Vol. 739 Tuesday No. 36 17 July 2012

PARLIAMENTARY DEBATES (HANSARD) HOUSE OF LORDS OFFICIAL REPORT

ORDER OF BUSINESS

Royal Assent Questions NHS: Primary Care Trusts NHS: Mental Illness Social Care: Sustainable Funding Olympic Games 2012: Traffic Draft Electricity and Gas (Smart Meters Licensable Activity) Order 2012 Motion to Refer to Grand Committee Local Authorities (Mayoral Elections) (England and Wales) (Amendment) Regulations 2012 Motion to Approve Parliamentary Commission on Banking Standards Membership Motion Defence Equipment and Support Statement Justice and Security Bill [HL] Committee (3rd Day) Education (Exemption from School Inspection) (England) Regulations 2012 Motion of Regret Justice and Security Bill [HL] Committee (3rd Day) (Continued)

Grand Committee Designation of Features (Appeals) (England) Regulations 2012 Public Bodies (Abolition of Environment Protection Advisory Committees) Order 2012 Public Bodies (Abolition of Regional and Local Fisheries Advisory Committees) Order 2012 Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2012 Equality Act 2010 (Age Exceptions) Order 2012 Considered in Grand Committee

Written Statements Written Answers For column numbers see back page

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Baroness Masham of Ilton: My Lords, will the noble House of Lords Earl find out to how many cases the PCT in North Yorkshire has denied treatment in the past year? Is he Tuesday, 17 July 2012. aware of how distressing it is for very ill patients to have to appeal? 2.30 pm Earl Howe: My Lords, I do not have the figures for Prayers—read by the Lord Bishop of Newcastle. North Yorkshire in front of me but, as the noble Baroness is aware, there is a process for patients to make an exceptional case application to their primary Royal Assent care trust where the circumstances are deemed to be exceptional. We had a short debate about this matter 2.36 pm the other day. However, there will inevitably be variation around the country in the extent to which treatments are seen as a priority for the local population in a The following Acts were given Royal Assent: given area. Supply and Appropriation (Main Estimates) Act, Finance Act. Lord Winston: My Lords, it is a question not just of treatment but of investigations for treatment. Only NHS: Primary Care Trusts last week, I saw a couple complaining of long-standing Question infertility who were refused a laparoscopy or an X-ray of the uterus on the grounds that they were not permissible as investigations under the National Health 2.36 pm Service. It was limited by their primary care trust. Asked By Lord Hunt of Kings Heath Would the noble Earl care to comment on that?

To ask Her Majesty’s Government what action Earl Howe: My Lords, if that case was a consequence they will take to prevent primary care trusts of the primary care trust taking a blanket decision inappropriately restricting access to patient treatments. over a clinically valid investigation process then I would be very concerned and should be interested to hear the The Parliamentary Under-Secretary of State, Department details from the noble Lord. of Health (Earl Howe): My Lords, it is inappropriate for a primary care trust to impose blanket bans on Baroness Brinton: My Lords, given that there is no treatments, or to restrict access to treatments on the consistency in the name that PCT committees are basis of cost alone. The department will ask strategic calling themselves to make these judgments about health authorities to investigate any examples of such treatments and pathways, and often these matters are behaviour, and appropriate action will be taken. reported or hidden in longer performance reports, can my noble friend ensure that PCTs are open and transparent Lord Hunt of Kings Heath: My Lords, in thanking in their decision-making on these treatments, including the noble Earl, I remind the House of my health referencing how their decision reflects NICE guidelines, interests in the register. The noble Earl will be aware and also insist that the appeals process is equally that there is now abundant evidence that some primary accessible? care trusts are restricting treatments that are deemed appropriate, in some cases against the guidelines issued Earl Howe: Yes, my Lords, we emphasise this principle by NICE. Given that, will he go further and seek to at every opportunity. Indeed, transparency is a central ensure that he and his ministerial colleagues intervene principle, as my noble friend will be aware, in the way in the NHS where this is happening so that we can be that the NHS constitution instructs the health service satisfied that the NHS will still provide a comprehensive to make decisions rationally and transparently so that service? patients can see the basis on which those decisions have been arrived at. Again, if that is not happening in Earl Howe: My Lords, yes, we will intervene if ever any area I should be very glad to hear about it. it is demonstrated that primary care trusts are restricting treatments on a blanket basis or on a cost basis Lord Walton of Detchant: My Lords, in relation to unrelated to clinical need. Any arbitrary restriction on the point made by my noble friend Lady Masham, is access to treatment of that kind is unacceptable. We the Minister aware that the particular primary care have made that clear repeatedly, as has Sir Bruce Keogh, trust in North Yorkshire has refused the funding for the NHS medical director, on a number of occasions. an operation for a bright young lady doctor who is However, that is not the same as saying that the NHS enrolled on a training scheme in that area and who should be unconcerned about value for money. It turns out to have a rare hereditary form of pancreatitis? should be very concerned about it. It should not spend Three surgeons, two in Newcastle and one in Leicester, money on treating a patient when that patient is have agreed as a team to operate on her, otherwise the unlikely to derive clinical benefit from the treatment. condition will be progressive and eventually fatal, but Therefore, we need to distinguish that kind of case the primary care trust has refused funding for the from the kind cited by the noble Lord. procedure on the grounds that it is somewhat experimental, 101 NHS: Primary Care Trusts[LORDS] NHS: Mental Illness 102

[LORD WALTON OF DETCHANT] NHS: Mental Illness even though it has been carried out successfully on a Question number of occasions before. Is this not a case that ought to be referred to the Advisory Group for National Specialised Services? 2.45 pm Asked By Baroness Thornton Earl Howe: My Lords, we had a debate about that To ask Her Majesty’s Government what is their very case the other day, as the noble Lord will be response to the report How mental illness loses out aware, and as I said then, this matter is under close in the NHS, published by the London School of scrutiny at the Department of Health. I am hopeful of Economics and Political Science on 18 June. a happy outcome. The Parliamentary Under-Secretary of State, Department Lord Soulsby of Swaffham Prior: My Lords— of Health (Earl Howe): My Lords, we agree with the report’s insistence on both the importance of investment Lord Bach: My Lords— in mental health services and on the necessity of treating mental ill health as seriously as physical ill health. Our mental health strategy, No Health Without Mental The Chancellor of the Duchy of Lancaster (Lord Health, makes our commitment to these principles Strathclyde): My Lords, perhaps we could hear from clear, and we are soon to publish an implementation the noble Lord, Lord Soulsby. framework that will help to embed them in NHS practice. Lord Soulsby of Swaffham Prior: Thank you, my Lords. This is an unfortunate Question in that it tends Baroness Thornton: I thank the Minister for that to imply that this system is widespread. However, my Answer. I remind the House that during the passage of experience, admittedly only in one hospital in Cambridge the Health and Social Care Bill it was agreed that —Addenbrooke’s Hospital—is quite the contrary. I do mental health should have the same, equal status as not know just how much my noble friend can comment physical health. In that light, at present the 50 outcomes on whether access for patients has been restricted of the NHS outcomes framework include no health nationally, but I would very much like to ask him to outcomes for the millions of people with clinical make sure that this Question is not a common reflection depression or crippling anxiety disorders. Do the on the National Health Service and hospital service. Government have any plans to change that and, if so, I do not think that it is. when will they change it? When will we see mental health outcomes appear in the outcomes framework? Earl Howe: My Lords, I agree with the noble Lord. The Co-operation and Competition Panel undertook Earl Howe: My Lords, we have deliberately taken a a review of restrictions on patient care last year, and generic approach to the NHS outcomes framework. although it uncovered quite a number of examples of That said, the framework for 2012-13 contains three arbitrary rationing, those were cases that took place improvement areas relating specifically to mental health: under the previous Government. We have banned all premature mortality in people with serious mental such cases. We do not believe that this kind of arbitrary illness; employment of people with mental illness; and restriction is at all widespread, and we have yet to patient experience of community mental health services. receive any firm evidence that it is taking place at all. Therefore, the noble Baroness is not quite right in what she has just said. Many of the indicators in the outcomes framework relate to all patients, including in Lord Bach: My Lords, I wonder if the Minister is relation to safety incidents, for example, or experience aware of the widespread feeling of disgust and of primary care. Improving outcomes for people with disappointment at the Government’s decision to close mental health problems will be a crucial element of the ECMO cancer unit for children at the world-renowned success. Glenfield Hospital in Leicester. Is he aware that the quality of work done at that hospital has been praised internationally, and that many thousands of people in Lord Alderdice: My Lords, five out of the six Leicester, Leicestershire and beyond are just appalled recommendations of this excellent report by the noble at the Government’s insensitive and brutal decision? Lord, Lord Layard, and his colleagues emphasise the importance of IAPT, an excellent initiative begun by the previous Government, which is being built on by Earl Howe: My Lords, I am aware of the concern the coalition Government. However, from the time of that the noble Lord has reflected in his remarks, but I the previous Government to now, I continue to receive think that it would be wrong of me to comment. That reports that psychotherapy departments, particularly particular decision flowed directly from a review which those that provide non-cognitive behaviour therapies was conducted by the NHS, quite consciously at arm’s such as art therapies, psychodynamic psychotherapy, length from Ministers. The matter is currently under group analytic psychotherapy and family therapy, are scrutiny and I would not wish to pre-empt any decision closing down or are unable to get contracts. Can my that my right honourable friend the Secretary of State noble friend help me to understand why that might be wishes to take. the case since, while CBT is valuable and helpful in 103 NHS: Mental Illness[17 JULY 2012] Social Care: Sustainable Funding 104 many circumstances, it is not the only approach to Baroness Greengross: My Lords, is the noble Earl treatment that has been demonstrated to be helpful in able to deal with two blatant forms of age discrimination? those who need psychological therapies? The first is that the talking therapies are very often denied to older people; pharmaceutical alternatives are cheaper. The other is that, when a diagnosis of Earl Howe: I am very happy to take the advice of dementia is made, the way in which services are organised my noble friend, who is of course an expert in this now means that those services have to be funded by area. Historically, it is true to say that access to talking local authority social care rather than the NHS. Given therapies in the broadest sense has been very poor. that dementia is a terminal disease, does the noble That is why we have invested £400 million in rolling Earl not feel that this is unfair? out the IAPT programme, which makes available a range of NICE-recommended therapies to a much larger cohort of people. However, I will take my noble Earl Howe: My Lords, yes, and we have laid great friend’s point away and, if I can throw any light on the emphasis on the need to bear down on unreasonable issue that he has raised, I will gladly write to him. discrimination against elderly people. The noble Baroness is aware that the requirement to reduce inappropriate anti-psychotic medication for the elderly is a key part Baroness Hollins: My Lords, I, too, commend the of the Prime Minister’s dementia challenge. Therefore, report. What action would the Minister expect in I identify completely with the remarks of the noble response to two of the recommendations that relate to Baroness on that issue. training? First, there is the recommendation that an automatic component of general practice training in future should include mental health. Only a minority Social Care: Sustainable Funding of GPs currently receive any training in mental health. Question Secondly, with respect to the current recruitment crisis in psychiatry, it is recommended that we recognise that 2.52 pm psychiatrists have an essential leadership role to play Asked By Lord Warner in mental health care. To ask Her Majesty’s Government when they will announce their plans for sustainably funding Earl Howe: My Lords, as regards GPs, the Royal adult social care. College of General Practitioners has identified improved care for people with mental health problems as a priority within its enhanced GP training programme, The Parliamentary Under-Secretary of State, Department which forms part of the college’s proposals for a new of Health (Earl Howe): My Lords, the Government set evidence-based four-year programme of training. out their plans for the funding of adult social care at spending reviews. The date of the next spending review As regards the workforce issues, I am aware that has yet to be announced. At the last spending review there is concern about recruitment into psychiatry. My the Government prioritised money for adult social department and the Royal College of Psychiatrists are care, announcing an additional £7.2 billion over four looking into this matter. The royal college has established years. When combined with an ambitious efficiency a task force to make recommendations to improve programme, this will provide enough funding to recruitment, and it is investigating the factors before enable local authorities to maintain current service medical school, during medical school, during foundation provision. training and in core and higher psychiatric training so as to get to the bottom of the issue as best it can. Lord Warner: I thank the Minister for that Answer. However, is he aware that publishing a White Paper Lord Hunt of Kings Heath: My Lords, one of the about adult social care without a funding plan is as important recommendations in the LSE Centre for much a work of fantasy as Fifty Shades of Grey,but Economic Performance report, which led to this Question, without the fun of sex? Do the Government recognise concerns the attitude of other doctors to psychiatrists that the longer they delay implementation of the Dilnot and the issue that that has in relation to recruitment. commission’s proposals—and here I declare my interest The report says that, as a member of that commission—the greater will be “it is routine for”, the social care cost that shifts to the NHS, which has surgeons and physicians, its own funding problems? Starting that implementation will cost around one-thousandth of annual public “to make derogatory remarks about psychiatry, which affects not just psychiatrists but also their patients”. expenditure, as Andrew Dilnot has repeatedly said. Is it not time that the Prime Minister and the Chancellor I wonder whether the noble Earl has any answer to engaged with this issue within cross-party talks to try that. to sort out the funding problems of adult social care?

Earl Howe: The short answer is no, I do not. Earl Howe: My Lords, we look forward to a However, I am aware that the royal college is actively continuation of the constructive cross-party talks that investigating this issue within the terms of its task have taken place. We have been clear that we accept force, to which I referred in my answer to the noble the principles of the Dilnot recommendations, including Baroness, Lady Hollins. financial protection through capped costs and an extended 105 Social Care: Sustainable Funding[LORDS] Olympic Games 2012: Traffic 106

[EARL HOWE] after all these years. Can the Minister assure us that in means test. They are the right basis for any new the Government’s plans for health and social care, funding model. That sets out, if you like, our high-level factors other than cost will be considered? view on what a new funding system should look like, but there will be many questions to answer—such as Earl Howe: My Lords, on behalf of noble Lords, on the level of the cap and whether the funding system I wish my noble friend a very happy birthday. should be voluntary, universal or opt-in—before we can make any firm decisions. It is right that we take time to work through this, including engaging with Noble Lords: Hear, hear! stakeholders to make sure that any reform is the right one. That means that the next spending review is the Earl Howe: It would not be right for me to comment appropriate time to take those decisions. on an individual case such as the one mentioned by my noble friend, but I would say that local authorities Lord Sutherland of Houndwood: My Lords— have a duty to meet people’s eligible needs, and they should take account of a person’s resources as they Baroness Campbell of Surbiton: My Lords— do so. If a local authority were to change someone’s personal budget, we would expect it to consult and discuss with the service user how their needs and goals The Chancellor of the Duchy of Lancaster (Lord could best be met within the new budget. It should Strathclyde): My Lords, can we hear from the noble not, in most cases, descend to forcing any options on Baroness, Lady Campbell? anybody.

Baroness Campbell of Surbiton: My Lords, is the Baroness Pitkeathley: My Lords, I was happy to noble Earl aware that while these complex funding give way to the noble Baroness, especially on her matters are being considered, many local authorities birthday. The Minister’s words may be comforting to are severely reducing the levels of support provided to many families when contemplating the future, and disabled people in ways that can curtail their independence, may provide comfort that the Government have plans prevent them from working and participating in public for the future. However, what comfort will he give to life and, in some cases, force them into residential my neighbour Margaret who is caring for her husband, care? Is he aware, for example, that Worcestershire who is in the last stages of Alzheimer’s, and is in County Council proposes to radically restrict the despair with his and her physical and mental distress? maximum value of an individual disabled person’s Today—now—they face huge costs for care that is care package, offering them no other choice than to intermittent and often of very poor quality. How does enter residential care if they cannot meet the shortfall? the Minister address the poor-quality issue in the face Surely the Minister agrees that this runs entirely counter of such a shortage of funds? to the White Paper and government policy?

