe—to the party vote, and I am sure that it will be, I shall vote against of opposition. It is right that the party of opposition it. Why? I think that the Leader’s Group sought to should have the lion’s share of Question Time: after find a compromise, and in that it may well have all, it is trying to scrutinise the Government. For created the seeds of doubt. I do not think that it will instance, today there were 24 supplementary questions, work. Simply moving the powers that I hold to the of which 15 came from the Labour Party. I am bound Woolsack—and many others have made this point—will to say that if this power were moved to the independence not make things any better. If there is a failure in the of the Woolsack and the Lord Speaker, I am not so current way that I interpret the rules, I am not convinced sure that that arrangement would be maintained. One that the Speaker will do it any better. Whether or not has only to listen to the speech of my noble friend we want to change the role of the Chair, it is not the Lord Alderdice to see that. proposal that we have before us today. It is not so much a question of, “If it ain’t broke, Secondly, it is the start of the end of self-regulation. don’t fix it”; there is always room for improvement I very much pray in aid the brief speeches of the noble and for doing things better. In the first year of coalition, Lord, Lord Wright of Richmond, who said that we we had a substantial increase—more than 100—in the should pause and reflect before we let go of the number of Peers in the House. There was a difficult ancient way of self-regulation that has served the sense of assimilation. There were certainly Members interests of the House for so long. of another place, on all sides of the House, who Thirdly, as a result of that, it will lead us inexorably thought that they had arrived in a House of Commons to the Lord Speaker being given the power of calling without any rules. That was not the case; it is not the individual Peers, which in turn will lead us to the case. As the first anniversary kicked by there was a system of the House of Commons. I have never been a sense of settling down in the House. I have noticed Member of the House of Commons. I have been to see that the House seems to be happier in its skin, with 147 Procedure of the House (Proposal 1)[LORDS] Procedure of the House (Proposal 1) 148

[LORD STRATHCLYDE] Howells of St Davids, B. O’Neill of Clackmannan, L. new Peers and the coalition working together. The Howie of Troon, L. Palmer of Childs Hill, L. noble Countess, Lady Mar, was quite right in pointing Hoyle, L. Pannick, L. Hughes of Woodside, L. Pitkeathley, B. that out. Hurd of Westwell, L. Quin, B. The most difficult decision at Question Time is Hylton, L. Radice, L. what to do, if I can put it as politely as possible, with Janner of Braunstone, L. Ramsay of Cartvale, B. Jolly, B. Randerson, B. the Bishops and the noble Lords, Lord Pearson and Judd, L. Rendell of Babergh, B. Lord Stoddart, who clearly represent a view—not the Kennedy of Southwark, L. Richard, L. Bishops; I must not confuse the Bishops with the [Teller] Roberts of Llandudno, L. noble Lords—that is live outside this House. As an act Kennedy of The Shaws, B. Rooker, L. of great courtesy, and rightly, the House always gives Kerr of Kinlochard, L. Rosser, L. way to the Bishops. I think that we should maintain King of West Bromwich, L. Royall of Blaisdon, B. Kingsmill, B. Sawyer, L. that, but I am not sure that this proposal allows for Kinnock, L. Scotland of Asthal, B. that. Kinnock of Holyhead, B. Scott of Needham Market, B. I have learnt a lot from listening to this debate. I Kirkhill, L. Sewel, L. Kirkwood of Kirkhope, L. Sharkey, L. think that we have had a very good opportunity to air Kramer, B. Sherlock, B. all the grievances and potential problems, and, I hope, Lamont of Lerwick, L. Shipley, L. also the benefits of the system that we already have. Lee of Trafford, L. Smith of Basildon, B. Liddell of Coatdyke, B. Smith of Clifton, L. Liddle, L. Smith of Finsbury, L. The Chairman of Committees: My Lords, if no other Lipsey, L. Snape, L. noble Lord wishes to intervene, I beg to move that Lister of Burtersett, B. Soley, L. Motion 1 be agreed to. Luce, L. Steel of Aikwood, L. McAvoy, L. Stone of Blackheath, L. McDonagh, B. Stoneham of Droxford, L. 4.26 pm Macdonald of Tradeston, L. Taylor of Blackburn, L. McFall of Alcluith, L. Taylor of Bolton, B. Division on Motion 1 McKenzie of Luton, L. Teverson, L. Mar and Kellie, E. Thomas of Winchester, B. Contents 169; Not-Contents 233. Marks of Henley-on-Thames, Tomlinson, L. L. Touhig, L. Marlesford, L. Tunnicliffe, L. Motion 1 disagreed. Massey of Darwen, B. Turner of Camden, B. Maxton, L. Tyler, L. Division No. 1 Meacher, B. Walmsley, B. Miller of Chilthorne Domer, Warner, L. CONTENTS B. Warwick of Undercliffe, B. Mitchell, L. Watson of Invergowrie, L. Ahmed, L. Dean of Thornton-le-Fylde, Monks, L. Wheeler, B. Alderdice, L. B. Moonie, L. Whitaker, B. Anderson of Swansea, L. Donaghy, B. Morgan, L. Whitty, L. Andrews, B. Donoughue, L. Morgan of Drefelin, B. Wigley, L. Armstrong of Hill Top, B. Doocey, B. Morris of Manchester, L. Wilkins, B. Ashdown of Norton-sub- Dubs, L. Morris of Yardley, B. Williams of Elvel, L. Hamdon, L. Elder, L. Murphy, B. Wills, L. Bach, L. Elystan-Morgan, L. Newby, L. Young of Hornsey, B. Baker of Dorking, L. Evans of Parkside, L. O’Loan, B. Young of Norwood Green, L. Barker, B. Evans of Temple Guiting, L. Bassam of Brighton, L. Fellowes, L. NOT CONTENTS Beecham, L. Foster of Bishop Auckland, L. Bew, L. Foulkes of Cumnock, L. Aberdare, L. Byford, B. Bichard, L. Gale, B. Addington, L. Caithness, E. Billingham, B. German, L. Allenby of Megiddo, V. Campbell of Alloway, L. Bilston, L. Gibson of Market Rasen, B. Alton of Liverpool, L. Carswell, L. Blackstone, B. Goldsmith, L. Anelay of St Johns, B. Cathcart, E. [Teller] Boateng, L. Gordon of Strathblane, L. Armstrong of Ilminster, L. Cavendish of Furness, L. Boothroyd, B. Goudie, B. Arran, E. Chadlington, L. Borrie, L. Grantchester, L. Ashcroft, L. Chorley, L. Bradshaw, L. Grey-Thompson, B. Astor, V. Christopher, L. Bragg, L. Grocott, L. Astor of Hever, L. Clancarty, E. Brooke of Alverthorpe, L. Hamwee, B. Attlee, E. Clarke of Hampstead, L. Brookman, L. Hannay of Chiswick, L. Avebury, L. Clement-Jones, L. Brooks of Tremorfa, L. Hanworth, V. Berridge, B. Cobbold, L. Browne of Ladyton, L. Harris of Haringey, L. Blackwell, L. Colwyn, L. Butler of Brockwell, L. Harrison, L. Blencathra, L. Condon, L. Campbell of Surbiton, B. Hart of Chilton, L. Bottomley of Nettlestone, B. Cormack, L. Campbell-Savours, L. [Teller] Haskel, L. Bowness, L. Courtown, E. Clark of Windermere, L. Haworth, L. Bristol, Bp. Coussins, B. Clinton-Davis, L. Hayter of Kentish Town, B. Brittan of Spennithorne, L. Craig of Radley, L. Corston, B. Healy of Primrose Hill, B. Brooke of Sutton Mandeville, Craigavon, V. Cotter, L. Henig, B. L. Crathorne, L. Crawley, B. Hollick, L. Brougham and Vaux, L. Crickhowell, L. Davies of Oldham, L. Hollins, B. Browning, B. Cumberlege, B. Davies of Stamford, L. Howarth of Breckland, B. Butler-Sloss, B. De Mauley, L. 149 Procedure of the House (Proposal 1)[8 NOVEMBER 2011] Procedure of the House (Proposal 2) 150

Dear, L. Lloyd of Berwick, L. Symons of Vernham Dean, B. Wall of New Barnet, B. Deech, B. Lofthouse of Pontefract, L. Taylor of Holbeach, L. Wallace of Saltaire, L. Denham, L. Loomba, L. Thomas of Gresford, L. Wallace of Tankerness, L. Desai, L. Lucas, L. Thomas of Walliswood, B. Walpole, L. Dholakia, L. Luke, L. Tombs, L. Walton of Detchant, L. Tope, L. Dixon, L. Lyell, L. Warnock, B. Tordoff, L. Dixon-Smith, L. McColl of Dulwich, L. Warsi, B. Trefgarne, L. Dundee, E. MacGregor of Pulham Wei, L. Dykes, L. Market, L. Trenchard, V. Trimble, L. West of Spithead, L. Eames, L. McNally, L. Wilcox, B. Eaton, B. Maddock, B. True, L. Tugendhat, L. Williamson of Horton, L. Eccles, V. Magan of Castletown, L. Willis of Knaresborough, L. Eccles of Moulton, B. Maginnis of Drumglass, L. Ullswater, V. Willoughby de Broke, L. Eden of Winton, L. Mancroft, L. Verma, B. Woolf, L. Edmiston, L. Mar, C. Wade of Chorlton, L. Elton, L. Martin of Springburn, L. Wakeham, L. Wright of Richmond, L. Emerton, B. Mayhew of Twysden, L. Walker of Aldringham, L. Younger of Leckie, V. Empey, L. Miller of Hendon, B. Erroll, E. Montgomery of Alamein, V. Falkner of Margravine, B. Montrose, D. Procedure of the House (Proposal 2) Farrington of Ribbleton, B. Morris of Bolton, B. [Teller] Motion to Resolve Faulkner of Worcester, L. Morris of Handsworth, L. Feldman, L. Morrow, L. Feldman of Elstree, L. Moynihan, L. 4.41 pm Flight, L. Naseby, L. Fookes, B. Neville-Jones, B. Moved By The Chairman of Committees Forsyth of Drumlean, L. Newlove, B. Framlingham, L. Nicholson of Winterbourne, To move to resolve that the procedure adopted Freeman, L. B. in early 2010, whereby Secretaries of State sitting in Freud, L. Nickson, L. Garden of Frognal, B. Noakes, B. the House should answer three oral questions, on Gardiner of Kimble, L. Northbourne, L. one Thursday each month, directed to them in their Gardner of Parkes, B. Northbrook, L. ministerial capacity, should be made permanent, Garel-Jones, L. Northover, B. with a view to its revival as appropriate. Geddes, L. Norton of Louth, L. Glenarthur, L. O’Neill of Bengarve, B. Goschen, V. Oppenheim-Barnes, B. Amendment to the Motion Greengross, B. Ouseley, L. Greenway, L. Patel, L. Moved by Lord Williamson of Horton Grenfell, L. Patten, L. Hamilton of Epsom, L. Paul, L. As an amendment to the above Motion, at end Hanham, B. Pearson of Rannoch, L. insert “, except that the time allocated for the three Harris of Richmond, B. Perry of Southwark, B. oral questions should be up to 20 minutes in total Henley, L. Phillips of Sudbury, L. Heyhoe Flint, B. Plumb, L. instead of up to 15 minutes”. Higgins, L. Prashar, B. Hill of Oareford, L. Rawlings, B. Hilton of Eggardon, B. Razzall, L. Lord Williamson of Horton: My Lords, this amendment Hodgson of Astley Abbotts, Reay, L. was originally put forward by the noble Lord, Lord L. Redesdale, L. Hogg, B. Rees-Mogg, L. Low of Dalston, but as he is unable to be present Hollis of Heigham, B. Rennard, L. today, I have put it forward in my name. I should like Hooper, B. Renton of Mount Harry, L. first to stress that I am strongly in favour of the Howard of Rising, L. Ribeiro, L. proposal on the Order Paper today to make permanent Howe, E. Risby, L. an arrangement by which Secretaries of State answer Howe of Idlicote, B. Roberts of Conwy, L. Howell of Guildford, L. Rodgers of Quarry Bank, L. questions in this House. The only issue raised by my Inglewood, L. St John of Bletso, L. amendment is whether 15 minutes are sufficient or James of Blackheath, L. Saltoun of Abernethy, Ly. whether the time should be increased to 20 minutes. Jenkin of Kennington, B. Sandwich, E. We are speaking about a maximum time limit. We Jenkin of Roding, L. Seccombe, B. have plenty of experience in the House, for example, Jones, L. Selborne, E. Jopling, L. Selkirk of Douglas, L. on the time limit for questions following a public Kakkar, L. Selsdon, L. Statement, when sometimes the full time is not used, Kilclooney, L. Sharples, B. but more frequently, questions are cut off by the time King of Bridgwater, L. Shaw of Northstead, L. limit. In the case of a Secretary of State’s questions Knight of Collingtree, B. Shutt of Greetland, L. now being proposed, some part of the time would Laming, L. Simon, V. normally be taken by a question from the opposition Lang of Monkton, L. Skelmersdale, L. Lawson of Blaby, L. Slim, V. Front Bench, and there would probably be a question Leach of Fairford, L. Soulsby of Swaffham Prior, L. from the Liberal Democrats, thus the time for Back-Bench Lester of Herne Hill, L. Stedman-Scott, B. questions would be very short indeed. I hope therefore Levene of Portsoken, L. Stephen, L. that the House will look favourably on another five Lexden, L. Stoddart of Swindon, L. minutes, a fairly modest proposal in my view, so that a Lindsay, E. Stowell of Beeston, B. Lingfield, L. Strathclyde, L. Secretary of State could answer questions for a maximum Listowel, E. Sutherland of Houndwood, L. of 20 minutes, not 15 minutes, as was the case in early Liverpool, E. Swinfen, L. 2010. I beg to move. 151 Procedure of the House (Proposal 2)[LORDS] Procedure of the House (Proposal 3) 152

Lord Laming: My Lords, this is a very modest The Earl of Erroll: My Lords, I agree with the noble amendment, but an important one for the reasons set Lord and I confirm that that is the purpose. As out by my noble friend Lord Williamson. I hope very everything is now televised, people must understand much that the House will endorse it without a Division. what is going on. We could get the time back by saying that the Minister may stand up when someone has Lord Goodhart: My Lords, we should not be taking been speaking and trying to ask a supplementary for this issue at this time because we have no Secretary of 30 seconds and start the reply at that point. Quite State. There is no real probability that there will be a simply, if one cannot get the question out in 30 seconds Secretary of State in this House before the next general it is just bad luck. election. It seems to me that it would make more sense to leave this for what is likely to be some years, then bring it back and consider it in the light of events as Lord Higgins: My Lords, I believe that the present they then are. arrangement works extremely well. As far as I can see, this will actually slow down the proceedings, and, to Lord Tordoff: My Lords, I disagree with my noble try to get some of the time back, imposes a limit on friend. This is an appropriate time because we do not the length of Questions to 25 words. One can see a have a Secretary of State. I have one other thing to number of Questions on the Order Paper now which add: I totally support the Motion and the amendment, are over 25 words and are by no means excessively but I wonder whether it should not be 20 minutes long. I see no reason whatever to change the existing rather than 15 minutes. We can perhaps come back to arrangement. that in the next Parliament.

Amendment to the Motion agreed. Lord Cormack: My Lords, I agree very much with my noble friend, but there is one thing that we could Motion, as amended, agreed. do—and I hesitate to mention this. There is one practice in the Commons that speeds it up: that the Member Procedure of the House (Proposal 3) asking a Question gets up and says “Number One”, Motion to Resolve “Number Two” or “Number Three” or whatever. As the Question is printed on the Order Paper; as you can 4.45 pm put texts on the television that viewers can read; and as every Member of your Lordships’ House can read Moved By The Chairman of Committees and has an Order Paper, that is the way one could To resolve that Members should read out the text of speed things up. However, in my view there is absolutely oral questions, using the formula “My Lords, I beg no justification for this particular suggestion. leave to ask Her Majesty’s Government” followed by the text of the question; and that there should be a mandatory word limit of 25 words (excluding the Lord Empey: My Lords, I support the noble Lord, introductory formula) for all oral questions. Lord Cormack. Clearly, we want to make the House intelligible to as many people as possible. However, Lady Saltoun of Abernethy: This is the most ridiculous given that we have Questions one month in advance idea that I have ever heard in my life. As far as I can on our green sheet and, on the day, we get two sheets make out, it is put forward as a time-saver: how on with the Questions on, nobody should be in any doubt earth is it going to be quicker to say “My Lords, I beg as to what Question we are going to be asking. Given leave to ask Her Majesty’s Government” and then that the Questions are well known in advance, the another 25 words instead of saying “My Lords, I beg solution is to have the text on the television. That leave to ask the question standing in my name on the would achieve the two things that we want to achieve: Order Paper”? It just does not make sense. Is it proposed, first, to better inform the public; and, secondly, not to then, that the questions will not be printed on a do the very opposite of what we are trying to do in list—or what? many of these Motions, which is to save time. This goes completely contrary to the thrust of them. Lord Alderdice: My Lords, the noble Lady must have had a sheltered existence if this is the most ridiculous thing that she has ever heard. I must confess Baroness Royall of Blaisdon: My Lords, I am slightly that I have heard a good deal more ridiculous things. agnostic about this. If I have to come down somewhere, My understanding is that this is not in order to be I come down on the status quo. However, I am attracted more efficient or effective in regard to time, but to to the limit of 25 words. We need more brevity in this convey to those outside of the House what they do not House. I take myself to task, following on from the have available—which is the Order Paper. Rather than comments of the noble Lord, Lord Lucas, earlier, that their being uncertain of the purpose of the Question, my colleagues and I on the Front Bench do not take they would be clear about it. I accept entirely what the ourselves and other noble Lords on our Back Benches noble Lady has said—that it would take up a little to task when they ask long supplementary questions. more time—but, if it contributes to making our I do not say that we must have it in writing, but as a proceedings more comprehensible to those who are consequence of this debate we all need to be more watching on the television or by internet, it is a reasonable mindful about the length of supplementaries, both enough proposition. The idea that the number of questions and answers. I hope that that is one lesson words might be restricted is a good one as well. we will have learnt from today. 153 Procedure of the House (Proposal 3)[8 NOVEMBER 2011] Procedure of the House (Proposal 3) 154

Lord Higgins: My Lords, before the noble Baroness adjust the length of the Questions by allowing eight or sits down, as I understand it, the limit is on the length nine minutes for each of them rather than seven of the Question on the Order Paper. It is not on the minutes? length of supplementary questions. Lord Lucas: My Lords, since we cannot even squeeze Baroness Royall of Blaisdon: I understand that, but the name of the person speaking in Grand Committee I was trying to draw a comparison by saying that it is onto the television screen, I doubt if we can fit 25 words not so much that we need a limit on the original on it. Question, but that we need to be more self-regulatory in putting a limit on the length of supplementaries. Lord Harris of Haringey: My Lords, a simple arrangement would be to have a surtitle over the Throne so that anyone could look at it up there. Baroness Kramer: My Lords, perhaps I may pick up on the point made by the noble Baroness, Lady Royall. I, too, am agnostic about the particular form, but the Lord Geddes: My Lords, I am all for paucity of example that 25 words would make is perhaps one that words and the concept of limiting supplementaries to the House would take on board. A short question 25 words is thoroughly admirable, but that is not the takes a lot of hard work to frame but is probably the point of this proposal. In that respect, I think that greatest courtesy that any noble Lord can pay to the noble Lady, Lady Saltoun, has done the House a good House. The more questions we have on any particular service with her initial intervention. I certainly am not topic, the better the range of issues around that topic in favour of wasting the House’s time even further. is covered. I know that frequently only five supplementary questions are put, whereas I must say, coming from Lord Jenkin of Roding: My Lords, I have a confession the Commons, I would have thought that closer to to make. I do not spend a great deal of time watching 10 supplementary questions are put in an equivalent the Parliament channel or listen to “Yesterday in time. That would be appropriate. We should somehow Parliament” and I do not know the answer to the absorb the self-discipline of not believing that it is question. Do those channels ever print the Question necessary to lay out the full background to a question, so that people can see it? It seems to me that the point and then because our questions are so important, we made by the noble Lord, Lord Butler, is absolutely should ensure that two or three are wrapped into what right. I am not concerned that the Questions should be is meant to be one supplementary question. But that is on these screens because we can always get hold of the going to require the Leader of the House, the Leaders Order Paper ourselves. Indeed, that is one of the first of other parties and perhaps the Members of longest things most noble Lords do when they come into the standing who have real influence in this House actually House. It is a question of whether people who are to enforce the process. Perhaps then newer Members, watching the proceedings know what the Question is. who very rarely get to open their mouths in this place, I do not want to have the Question read out in the will have an opportunity to genuinely contribute where House but we should follow this up through the they have real expertise. Information Committee or whatever to make sure that the television channels print the Questions so that many more of members of the public who watch will Lord Campbell-Savours: My Lords, the problem know what we are talking about. with that as a proposition is that it does not work. We have been arguing for that for the past 10 years. I can think of innumerable occasions where Members have The Earl of Erroll: To help the noble Lord, it is not sought to try to stop people asking long supplementary just television as there is also YouTube and other questions, but I can guarantee the House that tomorrow internet channels. You cannot do anything about that it will happen again, and that it will happen on Statements. and we will probably be putting out more information It is because we simply do not enforce the rules of the that is much more accessible to the general public. House. It is a problem that this House will ultimately have to address. The Countess of Mar: My Lords, if people are interested in the proceedings of the House, they have only to go on to the parliamentary website and look at Lord Butler of Brockwell: My Lords, I want simply the Business of the House. They can then see all the to ask whether it is in the House’s power to arrange Questions listed for a month ahead. that the Question is printed on the television screen. That was exactly 25 words. The Chairman of Committees (Lord Brabazon of Tara): My Lords, I do not know whether noble Lords Lord Roberts of Llandudno: My Lords, the time think that we should maybe come to a conclusion on allowed for each Question is about seven minutes. this proposal. Before asking for the Question to be When we had a smaller House, most of those who put, I will say that I will take back the question of the wanted to ask a question were able to do so, but now noble Lord, Lord Butler, on how much or what is there are so many people who cannot get in on a televised. Otherwise, I move that proposal 3 be agreed question. They might not always have something valuable to. to contribute, but sometimes they do. Is it not time, perhaps not today but very soon, that we sought to Motion disagreed. 155 Procedure of the House (Proposal 4)[LORDS] Procedure of the House (Proposal 5) 156

Procedure of the House (Proposal 4) House to the statement made earlier without repeating Motion to Resolve it; and proceed immediately to the period for exchanges with the Opposition front benches; 4.57 pm That the text of the statement should be reproduced Moved By The Chairman of Committees in the Official Report; That the guidance in the Companion to the Standing To resolve that the following new guidance be Orders on backbench contributions on oral statements added to the Companion to the Standing Orders: should be amended, to indicate that “ministerial “Members should not take up the time of the statements are made for the information of the House during question time by making trivial House, and although brief questions from all quarters declarations of non-financial and non-registrable of the House are allowed, statements should not be interests. Questioners should not thank the Government made the occasion for an immediate debate.” for its answers, nor ministers thank questioners for their questions.” Lord Pearson of Rannoch: My Lords, I am afraid that this proposal does not really make sense in practice. Baroness Noakes: My Lords, I have one point to raise When a Statement is coming, it is normal practice that in connection with this, which comes back to courtesy the Printed Paper Office does not release it until the in the House and which ran through the debates on Minister or Prime Minister in the Commons has sat the first proposal. If Members of this House were down after making it. Under pressure of business in more courteous to each other, we would not have the your Lordships’ House, the time between the Minister problems that are perceived during Question Time. sitting down in the Commons and a Minister getting Often in Question Time, Ministers do not give Answers up here to repeat the Statement is often extremely limited. that merit any thanks whatever, but occasionally they give extremely helpful Answers. It seems to me that it Many of your Lordships who want to contribute by would be improper that the Companion should debar asking questions may be in other parts of the House the questioner from thanking the Minister for a useful and do not know when the Statement is coming—it is Answer. While I am all in favour of stopping the ritual “at a convenient time” after whatever piece of business of thanking for Questions and Answers, the way in has been decided. By the time one gets here and gets which this has now been expressed is wrong because it into the Printed Paper Office to get hold of the Statement debars Members of the House from normal courtesy. to read it, the Minister is very often several paragraphs down the track. It is rather useful to have the Statement from the Printed Paper Office to catch up with what Baroness Farrington of Ribbleton: My Lords, I will the Minister has said that one has missed because one make just a brief observation. Occasionally, the length did not know it was coming. The monitors over at of the reply does not assist the person who asked the your Lordships’ House no longer ring the bell when a Question but is an attempt to prevent answering it. new piece of business is there, so if you are working in the Royal Gallery or wherever you happen to be, you The Chairman of Committees (Lord Brabazon of have to keep a beady eye on the screen to know when Tara): My Lords, as your Lordships know, I am completely the Statement is coming. neutral on these proposals and have no views. I therefore I do not feel that this proposal really works. I put the Question. I beg to move that proposal 4 be cannot see why yet again we cannot go on with the agreed to. existing position. It cannot be taken for granted that, if one wants to contribute to the debate, one will have The Deputy Speaker (Lord Colwyn): I wonder whether been able to have absorbed the Statement. it would help the House if I read out the Motion. This Motion invites the House to insert new guidance in 5pm the Companion with a view to promoting briefer interventions from Members and Ministers during Lord Brooke of Sutton Mandeville: My Lords, I Question Time. take slight issue with the noble Lord, Lord Pearson of Rannoch. We had this problem fairly early after the Motion agreed. coalition was formed. I raised the question on one occasion when the Leader was making a Statement that was not available to us because it had not finished Procedure of the House (Proposal 5) in the Commons. The Leader was gracious enough to Motion to Resolve say that the rules of engagement in the Printed Paper Office should be altered and that the Statement should 4.58 pm always be available as soon as the Minister got up in this House. I agree that the Printed Paper Office is not Moved By The Chairman of Committees always consistent in its reactions. I had no difficulty in persuading it that these instructions had been given To resolve that where a statement of exceptional and the paper should in fact be released. length has been made in full to the House of Commons and made available in the Printed Paper Office before it is due to be repeated in this House, Lord Campbell-Savours: My Lords, the Motion actually the Minister in this House may (with the agreement reads, of the usual channels) draw the attention of the “‘may’ (with the agreement of the usual channels)”. 157 Procedure of the House (Proposal 5)[8 NOVEMBER 2011] Procedure of the House (Proposal 5) 158

One must assume that the usual channels would have Baroness Symons of Vernham Dean: My Lords, I this matter in mind when deciding. Therefore I do not was a Minister in your Lordships’ House for eight see any problem at all. years, serving in both the Foreign Office and Ministry of Defence. I know from my experience as a Lords Minister that you have to listen very carefully to what Lord Higgins: My Lords, I understand very well the your Secretary of State is saying in another place, case against reading out extremely long Statements. because Statements very often get changed from the None the less, I believe that the repetition of Statements last time you saw them in your department. It is very in this House is very important because very often difficult for the usual channels to be able to anticipate they get much more detailed expert scrutiny than in that. Since we are talking of courtesy in this House, I the other place. think that it is courteous for this House to have the As far as television is concerned, it is rather regrettable. same opportunity as another place to listen to a full As far as I can establish they televise the original Statement. If we are talking about the importance of Statement in the Commons but virtually never show clarity for members of the public, it seems to me quite the Statement being repeated in this House. That is extraordinary to suggest that, on the one hand, we perhaps a point which ought to be taken on board. should have questions in full but that, on the other, that we do not need to have Statements in full. For Having said that, I think that there is also an members of public watching on their televisions, listening important matter of timing—if it is an extremely long on the radio and sitting in the Public Gallery not to Statement, which is then going to be in the Printed have heard a Statement in this House seems to lack the Paper Office, one is going to need some time to read clarity that we have been so keen on elsewhere. For and digest it before the Statement is then bounced those three reasons, I think that this is a misguided suddenly into this Chamber. At the very least, while proposal to put before your Lordships. one would not necessarily move a manuscript amendment, those dealing with this discretionary practice should certainly allow at least an hour and a half—and I Lord Butler of Brockwell: My Lords, the proposal would have thought two hours—between the Statement refers to exceptional circumstances and I should like being available in the Printed Paper Office and it being to remind the House of one. I remember a public taken on the Floor of the House. expenditure Statement lasting an hour and a quarter being made in the House of Commons and then being repeated in full in this House on the following day, Baroness Kramer: My Lords, surely the most important when everybody had had the opportunity not only to work we do when a Statement is put before this House read the Statement but to read everything about it is to question it and scrutinise it. Making sure there is in the newspapers. I suggest that that is the sort of adequate time for that and that a full range of views is circumstance in which the time of the House should aired is absolutely central to our responsibility. not be taken in repeating a whole Statement. I have perhaps a personal prejudice. I find that speeches that are read out are extremely difficult to listen to and a second-hand speech is, frankly, even The Countess of Mar: My Lords, the Leader of the harder to listen to because no one can put any life into House made clear what happens at Question Time as it. I am not sure that listening to the speech gets me a to which blocs there were. My understanding is that, lot further in terms of understanding. Perhaps that at Statements, Liberal Democrats are a separate bloc also applies to other noble Lords in this House. If we from the Tories, the Labour Party and everybody else. need a time delay to make sure that everyone has had Can he make the position clear? an opportunity to actually do the reading, surely that is something that can be organised. It seems to me that the precious time we have should be spent on scrutiny Lord Strathclyde: My Lords, I think that the Leader’s rather than on a second-hand regurgitation of a speech Group is trying to be helpful, in part because of the that is sitting on paper in front of us. example that the noble Lord, Lord Butler, laid out. The proposal is not for the generality of Statements; it is for the most exceptional circumstances; there is the Lord Pearson of Rannoch: My Lords, further to safeguard of the usual channels. The example that the what I said earlier, I accept what the noble Baroness noble Lord gave, of last year’s Autumn Statement, has said if there were to be sufficient time to really when it was taken on the second day, is precisely the scrutinise the Statement. Without boring your Lordships’ one that we all had in mind. To spend an hour and a House too much, in the case of Statements on European half on the Minister reading out the Statement was, I Council meetings, one also has to read the European think, a bit much for all of us. The proposal is not Council conclusions and compare them with the Statement designed to deal with most Statements. because they are often very different. We need at least On some of what the noble Countess said about an hour and a half for that. blocs during Statements, I am not entirely sure what On the matter of saving time, I of course accept the situation is. Perhaps I could discuss it with the that our questions should be briefer, but perhaps this Chief Whip and the opposition Chief Whip. I think is another opportunity to say that if the answers from that there is a slightly different system at Statements, the government Front Bench could also be briefer, we with the Liberal Democrats, Conservatives, Labour, would all save a lot of time. That goes for Oral Cross Benches and anybody else taken more in rotation Questions, too. than at Question Time. 159 Procedure of the House (Proposal 5)[LORDS] Procedure of the House (Proposal 9) 160

Baroness Royall of Blaisdon: My Lords, before the Procedure of the House (Proposal 8) Leader sits down, perhaps I may ask him about the Motion to Resolve important point raised by the noble Lord, Lord Brooke, which is that most Statements are currently made 5.10 pm available in our Printed Paper Office when the Minister sits down in the House of Commons. It would be Moved By The Chairman of Committees extremely helpful if they were made available when the Minister stood up in the House of Commons. To resolve that the practice of debating “motions for papers” be discontinued, and that in future all general debates not inviting the House to reach a The Chancellor of the Duchy of Lancaster (Lord positive decision should take place on “take note” Strathclyde): My Lords, I think so, too. I shall see motions, which should be short, neutrally phrased whether we can make this happen. There may be some and not subject to amendment. extremely good, logical reason why the Statement is Motion agreed. not made available earlier, but if it can be changed then I think that it should. Procedure of the House (Proposal 9) Lord Geddes: My Lords, I should like to add one Motion to Resolve point that I do not think has been mentioned. The final words of the proposal are almost the most important. 5.10 pm They say that, Moved By The Chairman of Committees “statements should not be made the occasion for an immediate debate”. To resolve that the House adopt the following If this proposal is carried, I hope that the House will practice in respect of appellations: bear that in mind. Members should address the House as a whole, Motion agreed. and they should never use the second person when addressing other Members in debate. A Member may refer to any other Member, without specifying Procedure of the House (Proposal 6) his or her title, as “the noble Lord”, “the noble Motion to Resolve Lady”, “the noble Duke”, “the right reverend Bishop” or “the most reverend Archbishop”. Members may 5.10 pm also, if they so wish, use the appropriate rank—for example “the noble Earl”or “the noble Baroness”—but Moved By The Chairman of Committees there is no obligation to do so. When referring to To resolve that, with effect from the start of the another Member by name, the correct form is “Lord 2012–13 session of Parliament: W”, “Lady X”, “the Duke of Y”, “the Bishop/ Archbishop of Z”. Members may also use the term Members be limited to one Question for Short “my noble friend” to refer to fellow members of a Debate in House of Lords Business at any one time; political party. When referring to a Minister of the Each Question for Short Debate should indicate Crown, Members may refer to “the Leader of the the date on which it was tabled; House”, “the Minister” or “the Secretary of State”, as appropriate. After six months it should be removed from the list; Lord Geddes: My Lords, I did intervene on a previous The guidance in the Companion to the Standing occasion on this subject, and, as with the previous Orders on the wording of Questions for Short Debate proposal, I have not changed my mind. I know that should be as follows: “Questions for short debate the proposal uses the most important word “may”, last for a maximum of 1½ hours and should therefore but I think it is a retrograde step to start changing an be limited in scope.” age-old custom, particularly when it comes to “noble Motion agreed. and gallant”, “noble and learned” and “noble friends”. As I said on an earlier occasion, a right reverend Prelate shall ever be a “right reverend Prelate”. Procedure of the House (Proposal 7) Motion to Resolve Lord Pearson of Rannoch: If he does not mind, I will support what the noble Lord, Lord Geddes, has just said. The way we use titles at the moment is 5.10 pm something that contributes to a lack of asperity in your Moved By The Chairman of Committees Lordships’ House and to the dignity of the House. Just to get rid of it or to say that the correct form is To resolve that the following text be inserted now to talk about “Lord So-and-so”, “Lady So-and-so” prior to paragraph 4.42 of the Companion to the or even “the Duke of Y”—although I think it would Standing Orders: “The House of Commons may be have to be “the Duke of M”—is a retrograde step and referred to by name, rather than as ‘the other place’ unnecessary. Can we not leave it as optional, without or ‘another place’.” it having to be the correct form? This form of correctness Motion agreed. will not help our image or our deliberations at all. 161 Procedure of the House (Proposal 9)[8 NOVEMBER 2011] Procedure of the House (Proposal 9) 162

Lord Lucas: My Lords, I entirely agree. I very much Lord Grocott: My Lords, a very small step is hope that this is something that we will allow to evolve being proposed. Therefore, I am sure that it will be naturally.Preserving courtesy is a very important element rejected. of this House. I entirely agree that we should never I strongly support the proposal. I felt that I had to use “you”, let alone the appellations recently used by speak today on this issue out of memory of my very Mr Berlusconi of Chancellor Merkel. Courtesy is good friend Lord McIntosh of Haringey, who was one immensely important but to formularise it merely of the most able Ministers I have ever seen in operation. means that people will trip over themselves and get I watched him when I first arrived, because you are called out all the time. That used to be the way it was always a bit diffident about making sure that you obey in this House when I was first here—people would get all the rules of the new institution, et cetera. I noticed terribly upset if you did not stick “gallant” where it early on that he never obeyed any of the details of the belonged. We have got much more relaxed about that regulations laid out in the Companion, which frighten now. I find that very comforting and I do not want to new Members to death. I am not normally anxious go back to a formulaic system. about those kinds of things, but it certainly caused me some anxiety to get the title absolutely right, to remind Lord Higgins: My Lords, should there not be an myself that it is only lawyers who are learned and that absolute prohibition on the use of the expression, the rest of us are not, and that it is only field marshals “The noble Minister”— who are gallant and those captains or corporals are not. Noble Lords: This side. It is such a small change. Lord McIntosh of Haringey—my late noble friend—completely disregarded Lord Grenfell: My Lords, I am particularly happy the rules from the start. If it was Lord Campbell-Savours, at this moment to be able to agree with the noble he would say “Lord Campbell-Savours”; he would not Lord, Lord Pearson of Rannoch, for the first time in say “the noble Lord, Lord Campbell-Savours”. Nothing this century. I think he has got it right. If “honourable happened. No lightning struck and everyone knew Member” is good enough for the other place, why can perfectly well what was taking place. Ditto with the “noble Lord” not be good enough for this place? I do proposal that we have just passed—I was amazed that not mind whether eventually this becomes evolutionary it got through; Members must have been going for tea, progress towards a different system, but I do not think or something. I refer to the one that states that we that we have to take the decision now that this change should no longer refer to the House of Commons as be made. Why chip away at the courtesies of the the other place. Just to confuse everyone, we have to House—which we have been addressing for a long call it the other place. What other place? The House of time this afternoon and saying how important they Commons, so why not say “the House of Commons”. are—on this particular issue? It is unnecessary. We have already made that revolutionary decision, so all I am suggesting to the House is that we carry on in Lady Saltoun of Abernethy: My Lords, those of us that revolutionary spirit. who have been here quite a long time have all had to take the trouble to learn the antiquated modes of address and of referring to people. Why cannot people Lord Cormack: I am grateful to the noble and who have not been here for so long learn them too? Is irreverent Lord, but we have not in fact agreed to any it laziness? I do not see why we should change this. I such thing. All we have said is that we may refer to it as also think that if you have to pause for a minute and the House of Commons. He, of course, will; some of think about how you refer to or address someone, it us will not. gives you a moment just to cool down in case you were thinking of being rather rude about them; rather like Lord Grocott: Well, I am relaxed about what people counting to 10 before you say anything. I do not think do individually. All I am saying is that I really think we should change this. that it would be helpful if we gave a clear indication to new Members, other Members and the public, who Baroness Noakes: My Lords, I completely agree find some of the appellations completely bewildering, with the noble Lady, Lady Saltoun. However, we have that it is perfectly in order to do so. Nothing untoward gone past the era when we strictly enforced the use of happens; it does not affect the courtesy of debate in the customary forms. I agree with my noble friend the slightest. We are still referring to people in the Lord Lucas that it is no bad thing that the use of third person—which is absolutely right; it is essential language should be allowed to evolve. If one sits in the that we preserve that—but we can simply say “Lord House, one hears a great variety being used, both the Campbell-Savours” instead of “the noble Lord, Lord correct form and various amendments to it, including Campbell-Savours.”. That has no effect whatever on the language in the proposal. However, those wonderful his nobility. We should cease to use the endless different people in Hansard always correct what we say in your gradations of rank and of title, which mean nothing Lordships’ House and record it in the correct form. I, to anyone outside. I infinitely prefer to refer to “the for one, would like that to continue. Bishop of Leicester”than to “the right reverend Prelate”. I like to know where he comes from; I like to know The Earl of Erroll: My Lords, although I agree in what his title is. I am a regular, practicing attender of principle with the noble Lord, Lord Lucas, I will feel the Church of England, but I was only vaguely aware sad that the loss of the term “most reverend Primates” of what a prelate was until I came here. However, will allow us to forget our true origins. I know what a bishop is. 163 Procedure of the House (Proposal 9)[LORDS] Procedure of the House (Proposal 9) 164

Lady Saltoun of Abernethy: Perhaps the noble Lord Lord Higgins: My Lords, I was so anxious just now will give way. There is nothing to stop him from to give way to the noble Lord, Lord Grenfell, that I cut referring to “the right reverend Prelate the Bishop of myself off in mid-sentence, so perhaps I may be allowed Leicester”. to complete it. Could we have an absolute prohibition on the use of the expression “the noble Minister”— Lord Grocott: The noble Baroness, if I am allowed to call her that— Noble Lords: Yes. Lord Higgins: —quite simply because Ministers are Noble Lords: Oh. not noble?

