Vol. 713 Thursday No. 126 29 October 2009

PARLIAMENTARY DEBATES (HANSARD) HOUSE OF LORDS OFFICIAL REPORT

ORDER OF BUSINESS Questions Government: Debts Africa: Water Shortages Northern Ireland: Cross-Border Police Co-operation Territorial Army House of Lords: Code of Conduct Announcement Beverley Freemen Bill [HL] London Local Authorities Bill [HL] London Local Authorities and Transport for London (No. 2) Bill [HL] Transport for London (Supplemental Toll Provisions) Bill [HL] Carryover Motions Driving Instruction (Suspension and Exemption Powers) Bill Third Reading Coroners and Justice Bill Report (4th Day) Education (Special Educational Needs Co-ordinators) (England) (Amendment) Regulations 2009 Motion to Approve Health: Medicines Question for Short Debate Grand Committee Company, Limited Liability Partnership and Business Names (Sensitive Words and Expressions) Regulations 2009 Company, Limited Liability Partnership and Business Names (Public Authorities) Regulations 2009 Legislative and Regulatory Reform (Regulatory Functions) (Amendment) Order 2009 Provision of Services Regulations 2009 Debated Written Statements Written Answers For column numbers see back page

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© Parliamentary Copyright House of Lords 2009, this publication may be reproduced under the terms of the Parliamentary Click-Use Licence, available online through the Office of Public Sector Information website at www.opsi.gov.uk/click-use/ 1265 Government: Debts[29 OCTOBER 2009] Government: Debts 1266

Lord Myners: The Government and HMRC are House of Lords committed to pursuing tax avoidance wherever they see evidence of that happening. We have been particularly Thursday, 29 October 2009. vigilant in our dealings with the banking sector in this respect because some of the most invidious forms of 11 am tax avoidance are those associated with, and perpetrated or facilitated by, major banks. We are also extremely Prayers—read by the Lord Bishop of Ripon and Leeds. alert to areas in which tax codes and rules can be improved in order to reduce the risk of unintended consequences. Government: Debts Question Baroness O’Cathain: My Lords, does the Minister not agree that the noble Lord, Lord Tomlinson, in 11.06 am trying to put all the blame on the corporate sector, is being quite unfair? An awful lot of people operating Asked By Lord James of Blackheath privately are avoiding and evading tax. To ask Her Majesty’s Government what is the total value of unpaid debts to the Government in Lord Myners: I agree that we all have a commitment the form of benefit overpayments and unrecovered to meet our tax obligations and it is a great tribute to tax; and what action they will take to recover those the vast majority of citizens and companies that they debts. pay their tax at the time when it is due without being pursued or putting additional burdens on the system. That is to be welcomed. However, a small number do The Financial Services Secretary to the Treasury not and they should be pursued appropriately. (Lord Myners): My Lords, the value of unpaid tax debts is shown on page 96 of HMRC’s trust statement. Lord Newby: My Lords, no doubt the Minister is On 31 March 2009, the figure stood at £27.7 billion. aware that CPAG recently won a case in the Court of The value of benefit overpayments to be recovered, Appeal to the effect that the Department for Work as on 31 March 2009, is £1.8 billion, which the noble and Pensions could not recover overpayments of social Lord could have found on page 108 of the DWP’s security benefits through the courts where the claimant resource accounts. If people owe a debt to the Exchequer, was not at fault. Some 65,000 claimants received letters it should be paid. HMRC and the DWP can, do and saying that they would have to repay major overpayments. will continue vigorously to pursue those who can pay Can the Government give those people an assurance but will not. that they will now be written to again to tell them formally that they no longer have to pay back benefits Lord James of Blackheath: My Lords, I thank the that they were overpaid through no fault of their own? Minister for that response. He will agree that that is a very high proportion indeed of the national debt and, Lord Myners: If the judgment stands, there is no as he rightly says, if it is not paid the burden will further appeal and that is the outcome, the DWP will continue to fall on the responsible taxpayers who do of course recognise that and, I am sure, it would be the continue to discharge their debts. Is he aware of the department’s intention so to communicate. Government’s guidelines on government agencies’ debt recovery, particularly the section on the legal services Lord Campbell-Savours: My Lords, is not our 99 per framework, and will he say whether he considers those cent collection rate one of the highest, if not the guidelines still to be an adequate response to the need highest, in western Europe? for collection activity in an incisive manner? Lord Myners: I thank my noble friend for his question. I believe that the figure is very high, and as I said, it is Lord Myners: I am not intimately familiar with the high in comparison with my experience of the private document to which the noble Lord refers, but I shall sector. HMRC also works to understand the procedures put a copy alongside my bed tonight. What is more used by tax authorities elsewhere and is constantly reassuring is that HMRC collects all but 1 per cent of enhancing its methods, including in particular in terms tax due. Of the 1 per cent that is not collected, 90 per of communication and phased payment. It is a good cent is due to business insolvency.That is an extraordinarily record and one on which HMRC deserves to be good record of debt recovery, which most businesses congratulated. would find hard to match. Lord Lawson of Blaby: My Lords, what is HMRC’s Lord Tomlinson: Does my noble friend agree that latest estimate of the size of the black economy, and the figures sought by the noble Lord, Lord James, how accurate does the Minister think that estimate were about known tax debt? Does he further agree may be? that the real problems that need to be addressed—I am sure they are receiving attention—are some of the Lord Myners: I do not have a figure to provide for corporate fiddles for evading taxation, such as transfer the noble Lord, Lord Lawson, but I will endeavour pricing, so that profits can be put into the most to find out from HMRC its current estimate and favourable tax domain even when they are earned in communicate with him in writing. There is an economy this country? which acts outside the formal economy with clear tax 1267 Government: Debts[LORDS] Africa: Water Shortages 1268

[LORD MYNERS] are working with a number of African countries to evasions as a consequence. We are much focused on improve water management. We will provide up to ensuring that we raise the appropriate rate of taxation 25 million people with drinking water over the next from all taxable activities. five years.

Lord Peston: My Lords, is my noble friend willing Lord Hunt of Chesterton: My Lords, with water to comment on the fundamental issue here, which is shortages caused both by the effects of climate change that the benefit system is so complicated that you have and by population growth, as a recent conference of to be a genius in order to be able to fill in the forms, Africans in Cambridge pointed out, and being highly and increasingly the tax system is so complicated that variable across Africa, are Her Majesty’s Government you worry enormously about making mistakes because assisting each country in a focused way to establish its you are never clear about the right answers? Have we future water resources and policies? Will they ensure not spent years talking about simplification? The problem that there is adequate funding of technical support is that while we all say that it is a good thing, we never programmes by the Met Office and other UK agencies, do anything about it. and that these will continue at least at the current level? Lord Myners: My noble friend Lord Peston makes a point with which I have much sympathy. The tax Lord Brett: My Lords, DfID funding has helped system and the benefit system are both complicated, more than 7 million people in sub-Saharan Africa but that is the consequence of targeted policies that gain access to clean water and sanitation over the past try to ensure that we raise taxes in a fair and proportionate four years. The Government are providing country way and that we focus benefits on the most needy. The assistance to water programmes in Ethiopia, Democratic need to get good value for money and to preserve Republic of Congo, Nigeria, Sierra Leone and Sudan. focus needs to be counterbalanced with the fact that We are supporting a regional programme within and there are some consequences in terms of complexity. I between member states of the Southern African am not sure that any government will ever get it Development Community, and between the 10 countries perfectly right, but the message of my noble friend is that share the waters in the Nile Basin. one with which I have much sympathy. My noble friend will be aware that, as part of the £100 million that DfID has committed to climate Lord De Mauley: My Lords, in May the Public research, we are developing a new partnership with Accounts Committee criticised Her Majesty’s Revenue the Met Office Hadley Centre to support African and Customs for failing to explore new payment methods countries to improve knowledge and climate science for taxpayers to settle their liabilities and called on capacity. We are also providing £15 million to the HMRC to look at letting people settle their debts ClimDev programme in Africa, hosted by the United through schemes such as Paypoint and Pay Zone. Nations Economic Commission for Africa; we support What progress has been made in this area? the Climate Change Adaptation in Africa programme; and we provide core funding to the Global Water Lord Myners: As I said, HMRC is looking at new Partnership, which has helped 12 African countries to ways of settling tax through electronic money, adjustments develop integrated water resource management plans. to PAYE coding and adjustments to benefits received. Again, we are drawing on the experience both of the Baroness Northover: My Lords, is the Minister aware private sector in its management of debt recovery as that climatologists predict that by the 50th anniversary well as that of tax agencies elsewhere. I have found of the 1984 famine in Ethiopia, this kind of drought HMRC to be an innovative and customer-focused will hit the Horn of Africa in three years out of every organisation that is constantly seeking to improve its four? Given the gravity of that situation, what does he performance. hope will be achieved today at the EU meeting? What does he think are the outstanding issues for Copenhagen? Africa: Water Shortages Question Lord Brett: My Lords, drought in the Horn of Africa is a tragedy that we have seen in the past. We 11.14 am hope that the El Niño rains that have started to fall will help to make this drought something that passes Asked By Lord Hunt of Chesterton relatively quickly but, as the noble Baroness rightly says, under climate change those activities that are to To ask Her Majesty’s Government what long-term our disadvantage will be more frequent in future. We policies they will develop to deal with water shortages hope that Copenhagen will produce an agreement to in Africa. put additional finances into climate change. We believe it is important that we do not abandon the African Lord Brett: My Lords, climate change will result in continent and its fight against poverty and for health more frequent water shortages, such as the current and education by diverting money from the ODA and drought in east Africa. A deal at Copenhagen is crucial to climate change. That is why the Prime Minister is to limit temperature rise to two degrees centigrade and seeking £100 billion from the Copenhagen summit, ensure that vulnerable African countries have access and today at the EU he will be pressing for support in to additional finance to adapt to climate change. We that regard, as set out in his speech on 20 September. 1269 Africa: Water Shortages[29 OCTOBER 2009] N.I.:Cross-BorderPoliceCo-operation 1270

Baroness Gardner of Parkes: My Lords, is the Minister Lord Steel of Aikwood: My Lords, I received a very aware that, while there are huge national shortages of distressing e-mail yesterday from a friend in northern water, personal access to water is very important to Kenya, who had seen hundreds of dead cattle. That is people in Africa? Is he aware of the marvellous work an area where we traditionally have a lot of military being done by many charities—NGOs, as they call training. Will the Minister talk to his colleagues in the them—to provide pumps and things? Where people Ministry of Defence to see whether there is anything had to collect water in a little cup, now they can get a we can do immediately to use the skills and resources bucketful of water. It is important to ensure that this of the British military to dig more wells in that area? work is continued. Lord Brett: I listened with interest to the noble Lord. If he could let me have greater detail on that Lord Brett: My Lords, I agree with the noble Baroness. matter, I shall pass the information on to my colleagues We find that the work internationally and nationally in the Ministry of Defence. of the NGO community, of Water Aid and other international bodies, assisting as partners in the fight to provide water and sanitation, is vital. This situation Lord Geddes: My Lords, what evidence do Her can be overcome only by the partnership of civil Majesty’s Government have of misappropriation of society, government and the international community. funds in this context?

Lord Brett: DfID has a very robust system of checking Lord Alton of Liverpool: My Lords, does the Minister that the funding that it gives is used properly. When we agree that one of the greatest drivers for conflict in feel that Governments are not in that position, we use Africa at the moment is the scarcity and shortage of the civil society organisations and others. We audit the water in many parts, particularly in eastern Africa? funds very carefully and, when we find misappropriation, Will he reconsider the answer he gave a moment ago we seek to take action to avoid funds being embezzled about the countries where help is being given? I notice in any way, shape or form. It is a large budget and is the omission of Kenya, particularly the situation in spent across a number of countries, so there are bound Turkana, where many tribesmen are coming in from to be occasions when things do happen. We keep them southern Ethiopia to raid cattle and much conflict is to a minimum and investigate them all. being driven by the absence of water. Will the Minister consider including Turkana in northern Kenya within Lord Hunt of Chesterton: My Lords, I believe that I the list of countries that DfID is able to help? should have declared an interest as former head of the Met Office. Lord Brett: My Lords, I listened with interest to the noble Lord. Some 65 people have lost their lives in Northern Ireland: Cross-Border Police conflict in Kenya this year over water disputes. I know that I will be chastised for giving long answers if I deal Co-operation in detail with the question, so I shall happily take it Question away and respond in writing to the noble Lord. 11.22 am Asked By Lord Cope of Berkeley Lord Hughes of Woodside: My Lords, is it not the case that while the long term needs to be addressed, To ask Her Majesty’s Government what progress this is a short-term matter that has to be dealt with has been made in reducing the delays and complexities now, with Kenya having the worst drought for 10 years affecting investigations and the bringing of suspects and Somalia in the worst position since 1991? What is to trial in Northern Ireland when witnesses or DfID doing to deal with the situation on its own evidence are in the Republic of Ireland or vice-versa. account and to alert the international community to the tragedy that is unfolding, which may hit us very The Chancellor of the Duchy of Lancaster (Baroness soon? Royall of Blaisdon): My Lords, to address the complexities referred to by the noble Lord, officials in both jurisdictions Lord Brett: My Lords, DfID is supporting countries are preparing draft procedural manuals for their respective in Africa in dealing with the drought in a number of police forces and prosecutors. This work is due for ways. It has committed £83 million in humanitarian completion before the end of the year. In respect of aid to Ethiopia, Eritrea, Kenya and Sudan. It has also delays in the processing of letters of request, all mutual provided £40 million to the UN’s Central Emergency legal assistance requests are processed and responded Response Fund this year, making us the fund’s largest to as quickly and as comprehensively as possible. donor. So far, £36 million has been drawn from that fund for east Africa. DfID has also provided £35 Lord Cope of Berkeley: I am grateful to the noble million to the productive safety net programme in Baroness, particularly for her recognition of the Ethiopia, which provides food and cash transfers to importance of these issues for proper policing either more than 7 million vulnerable people. We continue to side of the border. Will these procedural manuals work with countries across Africa and the regional mean that a policeman taking a statement on either development authorities, in SADC and beyond, to side of the border will find that it can be used in both assist in this very difficult situation. jurisdictions in court, as evidence in court in pursuing 1271 N.I.:Cross-BorderPoliceCo-operation[LORDS] Territorial Army 1272

[LORD COPE OF BERKELEY] Baroness Royall of Blaisdon: My Lords, I do not a trial? We were told that the procedural manuals believe that the devolution of policing and justice will would be available in the autumn, but we seem to have have any impact on this. There is not a problem at the reached autumn and now it has moved to the end of moment, and with the devolution of policing and the year. What is the reason for that delay? justice there will continue to be no problem. As I understand it, the Home Office will still be involved. Baroness Royall of Blaisdon: The reason for the However, if I am wrong, I will certainly come back to delay is to ensure that the procedural manuals are the the noble Viscount in writing. best possible manuals that they could be. There is no other reason, and they will certainly be available by Lord Bew: My Lords, it has already become clear in the end of the year. Work is still continuing. As for this discussion that the issue raised by the noble Lord, witness statements—I do not want to get this wrong, Lord Cope, is connected to the issue of devolution of so I shall read it—a witness statement recorded by a policing and justice. One of the most remarkable member of An Garda Siochana may be used in committal things that has happened in Northern Ireland over the proceedings in Northern Ireland, providing that it past 15 years is the way in which north-south co-operation, complies with certain requirements of Article 33 of which was previously very controversial, is now the Magistrates’ Courts Order 1981. Evidence of a uncontroversial and largely accepted on both sides of confession made to a member of An Garda Siochana the community. The one exception is this area where may be admitted in proceedings in Northern Ireland, we have not been able to demonstrate mutual benefit. unless the court considers that this would have an Therefore, does the Minister accept that, in view of adverse effect on the fairness of the proceedings. That the controversy surrounding devolution of policing is the clear position. The procedural manual will ensure and justice, it is vital that both Governments redouble that people are better able to implement the law as it their efforts to ensure that we deliver to citizens on stands. both sides of the border real progress in this area?

Lord Smith of Clifton: My Lords, will the Minister Baroness Royall of Blaisdon: My Lords, I entirely give us an assurance that this issue will be resolved accept what the noble Lord says. It is clear that there is before the transfer of policing and justice powers to a perceived problem. However, from my discussions the Northern Ireland Assembly? There really has been with Northern Ireland officials and everybody else to a great deal of procrastination by Dublin and London whom I have spoken, it is a perceived problem. In on this issue. My noble friend Lord Alderdice raised it reality, there is no problem in getting information over a year ago and the noble Lord, Lord Cope, did so from one side of the border to the other. However, I again in June. I should like an assurance that it will be will certainly look into this again. done before it is given to the Northern Ireland Assembly.

Baroness Royall of Blaisdon: My Lords, if the noble Territorial Army Lord is referring to delays in mutual legal assistance Question requests, a lot of work has been done on that since it was raised in June this year. Discussions have taken 11.28 am place between the two authorities, and both authorities are adamant that there are no longer any delays due to Tabled By Lord Astor of Hever bureaucratic problems. Any delays are only the result of the complexity of the information requested. To ask Her Majesty’s Government what will be the consequences for Her Majesty’s Armed Forces of the reduction in training of the Territorial Army. Lord Dubs: My Lords, given the very good co-operation at the moment between the PSNI and the Garda Siochana, am I right in thinking that some of the Lord Astor of Hever: My Lords, I beg leave to ask difficulty posed is that information has to be sent via the Question standing in my name on the Order Paper. London to Dublin or via Dublin to London rather In doing so, I declare an interest as an honorary than directly from one police force to another? If not, colonel of a TA regiment. the process could be speeded up much more. The Minister for International Defence and Security Baroness Royall of Blaisdon: My Lords, the process (Baroness Taylor of Bolton): My Lords, first, I know is according to the law. Information goes from a unit that the whole House will wish to join me in offering in the Home Office to a unit in the respective department our sincere condolences to the family and friends of in Dublin, but that is not the reason for the delay. Corporal James Oakland from the Royal Military There are no delays due to bureaucracy, postbags or Police, who was killed on operations in Afghanistan whatever. The delays are due only to complexities in last week, and Corporal Thomas Mason of The Black the information requested. Watch, 3rd Battalion The Royal Regiment of Scotland, who succumbed to his injuries at the Royal Centre for Viscount Bridgeman: My Lords, after devolution of Defence Medicine, Selly Oak on Sunday. criminal justice powers to Northern Ireland, will this On the Question, as the Secretary of State for problem be devolved with it? Under what authority Defence announced in another place yesterday, will the Northern Ireland Executive negotiate with the £20 million has been found by the Treasury to ensure Irish Government? that routine training for TA members can continue. 1273 Territorial Army[29 OCTOBER 2009] Territorial Army 1274

The Government have consistently made it clear that in the other place, what would the noble Baroness say all Territorial Army members deploying on operations now to John Reid for humiliating Defence Ministers in will get the full training that the Army considers this way? appropriate and necessary. Baroness Taylor of Bolton: My Lords, I think that if Lord Astor of Hever: My Lords, we on these Benches decisions were taken so simply, John Reid would be on also send our condolences to the family and friends of the phone all the time. Corporals Oakland and Mason. Turning to the Question on the TA, we obviously The Lord Bishop of Bath and Wells: My Lords, I, welcome the government U-turn. There is no way that too, welcome the noble Baroness’s response on training. the Regular Army could continue the war in Afghanistan One of the concerns among the territorial service without the TA. Does the Minister agree that the personnel in my diocese is how many of them return original decision to suspend training was a shocking to work after a very considerable commitment in the error of judgment? What signal did Ministers think it field. What provision is made in training to enable would send out to serving and future TA recruits, to those personnel to return in a way that enables the employers of territorials, and, crucially, to the Taliban? fullness of their lives to be taken up appropriately?

Baroness Taylor of Bolton: My Lords, I happily Baroness Taylor of Bolton: My Lords, that is an acknowledge the expertise that the noble Lord has—and, extremely important point and one which was, in a indeed, that other noble Lords in this House have—in way, touched on in the reserves review earlier this year. the Territorial Army. I know that there is a great deal It is important that those who are in the TA have all of experience here. He asks what led to the decision. In the benefits of all of the support mechanisms that we part it was the improved recruitment to the Regular now know are necessary for all of those who serve in Army, which is more than 1,000 up on last year. Land the Armed Forces. Whether the people who have Forces decided that, because of those pressures, this served come back well or have been injured, or their was something that it would look at. It made families need support, or mental health problems arise recommendations up to Ministers, but Ministers of later, we have learned a great deal in recent years about course accept the responsibility for the decisions that how to improve the service that we give to our personnel. were made. The TA, and indeed all reservists, should have the same entitlements. We endeavour to make sure that The TA has played a very significant role in that is the case. Afghanistan: 540 TA members are deployed there at the moment, and we have had over 15,000 deployed in Iraq and Afghanistan since 2003. So there is no doubt Lord Craig of Radley: My Lords— about the contribution that has been made. I think it important to remember that, in all of those discussions, Lord Kinnock: My Lords— it was made absolutely clear that no one who was going to be deployed would have other than the full Lord Hoyle: My Lords— training that they needed prior to deployment. Noble Lords: Cross-Bench! Viscount Slim: My Lords, is the noble Baroness aware that many of the men and women gazing down Lord Craig of Radley: My Lords, the TA is but one upon her now from up above us are officers—battle-tried element of the Reserve Forces. The Royal Navy and officers—of Her Majesty’s Army? Is it not a fact that the Royal Air Force, in particular the Royal Air Force they are most welcome in your Lordships’ House Regiment, field personnel in the operational theatres, today? I am sure they will be most interested in the and now in Afghanistan. Can the Minister assure the Minister’s answers. House that there is no reduction in the training funds made available to these two forces? Baroness Taylor of Bolton: My Lords, this is a very good opportunity to reiterate the appreciation of the Baroness Taylor of Bolton: My Lords, this difficulty whole House for all of those who serve in the Territorial came about, as I mentioned earlier, because of the Army, and indeed for all of our reservists. Earlier this increase in recruitment to the Army. That is why it was week I had the pleasure of meeting some of the Land Forces that made the original suggestion. It does employers who have been mentioned, and who are not affect the other services. extremely important in making sure that this system that we have is so successful. The last week has had Lord Kinnock: My Lords, the whole House will some unintended benefits, one of which has been an doubtless recognise the crucial significance and usefulness opportunity for everybody to express their appreciation of the TA and its counterparts in other parts of the of the TA. Armed Forces. Does my noble friend recognise that it is passing strange that when a Government heed advice Lord Lee of Trafford: My Lords, may I first enjoin and change policy, it is a humiliating climb-down, but these Benches in the earlier tribute? The very embarrassing when they fail to do so they are being stiff-necked and U-turn by the Government on the TA seemingly came arrogant? Could my noble friend, with all her experience, about as a result of a phone call from John Reid to the refer us to the oracle of immaculate judgment that Prime Minister. As a former Government Chief Whip appears to advise the Opposition Front Bench? 1275 Territorial Army[LORDS] House of Lords: Code of Conduct 1276

Baroness Taylor of Bolton: My Lords, I fear that These meetings will include one open to all Members, some things are beyond me. I think that we should all to debate and question the report, which will take be somewhat cautious in the statements that are made. place on Thursday 5 November. The noble and right After all, those who are calling for no cuts anywhere reverend Lord, Lord Eames, will also be holding a are very often the same people who are not proposing press conference on the report today. I understand any increase in defence spending whatever. As for the that it will take place shortly. Territorial Army, it was the party opposite which I undertake to continue to keep the House informed reduced numbers from 90,000 to 60,000. on these and related issues. I believe that the report of the Leader’s Group offers a vital blueprint for the Lord Campbell of Alloway: My Lords, I have a very future of the House. It is a thorough and important short question. Should someone other than the noble piece of work, which deserves careful consideration by Baroness perhaps say sorry? Members of the House. I am confident that Members will give it that consideration, and I commend the Baroness Taylor of Bolton: My Lords, all Ministers report to the House. in the department share collective responsibility and acknowledge responsibility for the decisions that were Baroness Anelay of St Johns: My Lords, I am made. grateful to the noble Baroness the Leader of the House for taking the first available opportunity to Lord Hoyle: My Lords— make that announcement. I echo her thanks to the group for its sterling work, and I thank her for her Lord Davies of Oldham: Sorry, my Lords, our time kind words about Lord Kingsland. I am also grateful is up. to her for setting out so clearly the procedure that is to be followed for the discussion of this important report. Like all Peers, I am delighted to hear that precedent House of Lords: Code of Conduct means that it will go before the whole House first. Announcement Lord McNally: My Lords, from these Benches I 11.37 am thank the noble and right reverend Lord, Lord Eames, The Chancellor of the Duchy of Lancaster (Baroness and his group, and particularly my colleague and Royall of Blaisdon): My Lords, on 21 May this year I noble friend Lady Hamwee for serving on a group that reported to the House that I intended to establish a has done such great service to the House. I also Leader’s Group to consider the House’s code of conduct associate myself with the tribute to Lord Kingsland; it and the rules relating to Members’ interests, and to was indeed one of his last great services to this House. make recommendations. I am now in a position to We need to study the report carefully, as the Leader report to the House that the Leader’s Group, chaired of the House has said, and I welcome the offer from by the noble and right reverend Lord, Lord Eames, the noble and right reverend Lord, Lord Eames, of a has now completed its work. The group’s report is further consultation with Peers, and the offer of a being published today. Copies are now available in the debate on 30 November. I also put on record my Printed Paper Office and will be published online. This thanks for the leadership shown by the Leader of the is a unanimous report, from a group chaired by a House and the Lord Speaker in carrying this forward. Member from the Cross Benches and including It is because of that leadership that we have had, at representatives from all the political parties. I urge all this end of this building, a welcome absence of political Members of the House to study and consider it. point-scoring while we tried to go through this process. On behalf of the whole House, I place on record A year ago I said that the rules governing this House my thanks to the noble and right reverend Lord, Lord were vaguely drawn and lightly policed. That light-touch Eames, all the members of the group and the staff of regulation produced one of the cheapest and most the House, who provided the secretariat for the group’s cost-effective legislatures in the world. However, we all work. The group also included, until his untimely recognised that things could not stay as they were. The death, the late Lord Kingsland, in one of the last of Eames report is one more example of the determination his many acts of service for the House. It may be of this House to put our house in order. This House helpful to the House if I indicate now the process does a good job, and this report—and the SSRB study which we are proposing for the consideration of the that we will receive very soon—is an exercise in report. improvement, not in collective punishment. In that spirit, I welcome the report, promise full co-operation I said in May that the report would go to the from these Benches and again record my thanks to the Committee for Privileges, but I am advised that precedent noble and right reverend Lord, Lord Eames, and his suggests that the report should come directly before colleagues. the House, and my proposals are in line with that precedent. It is intended that the House will have an opportunity on Monday 30 November to debate the Lord Williamson of Horton: My Lords, the noble report and approve the proposed new code of conduct. Baroness, Lady D’Souza, regrets that she could not be In addition, the noble and right reverend Lord, Lord present in the House, but we also thank the noble and Eames, is proposing to hold a number of meetings right reverend Lord, Lord Eames, for both the substance with Members of the House to discuss the report in and the clarity of the report. At the current time, when advance of its consideration by the House as a whole. we have so much speculation about parliamentary 1277 House of Lords: Code of Conduct[29 OCTOBER 2009] Coroners and Justice Bill 1278 business, I think the clarity will be very much welcomed London Local Authorities Bill [HL] in this House, especially on the issue of paid advocacy That this House resolves that the promoters of and in emphasising our first duty—to be mindful of the London Local Authorities Bill [HL] which was the public interest. We are content with the approach originally introduced in this House on 22 January taken. We also welcome the chance for some meetings 2008 should have leave to suspend any further with Members before the report comes to the full proceedings on the bill in order to proceed with it, if House, and we thank the Leader of the House for her they think fit, in the next session of Parliament statement. according to the provisions of Private Business Standing Order 150A (Suspension of bills). Lord Peston: May I introduce a slightly discordant London Local Authorities and Transport for London note? First, I have not read the report, and therefore (No. 2) Bill [HL] am unable to join all the leaders in saying that I welcome it—I would prefer to read the report before That this House resolves that the promoters of welcoming it, because I might not welcome it. Secondly, the London Local Authorities and Transport for did I understand my noble friend the Leader of the London (No. 2) Bill [HL] which was originally House to say that when it comes to be debated in the introduced in this House on 22 January 2008 should House, it will be on the basis of whether we accept it have leave to suspend any further proceedings on or not? My own judgment—given the soundings I the bill in order to proceed with it, if they think fit, have been taking on a whole range of suggestions to in the next session of Parliament according to the do with our future—is that it would be much better if provisions of Private Business Standing Order 150A we had a Take Note debate on this report, so that we (Suspension of bills). could listen to each others’ views on the matter, and Transport for London (Supplemental Toll Provisions) then come back to a more controversial debate in Bill [HL] which we might amend or not. Given the other pressures that have come on to us from other reports, a Take That this House resolves that the promoters of Note debate would be an ideal way of finding out their the Transport for London (Supplemental Toll Lordships’ views on this subject. Provisions) Bill [HL] which was originally introduced in this House on 22 January 2007 should have leave to suspend any further proceedings on the bill in Baroness Royall of Blaisdon: My Lords, I take note order to proceed with it, if they think fit, in the next of the views expressed by my noble friend, and he is session of Parliament according to the provisions absolutely right to say he should not welcome the of Private Business Standing Order 150A (Suspension report until he has read it. When he has read it, he of bills). might then think that a Take Note Motion is not the most appropriate one, but we will discuss that among our colleagues and the usual channels, and we will Motions agreed. come back to the House on that. Driving Instruction (Suspension and Beverley Freemen Bill [HL] Exemption Powers) Bill Third Reading London Local Authorities Bill [HL] 11.44 am

London Local Authorities and Transport Bill passed. for London (No. 2) Bill [HL] Coroners and Justice Bill Transport for London (Supplemental Toll Report (4th Day) Provisions) Bill [HL] Carryover Motions 11.45 am

11.44 am Amendment 96 Moved By The Deputy Chairman of Committees (Baroness Fookes) Moved by Lord Bach Beverley Freemen Bill [HL] 96: After Clause 143, insert the following new Clause— “Damages-based agreements That this House resolves that the promoters of (1) The Courts and Legal Services Act 1990 (c. 41) is amended the Beverley Freemen Bill [HL] which was originally as follows. introduced in this House on 22 January 2009 should (2) After section 58A insert— have leave to suspend any further proceedings on “58AA Damages-based agreements the bill in order to proceed with it, if they think fit, (1) A damages-based agreement which satisfies the conditions in the next session of Parliament according to the in subsection (3) is not unenforceable by reason only of its being a provisions of Private Business Standing Order 150A damages-based agreement; but any other damages-based agreement (Suspension of bills). is unenforceable. 1279 Coroners and Justice Bill[LORDS] Coroners and Justice Bill 1280