Earl Howe: My Lords, I am not aware of the Earl Howe: My Lords, as I made clear, the Government Worcestershire example. What I will say is that the and my department have made a very significant sum best local authorities are those that enter into a two-way of money available to local authorities to bolster their dialogue with service users to see what is best and social care funding. In the announcements we made most appropriate for them in their circumstances. I last week we said that we were directing additional recognise that this is a challenging settlement for local money to local authorities to support integrated care. government, but if local authorities are prepared to I regret the instance that the noble Baroness cites, but reform their services and drive down costs, we believe it is part of the reason why, in our White Paper and that the additional investment from the NHS to social in the announcements we made last week, there is a care, which we announced in the spending review, will particular focus on quality and on ensuring that the enable local authorities to protect the care that people tick-box approach—which I am afraid some local receive. Many councils are making the necessary changes authorities have taken—should be a thing of the past. to ensure that there is no drop in eligibility criteria. Olympic Games 2012: Traffic Baroness Pitkeathley: My Lords— Question

Baroness Gardner of Parkes: My Lords, in view of 3pm the answers to the previous supplementary question and to the first Question, which stated that decisions Asked By Lord Lea of Crondall should never be made purely on grounds of cost, is the Minister aware of a case in one of the London boroughs To ask Her Majesty’s Government what contingency where a woman who has had multiple sclerosis for plans they have made to deal with heavy traffic on years and has been cared for by a very loving husband key London roads when the Olympic route network has now been told that she may be obliged to go into a becomes operational from 25 July. care home because providing her care package at home is costing £79,000, while a care home could be Lord Lea of Crondall: My Lords, could I ask the provided for £71,000? That would perhaps not destroy, noble Earl, Lord Howe, the Answer to the Question but put a terribly unfair strain upon, her marriage standing in my name on the Order Paper? 107 Olympic Games 2012: Traffic[17 JULY 2012] Draft Electricity and Gas Order 2012 108

Earl Attlee: My Lords, I think the noble Lord got used to. I urge noble Lords to persist with it. It is a slightly confused there. The Olympic route network—the very good tool, particularly to see which Tube stations ORN—has been established to ensure the Games family will be very heavily congested, and at which times. get to events on time. Games lanes will operate flexibly and be open to all traffic when possible. Motorists Lord Geddes: Could my noble friend confirm, or should avoid central London and, like everyone, plan otherwise, that while the House is sitting, Members of their journeys at the Get Ahead of the Games website. the House may use the Olympic lanes when coming to We have comprehensive traffic management plans in and from the House? place and will be focused on getting people to their events on time and keeping London moving. Earl Attlee: My Lords, I suggest that that is an extremely unwise course of action. The policing of the Lord Lea of Crondall: I thank the Minister for that Olympic lanes—the Games lanes—is similar to bus Answer, which means that there is no contingency lanes. If the noble Lord thinks he can use a bus lane plan. There is no plan B. I will give an example of a with impunity then he can try the Olympic lanes, but it major artery, and I declare an interest shared with is not something that I would recommend. many thousands of people in central London: I live on Southampton Row, a continuation of Kingsway, where Lord Davies of Oldham: I find myself agreeing with there is one bus lane alongside one Olympic lane. In the Minister that, of course, London has to offer a other words, it is a no-go area. The Evening Standard welcome to visitors from all over the world to these reported last Friday that Transport for London said that Games. The lanes are essential to the smooth running everyone could use the bus lane in those circumstances, of the Games. Of course, there is already sufficient but local officials say that is not the case. Is there not confusion and long tailbacks have been established on likely to be great confusion, at least after 25 July, some routes and the lanes are not even in action yet. leading to gridlock—which is of great concern for We must make every effort to make things clear to the shops, buses, taxis and everyone in that area, and in public. Would the Minister strengthen the point that similar areas around London—with no contingency he made a moment ago that no privileged access to the plan in place? ZiL lanes, apart from for Olympic officials, will be permitted and certainly not for Ministers of the Crown? Earl Attlee: My Lords, the noble Lord suggested that there is no contingency plan. There are very Earl Attlee: My Lords, I can assure the House that detailed contingency plans. For instance, Transport Ministers of the Crown do not have any privileges in for London has designated alternative Olympic route regard to the use of the Games lanes, with the exception network roads in case the primary Olympic route of when advised to use them by the security services, network becomes inoperative. As regards the problem and that will apply to very few Ministers indeed. that the noble Lord describes, I suggest that he consults the Get Ahead of the Games website. My officials tell Lord Hughes of Woodside: My Lords, how can the me that I have to say “Get Ahead of the Games” in House have confidence in all the contingency plans every single supplementary question I answer. here and there when, if we are to believe today’s press, a coach driver taking an Olympic team to the stadium Lord Addington: My Lords, would the Minister could not find his way and took four hours to get agree that complaining about having some traffic there? He could not read a sat-nav and apparently was disruption during the world’s biggest event is a little directed to the stadium only when someone managed like someone who has sat on a fire complaining about to find it on their mobile phone. their backside burning? Earl Attlee: My Lords, I expect all noble Lords have Earl Attlee: My noble friend is absolutely right. The had a sat-nav moment. I certainly have in my driving world is coming to London in 2012. Our transport career. LOCOG knows where all the Olympic coaches system faces unprecedented challenges, and the Olympic operated by it are on the Olympic network and, if route network is essential to ensuring that the transport something goes wrong, LOCOG will know. I do not system works at Games time and to making the Games know the full details about the coach to which the a great success, as I am sure they will be. noble Lord refers, but I can assure noble Lords that LOCOG has a good system for managing the coaches. Baroness Butler-Sloss: My Lords, has the Minister tried to work the Get Ahead of the Games website? I Draft Electricity and Gas (Smart Meters am totally in favour of the Olympics and of seeing the Licensable Activity) Order 2012 signs on the roads. However, I wanted to find out Motion to Refer to Grand Committee whether I could come into London on a particular route. If the Minister tried the website, he would find 3.06 pm it very difficult to find the answer. Moved By Lord Marland Earl Attlee: My Lords, when I last answered a That the draft order be referred to a Grand Question about the Olympic travel arrangements, I used Committee. the Get Ahead of the Games website, and it worked. Sometimes these websites take a little bit of getting Motion agreed. 109 Local Authorities Regulations 2012[LORDS] Arrangement of Business 110

Local Authorities (Mayoral Elections) 6. That the Commission have leave to report from (England and Wales) (Amendment) time to time and that the Reports of the Commission shall be printed, regardless of any adjournment of Regulations 2012 the House; Motion to Approve 7. That the evidence taken by the Commission 3.07 pm shall, if the Commission so wishes, be published; Moved By Baroness Verma 8. That the Committee appointed by the House of Lords have power to report to the House any That the draft regulations laid before the House decision of the Commission reached pursuant to on 12 June be approved. paragraph 9 of the Commons resolution of 16 July; Relevant document: 3rd Report from the Joint 9. That the Commission shall have power to Committee on Statutory Instruments, considered in appoint sub-committees to consider matters specified Grand Committee on 12 July. by the Commission within the terms of this order and a sub-committee shall have: Motion agreed. (a) the powers in paragraph 5(a), (b) and (e); and (b) the power to invite specialist advisers appointed Parliamentary Commission on Banking by the Commission (including Counsel appointed Standards as specialist advisers) to examine witnesses; Membership Motion 10. That the quorum of the Commission shall be two members of each House; 3.07 pm 11. That the quorum of any sub-committee shall Moved By Lord Strathclyde be one member from either House; and 12. That the Commission shall report on legislative 1. That the Commons message of 16 July be action no later than 18 December 2012 and on considered and that a Committee of five Lords be other matters as soon as possible thereafter. appointed to join with the Committee appointed by the Commons as the Parliamentary Commission on Banking Standards, to consider and report on: Motion agreed, and a message was sent to the Commons. (a) professional standards and culture of the UK banking sector, taking account of regulatory and competition investigations into the LIBOR rate-setting Arrangement of Business process; (b) lessons to be learned about corporate governance, transparency and conflicts of interest, and their 3.08 pm implications for regulation and for Government Baroness Royall of Blaisdon: My Lords, the House policy; of Commons rises today, as we all know, and noble and to make recommendations for legislative Lords may recall that, during the Jubilee Recess when and other action; this House sat, the Government announced changes to tax policy to the media rather than to Parliament—that 2. That, notwithstanding the provisions of Standing is to say, to our House. I would be grateful if the Order 63(2), the following members be appointed Leader of the House could reassure noble Lords that to the Committee: when the House of Commons has gone into recess any The Lord Bishop of Durham, Baroness Kramer, policy announcements will be made to this House, Lord Lawson of Blaby, Lord McFall of Alcluith, while it is sitting, as we are a House of Parliament, Lord Turnbull; rather than to the media first. We shall be vigilant with regard to any sneaky Statements that might come out. 3. That the Chairman of the Commission be I also take this opportunity to wish a very happy appointed by the House of Commons; birthday to the Chief Whip, the noble friend of the 4. That the Commission shall, except as provided Leader of the House. for in this order, follow the procedure of a select committee of the House of Commons; The Chancellor of the Duchy of Lancaster (Lord 5. That the Commission have power: Strathclyde): My Lords, I am sure that the whole (a) to send for persons, papers and records; House will join in those very happy returns to the Captain of the Honourable Corps of the Gentlemen (b) to examine witnesses on oath; at Arms. (c) to appoint specialist advisers; There is no desire on the Government’s part to produce any sneaky Statements at all when the House (d) to invite specialist advisers (including Counsel of Commons is not sitting. Of course, this House will appointed as specialist advisers) to examine witnesses; be sitting next week and any Statements, Urgent Questions (e) to adjourn from place to place; or PNQs will be taken in the normal way. 111 Arrangement of Business[17 JULY 2012] Defence Equipment and Support 112

Lord Grocott: Will the Leader of the House undertake The result of these combined issues has been significant to inform the House of the additional cost that will additional costs in the defence budget, in the order of undoubtedly be incurred as a result of this House hundreds of millions of pounds each year. Earlier this sitting as though it were a unicameral system for a year MoD officials were asked to focus their efforts on week now, then the Commons sitting for a fortnight as considering the comparative benefits which could be though it were a unicameral system in September, and derived from changing DE and S into either an executive then this House sitting again a couple of weeks after non-departmental public body with a strategic partner that? It undoubtedly means that we will be functioning from the private sector, or a government-owned, less efficiently with all sorts of committees, which contractor-operated entity. The work done to date affect Members of both Houses, being unable to operate suggests that the strategic case for the GOCO option is as they would when Parliament functions in the normal stronger than the ENDPB option. Further value-for- way. However, I refer specifically to the costs of the money work is under way to confirm this assessment. Houses sitting in a way that the Government now In the mean time, as resources and commercial seem bent on, which I do not think is for the convenience appetite constrain our ability to pursue these two of the House or of the public. options simultaneously to the next stage, we have decided that the department should focus its effort on developing and testing the GOCO option further. The Lord Strathclyde: My Lords, that is most bizarre. work to determine value for money between the options The House has sat on different days from the House of will take place over the next few months. In parallel, Commons for decades, as far as I can remember. If we will begin to develop a commercial strategy, engaging there are any additional costs, I shall let the noble with industry to hone our requirement. This work will Lord know. I do not think that there will be; we are support decisions later this year on whether to proceed not sitting, overall, for more days than otherwise we with the GOCO option and whether to launch a would have been. competition for a private sector management company to run the organisation. Provided that the further work demonstrates that Defence Equipment and Support the value-for-money case for GOCO over ENDPB/SP Statement is conclusive, this will be followed by an investment appraisal that will test the GOCO against a public sector comparator. Ultimately, this would be followed 3.10 pm by a decision on whether to proceed”. The Parliamentary Under-Secretary of State, Ministry My Lords, that concludes the Statement. of Defence (Lord Astor of Hever): My Lords, with the leave of the House, I shall now repeat in the form of a 3.14 pm Statement the Answer given by my right honourable friend the Secretary of State for Defence to an Urgent Lord Rosser: My Lords, I thank the Minister for Question in another place on defence equipment and repeating as a Statement the response to the Urgent support. The Statement is as follows: Question that was accepted and answered in the other place earlier today. “A key element in the transformation process under way in the Ministry of Defence is that of its equipment The Secretary of State also issued a Written Ministerial and support activities through its Materiel Strategy. Statement today, the last day before the House of Reforming the acquisition system to drive better value Commons breaks for the Summer Recess. In that from the defence budget is a core element of the Written Statement as well as in the Statement that we transformation process under way in the Ministry of have just heard, the Secretary of State set out his views Defence. on why the present system of procurement did not work as effectively as it might. He went on to say that This will require changes to the Defence Equipment the restructuring of defence equipment and support and Support organisation to ensure that it has the was key to maintaining the defence budget in balance. structures, management and skills it needs to provide Two options for restructuring have been considered— the right equipment to our Armed Forces at the right namely; either an executive non-departmental public time and at the right cost. Change is essential to tackle body, with a strategic partner from the private sector, the legacy problems in defence acquisition that have or a government-owned contractor-operated entity. historically led to cost and schedule overruns, and The Government take the view that the work done to which have resisted previous attempts at reform. The date “suggests” that the case for the government-owned current system does not help or support DE and S contractor-operated company is stronger than the first properly, and it is not delivering value for money for option, but say that further value-for-money work is the taxpayer. under way “to confirm this assessment”, which indicates Analysis reveals the following root causes: a historically that in the minds of some a conclusion has already overheated equipment programme, in which far more nearly been reached. projects were planned than could be paid for; a weak In the mean time, the Secretary of State said in his interface between DE and S and the wider Ministry of Written Statement that, Defence with poor discipline and change control between “as resources and commercial appetite constrain our ability to those setting requirements for equipment and those pursue these two options simultaneously to the next stage, I have delivering the programmes; and insufficient levels of decided that MOD should focus its effort on developing and business capability at DE and S for the scale and testing the GOCO option further”— complexity of the portfolio it is asked to deliver. that is the government-owned contractor-operated option. 113 Defence Equipment and Support[LORDS] Defence Equipment and Support 114

[LORD ROSSER] the defence contractor fails to deliver, presumably the I have a number of questions for the Minister, defence contractor picks up the bill. However, what although, before I start, I must say that I am not happens if changes are made to the specification? Will expecting him to be a walking encyclopaedia. If he is the GOCO and the private management company not able to respond to all my questions, it would be bear the additional costs, or will they continue to lie more than acceptable if he were able to give the with the Ministry of Defence? What expertise is it answers subsequently in writing. considered that the private management company will First, what would be the additional cost of pursuing bring that is not there at present? Will it be technical, the two options simultaneously to the next stage, and or some other form, of expertise? Is it envisaged that what exactly are the “resources and commercial appetite” all DE and S will be transferred over to the new constraints referred to? Unless it is going to cost a private management company, and continue to work substantial sum, the constraints cannot be financial at its existing locations? Will military personnel continue since the Secretary of State has told us that he has to be part of DE and S if it becomes a GOCO, and on balanced the defence budget. He has also told us that what basis will they be employed? As it will be run as a the restructuring of defence equipment and supplies is private company, will they be required to leave the key to the process of maintaining the budget in balance. Armed Forces? Is the reality in fact that the only This is hardly an issue one would have thought appropriate change is that at boardroom level the GOCO will be for not undertaking with complete thoroughness and run by private sector managers, who will not be required openness and testing fully the merits of the two options to have any defence experience, as opposed to DE and when the Government agree that the work done to S being run by the Ministry of Defence? date only “suggests” that the GOCO option might be Where will the GOCO fit in as far as the international better. dimension is concerned? There is the issue of our defence manufacturers being asked to provide equipment The Secretary of State said more than once in his which will also meet specifications to make sales overseas Statement today that the criterion is value for money achievable. There is also the political decision on and apparently only value for money. Is it literally the whether to procure defence equipment from overseas case that no other factors will be taken into account in which is made overseas, or whether to have equipment determining the most appropriate form of restructuring largely made and supplied from within our own country. for defence equipment and supplies? What factors Who will make those decisions: the GOCO or the are included within the criterion of value for money? Ministry of Defence? Will primary legislation be required Issues of national security must surely be involved in if the government-owned, contractor-operated company defence procurement, including security of sensitive is to be established? information or the potential loss of skilled staff who may not wish to move to the private sector under the The Statement by the Secretary of State also referred new structure proposed. How will non-monetary to testing the GOCO against a public sector comparator considerations be assessed against a value-for-money before finally deciding whether to proceed. Which criterion? public sector comparator would that be, and will the only criterion once again be value for money? Finally, The Statement refers to having a competition for how can we be assured that our brave troops on the the private sector management company to run the front line, who it is widely accepted have the best organisation. What kind of companies will be invited equipment and supplies under the present DS and E to tender? Will they be major defence contractors and, structure, will continue to do so under the vague and if so, would there not be a potential conflict of interest unclear future now being proposed? if such a company were running an organisation awarding contracts? Or, will major defence contractors or companies with defence contracts be excluded? In which case, 3.23 pm what skills or expertise in the defence field would such Lord Astor of Hever: My Lords, the noble Lord is a management company be expected to be able to show? quite right; I am not a walking encyclopaedia. I will After all, we need to be very careful. We have just do my very best to answer as many questions as I can, had an example of a major private company involved but I will write to the noble Lord with the answers to in the Olympic Games on the security side which has the others. I will also put a copy in the Library. not exactly excelled itself. One of the issues in that case I will try and take the questions as they came at me. is that the Home Office said that it was not aware of The noble Lord asked why we need to change DE and the impending failure to deliver because contracts S. For decades, the MoD has wrestled without success were with LOCOG and not direct with itself. Is that with the legacy problems of defence acquisition. It is not a possible likelihood with the GOCO: namely, that clear that addressing the problems within current structures Ministers become a step further removed from knowing will be extremely challenging. We will, however, develop what is actually happening, with the potential consequence a public sector comparator based on DE and S-plus, of the kind of situation we have seen with G4S? The which will be an on-vote solution with enhanced GOCO appears to bring a third party between the capabilities. The noble Lord asked if primary legislation defence contractors and the Ministry of Defence, which would be necessary. At the moment we feel that it may not be helpful. probably will not be, but we are putting in place all the Under the GOCO arrangement, where will commercial building blocks just in case. risk within the private sector lie in future? In particular, The noble Lord asked why the GOCO route was what commercial risk would lie with the GOCO? The preferable. Work to date indicates that the strategic GOCO will have contracts with defence contractors. If case for GOCO is stronger than that for an ENDPB 115 Defence Equipment and Support[17 JULY 2012] Defence Equipment and Support 116 with a strategic partner. This is based on the significant Finally, are there any examples of other countries qualitative benefits that a GOCO would bring. These effectively outsourcing their supplier of military equipment include the flexibility of the private sector, the increased in this way? resources available to support successful delivery and the introduction of a change in culture and behaviour Lord Astor of Hever: My Lords, I agree with my to improve DE and S’s focus on the bottom line. It noble friend that this is a really big issue. I had only a gives us much more strategic freedom by allowing us short time in which to prepare for this Statement and to manage staff in a flexible way and to bring in that made me realise what a big subject this is. It may private-sector skills. be an area on which we could have a debate in the The noble Lord asked about value for money.Officials House, and I would encourage my noble friend to go expect to complete work on the value for money through the usual channels to see whether a debate analysis in the next few months, for consideration by could be set up. He asked why no legislation was Ministers in the autumn. The value for money analysis necessary for this. I asked officials about that and their is an extremely complex area of work, representing a advice was that it is very unlikely—but just in case it is business change without precedent in government and needed, all the building blocks are being put in place. requiring thorough analysis to enable discrimination No decisions on the future operating model of DE between the options. This is a big decision and it is and S have yet been taken. The GOCO may require worth spending the extra time now to ensure that we legislation, but the issue will be addressed in due course. make it for the right reasons. I cannot answer my noble friend’s question about The noble Lord also asked about members of the whether it was just MoD officials involved in the Armed Forces. The requirement is for specialised expertise, decision-making process, but I understand that there knowledge and skills in areas not currently found in will be no additional redundancies as a result of these DE and S and the wider department. This external changes. I am pretty certain that that is the correct support is key to getting DE and S into a position to answer. create an effective organisation going forward. An important element of the future organisational design Lord Craig of Radley: My Lords, one of the criteria of DE and S will be ensuring that the military continues that Mr Bernard Gray identified in his major study of to play a key role, which will be important for individuals’ DE and S was that a budget provision for a 10-year careers. period should be made for the equipment programme. I was asked why we rejected other models. It is clear Many instances of overloading the programme in the that addressing DE and S’s problems within the current past have probably been attributable to changes in the structures will be extremely challenging. Changing budget provision, which the Ministry of Defence had DE and S to a trading fund was ruled out early on the expected. Has an agreement been reached on the lines basis that it would not be suitable for its business. It of what Mr Bernard Gray was looking for, with a would also not be appropriate to privatise the organisation. 10-year guaranteed budget for the equipment programme? The noble Lord raised the international situation and Without that it will be difficult to be sure that we will the position of our allies. We are working with our not overload the programme if there are cuts. international partners to ensure that their interests are protected during the transformation of DE and S. Lord Astor of Hever: I can assure the noble and Those are all the questions I managed to write gallant Lord, Lord Craig of Radley, that Bernard down. As I said earlier, I undertake to write to the Gray, who wrote the report, is now working for the noble Lord on any others. MoD—poacher turned gamekeeper. I am confident that he has extracted a lot of the assurances that he 3.27 pm was after. Lord Lee of Trafford: My Lords, this is a very short Statement for a huge issue. I remember taking two Lord Trefgarne: My Lords, can my noble friend Bills through the other place nearly 30 years ago to confirm that the input of the chiefs of staff into the privatise the Royal Ordnance factories and contractorise initiation of the defence procurement process—namely the dockyards, which I understand is probably the best the preparation of staff targets and staff requirements— example of a GOCO. I want to query the Minister’s will remain untouched after the changes that he proposes? response that we are unlikely to need legislation. I would be grateful if he could further explore that. Lord Astor of Hever: My Lords, I cannot give my I have four specific questions. First, who is studying noble friend that assurance, but I am pretty certain the comparative benefits of the two main options? Are that the Chiefs of Staff will have had strong reassurances they just MoD officials or are consultants involved as on that issue. well, and what is the cost of those consultants? Secondly, I refer to the claim that, Lord Stirrup: My Lords, I am in no doubt of the “resources and commercial appetite constrain our ability to pursue need to improve the overall performance of Defence these two options”. Equipment and Support. However, I have lost count I really do not understand what commercial appetite of the number of major reorganisations to which the constraints are. The noble Lord, Lord Rosser, also mechanisms for defence acquisition and logistic support raised this point in his remarks. Thirdly, is either have been subjected over the past decade and a half. It option likely to involve civilian redundancies over and seems unreasonable to expect superior performance above the 25,000 already being targeted by the ministry? from any organisation that spends that almost its 117 Defence Equipment and Support[LORDS] Defence Equipment and Support 118