Lord Grocott: It is “noble Lady”. Well, whatever. It Lord Gilbert: In view of the admiration that my is a matter of supreme irrelevance as long as we can be noble friend Lord Grocott has expressed for the late reasonably courteous to each other. As far as I can Lord McIntosh, who advertised his disdain for many recall, only moments ago she was arguing for brevity. of the matters of procedure when he arrived here, can Now I have to say “the right reverend Prelate the he reassure me that I will not be diminished in his Bishop of Leicester”. I prefer “the Bishop of Leicester”. affections when I tell him that I have not the slightest intention of observing most of the nonsenses that All I am saying to the House is, for goodness’ sake, have been agreed this afternoon? we could shorten the Companion if we did not have all these requirements. I shall be very tempted to put down amendments to extend the use of the word The Countess of Mar: My Lords, perhaps if we “gallant” to everyone who has shown courage on the accept this proposal it will ease the problem of the battlefield, not simply to someone who has become a government Front Bench, which seems to think that field marshal. all females are called “Lady”. It seems to have an awful lot of problems in remembering that I am a I know I am pushing water uphill. This is far too countess. revolutionary a proposal for the House to accept, but none the less the opinion of the House should probably be tested on it. The Chairman of Committees (Lord Brabazon of Tara): I wonder whether the House thinks that we might now come to a conclusion on proposal 9. Before Lord Newton of Braintree: My Lords, it may begging to move that, I must say that I have had a very surprise people who have heard me speak on one or interesting afternoon, as I am sure we all have. The two other things to know that I am a complete House has conducted itself extremely well. I beg to reactionary on this, but for a reason that may also move that proposal 9 on appellations be agreed. surprise them. The Order Paper says: “Members may also use the term ‘my noble friend’ to refer to 5.25 pm fellow members of a political party”. Where does this leave me with my Liberal Democrat Division on Motion 9. friends? Contents 173; Not-Contents 173. Lord Tordoff: My Lords, I like to keep the traditions Division No. 2 of the House going, but I must say that “the noble and learned Lord” really is a bit odd, is it not? We had two CONTENTS Nobel prize winners in this House at one time, but they were not “noble and learned”, they were just “noble”. Aberdare, L. Campbell of Surbiton, B. Adams of Craigielea, B. Campbell-Savours, L. [Teller] That illustrates the futility of this whole business. Of Addington, L. Clancarty, E. course, “learned in the law” is what it says, but we do Anderson of Swansea, L. Clark of Windermere, L. not say that. Andrews, B. Clarke of Hampstead, L. Armstrong of Hill Top, B. Collins of Highbury, L. I am reminded of perhaps one of the best put-downs Ashton of Hyde, L. Condon, L. I ever heard in your Lordships’ House. Lord Hailsham Barker, B. Corston, B. of Marylebone was on the Woolsack, and Lord Mishcon Bassam of Brighton, L. Craigavon, V. had spoken from the then opposition Front Bench. Beecham, L. Crawley, B. Lord Hailsham stood up afterwards and said, “I have Best, L. Davies of Oldham, L. listened with great interest to the speech of the noble Bew, L. Davies of Stamford, L. Bichard, L. Dean of Thornton-le-Fylde, and learned—oh, I do beg his pardon—the noble Billingham, B. B. Lord, Lord Mishcon”. He might as well have walked Bilston, L. Desai, L. across the Chamber and slapped him in the face. Blood, B. Dholakia, L. Borrie, L. Dixon, L. Bradshaw, L. Donaghy, B. Lord Wright of Richmond: I do not know how Bristol, Bp. Donoughue, L. many people heard, or whether it will be recorded in Brooke of Alverthorpe, L. Doocey, B. Brookman, L. Dubs, L. Hansard tomorrow, what the noble Lord, Lord Higgins, Burnett, L. Dykes, L. said. I beg the noble Lord’s pardon; he is trying to get Butler of Brockwell, L. Elder, L. up and I think I should give way. Cameron of Dillington, L. Erroll, E. 165 Procedure of the House (Proposal 9)[8 NOVEMBER 2011] Procedure of the House (Proposal 9) 166

Evans of Parkside, L. Morgan, L. Cathcart, E. [Teller] Loomba, L. Farrington of Ribbleton, B. Morgan of Drefelin, B. Cavendish of Furness, L. Lucas, L. Fellowes, L. Morris of Handsworth, L. Chadlington, L. Luke, L. Ford, B. Morris of Manchester, L. Clement-Jones, L. Lyell, L. Foster of Bishop Auckland, L. Morris of Yardley, B. Cobbold, L. McColl of Dulwich, L. Foulkes of Cumnock, L. Murphy, B. Colwyn, L. McNally, L. Gale, B. Oakeshott of Seagrove Bay, L. Cormack, L. Maddock, B. German, L. O’Loan, B. Cotter, L. Magan of Castletown, L. Goudie, B. Pannick, L. Craig of Radley, L. Maginnis of Drumglass, L. Gould of Potternewton, B. Pendry, L. Crickhowell, L. Mancroft, L. Grantchester, L. Phillips of Sudbury, L. De Mauley, L. Mar, C. Grenfell, L. Pitkeathley, B. Dear, L. Grocott, L. Prashar, B. Dixon-Smith, L. Marlesford, L. Hamwee, B. Prescott, L. Dundee, E. Montrose, D. Hannay of Chiswick, L. Prosser, B. Eames, L. Morris of Aberavon, L. Hanworth, V. Puttnam, L. Eaton, B. Morris of Bolton, B. [Teller] Harris of Haringey, L. Radice, L. Eccles, V. Moynihan, L. Harris of Richmond, B. Ramsay of Cartvale, B. Eccles of Moulton, B. Naseby, L. Harrison, L. Randerson, B. Eden of Winton, L. Neville-Jones, B. Hart of Chilton, L. Rea, L. Edmiston, L. Newlove, B. Haskel, L. Rennard, L. Elton, L. Newton of Braintree, L. Haworth, L. Richard, L. Elystan-Morgan, L. Nicholson of Winterbourne, Hayter of Kentish Town, B. Roberts of Llandudno, L. Empey, L. B. Healy of Primrose Hill, B. Robertson of Port Ellen, L. Falkland, V. Noakes, B. Hollick, L. Rosser, L. Falkner of Margravine, B. Northbrook, L. Hollins, B. Rowlands, L. Feldman, L. Northover, B. Hollis of Heigham, B. Royall of Blaisdon, B. Feldman of Elstree, L. O’Neill of Bengarve, B. Howarth of Breckland, B. Sandwich, E. Forsyth of Drumlean, L. Oppenheim-Barnes, B. Howells of St Davids, B. Scott of Needham Market, B. Fowler, L. Palmer, L. Hoyle, L. Sewel, L. Framlingham, L. Patel, L. Hughes of Woodside, L. Sharkey, L. Fraser of Carmyllie, L. Patten, L. Hussein-Ece, B. Sherlock, B. Freeman, L. Pearson of Rannoch, L. Jay of Ewelme, L. Shipley, L. Freud, L. Perry of Southwark, B. Jolly, B. Skelmersdale, L. Gardiner of Kimble, L. Plumb, L. Jones, L. Smith of Clifton, L. Gardner of Parkes, B. Rawlings, B. Judd, L. Smith of Finsbury, L. Garel-Jones, L. Reay, L. Kennedy of Southwark, L. Soley, L. Geddes, L. Redesdale, L. [Teller] Stevenson of Balmacara, L. Gilbert, L. Ribeiro, L. Kennedy of The Shaws, B. Stoneham of Droxford, L. Glasgow, E. Roberts of Conwy, L. Kerr of Kinlochard, L. Storey, L. Glenarthur, L. Rodgers of Quarry Bank, L. Kingsmill, B. Sutherland of Houndwood, L. Goodhart, L. Rowe-Beddoe, L. Kirkhill, L. Taylor of Blackburn, L. Goschen, V. St John of Fawsley, L. Kirkwood of Kirkhope, L. Taylor of Bolton, B. Greengross, B. Saltoun of Abernethy, Ly. Kramer, B. Taylor of Goss Moor, L. Greenway, L. Seccombe, B. Laming, L. Temple-Morris, L. Grey-Thompson, B. Selkirk of Douglas, L. Lester of Herne Hill, L. Teverson, L. Hamilton of Epsom, L. Selsdon, L. Lister of Burtersett, B. Thomas of Walliswood, B. Hanham, B. Sharples, B. Lofthouse of Pontefract, L. Thomas of Winchester, B. Henley, L. Shaw of Northstead, L. McAvoy, L. Tope, L. Heyhoe Flint, B. Shephard of Northwold, B. McDonagh, B. Tordoff, L. Higgins, L. Simon, V. McIntosh of Hudnall, B. Touhig, L. Hill of Oareford, L. Slim, V. McKenzie of Luton, L. Tunnicliffe, L. Hodgson of Astley Abbotts, Spicer, L. Maclennan of Rogart, L. Wall of New Barnet, B. L. Stedman-Scott, B. Manningham-Buller, B. Walmsley, B. Hooper, B. Steel of Aikwood, L. Mar and Kellie, E. Warnock, B. Howard of Rising, L. Stirrup, L. Martin of Springburn, L. Warwick of Undercliffe, B. Howe, E. Stoddart of Swindon, L. Masham of Ilton, B. Watson of Invergowrie, L. Howe of Idlicote, B. Stowell of Beeston, B. Maxton, L. Whitaker, B. Howell of Guildford, L. Strathclyde, L. Meacher, B. Wigley, L. Hunt of Wirral, L. Symons of Vernham Dean, B. Miller of Chilthorne Domer, Wilkins, B. Hurd of Westwell, L. Taylor of Holbeach, L. B. Williamson of Horton, L. Inge, L. Thomas of Gresford, L. Mitchell, L. Wright of Richmond, L. James of Blackheath, L. Trefgarne, L. Monks, L. Young of Hornsey, B. Jenkin of Kennington, B. Trenchard, V. Moonie, L. Young of Norwood Green, L. Jenkin of Roding, L. Trimble, L. Jopling, L. True, L. Kakkar, L. Verma, B. NOT CONTENTS Kilclooney, L. Wade of Chorlton, L. Ahmad of Wimbledon, L. Berridge, B. Knight of Collingtree, B. Wakeham, L. Alderdice, L. Blackwell, L. Lamont of Lerwick, L. Wallace of Tankerness, L. Allenby of Megiddo, V. Bottomley of Nettlestone, B. Lang of Monkton, L. Walpole, L. Alton of Liverpool, L. Bowness, L. Lawson of Blaby, L. Walton of Detchant, L. Anelay of St Johns, B. Bridgeman, V. Leach of Fairford, L. Warsi, B. Armstrong of Ilminster, L. Brougham and Vaux, L. Lee of Trafford, L. Wei, L. Arran, E. Browne of Belmont, L. Lexden, L. West of Spithead, L. Ashcroft, L. Butler-Sloss, B. Listowel, E. Wilcox, B. Astor of Hever, L. Byford, B. Liverpool, E. Willoughby de Broke, L. Attlee, E. Caithness, E. Lloyd of Berwick, L. Younger of Leckie, V. Benjamin, B. Carlile of Berriew, L. 167 Procedure of the House (Proposal 9)[LORDS] Protection of Freedoms Bill 168

The Deputy Speaker (Lord Colwyn): My Lords, there maximum period of pre-charge detention to 14 days, being an equality of votes, in accordance with Standing and your Lordships’ House is separately considering Order No. 56, which, legislation to replace control orders. The Bill deals “provides that the Question before the House shall be resolved in with the legacy of many of the other measures to the negative unless there is a majority in its favour”, which I have referred. I declare the Motion disagreed to. I turn to the detail of the Bill. Part 1 introduces Motion 9 disagreed. safeguards in respect of the retention and use of biometric material by the police and schools. There is no doubt that DNA and fingerprints are invaluable Arrangement of Business forensic tools in the investigation of crime. They help Announcement to convict the guilty and, equally importantly, can exonerate the innocent. It follows that the national 5.37 pm DNA database should contain as many profiles of Baroness Stowell of Beeston: My Lords, before my convicted individuals as possible; nothing in this part noble friend moves the Second Reading of the Protection of the Bill changes that. Where a person has been of Freedoms Bill, perhaps I may highlight the fact that convicted or cautioned for a recordable offence, their 29 speakers have signed up to speak in the debate. If DNA profile and fingerprints will, as now, be retained Back-Bench contributions are kept to seven minutes, indefinitely. However, it is not acceptable that, following the House should be able to rise around the target arrest, the DNA and fingerprints of a person should rising time of 10 pm. be retained indefinitely, regardless of whether that person is charged or convicted of an offence. Few Protection of Freedoms Bill people would support a truly Orwellian universal DNA Second Reading database, so we should not seek to build one by stealth. Under the Bill, whenever someone is arrested and 5.38 pm has their DNA and fingerprints taken, the police will Moved By Lord Henley still be able to undertake a speculative search against the relevant national databases. If they have committed That the Bill be read a second time. an earlier offence, they should not be able to evade justice. Indeed, it was just such a check in 2006 that led The Minister of State, Home Office (Lord Henley): to the link being made between Mark Dixie, who had My Lords, respect for individual freedoms and civil been arrested in connection with a fight at the pub liberties is one of the cornerstones of our parliamentary where he worked, and his rape and murder of Sally democracy. It is the duty of the coalition Government, Anne Bowman nine months before. If an individual is as it is of any Government, to protect civil liberties not subsequently convicted of an offence, their DNA and hard-won freedoms. Of course, it is also our duty and fingerprints will only be routinely retained where to protect the security of the public. It is undoubtedly they have been charged with a serious offence, and the case that we live in a dangerous world. We have to then only for three years, with the option of extending contend with the threats posed by international and this to five years with the approval of a magistrates’ domestic terrorism, and by crime, disorder and anti-social court. The police will also be able to apply to the new behaviour. The most basic freedom is the right to live Biometric Commissioner to retain the DNA and in our own homes, and go about our everyday lives, fingerprints of a person arrested for, but not charged free from the fear of harm from terrorism or crime, with, a serious offence in circumstances where the but in responding to such threats and discharging the alleged victim was vulnerable or where retention is Government’s core responsibility for protecting the otherwise considered necessary for the purposes of the public, we must not make the mistake of undermining prevention and detection of crime. the very freedoms and civil liberties that we are seeking to preserve and uphold as a beacon to others. These provisions will ensure that the National DNA Database, with over 5 million profiles, remains one of There is a balance to be sought here and that is the largest of its kind in the world, continuing to what we will be endeavouring to achieve in the course support the police by helping to catch and convict of the debate during the passage of this Bill. It is a serious violent and sexual offenders, but without in balance which I am afraid to say the previous the process stigmatising over 1 million innocent people. Administration failed to achieve. They went too far on a number of issues. I will list a few of them: identity The provisions in this part also give effect to our cards and the national identity register; the ContactPoint commitment to prohibit the fingerprinting of children database; the indefinite retention of DNA profiles of in schools without parental consent. It is properly a more than 1 million innocent people; hundreds of new matter for schools to decide whether or not to use powers of entry; a vetting and barring scheme that biometric recognition systems for such purposes as required the monitoring of more than 9 million, and pupil registration, cashless catering and checking out at one stage possibly 11 million, people working with books from the school library. However, schools also children or vulnerable adults; indiscriminate and poorly need to have proper regard for the sensitive nature of targeted terrorism stop-and-search powers; removing personal biometric information, so it is right that the right to a jury trial in serious fraud cases; and last, parents should be asked to make an informed decision but by no means least, 42 days’ and 90 days’ pre-charge about whether to accede to the processing of such detention for terrorist suspects. We have already abolished information. It is also proper that pupils should have a ID cards and the ContactPoint database, reduced the say. Where a parent or child objects, schools will have 169 Protection of Freedoms Bill[8 NOVEMBER 2011] Protection of Freedoms Bill 170 to take reasonable steps to ensure that alternative Moving on from protecting people’s homes to arrangements are put in place to enable the child to protecting use of their vehicles, I have no doubt that a access school services. number of noble Lords will have suffered the fate of Part 2 deals with the regulation of surveillance. having their car clamped. While there are, of course, Closed circuit television and automatic number plate many reputable clamping companies, the industry is recognition systems play an important role in the also afflicted with more than its fair share of rogue prevention and detection of crime and anti-social operators using menace to demand and extract excessive behaviour, and in providing assurance to local release fees from unsuspecting motorists. This is an communities. I fully recognise that many people want area where regulation has failed to tackle the abuses in to see more CCTV cameras in order to help protect the industry. We have therefore concluded that, where their neighbourhoods. However, as we saw with Project there is no lawful authority, an outright ban on wheel Champion in Birmingham last year, public confidence clamping is the only tenable way forward. We recognise in the benefits of CCTV can quickly be undermined if that for some car park operators and other landowners the police, local authorities and others are seen to be the ban will remove one of the parking enforcement imposing camera systems on local communities without tools available to them. We also recognise that no one proper consultation. In this regard, I look forward to has a right to park their vehicle wherever they want— hearing from the noble Earl, Lord Erroll, who assisted motorists have responsibilities too. So the Bill extends the Chief Constable of Thames Valley Police as part the operation of keeper liability for unpaid parking of her review of Project Champion. charges, which already applies to parking enforcement The Bill takes a measured and incremental approach on the public highway, to other land. to the further regulation of CCTV. It provides for a I move onto Part 4, which reforms key counterterrorism code of practice on the development and use of powers following the government review overseen by surveillance camera systems and for the appointment my noble friend Lord Macdonald of River Glaven. of a Surveillance Camera Commissioner to oversee The Bill enshrines in law our expectation that the the operation of the code. The police and local authorities maximum period of pre-charge detention for terrorist will be required to have regard to the code of practice, suspects should be no more than 14 days. That is an and we would expect that other operators of CCTV important advance on the position adopted under the systems will also wish to adhere to the code on a last Government, when 28 days became the norm. voluntary basis. However, if the need arises, there is facility in the Bill to extend the duty to have regard to The Government recognise, however, that there will the code to other such operators. be exceptional circumstances where it may be necessary The need to maintain public confidence is also to increase the maximum period of pre-charge detention at the heart of the proposals in the Bill in respect of to 28 days. This view was supported by the Joint local authorities’ use of covert investigatory powers. Committee chaired by the noble Lord, Lord Armstrong The intrusive powers covered by the Regulation of of Ilminster. As to the mechanism for achieving this, Investigatory Powers Act, known as RIPA, must be the Government reflected very carefully on the views used proportionately. Public trust is undermined if of the Joint Committee but remained of the opinion such powers are used to pursue relatively trivial matters, that any increase to 28 days should normally be decided such as to check whether parents live within a school by Parliament and enacted through primary legislation. catchment area or to tackle dog fouling or littering. We accept that the option of recalling Parliament to The Bill therefore subjects the exercise of these powers pass fast-track legislation is not available during a by local authorities to judicial oversight and, separately, period of dissolution. That is why the Bill contains a we will be bringing forward secondary legislation under power to enable the Home Secretary to increase the RIPA to introduce a threshold test so that local authorities maximum detention period by executive order in those cannot use directed surveillance powers for trivial very narrow circumstances. purposes. Part 4 also puts in place the permanent replacement Part 3 of the Bill deals with powers of entry and of the no-suspicion stop-and-search powers contained wheel clamping. There are now some 1,200 separate in Section 44 of the Terrorism Act 2000. That these powers of entry, enabling a wide variety of officials to powers failed to meet the test of necessity and enter people’s homes and businesses. We do not for a proportionality is best illustrated by the fact that not moment suggest that all such powers are unjustified, one of more than 600,000 stops in Great Britain under but there should be a compelling case and clear safeguards Section 44 resulted in a conviction for a terrorist before a state official has the right to demand entry offence. Instead, the Bill provides for a much more into a person’s home. We intend to review all existing targeted power that the independent reviewer of terrorism powers of entry. Following this review, the provisions legislation, David Anderson QC, described as a “real in the Bill will enable us to repeal any powers of entry and substantial change”. that are shown to be unnecessary or unjustified, and Part 5 gives effect to the recommendations of the to add further safeguards to those powers that are to twin reviews of the vetting and barring scheme and be retained. We will also introduce a code of practice the criminal records regime. We have a duty to protect governing the exercise of powers of entry. the most vulnerable in society, be they children or In many ways, my noble friend Lord Selsdon can adults. The Government will do nothing to increase take credit for these provisions. In the last Parliament the risk of such individuals being exposed to harm. he repeatedly plugged away at this issue, introducing a However, we need a safeguarding system that is succession of Private Members’ Bills. I am pleased to proportionate and promotes responsibility by employers say that his tenacity has now borne some fruit. and voluntary organisations while not putting in place 171 Protection of Freedoms Bill[LORDS] Protection of Freedoms Bill 172

[LORD HENLEY] liberties and historic freedoms. It is this difficult balance unnecessary barriers to employment and volunteering. that your Lordships’ House has striven to maintain The existing system fails to live up to these aims. At when discharging its core role as a revising Chamber, worst, it creates an illusion of security by encouraging and which we shall seek to secure as we debate further a tick-box approach to safeguarding. stages of the Bill. I commend it to the House. The Bill creates a more balanced approach, putting an end to the requirement on more than 9 million—or, 5.56 pm as I said earlier, 11 million—people to be registered Baroness Royall of Blaisdon: My Lords, I am grateful and monitored by the state. We are also scaling back to the Minister for his comprehensive introduction the scope of regulated activity and therefore of the to the Bill. We may hear many fine speeches today barring arrangements so that they cover only those in that will characterise the Bill as a choice between regular or close, unsupervised contact with children, protecting historical liberties and the march towards or those who provide health or personal care for authoritarianism. However, I agree with my right adults. In the case of those working with children or honourable friend the Member for Blackburn, who adults but who do not fall within the ambit of regulated said in another place that this is more a standard activity, it will remain open to employers and voluntary criminal justice amendment Bill than a sweeping redress organisations to require such staff to undergo a criminal of the balance of freedoms in this country. Some parts record check. of the Bill present us with a stark choice not between We are also streamlining the criminal records regime, freedom and the Orwellian state but between tiresome, including by ensuring that criminal record certificates sometimes intrusive inconveniences and increasing the are portable between posts within the same sector. The risks to public safety. Regulation of CCTV, limits to fairness of the system will also be enhanced by affording the DNA database and crucial changes to the vetting the subject of a criminal record certificate the opportunity and barring regime all present us with such a choice, to challenge any conviction or other information contained and we are deeply concerned about the potential impact therein before sharing the certificate with his or her that the provisions may have on some of the most employer or voluntary organisation. In addition, we vulnerable communities in our society. will increase the efficiency of the reformed safeguarding I will begin with the positive aspects of the Bill. We system by bringing together into one new organisation, give our wholehearted support to the provision to the disclosure and barring service, the functions of erase historical convictions for gay sex that for far too the Criminal Records Bureau and the Independent long have blighted the lives of many gay men. We also Safeguarding Authority. welcome the extensions to the Freedom of Information Part 5 also rights an historic wrong. It is now more Act 2000, but I ask the Government to look at the needs than 40 years since gay sex between consenting adults of universities and other public research organisations was decriminalised. However, men with a conviction in relation to research and progress. In addition, we for an offence involving such behaviour are still stigmatised support amendments to RIPA that aim to obtain by having to disclose any such convictions and seeing greater proportion in the scope and use of powers, and them recorded on criminal record certificates. The Bill we are very happy to allow people to get married puts an end to such indignity. whenever they desire. The reduction in the pre-charge Part 6 has the twin aims of further promoting detention of terrorist subjects from 28 to 14 days is transparency, including by extending the application another thing on which we can agree on the basis of of the Freedom of Information Act to additional evidence, and of course we support the restriction on publicly owned companies, and by enhancing the stop and search powers. independence of the Information Commissioner. Given We also firmly support the Government’s intention the commissioner’s important role in regulating to crack down on cowboy clampers who have bullied information rights, including data protection and freedom and harassed members of the public. However, we are of information issues, it is critical that he should go disappointed that the Government are not also seeking about his duties without fear or favour. There is no to ensure that there is proper regulation of the private doubt in my mind that the current commissioner and ticketing regimes that the Bill establishes as an alternative. the previous holders of the office have done that, but In the other place, the Minister said that effective the provisions in this part of the Bill will help remove self-regulation by the parking industry was the way any impression to the contrary. forward. However, this issue has arisen precisely because Finally, Clause 107 is a culmination of the implacable industry self-regulation has proved totally ineffective. stand taken by your Lordships’ House in defending We are concerned that the Government’s best intentions the historic right to a jury trial of those accused of a will do little more than squeeze the balloon, turning serious fraud offence. In 2003 and again in 2007, this thug into extortionist as rogue clampers turn into House defeated attempts to bring in judge-only fraud rogue ticketers. Citizens may well turn to Citizens trials. Clause 105 consigns the thankfully uncommenced Advice, which dealt with more than 16,000 parking Section 43 of the Criminal Justice Act 2003 to the inquiries last year. However, it is under huge pressure legislative dustbin. as a result of the cuts. I appreciate that I have spoken at some length and Other aspects of the Bill give rise to deep anxiety that this undoubtedly is a diverse range of provisions. and betray a fundamental distinction in our parties’ The golden thread running through them is a attitudes towards risks to the vulnerable in our society. determination on the part of the Government to restore I am sure all noble Lords would agree that the use of a proper balance between protecting our communities, closed circuit television footage during the August including the most vulnerable, and our hard-won civil riots helped the police to identify and charge almost 173 Protection of Freedoms Bill[8 NOVEMBER 2011] Protection of Freedoms Bill 174

2,000 suspects. CCTV forms a central part of police no longer include those who work in supervised situations investigations. It makes people feel safer and is especially with children or vulnerable adults. Charities, including important to those living in troubled neighbourhoods. the NSPCC, argue that this fundamentally misconceives Local authorities and police forces are struggling with the nature of supervision in places such as schools and eye-watering budget cuts and redundancies, yet the care homes, where light-touch supervision means that Government are proposing to pile extra red tape on there is often opportunity for an individual to develop authorities that wish to set up CCTV in their area. Do inappropriate and abusive relationships with the child they believe that local authorities and police forces or adult. Furthermore, those convicted of serious have a fundamentally more sinister use for CCTV barrable offences who do not currently work or express than private operators? If there is a genuine need for an interest in working with children will not be placed regulation, why do the Government not think fit to on the barred list at all. extend the safeguard to the vast majority of CCTV This cannot be right. It is interesting to note that an that is privately owned? online survey conducted by Fair Play for Children Technology has revolutionised the prevention and found that 96.6 per cent of respondents felt that adults detection of crime in this country, and nowhere more convicted of offences against children should be placed so than in the use of DNA evidence. DNA provides on the barring list as soon as they are convicted. 40,000 crime scene matches a year and alongside We welcome the introduction of new portable Criminal fingerprints provides a critical component of investigations Records Bureau checks. However, like Girlguiding into the most serious crimes of murder, manslaughter UK, for example, of which I am a proud member, we and rape. The Crime and Security Act 2010 proposed are greatly concerned about changes that would mean that the DNA of those arrested or charged, but not that the CRB checks are sent to individuals before convicted, of a serious recordable offence be held by employers. police for six years. This was based on Home Office analysis that shows that the risk of re-arrest falls to the The coalition agreement states that the vetting and level of the general population after six years. Part 1 of barring regime should be scaled back to common the Bill reduces this limit to three years. The Conservatives sense levels. We believe that this Government are at were convinced by this argument in opposition and fundamental odds with the “common sense” of the voted for a six-year limit. Why do they now wish to majority of the public in not choosing to err on the halve it? What new evidence has caused this U-turn, side of caution when it comes to the safety of the most other than the ideology of their coalition partners? vulnerable in our society. I am glad, however, that this Bill presents us with an opportunity to address an The retention of DNA of those arrested or charged important loophole in our law that means that those but not convicted is especially important in the case of subject to sustained and harrowing experiences of rape, which suffers notoriously low charge and conviction stalking are not receiving the recognition and protection rates. We know that it is often only after repeat offences that they need and deserve. that rapists are finally convicted. As a result of this Bill, 17,000 rape suspects would be immediately removed Stalking behaviour is consistently unidentified and from the DNA database. Experience shows that some, underestimated by the criminal justice system. The although not all, of these individuals will go on to lack of legal definition of a stalking offence means commit further serious violent and sexual offences. In that the police, probation officers and the courts will fact, the Government know that they are creating a look at offences in isolation; as a result, patterns of significant public safety problem here, which is why behaviour are often not spotted until a serious offence instead of capping retention to three years they have is committed. Clare Bernal, for example, was shot included a provision to extend retention by an extra dead in a Knightsbridge store in September 2005 by two years. In an effort, perhaps, to pacify Liberal Michael Pech. Pech had stalked Clare after their three- voices, the Government are offloading responsibility week relationship ended, following her in the street for key public safety decisions on to our stretched and bombarding her with threatening calls and messages. police forces. However, after being arrested and charged with There are numerous cases in which murderers and harassment he was bailed and travelled back to Slovenia, rapists have been convicted only because their DNA where he purchased the gun that he used to shoot samples were retained on a database for more than Clare while awaiting sentence. We need greater clarity three years. To reduce the number of years is both in the law to ensure that other women do not have to irresponsible and dangerous. Part 5 of the Bill makes experience what happened to this young woman. There significant changes to the vetting and barring scheme are hundreds of similar harrowing examples of women that was introduced in the wake of the horrific murders living in terror and sometimes murdered. of Holly Wells and Jessica Chapman at the hands I know that the Minister is a fan of the Scottish of their school caretaker. As noble Lords will know, model for other provisions within this Bill, so I hope the previous Labour Government, having recognised he will support changes to the Protection from Harassment the weight of unnecessary burdens, implemented the Act 1997 that are similar to those introduced in Scotland recommendations of Sir Roger Singleton’s report, which last year and that would make stalking a specific reduced the number of individuals needing to register offence, thereby naming and defining this poorly with the ISA by approximately 2 million. understood crime. However, we believe that this Bill goes far beyond In the 10 years prior to the introduction of the removing simply “unnecessary” burdens, and presents offence of stalking, Strathclyde police reported a total a serious risk to the advances that the scheme has of 70stalking-relatedprosecutions.Inthefirstsixmonths made to child safety. The new barring regime would after the enactment of stalking laws in Scotland, there 175 Protection of Freedoms Bill[LORDS] Protection of Freedoms Bill 176

[BARONESS ROYALL OF BLAISDON] between the citizen and the state. The obtaining and were 140 prosecutions in Strathclyde alone, with an retention of information changes the relationship between estimated 500 to 600 prosecutions in the whole of citizens and the state. Scotland by the end of this year. I am not applying this comparison wholesale or in A similar small but crucial change in the law would its entirety; however, thinking about today’s debate, mean that the 18.1 per cent of women estimated by the one characteristic of fascist regimes seems to have British Crime Survey of 2010-11 to have been a victim been an obsessive collection and retention of information. of stalking could seek greater protection. I hope that There was certainly one regime of which that was noble Lords on all sides of this House will support an characteristic, anyway; I am not sure whether the Italians amendment to this effect. were too chaotic to have been able to achieve it. Earlier this year, the Home Secretary announced We talk a lot about policing by consent, and I have with much fanfare that this Bill, been wondering what that means in the year 2011. We should also ask ourselves what is the extent of consent “gives us a chance to ... return individual freedoms to the heart of of the citizen to observation, surveillance, the keeping our legislation”.—[Official Report, Commons, 1/3/11; col. 205.] of records and the sharing and use of information. In many ways this is hyperbole, but by creating barriers That is not easy because what I may think should be to CCTV use, limiting DNA retention and restricting applied to you and to everyone generally—that means the vetting and barring scheme, exactly whose freedoms everyone else—is not the same as what I think should are being returned? Certainly not the freedom of local be applied to me. Ask anyone who has been involved businesses, some of whom suffered in the riots but in local government: we all know of the demands for who were able to see the perpetrators brought to blanket CCTV coverage in order to catch the owners justice thanks to CCTV; nor the freedom of young of dogs that foul the streets. women to feel safe walking the streets late at night; The existence of more than 4 million surveillance nor the freedom of children and young people, who in cameras makes me wonder whether their very proliferation future could be supervised by paedophiles or others reduces their deterrent value because they are so who have been barred. commonplace. They are not uniformly applied. There I note the comments made by the Minister about are three times as many automatic number-plate balance. At the moment we believe that the balance is recognition cameras in two predominantly Muslim wrong. Some parts of this Bill are welcome but critical suburbs of Birmingham as there are in the city centre. parts of it deserve close scrutiny and amendment. We have more mobile phones than we have people. Together with my noble friends Lord Rosser and Lord We rely on them. We have a very high expectation of Tunnicliffe, I look forward to working with the noble technology. I have a friend who, in her worst moments Lord and the noble Baroness, Lady Stowell, to ensure of tussling with her computer, calls it “the devil’s work”. that there is better balance in this Bill. I remember the shock when people realised what information about their movements in London was 6.07 pm stored on the Oyster card—so-called, we were told at Baroness Hamwee: My Lords, the Minister’s careful the time of its introduction, because of the pearl exposition of the Bill has been most helpful. I welcome inside the oyster. It is not just a single pearl; it is a the Bill with enthusiasm—such enthusiasm that I look whole jewellery box, if that is your view of it. forward to successor Bills taking civil liberties even further Our private lives are trespassed upon without our forward. It is a pleasure to be repealing legislation, realising it. It is important, and I wish that I had particularly restrictive legislation, even if it takes 200 pages thought of this, to draw the distinction between the to do so. I do not regard this as a standard criminal right to privacy and respect for privacy. We should justice Bill of the sort that we have become used to in remember, too, that there are social pressures to share recent years. I depart from the noble Baroness, Lady information. Your own inclusion of information on a Royall, on that, but no doubt we will discuss it. social networking site can make you quite vulnerable. However, I would also say that repeal should be a Guidelines and codes of practice can be only as matter for Parliament, not for Ministers. good as their operators. We saw what happened with In our complex society technology seems to be Section 44 stops and searches. No doubt we will use matched by the technicalities of legislation, but the the words “balance” and “proportionality” a great underlying concepts are simple: fundamental human deal in our debates. We will range from the administrative freedoms, historic civil liberties and a state which has convenience of using biometric information about become authoritarian—certainly too authoritarian. We children in schools and, I would say, the inevitable have all become accustomed to the demand, “Your pressure on parents to consent to their use, to how ID, please”; we are too used to having to prove who we appropriately—another good word, but sometimes a are. I heard—I think it was on the radio a few days weasel word—to protect the rights of landowners ago—of an 80 year-old who was refused a purchase in from those who see a space and park on it. an off-licence because she could not prove that she was At this stage of the Bill I am trying to look at broad not a teenager. principles, not least because a speech on the detail The worst thing is not knowing what is known would take me far too long. Another principle is the about you. This is about the relationship between the law of unintended consequences, and the noble Baroness, consumer and Tesco—which is almost nil in my case, Lady Royall, has referred to the impact of the extension but one could say any other retailer—or between an of freedom of information to university research. I IT user and a search engine operator, or, of course, mention it specifically because my noble friend Lady 177 Protection of Freedoms Bill[8 NOVEMBER 2011] Protection of Freedoms Bill 178

Brinton, who cannot be here today, had wanted to do has before the House. In this case, I am glad to say that so. The problem is that even if a subject is still being the Bill has got the balance right between public safety investigated, is not yet patented, published or peer-reviewed and a proper liberalisation of our law. I welcome what or is part of a commercial and confidential contract the Minister said about the removal of an historic with a partner outside the institution, it will still be indignity with respect to the gay community. I regard caught. The Scots, under the guidance of my noble that as a wise and noble step in the Bill. I should and learned friend Lord Wallace of Tankerness, when also like to say that the Northern Ireland matters he was part of the Scottish Government—ahead of are handled effectively and well as they touch on many the rest of us, as so often—got this sorted, and so parts of the Bill. should we. I have one major problem. It touches on matters So we are looking at balance, proportionality and a dealt with in and around Clause 100 on freedom of good dollop of common sense, but the safeguards information and its working with respect to our must not be illusory. I welcome the involvement of the universities. This has already been referred to by the judiciary in many of the matters covered by the Bill. noble Baronesses, Lady Royall and Lady Hamwee, We may have debates about what is appropriate as an and I think it will be referred to again before the executive decision and what should be a judicial decision, debate is concluded. I have to declare an interest. My but we may need to explore the criteria for decisions own university, Queen’s University Belfast, has been that we require our magistrates and our more senior rather caught up in the toils of this debate, and I am a judges to take. I am not talking just about the exercise professor at that university. While I indicate broad of powers of entry but, for instance, about the extension support for the Bill, I wish to explain why there is a of the retention of DNA. What will be the basis for case for an amendment to it to provide an exception in the judicial decision? For instance, what would be the certain limited circumstances to pre-publication research standard of proof for something that was not actually in universities in relation to Freedom of Information a trial? Act requests. A similar exemption already exists, as I have referred to safeguards and codes of practice. the noble Baroness, Lady Hamwee, said, in Scottish If there is more than a single regime, as there is with freedom of information legislation, and there is a CCTV, we will need a lot of clarity and co-ordination strong case for looking at that. between the regimes. In my own university there has been an intense I do not know what the collective noun is for controversy concerning a well publicised case concerning commissioners but we certainly need clarity and joining tree ring data, which has very much influenced the up about the respective responsibilities of existing and public discussion in recent times about the operation proposed commissioners, looking at it not least from of the Freedom of Information Act in universities. the point of view of the public and trying to avoid That work on tree ring data, while important, is in no confusion in the public mind. Let us also be sure that way connected with my own work or the work of my the independence of commissioners is real, not rhetorical. own department. However, anybody who works in a I will try to restrain myself from seeking to add to university knows that the operation of the Freedom of the Bill, not least because I see this as the start of a Information Act has changed the way that we work process of a strand of legislation, but I will indulge often in quite difficult and unpredictable ways. Universities myself by mentioning just one issue on which I have have to work within the broad framework of public heard the current Information Commissioner talk: the law in this matter—that is widely accepted—but this is need for a more effective response to blagging—that is, one area where there is genuine concern, shared, for the unlawful accessing of personal information by example, by Universities UK. I am confident that trickery. If a private investigator blags information he there is a need to protect the timing of publication of can treat it as a business expense so, far from there research information and results. Research is highly being a deterrent penalty, the taxpayer is actually competitive in our universities at the moment and it subsidising the activity. often has a commercial value of some significance. The Bill will be referred to as a Christmas tree Bill There are delicate issues of timing involved in such and it remains to be seen what baubles will be hung on matters, and the publication of incomplete data and it. I suspect that the Minister will be very cautious premature research prior to proper peer review, as the about getting out a piece of mistletoe and—I am noble Baroness, Lady Hamwee, has mentioned, may searching for a verb—connecting with anyone. damage the reputation of research in the United Kingdom. The line of argument with which we are all familiar Perhaps even more importantly, the premature publication is, “If you’ve nothing to hide, you’ve nothing to fear”. of work that is not properly peer reviewed and fully I have nothing to hide—at any rate, nothing more than examined may harm the interests of the general public the usual embarrassments that we all have—but I fear themselves. In other words, this is a matter of concern the invasion of your Lordships’ privacy. This is about not just for universities but for the general public the sort of society that we want and how far, if at all, as well. we should condition our rights. I welcome the Bill. The Scottish amendment that has been referred to is in fact a qualified amendment where it has to be 6.17 pm shown that disclosure would result in substantial prejudice Lord Bew: My Lords, I welcome the main thrust of to the research, to those conducting it or to the university. the Bill. With regard to the reform of counterterrorism It is not an absolute exemption. It is a qualified and powers, the Bill has a good balance. I say that as a quite subtle piece of legislation. If the Minister is a fan Member of this House who has had reservations of the Scottish legislation in other respects, as the about the control order legislation that the Minister noble Baroness, Lady Royall, said, I hope that by the 179 Protection of Freedoms Bill[LORDS] Protection of Freedoms Bill 180

[LORD BEW] This argument appears to me to have force, especially time we conclude our discussion of this Bill he will since information once destroyed cannot be retrieved. become a fan of the Scottish legislation in this respect The precautionary principle should be given weight also. here, in case the consequences of the Bill turn out to be unexpectedly adverse. 6.21 pm Secondly, the Christian Forum for Safeguarding The Lord Bishop of Bristol: My Lords, the word and a number of children’s and sporting organisations “freedom” is a heady one. Throughout the ages people have serious concerns about safeguarding vulnerable have struggled to resist and overthrow oppression, groups and criminal record checks. The reduction of most recently in the so-called Arab spring. Freedom bureaucracy in this area is to be welcomed, but the from violence, intimidation, unjust treatment and arbitrary provisions on barring narrow the scope of scrutinising interference by others, especially by the state, is clearly individuals and the definition of regulated activity, good. But freedom, having been gained, needs constantly and so make it more difficult to identify and bar to be protected, and in recent years Governments have people who represent a risk to children. There are also become a little careless about this. That is what prompts problems with the criterion of supervision for exempting this Bill and for that reason I welcome it. positions from regulated activity and the production However, the exercise of freedom is not entirely of a single certificate to the applicant only. Regrettably, straightforward. The freedom that I have been talking the Bill fails to provide for enhanced CRB disclosures about is what Sir Isaiah Berlin famously called “negative for those outside the sphere of regulated activity who liberty”, that is, freedom from outside interference have significant contact with children or vulnerable adults. and coercion. That freedom is constantly misused to One issue raised at Second Reading in another commit wrongs and damage other people, as repeated place was the criminalisation in Section 5 of the historic infringements remind us. The law has to deter Public Order Act 1986 of “insulting”, as distinct from and restrain such behaviour, which means that freedoms “abusive” and “threatening”, words or behaviour. This sometimes need to be curtailed, as the European has sometimes been used against people expressing Convention on Human Rights and Fundamental controversial opinions in the street or elsewhere and it Freedoms—let us not forget its full title—provides. is arguable that it provides too low a threshold for an As my noble friend the Minister has eloquently offence which restricts freedom of expression. I hope reminded us, the law has to attempt a balancing act, that the Government will think again about the matter. protecting freedoms, because they are essential to In addition to the negative freedoms protected in human flourishing, and where necessary restricting this Bill, we must as a society nurture and promote the them in the public interest. When we have a Bill such positive freedom to choose wisely and act rightly. This as this before us, we have to ask whether the balance is something beyond the reach of Government and that it strikes is right in particular cases. I want to law, but families, communities and institutions have a mention several areas in which the balance seems to vital role in teaching and enabling children and adults me to be right and others where it is more questionable. to use their freedom not for selfish, destructive ends I welcome the provisions to amend anti-terrorism but for good purposes and for the benefit of others. legislation. The reduction of the maximum pre-charge Freedom is always exercised in relation to others. detention period to 14 days is overdue, though I As Joseph McLelland wrote, wonder how viable the scheme for emergency extension “‘Autonomy’ should not mean freedom to choose … whatever will be. Similarly, the replacement of stop and search one wills, but responsibility for what one chooses”. powers under Section 44 of the 2000 Act is, in view of With this background in mind, I beg to support the their misuse, long overdue. The abolition of wheel general direction of this Bill. clamping on private land should put an end to a highly objectionable and exploitative practice. The restriction 6.29 pm of powers of entry brings order and proportion to a proliferation of laws that have become highly intrusive. Lord Freeman: My Lords, it is a pleasure to speak I back the protection of biometric information on after the right reverend Prelate and I am very pleased children in schools, with parental consent being required that, given the decision of the House earlier on, I am for processing information. In view of the accusation still able to pay tribute to him with his proper title. I that the Church of England is institutionally homophobic, agree very much with what he has just said. I am glad to support the disregarding of convictions I support this Bill. It has been some time in gestation for historic consensual gay sex offences. and, although some parts of it might need further There remain two areas of the Bill over which many consideration in your Lordships’ Committee, I think people have substantial reservations. The first is the that this Bill needs to be hastened to the statute book. retention of fingerprints and DNA data on the police It is well balanced. I agree with the noble Lord, Lord database. I understand why the Government have Bew, in his comments on its construction and content. opted for a three-year retention period, but I worry First, I pay tribute to the noble Lord, Lord Armstrong that it tips the balance too far away from effective law of Ilminster, who chaired the Joint Committee of the enforcement by reducing the possibility of convictions Commons and the Lords, on which I served, which for serious offences. The shadow Home Office Minister looked at the provisions dealing with detention before in another place argued that, if a retention period of trial. I am sure that my noble friend Lord Goodhart, six years were kept for the moment, a detailed analysis who will be speaking later, will wish to comment. of DNA retention would provide more evidence to I shall concentrate on Clause 58, which deals with decide on the optimum length of the retention period. pre-trial detention. As noble Lords will well know, this 181 Protection of Freedoms Bill[8 NOVEMBER 2011] Protection of Freedoms Bill 182 issue has been batted back and forth over many years sophisticated new technologies, fear of terrorism, in terms of the length of detention before trial. For authorities with little regard for privacy and a series of many of us, it has been an annoying bone to gnaw on illiberal Home Secretaries combined to make the UK for many years, so I am delighted that we have now “surveillance Britain” under the previous Government. settled on a sensible period of 14 days as the norm. I So when Justice called the proposals a sticking plaster, support the Home Secretary, who has been at the it missed the point. This Bill is a very important first forefront of trying to deliver a message, not just to the step in addressing what privacy and freedoms should police forces and our security services but to the public mean in the 21st century. Justice has just published an at large, that this should be the norm. Gone are the excellent new publication Freedom from Suspicion - days when we were talking about several multiples of Surveillance Reform for a Digital Age, which highlights that period as an aspiration. the fact that we have moved into a new era that As your Lordships will know, the 28-day period existing legislation is not able to cope with. It did not effectively lapsed in January this year, and we are now anticipate the rapidity of technological advance, which back to a standard 14-days maximum detention before is enormous. The scale of technological capability is trial. The Joint Select Committee of your Lordships’ beyond anything that was imagined, even when the House and the other place took evidence from not Regulation of Investigatory Powers Bill was drafted. only the police but former Home Secretaries, who In common with all noble Lords, I can remember warned of the serious risk that there might be individual when opening someone’s post without proper cases, and perhaps collective numbers of people, who authorisation was a serious offence, yet in the internet might need to be detained beyond 14 days before trial, age, popping in to their IP address and having a look but that was very much the exception. at what they are up to is not taken as seriously as it A lot has changed in the past few years. We have should be. An example is that, legislatively, RIPA offered extra resources for the police forces and our security protection when, in 2006, BT and Phorm decided to services, new technologies that identify where people run a secret trial of marketing software that intercepted are coming from and electronic devices to understand the private internet sessions of thousands of customers. where the threat might come from, whether individuals It was illegal, but the CPS took no action. That set a or groups, but the threat remains. As we come up to very bad precedent that ignoring RIPA is not serious. the Olympics, our security services are acutely aware In April this year, the Information Commissioner of the prospect of—heavens above—multiple terrorist said: threats. Your Lordships will wish that those never happen, but the security services and the police are “RIPA was drafted for the wiretap age”. taking them very seriously.Therefore, we need a provision The Law Society’s comments are similar. In its written to go to 28 days in exceptional circumstances. evidence to the House of Commons Public Bill Committee The Joint Committee of your Lordships’ House on this Bill, it stated that RIPA is, and the House of Commons came up with a “a confused and complex legislative framework for surveillance, recommendation that has not been fully accepted by along with equally complex and overlapping oversight arrangements”. the Government, except that there is a provision that, Other examples of the technologies give us an idea of when Parliament is sitting, the Government in the the complexity. The Guardian has highlighted that the form of the Home Secretary—and, in your Lordships’ Metropolitan Police are operating covert surveillance House, the Minister responsible for the Home Office— technology with a signal that shuts off mobile phones would bring forward an order to extend the period remotely, intercepts communications and gathers data and would explain why that was necessary. However, about thousands of users in a targeted area. That has there is a danger, which we need to reflect on. It is very big implications for the right to protest and freedom important not to prejudice the case of an individual or of expression. The Met has also purchased software to group of individuals, so I think that we must accept map digital movements using data gathered from social this provision but we must make sure that we preserve networking sites, sat-nav equipment, mobile phones, proper legal proceedings and the justice of the case as financial transactions and IP network logs. well as protect our security. How should this be regulated? Clause 37 gives the I am pleased that the Government have accepted Secretary of State welcome power by order to require that, when Parliament is not sitting, the Home Secretary judicial authorisation for targeted surveillance should be responsible for acting to extend the period authorisations by other public bodies, but I would like to 28 days, subject to a number of provisions, particularly us to debate in Committee an amendment providing as far as the Director of Public Prosecutions is concerned. that prior judicial authorisation would be an integral If Parliament cannot be recalled because it has been part of the whole system. Such authorisation would dissolved before an election, there must be a provision, have picked up the disgraceful, long-term and costly in exceptional circumstances, to go to 28 days. This surveillance operations undertaken by the police on compromise is workable. It was not the recommendation peaceful environmental movements. of the Joint Committee, but I support it. How do we as parliamentarians assure ourselves I very much support the Bill and look forward to its that such capability is being used in the right way? We further and rapid progress. have the commissioners—my noble friend Lady Hamwee mentioned that we do not have a collective noun for a 6.34 pm group of commissioners—and the Bill adds two new Baroness Miller of Chilthorne Domer: My Lords, ones: the Surveillance Camera Commissioner and the the Bill marks an important moment. It is the start of Commissioner for Retention and Use of Biometric the turn of the tide from a very low point where Material. The problem is that the commissioners have 183 Protection of Freedoms Bill[LORDS] Protection of Freedoms Bill 184