[LORD BACH] (10) Nothing in this section applies to an agreement entered (2) For the purposes of this section, a “damages-based agreement” into before the coming into force of the first regulations made is an agreement between a person providing advocacy services, under subsection (3).” litigation services or claims management services and the recipient (3) In section 120(4) (regulations and orders) after “58(4),” of those services which provides that— insert “58AA”.” (a) the recipient is to make a payment to the person providing the services if the recipient obtains a specified financial benefit in connection with the matter in The Parliamentary Under-Secretary of State, Ministry relation to which the services are provided, and of Justice (Lord Bach): My Lords, with the leave of the (b) the amount of that payment is to be determined by House, I have every intention of withdrawing the reference to the amount of the financial benefit amendment at the end of the debate, which I hope obtained. may be short or even non-existent. I shall try to (3) The agreement— explain in a few words why I intend to take this course. (a) must relate to proceedings or a claim of a prescribed These amendments would establish a statutory description; framework for regulating damages-based agreements. (b) must not relate to proceedings in a relevant court; They are not currently permitted in court proceedings (c) must not provide for a payment above a prescribed and these amendments do not seek to change this. amount or for a payment above an amount calculated in These agreements are, however, commonly used by a prescribed manner; solicitors and claims managers in some tribunal (d) must comply with such other requirements as to its proceedings, primarily proceedings before the employment terms and conditions as are prescribed; tribunal. (e) must be made only after the person providing services under the agreement has provided prescribed I am particularly grateful to the noble and learned information; and Lord, Lord Woolf, for taking the time yesterday to (f) must be in writing. discuss with my officials his and other noble Lords’ concerns. As a consequence, I shall seek the leave of (4) A description of proceedings prescribed under subsection (3)(a) must not include proceedings that are— the House to withdraw the amendment in due course. (a) criminal proceedings; or The primary intention of the amendments is to (b) family proceedings (within the meaning given by section ensure consumer protection of claimants. We know 58A(2)). from recent research that a significant number of (5) For the purposes of subsection (3)(b) an agreement is not claimants in employment cases who sign up to a to be treated as relating to proceedings in a relevant court if the damages-based agreement are not given proper services to be provided under the agreement are services that are information by their representatives. This lack of to be provided only in contemplation of such proceedings before information covers alternative funding which may be they are commenced. available, such as through a trade union or a legal (6) Regulations under subsection (3) are to be made by the expenses insurance policy. Claimants are also not fully Lord Chancellor and may make different provision in relation to informed about the costs, such as experts’ and counsels’ different descriptions of damages-based agreements. fees, which they may nevertheless have to pay— (7) Before making regulations under subsection (3) the Lord notwithstanding that they have signed a no-win no-fee Chancellor must consult— agreement. It is right to legislate to introduce regulation (a) the designated judges, to protect consumers. (b) the General Council of the Bar, I understand that some noble Lords were concerned (c) the Law Society, and at the extent of the amendments as drafted. We are (d) such other bodies as the Lord Chancellor considers listening to those concerns, and propose to withdraw appropriate. or not move these amendments at this stage, with a (8) In this section— view to bringing back at Third Reading redrafted “claim” and “claims management services” have the same amendments, which will be narrower in scope and meaning as in Part 2 of the Compensation Act 2006 (see section limited to the regulation of damages-based agreements 4(2) of that Act); in respect of employment claims which may go to the “payment” includes a transfer of assets and any other transfer employment tribunal. I hope in this way that we can of money’s worth (and the reference in subsection (3)(d) to a meet the concerns that have been raised by noble payment above a prescribed amount, or above an amount calculated Lords, while ensuring from the outset the consumer in a prescribed manner, is to be construed accordingly); protection of vulnerable claimants in employment “proceedings” includes any sort of proceedings for resolving cases. I beg to move. disputes (and not just proceedings in a court), whether commenced or contemplated; “relevant court” means— Lord Thomas of Gresford: My Lords, I am most (a) a magistrates’ court; grateful to the Minister for the course that he has (b) a county court; taken. We have shared the concerns to which he referred (c) the High Court; and consider that the proposals as currently drafted (d) the Court of Appeal; are wide and could capture areas which the Government (e) the Supreme Court. would not wish to. The noble and learned Lord, Lord Woolf, has taken a leading part in dealing with this (9) In this section references to “advocacy services” or “litigation services” include a reference to services that it would be reasonable matter and I hope that when we see the redrawn to expect a person who is acting (or contemplating acting) for clauses our concerns will be met. I am pleased to note, another in relation to proceedings that do not take place in a for example that the Minister says that damages-based court, to provide. agreements will be restricted to the proceedings in 1281 Coroners and Justice Bill[29 OCTOBER 2009] Coroners and Justice Bill 1282 employment tribunals. That is important. I shall also accepted, is any offensiveness to the victim or the look for whether the concerns have been met of bodies victim’s family from the offender receiving payments that are not subject to any form of statutory regulation from a book, article et cetera. and which deal with third-party claims. The amendments proposed by the Government are welcome, particularly because proceedings could not now be based on a media-led populist appeal to public Lord Hunt of Wirral: My Lords, I welcome the outrage. All along, the Government have said that the comments of the Minister. I, too, was concerned and new provisions would be exercised only sparingly. In had discussions with the noble and learned Lord, the light of that assertion, and the amendments now Lord Woolf. I agreed with the points that he made that proposed by the Government, noble Lords are entitled the amendment would have an effect much wider than to ask: why seek the new powers at all? They ignore the one that the Minister outlined. existing powers to deal with criminal memoirs and We are all aware of a timely review of costs conducted necessarily involve limitations on freedom of expression. by Lord Justice Jackson, which has been welcomed on Therefore, they are doubtfully compliant with the all sides of the House. Will the Minister consider not European Convention on Human Rights—a matter taking this matter further until the report has been on which my colleague, the noble Lord, Lord Lester of received and carefully considered—as his ministerial Herne Hill, will speak. These proposals introduce a colleagues have indicated that it will be? In the light of large discretionary power for the Attorney-General the concerns, and as the review is still under way—I and, if a court action is brought, discretion for the understand that it will be completed shortly—we urge judge. This must leave anyone acting as an adviser to a the Government to hold on until the report is published; potential author, and indeed the author himself or and, if they are minded to bring the matter back, we herself, in a state of considerable uncertainty as to will consider it in the light of the review and following whether the law would apply. wider consultation. These are important areas where we must proceed step by step to ensure the maximum The Government’s answer is that sometimes real level of consumer protection. pain is caused to the victim or the victim’s family from the offender being able to profit by exploiting his offence for personal gain. But these proposals are Lord Bach: My Lords, I thank both noble Lords bound to have what I call a chilling effect on any who have spoken. I say straight away to the noble attempt by an offender to express himself, including Lord, Lord Hunt, that we need to legislate urgently on publications or artistic work that may of course be this and will bring back amendments at Third Reading, very helpful in assisting his rehabilitation. It is not as which I hope to share with noble Lords in good time. though our present law on criminal memoirs is non- We will see where we go from there. The suitable existent. There is the Proceeds of Crime Act 2002, the course now is for me to beg leave to withdraw the full implications of which have not yet been pursued amendment. sufficiently to see its advantage in extreme cases. The prison rules, enabling confiscation of memoirs by Amendment 96 withdrawn. anyone serving a prison sentence, were upheld by the Court of Appeal in the case of Dennis Nilsen as being Clause 144 : Exploitation proceeds orders in conformity with the European Convention on Human Rights. Because Dennis Nilsen is serving a life tariff—he has already served 26 years in prison—there will never Amendment 97 be a time when the Government’s proposals could Moved by Lord Borrie apply in his case. He will never be a free man able 97: Clause 144, leave out Clause 144 freely to engage in publishing memoirs. The same point could be made about Ian Brady, the Moors Lord Borrie: My Lords, together with other noble murderer, who is also serving a full life tariff. Lords whose names are appended to several amendments Then there are cases at the other end of the spectrum of the same kind, I tabled these amendments to remove where there are no obvious victims whose outrage Part 7 altogether from the Bill. We were not satisfied could form the basis for an exploitation proceeds with the Government’s response to similar amendments order. In the recent case, which your Lordships may that were tabled in Committee. We continued to be have read about during the Summer Recess, John concerned that the Government’s proposals to enable Darwin the canoeist faked his own death so that he court proceedings to be brought to recover royalties and his wife could live in Panama on insurance payouts. and fees earned by criminals from books, articles, He profited from newspaper articles and was given a films et cetera were not a proportionate response to a jail sentence of eight years for fraud. It seems that the pressing social need. proposed legislation can hardly apply to what is sometimes Soon after we tabled the amendments on Report, called a victimless crime. When you take all these the Government tabled amendments to modify their things into account, surely the Government have a real proposals in Part 7. First, they seek to reduce the question to answer. What is the value, use and worth scope of their proposals by confining them to indictable of Part 7 of the Bill, with its 15 pages of proposed offences. Secondly, they seek to remove the test of legislation? Part 7 can achieve very little for the victims offensiveness to the general public from considerations of crime in whose name it is promoted, but it could to be taken into account by the court when an exploitation have a number of damaging consequences, and it is proceeds order is sought. What remains for consideration doubtfully compliant with the European Convention by the court, if the Government’s amendments are on Human Rights. I beg to move. 1283 Coroners and Justice Bill[LORDS] Coroners and Justice Bill 1284

Lord Soley: My Lords, I understand fully where the can be heard and considered. I am not sure whether in Government are coming from on this, and I am this case there is not an area where we can say that sympathetic to anything that tries to stop the distress there must be some identifiable person with a genuine caused by some of these publications to victims of interest—a friend, relative or whoever—who needs to crime and their close friends and families. As the express concern before the process can be triggered. In Minister has already discovered, the problem is in the other words, the process would start only if you had a detail of how to do it without slipping into undesirable person saying, “I find this just too painful”. censorship. I make the point in passing that if we had I repeat for the benefit of the media that they need a similar rule for newspapers publicising these sorts of to think very hard about how they approach these crimes, most of the articles would not be published. things. If we introduce such a law for the media, most After looking at yesterday’s reporting of the poor of the stories about violent crimes will not be reported. 17 year-old girl who was killed as a result of an Although I do not like the way that they report crime, internet connection, one could well argue, as I suspect I have to say that that would be a serious mistake. The some of her friends and family may, that the detail and same applies to books and films. I ask the Minister to description given in the articles was undesirable and look again at the way in which we trigger this process. unacceptable. Of course, newspapers profit from that, That is important. If we have a blanket provision of so there is a delicate line here. indictable offences, for example, I am almost sure that John Healey’s book, The Grass Arena, and the Channel Noon 4 film based on it, as well as books by people such as I leave that to one side because the important Jean Genet would not be published. question relates to how we draft legislation in such a way that does not stop the release of good books and Lord Lester of Herne Hill: My Lords, my name is films. The Minister will know that this goes back to attached to the amendments, and I have tabled a the publication of a book by Gitta Sereny about the couple of my own, Amendments 106A and 107A. I Mary Bell case. I think that it was a good and important shall concentrate on why I consider that the Bill is not book because it explained a lot about why children fit for purpose because Part 7 does not comply with kill. However, the media storm around it developed the European Convention on Human Rights. Before I into a suggestion for legislation of this type. There is a do that, perhaps I may say how much I agree with case for it because there are examples of acute distress what the noble Lord, Lord Soley, has just said. The being caused to victims by people exploiting the horror concerns that he expressed are very important and of what they have done. place this House in something of a dilemma, because At this stage, I would ask the Minister to look at the we are faced today with the problem that Part 7 was degree of flexibility available. I know why he moved to not properly debated in the other place—which is a the indictable offence factor as a way of trying to matter of great regret—that we are the scrutineers and judge the seriousness of the issue, but I am troubled by the revising Chamber, and that, plainly, Part 7 as it the fact that that also catches other people. In other stands is not satisfactory. Somehow we need to try to circumstances, I mentioned to him the book by John stimulate the Government to reflect on what the noble Healey, a recovered alcoholic. It is the only book I Lord, Lord Soley, and others have said. know that was written by someone who was a vagrant First, I thank the Minister and his advisers for alcoholic for some 15 years, who came off the drink having met the noble Lord, Lord Borrie, and me to and published a book that won an autobiographical discuss the possibilities of Amendments 106A and prize and became a Channel 4 film that also won 107A, which I tabled in the hope—foolish optimist awards. Like most vagrant alcoholics, he has many that I am—that there might be some way of making convictions, most of which were petty—being drunk Part 7 convention-compliant. I am grateful for that. and disorderly and so on—but among them were One of the points that Her Majesty’s Official several indictable offences. Opposition make in their scepticism about aspects of That book would not have been written if ultimately the Human Rights Act is that it does not allow Parliament some payment had not been involved because it helped to do its job sufficiently and leaves too much to the his development and it helped the development of the courts to repair legislation enacted by us. I have some film that won the award. As I have indicated, it was sympathy with that, even though I think that I am one also an important book in describing the process by of the architects of the Human Rights Act. It has which a person becomes a vagrant alcoholic and the come to be seen as an easy get-out for Governments, processes by which they can abandon that position. It who can simply say, “The courts have an obligation to therefore has an important element. We have talked read and give effect to legislation if they possibly can about the well-known cases of Mary Bell, Dennis to make it convention-compliant, so it does not really Nilsen and so on. But, thinking about it, the book by matter if the legislation enacted does not really get it Jean Genet, the French author, would probably never right on its face”. One of the attractive points made by have been published. the Opposition is that it is really important for Parliament We therefore have to think carefully about this to do the best it can to pass legislation that is fit for aspect, and I have a solution for the Minister. I understand purpose in being convention-compliant. the dilemma of getting this right. I wonder whether we Yesterday evening, in a short debate on Section 5 of could do more on the rights of the victim. The the Public Order Act, the noble Lord, Lord Bach, Government have introduced legislation in other areas perfectly correctly referred to the fact that the European where the victim has a greater say in what happens in Court of Human Rights has held that Article 10(1) of sentencing. Without overriding the court, their views the convention, the free speech guarantee, applies, 1285 Coroners and Justice Bill[29 OCTOBER 2009] Coroners and Justice Bill 1286

“not only to ideas that are favourably received, or regarded as and not leave it to the courts to give a declaration of inoffensive or as a matter of indifference, but also to those that incompatibility in future or to try to rewrite the statute offend, shock or disturb”.—[Official Report, 28/10/09; col. 1190.] instead of us having done so. That is the starting point for Article 10. There is a right to freedom of expression which can be interfered Baroness Rendell of Babergh: My Lords, I rise to with only where there is legal certainty and necessity— support these amendments. I believe I am the only proportionality. I am sure that that is common ground professional writer—that is, one who lives solely by and that Ministers would not dissent from that basic her writing—to have spoken during the course of the position. There is also the right to property, the right Bill, and therefore what I have to say may be of some to the peaceful enjoyment of one’s possessions in help. Article 1 of protocol 1. At Second Reading, my noble friend Lord Borrie The Explanatory Notes to the Bill, although they cited memoirs by Ian Brady, Mary Bell and Dennis do not explain why the Government think that the Nilson—he mentioned him again this morning—and provisions are convention-compliant, repeat the fact went on to speak of the prison diaries of a former that they think that they are convention-compliant. I Member of Parliament and of a fellow Member of do not understand how a Minister could have been your Lordships’ House. The noble Baroness, Lady advised to come to that view. In the first place, the Stern, spoke of Silver Threads by John Williams criteria in the Bill, which the court will be expected to and John Hoskison’s Inside: One Man’s Experience of exercise, are not only incommensurable—you cannot Prison. Perhaps, though, the most famous and weigh one properly against the other for the reasons distinguished example of a criminal whose memoirs, explained in our previous debate—but they are so novels and plays can be said to stem entirely from his vague that, even without the “offence to the public” experience of crime and imprisonment is the French provision, which will now happily be removed if Part 7 author Jean Genet, who has already been mentioned stands, as to have the chilling effect to which the noble by my noble friend Lord Soley. Lords, Lord Soley and Lord Borrie, have referred. Genet, who was born in 1910, was a social outcast Therefore, the first vice in these provisions is that they who, as a novelist, transformed erotic and even obscene are vague and lack legal certainty. That would be quite subjects into what has been called a poetic vision of enough to cause the European Court of Human Rights the world. He began his life of crime as a child. His to say that they are in breach of Article 10. mother abandoned him to the care of the assistance publique. He lived in state institutions and spent five Secondly, they also sweep too broadly; they are years in the notorious reform school at Mettray. There disproportionate. The Minister will no doubt say in he lived through the degrading experiences that were his reply that all that may be, but it is for the judge to later described in his novel, Miracle of the Rose,in make sure under the Human Rights Act that the which he pondered the meaning of imprisonment. provisions of Part 7 can be read and given effect in a way that cures the vices of legal uncertainty and After deserting from the Foreign Legion, he wandered overbreadth. The courts cannot cure the vice of lack around Europe, to be charged in various countries of legal certainty. That vice can be corrected only by with vagrancy, theft, and homosexuality, which was Parliament. As the Joint Committee on Human Rights, then a crime. Here it may be apposite to say that on which I serve, has repeatedly pointed out, it is quite Genet’s obscene or pornographic work is never gratuitous wrong to use the Human Rights Act, which I strongly or designed to excite or titillate. Much of it explores favour, as a substitute for proper legislation. The safeguards man’s solitude and the meaning of shame and abjection. have to be in the Bill. 12.15 pm In Amendment 106, especially, and Amendment 107A, More time was spent in prison, but in 1939 he I have endeavoured, in a rather pathetic way, to find began to write, and the outstanding nature of his work some way of writing something into the Bill, not very attracted the attention of Sartre, de Beauvoir and satisfactorily, that might deal with this. Obviously, the Gide. Under French law, automatic life imprisonment Minister will wish to explain whether he is willing to ensued after 10 convictions and, when Genet was accept that or something very similar to it. It is important convicted of burglary for the tenth time, Gide, Sartre that we know that. It is also important to know and Cocteau, among others, successfully petitioned whether there is any Strasbourg case that Ministers the President of the Republic for his reprieve and can point to in this debate that supports their belief release. that this satisfies either legal certainty or proportionality in the context we are talking about. I know of no basis Genet subsequently wrote a poem that praised in Strasbourg case law that could possibly support a criminals’ values and in which a prison cell becomes a view that these provisions as they stand are convention centre for dreams and meditations. His autobiography, compliant. I very much hope that the Minister will be The Thief’s Journal, followed. This, about his youth able to enlighten us because the legal advice he will and what he called a forbidden universe, is a prime have received about why it is compatible will surely example of the kind of memoirs that we are talking have pointed to whether there are any Strasbourg about here—a convicted criminal profiting from the cases—I bet there are not—and I reserve the right, if publication of a record of his experiences. I may, having heard that to reply to him later in the My noble friend Lord Borrie pointed out at Second debate. I hope that when the official Opposition come Reading that the publication of a criminal’s memoirs to decide what to do they will join those of us who may in some cases have beneficial outcomes in the want to get legislation passed that is fit for purpose rehabilitation of the offender. He cites the learning of 1287 Coroners and Justice Bill[LORDS] Coroners and Justice Bill 1288

[BARONESS RENDELL OF BABERGH] murder victims by perpetrators would cause enormous new technical or language skills or the discovery by an distress and may call for a remedy. The noble Lord, ex-prisoner of artistic talent. This absolutely applied Lord Soley, made that point very helpfully. However, to Genet, who is a fine example of what redemption it is not at all clear how we got from murder victims to can achieve if not by imprisonment then by writing all indictable offences and from books to all forms of about the prison experience. artistic expression. When confronted with one or two In 1966, Genet largely gave up writing and spent his bad examples of offensive behaviour, the Government time giving lectures and supporting various radical have a tendency to look for a new law that aims to causes. Concern for the victims of criminals is a theme prevent it and stretches more widely to encompass a that runs through this Bill, although the victims are huge range of behaviour. But this measure must be the not to recover compensation. To return to my own most dramatic example of that genre—if I can use theme, those who suffered from Genet’s crimes were that word. mostly the people from whom he stole. I do not know In his letter of 14 October, if I understand him whether any of them believed that his large output of correctly, the Minister says, as consolation, that the distinguished literary work compensated them, but I scheme does not prevent publication of any material. do not see how anyone could be injured by the work It prevents only the author keeping the money earned itself. I can, however, see the damage that may be by it. The letter suggests that the books I mentioned caused by censorship. by ex-prisoners give valuable insights into imprisonment If kleptomania exists, it looks as though Genet and prison reform and that they could still be published, suffered from it—some pathological condition that but that the authors would not be able to keep the impelled him to steal. For a story is told that he was so money they made. From a Government who are addicted to theft that he stole diamonds from his committed to offender rehabilitation, this approach is hostess while at a literary party. Such a condition may absurd. well be true of many compulsive thieves whose early The noble Baroness, Lady Rendell, is one of the lives were as tragic as Genet’s. This is a matter only for most well known writers in the world. She has explained speculation, as is the possibility that what Genet wrote the importance of writing for rehabilitation better may have been restrained if, as the noble Baroness, than many of us could. Writing, painting and making Lady Stern, has put it, he had come under the dampening films are all better activities for society than violence, effect of measures such as these. robbery and theft. We should welcome such rehabilitation and not take away the lawfully earned money of the rehabilitated. Baroness Stern: My Lords, I, too, have added my name to the amendment. I should like to say how grateful I am to all those involved in trying to deal Lord Ramsbotham: I should declare an interest as with this part of the Bill who have taken it so seriously, president of the Arts Alliance and former chairman of and to outside organisations, such as English PEN the Koestler Trust. Has the Minister or any Minister and the Howard League for Penal Reform, which have from the Ministry of Justice been across the river to worked hard to set out and explain to the wider world the South Bank to see this year’s Koestler exhibition why this is such a flawed proposal. of art by offenders, an exhibition curated by six women We had a fair amount of time between Committee offenders on release from Downview prison? It is a and Report, so I had a chance to try to get a little quite outstanding display which demonstrates the value nearer to the bottom of how this very large piece of of the arts in the rehabilitation of offenders. The arts law, which in theory covers hundreds of thousands of do not necessarily contribute to the prevention of people—all those with a conviction for an indictable reoffending as such but, by encouraging and developing offence and with a vast range of artistic expression—came the self-esteem of the person engaged in the activity, into anyone’s mind. Why did the Government want to they encourage them to become involved in the education, put this into the Bill? I am aware that there were training and work education that may lead to their consultations here and in Scotland, but it is clear that being able to live a law-abiding and useful life. They very small numbers responded. Most people who work therefore have a very pertinent part to play in encouraging in offender rehabilitation have never heard of these the development of offenders. consultations, although presumably that was their fault I strongly support these amendments because all because they would have been on a website somewhere. the members of the Arts Alliance—which consists of I thank the noble Lord, Lord Bach, for his reply to more than 500 voluntary organisations involved in all my Written Question during the recess. He told me aspects of the arts and in bringing the arts to offenders, that there were 24 responses to the consultation, including whether in prisons, psychiatric hospitals or probation two from victims’ organisations, not including Victim areas—are extremely alarmed about the implications Support, and one from a relative of a crime victim. I of this legislation. The impact has not been properly got a clue about from where this might have come thought through. As the small print of the Bill reveals, from reading the equivalent Scottish documentation it could have an impact on organisations that are and I thank the Minister for the information about involved in the delivery of arts to offenders—which is Scotland included in his letter of 14 October to those part of protecting the public. My strong recommendation, who had spoken in Committee. The Scottish material therefore, is that this whole part of the Bill should be talks about preventing “defamation of murder victims”. withdrawn and rethought because it really is a I began to see that a sensible germ of an idea was at sledgehammer to crack a small nut. I believe that the the basis of all this. It is clear that defamation of nut can be cracked in a much more effective way. 1289 Coroners and Justice Bill[29 OCTOBER 2009] Coroners and Justice Bill 1290

Baroness McIntosh of Hudnall: I apologise for not clauses, that might explain why these clauses are so having contributed to the debate in Committee and inadequate to deal with the problem which the therefore coming to the argument very late. To begin, Government are struggling to address. may I say how strongly I agree with what has just been said by the noble Lord, Lord Ramsbotham, and other speakers thus far, including my noble friend Lord 12.30 pm Soley? I do not pretend to have even a fragment of the The noble Baroness, Lady Rendell of Babergh, expertise of the noble Lord, Lord Lester, in the matter made a powerful point. There is no doubt that, as I of the human rights implications of the proposal, so I mentioned, there will be a chilling effect, even when neither can nor should address it, but what I would this is never going to come to court because the books like the Minister to explain is this. In what way will the or works of art will never be produced. That is something legislation address the harm that it seeks to redress? that we need to worry about. Perhaps I have misunderstood it, but the legislation This is not adequately drafted. No doubt there are addresses only those circumstances in which prisoners other approaches and solutions that would not have or ex-offenders are paid for the work they produce. It this effect. We are unhappy with the way that these seems possible, at least in principle, that someone clauses are drafted. could publish work that has the capacity to offend or distress victims or their families and not be paid for it, The book Cries Unheard, which was one of the but the distress and harm would be exactly as if the major reasons why the Government moved down this writer had been paid. I cannot see how the linking of road, was written by someone else. The Government distress and harm to victims and their families—which do not address at all the issue of books written by is something we certainly should be concerned about— someone else, and although I gather Mary Bell received with payment in any way seriously allows the mitigation a payment for it—we have never seen any evidence of of that harm to be achieved. that, but she may have received a payment—this would not prevent someone else writing about a crime. This This proposed legislation falls at the first hurdle catches only the person who has written themselves that must be the test of any legislation, which is that it about their crime, which leaves a bit of a gap if the does what it sets out to do. When the Minister comes Government are trying to prevent the victims from to reply, could he address that issue? suffering more. For all the reasons that we have heard today, we Baroness Miller of Chilthorne Domer: My Lords, I shall be supporting these amendments. thank the Minister for his lengthy letter of 14 October, which sets out in greater detail the Government’s thinking on this issue. However, having read it and Lord Henley: My Lords, I hesitate to interpose listened to the powerful comments and questions put myself between the Government Front Bench and by Members of your Lordships’ House today, I think their Back Benches or, for that matter, noble Lords that the Government should take away and rethink from the rest of the House, who do not seem to like the set of clauses dealing with this issue. what the Government are attempting to do. The point made by the noble Lord, Lord Soley, is I shall briefly set out the Opposition’s point. We powerful because the question of the trigger is the accept that people who have committed awful crimes essential one, but it is far from clear in the Bill. should not be allowed to profit from that crime by Perhaps I may cite the Minister’s letter where he talks selling their story, so there is some merit in what the about seeking the consent of the Attorney-General, Government propose. We also note, and this is relevant who will weigh up matters of public interest. Although in this House, that it is a matter that was promised in the Government have now tabled an amendment to their manifesto at the last election. The Minister nods. address the issue of public distaste, the Attorney-General Having said that, it is also important to remember will nevertheless have to weigh up something when a the point made by the noble Lord, Lord Lester, that case is put before her. The Minister then goes on to Part 7 was hardly discussed in another place. It is talk about how the court will have, unfortunate, when a new crime—and this is a new “wide discretion as to whether or not to impose an order, taking crime—or a new procedure is being added to the account of a number of factors”. statute book, if these matters are not properly discussed Lengthy arguments will arise in court where offenders in another place as well as in this House. I hope that will no doubt have great difficulty representing the Minister can comment on that. It is obviously themselves—we have not touched on this issue—but rather late in the day for that to be rectified, but what it comes down to is the chilling effect spoken procedures are such that the Government should ensure about by many noble Lords. that these matters are properly discussed. The Minister’s letter does not give any sound examples In some respects we are slightly more supportive of of what drove the Government to introduce this provision. the Government. We note that nothing in these provisions The noble Baroness, Lady Stern, asked why that is so, actually prevents publication. We do not think that but none of the examples quoted in the four pages of there is an infringement of free speech. In fact, free the Minister’s letter really answers the question. The speech is not the issue; we are talking about paid Minister will recall that he quoted the case of Nick speech. I dare say that the noble Lord, Lord Lester, Leeson. That, as the noble Lord mentioned, is clearly will correct me if I am wrong on this, but there is a victimless crime for the purposes of this Bill. If that no human right to be paid for saying or writing what case informed some of the thinking behind these you wish. 1291 Coroners and Justice Bill[LORDS] Coroners and Justice Bill 1292

[LORD HENLEY] their families. For that reason, we cannot support the The clauses in the Bill allow an application to be amendments but we will leave it to others in this made for profits or benefits to be confiscated. A court House to decide what they wish to do with them. We may hear an application for an order— want further assurances from the Government.