[LORD STIRRUP] Lord Boyce: My Lords, currently Defence Equipment entire time studying its own navel. Can there be sufficiently and Support has stewardship of a key front-line activity, wide-ranging consultation this time so that whatever logistics support, which includes such things as running emerges from this particular exercise has some chance naval bases. However successful or otherwise one might of enduring for at least a number of years, and so that view Defence Equipment and Support’s performance we can get some performance out of the organisation in this area, the current shock with respect to outsourcing rather than a wholesale change of deck-chairs every of major critical activities has to be a concern. Can the few years? Minister reassure the House that the area of logistics support to the front line will be very carefully guarded; Lord Astor of Hever: My Lords, the noble and for example, passing back the running of naval bases gallant Lord makes a good point. As we said in the to the single services? Statement, no decision will be taken until the end of the year. We want to discuss this with as many people Lord Astor of Hever: My Lords, I can give the noble as possible, not least our own workers and the trade and gallant Lord that reassurance. Obviously, in the light unions, so I can reassure the noble and gallant Lord. of the G4S issue, we are looking at it even more carefully.

Lord Burnett: My Lords, I endorse the point that Lord Selkirk of Douglas: Can the Minister say my noble friend has made: we should have a debate whether the withdrawal of equipment that is surplus not only on this matter, but on many other matters. to requirements from areas such as Afghanistan will Perhaps a debate will go some way towards highlighting have any effect on the equipment programme? the matters that the noble and gallant Lord, Lord Stirrup, mentioned. We have had severe and deep cuts to the Army, and questions as to the inequitable Lord Astor of Hever: My Lords, we will have to nature of the redundancy payments and of the capacity decide whether to take the UOR equipment back into and capability of the reserves, however willing they the core defence budget. It is much too early to give are. But on this matter, will my noble friend explain my noble friend an answer on that. We are looking at the advantages to the Armed Forces of privatising the it very closely. Defence Equipment and Support organisation? I hope that factors such as security of supply, urgency, value Lord Elton: My Lords, in mulling over his reply to for money, secrecy and commitment are paramount in the noble Lord, Lord Hunt of Kings Heath, will my the minds of those who are deciding this policy. noble friend—

Lord Astor of Hever: My Lords, I would certainly Noble Lords: Lord Bach. welcome a debate on this subject, not least of all because it would give me more time to swot up on a Lord Elton: I am sorry, the noble Lord, Lord Bach. complicated subject. As for the advantages of privatising It is a mistake I have made before. Bad map-reading; Defence Equipment and Support, and as far as the I apologise. Armed Forces are concerned, there is a compelling case for reform. Analysis has shown that cost and Lord Bach: The noble Lord should not insult my schedule overruns have resulted in significant additional noble friend Lord Hunt of Kings Heath, but he is not cost to the defence budget of the order of hundreds the first to do so. of millions of pounds each year. A GOCO offers the greatest likelihood of focused and sustained improvement. It has the strongest incentive for culture change and a Lord Elton: My Lords, if I can start again, can my drive for productivity. The Armed Forces will benefit noble friend tell us whether in any debate that we have from getting equipment and services on time and at he will be prepared to answer questions about how the right price. research and development will be continued under the new organisation? It is very important that the budgetary Lord Bach: My Lords, do the Government believe and technical skills of the department, the military in the concept of a defence industrial policy? It seems and the commercial suppliers are co-ordinated. How to some of us that in reality this plan may mean that is that going to be managed and by whom? within a fairly short time we will be buying off the shelf from anywhere, at the expense of—and with no Lord Astor of Hever: My Lords, my noble friend regard for—the British defence industry, which is an makes a very good point. If we do have a debate, I excellent manufacturing industry, one of the few that undertake to answer as many questions as I possibly can, remain, providing many jobs and great skills, very and I would ensure that I got sufficient briefing to answer much to the benefit of this country. Some of us worry my noble friend’s question on this important issue. that the ultimate consequence of this sort of decision will be to kill off the British defence industry. Does the Lord Empey: My Lords, some of us in this House noble Lord agree? have had experience of a GOCO being established in Northern Ireland to run the water industry.My colleagues Lord Astor of Hever: My Lords, it is very nice to see will know that it has not been a very pleasant experience. the noble Lord back here discussing defence issues. I I urge the Minister to look at that example because can assure him that we buy the best equipment for our failure in this area would be much more catastrophic. Armed Forces. That is our starting and ending point. Is not planning for defence infinitely more difficult 119 Defence Equipment and Support[17 JULY 2012] Justice and Security Bill [HL] 120 than virtually any other area of Government because Clause6:Proceedings in which court permits closed events quite often occur that require changes in material applications specification, which generate most of the cost overruns? I also support the point made by the noble Lord, Amendment 53 Lord Bach. We are second in the world in aerospace at the moment and there are strategic reasons why we Moved by Lord Hodgson of Astley Abbotts need to maintain a defence industry, which do not 53: Clause 6, page 5, line 18, at end insert— always mean the cheapest contract wins. We have to ““national security” means an operation of the intelligence or maintain a long-term strategic capability in this country. military services” I would certainly be looking forward to seeing that issue addressed in any proposals. I echo what other Lord Hodgson of Astley Abbotts: Amendment 53 is noble Lords have said in calling for an early debate on a simple amendment, which merely inserts at the end this and related issues. of Clause 6(7) a definition for “national security” as meaning an operation of the intelligence or military Lord Astor of Hever: My Lords, as we said in the services. If I say “simple”, it is probably deceptively Statement, we have undertaken to consult as widely as simple, because I fully appreciate that its consequences possible, so I encourage the noble Lord to feed in any are far from simple. Indeed, the noble Baroness, Lady issues he has in relation to the water GOCO so that Manningham-Buller, has very kindly told me that she any lessons can be learned. I, more than anyone, want does not agree with this approach, and as she has to see a strong defence industry in this country and we forgotten more about national security than I will ever will do what we can to ensure that there is one. know, I await with interest what she has to tell me on the other side of this coin. Lord Williams of Elvel: The Minister said that he I make two background points. One is that I am not wants to consult as widely as possible. What form will wedded to the wording of the amendment. This is just that consultation take? We have had a Statement and a the best that the organisation Reprieve and I could number of questions to which there are, apparently, come up with. However, I am wedded—this is the no answers because the Minister says he has not been second point—to the idea of a debate, so that we can briefed. Will there be a Green Paper? Will there be a explore the advantages and disadvantages of having debate? What are the answers? It is a sad day in this a definition. Why, on balance, do I think that there House when we have a Minister saying, “I am terribly should be a statutory definition? I suspect that, over sorry, but I do not know the answer to any of these the years, the absence of a definition has given the questions”. Secretary of State quite a lot of freedom. It may or may not, in the past, have been useful and helpful to Lord Astor of Hever: My Lords, that is very unfair. have a flexible definition, but we are now looking at I did not say that I had not been briefed; I just said different things in the Bill and I think that the arguments that I would welcome a debate because it would give about flexibility come under more stress and strain. me much more opportunity to talk at greater length about these very important issues. I never said that I I will share with the Committee some examples of had not been briefed—that is completely untrue—but the flexible use of the phrase “national security” in the I would welcome a debate in order to air all this and to past. Some 40 years ago I applied to join the Foreign hear any questions and issues that noble Lords have Office and it turned me down, greatly to its good on this important subject. fortune. I was told in my interview that if I had certain sexual preferences, this would give rise to questions of Lord Stoddart of Swindon: My Lords, following the national security. More recently, I recall an elderly question from the noble Lord, Lord Bach, about the heckler of the then Prime Minister Tony Blair being need to maintain a strong British defence industry, detained under prevention of terrorism laws, which and the Minister’s agreement with that, is there any presumably also could give rise to questions of national constraint on that policy through having to obey the security. The rather graphically described “spy HQ” strict rules under the single market by which contracts overspend on both the MI5 and MI6 buildings, whose have to be advertised throughout the European Union? costs overran by £226 million, was able to be discussed Value for money is an absolute, although there may be only in part on grounds of national security. constraints upon the cost that is paid. 3.45 pm Lord Astor of Hever: My Lords, as I said earlier, I Those are some of the different sorts of issues that want a very strong British defence industry. We have have given the Minister of the day discretion to use to obey EU industrial rules, whether I like it or not; we that particular term. I accept that that was then and have to stand by them. this is now, but under this legislation, the Secretary of State has the power to use “national security” as a trigger for the closed material procedure, with all that Justice and Security Bill [HL] that entails, and which noble Lords have been discussing Committee (3rd Day) these past few days in Committee. Given these new powers, “national security” needs to be defined, first, 3.42 pm and not least, to avoid the danger of citizens being Relevant documents: 3rd and 4th Reports from the swept up by a future Secretary of State’s view of what Constitution Committee, 5th Report from the Delegated constitutes national security—perhaps against the Powers Committee. background of great national anxiety because there 121 Justice and Security Bill [HL][LORDS] Justice and Security Bill [HL] 122

[LORD HODGSON OF ASTLEY ABBOTTS] national security not to tell me the terms under which has been some outrage or other—and, secondly, and these flights took place. It was very difficult to accept equally importantly, because the Government of the that because I could read in the American papers day should not be able to use the phrase to avoid exactly what had happened, but evidently it was not incidents that reveal embarrassment or incompetence. something that could be given to me as a Member of Although the narrowing of the term from that of Parliament in this country about something which had “sensitive information”since the Green Paper is welcome, happened from this country, which had been an outrage “national security” still covers a potentially broad and which was based upon false information provided range of definitions. For the purpose of this legislation, by the American security services. it would seem sensible to limit it, perhaps to operations I am one of those who voted against the Iraq war of the intelligence services or the military, or seek to on the basis that I did not believe what the Prime limit it to an identifiable operation that would impact Minister was telling me—or rather I thought he told on the security of British citizens. me more than he knew, which is perhaps a more polite The special advocates have been prayed in aid a lot and parliamentary way of putting it. One reason why in Committee and I am afraid that I am going to do so I did was that I had learnt—as the French say—to again. They say in their briefing that there has been, méfier when it came to such a firm statement that it “no attempt to define ‘national security’. This leaves open the was about national security. We have gone through a possibility that the Government will in the future seek to argue period in which these words have been used more to that cases currently understood as impacting on the international avoid embarrassing comments and questions than to relations of the United Kingdom or on serious crime fall within the phrase ‘national security’. The Government should be invited fulfil their important role of protecting our lives and to make clear, either by amending the Bill or by making a Pepper v those of our servicemen. I do not think that anybody Hart statement, that it will not argue for such an expansive could accuse me or my noble friend Lord Hodgson of interpretation of ‘national security’”, being other than clearly on the side of the right, in in the future. more senses than one, so we are not likely to wish to I accept that there are arguments on the other side undermine national security. However those of us who against this, which can best be summarised by the take that view have an important role in making sure problems caused by the legal straitjacket of a statutory that it is not misused, as it so often is. In this House we definition and the inability to respond to changing have a series of examples when, because of public circumstances. Perhaps at some date in the future, a outcry, we legislate in all sorts of areas, saying that case that clearly involves national security will somehow there is a greater national good which overcomes the fall outside the statutory definition, which would be a normal concerns. At no time is that more important tragedy. Speaking against my major argument, I see than when we have a great concern about terrorism. the force of this, since I have been carrying out the If we look back into history, some of the biggest charity review, where we have been trying to consider a losses of freedom have taken place in defence of statutory definition of “public benefit”. That suffers national security and in the prevention of terrorism. from exactly the same issues—it changes all the time In a sense, it is not for those who always dislike the and the voluntary and charity movement shifts and forces of law and order to fight this battle; it is for creates new areas of activity. In the end, I concluded those of us who are instinctively and almost by DNA against a statutory definition because of the inflexibility on the side of the forces of law and order to explain it would impose, particularly given the entrepreneurial why we are worried when this sort of thing happens. I nature of the sector. But—and it is a big but—“public have four children. One was taking a dog for a walk benefit” does not result in people going to prison for when it stopped—as dogs do—on the other side of offences based on evidence they are not, or cannot be, Whitehall from Downing Street. While the dog fulfilled told about. its purpose, a policeman approached my child and On balance, I think that a statutory definition said that he should move on. My child politely said: should be brought in. As with all the amendments I “The dog is just about to finish”. The policeman said: will be moving on this part of the Bill, this is a probing “If you don’t, I’ll arrest you under the Prevention of amendment and I look forward to hearing the Terrorism Act”. My child was intelligent enough to Government’s view on the principle, not the precise say: “I do not think, officer, that you can do that, but if words chosen. I beg to move. you just let the dog finish”. It was only through the intervention of a senior officer that there was not what Lord Deben: My Lords, I rise to support this I might call “an incident”. amendment in much the same way as it was presented. I know that this does not happen widely but it is In other words, I can understand that these may not be very easy to use these phrases as though they help in the words which the Government could accept, but these discussions. That is why I want a definition. some definition is essential and I can give a personal “National security” is far too wide a phrase. It may be example of how I believe that to be so. During the that we need to extend it from this, but I hope that the time when I was in the other House, I sought to Government will take seriously the fact that the time establish, for constituency reasons, the precise details when we are most concerned with terrorism is when of why a number of aeroplanes flew over my constituency freedom needs to be protected. It is now that we have to bomb an aspirin factory in Sudan. The information to take these measures and make sure that we are not was available in detail in the United States. As I got giving future Home Secretaries, Prime Ministers and nearer and nearer by asking a series of questions, the like the ability to use ill worded phrases to do I was told that I could ask no more questions because things that, both in prospect and in retrospect, would the Prime Minister had decided that it was a matter of do a great deal of harm. 123 Justice and Security Bill [HL][17 JULY 2012] Justice and Security Bill [HL] 124

The Marquess of Lothian: My Lords, I have very son of the noble Lord, Lord Deben, and his dog or the mixed feelings about this amendment. I said in my use of the phrase to cover embarrassment. These speech at Second Reading that national security should things are absolutely not to do with national security, not be so widely interpreted as to give cover for which is being used as blanket cover. embarrassment or incompetence. I am sure that is absolutely correct. Indeed, my noble friend Lord Hodgson 4pm made that point. However, I am very worried when we begin to interpret something such as national security There are some issues and problems with this in terms of specific operations or departments. In amendment. If the Committee will allow me, I will passing, I make the point that the Diplomatic Service give a slight history lesson, and I apologise for that. may do many things overseas that affect national When I joined the Security Service, national security security. Many embassies that I have been to have meant to us something pretty narrow following the protected rooms where such matters can be discussed. Attlee instructions at the end of the war to the intelligence It would be naive to say that because they were done community. It involved the military protecting the UK by the Diplomatic Service and not the intelligence from the threat of military attack and the security and service, those matters were not, in the terms of the intelligence services protecting it from espionage, sabotage, Bill, ones of national security. terrorism and threats to parliamentary democracy from the extreme right and extreme left—fascism and I do not have an answer. All I can say is that you communism. That understanding of national security, know national security when you see it. The difficulty articulated in the Attlee declaration, informed the first of looking at this in terms of legislation is that you tranche of legislation: the Security Service Act, the cannot see it. To give one example, we debated earlier first Interception of Communications Act, the Intelligence the activities of the Intelligence and Security Committee Services Act and Regulation of Investigatory Powers and the process of redactions. When a suggestion to Act. It was an understanding which certainly was not redact is made by the Prime Minister, it has to be on articulated in law but was well understood within the the basis of national security. There have been cases in community. which the committee has argued that national security was not affected. In the course of a practical argument The previous Government—and I do not blame you can come to an answer about what is national them for this—said, “Hold on, the security and safety security and what is not. This does not help the of the citizen is much wider than these issues”. Therefore Minister on the Front Bench. However, I feel it is they drew up, under the previous Prime Minister, a somehow better to leave the definition more open and national security strategy which was much broader allow it to be interpreted in the context of the individual and included things such as pandemics and added circumstances of each event than to curtail it within cyberthreats, energy security and so on and this the definition of the activities of various departments. Government have built on that early national security In the end, we might find that we are throwing the strategy and now have quite a long national security baby out with the bathwater if we proceed in that way. strategy that covers a wide range of issues. In this Bill, it seems to me that we are talking not The Earl of Erroll: My Lords, I shall make a couple necessarily about the operations—the noble Lord’s of topical points in support of the noble Lord, Lord definition and that of the noble Lord, Lord Hodgson— Deben. This is very complex. In the old days, in a less but about protecting the sources and methods of complex world, we knew how to finesse these things in intelligence, for which the threshold needs to be very a common-law society. Now we are moving towards high. I know I have said this before in the House, and I statute law. The French know how to disobey the law hope noble Lords will excuse me for repeating it, but sensibly in view of local circumstances. They know sources of information are vulnerable. They can be that you cannot slavishly obey every rule. We have not killed, and they then cannot produce intelligence that learnt that yet, so we should be very careful about how might be life-saving. Techniques can be damaged we set the rules in case they are slavishly obeyed. overnight, rapidly. What we are trying to do here is to Somehow blurring the boundaries is much more sensible. protect the most sensitive sources and methods but I am not sure that having this whole thing of national not the picture of what has happened, the material security quite works. We have seen photographers that should be available to the court which may be being stopped for photographing perfectly innocent sensitive. I would say that it is actually narrower than targets in the name of national security. I am very what the noble Lord, Lord Hodgson, is suggesting for worried about the way that certain people will use the purposes of this legislation. However, the difficulty these rules to stop normal activities. We regard ourselves with a waterproof definition, however attractive, is as a free country but, if we are not careful, we might that this is a moving picture. At one stage, natural cease to be free. We have to worry about how other hazards and disasters—pandemics and so on—were people, less sensible than us, may interpret rules in a never in a national security strategy. We can argue very strict way in the future. whether they should be, but successive Governments, rightly, take different interpretations of the breadth or narrowness of the subject. Baroness Manningham-Buller: My Lords, I say to the noble Lord, Lord Hodgson, that I certainly did not say that I knew all there was to know on the The Earl of Erroll: My Lords, there was one thing subject. I understand the concern over the misuse of I forgot to say. It is important to the noble Lord, Lord this phrase to which everyone has referred. No one in Hodgson. I think Pepper v Hart applies only where this Committee would support what happened to the there is a conflict between European directives or 125 Justice and Security Bill [HL][LORDS] Justice and Security Bill [HL] 126