[BARONESS MILLER OF CHILTHORNE DOMER] term is slightly curiously used here—under similar, different roles and areas of responsibility that have though not quite the same, requirements for openness. been built up in a very piecemeal way. There are not The other public authorities, I take it, include not only overlaps but there are gaps in responsibilities. I would local authorities but, above all, universities, hospitals like to explore whether we would be better served by and research institutions and, no doubt, the publicly one privacy commissioner with an overarching role. owned companies to which the Minister referred. I am We know that the Chief Surveillance Commissioner not quite sure what sort of companies those are because has quite limited powers. His function is just to keep I note that hospitals, universities and research institutions under review the operation of the powers and duties are not companies and are not publicly owned companies. of directed and covert surveillance. The Interception It is a complex problem and I should declare a of Communications Commissioner’s role is limited to non-pecuniary interest at this point as a member of the oversight of those who issue warrants and the the Royal Society Working Group on Science as a procedures of those acting under warrants. He has no Public Enterprise. This group is looking specifically at power to investigate complaints or to advise the public. the problem of scientific data sets—which are not The best model—the Information Commissioner—is always published, even when there are publications—and responsible for promoting and enforcing compliance will report within the next few months. with the Data Protection Act 1998. It is this role of Let me now return to the Bill. Given that the period advising the public that is really important. Citizens within which institutions have to respond to requests need an independent powerful figure—who is outward- to make data available is very short—three weeks or facing to them, as well as inward-facing to the authorities fewer—it seems to me that one effect, or perhaps operating under the various legislative frameworks purpose, of this Bill is to require investigators to make including RIPA. We have a lot of work to do in this research data available on an ongoing basis, if requested, Bill just to keep up with the capabilities of the technology. and in an ongoing way. Can the Minister confirm that I welcome a debate on how to do that. the Bill removes any discretion to wait until a data set I particularly welcome the repeal of Section 44 of has been completed or checked, let alone until the the Terrorism Act 2000: “stop and search”. It is very research project is completed or the work based on welcome indeed. I also welcome proposals that will see that research project is published? Does the Bill require the destruction of the DNA samples of those arrested disclosure to competing research groups if they simply and charged with a minor offence but never convicted. request that the data be made available to them? Does I am, however, very disappointed that the position of it require disclosure before a decision about possible children arrested or charged but never convicted of commercialisation has been reached—or, indeed, can serious offences is unchanged. We need to examine be reached? that closely in this House. Finally, I am disappointed I know that some noble Lords hope that there is a that there is no amendment to the Criminal Justice Scots remedy to this. I yield to nobody in my admiration and Public Order Act 1994 so that it recognises peaceful for the remedies that have been taken in Scotland for protest as a fundamental part of democracy. It leaves certain matters; but, unfortunately, it is a fantasy that in place the “aggravated trespass” offence. That was waiting for publication is a real solution to the problem. recently employed, for example, against all the individuals I will come back to why. Before that, I would like to who were peacefully protesting with UK Uncut at ask a few questions about the form in which data Fortnum & Mason earlier this year in March. That use would have to be released. Clause 100 tells us that, of “aggravated trespass” is an affront to the concept of “the public authority must, so far as reasonably practicable, peaceful protest. provide the information to the applicant in an electronic form which is capable of re-use”. 6.41 pm At one level, that is clearly very sensible. The provisions Baroness O’Neill of Bengarve: My Lords, this Bill for the release of government data are, of course, even has quite a grand Title but a somewhat miscellaneous stronger. They must be released in a form that can be feel. Although this is a Second Reading debate, I will freely used, reused and redistributed to anyone—subject concentrate on one part of the Bill, which has already only, at most, to the requirement to attribute and been mentioned. I hope to ask the Minister a range of share alike. questions about Part 6, which makes provision for the I do not think that the present Bill demands quite publication of data sets held by public authorities. I as much, in that it permits controllers of data sets that am not against what is generally called “transparency”. have to be released to charge a fee for reuse if they are In fact, it is a great deal weaker than most people the sole owner of a copyright in the relevant database. suppose. Transparency is an antidote to secrecy; its Am I right in reading the Bill as requiring these public defect is that it is no guarantee of communication of authorities to release data they control to competitors, any sort. That form of quasi communication can subject only to the right to charge a fee? Am I right sometimes create an illusory advance in the things we that there is nothing to prevent those who have secured try to do. release of data from reusing them for commercial and As I understand it, the Bill covers data sets which other purposes, without needing any consent from are neither government data—that is, produced or those who compiled the data? commissioned by government or government-controlled Do the Government envisage defining a stage in a entities—nor official statistics. Both government data research project before which the requirements to and official statistics are, after all, already subject to release data would not apply? Or does the Bill ensure requirements for openness. The intention of the Bill is that a research team at a UK university must share to bring data sets held by other public authorities—the their data with all-comers, including scientific and 185 Protection of Freedoms Bill[8 NOVEMBER 2011] Protection of Freedoms Bill 186 commercial competitors? Do the Government envisage primary colours, but I will seek to persuade her that that overseas researchers will reciprocally open their actually this is an issue which requires a more pastel databases to scientific and commercial competitors? If and nuanced approach than she has shown so far. this is not the picture that the Government have in If I have a concern, it is that we have not followed mind, it would be very helpful if the Minister could through the logic of some of the proposals in the Bill say something about the stage of a research project at far enough. My noble friend has told us how it proposes which data would have to be made available upon a three-year retention period with a possible two-year request. I do not think we can solve this problem by extension for identification material taken from people referring to a point of publication: most big data sets arrested or charged but not convicted, and I thoroughly have many publications associated with them, which support that. However, perhaps I may draw my noble occur at many stages. Which of them would be decisive friend’s attention to the Elmer database. This database for triggering susceptibility to be requested for release is maintained by the Serious and Organised Crime of the data set? Agency. It receives reports about possible money Finally, I have some boring questions about costs. laundering and other criminal activities under the A requirement to make data sets available in electronic Proceedings of Crime Act 2002 entitled “Suspicious form that permits reuse does not sound onerous if one Activity Reports” or SARs. It may surprise the House thinks about little data sets. However, a great deal of to know that there are now 1.5 million of our fellow scientific research today compiles massive data sets. citizens on the Elmer database and that this number is We are not talking about megabytes or gigabytes of increasing by 200,000 a year. Almost 50 per cent of the information, but about terabytes and petabytes onwards. entries are more than six years old. It is hoped—I Making data sets of this size available is not done by repeat, hoped—to delete these by the end of 2011. But the click of a mouse: it is expensive, time consuming this gives rise to some serious civil liberty issues. and skilled. If data sets are to be reusable by others, it People do not know that they are on the database, is likely that those who provide them will have to make whether the information held about them is correct, metadata available. Do the Government have a view and they have no right to find out. of the costs of this provision of the Bill? Have the When the committee of your Lordships’ House of Government identified who will bear the costs? Who is which I am a member inquired about this of the responsible for data archiving, for data integrity and SOCA authorities, they said that they might tell us, for data security? On which budgets do the costs fall? but they might not. Some entries are inadvertent, What provisions do the Government have in mind access to the database, at least historically, has not against data mining that peels away anonymisation been well controlled, and there is no de minimis level from ostensibly anomynised personal data? Do the of returns. For some years I was head of the compliance Government think that these provisions are likely to committee of a building society. We made several incentivise public authorities which have such large hundred returns every year, none of which was ever databases to enter into partnership with private sector for more than about £200 or £300. So I offer to my organisations which will hold the data—thereby eluding noble friend the thought that if regulatory principles the provisions of this legislation? Open communication are that they should be proportionate, accountable, matters for science and for citizens; but mandated targeted, transparent and consistent, there should be disclosure of reusable data in response to all and any some amendments to bring the Elmer database under requests, regardless of costs and time constraints, may much tighter control than we have had it so far. not be the best way forward. I turn next to Part 5 covering the vetting and barring regime, and I begin by saying that I understand 6.50 pm absolutely the repulsion—it is not too strong a word—that Lord Hodgson of Astley Abbotts: My Lords, I give people feel about the abuse of children and vulnerable my strong support to the policy thrust behind this Bill. adults; any parent would. But there is a really important Of course the title, the “Protection of Freedoms Bill”, balance to be struck. I prepared for the Government a is a seductive one—who could possibly object to that?— report looking into what deters people from giving but there is meat in here that is certainly worthy of our time and money in volunteering in order to help the support. There is the destruction rule for fingerprints charity sector. It was called Unshackling Good Neighbours. and DNA profiles, the proper regulation of CCTV The evidence we received from across the country was cameras, and the proposal to give coherence to powers that many of our fellow citizens are put off volunteering of entry which my noble friend Lord Selsdon has by what they see as a lack of trust and a lack of pioneered for a long time, and which I myself had judgment. This must ultimately damage the welfare of reason to learn about when my flat was broken into by children and vulnerable adults. We had evidence from the gas company on the grounds that the neighbour a doctor in the north of England. She was aged 67 and smelt gas. When no gas was found, the gas company had retired from the health service. She offered to give seemed to have little responsibility for repairing the some time to the Alzheimer’s Society to deal with door or, indeed, apologising for what it had done. patients suffering from Alzheimer’s. The society insisted The Bill also rolls back some of the ineffective and that she be CRB checked because “frequent and intensive” disproportionate aspects of the vetting and barring contact, the level we have at the moment, means one regime. This has deterred many people from volunteering visit a month. She said, “The state has an audit trail to help our fellow citizens. The noble Baroness, Lady for me going back 40 years since I became a doctor. If Royall of Blaisdon, for whom I have the greatest respect, the state doesn’t trust me, I am not going to do the chided my noble friend about this in her opening remarks. work”. That was not unique; there were lots of cases She painted the issue in what I can only describe as like it. 187 Protection of Freedoms Bill[LORDS] Protection of Freedoms Bill 188

[LORD HODGSON OF ASTLEY ABBOTTS] to increase. A situation can now arise where people Perhaps I may say to the noble Baroness, Lady and their businesses can be irredeemably damaged by Royall, with the utmost respect for her position, that completely inaccurate statements that are put up on the whole CRB industry has become institutionalised. these websites and for which they can obtain no redress. If you take evidence from charities and voluntary Last week a case was reported on the radio of a groups, they bring their CRB teams along. Of course plumber in Southampton whose business was wrecked they are going to argue that more CRB checks by the fact that it was alleged that he was a paedophile, are needed because that is their job. The Charity and destructive messages are published about leisure Commissioners and Ofsted ask charities whether they sites by rivals to try to ensure that they get a greater have carried out their CRB checks. I understand that part of the business. People are entitled to some clear this is important, but the CRB is a matter of law. The way of challenging these statements and, where Charity Commissioners are concerned with charity appropriate, of obtaining redress. I would be interested law and Ofsted is concerned with educational standards. to hear whether my noble friend has any policy They might as well ask whether they ensure that developments under consideration to deal with this teachers drive at 30 miles an hour when they come to issue, one that is surely going to increase in importance school in the morning. in the future. The police child protection officers ask intrusive and difficult questions of volunteers and there are commercial 6.59 pm companies doing CRB checks who like the extension Baroness Dean of Thornton-le-Fylde: My Lords, I, of it because it means more fees for them. Perhaps I too, welcome many of the provisions of this Bill. may briefly give the House a flavour of this from a Social networking is one of the areas of concern. If it letter we had from a lady in Manchester: is on the social network, people believe it and do not “About 8 years ago I decided to get involved in a local believe the official authorities. A whole group of young Manchester Drama group, whose members range from 7 to people growing up today look at the social network 80 years old. A number of us assumed responsibility for teaching and think if it is on there, it must be right. People who the children and preparing them for the annual pantomime and have bad instincts towards children are drawn to it other productions. Naturally, we were CRB checked—a process I had no issue with and wholeheartedly support. because that is where young people go. I, too, raise the question referred to by the noble Lord, Lord Hodgson, However—having been CRB approved, we were invited to a session with the local child protection officer. I came away from a few moments ago. that meeting with a number of very serious questions as to I welcome very much Clause 58 on detention without whether I should get involved with this sort of group. The talk left charge. I felt that my own Government were going too me feeling I would potentially be placing myself in situations of far in their proposals and I would not have supported real risk”. them. I support very much the change that is being There are many cases which repeat these concerns proposed, and indeed, the removal of a homosexual about the lack of trust and judgment. If you ask some record. What was then regarded as a criminal act is of the other experts, they can explain where the vulnerable not so today, so it makes sense to remove it. points are: they are outside the school gates and on the My concerns are on Part 5 and this is where I social networking sites. That is where the grooming depart from some of the views of the noble Lord, takes place, and all too often they are outside any Lord Hodgson. It is very easy to caricature a vetting remit of the CRB. I hope that my noble friend will and barring system as the nanny state gone mad and stand firm against any attempt to push back this issue, being completely wrong. We are talking about the and I hope also that he may be inclined to think about protection of children. I agree that we need to get the whether we cannot find another place where the balance balance right but much of the provisions in legislation can be struck. arose out of cases where children were groomed and I should like his reassurance—I think he gave us treated in an appalling way, which, as the noble Lord, one in his opening remarks—that the portable passport Lord Hodgson, rightly says, is absolutely repugnant to is now coming into being. Can he let the House know any decent person. I feel that the balance in Part 5 has what the charge for this passport will be? There has swung too much from one part to the other. We need been a lot of concern in the sector that there will be a to get some balance into the Bill. I hope that the substantial charge. Could he also let us know what the Minister will listen and perhaps deserve that little definition of “frequent and intensive” contact will be bunch of mistletoe at the end of the Bill by getting in the future? If it is to be in new regulations, it would some changes into this area. be helpful for us to know this when we come to debate The most popular team sport for youngsters in the these clauses in Committee. UK, which is not one that I follow, is football. I have I want to leave the debate with one further thought. spoken to the Football Association because I know It is a small issue, but one that is growing in importance. that it has a very good structure. It has just under In future, how are we going to ensure the accuracy of 55,000 youth teams up and down the country covering information placed on social networking websites and about 1 million children. Each year, around 35,000 people who will be responsible for this? This is a freedom are vetted to work with those youngsters. There is a which is increasingly going to need protecting. Two welfare officer working with the Child Protection in sites in particular have given rise to public anxiety: Sport Unit and it is all properly organised. One could Facebook, which is well known, and a site called repeat that among a number of charities. There are the TripAdvisor that gives recommendations about holidays big organisations and the small ones that do not have and other leisure sites. The importance of these and that support, which will be affected profoundly by the other social networking websites will surely continue Bill. The effect will be not from the adults working 189 Protection of Freedoms Bill[8 NOVEMBER 2011] Protection of Freedoms Bill 190 with them but from the youngsters taking part where of Freedoms Bill. The Bill is rightly so named. It is an parents may be concerned that their children are not excellent Bill which I strongly support. being properly protected. Some people—perhaps particularly some leaders of The Government have said that in future only the the Labour Party—argue that the Bill goes in the applicant will complete the form and only the applicant wrong direction or goes too far. Others say that it does will see the certificate, as I would call it, of the vetting. not go far enough. I think that the Bill gets it about At the moment, it goes to the employer or the registered right. There are undoubtedly matters of detail that organisation, but that will not happen in the future. can be corrected but broadly it is about right. There One of the rationales for this is that only 5 per cent of are, of course, some simple and obvious provisions the applications actually have some content or concern that very few people could possibly challenge—for which means that you probably would not want those example, Clause 108 which now allows marriages and people working with youngsters. The Football Association civic partnerships to be entered into at any time of says that it does not accept that figure and that it is night or day, although that might meet with the objection around 15 per cent. Irrespective of whether it is 5 per of neighbours who did not like a wedding being cent or 15 per cent, that of itself is a case to argue that conducted at midnight. the Bill has gone too far. That does not mean that I do A number of people claim that parts of the Bill not believe that there need to be changes. should go further. Examples include, among others, We have talked about social networking and we Part 1 on biometric data, Part 3 on powers of entry talked earlier about new technology—even looking at and vehicles left on land, and Part 4 on counterterrorism. our own procedures in this House. I wonder whether I do not want at this stage to express my own views on the Minister should perhaps give some consideration matters where I have had little professional experience. to saying that, for the 95 per cent, or indeed, the 85 per This rules out, for example, Part 1 on biometric data. cent, that cause no concern at all and whose applications But there are two matters that I want to speak on tonight: go through without problem, the notification of clearance some aspects of Chapter 1 of Part 3 on powers of could go by e-mail. At the moment it goes in the mail, entry and Part 4 dealing with counterterrorism. but e-mail is much quicker and not as expensive. At Chapter 1 of Part 3 contains many provisions which the moment the whole problem will be loaded on to give rise to Henry VIII powers—powers for the the voluntary organisations. We know what will happen. Government to alter or repeal provisions of another There will be a dreadful case that is all over the papers. Act of Parliament by order rather than by a separate The Daily Mail will be calling for the Minister’s head statute. I am interested in these provisions because I because he has not given proper protection to children. am a former chairman of the Delegated Powers We need to find a balance to make it more efficient, so Committee which deals in particular with Henry VIII that it is not so overbearing, but protects children. powers. The 20th report of the Delegated Powers That is one thing that we could have. The ones that Committee dealing with this Bill found that most cause concern could then go in the normal way to the Henry VIII powers in Clauses 39 to 41 are acceptable. organisation, whether it is an employer or a voluntary However, it said that another Henry VIII power in organisation. Clause 51 is inadequate because the first exercise of The Government say, “Well, sometimes there are that power should be made by the affirmative procedure errors”. We could allow a period between an individual and not by the negative procedure. being told, “We are not going to clear you to work The report on the same subject by the Constitution with children”, and the third party—the employer or Committee is critical of Clause 41. However, the validity organisation—being told. It could be a period of two of the Henry VIII powers is more of a matter for the weeks, a month, or whatever to allow the individual to Delegated Powers Committee than the Constitution appeal that the information is incorrect. Certainly that Committee. I believe that no modification is needed to would bring back some kind of balance. There is also Clause 41. What would then be left to be dealt with by the issue of transferring the cost entirely under the way of altering the Henry VIII clause would be a present proposals from the centre to the organisations, minor change to Clause 51 which would cause no many of which do not have the resources to do it. problem to anybody. What will happen? At the moment, they will be able to Much more important issues arise over Clause 58 take a judgment about not having clearance and, of the Bill which deals with a temporary extension of again, we will have not one but several public scandals. detention in an emergency involving threats of terrorism. The Bill provides—this is very welcome—the portability The general position in the Bill as is stands is that the of the clearance. Once you are cleared, you are cleared, maximum time for detention of a terrorist suspect will and that is it. Quite often volunteers work not for one be 14 days and there will no longer be a power for the organisation but several. That would be extremely Home Secretary to extend the term to 28 days. There helpful in improving matters. The Bill has a number of will, however, be a power for Parliament to enact one unintended consequences in this part and I look forward or other of two now-existing draft Bills which will to discussing it as we go through the Committee stage. make it possible to extend the period of 14 days in an I hope that the Minister will deserve that little bunch emergency. of Christmas fare at the end of it. I am sure he will. The proposal was, at an early stage, considered by the Joint Committee on the Draft Detention of Terrorist 7.06 pm Suspects (Temporary Extension) Bills, which has already Lord Goodhart: My Lords, in recent years we have been mentioned by my noble friend Lord Freeman. I had a series of Bills that could be described properly was a member of that committee and I am very glad as prevention of freedom Bills. We now have a Protection that our chairman, the noble Lord, Lord Armstrong, 191 Protection of Freedoms Bill[LORDS] Protection of Freedoms Bill 192

[LORD GOODHART] firmly support the proposed reduction from 28 days to will be speaking shortly on the same subject. It became 14 days in cases of pre-charge detention of suspected apparent to us in the committee that although very terrorists. I was the noble Lord who successfully proposed quick action could be taken even when Parliament was the amendment to stay at 28 days in the face of a in recess, there was a severe problem if there was no determined attempt a couple of years ago to extend Parliament. That would happen from the time when the period to 42 days, so I am speaking with a particular Parliament had been dissolved until a new one had interest at heart. I note, of course, the saving provision been elected and its Members had taken office. While for 28 days in emergency circumstances. I think that it is very unlikely that terrorist activities will be launched that is a very sensible move. at such a time, it is obviously not impossible. I want to draw attention to one freedom that is not Our committee therefore recommended the covered in the Bill: the freedom of speech, one of the introduction of what is now basically Clause 58 to make most fundamental of all the freedoms that we cherish it possible to deal with this problem. Clause 58 has in this country, and have cherished for a very long been fiercely attacked by Liberty and less fiercely by time. I say immediately that I have no intention whatever Justice, of which I am a former chair. Liberty said: of seeking to amend the Bill to bring something in to “Under Clause 58, 28-day pre-charge could potentially be cover freedom of speech, but I ask noble Lords to bear activated by the Home Secretary (with no need for parliamentary with me for a very short time while I introduce the approval) whenever she considered it operationally convenient”. subject very briefly and give the reasons why. That is absolutely untrue. Justice said: In common with many other Members of your “We believe extending the maximum period of pre-charge detention in terrorism cases is unlikely ever to be an appropriate Lordships’ House and a significant number of Members response to a public emergency”. of the other place, I support the removal of the word That is true enough as it is unlikely that danger will insulting from Section 5 of the Public Order Act 1986. arise during the short period that occurs only immediately The term, before and immediately after a general election. However, “threatening, abusive or insulting words or behaviour”, the risk should not be ignored. has been included in legislation from as far back as the I finish with a broad picture of what I think should Public Order Act 1936, an Act which has been steadily be done. This is a Bill that almost all of us can support amended as society has become more complex. Under very largely. Many of us would like, in some respects, Section 5 of the current Act, “insulting” stands at the to go further but our aim, I believe, must be to very bottom rung of the ladder of descending seriousness. produce a good result, not necessarily an ideal one. The ladder begins at the top with Section 4 of the 1986 Therefore we need to be careful about the amendments Act, which criminalises intentional harassment and we consider when we are dealing again with the Bill. other criminal acts, going down through Section 4A into Section 5, where no intent is required for the 7.14 pm offence to have been committed. Lord Dear: My Lords, I, too, join the growing I have of course oversimplified that, but it gives you chorus of support for the Bill. I support its broad a picture of descending a ladder of criminality until thrust. I welcome it and think it is timely. I will go one reaches the very bottom rung, which is insulting through the list very quickly because noble Lords have behaviour. “Insulting” is obviously the least serious of already made the points. So far as the regulation of the range of behaviour encompassed by the current CCTV is concerned, of course I applaud that. As to legislation. It is now also the subject of a good deal of the destruction, retention and use of fingerprints and debate, not least because on a significant number of DNA samples and so on, the existing position is occasions the enforcement of the legislation, so far totally untenable and the proposals in the Bill will as it applies to insulting, is seen by many to be an bring us into line with what is already happening in impediment to the proper exercise of free speech, Scotland and will broadly support the judgment put whether or not one supports the views expressed by forward by the European Court of Human Rights in some of the defendants in some of the more contentious the case of S and Marper v United Kingdom in 2008. cases that have focused attention on this issue. So far as local authorities are concerned and the In normal circumstances, I would table an amendment way in which some of them have used the Regulation in Committee to seek to strike out the word insulting of Investigatory Powers Act to deal with some of their from Section 5 of the current Act. However, on 13 October problems, if ever there was a case of sledgehammers the Government announced a consultation exercise to being deployed against walnuts, I have not seen a examine police powers for public order under three better one. That has to be curbed. The Bill seeks to do heads, one of which is to examine this very issue—the so and I applaud it. I also support, as other Members possible removal of the word insulting from Section 5. of your Lordships’ House have, Chapter 4 of Part 5, That consultation period will run until 13 January 2012. which seeks to disregard some convictions for some For obvious reasons it would not be sensible or proper homosexual acts in the past. to press for an amendment while the consultation The issue of terrorism is closer to my own heart for procedure is in place. I simply ask the Minister at this professional reasons. I agree that Section 44 of the stage—a stage when we are examining and discussing Terrorism Act 2000, providing for stop and search many other fundamental freedoms, issues such as without reasonable suspicion, is also untenable—a privacy, due process, freedom from arbitrary arrest word which I have used already. The move towards and many others—to note my remarks, to recognise using Section 43 instead, where reasonable suspicion the fundamental importance of freedom of speech is required, is to be applauded. In particular I very in this country, and perhaps to endorse my remarks in 193 Protection of Freedoms Bill[8 NOVEMBER 2011] Protection of Freedoms Bill 194 welcoming the conclusion of the consultation procedure are often very clever and plausible, so we need a in January next year, when we might have an early system that is cleverer. The key to this is information, opportunity to return to this issue and to debate it so that informed decisions can be made. However, as fully, a debate which otherwise should and, I believe, the noble Baroness, Lady Dean, said, the disclosure would have been featured in this Bill today. As I said, will no longer be sent directly to the organisation but however, the Bill as it stands has my broad support to the person being screened, who then has to send and I welcome it. it on. There are a number of problems with this that have been raised with us by a number of children’s 7.20 pm organisations. I understand that the Government have Baroness Walmsley: My Lords, I, too, give a general decided to send the reports to the individual because welcome to this important Bill and intend to focus my there have, in the past, been some cases of wrong remarks on Part 5. Like the noble Baroness, Lady information going to the employer, which is highly Dean of Thornton-Le-Fylde, I feel that a little nuancing undesirable. However, in 2010, only 0.06 per cent of maybeinorder. certificates issued were found to have errors, so it I welcome the Government’s intention to streamline would seem that the proposal is hugely disproportionate. the vetting and barring system and to right the wrong Surely this problem could be catered for by sending it about legal gay sex. In particular, I welcome the portable to the individual and giving them a period to correct CRB checks, for which there is clearly a need. I have anything that is wrong before sending it directly to the heard many stories of people working in a number of employer. To prevent employers getting timely information schools, sports organisations or cadet forces who could because of such a small percentage of errors is over almost paper a wall with their CRB reports. However, the top. there is a danger of a two-tier system, one free and the Organisations raise a number of other problems other paid for. When the person shows his portable besides cost. If the individual does not send in the report to an employer, that employer will be able to report, the organisation has to spend time nagging check online that it is valid and up to date—so far, so them for it. They may want it passed on to a local good. But this database requires regular updating. volunteer, which would have an effect on the relationship Employers can check both the CRB report and whether between the two and put too much responsibility on the person is barred on two separate systems, for each that volunteer. The person would have to be suspended of which they will have to pay a subscription. There while the report was awaited, giving rise to sometimes will also be a cost to individuals for this portability. I quite unnecessary and unwarranted suspicion. As the fear that, if the portable check has a cost and the noble Baroness, Lady Dean, said, the FA says that individual check is free, people may choose the latter, only 15 per cent of its disclosures have what is called thereby frustrating the Government’s intention to “content”—in other words, material that needs looking streamline the system. at, yet that organisation may have to waste its time We have been approached by a number of highly chasing up the other 85 per cent quite unnecessarily. respected groups that have concerns about the changes So it and all the other 320 sports organisations in the to the vetting and barring system. The Sport and alliance feel that Clause 79 as it stands makes their job Recreation Alliance, which represents 320 governing of protecting young people more difficult and creates bodies of sports that work with hundreds of thousands opportunities for determined predators to manipulate of young people and volunteers, believes that the and frustrate the safeguarding process. proposed measures could undermine their effective Another issue that has been raised is the extension and efficient centralised systems and transfer significant of non-regulated activity to include work that has burdens to volunteers. The Association of Colleges “day to day” supervision. The NSPCC, the Children’s points out that colleges employ 245,000 staff, of which Society, Children England, the Children’s Commissioner 79,000 are non-teaching. More than 860,000 16 to and others have raised this issue. First of all, we need 18 year-olds study at colleges, whereas only 434,000 of to get the right definition of “supervised”—that is this age group study in schools, yet colleges are to be vital—but we should also bear in mind that even put under a different regime from schools. When the closely supervised people have the opportunity to participation age is raised to 17 and then 18, the develop a trusting relationship with young people that number at colleges will probably rise even further. could be exploited at other times and in other places. Sixty-three thousand 14 to 16 year-olds currently attend Another issue is that people will be placed on the a college at least one day per week, and this number is barring list only if the ISA, or its successor, has reason likely to rise as well, following the Wolf report. Colleges to believe that the person is or might in the future feel that all young people should be given the same want to work with children or vulnerable adults—the protection wherever they study, and that means looking noble Baroness, Lady Royall, referred to that. A survey again at some of the proposals as the Bill goes through has shown that nearly 97 per cent of the public believe your Lordships’ House. that if a person has been convicted of an offence that The problem is that the Bill proposes reducing the is sufficient to bar them they should not be allowed amount of regulated activity, which would have the anywhere near children in any capacity—here we are effect of reducing the number of people covered by not talking about reputable doctors. It seems unnecessary the vetting and barring regime—all well and good. for the ISA to have to spend its valuable time and While this may be desirable for some groups, it must expertise considering whether a person might or might be done very carefully to avoid letting through the net not, at some time in the future, want to work in a people who would seek to harm children. These people regulated role. 195 Protection of Freedoms Bill[LORDS] Protection of Freedoms Bill 196

[BARONESS WALMSLEY] ballot. You have to drip-feed the right people in the This brings us to the information on the CRB right way, and watch the stalactites and stalagmites certificate. Under the Government’s proposals, if grow. It was therefore a great pleasure to me when we employers choose to perform a CRB check on someone finally got this through with the help of the noble working with children outside of regulated activity, Lord, Lord West, despite the objections of his officials they will not be able to see whether that person is at the Home Office for quite a period of time. We had barred. Sir Roger Singleton, chair of the ISA, has a Public Bill Committee, which people from all parts estimated that one in five people who are barred by it of the House served on, and I was lucky enough in the have never been near the police, so their CRB disclosure end to get the Home Office to join in. I would mention would not show this. For this reason, I welcome the the name of the man in the Home Office—he was proposed merger of the ISA and the CRB. brilliant. Together, we found our starting point was None of us wants children to believe that all adults 150, then 250, then 300 pieces of primary or secondary pose a threat to them—far from it. We all want a legislation. Then the Home Office, working often through simple, no-fuss system that weeds out the bad guys the night, arrived at somewhere around 2,500. Of without deterring the good guys who we want to course they change. encourage to work with our young people. We will However, who can go into whose house? We thought work with the Minister as the Bill goes through this that it might be right to say that, first, they should House in order to produce such a system that does knock on the door and say who they are, and then just that: get the balance right. Currently, as I said, perhaps they should prove who they are. They should I believe that a little nuancing is required. probably not do it in the middle of the night and they should probably not do it on a Sunday, they should 7.28 pm wear good clothes, and they should possibly have Lord Selsdon: My Lords, I suppose that freedom something to say, such as, “I am here for this reason”. and privacy are two of the most important things in Your Lordships will have seen in the press from time my life. My interest in this matter goes back many to time many occasions when, because a postcode years to the banking world, when we had the phrases was wrong or the wrong button was pressed, someone “duty of care” to your customer and “know thy beat down the door of someone else’s house, took customer”. I found as time went by that nobody knew something away or caused problems. What pleased anybody: you did not know the gasman; you did not me so much about this was that, gradually, people know the postman. Strangers started to appear on the became interested. I knew the Government would not doorstep. In the banking world, we were concerned necessarily take it up, so I was so grateful that the particularly to protect our clients from all sorts of Labour Government lost the election, because it gave invasions. This started for me and my colleagues along me a chance to put a bit of pressure on the Conservative the lines of, “We had better introduce a Bill”, so, way Government, one of whose wise men rang me in the back in the 1970s, we drafted the protection of privacy middle of the night when I was abroad and said, Bill, because it was about privacy that we were concerned. “Your Bill is going to be adopted when we win the Gradually, we found that there were more and more election”. I said that I would wait and see whether that opportunities for government or outside bodies to happened or not. enter people’s property without permission and do all Anyway, I did not hear much more. Then, suddenly, sorts of strange things, whether or not it was the the Protection of Freedoms Bill emerged and the gasman. This led to my drafting, with considerable powers of entry were within it, bearing some resemblance help, the Powers of Entry etc. Bill. to what I and my team had done. However, the This was done initially with the help of a professor government system had failed to recognise that we did from Lincoln University, Richard Stone, who produced not leave it by pushing a Bill for someone else to take the authoritative book, The Law of Entry, Search and up and do all the work on. We had communicated. I Seizure. I began by asking Ministers questions—I think had written to every local authority in the land and there were well over 100, or maybe 200—as to what asked for their views. I had written to every bishop the powers of entry were. They did not know the and asked him to get in touch with the parish councils. answer, and the standard response was, “The information We had written to every one of the bodies that had is not centrally available”. They did not say that the powers of entry asking for their advice and guidance, cost of getting it was too much. So I drew people’s and I had put out a website that went right the way attention to the book and put it in the Library, and around different parts of the world. More than that, certain Ministers began to reply. Then, rather to my we had drafted a petition and were just looking for the surprise, the Labour Party and Government became 100,000 signatures in order to present a petition at the interested and were extraordinarily helpful. Gordon Box. This was all with the help of the Public Bill Office Brown made an announcement at Downing Street and the people in the House of Lords. that we must do something to control the abilities of I am now extremely grateful as I stand opposite the people to enter people’s homes without their permission. noble Baroness, Lady Royall, and I thank her so much The Bill, which, as I said, was called the Powers of for the help of her Government and ask whether she Entry etc. Bill, lasted about three years. There were three will help me to persuade this Government to do things editions, and the final one passed the House with the in the right way. They started off correctly, but I am great help of the Labour Government in March last year. glad they put the powers of entry section into another I have learnt in this place that you never get a box, as it was pretty useless. It did not even list all the Private Member’s Bill through unless you find someone powers, because they change from day to day, but said who picks it up in the Commons after winning a they would introduce a code of conduct. 197 Protection of Freedoms Bill[8 NOVEMBER 2011] Protection of Freedoms Bill 198

I wanted to know what that code of conduct did, on the clamping and towing away of vehicles. We are because the Bill that we had already had said that you concerned that what are now rogue clampers will must not go into someone else’s property, office or become rogue ticketers. It was argued in another place place of work without permission or a court order. that the existing consumer law—the Fraud Act and Now it is the court order that has not yet appeared, the Theft Act—provide suitable protection for cities. I because it is relatively easy for anyone to obtain one at do not share that view and neither does Citizens any time. The noble and learned Lord, Lord Scott of Advice, because resorting to law is extremely long-winded Foscote, was on our team. As your noble Lordships and expensive. We have to deal with these issues effectively will know, he hunts quite regularly and said that he during the passage of this Bill. could even issue an order from the back of a horse if First, we have to be certain that there is an independent necessary. The issuing of orders is not a problem. We appeals body that is funded by the industry, and that took out one particular area within the Bill that was its existence is made plain both on the notices and the quite important and that separated the powers of parking tickets that are received by people. We should entry from everything else—a saving. It said: insist that those who have the power to issue tickets “Nothing in this Act shall apply to the issue or execution of should be members of an accredited trade association. warrants in connection with indictable offences, including terrorist I believe there is only one at the moment, but we have offences”. to take account of the fact that there will be more than So it was really about only commercial or other searches. one. The appeals body to which I have referred should I had some sympathy for the trading standards officers be able to decide on a reasonable level of charging by who took me back to the original Truck Acts, which reference to the charges imposed by local authorities go back over a long, long period. They had a point or several adjacent car parks. It should be possible, when they said that when people were mistrading or even though charges will vary in many places. behaving badly they had to have the right to go in The appeals body should also take account of the pretty quickly before the goods had gone. fact that the car park is properly lit and that, if people I now ask the Government whether they would be are to be penalised for parking over the dividing lines, kind enough to help me. They have listed the powers those lines are clearly marked on the ground—not a of entry in the Bill, but they have said they will small swab of paint in the corner, but properly marked. produce a code of conduct. We do not really need a All that can be covered in regulations. The most code of conduct, we need the permission in effect to important thing is that we are clear that only properly require that powers are granted for the issue of rights accredited people can access the DVLA database. That of entry, that you should list them all, and, more than is the key. I am certain that, now, a lot of absolutely that, that you have the schedule that is necessary here. awful people are getting access to it. The powers of entry all change regularly, and this is I shall delay your Lordships for one or two more where we come to that strange thing, Henry VIII moments. I was a member of a police authority for clauses, which I am not terrible well briefed on. The a long time, and when I was, we had many cases of Public Bill Office asked me, perfectly simply, “What people accessing databases on an irregular basis. We do you want to do?”. I said that I wanted to stop the have to be certain that only bona fide parking operators Government doing the wrong things in the wrong way have that access. at the wrong time. This came to the fact that maybe the Government should not be allowed to introduce 7.40 pm any new powers of entry without primary legislation Lord Armstrong of Ilminster: My Lords, this is a but should be allowed to remove any unnecessary veritable bran-tub of a Bill, as is apparent from the powers of entry on their own. Long Title. It might be more charitably described as a I sit down with a simple point; when we come to Christmas pie full of plums. I propose, like little Jack Committee, I will try to introduce that part of the Bill Horner, to put in my thumb and pull out a plum—like that we did together to save the Government time and my noble friend Lady O’Neill, only one plum for money. If they are going to follow the proposal that consideration at this stage. That plum is Part 4, which they are laying down here, it will be two to three years deals with counterterrorism powers. before they manage to get everything sorted out. In There is clearly around the House a general welcome the mean time, my great friend and colleague Professor for Clause 57, which states unambiguously that the Richard Stone has got the Oxford University Press maximum period of detention without charge for a to agree to issue a new edition of The Law of Entry, terrorist suspect shall be 14 days. That is already a Search and Seizure, which will come out quickly. It long period to hold anyone in detention without charging would be a pity if that came out before the Government him or her—much longer than would be unacceptable had got their act together. I am going to put pressure for any other criminal offence. on my noble friend on the Front Bench when the Bill comes to Committee and ask for his support. In the However, there remains the persistent fear that mean time, I am very grateful to the party opposite for there may well be circumstances in which there are everything they did to help. compelling reasons for detaining someone suspected of having committed a terrorist offence without charge for longer than 14 days. The need to do so has not 7.38 pm arisen during the past four or five years, but in this Lord Bradshaw: My Lords, I am going to deal with highly unpredictable area, we cannot exclude the possibility something very down to earth when contrasted with of an emergency in which it might be necessary to be the noble Lord, Lord Selsdon. It concerns Chapter 2 able to do so—in which, indeed, the consequences of 199 Protection of Freedoms Bill[LORDS] Protection of Freedoms Bill 200

[LORD ARMSTRONG OF ILMINSTER] truly exceptional circumstances; how the exercise of not being able to do so might be not just unacceptably the power should be made subject to mandatory review serious, but literally fatal: some people might die who by the independent reviewer of terrorism legislation; would otherwise not have died. how it should be subject to rigorous safeguards and to The Government have taken the view that an extension judicial review; and how it could be made subject, of detention without charge is so serious a restraint of eventually, to parliamentary scrutiny. freedom and so grave a breach of the rights of any The Government have, I am glad to say, accepted citizen that it should be effected only by the introduction many of the Joint Committee’s other recommendations, of emergency primary legislation when the need actually and will introduce amendments to that effect, but they presents itself. They therefore prepared draft legislation, have accepted the committee’s main recommendation which could be introduced, if and when the need only in part. Clause 58 would provide the Secretary of arose, to extend the period of detention of a terrorist State with power to make a temporary extension order suspect without charge for not more than 14 days, up when Parliament is dissolved or when Parliament has to a maximum of 28 days. met after a dissolution but the first Queen’s Speech A Joint Committee of Members of your Lordships’ has not taken place, but not at any other time. House and of the other place, of which I had the I appreciate and respect the Government’s wish to privilege of being the chairman, and the pleasure of ensure that extensions of detention without charge having the noble Lords, Lord Freeman and Lord beyond 14 days are as rare as possible. The committee Goodhart, as fellow members, was set up to give the asked the Secretary of State, when she came to give draft legislation the sort of pre-legislative scrutiny for evidence to us, about the difficulties of presenting which there would not be time if the legislation had to emergency legislation, to which I have already referred. be introduced and passed as quickly as possible in an We admired the confidence with which she assured us emergency. that she thought that she would be able to find a way My Lords, we understood and respected the to steer through or around those difficulties in presenting Government’s desire to make sure that a power to emergency legislation if necessary. extend detention without charge should be exercised I remain of the view, however, that when the time as rarely as possible, and that, ideally, it should be came, she or a successor Secretary of State might find introduced only subject to the degree of parliamentary those difficulties to be insurmountable. She might, scrutiny and discussion which is appropriate to primary despite any advice to the contrary from the police or legislation. However, we identified certain problems the Director of Public Prosecutions, decide that it was about what was proposed. ineluctably necessary to take the risk of not introducing emergency legislation. No Secretary of State should First, it might be difficult to pass such legislation be forced into a position where such a decision is with the necessary urgency when Parliament was in forced on her. recess, and it would be impossible to introduce it at all during the period between the dissolution of one If the Bill receives a Second Reading today, I hope Parliament and the first Queen’s Speech in the next. at a later stage to put forward for your Lordships’ Secondly, it might be very difficult for the Secretary of consideration an amendment to Clause 58 which would State to explain and justify to Parliament and for allow the Secretary of State to introduce emergency Members of both Houses of Parliament to be properly legislation for an extension of detention without charge satisfied about the reasons why the legislation was when Parliament is sitting if she thinks that she can required without incurring the risk of endangering the safely and properly do so, but would give her the success of an ongoing counterterrorist operation or of option of making an executive order under Clause 58 prejudicing the possibility of a fair trial for someone if she thinks, even when Parliament is sitting, that the charged with a terrorist offence. introduction of primary legislation would in the then prevailing circumstances be too difficult. We feared that those difficulties might be so great that a Secretary of State might be obliged to conclude I hope for her sake and for all our sakes that she is that it was preferable to run the risk of not extending never called upon to make that choice, but better safe the period of detention without charge rather than to than sorry. introduce legislation to provide the necessary powers, whatever the potential consequences of that choice might be. We therefore concluded that the Government’s 7.49 pm draft Bills did not offer a satisfactory solution to the Baroness Doocey: My Lords, I focus my remarks on problem, and recommended that this Bill should create aspects of the Bill relating to policing matters. I declare a power for the Secretary of State to make an executive an interest as a member of the Metropolitan Police order at any time—not just during a period when one Authority. Parliament had been dissolved and the new Parliament I begin by expressing concern about the proposals had not yet started work—if there was real need to in the Bill regarding the regulation of biometric data, do so. particularly the DNA database. DNA profiling is critical We recommended that the purpose of such an to the successful investigation of crime, particularly in executive order should be to extend the maximum cases of serious violence and sexually motivated crime period for pre-charge detention to 28 days in exceptional where the perpetrator is a stranger to the victim. At circumstances, and that it should expire in three months. the same time, the blanket and indiscriminate retention We made recommendations to suggest in detail: how of DNA profiles is wrong, as the recent judgment in to ensure that such an order would be made only in the European Court of Human Rights made clear. 201 Protection of Freedoms Bill[8 NOVEMBER 2011] Protection of Freedoms Bill 202

There are some very welcome provisions in this Bill: code should specifically address the covert use of both the intention to put the National DNA Database and automatic number plate recognition and CCTV. The the National DNA Database strategy board on a Minister in his opening remarks referred to Project statutory footing; the destruction of DNA samples Champion, which is a very good example of how ill within six months; the assurance that the DNA profiles thought through proposals and a lack of engagement of those found not guilty of an offence will in future and consultation can undermine confidence in policing. not be loaded on to the database; and the deletion of We also need clarity as to whether the responsibilities existing DNA profiles of those who have been found of the proposed Surveillance Camera Commissioner not guilty of an offence. could be undertaken by the existing Chief Surveillance However, there remain some concerns and areas Commissioner. When we move to Committee stage, that I believe could be improved. I have a particular I shall be seeking to return to some of these issues. concern regarding the complexity of the new retention regime for biometric data. We need a regulatory system 7.54 pm that is robust and which enjoys public confidence, but Lord Lucas: My Lords, I like this Bill. There is a lot we do not need one that is excessively burdensome. of it that I shall take a deep interest in as it goes Deciding how long to retain DNA profiles is a complex through. I am sure my noble friend is well aware of my business. The retention periods stated in the Bill are interest in the Regulation of Investigatory Powers Act, not fixed, but are subject to complex decision-making—for freedom of information and vehicles left on land but example, the provision for the biometrics commissioner all those have been very well covered by others. I to extend the retention period by two years in certain should make a quick declaration: a proportion of my circumstances. While not every profile will need to be DNA is on the national database—probably enough assessed, it is unlikely that it will be possible to automate to identify me—and there is a clause in the freedom of the process of deletion as a result of this provision. information sections which will resolve various disputes The administrative burden on the Metropolitan Police I have with various universities in my favour. So I shall service—and indeed other police services—is likely to be careful when we come to that. be significant. The Metropolitan Police estimates the I want to concentrate on the section on biometrics initial cost of implementing the Bill at £2.5 million in schools. This section is a daffy overreaction. Biometric plus ongoing costs of £500,000. systems are very widely used in schools. They have There is also an operational risk inherent in the great benefits and I am not aware of any instance of complexity of the retention regime. No system is serious problems with them. They improve safety. perfect and, if the deletion process is out of sync and They mean that you know where the kids are, and in is not carried out at the appropriate time, there is a some schools that is very important. They improve real risk of “illegal”matches that could connect someone privacy, because you can no longer tell who is claiming with a serious crime such as rape but then could not be free school meals, and that generally results in a large used. The police must not be put in the invidious uptake of free school meals. They greatly improve position of identifying a rapist or murderer but being efficiency, because you no longer have to divert teachers unable to use the DNA match in evidence. to supervisory jobs which are done quickly and efficiently. A further concern in this section is about the regulation Kids are used to it, because a lot of the systems that of the counterterrorism DNA database. Given the they are familiar with incorporate biometric systems. proposals within the Bill to strengthen the oversight The Explanatory Memorandum talks about risks and governance of the National DNA Database, for as if they have been established, but I have not seen the sake of consistency, similar moves should be made anybody create a scenario where there is a believable, in respect of all police databases relating to DNA and practical risk to the kids in any way at all. We are other biometric materials, including the counterterrorism dealing here not with something that is available nationally DNA database. but with a closed system, a community that is using We should also consider Schedule 7 to the Terrorism this data within itself—which we do here. All of us are Act 2000 and how this Bill relates to it. At present, the subject to a highly sophisticated biometric scanning police may obtain DNA profile data and fingerprints device every day: they are called doorkeepers. They do from people stopped under Schedule 7. However, there not scare us, and they are not a danger to us. The fact is a need for clarity regarding the treatment of these that they recognise us without difficulty is not something data. The proportion of people stopped under Schedule 7 that gives rise to problems. who have their DNA and fingerprints taken is low, but Within a closed community, the fears that people Schedule 7 gives the police very considerable power. have on the wider scale do not apply. It is as if we put An examining officer may exercise his powers, exclusion zones around hospitals that were using nuclear medicine, in case something exploded. It is just not “whether or not he has grounds for suspecting”. real. It is an association of words which has been got There is consequently a need for clarity and up by the Daily Mail, of course—that lover of freedom, transparency regarding where this biometric data that respecter of privacy, that hater of intrusion—because information is then stored, and if it is subject to the it made a good story and it scared people. I am very same safeguards governing DNA taken from an individual sorry that both our beloved parties took it seriously on arrest. and have stuck something in the coalition agreement I will refer briefly to the question of closed circuit which I suspect to some extent means that we have to television and automatic number plate recognition, keep it in the Bill. But I very much hope that we will be included in Part 2 of the Bill. The regulatory framework able to get some amendments through which will proposed in the Bill is a positive step. However, the avoid or at least reduce the waste of resources which 203 Protection of Freedoms Bill[LORDS] Protection of Freedoms Bill 204