Lord Lester of Herne Hill: I think the noble Lord Lord Tunnicliffe: My Lords, I thank the noble Lord, was asking me to respond, in a way. The answer is that Lord Henley, for the only support I got in the whole it is not just the right to communicate with the public; debate. I thank all noble Lords for this extensive any impediment—for example, a tax on free speech, debate on this interesting area. newsprint or costs—or any other burden upon free We have not changed our view that it is wrong for a speech implicates Article 10. That is accepted in the criminal to cash in by exploiting the story of his or her Explanatory Notes. I think the Government will accept crime, especially in cases where the offence has already that there is an issue under Article 10 of the convention, inflicted immense suffering on victims and their families. as well as on the right to property. We felt so strongly on this point of principle that we included a commitment to legislate in this area in the Lord Henley: It is my own fault for offering an Labour Party’s 2005 election manifesto. opening to the noble Lord, and I will try to restrain Earlier this month I wrote to the noble Baroness, myself from doing that in future. I think the Minister Lady Miller, giving details about those offenders who will accept that it is still possible to publish; there is had prompted public debate after receiving payment just the impediment that he referred to that the individual for material about their crimes. There are several cannot be paid for it. He might remember what more, including the Ian Huntleys of this world, who Dr Johnson said about people not writing for money, have reportedly written material that has not yet been which has some bearing on that. If he does not know published. I do not intend to go over each case cited in the quotation, I think the great doctor said, “No one my letter, but one thing is clear: offenders will continue but a blockhead ever wrote but for money”. I can have to benefit in the future from publishing material about that corrected if I have got it slightly wrong. their crimes if we do not take this opportunity to do A court may hear an application for an order only if something about it. it has been authorised by the Attorney-General. We My noble friend Lord Borrie has argued that the have voiced doubts at times about the Government’s scheme is not worth while because it will rarely be proposals, but we accept that checks, balances and used. It is, of course, hard to predict precisely how safeguards are built into the process. It is not simply a many cases there will be each year. We suggested a grabbing exercise but what we trust could be a carefully figure of two a year in the impact assessment published targeted system that would deny offenders convicted alongside the Bill; this was on the basis of past cases of some of the worst crimes the opportunity to profit that have caused concern. However, in some years from their misdeeds. there could be a greater or smaller number. Even if the Having said that, we await assurances from the scheme is rarely used, it does not mean that we should Government on a number of points. Clearly there are turn a blind eye to this problem. The fact that the people who have reformed or are reforming and who scheme may be used in only a small number of cases is make a positive virtue out of their past offences. An no reason for saying that people who cash in on their ex-convict who draws on his experiences to make crimes should be outside the reach of the courts. critiques of penal policy, or who writes about their My noble friend also cited the existence of the experiences as a warning to others, should not, under prison rules and existing legislation on confiscation as any reading of these clauses, be swooped on by the a reason for not introducing these provisions. I recognise enforcement authorities. When determining the that the prison rules provide some degree of protection, application, the court will be mindful of such requirements but history shows that they cannot fully address the in Clause 151(3). We have asked the Minister to confirm problem. Crucially, prison rules bite only when an that. We think that these orders should be applicable offender is in prison. As to the Proceeds of Crime Act only in the case of the most serious offences. Again, 2002, this was not designed with criminal memoirs in we would like to have some confirmation to that mind and their potential application to such cases is effect. doubtful. Even if the Act could be utilised, confiscation The noble Lord, Lord Lester, has proposed orders are imposed at the time a person is convicted, Amendments 106A and 107A, which would put in the whereas criminal memoirs are often published months Bill a direct reference to the convention rights. No or years after the conviction. doubt the noble Lord might intervene again, but while I turn now to some of the other criticisms that have he has made a good point, in our view it is an unnecessary been levelled at our scheme in recent weeks. I know one; as I understand it, the courts have to make their that the noble Baroness, Lady Miller, and some decisions in the light of the convention in all cases. His organisations think the scheme will have a “chilling amendments are therefore unnecessary. effect” on the right to freedom of speech and might It is clear to the Government that there is significant damage an offender’s prospects of rehabilitation. Let opposition to the clauses in the Bill. However, we have me be clear that the scheme does not prevent anyone endorsed the principle behind them, and we look now from writing or publishing anything. If offenders want for assurances from the Government to the House to write and publish material to develop their skills, that they have struck the right balance between protecting they can continue to do so. Indeed, we recognise that the right to free speech and the rights of victims and the natural outflow of expression in print can greatly 1293 Coroners and Justice Bill[29 OCTOBER 2009] Coroners and Justice Bill 1294 aid rehabilitation. All we are saying is that if offenders referred several times during this debate to the book profit from accounts of heinous crimes, an action Cries Unheard, which was of immense value in showing which can cause great distress to surviving victims and what might lead a child to such a crime. It has a bereaved families, the courts should have the power to readership among social workers and all sorts of people, order them to pay back the proceeds. which has been very valuable. What criteria will the Government suggest form the basis of that judgment? Lord Lester of Herne Hill: As I understand the Minister, it is the intention that these provisions should Lord Tunnicliffe: It will be for the courts to decide have a chilling effect by deterring the Ian Huntleys, for how to use these clauses. We believe that the courts are the reasons that Dr Johnson gave. Are they not to quite capable of doing so. It is for the judgment of the deter people by depriving them of the profits from House whether it thinks that courts are that capable, publishing material considered by the Government to but we think that they are and that not only the be undesirable and of no value? criteria in the Bill but also the general duties of courts under the Human Rights Act will lead them to sensible Lord Tunnicliffe: There is a sense of chilling in what decisions in any case that comes in front of them. we are doing, for the most heinous crimes and within I am aware of Amendments 106A and 107A, tabled the context of the Act, which, as I shall go on to by the noble Lord, Lord Lester, which seek to amend explain, will take account of all proper issues, particularly the factors that a court has to consider before imposing proportionality and the narrowing of the crime. an order. The amendments have the effect of explicitly requiring the courts to have regard to the right to Baroness Stern: While the Minister is still on this freedom of expression and peaceful enjoyment of part of his speech, could he address the point made by property and the extent to which the imposition of an the noble Baroness, Lady McIntosh? As I understand order is a proportionate interference with those rights. it, the Government are of the view that what the We have considered his proposals carefully, but we do victim of a serious crime minds, if something is written not believe that it is right to amend the scheme in that about it, is not that it is written about and that is way. We have already set out clearly in the Explanatory published and many people read it, but that the person Notes our firm view that the scheme complies with the gets money for it. I understand that it is the Government’s convention rights. view that once that money is taken away, the victim no As noble Lords will know, any interference with the longer suffers from the hurt and distress of having it right to freedom of expression is justified under the published. Have I understood that right? convention if it is in accordance with law, in pursuance of a legitimate aim—in this case the protection of the Lord Tunnicliffe: I was going to come to that point— rights of others and the protection of morals—and but, to answer it now, we believe that the publication necessary in democratic society—the latter term referring can cause offence to victims and friends, but we think to there being a pressing social need for the interference— that it would be a step too far—and I am sure that and that the means employed are proportionate to the noble Lords would descend on us like a ton of bricks— legitimate aims being pursued. Interference with the simply to ban publication. We believe that what is right to peaceful enjoyment of property is justified particularly offensive to victims, and to families and under the convention when the interference is in the friends of those victims, is that the criminal is able to public interest, subject to conditions provided by law profit from his crime by subsequent publication. We and is proportionate to the aim pursued. have looked to all sorts of things to make this reasonable The detailed reasons why any interference with and fair, but we see the act of profit as particularly and convention rights that may result from the operation excessively offensive. We believe that we could not of the scheme is fully justified and therefore compatible possibly address the simple act of publication, because with the convention are set out in the Explanatory it would go too far the other way. I am sure that all Notes. Any order made applying the scheme set out in noble Lords in this House would say that it would, the Bill will accordingly be consistent with the convention. and that it would interfere with freedom of speech. Indeed, the Joint Committee on Human Rights in its When an application for an order is made, the court report on the Bill did not raise any general concerns will have a wide discretion in deciding whether to regarding the scheme. It simply raised one detailed make an order and setting the amount that the offender point about Clause 151(3)(f), which is addressed in has to repay. It will consider a number of factors Amendment 106A, to which I will turn shortly. before deciding whether to impose an order and, if so, Noble Lords will also recall that under Section 6 of the amount. These include whether details about the the Human Rights Act the courts are already required offence are central or integral to the publication as a to act compatibly with convention rights and will whole; the social, cultural or educational value of the therefore need to do so when applying this new scheme. publication; the extent to which the material is in the The courts will not impose an order if to do so would public interest; and the degree to which the publication in fact be an unjustifiable interference with the right to causes offence to victims and their families. freedom of expression or the right to peaceful enjoyment of property. The amendments requiring the courts to 12.45 pm consider the convention rights are therefore unnecessary. Baroness Miller of Chilthorne Domer: I am sorry to It is also— interrupt the Minister again, but this is a very important point. What sort of criteria will the judge have to Lord Lester of Herne Hill: I will not interrupt decide on the educational value, for example? We have again, but since the noble Lord is dealing with— 1295 Coroners and Justice Bill[LORDS] Coroners and Justice Bill 1296

Lord Bach: I must remind noble Lords that this The original scheme in the Bill would have applied to applies not only to Report: it applies to interruptions memoirs about any offence. Offences can that can be of speeches in any event: tried only on indictment form a small proportion of “A member of the House who is speaking may be interrupted such cases. It would cover only offences at the most with a brief question for clarification”. grave end of the spectrum such as murder, manslaughter That is what the noble Lord is entitled to do, but or rape. lengthy or frequent interruptions may not be made, Noble Lords may also recall that the Joint Committee even with the consent of the Member speaking. Of on Human Rights was concerned about the reference course, the noble Lord should ask his question if it is to the “general public” in Clause 151(3)(f). It was for clarification, but if it is any more than that, such as suggested that it would be difficult for a court to a debate, this is not the appropriate time for it. measure the extent to which the general public is offended by a publication when weighing up whether Lord Lester of Herne Hill: I am grateful to be to impose an exploitation proceeds order. I know that reminded of what I know already. I have not yet asked that view is shared by other noble Lords, as it was my question, but the Minister was explaining why my raised during the debate in Committee on 21 July. On amendments are unnecessary and why the convention reflection, we think that that is a valid point. Government rights are secure. I rose because I asked before for case Amendment 107 therefore deletes the reference to the law of any kind on which the Government rely to “general public” from Clause 151. show that these provisions, in this context, are compatible Importantly, however, the reference to the extent to with the legal certainty and proportionality—not general which the victim or family of the victim are offended case law, but specific case law. Does the Minister have by a publication will remain. It would be much easier those, please? for the court to measure the degree to which victims or family members are affected than it would be to gauge the strength of public feeling. Lord Tunnicliffe: There is no case law. I believe that that is true for much of the Human Rights Act. That I hope that I have answered the points made by the does not mean that courts do not take account of that noble Lord, Lord Borrie. He brings forward what I Act all the time. I am proud to represent a Government called in my previous life the de minimis dilemma. Yes, that brought in the Human Rights Act and that that this provision will relate to only a small number of Act is impacting on the behaviour of courts and how cases. Nevertheless, our judgment is that those cases they set about their business. are important. The noble Lord, Lord Soley, talked about the case for flexibility. It is quite clear that the It is also important to bear in mind that, when court can consider all factors and will reasonably do deciding whether to impose an order, the courts will so. The impact on rehabilitation, the impact on victims naturally balance the various factors that they have to and the victim’s views are all things that the court consider in reaching their decision. The need for such should consider, but the key issue about flexibility is a balancing exercise is plain from the clauses, which addressed by the move that we have made to indictable- provide a list of factors to be considered, some of only offences. Non-lawyers in the House may not which are likely to tend towards an order being made know what that means. Offences that are triable either and others that are not. The court will also be free to way include sexual assault, burglary, causing death by take into account any other factors that it considers to careless driving, fraud, membership of a proscribed be relevant when carrying out that exercise. terrorist organisation and drugs offences. When we I now turn to the government amendments. In bring forward our amendments at Third Reading, Committee, the noble Baroness, Lady Stern, asked me none of those offences will be included in the Bill. to clarify whether the scheme would truly apply to offenders who exploit information about any offence, The noble Lord, Lord Lester, made his case about regardless of the seriousness of that offence. I can the Human Rights Act. I thank him for the time that confirm that that is indeed the effect of the current he spent discussing that with us and I am sorry that we clauses. However, we have been reflecting on this issue have not come to a common understanding. The over the summer and government Amendments 101, noble Baroness, Lady Rendell, made a brilliant speech 102, 103 and 112 should help to allay concerns about about a French novelist, who I have never heard of. I the breadth of the scheme. cannot possibly judge whether heinous crimes were committed by that novelist or not, but the contribution Those amendments will narrow the scope of the that she described would be considered by the courts if scheme so that it applies only to offenders who exploit a parallel situation were to exist. The noble Baroness, material about serious offences, namely those offences Lady Stern, suggested that hundreds of thousands of that can be tried on indictment—that is indictable-only people would be impacted. Our view in the impact offences and offences that are triable either way. It is, statement was two per year. I hope that I answered the after all, people profiting from accounts about serious point made by the noble Baroness, Lady McIntosh. offences, not low-level summary offences, who are most likely to be of concern. To provide additional The noble Baroness, Lady Miller, quoted from the reassurance to the House and after extensive consultations, letter that I wrote, particularly the Leeson part. She we intend to bring forward amendments at Third claimed that his was a victimless crime. That would no Reading to further limit the ambit of the scheme to longer be included under the Third Reading amendments indictable-only offences. Limiting the scheme to those that we intend to introduce. who exploit material about offences that are triable The noble Lord, Lord Henley, started to make a only on indictment will be a major move on our part. speech in support of us and I hope that as an individual 1297 Coroners and Justice Bill[29 OCTOBER 2009] Coroners and Justice Bill 1298 he will support us in the Lobbies. We have now limited However, it is no more than a gesture, because the provision to the worst crimes. I cannot bring under these proposals the victim is not to receive a forward the specific reassurances that he asked for, but single penny of any proceeds that the Government will I hope that I have answered the issues on the Human obtain under the new action that will be permitted. Rights Act and that the breadth of the Act allows all The Government admit that the new powers are to be sensible things to be taken account of. used only rarely. Almost every time that the Minister has referred to these matters in detail, whether privately yesterday or today in this House, he has emphasised 1pm how very unusual it would be and in how few cases the I hope that we will get support for this provision, proceedings suggested by Part 7 will result in proceeds the bipartisan nature of which goes back to before the being recovered. previous election. Michael Howard, the then leader of The proceedings which are described in Part 7 are the Tory party, said: hedged around with restrictions and qualifications, “We don’t think criminals should benefit from their crimes—society and to some extent that is welcome because it allows should draw a clear distinction between right and wrong”. for the literary value of publications, and for the Later in the same discussion, he said: general public interest to be observed. However, as the “What I want to see is a presumption against criminals benefiting noble Lord, Lord Lester of Herne Hill, has clearly from their crimes in this way”. pointed out—and in this House, he has a particular As I set out in my letter to the noble Baroness, Lady knowledge of this field—the uncertainty of application Miller, there was cross-party support in the other of these proceedings is too vague, and not proportionate place. I am afraid that I cannot be responsible for its to the mischief that is said to be involved. That is conventions. During Committee in the other place in because of the vagueness that, almost inevitably, has March 2009, Shadow Justice Minister Henry Bellingham to appear in the legislation. stated, To say that the Government are attracted to it may “We have supported the Government’s policy of including part 7 on criminal memoirs in the Bill and have taken the view for be an exaggeration, but they are still resolute in their some time that people who commit heinous crimes should not desire to have Part 7 on the statute book. The Government benefit financially from them after their release or, as in some are not willing to modify it on the lines helpfully cases, while they are in prison”. proposed by the noble Lord, Lord Lester of Herne Despite some misgivings about the finer detail of the Hill, despite their inability, which has been confirmed Bill, the Liberal Democrat Home Affairs spokesman, today, to show that there would be any European case David Howarth, stated: law for the compliance of this part of the Bill, and the “Like the hon. Gentleman, I have no objection to the general things that can take place under it, with the European principle—indeed, I support it—that people should not benefit Convention on Human Rights. from their own wrong. Civil remedies in this area are more difficult to obtain”, It is impossible to summarise the breadth, width and thoughtfulness that went into so many of the and are not as exhaustive, speeches that we have heard today, but in one way and “as some academic commentators would have us believe”.—[Official another they all say to the Government, “You haven’t Report, Commons, Coroners and Justice Bill Committee, 10/3/09; col. 680.]. got it right, even if there is some basis for this sort of I hope that I have touched upon all of the points. legislation. You should withdraw it”. They are unwilling Finally, I again remind the House that the provisions to withdraw it, and I feel that I have to divide the in this part of the Bill stem from a commitment in the House on this matter. It is not my custom to do that Labour Party’s 2005 election manifesto. The relevant while sitting on the Government Benches, which I passage reads, have been on for at least as long as the noble Lords on the Front Bench. On this occasion, however, I feel that “we will develop new proposals to ensure that criminals are not able to profit from publishing books about their crimes”. this has hardly anything to do with party politics but is I hope that in the light of all I have said, the House a matter of principle. I feel that I should ask to divide will accept the need for these provisions, as modified the House unless, perhaps, the Minister does that the by the Government amendments, and I invite my other way around. noble friend Lord Borrie and the noble Lord, Lord Lester, to withdraw their amendments. If they will 1.07 pm not, I invite the House to vote against them. Division on Amendment 97

Lord Borrie: My Lords, first, I thank the Minister Contents 56; Not-Contents 74. for a very comprehensive response to the debate. He will have noticed, as I did, that apart from the fairly Amendment 97 disagreed. modest and partial support of the noble Lord, Lord Henley, every single person who spoke in the debate Division No. 1 was critical of and generally against Part 7 of the Bill. In my view, having listened to the debate, Part 7 is an CONTENTS example of gesture politics. It is a gesture in the Addington, L. Borrie, L. direction of victims of crime, for whom we must all Astor, V. Bradshaw, L. have sympathy because the state of anguish and offence Best, L. Burnett, L. that they may feel when an offender profits from a Bonham-Carter of Yarnbury, Chidgey, L. book or article written by him is a serious matter. B. Chorley, L. 1299 Coroners and Justice Bill[LORDS] Coroners and Justice Bill 1300

Clement-Jones, L. Newton of Braintree, L. Clause 147 : Qualifying offenders: supplementary Cotter, L. Northover, B. Dholakia, L. Norton of Louth, L. D’Souza, B. Ramsbotham, L. Amendment 100 not moved. Evans of Temple Guiting, L. Razzall, L. Falkland, V. Redesdale, L. Falkner of Margravine, B. Rennard, L. Garden of Frognal, B. Roberts of Llandudno, L. Clause 148 : Relevant offences Goodhart, L. [Teller] Greengross, B. Saltoun of Abernethy, Ly. Hamwee, B. Sandwich, E. Amendments 101 to 103 Harris of Richmond, B. Howe of Idlicote, B. Scott of Needham Market, B. Moved by Lord Tunnicliffe Hylton, L. Sharp of Guildford, B. Kirkwood of Kirkhope, L. Shutt of Greetland, L. 101: Clause 148, page 95, line 2, leave out subsection (1) and Lee of Trafford, L. [Teller] Smith of Clifton, L. insert— Lester of Herne Hill, L. Steel of Aikwood, L. “(1) In this Part “relevant offence”, in relation to a person Lewis of Newnham, L. Stern, B. (“P”), means— Listowel, E. Teverson, L. (a) a serious offence by reason of which P is a qualifying Mackie of Benshie, L. Thomas of Gresford, L. offender, McNally, L. Thomas of Walliswood, B. Methuen, L. Thomas of Winchester, B. (b) a serious offence which was taken into consideration by Miller of Chilthorne Domer, Tyler, L. a court in determining the sentence imposed on P for an B. Wallace of Saltaire, L. offence by reason of which P is a qualifying offender, or Neuberger, B. Walmsley, B. (c) a serious offence committed by another person which is associated with— NOT CONTENTS (i) an offence by reason of which P is a qualifying offender, or Adams of Craigielea, B. Jay of Paddington, B. Ahmed, L. Judd, L. (ii) an offence which was taken into consideration by a Anderson of Swansea, L. King of West Bromwich, L. court in determining the sentence imposed on P for Archer of Sandwell, L. Kinnock, L. such an offence. Bach, L. Kinnock of Holyhead, B. (1A) For this purpose an offence is “serious” if— Bernstein of Craigweil, L. Lea of Crondall, L. (a) in the case of an offence under the law of England and Bhattacharyya, L. Lipsey, L. Bilston, L. McDonagh, B. Wales, it is an indictable offence, Boyd of Duncansby, L. MacKenzie of Culkein, L. (b) in the case of an offence under the law of Scotland, it is Brett, L. Mackenzie of Framwellgate, an offence triable on indictment (whether or not it is Brooke of Alverthorpe, L. L. exclusively so triable), Brookman, L. McKenzie of Luton, L. (c) in the case of an offence under the law of Northern Campbell-Savours, L. Masham of Ilton, B. Ireland, it is an offence which, if committed by an adult, Clinton-Davis, L. Mawson, L. is punishable on conviction on indictment (whether only Cohen of Pimlico, B. Maxton, L. on conviction on indictment or either on conviction on Colville of Culross, V. Mitchell, L. indictment or on summary conviction), Corbett of Castle Vale, L. Morgan of Drefelin, B. Davies of Oldham, L. [Teller] Morris of Aberavon, L. (d) in the case of a foreign offence, the act constituting the Dean of Thornton-le-Fylde, Morris of Manchester, L. offence— B. O’Neill of Clackmannan, L. (i) at the time it was done, would have constituted an Denham, L. Prosser, B. offence within paragraph (a), (b) or (c) if it had Desai, L. Ramsay of Cartvale, B. been done in any part of the United Kingdom, and Donoughue, L. Richard, L. Dubs, L. Ripon and Leeds, Bp. (ii) would also constitute such an offence if it were Farrington of Ribbleton, B. Rooker, L. done in any part of the United Kingdom at the Faulkner of Worcester, L. Rowlands, L. time the application for an exploitation proceeds Filkin, L. Royall of Blaisdon, B. order is made in respect of it.” Ford, B. Sawyer, L. 102: Clause 148, page 95, line 33, at end insert— Gale, B. Simon, V. “(4A) Subsection (1A) does not apply in relation to a UK Gavron, L. Strabolgi, L. service offence or a foreign service offence, and for the purposes Giddens, L. Symons of Vernham Dean, B. of subsection (1) such an offence is “serious” if— Graham of Edmonton, L. Taylor of Bolton, B. Grocott, L. Temple-Morris, L. (a) in the case of a UK service offence— Haskel, L. Thornton, B. (i) the act constituting the offence is a serious offence Haworth, L. Tunnicliffe, L. [Teller] within subsection (1A)(a), Hilton of Eggardon, B. Turner of Camden, B. Hoyle, L. Warwick of Undercliffe, B. (ii) the act constituting the offence, if done in England Hughes of Woodside, L. Wilkins, B. and Wales, would be a serious offence within subsection (1A)(a), or (iii) the offence is within subsection (4B); 1.18 pm (b) in the case of a foreign service offence, the act constituting the offence— Clause 145 : Qualifying offenders (i) at the time it was done, would have constituted a serious offence within subsection (1A) or an offence Amendment 98 not moved. within subsection (4B) if it had been done in any part of the United Kingdom by a member of Her Clause 146 : Qualifying offenders: service offences Majesty’s forces, and (ii) would also constitute such an offence if it were Amendment 99 not moved. done in any part of the United Kingdom by a 1301 Coroners and Justice Bill[29 OCTOBER 2009] Coroners and Justice Bill 1302

member of Her Majesty’s forces at the time the Clause 152 : Limits on recoverable amount application for an exploitation proceeds order is made in respect of it. Amendment 109 not moved. (4B) An offence is within this subsection if it is an offence under— (a) section 24(1) of the AA 1955 or of the AFA 1955, Clause 153 : The available amount section 2(1) of the NDA 1957 or section 2(1) of the AFA 2006 (misconduct on operations), Amendment 110 not moved. (b) section 25 of the AA 1955 or of the AFA 1955, section 3 of the NDA 1957 or section 1 of the AFA 2006 (assisting an enemy), Clause 154 : Property (c) section 26(1) of the AA 1955 or of the AFA 1955, section 4(1) of the NDA 1957 or section 3 of the AFA Amendment 111 not moved. 2006 (obstructing operations), (d) section 30(a) or (b) of the AA 1955 or of the AFA 1955, section 5(a) or (b) of the NDA 1957 or section 4(1) or (2) Clause 155 : Effect of conviction being quashed etc of the AFA 2006 (looting), (e) section 31 of the AA 1955 or of the AFA 1955, section 9 Amendment 112 of the NDA 1957 or section 6 of the AFA 2006 (mutiny), or Moved by Lord Bach (f) section 32 of the AA 1955 or of the AFA 1955, section 112: Clause 155, page 100, line 12, leave out paragraphs (a) 10 of the NDA 1957 or section 7 of the AFA 2006 and (b) and insert— (failure to suppress mutiny).” “(a) the relevant offence is within paragraph (a) of section 103: Clause 148, page 95, line 40, leave out subsection (6) and 148(1) and the respondent’s conviction for it is insert— subsequently quashed, or “( ) In this section— (b) the relevant offence is within paragraph (b) or (c) of that “AA 1955” means the Army Act 1955 (3 & 4 Eliz. 2 c. 18); section and the respondent’s conviction for the offence “act” includes a failure to act (and references to the doing of (or, if more than one, all of the offences) by virtue of an act are to be read accordingly); which the relevant offence is within either of those paragraphs is (or are) subsequently quashed.” “AFA 1955” means the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19); “AFA 2006” means the Armed Forces Act 2006 (c. 52); Amendment 112 agreed. “foreign offence” has the same meaning as in section 145; “foreign service offence”, “Her Majesty’s services” and “UK Amendment 113 not moved. service offence” have the same meaning as in section 146; “NDA 1957” means the Naval Discipline Act 1957 (c. 53).” Clause 156 : Powers of court on repeat applications Amendments 101 to 103 agreed. Amendment 114 not moved. Amendment 104 not moved. Clause 157 : Additional proceeds reporting orders

Clause 149 : Deriving a benefit Amendment 115 not moved.

Amendment 105 not moved. Clause 158 : Exploitation proceeds investigations

Amendment 116 not moved. Clause 150 : Applications

Amendment 106 not moved. Clause 159 : Functions of Serious Organised Crime Agency

Clause 151 : Determination of applications Amendment 117 not moved.

Amendment 106A not moved. Amendment 117A Moved by Baroness Miller of Chilthorne Domer Amendment 107 117A: After Clause 164, insert the following new Clause— Moved by Lord Tunnicliffe “Police retention of photographs 107: Clause 151, page 97, line 22, leave out from “offence” to “(1) The Secretary of State must, as soon as possible and not “is” in line 23 and insert “or the family of the victim” later than three months after Royal Assent, amend Code D made under section 67(3) of the Police and Criminal Evidence Act 1984 (c. 60) (codes of practices—supplementary) as follows. Amendment 107 agreed. (2) After article 3.3 insert— “3.4(a) Where an officer takes a photograph or photographs Amendments 107A and 108 not moved. of an individual who has not been arrested, those photographs 1303 Coroners and Justice Bill[LORDS] Coroners and Justice Bill 1304 must be destroyed as soon as possible, but at the latest within However, people are worried. We have had a number 14 days of the day on which the photograph was taken. of people listed on the so-called “sus” cards who were 3.4(b) Where an officer takes a photograph or photographs of very worried about being on the cards, and who were an individual who has been arrested but not charged with any very worried that their children had been photographed. criminal activity, those photographs must be destroyed as soon as There can be no excuse for the retention of these possible after the decision has been taken not to charge the individual, but at the latest within 14 days of the day on which photographs past the point where police know whether that decision was taken. they are going to charge anyone or not or whether any 3.4(c) This subsection applies to, but is not limited to, evidence crimes have been committed, other than for the purpose gathered by Forward Intelligence Teams and other evidence gathering of building up a database of innocent people, which operations.”” begins to smack of a police surveillance state, of which we are all very wary. I hope that the Minister will have found it in his Baroness Miller of Chilthorne Domer: My Lords, heart to agree that this amendment has merit. I beg to Amendment 117A moves us on to the issue of police move. retention of photographs, a matter on which I tabled an amendment in Committee. We had a lively debate in Committee. I was encouraged to return to the issue Lord Henley: My Lords, the noble Baroness, Lady by the noble Lords, Lord Monson and Lord Henley, Miller, quite rightly said that I voiced some sympathy who reminded us that this is only part of the wider for her amendments when she moved them in July. I issue of the retention of DNA, and the regime that we suggested that she should come back to them. However, need so that innocent individuals do not have all sorts I note that the amendment that she has moved today is of information, including photographs, retained significantly different from the earlier version. In July inappropriately. she was asking for photographs to be destroyed after a Since Committee stage in July, the Guardian has year if they are not being used, while that has now this week carried out quite a lot of investigation into been reduced rather drastically to two weeks. It is the scale of the retention of photographs. We were possible that the noble Baroness has diluted the strength very surprised. We knew that there was a problem, but of her argument by producing quite such a tight we had not realised that the sheer scale was as great as timeframe. Nevertheless, the Minister, back in July, that uncovered by the Guardian. In Committee the made a suggestion that a better method than amending Minister gave his main reason for rejecting the amendment. PACE codes, which was one option, might be to work He said: with ACPO to ensure that all forces are aware of the implications of the judgment in Wood, which found “We are not convinced that the codes of practice are the appropriate vehicle for governing retention of all photographs that the taking of photographs at public order events taken by the police”.—[Official Report, 21/7/09; col. 1574.] is not unlawful, but that the continuing retention of I must ask him again: what is the appropriate vehicle? photographs will generally have to be justified by the The PACE codes govern the retention of all evidence existence of clear grounds for suspecting that the collected, of which photographs are one example, so individual photographed may have committed an offence there could be no more appropriate place than the at the event in question. PACE codes. We would be interested to hear more details from Secondly, there is still the problem that there seems the Minister about what steps the Government have to be no statutory accountability of the three national taken in the months since then to engage with ACPO police units that are responsible for the policing of in this way. For the moment, I think we prefer that domestic extremism, as they call it. We would call it approach, and would prefer to hear whether the the right to protest and demonstrate. The very unfortunate Government have done anything in that direction, terminology of “domestic extremism” being applied rather than endorsing the noble Baroness’s rather to innocent people who do nothing more than go on a overrestrictive amendment. protest is a move that must be strongly resisted. It is only on the basis that they attend protests that such Lord Bach: My Lords, I am grateful to the noble people are photographed. There is a very serious Baroness, Lady Miller, for raising this important issue issue here, which is why we have returned to it on again. However, it is an entirely different amendment Report. to the one that she moved in July, and I will come to I know that the Minister will say that we should that in a moment. We share her desire to see these wait for Denis O’Connor, the Chief Inspector of matters addressed, but are clear that the route to Constabulary, to release his national review of the ensuring the proper use and retention of photographs policing of protests. The Minister would be wrong. We is not more legislation, but compliance with the statutory do not need a review to know that the photographs of framework that already exists. Without going into the innocent people—people who are not being charged details of the Data Protection Act, or the management with any offence—should not be retained. For the of police information guidelines, surely the key principles Minister to quote the review of the policing tactics at are that the police, or any public authority, need to be protests is simply a red herring. Nor do we need a very clear about the purposes and reasons for which review to know that the present situation has got so they are taking, retaining and storing images of any out of control. Anton Setchell, who is in command of individual—protester or otherwise—and that they need ACPO’s domestic extremism unit, apparently said that to justify those reasons. people who find themselves on the databases, Proposed new article 3.4(a), contained in proposed “should not worry at all”. new subsection (2) of the amendment states: 1305 Coroners and Justice Bill[29 OCTOBER 2009] Coroners and Justice Bill 1306