[THE EARL OF ERROLL] It advises that, regulations and UK law and the interpretation of it. “the proposals are not likely to satisfy the requirements of Article 6 Therefore you may not be able to get a Pepper v Hart … in a significant number of cases”. —as you might say—pronouncement from the Minister That is a fairly trenchant critique of the proposals. tonight. The commission concludes that the Government have, “failed to demonstrate the need for the Bill’s provisions … The Lord Thomas of Gresford: I think that is too narrow move from evoking a CMP on public interest grounds to national a definition of the Pepper v Hart principle. I seem to security grounds has been reported as an acceptable narrowing of the original proposals. Human rights law accepts national security recollect that when this Bill was first discussed and as grounds for qualifying rights. However, NIHRC expresses promulgated, the Government were intending not to concern that ‘national security’ remains a broad term that might use the test of the interests of national security but still be relied on too readily by Government and in a manner that what was in the public interest. That was thought to be is not consistent with its human rights obligations”. extremely wide. The leader of my party and my noble The briefing refers, as the noble Baroness, Lady and learned friend’s party, apparently—at least he Manningham-Buller, referred, to the national security claimed—fought for its reduction to the interests to strategy, with its references to pandemic diseases and, national security. Where the public interest stops and “natural hazards along with increases in organised crime are national security begins is a fine line, or perhaps it is a listed as threats to national security”. fuzzy one, but it is up to the Minister to give to a judge It concludes that the Government are, who has to consider applications of this sort positive “yet to be sufficiently definitive about what it means by national guidelines as to what the Government have in mind security for the purposes of requiring a court to permit a CMP in now they have reconsidered the original purpose of a civil case. The risk is that what is now claimed to be a ‘fix’ for a their Bill. limited number of civil cases”— and that is the Government’s case; the extent to which it is likely to be limited to very few cases is supported Lord Beecham: My Lords, the noble Lord, Lord by Mr Anderson— Hodgson, is too modest in proclaiming that this is a “becomes a ‘fix’ increasingly relied on by Government to obstruct simple amendment, since it goes to the heart of the scrutiny and attempts to seek redress”. whole principle of Part 2 of the Bill, which changes— potentially fundamentally—the approach to the operation The commission’s are not the only concerns that of civil justice, though not of course criminal justice, have been expressed about the issue of definition. In in the provision of a system permitting, in circumstances evidence from the special advocate to the Select that we are debating, material to be kept from one Committee, Mr McCullough stated that, of the parties and utilised under the closed material “there is the possibility that national security could be very broadly defined, unless some reassurance as to its scope were procedures. given. On one view at least, anything, or almost anything, involving It is worth reminding ourselves of some of the international relations might be argued, and one could envisage concerns that have been expressed. I am particularly being argued by the Government, as to have an impact on interested in the briefing submitted by the Northern national security”. Ireland Human Rights Commission, as it comes from Of course, as has already been indicated, it is not a part of the country that has confronted security really possible to be definitive about what constitutes issues to a very considerable degree and has suffered national security and what does not. It would be considerable harm over the past few decades from impossible to be conclusive because, as noble Lords activities that all of us would deplore and which would have indicated, circumstances change and threats change, probably come within the compass of any definition and it would be foolish to prescribe a definitive list. of national security. The noble Marquess, Lord Lothian, said of national Nevertheless, the Northern Ireland Human Rights security that you know it when you see it. The question Commission in considering the Bill proclaimed that it is, in these circumstances, who is “you”? The Government was, may take a view; others may take a different view. Although these matters are difficult, we have to try to “regrettable that despite some modifications to the proposals in the Green Paper, and the declaration under clause 11 … of the evolve a system that will give some guidance to those Bill”, who operate the system and, indeed, those who may concerning these matters, there remain, ultimately have to form a judicial position on individual cases. “the risks to the right to a fair trial under Article 6”, of the European Convention on Human Rights, and Article 14. The commission goes on to say—and this The Marquess of Lothian: My Lords, Clause 6(2) matter was referred to in Second Reading—that the states: Government have, “The court must, on an application … make such a declaration “yet to make an evidence based case as to how the current Public if the court considers that … such a disclosure would be damaging Interest Immunity provisions have failed to protect national security to the interests of national security”. interests and therefore why a system of CMPs is needed at all”. My point is that, in order for the court to be able to The commission affirms that it would appear that the make that decision, that court procedure is the time when Government are, you can actually “know it when you see it”. There may “prepared to sacrifice fair trial protections and wait for litigation be arguments on both sides but the court has to to be brought by those alleging”, resolve that. We, at the moment, are arguing that in a a breach of Article 6, vacuum the court will have to decide it according to “rather than ensure adequate protection from the outset”. the particular circumstances. 127 Justice and Security Bill [HL][17 JULY 2012] Justice and Security Bill [HL] 128

Lord Beecham: It would, but the court would be or a definition that would assist on the question of assisted perhaps by an approach in which the Government national security. Does it follow that if there were in advance and in general terms—and not necessarily further guidance or a better definition of national on a permanent basis—indicate what they consider is security along the lines he suggested, that would go relevant for the purposes of these claims. They could, some way to satisfying whatever needs to be satisfied for example, say, “We have a national security strategy, in terms of the party opposite’s potential opposition but there are things in here on which we would not to CMPs? seek to rely in cases that might be brought”—say, organised crime or any of the other matters to which Lord Beecham: My Lords, we are capable of simple the commission referred and to which the noble Baroness, arithmetic, and it may be that, in reality, the Government Lady Manningham-Buller, referred. will get their way on the principle. We will keep an The noble Lord, Lord Hodgson, provides a definition open mind through Report stage and listen carefully that is both too broad and too narrow. It seems too to what the Government say. At the end of that broad if one looks simply at the definition of “intelligence process, we may or may not accept the case. If it is the or military operations”. There have been cases that wish of this House—in the first instance—and of resulted in inquests—to which these procedures would Parliament as a whole to proceed with closed material not apply—where, for example, there might be a question procedures, we might come to what one could call the about whether equipment used during military operations last-resort position of looking at how best to limit any was fit for purpose, and that might give rise to a civil application of the new procedure and how to make the claim, for example, by a wounded soldier; we know best of the situation, in the interests of justice and the that such incidents have arisen. The noble Marquess traditions that this country has espoused for centuries. might say that that does not really constitute national It would be making the best of what we currently security for the purposes of bringing a claim. On the consider is a very bad job. However, we are open to other hand, the definition could be considered too evidence. There is not a great deal of evidence at the narrow, because one can envision circumstances in moment, although there has been some to which which there was no military operation but there was Mr Anderson referred—the three cases which seem to transportation of chemical or fissile substances or have persuaded him that there is a need for such a storage of such things, which were not necessarily for procedure. However, as I reminded the House the military purposes but which obviously would count as other night, he also said that the Government’s proposals being relevant to national security because of the risk were disproportionate and suggested measures that of terrorists seizing the equipment or substances. Those would have some mitigating effect on the process, if it examples illustrate the difficulties but do not, perhaps, were to be implemented. take us very far. That is the position of the Opposition. We are not I wonder whether, in these circumstances, it might taking a premature stance on this. It would be interesting be a matter for the Government, possibly with the to know, for example, whether the special advocates assistance of the Intelligence and Security Committee, have, as suggested, actually been shown the files of the to provide some guidance about what would be deemed independent adviser who is to be consulted, or whether to be relevant to the issue of national security in the the process is going to take place at all, and what the event of an application being made, assuming that the view of the special advocates is. Your Lordships will basic principle is accepted and that the Government recall that they were very critical. Almost all of them are found by Parliament to have made their case—and, signed up to criticism of the proposals as they stood. I repeat, so far as the Opposition are concerned, we In evidence to the Select Committee, Mr McCullough are not yet convinced of that. It may even be that said that he would welcome the opportunity, if it were negative definitions of the kind that I have indicated in given, to look at the cases that seemed to have persuaded relation, for example, to the national security strategy, Mr Anderson to accept the principle, given that, as he might be helpful so that you can exclude certain things made clear, he continued to think there would be only ab initio, and you might give an indication of things a limited number of cases. At the very least, the that are clearly included—military operations, I would amendment has allowed us to look at ways in which have thought, certainly would be included. such cases might be restricted to a small number, The contributions of the noble Lord, Lord Deben, against criteria that, although not statutory, might be and, in particular, the noble Lord, Lord Hodgson, as developed while the Bill is making its way through well as that of the noble Earl, Lord Erroll, have Parliament. indicated the breadth and depth of concern about the road we are embarking on. It is not beyond the capacity The Advocate-General for Scotland (Lord Wallace of the Government, with the advice and support of of Tankerness): My Lords, I am grateful to my noble the ISC, to produce not a statutory definition, because friend Lord Hodgson for bringing forward the that would be too rigid, but guidance that would assist amendment. It is clear from the contributions that it the courts and others in considering these matters at raises an important issue. I certainly recall that on the relevant time. Does the Minister consider that a publication of the Bill, the issue of whether there was step worth taking? a definition of national security was raised not just by a number of Members of your Lordships’ House 4.15 pm but more widely. It is important to define the type Lord Faulks: The noble Lord said that the party of material that closed material procedures should opposite is not yet convinced of the need for CMPs, be used for. I hope that I can set out why we think and he made various suggestions about possible guidance we have reached in the Bill the right definition of the 129 Justice and Security Bill [HL][LORDS] Justice and Security Bill [HL] 130

[LORD WALLACE OF TANKERNESS] I will finish my point on Clause 11(5). Nothing in type of material that would be considered within a Clauses 6 to 11 should be read as requiring a court to CMP—material that if released would damage national act in a manner inconsistent with Article 6 of the security. European Convention on Human Rights. In that respect The Government carefully considered the responses it could be said that Article 6 trumps the provisions to the public consultation on the Green Paper, including expressly set out in Clauses 6 to11. consideration of the scope of the material to be covered, My noble friend expressed a recognisable concern before bringing forward this legislation. The Bill makes that national security today might involve serious provision for closed material procedures to be used crime or international relations tomorrow. It is very only in contexts where there would be damage to clear that not only will it not, but that international national security. Examples of sensitive material that relations and criminal activity have been considered might be relevant to a case that would give rise to a and rejected for the purposes of closed material duty to claim public interest immunity, and which proceedings in civil cases. The Bill deliberately omits could also be heard in a CMP under this legislation, other aspects of the public interest from CMP clauses, include, for example, information from a sensitive such as international relations and the prevention of source whose life or safety could be put in danger if detection of crime, even though these categories are openly disclosed. I think that example was given by included in existing statutory CMPs. I hope that that the noble Baroness, Lady Manningham-Buller. Other gives the assurance that it is certainly the intention of examples include information relating to current the Government that there should not be definition operations that would be compromised if it were to be creep, as it were. made public; intelligence material shared with the My noble friend asked about Pepper v Hart, as did United Kingdom by foreign intelligence agencies; or the noble Earl, Lord Erroll. It is not only when European the content of telephone calls or e-mails intercepted Union issues are involved but when there is doubt in a by the intelligence agencies that would not be admissible court case about the interpretation of any primary in open civil proceedings. It is difficult—a number of legislation that the parties can resort to statements noble Lords said this in their contributions—to be made in Parliament that should throw light on the completely prescriptive about all the types of damage interpretation. So this is not limited to an EU context. to national security that could justify closed material We cannot dictate to the courts how to apply Pepper v proceedings. Hart, but doubtless, in future, parties to litigation will The amendment in the name of my noble friend be able to read what I am saying today at the Dispatch introduces a definition. I would assert that the term Box and, if pertinent, advance cases to the court on “national security” is clear, tried and tested. My noble that basis. friend Lord Lothian said that it is clear “when you see I have an embarras de richesses. it”. One noble Lord asked: “Who sees it?” In this case, the judges see it. The Secretary of State makes an application to the court, and the judge determines Lord Pannick: Can the Minister confirm that the whether it satisfies the condition that there would be concept of national security under the Bill is deliberately damage to national security. intended to be narrower than the other concepts included in the Bill? I have in mind Clause 5(5), which appears It has been for judges to interpret this term to contrast the concept of national security with the appropriately and flexibly. The flexibility of the current broader concepts of public interest, the prevention or approach allows the judge to consider the arguments detection of serious crime and the economic well-being of the Secretary of State on their merits. Of course, of the United Kingdom. It appears from Clause 5(5) the procedure, even at the initial gateway stage, would that those are distinct matters. National security is a also allow special advocates to make representations much narrower concept, and similarly Clause 13(5) to the court. appears to contrast the concept of national security The noble Lord, Lord Beecham mentioned Article 6 with the concept of the interests of the international of the European Convention on Human Rights. It is relations of the United Kingdom. I understood the important to remember that in Clause 11(5)— noble and learned Lord to confirm that those other concepts were not within the concept of national security. Lord Hodgson of Astley Abbotts: The noble and learned Lord just said that the special advocates could Lord Wallace of Tankerness: My Lords, for the make representations to the court. I am not a lawyer, purpose of closed material proceedings and what we as I have said frequently, but Clause 7(1)(b) states that, are dealing with here, national security is the specific “such an application is always considered in the absence of every concept, although it is not defined in the Bill. As I other party to the proceedings (and every other party’s legal indicated, the Green Paper suggested that it might go representative)”. wider to include some of the matters that the noble Does that not mean that only one side presents? Lord, Lord Pannick, raised, but we have quite clearly indicated that that will not be the case in matters of Lord Wallace of Tankerness: I think that my noble national security. I give way to my noble friend who friend has an amendment later where we can explore I understand was a counsel in Pepper v Hart. this more fully. It is the case that special advocates could be engaged both at the second stage, when Lord Lester of Herne Hill: I have two points. I do individual pieces of evidence are being considered, not understand why it is necessary to refer to Article 6 and, by virtue of Clause 10(4), at the application stage. of the convention in the way that the Bill unusually 131 Justice and Security Bill [HL][17 JULY 2012] Justice and Security Bill [HL] 132 does, given that the Human Rights Act requires the I put a point to him which is utterly fundamental? The Bill to be read and given effect to—in so far as is noble Marquess, Lord Lothian, said that we would possible—compatibly with convention rights, including know national security when we came across it. To put Article 6, and given that the court is required under a judge in that position would mean that we would Section 6 of the Human Rights Act to act in a way give them a legislative function as opposed to an compatible with convention rights, including Article 6. interpretative function? That should be avoided, should I have not before seen in any other legislation post the it not? I do not expect an immediate answer from the Human Rights Act the singling out of an article of the Minister, but could I leave him to mull over this convention in that way. It seems to me to be troublesome thought? It may be that a different approach could as it might lead to some inferences that are incompatible settle the matter in this way. If there was a definition with the scheme of the Human Rights Act. of national security—something of the order of dealing On the same subject, the convention distinguishes with a situation that jeopardises, or has the potential between national security in the narrow sense and to jeopardise, a fundamental function of the state—might factors like the economic well-being of the country, to that be not unacceptable? which the noble Lord, Lord Pannick, referred. Am I right in understanding that those are the kind of Lord Wallace of Tankerness: My Lords, I will certainly distinctions that the Government have in mind when mull over that point. However, in coming up with any they deal with national security in a narrow sense? definition, we would want to be very careful that it did not exclude things that should be included or include Lord Wallace of Tankerness: My Lords, I hope that things that perhaps should be excluded. We will look Clause 11(5)(c) is not troublesome because it is intended very carefully at what he has said. The intention is that to be the opposite. As we have already heard in our the concept should be a narrow one that will come deliberations in Committee, concern has been expressed, into play in a very small number of cases. However, even a short while ago by the noble Lord, Lord the definition set out in the amendment would not Beecham, about Article 6. The clause seeks to give cover everything that is damaging to national security. reassurance and I hope that my noble friend will be Factors that are damaging to national security can satisfied with that. No doubt there may be something change in accordance with assessments about the threat on which I can give further reassurance. I think I am to the country. That was reflected in the contributions right in saying that what is there follows what is in the we have had, not least from the noble Baroness, Lady TPIM Act and the Counter-Terrorism Act. Questions Manningham-Buller. If the definition is too narrow, might be raised but it is there to make matters absolutely we take the risk of legislation becoming unfit for the clear. purpose for which it is intended. Sensitive intelligence My noble friend Lord Hodgson said that he hoped and security material which security intelligence agencies that we would not allow a situation where citizens hold and which is so vital to the discharge of their would be swept up by a wide definition of national important statutory functions will have been acquired security. My noble friend Lord Deben gave a graphic by them in a variety of ways and from a variety of illustration of his son walking the dog. It will not be a different sources. Not all national security-sensitive constable or a high-ranking officer in Whitehall but material held by the security and intelligence agencies a judge who will make the decision. Nor indeed—I will by any means relate to, or be the result of, operations. shall make this very clear—is the intention to avoid In view of this, we believe that the amendment is embarrassment. In fact, an important purpose of the unduly limiting. For example, if information has been Bill is to allow material to be considered by the courts shared with United Kingdom agencies in confidence in cases where to exclude it may mean that a case has by foreign intelligence agencies, or has been disclosed to be settled. The purpose is actually to allow a court to them in confidence by human sources, the amendment to be able to consider it; this is far from wanting to would not enable such information to be used within a sweep things under the carpet. If it were the case that, CMP,however sensitive the provenance of the information at some date in the future, a Secretary of State tried to and however confidential the relationship. There could use the provisions for the purposes of concealing also be a situation where the agencies have undertaken embarrassment rather than to prevent damage to national preliminary research and analysis before deciding whether security, that is something the court would be entitled there is a sufficient national security case to justify to take into account when deciding whether the gateway embarking on an intelligence operation. Information test in Clause 6 was passed. generated during the course of that preliminary work, There is another point I would make to my noble whether or not an actual operation ensued, could well friend Lord Hodgson, who said that the possibility of be highly sensitive in security terms and of significant someone going to prison was important here. I would relevance in a particular case. However, if the amendment like to reassure both my noble friend and the Committee was accepted, it would not be possible to use the that the provisions in this part of the Bill relate to civil, information. not criminal proceedings. There would not be a situation, I think that it was the noble Lord, Lord Beecham, therefore, where a person would go to prison as a who said that there was a danger that the amendment result of the provisions in this part of the Bill. was both too broad and too narrow at the same time. It could also go wider, in that not all matters—including 4.30 pm operations by the military—would relate to national Lord Elystan-Morgan: My Lords, I thank the noble security. In fairness, my noble friend Lord Hodgson of and learned Lord and I apologise for the fact that Astley Abbotts accepted that the terms of the amendment I missed the opening skirmishes of this debate. May might not be ideal. It is perhaps illustrative of the fact 133 Justice and Security Bill [HL][LORDS] Justice and Security Bill [HL] 134