[LORD LUCAS] In any event, supervision misses the point. The will result from the Bill as it is at the moment, and the supervised activities of a volunteer are one thing but it increase in the incidents of bullying which will result is precisely during those activities that the trust of the if we cannot use this system consistently, particularly child with that individual is created. It is that trust that where free school meals are concerned. It gives me makes possible unsupervised contact and the risks some pleasure that the Daily Mail, that scourge of that that brings with that trust being exploited and government waste, is setting out to increase it, but I betrayed. Of course, the risk of such exploitation hope to save them from their own excesses. and betrayal taking place during supervised activities can be reduced by good supervision. But what of the 7.58 pm contact outside the supervised activity? The child now trusts that adult because they have encountered them Lord Harris of Haringey: My Lords, I declare an in the supervised activity. But that trust is where the interest as a member of the Metropolitan Police Authority. potential for abuse is created outside that secure I fear I may be spoiling the consensus that seems to environment. have emerged as to what a wonderful Bill this is. This is That is an example of where the balance is being a very grandiosely entitled Bill: “Protection of Freedoms”, struck wrongly. It is based on the false belief that the no less. I am sure that when the title was chosen the bureaucracy involved is stifling volunteering. Fair Play Deputy Prime Minister had visions that, like the authors for Children surveyed its member groups and found of the Magna Carta, seven centuries on, his creature that more than half believe that the existing vetting would still be seen as a cornerstone of British liberties. arrangements have improved their overall practice. In Frankly, he can dream on. This Bill is a mish-mash only one instance in 200 did a group report that the of ill-sorted provisions, a mish-mash without any arrangements had made it more difficult to recruit overarching or underpinning philosophy and, worst of volunteers. Most parents will say that when they hand all, a mish-mash that will bring about unintended and over their children they want the reassurance that the damaging consequences. Balancing the civil liberties adults who their children will encounter have been of the individual against the security of the state and properly vetted. Do the Government really want to the protection of the lives and well-being of other put the rights of the potential paedophile above those individuals is never an easy task and I wish that I of the child? That is just one part of an ill-thought-out could be confident that that balance has been appropriately Bill. struck in this Bill. Let us take, for example, Part 5, Part 4 reduces the maximum period of pre-charge which makes major changes to the Safeguarding detention for terrorist suspects from 28 to 14 days. The Vulnerable Groups Act. The noble Baroness, Lady periods of detention longer than 14 days have been Walmsley, who is not in her place, will remember the used extremely sparingly and are subject to judicial time spent in this House trying to ensure that children approval, which has not always been given. The and vulnerable adults were properly protected against Government, moreover, acknowledge that sometimes those who might harm them. a longer period—up to 28 days—may be necessary, When we hear from organisations, such as Fair Play presumably because of the nature and complexity of for Children, that this Bill introduces, some counterterrorism investigations. “elements of serious risk to children”, If circumstances require it, it is proposed that the we need to consider the points with very great care. Home Secretary comes to Parliament to introduce The Government say that the arrangements under the emergency legislation to reinstate the longer detention 2006 Act were too complicated and onerous for those power. That has to be nonsense. It means that during—I who had to implement them. Yet the people who will repeat, during—a terrorism investigation, the police have to implement this Bill say that its provisions do and security services may have to ask Parliament to be not reduce or simplify the current system and that it recalled to debate an issue that it cannot discuss runs the risk of sowing considerable confusion and without prejudicing a future trial. The remarks made unnecessary complexity. by the noble Lord, Lord Armstrong, are extremely There is no evidential basis for these changes. There pertinent on this point. Ministers recognise that 28 days is to be no pilot and what is being done throws away may be necessary to investigate or avert a serious the broad cross-party consensus on which the previous terrorist threat, but none the less intend to remove the legislation was based. A major concern lies in the power, even though there is no evidence that the power proposed definition of what constitutes supervision in has ever been misused. respect of affected activities. This remains worryingly Part 2 adds to police bureaucracy, which is another vague. One suggestion is that the definition of supervision example of extra expenditure being incurred as a should be “line of sight”. This is so vague as to be result of pressure from the Daily Mail. It will make it frankly laughable and out of touch with daily realities. more difficult for the police and local authorities to If the activity stays in one or perhaps two rooms and use CCTV to prevent and detect crime. This no doubt there are two staff or supervisors to monitor all volunteers, reflects concerns about a surveillance society, although perhaps that would be possible. But in a multi-feature when I was a local government leader my experience environment where there is outdoor activity, and in was that communities always—I repeat, always— many other situations, it will be next to impossible for welcomed the introduction of new CCTV schemes. If many organisations to provide that level of supervision. that concern about a surveillance society was so important, It will result in increased costs and/or a restricted why are there no restrictions on the use of private number of activities, and, no doubt, fewer volunteers CCTV cameras? I do not want to labour the point, but involved and fewer children benefiting. this oh-so-cleverly-worked-out Bill makes it more difficult 205 Protection of Freedoms Bill[8 NOVEMBER 2011] Protection of Freedoms Bill 206 and more expensive for our already overstretched police The Government do not need to be very worried service to prevent crime but does nothing to restrict about it because there have been hints in another the proliferation of privatised surveillance. place; my honourable friend Lynne Featherstone said Finally, Part 1 restricts the retention of DNA samples that they are looking at it. Perhaps in response, my and profiles taken during a criminal investigation. noble friend would explain that thinking to the House. This will make it harder, not easier, for the police to This is a practical point relating to large amateur catch and convict dangerous criminals. The Home groups which deliver much that is good in our society. Office’s own research produced last year contradicts How will we deal with it? How can we ensure that what this Bill will do. It showed that, each year, protections are in place? 23,000 people who will be taken off the database The second point in the same vein is provided in under these proposals will go on to commit further Clause 64, but I think that sporting bodies should offences. Of these, 6,000 will commit serious crimes, consider Clauses 65 and 66 as well. They relate to including rape and murder. children and vulnerable adults. In regard to those last Whose civil liberties are we protecting here? It will two clauses, we must remember that vulnerable adults certainly not be those of anyone like Sally Anne Bowman get involved in sports, and the inclusion of people with who was 18 when she was murdered close to her home learning disabilities in the Olympic movement provides in south London in 2005. The police investigation a clear guide to that. The noble Lord, Lord Harris, initially drew a blank. But a year later, Mark Dixie, a suggested that people in secondary coaching roles pub chef, was arrested following a brawl in the pub might not be checked. where he worked. No further action was taken for that I turn to my own sport, rugby. It is a technical sport pub brawl but his DNA was taken and subsequently that requires special movements. People will be placed loaded on the database. It produced a match to the in positions of control, trust and authority. If you are DNA evidence retrieved from the murder victim and a forwards coach, and your head coach is someone within five hours he was under arrest. He was subsequently who is predominantly a back, you will require people charged, convicted and sentenced to life imprisonment. to engage in very technical activities, involving moving So what are we doing removing the ability to protect your body and other people’s bodies around a rugby people like Sally Anne Bowman? There are plenty of pitch, accompanied by bumps, thumps and groans. other such examples. Such coaches will be in a position of authority and This Bill repeatedly gets the balance wrong. Of power and sometimes the junior person is not checked course, we should protect freedom. But why is it that but will be in charge of a session and will control most the only freedoms that this Bill seems to care about are of it. Other sports, such a cricket, will have similar the freedoms of the would-be terrorist, the manipulative arrangements. However, I will not talk further about paedophile and the serial rapist? cricket as my noble friend Lady Heyhoe Flint is in her place. All sports have different technicalities. I suggest 8.07 pm that such people in incredibly important and controlling Lord Addington: My Lords, following the noble positions should be removed. Maybe we should look Lord, Lord Harris, is reassuring because I feel that we at that again. have had agreement breaking out all over the place. I do not think these matters should wreck the Bill, The noble Lord says that the word “protection” is bad but sporting bodies would appreciate some changes to in the Title of a Bill. In my opinion, the word “prevention” make them work better and to make them cheaper and is equally bad. Both words have been open to abuse less bureaucratic. I look forward to hearing from my and hyperbole over the years. noble friend how such matters can be put into the Bill. However, I wish to talk about Part 5 on which we I do not think they are deal breakers, but they would have limited agreement. As we have already heard, this help people who take on the kind of work which sums being a late-night debate, two people who were mentioned up the idea of a big society perfectly. are not in their places. We have heard that sporting bodies are a little concerned about the changes in 8.13 pm CRB checks and assessments. To sum up, primarily, Clause 79 suggests that the centralised checking that Baroness Berridge: My Lords, I believe that there is has taken place, which sporting bodies quite like and an irony in the Title of the Bill. The Government are have got used to, will not be done electronically any introducing a piece of legislation to protect freedoms more. The RFU is very concerned about that. which, to a significant extent, have been infringed by As regards freedom of protection, people are using their actions. Like many unscientific people, I marvel arguments against these incredibly important principles, at the advances in DNA and its role in crime detection, such as, “This way we can do it and we will have but I am pleased that many of the controversies something which is easy to use”. In addition, if you surrounding the DNA database are dealt with by this are dealing with a small amateur club environment, legislation. I wish to speak briefly to the principles of personal relationships are incredibly important. Indeed, Part 1 of the Bill, the nature of DNA material and the small amateur clubs die frequently because they break impact on communities. down. If testing comes to you, it will be easier to Deeply embedded, not only in our constitution but implement. If you have to provide the testing yourself, in the conscience of citizens, is the principle that you for how long can you stall it? I do not know. How long are innocent until you are proven guilty. The corollary have we stalled handing over anything? Things get lost of this presumption is that citizens can go about their in the post and do not arrive and that will make things daily lives free from the unwarranted intrusion of the difficult for those who have to take an opinion. state or, as the European Convention on Human 207 Protection of Freedoms Bill[LORDS] Protection of Freedoms Bill 208

[BARONESS BERRIDGE] to have a strict timetable under Clause 25 for the Rights and Fundamental Freedoms expresses it positively destruction of existing biometric material, although under Article 8, the right to respect for their “private I understand that there are resource implications. and family life”. Finally, I move to the effect on particular communities. At a time when the European Court of Human In 2007, the Home Affairs Select Committee concluded Rights has come in for quite a drumming, it is sobering in its report, Young Black People and the Criminal to reflect that England and Wales needed to be told by Justice System, that: the court that the blanket and indiscriminate retention “A larger proportion of innocent young black people will be of genetic material indefinitely of innocent people is a held on the database than for other ethnicities given the small breach of Article 8. I am embarrassed that an 11 year- number of arrests which lead to convictions and the high arrest old British child was one of the applicants in the case rate of young black people relative to young people of other of S and Marper v United Kingdom. How did the ethnicities”. country of ancient liberties and the Magna Carta I understand that you are three times more likely to be come to this? arrested if you are a young black man than your white counterparts. The noble and learned Baroness, Lady I welcome Part 1 of the Bill, which at long last puts Scotland, in giving evidence to the Home Affairs the national DNA database on a statutory footing. Select Committee, predicted that soon three-quarters Further, the introduction of a nationwide framework of young black men would be on the DNA database. for the destruction or retention of genetic material According to the Human Genetics Commission, this should mean a consistent approach to this issue in prediction came true in November 2009. By the end of future. The Bill brings to an end the inevitable police last year, just over 500,000 black people in England authority postcode lottery, when the matter was left to and Wales were on the DNA database. Not only is this the discretion of individual chief officers. Of course, a travesty, but it is hard not to believe the anecdotal once an offender is convicted, the issue is very different evidence, supported sometimes by former senior police but, from my reading of the Bill, is it really proportionate officers, that the power of arrest has on occasion been that an 18 year-old who is convicted of drunkenness used merely to obtain DNA. Against this background, or driving without due care and attention should have I ask the Minister to consider whether the commissioner their DNA profile retained indefinitely by the state? should have a defined role in monitoring the ethnic How is such a situation in line with the spirit of the profiles of people on the database. Rehabilitation of Offenders Act? Is there not a point at which, if someone is in no further trouble, the How did the country of ancient liberties and the profile is removed? Magna Carta come to this? It is not a rhetorical question. Infringements on citizens’ liberties often must Secondly, I turn to the nature of the material. “If occur when public safety is at risk. But people, and you are innocent, why worry about being on a database?”, governments, often overreact to a threat to their safety. has been the response of some of the tabloid press and That is why your Lordships’ House had to prevent the even the Home Office under the previous Government. introduction of excessive detention periods. Even if Apart from the fact that we live in a free country, DNA techniques were like “CSI: Miami”, the state DNA samples degrade over time. Samples do not keeping the DNA of 1 million innocent people would merely identify you, like fingerprints or the DNA still be an overreaction. I welcome this Bill. profile; DNA samples are you. Therefore it is valuable material, especially in unscrupulous hands. I welcome 8.20 pm the introduction of a strict regime to deal with the destruction of DNA samples because, although I am Baroness O’Loan: My Lords, there is much to be not a pessimist, not long ago, the names, addresses, welcomed in the Protection of Freedoms Bill. Issues and bank details of 7.25 million families in receipt of such as the modification of the rules relating to powers child benefit were downloaded on to discs, put on a of entry and the new rules on biometric material, courier bike and never seen again. I did feel for the including the requirements for the destruction of certain then Chancellor, just like I felt for Bob Quick who DNA samples, are important. As one who has had walked into Downing Street with highly classified responsibility in the past for the destruction of DNA information on public display. It is easily done. samples, I would ask the Government whether there is I hope these serious but rare examples explain why an intention to provide also for the destruction of the I have been ill at ease with the thought of DNA records which relate to those samples, because we samples stored somewhere instead of being destroyed. discovered that this was an adjacent need. Also I was troubled to read in the report of the Joint I welcome the disregarding of convictions under Committee on Human Rights, of which I am now Part 5, Chapter 4. I share the concerns articulated by privileged to be a member, of the practical difficulties—or the noble Baronesses, Lady Hamwee and Lady O’Neill, perhaps insuperable obstacles—in the destruction of and the noble Lord, Lord Bew, in relation to Clause 100 innocent people’s DNA profiles. Apparently innocent and the freedom of information provisions for data and guilty people’s DNA samples are held in groupings sets. that are now difficult to separate. To avoid the misuse I would like to endorse the many comments that of these innocent profiles in the future, I hope that the have been made in relation to the protection of children Minister will be able to assure your Lordships’ House under Part 5. There are concerns about the extent to that the Bill will result in the destruction of DNA which existing protections for children may be reduced profiles, and not merely the deletion of the connection by the exclusion of volunteers working, for example, between the DNA profile and the identity of the in classrooms, sporting organisations and other supervised person whose profile it is. Further, I urge the Minister groups where the contact may be frequent and ongoing. 209 Protection of Freedoms Bill[8 NOVEMBER 2011] Protection of Freedoms Bill 210

Those are very important contacts because they help “no longer sufficient to secure the confidence of right thinking children, but they can also be used by abusers to build people that such interference with citizens’ rights (with its foreseeable a relationship which may result in harm to children. collateral intrusion on many) is appropriate”. The question that I have been asked is whether the There is a risk that when Parliament creates regulatory proposed arrangements will, for example, permit an structures, it assumes that the job is being done. That adult who has been barred from taking up a regulated is perfectly legitimate. However, changing circumstances post to volunteer for an unregulated activity? Are the may create an environment in which regulation becomes Government satisfied that the proposed arrangements, ineffective. which would place an individual on a barred list only I will leave aside the operation of the Interception if they have been, will be or are likely to be engaged in of Communications Commissioner and the Intelligence regulated activity, are adequate? Will the result of this Services Commissioner. However, I will refer to the be that concerns about those not in regulated activity regulation of police activities that are overseen by the cannot be shared with the ISA? Office of the Surveillance Commissioner. The office comprises 26 people, including administration and The second area to which I wish to draw your support staff. They regulate, on an annual basis, the Lordships’ attention relates to Part 2. The Regulation activities of some 60 organisations, including all of Investigatory Powers Act deals with a range of police forces. On a biannual basis they examine some investigatory techniques, including interception of 25 organisations, and on a triannual basis they examine communications, access to communications data, and a further dozen authorities and more than 430 local directed surveillance and intrusive surveillance, such authorities in England, Scotland and Wales. They are as placing bugs in homes and cars. These techniques responsible for at least 500 organisations, some of are widely used by a range of bodies. which employ tens of thousands of people and have I welcome the introduction of Clauses 29 and 34, used RIPA powers on millions of occasions over the providing for a code of practice for the development past 10 years. and use of surveillance camera systems and the creation The effective use of specified investigatory powers of the Office of Surveillance Camera Commissioner. is critical to the fight against serious and organised The commissioner will have the responsibility to encourage crime. These powers have enabled some of the great compliance with the new camera code, review the triumphs of policing. Surveillance is a profoundly operation of the code and provide advice about it. important tool. Properly used, it can result in the However, that is a very limited remit. There appears to prevention and destruction of criminal activity, and be no provision for complaints about inappropriate the successful investigation leading to prosecution of use of surveillance cameras. There is currently an crimes such as drug and people trafficking, money investigatory powers tribunal that deals with complaints laundering and murder. The specific nature of the under the Regulation of Investigatory Powers Act. It techniques and processes are rightly protected. However, has received 1,120 complaints in 10 years and has because of the nature of the powers and the work in upheld only 10. Five of the 10 were upheld in 2010 in which officers engage when using them, there is respect of members of one family who complained international recognition of the risk of the corruption about unlawful surveillance by a local authority. of those officers. In only six other cases in 10 years has surveillance The regulatory process, among others, must be been found by the tribunal to be unnecessary or capable of acting as a check to the potential for such disproportionate. This is in the context of some 2.7 million corruption, with all its attendant risks, by auditing the surveillance decisions. use of regulated techniques. I have seen situations in Clause 37 is an attempt to regulate the use by local which RIPA was not complied with, despite the existence authorities of surveillance powers by requiring the of extensive police command structures and the Office authority to seek judicial consent for such activity. of the Surveillance Commissioner and its inspectors, The Minister articulated the disproportionate use of resulting in the ongoing commission of serious crime such powers in his opening address. It is right that by those being paid as informants by the state. In his there should be a requirement for judicial authorisation. annual report for 2010-11, the Chief Surveillance It has been suggested that the police and other public Commissioner indicated clearly that he had concerns authorities should be subject to a similar control about how the system was operating. He stated: mechanism following the revelations of very long-term “I have commented in previous reports that there appears to surveillance by the police in the context of public be an over-reliance on the capacity of the OSC to examine protests and campaigns. authorisations. I remain concerned that my limited capacity is misappreciated ... My inspection capability is limited. The sample Clause 37 gives the Secretary of State power by of documents which can be examined is small and the inspection order to require judicial authorisation for surveillance can only be regarded as a ‘snapshot in time’; it is not an indicator by other public authorities. The Regulation of of trends … In order to achieve a reduced budget for the financial year 2011-12 I have reluctantly reduced by capacity by one Investigatory Powers Act already requires a complex Inspector”. process for authorisation and discontinuance of the He had seven inspectors to do all these inspections. use of directed surveillance. There is a very significant Now he has one fewer. He has also reduced the secretary problem that lies not in the authorisation process, post and downgraded a further post. He states: which requires significant thought, process and decision- “My capacity has always been limited and I wrote to the making both to initiate and terminate surveillance Home Secretary to explain the impact of reducing my budget ... I activity, but in the mechanism created under RIPA for recognise the severity of the country’s financial situation but a the regulation of surveillance activities. That process reduction of nine percent has serious operational repercussions in was described by the president of ACPO as, a tiny organisation”. 211 Protection of Freedoms Bill[LORDS] Protection of Freedoms Bill 212

[BARONESS O’LOAN] community. More than 85,000 people have been checked This organisation has responsibility for protecting the by the ECB since 2003, when checks were first introduced. freedoms of people in this country. The Bill presents As the noble Baroness, Lady Dean, has noted, the an opportunity to address these issues. Football Association does 35,000 checks a year. I suppose my question is, “Must we wait until there Those who manage these vetting arrangements at is another scandal, as there inevitably will be?” I would the ECB and at other sporting bodies tell me that the like to endorse the suggestion of the noble Baroness, changes proposed in the Bill increase the risk of dangerous Lady Doocey, that it would be possible to place the individuals coming into contact with children. The office of Surveillance Camera Commissioner and the proposed changes would therefore mean that registered Commissioner for the Retention and Use of Biometric bodies would be denied access to relevant information Material in the Office of Surveillance Commissioners, about all individuals who could pose a risk to children. thereby avoiding the creation of two new quangos in a Bodies such as the ECB currently manage disclosure term in which we are dealing with the Public Bodies content centrally with experienced and trained staff, Bill and also ensuring the economies of shared services. ensuring consistency of decisions across the game. Could the Government also make a decision to review Obviously, the average club-level volunteer does not the office of the OSC and of the Investigatory Powers have such expertise. If, in future, an individual has to Tribunal and in the interim to enhance the budget, so show their disclosure to their local sports club rather that these regulatory processes will more effectively than to the governing body, there will be two problems. enable the ongoing protection of the country? First, someone may have to show that they have a criminal record to their immediate peer group, 8.30 pm undermining their privacy and possibly increasing the Baroness Heyhoe Flint: My Lords, at the risk of chances of collusion or of falsifying forms. Secondly, sounding like Little Miss Echo to my noble friend training will need to be provided to local club volunteers Lord Addington, my interest in the Bill centres on the on how to handle disclosure content, which will increase impact it will have on the sports sector, particularly burdens on volunteers at a local level and will mean the work undertaken by national governing bodies of extra costs to NGBs centrally to develop and run this sport, NGBs, to ensure that all participants in sport training, thus creating a costly and time-consuming are given a safe environment in which to play and level of bureaucracy. All this would be unnecessary if administer, especially where a vast number of amateurs the governing bodies received copies of the disclosure and volunteers are concerned. directly, which is what happens now. First, I declare my interests as a board member of The informal nature of volunteering in sport presents the England and Wales Cricket Board, an honorary opportunities for individuals to withhold information. life president of the Lady Taverners, who assist youngsters As a consequence, it is those types of individuals who with special needs to give them a sporting chance, a pose the greatest risk to children and are likely to be vice president of Wolverhampton Wanderers Football manipulative in their behaviour, yet could still integrate Club—13th in the Premiership—and trustee of Wolves into the club. It is surely not right that those who Community Charitable Trust. volunteer in sport, doing so no doubt because they NGBs such as the England and Wales Cricket love that sport, suddenly have a working responsibility Board and the Football Association have the duty to to become experts on criminal record checking procedures. promote and regulate sporting activity in a structured Clause 64 amends the Safeguarding Vulnerable Groups environment. One of the duties they take extremely Act 2006 by narrowing the definition of regulated seriously is the welfare of those who participate in activity, as my noble friend Lady Walmsley mentioned. sport. We need to send out a message to parents that Crucially, this would exclude any role fulfilled while their children will be well looked after when they are subject to the, involved at sports clubs or in other forms of leisure and sporting activity.I therefore support the Government’s “day to day supervision of another person who is engaging in regulated activity relating to children”. work to safeguard vulnerable groups and the reforms set out in the Bill, such as the introduction of portable The proposed changes mean that an individual who criminal record checks, which will make life easier for has been barred would not be prevented from working governing bodies which undertake a huge number of with children in a supervised role—for example, as an checks each year on their employees and volunteers. assistant coach at a cricket club, provided that another I have two concerns, which I know are shared by supervising adult such as a head coach was present, many on all sides of this House, not least the right because that assistant coach will no longer be liable to reverend Prelate the Bishop of Bristol. Concern number a full criminal record check. one is that Clause 79, on the disclosure of information, With respect, the new arrangement fails to understand has the specific intent to remove the requirement that the way in which sports clubs are run. The House a person must send a copy of their CRB to a national needs to note that, for example, many sports coaches, governing body. Concern number two is that Clause club minibus drivers and match organisers in a sports 64, on the definition of regulated activity, aims to club could be considered as assistants if the club has a reduce the number of individuals who are regulated by head coach, but unless the head coach were working excluding those who are subject to day-to-day supervision. alongside every volunteer assistant at every session it The ECB, for example, currently processes vetting would be wrong to classify these people as assistants. checks on all in cricket who work with children, whether I ask the Minister to consider how a sports club is to these are individual coaches coming from overseas for interpret the concept of supervision when on summer the summer or long-term volunteers in their sporting or winter evenings successful cricket clubs and junior 213 Protection of Freedoms Bill[8 NOVEMBER 2011] Protection of Freedoms Bill 214 football clubs may have hundreds of children being clampers to immobilise, move or restrict the movement coached across a spread of sports fields and pitches. of a vehicle without lawful authority, are also welcome Does the head coach actually spread himself or herself and merit considerable support around the House. to supervise every one of these sessions and all the They are welcomed by the motorists who have had to volunteer assistants involved? That is an unfair burden suffer at the hands of these rogues for far too long. to place on the sports club and one that may deter I am disappointed that the Government have chosen volunteering as well as reduce protection. not to deal with the issue of ticketing in this respect, as I hope that these concerns are well understood. My my noble friend Lady Royall outlined earlier. I hope request at this stage of the Bill is that perhaps the that noble Lords can persuade the Government that Minister may agree to meet a delegation on this issue, this is an issue that they need to address during the including national governing bodies of sport, the Sport passage of this Bill through the House. and Recreation Alliance and even Girl Guiding UK, I also welcome the proposals in the Bill to provide a which has also contacted me. I humbly suggest that scheme to deal with convictions for consensual sex just small amendments to the otherwise excellent Bill between men above the age of consent. These proposals would uphold the protections that this House, the have been too long in coming. The Government are Government and all sports bodies and organisations right and they should be congratulated for putting want to see applied in order to safeguard potentially these proposals forward. vulnerable groups of sport-loving youngsters. As my noble friend Lady Royall said, the August riots gave us a timely reminder of the benefits of 8.38 pm CCTV. It is an important tool in the fight against Lord Kennedy of Southwark: My Lords, it is fair to crime and it is disappointing that proposals from the say that the Protection of Freedoms Bill contains Government may make this more difficult. I hope that interesting as well as worrying proposals. Many of the any code is as light a touch as possible, but it seems proposals are welcome and noble Lords on these odd to me that these provisions will not apply to all. I Benches give them their full support. There are, however, hope that the Government will keep that under review. other aspects of the Bill that are worrying and we on Like many noble Lords, I welcome the proposals these Benches will have to oppose them. regarding freedom of information. I am a big supporter of freedom of information legislation, and proposals The title of the Bill is a bit over the top if you look to increase its scope and deepen it further will always at the subjects contained in it. They are a collection of have my support. issues that do not necessarily fit very well together. Maybe that is why the Bill has a rather grandiose title My final comments are around the issues of the but not so grandiose items. In some cases, the Bill detention of terrorist suspects and the proposals for contains some very risky proposals. detention periods of 14 days and 28 days. If we can all accept that 14 days should be the norm, where we may I have the greatest concern about the proposals differ is how we get to 28 days in exceptional circumstances. concerning DNA. When my right honourable friend There are many noble and learned Lords in your Alan Johnson was Home Secretary, he brought forward Lordships’ House, and I hope that they in particular legislation providing for essential safeguards regarding will be able to give the Government timely advice on the use and retention of DNA. These are serious how to proceed carefully in this area. matters and we should seek to achieve a sensible balance. I believe that we had that balance, but now In conclusion there is a lot that I can welcome in the Minister is taking risks with our freedoms in his this Bill, but there are some really dangerous, misguided proposals regarding DNA. What evidence does he aspects in it. I hope that your Lordships’ House will be have to make these changes in respect of the retention able to persuade the Government that they need to of DNA samples? think about them again. Can the Minister also direct some of his remarks to the number of people who have been caught committing 8.42 pm serious offences, caught only because their DNA sample Baroness Randerson: My Lords, I strongly support was on the database? Under these proposals, the DNA the spirit that unites this wide-ranging Bill. This evening evidence would never have been there. Kensley Larrier, it has been called a Christmas pie and a mishmash. Lee Ainsby and Abdul Azad have all been convicted Whichever view you take of it, it certainly covers a of the offence of rape, using DNA evidence held on great deal of ground. We have had a debate which has the database. If these proposals had been law at the touched on virtually every aspect of this Bill and time that they committed their offence, the evidence heard some very important points from all sides. I am that convicted them would not have been available. delighted that there is so much agreement on some They would have been free to carry on committing parts of the Bill. further offences. How is that protecting our freedoms? In the last 15 years or so, I believe that we have been Government have a duty to protect their citizens. sliding almost imperceptibly into a society where we These proposals weaken their ability to do so. They take for granted that the state has the right to look are wrong, they are risky and they should be opposed. into almost every corner of our lives. We take our Parts of the Bill, as I said previously, are very welcome. liberties rather too much for granted in Britain. Because Proposals regarding the express parental consent for they have not been threatened in a wholesale way in the use of children’s fingerprints are welcome. Other the adult lifetime of almost all of us, we accept that proposals, such as those to deal with rogue wheel those liberties are there. We have allowed them to be clampers, making it a criminal offence for cowboy eroded on a piecemeal basis. We have not really noticed 215 Protection of Freedoms Bill[LORDS] Protection of Freedoms Bill 216

[BARONESS RANDERSON] his head. Following that accident, she was arrested by it happening, but if you add up one measure after the police on suspicion of attempted murder. She another taken under the previous Government, in came to see me after a very traumatic episode to total it amounts to a considerable intrusion into our complain not about the arrest but about the fact that lives. they had kept her DNA. We went to see the chief These steps were of course taken with the best of police officer and asked for that DNA to be destroyed. motives. It is a natural human reaction that when The answer we got was that it would be highly unlikely something terrible happens we all say that something that that could happen, even though it fulfilled one of must be done to stop it ever happening again. In the the two criteria for the destruction of DNA samples, name of safety and security, the previous Government which is that there was no crime in the first place. A eroded the concept of innocent until proven guilty by system that ensures that that lady’s DNA is kept in retaining the DNA of over 1 million people who have perpetuity is overwhelmingly draconian and needs to not been found guilty of a crime just in case those be put right. samples might be useful in the future. They eroded the There are details in the Bill that need questioning right to liberty by extending the period of pre-charge and interrogating, and I have concerns about one or detention. They eroded our right to trial by jury. They two of its provisions, in particular, as some noble eroded our right to live safely in our own homes Lords have already mentioned, issues in relation to by creating hundreds of new powers of entry so that university research. I also wish to probe the Minister there are now more than 1,200 separate, different and about the provisions in relation to CCTV cameras therefore confusing powers of entry. Significantly, nearly because I have come across two serious abuses of 500 of them were created by secondary legislation. CCTV cameras, one on university property and one The previous Government also eroded trust by on National Assembly for Wales property, and I cannot their plans to introduce the draconian vetting and see that they are covered by the Bill. I will be pursuing barring system which would have forced 11 million those issues in future, but I believe that, in general, this adults to pay for registration in order to prove that Bill is a proportionate response to the threats and they were not abusers of children. The key issue to me problems of our society. on this matter is that it deters volunteers. I contend that the benefits of community volunteering greatly 8.50 pm outweigh the benefits of vetting and barring on the Baroness Grey-Thompson: My Lords, in this Second draconian scale assumed by the previous Government. Reading I had considered raising in some detail the The previous Government eroded our right to walk issue of parking infringements and ticketing, in Chapter 2 peacefully along the streets by empowering the police of Part 3 of the Bill, especially in relation to how the to stop and search us without needing reasonable Bill may relate to the abuse of blue badge parking by grounds for suspicion. The figures on this give a very large numbers of individuals. I believe that this abuse worrying picture. In 2008-09, there were 210,000 stop highlights something of wider concern, which is a and searches that led to only 1,245 arrests, and of widely held, negative attitude that is being directed them only nine were for terrorism. There has undoubtedly towards disabled people. Perhaps, however, I will come been considerable damage to community relations as a back to this at a later stage. result of this broad-brush approach. Unsurprisingly, I have decided to keep my main comments at this stage to those parts of the Bill which I said at the outset that these steps were taken with could have a serious effect on British sport. I refer the best of motives. Our country faces new threats and specifically to Part 5 of the Bill, on safeguarding challenges. Terrorism, although not new, is newly fierce vulnerable groups. I support the comments of the among us, and there are the old threats, the old evils, noble Baroness, Lady Dean of Thornton-le-Fylde, in that we have been too blind to in the past, such as calling for the correct balance for criminal record paedophilia. In attempting to deal with these problems, checks. As a volunteer in sport, I admit that I have felt it is important all the while to keep in mind that the a certain amount of frustration with the system in the response has to be proportionate. For example, the past. Over the years, however, the system has improved previous Government legislated to keep biometric data greatly. At one point, I think that I held five separate for as long as possible in case they might be useful one CRB checks—one for a charity of which I was a day. By spreading the net wider and wider they seemed trustee, where I did not actually meet any children. to hope that they would legislate away crime. Therefore, I strongly welcome the sections on portability, There has been another factor at work, which is which is very valuable. technology. Many of the developments that I am As a mother whose daughter is involved in many referring to—DNA samples, CCTV or the ability to sports, I like the reassurance that checks have been create and interrogate vast databases—would not have carried out on the volunteers who work with my been possible 25 years ago. There is a human tendency daughter, and also that these checks have to be periodically to feel that if the technology exists, we need to use it, updated. Sport currently has a robust framework in but we have been in danger of making ourselves the place for safeguarding children and it is well placed to slaves of technology, rather than its masters. determine who should be checked. Those involved I shall briefly tell the story of a lady who was my also understand the huge risks to their sport of not constituent. She was elderly, frail, very timid and of protecting young people. It is essential that sport and exemplary good character. She came to see me following recreation organisations have clear information about a traumatic experience. Her husband, who suffered volunteers who pose a risk. Volunteers working in from Alzheimer’s, had had a stroke, fallen over and hit sporting environments have access to large numbers of 217 Protection of Freedoms Bill[8 NOVEMBER 2011] Protection of Freedoms Bill 218 children and vulnerable adults, and are in a trusted I would like to ask the Minister for his reassurance position. National governing bodies ask coaches, that the protection of young people and vulnerable volunteers and officials to undertake regular continual adults will be uppermost. The role of a coach or professional development, and I see the safeguards volunteer is hard to define. While a coach may say that and CRB checks as a part of that process. They have they “just” spend several nights a week at a club, it is become an accepted part of being involved in sport. so much more than that. The coach can be a mentor, a I understand that one of the aims of the Government’s friend, someone who challenges the young person to proposals is to protect individuals who may receive a be the best they can or someone who sees you through certificate with inaccurate information. Since registration the difficult teenage years—a confidant. My coaches began in my own sport of athletics, only one check has were all of those. By their very nature, strong bonds been returned with a major error, displaying incorrectly are built. The coach is there to help a young person that the individual had been barred from working with fulfil their dreams in sport. They hold a unique position children. This error was corrected one day later by the in a young athlete’s life, and there is great potential for Criminal Records Bureau. Athletics—I declare an interest, misuse of the role by those who wish to. in that I sit on the board of UK Athletics—is a large Finally, I would like to ensure that we have a system sport with many thousands of volunteers. To put this that is as simple as possible, and I would welcome into further context, last year approximately 7,000 checks further debate in this area. Record checks should were carried out through the centralised system. These protect coaches or volunteers from error, but they were carried out by experts in the field. At present, must also protect the children and vulnerable adults only two individuals within UK Athletics are able to who are in sport. view criminal record disclosures. Clause 79, covering the disclosure of information, would seriously undermine 8.56 pm the anonymity of the current system because the Lord Rosser: My Lords, we have had a lengthy and safeguarding team would have to chase copies of the interesting debate. With a Bill that covers a number of disclosures. separate issues, it is not surprising that we have heard The current system, which is centralised within the a number of thoughtful speeches that have concentrated NGB, prevents the need for the volunteer to get involved. on specific areas addressed in the Bill. These include Withholding disclosures from the NGB would mean the impact of Freedom of Information Act changes that the individual is flagged up to the NGB as not on universities and their research work, changes to the having returned their certificate, maybe unfairly, which vetting and barring procedures, and DNA retention. could lead—again, unfairly—to suspicion. Those who We also heard a glowing testimonial to the last we would not want to be working with children could Government from the noble Lord, Lord Selsdon, although delay a return of forms, thereby giving themselves I had better add for the noble Lord’s sake that it longer access to children. The administration also has related only to the specific issue of powers of entry. a financial cost which must be considered. This Bill, as my noble friend Lord Kennedy of The provisions in the Bill put the onus on the Southwark said, has a somewhat grandiose title, but individual—volunteers who often have many other as Mr Edward Leigh, the Conservative Member of commitments—to provide information to the national Parliament for Gainsborough, said in the other place governing body. That could cause many difficulties. in March this year: For the individuals who have to return the disclosures “Compared with the Deputy Prime Minister’s rhetoric last by post, there are further costs such as recorded delivery. year about bringing in a Bill to ‘protect our hard won liberties’, much of it is a bit tame”.—[Official Report, Commons, 1/3/11; For those who do not want to send their sensitive col. 225.] documents back by post, a volunteer at the club may It is hardly a piece of legislation on a par, for example, have to view the disclosure. That puts other club with the Human Rights Act 1998, the Freedom of volunteers in a difficult position, as been well described Information Act 2000, the Data Protection Act 1998 by the noble Baroness, Lady Heyhoe Flint. or the Race Relations (Amendment) Act 2000, all of Without volunteers, British sport would not exist. I which were enacted by the previous Government. think virtually all the athletes I know who compete at However, the Bill affects important issues and makes GB level have been coached at some point in their proposals involving change in a rather different climate career by volunteers. But sport also needs young people from that which existed when some of the original taking part in it, and parents need to feel a level of legislation was passed in this House and the other reassurance. place. My noble friend Lady Royall of Blaisdon went I also have some concerns over Clause 64, which through the Bill in her speech and set out the parts narrows the definition of “regulated activity”. It makes with which we agree, those with which we disagree and an assumption that day-to-day supervision is enough, areas where the Bill remains silent but which we think but I believe that the proposed changes mean that an should be addressed. I do not intend to repeat all the individual who has been barred would not be prevented points made by my noble friend but will concentrate from working with children in a supervised role. The my comments on particular aspects of the Bill. issue of “regulated activity” has been raised by many The proposals for changes to the vetting and barring in your Lordships’ House, so I will not talk any more regime drawn up following the horrific Soham murders on this point now, but I agree that it places another are a cause of concern, not because they make changes unfair burden on yet other volunteers. I believe that it but because of the nature of the changes that they might be appropriate for all bodies in this sector to be make. These were referred to by, among others, my granted an exemption from Clause 64(5). noble friend Lady Dean of Thornton-le-Fylde. Under 219 Protection of Freedoms Bill[LORDS] Protection of Freedoms Bill 220

[LORD ROSSER] The six-year retention figure in the Crime and the Government’s Bill, it will be possible for people to Security Act 2010 was based on extensive Home Office spend time working with and in regular contact with analysis on the length of time for which the offending children who will not have been subject to the barring risk of a group of individuals who might be subject to arrangements. Such a situation could arise if the the retention policy is above the level observed in the individuals concerned are meant to be being supervised general population, known as the hazard rate. The by someone else to a greater or lesser degree. In this analysis suggested that within four years the hazard situation, it will not be possible to ascertain whether rate converges with that for the peak offending age the Independent Safeguarding Authority had ever made group—males aged 16 to 20. The cohort converges a judgment that the individual in question should be with the general population only after a significantly barred. Instead, it will be left to the organisation or greater number of years. body concerned to seek any information on the Criminal In its evidence to the Commons Public Bill Committee Records Bureau check and make its own judgment, in March this year, ACPO stated that, but it will be unable to find out what conclusions the “we felt that the Crime and Security Act 2010 represented fair independent authority may have come to, despite the balance and was evidence-led, in that there was a body of research fact that one would expect it to have some expertise in around how that measure would play out in protecting the this area. public”. The objective should be to ensure that if one ACPO went on to say that the Scottish model, organisation or authority is aware that an individual “does not appear to be evidence-led in the way it has been has a record of abuse of others of whatever age, constructed”.—[Official Report, Commons, Protection of Freedoms another authority or organisation engaging that person Bill Committee, 22/3/11; col. 8.] either as an employee or a paid volunteer in work with ACPO estimated that there would be a loss of about vulnerable people should not do so in ignorance of 1,000 matches per year under the changes proposed in that individual’s previous record of abuse, including the Bill. In other words, people currently brought to any assessments that have been made. Serious and justice for serious offences because of DNA matches potential serious sexual offenders are all too often would escape justice and quite probably commit further very determined and very good at covering their tracks serious offences. This is not an area where we would be and activities. It is all very well wanting to reduce taking chances by making a change based on less than regulation, as clearly the noble Lord, Lord Hodgson convincing evidence. of Astley Abbotts, does, but not if it is at the expense In addition, in more than two-thirds of rape cases of someone else’s safety, particularly a vulnerable in which a suspect is arrested, there is no charge. person or, in extreme cases, at the expense of their life. Under this Bill, DNA will be kept where there is no The Government are proposing changes to the charge in only very specific circumstances, so the retention of DNA samples. In the light of reoffending DNA will be lost in most of these cases, even though, rates and the benefits of preventing and solving crimes, as the hard evidence shows, it can lead to a repeat the previous Government had already legislated for a offender being caught for this particularly unpleasant six-year retention period for those who were not convicted. and violent sexual offence. Associated with this issue The then Opposition did not oppose the six-year we also consider, as my noble friend Lady Royall of retention period, no doubt because they accepted that Blaisdon said, that a new clause should be added to a number of serious offenders, including murderers the Bill to make a specific new offence of stalking. We and rapists, were brought to justice after committing shall be tabling an appropriate amendment in Committee other crimes, because of DNA profiles. Yet this to this effect. Stalking is currently covered by the Government now propose to bring the retention period offence of harassment, but the two are not the same down to three years for an adult who is charged with, and, to prove stalking, harassment also has to be but not convicted of, a serious offence. We have not yet established. There has been a change in Scotland heard any convincing evidence that supports such a where there is now a separate offence of stalking. The step, which will make it more difficult for the police to number of prosecutions for stalking is already this solve and prevent serious crimes. year some 10 times higher than the number of prosecutions when harassment was the offence that Certainly the Government’s evidence is not convincing. had to be proved. Their proposal appears to reflect the Scottish model of a three-year limit. That was based on a report by an The Bill addresses the issue of wheel-clamping and academic and seemed to be determined by a judgment in particular the need to take action against rogue car of the appropriate balance and interpretation of an clampers, with which we agree. We need to be sure, ECHR decision rather than empirical evidence. The though, that the provisions of this Bill will not hamper Government have undertaken separate analysis of the action against the rogue parker: the kind of individual Scottish model of DNA retention, and the results who leaves their car in your drive because your home suggest that the earliest that offending risk in the is near a station or a football ground, or the kind of charged group falls to the level present in a comparable individual who leaves their car in parking bays reserved general population is just over three years after the for disabled drivers at supermarkets and in car parks initial charge. That is based on a comparison of only at leisure activity locations. These questions will need the lowest-bound hazard curve for the charge group to be pursued during the later stages of this Bill. and the risk estimated for all individuals in the general The Bill proposes changes to the use of CCTV. population. It really is a case of being highly selective Many people regard CCTV as a tool for preventing over the figure picked to try and provide backing for a and fighting crime, and we believe that a full report is predetermined point of view. needed from the police on its effectiveness before we 221 Protection of Freedoms Bill[8 NOVEMBER 2011] Protection of Freedoms Bill 222 go down the road set out in this Bill. There may well early to describe it as a Christmas pie so I was going be a case for some regulation on the use of CCTV, to use the word “pudding” because it is a mix of a but this Bill provides for a new code of practice that number of things. The reason I wanted to use the word appears to contain so much bureaucracy—with more pudding is thinking of those great remarks of Winston checks and balances on a single camera than the Churchill to emphasise the fact that it has a theme Government are introducing over police and crime running through it—it is not a pudding without a commissioners—that it is likely to deter or prevent the theme. There is a theme relating to the protections of use of CCTV in instances where it would increase freedoms that I hope I outlined at the beginning of the safety and security. debate. There is also a theme that runs through the Bill Local authorities and police forces will have a statutory which I again think is important—the noble Baroness, duty to have regard to the code in their use of surveillance Lady Royall, referred to it—and that is one of balance. camera systems. Yet most cameras are used within the On each of the different issues that we will deal with, it private sector. If the Government consider there to be is important that we address the question of the right a protection of freedom issue at stake, can the Minister balance between the protection of our freedoms and say why no code of practice is to be applied beyond the protection of security. Very difficult judgments local authorities and police forces? Crimes, and particularly have always to be made in this area, which is what we serious crimes, affect our security, and our freedom is will have to do. That is why I will come back to the in jeopardy if a Government do not regard the right to word “balance” time and again. security as of paramount importance. The previous The noble Baroness, Lady Royall, thought that the Government had to address unprecedented peacetime balance was wrong, but a great many other speakers, attacks, and the continuing threat of such attacks, on including my noble friends Lady Hamwee and Lord this country. We have heard a great deal in this debate Goodhart, thought that the balance was right. The about the rights of the individual, but we have to be noble Lord, Lord Dear, thought that the balance careful in protecting those rights not to compromise was right, but he wanted to see extensions in the Bill the security and safety of our communities and our in areas such as freedom of speech. He said that nation. he would not bring forward amendments relating to The previous Government presided over a year-by-year freedom of speech or removing “insulting” from the reduction in crimes of all kinds and a 43 per cent Public Order Act while our consultation was out, but reduction in crime overall, according to the British he asked whether it might be possible to have some Crime Survey. They left this country a safer place in debate on that. As always, I will say that that must be which to live, work and play than when they came to a matter for the usual channels, but no doubt the office, and that is an enhancement in freedom that noble Lord will find some way of introducing it in should not be casually dismissed. Committee. This Bill will be the subject of detailed debate and In the time available to me today I hope to run consideration during its remaining stages, as it should through the various parts of the Bill and make a few be. While there are changes in this Bill with which we brief comments on them, starting with Part 1, on do not disagree—indeed, we agree—there are, as my DNA and biometrics. I shall deal first with biometrics noble friend Lord Harris of Haringey highlighted, in schools, particularly because my noble friend Lord other changes that, despite some of the rhetoric from Lucas referred to the proposals as—I think that I have the Government side, weaken not strengthen an all got his words right—a “daffy overreaction”to a perceived important freedom: the right to safety and security for problem which would do nothing to improve safety or the people of this country. privacy. I note what he said, but I noted also that his general reaction to the Bill was positive. I can assure 9.08 pm him that, although the coalition agreement is generally Lord Henley: My Lords, I start with one point on our bible and something that we always abide by, the which I am in total agreement with the noble Lord, proposals have been included not just for reasons of Lord Rosser. The Bill will be the subject of detailed the coalition agreement. No doubt my noble friend debate at its later stages and I look forward to those will want to come back to that in due course. later stages. I also offer my congratulations to all On the wider question of DNA and whether we noble Lords who spoke. I never thought it was likely should keep the DNA of people who have not been that I would be getting to my feet so soon after 9 pm. I convicted for three years or six years, again there was a do not know whether the usual channels will notice division of opinion within the House. My noble friend this but I hope they do not suggest that we start every Lord Hodgson of Astley Abbotts and the noble Lord, day with a two-and-a-half-hour debate on procedural Lord Dear, both thought that the current position was matters hoping it will speed up later proceedings. untenable. I had the support of my noble friend Lady We have done very well to get through a big and Randerson, but others, such as the noble Baroness, detailed Bill of this sort—a Bill with some 115 clauses Lady Royall, and the right reverend Prelate, had and 10 schedules—in the time we have. I will endeavour considerable concerns. I think that it was the right to be brief in responding because, as the noble Lord, reverend Prelate who used that dread expression “the Lord Rosser, said and I agreed with him, obviously a precautionary principle”, which always worries me. I great deal of this must be discussed in further detail at tend to run away when I hear about the precautionary later stages. principle, because it implies that one cannot do anything The Bill was described rather cruelly by the noble because something might go wrong. I do not know Lord, Lord Harris of Haringey, as a “mishmash” and what it would prevent us doing if one took it too far, by others as a “Christmas pie”. It is possibly a bit too but, again, I note what he says. 223 Protection of Freedoms Bill[LORDS] Protection of Freedoms Bill 224