“Where an officer takes a photograph or photographs of an weigh up the human rights implications of retaining individual who has not been arrested, those photographs must be images versus the public-protection consequences of destroyed as soon as possible, but at the latest within 14 days of disposing of them. the day on which the photograph was taken”. Is it seriously being suggested that the law should be The noble Baroness still thinks that PACE code D changed so that whatever the circumstances, a photograph is the appropriate place to change the law. She knows of someone who has not been arrested within 14 days that we disagree. She will be aware that the Police and after the photograph was taken should be destroyed? Criminal Evidence Act governs the taking, retention If so, that would be a fantastic advantage to those who and use of photographs of persons detained at a have committed criminal offences—they would be mad police station, as well as photographs taken on the not to hide themselves away for 14, or 15, days, because, street of people who have been arrested or detained by if they had not been arrested by that stage, the a police community support officer or given a fixed photographs that might well be valuable identification penalty notice. PACE code D also sets out the procedures evidence against them would have to be destroyed. It is for conducting identification parades to enable witnesses completely irresponsible to suggest that this amendment and victims to identify suspects. These powers are be implemented and become the law of the land. focused on evidence of either the identity of the Although there is every justification in broad terms for person suspected of the offence or evidence of the bringing this subject back, this part of the amendment offence in question. The amendment would extend the would lead to absolute chaos. Anyone who was guilty scope of the PACE code D provisions to all images of an offence, where the evidence of identification was taken by the police, including intelligence information. the photograph, could simply escape justice by avoiding We are not convinced that the codes of practice are the being arrested for 15 days. That would be an absurd appropriate vehicle for governing retention of all piece of law, which would mean that many criminals photographs taken by the police. Article 3.4 of PACE would escape justice for no good reason at all. code D relates to the procedures governing the conduct of identification procedures when the identity of a The police may need to retain images for longer suspect is known, not the retention of images. If this than 14 days for a variety of reasons: for evidential change to PACE code D were to take place, the effect purposes, of course; the photographs may be of assistance would be confusing. in responding to complaints that are made against I have outlined why the Government are opposed them or others; for legal challenges, or to tackle criminal to this amendment and, if introduced, it would bring activity. The retention of photographs is important in bad law. for the complaints system. If we consider the G20 protests, the Independent Police Complaints Commission Baroness Miller of Chilthorne Domer: My Lords, will have examined images taken by the Metropolitan the debate was helpful and has narrowed down the Police when investigating complaints. Surely the noble issues. I can appreciate the comments of the noble Baroness and others would support retention of those Lord, Lord Henley, that while in principle the retention images by the police, to ensure that any complaints for a long time of innocent people’s photographs is were properly dealt with, but if the person involved unacceptable, he finds 14 days too short a period. I had not been arrested within 14 days, those photographs accept the arguments that he and the Minister made would have to be destroyed forthwith. That on its own whereby there may be a difficultly with 14 days, but would be a reason for opposing this amendment. the Minister is missing the point. It is one thing when While the current legislative framework acknowledges the police are normally taking photographs of a suspect the need for retention, it does not allow police to because they have actually committed an offence, but I retain information without valid reason. was talking about all the photographs taken of people It comes down to proper guidance and training, to who have committed no offence, other than to exercise ensuring that officers understand the guidance, and their right as citizens to take part in a peaceful leadership to ensure that officers have this training. demonstration. The Minister will no doubt say that ACPO is already committed to ensuring that these some of them may have committed an offence and issues are addressed in revised guidance that also picks that the police may need to keep those photographs to up wider lessons from the reviews into the policing of identify them, but that is a hypothetical situation. the G20 protests and the Kingsnorth climate camp, Photographs are taken of vast numbers of innocent and that training for public order commanders flags people as they enter and leave openly advertised public the importance of this issue. meetings or demonstrations. These images of people, who it is accepted are innocent, are put on force-wide databases—and that is about chronicling campaigners’ political activities. It is that which is unacceptable. 1.30 pm I understand why a period of 14 days has not found The HMIC review on policing protest is due to be favour on the Conservative Front Bench, but an important published later this year and there will no doubt be issue remains. It is so serious that I shall take it away important learning for police forces to pick up from and consider it further. Although I shall not press it that thorough review. The Home Office will also be today, I do not intend to leave the matter to rest, setting out in its policing White Paper, due out later because the principle here is as important as that this year, the key principles for the policing of protest regarding the retention of innocent people’s DNA. and how they need to be embedded in policing operations. For that reason, I hope to return to the issue at some Part of that will touch on the use and retention of point. In the mean time, I beg leave to withdraw the photographs. The retention of photographs has to be amendment. assessed on a case-by-case basis. Police will have to Amendment 117A withdrawn. 1307 Coroners and Justice Bill[LORDS] Coroners and Justice Bill 1308

Schedule 19 : Amendments of the Data Protection Act The Earl of Erroll: I welcome the amendment, 1998 (c. 29) because I am involved in the data world. I note that the noble Lord said that the change should provide sufficient funds for all the things that the office is Amendment 118 meant to do. I am not sure that it will, because we are Moved by Lord Tunnicliffe putting more and more duties on to the Information Commissioner to protect us. He is a bastion of protection 118: Schedule 19, page 185, line 19, at end insert— for the citizen. I suspect that these fees may need to be “ In section 20 of that Act (duty to notify changes), in looked at again, but this is certainly a move in the subsection (2)— right direction. (a) omit “that at any time”, (b) at the beginning of paragraph (a) insert “that at any time”, Amendment 118 agreed. (c) before “and” at the end of that paragraph insert— “(aa) that the correct fee is paid under section 19(4),”, and (d) at the beginning of paragraph (b) insert “that at any Schedule 20 : Minor and consequential amendments time”.” Amendments 119 to 119L Moved by Lord Bach Lord Tunnicliffe: These amendments fill a small gap in the Bill as currently drafted. Noble Lords may be 119: Schedule 20, page 208, line 37, at end insert— aware that the Government have introduced a new “Part 3A two-tiered structure for the fee which data controllers Abolition of common law libel offences etc pay to the Information Commissioner to be registered Criminal Libel Act 1819 (60 Geo.3&1Geo.4c.8) as a data controller. This replaces the existing flat-fee 62A (1) In section 1 of the Criminal Libel Act 1819 (power of structure. The notification fee for tier 1 data controllers court to make order for seizure of copies of libel)— will remain at £35 while the fee for tier 2 data controllers (a) after “In every case” insert “in Northern Ireland”; will be £500. The higher tier will encompass all data (b) omit from “, or any seditious libel” to “means”. controllers with 250 or more members of staff and a turnover of £25.9 million or more, as well as all public (2) This paragraph does not extend to Scotland. authorities with 250 or more members of staff. We Libel Act 1843 (c. 96) estimate that that represents around 5 per cent of all 62B In section 7 of the Libel Act 1843 (evidence to rebut data controllers. prima facie case of publication by agent)— (a) after “Whensoever” insert “in Northern Ireland”; The new fee structure will ensure that the Information (b) before “libel” insert “blasphemous”. Commissioner’s Office has the necessary income to Newspaper Libel and Registration Act 1881 (c. 60) fulfil its current and future data protection responsibilities, such as those being brought forward in this Bill. 62C In section 4 of the Newspaper Libel and Registration Act 1881 (inquiry by court of summary jurisdiction as to libel being Schedule 19 as drafted contains provisions that allow for public benefit etc)— the Secretary of State to make regulations to require (a) after “jurisdiction” insert “in Northern Ireland”; data controllers to provide information to the Information Commissioner for the purpose of verifying that the (b) before “libel” (in first place it occurs) insert “blasphemous”; correct annual notification fee is paid. (c) omit from “as to the publication” to “malice, and”. However, this information has to be provided only Law of Libel Amendment Act 1888 (c. 64) upon initial registration. There is currently no mechanism 62D In section 8 of the Law of Libel Amendment Act 1888 to require data controllers to notify the Information (order of Judge required for prosecution of newspaper proprietor Commissioner’s Office of changes in circumstance etc)— that would place them in another tier. Section 20 of (a) after “commenced” insert “in Northern Ireland”; the Data Protection Act 1998 requires data controllers (b) before “libel” insert “blasphemous”.” to notify the Information Commissioner’s Office of 119A: Schedule 20, page 212, line 42, leave out sub-paragraph certain relevant changes in circumstance. Amendments (2) and insert— 118 and 132 amend Section 20 to enable regulations to “(2) In section 34 (disqualification for certain offences), after be made requiring data controllers to notify the ICO subsection (4A) insert— of any changes to their registrable particulars for the “(4AA) For the purposes of subsection (4)(b), a disqualification purpose of ensuring that the correct annual notification is to be disregarded if the period of disqualification would have fee is paid. been less than 56 days but for an extension period added pursuant We have drafted the amendment whereby organisations to— will not need to provide the Information Commissioner’s (a) section 35A or 35B, Office with this information year after year whenever (b) section 248D of the Criminal Procedure (Scotland) Act they pay their notification fee. Instead, they will need 1995, or to provide this information only upon a change of (c) section 147A of the Powers of Criminal Courts circumstance. This will help to ensure that the bureaucratic (Sentencing) Act 2000.”” burden on data controllers is minimised. I hope that 119B: Schedule 20, page 214, line 14, leave out sub-paragraph noble Lords will agree to these amendments. I beg (6) and insert— to move. “(6) In section 35 (disqualification for repeated offences)— 1309 Coroners and Justice Bill[29 OCTOBER 2009] Coroners and Justice Bill 1310

(a) in subsection (2), in the words following paragraph (b), (a) in subsection (2) (as substituted by paragraph 44(2) of after “offender is” insert “, subject to subsection (2A),”, Schedule 3 to the Road Safety Act 2006 (c. 49)), after “or and more” insert “(disregarding any extension period)”, and (b) after subsection (2) insert— (b) after subsection (2), insert— “(2A) A previous disqualification imposed on an offender “(2ZA) In subsection (2) “extension period” means an for a fixed period is not to be taken into account for the extension period added pursuant to— purposes of subsection (2) if that period would have (a) section 35A or 35B, been less than 56 days but for an extension period added pursuant to— (b) section 248D of the Criminal Procedure (Scotland) (a) section 35A or 35B, Act 1995, or (b) section 248D of the Criminal Procedure (Scotland) (c) section 147A of the Powers of Criminal Courts Act 1995, or (Sentencing) Act 2000.”” (c) section 147A of the Powers of Criminal Courts 119F: Schedule 20, page 215, line 6, after “40A” insert “or (Sentencing) Act 2000.”” Article 91A of the Criminal Justice (Northern Ireland) Order 2008” 119C: Schedule 20, page 214, line 16, leave out sub-paragraph (7) and insert— 119G: Schedule 20, page 216, line 27, after “40A” insert “or Article 91A of the Criminal Justice (Northern Ireland) Order “(7) In section 37 (effect of order of disqualification)— 2008” (a) in subsection (1A)(a), after “56 days” insert 119H: Schedule 20, page 216, line 28, leave out sub-paragraph “(disregarding any extension period)”, (7) and insert— (b) in subsection (1A), after “period of disqualification” “(7) In Article 42 (effect of order of disqualification)— insert “(including any extension period)”, and (a) in paragraph (2)(a), after “56 days” insert “(disregarding (c) after subsection (1A) insert— any extension period)”, “(1B) In subsection (1A) “extension period” means an (b) in paragraph (2), after “period of disqualification” insert extension period added pursuant to— “(including any extension period)”, and (a) section 35A or 35B, (c) after paragraph (2) insert— (b) section 248D of the Criminal Procedure (Scotland) “(2A) In paragraph (2) “extension period” means an Act 1995, or extension period added pursuant to— (c) section 147A of the Powers of Criminal Courts (a) Article 40A, (Sentencing) Act 2000.”” (b) Article 8A of the Criminal Justice (Northern 119D: Schedule 20, page 214, line 21, leave out sub-paragraph Ireland) Order 1980 (S.I. 1980/704 (N.I. 6)), or (8) and insert— “(8) In section 42 (removal of disqualification)— (c) Article 91A of the Criminal Justice (Northern Ireland) Order 2008 (S.I. 2008/1216 (N.I. 1)).”” (a) in subsection (3)— 119J: Schedule 20, page 216, line 33, leave out sub-paragraph (i) for “the date of the order by which the (8) and insert— disqualification was imposed” substitute “the “(8) In Article 47 (removal of disqualification)— relevant date”, (a) in paragraph (3)— (ii) in paragraph (a), after “four years” insert “(disregarding any extension period)”, and (i) for “the date of the order by which the disqualification was imposed” substitute “the (iii) in paragraph (b), for “period of disqualification, if relevant date”, it is” substitute “period of disqualification (disregarding any extension period), if the (ii) in sub-paragraph (a), after “4 years” insert disqualification is (disregarding any extension “(disregarding any extension period)”, and period)”, (iii) in sub-paragraph (b), for “period of (b) after subsection (3) insert— disqualification, if it is” substitute “period of disqualification (disregarding any extension “(3A) In subsection (3) “the relevant date” means— period), if the disqualification is (disregarding any (a) the date of the order imposing the disqualification extension period)”, in question, or (b) after paragraph (3) insert— (b) if the period of the disqualification is extended by “(3A) In paragraph (3) “the relevant date” means— an extension period, the date in paragraph (a) postponed by a period equal to that extension (a) the date of the order imposing the disqualification period.”, and in question, or (c) after subsection (3A) (as inserted by paragraph (b)), (b) if the period of the disqualification is extended by insert— an extension period, the date in sub-paragraph (a) postponed by a period equal to that extension “(3B) “Extension period” means an extension period added period.”, and pursuant to— (a) section 35A or 35B, (c) after paragraph (3A) (as inserted by paragraph (b)), insert— (b) section 248D of the Criminal Procedure (Scotland) Act 1995, or “(3B) “Extension period” means an extension period added pursuant to— (c) section 147A of the Powers of Criminal Courts (Sentencing) Act 2000.”” (a) Article 40A, 119E: Schedule 20, page 214, line 39, leave out sub-paragraph (b) Article 8A of the Criminal Justice (Northern (9) and insert— Ireland) Order 1980 (S.I. 1980/704 (N.I. 6)), or “(9) In section 47 (supplementary provisions as to disqualification (c) Article 91A of the Criminal Justice (Northern and endorsements)— Ireland) Order 2008 (S.I. 2008/1216 (N.I. 1)).”” 1311 Coroners and Justice Bill[LORDS] Coroners and Justice Bill 1312

119K: Schedule 20, page 217, line 2, at end insert— “3A Section (Amendment to the Regulation of Investigatory “(9) In Article 52 (supplementary provisions as to disqualification Powers Act 2000) has effect in relation to investigations that have and endorsements)— begun, but have not been concluded, before the day on which that section comes into force (as well as to inquests beginning on (a) in paragraph (2), after “or more” insert “(disregarding or after that day).” any extension period)”, and (b) after paragraph (2), insert— Amendment 122 agreed. “(2ZA) In paragraph (2) “extension period” means an extension period added pursuant to— (a) Article 40A, Amendments 123 to 125B (b) Article 8A of the Criminal Justice (Northern Moved by Lord Bach Ireland) Order 1980 (S.I. 1980/704 (N.I. 6)), or (c) Article 91A of the Criminal Justice (Northern 123: Schedule 21, page 223, line 8, leave out from second “to” to end of line 12 and insert— Ireland) Order 2008 (S.I. 2008/1216 (N.I. 1)).”” “(a) an offence under Part 2 of the Army Act 1955 (3 & 4 119L: Schedule 20, page 217, line 9, at end insert— Eliz. 2 c. 18), Part 2 of the Air Force Act 1955 (3 & 4 “( ) Article 8A of the Criminal Justice (Northern Ireland) Eliz. 2 c. 19) or Part 1 of the Naval Discipline Act 1957 Order 1980;” (c. 53), (b) an offence under paragraph 4(6) of Schedule 5A to the Amendments 119 to 119L agreed. Army Act 1955 (3 & 4 Eliz. 2 c. 18) or the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or of Schedule 4A to the Naval Amendment 120 not moved. Discipline Act 1957 (c. 53), (c) an offence under section 47K of the Naval Discipline Amendment 121 Act 1957 (c. 53), (d) an offence under section 18 or 20 of the Armed Forces Moved by Lord Tunnicliffe Act 1991 (c. 62) committed before the commencement of 121: Schedule 20, page 218, line 18, at end insert— section 50 of the Armed Forces Act 2006 (c. 52) (“the “( ) In Schedule 1, in paragraph 30 (date of taking effect of 2006 Act”), youth rehabilitation orders etc)— (e) an offence under any of sections 95 to 97 of the Reserve (a) in sub-paragraph (1)— Forces Act 1996 (c. 14) committed before the commencement of section 50 of the 2006 Act, and (i) for “sub-paragraph (2)” substitute “sub-paragraphs (1A) and (2)”, and (f) an offence under paragraph 5(1) of Schedule 1 to the Reserve Forces Act 1996 (c. 14) committed before (ii) omit “the day after”, the commencement of section 50 of the 2006 Act which (b) after that sub-paragraph insert— the Court Martial established by the 2006 Act has “(1A) A court making a youth rehabilitation order may jurisdiction to try. order that it is to take effect instead on a later date.”, and (2) Notwithstanding subsection (4)(b) of section 74, the (c) in sub-paragraph (2), for “If” substitute “In particular, references in that section to a charge are to be treated as if”.” including a reference to a charge that is not brought under Part 5 of the Armed Forces Act 2006 (c. 52) but is to be regarded for the Lord Tunnicliffe: My Lords, these are minor purposes of Part 5 as allocated for Court Martial trial, summary amendments to the Criminal Justice and Immigration hearing or (as the case may be) Service Civilian Court trial.” Act 2008 that change the date that a youth rehabilitation 124: Schedule 21, page 224, line 26, at end insert— order comes into effect to the day that it is made. The “17A (1) Section 82 has effect with the modifications made by current legislation delays the date that the order comes this paragraph for the purposes of discharging or varying a into effect until the day after it is made. A delay in the witness anonymity order made under the Criminal Evidence start of the sentence would result in a gap of at least (Witness Anonymity) Act 2008 (c. 15) by— 24 hours between sentence and supervision or monitoring (a) a Summary Appeal Court established by the Army Act of an offender. During this period, any further offending 1955 (3 & 4 Eliz. 2 c. 18), the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or the Naval Discipline Act 1957 (c. 53), or would not technically constitute a breach. This would mean that a high-risk young offender might be at large (b) a Standing Civilian Court established under the Armed Forces Act 1976 (c. 52). overnight or over a weekend, and free to commit further offences with no immediate redress. (2) The references in section 82(2) to (5) to the court that made the order are to be treated— The amendments in this group address the defect (a) where the order was made by a Summary Appeal Court, by providing for a youth rehabilitation order to come as references to the Summary Appeal Court established into force on the day that it is made, or on such later by the Armed Forces Act 2006 (c. 52), and date as the court may specify. I am sure that your (b) where the order was made by a Standing Civilian Court, Lordships will agree that the amendment is entirely as references to the Service Civilian Court established by sensible. I beg to move. the Armed Forces Act 2006 (c. 52).” 125: Schedule 21, page 225, line 10, leave out from second Amendment 121 agreed. “to” to end of line 14 and insert— “(a) an offence under Part 2 of the Army Act 1955 (3 & 4 Schedule 21 : Transitional, transitory and saving Eliz. 2 c. 18), Part 2 of the Air Force Act 1955 (3 & 4 provisions Eliz. 2 c. 19) or Part 1 of the Naval Discipline Act 1957 (c. 53), Amendment 122 (b) an offence under paragraph 4(6) of Schedule 5A to the Army Act 1955 (3 & 4 Eliz. 2 c. 18) or the Air Force Act Moved by Baroness Miller of Chilthorne Domer 1955 (3 & 4 Eliz. 2 c. 19) or of Schedule 4A to the Naval 122: Schedule 21, page 220, line 18, at end insert— Discipline Act 1957 (c. 53), 1313 Coroners and Justice Bill[29 OCTOBER 2009] Coroners and Justice Bill 1314

(c) an offence under section 47K of the Naval Discipline Lord Bach: My Lords, we were disappointed that Act 1957 (c. 53), the Committee voted to retain the freedom of expression (d) an offence under section 18 or 20 of the Armed Forces section in relation to the offence of inciting hatred on Act 1991 (c. 62) committed before the commencement of grounds of sexual orientation. However, it is important, section 50 of the Armed Forces Act 2006 (c. 52) (“the when the Bill returns to the other place for consideration 2006 Act”), of the amendments made by this House, that it is (e) an offence under any of sections 95 to 97 of the Reserve properly drafted in all respects. We therefore support Forces Act 1996 (c. 14) committed before the commencement of section 50 of the 2006 Act, and the amendments in this group, which are consequential on the removal of the former Clause 61. I make it clear (f) an offence under paragraph 5(1) of Schedule 1 to the Reserve Forces Act 1996 (c. 14) committed before the that this does not change our position on the need for commencement of section 50 of the 2006 Act which the the freedom of expression section, and I would not be Court Martial established by the 2006 Act has surprised if the House comes to debate this substantive jurisdiction to try.” issue again before long. 125A: Schedule 21, page 226, line 39, after “to” insert “, or has effect by reference to,” Lord Henley: My Lords, I am grateful to the noble 125B: Schedule 21, page 228, line 5, leave out “added Lord for what I might call his “without prejudice” pursuant to section 35A or 35B” acceptance of the amendments.

Amendments 123 to 125B agreed. Amendment 128 agreed.

Schedule 22 : Repeals Amendment 129 Moved by Lord Bach Amendment 126 129: Schedule 22, page 232, line 30, at end insert— Moved by Lord Bach “Broadcasting Act 1990 In section 166, from “(including” 126: Schedule 22, page 232, line 20, at end insert— (c. 42) to “matter)”. Criminal Procedure and Section 61(4) and (5). “Libel Act 1792 (c. 60) The whole Act. Investigations Act 1996 Criminal Libel Act 1819 (60 In section 1, from “, or any (c. 25) Geo.3&1Geo.4c.8) seditious libel” to “means”. Defamation Act 1996 (c. 31) Section 20(2). Libel Act 1843 (c. 96) Sections 4 to 6. Legal Deposit Libraries Act In section 10— Newspaper Libel and In section 4, from “as to the 2003 (c. 28) Registration Act 1881 (c. 60) publication” to “malice, and”. (a) in subsection (1), “, or subject Law of Libel Amendment Act Sections 3 and 4. to any criminal liability,”, 1888 (c. 64) (b) in subsection (2)(a), “in the Defamation Act 1952 (c. 66) Section 17(2).” case of liability in damages”, (c) in subsection (3), “, or subject Amendment 126 agreed. to any criminal liability,”, (d) in subsection (4)(a), “in the Amendment 126A not moved. case of liability in damages”, (e) in subsection 6(a), “, or subject to any criminal liability,”, and Amendment 127 (f) in subsection (8), “and criminal Moved by Lord Bach liability”.” 127: Schedule 22, page 232, line 29, at end insert— Amendment 129 agreed. “Theatres Act In section 4(1), from “(including” to 1968 (c. 54) “matter)”. Amendment 130 In section 7(2), from “or an offence” to “course of a performance of a play”. Moved by Lord Henley In section 8, from “or an offence” to “play”.” 130: Schedule 22, page 232, leave out lines 33 and 34

Amendment 127 agreed. Amendment 130 agreed.

Amendment 128 Amendments 131 to 133 Moved by Lord Henley Moved by Lord Bach 128: Schedule 22, page 232, leave out line 30 131: Schedule 22, page 232, line 34, at end insert— Lord Henley: My Lords, I speak on behalf, and at “Notes the request, of my noble friend Lord Waddington. 1 The repeal of the Libel Act 1792 (c. 60), the repeal in section 1 of the Criminal Libel Act 1819 (60 Geo.3&1Geo.4 I shall speak also to Amendments 130, 136 and 139. c. 8), the repeal of section 17(2) of the Defamation Act 1952 The amendments are consequential to the amendment (c. 66), the repeal of section 20(2) of the Defamation Act 1996 that my noble friend successfully persuaded the Committee (c. 31) and the repeals in section 10 of the Legal Deposit to accept on 9 July of this year. I beg to move. Libraries Act 2003 (c. 28) do not extend to Scotland. 1315 Coroners and Justice Bill[LORDS] Education Regulations 2009 1316

2 The repeal of section 4 of the Law of Libel Amendment Act 142: Clause 171, page 116, line 20, at end insert— 1888 (c. 64) and the repeal of section 20(2) of the Defamation “( ) in Part 2 of Schedule 22, the repeals relating to the Act 1996 (c. 31) do not extend to Northern Ireland.” following Acts— 132: Schedule 22, page 236, line 10, at end insert— (i) Libel Act 1792 (c. 60); (ii) Criminal Libel Act 1819 (60 Geo. 3 & 1 Geo. 4 c. 8); “In section 20(2) “that at any time”.” (iii) Libel Act 1843 (c. 96); 133: Schedule 22, page 236, line 18, at end insert— (iv) Newspaper Libel and Registration Act 1881 (c. 60); (v) Law of Libel Amendment Act 1888 (c. 64); “Criminal Justice and In Schedule 1, in paragraph Immigration Act 2008 (c. 4) 30(1), “the day after”.” (vi) Defamation Act 1952 (c. 66); (vii) Theatres Act 1968 (c. 54); Amendments 131 to 133 agreed. (viii) Broadcasting Act 1990 (c. 42); (ix) Criminal Procedure and Investigations Act 1996 (c. 25); Clause 170 : Extent (x) Defamation Act 1996 (c. 31); (xi) Legal Deposit Libraries Act 2003 (c. 28); Amendment 133A not moved. and section 167 so far as relating to those repeals.” 143: Clause 171, page 116, line 32, after “18,” insert Amendments 134 to 135A “(National Medical Examiner),” Moved by Lord Bach Amendments 140 to 143 agreed. 134: Clause 170, page 114, line 36, at end insert— “( ) paragraph 3A of Schedule 1;” Amendment 144 not moved. 135: Clause 170, page 115, line 3, at end insert— “( ) section (abolition of common law libel offences etc);” Education (Special Educational Needs 135A: Clause 170, page 115, line 25, at end insert— Co-ordinators) (England) (Amendment) “( ) In section 79(3) of the International Criminal Court Act Regulations 2009 2001 (c. 17) (power to extend provisions of that Act to Channel Islands, Isle of Man etc) the reference to that Act includes a Motion to Resolve reference to that Act as amended by section (Genocide, crimes against humanity and war crimes).” 1.45 pm Amendments 134 to 135A agreed. Moved By Baroness Verma That this House calls upon Her Majesty’s Clause 171 : Commencement Government to withdraw the Education (Special Educational Needs Co-ordinators) (England) (Amendment) Regulations 2009 (SI 2009/1387) and Amendment 136 to replace them with regulations that leave more responsibility with schools and headteachers. Moved by Lord Henley Relevant document: 22nd Report from the Merits 136: Clause 171, page 115, line 34, leave out paragraph (b) Committee. Amendment 136 agreed. Baroness Verma: My Lords, I emphasise from the start that we on these Benches are not opposed to Amendments 137 and 138 not moved. training, especially in the field of special educational needs. However, we feel that this SI has consequences Amendment 139 that the Government did not intend. The SI applies only to SENCOs who have been in post for less than a Moved by Lord Henley year, but there is an indication that the committee felt 139: Clause 171, page 116, line 1, leave out sub-paragraphs (i) that all SENCOs should eventually gain this qualification. and (ii) I ask the Minister how and when this training will take place. Will time away from their school duties be Amendment 139 agreed. designated for special educational needs teachers? If so, who will replace them while they are training? If not, when are they expected to complete this qualification? Amendments 140 to 143 The average SENCO may have other childcare Moved by Lord Bach commitments—lesson development work will be just one of their duties. My understanding of the SI is that 140: Clause 171, page 116, line 17, at end insert— it is widely accepted that SEN provision is patchy—but “( ) section (abolition of common law libel offences etc);” is this qualification the way forward? We must bear in 141: Clause 171, page 116, line 18, at end insert— mind the cost, not just in monetary terms but also in “( ) Part 3A of Schedule 20 (and section 166 so far as time. The figures given by the Government in the relating to that Part);” impact assessment do not reflect an honest picture of 1317 Education Regulations 2009[29 OCTOBER 2009] Education Regulations 2009 1318 the cost and implications, nor indicate who will pick The Earl of Erroll: My Lords, I want to say a few up the bill. Is it expected that those undertaking the words on this subject because my wife is a governor at qualification will pay for, or contribute to, their training? a school in Bedfordshire for children with learning Does the Minister appreciate that these proposals may difficulties. We have had some dyslexic children so we lead to a two-tier system, in which some SENCOs may have met a lot of this at the sharp end. I want to echo be disadvantaged if they do not have this qualification, support for the noble Baroness, Lady Verma, and to despite their years of valuable experience? say that we must be careful not to make the best the We on these Benches understand that this is a enemy of the better. We have a lot of dedicated specialist field for teachers and that all support that people, some of whom may not be as good as others, can improve the quality of provision must be given. but very often the personality matters more than the However, the Government’s proposals yet again undermine qualifications. Just having qualifications does not the ability of head teachers to ensure that appropriate mean that someone is brilliant. Removing flexibility, assessments take place and, where they identify a which we need, and consistency, which is often the failing, to decide what appropriate training should most important thing, and taking people away to get take place. a qualification which may not be necessary, could be damaging for children. I do not see why we cannot Our main concern is that this will become a trust our head teachers and other people in education retrospective necessary qualification for teachers who to try to do their best for the children within the have been in the profession for a long time. If SENCOs limited resources that we have. They may be financial then decide that they would rather retire than continue, limitations or the number of people available may be this would create a vacuum in the profession. There is limited. Further to restrict it and limit their options already a shortage of people coming into this specialised would be foolish. I am concerned that we are trying to area of teaching. Will the Minister tell us who has overbureaucratise something that is working, even if drawn up this qualification, and who was consulted? it is not perfect. Has there been a debate about the contents of the qualification, and will the qualification have a review period? If so, when will the review take place, who will Lord Addington: My Lords, first, I must apologise conduct it and will the results be made publicly available? to the noble Baroness, Lady Verma, for missing the Will the Minister also say on what grounds an first couple of minutes of her speech. Pagers that are impact assessment can be made when the Government constantly buzzing and repeating messages occasionally do not know how many SENCOs there are? The do not get picked up on time. SI estimates that 8,130 SENCOs will have to be replaced The idea of SENCOs being properly trained is not over a period of three years. Will the Minister explain one that I have an instinctive reaction against. The how this figure has been reached? idea that we might be getting rid of qualified teachers We all want the best possible provision of education who are doing the job properly will raise a few alarm for all our children, in particular for the most vulnerable bells. The question is how to bring the two together. in our society. They need continuity, as well as expertise SENCOs were seen as a great wonder worker when that is not always summed up in a qualification. We they were brought in, but it became quite apparent have, in our teaching profession, some of the most that many did not know what they were doing. Some dedicated and committed SENCOs, who would no have acquired experience and some will have an amazing doubt undergo training to improve their skills; but range of qualifications and experience from various they must not be put at a disadvantage because they places which probably will not conform to any new do not have a qualification that the Government have regulation, but may mean that they are qualified enough indicated must be a requirement for all SENCOs. to do the job. The Minister undoubtedly knows the answers so will she tell us how the Government will Although the ideals and sentiments behind this make an assessment of whether somebody is properly policy are good, and improving our educational system, qualified by experience and perhaps some older especially for those who need the extra help, is a top qualifications, and how that can be brought into the concern, I am worried that it is an ill thought-out, current training scheme? Let us not waste money by broad-brush scheme which will ignore the micro-expertise taking people away or giving them an extra load if of our head teachers and teachers. It will incur escalating they know what they are doing. Effectively, is there a costs with little real benefit, much like the Government’s certain test of competence that could be built into the one-to-one tuition plan which is hurting SEN strategies current qualifications that would mean that the person in many schools by stretching resources and taking does not need further training at the moment? As we some of these pupils away from specialist SEN teachers. discover more about special educational needs, we We would like the Government to show more trust in tend in every piece of legislation to put a slightly our education professionals and allow them to use greater load on the education system to deal with their expertise and common sense. They should decide these problems. There is a greater expectation in the what their staff need and provide them with the support initial impact that something should be done. At the mechanisms to carry out regular assessments. moment, we are a long way from catching everybody In 2007-08, the Government’s bi-weekly e-mail to or getting the right amount of involvement early enough head teachers, if printed, would have contained as in the system. We are better than we were, but in my many words as the King James Bible and would have 25 years of experience we have improved this situation been 40 centimetres thick. Do we really want to add an steadily by a very irregular series of steps. It is undoubtedly extra burden on this noble profession? I will listen better now than it has ever been but it is still not good carefully to the Minister’s response. enough. 1319 Education Regulations 2009[LORDS] Education Regulations 2009 1320