[LORD WALLACE OF TANKERNESS] threats to the UK’s national security? The flexibility is that any attempt to make a definition can often be there for the security services to be charged with either too limiting or too broad. The Bill recognises responsibilities without there being an exhaustive list. that national security is very much an issue for the The noble Lord, Lord Beecham, accepted that there Secretary of State. might not necessarily be a statutory definition and he raised a question about guidelines. I will certainly Lord Butler of Brockwell: My Lords, in supporting consider guidelines, but I am not entirely sure where the noble and learned Lord’s argument that the definition they would fit into the guidance being given to the should not be too narrow, perhaps I may take him court, even with the help of the ISC in devising them. back to the point made by the noble Lord, Lord Pannick. However, I know that the suggestion was made in a He sought to establish that national security was a constructive manner and I will certainly think about narrow definition by invoking the categories in new it in a constructive way. I do not readily see how it will Section 59A(5), as inserted by Clause 5, which are, fit in, but I will certainly consider it. He may wish to “national security … the prevention or detection of serious elaborate on what he had in mind. crime”, and, Lord Beecham: I particularly had in mind ruling “the economic well-being of the United Kingdom”. out areas—the noble and learned Lord has already It must be the case that national security would include indicated some of them—that would not be deemed to some of those other categories. The most obvious one fit within the definition that the Government seek to is, apply. It is an exclusive rather than an inclusive list “the prevention or detection of serious crime”, that I think might be helpful, which might be terrorist crime. Lord Wallace of Tankerness: My Lords, I hear what Lord Wallace of Tankerness: My Lords, the Green the noble Lord says. I have already tried in response to Paper suggested that there might well be the category the debate to indicate some of the things that are of the prevention of serious crime. That was considered excepted from the definition as we have it. With those by the Government. I indicated earlier in my remarks considerations in mind, I invite my noble friend to that the Bill deliberately omitted from the definition withdraw his amendment. other aspects of the public interest from the CMP clauses, such as international relations and the prevention Lord Hodgson of Astley Abbotts: My Lords, I began or detection of crime, although they do apply in other by saying that I did not believe that this was an statutory CMPs. But the consideration of the open-and-shut case, and so it has proved. My noble representations received in response to the Green Paper and learned friend has referred to the “statutory was to make it solely matters that would be damaging straitjacket”and problems thereof. Interestingly enough, to national security. while the debate was going on, I was passed a note by The policy of successive Governments and the practice one of my noble friends showing a case in which he of Parliament has not been to define the term “national was involved, where national security was invoked in security”. As a number of your Lordships accepted, it quite an extraordinary way. I do not therefore think has been to retain the flexibility needed to ensure that that I have yet reached entirely firm ground. the use of the term can adapt to changing circumstances —for example, changes to the threat environment and I am grateful to my noble friend Lord Deben for his advances in technology. The nature of national security powerful and very apposite remarks and speech. My threats and risks is constantly evolving. That, in turn, noble friend Lord Lothian is of course an eminent requires the Government and the security and intelligence Scottish advocate. I am not an advocate, Scottish or agencies to maintain their ability to evolve. otherwise, but in reference to his remarks on Clause 6(2) about the court deciding, I am told that where a judge My noble friend Lord Lothian suggested that it is faced with a statement by the Secretary of State would be better to leave this open and the noble Lord, leading to a CMP—not a weighing of evidence like we Lord Beecham, accepted that it was not always possible have in PII—to the effect that this would be damaging to be definitive. The current approach is based on the to national security, the judge is unlikely to push back recognition that this is a flexible concept which evolves on it. Therefore, the idea which the clause might in the light of changing circumstances. As my noble technically give rise to is not, according to legal opinion friend Lord Hodgson said, we want to avoid a legal that I have heard, likely in practice to happen. Those straitjacket. The risk of any attempt to be precise and who have experience in your Lordships’ House will be exhaustive would be to constrain the ability of the able to discern this better than I can. That is something security and intelligence agencies to adapt their operational which we can no doubt explore another day. approach and develop capabilities to meet new and unexpected changing threats. I said that the noble Baroness, Lady Mannigham- Buller, had forgotten more about national security I will conclude with a pertinent example. Neither than I would ever know. It was meant to be a compliment, weapons of mass destruction proliferation nor cyber for the avoidance of doubt. attacks feature in what is fortunately a non-exhaustive list of threats to national security which the Security Service is specifically charged with countering in Section 1 Baroness Manningham-Buller: I take it as a compliment. of the Security Service Act 1989. But who could deny It just sounded as though I had been boasting, and that, some 23 years later, these activities represent serious I would not want to do that. 135 Justice and Security Bill [HL][17 JULY 2012] Justice and Security Bill [HL] 136

Lord Hodgson of Astley Abbotts: It certainly was Clause 6(2) as currently drafted provides that CMP not boasting. It was my remark, not any remark the applications apply where a party to the proceedings, noble Baroness made to me. I found her history lesson, “would be required to disclose material”, as she described it, very useful. We started from a and so it is still open to the security services to argue narrow definition which has now moved out to a much for what they call a statutory bar, which would mean wider range of threats. Of course, one must accept her that they were not required to disclose anything at all stricture about protecting sources of intelligence where unless they were themselves being sued. Paragraph 3(4) men and women put their lives on the line to help of Schedule 1, which we have looked at on a number provide intelligence that protects this country. I thought of occasions, is interesting because it makes a specific her suggestions about narrower definitions were very provision that disclosure to the ISC is, interesting. As we are going to be using CMPs in rare cases and we accept that this is a dangerous precedent “necessary for the proper discharge of the functions”. in many ways, perhaps some relationship between the It is there, presumably, to counter any argument that definition and the operation of this Bill might be might be made by the security services that they were helpful. not required to disclose anything to the ISC in particular circumstances. If that specific provision is in place for In conclusion, I just say that the shift in gears with the ISC, there is no reason why a similar provision this Bill—the widening use of CMPs—requires us to should not be made for disclosure to the court under consider and reflect on how we use the term “national Clause 6(2), which is the purpose of the additional security” as the trigger without any definition. My clause I have advanced. It would counter any argument noble and learned friend has given plenty of food for that the security services would not be required to thought and I would like to have a chance to consider reveal anything unless they were being sued themselves. and reflect. In the mean time, I beg leave to withdraw I beg to move. the amendment. 4.45 pm Amendment 53 withdrawn. Lord Pannick: My Lords, would the noble Lord Clause 6 agreed. clarify whether the court accepted the argument that it was outside the duties of the intelligence services because they were not themselves being sued? Amendment 54 Moved by Lord Thomas of Gresford Lord Thomas of Gresford: As I understand it, the court did not accept the argument. 54: After Clause 6, insert the following new Clause— “Disclosure of information Lord Beecham: My Lords, I am grateful to the The disclosure of information in civil proceedings pursuant to an order of the court is to be regarded for the purposes noble Lord for a clear explanation of something which, of the Security Service Act 1989 or the Intelligence I am afraid, I approached with complete bewilderment. Services Act 1994 as necessary for the proper discharge I simply did not know the point he was aiming at. I do of the functions of the Security Service, the Secret Intelligence now and I am persuaded by his argument. I hope that Service or (as the case may be) the Government the noble and learned Lord will be sympathetic to the Communications Headquarters.” case he has made because it is convincing and consistent with the approach to the Intelligence and Security Lord Thomas of Gresford: My Lords, this amendment Committee. Given that precedent, I would have thought is concerned with an anomaly that was revealed in the not that it would damage the interests of the security case of Evans v Ministry of Defence. The case concerned services, but rather that it would strengthen the role of the handing over of Taliban suspects by British forces the courts and uphold the principles that Members to Afghan security police, with the distinct likelihood across the House seek to maintain in terms of the that they would be tortured. The security services operation of the justice system. I hope that the noble argued that they were not required to disclose documents and learned Lord will accede to his noble friend’s plea. in their possession for the purposes of the case because they were not themselves being sued—they were not Lord Wallace of Tankerness: My Lords, I am grateful the party concerned. The defendants were the Ministry to my noble friend for bringing forward this amendment. of Defence. They said that there was a statutory bar. He rightly points to two pieces of legislation which By Section 2 of the Intelligence Services Act 1994, the govern the security and intelligence agencies, the Security chief of the Intelligence Service is under a duty to Service Act 1989 and the Intelligence Services Act 1994. ensure that there are arrangements for securing that As my noble friend has indicated, they place an obligation no information is disclosed, on each of the agency heads to prevent the disclosure “except so far as is necessary for the proper discharge of its of information obtained by the agencies except on functions”. certain limited grounds set out in those Acts. In particular, Section 2(2)(a) of the Security Service Act 1989 is of a the disclosure of information is permissible where similar effect. It was argued that it was not necessary necessary in the proper discharge of the functions of even to reveal the existence of the relevant material in the agencies. Information held by the security and their possession since it was not disclosable. I am intelligence agencies will include information and informed by the Bingham Centre for the Rule of Law intelligence from human source reporting, and therefore that the Evans case is not the only case in which the is essential to the agencies’ operational effectiveness security services have advanced that argument. and the protection of national security. 137 Justice and Security Bill [HL][LORDS] Justice and Security Bill [HL] 138

[LORD WALLACE OF TANKERNESS] case—namely, that Section 22A is a bar to third-party As I understand it, the concern behind this amendment disclosure, and that it was for the courts to decide. I seems to be that these provisions would prevent the hope that he hears that the agencies take seriously the agencies complying with their disclosure obligations requirements of disclosure in civil proceedings under in civil proceedings. However, it is our view that the Part 31 of the Civil Procedure Rules. On that ground amendment is unnecessary. The agencies take their I urge that the amendment is unnecessary and ask my disclosure obligations very seriously. In England and noble friend to withdraw it. Wales, if the claim is a civil damages claim, for example, Part 31 of the Civil Procedure Rules will generally Lord Thomas of Gresford: I am most grateful to my apply. Standard disclosure requires parties to disclose noble friend for indicating that he will look at these the documents on which they rely—documents which cases. In the light of that I beg leave to withdraw my undermine their or another party’s case and documents amendment. which support another party’s case. If the claim is for judicial review, all public authorities are subject to a Amendment 54 withdrawn. duty of candour which requires the public authority, when presenting its evidence, to set out fully and fairly all matters that are relevant to the proceedings. Naturally, Amendment 54A part of considering these disclosure obligations is the Moved by Lord Dubs question of whether PII should be claimed or, if Parliament passes Part 2 of the Bill, whether the 54A: After Clause 6, insert the following new Clause— “Independent judicial commissioners to sit with judges in Secretary of State should apply for closed material closed material proceedings proceedings. In a case where the agency is being sued (1) Where the court makes a declaration pursuant to section 6(1)— for civil damages or someone is applying for judicial review, it is part and parcel of the proper discharge of (a) the judge in the relevant civil proceedings shall thereafter sit with four independent judicial commissioners who an agency’s function to defend actions taken in the shall sit throughout all open and closed proceedings; discharge of its functions. I therefore believe that the (b) the independent judicial commissioners shall sit with the amendment is unnecessary. judge as judges of fact. My noble friend has made reference to paragraph 3(4) (2) The independent judicial commissioners shall consist of— of Schedule 1 concerning the ISC provisions. This (a) county court judges, serving or retired, who have been paragraph reflects a provision in the Intelligence Services subject to security vetting, such security vetting to have Act 1994 which treats disclosure by the agencies to the been supervised by a High Court judge; or ISC as necessary for the proper discharge of their (b) retired judges of the High Court, Court of Appeal or functions. It may be asked, as my noble friend did, Supreme Court; and in either case— why this provision is needed there and not in the (i) being persons who have had no professional or other context of civil litigation. It is simply because it is right substantial connection with the armed services or to make it clear, as existing legislation does, that security services; and disclosure to the ISC is permitted. (ii) being persons who have, so far as possible, never before sat as judges or independent judicial My noble friend may well be raising a case where it commissioners in closed material proceedings. is a question of third-party disclosure. He mentioned (3) Judgement shall be given in favour of the excluded parties a case of Evans v Ministry of Defence and, on the in the relevant civil proceedings unless the judge and the judicial intervention of the noble Lord, Lord Pannick, I commissioners shall unanimously or by a majority verdict of not understood him to indicate that that argument did not less than 4:1 find that the cases of the excluded parties have been win the day. It is a case that I wish to consider in the disproved to a high degree of conviction.” light of what my noble friend has said. If the effect of this amendment would be to treat the disclosure into Lord Dubs: My Lords, let us suppose that we have any civil proceedings, regardless of the identity of the the first case heard or not heard in public under these parties or the subject matter of the proceedings, as new procedures. There are bound to be doubts, particularly somehow part of the proper discharge of the agencies’ if it is a case that has achieved a certain amount of functions, that would conflict with the agencies’ need publicity and notoriety, about the reliability and integrity and ability to operate in secret. This is vital to maintaining of a verdict that has been entered against a citizen the trust and confidence of those with whom they after the court has heard the evidence against him or work; or, as was said in the previous debate by the her in secret. It is something to do with concept, in a noble Baroness, Lady Manningham-Buller, information phrase that I have heard, about the secret whispers may come from a particular agent, and the secrecy of that the judge will have heard. I am not for a moment that is important. I am thinking in particular of suggesting that the judge would not behave with total proceedings that do not at all involve the agencies and reliability and integrity, but there is also the question where a request for disclosure is made. It is right that of the public perception of how that has happened. in these circumstances the courts consider whether There has to be a concern that the public may disclosure would be necessary for the proper discharge perceive that a single judge might be thought of as of an agency’s functions before an order for disclosure being one-sided if he repeatedly hears the state’s evidence is made. in secret and finds in its favour. All that we shall know I have indicated to my noble friend that I will look is that the judge has heard a lot more than the rest of at the Evans case. Based on what he said, I am advised the world is able to discern. Is it possible to develop that it may be similar to and consistent with the any safeguards against what would be a serious perception arguments that the agencies made in the Omagh bombing about how the judges have operated? I repeat that I am 139 Justice and Security Bill [HL][17 JULY 2012] Justice and Security Bill [HL] 140 not in any way suggesting that the judge would not Lord Faulks: My Lords, very briefly, while the idea behave with integrity, but he has to be seen to do so by of having those who are not the primary judges assisting the public. that judge with making decisions is not unfamiliar—as This probing amendment suggests that there is the noble and learned Lord, Lord Lloyd, has said, it one way of lessening a critical perception on the part has precedent in a number of different contexts—this of the public. That would be to appoint judicial represents a rather elaborate and perhaps even commissioners. They would be able to sit with the cumbersome method of deciding these cases. It also judge. It would not be the judge on his own, but there must be borne in mind that the special advocates are would be four judicial commissioners. As the amendment particularly anxious to preserve the role of a single makes clear, these judicial commissioners would be judge in whom they have great faith, judged on the security-cleared county court judges or retired members limited experience of closed material proceedings. In of the upper judiciary; they would be totally independent fact, they very much favour the role of the judge using of the security services or the Armed Forces; and, the existing PII process instead of CMPs, rather than wherever possible, they would not have sat on CMPs advocating the rather broader process contained in the before. All I am talking about here is a very simple amendment. safeguard that would not affect the principle of what Proposed new subsection (3) is perhaps unusual—which the Government are about. of itself is not an objection—but I respectfully suggest By putting this amendment forward, I am in no way that the final provision requiring a reversal of the accepting the basic principle of CMPs, but if one tries burden of proof to a high degree of conviction is to make something one does not like less bad, one is really going it a little bit. It means that it will be very not necessarily accepting the principle of the thing—just difficult indeed for the Government to rely on evidence in case there is any misunderstanding. Having said and the whole purpose of the CMPs will be frustrated. that, to make this work less badly than the Bill currently That may indeed be the intention of the amendment proposes, I am simply suggesting that it might be but it is not a very satisfactory position. helpful to have independent commissioners sitting alongside the judge. I beg to move. 5pm Lord Pannick: My Lords, I share the concerns of Lord Lloyd of Berwick: I have not had much time to the noble Lord, Lord Dubs, about the fundamental consider this amendment but, on the face of it, it seems unfairness of the procedure by which the judge decides attractive. Of course, judges are quite used to sitting the case without one party having access to vital with assessors on questions of fact. Certainly that is material and about the public perception of a decision true in patent cases at all levels and, if I remember made on that basis. However, it seems to me that the correctly, the Restrictive Practices Court used to sit fundamental unfairness, and the perception of unfairness, with lay assessors. It is true that in all those cases the is not caused by the identity of the judge or the fact assessor would be an expert rather than a judge, so he that there is only one judge sitting. It does not seem to would not be able to overrule the judge on a question me that the fundamental unfairness, or the perception of fact. But that was not always so in other cases; for of it, will be diminished at all if the judge sits not example, the president of an employment tribunal alone but with two county court judges, four county could always be overruled—and was sometimes overruled court judges, or with two or four retired judges of the —by the two other members of the tribunal on a pure High Court, Court of Appeal or Supreme Court. That question of fact. Therefore, the idea of the judge in is not the cause of the fundamental unfairness. these cases sitting with other judges is not altogether Nor, with great respect, do I share the concern of startling. the noble and learned Lord, Lord Lloyd of Berwick, However, the reason I support the amendment is that there is some onerous obligation on the judge rather different from the one given by the noble Lord, who hears these cases alone. Judges are used to hearing Lord Dubs. Being a judge can be a very anxious difficult questions and deciding them. Judges decide, business. Of course, in the most serious criminal cases and have decided, similar issues in the context of findings of fact are made by the jury, so the problem control orders and they are now deciding them in the does not arise, but there are very serious civil cases context of TPIMs. Of course, there are very considerable where the judge has to make a finding of fact as to cost implications of having five judges instead of one which side he believes, and that necessarily involves a whenever one has secret hearings and it will cause finding that the other side is lying. I sat in many such very considerable delay in these hearing. So although cases and I often felt the need for someone sitting I understand the concerns, I do not think that this is beside me who could either confirm or overrule my a solution. view. One surely cannot imagine a more serious sort of case than that which is going to be tried under the new Lord Carlile of Berriew: My Lords, I fully understand closed material procedure, and I support the amendment the concerns that have been expressed by the noble for that reason. Lord, Lord Dubs, however, for the reasons principally I have doubts about subsection (3). I would have given by my noble friend Lord Faulks, I disagree with thought that two assessors rather than four would be this proposal. It does scant justice to the judges who sufficient for the noble Lord’s purpose. It would certainly have shown great independence in the control order have been sufficient for my purpose when I was sitting and TPIM cases that the noble Lord, Lord Pannick, as a judge. I hope that the Minister will give a fair mentioned. I do not understand the substance of this wind to this amendment, which I support. proposed amendment to be a complaint made by the 141 Justice and Security Bill [HL][LORDS] Justice and Security Bill [HL] 142