[LORD HENLEY] not subsequently convicted, will have their DNA profiles It was my noble friend Lady Berridge, speaking destroyed very soon unless they are convicted of a from her experience as a barrister, who reminded us of crime in due course. the importance of the presumption of innocence, the We have very difficult questions to address, again, right to privacy and the risk of a breach of Article 8 on the regulation of surveillance and very difficult and rights of privacy if we kept an excessive amount questions of balance between those who feel that we of data. Again, these matters will have to be looked at need further safeguards and those who feel that people in considerable detail, but it is important that we get always welcome more cameras, as I think the noble this right. It is important also that we come to address Lord, Lord Harris, suggested. I have to say he ought the questions raised by my noble friend Lady Doocey to look at Project Champion in Birmingham, which I and by the noble Lord, Lord Kennedy, who discussed referred to in my opening remarks, and he will find possible costs to the police in dealing with that. that that is not always the case. I had better stop I will cover two other points in relation to the mentioning the noble Lord if he is going to rise to his question of retention of DNA. I think it was the noble feet on every occasion, but I will give way. Baroness, Lady Royall, and the noble Lord, Lord Harris, who suggested that we were going to be taking Lord Harris of Haringey: Perhaps I will not rise on some 17,000 rapists off the database and that potentially the next occasion you mention me. The issue about some 23,000 offenders’ details per year will not be Project Champion was that people welcomed the original entered on the database under these provisions. The introduction. It was when they found out they had contention that every single person suspected of rape been misled about the purposes of the cameras that will instantly come off the database is simply not true. the anger—the very real and justifiable anger—arose. It is about keeping the details of thousands of innocent people, who have not been convicted, on the DNA Lord Henley: My Lords, it was a real anger and it database because of a hypothesis that a proportion of was quite right that something should be done about them may go on to commit— it. I think he is wrong, though, to imply that people welcome more and more cameras on every single Lord Harris of Haringey: The figures I quoted were occasion. from the Home Office’s own figures, reanalysing the cases where individuals would have been taken off Obviously, we have got to get this right, so I was the database as a result of these changes and then very grateful that the noble Baroness, Lady O’Loan, subsequently—these are facts and involve real for example, welcomed the fact that we were going people—gone on to commit other crimes in 6,000 or to have a code of practice and a new commissioner. 7,000 cases. I will have to check my notes again on the Again, she said it was important that further things figures, but these were serious crimes, including rape should happen. I think she saw that there was insufficient and murder. provision for complaints to be made and she also suggested that there was not—I think I have it right— Lord Henley: I will obviously allow the noble Lord sufficient oversight. I will certainly look at that, and to check his facts again in due course, but I stand by these are obviously matters that we can examine in what I said. The presumption that he was making—along Committee. with, I think, the noble Baroness, Lady Royall—that The last point that I should pick up on is that made we were taking all these people off and that they were by my noble friends Lady Miller and Lady Doocey, all going to be guilty. I was trying to make clear that and the noble Baroness, Lady O’Loan, when they simply keeping the details of those people on the talked about the number of commissioners and considered database, because of a hypothesis that a tiny proportion whether there could be a merger of commissioners. I of them may go on to commit serious crimes in future, appreciate that the number of commissioners seems to is not actually going to do anything to increase the be growing, but their roles are distinct. Again, that is a conviction rate for rape. As I explained in opening this matter of detail that we should be able to consider in debate, those charged with a qualifying offence, including due course in Committee. rape, obviously will have their DNA retained for three Turning to powers of entry, my noble friend Lord years. It is then up to the police to apply to the courts Goodhart, who generally welcomed the Bill, for which to extend that by a further two years. That is set out in I was very grateful, raised the issue that it includes a the Bill. For those arrested but not charged with a number of Henry VIII powers. Whenever that expression qualifying offence in cases where the victim is vulnerable, is mentioned, I think back to what was almost the first the police may still apply to the independent commissioner Bill that I handled at this Dispatch Box, which related to retain their DNA for three years. to statutory sick pay, which was one of the earliest My noble friend Lady Berridge also raised the very modern reintroductions of Henry VIII powers. I remember important question of the over-representation on the the savaging that I received from the then good friend DNA database of those from black and ethnic minority of the noble Lord, Lord Goodhart, Lord Russell, and backgrounds. Obviously, the database is not self- the problems that we had with the Bill. When I die, no populating, because for a person’s DNA to be taken doubt Henry VIII powers will be found engraved on the person must have been suspected of committing a my heart. However, the noble Lord accepts the fact recordable offence and that arrest in law must have that it is possibly appropriate here, in removing powers been necessary. You cannot, as another noble Lord of entry, to use those Henry VIII powers. I stress—in said, simply arrest so as to get the DNA. That is a particular, to my noble friend Lord Selsdon—that that significant threshold. However, our proposals will mean power is only for the repeal of powers of entry.Clause 41, that the vast majority of those who are arrested, but which allows amendments to be made to powers of 225 Protection of Freedoms Bill[8 NOVEMBER 2011] Protection of Freedoms Bill 226 entry, makes it quite clear that those powers can be Flint, who all spoke about sporting issues, that I used only where they do not reduce the protection for would be more than happy to see a delegation of the individual. Again, I pay tribute to all the work that sports bodies if she would like to bring them to see me my noble friend Lord Selsdon has done over the years in due course. in trying to reduce the number of powers of entry. In I would also like to suggest to the noble Lord, Lord due course, I will write to him with further details on Harris, who said that he was not happy about what the code of conduct. might happen to volunteering and the risk to volunteers, Turning briefly to wheel clamping, that is a matter that he look at some of the briefing provided by for Committee on which I know that my noble friend Volunteering England, which states: Lord Attlee, who has great expertise in the area, will “However, we would not want to see this wording tightened up be able to deal with it. As my noble friend Lord by use of terms such as ‘close’ or ‘constant’ supervision, as has Bradshaw said, this is something that we need to look been suggested by other organisations, because it could further at with very great care, especially access to the DVLA restrict the involvement of volunteers. If the requirements for database. I shall also consider, as the noble Lord, supervision are too prescriptive, organisations may be put off Lord Kennedy, said, what we need to do about ticketing from involving volunteers and potential volunteers deterred from volunteering”. and abuse in that area. I have also noted what the noble Baroness, Lady Grey-Thompson, did not have to say about the abuse of blue badge parking, which Lord Hodgson of Astley Abbotts: Will my noble concerns all of us and which we should address. friend give way momentarily? One of the questions However, clamping in a disabled parking area is not now is: what is “frequent and intensive” when dealing the solution to that problem, because once you have with children and vulnerable adults? Are we going to clamped a vehicle in that area, you cannot use that have a new definition of it, and if there is a new area. There are other, better ways to deal with that definition of it, will it be available for discussion in problem. Committee? Clearly, there is a wide range of opinions around the Chamber about how we should tackle that. Moving to counterterrorism and the questions raised about the reduction to 14 days, I note that most noble Lords are happy with the reduction from 28 days to Lord Henley: How you would interpret those words 14 days, but I note the concern about the measures is really a question of fact and degree. I will have a that would have to be used to raise that 14 days to further look before we get to Committee to see whether 28 days if we were in a difficult situation where we I can write in greater detail on that. If I cannot, I am needed to do that. The noble Lord, Lord Kennedy, sure that it is something that we would want to discuss was very honest when he said that it was difficult to see in greater detail in Committee and at later stages. how we could get from the 14 days back to the 28 days. Finally, I come to freedom of information and data We have to look at that. At the moment we have protection in Part 6. I will touch on this only very Clause 58 and the powers in the Bill as set out, but briefly because I understand the concerns expressed certainly we will want to look at those again very by my noble friend Lady Hamwee, the noble Lord, carefully. I note what the noble Lord, Lord Armstrong Lord Bew, and the noble Baronesses, Lady O’Neill had to say, that he thought that we had not gone far and Lady O’Loan, about the publication of research, enough in what we were doing, and that it would be particularly early publication. I accept that there is a too difficult to do it. He would certainly want to try genuine concern coming from Universities UK. to extend Clause 58, as I understood him, to allow the Home Secretary to extend the period in other Baroness O’Neill of Bengarve: I just want to clarify circumstances where appropriate. I was grateful that that. There is absolutely no concern about the publication he made it quite clear that he hoped she would never of research. That is what researchers aim to do. The have to make use of any of those powers. concern is about applying the publication criteria to I come now to vetting and barring, and again that databases which are of a size that precludes their being expression I used at the beginning about getting the published in journals, monographs or any other way. balance right is more important here than in virtually These are causing concern for large numbers of research any other field. Of course, as the noble Baroness, Lady institutions which have such databases but are committed Grey-Thompson, put it, our first priority must be the to open publication. protection of children and young people, and that will remain our priority. However, we obviously have to Lord Henley: I am sorry if I misunderstood the have the right balance, as was stressed by my noble noble Baroness. I have written down “pre-publication”. friend Lord Hodgson, though others thought that we I will look carefully at what she had to say. Certainly, I had got this wrong and thought more protection ought hope that we can address that in due course. The noble to be brought in. As I said at the beginning, I want to Lord, Lord Bew, said that we should copy Scotland stress that if you bring in too great a control and too but I think that the noble Baroness, Lady O’Neill, was great protections, there is the danger of encouraging a not so keen on that idea. Again, we need to address tick-box mentality, which might not provide the better these matters in due course and examine them in a protection for children and young people that we manner that I properly understand, particularly as I want. Again, I will look at that as we discuss these just seem to have misunderstood the noble Baroness matters in Committee. on this occasion. The noble Baroness went on to ask I would say to my noble friend Lord Addington, what she described as some boring questions about and the noble Baroness, Lady Grey-Thompson, but costs. As they are allegedly boring questions—I am more particularly to my noble friend Lady Heyhoe sure they are not—I will address them in a letter. 227 Protection of Freedoms Bill[LORDS] Localism Bill 228

[LORD HENLEY] Protection of Freedoms Bill That is a rather rapid gallop through some of the Order of Consideration Motion comments that we have received today. I thank all noble Lords for their contributions. If we can agree on 9.32 pm nothing else, we can agree that we will have an interesting and possibly somewhat lengthy Committee stage. As Moved By Lord Henley noble Lords will know from the Motions that I will move after this Bill has had its Second Reading, it will That it be an instruction to the Committee of the move down a novel line with some of the Committee Whole House to which provisions of the Protection stage taking place in the Chamber on the more contentious of Freedoms Bill have been committed that they issues and some taking place in Grand Committee. I consider those provisions in the following order: hope that that will have the agreement of the House Clauses 1 to 19, Schedule 1, Clauses 20 to 25, and that once the Second Reading Motion is agreed, Clauses 54 to 56, Schedule 4, Clauses 64 to 78, your Lordships will permit me to move the other Schedule 7, Clauses 79 to 84. Motions that stand in my name. Motion agreed. Bill read a second time. Protection of Freedoms Bill Protection of Freedoms Bill Committal Motion Order of Consideration Motion 9.32 pm 9.32 pm Moved By Lord Henley Moved By Lord Henley That (a) the following provisions of the Protection of Freedoms Bill be committed to a Committee of That it be an instruction to the Grand Committee the Whole House— to which provisions of the Protection of Freedoms Bill have been committed that they consider those (i) Clauses 1 to 25 (destruction, retention and provisions in the following order: use of fingerprints etc.); Clauses 26 to 39, Schedule 2, Clauses 40 to 53, (ii) Clauses 54 to 56 (vehicles left on land); Schedule 3, Clauses 57 to 61, Schedule 5, Clauses 62 (iii) Clauses 64 to 78 (safeguarding of vulnerable and 63, Schedule 6, Clause 85, Schedule 8, Clauses 86 groups); to 109, Schedules 9 and 10, Clauses 110 to 115. (iv) Clauses 79 to 84 (criminal records); (v) Schedule 1 (destruction, retention and use of Motion agreed. fingerprints etc.); (vi) Schedule 4 (recovery of unpaid parking charges); Localism Bill (vii) Schedule 7 (safeguarding of vulnerable groups: Returned from the Commons Northern Ireland); and (b) the remainder of the bill be committed to a The Bill was returned from the Commons with the Lords Grand Committee. amendments agreed to. Motion agreed. House adjourned at 9.33 pm. GC 1 Welfare Reform Bill[8 NOVEMBER 2011] Welfare Reform Bill GC 2

Amendment 72? I have to inform your Lordships that Grand Committee if that amendment is carried, Amendments 73 and 74 will then not be spoken to because of pre-emption. Tuesday, 8 November 2011

Welfare Reform Bill Clause 51 : Period of entitlement to contributory Committee (11th Day) allowance

3.30 pm Amendment 71M The Deputy Chairman of Committees (Baroness Moved by Lord McKenzie of Luton Gould of Potternewton): My Lords, may I remind you 71M: Clause 51, page 36, line 19, leave out “365 days” and of the new procedure during Grand Committee on insert “a prescribed number of days which must be at least 730” this Bill for Divisions in the Chamber. Members who have registered with the Clerk of the Parliaments may vote in their places in the Grand Committee, provided Lord McKenzie of Luton: My Lords, in speaking to they are present in the Grand Committee when the Amendment 71M, I shall speak also to Amendment 71P. Question is put in the Chamber after three minutes. I shall speak to the other amendments in this group Members who have not registered or who are not here when they have been introduced. at the three-minute mark will not be able to vote in their places. I also remind Members to be sure that Clause 51 is one of the most controversial and they speak up but do not touch the microphones. unfair provisions in the Bill. It seeks to limit contributory Before I call the first amendment, the noble Lord, ESA to 365 days in aggregate in respect of the same Lord Freud, wishes to say something. reference period. The clause further seeks to have the clock running for this currently so that days of receipt The Parliamentary Under-Secretary of State, to date count towards the total. Our amendment is Department for Work and Pensions (Lord Freud): My modest in that it seeks to remove the reference to Lords, I thought it would be convenient to touch on 365 days and replaces it with an order-making power the timetable. There has been discussion between the for which the prescribed number of days must be at usual channels on the best way to take the rest of least 730—that is, two years. This formulation provides proceedings. We have agreed, subject to our best the route to ensuring that any time-limiting of endeavours and without overriding anything, that there contributory ESA must be based on a proper analysis will be 17 Committee sittings, finishing on 28 November. and evidence, rather than the arbitrary approach that The main items will be taken as follows. ESA time-limiting the Bill adopts. will be debated today; the Social Fund issues on To justify a time limit for ESA we need to be 10 November; the PIP on 14 and 16 November; the satisfied that it is reasonable to expect people to return benefit cap on 21 November; fraud and error on to work within the period, or to be fit for work and 23 November; and child maintenance and changes to transfer to the JSA regime or be subject to work-related the Child Poverty Commission on the last day, requirements in the universal credit regime. This judgment 28 November. I will circulate this timetable to all Peers is not without difficulty, given the multiplicity of after today. circumstances that cause individuals to be allocated to the work-related activity group—the WRAG. They Lord McKenzie of Luton: My Lords, I thank the include mental health and fluctuating conditions and noble Lord, Lord Freud, for running through that depend on the level of support that is available to timetable. Our Front Bench is signed up to using our individuals. No one is arguing for a system that enables best intentions to make sure that we stick to it. It is individuals to stay in the WRAG for ever without helpful for those who are not necessarily here for every making any effort to move closer to the labour market. bit of the Bill to know roughly what the schedule is. However, is it not the case that, when placed in the My Whip, my noble friend Lord McAvoy, has asked WRAG, there is a prognosis of how long somebody me to stress that these are firm intentions but not a will stay there, and that prognosis is reviewed for its straitjacket. appropriateness before a claimant is moved to the JSA regime or, in the future, to the all work-related Baroness Morgan of Drefelin: My Lords, it is incredibly requirements of universal credit or, indeed, to the helpful for those of us on the Cross Benches to hear support group? from the Minister what the timetable for the subject Therefore, in essence, the system has an individualised matter for debates might be. Can I also point out how assessment of how long somebody may need to remain difficult it might be for some of us, with the Health in receipt of contributory ESA if the national insurance and Social Care Bill being in Committee at the same conditions are satisfied. If the Government have time as the Welfare Reform Bill? I have amendments confidence in the WCA process, why not rely and down for both Bills and it will be difficult. I know that build on this approach? Is not the answer that this is is true for many Peers. really not about fairness or making reasonable judgments about how long people need to remain in the WRAG The Deputy Chairman of Committees: My Lords, but all about cost savings and removing entitlements before I call the noble Lord, Lord McKenzie of Luton, to which individuals may have contributed throughout can I point out that within this group is government their working lives? GC 3 Welfare Reform Bill[LORDS] Welfare Reform Bill GC 4

[LORD MCKENZIE OF LUTON] I have not spoken to Amendment 71P, which is by A lot of figures have been swirling around this way of a probe. The notes provided by the DWP state matter but we know that government estimates show that people in the support group will not be affected that by 2015-16 700,000 people will be affected by by the proposals. Is this correct? Take the case of time-limiting. Forty per cent of these will not qualify someone who starts in the WRAG but because of a for means-tested benefit. Of those who do, can the deteriorating condition transfers to the support group. Minister give us an estimate of those who will receive Prior to any time limit in legislation taking effect, maximum income-related ESA and possibly the contributory ESA would have been payable throughout, distribution of those who will not? We know that based on satisfying the first and second contribution 94 per cent of contributing ESA claimants in the conditions at the start of the claim. But if entitlement WRAG have a claim, the duration of which is 12 ceases as a result of the time-limiting rule, will the months or more. From the Pathways programme, we claimant not have to satisfy the contribution conditions know that between 2005-06 and 2008-09 only between afresh? Satisfying the second contribution condition 25 and 30 per cent of participants found work within may not be a problem because of crediting, but the 12 months. There are strong representations, for example, claimant could be out of time to take advantage of the from Macmillan to the effect that for many cancer last tax year in which the national insurance contributions patients 12 months is not a long enough period before were paid, the last time when the individual was they return to work. It maintains that three-quarters actually earning in excess of the LEL. of people with cancer placed in the WRAG still claim the benefit 12 months later. I have a couple of further questions. When somebody is migrated on to the ESA from contributory incapacity Of course, the Government’s defence of all this is benefit, will the national insurance contribution conditions that income-related ESA will still be available. However, be treated as satisfied or will they have to be met the thresholds for the means-tested benefit is low, and again? The Minister will recognise that somebody who entitlement could be denied if a person’s partner earned in later years has been treated as having limited capability as little as £7,500 a year or worked more than 24 hours for work may well have been credited with sufficient a week. That is another couple penalty and a significant national insurance contributions to satisfy the second disincentive to work. The Government’s own assessment condition, but may struggle to satisfy the first condition is that the average change in income for those who lose of paying contributions amounting to 25 times LEL out from time-limiting is a loss of £52 a week—a within the previous three complete tax years. When staggering amount—with some losing as much as somebody is transferred from contributory incapacity £94 a week. benefit to contributory ESA, is it intended that the We can accept that, as with JSA, an argument can 365-day clock starts at that point? What analysis has be made for contributory ESA to be subject to a time been undertaken in respect of this in planning transfers limit, but the line must be drawn at a point where it is to ESA? What is the position of somebody who is no reasonable to expect that people will be able to move longer in the WRAG because they are considered to on from the support and protection of the work-related be fit for work and currently, therefore, are on JSA? activity regime. Three hundred and sixty-five days is Will they be eligible for contributory JSA, albeit for a clearly far too short a time for this yardstick. Seven maximum of six months? Further, policy briefing note hundred and thirty days is, it is accepted, an arbitrary 4 makes it clear that further changes are planned to figure to an extent, but the real task is to do the the employment and support allowance to align the analysis, produce the evidence and do the work so that earnings rules and taper with universal credit. With a proper time limit can be established. This evidence-based contributory ESA in steady state, accepting for this approach is what the DWP is usually so good at, and it purpose the 365-day time limit, what analysis has been is to be regretted that it is being abandoned in undertaken of the costs and benefits of this? Is it this situation. intended to be cost-neutral? Although not spoken to yet, we wholeheartedly We have a number of other amendments to consider. support the proposition that the assessment phase I have no doubt that we will hear the refrain from the should not feature in the number of days counted for Minister, “There is no money. These changes are vital any limitation period. The basic JSA rate is all that is for deficit reduction”. But there is always choice. The received during this period and claimants do not know question is: why make these particular cuts and why is whether they will end up in either the WRAG or the this particular burden to be borne by those who by support group. definition are not currently able to work and, moreover, Similarly, we support the amendments that prevent have paid their dues in the past? I beg to move. any days arising prior to the introduction of the legislation counting towards any limitation period. Can the Minister tell us how many people will lose Lord Wigley: My Lords, I must say that I have contributory ESA at the point that these provisions in considerable reservations about this clause in general, the Bill come into effect? Writing to tell people that and these amendments touch on a number of them. this restriction is probably on its way—and we will I have concern about the provision for time-limiting have to see the resolve of the Liberal Democrats on the contribution-related ESA to 12 months, as is provided this issue when we have the opportunity to vote—is all by this clause. It means that ESA claimants with a very well but helpful advice to the effect that the DWP spouse or partner working 24 hours a week or more cannot offer any guidance before the legislation becomes will not be eligible for the benefit. I believe that the law must have been received with some consternation. time-limiting ESA is a serious disincentive to work for Perhaps we can ask what feedback has been received. the partners and carers of ESA claimants, which leads GC 5 Welfare Reform Bill[8 NOVEMBER 2011] Welfare Reform Bill GC 6 to a situation in which unemployment is more financially and thus risk seeing their benefit run out after one sustainable than work, which must be a considerable year. What a position that we contemplate these people worry to us all. being in. I further believe that the time-limiting of ESA I use the example of a person with Parkinson’s punishes working families where one member is claiming disease that was lent to me by the Parkinson’s UK ESA. Does the Minister accept that those with a charity. It described the following client. He had worked working partner or with other income or capital, until the symptoms of his condition became too severe possibly up to as many as 400,000 people, will lose for him to continue. He explained that although he entitlement to the benefit completely if these provisions had good days, he had bad days. He would only have go forward? I urge the Government to think again on good days if he carefully conserved his energy. He this. said, “but I’m better when I’m not doing anything. It sounds like a skiver’s charter but what it means is that the energy or concentration 3.45 pm reserves needed to do simple physical or mental tasks are quite low so any difficulty encountered quickly drains those reserves Baroness Morgan of Drefelin: My Lords, I have the and I get into a sort of ‘closing down state’. My thoughts slow second amendment in this group, Amendment 71N. It down. My movements slow down. My breathing gets laboured. is a big and complicated group. I have also put my I want to sleep. I find it hard to swallow properly. I get headaches name to Amendments 73, 74 and 75. I am not going to and experience a feeling of desperation”. say too much about those because the noble Lord, This proposal promises to create a two-tier system. Lord Patel, is going to introduce them in some detail. The rules around national insurance contributions are I support his opposition to clause stand part, and I am extremely complicated. I do not claim to be an expert sure that we will come to discuss that more generally. in any way, so it is hard to present a hard-and-fast Many people who are placed in the work-related case, but one scenario that might occur is that someone activity group have a deteriorating condition—say, whose condition deteriorates to the extent that they Parkinson’s disease. Some people with motor neurone are eligible for the support group on day 365 of their disease or some forms of cancer have been told that claim receives indefinite support, while someone who they have only two or three years to live, so it is becomes eligible on day 366 gets nothing. What action possible to be in the work-related activity group and is the Minister taking to ensure that the Government still have a very limited prognosis. The purpose of this honour their commitment that those who become amendment is to allow certain groups to be exempt eligible for the support group after their 365 days’ from time-limiting of contributory employment and claim has expired can receive support through contributory support allowance. This is a probing amendment in ESA? many ways, but I would prefer there to be no time-limiting I understand that there are exceptional circumstances at all, to be clear. If we do have time-limiting, this which are catered for in legislation, in the Employment amendment is intended to safeguard support for people and Support Allowance Regulations 2008. Someone who have had to give up work due to a degenerative with a life-threatening condition who would not meet condition or terminal illness—for example, Parkinson’s the normal criteria for ESA can qualify under exceptional disease, motor neurone disease or cancer. This measure circumstances and be placed in the work-related activity will affect people with a degenerative condition who group. The example given in the guidance for healthcare qualify for the work-related activity group but whose professionals carrying out the assessment is someone benefit expires before their condition deteriorates, to with motor neurone disease. As I have said, we know the extent that they would be eligible for the support that the average life expectancy post-diagnosis for group. It will also affect people with a terminal prognosis someone with motor neurone disease is one to four of over six months who will qualify for ESA under years. A 62 year-old client of a citizens advice bureau exceptional circumstances. in the south-east had worked all his life, until he The Government had originally promised those became too ill to carry on. He was diagnosed with whose contributory ESA claim had ended at 365 days motor neurone disease and experienced chronic fatigue as their condition deteriorated that, if they qualified and reduced mobility. He applied for ESA and was for the support group on either functional or terminal placed in the work-related activity group. What does illness grounds, they would become eligible again for the Minister intend to do to ensure that people in that ESA. This commitment was made in response to a situation, who qualify for ESA under these exceptional question from Dame Anne Begg MP by Chris Grayling circumstances, do not lose out as time-limiting is MP. However, there are currently no provisions in the introduced? Bill that will allow for someone to restart a contributory The equality impact assessment accompanying the claim after their 365 days have expired. Many people proposal to limit payment of employment and support with degenerative conditions or a terminal prognosis allowance to people in the work-related activity group of more than six months will find themselves without partly justifies that measure on the basis that ESA is a support in the final stages of their illness if they have “temporary benefit”. This ignores the reality that it is savings or a partner in work, and therefore cannot impractical to expect someone with a terminal prognosis seek support from means-tested benefits. People with to return to work. We are seeing people with a terminal a degenerative condition will face the impossible prognosis being put in a work-related activity group, predicament of trying to remain in work for as long as which is being classified as a temporary benefit. If possible in order to ensure that they enter the support ESA is a temporary benefit, what action is the Minister group within a year of beginning their claim, or having planning to take to support those for whom a return to stop work and focus on managing their condition to work is not an option? GC 7 Welfare Reform Bill[LORDS] Welfare Reform Bill GC 8

[BARONESS MORGAN OF DREFELIN] change. I gather that many claimants who have received I, like many here, find these clauses desperately such a letter are telling citizens advice bureaux up and unfair to some of the most vulnerable people in our down the country that they do not know what this society. I oppose time-limiting for 12 months for ESA, letter means for them, and that they are very worried which appears to me to be completely arbitrary. It is by it. They have good cause to be worried. Not only not appropriate that we should be looking at this are the Government breaking the understanding that implementation retrospectively. The assessment period national insurance contributions—perhaps paid for should not count towards any time-limiting and it is years and years—protected a person against the loss not appropriate that people coming out of the support of employment on health grounds, but many claimants, group, if they only have a month left of their time-limiting, as we have heard, are likely to be left with only their should be expected to find work in a month. This is an partner’s extremely modest income, which may push extremely important debate and I hope very much that them out of eligibility under the means-tested ESA. the Minister will be able to come back fully with I turn back to the policy costings document of answers to my questions. October 2010. Under the heading, “Uncertainty”, we read that the migration from IB to ESA was the cause Baroness Thomas of Winchester: My Lords, at this of particular uncertainty. We now know that a high stage, I am not going to go into all the arguments proportion of IB claimants are being found to be fit about the time-limiting of ESA to one year. My noble for work as a result of the migration to ESA, in spite friend Lord German will address the main issues in a of appeals. I therefore ask my noble friend whether the short while. I shall speak to my Amendment 72A to Government can now start to quantify savings that my noble friend the Minister’s Amendment 72, the might be made on the ESA bill, in spite of an increasing purpose of which is to question the whole business of JSA bill—given high unemployment—and whether the retrospective nature of this provision. Under this they will consider reverting to their original plan and part of the new clause, the clock has already started drop the retrospective nature of this clause. ticking for existing claimants, regarding their entitlement We all know of the need for the Government to cut to contribution-based ESA in the work-related activity public spending by an eye-watering amount as soon as group rather than in the support group, who have been possible. The Government’s argument may be that receiving the benefit for 12 months or more. For them, JSA is time-limited, so why not ESA? However, in my their claim will stop as soon as the Bill becomes law, view, a claimant’s health is a much more emotive which is estimated to be April of next year. By starting subject for their employment—or lack of it—and being the clock well before Parliament has made its decision ill can be a very expensive business. Using retrospection on the Bill, the Government seem to be acting like a in this way, when it directly affects someone’s income private insurance company that changes the rules of in an unforeseeable way, seems to be thoroughly bad someone’s policy after they have made the claim. practice. Is it really good governance to cut massive However, this does not seem to have been the plan corners by bringing in this policy in such haste? in October last year. If one looks at the Spending Review 2010’s policy costings, published in October 4pm last year, on page 6—it is repeated in the Library Lord Patel: My Lords, I thank noble Lords who briefing pack on the Bill—it is stated at the first bullet have supported my amendments. There are three point that, amendments in my name: one to ensure that any “for existing contributory ESA customers, the time limit will apply at the point they reach one year including the assessment period of time-limiting contributory ESA restarts phase. Those with a claim duration of one year or more when following any period a person spends in a support legislation comes into effect will have their benefit time-limited group, one to ensure that the assessment phase is not immediately and will have at least 12 months to prepare for the included in any time limit of contributory ESA, and change”. one to ensure that time-limiting contributory ESA for Perhaps the Minister can throw some light on why and those in the WRAG is not applied retrospectively. when the Government changed their minds and decided Many groups, including Macmillan, Disability Alliance to make this provision retrospective—thus allowing and others, oppose the introduction of a 12-month hardly any time at all for some claimants to prepare limit to the amount of time someone is able to claim for change. Just to be clear, someone whose claim contributory-based employment and support allowance started in April this year may find by the time the Bill for those in the work-related activity group. Macmillan, becomes law in April next year that their claim will the Disability Benefits Consortium and others in the cease immediately. wider disability sector oppose the principle of time Parliament has always deplored retrospective legislation. limiting ESA. People with a disability or illness who In 2009, the Constitution Committee of your Lordships’ have paid into the system should be able to receive House, in its report on the Banking Bill, drew attention support for as long as they meet the eligibility criteria to the need for there to be, for ESA and are unable to work due to their condition. “a compelling reason in the public interest for a departure from Clause 51 amends the Welfare Reform Act 2007 to the general principle that retrospective legislation is undesirable”. introduce a 12-month limit to the amount of time a At least the letter to claimants that was sent out person is entitled to contributory ESA for those in the recently by the DWP is headed: WRAG. In my view, Clause 51 should be removed “Possible changes to your ESA”, from the Bill. Removing this clause would ensure that and states that the changes the Government want to disabled people would continue to receive critical financial make have not yet been approved by Parliament. The support for as long as their disability or long-term letter continues by providing the ramifications of the condition limits their ability to work. GC 9 Welfare Reform Bill[8 NOVEMBER 2011] Welfare Reform Bill GC 10

The Government’s own figures show that 94 per towards work. That can include training, education or cent of people in the WRAG will need ESA for longer condition management. Claimants who take the agreed than 12 months. Those affected, including 7,000 cancer steps to return to work should not be penalised simply patients, will lose up to £94 a week in vital support. because they need longer than one year. The Government’s proposal is based on their objective Many disabled people will simply not be fit enough to make savings. However, they have provided no to return to work after just one year. For example, evidence to demonstrate that a 12-month time limit is people with cancer will often experience side-effects of reflective of the amount of time people in the WRAG their condition and treatment, such as severe fatigue need in order to be able to return to work. or depression, for many months and in some cases The coalition agreement promised, I believe, to years, even after their treatment is finished. People protect the vulnerable from spending cuts. In his first with cancer face a range of barriers that impact on party conference speech, the Prime Minister last autumn their ability to return to work. They can experience said: debilitating physical and psychological effects from “People who are sick, who are vulnerable, the elderly—I want cancer and its treatment, including severe pain, fatigue, you to know we will always look after you. That’s the sign of a nausea, fever and diarrhoea. The majority, 53 per civilised society, and it’s what I believe”. cent, are not advised by medical professionals about It cannot be right for the Government to propose such the impact of their cancer diagnosis on their working a significant policy change without providing evidence lives and how they can manage their condition. They that the measure is appropriate and reasonable. Can are not routinely offered the range of back-to-work the Government publish evidence to demonstrate that services they need, such as counselling, retraining and a 12-month time limit reflects the likely needs of workplace advocacy. They are less successful in securing people in the WRAG? What organisations or experts workplace adjustments to which they are legally entitled were consulted before the decision was taken to introduce and which would help them return to work. This is a time limit for contributory ESA? likely to be linked to the fact that just 43 per cent of The time limit will be imposed on people who are in employers know that people with cancer have legal the WRAG. Those in the WRAG are people who, protection against discrimination. following a work capability assessment, have been Means-testing thresholds are such that thousands found to be not fit for work due to their disability or of people will lose all their ESA if their partner earns illness. While those in the WRAG are expected to as little as £150 a week. The Government’s own estimates carry out some work-related activities in order to help predict that 700,000 people will be affected by time-limiting them return to work, they are still considered to be not by 2015-16. Of those who actually lose out, 51 per fit for work. If following the WCA they had been cent are in the lowest third centile for income; the found to be fit for work they would be ineligible for average drop in income would be £52 a week, but for ESA and placed on jobseeker’s allowance. those in the lowest centile—the lowest third—this People in the WRAG could still be severely disabled figure is £35 a week, a significant amount of money or disabled, as is the case with people recovering from for people struggling to make ends meet. What estimate aggressive cancer treatment and other debilitating has the department made of the number of people conditions. I have one example. Martin was diagnosed who will fall into poverty as a result of time-limiting with primary progressive MS in February 2007. He contributory ESA? continued to work until November 2009, albeit with Furthermore, people who are currently covered by difficulty. He cannot walk or stand up, has incontinence special rules and can reasonably be expected to die problems and suffers badly with fatigue and muscular within six months are automatically placed by the weakness in his legs and back. Martin recently received support group and will not be affected by time-limiting. a letter from the DWP outlining how the Government However, people who have a terminal diagnosis but are seeking to change the rules of ESA and impose a who are expected to live for longer than six months time limit on the benefit. He said: currently can still be placed in the WRAG and will “The real sting in the tail is that the ‘clock’ starts ticking from therefore be subject to time-limiting. This means someone the date you first ever started receiving the benefit. In my case that who has a prognosis of two years and is placed in the is since June 2009, so some 27 months, so in their eyes I am WRAG could lose their support after one year, even 15 months over the limit! Therefore, my payments would stop though they may have only one year left to live. Many immediately once the policy comes into force next year”. of these people will not go on to claim a pension and Poor old Martin. What is he going to do? therefore may receive only 12 months of ESA for all Currently, no one is placed in the WRAG indefinitely. their national insurance contributions. People who Only those who meet the strict eligibility criteria for lose their contributory ESA due to time-limiting will ESA and are unable to work will be able to continue to not be able to claim contributory ESA if they have receive ESA. People in the WRAG can be called for an subsequently become terminally ill and are covered by assessment at any time and will lose the benefit if they special rules. This is despite the assurances given by are found fit to work. The government proposals will the Government that people who are terminally ill will affect only those vulnerable people who are too unwell not be affected by time-limiting. to work. The vast majority, patients with cancers and The Government have claimed that there are alternative others, want to work if they are able to and do not means of support available for those who lose their need an incentive. Unlike incapacity benefit, the WRAG ESA, such as housing benefit or tax credits. However, or ESA is clearly focused on supporting people into these are dependent on personal circumstances and work and receipt of the benefit is conditional on many cancer patients will be ineligible. For instance, a claimants taking agreed steps on activity to move couple without children who own their home will not GC 11 Welfare Reform Bill[LORDS] Welfare Reform Bill GC 12

[LORD PATEL] The noble Lord, Lord Patel, speaks from his be eligible for housing benefit and they will qualify for considerable experience as a clinician, particularly with tax credits only if the working partner works more regard to cancer patients. The cause of cancer patients than 30 hours, which may not be possible due to has also been well served by Macmillan Cancer Support, caring commitments. My question, therefore, is: can which has done so much to bring this issue to public the Government publish evidence to demonstrate what attention and to brief noble Lords. I shall not focus on alternative means of support is available for people this particular group because I cannot possibly bring who lose ESA and give the number of people who are to the matter the same level of expertise as that of the eligible for this support? noble Lord. Instead, I shall discuss some of the wider For cancer patients, financial worries are second implications for our social security system, including only to worries about their condition and treatment. the gender implications of relying on income-related I have serious concerns about the impact that time-limiting ESA as an alternative to contributory ESA. will have on the psychological well-being of sick and In the other place, the Minister of State told the disabled people who might already be experiencing Public Bill Committee: depression and anxiety. This will also put pressure on “It is a long-standing principle of our contributory system mental health services funded by local authorities. and the JSA system that we allow those who have paid in to draw What assessment have Ministers made of the impact back out money for a period of time, but that there is a limit to that time-limiting will have on health and social care the amount that they can draw out again”. budgets and services, and what discussions have they He continued: had with the Department of Health? “There has been an enormous inconsistency between JSA and Calls for a rethink on the time limit have not been ESA and its predecessors, in that somebody who manages to get themselves on to our sickness benefits is there indefinitely, whereas limited to people with cancer and certain disabilities. somebody who is on JSA is there only temporarily. That creates a Concerns about the impact of the proposal is widespread. perverse incentive in the system”.—[Official Report, Commons, I noticed that at the Liberal Democrat conference in Welfare Reform Bill Committee, 3/5/11; col. 650.] September delegates voted unanimously to make it Lib Dem party policy to oppose an arbitrary time limit on ESA. I wonder what discussions the Minister 4.15 pm has had with his Lib Dem colleagues about alternatives It is also a long-standing principle of our contributory to the 12-month time limit following the Liberal Democrat system that those unable to take paid work because of vote at the party conference, about which no doubt sickness or disability should be able to rely on the Liberal Democrat noble Lords will correct me if I am contributory benefit system so long as they are in that wrong. position. That support was never intended to be It is to be welcomed that the Government have temporary. The impact assessment tells us that time- recognised the need to make changes to the work limiting is about: capability assessment, and I commend them for at “Embedding a culture that ESA is a temporary benefit for the least recognising that. However, I look forward to the majority of claimants”. Government’s proposal to make more widely available Yet, as noted by the noble Baroness, Lady Morgan, the automatic entitlement to support groups which is and the noble Lord, Lord Patel, the Government’s currently available to groups such as patients receiving own figures show that the great majority of recipients intravenous chemotherapy. As I said, I commend them in the WRAG will still need ESA after a year. Surely for that. However, the necessary changes will take time the point of ESA is to address the perverse incentive to be implemented, and that will not improve the mentioned by Mr Grayling, in so far as it exists, situation for cancer patients who have finished their through the separation out into the support group and treatment and need sufficient time to recover before WRAG, and the transfer of those able to work they are well enough to return to work. immediately to JSA through the work capability It is widely recognised that the WCA needs to be assessment. The noble Lord, Lord Patel, spoke about significantly improved before it is fit for purpose. The that. The additional imposition of an arbitrary time introduction of a 12-month time limit for ESA will limit on top of the work capability assessment is a compound the existing problems relating to the WCA. form of double jeopardy. Moreover, it was my Instead of taking away support from sick and disabled understanding that those not eligible for income-related people who are still unable to work, the Government ESA would no longer be able to access the support to should be working with disability organisations to find work through the work programme provided design back-to-work programmes that offer personalised through contributory ESA. At the briefing that we support appropriate to customers’ needs. I sincerely received, I was told that they could access that help hope that the Minister will be sympathetic to the cause voluntarily, although it is possible that I misunderstood. and that we will have some proposals from the I would be grateful if the Minister would confirm that Government that are encouraging to them. people who lose all entitlement will be able to access the work programme, should they so wish. If not, that Baroness Lister of Burtersett: My Lords, I am pleased is surely a perverse outcome unless the Government to rise in support of the vital amendments tabled by do not care that this group’s chances of finding work the noble Lord, Lord Patel, and in opposition to the could be diminished if they no longer have to provide Question that Clause 51 stand part of the Bill. I am benefit for them. Also, can the Minister clarify the afraid that this will be another of my rather long situation with regard to credited contributions for speeches but this is such an important issue that it is those who cease to have any entitlement to ESA essential that we spend time on it. at all? GC 13 Welfare Reform Bill[8 NOVEMBER 2011] Welfare Reform Bill GC 14

I remind noble Lords of another long-standing She was happy for me to use anything that she said principle in our social security system, the contributory anonymously as, she said, principle. That principle was reviewed by the Social “it would make me feel as though I, and all of us, have a voice”. Security Select Committee in the other place in 2000; I am sure that the noble Lord, Lord Kirkwood of I cannot be that voice but I can do my best to act as Kirkhope, will remember the report well as he was the a conduit for it and the voices of some of the other much respected chair of that committee at the time. It disabled people who have written to me and, I know, started with the observation that the contributory to other noble Lords. This woman asked, “What do principle, we do then”, once the time limit is applied? The Government’s answer, of course, is to claim income-related “was the cornerstone of the post-war social security settlement, intended to provide social protection for all through a collective ESA but, as the gender impact assessment shows, fund to which everyone contributed”. about a third of men and 46 per cent of women—nearly half—will not be eligible. It reassures us that these The report continued: women, “Today that system is being eroded”, “will generally either have a working partner or capital over and the committee’s investigation, £16,000 so will not be left without income”. “grew out of an unease that the system of National Insurance is However, where they have to depend on a partner, disappearing by default”. they will be left without an independent income. These Clause 51 represents a significant further stage in that women, and quite a few men, will have their financial process in this the centenary year of the National autonomy eroded. As I said at Second Reading, this Insurance Act 1911, which first established the matters to people. An individual benefit paid in one’s contributory principle in this country. own right provides women with a degree of economic Universal credit policy briefing note 4 acknowledges power and control. Citizenship rights which come at that: second hand, via a partner, are compromised. As an aside, I am alarmed at hints—fuelled by a recent “Claimants recognise and strongly support the contributory Written Answer in the other place to Karen Buck principle and the Government believes it is right that people are MP—that in some cases any contributory benefit able to access support after paying into the system”. entitlement might be paid through the universal credit Yet they are now reneging on the contract made with because this could mean that a woman’s contributory citizens through the national insurance system. benefit, for which she has paid contributions, is paid The conclusion to the Social Security Select to her partner. I would be very grateful if the Minister Committee’s report was couched in terms of the purpose could say categorically today that this will not happen. of social security and what it is trying to achieve. It I return to the matter in hand. Mind argues that stated that, non-means tested benefits, “social security has a wider role than simply providing a safety “for people with long-term mental health problems are an essential net for the poor… as social insurance”, part of the system. Many such people rely on personal and it, emotional support from partners to be able to live in the community. Making partners wholly responsible for their financial support as “should help protect individuals against the adverse consequences, well seems both unjust and self-defeating”. including a drift into poverty, as a result of unexpected life events such as illness or injury”. It goes on to say: The more policy talks about, “It seems highly likely that the change would result in family breakdown in many cases and increased rates of hospitalisation “targeting support on the poorest”, and institutionalisation”. as the impact assessment does with reference to the Among letters I have received from disabled people policy objectives behind the measure, the more social who are extremely anxious about this change are two security’s wider role is undermined. which are illustrative of cases that are supposedly In Committee in the other place, the Minister of unproblematic because of the presence of a working State explained that the decision to impose a time limit spouse—in these instances, the wife. One is from the after a year was, wife of a 49 year-old man who has been in full-time employment for over 30 years. She is 45 and has also “not based on an estimate of a typical recovery time”. been in employment for nearly 30 years. Last year her Here we have a clear admission that the policy was not husband was diagnosed with a slow-growing brain based on medical evidence. Instead it was based, tumour and a benign tumour in the ear. Following an “on the principle that these are people who have other means of operation, he has been unable to return to his former financial support”.—[Official Report, Commons, Welfare Reform employment as a pipe-organ builder because, she says, Bill Committee, 3/5/11; col. 652.] the illness, I am not quite sure that that is a principle, but never “limits his strength and stamina and overall capability of the use mind. So much for the social protection that the of machinery and scaffolding”. contributory system was supposed to provide. He has applied for countless part-time jobs and is At Second Reading, I quoted from a letter that I helping out at the local Barnardo’s shop and animal had received from a disabled woman who said that she sanctuary, felt, “to preserve his work ethic and to gain new experience with the “desperately worried and frightened for my future”. hope of maybe gaining employment in a less physical position”. GC 15 Welfare Reform Bill[LORDS] Welfare Reform Bill GC 16