[LORD ADDINGTON] play in schools. We want to support heads and governors Will the Minister say whether some consideration to help strengthen their provision for children with has been given to those who have acquired a series of special educational needs. These regulations directly core qualifications that are sufficient for the job as it address the concerns raised by the 2006 Select Committee currently exists and that the retraining process can and they are an important part of the commitment take place when they are there? Because we happen to made in the Children’s Plan in 1997 to improve SEN know how to deal with a dyslexic does not mean that provision. we know how to deal with somebody with autism. To The noble Lord, Lord Addington, was concerned take those two: one is a subject I know best and the about the credit given to existing teaching professionals other I had to speak on at the beginning of this week. who fulfil SEN roles. The awarding institutions which Another department answered that debate, so I understand will be running the training will take into account why the noble Baroness will not have caught the prior learning, and qualifications will properly be passing shot from that debate. taken into account. Those who put themselves forward There is an ongoing process. If there is a way of will have their qualifications properly recognised. addressing the fact that competent teachers should be assessed as competent and should not have to go Lord Addington: My Lords, I want to be clear about through the training scheme or at least all of it, that that. Is it right that those who took qualifications would be a good thing. We must not forget that many some time ago and who have kept up to date through people were appointed as SENCOs but have not had correspondence and so forth will be encouraged to the right training. However, we must not throw the take an assessment of the level of their skills base? baby out with the bathwater. How we square the circle of being where we are now will be interesting to hear 2pm and I look forward to what the Minister has to say. Baroness Morgan of Drefelin: My Lords, I can agree with the noble Lord. I will be happy to write to The Parliamentary Under-Secretary of State, him in detail on exactly how that will work. However, I Department for Children, Schools and Families (Baroness want to be clear that the provision is about training for Morgan of Drefelin): My Lords, I start by thanking new teachers coming into post. The funding is targeted noble Lords who have taken part in this brief debate at the newly appointed SENCOs. Depending on the on an important Motion. I hope that I can answer the awarding institution, any masters qualification in any questions that have arisen in this brief discussion and I sphere of teaching can take into account prior learning. shall review Hansard to ensure that I have picked up I will write to noble Lords to ensure that that is clear all the questions. and I will place a copy of the letter in the Library. I shall start with a question asked by the noble The noble Baroness, Lady Verma, was concerned Baroness, Lady Verma, and alluded to by the noble about cover for teachers during the training. Cover is Lord, Lord Addington, about the burden on the essential and we have included it in the cost of the profession. We need to be clear that continuous training. It is anticipated that about 12 days’ training professional development is very much the tenure of will be needed outside the classroom, and cover will be teacher training nowadays. We expect that when teachers built into the funding provided for that. There were finish their training qualifications, they will continue concerns about the approach promoting a two-tier with their professional development. If a teacher becomes system. Newly appointed SENCOs will be the priority, a SENCO, continued training and professional but as greater clarity on the numbers emerges, we will development in the area of special educational needs look with the Training and Development Agency at will be extremely important for them. A licence to the scope within assigned resources for supporting teach will require a portfolio of skills development in SENCOs who have been in post for longer. An enormous the future and parents will expect teachers and SENCOs amount of work has been undertaken by the TDA, to have relevant skills and experience. and as the numbers become clearer we can consider The noble Earl, Lord Erroll, asked how far the revising the scheme. Government are prepared to trust heads to know best. The noble Baroness, Lady Verma, and the noble Our entire education system is dependent on the skill, Lord, Lord Addington, were interested to know how leadership and contribution that head teachers make. we will be reviewing the regulations. We will do so We are incredibly indebted to them for the progress through the TDA, which will examine the scheme that they have made on behalf of our children. We after a three-year period. The noble Baroness, Lady must also listen to what head teachers and specialist Verma, asked about who had developed the scheme. It teachers have said. It is important that there is more was developed by the TDA and there was significant continuity, as the noble Earl said, across schools. That consultation with specialists involved—head teachers is why these measures have been brought in and why and SENCOs alike. We will also look at the TDA to we want to see training and the status of SENCOs monitor the take-up of places. Already 700 have been raised. This is part of achieving that. It is important taken up, with 2,000 more to be taken in January. That that we make the training for SENCOs mandatory. We is a significant number. Our aim is to improve the know that some, as noble Lords have suggested, have skills, knowledge and confidence of a group of people received very good training, but we also know that who are key to the outcomes for children with SEN that provision is extremely uneven as others have and disabilities. From 2010, the school workforce survey received little or no preparation for the role that they will help us to keep track of SENCO qualifications. are asked to take on. We need to tackle that and That will give us a running commentary on how things recognise the importance of the role that SENCOs are going. 1321 Education Regulations 2009[29 OCTOBER 2009] Education Regulations 2009 1322

I welcome the recognition expressed by the noble period of latitude to obtain the award so as to make Lord, Lord Addington, that there have been improvements allowance for the individual circumstances of post-holders over the years, and I echo his clear statement that not and schools—for example, those with caring enough has been done. None of us in government, or responsibilities. We believe that that will provide latitude in this House, would for one moment think that enough there, a point which concerned the noble Baroness, had been done, but we are very much committed to Lady Verma. making further improvements. Twenty per cent of We will also examine ways to ensure that SENCOs pupils in maintained schools have SEN or disabilities—a who have been in post for some time benefit from the significant number of children and young people. A new training resources developed under the other work school’s special educational needs co-ordinator has a that the TDA is doing on our inclusion development vital role to play in meeting those needs. The SENCO programme, to which I have already referred. We also forms an important point of contact within the know that it takes time for SENCOs to grow into their school for children with SEN and their parents. I can role. The new training is intended to enable those with say that from personal experience when working with less experience to get up to speed as quickly as possible. my daughter’s SENCO. That is why we are not requiring those who have Serious concerns about the perceived low status of extensive experience or are working as a SENCO SENCOs within schools were expressed in the July already to undertake the training. Instead, we leave it 2006 report of the Education and Skills Select Committee. up to head teachers’ discretion whether SENCOs who As a result of that committee’s recommendations, have been in post for more than 12 months should be there is now a requirement in law for maintained encouraged to take the course. SENCOs do an important schools to designate an SEN. Hitherto, there had job, as we all agree. They deserve our support, as do simply been an assumption that that would happen—here the children that they work with. we return to the noble Earl’s concern about a lack of The Government agree with the recommendations consistency. Regulations laid last November established of the Select Committee, and we have taken action to a requirement for SENCOs to be qualified teachers. It address its concerns. The regulations, the professional does not mean that all staff working with SENCOs training courses approved by the TDA and the funding must be teachers, but the SENCO must be a qualified that we have earmarked for the next two years will teacher. That is essential if they are to have the necessary ensure that all SENCOs new to the role will receive the authority to negotiate with qualified colleagues on training and support that they need to perform a differentiated provision geared towards children’s demanding and valuable job. I therefore hope that individual needs. This is about raising the status of noble Lords will support the initiative. SENCOs. That in no way hinders non-teacher members of Baroness Verma: My Lords, I thank all noble Lords the SENCO team from continuing to play an important for contributing to this short but very important debate. role in supporting the SENCO function. A further We are all agreed that SEN teachers play an incredibly recommendation of the Select Committee was that important role, as well as often being main classroom SENCOs should receive appropriate training. Noble teachers. I still feel very concerned because, reading Lords here today have recognised that that is important the SI and the committee’s report, my opinion is that and the right way to go. We know that some SENCOs when this is rolled out, those teachers will be expected have received very good training and I take this to have that qualification, even though they have been opportunity to commend the efforts of schools, local SENCOs for a very long time. I have listened carefully authorities and the individuals in this regard. However, to the Minister, and I shall read Hansard carefully. there was no obligation to undertake such training, I hope that she is assuring us properly that only new and it was therefore possible to take on the role of people coming in will need that qualification—ruling SENCO with little or no professional preparation. out completely those who have been SENCOs for a I do not think that that is the right way to go. long time—and evaluating them only on what may be Some SENCOs have received little preparation for their weak areas. Otherwise, I fear that we will lose a their important role and some say that they have whole group of teachers. received no training at all. If we want to ensure effective educational provision—we are all agreed that Baroness Morgan of Drefelin: I fear that I have not we do—for children with additional needs and abilities, been as clear as perhaps I could have. It is the new we must provide SENCOs with the training and SENCOs who are required to have this training. For professional skills they need. We believe that the best those who have been in post for some time, it will be at way to improve the skills of the workforce and boost the discretion of the head teacher. If a SENCO has parental confidence is by requiring those new to the been in post for some time, it is possible that they will role to obtain the nationally approved qualification want to do the course, and of course that will be within three years. We consulted on the regulations available to them, but it is important that I am clear earlier this year. The majority of the respondents, who that the discretion of the head teacher will come into included SENCOs, head teachers, local authorities, play. governors, teacher unions and SEN organisations, supported the proposals now before us. The course should normally take one year to complete on a Baroness Verma: I thank the noble Baroness for part-time basis, assuming that no credit is given for that clarification. I just want to make sure that we are prior qualifications or experience, but the time could all singing from the same hymn sheet: that we want to be shorter. Our draft regulations proposed a three-year support SEN as best as we can, without taking teachers 1323 Education Regulations 2009[LORDS] Health: Medicines 1324

[BARONESS VERMA] As the Minister will know, NICE assesses the use of away from the classroom. The noble Baroness said medicines only in their licensed indication. Because of that it would take 12 days outside the classroom. That that, there can be no NICE guidance for a drug’s does not really take into account the work that would off-label use, and hence no mandatory funding direction be needed to be done outside the classroom and at national level. That inevitably means that decisions outside their other duties. Has she estimated what about the funding of treatments outside their licensed timeframe will be needed? I know that she is saying indication are left to local discretion. That fact is one that it is over a three-year period, but I am still slightly which works to many patients’ disadvantage. Although worried that it will be an extra burden for SENCOs to in a given PCT, the requests that come forward may be deliver that in the way that the Government expect. As quite few, the treatments may often have a relatively I said, I shall read carefully what the Minister has said. high unit cost, which can throw budgets into some disarray. There may be little or no published information Motion withdrawn. on the effectiveness of the treatments requested, which means that commissioners often have little to go on, Health: Medicines and the decision collapses into a calculation of raw cost rather than a more considered assessment of Question for Short Debate clinical and cost effectiveness. 2.13 pm The commissioners at PCT level are typically not specialists, and many find it hard enough to make Tabled By Earl Howe informed decisions about relatively common conditions, To ask Her Majesty’s Government what steps let alone rarer ones. There is something of a vicious they are taking regarding the consistency of decision- circle here, because funding for treatments is not made making processes between primary care trusts in available, as there is little published evidence in support determining the off-label use of medicines in near-label of them, and that itself perpetuates the paucity of conditions. information. The result is an extraordinary amount of duplication Earl Howe: My Lords, I am raising an issue which in each of the 152 PCTs, which must each develop to the casual reader of the Order Paper may look their own processes and maintain their own advisory rather abstruse but which is in fact the very opposite; committees to determine whether to fund a particular and it is an issue which has far-reaching implications treatment. The people who suffer most, of course, are both for patients and for the NHS. Medicines are used patients. For those who need off-label medicines, the off label when they are not licensed for the particular postcode lottery is a stark reality, and health inequalities indication to which they are applied. There are two are accentuated, not least because the most articulate main reasons why a license may be absent. It is either and well informed patients will typically negotiate because the illness is so rare that the manufacturer is their way through the system to secure a positive unable to recruit enough participants to take part in outcome. clinical trials; or else it is because the manufacturer has come to the view that the potential market is so The Minister may have read the report published small as to make the costs of conducting trials recently by the Rarer Cancers Forum, called Off Limits, uneconomic. which looked into the way in which acute trusts and Many cancers, particularly some of the rarer cancers, PCTs determine requests for off-label use of medicines. are treated with a medicine used off label. There are There were some alarming findings in that report. also a number of less common auto-immune conditions Nearly a third of hospital trusts which responded to for which the treatment is unlicensed. Rituximab is the audit said that they had no protocol in place for licensed to treat rheumatoid arthritis, but doctors also off-label treatments. That is a serious matter, bearing use it to treat vasculitis, which is a disease affecting the in mind that for cancer in particular, chemotherapy is blood vessels. Infliximab is licensed to treat Crohn’s a process which administers toxic substances into the disease, ulcerative colitis and ankylosing spondylitis, bloodstream. Because there is a relative lack of evidence among other conditions, but it is also prescribed off about the safety and efficacy of an off-label treatment, label for the treatment of Behcet’s disease, which is a commensurately greater care needs to be taken over it. most unpleasant complaint that can involve ulceration There are wide variations in attitude about this issue and extreme exhaustion. Micophenolic acid is licensed from trust to trust. Some trusts appear actively to to prevent organ rejection after a transplant, but it is discourage off-label use, while others acknowledge additionally used to treat psoriasis and lupus. that it is a necessary ingredient of high-quality patient care. Perhaps the surprising thing is the number of The use of those treatments outside their licensed trusts that do not appear to distinguish between on-label indication is widespread because some clinicians believe and off-label use at all and do not keep records of the that the unlicensed treatments can lead to better patient requests they get. As they are vicariously liable for the outcomes than licensed treatments, where those exist. outcome of off-label treatments, this seems a somewhat Ironically, the fact that doctors may develop a strong reckless attitude. belief in the efficacy of an off-label use can make it harder to conduct any registration trials necessary to Among PCTs, the picture is, if anything, worse. secure an extended licence. That is because they would Almost three-quarters of PCTs reported that they deem it unethical to randomise patients to a control operated protocols for determining off-label funding arm of a trial if they are already convinced that doing requests. However, 42 per cent do so by using the so would not be in those patients’ best interests. exceptional case process, despite the fact that the 1325 Health: Medicines[29 OCTOBER 2009] Health: Medicines 1326

National Prescribing Centre has said that this absolutely for making decisions about the off-label use of medicines. should not happen. Three PCTs—North Staffordshire, My firm view is that this dimension of drug prescribing Oldham and Western Cheshire—said that they had a in the NHS has been overlooked for too long. Someone policy of never funding off-label treatment requests. needs to champion the whole issue and come up with a This is arbitrary and unjustifiable. It may also be completely new model that is designed to ensure that illegal in the context of the NHS Act. Perhaps the patients across the country receive speedy and appropriate Minister would care to comment on this. It is certainly access to the medicines they need. a situation that appears to run directly contrary to the NHS Constitution. 2.25 pm At the heart of the problem is the absence of an Lord Kirkwood of Kirkhope: My Lords, I am pleased information base about the uses of off-label medicines to follow the noble Earl, Lord Howe, who, typically and the clinical outcomes achieved thereby. Somehow generously, shared some of the briefing that was made this needs to be overcome. I say that not least because available to him. I am grateful for that. I am a trained of the need to guard against inappropriate off-label pharmacist. I did a degree a long time ago in the days treatments. Perhaps the most worrying instance of this when pharmacists were trained to roll pills—that shows is the overuse of antipsychotic medicines in care homes how long ago it was—so my pharmacy is not as to treat dementia. The Psychiatric Bulletin published a modern as it should be. However, I am also a recently study two years ago that brought this issue to the fore, appointed lay member of the General Medical Council, as did evidence presented to the All-Party Parliamentary which gives me an interest in this debate. I congratulate Group on Dementia last year. Not only do such the noble Earl on this debate. The timing is absolutely medicines carry safety risks, they also have unpleasant right. He is correct that this subject has been overlooked side effects, and there is clear evidence that people for too long. I was quite surprised when I looked at with dementia derive only limited benefit from them. some of the material. This is not the area of public The Department of Health is about to publish a policy in which I specialise, but there are so many report into this subject, and we await it with interest. I different, overlapping issues that need urgent attention hope that it will cover two issues in particular: the that the time has come for it. I hope the Minister can need for care home staff to receive training in dementia give us some comfort in that direction. care and the need for those to whom antipsychotics have been prescribed to have that prescription formally I shall go off-label in the debate and make two reviewed by a doctor on a regular basis. quick points. First, overprescribing in the NHS is still a problem. A sentence of reassurance from the Minister It is uncomfortable for me to admit that, in the would be helpful. Secondly, we all understand that the context of off-label treatments, the split between escalating costs of the drug bill are a problem for us purchasers and providers and the competition that all. However, I do not think this issue is predominantly exists between them serves to frustrate the delivery of about cost. If everything recommended by the noble the most effective care to patients. My own view is that Earl was brought into being in good order in a reasonable the only way to tackle these difficulties satisfactorily is time, it would not cost a lot, but it would improve the to put in place a collaborative commissioning pathways of care for some patients throughout the arrangement, perhaps across each strategic health whole United Kingdom—I shall come back to that authority area, which combines the skills of both point. I do not think the Government can hide behind hospital specialists and PCT commissioners. A single the fact that this will cost a lot of money, because it commissioning committee, perhaps not unlike that should not. which deals with specialised conditions, could be In addition to the important areas that the noble established in each strategic health authority to examine Earl, Lord Howe, referred to—rare cancers and the requests for off-label treatments. This would drastically antipsychotics issue that the Alzheimer’s Society perfectly reduce waste and duplication at PCT level, and it properly raised with us—there are other cases and would also allow different local health economies to circumstances that the Government are already aware pool their expertise. However, the real benefit would of. I shall refer to one of them, although I am sure flow over the medium term because once a certain there are others. It is the question of Lucentis versus number of requests for an off-label treatment had Avastin in the treatment of age-related macular been reached, the committee could form a consensus degeneration. It is a particularly interesting case because opinion about that treatment, and that in turn could the same company produces an expensive drug that be used as a means of informing funding decisions in treats colon and breast cancer and the even more the future. Consensus opinions reached in this way expensive Lucentis, which is properly licensed for the could be made available to NHS Evidence, which treatment of wet AMD. There are practitioners who would act as a conduit to inform decisions elsewhere believe in soul and conscience and their best clinical in the country. Of course, there would need to be a judgment that the cheaper product would be as efficacious, mechanism for updating the content of a consensus but they cannot get past the bureaucracy of the extra opinion to take account of experience and any new cost for the NHS for the reasons that the noble Earl research that emerges. suggested. It is right to say that in rare conditions, I very much hope that this idea, or something like such as rare cancers, you cannot get the critical mass it, will commend itself to Ministers. I say this more in to get statistical validity for the trials that are necessary expectation than in hope, because in the department’s for the licence. There are also perverse incentives for paper published in November last year, called Improving pharmaceutical companies within the licensing system. Access to Medicines for NHS Patients, it did seem that I do not blame them. Why should they license another they had in mind some kind of collaborative arrangements drug when they have a more expensive licensed drug 1327 Health: Medicines[LORDS] Health: Medicines 1328

[LORD KIRKWOOD OF KIRKHOPE] Secondly, there is an international body of opinion on the market? It would cost them money to do so. and experience on which we can draw. The noble Earl There are issues around the licensing system that we made an important point about treatments for psychosis need to look at. and drew very interesting comparisons between how However, equality of access is the main burden of we and our sister European nations deal with some of the noble Earl’s powerful evidence to the House this these technical problems. Arguably, their best practice afternoon. I concur with him. There are quite indefensible could be looked at and we could benefit from that. variations of treatment. I commend the Rarer Cancers I come back to where the noble Earl came in. There Forum, an organisation of which I was previously is no coherent framework of provision for these things ignorant. Its report is extremely well argued and well at the moment, and this needs to be attended to. There researched and repays careful study. It is very clear is also a really urgent need for accurate and comprehensive about the impact on patients who are suffering from information about off-limit prescriptions and treatments rarer cancers. I did not realise that rare-cancer sufferers in future. It is not safe to leave the situation as it is, and are quite a proportion of cancer sufferers. It is important I congratulate the noble Earl again on spotting this. It not to forget that. is a really important subject, and I hope that the The noble Earl made a very important point about Government agree. NICE. It is hamstrung and cannot do much about this issue without a new look at the whole thing. I also 2.34 pm agree that the lack of NHS protocols to ensure the clinical governance of off-label treatments is not Baroness Thornton: My Lords, I am grateful to the satisfactory and needs attention. The report demonstrates noble Earl for calling this debate. Although we may be that there is a wide variety of practice in the NHS, few in number, we make up for that in the quality of which is not satisfactory. our contributions. Precious things come in small packages. Some NHS trusts have vicarious liability, and as a I know that the noble Earl takes a keen interest in member of the GMC I know that it has no rules with a the Government’s medicines policy; this is not the first locus in this argument. The GMC, in any case, is not time that we have looked at this complex issue. I will responsible for licensing or for determining price efficacy take a moment to set out its background. A marketing or anything else. There is, however, some pretty clear authorisation, or product licence as it is often known, guidance in Good Medical Practice, a GMC publication, defines a medicine’s terms of use. The licensing system which is supplemented by a document called Good ensures that medicines are effective, safe and of good Practice in Prescribing Medicines, which also sets out quality. As both noble Lords have said, however, there quite clear guidance on how medical practitioners will always be clinical situations in which a prescriber should conduct themselves when they prescribe a medicine may judge that the use of a medicine outside the terms for use outside the terms of its licence. They must, for of its licence is in the best interests of a patient based example: on the available evidence. This, as has been remarked, is known as off-label or off-licence use. Such practice “Be satisfied that it would better serve the patient’s needs than an appropriately licensed alternative”, is relatively common in the treatment of some cancers and other conditions, and decisions are normally taken and: by hospital doctors. They need to be taken in discussion “Be satisfied that there is a sufficient evidence base and/or with the patient concerned, and funding may sometimes experience of using the medicine to demonstrate its safety and efficacy. The manufacturer’s information may be of limited help need to be agreed with the patient’s primary care trust. in which case the necessary information must be sought from The use of off-label treatments in cancer presents a other sources”. particular challenge because treatments are not licensed It is perfectly possible, legal, right and proper that for cancer but for a specific type and stage of a cancer. people using their medical judgments—that is why The Rarer Cancers Forum—I have looked at its excellent they are trained—should prescribe off-label medicines report—has coined the term “near-label” to describe for treatments that they think are appropriate, but the situation in which such drugs are used off-label but they should not be doing so casually and without in an indication that is near, or similar, to the licensed being properly cognisant of the regulatory environment indication. However, because these near-label treatments that is all around them. It is unsatisfactory for trusts are not licensed for such a use, they cannot usually be not to support the people whom they employ to appraised in England by NICE, because NICE generally discharge these important responsibilities as medical issues mandatory guidance on the use of a medicine practitioners. within its licensed indication. To do otherwise risks There is a difference in practice north and south of undermining the licensing process, which exists to the border. The Scottish Medicines Consortium is protect patients. This means that PCTs have to use light years ahead of and much better organised than their own processes for determining whether to fund the situation in England, due partially to the fact that these off-label or near-label treatments. In a way, how it operates on a much smaller scale and can get these this operates is the nub of both noble Lords’contributions. things done an awful lot more expeditiously. I make The issue of patients’ access to off-label treatments the point facetiously. Nevertheless, we in Scotland was dealt with by Professor Mike Richards in his seem to be more fleet of foot and able to move more report, Improving Access to Medicines for NHS Patients, expeditiously in determining some of these things. If which was published last November. Professor Richards the Minister has the briefing, will she reassure the reported that there are particular challenges for PCTs House that there is dialogue, as I hope there is, between in taking such decisions, as the noble Earl described professionals, if not Ministers, about all this? very adequately. He commented that better collaboration 1329 Health: Medicines[29 OCTOBER 2009] Health: Medicines 1330 by PCTs would help better quality decisions to be past three years, almost 3,200 cancer patients were taken on applications for funding, although, as the forced to apply for funding from the NHS for near-label noble Lord, Lord Kirkwood, quite rightly said, funding treatments. From what I have said, noble Lords will is not always the only issue; how decisions are taken is appreciate that the Government have a great sympathy also important. with these concerns. It is difficult and complex to see Mike Richards made a number of linked how all PCTs and their provider trusts can be reasonably recommendations that focus on the manner and processes expected to have the full expertise or resources to by which PCTs take decisions on new medicines and make the full range of decisions on rarer and more that, where there is no guidance from NICE, stress the complex cases. It is possible that the noble Earl’s need for PCTs to be proactive, transparent and rational proposal may go some way to addressing that issue in their commissioning decisions, to work collaboratively and I intend to take this question back to the department. and to be better supported. I will let noble Lords know the answer. Again, the noble Earl is completely correct when he The National Prescribing Centre is engaged in says that the NHS Constitution includes the right to developing ongoing support for PCT decision-making expect rational PCT funding decisions on drugs. He and, as part of this work, it has established that most asked about the illegality of barring funding for treatments. SHA areas now have some supra-PCT activities to PCTs must have arrangements in place to consider all support local decision-making. However, I appreciate requests. A blanket ban would leave them open to that that is not quite the point being made by the challenge in the courts. noble Earl. To help PCTs improve the quality of their decision- The noble Earl asked about antipsychotic drugs, making so that patients can have confidence in these which is an important and complex issue affecting arrangements and therefore deal with the issue of people with dementia in all care settings. That is why postcode lotteries and unevenness of decision-making, wehavecommissionedtheindependentreviewonantipsychotic we have commissioned a number of measures to support drugs, which we will publish next month. I will take the the introduction of improved local processes. We have issues raised about collaborative commissioning back produced a set of public-facing principles to inform to the department and will explore them. PCT decision-making, which is about governance The noble Lord, Lord Kirkwood, mentioned arrangements and procedures; a set of directions to overprescribing. We are attempting to tackle this again PCTs making explicit their public law responsibilities through our quality and productivity challenges. to put in place processes for making decisions on new Controlling the growth of the drugs bill is permanently drugs and treatments, which should address the issue on the agenda. The noble Lord also asked about raised by the noble Earl; and, most importantly, a Scotland. Every time I answer a question about NICE, handbook of detailed good practice guidance for the I also have a note about how closely we work with NHS, covering funding policies on new drugs and Scotland and how much easier it is for it to be fleet of processes for considering individual funding requests, foot, to paraphrase what my brief usually says. The which is a very important document. The National dialogue is ongoing and there is a lot of co-operation Prescribing Centre has embarked on a major programme and collaboration between the teams. of work to provide a bespoke and continuing training The noble Lord also asked about local decision-making. package for key PCT staff to help ensure that local The department has always taken a cautious approach processes are able to develop in the way that we, and to mandating or encouraging the use of drugs outside our policy, believe that they should. licensed indications. Aside from obvious liability issues The NHS chief executive wrote to strategic health if there is an adverse incident, there is a real risk that authorities on 4 November 2008 asking them to review national advice to use a drug outside its licence could the way in which PCTs in their area collaborate to undermine the established licensing process. While support effective decision-making on new drugs. Although some off-label cases may be obvious, others may be far this work is not specific to off-label use of drugs, it is more complex, so it is difficult to draw a clear line very relevant to that issue as the same general principles about what the national level should be. Although not should apply. The key part of this package is the specifically intended for the small volume of off-label handbook of good practice guidance, which was issued prescribing that takes place in the NHS, the measures to the NHS in March 2009. It provides tools to help that we are putting in place to strengthen and support PCTs review their current decision-making processes local decision-making will be relevant to such prescribing about the funding of medicines. as well. PCTs are likely to be faced with decisions about a Finally, while a good deal of progress has been range of medicines and treatments for rarer conditions made, we are not complacent. With the development where they and their local providers cannot reasonably of new drugs, more complex drugs and the applications be expected to have the full range of expertise. It is our of many different drugs, it becomes more important view that PCTs must consider collaborating in these that these procedures and processes are transparent circumstances and collaborative arrangements already and in the best interests of the patient. We will continue exist for many cancer medicines. Funding the off-label to promote and encourage collaboration through the use of drugs is an area that might trigger collaborative strategic health authorities. We will also continue to decision-making and we would expect the good practice consider whether there is a need to provide further guidance to inform such decisions. support to PCTs to enable them to effectively discharge I understand the concern of the noble Earl and the their responsibilities in this area. noble Lord, Lord Kirkwood, about the report from the Rarer Cancers Forum, which alleged that, over the House adjourned at 2.45 pm.