[LORD CARLILE OF BERRIEW] are difficult and often involve weighing proportionality special advocates at all. My view is that the way in issues, has been an unhappy one. Along with others which judges are trained and apply themselves to their who have spoken, I have huge admiration for, and cases does not require an elaborate amendment of this confidence in, the ability of our senior judiciary and kind. agree with the noble Lords, Lord Pannick and Lord Carlile of Berriew, that our judges have displayed a very good ability to weigh competing interests in Lord Elystan-Morgan: My Lords, the motivations difficult cases. behind this amendment are, I have no doubt, noble, honourable and sensitive. I greatly respect, therefore, It will be important to look later at ways of making the arguments put forward by the noble Lord, Lord the procedure fairer, but with all respect to county Dubs. I respectfully tend to agree with the noble and court judges, whether serving or retired, and to retired learned Lord, Lord Lloyd, that it may well be that judges of the senior courts, I simply do not think that there is a case for having what is almost a jury situation. having more of them is going to make it easier. This is In such a situation—again, bearing in mind that juries not a question of deciding facts, like a jury; it is a very seldom operate in civil cases—we would not question of striking a balance between competing normally have a jury in any event, but the real problem interests. That seems something that our senior judiciary is, I think, a much deeper one. are well able to do without being bolstered by any outside support. Imagine a judge having to determine the fundamental issue of whether this matter is to be dealt with by way of a secret hearing. Does he look at the prose of the Lord Beecham: My Lords, I pay tribute to my noble application by the Secretary of State or the affidavits? friend Lord Dubs, who has served with great distinction Does he look into the eyes of learned counsel to see on the Joint Committee on Human Rights and of whether there is a burning sincerity in the face of the course has a long record of interest in matters of counsel for the claimant or whether there are doubts justice generally. However, I indicated to him during a genuinely registered in the face of the counsel for the conversation beforehand that I was not persuaded by defendant? Is the judge not placed in a situation that is his argument. I was persuaded, albeit temporarily, by virtually impossible? the arguments of the noble and learned Lord, Lord To a large extent the question of a special advocate Lloyd, but in the end I share the views of other noble under Clause 5 and, I would say, to a limited extent the Lords who have indicated that this is perhaps an appointment of a special counsel under Clause 8, will overelaborate and unnecessary addition to the framework deal with part of that. There will be a totally independent that would otherwise exist. One point that struck me is advocate, but an advocate, however brilliant, forensically that it is a little invidious for a serving High Court skilled and eloquent, can be only as effective as the judge to sit with current or retired county court judges. ammunition that he has at his disposal, which is the I do not mean any disrespect to county court judges, correctitude of certain facts that are relied on by a but am not sure— party. If that estimate, however genuine, is wrong, then the decision of the learned judge must be utterly Lord Elystan-Morgan: There are no county court fallacious. How do you deal with that situation? I judges. There have not been any since the Courts harken back to debates that we had some years ago in Act 1971. They are now circuit judges. relation to a criminal situation and PII, it seems to me that there is a very strong and unanswerable case for a special investigator operating under the special advocate. Lord Beecham: It is a while since I appeared before It does not seem from my reading of Clause 8 that any judge whether county court or circuit. I meant the there is any power for the special advocate to appoint equivalent position. The noble Lord is clearly aiming such a person. However, the fairness of the situation at that tier in the judicial system and it strikes me as a will depend entirely on the assiduity with which some little excessive. Equally, the provision for majority other person or body would be able to examine these verdicts and so on would be somewhat invidious. sensitive facts. That person must be someone in whom Regretfully, I cannot support my noble friend’s amendment the community has total confidence in terms of and I dare say that the noble and learned Lord will confidentiality and secrecy but also their competence join the majority of those who have spoken in saying to bring to the attention of the court that vital element that the amendment would not be acceptable. of the correctitude or otherwise of those facts.

Lord Wallace of Tankerness: My Lords, the noble Lord Lester of Herne Hill: My Lords, in later Lord, Lord Beecham, anticipated what the response amendments, we will be considering ways of making would be. That said, it is only right to acknowledge the what at the moment is an unfair procedure fair, or less amendment moved by the noble Lord, Lord Dubs, unfair. I agree with the noble Lord, Lord Pannick, and supported by the noble and learned Lord, Lord that the procedure as it stands is not fair and also that Lloyd, with reference to his own experience. I certainly it does not become any more fair by adding assessors accept that in moving his amendment the noble Lord, or advisors to help the judge who has to decide whether Lord Dubs, does not necessarily accept that we should to grant a declaration under Clause 6(1). be in the field of closed material proceedings. He My experience of assessors or others—whether in made that clear, but he indicated that, in his view, it an employment tribunal or in a county court for was necessary to have safeguards of the type proposed example—in dealing with discrimination cases, which in his amendment. The Government’s position is that 143 Justice and Security Bill [HL][17 JULY 2012] Justice and Security Bill [HL] 144 there are safeguards and in future groups of amendments the noble and learned Lord, Lord Woolf, granted an we will be able to discuss the pros and cons of other appeal on the basis of a rigorous cross-examination in potential safeguards. the closed session. That in itself is testament to the work of special advocates in these situations. I hope As has been indicated, the amendment would require that I and other noble Lords who have contributed a judge in a closed material proceeding to sit with a have gone some way to encouraging the noble Lord, panel of four additional judicial commissioners. In Lord Dubs, to withdraw his amendment, while recognising introducing these procedures the Government consider his motivation in putting it forward. that we are providing the judiciary with another tool to deal with cases involving national security material. In the Justice and Security Green Paper, the Government 5.15 pm floated the idea of a separate national security court Lord Lester of Herne Hill: Will my noble and with national security cases being diverted to it and learned friend reassure the Committee that it is not different procedures being adopted in it. However, we part of the Government’s aim to change the overriding concluded that national security is an aspect of disputes objective of the Civil Procedure Rules, which enable which may arise in any field of law and therefore it is and require the courts to deal justly with cases? better to keep cases in the ordinary courts where they arise while providing appropriate procedures, rather than moving different types of cases into one court Lord Wallace of Tankerness: I hope I indicated that where their only unifying factor is national security. we do not want to create something that is entirely different—some sort of national security court. Consistent We are concerned that this amendment would be with the other aspects of civil procedure, this is an similar to creating a specialist court because it establishes additional tool to have closed material proceedings for an entirely different finder of fact for cases in which material that would be damaging to national security CMPs may be used. It envisages that the panel would if disclosed but should nevertheless be available to the preside over both the open and closed parts of the courts. proceedings and this would fundamentally change the procedures adopted in the civil courts for cases in which national security is engaged. The oddity of Lord Dubs: I am grateful to the noble and learned what is proposed here can be illustrated by considering Lord for his response, as I am to the noble and learned a case where national security material is important, Lord, Lord Lloyd of Berwick, for obvious reasons. I but none the less is a small part of the material in the thank him for his support. I cannot say that I have case. It might possibly even be a single document. Let been overwhelmed by a tidal wave of approval from us say that the court made a declaration that a CMP the rest of the Committee but that, as they say, is may be used and accepted an application that the politics. document should be heard in closed proceedings. We I have a very brief comment. The Bill will, after all, would then be faced with proceedings which to all abolish juries. Given that we are abolishing juries, the other intents and purposes were indistinguishable from proposal— other civil proceedings being presided over by a panel. We do not think that is right. My noble friends Lord Lester and Lord Carlile, and the noble Lord, Lord Lord Wallace of Tankerness: My Lords, these would Pannick, made the point that single judges are well be civil proceedings, which would be presided over by equipped to deal with this. My noble friend Lord a single judge in any event. This does not relate to Faulks made the point that subsection clause (3) very criminal cases, in which there would be a jury, but much changes the level and nature of the burden of solely to civil proceedings. proof and would materially change the nature of these proceedings. The noble Lord, Lord Pannick, indicated Lord Dubs: My Lords, that is fair enough but the that it would also lead to cost and delay. I am always point of the judicial commissioners would be to help wary of talking about cost when we are dealing with in establishing the facts. I have listened hard to the such sensitive matters, but that would undoubtedly be comments that have been made and will ponder them the case. to see what sort of amendment might take into account The noble Lord, Lord Dubs, should be congratulated the criticisms and would be appropriate when we get for coming up with an imaginative way of addressing to Report stage. In the mean time, I beg leave to his undoubted concerns. However, the Government withdraw the amendment. believe it is better to retain the current judicial system in the civil courts and provide the judiciary with this Amendment 54A withdrawn. new mechanism of the closed material proceedings rather than fundamentally alter the way in which the United Kingdom deals with civil proceedings by creating Clause 7 : Determination by court of applications in a finder of fact in cases of this sort. section 6 proceedings I believe that it was the noble Lord, Lord Elystan- Morgan, who mentioned special advocates. They will Amendment 55 provide the type of independent challenge that this amendment seeks to cover. I remind the Committee, Moved by Lord Hodgson of Astley Abbotts as I am sure will happen on further occasions in our 55: Clause 7, page 5, line 28, leave out “is always” and insert debates, of the case of M v Home Secretary in which “may be” 145 Justice and Security Bill [HL][LORDS] Justice and Security Bill [HL] 146

Lord Hodgson of Astley Abbotts: My Lords, in moving “as soon as practicable following” Amendment 55 I shall speak also to Amendments 56, an application. Applications should not go unchallenged. 63, 64, 65, 66 and 67. This group of seven amendments Therefore it needs to be certain that the claimant is spans Clauses 7 and 8. Their underlying purpose is to represented at the time of his application and during improve the relationship between the special advocate the proceedings. and his client—if that is the right word—and the special The last group, Amendments 63, 66 and 67, is advocate’s ability to carry out his duties effectively. intended to try to strengthen the relationship between The group breaks down into three subgroups. the special advocate and the claimant. Amendment 63 First, Amendment 55 concerns Clause 7(1)(b), under takes us back to Clause 7 and inserts two new paragraphs which the rules of court require, regarding what the rules of court must provide where “that such an application is always considered in the absence of the proceedings are in connection with a Section 6 every other party to the proceedings (and every other party’s legal declaration. They make it clear, representative)”. “that the special advocate is afforded the opportunity to take This is the point that I made in the debate on a instructions from the party whose interests he is appointed to previous group of amendments. My amendment seeks represent, and … that the special advocate is at liberty to apply to to replace “is always” with “may be”. I accept that the court at any time if he considers that any relevant material some, perhaps most, matters will be considered with should be disclosed”, national security in mind and so will have to be heard if he feels that is opportune. in a closed court. However, I wonder whether there Amendment 66 goes back again to Clause 8. will never be any matter that could be argued with a Clause 8(4) states: special advocate and other legal representation present. “A person appointed as a special advocate is not responsible Obviously, one question is: what constitutes national to the party”. security? We have had a debate about the looseness of that term. At the moment we have no definition of it. That seems to me to be strangely indifferent and Then there are other sorts of information, such as that distant. I understand the nature of the relationship provided by the police and generated within the UK, implied by “represent” and that is why my amendment which might come up and would not be within the does not propose that but it replaces “not responsible closed material proceedings. I suppose the principle to” with the slightly warmer and more positive phrase, behind this is to increase judicial discretion and therefore “responsible for representing the interests of”. fairness—an issue on which the Government have That understands the positive nature of it but does not placed great stress. My last point on this amendment imply the normal professional duty and relationship. is that requiring a judge to hear CMP applications in Finally, Amendment 67 adds four new subsections. the presence of only one side under all circumstances The proposed Clause 8(6) requires the special advocate does not seem to fulfil the principles of natural justice. to provide gists of material. We shall come to that in The second group consists of Amendments 56, 64 the next set of amendments. The proposed Clause 8(7) and 65. This group is about the nature of the appointment permits the special advocate to withdraw if, of a special advocate and ensuring it is made in a “he considers that he is prevented or otherwise unable to properly timely fashion. Amendment 56 inserts a new paragraph represent the interests of the excluded party”. after Clause 7(1)(b): I hate the split infinitive “to properly represent” but it “that where a party is excluded from such an application his interests are represented by a special advocate appointed in provides a quite important albeit rather nuclear approach advance of the court hearing such application and, if the application regarding the special advocate in the sense that he is granted, for the duration of the section 6 procedure and trial”. could draw attention to how the case was being run by The important words here are “in advance” and “for withdrawing if he felt that his position had become the duration of”. In other words, the special advocate untenable. needs to be given time for preparation and for consultation. On proposed new subsection (8) in Amendment 67, My noble and learned friend may say that this will the requirement for the special advocate to make a happen anyway but I am told—I stand to be corrected— report to the ISC about each case for which he is that there is no statutory requirement at present and it responsible is intended to be an additional element of seems to me that in these special circumstances it control. Proposed new subsection (9) would impose might be worth while to consider that. a duty and responsibility on him to preserve the Amendment 64 covers the same points in Clause 8. confidentiality of closed material, except for the gist Clause 8(1) states: to which I referred under proposed new subsection (6), and except where material may lead to a crime that “The appropriate law officer may appoint a person to represent the interests of a party”. should be referred to the CPS. I have said before about that I am the treasurer of the All-Party Parliamentary For me, the critical word is “may”. My amendment Group on Extraordinary Rendition. Some of the things seeks to replace “may” with “must”. Again, the reasons that I believe have gone on in a rather shadowy way for that are self-evident and run parallel with the around that rather nasty practice could usefully be supporting arguments I have given for my natural given some light. This would be a way in which that justice amendment. light could be shed. Amendment 65 amends the same clause by removing To conclude, this group of seven amendments is the words, intended to try to improve the quality of justice and “in any section 6” the equality of arms by giving the special advocate a and replacing them with, more defined role in Section 6 proceedings; ensuring 147 Justice and Security Bill [HL][17 JULY 2012] Justice and Security Bill [HL] 148 that the special advocate attends proceedings where agree with the wording in the Bill in relation to the the issue is outside national security; ensuring that the duties and responsibilities of the special advocates. In special advocate is appointed in a timely fashion, fact, while the Joint Committee on Human Rights was before a Section 6 application is made; strengthening taking evidence, with the special advocates and lawyers the ability of the special advocate to represent the in front of us, questions kept coming up about what claimant by ensuring proper access; and enabling the their professional duties were to their client, with whom special advocate to resign if he feels that he cannot do they could not communicate. It seemed to me, as a his job properly. former lawyer, that it was perhaps one of the safest The special advocates have circulated a paper to areas in many respects to have a client because there which I have already referred. I was particularly impressed was no way that you could be sued for negligence when by paragraph 17, where they list eight reasons why you could not communicate with the person whom you CMPs lack fairness and effectiveness. Three of their were supposed to be representing. It is a very unusual reasons seem to have relevance to this group of amendments. situation to put a professional in. We asked whether The special advocates think they are unfair because the Bar Council had given any guidance to advocates of the, in this situation. I, too, found it very harsh for the Bill “prohibition on any direct communication with open representatives, to say that the advocate is not responsible for the interests other than through the Court and relevant Government body, of the person whom they represent and I think that after the SA has received the closed material”. some more positive duty in the Bill would assist. That is the first reason. The fifth reason refers to: I also support proposed subsection (7) in Amendment “A systemic problem with prejudicially late disclosure by the 67, although it is not clear because it is an extension of Government”. the professional duties. Normally it is very clear to The seventh reason refers to: lawyers that they can withdraw from a case in certain “The increasing practice of serving redacted closed documents situations, which are outlined in professional guidance. on the Special Advocates, and resisting requests by the SAs for It is not clear whether a special advocate would have production of documents to them (i.e. as closed documents) on the basis of the Government’s unilateral view of relevance”. the same ability to withdraw from proceedings. I was These amendments are designed to tackle some of always amazed that you could often be faced with two those problems. Some of the others in the list have lever-arch files of A4 paper that contained the case importance, but those are the three most relevant. papers, and when you got to trial, the trial boiled I beg to move. down to one or two key issues. In a particular case the issues may boil down to information as to where the claimant was on a particular day, and that becomes Baroness Williams of Crosby: I mention again that central to the case. So there may be one or two I am not a lawyer, but I have the greatest respect for determining facts in a case. An advocate might be the noble Lord, Lord Hodgson of Astley Abbotts, faced with information from the police and security who has done a very great service to this country in the services putting a connotation on certain facts, and be excellent work that he and others have done in the unable to turn to their client and say, “Where were you All-Party Parliamentary Group on Extraordinary Rendition. in August?”. In those circumstances the advocate might I want to underline what the noble Lord said about feel professionally that they could not represent the Amendment 66 and to ask my noble and learned client’s interests properly. It is a corollary, I believe, of friend on the Front Bench whether the wording could the situation that I raised in relation to previous not be less sweeping than that in the Bill. Clause 8(4) amendments. In certain cases the judge may be in that states that, situation as well, where one or two facts are so key to a “a special advocate is not responsible to the party to the proceedings case that, without hearing the claimant’s explanation whose interests the person is appointed to represent”. of those facts, the case cannot be determined fairly. So I understand some of the problems and appreciate this subsection gives the special advocate clarity that that there are difficulties here, but I ask my noble and they can, in those circumstances, withdraw from the learned friend to look again at the wording of the Bill. case. Therefore I support my noble friend’s amendments. In particular, my understanding is that a special advocate is responsible for everything short of something that might put at risk national security; it does not mean Lord Pannick: My Lords, my answer to the point that the special advocate has a way out of in any made by the noble Baroness, Lady Williams of Crosby, serious sense representing the interests of the person is that regrettably Clause 8(4) is wholly accurate because whom he has been appointed to represent. I think that the nature of the special advocates and the task that that is the meaning of the wording of the Bill. Will my they are required to perform is that they are not noble and learned friend consider wording that is less responsible to the individual in whose case they are likely to raise any questions about the obligations of a appearing. They are not responsible because they cannot special advocate for the people before them who have tell the person concerned the information that is known no other way to get across their case? I suggest that to them, as the lawyer in the case. They cannot ask the some wording that more precisely defines a special individual to comment on that information or to give advocate’s duty and where it begins and ends would be instructions to them on that information. If they much better than the wording currently in the Bill. speak to the individual concerned, what the individual tells them—the special advocate—may be wholly irrelevant 5.30 pm to the case, unknown to the client. Baroness Berridge: My Lords, I support two particular Although the special advocate system is made available aspects of this group of amendments. Following the as being better than no representation at all, it is comments of my noble friend Lady Williams, I, too, inherently and fundamentally unfair in that the individual 149 Justice and Security Bill [HL][LORDS] Justice and Security Bill [HL] 150