[BARONESS LISTER OF BURTERSETT] “my life revolves around trying to be as well as possible. I cannot Her husband has received the famous—or infamous— stress enough how frightening it is to feel that you are not able to letter informing him that his ESA may stop in April work, will not be put into the support group”, 2012. She writes: she fears, “We were shocked at this time limit”, “and will be left to use up everything you have until eligible for means-tested benefits … My medicine prescription has been because someone who, as in her husband’s case, increased 4-fold and been supplemented with extra medication “has contributed all his adult life, is given such a short time to get since the time limit was announced”. his life back on track after such a serious illness. I may add an As someone who has campaigned and argued for a illness that is never going to get better; he has just got to learn to adapt his life to living with his condition and … doing his utmost more inclusive social security system for 40 years, I to battle through this and get back to some ‘normality’. If this feel that I have to use the luxury of being a Back-Bencher plan goes through, my husband and I am sure many like him will to oppose this clause on principle. My noble friends lose his ESA and because I myself am”, on the Front Bench know and understand my position. in full-time employment, However, if time-limiting goes ahead, it must be done “he will not be able to make a claim on earnings based”— on the fairest possible basis. Therefore, I hope that the I think that she means income-related, of course— Minister will look favourably on the proposed amendments in the name of the noble Lord, Lord “thus adding to his problems and no doubt putting back his Patel, which would aim to achieve that in three main recovery”. ways. The second letter is from a blind man, who is married with a seven year-old daughter and who used First, I hope that action will be taken so as not to to work as a psychiatric nurse. He sees no prospect of penalise people with fluctuating conditions who go on finding work at present. He writes that, to the support group after the contributory ESA has expired. I know that that is a particular concern of “removing my benefit will affect my whole family placing a Macmillan Cancer Support. Secondly, I could not greater financial burden on my wife. It will also damage me as an individual. If I lose this benefit I have concerns about my family’s believe at first that the rule would be applied retrospectively. ability to continue to pay”, The case against that has been made extremely eloquently household bills, by the noble Baroness, Lady Thomas of Winchester. As a result of this, the letter has gone out to existing “and the cost of raising a child. At best, I will become totally dependent on others. I would actually be better off financially recipients. According to one who wrote to me, far living alone. Over recent months benefits have been referred to as from providing the reassurance mentioned by the Minister a trap, in my case this is far from the truth. It is a much needed in his opening remarks at Second Reading, that will, part of my family’s income. This situation is causing unnecessary she warns, “strike fear” into the hearts of those affected. stress to me and other blind people. I hope you can use your Could the Minister state whether there is a precedent position as a member of the House of Lords to stop these for such a letter to go out before Parliament has proposed changes going through”. agreed such a controversial change? Amendment 75A, which we will hear about in a Thirdly, I was also dismayed when I realised that moment, should help people in this position, but it the 13-week assessment phase is included in the one-year will not address the concerns raised by another person time limit, which in effect means that full contributory who I have heard from whom I want to quote. I received ESA will last for a year minus 13 weeks. In Committee a long letter from a woman who described herself as, in the other place, the Minister of State agreed to look “a disabled person with a long term mental illness”. again at this issue in response to concerns expressed by She wrote that the news of the time limit, a Liberal Democrat MP. What was the outcome of “came as a massive shock to me. I have found it so hard to come this further look? According to a Written Answer that to terms with the fact that the government can be so cruel”. I received, if the assessment phase were excluded it She said that, would reduce the savings by £100 million in 2012-13, “throughout the length of time I have been in receipt of incapacity rising to £120 million by 2014-15, but falling to only benefit, I have tried my utmost (and so far succeeded) to survive £40 million by 2016-17. Here is the nub: this clause is without recourse to means tested benefits. This has included, in not about making social security fairer; it is about the past, paying the whole of my rent … It is of the utmost saving money, as my noble friend Lord McKenzie has importance to me not to have to rely on means-tested benefits already stated. because my housing and support needs are complex”. I have some sympathy with the Minister. He is This is a 50-year old woman with complex mental extolling the virtues of universal credit at every health problems which she has been advised will last opportunity, yet universal credit is in danger of being her lifetime. She clearly gets stressed very easily— contaminated by sharing a Bill with unfair, cost-cutting measures such as this one. I hope, therefore, at the very least, that the Minister will think very hard about how 4.27 pm to mitigate this unfairness through the kind of amendments before us. Sitting suspended for a Division in the House. Baroness Meacher: I rise to speak to Amendments 71M, 71N, 71P, 72A and 73. First, I thank the noble Lord, 4.37 pm Lord German, for kindly allowing me to speak a little Baroness Lister of Burtersett: I was just quoting earlier than I had planned because I have to leave the from a letter I received from a 50 year-old woman with Committee briefly at 5 pm. I apologise to the Minister complex mental health problems. She wrote that, and the Bill team that I have not been able to attend GC 17 Welfare Reform Bill[8 NOVEMBER 2011] Welfare Reform Bill GC 18 the briefing sessions. They are a wonderful idea and I 4.45 pm had hoped and assumed that I would attend every one, Another approach is that of Amendment 71N, but life has not been quite like that. tabled by the noble Baroness, Lady Morgan. In terms of cuts, squeezing and reducing expenditure, this would I also apologise for not having had quite the time I at least be a very cost-effective way forward, assuming would have wished to prepare for this debate. Having one could identify certain groups who would clearly said that, I have major concerns about the plan to need ongoing support. I know that the Minister could limit entitlement to contributory ESA to one year. I perfectly well identify lots of groups of disabled or understand from the CAB service that the DWP has sick people who should be exempt from the 365-day estimated that, of those on contributory ESA and in provision. I do not think I need to challenge him on the work-related activity group, 94 per cent will remain that; I know that he could do it. The added advantage on the benefit from more than a year, so it is estimated of this approach is that it would cost less than the that by 2015-16 700,000 people will be affected by extension of 365 days to all. Certainly, there are some limiting contributory ESA. Some will lose their entire obvious groups. The noble Baroness, Lady Morgan, benefit payment, currently worth £94.25 a week. I referred to cancer sufferers with a limited life expectancy, know that the Minister will correct me if that is as did my noble friend Lord Patel. How can any wrong. It sounds astonishing. The rationale for this Government justify terminating someone’s contributory change is, I suppose, twofold. First, it is to give maximum benefit right towards the end of their life when they incentive to people to return to work and, secondly, it have contributed all their life and, as my noble friend is to save taxpayers’ money. I will refer to those two Lord Patel said, will not even claim a pension? They points briefly. are a terrific bargain to the state. I had not thought of that point but it is a powerful one about anyone whose It is particularly difficult to support the employment life expectancy is limited and will not be claiming the incentive argument at present, when even able-bodied pension to which they might have contributed for people and remarkably highly skilled people are finding 40 years. I think we can all agree on that. it very difficult to find work. As we said, we think that I turn to my passion, although it is no greater than about 94 per cent of those with disabilities will remain my passion for the groups I have already mentioned. on this benefit beyond their contributory entitlement. Let us take just one case to illustrate the situation of I would welcome the Minister’s views on the fairness those with mental health disorders. Again, there are of this provision in relation to an individual with— groups within that category that you could pull out obviously in terms of my own concerns—ongoing and and say have to be exempt from this provision. Tom fluctuating symptoms. He is very keen to work and suffers from obsessive compulsive disorder and depression. does not need any incentive, but no doubt he will be He is almost entirely housebound. His condition leads given lots of incentives through the mechanics of the him to perform daily rituals in which he constantly work-related activity group. But the fact is that he checks that electronic appliances are turned off and cannot persuade an employer to take him on. I know that doors and windows are shut and locked. He is that the Minister is aware that there are very large compelled to clean surfaces in his home time and numbers of people on ESA who want to work and again, through the day and night. He gets very little cannot persuade an employer to take them. In other sleep and has all sorts of resulting and related problems. words, these people are very much the deserving Tom has support or treatment three times a week from unemployed. They used to be called the deserving his mental health community team. Anyone who receives poor. I happen to know hundreds of people personally support from a community mental health team three who fall into that category. I would be grateful for the times a week is very severely ill. The resources do not Minister’s views on that. run to that for almost anybody. No doubt a psychiatrist or psychologist could give a good estimate of the If we consider for a moment the need to protect minimum length of time before which this person taxpayers’ money, I happen to believe that taxpayers could not possibly be considered for employment. would recognise that this group—people who are disabled They probably could not give a maximum time but and sick on benefits—should be entitled to their benefit, they could certainly give a minimum. For someone having contributed, many of them, for decades. Politically, like this, my guess is that it is way beyond a year. I do not believe that this is something that one can possibly justify. It is very hard to argue that savings to I should like to ask the Minister whether the option taxpayers’ money should be made with this particular of identifying groups for exemption from this provision group—sick and disabled people—rather than at the has been given careful thought by the department. If expense of other groups in society with much broader this has not been done, might he take this back and shoulders. There are all sorts of cuts that a Government have some work done to see whether some sensible could make that would seem much fairer than this one. decisions could be made in identifying such groups before we come back on Report? Amendment 71M, tabled by the noble Lord, Lord The other amendment to which I want briefly to McKenzie, would at least be a great deal fairer. In a refer is that of the noble Baroness, Lady Thomas, sense you could say that it is all rather arbitrary— which raises a moral issue. The only possible rationale 365 days or some other number of days. Really, it is for making the introduction of a 365-day ESA entitlement just not justified to cut contributory benefit at any limit retrospective is to save money. As the noble stage for many of these people, but I suppose that that Baroness has argued, there is a very strong convention would be better than the alternative. that no legislation should be retrospective. Is it not GC 19 Welfare Reform Bill[LORDS] Welfare Reform Bill GC 20

[BARONESS MEACHER] prognosis as to how long they are likely to remain extraordinary that we should break that very strong there—this is the basis on which referrals to the work convention to deprive sick and disabled people of programme are made, for example—does he accept money? I find this very difficult to take. I am sure that that that is a natural and clear point for reassessment? we will come back to this on Report. I look forward to the Minister’s comments. Lord German: It is a point of assessment, but the problem is that people’s medical conditions can alter—they Lord German: My Lords, I shall speak to can get worse or better, and there is the issue of Amendment 75A in my name. I start by saying that fluctuating conditions that noble Lords have also the important thing is to get the work capability recognised. The point that I am making is that there is assessment right. That was a point made by the noble a problem with a single point, and you need to have a Lord, Lord McKenzie. It is important that people are progression of points if you are going to use medical accurately placed in one or another of the categories. assessment. That means that rapid progress needs to be made with The other approach that has already been referred the improvements that have been suggested by and are to in this debate is exemption by groups. Once again, being adopted from Professor Harrington’s report. It identifying groups of people is very tricky because seems that the work capability assessment is a crucial people can fall into different categories within a particular first part in ensuring that the whole system works group. There is also the danger that, if you identify effectively and properly. one group, another group might be left out. In this The purpose of this amendment is to protect the amendment, we are therefore proposing to look at most vulnerable and the poorest, and to take a slightly ways in which—while we cannot wreck the Government’s different approach from those suggested so far. I should proposals to make savings and reach the overall budget like to start by looking at the context of two words targets that they have set—we can ensure that the most that many noble Lords have used so far in this vulnerable are protected from the effects of any time- discussion—“arbitrary” and “temporary”. There is a limiting contributory ESA. This essentially means difference. The noble Baroness, Lady Meacher, referred protecting the poorest and the sickest. The objective, to any date being arbitrary. It is indeed an arbitrary therefore, is to focus the protection of those who are decision, and if you have some form of illness that will least able to support themselves. I know that that aim take you beyond 720 days or whatever, then it is an is shared by the Government, and we recognise that arbitrary cut-off date one way or the other. That is our they are not time-limiting those in the support group, principle concern—the provision does not address the or even those on income-related ESA—to which I issues relating to the people concerned. shall return in a moment. I of course recognise that there is an issue to which However, we are not fully convinced of the thresholds many noble Lords have referred regarding the cost-saving at which income-related ESA apply, or that they are measure in this proposal. I should like to ask the set at a level that will adequately protect low-income Minister why the savings now being predicted are claimants—especially those with working partners. It between £1.3 billion and £1.4 billion, given that in the is interesting to note from the impact assessment that comprehensive spending review the Chancellor of the 62 per cent of all those who would not be able to claim Exchequer said that the savings would be £2 billion a income-related ESA at the end of 12 months could year. This is a question that my noble friend Lady not do so because of their employment. I want to Thomas raised—to try to identify why there was a come back to that issue of income. I know that we are change of procedure from the announcement made by talking here about a form of means-testing but, even the Chancellor of the Exchequer, who stated that that so, we are talking about the main reason why people’s there would be no backdating and that the provision payments cannot continue. would not be retrospective, when this proposal is for We know that the Government are keen to ensure some form of retrospection. that there are no disincentives to work and that work will always pay. I am also aware that the Conservative When you examine the ways in which you can have Party in the Government wants to strongly support a non-arbitrary system that deals with people’s needs, family ties through the tax and benefits regime. As and when you look for a system that in our view deals such, it seems odd to us that the narrowness of the with the most vulnerable and poorest in our society, ESA means test risks undermining both these objectives, there is a variety of ways in which you can do it. since it can present an incentive for a certain group to Obviously, through medical assessment, you could give up work. Paragraph 24 of the impact assessment potentially re-examine people at some stage and say states: whether their medical condition had improved or was “Those with the most incentive to give up work are partners changing, or whether the condition would require that earning less than £150 a week, as their net income could potentially the payment should continue. The problem with only be a few pounds less if they gave up work. An indicative reassessment is: when do you reassess and how long analysis shows that 10% of all partners are in this position”. does that take? If you understand the meaning that I If that is the case, these are the 10 per cent who are have already put on the word “arbitrary”, then, whether obviously the poorest and the most threatened by the it is 18, 13, 12, nine or six months, you will see that it change which is before them. With that 10 per cent of really is a question of the individual’s circumstances. people in mind, this amendment seeks to set in law a floor beneath which the means test cannot apply. We Lord McKenzie of Luton: I am sorry to interrupt are probing the Government to see whether they think the noble Lord, but if the process is that when someone that the test, as currently applied, is adequate to is put into the work-related activity group there is a protect the lowest income households. GC 21 Welfare Reform Bill[8 NOVEMBER 2011] Welfare Reform Bill GC 22

The amendment is set in terms not of the hours such as arthritis or stress from which they were presumably worked, because that is quite difficult to assess, but of intended to get better as time went on. Then, after the the actual paid income. We know that the new universal 12 months were up, they developed a life-threatening credit system will enable the DWP to indentify the condition. Both could have placed them in the support income of the partner. I am attracted to an income-based group—perhaps not the first condition, but certainly level because it is a clearer marker of actual income the second one—but they would not be eligible. They than hours worked. are eligible to get the ESA that they expected, but they Nevertheless, we would like to hear the Minister’s have already exhausted those 12 months of contribution view on alternative methods of measuring income for credits in the first year. Perhaps the Government need a means test. We have chosen in this amendment the to rethink the wording of the statement that those income tax personal allowance threshold divided by 52, in the support group will always be supported. There for simply making it a weekly income measure rather will be examples where people will fall out of that than an annual. This is an external marker and thus circumstance. less arbitrary than plucking a figure from thin air to Noble Lords will note from debate on this amendment write into legislation. If you divide the current rate of the impression that the Government need to rethink £7,475, the figure comes to £143.75 a week, which is some of the ways that this will impact on the poorest very close to the £150 figure mentioned in paragraph 24 and most vulnerable in our society. We certainly do on page 11 of the Government’s impact assessment. not want to be a Government who provide a terrible This level therefore almost equates to the £150 figure. time for people in the last months of their lives. The The Government’s own assessment notes that this is amendment proposes a way for the Government to set the level below which there exists a disincentive for people a bar at an appropriate level to the financial circumstances, to work. We are trying to address that disincentive. but which could be improved over time. It will give the We—those who tabled this amendment—cannot be support that is needed to the most vulnerable. committed to a particular bar or level to set. But I am keen—I hope noble Lords will agree—to set in place an architecture for the future. My noble friend the Baroness Morgan of Drefelin: Before the noble Lord Minister has used many times the argument that sits down, he said that there was a sense that the work the taper can move with time as circumstances permit, capacity assessment needs to be right and that he was but I want a means-test bar from which one can thinking about arbitrary cut-offs and temporary fluctuate as government income increases. We are classifications. Is he saying that, in order to get this aware that the Government have expressed the intention right, we have to look again at the support group? to raise the personal allowance threshold and we are Because of the functional impairment or prognosis of very pleased with that. But it seems to us that if the the people whom I am concerned about—those who Government think one should keep one’s earnings and are known to be facing a terminal prognosis of two not lose them to the taxman below a certain level, the years—perhaps they should automatically be in the same logic might also be applied to earnings and to support group. If that were the case, there would not one’s partner’s ESA. I welcome the Government’s be a problem response to the future impact of this amendment in light of the changes to the tax threshold which are Lord German: I can answer that question by simply before us in the next few years. stating that the work capability assessment, if done There are two other issues on which I should like to accurately enough, should place people in the most probe the Government. If they were to look at what appropriate group. Of course, one of the questions in happens immediately after the 12-month period is up, the work capability assessment is, “What are you and if the income-related ESA is not available—because capable of?”; “capability” is in the title. If you are of the bar or the fact it is means-tested, or for any capable, with an illness, to do some work, and if you other reason, capital perhaps—will the Minister allow know that that will diminish over time, logic tells me people who would otherwise have been eligible for that you need to think again about the way that that income-related ESA to have the national insurance group of people is affected by such a proposal. contributions credits applied to them? That would In a sense, what it means is that a clear definition allow them to get the passported benefits that came between support on one side and being work ready on with that purpose and therefore additional benefits the other is not necessarily the only appropriate distinction would flow. At its minimum level, that would be a level you can make. It is part of the issue about having clear of support that people could look to. cut-offs and clear decisions of this sort. You need to be flexible for the people who need it most and whose circumstances will have changed. 5pm The second probing question that I have for my noble friend is about the protection of the Baroness Hollis of Heigham: I shall be brief because support group. The rhetoric behind the Government’s we have had some very full and powerful speeches announcement has always been that we will protect from people who are intimately involved and who have people who are in the support group. Already, noble specialist knowledge in this field. Like others, as I am Lords have mentioned what happens when you come sure my noble friends will go on to say, I would prefer back to the support group for a second time. Essentially, not to see this clause in the Bill at all. I very much someone could have a change of claim where for a support the whole range of amendments that have year under the present proposals they had a condition been tabled. GC 23 Welfare Reform Bill[LORDS] Welfare Reform Bill GC 24

[BARONESS HOLLIS OF HEIGHAM] Lib Dems, who have come up with a decent and However, I want to add my particular support to ingenious amendment addressing a very real problem— Amendment 75A. This is something that many of us though it is not sufficient to deal with all the problems referred to at Second Reading. It is the amendment that disabled people face on the ESA, which need that, leaving aside the issue of the disabled person, other amendments—will not retreat from the courage most protects the position of the other partner in the of their convictions and will pursue this through. relationship, and it is therefore consistent with universal credit. In my view, it is the amendment that, if the Minister seeks to retain consistency with universal Baroness Gibson of Market Rasen: My Lords, perhaps credit, he will do his best to support. Basically, we are I may explain why I am briefly entering the Bill at this again running the sort of arguments that we were stage. I did not speak at Second Reading and was not having over second incomes and disregards, where the planning to speak in the debates but I have chosen to question was, “What is the return to work?”, and the speak today because I received a letter from an old Minister told us that he could not afford to run a school friend. He went to school with me when I disregard, even though the costs of childcare might eat attended Caistor Grammar School in Lincolnshire up the earnings. many years ago. This friend knows a lot about disability because he is himself disabled. In mid-life, he went Here, we have the same problem in an even more into hospital to have what was expected to be a very aggravated form because here, above all, we need if we straightforward operation but unfortunately came out possibly can to keep the working partner attached to having lost his sight. When Derek wrote to me, I took the labour market. We know that if somebody needs his letter very seriously and I wish to speak briefly on to care for more than about 20 hours a week, they his behalf today. probably cannot combine that with anything other than a part-time job. The ingenuity of the Lib Dem My friend is very worried indeed about Clause 51, amendment is that it allows for something like 24 hours particularly about the one-year time-limit on contributory a week at minimum wage or thereabouts, which is ESA, which we have heard a lot about this afternoon, pretty much at the tipping point where somebody and the replacement of the working-age disability leaves a full-time labour market and can manage only living allowance. With regard to the limit on contributory part-time work in order to make a generous and ESA, he points out that it takes no account of the graceful contribution to caring responsibilities. often very complex issues that disabled people need to address in preparing for and finding work. I understand If the Minister cannot accept the push of this that the Government have estimated that 94 per cent amendment—I will not say “understand” because I of those on ESA and in the work-related activity know that he understands it perfectly well—he will be group would take over a year to find work. That saying to a woman in this position, who may be the would mean that by 2015-16 700,000 people would be working partner: “We are going to make it so unattractive affected and 280,000 could have lost their entire for you to stay in the labour market and work that benefit payment. The new criteria focus on a much you, who may very well be tired because of your narrower range of support than DLA and appear to caring responsibilities, may have financial pressures fail to recognise the barriers that prevent blind and and may yourself have minor complaints, will want to partially sighted people being able to participate fully come out”. It would be infinitely better for her poverty, in society. her health, her connections to the labour market, her sense of self-esteem and her social gregariousness to The Disability Benefits Consortium, which is a have a wider life that we should do our absolute national coalition of more than 50 disability and damnedest to support her in the labour market—even welfare charities and other organisations committed if on only a part-time basis—and ensure that she kept to working towards a fair benefits system, also wishes that money. That is not a huge sum but it would lift to see Clause 51 removed from the Bill to ensure that her, as a parent, out of poverty and keep her in the disabled people continue to receive the critical financial labour market. If her partner’s condition deteriorated, support that they so deserve. The Disability Benefits we might be very glad that she had that earnings Consortium included in its briefing a moving statement capacity behind her. If he died, we should be very glad from a woman who has Parkinson’s disease. She says: that she had remained attached to the labour market “I’ve worked all my life and paid for decades into the system and could, after a period of grieving, re-enter it. If he on the understanding that there’ll be support if I need it. To be told that all of this support could have an arbitrary time limit is got well, and we would expect to attach conditionality both unfair and stressful”. to her, we would be very glad that she had remained attached to the labour market. On all possible outcomes I agree. Clause 51 is very flawed and this would be a of their partnership, it is in our public interest—the better Bill if it were removed. Government’s included—that we keep her attached to the labour market. Baroness Hayter of Kentish Town: My Lords, I am I feel very strongly that we have real problems with not replying on behalf of the Front Bench at this couples’earnings. We have seen that before in amendments stage. My noble friend Lord McKenzie will no doubt moved by my noble friend Lady Lister. Here, it seems do that after the Minister has spoken to his amendment. even more damaging if we go down the parsimonious I am particularly pleased to rise after my noble friend route of trying to peel off every pound that the woman Lady Gibson and want to comment on what the Lord, earns against the partner’s benefit income. I hope very Lord German, said, although he is unfortunately not much not only that the Minister will take this away in his place at the moment. No doubt he can read my and think about it but, if he is unable to move, that the comments at a future moment. GC 25 Welfare Reform Bill[8 NOVEMBER 2011] Welfare Reform Bill GC 26

Like my noble friend Lady Hollis, I very much 5.15 pm support the amendment to which the noble Lord, Along with the Lib Dem conference, this group Lord German, spoke. However, I should think he opposes an arbitrary time limit on how long claimants finds it rather easier to speak to it here today, in the can claim their contributory ESA. A 59 year-old man Committee, than at the Lib Dem conference. I do not who is currently on contributory ESA has written that think it would answer the party’s desire to get rid of it is the only benefit that he can claim because his wife arbitrary time limits. It will, to some extent, help the is working. He has worked and paid into the system very poorest but it does not address the fundamental since he was 15 years of age—that is, for 44 years. issue that has been raised. Now, when his health is failing, he will be left on the As my noble friend Lord McKenzie said in opening poverty line. He writes: the debate, this will affect some 700,000 people. I “It would be better if my wife stopped working then perhaps I should like to talk about just a few of these, particularly could claim income-related ESA—just like any person who has older women with breast cancer who have paid into never worked”. the insurance system for their whole working lives. I I return to Dawn Sheldon, whom I quoted at the quote in particular Dawn Sheldon, who wrote to me. beginning. She says: She said: “I have paid tax and National Insurance since 1976, and always told people I did not mind paying it as it would be there for “I am terminally ill with breast cancer which has spread to the me if I ever needed it. As I was on a low income, it would provide lung. I am in receipt of benefits, without which, I would have no a pension for me in my old age. I will not now be drawing that income whatsoever. Under the proposed reforms, I would have to pension, as I will not be reaching 65. So the Government have find employment. My concerns are that although reasonably saved money there”, qualified, I’d be applying for jobs against other applicants with a clean bill of health and a long life expectancy who would be more as the noble Lord, Lord Patel, mentioned earlier. She attractive than my own CV”. continued: “But to deny myself and other terminally ill patients welfare As has already been mentioned, in addition to benefits? I can only conclude tax and National Insurance is a being ill with the cancer itself, breast cancer sufferers scam”. take very strong medication, sometimes for up to five She is a brave lady because she goes on to write: years, with very unpleasant side-effects. Dawn says “I truly have to say that I am glad to be leaving this world. I do that without benefits she probably would not be able not want to live in a country that will stand by and watch its own to pay her mortgage and fears that she would become sick people suffer; that is not a country I can be proud of”. homeless. I should add that, despite being quite ill, this woman Other breast cancer sufferers have also written to has a sense of humour. After I had exchanged a few me. Similarly, having been on strong medication for e-mails with her, she sent me an additional little note: 18 months, one woman feels that she would be a “I am reassured there are people out there fighting our cause. cripple if she carried on using it. Therefore, she asks In return, when it is time for me to go, I promise you I will be what benefits she should have, and she might come off doing quite a bit of haunting at certain residences in Downing the medication. That is some indication of how dreadful Street”. some of the side-effects are for some people. Another I do not think that there are many people like Dawn. woman writes that she has a lot of pain in her joints at The other people who have written all say much the night. She has an eight year-old, so she is taking same. They make comments such as: whatever she can to be here for him. The consultant “I’ve worked all my life … paid for decades .. expected support said that it is a balance—quality of live versus length when I needed it … now an ARBITRARY time limit”. of life. She says that when she takes her painkillers her Another writes: boss can tell that she is not able to work as well as she “I’ve worked all my life and paid into the system but this does normally. However, she wants to be there to see doesn’t seem to mean anything”. her son grow up. Similarly, MS sufferers in the WRAG will lose These women have asked me to plead with the contributory benefit after a year, even if they have Government not to reduce their benefits. They are paid NI for years. pleased that their tumours have been removed but Therefore, can the Minister tell the Committee, they are not fit and well; they are struggling to keep first, whether he thinks that this is fair and, secondly, going. While they have not yet been diagnosed as whether the Government have given due regard to this being terminally ill, it would be wrong to think that group, whose members have contributed throughout they are able to return to work. They have a choice to their working lives—perhaps for 30 or 40 years—yet make about whether to take drugs to live longer and now find that the help they had anticipated, as an see their children grow up but, with that medication, earned right, is not there when they need it? Have the perhaps be even less fit for work. The question that Government considered other options, such as a longer they pose is: if you were a prospective employer, would period of ESA for those who have, via what they you want to employ someone with a history of cancer thought was a national insurance system, paid their or someone who had to take medication to the point premiums for years and now find that an arbitrary that they could be ineffective in their work—at least, 12-month limit is imposed? The Government have at certain times? These women feel that the new medical said that they want a “something for something” assessment is a “ploy”—their word—so that they can approach and that they want people to take responsibility simply be told what the Government want to hear: for their future. That is what these women thought that they are fit for work, disregarding the reports of they were doing by paying national insurance and qualified medical staff. PAYE. GC 27 Welfare Reform Bill[LORDS] Welfare Reform Bill GC 28

[BARONESS HAYTER OF KENTISH TOWN] What is more, we expect 60 per cent of the people There are other quotations and some have already who leave contributory ESA as a result of the time been mentioned, particularly those from people who limit to be fully or partially compensated by income-related suffer from multiple sclerosis. These people have worked ESA. all their lives and one says that he has reduced his In response to the noble Lord, Lord McKenzie, working hours only to be made redundant. He was that 60 per cent can be decomposed into two sets of moved to the support group when his condition 30 per cent. 30 per cent of those affected are expected deteriorated but is now back in the WRAG only to be to claim both income-related and contributory ESA. told that his benefit will stop next year. He is 51 years So when the time limit applies, they will continue to of age and has a degenerative condition. Having worked receive income-related ESA. The majority will therefore and paid contributions for so long, he considers that see no change to the total amount of ESA received. he is being penalised. He simply cannot understand The other 30 per cent are expected to become eligible why he paid those contributions if it means nothing. for income-related ESA, some of them at the same There are many others in that age group who have rate. They will become eligible for passported benefits, worked in the same job for many years, particularly such as the full housing benefit and council tax benefit manual workers, and who now feel, partly because of and free prescriptions. their age, they will find it really hard to get new 5.25 pm employment. As the noble Lord, Lord Patel, said Sitting suspended for a Division in the House. earlier, the large majority of people who will be affected by this will be in the lowest three deciles. 5.35 pm This is not the time for humour in this debate. Lord Freud: My Lords, I had just begun to address When I was young, I used to sing a song, “It’s the rich the question raised by the noble Lord, Lord McKenzie, what gets the pleasure, it’s the poor what gets the on national insurance contributions. The person who blame”. And it was the bankers and others who did has transferred to contributory benefit from incapacity very well out of the good times. But it is the poor and benefit will be treated as having met the contribution the infirm who are now being asked to pay. conditions from the point of migration. Claimants will be entitled for a year to ESA if they are placed in Noble Lords: Hear hear. the work-related activity group. National insurance credits will continue to be awarded to people who Lord Freud: My Lords, I must start off by saying continue to have limited capacity for work, even if that the contributions of noble Lords today is highly they receive no ESA at all. informed and very moving. But let me try and respond Through these changes we are sending out a clear as much as I possibly can to those many points. message. To the most vulnerable, we will provide the support when it is needed for as long as it is needed. Employment and support allowance for those in the work-related activity group was never intended to Lord McKenzie of Luton: If the Minister has moved be a long-term benefit, but an interim measure for on from national insurance, perhaps he might just those who are expected to return to work. I know that address this point of circumstances where somebody there have been concerns that restricting contributory starts off in the WRAG and at the start of their claim ESA to a year may disadvantage people with longer-term meets the national insurance contributions, because health conditions or disabilities. However, we remain they have been both credited in and paid sufficient in of the view that this is the right approach. The benefits one of those years. That claim is terminated or ceases system has to be fair to all those who contribute to it after 365 days and the person then moves into the as well as those who draw support from it. We expect support group. Would that be a new claim for the people on benefit to take up the help and support purposes of attachment to the national insurance available, through Jobcentre Plus or the work programme, contributions? If people had to look afresh at that to move off benefit and into work. point, they may well have been credited insufficiently, Dependent on individual circumstances, other benefits, but they would not be able to pay in, because they such as housing benefit and disability living allowance, would not have been in the labour market and would may be available to those claimants affected by the not have had earnings. They would therefore be introduction of a time limit to the income-related disconnected from contributory ESA. employment and support allowance. It ought to be available to those on lower incomes. Baroness Lister of Burtersett: I shall ask the Minister another question, so that he can get his breath back. I Introducing a limit on the length of time people in very much welcome what he said about credits. This the work-related activity group are entitled to may reflect my ignorance of the mechanics of it, but contribution-based employment and support allowance could he explain how people get credited, if they cease is more consistent with the rules for contribution-based to be part of the system and have no entitlement to jobseeker’s allowance, which has a time limit of six anything? months, while recognising the different nature of employment and support allowance recipients and the Lord Freud: My Lords, clearly, the detailed mechanics purpose of the benefit. People receiving income-related of that is something that we will need to work out and ESA will not have their benefit time limited, nor will set out in regulation. I am not absolutely convinced people with the most severe conditions or disabilities that we have it locked down—we might, but I simply in the support group. do not know. But clearly we will make that clear. GC 29 Welfare Reform Bill[8 NOVEMBER 2011] Welfare Reform Bill GC 30

I shall come on to the question asked by the noble following year; in 2015-16, we think that the cost Lord, Lord McKenzie. The run-ons in practice are would be £360 million; and it would be £140 million in rather complicated. I shall come on and deal with that 2016-17. in a little while. For the most vulnerable, we will provide the support Baroness Hollis of Heigham: Do those interesting when it is needed for as long as needed. When people figures mean that by 2020 the figure could be expected can work, they should be expected to; a lifetime on to be below, say, £50 million? benefits is no longer an option. Amendments 72 and 76 are technical amendments Lord Freud: My Lords, I am not sure what the that seek to restore the original policy intent for extrapolation would be. Those are the figures we have. Clauses 51 and 52. The current wording of those If I have a longer run at it, I will make the figures clauses meant that days in the assessment phase before available when, or if, I have them. I am sorry, but we the determination that the claimant should be placed do not have any figures stretching out beyond that in the support group must count towards the calculation point. of the 365-day limit. This would not of course affect a claimant who remains in the support group throughout their ESA award, but it would affect those claimants Baroness Hollis of Heigham: The Minister accepts who moved to the work-related activity group from that point that it looks as though there is a reverse bell the support group, at which point they would be curve here. It would be interesting to know, perhaps at entitled only to the balance of the 365 days after Report, some information as to how that would pan deducting the day spent in the assessment phase. This out. was never our intention and I urge noble Lords to accept this amendment. Lord Freud: My Lords, one can clearly see the I shall now address Amendments 71M, 72A, 73, 74, process here, as you move through the bulge, of stopping 75 and 75A. Amendment 71M would increase the as you take on the transfer from IB to ESA. You can time limit for claimants receiving contributory ESA in see that the effect of moving from one year to two the work-related activity group from 365 days to a years is a reduction as you go through that group—the prescribed minimum of 730 days. We disagree that two bell curve, as the noble Baroness described it. years is the right approach. The noble Lord, Lord McKenzie suggested that this was a modest change. It Baroness Morgan of Drefelin: I wish to be sure that would, in fact, cost a total of £1.6 billion by 2016-17. I understand what the Minister has just said. He said that there are two reasons for choosing the 12-month Baroness Hollis of Heigham: Is that per year, not period and that it is therefore not arbitrary. Therefore, a roll-up? the choice was made, first, due to the need to make financial savings and, secondly, because 12 months was sufficient time for people to adjust to their illness Lord Freud: No, that is the total up to 2016-17—a and make arrangements. Did I get that right? roll-up. Lord Freud: My Lords, no. I am making a different Baroness Hollis of Heigham: It would be more argument here. It is an argument about cost. However, helpful and reasonable if we had annual figures, not I will come back to the “arbitrary” issue from the roll-up figures. perspective of what happens elsewhere. Other countries do not have benefits which precisely mirror the design Lord Freud: I will be supplying annual figures later of the ESA, but a number of countries already impose on. I wanted a single figure. time limits on eligibility for both sickness benefit, which covers temporary incapacity for work, and invalidity benefit covering long-term or permanent incapacity. Baroness Hayter of Kentish Town: I think that the For example, Austria, Belgium, France, Denmark, noble Lord wanted a big figure. Ireland, Spain and Sweden all impose 52-week time limits on their citizens. Lord Freud: It is a single figure. We believe that our one-year time limit is not arbitrary; rather, it strikes 5.45 pm the right balance between restricting access to contributory Baroness Hollis of Heigham: I think that the noble benefits and allowing those with longer-term illnesses Lord will also note from comparative research that to adjust to their health condition and surrounding their replacement earnings benefit, whether you call it circumstances. In recognition of that, it is double the JSA, IS or whatever, is a much higher proportion of length of time allowed for contributory JSA and is earnings than is the case in the UK. one of a number of difficult decisions that the Government have had to make in view of the current fiscal climate. Given that I was asked about the single figure, Lord Freud: My Lords, as noble Lords know, direct perhaps I may take the opportunity to read out the per comparisons of systems are terribly difficult to make. annum figures. Next year, the change would cost £270 million; in the following year, 2013-14, it would Baroness Hollis of Heigham: That is the point that be £420 million; the figure would be the same the we are making, I think. GC 31 Welfare Reform Bill[LORDS] Welfare Reform Bill GC 32

Lord Freud: Although we have what seems to be a emotive subject. I do not have the mastery of detail rather modest level of primary benefit, whether it is that the Minister or my Front Bench team have. How JSA or ESA, we pile up a lot of other “elements”, we can a 12-month period be applicable to someone who might call them, in terms of housing benefit to get is suffering from cancer? It is an arbitrary decision. substantial figures. Therefore, making a comparison internationally is not straightforward at all. I am not Lord Freud: My Lords, I shall come to the point making a straightforward comparison of amounts; I about cancer, which is clearly very important. The am making a straightforward comparison of the timing powerful speech of the noble Lord, Lord Patel, on his issue. I am saying that the 52-week limit falls into line amendment had to do with that. I shall deal with it as with much international practice in countries whose a whole. I am trying to make one point at a time. The systems we generally admire. I am arguing that, to that point I am making is that our proposals are not out of extent, the accusation that this is arbitrary simply does kilter with the arrangements in many other countries. not stand. We are conforming with norms which are We still provide unconditional support to those in the followed very broadly internationally. support group and income-related benefits for the poorest. Baroness Hollis of Heigham: That may well be right I shall just pick up the point of the noble Baroness, and I would not disagree with the noble Lord’s point Lady Lister, on the expectations of contributors to about time and the comparison that he made there. national insurance. National insurance contributions However, the point is that that time limit, although it are used to pay for a wide range of contingencies. may or may not be regarded as arbitrary, is not threatening These include working-age benefits, the state pension if the drop-down from that limit to the alternative and the NHS. The overwhelming proportion of income, which is income-related, is not particularly expenditure—some £60 billion a year—goes on the significant. That is the point that some of us were state pension. This is in contrast to around £6 billion seeking to make. on ESA and incapacity benefit and around £1 billion on jobseeker’s allowance. There have been numerous Lord Freud: My Lords, in practice, other countries changes to national insurance and the benefits system in northern Europe, as noble Lords will know, have a over the years to take account of changes in society very much more contribution-based system, and the and demographic factors. For example, far more women support for people who fall outside that system or are now pay national insurance than when contributory immigrants who never got into it is much lower than benefits were first created. As I have said, we believe with our support systems, which are pretty good for that the adjustments we are making are fair and people who are not in the economic system. Therefore, reasonable. I am not sure that I accept that point at all. Baroness Lister of Burtersett: Will the Minister Baroness Hollis of Heigham: I am sorry to intervene acknowledge the point that has been made by several again but this is Committee stage. The point there is noble Lords? Some people will not see the pension precisely the aim behind this set of amendments. Most that they have paid their contributions towards. Therefore, of the European countries that I have studied—and I they feel particularly aggrieved that, having paid have looked at the Bradshaw research and so on—have contributions all their life, the contributory ESA is a much higher commitment to the contributory principle. being snatched away from them just like that. Therefore, this covers people for much longer at a much higher level with a sense of entitlement. This Lord Freud: My Lords, let me come back to that. It issue goes back to the very powerful arguments put is to do with the debate about who should be in the forward by my noble friend Lady Lister. With a strong unlimited support category for an unlimited time and commitment to a contributory principle, even if you who should not be in it. As I just said, we support the have a relatively short time limit for sickness benefit, poorest on an income basis and those who are the because of the resulting contributory benefits to remaining most ill in the support group indefinitely. unemployed, the drop-downs are therefore not threatening. That is surely the point that some of us have been Amendment 71N introduces another regulation- seeking to make. making power to the Bill. It would enable the Government, or a future Government, to exempt certain groups from the 365-day limit for those in the WRAG. This Lord Freud: My Lords, I think that we could debate point was also raised by the noble Baroness, Lady this issue for a long time. The point that I am simply Meacher. We believe that it is for the WCA to distinguish trying to make is that the arbitrary nature which this between those who are in the WRAG and those who time limit has been accused of looks much less arbitrary should be placed in the support group and therefore when it seems to be the time norm chosen by a whole be exempted from the time limit. As noble Lords will range of countries. Other countries such as Canada, know, Professor Harrington has been working with Germany, Poland and Australia also feel that it is right Macmillan and other stakeholders to help us make that there should be some limit to the state’s support sure that people are placed in the appropriate groups. for those who have an illness. Therefore, an amendment along the lines proposed by the noble Baroness is not necessary. Lord McAvoy: I am grateful to the noble Lord, who Amendment 71P introduces a new provision, which has given way a lot, as we all recognise. However, I am would mean that people whose contributory ESA sure he recognises that this is a very complicated and exhausts after 365 days would be able to requalify for GC 33 Welfare Reform Bill[8 NOVEMBER 2011] Welfare Reform Bill GC 34 the support group if their condition deteriorates. However, six-month deadline or prognosis period, things may this could mean benefits being reinstated 10 or more perhaps be moving on. Perhaps for some people we years after the claimant last worked, which is not need to think about that period being longer than six reasonable. Moreover, we already have a series of months. safeguards in place that would protect people in this position. First, if the claimant leaves ESA before their Baroness Wilkins: Does the Minister also accept contributory ESA exhausts, we have the linking rule, that any recommendations made by Professor Harrington which enables the claimant to return to that contributory will take some time to put into effect—until 2014 at ESA within 12 weeks of leaving it. least? In this amendment, we are talking about this Secondly, we already have within the ESA regulations measure coming into effect next April. an easement allowing a claimant to satisfy the first contribution condition for ESA if they have paid Lord Freud: My Lords, that is a little premature. It contributions in any tax year at a certain rate, and they is literally too early to look at the timetable of introducing had received a contributory ESA award in the last any recommendations, whatever they may be? However, complete tax year before the current benefit year when there may be elements that can be brought in sooner they are claiming again. If it is decided that a person rather than later. I do not think that there is an has limited capability for work-related activity, they impossible timeline here. will, of course, be placed in the support group. In There is a real issue about these particular people addition, if someone qualifies for income-related ESA—as who are suffering from cancers and other similar some 60 per cent of claimants will—eligibility for ESA illnesses. Youmight look at the kind of experience that can be reinstated automatically. they will have in practice, because it is easy to look at On the point raised by the noble Baroness, Lady the one-year ESA in isolation. Morgan, regarding protection for those who qualify In practice, many people will first go through six under exceptional circumstances, time-limiting will months of sickness pay, whether it is occupational or apply in the same way as in all other cases. Those in statutory sick pay. That is a 28-week period in which the work-related activity group will be time-limited; many people will undergo much of their treatment. those in the support group will be unaffected. Then there is a one-year period if one is on the Consideration of exceptional circumstances applies to WRAG. Many people will go for a period on the those who do not have limited capability for work. support when they are going through treatment. We For those for whom work is simply not an option, are seeking to precisely define which types of treatment we would expect them to be in the support group and they can go through. So there is a period on support not affected by time-limiting. and then a period on the WRAG. So the idea that there is an arbitrary one year, spinning down the track, from people being ill, is not the reality. There Baroness Morgan of Drefelin: Perhaps I may reassure are a lot of stages to go through in our system, which the noble Lord that there are many people who would people go through at different times and in different not be in the support groups specifically because of ways. I do not think it is right to think of it in a rather the way that a support group is designed. Some people simple way; our system is more complicated. with deteriorating conditions—perhaps motor neurone disease—can look forward to a time when they know Lord Patel: Sorry to disturb the Minister’s train of that they will become increasingly ill, but on that day thought. I am grateful for the comments he made they are not in the support group. It is a difficult issue. earlier, and the sympathetic way in which he made them. He may look forward to Professor Harrington’s Lord Freud: I hear the point being made by the report. I hope the interpretation of that report will be noble Baroness. What we are looking at in the WCA, the important aspect. I gave the example of patients in particular with regard to cancer patients, is to work who are on intravenous chemotherapy, who are regarded our way through that position. We are expecting a as different. Equally, for people who are on oral report from Professor Harrington before Report stage. chemotherapy or radiation treatment, it is a very This is a very important point, also made by my noble debilitating form of treatment that exhausts one’s friend Lord German, about how getting the right body completely. If you ask any patients who are people into the support group, using the WCA mechanism, undergoing this treatment, they will tell you that it is such a key part of this system. I think that virtually does. everyone in this Committee Room would say that if The second comment that the Minister just made the WCA test worked absolutely perfectly we would concerns the different amount of money that is available not have a problem. There are some concerns about to different people. But it still applies within the 12-month getting that test absolutely right, and I hear those period, unless I have misunderstood. concerns; but that is the way to address these issues, and that is what we are planning to do. Lord Freud: No, let me make that clear. I will take the points one by one. Baroness Morgan of Drefelin: Perhaps I may make Professor Harrington is looking very closely at a small point before we move off this issue completely. cancer treatments and is working very closely with I am also concerned about the definition of terminal. Macmillan in particular, to which I must pay testimony; There is a question here. I cannot remember the correct it has provided a lot of extraordinarily valuable terminology, and if the noble Baroness, Lady Finlay, background data that we have been grateful for and were here she would tell me instantly, but during the are using. So there is a process going on. GC 35 Welfare Reform Bill[LORDS] Welfare Reform Bill GC 36

[LORD FREUD] WCA is known. That includes contributory ESA claimants The point I was making about the timescales is that who can remain on the programme after their benefit clearly there is a time when not absolutely all but the has come to an end—to meet the point raised by the bulk of all cancer sufferers going through treatment noble Baroness, Lady Lister. That ensures that they will be on the support, which is unlimited. They will receive all the support they need to help them to return have gone through that process, then they start the to work. Clearly, that was a conscious decision in the WRAG process, which is time-limited, after that. So it design of the work programme because it is clearly not is not “one year for your illness”, if you like; it is one supported by any sort of delaying switch. This is a year on these particular benefits. straight investment in helping those individuals back The noble Lord made a most effective speech at into work. Second Reading, which I remember vividly. I am sure everyone else does as well. He was making the point Baroness Lister of Burtersett: I thank the Minister. about how tough it is getting through the experience I am pleased to hear that. So that I am absolutely sure of cancer—and we are worrying about that in detail. that I have understood, can he confirm that this would But I also want to give reassurance on the example the also apply to someone who does not qualify for income- noble Lord used, when you get to a year and you are related ESA? Is it simply enough that they have received still having a tough time. That is probably not likely to contributory ESA in the past and that that is the ticket happen in practice very much because of the different to the work programme for the future? phases. Lord Freud: The noble Baroness has got that absolutely right. It is both for people who are currently on Baroness Hollis of Heigham: What the Minister income-related ESA and those who have been recipients is saying, which is a welcome elaboration of policy, is of contributory ESA. that new entrants into the system who have the sorts There will clearly be a financial cost to Amendment of conditions that the noble Lord, Lord Patel, and 71P, but I am afraid that in the short time available I others described, may very well be reassured by the have not been able to produce a robust costing. fact that they have up to two years or longer on non-means-tested benefits. Does that not therefore put into even sharper concern the situation of the Lord McKenzie of Luton: I thought the Minister retrospective nature for people already on those benefits said in his earlier remarks that, effectively, these things raised by the noble Baroness, Lady Meacher? Does it did not need the amendment because they were dealt not suggest that by comparison the situation is that with by way of easement. Therefore, presumably they much the harsher? are already factored into the cost and no additional cost would arise from this. Is that not what he said?