GC 31 Company Regulations 2009[29 OCTOBER 2009] Company Regulations 2009 GC 32

regulations. The draft Company, Limited Liability Grand Committee Partnership and Business Names (Public Authorities) Regulations, which we are considering today, specify Thursday, 29 October 2009. 26 public authorities where prior approval is required for business names that suggest a connection to them. 2pm Both Houses of Parliament are specified in the The Deputy Chairman of Committees (Baroness regulations, as are the devolved legislatures, government McIntosh of Hudnall): My Lords, before the Minister auditors and financial regulators. The other six specified moves that the first statutory instrument be considered, public authorities are ones where the relevant government I remind noble Lords that, in the case of each statutory department has advised that there is a risk of harm to instrument, the Motion before the Committee will be the public from persons purporting to be connected that the Committee do consider the statutory instrument with them. Non-departmental public bodies are not in question. Just to be clear, the Motion to approve the listed unless they have functions under the Crown. statutory instrument will be moved in the Chamber in The reason for specifying a public authority is to the usual way. I also remind noble Lords that, if there prevent the unscrupulous from adopting names that is a Division in the House, the Committee will adjourn suggest a connection to it in order to trick the public for 10 minutes. into revealing sensitive information. The 26 listed public authorities are only those where there is seen to Company, Limited Liability Partnership be a real risk of a scam—attempts to defraud and so and Business Names (Sensitive Words and on. Expressions) Regulations 2009 Someone wishing to use a name that suggests a connection to one of the specified bodies must ask it Considered in Grand Committee to indicate whether and, if so, why it has any objections Moved By Lord Young of Norwood Green to the proposed name, although, as is made clear in the regulations, in the case of seven bodies, the applicant That the Grand Committee do report to the must seek the views of another body. The applicant House that is has considered the Company, Limited must enclose a copy of any response with the request Liability Partnership and Business Names (Sensitive for prior approval for the name. This ensures that the Words and Expressions) Regulations 2009. decision whether to approve the name is well informed. Relevant Document: 22nd Report from the Joint The Secretary of State’s prior approval is also required Committee on Statutory Instruments. if a business or registered name includes certain words or expressions. The Committee will be pleased to know that the Company, Limited Liability Partnership The Parliamentary Under-Secretary of State, and Business Names (Sensitive Words and Expressions) Department for Business, Innovation and Skills (Lord Regulations 2009 has a list of those words and expressions. Young of Norwood Green): My Lords, in moving this There are also six words for which prior approval is Motion, I intend to deal also with the Company, required for their inclusion in a registered name but Limited Liability Partnership and Business Names not for inclusion in a business name. I will come back (Public Authorities) Regulations 2009. to this later. I should perhaps first explain that both sets of regulations relate to both business names and registered These regulations, which replaced the Company names. By business names, I mean the name under and Business Names Regulations 1981, were made on which any person, whether or not incorporated, carries 25 September and came into force on 1 October. We on business in the UK. By registered names, I mean are considering them today as they will fall unless the name under which a company or limited liability approved by Parliament. partnership is registered at Companies House. This It has been suggested that a list of words requiring may or may not be the same as its business name or, prior approval is no longer necessary and that trade indeed, its business names. mark law and the law on passing off might somehow The UK has few restrictions on business names. be sufficient. However, this civil law protects only the There are restrictions over the use of certain words private rights of the person who alleges that their under, for example, the Medicines Act 1968 and the name is being impersonated; trade mark law and the Architects Act 1997. Since the abolition of the business law on passing off do not and cannot protect the names register in 1981, the Secretary of State’s prior public directly. That is the purpose of these regulations. approval has been required for certain business names. About half the sensitive words and expressions in This requirement does not apply if the business name these regulations were prescribed previously. The newly is simply the trader’s surname or partners’ surnames prescribed words and expressions are primarily those with or without forename and/or initials or, if the that convey authority or status. The purpose is not to trader is incorporated, if the name is not its registered protect a sector, body or person; the purpose is to name. protect the public. This is because names that include Under the Companies Act 2006, the Secretary of these words might be used to induce members of the State’s prior approval is needed for either a business public to pass money or personal information. We name or a registered name that suggests a connection also prescribe the Welsh and Scots Gaelic versions of to Her Majesty’s Government, a devolved Administration, words where these are considered to create a similar a local authority or any public authority specified in risk to the public as the word does in the English. GC 33 Company Regulations 2009[LORDS] Company Regulations 2009 GC 34

[LORD YOUNG OF NORWOOD GREEN] It is interesting to observe that, over time, the The six words prescribed only in relation to process of checking the availability of names, when registered names are “Cymru”, “Alba”and the related one is setting up a new business, has changed. Until adjectives. Both these words are in widespread use in about 30 years ago, one started with the register of business names, without any evidence of harm to the business names. That was abolished in the late 1970s; public. However, we consider that, in future, they thereafter, the place to start was Companies House. I should be permitted only in registered names to have been recently involved in setting up a new business companies and LLPs that satisfy both a pre-eminence in precisely this situation and one is still advised that, criterion and one based on the location of the even if setting up an unincorporated business, one registered office. should check the availability of the business’s name at The list does not include words associated with Companies House. Ideally, one might then register a particular commercial activities. For example, it does company with the same name as the business at not include “college”. This is because, since 1 October, Companies House in order to deter others from it has been an offence to carry on business under a using it. name that gives so misleading an indication of the I hate to say this to the Government, because it nature of the activities of the businesses as to be likely might imply that what we are debating today has been to cause harm to the public. The words and expressions overtaken by events, but the single most important specified in these regulations are words and expressions place to reserve your name now is not Companies that might be used to mislead as to the authority, House but Nominet. Also, the single most important status or pre-eminence of the business. question in selecting a name for a new business is: is an To conclude, I emphasise that the purpose of both appropriate domain name available as a web address these sets of regulations is to protect the public from on the internet? What control do the Government harm as a result of being misled as to the authority, have, if any, over the unauthorised use of the prohibited status or pre-eminence of a company, LLP or names listed in these two sets of regulations in domain unincorporated business. They do not prohibit any names, which, after all, can often be bought for a few names; rather, they make the prior approval of the pounds? It will be on the internet that the majority of Secretary of State a prerequisite. I commend the fraudulent activity will take place in the future. instruments to the Committee. I beg to move. Lord Cotter: My Lords, I, too, thank the Minister Lord De Mauley: My Lords, I thank the Minister for introducing these measures. As my colleague has for introducing these two sets of regulations, which said, there are still concerns. This seems to be a rather are to do with names that companies and limited arbitrary list at times, particularly in relation to districts. liability partnerships are prohibited from using because, The Minister referred to this in his introduction and as he said, to do so could mislead the public. In that perhaps he can explain it. respect, of course we accept the regulations and welcome The Minister has already referred to the concern the intent to protect the public from harm. about colleges, which is fair enough, but an enormous I hope that the Minister will forgive me for slightly number of bogus colleges still exist in this country. pulling his leg but, in the context of numerous pieces Indeed, in east London, for example, some of them of legislation that we have debated in your Lordships’ are simply and solely shops with “College” tacked on House in recent years, I can recall frequently hearing to the front. People are induced to come to this Ministers dismissing amendments on the ground that country to study at colleges that are not colleges at all, they proposed lists, arguing instead for a comprehensive which is bad for the reputation of the educational but simple set of principles against which something—in standards of our country. It is a desperate situation this case, a proposed name—should be assessed. Perhaps where students from overseas and from within this the Minister could comment on that and explain the country come to colleges, supposedly to get a reasonable process by which in this case two lists were arrived at, education or training, and find that what they are despite the Government’s distaste for such things. presented with is less than adequate. While the Minister One of the problems with lists is that you can find has said that the Government are aware of this, I still that you have forgotten to include something that you do not see why there should not be a multifaceted ought to have included. For example, the Association approach of including named colleges in the list. I of Colleges has drawn the attention of some noble look forward to the Minister’s response. Lords to a problem that could, in its view, have been resolved by adding the word “college” to the list of 2.15 pm prohibited names—the Minister has, of course, just Lord Young of Norwood Green: The noble Lord, referred to that. The association says that it is difficult Lord De Mauley, quite rightly asked why, given our to overestimate the damage that bogus colleges are normal aversion to lists—I cannot think where he got doing to the good name of British education. It also that idea from, unless it was the subject of our recent points out that there is widespread concern that bogus debates together—we have this list. It is because we colleges are set up with the express purpose of believe that it is clearer to those who wish to adopt a enabling prospective immigrants to bypass UK name. This approach is set out in the Companies Act immigration controls and not to provide education 2006, as approved by Parliament. It is an extension of and training. Will the Minister expand on the that approach and we believe that it is right in today’s Government’s dismissal of adding that word to the circumstances. It may not be ideal but we believe, on a list, given that words such as “polytechnic” and balance of what is best to protect the public, that there “university” are already protected? is value in the list. GC 35 Company Regulations 2009[29 OCTOBER 2009] Legislative Reform Order 2009 GC 36

Both the noble Lord, Lord De Mauley, and the Company, Limited Liability Partnership noble Lord, Lord Cotter, asked about colleges and I and Business Names (Public Authorities) shall give a more extensive answer on that issue. From 1 October 2009, it has been an offence under the Regulations 2009 Companies Act 2006 to carry on business in the UK Considered in Grand Committee under a name that gives so misleading an indication of the nature of the activities of the businesses as to be 2.18 pm likely to cause harm to the public. The new offence Moved By Lord Young of Norwood Green addresses the issue of bogus colleges in a more inclusive and immediate way. We therefore decided against adding That the Grand Committee do report to the “college” to the list of words for which the Secretary House that is has considered the Company, Limited of State’s prior approval is required for inclusion in Liability Partnership and Business Names (Public either a company’s registered name or any person’s Authorities) Regulations 2009. business name. Relevant Document: 22nd Report from the Joint The issue of bogus colleges being used in visa Committee on Statutory Instruments. scams and various other fraudulent activities has been addressed by the creation of the new UK The Parliamentary Under-Secretary of State, Border Agency register of sponsors, which lists all Department for Business, Innovation and Skills (Lord organisations that the UK Border Agency has Young of Norwood Green): My Lords, I have already approved to employ migrants or sponsor migrant spoken to these draft regulations. students. We have focused on that area specifically Motion agreed. because it is where the major problem occurred. There are hundreds, possibly thousands, of businesses currently trading under names that include the word Legislative and Regulatory Reform “college”. “College” is used not only by education (Regulatory Functions) (Amendment) providers but by many professional bodies—for example, the Royal College of Physicians—as well as Order 2009 by other businesses such as educational suppliers and, Considered in Grand Committee believe it or not, pubs. The vast majority do so without any suggestion of harm to the public. If 2.19 pm “college” were prescribed, because of the savings Moved By Lord Young of Norwood Green provisions in the Companies Act 2006 all businesses that were lawfully using the word in their name on That the Grand Committee do report to the 30 September 2009 would be exempt from the House that is has considered the Legislative and requirement for prior approval. The exemption would Regulatory Reform (Regulatory Functions) also protect any bogus colleges already in existence. (Amendment) Order 2009. However, the new offence will catch all bogus colleges Relevant Document: 22nd Report from the Joint and so offers greater protection. Committee on Statutory Instruments. The noble Lord, Lord De Mauley, rightly drew domain names to our attention—in the 21st century, The Parliamentary Under-Secretary of State, these are as key an asset to a business as the business Department for Business, Innovation and Skills (Lord name. A requirement for prior approval applies to the Young of Norwood Green): My Lords, the Government name used by any person to carry on business in the laid the Legislative and Regulatory Reform (Regulatory UK, including domain names. The noble Lord pointed Functions) (Amendment) Order 2009 before Parliament out that for an unincorporated company there was a on 20 July. The order amends the Legislative and value in registering it, but I think that that was more Regulatory Reform (Regulatory Functions) Order 2007, by way of comment. which Parliament approved in November 2007 and which came into force on 6 April 2008. I hope that I have addressed all noble Lords’ The order forms an important part of the concerns. I am grateful for their contribution to the Government’s programme of regulatory reform. Since debate. We are, I believe, all agreed that the rules for 2005, the Government have worked to improve the company and business names should be kept to a way in which we regulate and enforce regulations in minimum. The purpose of the regulations is to this country. The aim is to increase the benefits that protect the public from financial or other harm regulations can bring—and these are many—without, resulting from their being misled by a company or I stress, imposing needless costs and complexity on business name. The sensitive words regulations list businesses. In particular, the Government have embarked words and expressions that might be used in names on a radical overhaul of administrative burdens faced to convey authority, status or pre-eminence. The by business. For example, we are on track to deliver a public authorities regulations list only those where savings to business of £3.4 billion under the current an implied connection might be used to induce programme to cut administrative burdens by 25 per vulnerable persons to reveal private information or to cent by May 2010. The Government have recently set a make payments. new target to cut the ongoing costs of regulation by a further £6.5 billion by 2015, bringing the total savings Motion agreed. to UK business to around £10 billion by 2015. GC 37 Legislative Reform Order 2009[LORDS] Legislative Reform Order 2009 GC 38

[LORD YOUNG OF NORWOOD GREEN] The introduction of the code and principles is The Government are also determined to drive better bringing about some culture change among regulators. regulation at the EU level and to deliver a risk-based Business, too, is beginning to feel the positive impact and proportionate approach to regulatory supervision of the better regulation agenda and continues to support and enforcement across the entire regulatory landscape. the code. Our discussions with some of our international It is this last aspect of the reform—proportionate and partners have also shown the extent to which our work risk-based enforcement of regulations—that the in this area is setting an international lead. It is because instrument before us today primarily addresses. of the significant benefits that the code and the principles can deliver for regulators and those that they regulate The order seeks to ensure that regulators apply a that the Government have decided, through the order risk-based approach to regulation. This will enable before us today, to extend their coverage to more them to direct resources, which are inevitably limited, national and local regulators. to the areas of greatest need, while minimising burdens In particular, the order seeks to extend the code and on businesses that pose lower risks and have good principles to three new areas. First, there are the local records of compliance. The policy agenda flows from authorities in Scotland, Northern Ireland and Wales, the recommendations in the Philip Hampton report, where they perform reserved regulatory functions. Unlike Reducing Administrative Burdens: Effective Inspection English local authorities, these are currently excluded and Enforcement, and the report of the Better Regulation from the application of the code and principles. Secondly, Task Force, Less is More: Reducing Burdens, Improving there are public sector regulators, such as Ofsted and Outcomes, both published in 2005. the Care Quality Commission, where they regulate The Hampton review recommended new approaches, business and third sector organisations. Thirdly, there known as the Hampton principles, to regulatory are other relevant areas of national regulation, such as supervision and enforcement, while the Better Regulation the money-laundering regulations, where the burdens Task Force developed the five principles of good imposed on business and the third sector can be regulation. These principles are that regulatory activities significant. should be carried out in a way that is transparent, Extending the code and principles to these new accountable, proportionate, consistent and targeted areas will ensure that the overwhelming majority of only at cases in which action is needed. The Government businesses and third sector organisations in the UK accepted these recommendations and introduced the are regulated within the consistent and transparent Legislative and Regulatory Reform Act 2006 to implement statutory framework that the code and principles provide. them. Part 2 of the Act gives effect to this. Specifically, This will ensure regulatory consistency and create a Section 21 of the Act enshrines the five principles of level playing field for most businesses across the UK. I good regulation into UK law, while Section 22 enables stress that the order is a vital part of the Government’s a Minister of the Crown to issue a code of practice, effort to reduce unnecessary burdens on UK businesses based on the Hampton principles. and create a more efficient and competitive economy. It is important—even more so in the current economic The code of practice and the regulatory principles, situation—that we reduce any regulatory obstacle to however, apply only to regulatory functions listed in business competitiveness. an order made by a Minister under Section 24 of the Of course, it also important to stress that better Act. Any person whose function is listed in the order, regulation is not about removing necessary protections; known as the listing order, must have regard to the rather, it is about making regulation as simple as code and principles in exercising the function. Both possible for everyone—consumers, workers and business, the draft code of practice, now known as the Regulators’ as well the economy and society as a whole. The aim is Compliance Code, and the original listing order were to get the best outcome in the most efficient way, not laid before Parliament in 2007. The debates were very to water down those outcomes. The order seeks to positive and supportive. When the instruments were support regulators in a manner that ensures the optimal debated in Grand Committee in November 2007, your outcomes. Lordships welcomed their developments and particularly Finally, I emphasise the extent and depth of commended the code as a move in the right direction. consultation with interested parties on the draft instrument. For over 13 weeks, officials actively consulted Both instruments came into force on 6 April 2008. different stakeholders to seek their views on the draft Since then, 46 national regulators as well as all the order. Where necessary, officials met further with key local authorities in England have been under a statutory stakeholders to discuss any concerns about the order. I duty to have regard to the code and the five principles am confident that the instrument enjoys the support of good regulation when they carry out specified of most key stakeholders. I beg to move. functions. Since the code came into force, some progress has been made by regulators to embed the code’s standards into their regulatory culture and processes. Lord De Mauley: My Lords, I thank the Minister Many have reviewed, or are reviewing, their existing for explaining the order. Reducing unnecessary regulatory policies to meet the requirements of the code. For burdens on both the public and private sectors is a example, the Health and Safety Executive has published worthwhile aim, strongly supported on this side of the the changes that it has made, and plans to make, to House. To that extent, the order is welcome. However, comply with the code’s obligations. The Environment in the Making It Simple annual review 2008, the noble Agency has taken similar steps, and many local authority Lord, Lord Carter, stated that the Government were regulatory services appear to have aligned their on target to reduce the overall burden of regulation by enforcement policies with the provisions of the code. 25 per cent. The Minister himself just referred to this. GC 39 Legislative Reform Order 2009[29 OCTOBER 2009] Legislative Reform Order 2009 GC 40

How does he square that figure with the most recent great deal of consultation took place before the order burdens barometer produced by the British Chambers was introduced but, in order to assess the results such of Commerce, which found that the total cost of a short time after its introduction, many people will regulation to business since 1998 had risen to £76.8 need to be consulted and asked for their views, particularly billion? Indeed, this is an increase of £10.8 billion those with small businesses. I would be pleased to from last year. know exactly what effect the Minister feels this will The Better Regulation Task Force established five have on small businesses. Will we hear back from them principles of good regulation, to which the Minister about how the better regulation system is operating? referred. Those principles were designed to be a useful toolkit for assessing and improving the quality of regulation. The principles, as the noble Lord said, are Lord Young of Norwood Green: My Lords, I am not proportionality, accountability, consistency, transparency sure that I have the answers to all the questions, but I and targeting. shall address those to which I do have answers. I make the following observation about the order, The noble Lord, Lord De Mauley, asked about the because it is drafted—as many orders are—simply as a exclusion of the traffic commissioners’ judicial functions. series of amendments to extant legislation and, when The 2006 Act specifically excludes from the definition read on its own, is completely incomprehensible. The of regulatory function, first things that it comes to—after the wherefores and “any function of conducting criminal or civil proceedings”, whereases—are amendments to the 2007 order, but which means that, to the extent that quasi-judicial you need to get hold of the 2007 order to know what it bodies are carrying out any function of conducting is all about. Even then, the lay man would be hard criminal or civil proceedings, such a function is excluded pushed to make head or tail of it. Does that not from the scope of the code. It is not the Government’s breach the transparency test? The Explanatory intention to go beyond the specific language used in Memorandum is indeed helpful, but that is not quite the Act. the same thing. I ask the Minister how those who are in business, who are often untrained and inexperienced I am looking for inspiration from behind me for an in reading and interpreting orders and legislation generally, explanation as to why, according to the British Chambers would know whether it applied to them and in what of Commerce, the regulatory burdens barometer is way. moving towards stormy rather than fair weather. The Turning briefly to the impact assessment, can the UK now has the best ranked business environment in Minister tell me whether the figure of £2.8 million for Europe and the fifth best in the world, according to one-off costs is per regulator or across the whole the World Bank’s “Ease of Doing Business” index, country? As to the range of total benefits, which is which analyses the regulatory environment of 183 stated as being from £2 million to £45.2 million, I countries. The Government have delivered more than observe that under any interpretation of the word £2 billion in annual net savings by cutting out-of-date “materiality” this is sufficiently wide to cause some and unnecessary paperwork for businesses. That is scepticism. What does it mean and why is it so wide? £5 million a day, every day. This is on track to meet the target of a 25 per cent cut and is expected to deliver Returning to the order, I note that it is stated that £3.4 billion in savings. the traffic commissioners have been assured that the code and principles do not apply to their functions of As to the point about the British Chambers of conducting civil or criminal proceedings. It would be Commerce, it is a question of the methodology that it helpful to have on the record the reason for this uses. There is another phrase in my brief but I cannot exclusion. decode it; I think that I have some cryptographers working behind me. The noble Lord, Lord De Mauley, talked about the 2.30 pm one-off costs per regulator. Those one-off costs are Lord Cotter: My Lords, I, too, thank the Minister across the country, apparently, which I think answers for introducing this measure. Indeed, as has already another question. been said, we cannot but approve of the aim to reduce A further point was made about the impact on the burden of regulation and bureaucracy on all people SMEs. My understanding is that this will be beneficial and businesses, particularly small businesses. However, regardless of the size of the business in reducing the one aspect that concerns these Benches is the difficulty regulatory burden. I can think of one area that I am of getting clarity as to exactly what is being proposed sure impacts on most of us, which is to get it right today in order that we may discuss it. That in itself is when trying to open and close bank accounts and the an area of concern. amount of evidence that you are required to produce. Can the Minister give an assurance that, in order to There is certainly potential in that area. I hope that I achieve the aims set out, the order does not place too am right in saying that the size of the business should many burdens on small businesses? Trying to ensure not have anything to do with it. The aim and intention that regulation is carried out in a proportionate and is at one with the Hampton review; the recommendations transparent way could have the reverse effect if small are exactly the same. businesses, in particular, find difficulty in coming to With regard to the point about the British Chambers terms with what they are being asked to do. of Commerce, although we agree with the methodology, I believe that I am correct in saying that a review is we think that the figures that we have quoted about proposed in 2011. How do the Government intend to the savings are reliable, so we may have to agree to carry out this review process? The Minister said that a disagree on this. If I have not said it already, we have GC 41 Legislative Reform Order 2009[LORDS] Provision of Services Regulations 2009 GC 42

[LORD YOUNG OF NORWOOD GREEN] businesses trying to set up or trade in the internal set a new and ambitious target to cut the ongoing market have still faced unnecessary obstacles. Some costs of regulation by a further £6.5 billion over the countries have imposed rules discriminating against next five years. businesses from abroad. Businesses have also had to I thank noble Lords for their consideration of this apply for different licences for each country or region draft instrument. I emphasise that its aim is to ensure in which they want to operate. These obstacles have that national and local regulators apply a risk-based meant that some businesses, particularly small and and targeted approach to regulation so as to improve medium-sized enterprises without the ability to pay outcomes and minimise burdens on businesses. Many local experts, have been unable to market their services UK regulators are already working within the statutory abroad or have found it uneconomic to do so. Trade in framework provided by the Regulators’ Compliance services accounts for only 24 per cent of the trade in Code and to the principles of good regulation. This the internal market, even though services account for instrument will ensure that more and more regulators 70 per cent of EU GDP. operate within the same framework. This is important As noble Lords will no doubt be aware, the directive because business, especially small businesses, needs an covers around two-thirds of the service sector as a environment where regulation is effective and bureaucracy whole. The directive excludes some services industries, is minimised. In the current economic climate, I am such as financial services, healthcare, gambling and sure that noble Lords would agree that this is more transport. This is due to the fact that EU legislation important than ever. It is also important because we exists in some of those excluded areas already and that can protect the environment, reduce accidents, protect liberalisation was seen as undesirable for others. However, workers and thus maintain an efficient and competitive the directive still represents the horizontal piece of economy only if we have appropriate and good-quality legislation that we were striving for. Details on scope regulation that is properly and fairly enforced. are in Part 1 of the regulations. This instrument will bring real benefits to many The directive, which these regulations will put into groups: to regulators, because they will be able to UK law, has been incorporated into the EEA agreement. target their resources more effectively; to business, The regulations therefore apply in relation to the EEA because the costs of regulation will fall; to society, states of Iceland, Liechtenstein and Norway, as well as because rogue operators will be more effectively targeted the 27 EU member states. and tackled; and to the economy, because removing burdens on business will enable the UK to retain its There are four main elements to the directive, and competitive edge in the global economy. On that note, thus to the regulations, which I will outline in the I ask the Committee to approve the Motion. order in which they appear in the regulations. First, Part 2 of the regulations concerns the quality of Motion agreed. services provided to recipients. To increase recipients’ confidence in buying services from abroad, all service businesses will have to provide consumers with certain Provision of Services Regulations 2009 information about the business and the service in Considered in Grand Committee question. The requirements are simple and should not present a burden for UK businesses as we anticipate 2.38 pm that most of them will already be doing this as common practice. We hope that consumers will benefit from Moved By Lord Young of Norwood Green increased quality, competition and choice, and that this will result in a wider customer base for businesses That the Grand Committee do report to the offering services. House that is has considered the Provision of Services Regulations 2009. Secondly, Parts 3, 4, and 5 of the regulations set out legal requirements on competent authorities regarding Relevant Document: 22nd Report from the Joint their regulation and supervision of service providers Committee on Statutory Instruments. and recipients. These provisions reflect the requirement in the directive that all such authorities across the EU The Parliamentary Under-Secretary of State, remove unjustified, disproportionate or discriminatory Department for Business, Innovation and Skills (Lord legislative and administrative barriers to providing Young of Norwood Green): My Lords, the regulations services. These could include requiring a prospective before the Committee today implement the EU services service provider to register with an authority or to directive into UK law. The regulations concern both establish premises in a particular country, in the absence the provision and the regulation of services. They are of an adequate policy rationale. Part 6 of the regulations therefore relevant to service providers and to authorities places several other requirements on competent authorities with a supervisory or regulatory role in relation to that will benefit both service providers and recipients. services—termed “competent authorities”. The directive For example, authorities must recognise equivalent represents a great step forward for the internal market documentation and equivalent professional liability in bringing down barriers to business in the EU and is insurance from service providers and recipients from a major achievement of better regulation across the other member states. EU. Thirdly, the directive requires each member state to Although the freedom to provide services and the set up a point of single contact, which is termed the freedom of establishment are already set out in the “electronic assistance facility” in the regulations and is treaty establishing the European Community, services provided for in Part 8. The electronic assistance facility GC 43 Provision of Services Regulations 2009[29 OCTOBER 2009] Provision of Services Regulations 2009 GC 44 will be a web portal where businesses can find the that service providers will be able to operate in all information they need about operating in the UK and member states without prior authorisation or the need apply online for any necessary licences or authorisations to set up a local subsidiary. However, I would not be that are in the scope of the directive. Other states are fulfilling my task in opposition if I did not focus on establishing similar facilities. This will greatly simplify areas of doubt, especially about where the regulations the current situation where businesses have to spend part company with the directive. I apologise to noble time and money finding information from different Lords because I have quite a number of questions, places, often having to visit the relevant competent some of them rather technical. Before I go further, I authority in the country where they wish to operate. In should declare an interest: I am a chartered accountant future they will be able to apply for and receive and from time to time I provide management consultancy authorisation online. advice. I believe that those who provide such a service This is a good opportunity for me to thank local are covered by the regulations. councils and other competent authorities for their Having listened to the debate in your Lordships’ hard work in screening their processes and laws and House on Friday on the report of the European Union preparing for the point of single contact. It has been a Committee, EU Consumer Rights Directive: Getting it huge task, so my thanks go to them for their commitment. Right, I was struck that it had certain threads in The fourth element is enhanced co-operation between common with this debate. The noble Lord, Lord Whitty, regulators across the EU, which is provided for in said that, Part 9 of the regulations. Competent authorities will “if you try to buy insurance in Spain because you believe it is be able to communicate with each other through a cheaper you are bunged back”— secure web-based system called the Internal Market those were his technical words— Information system, which my department is establishing now. Part 9 of the regulations requires authorities to “into the British website”. provide information through the system to their He went on to say: counterparts in other countries regarding whether a “Some business practices are a greater inhibition to cross-border service provider is duly authorised and other relevant trade than the regulatory framework”.—[Official Report, 23/10/09; matters. This will take the burden off the service col. 933.] provider to provide documentation repeatedly to different As the Minister explained, financial services are not authorities. The system is also intended to ensure included in the regulations. However, I raise the issue proper regulatory supervision of service providers and to make a broader point about cultural practices on the services they provide across EU borders. which he may like to comment. Effective implementation of the services directive The British Chambers of Commerce has across the EU is estimated to be worth about £4 billion communicated with me, as I am sure it has with other to £6 billion per year to the UK economy, and about noble Lords, and one of its key concerns is about the ¤30 billion per year to the EU economy. Member pace and quality of implementation of the directive states must implement the services directive by across the rest of the EU. This would not be the first 28 December of this year. The Provision of Services time that the UK had entered zealously into the spirit Regulations will also come into force on that date, and of an EU directive only to find that it had not been will apply to the whole of the UK. The devolved followed with such alacrity in other EU nations. What Administrations are amending their own legislation are the Government doing to ensure that we do not, where necessary so that it complies with the directive. once again, welcome foreign competition in but find I hope that noble Lords will agree that this is great our own businesses not so welcomed elsewhere? I have news for UK businesses whether they want to export learnt that in most EU states the web-based points of their services to Europe, purchase services from providers single contact will work only in the national language. in other member states or take advantage of the If true, it does not sound very encouraging. What streamlined processes here in the UK. The increased work are the Government doing with other member opportunities are also there for foreign businesses to states to develop the single points of contact so that invest in the UK, all of which in turn is great news for they operate as they should? the UK economy. I beg to move. Paragraph 3 .2 of the Explanatory Memorandum states: 2.45 pm “It is our view that imposing obligations on all service providers Lord De Mauley: My Lords, I thank the Minister (and not just those set out in the Services Directive) … is a proper for introducing these regulations. I note from the exercise of the power”. Explanatory Memorandum that they set out rules The Minister will correct me if I am wrong but it relating to the provision of services and implement the appears that while here in the UK all suppliers, including services directive. If the directive works as we all hope those from outside the EU and EEA, are covered it will, and if it is properly implemented across Europe, because the regulations extend beyond the requirements it should bring benefits to British businesses, which of the directive, in other countries suppliers from would be very welcome. outside the EU and the EEA are not covered. Can the The objective of the services directive is to open up Minister confirm that this means that the directive the single market by removing and reforming costly does not create a level playing field elsewhere in the and time-consuming national standards and approval EU? If that is right, what representations have the UK procedures. The Conservatives have been at the forefront Government made to the Commission to try to get of pushing for this in the EU Parliament. It will mean this anomaly changed? GC 45 Provision of Services Regulations 2009[LORDS] Provision of Services Regulations 2009 GC 46