[LORD PANNICK] what this amendment is trying to do, which is to improve concerned does not know the nature of the case against the relationship—or, indeed, to create the relationship. them; and nothing that the special advocate does, However, the special advocate is not able to judge the however competent and industrious they are, can affect damage that would be caused by a summary. It is the that. I therefore think that there is no advantage in relevant person who is defined in the Bill who prepares seeking to supply in the Bill what would be a fig leaf to any summaries of material. I do not think that this is conceal the reality of the situation; and the reality of workable because the special advocate, however briefed the situation is precisely as it is put in Clause 8(4). he is, will not understand necessarily the sensitivities behind the intelligence and the damage that would be Lord Thomas of Gresford: My Lords, it also raises a caused. very interesting question about which all lawyers will be concerned: who pays? When the special advocate is appointed in civil proceedings, does the losing party Lord Lester of Herne Hill: My Lords, I would just pay? Does the person who made the application—namely, point out that Amendment 62, which has not been the state—pay, win or lose? Where do costs lie in an included with this group of amendments, will deal event like that? When you have a provision in the Bill with a particular way of trying to alleviate the problems such as Clause 8(4) here, which states that the, about the special advocate. We will come to that in the “special advocate is not responsible”, next group. to the claimant, how can the claimant possibly be responsible for his costs? Lord Marks of Henley-on-Thames: My Lords, I had not intended to intervene in this debate, but having Lord Faulks: My Lords, the whole role of the heard the noble Lord, Lord Pannick, and my noble special advocate is inherently unsatisfactory and is an friend Lord Faulks describe—accurately, one has to exception to what we understand to be a normal way concede—the role of the special advocate and the of proceeding in accordance with general notions of limited responsibility that he has to the person whose fairness. However, it is a practice that has become well interest he is appointed to represent, one is bound to established; it has evolved. There are a number of come back to the amendments proposed by my noble special advocates who have performed their roles with friend Lord Hodgson and ask whether there is not a distinction and effectiveness, as the noble and learned field that my noble and learned friend the Minister Lord, Lord Woolf, said in a much-quoted judgment. ought to consider—namely the degree to which we Many of their concerns, referred to earlier in the debate, might fairly increase permitted disclosure to the person were directed towards the way in which material was whom the special advocate is appointed to represent. disclosed and the lateness and inadequacy of such There ought to be a guiding principle, consistent with disclosure. There may be much in those criticisms. what the noble Baroness, Lady Manningham-Buller, They are fairly familiar incantations from advocates, said, that there should be as much communication as whether the proceedings are closed or open. They do is consistent with the interests of justice, short of not reflect well on anyone who is responsible for late disclosing material to the party from whom some disclosure in a case. disclosure that is prejudicial to national security is We should bear in mind that judges have shown withheld. The special advocate’s position could be themselves particularly astute at protecting parties effectively carried out without compromising national whose cases are heard in a closed session. If there is security if some movement in that direction were to be unsatisfactory practice on the part of the Government conceded. It may be that my noble friend’s amendments in terms of late disclosure or not giving special advocates do not achieve precisely that balance, but at the moment fair access to material that will enable them to do their we have a system that is so restrictive of communication task, that is not going to improve the Government’s that it destroys the public confidence in the special prospects and will be reflected, I suggest, in the way in advocate system that there might be. which the judge approaches the case altogether. While I have considerable sympathy for what lies Lord Beecham: My Lords, this is an important behind these amendments, I would respectfully suggest group of amendments, as are the amendments to that the position of the special advocates is quite follow which deal with the position of special advocates. correctly set out in Clause 8(4). It is not an ideal The Constitution Committee, in its report of 15 June, situation but it is a situation that has developed, and I made reference to the earlier report of the Joint Committee trust the judges to respond appropriately to the demands on Human Rights and stated: that this particular procedure presents. “The use of Special Advocates has proven to be highly Lord Gold: My Lords, I am concerned that, if the controversial”. special advocate is made responsible, there is a greater The report then quoted the 2010 report of the Joint risk that he will rely on this amendment and withdraw Committee on Human Rights which stated that, even from the proceedings. Although this is not a perfect with the use of special advocates, the closed material situation, it is better that the advocate is there and procedure, does not withdraw; otherwise there is no representation “is not capable of ensuring the substantial measure of procedural or no points made independently at all. justice that is required”. The Constitution Committee report continued: Baroness Manningham-Buller: My Lords, I want to “The Special Advocates themselves have voiced grave concerns comment on one of the amendments in this group. as to the limitations inherent in their role. They submitted a … Looking at the first part of Amendment 67, I understand response to the Green Paper”, 151 Justice and Security Bill [HL][17 JULY 2012] Justice and Security Bill [HL] 152 which stated: I have a great deal of sympathy with most of the “Our experience as Special Advocates … leaves us in no doubt amendments moved and spoken to by the noble Lord, that CMPs are inherently unfair; they do not work effectively; nor Lord Hodgson. Indeed, my noble friend Lady Smith do they deliver real procedural fairness”. and I have subscribed to Amendment 64, dealing with The Constitution Committee report added that even the appointment of special advocates. We envisage not the Court of Appeal—which commended the special quite a lawyer-client relationship, but something closer advocate system and said that it, to that than the rather anomalous and, as it were, “enjoys a high degree of confidence among the judiciary”— free-floating position that the present status appears pointed out that the system is, to involve. We feel that the special advocates—all of whom are vetted and very experienced—should have a “‘inherently imperfect’ and that the system ‘cannot be guaranteed greater role in the proceedings in order to test the to ensure procedural justice’”. applications that will be made. Those are significant criticisms, even allowing for the efforts made by the distinguished body of men and It would be interesting to know a little more about women who serve as special advocates. I refer again to the experience of special advocates in the other context the evidence to the Select Committee about the special in which they operate. I understand that the result of advocates, particularly the evidence of Mr McCullough, the intervention of special advocates in control order who was clear about the problems they faced. He said cases is often the disclosure of more material than was that the best they can do is, originally envisaged. I know that the noble and learned Lord will be unable to supply an answer this afternoon, “very limited indeed, particularly given the nature of intelligence but I wonder whether there is a record of the number material, which, very often, requires inferences to be drawn from circumstances that may have a sinister explanation … We, as the of occasions that special advocates succeeded in securing Special Advocates, are in great difficulties in displacing the sinister the disclosure of more material. That would indicate explanation if we cannot take instructions from the person who is that their role really needs to be reinforced and endorsed in a position to provide the innocent explanation. So that is a in the context of the Bill. fundamental difficulty”, It is also the view of the Opposition that the application that they find themselves in under the Bill. In answer should be heard in the presence of a special advocate to a question from my noble friend Lady Lister in the and that the special advocate should be empowered to same evidence session, he said that the legislative form apply for more material to be uncovered. In particular, of words that could be devised, the two proposed subsections in Amendment 63 are “would simply be that there is an obligation to give a minimum worthy of the Government’s consideration. I remind level of disclosure, which would enable the affected person to give your Lordships that Amendment 63 would, first, provide effective instructions to their own representatives or to their that the special advocate has the opportunity to take Special Advocate. It would not be difficult to draft”. instructions from the party whose interests he is appointed That rather follows the line of the noble Lord, Lord to represent; and, secondly, that he should be at liberty Marks, in commending a procedure that would safeguard to apply to the court that any relevant material should the element of national security but allow instructions— be disclosed. It may be that the Minister would not go potentially, at least—to be given. so far in respect of the second limb as the amendment suggests. I hope that he would. However, if he would not, would he consider at least providing the special 5.45 pm advocate with the capacity to take instructions before seeing the secret material that is disclosed? It would be A few weeks ago I listened to a radio programme, better if the special advocate had knowledge of what “File on 4”, which dealt with some of the Bill’s aspects was in that category, but at the very least he should be that we are debating. It was striking that there was able to take instructions on the generality of the case, reference in that discussion to the roughly equivalent so far as it is apparent at the time of his being instructed. position occupied by advocates here compared with That does not seem to be envisaged within the Bill’s those acting for detainees at Guantanamo Bay under current arrangements. That would not be even a halfway the American system. A British advocate had experience house, but it would at least be an improvement if that of both systems. It was remarkable that far fewer were a possibility. restrictions were imposed even on those whom the Americans were holding in Guantanamo Bay, in This group of amendments is clearly designed to conditions which many of us would find repugnant, strengthen the special advocate’s role. It would therefore than apply here. Admittedly, there could be criminal allow some redressing of the balance in favour of proceedings and the rules will not apply to criminal those whose rights as a party are inhibited by the Bill’s cases in this country, as the noble and learned Lord provisions. It is an area which I hope the Government reminded us. However, it struck me rather forcefully will think very carefully about. These are quite draconian that the American system which many of us criticise measures in terms of the party’s capacity to have a provides better support for people in this position case properly presented. Given the high level of security than will apparently be the case under these provisions. already involved in the employment of special advocates, In response, the Lord Chancellor rather airily dismissed and their integrity, it seems necessary to ensure that this comparison and implied that all is well. He tends they have the wherewithal to provide a proper service to paint with a broad brush, of course, but in matters to the parties and, indeed, to the court. of this kind a rather more pointillist approach would The noble Lord, Lord Thomas, makes a valid point be better. Considering the detailed objections to the in raising the question of who should pay. Special current process would be a better approach than simply advocates could, in a sense, be regarded as acting as assuring the world at large that all is well. amicus curiae. Therefore, perhaps the state should pay. 153 Justice and Security Bill [HL][LORDS] Justice and Security Bill [HL] 154

[LORD BEECHAM] The noble Lord, Lord Beecham, asked how many Given the limited role which the Bill envisages, it times more information was made available. I am not would be strange if the party whose interests they are sure whether that information is available. If it is, I will seeking to represent were required to pay. The party certainly share it, not only with the noble Lord but would be getting less than the normal service which also with the Committee. However, in every case under the noble and learned Lord would be offering, if he the current statutory closed material proceedings, and were instructed on their behalf. It seems proper—I indeed, I rather suspect, under those before the Al assume that it will the case, but perhaps the noble and Rawi judgment where sometimes closed material learned Lord could confirm it—that the state should proceedings were held with the concurrence of both fund the relevant costs. However, the more important parties, there have been incidents where specific pieces question is the role that the special advocates are able of evidence or specific documents have been admitted, to pursue. In the view of the noble Lords who have allowed to be disclosed or ordered to be disclosed, so spoken, and indeed in the view of the Opposition, the it may not be possible to give the full details in every Bill does not currently confer sufficient discretion to case. enable them to do their job, not only on behalf of the It is worth pointing out that there have been cases parties but also in the interests of justice and to assist where, as a result of the work of the special advocates, the court. the case for the excluded party has been successful. The noble and learned Lord, Lord Woolf, in M v Lord Wallace of Tankerness: My Lords, this has Secretary of State for the Home Department has been been a very important debate on the role of the special quoted on a number of occasions in your Lordships’ advocates in the proceedings which are proposed in House during these debates and clearly makes the this part of the Bill. I am particularly grateful to my point about the effectiveness with which the special noble friend Lord Hodgson of Astley Abbotts for the advocates go about their work. way in which he introduced his amendments, in which It is important to emphasise again that the judge he gave a very clear and concise indication of the will have a similar level of flexibility available to him purpose of each amendment and what the effect would or her under PII. For example, the judge will have the be. That helped to set the tone for a very useful debate, power to refuse non-disclosure, to permit non-disclosure and I appreciate the contributions from colleagues of only parts of a document—in other words, redaction across the Committee. —to require summaries or gists, or to require a party Amendment 55 raises an important procedural point to take action for refusal to disclose or summarise, for on how the application process for closed procedures example, not to take certain points, or indeed to make would work in practice. My noble friend and I agree concessions. that it is essential that we balance fairness and national Where Article 6 so requires, the judge will always security. I hope I can set out why the balance has been approach decisions about whether individual pieces of struck in the way that it has and that the proposals put material are to be heard in closed proceedings from forward in the Bill are indeed fair. the perspective of the need to ensure that the proceedings Clause 7 means that an application for closed are fair. Judges will refuse applications for material to proceedings is always considered without any other be heard in closed proceedings where this is required party to the proceedings or their legal representatives by Article 6 fairness, and can order the Secretary of being present. The amendment tabled by my noble State not to rely on a particular argument if the friend would allow the court the discretion to allow Secretary of State is not willing to disclose material another party into the application stage of the proceedings. relevant to that point. Perhaps I can reassure my noble friend that special It is important to note that the application for a advocates are not excluded from the process of closed procedure could have open and closed parts. determining whether material should go into open or Only sensitive information which would damage national closed proceedings. Clause 7(1)(b) does not have that security would result in a proceeding taking place effect. Rather, it is to be read in the light of Clause 7(1)(a), without the other parties, and I hope this explanation which involves the application for material to be shown sets out the balance we have sought to strike. to the courts, special advocates and the Government only. Where Clause 7(1)(b) says, Amendments 56, 63, 64, 65, 66 and 67 tabled by my “in the absence of any other party”, noble friend concern the special advocates, and from the debate there is clearly concern in your Lordships’ it is not meant to exclude those referred to in House about the role of special advocates. These Clause 7(1)(a). I hope that gives reassurance. amendments highlight the important issues of how I indicated in an earlier debate that, by virtue of a they are appointed and how they carry out their later clause in the Bill, the role of the special advocates functions. I will endeavour to set out why I believe we is there at the application—the original gateway stage, have the necessary provisions in the Bill to allow the as we have come to call it—as well. At stage 2 of the special advocates to operate as effectively as possible CMP process there is a detailed document-by-document while at the same time safeguarding national security. consideration during which special advocates can challenge each piece of sensitive material and make representations to the judge about why it should go into the open or be 6pm summarised, as well as make representations on the We wish to ensure that the special advocate system weight given to that material. This is what special works as fairly and as effectively as possible, while advocates have done and do under current CMP cases avoiding damaging disclosure. I believe that special very effectively indeed. advocates are extremely effective, particularly in arguing 155 Justice and Security Bill [HL][17 JULY 2012] Justice and Security Bill [HL] 156 for the disclosure of material from closed into open, communication between special advocates and the or for summaries of that material to be disclosed. As excluded party according to set procedures. The detail the courts have recognised, special advocates provide of these procedures would be set out in the rules of an effective measure of procedural justice where a court, which would reflect those in Part 80 of the Civil closed material proceeding is used. Procedure Rules for TPIMs. My noble friend Lord Hodgson expressed concern The noble Lord, Lord Beecham, asked about about late service of closed material. The Government communication prior to the service on a special advocate reject the allegation that there is a systemic problem. of the closed material. The position is that under the The Government’s position is that we would seek to procedures before receipt of the closed material, the ensure that all material, including closed material, is special advocate is free to speak to the excluded person served according to the directions set by the court and his open legal representatives without restriction wherever possible. The court sets the timetable and and to take instructions from the excluded person. can take action, including adjourning proceedings, if I hope that gives some reassurance on that point. any real prejudice has been caused to the individual. It is following receipt of the closed material that the My noble friend also raised the practice of serving special advocate may communicate with the excluded redacted documents. In all civil proceedings the person only with the permission of the relevant court Government review the documents that they hold and or tribunal which is then required to notify the Secretary assess their relevance. In making their assessment, the of State or the party whose security-sensitive material Government are bound by the duty of candour and has been adduced in closed proceedings. This requirement legislative disclosure obligations and are inevitably is designed solely to guard against the risk of inadvertent advised in this regard by counsel who also have a duty disclosure of security-sensitive material. Even then, to the court, just like any other defendant in civil there are no restrictions on the written communications proceedings. that a special advocate can receive at any time from the Redactions on the grounds of relevance to closed excluded party. documents are sometimes necessary. However, we are In the context of these proceedings, it is important not aware of a widespread or increasing practice of to make the point, as the noble and learned Lord, redacting information. Special advocates can challenge Lord Woolf, did in our debates on the second day in redactions about which they have concerns during Committee, that in these circumstances we are dealing litigation. If the court disagreed with the Government with situations where the state is likely to be the on redactions, then it would rule accordingly. Similarly, defendant. I think the noble Lord, Lord Pannick, if special advocates sought disclosure of specific talked about the case against it. Mostly in these situations, documents, the court would rule on their relevance if we are dealing with cases against the Government, the Government resisted such disclosure. and it is likely that the state will be the defendant My noble friend Lord Thomas of Gresford, on a and the person who is the claimant will have full point picked up by the noble Lord, Lord Beecham, knowledge of the case that he or she wishes to present. asked about who pays for the special advocates. The The noble and learned Lord, Lord Woolf, expressed Government pay for them. Decisions with regard to that in a very clear and compelling way earlier in our the costs of a case overall are determined by the judge proceedings. in the normal way, but the Government always meet The special advocates acknowledge that the costs of the special advocates because it is the communication to the excluded party in relation to the Government who wish to see the closed material substance of the closed material may well be impossible. proceedings. That picks up a point made by my noble friend Lord Amendments 56 and 65 would provide that a special Marks who said how this could be extended. We are advocate be appointed at the beginning of proceedings certainly aware that special advocates have raised these in which the Secretary of State has made an application matters. The purpose of the restrictions on communication under Clause 6(1). There is, however, already sufficient is to ensure that national security is protected by provision in the Bill on the appointment of special avoiding inadvertent disclosure. That is something advocates. The Bill already provides that the appropriate that the special advocates are also determined to avoid. law officer may appoint a special advocate to represent In instances where agents or sources are involved, this the interests of the excluded party. The rules of court can be about protecting life itself. The agencies have under the Bill will, like the rules of procedure which reaffirmed their willingness to continue assisting with exist for other statutory CMPs, then deal with the queries and rephrasing questions on the closed material, precise mechanics. There is thus already sufficient something which at the moment occurs in cases on an provision for the law officer to be informed and to act informal basis. to appoint a special advocate. In a moment, I shall There has also been some suggestion about unfettered return to the point raised by my noble friend about communication on procedural matters. If there is a “must” and “may”. The format in the Bill follows what problem, a communication about administrative or is already the case for existing CMPs, such as in the procedural matters might appear innocuous but could Terrorism Prevention and Investigation Measures Act inadvertently reveal something of the nature of a 2011 and the Special Immigration Appeals Commission closed case. Every case has different circumstances, Act 1997. different contexts and different sensitivities which a Amendment 63 introduces the opportunity for special advocate may well not be aware of and may special advocates to take instructions from the party not be expected to be aware of. What might appear to they are representing. There are already provisions for be a safe question in most contexts may carry a risk in 157 Justice and Security Bill [HL][LORDS] Justice and Security Bill [HL] 158