Lord Freud: I will come back to that issue and argue Lord Freud: No, that is not what I am saying. The strongly that there is no retrospection. I will make that noble Lord’s amendment raises the example of someone argument in a coherent way. No, the people who will who has been in the WRAG for a year, falls off it and have been on support will be in a position where there in five years’ time falls ill. The amendment would will be no difference between the existing group and allow them to go onto the contributory support element the new group. There will not be that difference. As the of ESA as of right. That carries a cost for which I do noble Lord, who has infinitely more experience than I not have the exact figure. We are working on it. have, said, with cancer there is a differential experience, and some people literally sail through the process—the Lord McKenzie of Luton: I am sorry but I thought really lucky ones. Maybe that is slightly over the top, the noble Lord, in responding earlier, said that there but they get through the process in a reasonable time, were easements to address this so that you effectively pretty fast, while others find it very tough indeed. If reconnected people because of their national insurance we put everyone in the same category by definition a contributions. That was the issue that was being raised. type of illness, we get back to the problems that we We are dealing here with people who, but for the have with treating people who need help to work and 365-day time-limiting, would currently have a continual everything else—we are excluding them from that. Of claim to ESA. course, once you set a precedent in that area, it rolls on and on. That is why we are going about this using the Lord Freud: My Lords, I am convinced that I did WCA as the route to putting people in different categories. not say that this particular easement was built in. I I was also asked about support to work. Support to was talking about national insurance contributions. find work will be widely available for all ESA claimants Once they are through the time-limited period, individuals from the outset of their claim, irrespective of their cannot then switch back into the support group on a health condition. Following the work capability assessment contributory basis. for most ESA claimants placed in the work-related activity group, that support will be mandatory either Lord McKenzie of Luton: Forgive me, but that means through Jobcentre Plus or through the work programme that people in the support group are disadvantaged by once their prognosis is down to a particular number of these provisions, contrary to the Government’s assertion. months. The vast majority of ESA claimants who want the Lord Freud: My Lords, people in the WRAG who more intensive support offered by the work programme have gone through their time-limited period do not will be able to access it as soon as the outcome of the then have a right to go into the support group on a GC 37 Welfare Reform Bill[8 NOVEMBER 2011] Welfare Reform Bill GC 38 contributory basis. Clearly, they have a right to go into On the issue raised by my noble friend Lady Thomas it on an income-related basis, but not on a contributory on retrospection, a benefit claimant has no right to basis. receive ESA indefinitely if the conditions of entitlement change or their circumstances change and they no longer meet the conditions of entitlement. Through Baroness Hollis of Heigham: I am now completely the amendments made by the Bill, we are changing the baffled. I thought the argument was that if somebody conditions of entitlement for the future so that entitlement had not exhausted their time on the contributory basis will not end until Clauses 51 and 52 is commenced. and had, for whatever reason, been able to get back This will not affect any entitlement that has already into work, which then collapsed or folded, they would arisen. I assure noble Lords that we are not seeking to be able to get back into the support group using some recover past ESA payments that claimants have received of the contributions that were still available. The noble correctly, but merely defining their future entitlement Lord ran against this the argument that this might be to ESA on the basis of whether at the time the clause five years away and was therefore unrealistic in terms is commenced they have had ESA already and if so for of connection. The point that I was going to press was how long, and whether they are in the WRAG. We that, in that case, the Minister was saying that one of took the decision to issue 115,000 notification letters the easements that we currently have is the 12-weeks’ to all claimants potentially affected by this change to linking rule. I was going to come back and suggest ensure that they were given sufficient notice. This that in these circumstances it would be sensible to have generated around 4,200 inquiries from claimants in something more like a 12-month linking rule so that response. there was a realistic time in which, if either the job or the person’s health folded again, they could come back We wish to strike a balance between fairness of and use up their unused period of contributory benefit. treatment for all those affected and complexity. We do not think that it is reasonable that people in the WRAG who have already received contributory ESA Lord Freud: My Lords, clearly, they can use up time before Clause 51 comes into force should continue to that they have not used. Therefore, if you are nine do so for an additional year after the clause is commenced. months down in the period of the contributory WRAG This would be unfair to new claimants; we want as but go to work and come back, and are due to go into many people as possible to receive benefit for the same the support group, you can do so. However, if you period of time. Given the very difficult financial position have used up your contributory element of WRAG, that we inherited from the previous Administration, there are, as I was trying to describe, some quite this is another difficult decision that we have had to complicated effects. In practice, there may be up to a make to ensure that the economic well-being of our two-year period to do that. We have an easement, country is protected. allowing a claimant to satisfy the first contribution condition for ESA if they have paid contributions in Baroness Meacher: Can I just raise a question? The any tax year at a certain rate and have received a Minister talks about the unfairness about those in the contributory ESA award in the last complete tax year, future and those in the past, but that issue exists before the current benefit year in which they are anyway. People who started claiming 18 months or claiming again. two years ago, or whatever, clearly had a different It is quite a complicated situation. In practice, the length of contributory ESA to those people who claimed easement for many people will work for about two any time from 1 April last year in the Government’s years in those circumstances but no longer. It will not, terms. What I was suggesting was that the conditions as Amendment 71P is looking to do, make it unlimited. are changing as of 1 April next year, and it is retrospective There may be different costs to having an easement of to suggest that the conditions change from 12 months five or 10 years but we have not had a chance to look previously. That is what is retrospective. Of course, at the costs of this amendment. So I cannot accept you will always have unfairnesses between the past that we make this amendment and urge that it is not and the future when you change laws. It is not logical pressed. to suggest that there is some sort of inequity between I am completely lost in my brief. past and future and, therefore, there is no retrospection. I think that the Minister has to accept that there is 6.15 pm retrospection here. Baroness Hollis of Heigham: Perhaps we should have a tea break. The votes were so demanding that we Baroness Hollis of Heigham: My Lords, perhaps I have not had time for one. may add to the Minister’s woes. He will no doubt be aware that previous Administrations faced this difficulty when we moved from IVB—invalidity benefit—to Lord Freud: Moving swiftly on—Amendments 72A incapacity benefit. What happened was that people on and 73 exclude from time-limiting any days contributory invalidity benefit remained on that benefit and only ESA claimants in the WRAG have received ESA for new entrants went onto incapacity benefit. That is one before this clause comes into effect. We expect that path. I can quite see that allowing long-term claimants around 100,000 people will have been in receipt of to have two or three different paths is technically contributory ESA in the WRAG for more than 12 months complicated and administratively undesirable, but it is by April 2012, plus an additional 100,000 who will what is most supportive and decent to the individuals reach 12 months’ duration in the WRAG during the concerned. Their expectations are not suddenly changed rest of 2012-13. part-way through their later years. GC 39 Welfare Reform Bill[LORDS] Welfare Reform Bill GC 40

[BARONESS HOLLIS OF HEIGHAM] contributory ESA claimants who could be affected to The second path that the noble Lord could adopt make them aware of this change. It is important to would be to say that from now on, at a certain date, remember that claimants in the support group and this will be a common rule for all new and existing those claiming income-related ESA will not be affected. applicants. That would be the middle path. What The noble Baroness, Lady Hayter, raised the issue of would clearly be wrong would be to say that this will the impact on the lowest deciles. The analysis in the apply only to new applicants and that we will knock impact assessment shows that although many people off existing claimants who have come up to the time affected are in the lowest deciles, they will tend to be barrier. I have never known that in social security fully or partially compensated by income-related ESA before—ever. and those who will not be eligible for income-related benefits are typically in the middle or higher deciles. Lord Freud: My Lords, the accepted convention on The government amendments I have already outlined retrospection is that it applies from the announcement ensure that days in the assessment phase for a claimant of a measure. When the price of petrol goes up in the subsequently placed in the support group are excluded Budget, it goes up that night or the next night and from the 365-day total. Amendment 74 would go then the Finance Bill becomes an Act four or five further than this; it would mean the 365-day limit for months later. That is the convention—you go from the all contributory ESA claimants, including those placed date of announcement. We announced this move from in the WRAG, begins only from day 92 of the claim. October 2010. This would therefore give an extra 13 weeks of contributory ESA to WRAG members, increasing Baroness Meacher: Perhaps I may suggest that the their overall award to 15 months. Another effect of the Budget is a completely different kettle of fish, because amendment would be that, if claimants have repeated you absolutely have to implement financial changes on short-term claims and as a result they are not medically the day of the announcement—otherwise all sorts of assessed via the WCA, these claims might never people will play games and use the delay to do all sorts individually go beyond the 13-week assessment phase. of things. However, social security is completely different. If so, the 365-day time limit might never apply to their You are talking about vulnerable people dependent on contributory ESA award. This amendment could therefore benefits, and that is why the convention in the social create a perverse incentive for claimants to terminate security field is totally different from the convention the award before the end of the assessment phase; they regarding the Budget. may also try to delay attending the WCA. We do not believe that such behaviour should be encouraged. Lord Kirkwood of Kirkhope: Can I just make a Amendment 75 would allow claimants receiving point? As to the Minister’s explanation of when things contributory ESA who move in and out of the support start from, this announcement was made in 2010. If group, to start a fresh 365-day period each time they logic is to stay on his side, implementation should have move from the support group back to the WRAG. For started in 2010. those claimants moving between the two groups regularly, it is likely to mean they would be able to remain on contributory ESA indefinitely. This amendment would Lord Freud: Well, my Lords, what was written in the lead to inconsistent periods on benefit for claimants. document that my noble friend Lady Thomas referred For some, time spent in the WRAG would count to was posited on the notice given in it, which allowed towards the 365-day limit while for others it would people to prepare for this change. The notice was not. This is unfair. We believe that everyone should be given in— treated the same, irrespective of when they are placed in the WRAG. I understand the noble Lords’ concern Baroness Lister of Burtersett: Can the Minister about fluctuating conditions, which may have prompted explain what this preparation is supposed to be? How this amendment. We recognise the importance of the do you prepare for the loss of a benefit if you are role the WCA plays for people with fluctuating medical unable to take paid work? Is it preparation for your conditions, as I have discussed. partner to give up work? I am not sure what preparation To pick up one more point on the cancer issue, I people are supposed to be making. want to make it absolutely clear that the present position is that anyone who is diagnosed as terminally Lord Freud: My Lords, one of the clear preparations ill and who is expected to die within six months will is to understand whether you are now entitled instead automatically be placed on the support group. to income-related ESA on the WRAG, or to take steps to get into a job, or whatever it is. There are a number of things, but preparation would cover all of them. Baroness Hollis of Heigham: I am sorry, but could However, the documents written in October 2010 were someone be diagnosed as terminally ill as a result of saying that this change was coming in April 2012, the biopsy and be given a life expectancy of 11 to effectively giving 17 or 18 months’ notice that this 12 months, which may be accurate almost to the week, change would apply. That is what was intended by the yet not be deemed under this condition to be terminally ill? document. We have taken steps to give people whose awards will end, either when the clause comes into force or Lord Freud: That is correct. That is the current shortly after, time to assess their circumstances and position but the reality is that the treatment provision adjust to the change. We have written to all existing is likely to catch most of those people. GC 41 Welfare Reform Bill[8 NOVEMBER 2011] Welfare Reform Bill GC 42

Lord Patel: Earlier the question was asked if we Lord Freud: We have done a relatively simple sum could have a definition of “terminally ill”. I do not on this and this is the change. We have not rebuilt the think there is one. This definition that you will die whole system to make it consistent. within six months applies where the allowance is available. But as I tried to point out in my presentation, you Baroness Hollis of Heigham: Is it therefore also net might be terminally ill and not die within six months. of the actual disregard that people will get, which will Although you might be pretty sick and even near to be £20 plus possibly some other amount? death, you would not qualify for the allowance. Lord Freud: We have put it on top of that £10 6.30 pm disregard.

Lord Freud: My Lords, I know that this is a very Baroness Hollis of Heigham: In that case, before the emotive matter and I have said that we are looking Minister goes on to a different point, why does he very closely at the recommendations from Professor think that the situation of someone whose partner is Harrington. I have picked up the concerns on this on JSA, but with no history of disability or whatever matter, and I think that that is as far as I can go today. in the family, is identical to the situation of a partner Amendment 75A would introduce an additional who is managing to care for a person for possibly income disregard for partners when calculating an 20 hours a week or more—that is why they are on award of income-related ESA. Based on the current those benefits anyway—and is, on top of that, hanging annual personal allowance for income tax of £7,475, on by her fingertips in the world of work? Incidentally, this disregard would amount to a gross weekly amount we have now established that this will, first, not make of £143.75. Currently, when calculating an award of it pay for her and, secondly, will almost certainly income-related ESA, we provide disregards on partner’s encourage her to leave the labour market. Why does earnings of £20 per week and a disregard of between the Minister think that there is any equitable comparison £10 and £20 for other specified income. This contrasts whatsoever between that and JSA? I am all in favour with universal credit, where a disabled person would of establishing simple parameters so that people know have a minimum earnings disregard of £40 per week. where they stand, but I should have thought that the The practical effect of this amendment would be noble Lord would accept that someone who is disabled that the DWP would be forced to amend existing and has a partner, or possibly a wife, caring for them DWP regulations to remove existing disregards and for 20 hours a week and in a part-time job is none the make new regulations to disregard a minimum of less in a very different situation from a young couple what, under current tax allowances, would be £143.75 per in their 20s who are on combined JSA. week of a claimant’s partner’s gross income when calculating entitlement to income-related ESA. If we Lord Freud: My Lords, at that kind of annual cost did not amend the existing disregards, the excess would this really is an expensive amendment. Whereas one then be subject to an additional £10 to £20 disregard can clearly look at elements and disregards in the where appropriate. In total, this would potentially system later when there is some money—I have made increase expenditure on the ESA by up to £500 million this point before—this is a lot of money. per year. We do not think that this approach would be Baroness Hollis of Heigham: Can the Minister then reasonable. Introducing a significant new disregard tell us what the total saving on the ESA is going to be for ESA claimants would be unfair to others receiving overall so that we can see what percentage this represents? other income-related benefits, such as claimants whose partners claim income-based jobseeker’s allowance, Lord Freud: Yes. I am speaking slightly from memory where the earnings disregard is currently set at £10 per but the running rate is about £1.7 billion a year. I am week, and ESA claimants who have no partner. sorry—I have tripped myself up on that. At this point, perhaps I may introduce the question of what happens to payments of contributory benefits— Baroness Hollis of Heigham: It cannot possibly be. You cannot have £500 million a year and £1.7 billion in total. That does not work, but I would be happy for Baroness Hollis of Heigham: Returning to the previous the noble Lord to refer to it later. point on Amendment 75A, will the Minister confirm, for clarity, that the figure of £500 million per year was Lord Freud: I will refer to it in a minute. Let me related to the cost of this amendment only, not to gather my forces. I come to the point made by the changing other disregards? I was not clear about that noble Baroness, Lady Lister, on ESA contribution and from what he said. universal credit. We are looking to simplify the payment arrangements for cases where there is entitlement to Lord Freud: Yes, it applies to this amendment only. both universal credit and contributory benefits. Customer insight research suggested that claimants would prefer a single payment of universal credit rather than two Baroness Hollis of Heigham: Therefore, having this separate payments, but no final decisions have been exclusion for this group would cost £500 million a year made. The key point is that contributory ESA and with no knock-on consequences for other disregards JSA will continue as individual entitlements. In other for people on JSA or whichever benefit the Minister words, as now, they will not be affected in any way by cited. I just wish to be clear on this. the circumstances of the partner. GC 43 Welfare Reform Bill[LORDS] Welfare Reform Bill GC 44

Baroness Lister of Burtersett: I thank the Minister related ESA and therefore give them automatic entitlement for his answer, for I realise it is slightly off the main to housing benefit and/or council tax benefit at a cost amendments, but I am glad that no final decision has of approximately £50 million per year. been made. I do not know the nature of the customer In addition, if Amendment 75A were accepted and insight research but on qualitative research with individuals we did not mirror that larger disregard in the housing in couples I know, having done that kind of research benefit and council tax regulations, it would mean myself, that you need to talk to individuals separately disparate treatment between those claimants passported within couples for them to be able to talk freely to a automatically on to housing benefit or council tax researcher. For many women, it is important to have benefit because they are entitled to income-related control over a certain amount of income. As the noble ESA, and those who claim housing benefit or council Lord said, it is not simply an administrative matter. tax benefit on low-income grounds. That would be There is a matter of principle here about having paid unfair. We estimate that it would cost approximately into the system as an individual and being able to draw £50 million per year to mirror this amendment in the out from the system as an individual, rather than housing benefit regulations. That is in addition to the having that benefit paid to your partner. I just hope £50 million previously mentioned. that the Minister will take that point away and think If the amendments tabled by noble Lords were about it seriously before a final decision is made. accepted, either singularly or collectively, it would significantly reduce the expected benefit savings of Lord Freud: My Lords, we have had this discussion these measures. If Clause 51 did not stand part of the before. I come back to the point that one of the most Bill, the entire savings projected by this measure would interesting opportunities in the universal credit is the be lost. That amounts to around £5 billion in total by budgeting support. When I talk about budgeting support 2016-17, and we went through the individual years. there is an element there of how you run your household finances, which we are just beginning to explore. There is huge potential in that and I am just beginning to Baroness Hollis of Heigham: I am sorry; the Minister think about what that could imply and what it means, said £5 billion went through the individual years. My so we will come back to this in the months to come figures add up to £3.5 billion. because it has enormous promise in the areas that the noble Baroness is worried about. Lord Freud: Well, I make it nearly £5 billion to Let me go through the AME savings, which were 2016-17. raised by the noble Baroness, Lady Hollis. Running each year from 2012, they are: £420 million; £780 million; £1,090 million; £1,330 million; and £1,380 million. Baroness Hollis of Heigham: That is £420 million, The £500 million— £780 million, £1,090 million and £1,380 million.

Baroness Hollis of Heigham: What are those the savings on? Lord Freud: You missed out £1,330 million. I have £420 million, £780 million, £1,090 million, £1,330 million and £1,380 million. That is nearly £5 billion. Lord Freud: They are the AME savings from Clause 51. The £500 million cost that we are talking about of this Accepting Amendment 71M would reduce the total amendment is calculated on the basis of applying the savings by around a third by 2016-17, which is £1.6 billion. disregard to all ESA claimants, not just those affected Accepting Amendments 72A or 73 would reduce savings by time-limiting. We would have to apply it to everyone. by around £420 million, which represents the entire savings forecast projected for 2012-13. Amendment 74 would reduce savings by around £430 million in total Baroness Hollis of Heigham: Is the Minister saying by 2016-17. that the £500 million cost of Amendment 75A exceeds the total amount of savings on all these changes in 2012? Baroness Lister of Burtersett: I apologise if I missed this because I know that the Minister has had an awful Lord Freud: Yes. This is the ESA income-related lot of ground to cover on so many different amendments, claimants. I think that has a £500 million average cost but did he explain why the assessment period is being per year spread over that period, but it is a per year included? The way that the policy has been put across cost. No, I am sorry; it is a steady-state £500 million, is that if you are in the WRAG, you will get contributory so it should be looked at against the £1.3 billion or ESA for only a year. But actually that is a year minus £1.4 billion figures as a proportion. 13 weeks because you get a lower rate of benefit for that. Apart from cost, and by 2016-17 only a third Baroness Hollis of Heigham: These figures seem minus 3 per cent of the savings would be forgone—I deeply implausible to me, but we will work on them. realise it is more up front, but it diminishes—what is Thank you. the principal reason for including the assessment period?

Lord Freud: Additionally, the amendment would Lord Freud: The reason is that we never intended to likely weaken the financial incentive for a benefit take it out in the first place. If someone is waiting to claimant’s partner to take up full-time work. It would go into the support group it is not appropriate to have increase the number of people who qualify for income- them assessed as if they are in the WRAG group. GC 45 Welfare Reform Bill[8 NOVEMBER 2011] Welfare Reform Bill GC 46

Baroness Lister of Burtersett: But this is someone Baroness Hollis of Heigham: My noble friend’s point who is going into the WRAG group, so they are is entirely valid. You are nominally, on paper, entitled getting only a year’s contributory benefit. It will be a to 12 months of the WRAG money, but in practice it year minus the assessment period. What is the point in is actually 12 months minus 13 weeks—three months— principle for cutting short what many people are already because for that period you are on a benefit that for all calling an arbitrary time limit on their entitlement? purposes might just as well be JSA, because it is at a lower rate and therefore should not realistically count. Lord Freud: It is interesting that noble Lords are looking at the assessment phase as a different benefit, Baroness Lister of Burtersett: What is the principal which it is not. It is the same benefit. It is just a phase. reason for that? How does the Minister justify it? You go on the ESA assessment phase and then it discovers what type of support you are on—the support Lord Freud: I have to admit that I am not particularly group or the WRAG group. That is what the assessment happy about the assessment phase of ESA and how it phase is doing. is working. It is becoming a separate benefit in practice. I would like to look at it. It is difficult to have a set of Baroness Lister of Burtersett: Forgive me if I am principles around something that one is somewhat wrong and I expose the frailness of my knowledge of unhappy about. social security, but I thought that claimants got a I shall go on with the costs. Amendment 74 would lower rate during the assessment phase. Therefore it reduce savings by around £430 million in total by may be called the same benefit but, in terms of the 2016-17. Amendment 75A would increase expenditure money people get, it is less. That period is not being on ESA by approximately £500 million per year, plus included. That is why I am saying that it is a year up to £50 million more on other income-related benefits. minus 13 weeks. Yes, they are getting a benefit but at I cannot accept that we should make these amendments. a lower rate. They would place a very high financial cost on us in the current fiscal climate. I believe our proposed changes Lord McKenzie of Luton: I can support my noble are right in principle and fair to the taxpayer. I urge friend: as I understand it, people get the basic JSA rate noble Lords not to press these amendments. in the assessment period. Lord McKenzie of Luton: My Lords, I thank the Baroness Hollis of Heigham: You might as well be Minister for his very extensive reply dealing with a on JSA and be done with it. whole host of interruptions. That must certainly be a record for this Committee. 6.45 pm Lord Freud: The assessment phase would last beyond Baroness Hollis of Heigham: I wonder if my noble 13 weeks. It can sometimes be a long period, but friend will allow me to ask him a question? Does he claimants are always paid the full rate from week 14 of not agree that this shows the undesirability of having their claim. one vast grouping all day, which means that we are constantly interrupting the Minister because he is Baroness Lister of Burtersett: Is the noble Lord about to move on to something else and we cannot saying that you can get backdated money for the have a discussion on different topics? It would have assessment period? been perfectly simple to have turned it into something like four groups on the different issues. We could have Lord Freud: Yes, that is precisely the position. had a coherent discussion on each of those and then Lord McKenzie of Luton: Surely that is not right. It gone on to a wider discussion at the end. This way, we is backdated to the end of the assessment period? have been to-ing and fro-ing trying to get information. No wonder the Minister has sometimes had to shuffle Lord Freud: Sorry, I withdraw that. his papers. It is because of the way that this has been grouped. It is madness. Baroness Hollis of Heigham: Is the Minister saying that after 13 weeks you get paid a higher rate even if Noble Lords: Hear, hear. you have not been assessed because the assessment is taking longer than your 13 weeks? It might take 20 weeks Lord McAvoy: I am not as sympathetic as the noble or 25 weeks. Is that what he is saying; that it is okay for Baroness, Lady Hollis, on this because we co-operated part of the period to get the higher rates but the lower in getting the groupings and the Minister knew the rate period counts in the run-up to that? Is that what groupings that were coming. That sounds uncharitable, he is saying? but there is no doubt that he has made absolutely every effort. That it has taken so long to answer Lord Freud: Yes. questions demonstrates the complexity of the whole group of amendments. Baroness Hollis of Heigham: Forgive me, but that seems to be a very confused position. Lord Freud: I feel drawn to say, in response to the noble Baroness, that I was very happy with how the Lord Freud: Whether it is confused or not, the amendments were grouped, because it allowed me to position is that, when you are claiming the ESA rate, deal with a complicated set of issues in their entirety. the first 13 weeks you are in the assessment phase you When amendments are degrouped you very often find are on the lower rate. Then you go on to the standard that you are arguing one thing at one time and then WRAG rate from week 14. miss a key part of your argument and have to repeat it. GC 47 Welfare Reform Bill[LORDS] Welfare Reform Bill GC 48

[LORD FREUD] the impacts of the provisions, although it does not So I would plead with the noble Baroness to accept deal with them entirely. For example, it does not deal that at least I was very happy with how it was done with the independent source of income, which my and that we got through a very difficult set of issues—I noble friend Lady Lister was concerned about. know how difficult they are—in reasonable order. My noble friend Lady Gibson was also concerned about the very existence of Clause 51, and there were The Deputy Chairman of Committees (The Countess some very moving examples from my noble friend of Mar): My Lords, if I could offer some guidance, the Lady Hayter. The noble Lord, Lord Patel, led the groupings are informal and noble Lords are perfectly charge on the challenge that the assessment period at liberty to decouple amendments if they are not should not be included, that Clause 51 should not be happy. there at all and that there should not be a start to this before the legislation comes into force. There was an Baroness Hollis of Heigham: The noble Baroness interesting reference to Lib Dem conference resolutions, the Deputy Chairman of Committees is absolutely which we might keep in our sights. right, but you do have to lead on the amendment However, we should thank the Minister for a very group to have that right. full series of exchanges on a lot of detailed points. Fundamentally, this comes back to costs, which he always quotes at us. I agree that we shall have to study Lord McKenzie of Luton: To satisfy both my noble Hansard and get into the figures. He could not resist friends, there is a balance to be struck between making the jibe about the deficit, although I wish he had decent progress on the Bill and having coherent because I could have resisted pointing out that we have discussions. I hope that we have achieved both, or will had an international financial crisis that has affected achieve both, today. all major economies. I come back to the Minister’s response, but will comment on what other noble Lords have said. The Baroness Hollis of Heigham: Driven by bankers in overall tenor of our very powerful debate this afternoon their former lives. is clearly to the effect that people are extremely unhappy with these provisions. Comments have ranged from Lord McKenzie of Luton: Driven by bankers— suggesting that we should not have them at all, with thankfully not accountants. With great respect, I normally Clause 51 not standing part, to a series of detailed find the Minister convincing but he was not convincing amendments. Noble Lords have made a range of extremely on the assessment period, and at the end of the day pertinent points. The noble Baroness, Lady Meacher, acknowledged that he had concerns about that. As to talked about job prospects and asked where the fairness the definition of whether the proposal is backdated or was in this. My noble friend Lady Lister talked about not, starting this process up to 12 months before the the value of the contributory principle and making legislation comes into effect is a very unusual way to sure that it does not get lost, as well as the quality proceed. impact assessment and the challenges of denying people an independent source of income. Part of the reason why we are going down this path is that the Minister said right at the start of his The noble Baroness, Lady Thomas, talked about response that we should expect people to avail themselves the changing of the rules. We do not have an answer of the help and support available. He also said that a yet as to why the Government changed their mind on lifetime on benefits is no longer an option. I would not that, and the Minister may wish to respond further in disagree one iota with that, but no one is arguing for a due course. The noble Baroness, Lady Morgan, raised lifetime on benefits—certainly not for those who can a range of concerns focused on how the WCA works, move closer to the labour market and into work. That and how people access the support group, particularly is not a matter between us, but the noble Lord did not those who are terminally ill. The noble Lord, Lord deal with the point about the WCA, around which Wigley, was one of those noble Lords concerned about there is a lot of discussion. We all want it to work as it whether Clause 51 should exist at all, while the noble should do, but is there not, when people are allocated Lord, Lord German, talked about the WCA getting it to the WRAG or the support group—certainly the right. I absolutely agree, and we have common cause WRAG—a prognosis that goes with them that says on that, but we should get it right irrespective of these how long they are likely to be in that group and, provisions as it serves a purpose around conditionality therefore, when they are likely to be fit to join what is and support that should be available to people. currently the JSA group? That is the hope and that is As for what is arbitrary and what is not, I warm to how it works. The Minister has said that in the past the Minister’s definition—it is what others do, so it is and told us that that prognosis is tested before someone not arbitrary. On that basis, we might almost apply to is moved off benefit. We therefore have a process by join the euro, but I do not think that the Minister which an individual judgment is made about how long would suggest that. people will be assumed to be in the WRAG, and then Our amendment fundamentally looked at these things ultimately, when that time is up, whether they should being dealt with by way of orders, so you could build remain in the WRAG, go into the support group or an evidence base as to what was appropriate. Yes, we join JSA. We have an individualised process, do we had a two-year minimum, which one would accept not? Why can that not be used? was not based on the most robust of evidence. My This is where we fundamentally differ from the noble friend Lady Hollis warmed to the thrust of the Government: if the object is to ensure that people can amendment, as it was one way to ameliorate some of stay in the WRAG for as long as they need to and have GC 49 Welfare Reform Bill[8 NOVEMBER 2011] Welfare Reform Bill GC 50 the benefit of the contributory ESA system for as long to establish that if that link in the WRAG is broken as is necessary, is that not a fair way of proceeding? On because of the 365-day rule, when people end up in the the other hand—I think that this is probably the support group they are not disconnected from those Government’s position because we need to save money—is earlier national insurance contribution conditions, the Minister saying, “We do not care how long you particularly the first one. We will certainly want to need to stay in the WRAG; after a period your come back to that in detail. contributory benefit will be chopped”? It seems that We will not have a meeting of minds on this today the position is not related in the Government’s mind but I am sure the Minister will reflect, as he always to how long people should need support in the WRAG. does, on the data, facts and arguments that have been put to him. It seems very clear today that, overwhelmingly, Lord Freud: If the noble Lord would like me to, I those arguments have been against what the Government can give him a little information on that. The latest are proposing. Having said that, I beg leave to withdraw data show that among all those assessed to be in the amendment. the work-related activity group at their initial WCA, Amendment 71M withdrawn. 91 per cent have a prognosis of 12 months or less. However, it is placing an awful lot of weight on such a Amendments 71N and 71P not moved. prognosis to build a system around it. I would personally feel pretty uncomfortable about it. However, the data Amendment 72 make the point about the expectation that the curve is Moved by Lord Freud rather similar to what you would expect regarding 72: Clause 51, page 36, leave out lines 31 to 35 and insert— the potential for people to come off—certainly, the “(3) In calculating for the purposes of subsection (1) the WRAG element—on that prognosis. length of the period for which a person is entitled to a contributory allowance, the following are not to be counted— 7pm (a) days in which the person is a member of the support Lord McKenzie of Luton: Is it not the case that the group, same prognosis is used for remuneration of providers (b) days not falling within paragraph (a) in respect of which in the work programme because that determines which the person is entitled to the support component referred to in section 2(1)(b), and remuneration slot they are in? (c) days in the assessment phase, where the days immediately following that phase fall within paragraph (a) or (b). Lord Freud: The standard position on the work (4) In calculating for the purposes of subsection (1) the length programme is that people whose prognosis goes into of the period for which a person is entitled to a contributory the three-month phase then go into work programme, allowance, days occurring before the coming into force of this which provides a heavy incentive at that stage to help section are to be counted (as well as those occurring afterwards).” those people back into the workplace. Amendment 72A (to Amendment 72) not moved. Amendment 72 agreed. Lord McKenzie of Luton: Perhaps I might move on. The noble Lord has stacked up the costs of these Amendments 73 to 75A not moved. various amendments. However, the Government have Clause 51, as amended, agreed. not reflected on who is bearing those costs. That is a point made by several noble Lords during the debate. It is not just spread equally across the population or Clause 52 : Condition relating to youth pro rata to resources across the population. It is concentrated on a range of people who are in the Amendment 76 work-related activity group, who we want to move Moved by Lord Freud closer to the labour market but who are currently 76: Clause 52, page 37, line 10, leave out subsection (5) and neither in work nor, according to the analysis, fit for insert— work. That is the fundamental issue that we are trying “(5) In calculating for the purposes of subsection (4) the to get to grips with. I am sure that the amendments length of the period for which a person is entitled to an employment that we have discussed in Grand Committee today and support allowance, the following are not to be counted— will all be withdrawn but I have no doubt that we (a) days in which the person is a member of the support will revisit them in one form or another when we get group (within the meaning of Part 1 of the Welfare to Report. Reform Act 2007), (b) days not falling within paragraph (a) in respect of which I thought that the noble Lord had reassured me on the person is entitled to the support component referred the decoupling of people in the support group when to in section 2(1)(b) of the Welfare Reform Act 2007, he first spoke. When we followed that up, I was much and less reassured. The claim that this does not affect (c) days in the assessment phase (within the meaning of people in the support group could be difficult to Part 1 of the Welfare Reform Act 2007), where the days sustain in circumstances where they get disconnected immediately following that phase fall within paragraph (a) by the national insurance rules. I urge the Minister at or (b). least to reflect on that to see whether there should be (6) In calculating for the purposes of subsection (4) the length some change in or expansion of the linking rules. We of the period for which a person is entitled to an employment and are dealing here with a situation where, currently, support allowance, days occurring before the coming into force of this section are to be counted (as well as those occurring afterwards).” there would be a continual claim whether someone was in the WRAG or the support group. We seek only Amendment 76 agreed. GC 51 Welfare Reform Bill[LORDS] Welfare Reform Bill GC 52

removal of this long-standing right will undermine the Amendment 76ZA goal shared by all of us of supporting disabled people Moved by Baroness Lister of Burtersett to live independent lives. 76ZA: Clause 52, leave out Clause 52 and insert the following In fact, the justification that we have received for new Clause— ending the long-standing consensus on this matter is “Condition relating to youth nothing to do with principles or even costs, unlike For paragraph 4 of Schedule 1 to the Welfare Reform Clause 51. It is primarily, I understand, about Act 2007 (condition relating to youth) substitute— administrative simplicity. It is stated that abolition of “4 The third condition is that— the youth concession is a simplification and will create (a) the claimant has limited capability for work-related consistency in the run-up to the introduction of universal activity; credit. I am not sure that any policy that increases (b) he was under 20 when the relevant period of limited reliance on means-tested benefits, which the impact capability for work began; and statement acknowledges will be the case, adds to the (c) he has had limited capability for work for at least 28 sum of simplicity in the benefits system. I do not think weeks.”” that tidy alignment for administrative purposes is a good enough reason to withdraw a long-standing right, Baroness Lister of Burtersett: I rise to speak relatively not least because alignment of the rules with those for briefly, the Committee will be relieved to hear, to move contributory ESA would be another option open to the amendment and to support the noble Lord, Lord the Government. Patel, in opposing the Question that Clause 52 stands A rather more persuasive argument on first sight part of the Bill. is that those receiving contributory ESA are not Currently, people who are disabled from birth or automatically entitled to passported benefits, to which early in life may claim ESA in youth from age 16. This they would be entitled were they receiving income-related has, in different guises, been a feature of the Social ESA. However, this is true of those receiving contributory Security system since 1975. When it was incorporated ESA generally, not just young people. Therefore, it is a into ESA in the Welfare Reform Act 2007, I understand problem that should be resolved for all this group as that the then Opposition did not question the inclusion part of the current review of passported benefits. Can of young people. Indeed, during the Lords Committee the Minister assure us that those who would have stage, the noble Lord, Lord Skelmersdale, from the qualified for income-related ESA under the present Front Bench, asked my noble friend Lord McKenzie system will continue to receive passported benefits of Luton why young people should receive a lower under the new regime? If he cannot give us this assurance rate of ESA during the initial assessment phase. The now—and I understand about SSAC looking at all implication was that the Conservatives not only supported this—then this justification is rather weakened. the inclusion of young people, but thought they should be included on more generous terms. Similarly, Liberal The availability of contributory ESA is of particular Democrat spokespersons in both Houses, one of whom importance to certain groups of disabled young people. was Danny Alexander—now in the Treasury—were I am grateful to the Child Poverty Action Group for at that time pushing for more generous treatment of providing me with a number of case studies that young people. illustrate the kind of people particularly affected. It thus seems rather strange that in the other place, First, there are young disabled people who have the Minister commented that, been temporarily in and out of local authority care or “It seems to be an oddity that a young person with a disability have moved areas, as it provides a secure, independent or a health challenge, regardless of their circumstances, should automatically be able to migrate to contributory ESA even if they income. I know that there are a number of noble have never worked”. Lords here who have particular concerns about this As the Minister acknowledged: group of young people generally. I do not think that the names I shall use are real but they are real examples. “This may not have been debated hotly in the past”.—[Official Sanjeet, who is in foster care, is at school and planning Report, Commons, Welfare Reform Bill Committee, 3/5/2011; col. 654.] to go to college. He is aged 18, severely disabled and lives with foster carers. He was advised to claim ESA I would suggest that this is because it has been accepted in youth to give him some of the extra income and for nearly 40 years that it is fair and proper to include independence that he needs. We should note that a disabled young people in the contributory system. severely disabled young person such as Sanjeet may The availability of contributory ESA provides those have limited earnings capacity during his life and may who become severely disabled in youth with a sustainable not have parents who can provide financial support. If income to support their transition to independent he has to rely on a means-tested benefit, he will never adulthood in particularly difficult circumstances. It be able to build up savings beyond the £16,000 limit to has long been accepted that the normal contribution help him with equipment, housing and so on for conditions should not apply in order not to exclude a independent living. group whose members have not had the opportunity to build up a contribution record and may well not Another example is Anna, who lives with a kinship have that opportunity in the future through no fault of carer. She is 16 and has been living with her grandmother their own. For those who are hung up on the “something since her mother died. Anna has severe problems with for something” principle, I think we can agree that it depression and post-traumatic stress. She is not working can be suspended in these circumstances. Instead, the or in education. Her grandmother is struggling to GC 53 Welfare Reform Bill[8 NOVEMBER 2011] Welfare Reform Bill GC 54 support her out of her pension. Anna was advised to The impact assessment also says that about 15,000 claim ESA in youth to provide her with her own people a year are likely to be affected. A fifth of these, independent income. who have no other income, will receive the same Another group is young disabled people who have amount of benefit in income-related ESA. It is estimated built up savings to be used for an adapted car, disability that a further 70 per cent will qualify for income-related equipment, a deposit on a property or future care ESA, either at the same rate or at a lower rate, with an needs. In the absence of non-means-tested support, estimated average loss of £25 a week. That is not an using savings for basic daily living costs will have insubstantial amount, even if it does open up eligibility long-term implications for the welfare state when these to passported benefits. people’s carers—usually elderly parents—are no longer Finally, one in 10, or 1,500 a year, will lose all able to provide care and accommodation. entitlement to benefit, probably because they have a An example of this group is Jackie, who is 19 and in partner in full-time work. This is a small group. I full-time education. She has Down’s syndrome and hesitate to use the word vulnerable because the noble gets the DLA highest-rate care component and lower-rate Baroness, Lady Campbell of Surbiton, has reminded mobility component. When her parents stop claiming us that disabled people are not intrinsically vulnerable benefit for her, she can claim ESA in youth as her own but made vulnerable by disabling institutions and independent income. Jackie’s parents think that their circumstances. This clause will increase the vulnerability daughter will never work and she will not have an faced by a small group of young disabled people, inheritance from them, so having a contributory benefit particularly those in the kind of difficult circumstances of her own means that she will have the option of I have mentioned. The savings are miniscule: an estimated saving from her DLA towards the cost of future £11 million net per year. disability-related needs. If her parents were able to Who was consulted on the likely impact of what I leave her some money, she would be able to keep it am afraid I see as a mean-minded little measure? I find to fall back on if she had contributory ESA in youth it difficult to believe that the Minister is comfortable but not if she had to rely on income-related ESA with justifying it. I hope that he will therefore be able to the capital limit. give us some indication that he is prepared to reconsider Another group is young disabled people who may and, at the very least, that he will look favourably on be vulnerable to forming unsuitable relationships or this amendment, which would at least retain contributory may avoid forming a suitable relationship due to fears ESA for young people in the support group. This about losing an independent income. The case study is would be consistent with the exemption of this group Caitlin, who has learning difficulties and is aged 20. from the one-year time limit. I beg to move. She gets DLA and is attending a life skills course at college. To move towards independence, she is advised 7.15 pm to claim ESA in youth, topped up by income-related Lord Patel: My Lords, I support the amendment ESA. Caitlin is currently living at home with her moved by the noble Baroness, Lady Lister, but I would parents. Having a contributory benefit of her own also remove Clause 52 from standing part of the Bill. means that she could in the future choose to form a Many charities including Clic Sargent, a charity which relationship without fear of losing her independent supports children with cancer, and other disability income. charities are also against this clause. The charities, Moving on to young disabled people in education, such as that leading charity for young people with the example is Nadia, who has cystic fibrosis. She is at cancer, have serious concerns because of the negative university and gets ESA in youth. She has tried to impact that proposals in the Bill will have on young work but has been unsuccessful because of the effect cancer patients and other disabled young people. I on her health. Unlike other students, she cannot support believe the Government must undertake a proper herself through university by working during the year assessment of the financial support available to those or in the vacations. Her ESA in youth helps to make young people with long-term health conditions and/or up for this. Because it is contributory, it is not reduced disabilities before making these changes, as well as because of her student loan. Had she needed to claim considering the cumulative impact of their programme income-related ESA instead, she would have been of welfare reform on this age group. entitled to little or nothing during the year because of I emphasise that my proposals do not seek to secure the means test. higher rates of benefit for those aged 16-24 but simply The CPAG is also concerned about young disabled to ensure a more level playing field in relation to people trying out work. It says that the removal of access to benefits and financial support. For example, contributory ESA in youth would bring young disabled I believe it is wrong that students with a long-term people into the universal credit system. The current illness must already be in receipt of DLA to be eligible permitted work rules for ESA provide a useful opportunity for income-related ESA. These proposals are supported for young disabled people to try work without having by other charities too, particularly young disabled an effect on their benefits, in some cases for an indefinite peoples’ charities. period. There are concerns that the transfer to the As far as cancer is concerned, every day 10 families universal credit system will increase complexity and are told that their child has cancer. A study in 2007 reduce the incentive to work for people whose main found that 83 per cent of families incur significant objective is stability and security of income. The impact extra costs associated with their child’s cancer treatment, assessment says that there may be a “positive employment with 68 per cent of families experiencing worrying impact” from this change, but it does not explain how financial difficulties. New research, published last and why, so perhaps the Minister could do so. December, found that on average young people with GC 55 Welfare Reform Bill[LORDS] Welfare Reform Bill GC 56

[LORD PATEL] The eligibility of young people for benefits is extremely cancer spent £277 each month over and above their dependent on their circumstances, particularly in relation normal expenses, as a result of their illness. Half of to their education status. There are serious concerns, those young cancer patients surveyed had to borrow for example, about how students are treated under the money as a result of their illness. More than one in system. Full-time students are able to claim income-related five had borrowed over £1,000, with almost one in ESA only if they are already in receipt of DLA. I can 10 borrowing over £2,000. The top two expenses were give noble Lords a case study. This is another example travel and clothing. of how the eligibility rules currently disadvantage My proposal would retain the youth provisions for young people. I am also concerned about the knock-on contributions-based employment and support allowance effect of many young cancer patients who are students and would ensure that young people with long-term becoming ineligible for DLA as a result of the introduction health conditions and/or disabilities are not disadvantaged of PIP, removing their eligibility for ESA. It is critical under the proposed new arrangements for ESA. The that the Government ensure that the eligibility of reason for these proposals is clear; under the youth students with long-term health conditions and/or provision, a person under the age of 20 who is not in disabilities for ESA is not dependent on their receipt full-time education and who has had a “limited capability of DLA. for work” for 196 consecutive days can gain entitlement I shall give noble Lords an example of a student. A to contributory ESA despite not having reached the young woman of 20, who was a full-time university contributions threshold. ESA youth claimants are disabled student, was diagnosed with an aggressive sarcoma people who are aged 16-19 inclusive or who satisfy the and came home to have treatment. Her mother is a age exception rule, which revolves around rules for single parent on income support with a younger child. education or training, if aged between 20 and 25; they The mother’s former partner died of cancer during the have at least 28 weeks of continuous medical evidence young woman’s treatment, meaning that the mother to support a claim for ESA; they are not in full-time no longer received child maintenance for a younger education; they have been resident and present in child. The young woman was refused DLA initially Great Britain for 26 out of 52 weeks prior to the claim; and, as a result, was ineligible for ESA. In addition, and they do not meet the normal national insurance this meant that the mother was not eligible for carer’s contribution requirements. allowance, nor did the patient have access to a student The youth rules were introduced for incapacity loan, as she had taken a year out from university to benefit in April 2001 as a result of provisions in the have treatment. The family of three was therefore Welfare Reform and Pensions Act 1999, which were living on the mother’s income support alone and was intended to, in huge financial trouble, completely unable to pay the Bills and under a lot of stress. The social worker, “refocus benefit on people disabled early in life who have never had the opportunity to work and gain entitlement to incapacity supported by CLIC Sargent, applied for a reconsideration benefits through the payment of contributions”.—[Official Report, and the patient was awarded DLA, which meant that Commons, 6/11/00; col. 96W.] she could get ESA, her mum got carer’s allowance and The rules were carried over into ESA following the they got some housing and council tax benefit. Without Welfare Reform Act 2007, again to ensure that young the DLA and other benefits, this family would simply people who might not have had the opportunity to not have been able to cope financially. build up a sufficient contribution record would not be A further 10 per cent of people will lose almost excluded from the non-means-tested allowance. £100 a week by virtue of not qualifying for income-related The Government intend to abolish the youth condition ESA. Over a year, this amounts to £5,000. Only 20 per as part of the Welfare Reform Bill, as well as time-limiting cent, or just under 3,000 claimants, will get exactly the its receipt to 12 months for existing claimants. The same amount of income-related ESA that they would justification for this change, as set out in the impact have got under the youth provisions. Based on government assessment, is that it will simplify the benefits system estimates, this loss of income may affect as many as and ensure consistency of treatment for those claiming 10,000 people by 2015-16. It is wrong that this saving ESA. This assessment completely fails to recognise should be levied from such a small group of vulnerable that young people with long-term health conditions young people. Indeed, the department’s own impact and/or disabilities are already in a place of disadvantage assessment notes: in comparison with older adults, hence the introduction “The abolition of the ESA ‘Youth’provisions is more likely to have an impact on disabled people because ESA is directly of the youth condition in the first place, and that this targeted at people with health conditions that limit their ability to change will entrench this disadvantage. This will mean work. There is a risk that the affected group will be more likely to that young people, including those unable to work need more support because of their condition than all ESA because of cancer, for instance, will be extremely unlikely customers”. to be able to access the contributory element of ESA My amendment is linked to my subsequent amendments and will have recourse only to the means-tested income- in that they all seek to create a more level playing field related element to be subsumed into universal credit. for those young people with long-term health conditions Youngpeople who are ineligible for the income-related and disabilities who require support through the benefits component, which will include those with a partner system. who works more than 24 hours a week and some full-time students, could therefore lose up to just under £100 a week. This will have a devastating impact on Baroness Hollis of Heigham: I wanted to say only those who are unable to work and are struggling with that I support the very moving amendments of my the significant additional costs of a cancer diagnosis. noble friend Lady Lister and the noble Lord, Lord GC 57 Welfare Reform Bill[8 NOVEMBER 2011] Welfare Reform Bill GC 58