[LORD DE MAULEY] mode of pursuit. Where the first sentence of this definition does I notice from paragraph 3.5 of the Explanatory not apply, a profession referred to in paragraph 2 shall be treated Memorandum that the drafter has as a regulated profession”. “extended the provisions in Part 3 to cover a provider of UK However, the draft regulations express it as follows: origin supplying services to a recipient of UK origin”. “‘regulated profession’ means a professional activity or group of Can the Minister confirm that domestic providers activities supplying services to recipients in their own countries—for (a) access to which, the pursuit of which or one of the modes example, in France, Italy, Spain or Poland—are not of pursuit of which is subject (directly or indirectly) by virtue of legislative, regulatory or administrative provisions to the possession required by the directive to be covered? That is the of specified qualifications, or implication. If that is so, is this not a somewhat (b) the pursuit of which is by persons using a professional title blatant example of gold-plating? which is limited by legislative, regulatory or administrative provisions I read at the top of page 4 of the department’s to holders of a given professional qualification”. Guidance for Business on the Provision of Services Once again, can the Minister explain—perhaps not Regulations, published this month that, among other today but in writing afterwards—why the regulations things, the services directive requires each EEA state do not more accurately reflect the directive? to, On paragraph 2(2) of Regulation 12, can the Minister “set up a point of single contact”— explain why the words “frivolous or totally without the web-based point of single contact to which I merit” were not inserted after the word “vexatious” to referred earlier— bring the regulation into line with, among other things, “enabling service providers to apply and pay for authorisations the terms of the Illegal Services Act 2007? (to offer or provide services) online”. In Regulation 32, there is no definition of “electronic I remind your Lordships that this directive applies procedures”, so does this include e-mail confirmation, fairly and squarely to a number of already perfectly or is it restricted to web-based solutions? adequately regulated providers of services. I hope that In paragraph 2(b) of Regulation 34, there is a the Minister can convince me that this wording “and reference to “professional secrecy”. Such language is pay for” is not simply creating another opportunity not generally legally recognised in the United Kingdom. for yet another stealth tax on business, which this Can the Minister confirm that this means the equivalent Government can seize upon with their usual keenness. of an obligation of confidentiality or legal professional I have a number of technical questions taken in privilege? order from the regulations. Regulation 2 refers to In relation to Part 7 and the obligations for information specific sectors and/or instruments where the rules do to be provided by competent authorities, what is the not apply. Regulation 6 refers to the relationship with role of the devolved Administrations? The obligation other Community instruments. Concerns have been under Regulations 36 and 38 relate only to the Secretary expressed to me that the test set out in the paragraph, of State. The interpretation provision does not, for which states: example, make reference to “Scottish Ministers”. Should “A requirement imposed by Parts 2, 5 or 6 of these Regulations it? In Regulation 38, the Secretary of State and the on a competent authority or provider of a service does not apply, Commissioners for Revenue and Customs must jointly if or to the extent that, the competent authority or provider provide a facility which will become the point of single cannot comply both with that requirement and with a requirement to which this paragraph applies”, contact. What role is there for Scottish Ministers in relation to this? is a different test from that in Article 3 of the services directive. The Merits of Statutory Instruments Committee has specifically raised the matter of pedlars, and my Article 3 states: noble friend Lord Lucas will in a moment ask for the “If the provisions of this Directive conflict with the provision Minister’s assurances on that question, which is important. of another Community act governing specific aspects of access to or exercise of a service activity in specific sectors, or for specific That committee also reported that, professions, the provision of the other Community act shall “given the broad scope of these Regulations, it will be vital to prevail and shall apply to those specific sectors or professions”. their success that the Government ensures that all affected service Can the Minister explain why the regulations do not providers are aware of the new requirements. The Government may therefore wish to enhance their efforts in this regard”. more exactly reflect the directive? I would be grateful to hear the Minister’s response to In the definition of “regulated profession” under that point. Article 4(11), the directive states that, “regulated profession means a professional activity or a group of professional activities as referred to in Article 3(1)(a) of the Lord Cotter: My Lords, I, too, thank the Minister Professional Qualifications Directive 2005/35/EC”. for introducing this measure. It is clearly very welcome The definition in the regulations restates this definition at this time, when we have so many problems with the more or less, save for a change. The directive 2005/36/ED economy and in business. Anything that will help defines “regulated profession” as, businesses to increase their opportunities is to be “a professional activity, or group of professional activities, access welcomed. to which, the pursuit of which, or one of the modes of pursuit of The points that have been made about a level which is subject, directly or indirectly, by virtue of legislative, regulatory or administrative provisions to the possession of specific playing field are quite fair. We must ensure that there professional qualifications; in particular, the use of a professional will really be an open market and that things are as title limited by legislative, regulatory or administrative provisions they are portrayed. However, concern has been expressed to holders of a given professional qualification shall constitute a to me that, even in this country, we may not be fully GC 47 Provision of Services Regulations 2009[29 OCTOBER 2009] Provision of Services Regulations 2009 GC 48 ready to implement what is proposed. It is very important The latest communication that I have received from that, on the one hand, we see implementation carried the pedlars’ side of business reads as follows: out fairly elsewhere and that, on the other hand, in “The Opinion of Counsel for BIS dictates an arbitrary removal this country we are up and running and able to do so of the protection of a Pedlars Certificate from some currently ourselves. We, too, need to be seen to be operating lawful pedlars. We are informed that under the Services Regulation fairly. they will not require a Certificate. Implementation of the Regulations will immediately criminalise them under the Local Government Rightly or wrongly, a figure suggested to me is that (Miscellaneous Provisions) Act 1982 for not having legal authority only 10 per cent of businesses—particularly, perhaps, (Pedlars Certificate) to carry out their activities”. small businesses—are aware of this opportunity. Can I do not know where this matter rests. I understand the Minister assure me that awareness of the opportunity that I cannot press it to a Division today but, when we will be increased and widespread? It is suggested that come to approve these regulations in the Chamber, I only 10 per cent of businesses will be aware of it, so very much hope that the matter will have been settled will the Minister consider at least how we can ensure between the department and its newly discovered friends, that within this country those who are able to take the the pedlars’ representatives. I hope that we shall know opportunities will be aware of them and thereby be that this section does not harm pedlars or, if it does, able to engage in them? that the Government will say at that point what steps they intend to take to rectify the harm caused by their own omissions. If we do not get that assurance when Lord Lucas: My Lords, I start by declaring an we come to approve the regulations in the Chamber, I interest. I run a business, publishing the Good Schools shall certainly press the matter to a Division. Guide, which is likely to be affected by this directive. I agree with my noble friend Lord De Mauley that it is important that businesses be told about this directive, 3pm and I note from the Explanatory Memorandum that Lord Young of Norwood Green: My Lords, I thank some desultory contacts have been made with the all those who have contributed to this fascinating but major organisations. To get to the wide range of somewhat complex and technical debate. I cannot service providers, much more is needed. I suggest that guarantee that I shall answer every question precisely it might go out with people’s VAT returns, for example. but I will ensure that, if I do not do so today orally, I A VAT return is an official document to which you can will cover every point in writing. I think that the noble fairly well guarantee people will pay attention. It is a Lord, Lord De Mauley, will agree that he posed a common method of communication on taxation and significant number of questions. However, with the other matters. Certainly, the efforts made to date have assistance of those sitting behind me, I shall do my not reached me in any form, and I hope that in the best. coming months I shall hear something from the I was asked whether other countries’ points of Government. single contact will be ready by the deadline of 28 My particular interest is in Regulation 45, which December. We know that plans for PSCs are well concerns street trading and its application to pedlars. advanced in some other member states, including key Over the past few days there has been considerable UK markets such as Spain, the Netherlands and parts correspondence between the secretary of the Merits of Germany. Some other states appear less advanced Committee and the department, for which I am grateful. according to the Commission. However, all EEA states One part of that reads as follows: are committed to introducing a PSC and the UK will continue to work to encourage progress. “There are no organisations which represent the interest of pedlars, however, BIS is shortly to consult on the future of pedlar I was asked whether other points of single contact legislation”. would include English as a language. Some countries—for That means both that this is the department responsible example, the Netherlands and Denmark—made a for pedlars and that it does not know what the pedlar commitment to provide material in English, but not organisations are. A moment’s consideration of all the all countries have done so at this stage. legislation that has passed through this House and the Another question was whether the UK has been other place over the past three years, started by a working with other Governments on the development whole procession of local authorities, would have enabled of the points of single contact? We have actively the department to know exactly who the pedlar participated in Commission-led implementation working organisations were, who represented them and who groups and in a number of bilaterals, and we co-sponsored worked for them. I have calmed down now but it made two EU-wide events for PSC experts and advisers me astonishingly angry that the department either across Europe in November 2008 and in 2009. should have been so careless of the needs of those for I was asked about implementation in other member whom it is legislating or was telling an out and out lie. states and mutual evaluation. All member states are I find it difficult to know which of those it was. It is working to the same implementation date, making astonishing: how can you say that you are in charge of legislation in accordance with their own parliamentary pedlars and not know what has been happening in procedures. As I said, plans for the points of single Parliament over the past three years and therefore contact are well advanced in some other member know exactly who to approach? As I hope the department states, including key UK markets such as Spain, the has found out over the past couple of days, the pedlars Netherlands and parts of Germany. In some others, are well organised, they have a well established, arrangements will take a little longer. The UK will representative system and they are quite capable of continue to work to support implementation at the reacting to legislation. European level. GC 49 Provision of Services Regulations 2009[LORDS] Provision of Services Regulations 2009 GC 50

[LORD YOUNG OF NORWOOD GREEN] The question arose of why the definition of a I was asked what we are doing to ensure that other “regulated profession” differs from that of the EU member states implement effectively. In terms of direct professional qualifications directive. Regulation 4 is interaction with other member states, the UK has consistent with how the UK has transposed the played a leading role in developing effective points of Professional Qualifications Directive 2005/36/EC. There single contact, and early in the implementation process is a distinction between the two categories of professional we encouraged other member states to develop PSCs bodies as reflected in the directive, and Regulation 4 which cater for business needs. We organised two makes this distinction clearer. events for PSC experts to share best practice, co-funded The requirement to pay for an application online the development of a common branding for PSCs was described as a stealth tax, but that is not the case. across Europe—the EUGO brand—and provided a Many applications already need to be accompanied by website. Lastly, we have pushed other member states a fee. It would be less helpful to businesses if they to consider promoting PSCs both nationally and across could apply electronically but then had to post the fee. Europe. We continue to stress the importance of the full implementation of the services directive in other I was asked why the drafting of vexatious complaints member states in meetings at EU level. In the six does not include those which are frivolous or totally months after implementation, the first half of 2010, without merit. Regulation 12(2) states: member states and the Commission will evaluate how “Paragraph (1)(b) does not apply to complaints that are far barriers to the setting up or carrying on of the vexatious”. business have been reduced, and a consistent approach That is, service providers do not have to find a satisfactory is encouraged across the EEA. The UK is working solution to complaints that are vexatious, although with her European counterparts to ensure that the they do have to respond to them. The term “vexatious process is transparent and effective, while the Commission complaints” covers frivolous complaints, so we thought will report the outcome of mutual evaluation to the there was no need to provide further wording in the European Parliament and Council. drafting. We have set out clearly in the guidance that vexatious complaints may include complaints that are The noble Lord, Lord De Mauley, asked why the unsubstantiated or malicious. information provisions are being extended to non-EEA I was asked about the role of Scottish Ministers in providers. By applying the information provisions to relation to the provision of a point of single contact. all those providing a service in the UK, we are aiming The Secretary of State and the Commissioners for to ensure a high quality of services for consumers and, Revenue and Customs must jointly provide a facility in particular, to ensure that they have access to a which will become the point of single contact. I am minimum amount of information about the complaints not clear about their role, so I shall cover it in writing procedure whomever they buy services from. We also as well; my apologies for that. What is the role of want to avoid creating parallel regimes for service devolved Administrations in the obligation in Part 7 providers depending on where they are established. for information to be provided to the Secretary of State by competent authorities? The obligation under On the question of conflict, when requirements on Regulations 36 and 38 relate only to the Secretary of competent authorities do not apply, Article 3 of the State. The interpretation provision does not make services directive concerns the relationship with the reference to Scottish Ministers. In line with their provisions of other Community law. We have not equivalents in Northern Ireland and Wales, Scottish copied out the wording from Article 3 in our regulations Ministers have agreed to have a single UK point of as it does not provide sufficient legal certainty, not contact. It is therefore sufficient that the information least because the term “conflict”is open to interpretation. specified is provided to the Secretary of State. Regulation 6 has been drafted so as to transpose our understanding of a conflict in order to provide legal The noble Lord, Lord Lucas, raised the question of certainty. Our understanding is that a conflict will pedlars. The provisions were included in the draft occur whenever a requirement in the services directive regulations which my department made available for and a requirement in another Community instrument comment in May and June. My department notified contradict each other to the extent that it is impossible the pedlar community of the proposals on the day that to comply with both. This interpretation is consistent the draft regulations were published. Although some with guidance on the implementation of the services interest was generated and some questions were raised, directive published by the European Commission, and no changes to the provisions were requested. My it is a principle of Community law that exceptions in department will shortly consult on the future of pedlar Community legislation must be strictly construed. legislation. The possibility of introducing a replacement Regulation 6 therefore requires a competent authority scheme for pedlars solely of services which would be to do whatever is necessary to comply with the compliant with the services directive is addressed in requirements in Parts 2 to 6 of the provision of services that document. However, although it is difficult to regulations and a requirement derived from another ascertain, we believe there are very few pedlars solely Community instrument. It will often be possible to of services and, as this regulation lifts a requirement comply with both requirements by taking a single on them, it seems unlikely that a replacement scheme action, such as complying with the stricter of the two is likely to attract much support. requirements in order to ensure compliance with both. On the possibility of criminalisation, we would say However, if it is not possible to comply with both, the absolutely not. The regulations will ensure that pedlars requirement deriving from the other Community who trade solely in services will no longer have to instrument will prevail. apply for a pedlars certificate. Street trader licences GC 51 Provision of Services Regulations 2009[29 OCTOBER 2009] Provision of Services Regulations 2009 GC 52 apply to traders in articles; for example, traders in in their sector press, some of which has a readership of markets or fixed pitches. The regulations will not tens of thousands. We have published detailed guidance require pedlars of services to comply with the street on the regulations for business, available on the BIS trading regime. website. We appreciate that there is a need for shorter The regulations propose to amend the Pedlars Act guidance for small businesses. We have distributed 1871 by removing the requirement for pedlars solely of flyers which summarise what the directive means for services to be certified. The services directive requires business, and the FSB has asked us to work with it to EU states to remove any authorisation schemes which help produce its own short, snappy guidance for small cannot be justified as non-discriminatory, proportionate businesses. We will continue to deliver messages about and necessary on carefully defined grounds such as the benefits to business as much as possible over the public safety and public security. In the Government’s coming months through speeches, events and media view, the pedlar certification scheme amounts to an articles. authorisation scheme, which cannot easily be justified I think that we ought to take away the idea about on these criteria. The changes will affect only a very VAT. I do not feel capable of responding yea or nay to restricted class of trader: pedlars who trade solely in that. However, we will take it away and respond in services. The majority of pedlars in the UK who trade writing to the noble Lord, Lord Lucas. in goods will remain unaffected by the changes. I doubt that I have covered every question, certainly I hope that I have satisfied most of the concerns of not all those raised by the noble Lord, Lord De the noble Lord, Lord Lucas. If he has any further Mauley, but we will respond in writing. We will carefully concerns, no doubt he would be happy to address scrutinise Hansard so that we respond to the right them in writing and we would try to respond further. things. Noble Lords asked what the Government are doing I thank noble Lords for giving their time to the to ensure that businesses are aware of the benefits and consideration of this draft instrument. I apologise for obligations in the regulations. We are carrying out a the length of my reply, but I emphasise the benefits major communications drive to raise general awareness and opportunities that these regulations will bring to of the directive among businesses. It is of the utmost businesses in the UK. I hope that they will go some importance that we tell them about the benefits that way to help to boost the UK economy at a time when will be available to them. If they are not aware, the that is greatly needed. I commend the regulations to resulting benefits will not accrue to the UK economy. the Committee. Our communications work involves a range of different channels. They include: attendance and presentations Lord Lucas: Do I get a chance to reply briefly? I am at conferences and business events; distributing messages in your hands, Madam Chairman. via business organisations and trade associations; media features; and website and electronic communications. The Deputy Chairman of Committees (Baroness We are working closely with all the usual suspects; that McIntosh of Hudnall): The noble Lord does not have is, the Federation of Small Businesses, the CBI and the further right of reply. British Chambers of Commerce—we are thankful for their continued support and efforts. In September, we Lord Lucas: I shall speak when the regulations are emailed information packs to around 3,000 small dealt with in the Chamber. businesses and a wide range of service providers via Motion agreed. trade associations. We have specifically targeted 145 relevant trade associations and started to place articles Committee adjourned at 3.16 pm.

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report to the Secretary of State. The annual report of Written Statements the Chief Electoral Officer for Northern Ireland for the year 2008-09 has been laid before Parliament Thursday 29 October 2009 today. Copies are available in the Library.

Armed Forces Act 2006 Discretionary Social Fund Statement Statement

The Minister for International Defence and Security The Parliamentary Under-Secretary of State, (Baroness Taylor of Bolton): My honourable friend the Department for Communities and Local Government & Parliamentary Under-Secretary of State for Defence Department for Work and Pensions (Lord McKenzie of and Minister for Veterans (Kevan Jones) has made the Luton): My honourable friend the Parliamentary Under following Written Ministerial Statement. Secretary of State for Work and Pensions (Helen I am pleased to announce that implementation of Goodman) has made the following Written Ministerial the Armed Forces Act 2006 will be completed and the Statement. Act will come into force on 31 October. The legislation The Secretary of State will be making changes establishes for the first time a single system of service to the discretionary Social Fund, with effect from law across the Armed Forces. It preserves the important 30 October 2009. principle of a separate service justice system, reflecting the particular circumstances of the Armed Forces, The change introduces the requirement for most and keeps the commanding officer at the heart of customers to be interviewed at a local Jobcentre Plus service discipline. It also promotes greater fairness, office when they make a third or subsequent application which in turn supports operational effectiveness. for a crisis loan to cover living expenses. The new single, harmonised and modernised system During such an interview customers will be provided of service law will apply to the personnel of all three with a leaflet that contains details of local and national services at all times, wherever in the world they are organisations that can provide money management serving. It will also apply to some civilians, but only advice. The leaflet has been placed in the Libraries of overseas and in specified circumstances. both Houses of Parliament and copies are also available in the Vote Office. When the new legislation comes into force, a number of Acts of Parliament will be repealed, including the current Service Discipline Acts (the Army Act 1955, EU: Justice and Home Affairs Council the Air Force Act 1955 and the Naval Discipline Act Statement 1957). The Armed Forces Act 2006 was the largest and The Parliamentary Under-Secretary of State, Ministry arguably the most significant piece of legislation the of Justice (Lord Bach): The Justice and Home Affairs Ministry of Defence has ever put before Parliament. (JHA) Council was held in Luxembourg on 23 October Its implementation has been a lengthy and complex 2009. My honourable friend the Parliamentary Under- process, but the new single system of service law that it Secretary of State for Home Affairs (Meg Hillier), the has established will serve the Armed Forces well for Scottish Minister for Community Safety (Fergus Ewing), many years to come. and I attended on behalf of the United Kingdom. The Guidance on the new service justice system is provided following issues were discussed at the council. in the Manual of Service Law, which is now available The council began in Mixed Committee with non-EU on the Armed Forces Act 2006 website at the following Schengen states, receiving an update from the presidency link: http://www.mod.uk. I will also arrange for a copy on arrangements for the first milestone test for the to be placed in the Library of the House. second generation Schengen information system (SIS II). The UK stressed that the test should take place by the end of this year in line with the June Chief Electoral Officer for Northern council conclusions. The UK also stated that it was Ireland: Annual Report important to distinguish between a delayed and a Statement failed test and that it would not accept a decision on the future of SIS II unless a test had failed. Baroness Royall of Blaisdon: My right honourable Next, the presidency presented an update on the friend the Secretary of State for Northern Ireland current state of play on the implementation of the (Shaun Woodward) has made the following Ministerial regulation establishing the visa information system Statement. (VIS), where technical problems would delay the launch. The Chief Electoral Officer for Northern Ireland is The UK does not participate in that regulation. responsible for all aspects of electoral administration Following Mixed Committee, the presidency invited in Northern Ireland, including the conduct of all the Commission to provide a summary of the fifth elections and referendums, as well as electoral registration. annual visa reciprocity report. While the UK does not Section 14 of the Electoral Law Act (Northern Ireland) participate in the EU visa regime, we do maintain an 1962—as amended by Section 9 of the Northern Ireland interest in all visa issues, notably for full reciprocity (Miscellaneous Provisions) Act 2006—provides that with third country nationals. The council then exchanged the Chief Electoral Officer must submit an annual views on the Canadian decision to impose visas on WS 109 Written Statements[LORDS] Written Statements WS 110

Czech nationals. The UK believes the Commission The presidency welcomed the broad support for the should continue to engage with the Canadians to text and concluded that formal agreement would be broker a solution. reached in November. The council reached agreement on the draft framework Under any other business, the Commission presented decision on accreditation of forensic laboratory activities, its proposal on succession and wills, stating that its which aims to increase mutual trust in DNA and ambition was to make the lives of citizens easier. The fingerprint data exchanged between member states by presidency noted that there would be plenty of requiring a minimum standard of accreditation. The opportunity for discussion in the future. presidency hoped that the framework decision would be formally adopted at the November JHA Council. The council then reached a general approach on the Global Entrepreneurship Week proposal for a council decision to establish the European Statement crime prevention network. This instrument will strengthen the network’s ability to identify, exchange and disseminate crime prevention information and actions targeted at The Minister for Trade and Investment (Lord Davies traditional or volume crime. Following receipt of the of Abersoch): This year, GEW runs from 16 to European Parliament’s opinion on the proposal, the 22 November. This is the UK’s second GEW an decision will come back to the council on 30 November initiative inspired by BIS and co-founded with the for formal adoption. Kauffman Foundation in the USA. There will be more Under any other business the Commission presented than 80 countries taking part in this years entertaining its review of visa facilitation in the western Balkans. and stimulating week. The UK does not participate in the part of the Schengen Highlighting the importance of entrepreneurship is acquis that covers visa liberalisation, and will not be crucial for the future aspirations of millions of young lifting visit visa requirements for western Balkan states people and the economic future of the UK. Entrepreneurs when the Schengen zone liberalises its own requirements. innovate, create jobs, increase economic growth and The UK remains a strong supporter of the EU therefore help ensure a nation’s competitiveness. They enlargement process and the aspirations of west Balkan spot opportunities, take risks, have ideas and make states for eventual EU membership. them happen. Over lunch Home Affairs Ministers discussed proposals GEW will help budding British entrepreneurs; by for the new European asylum office. There was a clear accessing international networks they will be able to desire to move quickly. The UK has not yet decided brainstorm new ideas, enter new markets and find new which country to support to host this office. resources. It will encourage the UK’s young people to In the afternoon, Justice Ministers adopted a council become entrepreneurs, through interactive events that resolution on a road map for strengthening procedural engage those who would not otherwise have considered rights of suspected or accused persons in criminal enterprise. And by connecting British youth with young proceedings. The UK supported this pragmatic approach people abroad, it should increase the level of cultural and the focus on practical measures as well as legislation. understanding in the UK. Justice Ministers also reached a general approach on a It is not just about entrepreneurs and business draft framework decision and an accompanying draft start-ups, the week will also encourage organisations resolution on the right to interpretation and translation across the globe to celebrate and recognise the wealth in criminal proceedings. The UK congratulated the of talent that is evident in every business and to presidency on reaching agreement on this measure encourage their employees to start thinking about which will make a real difference to the lives of citizens. ideas that have a very clear and tangible business The presidency updated Justice Ministers on the benefit. progress that has been made at official level on the Last year, GEW was an enormous success and proposed framework decision on transfer of proceedings generated community interest in entrepreneurship; 644,000 in criminal matters. The UK stated that its support of people attended the 6,363 events. The single largest this measure would depend on amendments being activity was the make your mark challenge which made to the proposal, particularly provisions relating involved 56,000 students from schools and colleges. to jurisdiction. Around the world there were at least 25,000 events The presidency provided an update on negotiations across 77 countries. and sought views with the aim of resolving outstanding This year there are 82 countries involved as GEW issues on the framework decision on preventing and gains momentum globally. We hope to make the week combating trafficking in human beings and protecting a success and inspire people across the world. victims. The Commission stressed the importance of going further than the Council of Europe convention and welcomed the global approach to combating trafficking. It appealed, however, for higher levels of Health: Adult Social Care penalties and for greater assistance for victims. The Statement UK supported the presidency compromise and, despite the UK having very limited extraterritorial jurisdiction, said that it had taken the decision to extend jurisdiction Baroness Thornton: My right honourable friend the to cover UK nationals who commit trafficking offences Minister of State, Department of Health (Mike O’Brien) abroad given the seriousness of the offences involved. has made the following Written Ministerial Statement. WS 111 Written Statements[29 OCTOBER 2009] Written Statements WS 112

Today I am publishing a consultation response, Local Services (Operation by Licensed which is the latest stage in the development of the new Hire Cars) Regulations 2009 system we are introducing for the regulation of health and adult social care. Statement The publication, Response to Consultation on the Draft Regulations for the Framework for the Registration The Secretary of State for Transport (Lord Adonis): of Health and Adult Social Care Providers sets out our My right honourable friend the Minister of State for response to our previous consultation on the draft Transport (Sadiq Khan) has made the following regulations that will govern the new registration system1. Ministerial Statement. It describes how the wording of the draft regulations The Secretary of State for Transport has today laid we have today laid before Parliament has changed regulations under the Local Transport Act 2008 which since the consultation process. It also details changes will allow the owners of private hire vehicles (PHVs) in the policy for a further set of regulations, which we to use their vehicles to provide local bus services. intend to lay later this autumn. The regulations will come into force on 27 November The draft regulations, to be made under the powers 2009. provided for in the Health and Social Care Act 2008, Section 53 of the 2008 Act allows the holder of a set out the detail of the new registration framework to PHV licence to acquire a special public service vehicle be operated by the Care Quality Commission. This, (PSV) licence from the Traffic Commissioner and to subject to approval by Parliament, will be introduced register a local bus service using a licensed PHV. for the NHS in April 2010 and for private and voluntary healthcare and adult social care from October 2010. It is likely that this new opportunity will be of particular benefit to those in rural areas where it Earlier this year, Parliament approved regulations might not be cost-effective for bus operators to run made under these powers to regulate NHS providers services using larger buses. against a requirement about cleanliness and infection The regulations apply in England (outside London), control. Since 1 April this year, NHS providers have Wales and Scotland. Transport for London is responsible been required to register with the Care Quality for making any regulations governing PHV-buses in Commission and comply with the requirement on London. cleanliness and infection control. The ability to run bus services has been available to These draft regulations laid today set out who the owners of licensed taxis since 1986. needs to register with the Care Quality Commission (scope of registration) and what they need to do to A summary of the responses received to the register and remain registered (registration requirements). consultation exercise on the draft regulations, which was launched on 17 December 2008, has been placed The new approach will mean that patients and in the Libraries of the House. people using services will have the same level of assurance of the quality and safety of their care and treatment, whether it is being provided by the NHS, local government, London Underground private or third sectors Statement The registration requirements are designed to address the concerns of people using health and adult social care services, covering the topics on which they want The Secretary of State for Transport (Lord Adonis): assurance. They provide clarity about the essential The ex-Metronet investment programme covers the levels of safety and quality all providers must deliver upgrade, maintenance and renewal of infrastructure for people who use their services, without being prescriptive on the Bakerloo, Central, Victoria, Waterloo and City about how providers run their services. and the sub-surface (Metropolitan, Circle, District, Hammersmith and City) lines. It will deliver nearly 30 The registration system will operate alongside a per cent more capacity across the network, improving wider quality improvement framework that encourages journey times and reliability. not just good care, but excellent care. The commission will have a role in contributing to ongoing quality Following the administration of Metronet in July improvement as part of the wider quality framework, 2007, its assets and obligations were transferred to particularly through its publication of comparable Transport for London in May 2008 as an interim information in periodic reviews, and its power to measure. The former mayor and Secretary of State for conduct special reviews into areas of particular interest. Transport tasked a Joint Steering Committee consisting of Transport for London (TfL) including London This publication will be of interest to anyone providing Underground Limited (LUL), the Department for or working in health and adult social care, and to Transport and HM Treasury with considering a range patients and people using services, who are interested of options for the permanent structure of the Metronet in how the reforms are going to improve these services. contracts, with the objective of providing a stable and Today’s publication has been placed in the Library safe operational framework and delivering the and copies are available to honourable members from modernisation, upgrade and maintenance of the tube the Vote Office. infrastructure at an affordable price that offered value Note: for money for the taxpayer. 1. Response to consultation on the framework for the registration The mayor and I have accepted the committee’s of health and adult social care providers and consultation on draft recommendations that the contracts inherited from regulations Metronet should remain under the direct management WS 113 Written Statements[LORDS] Written Statements WS 114 of LUL as the best value option under the present of the upgrade, maintenance and renewal work previously circumstances, with the majority of upgrades already the responsibility of Metronet. underway. Some of these contracts have since been Tube lines will remain responsible for the upgrade, renegotiated to secure more favourable terms for LUL. maintenance and renewal of infrastructure on the Future contracts will be procured directly by LUL, Jubilee, Northern and Piccadilly lines under its PPP, including robust performance incentives and transferring with independent scrutiny provided by the PPP arbiter. risk where appropriate. LUL will remain responsible for all asset management decisions, but there will continue to be substantial private sector involvement Mental Health: Criminal Justice through the contracts managed by LUL. A decision Statement on the most appropriate contracting arrangement for the Bakerloo line upgrade (which has not yet started) Baroness Thornton: My honourable friend the Minister will be taken nearer the time, reflecting lessons learnt of State, Department of Health (Phil Hope) has made from the earlier upgrades. the following Written Ministerial Statement. LUL is investing in its management and organisational On 30 April, my right honourable friend the Minister capacity and capability in order to meet this new of State, Ministry of Justice (David Hanson), announced challenge. Organisational restructuring within LUL the Government’s response to my right honourable has also created a clearer separation of client and and noble friend Lord Bradley’s review of people with delivery functions, with a defined sponsor for each mental health problems or learning disabilities in the project. criminal justice system. The Government accepted the Underpinning these new arrangements and responding direction of travel set out by Lord Bradley, and committed to the increased size of TfL’s investment programme to developing a national delivery plan incorporating a are new scrutiny measures at Transport for London. full response to the report’s recommendations. The mayor will establish an independent advisory panel with remit extending across the entirety of the The Government stated that they would report to TfL investment programme, including all maintenance, Parliament on the progress achieved by the end of renewal, upgrades and major projects across the modes, October 2009. but not operations. The Government are pleased to report that since Members of the new panel will be appointed by the the publication of Lord Bradley’s review, a cross- mayor from a shortlist agreed with me. The mayor and departmental Health and Criminal Justice National I will also agree the panel’s terms of reference. The Programme Board, chaired by David Behan (director- panel will report to the TfL board and the mayor as its general for social care, local government and care chair. The members of the panel will have experience partnerships in the Department of Health), has been in a range of disciplines including engineering, finance established to consider Lord Bradley’s recommendations and project management, ensuring that as a whole the in detail and to develop a national delivery plan. panel will be able to offer expert advice, opinion and “Improving Health, Supporting Justice”—the delivery challenge on all aspects of TfL’s investment programme, plan of the Health and Criminal Justice Programme including the ex-Metronet works. Board—will be published in November and we will make a further Written Ministerial Statement about The panel will be able to review all aspects of this on the day of publication. project delivery including cost and programme deliverability.It will also review delivery of the investment The Government also accepted Lord Bradley’s programme at a portfolio level, including management recommendation for a national advisory group to be and organisational capability and the efficiency, established to help ensure wider involvement from effectiveness and economy of delivery of the investment interested organisations. I am pleased to announce programme. The panel will report its findings directly today that Keith Pearson, who is currently chair of to the TfL board, which will also receive a TfL NHS East of England, has been appointed as the management response setting out how the issues raised chair of the national advisory group. have been or will be dealt with. The panel will commission other reports as it or the TfL board consider appropriate. National Probation Service It will publish an annual report making overall conclusions Statement on the delivery of the investment programme. Copies of all reports will be provided to me, in view of Government’s significant contribution to the investment The Parliamentary Under-Secretary of State, Ministry programme through the GLA transport grant which of Justice (Lord Bach): My right honourable friend the accounts for just under 40 per cent of TfL’s total Lord Chancellor and Secretary of State for Justice has income. made the following Written Ministerial Statement. These new arrangements build on the work of LUL The indicative budget for 2010-11, communicated during the interim period and will offer the stability to probation chiefs in February 2009 was £844 million, and certainty LUL need to deliver the investment compared with a budget of £ 894 million in 2009-10. programme inherited from Metronet and with it the This would have been a 5.6 per cent reduction year on improvements so critical to growth and prosperity in year. London. In the light of strong representations I have received These arrangements are in accordance with the from the probation service and from the probation existing framework of devolution of powers to the unions, and my particular concern about employment mayor, who now bears full responsibility for delivery prospects for recently-qualified probation officers, I WS 115 Written Statements[29 OCTOBER 2009] Written Statements WS 116 can announce today that the confirmed 2010-11 allocation Zimbabwe will be £870 million, £26 million more than the original Statement indicative budget. This equates to a reduction of 2.68 per cent year on year. This is consistent with the savings expected across the public service. The Parliamentary Under-Secretary of State, Home In this economic climate the probation service along Office (Lord West of Spithead): My honourable friend with all public services has to achieve efficiency savings. the Minister of State for Borders and Immigration Probation boards and trusts have been required to (Phil Woolas) has today made the following Written review their structures, overheads, support services Ministerial Statement. and efficiency levels. This funding will enable probation boards/trusts to review their staffing plans for 2010-11 I am announcing today our intention to make which will benefit both the September 2009 graduates changes over time to our returns policy to Zimbabwe, and the 305 trainee probation officers due to graduate recognising the different categories of people currently in September 2010. living in the UK. This reflects developments in Zimbabwe The additional funding will be targeted to increase following the formation of the inclusive Government confidence in community penalties and divert low risk led by Prime Minister Tsvangirai. offenders from short-term custody. Directors of offender As Prime Minister Tsvangirai has set out, including management will be required to negotiate specific during his visit to the UK in June, there have been service improvements with individual boards/trusts some positive changes in the situation in Zimbabwe which will be incorporated in SLAs/contracts for 2010-11 over the past six months. While a great deal remains to to ensure that this additional funding is targeted on be done to institute the political and other reforms set front-line delivery. Detailed work will be undertaken out in the global political agreement, the indiscriminate by directors of offender management with areas/trusts violence which marred the elections of 2008 has abated. to agree additional service delivery requirements and And the formation of the inclusive Government has finalise individual allocations. led to improvements in the economy, schools and the The total case load of offenders being supervised availability of basic commodities. In response to this by the probation service rose by 53 per cent between changed situation some Zimbabweans in the UK are 31 December 1997 and 31 December 2008 (from 159,200 considering returning home to help rebuild their country. to 243,400). This compares to an overall rise in the I consider we should be doing more to help them. probation service budget of 70 per cent in real terms On 1 February we announced enhancements to the between 1997 and 2007. assisted voluntary return (AVR) package for The total offender case load has remained stable in Zimbabweans. AVRpackages are available for individuals recent years. At 31 December 2007 there were 242,700 of all nationalities who are within the asylum system. offenders being supervised, compared to 243,400 at The standard package provides support to help them 31 December 2008 and 244,300 at 31 March 2009. reintegrate into their home country, including £4,000 The overriding priority for the probation service is for vocational training, assistance in setting up a business public protection which will not be put at risk. Probation and a flight home. Since February the package for areas are looking to make any required savings through Zimbabweans has been supplemented with an extra back office and management rationalisation and £2,000 of reintegration assistance. This includes an improvements in efficiency and processes, protecting additional £500 cash on departure, an extra £1,000 “in front-line delivery. kind” assistance for business set-up, a £500 basic subsistence package and cholera prevention kits. Taxation: Corporation Tax We are today changing the way we deliver our Statement supplementary package for Zimbabweans such that the total value remains the same but, instead of providing The Financial Services Secretary to the Treasury the assistance in kind, cash payments will now be (Lord Myners): My right honourable friend the Financial phased in over a six-month period through the IOM Secretary to the Treasury (Stephen Timms) has made office in Harare. Making cash available to those who the following Written Ministerial Statement. go home will support economic reform in Zimbabwe— As part of the update provided by Budget 2009 on enabling people to return voluntarily and use their the Government’s tax simplification reviews, the skills to support change and help rebuild Zimbabwe Government committed to consult on further with capital behind them. The scheme will also be simplification of the associated company rules. extended until 31 December and will be reviewed at I am today publishing a consultation document to that point. fulfil that commitment. The consultation seeks Alongside these changes to our voluntary returns stakeholders’ views on a proposal to reform the associated package we have also considered carefully our position company rules as they apply to the small companies’ on enforced returns to Zimbabwe. We have kept this rate of corporation tax. The proposed reform aims to issue under review since the Home Office first deferred benefit businesses by providing a more targeted test to enforced returns to Zimbabwe in September 2006 and establish those companies whose profits should be the courts have found that not all Zimbabweans are in considered collectively in establishing the rate of need of international protection. The UK Border corporation tax that applies to them. Further details Agency will therefore be starting work over the autumn can be found in the consultation document, copies of on a process aimed at normalising our returns policy which have been deposited in the Libraries of the to Zimbabwe, moving towards resuming enforced returns House and are available on HM Treasury’s website. progressively as and when the political situation develops. WS 117 Written Statements[LORDS] Written Statements WS 118

The agency takes its obligations under the 1951 of protection to return home. We prefer these individuals Refugee Convention seriously. We will continue to to return voluntarily and the enhancements to the consider each case on its individual merits and where AVR scheme will support this, but where they choose someone needs protection it will be granted. However, not to do so we are bound to take steps, over time, to we have always expected those found not to be in need enforce the law. WA 171 Written Answers[29 OCTOBER 2009] Written Answers WA 172

against bluetongue serotype 8 (BTV8). Bluetongue- Written Answers susceptible animals imported into the UK, including alpacas and llamas, will be tested for BTV8 on arrival. Thursday 29 October 2009 Asked by Baroness Byford Air Quality To ask Her Majesty’s Government whether they pay compensation for bovine tuberculosis to owners Question of alpacas and llamas; or whether such payments Asked by Lord Berkeley are decided locally in England. [HL5932] To ask Her Majesty’s Government why they Lord Davies of Oldham: Once testing and slaughter have not responded by legally required deadlines to protocols have been agreed with the owner, Defra’s the request and subsequent appeal by the Campaign approach is to provide compensation of £750 for each for Clean Air in London in relation to information TB-affected alpaca and/or llama required to be slaughtered relating to a meeting that took place on 22 January for disease control purposes. 2009 between Lord Hunt of Kings Heath and the Mayor of London, Boris Johnson, on air quality Asked by Baroness Byford matters. [HL5813] To ask Her Majesty’s Government which anatomical part of llamas and alpacas is used for The Parliamentary Under-Secretary of State, testing for bovine tuberculosis. [HL5933] Department for Environment, Food and Rural Affairs (Lord Davies of Oldham): The Government always strive to meet the 20 working day deadline for responding Lord Davies of Oldham: The preferred anatomical to requests made under the environmental information part for TB testing in llamas and alpacas (camelids) is regulations (EIRs). However, we very much regret that the neck at the base of the cervical area about level in this case we were unable to meet the deadline at with the animal’s back (cranial scapular). The auxiliary, either the initial request or internal review stage. This behind the front leg, is also acceptable. The fibre is was because the request from the Campaign for Clean shaved off so the test site is easily seen. Air in London involved some detailed and careful consideration about the application or otherwise of certain of the exceptions in the EIRs, the consequent Armed Forces Day: Northern Ireland balance of the public interest arguments around the disclosure of advice to ministers as well as consultation Question with third parties about information relating to them. Asked by Lord Laird To ask Her Majesty’s Government what funding Alpacas and Llamas was provided by the Ministry of Defence for the Questions Armed Forces Day in Carrickfergus. [HL5986] Asked by Baroness Byford The Minister for International Defence and Security To ask Her Majesty’s Government what measures (Baroness Taylor of Bolton): The MoD provided are in place regarding the health of alpacas and £10,000 of funding to the Armed Forces Day event in llamas in England. [HL5931] Carrickfergus.

The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs Common Agricultural Policy: Single Farm (Lord Davies of Oldham): The Animal Health and Payment Welfare Strategy for Great Britain, launched in June 2004, continues to direct the Government and others Questions in their work to bring about long-term improvements Asked by Baroness Byford to the well-being of England’s kept animals, including camelids (alpacas and llamas). To ask Her Majesty’s Government how many Suspicion of a notifiable exotic animal disease in farmers receiving the single farm payment were camelids is notifiable to Animal Health. Defra has a wrongly paid in each year from 2005 to 2008; and scanning surveillance program in place to measure how many farmers have outstanding claims for notifiable diseases. those years. [HL5739] Through Defra’s surveillance programmes, the Veterinary Laboratory Agency has identified Johne’s The Parliamentary Under-Secretary of State, disease and Bovine Viral Diarrhoea in llamas and Department for Environment, Food and Rural Affairs alpacas and is undertaking research to better understand (Lord Davies of Oldham): The number of farmers diseases in these species. whose single payment scheme claims we currently The camelid sector in the UK has acted in a largely identify as needing adjustment post-payment is set out responsible manner in proactively vaccinating its animals below: WA 173 Written Answers[LORDS] Written Answers WA 174

Lord Myners: In devolved areas of spending it is up Scheme Year Number of farmers* to the devolved Administrations to assess the financial 2005 26,296 and environmental considerations of devolved spending 2006 15,494 projects. 2007 7,661 2008 1,485 * It should be noted that some farmers may be included Italy: Antiquities against more than one year. Question Asked by Lord Renfrew of Kaimsthorn The number of farmers who have received no single payment scheme payment to date from a valid claim To ask Her Majesty’s Government what requests is: have been received from the Italian legal authorities for assistance in returning to Italy antiquities allegedly Scheme Year Number of farmers* exported illegally, formerly in the possession of 2005 3 Mr Robin Symes; and what response has been 2006 8 offered. [HL5821] 2007 44 2008 114 The Parliamentary Under-Secretary of State, Home Some farmers may be included against more than one year, as Office (Lord West of Spithead): The UK can receive above. requests for assistance to return antiquities that have been allegedly illegally exported, through a number of The majority of these relate to probate issues. routes including: the EU Council Directive 93/7/EC 1993 and the Asked by Baroness Byford European Communities (Return of Cultural Objects) Regulations 1994, which set out procedures for To ask Her Majesty’s Government how much mutual assistance between EU member states for money has been recovered from overpayments of the return of cultural objects unlawfully removed the single farm payment in each year 2005 to 2008. from the territory of an EU member state. Such [HL5742] requests are handled by the Department for Culture, Media and Sport (DCMS). The DCMS has received Lord Davies of Oldham: The amount of money no requests for assistance from the Italian authorities recovered from single payment scheme overpayments in relation to Mr Symes under the EU Council for each year 2005 to 2008 are shown in the following Directive; and table: mutual legal assistance (MLA) in criminal matters. The Home Office UK Central Authority (UKCA) Year Amount Recovered handles requests for mutual legal assistance where 2005 £19.1 million the assistance required is for use in an ongoing 2006 £13.7 million criminal investigation or for use in criminal 2007 £4.5 million proceedings. The UK is able to provide a wide 2008 £0.08 million range of assistance under the provisions of the Crime (International Co-operation) Act 2003 and the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005. Devolved Administrations It is the normal policy of the Home Office to Questions neither confirm nor deny the receipt of MLA requests Asked by Lord Laird so as not to prejudice ongoing criminal investigations or criminal proceedings. To ask Her Majesty’s Government whether they have funded, or intend to fund, major capital projects for the devolved Administrations which are opposed Morocco: Fisheries Agreements to its policy on the environment. [HL5837] Question Asked by Lord Avebury The Financial Services Secretary to the Treasury (Lord Myners): Major capital projects in devolved To ask Her Majesty’s Government on what terms areas of policy are for the devolved Administrations they consider the fisheries agreement between the to fund from within their overall block budgets. United Kingdom and Morocco should be renewed. [HL5823] Asked by Lord Laird To ask Her Majesty’s Government in what The Parliamentary Under-Secretary of State, circumstances they will allow a devolved Department for Environment, Food and Rural Affairs Administration to undertake an option which is (Lord Davies of Oldham): The fisheries agreement more expensive than an option based on environmental between the EU and Morocco expires in 2011. As with considerations. [HL5839] all negotiations with third countries we will seek to WA 175 Written Answers[29 OCTOBER 2009] Written Answers WA 176 ensure that the financial compensation offered to Morocco Northern Ireland Office: Consultants in exchange for fishing opportunities is used to aid development of Morocco’s fishing industry and its Question national administration’s ability to effectively conserve Asked by Lord Laird fisheries resources. In agreeing the fishing opportunities to the EU fleet we would seek to ensure that the best To ask Her Majesty’s Government what outside available scientific advice is strictly adhered to. consultants were employed by the Northern Ireland Office from 1 September in each of the past five years; for what tasks; and at what cost. [HL5649] National DNA Database Questions Baroness Royall of Blaisdon: The Northern Ireland Office (NIO) has control mechanisms in place to Asked by Lord Jones of Cheltenham ensure that the use of external consultancy is managed appropriately. The cost of external consultancy has To ask Her Majesty’s Government what steps dropped steadily over the past four financial years they are taking to remove innocent citizens from with a 45 per cent reduction in costs over the period. the DNA database. [HL5745] Detailed information on the use of external consultants To ask Her Majesty’s Government what assessment by the NIO and its executive agencies is only available they have made of the effect on crime in Scotland of for each financial year from 2005-06 to 2008-09. The removing innocent citizens from the DNA database. following tables give a breakdown of the type of [HL5746] consultancy provided and the costs in each of the last four financial years. To ask Her Majesty’s Government what is their response to the appeal made by African Peoples NIO and Executive Agencies Financial Year 2005-06 Advocacy regarding the process for removal from the DNA database of innocent citizens from black Management and ethnic minority communities. [HL5747] CPCR Ltd £300,000 Deloitte £107,500 The Parliamentary Under-Secretary of State, Home Williamson Consulting £36,239 Office (Lord West of Spithead): We are currently Grafton Recruiting £32,000 considering the results of the public consultation exercise Jenkinson Consulting £24,000 conducted over the summer on proposals for a Parity £19,835 proportionate framework for the retention of DNA in Price Waterhouse Coopers £15,080 light of the judgment of the European Court of Human Clairteq Systems Consulting £14,252 Rights in the case of S and Marper. Penna PLC £12,866 As soon as parliamentary time allows, we will bring TTC International £11,485 forward appropriate measures which will place the OGC £10,861 detail of DNA retention periods on the face of primary Anderson Spratt £10,497 legislation, allowing full debate and scrutiny on the M.M.M.A £9,990 issue in both Houses. QUB £9,054 FSS £8,556 As far as the process of removal raised by the JBM Consultants Ltd £7,380 African Peoples Advocacy is concerned, currently only The Whitehall & Industry Group £4,000 chief police officers have the discretion to decide whether The Test Score £3,414 to remove DNA records. The guidance on the exceptional case procedure issued by the Association of Chief BBC Consultancy £2,720 Police Officers makes it clear that records and profiles Daniell Consulting £2,147 which have been taken lawfully will be removed only in Others/Individual Contracts £85,913 exceptional cases. If a person thinks their DNA records Cumulative total £727,789 should be removed from the database all they need to Financial do is write to their local chief police officer setting out Watts & Partners £131,473 what they feel are the exceptional circumstances around PWC £38,939 their case that would qualify for their records to be BDO £14,500 removed. AH Design £6,580 ASM Howarth £6,000 The consultation paper on DNA retention proposed QUB £2,524 placing the exceptional case procedure on a statutory footing and detailing the criteria under which applications Others/Individual Contracts £67,430 should be considered. This aims to make the process Cumulative total £267,446 more open and transparent and to raise public awareness Assurance of the ability to apply for deletion and the grounds on OGC £14,000 which such applications could be made. T&SInternational £1,640 Cumulative total £15,640 The retention rules for the DNA database as they Research apply in Scotland are a matter for the Scottish Executive Keppies Design £120,158 and as such Her Majesty’s Government are unable to L’Estrange & Brett £56,352 provide an assessment. WA 177 Written Answers[LORDS] Written Answers WA 178

NIO and Executive Agencies Financial Year 2005-06 Executive Agencies Financial Year 2006-07

Management Management

Napier Watson £40,907 QUB £2,524 Colin Burrows CICS Ltd £29,515 Other/Individual Contracts £63,870 Anderson Spratt £10,229 Cumulative total £192,995 AASK £9,000 Assurance Turley Assoc £6,112 Deloitte £40,919 Claire Consulting £1,000 OGC £14,000 Others/Individual Contracts £195,576 T&S International Training £6,030 Cumulative total £468,849 Scrutiny Panel £5,117 Marketing Others/Individual Contracts £19,530 Anderson Spratt £18,000 Cumulative total £85,596 Cumulative total £18,000 Research General Consultancy Dream Group Ltd £106,040 Cleaver Fulton & Rankin £20,000 Deloitte £49,175 Deloitte £19,975 ARCS UK Ltd £30,000 Aedas £9,500 DSTL £28,667 BDP £7,300 Northern Ireland Youth Forum £3,000 Karolyn Cooper £6,017 Community Dialogue £2,550 Cowan Architectural £4,000 Others/Individual Contracts £153,263 DLA £3,080 Cumulative total £372,695 CSO £126 Marketing Others/Individual Contracts £5,000 Anderson Spratt £23,504 Cumulative total £74,998 Cumulative total £23,504 IT Consultancy General Consultancy Tim Lewis Rec £311,651 Keppie Design £90,000 Deloitte £146,544 Operational Team £47,000 Osprey Mott MacDonald £126,409 BDP £34,075 PA Consulting £72,800 Newell & Budge £22,976 Securetest £72,701 Cleaver Fulton Rankin £15,260 Parasol £52,700 Aedas £9,500 ICS Computing £25,740 RPS £7,250 HP £22,700 L’Estrange & Brett £4,540 Mentec International Ltd £19,245 Crown Architectural £1,800 Deloitte £7,000 Others/Individual Contracts £40,659 IB Solutions £875 Cumulative total £273,060 Cumulative total £858,365 IT Consultancy Total Expenditure 05/06 £2,431,087 Tim Lewis Rec £60,000 Osprey Mott Mac Donald £56,959 Executive Agencies Financial Year 2006-07 Parasol £50,000 Singularity £28,050 Management BT £27,318 Deloitte £92,839 Mentec Int Ltd £26,490 Grafton Recruitment £65,163 BIC Systems £15,407 CPCR £22,200 HP £15,000 Parity £19,835 Deloitte £10,000 Deloitte £17,476 PA Consulting £9,060 Jenkinson Consultancy £16,215 DLA Piper £8,958 PricewaterhouseCoopers £12,393 Photobase £7,285 The Whitehall Industry Group £8,000 OGC £5,974 Stredia £2,540 Biznet £5,858 Young Minds £2,068 DID £129 CIPFA £2,000 BDS £41 McMurray Consulting Ltd £1,000 Cumulative total £326,529 Allnut & Assoc £911 Total Expenditure 06/07 £1,597,856 JBM Consultants Ltd £265 Others/Individual Contracts £60,572 NIO and Executive Agencies Financial Year 2007-08 Cumulative total £323,477 Management Financial Watts & Partners £86,000 NI Youth Forum £1,007 BDO £19,181 Anderson Spratt £17,049 PWC £15,820 Kairos £8,500 AH Design £5,600 Deloitte £24,663 WA 179 Written Answers[29 OCTOBER 2009] Written Answers WA 180

NIO and Executive Agencies Financial Year 2007-08 NIO and Executive Agencies Financial Year 2008-09

Management Management

FGS McClure Watters £14,000 KPMG £22,000 Capita Learning & Dev £1,415 Hays Healthcare Consultancy £20,139 Grafton Recruitment £12,756 Kairos £8,500 Odgers Ray and Berndston £35,281 Social Research Centre Ltd £10,315 Jenkinson Consulting £1,800 Carter Goble Lee £32,400 Others/Individual Contracts £10,176 SRB Consultants £4,469 Cumulative total £126,618 PWC £5,220 Financial Others/Individual Contracts £87,858 Disability Action £4,179 Cumulative total £281,499 Moore Stephens (CJINI) £2,926 Financial PKF Consultancy £50,878 PWC £60,853 PWC £60,350 BDP £29,719 Cumulative total £118,333 Deloitte £11,260 Assurance Clarke Shipway £8,721 T&S International £23,262 Cumulative total £110,553 UKAS Accreditation £2,203 Assurance Jenkinson Consulting £895 OCPA £1,393 Others/Individual Contracts £11,515 OGC £13,600 Cumulative total £37,875 Grant Thornton £19,650 Research Key Forensic Services £43,436 Quality Business Management £5,423 Others/Individual Contracts £21,979 Others/Individual Contracts £52,517 Cumulative total £100,058 Cumulative total £57,940 Research Marketing Williamson Consulting £1,884 GPS £2,500 Cumulative total £1,884 Coppernoise £1,145 Marketing Label One Ltd £3,273 N/A 0 Peninsula Print & Design Ltd £998 General Consultancy Page Setup £1,262 PWC £89,776 Milward Brown Ulster £21,385 Fitzsimons Kinney Mallon Sols £532 Cumulative total £30,562 Hamilton Architects £1,500 General Consultancy Grant Thornton £19,815 Carter Globe associates £36,000 DLA Piper £37,519 Myles Danker Estate Man Advice £2,500 Hays Construction & Property £9,769 Quest Consulting £17,000 Others/Individual Contracts £134,516 Williams & Shaw £1,000 Cumulative total £293,427 BDP £8,267 IT Consultancy L’Estrange and Brett £9,598 Deloitte £20,000 Others/Individual Contracts £61,106 Fluent Technology £1,050 Cumulative total £135,471 Fujitsu £233,000 IT Consultancy Lagan £5,000 Mott MacDonald £295,220 ICS £40,000 Deloitte £22,770 Mott Macdonald £212,137 PWC (CJINI) £5,170 Selex £11,000 Microsoft £48,000 Biznet £4,994 ICS £20,000 Cumulative total £527,181 Fujitsu £513,000 Total Expenditure 08/09 £1,314,602 iB Solutions £22,000 NDI £20,000 Selex £23,778 ICS £29,150 Real Estate Management £3,990 Cumulative total £1,003,078 Pollution: Airborne Particles Total Expenditure 07/08 £1,509,877 Questions

NIO and Executive Agencies Financial Year 2008-09 Asked by Lord Berkeley

Management To ask Her Majesty’s Government what is the average number of years lost per person in England MacDonald Stephen Consultancy £33,044 and Wales who dies prematurely from short-, medium- Ltd or long-term exposure to particulate matter (PM ). Deloitte £57,554 10 [HL5685] WA 181 Written Answers[LORDS] Written Answers WA 182

The Parliamentary Under-Secretary of State, Sierra Leone: Visas Department for Environment, Food and Rural Affairs (Lord Davies of Oldham): Calculations carried out for Question the review of the UK air quality strategy (www.defra. Asked by Lord Jones of Cheltenham gov.uk/environment/quality/air/airquality/ publications/stratreview-analysis/index.htm) estimated To ask Her Majesty’s Government what assessment that, if all man-made fine particulate matter (PM2.5) they have made of the effect on citizens of Sierra present in the UK in 2005 were removed for the Leone of the decision to cease issuing visas in lifetime of people born in 2005, the average life expectancy Freetown; and what is the estimated annual saving per person would be 7 to 8 months greater than if the achieved by that decision. [HL5660] level of man-made PM2.5 had remained at 2005 levels for a lifetime. The above calculation represents the effect of long-term The Parliamentary Under-Secretary of State, Home exposure to fine particles. A similar calculation has Office (Lord West of Spithead): The UK Border Agency not been done for PM10 since the evidence that it is a continues to issue visas in Freetown, Sierra Leone. All good metric for representing the effect of long-term applicants in Sierra Leone continue to be able to exposure is much weaker than for PM2.5. (www. submit their applications and collect appropriate advisorybodies.doh.gov.uk/comeap/pdfs/ documentation in Freetown. Responsibility for decision- finallongtermeffectsmort2009report.pdf). making on visas, however, has been transferred to Studies of short-term exposure to PM10 do suggest Banjul as part of the UK Border Agency’s “hub and a link with increased mortality but the studies do not spoke programme”. This is a global strategy to improve give direct information on the life lost per person. It is the quality and consistency of visa decision-making thought that those affected are probably already seriously by consolidating decision-making in a regional hub, ill but that many of the deaths are brought forward by thus allowing consideration of an application in a several months, rather than just days or weeks. different location from that in which it was registered. There are too few studies of the effects of medium The change was primarily driven by the need to term exposure for calculations such as those above to improve the consistency of decision quality by transferring be made. it to a larger specialist team in Banjul. However, we Asked by Lord Berkeley expect there will be an estimated annual saving of around £60,000. To ask Her Majesty’s Government what is their calculation, based on the latest advice from the Committee on the Medical Effects of Air Pollutants (using a six per cent coefficient for all-cause mortality), of the number of people who died prematurely in Universities: Officer Training Corps Greater London in 2005 as a result of short-, Question medium- or long-term exposure to particulate matter Asked by (PM10). [HL5686] Lord Astor of Hever To ask Her Majesty’s Government what is their To ask Her Majesty’s Government in light of the calculation, based on the latest advice from the suspension of training for the University Officer Committee on Medical Effects of Air Pollutants for Training Corps (UOTC), how many officers from sensitivity analyses (assuming a 12 per cent and a the UOTC they expect will go to Sandhurst in 15 per cent coefficient for all-cause mortality), of (a) two, (b) three, and (c) four years’ time. [HL5891] the number of people who died prematurely in Greater London in 2005 as a result of short-, medium- or long-term exposure to particulate matter (PM10). [HL5687] The Minister for International Defence and Security (Baroness Taylor of Bolton): The number of officers from UOTC expected to go to Sandhurst in two, three, Lord Davies of Oldham: The specified coefficients and four years’ time can only be estimated. It is relate only to the effects of long-term exposure. estimated that the number of officers for each period Calculations on the health impact of long-term will be 346. exposure to fine particles (PM2.5) in Greater London The estimates are created from an average of the will be done as part of a forthcoming supplement to historical data of UOTC numbers starting at Sandhurst the report of the Committee on the Medical Effects of on both the Regular Commissioning Course and the Air Pollutants on Long-term Exposure to Air Pollution: Territorial Army Commissioning Course from 2006-08. Effect on Mortality (www.advisorybodies.doh.gov.uk/ Training activity for the UOTC has not been suspended COMEAP/pdfs/ and it is hoped that the majority of UOTC core finallongtermeffectsmort2009report.pdf. training activity will continue on a voluntary basis. The main results will be expressed in terms of effect Undergraduates and instructors will continue to be on life expectancy, as this is more appropriate with reimbursed for travel and subsistence costs. Non-core regard to long-term exposure. However, there is also training activities may also continue on a voluntary likely to be discussion on changes in the numbers of basis at the discretion of commanding officers subject deaths over time. to the availability of volunteer instructors. WA 183 Written Answers[29 OCTOBER 2009] Written Answers WA 184

Worker Registration Scheme under the Worker Registration Scheme; nationals of Malta and Cyprus are not required to register. Information Question for the period May 2004 to quarter one 2009 can be Asked by Lord Roberts of Llandudno accessed via the following link at http://www.bia. To ask Her Majesty’s Government how many homeoffice.gov.uk/sitecontent/documents/aboutus/ people are registered under the Worker Registration reports/accession_monitoring_report/. Scheme in respect of each of the European Union accession countries. [HL5729] The Parliamentary Under-Secretary of State, Home Information for quarter two 2009 is available via Office (Lord West of Spithead): Not all European the following at http://www.homeoffice.gov.uk/rds/ Union accession countries’ workers need to register pdfs09/immiq209.pdf.

Thursday 29 October 2009

ALPHABETICAL INDEX TO WRITTEN STATEMENTS

Col. No. Col. No. Armed Forces Act 2006...... 107 Local Services (Operation by Licensed Hire Cars) Regulations 2009 ...... 112 Chief Electoral Officer for Northern Ireland: Annual Report ...... 107 London Underground...... 112

Discretionary Social Fund ...... 108 Mental Health: Criminal Justice ...... 114

EU: Justice and Home Affairs Council ...... 108 National Probation Service...... 114

Global Entrepreneurship Week...... 110 Taxation: Corporation Tax ...... 115

Health: Adult Social Care...... 110 Zimbabwe ...... 116

Thursday 29 October 2009

ALPHABETICAL INDEX TO WRITTEN ANSWERS

Col. No. Col. No. Air Quality...... 171 Morocco: Fisheries Agreements...... 174

Alpacas and Llamas...... 171 National DNA Database ...... 175 Northern Ireland Office: Consultants ...... 176 Armed Forces Day: Northern Ireland...... 172 Pollution: Airborne Particles ...... 180 Common Agricultural Policy: Single Farm Payment ...... 172 Sierra Leone: Visas ...... 182 Devolved Administrations ...... 173 Universities: Officer Training Corps ...... 182 Italy: Antiquities...... 174 Worker Registration Scheme...... 183 NUMERICAL INDEX TO WRITTEN ANSWERS

Col. No. Col. No. [HL5649] ...... 176 [HL5747] ...... 175

[HL5660] ...... 182 [HL5813] ...... 171

[HL5685] ...... 180 [HL5821] ...... 174 [HL5823] ...... 174 [HL5686] ...... 181 [HL5837] ...... 173 [HL5687] ...... 181 [HL5839] ...... 173 [HL5729] ...... 183 [HL5891] ...... 182 [HL5739] ...... 172 [HL5931] ...... 171 [HL5742] ...... 173 [HL5932] ...... 172

[HL5745] ...... 175 [HL5933] ...... 172 [HL5746] ...... 175 [HL5986] ...... 172 Volume 713 Thursday No. 126 29 October 2009

CONTENTS

Thursday 29 October 2009 Questions Government: Debts...... 1265 Africa: Water Shortages...... 1267 Northern Ireland: Cross-Border Police Co-operation...... 1270 Territorial Army...... 1272 House of Lords: Code of Conduct Annoucement ...... 1275 Beverley Freemen Bill [HL] London Local Authorities Bill [HL] London Local Authorities and Transport for London (No. 2) Bill [HL] Transport for London (Supplemental Toll Provisions) Bill [HL] Carryover Motions...... 1277 Driving Instruction (Suspension and Exemption Powers) Bill Third Reading ...... 1278 Coroners and Justice Bill Report (4th Day)...... 1278 Education (Special Educational Needs Co-ordinators) (England) (Amendment) Regulations 2009 Motion to Approve...... 1316 Health: Medicines Question for Short Debate...... 1323 Grand Committee Company, Limited Liability Partnership and Business Names (Sensitive Words and Expressions) Regulations 2009...... GC 31 Company, Limited Liability Partnership and Business Names (Public Authorities) Regulations 2009...... GC 36 Legislative and Regulatory Reform (Regulatory Functions) (Amendment) Order 2009...... GC 36 Provision of Services Regulations 2009 Debated...... GC 41 Written Statements...... WS 107 Written Answers...... WA 171