Patel. When we introduced the 1999 Act, which I for contributory ESA without having paid or being remember vividly, and replaced invalidity benefit with treated as having paid national insurance contributions. incapacity benefit, we considered and decided against Nor does any other contributory benefit have similar the proposals that are now being introduced. This was arrangements. The vast majority of claimants who primarily on the grounds of decency, but behind that presently receive contributory ESA on the grounds of lay another argument. The group that we were most youth—around 90 per cent—are expected to receive concerned about at that time was not so much the income-related ESA. Those who do not qualify for cancer patients to whom the noble Lord, Lord Patel, income-related ESA are likely to have capital in excess referred, but those people with severe learning difficulties of £16,000 or a partner in full-time work who may be who would never find their way fully into the labour entitled to working tax credit. Clause 52 removes these market and, as a result, could never build up contributions special rules. or savings. They might at some point receive a modest legacy or something that would help them but we did 7.30 pm not want contributory IB to be dependent on that Amendment 76ZA seeks to retain these measures. lottery. Therefore, we did not go down that road. It would retain the provision for people who are in the Given the very small sums of money involved, in the support group who have limited capability for work-related interests of decency and given that such young people activity. The amendment extends further than the cannot build up the financial resources—and often the existing provisions in that it extends the youth provisions practical resilience, with the help of partners and so to claimants in full-time education and to more persons on—to allow them to cope, I very much hope that the living outside Great Britain by the removal of the Minister will think strongly about reconsidering the residence and presence rules. We do not think it is approach taken in Clause 52. right that people who do not have a recent link to The Earl of Listowel: My Lords, briefly, I join in the Great Britain should be eligible for our benefits. request for the Minister to think very carefully about We want to ensure equal treatment for all groups these matters. I have been moved by the speeches on when establishing entitlement to contributory benefit. this amendment. Reference was made to children leaving We believe our proposals have built-in support for this care, which certainly resonated with me. We know that group of claimants. The vast majority of this group, disabled children are greatly overrepresented among around 90 per cent, are expected to receive income-related children in care. We know that the transition from care ESA. The amendment would add complexity to the is very difficult for many children without disabilities, benefit system because it would allow full-time students so those with disabilities may be doubly disadvantaged in this group to be entitled to ESA. It is not intended as they make that transition into adulthood. Furthermore, to be paid to students in full-time education. Income- we also know that for children with disabilities, in the related ESA is made available because of entitlement general run, the turnover of social workers and many to DLA. This is because we do not want the benefits disturbances mean that the transition to adulthood system to support students. We believe that linking and adult services is often very problematic. There are eligibility to DLA enables those with continuing conditions many good reasons why this amendment should be to receive additional financial support. This provision given careful consideration. I look forward to what I will continue. hope will be a sympathetic response from the Minister. Importantly, this amendment would add complexity by exempting this group from our well established Lord McKenzie of Luton: My Lords, on this occasion rules on residence and presence in Great Britain. The I am happy to be at one with my noble friend Lady amendment would also disadvantage ESA youth claimants Lister and the noble Lord, Lord Patel. I am not sure by requiring limited capability for work-related activity that I am happy to be reminded about being assailed to be demonstrated before someone was entitled to from the left by the noble Lord, Lord Skelmersdale; I ESA on grounds of youth. Under this amendment, we try to put those memories far behind me. These are would not be able to pay ESA until the WCA had been two important amendments and I hope that the carried out. Government will consider them seriously and take I pick up the point from the noble Baroness, Lady them on board. As my honourable friend Stephen Lister, on passported benefits. One of the positive Timms said in another place, it is, consequences of the abolition of the ESA youth provision “very hard to understand the Government’s justification for is that young people who qualify for income-related abolishing ESA for those people”.—[Official Report, Commons, Welfare Reform Bill Committee, 3/5/11; col. 645.] ESA instead will automatically qualify for passported He said that it is a measure that seems “unreasonably benefits such as free NHS prescription charges, rather punitive”. I agree. than having to claim such help separately. As the noble Baroness mentioned, we have asked the Social Security Lord Freud: My Lords, I shall briefly explain what Advisory Committee to let us have a report about the the existing rules are for young people. Special conditions eligibility for passported benefits, and we have not yet for young people who are exempt from meeting the received that report. It would therefore be somewhat usual PAYE national insurance conditions are set out premature at this stage for me to say precisely what the in paragraph 4 to Schedule 1 to the Welfare Reform future arrangements for passporting would be under Act 2007. These provide that a person aged 16 to 19, the universal credit. or 20 to 25 in certain prescribed circumstances, who is If this amendment was accepted it would reduce not in full-time education and has had a limited capability the expected cumulative benefit savings by around for work for 196 consecutive days, will be entitled to £10 million by 2015-16. I ask the noble Baroness to contributory ESA. No other age group can qualify withdraw her amendment. GC 59 Welfare Reform Bill[LORDS] Welfare Reform Bill GC 60

Baroness Lister of Burtersett: My Lords, perhaps it be in paid work to get their contributions. I have to say is the lateness of the hour but I did not think that the that I am disappointed by the Minister’s response and Minister read his brief with his customary gusto. I I hope that perhaps he will reflect on what has been hope that that reflected his embarrassment at trying to said and think again about this. He then came back justify what I called a mean-minded measure. I did not and said that there would be a cumulative saving of know that the previous Government had considered £10 million. I mean, really—£10 million is absolute this, and I am very glad that they decided not to take it peanuts in public spending terms. further, as my noble friend said, on the basis of decency. We are talking about decency here and this is an Baroness Hollis of Heigham: It is a margin of error. indecent clause. The amendment is purely a fall-back amendment. It would be much preferable if the Minister simply said, “We will continue with the status quo”. Baroness Lister of Burtersett: A margin of error—I Therefore, the amendment would not be necessary. It thank my noble friend. We are told that this is not is a minimalist amendment and, if it creates new about saving money. Therefore, it is totally inappropriate problems, they could of course be considered. However, to say what the cumulative savings will be if it is not if the clause were to be withdrawn, we would not have about saving money. With a heavy heart, I beg leave to to worry about the amendment. withdraw the amendment. I take the point about why the Minister cannot give Amendment 76ZA withdrawn. us an assurance now about passported benefits, but I suggest that that should not therefore be used as a justification for this measure, given that we do not Clause 52, as amended, agreed. know who will be receiving passported benefits under universal credit. The Minister said that no other age Lord Freud: My Lords, this may be a convenient group has this kind of concession. Of course there is moment for the Committee to adjourn until Thursday no other age group because any other age group would at 2 pm. normally be in paid work and be able to get their contributions. The whole point is that this group cannot Committee adjourned at 7.36 pm. WS 11 Written Statements[8 NOVEMBER 2011] Written Statements WS 12

with a much reduced budget. That represents a stride Written Statements forward for the agency but, as I discussed with leaders of farming representative bodies last week, there remains Tuesday 8 November 2011 some distance to go before I could be happy that farmers are receiving the service they deserve. I am clear that further strides towards that goal must be Agriculture: Single Payment Scheme made in the indicators that are set for subsequent Statement years and that communications with farmers who are not paid early in the window must be improved now. I know the RPA chief executive has heard the clear The Parliamentary Under-Secretary of State, Department message from farm leaders on the latter point and will for Environment, Food and Rural Affairs (Lord Taylor ensure steps are taken to address it over the coming of Holbeach): My honourable friend the Minister for months. Agriculture and Food (Jim Paice) has today made the following Statement. I will continue to keep the House informed on the agency’s progress. In the Statement made by my right honourable friend the Secretary of State (Caroline Spelman) on 14 July (Official Report, Commons, cols. 41-44 WS), Armed Forces: Medals she explained that the RPA business plan for 2011-12 Statement would be updated when the agency’s strategic improvement plan (SIP) was finalised. Work on constructing that plan is progressing well and the new RPA management The Parliamentary Under-Secretary of State, Ministry team is already taking forward some components. of Defence (Lord Astor of Hever): My right honourable However, as there may be public expenditure implications, friend the Minister for Defence Personnel, Welfare it has been necessary to factor in additional time for and Veterans (Andrew Robathan) has made the following scrutiny and approvals processes before the plan can Written Ministerial Statement. be finalised. Consequently, my expectation is that the Her Majesty the Queen has given her approval to a SIP will now be ready for publication in the first recommendation from the Committee on the Grant of quarter of 2012. Honours Decorations and Medals that those entitled In the mean time, the RPA Oversight Board, which to accept the Pingat Jasa Malaysia (PJM) medal should I chair, has reviewed the existing indicator in the now also be permitted to wear it. business plan for demonstrating that payments under The Government of Malaysia introduced the medal the 2011 single payment scheme (SPS) are made in an in 2005 and awarded it to British and Commonwealth accurate and cost-effective manner. In doing so, we veterans who had served in the conflict in Malaya in have considered progress on both 2011 scheme processing the late 1950s and 1960s. Approval is not normally and work to address legacy errors. In line with my given for foreign medals to be accepted if British earlier statements, the agency has been undertaking recognition for the same campaign has already been corrective action on the remaining known legacy data presented. As an exception, veterans were originally problems alongside the processing of 2011 SPS claims. permitted to accept but not wear the medal. This was I am pleased to say that that corrective work on the done to recognise the generous gesture by the King known error cases remains on track to be completed and Government of Malaysia, and their wish to award by the end of the payment window on 30 June 2012, the PJM in recognition of service given by many with further analysis planned on potential cases. veterans in the difficult years leading up to and following Outstanding top up payments have already been Malaysian independence. completed in respect of 2010 claims and are significantly Following this change to the original decision, we advanced in respect of longstanding requests raised by are taking action to ensure that as many holders of the claimants relating to earlier scheme year claims. medal as possible are aware to enable them to wear Against that background the Oversight Board has their medal with pride at Remembrance events this agreed the following additional indicators for 2011 week. SPS: by the end of December 2011 to have paid a Energy: Security of Supply minimum of 86 per cent of eligible claimants and 78 per cent of the total estimated value; and Statement by the end of March 2012 to have paid a minimum of 95 per cent of both the eligible claimants and The Parliamentary Under-Secretary of State, Department the total estimated value. of Energy and Climate Change (Lord Marland): My These indicators reflect a change in the focus of the honourable friend the Minister of State for Energy agency’s efforts towards processing the more difficult (Charles Hendry) has made the following Written Ministerial cases at an earlier stage, which is expected to increase Statement. the value of payments made at the beginning of the I have today laid before Parliament the 2011 Statutory payment window while maintaining performance on Security of Supply Report (SSSR), which has been the numbers of claimants paid in that period. Each produced jointly with Ofgem and with input from individual indicator betters or matches performance National Grid. The report is a technical document under any previous scheme year while both reducing, that provides factual information to the market on rather than adding to, legacy problems and operating security of supply. The report covers electricity, gas WS 13 Written Statements[LORDS] Written Statements WS 14 and oil. The latter is not a statutory requirement but is on the issues raised. This will provide me with extensive included for completeness. I have placed a copy of this evidence in respect of all the issues that will affect my report in the Libraries of the House. decision. In addition, I am also publishing today a risk A number of colleagues have understandably requested assessment produced for the purpose of the EU Security meetings regarding HS2 and I believe it is important of Gas Supply Regulation 994/2010. This is available that there should be an opportunity for me to hear on the DECC website at: http://www.decc.gov.uk/en/ directly from MPs on their views about HS2. Given content/cms/meeting_energy/en_security/eu_sec_reg/ that the consultation has closed, due process means it eu_sec_reg.aspx. would not be proper for me to respond to any substantive points that are made at this meeting. I wish to place on record that I will be providing Morocco MPs with an opportunity for such a meeting. I have Statement scheduled this meeting for 21 November and have written to all Members to ask them if they wish to The Minister of State, Home Office (Lord Henley): attend. The meeting will take place in the Palace of My right honourable friend the Secretary of State for Westminster. In the interests of transparency, I will the Home Department (Theresa May) has today made arrange for a transcript to be made available, as a the following Written Ministerial Statement. public record of the proceedings. I am pleased to announce that on Saturday 24 September my right honourable friend William Hague, the Foreign Secretary, and His Excellency Taieb Fassi Fihri, Moroccan Foreign Minister, signed a Memorandum of Understanding between the Railways: HS2 Ltd Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Statement Kingdom of Morocco concerning the provision of assurances in respect of persons subject to deportation on grounds of national security. Copies of the Memorandum of Understanding Earl Attlee: My honourable friend the Secretary of have been placed in the Library of both Houses and State for Transport (Justine Greening) has made the on the Foreign and Commonwealth Office website. following Ministerial Statement. Reducing the number and cost of public bodies is a There are a number of outstanding elements of the coalition priority. The triennial review process has arrangement which UK and Moroccan officials are been established to continue our work ensuring continuing to negotiate, along with a number of other accountability in public life by examining all NDPBs judicial agreements and arrangements. We will publish at least once every three years. I am announcing today further details when this process is complete. the triennial review of HS2 Ltd. This review has two The Government are committed to strengthening aims: our bilateral relationship with Morocco across a range to provide a robust challenge of the continuing of fields including measures to combat the shared need for this NDPB—both its functions and form; threat from terrorism. and if it is agreed that it should remain as an NDPB, to Railways: High Speed Rail review the control and governance arrangements in place to ensure that the public body is complying Statement with recognised principles of good corporate governance. Earl Attlee: My honourable friend the Secretary of The triennial review will build upon the internal State for Transport (Justine Greening) has made the review of the body conducted earlier this year. following Ministerial Statement. I will announce the findings of the review later this As the House will know, since taking up office as year in line with the decision on the response to the Secretary of State, a key early priority for me is to consultation on high speed rail. make a decision on the way forward following the If you would like further information, or to contribute Government’s recent consultation on high speed rail to the review, please contact my department or (HS2). [email protected]. My department received around 55,000 responses I remain committed to the ongoing review of public to the consultation and an analysis of them has been bodies and my department continues to work with the undertaken. I am being provided with detailed information Cabinet Office to develop forward plans of reviews. WA 29 Written Answers[8 NOVEMBER 2011] Written Answers WA 30 Written Answers Armed Forces: Aircraft Questions Tuesday 8 November 2011 Asked by Lord West of Spithead To ask Her Majesty’s Government what was the Agriculture: Regulation total number of Royal Air Force Nimrod aircrew Question serving as at 1 June 2011. [HL12848] Asked by Baroness Byford To ask Her Majesty’s Government how many of The Parliamentary Under-Secretary of State, Ministry the recommendations made by Richard MacDonald’s of Defence (Lord Astor of Hever): The decision to Task Force on farming regulation have been acted withdraw the Nimrod R1 was taken by the previous upon; how many are pending; and how many have Government. been rejected. [HL12794] As at l June 2011, only the Nimrod Reconnaissance 1 (R1) was flying. There were 56 aircrew serving in The Parliamentary Under-Secretary of State, Department direct support of the R1 on 1 June 2011, including for Environment, Food and Rural Affairs (Lord Taylor those who occupied posts requiring Nimrod aircrew of Holbeach): The Farming Regulation Task Force experience. made over 200 recommendations to reduce the burden In addition, 210 former Nimrod aircrew were awaiting of regulation. Some were specific to particular issues, assignment on 1 June 2011. That number is reducing and others concerned longer-term challenges, for example as personnel are found other assignments and will be changing the way EU regulation is shaped. The Government further reduced by tranche one of the RAF redundancy undertook to provide an initial response to the report programme. in the autumn and a final response early in 2012. At the time the Nimrod MRA4 upgrade project The Government’s initial response to the task force was cancelled in October 2010, the forecast in-service will be published shortly on the Defra website. The date was 2012. The project was therefore nine years response will set out the progress made to date on a late and £3.9 billion over budget. None of the aircraft number of cross-cutting themes, such as changing the had been released into service at the time the project way government works with the industry. was cancelled. The Government intend to respond as positively as Asked by Lord West of Spithead possible to the recommendations made, but it is not To ask Her Majesty’s Government what additional possible at this stage to give an accurate indication of flying and exercises are being undertaken by the how many will be accepted or rejected. The final Royal Naval Merlin force now it is responsible for response will be published early in the new year, and the tasks formerly conducted by the Royal Air will set out our agenda for action. Force Maritime Patrol Aircraft Force. [HL12855]

Arab Partnership Initiative Lord Astor of Hever: The Royal Navy’s Merlin Question Mk 1 force has undertaken the following additional Asked by Lord Luce flying and exercises which would previously have been conducted by Royal Air Force Maritime Patrol Aircraft To ask Her Majesty’s Government what resources (MPA): they have, by category, in order to implement the increased safety range clearance for Sea Dart High Arab Partnership. [HL12839] Seas Firing; participation in two anti-submarine warfare (ASW) The Minister of State, Foreign and Commonwealth exercises, which were designed primarily for the Office (Lord Howell of Guildford): The UK has committed MPA; and £110 million over four years to the Arab Partnership. This comprises a £40 million Arab Partnership additional flying in support of ASW trials and Participation Fund to support political reform, and a tactical development of new systems and capabilities. £70 million Arab Partnership Economic Facility MPA tasks are carried out by a range of air and to be managed by the Department for International maritime assets including Type 23 Frigates, C-130s Development. So far, the Arab Partnership has allocated and helicopters. over £6.5 million to 46 projects in nine countries. This includes £1.86 million to strengthen political participation, £2.14 million to promote freedom of expression Armed Forces: Atomic Test Veterans and public voice; £0.92 million on the rule of law; Question £0.68 million on tackling corruption and increasing accountability; and £0.69 on youth employability and Asked by Lord Alton of Liverpool private sector development. The largest country To ask Her Majesty’s Government when they programmes are in Egypt and Tunisia (£1.7 million intend to reply to the letter sent by Mr David Whyte and £1.25 million respectively). The Arab Partnership to the Minister for Defence Personnel, Welfare and also supports programmes in Morocco (£540,000), Veterans, Mr Andrew Robathan, concerning nuclear Algeria (£460,000), and Jordan (£340,000), as well as test veterans; and whether they will place in the regional projects and individual projects in countries Library of the House a copy of their reply. such as Iraq and the Palestinian Territories. [HL12926] WA 31 Written Answers[LORDS] Written Answers WA 32

The Parliamentary Under-Secretary of State, Ministry The Commercial Secretary to the Treasury (Lord of Defence (Lord Astor of Hever): The Ministry of Sassoon): The Government committed in the coalition Defence (MoD) answered the letter on 3 November agreement to introducing stronger consumer protections, 2011. Correspondence between the MoD and members including measures to end unfair bank and financial of the public is personal and will not be placed in the transaction charges. The Government are putting this Library of the House. into action through the joint Department for Business, Innovation and Skills and HM Treasury consumer credit and personal insolvency review. In July 2011, Aviation: Regulations the Government published a summary of responses to Questions the call for evidence to the review. Asked by Lord Empey The call for evidence found that there have been significant developments in the market in recent years. To ask Her Majesty’s Government whether they As part of the Office of Fair Trading’s work, banks agree with the objections raised by the Civil Aviation have committed to introduce measures to improve the Authority to proposals on flight time limitations transparency of unarranged overdraft charges and made by the European Aviation Safety Agency. many have also revised their charging structures in the [HL13051] past two years. This has already led to some reductions— the average unpaid item charge has fallen by more Earl Attlee: Yes, the Government agree with the than half from £35 in 2007 to £14 in 2010. However, objections raised by the Civil Aviation Authority (CAA) responses to the call for evidence showed that there are in response to the proposals made by EASA on flight still serious concerns about how charges—including time limitations. the new charging structures—affect consumers, particularly where charges may be not be clear or Asked by Lord Empey transparent enough. To ask Her Majesty’s Government whether they The Government are working with the industry to intend to accept proposals made by the European determine the most appropriate course of action. We Aviation Safety Agency concerning flight time will, however, regulate to address consumer detriment limitations. [HL13052] if suitable alternatives cannot be agreed. The Government will make an announcement on Earl Attlee: The European Aviation Safety Agency this later this year. has yet to publish its final proposals. We will not support the proposals if they do not provide an adequate level of protection against fatigue. Charities Question Asked by Lord Empey Asked by Lord Ashcroft To ask Her Majesty’s Government whether they agree with the objections made by the British Airline To ask Her Majesty’s Government which charities Pilots Association to the proposals from the European received the largest contributions from the Department Aviation Safety Agency on flight time limitations. for International Development in each of the past [HL13053] five years. [HL13024]

Earl Attlee: The British Air Line Pilots Association’s Baroness Northover: UK charities receiving the largest objections are to requirements contained in draft proposals contributions from the Department for International that were issued for consultation by the European Development (DfID) in each of the past five years are: Aviation Safety Agency (EASA). The Civil Aviation 2006-07 British Red Cross; Authority responded to the consultation identifying 2007-08 British Red Cross; those parts of the proposal we supported and those 2008-09 British Red Cross; areas where we had some concerns. Details of the response can be found on the CAA website: www.caa. 2009-10 British Red Cross; and co.uk. 2010-11 Save the Children EASA is reviewing its proposals in the light of the Full details of funding to civil society organisations responses to consultation and will issue revised proposals are published in table 19 of Statistics on International in due course. It is too early in the rule-making process Development (SID) and are available on the DfID to say what will be in EASA’s final proposal. website: www.dfid.gov.uk.

Banks: Fees and Charges Egypt Question Question Asked by Lord Laird Asked by Baroness Kinnock of Holyhead To ask Her Majesty’s Government what proposals To ask Her Majesty’s Government what they have to require banks to reduce the charges representations they have made to the Government they impose on retail customers; and what action of Egypt to ensure that women are able to participate they are taking to monitor such charges. [HL12761] equally in the forthcoming elections and the wider WA 33 Written Answers[8 NOVEMBER 2011] Written Answers WA 34

political environment, including fair representation, Asked by Lord Alton of Liverpool in the light of the absence of women from the constitutional review committee. [HL12809] To ask Her Majesty’s Government whether the Human Tissue Authority will be consulting regarding The Minister of State, Foreign and Commonwealth payments to encourage blood and organ donation. Office (Lord Howell of Guildford): Women in Egypt [HL12995] continue to face obstacles that prevent their full participation in political and economic life. Staff from our embassy in Cairo have raised women’s rights, and Earl Howe: We do not have any plans to consult on how these would be protected and developed in the the issue of encouraging blood and organ donation future, with the relevant Egyptian authorities. via financial payments. It is an offence under the Gender equality, inclusiveness and human rights Human Tissue Act 2004 to offer or receive a reward are key dimensions in our Arab Partnership work, and for the donation of blood and organs for the purposes women’s participation is an important part of supporting of transplantation. transitions and building stability in the region. Through this work in Egypt, we are supporting a pilot project to strengthen women’s political participation by providing Energy: Nuclear Reactors women already engaged at the local level with the Question skills to organise successful campaigns and promote human rights. In all our work to support inclusive Asked by Lord Stoddart of Swindon political dialogue in Egypt we aim to ensure women are prominently represented. To ask Her Majesty’s Government what assessment they have made of the desirability of supporting the building of thorium-fuelled nuclear power stations Electoral Register in preference to uranium-fuelled stations. [HL12948] Question Asked by Lord Roberts of Llandudno Baroness Stowell of Beeston: Ultimately it is for To ask Her Majesty’s Government whether they industry to propose what type of fuel to use in any plan to set up registration points in schools, colleges, future nuclear reactors, the designs of which would be shopping centres and street markets to encourage subject to independent regulatory assessment and young people to join the electoral register.[HL13015] acceptance. To date, no potential operator has put forward proposals for a thorium-fuelled plant in the The Minister of State, Ministry of Justice (Lord UK. McNally): The Government remain committed to That said, the department is aware of the potential ensuring that the maximum number of people are of thorium-fuelled nuclear reactor designs and is in registered to vote after the transition to individual the process of assessing claims regarding its suitability electoral registration. As part of developing our plans as an alternative to uranium based reactors in the for the transition, we will be assessing a range of longer term. measures which have potential to improve registration levels among those groups underrepresented on the The current view of thorium reactor technologies electoral register. from the nuclear industry is that, whilst the science is The Government have also commissioned research reasonably sound, developing reactors based on a to identify the scale and profile of groups that are thorium fuel cycle would carry major technological currently underregistered. These findings will be used and commercial risks. The resources required to develop to inform our approach to improving registration these technologies to the point at which they might be levels among these groups and wider work to promote deployed successfully at a commercial scale are also public awareness of registration and participation of very significant. young people in the voting process. To date, both in the UK and elsewhere in the world, this has prevented private industry and government from investing significantly in the development of the Embryology technology. No thorium reactor design has been Questions implemented beyond relatively small, experimental Asked by Lord Alton of Liverpool systems, whilst many either only exist on paper or have only had specific subsystems demonstrated. To ask Her Majesty’s Government, further to the Written Answer by Earl Howe on 31 October As an indicator of the challenge of taking this (WA 199), whether the reference to “donor customer technology further, the Chinese Academy of Sciences service” is wording employed by Her Majesty’s estimates that a development period of at least 20 years Government or by the Human Fertilisation and will be required before a demonstration thorium molten- Embryology Authority. [HL12994] salt breeder reactor might be available. While thorium does not appear to have a part to The Parliamentary Under-Secretary of State, play in the UK’s near to mid-term energy market, we Department of Health (Earl Howe): The Human do maintain an interest in its development. My right Fertilisation and Embryology Authority has advised honourable friend the Secretary of State has asked the that the terminology referred to by the noble Lord was National Nuclear Laboratory (NNL) to look further used at the authority’s meeting on 19 October 2011. into the wider benefits of next-generation reactor WA 35 Written Answers[LORDS] Written Answers WA 36 designs and to compare the use of thorium and uranium regulatory costs on European business. And the fuels in them. We are expecting the findings to be Government have committed to examining the balance available in due course. of existing competences between member states and the European Union and, in particular, to work to limit the application of the working time directive in EU: Credit Rating Agencies the United Kingdom. Question Asked by Lord Willoughby de Broke Foreign Affairs To ask Her Majesty’s Government what is their Question assessment of the draft proposal by the European Asked by Lord Morris of Aberavon Commission to ″temporarily prohibit″ credit rating agencies from publishing their analyses on a member To ask Her Majesty’s Government whether, since state’s solvency. [HL12786] the devolution settlements in 1998, there has been any change in the position that foreign affairs have The Commercial Secretary to the Treasury (Lord not been devolved. [HL12797] Sassoon): The House of Lords EU Economic and Financial Affairs and International Trade Sub-Committee’s The Minister of State, Foreign and Commonwealth published a report in July entitled Sovereign Credit Office (Lord Howell of Guildford): There has been no Ratings: Shooting the Messenger?. The report concluded change in the position of foreign affairs since the that the proposal of credit ratings being suspended for devolution settlements in 1998. countries receiving international financial assistance was inappropriate and impractical and implied censorship. Government Departments: Consultants Further details can be found on the following website: Question http://www.parliament.uk/business/committees/ committees-a-z/lords-select/eu-economic-and- Asked by Lord Ashcroft financial-affairs-and-international-trade-sub- committee-a/inquiries/credit-rating-agencies-and-eu- To ask Her Majesty’s Government, further to sovereign-debt/. the Written Answer by Baroness Northover on 26 October (WA 154), what was the change in the The Government agreed with the report’s assessment. definition of consultancy referred to. [HL13090] In particular, temporarily suspending ratings for certain sovereigns would only reduce information in financial markets, exacerbate uncertainty and possibly lead to Baroness Northover: Consultancy has been defined further contagion. In the absence of such ratings, it is by central government as ″the provision to management likely that unregulated shadow ratings of these countries of objective advice and/or guidance on the strategy, would emerge in any case. structure, management or operations of an organisation ″ More generally, the Government support additional in pursuit of its purpose and objectives . international reform initiatives of the credit rating This definition was developed in response to agency industry and has set out its priorities in the recommendations made by the NAO in 2006, aimed at response to the Commission’s consultation, which can improving the value central government obtains from be found online at this link: https://circabc.europa.eu/ the use of consultants. Further information on application d/d/workspace/SpacesStore/0d1ea101-b6d0-470b- of these changes across government can be obtained b8b3-e28e4c1cba30/BoE-FSA-Treasury_EN.pdf. from the Cabinet Office website.

European Union: Reform Health Protection Agency Question Question Asked by Baroness Kinnock of Holyhead Asked by Lord Willis of Knaresborough To ask Her Majesty’s Government, further to To ask Her Majesty’s Government whether staff the Statement by the Prime Minister on 24 October transferred from the Health Protection Agency to (Official Report, Commons, col. 26–7), what are the either local authorities or Public Health England fundamental reforms of the European Union which will retain their current NHS terms and conditions. they are determined to deliver. [HL12812] [HL12864]

The Minister of State, Foreign and Commonwealth The Parliamentary Under-Secretary of State, Department Office (Lord Howell of Guildford): The Government’s of Health (Earl Howe): We expect that staff transferring immediate priority is for the eurozone to find a sustainable from the Health Protection Agency (HPA) to local response to the current economic crisis, and to do so authorities and Public Health England will retain their in a way that protects the rights of all 27 member existing terms and conditions of employment. states to take decisions over areas such as the single Not all staff in the HPA are on National Health market. We shall also continue to press for tight limits Service terms and conditions, although they make up on EU spending and action to promote growth and approximately 90 per cent of their current workforce jobs, through free and open markets, and by cutting of around 3,600 whole time equivalent. WA 37 Written Answers[8 NOVEMBER 2011] Written Answers WA 38

Transfers between sender and receiver organisations The Parliamentary Under-Secretary of State, Department will be guided by the legal requirements of Transfer of of Health (Earl Howe): It is for local National Health Undertakings (Protection of Employment) (TUPE) Service organisations to make their own decisions about and/or Country Strategic Opportunities Programme routes of referral for physiotherapy, based on which (COSOP) guidance, as appropriate. It should be noted route is clinically appropriate and of value to the that the Health and Social Care Bill contains general healthcare system and local community. powers to effect TUPE-like transfer schemes. These Some organisations may include self-referral in their powers support the principle expressed within COSOP access routes. To help local organisations in making of using a transfer scheme when COSOP applies. Any decisions about self-referral, the department has scheme would not displace the appropriate application collaborated with the Chartered Society of Physiotherapy of the TUPE regulations and both sender and receiver to pilot and evaluate self-referral. The pilots identified organisations would be likely to be involved in the a number of benefits including earlier presentation development of any scheme. and supporting self-care by empowering patients to be more actively involved in managing their condition. Health: Caesarean Sections Information about this project can be found in Questions self-referral pilots to musculoskeletal physiotherapy and the implications for improving access to other Asked by Baroness Tonge AHP services. This document has already been placed in the Library and is available at: www.dh.gov.uk/ To ask Her Majesty’s Government what estimate prod_consum_dh/groups/dh_digitalassets/@dh/@en/ they have made of the expected increase in caesarean documents/digitalasset/dh_116358.pdf. section rates in the United Kingdom that would result from women being given the right to choose a There have been a number of initiatives to improve caesarean section. [HL12976] access to physiotherapy and other allied health professional services including delivering services more efficiently. To ask Her Majesty’s Government what estimate The Allied Health Professional Service Improvement they have made of the expected increased cost to Project demonstrated in a range of services, including the National Health Service that would result from physiotherapy, how service redesign can improve access women being given the right to choose a caesarean and clinical outcomes, and release cost-savings back section. [HL12977] into the system. Details about this project can be To ask Her Majesty’s Government what assessment found at: www.dh.gov.uk/en/Publicationsandstatistics/ they have made of what the health impact would be Publications/PublicationsPolicyAndGuidance/ to a woman demanding an unplanned caesarean DH_126840. section in the first or second stage of labour. [HL12978] To ask Her Majesty’s Government what estimate Indonesia they have made of the impact on maternity unit Question staff that would result from women being given the Asked by Lord Harries of Pentregarth right to choose a caesarean section. [HL12979] To ask Her Majesty’s Government whether they The Parliamentary Under-Secretary of State, will make representations to the Government of Department of Health (Earl Howe): The management Indonesia about army and police brutality against of any request for a caesarean section should be members of the Papuan People’s Congress on informed by the available evidence, including guidelines 19 October at Abepura; and whether they will call produced by the National Institute for Health and on the Government of Indonesia to enter into Clinical Excellence (NICE). negotiations with elected members of the Papuan People’s Congress. [HL12790] The existing clinical guideline Caesarean Section, published in 2004, is currently being updated by NICE. The updated guideline is due to be published in November The Minister of State, Foreign and Commonwealth 2011, and NICE will publish a costing report alongside Office (Lord Howell of Guildford): We take seriously the updated guideline. We have made no separate all credible reports of human rights violations in the assessment of the likely impact of the updated guideline. Indonesian provinces of Papua and West Papua and regularly raise our concerns with the Government of Indonesia. Health: Physiotherapy We are concerned by the violent dispersal of the Questions Papuan Peoples’ Congress on 19 October. We will Asked by Lord Kennedy of Southwark raise this with the Government of Indonesia, calling for a full and transparent investigation into the reported To ask Her Majesty’s Government what plans deaths of six people close to the Congress venue on they have to bring forward new measures to encourage 19 October. best practice in referral to physiotherapy. [HL12945] We do not support the declaration of independence To ask Her Majesty’s Government what action made by the Papuan Peoples’ Congress and believe they are taking to enable more patients with rheumatoid that it is in the best interests of all the Papuan people arthritis to self-refer to physiotherapy services. to continue to resolve governance disputes through [HL12946] peaceful dialogue with the Government of Indonesia. WA 39 Written Answers[LORDS] Written Answers WA 40

Ministry of Defence: Staff foundation trust status. The framework and process by Question which such support might be provided has not yet been finalised. Asked by Baroness Liddell of Coatdyke In relation to any support provided to NHS trusts, To ask Her Majesty’s Government how many the department has outlined four key tests that they people are currently employed by the Ministry of would have to meet: Defence in Scotland. [HL12866] the problems they face must be exceptional and The Parliamentary Under-Secretary of State, Ministry beyond those faced by other organisations; of Defence (Lord Astor of Hever): As at 1 July 2011 they must show that the problems are historic and there were 11,910 members of the Armed Forces and that they have a clear plan to manage their resources 5,434 civil servants employed by the Ministry of Defence in the future; in Scotland. they must show that they are delivering high levels Defence Analytical Services and Advice (DASA) of annual productivity savings; and publishes a quarterly manning report on its website: they must deliver clinically viable, high quality services, www.dasa.mod.uk. This includes defence personnel including low waiting times and other performance by location. measures. One means by which such financial support may be National Savings and Investments provided is to assist NHS trusts in meeting the liquidity Question requirements for authorisation as a foundation trust Asked by Lord Marlesford once all the other assessment criteria are met. Additionally, a small number of NHS trusts with To ask Her Majesty’s Government what is the financial issues to address also have a private finance total sum currently deposited with National Savings initiative scheme that is a contributory factor to their and Investments; and how much of this has been viability. The department is continuing to work with invested in bonds issued by Governments outside these NHS trusts to determine an appropriate model the United Kingdom and with non-United Kingdom to support these organisations to achieve foundation banks. [HL13079] trust status, providing they meet the four tests. The Commercial Secretary to the Treasury (Lord The dates when aspirant NHS Trusts will submit an Sassoon): The total amount invested in National Savings application to the department are detailed in their and Investments (NS&I) as at 31 March 2011 was tripartite formal agreements which are published locally £98.9 billion. by the relevant NHS trust. Monitor’s assessment process All money invested in NS&I flows in and out of the commences after the Secretary of State has given his National Loans Fund, the account that brings together support to the application. all government lending and borrowing. This form of Asked by Lord Warner government borrowing reduces the costs to the Exchequer by reducing the amount the Government have to To ask Her Majesty’s Government how many borrow in order to meet their financing needs. Therefore, hospital trusts are forecast to be in (a) historical it is not possible to determine how much of NS&I’s deficit, and (b) in-year deficit, at the end of the investments have been invested in specific instruments. financial year 2011–12; what the total amount of (a) and (b) is estimated to be; and whether all deficits at the end of 2011–12 will be rolled forward NHS: Foundation Trusts to 2012–13. [HL12904] Questions Asked by Lord Warner Earl Howe: In 2011-12, 30 hospital trusts have a To ask Her Majesty’s Government (a) what are historical operating deficit, in total, of £623 million, the hospital trusts that have applied to the Department which relates to previous years. At Quarter 1 of 2011-12, of Health for additional funding to apply for six hospital trusts are forecasting an in-year operating foundation trust status; (b) what is the amount of deficit, in total, of £170 million. funding each trust has sought (including any amounts The operating deficits at the end of 2011-12 will to cope with expected deficits in the current year); remain in the accounts of each hospital trust and (c) what is the date when each trust expects to apply will form part of their cumulative operating deficit in for foundation trust status if they receive the funding; 2012-13. and (d) when decisions will be taken on each of those applications. [HL12901] To ask Her Majesty’s Government whether there Office of the Chief Coroner are any hospital trusts that have not applied for Questions additional financial support to become a foundation Asked by Baroness Finlay of Llandaff trust. [HL12902] To ask Her Majesty’s Government when they The Parliamentary Under-Secretary of State, Department reviewed the Ministry of Justice’s 2008 impact of Health (Earl Howe): The department is currently assessment for the Office of the Chief Coroner; and exploring the potential provision of financial support whether they will place the findings of the review in to specific National Health Service trusts to achieve the Library of the House. [HL12894] WA 41 Written Answers[8 NOVEMBER 2011] Written Answers WA 42

The Minister of State, Ministry of Justice (Lord Earl Attlee: The Ordsall Curve is scheduled to open McNally): In considering whether the new funding in Manchester in 2016. In addition, line speed required to implement the office of Chief Coroner improvements will be delivered on the route between could be justified in the current economic circumstances, Liverpool and Manchester. These will facilitate the the Government examined the costings set out in the potential recast of trans-Pennine services between 2008 impact assessment. This assessment was carried Manchester and Leeds where key links such as commuting out in June 2010 and a detailed breakdown of the flows from local stations to the main centres of Leeds, costings was placed in the Library of the House in Manchester and Huddersfield can potentially be improved. December 2010. Asked by Baroness Finlay of Llandaff Regional Growth Fund To ask Her Majesty’s Government what legislative Question instruments they intend to enact to realise their plans in relation to the responsibilities of the Chief Asked by Lord Hoyle Coroner. [HL12895] To ask Her Majesty’s Government what is being Lord McNally: Subject to the passage of the Public done to reduce the time taken to process applications Bodies Bill, the Government intend to lay a statutory for grants from the Regional Growth Fund. instrument pursuant to clause 5 of that Bill to transfer [HL13039] the majority of the functions of the Chief Coroner to the Lord Chief Justice and Lord Chancellor in early The Parliamentary Under-Secretary of State, 2012. Department for Business, Innovation and Skills (Baroness The Government then intend to lay commencement Wilcox): All applications received in both the rounds orders to commence relevant provisions in the Coroners of the Regional Growth Fund have been assessed and and Justice Act 2009. announcements on the second round were made on 31 October 2011. Olympus: Gyrus Question Research Councils Asked by Lord Myners Question To ask Her Majesty’s Government whether they Asked by Lord Lucas will examine the circumstances of the acquisition of the United Kingdom company Gyrus by To ask Her Majesty’s Government, further to Olympus. [HL12898] the Written Answer by Baroness Verma on 20 October (WA 96), what mechanisms exist to enable scientists The Advocate-General for Scotland (Lord Wallace to call research councils to account; and what is the of Tankerness): Allegations relating to Olympus were role of elected politicians in that process. [HL12814] brought to the Serious Fraud Office by Michael Woodford MBE who, until he was dismissed on Friday 14 October 2011 was President and CEO of Olympus Corporation. The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Baroness Mr Woodford contacted the Serious Fraud Office Wilcox): All research councils published delivery plans about concerns of impropriety at Olympus, which for 2011-15 as part of the spending review process. included the acquisition of the UK company Gyrus. The plans set out each council’s funding priorities and The Serious Fraud Office is reviewing and evaluating outline the activities that they intend to undertake the material provided. over the period. The delivery plans were developed following consultations with a broad range of stakeholders, Railways: Franchises including business and senior academics, and agreed Question with the Department for Business, Innovation and Asked by Lord Bradshaw Skills (BIS). The delivery plans also take account of research councils’ own visions and strategic priorities. To ask Her Majesty’s Government what was the As part of the performance management system (PMS) net cost to public funds of the Virgin Trains franchise for research councils, performance review meetings in the last full year’s accounts. [HL13031] are held every six months between BIS and each of the Earl Attlee: The Department for Transport received research councils and Research Councils UK. £167.9 million in premium payments from West Coast Ministers have an important role in setting the Trains Ltd in respect of the 2010-11 financial year. framework within which research is conducted and, consistent with the Haldane principle, in articulating Railways: Trans-Pennine Express the Government’s high-level research priorities and in Question agreeing research councils’ delivery plans. Research councils operate under a management statement from Asked by Lord Bradshaw BIS and this forms an important part of the framework To ask Her Majesty’s Government whether their set by Ministers. This framework incorporates aspects plans for enhancing the trans-Pennine express railway such as the structures for advice from the research route have given consideration to the needs of community. As part of this framework, BIS works passengers using local stations on the route. closely with the research community, the learned societies [HL13133] and other leading stakeholders. WA 43 Written Answers[LORDS] Written Answers WA 44

Each of the seven UK research councils has a Lord Wallace of Saltaire: The information requested governing body called its council. The council is falls within the responsibility of the UK Statistics responsible for setting each research councils’ policy, Authority. I have asked the authority to reply. strategy and priorities. It is also accountable for the stewardship of the council’s budget and the extent to Letter from Stephen Penneck, Director General for which objectives have been delivered and targets have ONS, to Lord Roberts of Llandudno, dated 31 October been met. Council membership is drawn from the 2011. council’s academic, business and user communities. Membership is balanced to provide expertise across a As Director General of the Office for National range of research disciplines and commercial and user Statistics, I have been asked to reply to your Parliamentary interests. In addition, research councils have their own Question asking how many persons aged between structure of advisory boards and groups to identify 16 and 18 and between 18 and 25 were actively seeking opportunities for research, training and knowledge work during October 2011 [HL 12861]. transfer and to provide external advice on the development of strategies and policies. The requested information is not available. National Statistics estimates of unemployment are published Traffic Commissioners for three-month average time periods rather than for Question individual months. Estimates for the three months to October 2011 will be published on 14 December 2011. Asked by Lord Bradshaw To ask Her Majesty’s Government whether they will review the role and powers of the traffic commissioners in the light of the recent Competition Commission recommendation concerning effective regulation of the bus industry. [HL13132] West Lothian Question Earl Attlee: Following the recommendations of the Question Competition Commission, my honourable friend, Asked by Lord Stoddart of Swindon Parliamentary Under-Secretary of State for Transport (Norman Baker) has discussed the matter with the Deputy Senior Traffic Commissioner. To ask Her Majesty’s Government, further to The Government will wait for the publication of the Written Answer by Lord McNally on 9 February the Competition Commission’s final report before deciding (WA 74) concerning the West Lothian question, what action is necessary in respect of the role and when the Commission to consider the matter is powers of the traffic commissioners. likely to report its conclusions. [HL12949] Unemployment: Under 25s Question The Minister of State, Ministry of Justice (Lord Asked by Lord Roberts of Llandudno McNally): I refer the noble Lord to the Written Ministerial To ask Her Majesty’s Government how many Statement that I made on 8 September 2011 (Official persons aged between (a) 16 and 18 years-old, and Report, col. WS 34). A follow-up announcement will (b) 18 and 25 years-old were actively seeking work be made shortly with further details on the Commission, during October 2011. [HL12861] including the timescale. Tuesday 8 November 2011

ALPHABETICAL INDEX TO WRITTEN STATEMENTS

Col. No. Col. No. Agriculture: Single Payment Scheme ...... 11 Morocco ...... 13

Armed Forces: Medals...... 12 Railways: High Speed Rail...... 13

Energy: Security of Supply ...... 12 Railways: HS2 Ltd...... 14

Tuesday 8 November 2011

ALPHABETICAL INDEX TO WRITTEN ANSWERS

Col. No. Col. No. Agriculture: Regulation ...... 29 Health: Caesarean Sections ...... 37

Arab Partnership Initiative ...... 29 Health: Physiotherapy ...... 37

Armed Forces: Aircraft...... 30 Health Protection Agency...... 36

Armed Forces: Atomic Test Veterans...... 30 Indonesia...... 38

Aviation: Regulations ...... 31 Ministry of Defence: Staff ...... 39 National Savings and Investments ...... 39 Banks: Fees and Charges ...... 31 NHS: Foundation Trusts ...... 39 Charities ...... 32 Office of the Chief Coroner...... 40 Egypt...... 32 Olympus: Gyrus...... 41 Electoral Register ...... 33 Railways: Franchises...... 41 Embryology ...... 33 Railways: Trans-Pennine Express...... 41 Energy: Nuclear Reactors...... 34 Regional Growth Fund...... 42 EU: Credit Rating Agencies...... 35 Research Councils ...... 42 European Union: Reform ...... 35 Traffic Commissioners...... 43 Foreign Affairs ...... 36 Unemployment: Under 25s...... 43 Government Departments: Consultants ...... 36 West Lothian Question ...... 44 NUMERICAL INDEX TO WRITTEN ANSWERS

Col. No. Col. No. [HL12761] ...... 31 [HL12839] ...... 29

[HL12786] ...... 35 [HL12848] ...... 30

[HL12790] ...... 38 [HL12855] ...... 30

[HL12794] ...... 29 [HL12861] ...... 43

[HL12797] ...... 36 [HL12864] ...... 36

[HL12809] ...... 33 [HL12866] ...... 39

[HL12812] ...... 35 [HL12894] ...... 40

[HL12814] ...... 42 [HL12895] ...... 41 Col. No. Col. No. [HL12898] ...... 41 [HL12994] ...... 33

[HL12901] ...... 39 [HL12995] ...... 34

[HL12902] ...... 39 [HL13015] ...... 33

[HL12904] ...... 40 [HL13024] ...... 32

[HL12926] ...... 30 [HL13031] ...... 41

[HL12945] ...... 37 [HL13039] ...... 42

[HL12946] ...... 37 [HL13051] ...... 31

[HL12948] ...... 34 [HL13052] ...... 31

[HL12949] ...... 44 [HL13053] ...... 31

[HL12976] ...... 37 [HL13079] ...... 39

[HL12977] ...... 37 [HL13090] ...... 36

[HL12978] ...... 37 [HL13132] ...... 43

[HL12979] ...... 37 [HL13133] ...... 41 Volume 732 Tuesday No. 219 8 November 2011

CONTENTS

Tuesday 8 November 2011 Questions Crime: Self-defence Homicide...... 117 Economy: Monetary and Fiscal Policy ...... 119 Devolved Administrations: Financial Flexibility...... 122 Somalia ...... 124 Procedure of the House: Seventh Select Committee Report Motion to Agree ...... 127 Procedure of the House: Eighth Select Committee Report Motion to Take Note ...... 127 Procedure of the House (Proposals 1 to 9) Motions to Resolve...... 129 Protection of Freedoms Bill Second Reading ...... 167 Protection of Freedoms Bill Committal Motion ...... 227 Protection of Freedoms Bill Order of Consideration Motions ...... 228 Grand Committee Welfare Reform Bill Committee (11th day) ...... GC 1 Written Statements...... WS 11 Written Answers...... WA 2 9