[LORD WALLACE OF TANKERNESS] Clause 7, nothing will be done to disturb the overriding relation to one case. We believe that only agencies are objective, which is to enable the court to decide the in a position to make that judgment and fully determine case justly? That is a fundamental principle which the potential harm to the national interest. must not be overridden, whatever the technical detail My noble friend proposes, also in Amendment 63, may be. to introduce a provision for the special advocate to apply to a court if he considers that any material Lord Wallace of Tankerness: I would want to reflect should be disclosed in open court. The default position on what the “austerity of tabulated legalism” actually in any proceedings in which the court has declared means. We have had exchanges in earlier debates and that a CMP may be used is that material will be in we have set out why an express reference to Article 6 open court. If the Government want material to be of the European Convention on Human Rights is heard in closed procedure, they would have to apply incorporated into the Bill. I hope that my noble friend for that to happen. In this application, a key part of is assured by that. I am about to get to the point made the special advocates’ role would be to challenge whether by my noble friend Lady Williams. I will get there closed material should in fact be disclosed to the eventually. excluded individual; they have had a number of successes in arguing this in various cases. Therefore I believe that Amendment 63 misunderstands the way in which Baroness Berridge: Following on from the point Clause 7 would work in practice. made by my noble friend Lord Lester about the overriding My noble friend’s Amendment 64 would introduce objective to act justly, if there is not a special advocate an obligation on the appropriate law officer, rather in the closed material proceedings, our courts will be than a discretion on an officer, to appoint a special hearing only one side in a completely unchallenged advocate. I can readily see why my noble friend has format. Therefore, is it not better to have the mandatory tabled this amendment because he may well see that requirement? Even having a special advocate there there is a possible let out here from a special advocate who we know does not have an ordinary relationship being appointed. The current discretionary power allows with the client enables a more judicial decision to be for the fact that an excluded person may not wish to made. Confidence in our courts will be more likely to appoint or provide instructions to a special advocate be upheld if there is somebody probing potentially at for whatever reason, in which case it is likely to be the truth and not just acting on behalf of the claimant. impossible for a special advocate to represent the One-sided proceedings could damage confidence in excluded person. However, in practice, it is difficult to our judicial decisions. conceive of circumstances in which the appropriate law officer would not appoint a special advocate where Lord Wallace of Tankerness: The point I was making statute makes provision for a special advocate to be to my noble friend is that we are dealing with a rare appointed and the excluded party wants a special and exceptional circumstance where an excluded person advocate to represent their interests. The word “may” has indicated that they do not wish to appoint or is used in the corresponding provision of the TPIM provide instructions to a special advocate. Before acceding Act at paragraph 10 of Schedule 4. to my noble friend’s point, one would have to consider the almost impossible position that would put a special Lord Beecham: I wonder whether the noble and advocate in. It would be very difficult, if not impossible. learned Lord could deal with this matter by accepting That is why this is phrased as it is. It is very unlikely a slight modification to the wording so that there that that would happen. I am not aware that it has “must” be an appointment of a special advocate unless happened, but no doubt others who have practised the party declines to accept the appointment. will be aware. The noble Lord, Lord Pannick, is shaking his head. He is not aware of circumstances where that has happened. The great likelihood is that the excluded Lord Wallace of Tankerness: That is a helpful person will want a special advocate appointed to do suggestion. I am always wary of saying that, as it the very kind of job that my noble friend rightly might cast doubt on what has been put in an earlier articulates. statute which is intended to do the same thing. An My noble friend Lady Williams referred to the absolute requirement may lead to a special advocate particular provisions in Clause 8 and to Amendment 66, being appointed in circumstances where it would be which would remove the fact that a special advocate is almost impossible for the person to function. I hope not responsible to the party whose interests they are that the noble Lord is reassured that it is our intention representing. The noble Lord, Lord Pannick, expressed that whenever an excluded person wants a special very clearly why that provision is there in the form in advocate, a special advocate will be appointed. I note which it is. The Bill makes clear that while the excluded what he says. Without wanting to cast doubt on what party is not the client of the special advocate, the is in other statutes, we shall certainly have regard to special advocate is specifically appointed to represent what he says. the interests of the excluded person. We believe that it is not possible to go further and to permit the special Lord Lester of Herne Hill: I appreciate that there is advocate and the excluded party to have a lawyer-client always the danger of what Lord Wilberforce once relationship. I fully understand my noble friend’s point described as the “austerity of tabulated legalism”. I but I think that the subsection is a product of the way ask my noble and learned friend whether it is absolutely in which the role of special advocate has developed. clear that, in exercising the rule-making power under The concept of a party’s legal representatives being 159 Justice and Security Bill [HL][17 JULY 2012] Justice and Security Bill [HL] 160 privy to information which is not disclosed to the However, I recognise the point made by my noble client raises serious ethical and professional problems. friend and believe that in these circumstances it would That is why the provision is there. I think I am right in be more appropriate for the special advocate to raise saying that it is reflected in some of the other statutory such a concern with the judge; in which case they provisions where there are closed material proceedings. would be fully able to do so. Amendment 67 introduces a responsibility on the It is important that we have discussed these different special advocate to provide a summary of closed material issues. I hope I have shown that the provisions in the to the excluded party. There are two important aspects Bill and the rules of court which will be made under to that. First, the question of whether a summary these provisions will enable special advocates, in dealing should be provided is and should continue to be in the with closed material proceedings, fully to deploy the hands of the judge. It is the judge who will determine skills in which they have already been shown to be whether a summary of the evidence should be made more than competent. I ask my noble friend to withdraw available to the other party, whether this can be done his amendment. without harming national security or whether it is deemed necessary for the proceedings to be fair, even where damaging to national security. Secondly, the Lord Hodgson of Astley Abbotts: My Lords, this special advocate, as I have indicated, is not in a position was a menu of issues that I felt we ought to discuss to determine harm to national security by deciding today. I am exceptionally grateful to my noble friends what information can be passed on to the excluded Lady Williams and Lady Berridge for their support on party. Rather, it is for the security and intelligence Amendments 66 and 67. The noble Lord, Lord Pannick, agencies to undertake this assessment. Special advocates did us non-lawyers a favour by revealing the full have accepted that communication to the individual neutrality—or less than neutrality—of the special regarding the substance of closed material presents advocate. Describing my amendment as a “fig leaf” difficulties and may well not be possible without the may have been a bit brutal, but it was at least clear. We involvement of the court and, in particular, the now know where we stand, even if we are not reassured Government, to avoid the risk that inadvertently damaging by it. I say to my noble friend Lord Gold that, whatever disclosures are made. Mr Nick Blake, who is now a the rights and wrongs of the explanation given by my High Court Judge, gave evidence to the Joint Committee noble and learned friend on the Front Bench, to say on Human Rights in 2007 while still a special advocate. that a special advocate has to stay because it is better In that evidence session he acknowledged that changing that he stays, even if he does not like doing the job, the rules to allow communication after service of than for the case not to be able to carry on, seems to be closed material would put enormous responsibilities a strange way of following justice. My noble friend on special advocates not to disclose information Lord Faulks seemed to be dangerously close to saying, inadvertently. We know that special advocates take “This is as good as it is going to get. Let’s trust the that responsibility very seriously indeed. That is why judges”. If we are not careful, we will put too much we do not believe that it would be appropriate for the weight on the judges and on their judgment. We need special advocates to determine the summary of the to provide some buttress and support to them in their evidence to be made available. difficult choice and the difficult task that they carry out. 6.15 pm I am grateful to my noble and learned friend on the Amendment 67 aims to confer a right on the special Front Bench for his extensive summing up. I am advocate to withdraw from proceedings. That point convinced by the arguments on Amendments 55 and was made by my noble friend Lord Hodgson in moving 63. On Amendment 64, my noble and learned friend the amendment and also by my noble friend Lady said that a claimant may not want to have a special Berridge. We believe that it is not necessary to make advocate. Given what the noble Lord, Lord Pannick, provision for a special advocate to withdraw. The said about the nature of the relationship, it seems that special advocate may already do so. In these circumstances, the claimant has virtually no interest in this at all. On the appropriate law officer would appoint another “must” be appointed, it would be a good idea if he special advocate of the excluded party’s choice. were appointed, because at least it would be better than nothing happening at all. That is an important Amendment 67 also proposes that special advocates issue and it is made more important by the way that write to the ISC after closed proceedings. The ISC is a the noble Lord, Lord Pannick, has illuminated the parliamentary body with a specific role regarding the nature of the relationship or non-relationship. work of the agencies and the wider intelligence community. It would not be appropriate for it to take on a role of With regard to Amendment 67, I am not suggesting judicial scrutiny over the workings of a court proceeding. that the ISC should have judicial scrutiny. I am trying On the point of introducing a duty on a special to find a mechanism that will enable some body in advocate to maintain confidentiality as regards the which the Government, Parliament and society can proceedings, special advocates are security cleared and have confidence to cast an eye over the way this already bound by this duty. The rules of procedure for procedure is working and ensure that the very important closed material proceedings make it clear exactly with delicate balance, which we all know exists between whom the special advocate may or may not communicate national security and individual liberty, is maintained. regarding any matter connected with the proceedings. The speaking notes that officials prepared for my The exception of requiring a special advocate to refer noble and learned friend did not get to the heart of something to the Crown Prosecution Service would what I was driving at. However, a lot of useful information put him or her in an extremely difficult position. was given by my noble and learned friend. I am 161 Justice and Security Bill [HL][LORDS] Justice and Security Bill [HL] 162

[LORD HODGSON OF ASTLEY ABBOTTS] Lord Thomas of Gresford: I speak to Amendment 58 extremely grateful to him and to all other noble Lords. in my name and that of my noble friend Lady Hamwee. I am sure that there are bits that we will want to come Clause 7(1) contains five paragraphs of which (a), (b), back to, but for the time being, I beg leave to withdraw (d) and (e) are largely procedural. But paragraph (c), the amendment. which states that, “the court is required to give permission for material not to be Amendment 55 withdrawn. disclosed if it considers that the disclosure of the material would be damaging to the interests of national security”, Amendment 56 not moved. goes to the heart of the issue. Does the judge have any function when he is considering an application? Can he carry out a balancing exercise in which he can Amendment 57 weigh the interests of not disclosing material against Moved by Lord Hodgson of Astley Abbotts the interests of justice? My amendment is simple. I note that my noble 57: Clause 7, page 5, line 31, leave out paragraph (c) friend Lord Lester and the noble Lord, Lord Pannick, have a similar one to follow. I will not weary your Lord Hodgson of Astley Abbotts: My Lords, I am Lordships with the argument for any length of time. It afraid that I have another group of amendments. In introduces the instruction to the judge that he must moving Amendment 57, I will also speak to Amendments balance his decision and not simply follow a rubric 60, 61 and 68. Other amendments in this group, that is laid out for him by the statute as currently Amendments 58 and 59, will be spoken to by noble drafted. Lords more experienced in the law than I am. Again I await with some relief the arrival of the heavy artillery. Lord Pannick: My Lords, I am certainly not the The purpose of this group of amendments is to heavy artillery to which the noble Lord, Lord Hodgson, encourage the use of gisting as a means of ensuring referred, but I will offer him some small arms fire in equality of justice. I accept that the amendments are support. Amendment 59 is in my name and that of the quite challenging in the form that they have been put noble Lord, Lord Lester of Herne Hill. As with all down, but I ask my noble and learned friend to see the amendments in this group, and as indicated by the that they are balanced by the duty of confidentiality noble Lord, Lord Hodgson, it is a further attempt to that was imposed on special advocates in my address the core problem with which the Committee Amendment 67, which was in the group that we were has been concerned in relation to Part 2 of the Bill: just discussing. that is, the need to ensure that the court is given power Simply put, Amendment 57 omits Clause 7(1)(c), to order a CMP in the exceptional cases in which such which imposes a duty on the court not to allow a need arises, but only where there is no other fair and gisting. That strikes at the root of what this group of proper means of balancing justice and security. amendments is trying to achieve. Amendment 59, as the noble Lord, Lord Thomas of Amendment 60 takes Clause 7(1)(d) and replaces Gresford, said, is in similar terms to his Amendment 58. the words “consider requiring” with the word “require”, It would ensure that the rules of court would require so that, the judge to ask whether the damage that the disclosure “if permission is given by the court not to disclose material, it would do to national security would outweigh the must consider requiring the relevant person to provide a summary”, public interest in the fair and open administration of would read, justice. The Bill as drafted, as I understand it, would “it must require the relevant person to provide a summary”. enable a CMP to be imposed even if the judge concludes As I said, the aim is to widen the use of gisting. that the damage done by not moving to a CMP was Amendment 61 would omit Clause 7(1)(e) because it is minimal, and even if the damage to fairness by denying again dependent on the national security definition open justice was substantial on the facts of the individual and has in part been covered, as I said in my introductory case. That cannot be right, especially when, as we have remarks, by the duty of non-disclosure imposed by previously debated, a decision by a judge not to adopt Amendment 67. a CMP would impose no obligation on the Secretary of State to disclose the material, because they would Finally, Amendment 68 would omit Clause 10(1) have the option of not continuing to defend the because I am not quite clear what it means. It seems to proceedings. repeat Clause 7(1)(c) and I would be grateful if my noble and learned friend could explain why we need it. Amendment 59 is designed to implement the objective that was stated by the independent reviewer of terrorism, In Committee, all our debates have had a pre-eminent Mr David Anderson QC, in his oral evidence of 19 June underlying theme: how to balance the liberty of the to the Joint Committee on Human Rights. He said: subject with the need for national security and the “The closed material procedure is a weapon that could usefully judicial process. Gisting is one way to help that balance. be added to a judge’s armoury, but it should be for the judge to I beg to move. decide on the fairest way to dispose of a case”. At present, Clause 7 prevents that desirable objective The Deputy Chairman of Committees (Viscount from being achieved. Ullswater): My Lords, I must advise your Lordships I will speak also to Amendments 60 and 62 in the that if this amendment is agreed to, I will not be able group, to which I have added my name. Amendment 60 to call Amendments 58 and 59 because of pre-emption. would require the judge, if ordering a CMP, not just to 163 Justice and Security Bill [HL][17 JULY 2012] Justice and Security Bill [HL] 164

“consider requiring” a summary of the closed material is watching one of these cases realises, ‘I’m in a court. There are to be provided to the other parties—it would require barristers with wigs on, there are judges, there are formal legal that such a summary of the closed material be provided. procedures, but there is actually something missing’, and what is missing is the testing of evidence on both sides, which is the basis Amendment 62 would require the court to ensure of our adversarial system. It has many flaws but, in practice, it has that the summary of the closed material contained tended to work quite well”. sufficient information to enable the excluded party to Mr Jaffey concluded: give effective instructions to his legal representatives “That is why I have concerns about extending Closed Material and to the special advocate. It would require the Procedures to civil trials”. summary to satisfy that test even if it would impinge This demonstrates with clarity the inherent unfairness on national security.The reasoning behind Amendment 62 and the reasons why it is absolutely vital to ensure a is that it sets out the bare minimum necessary to semblance of fairness in this procedure, whereby the ensure a fair hearing. It is based on the criteria that individual concerned is told at least the gist of the case were stated by the Appellate Committee of this House against them. in the AF case in 2009 in relation to control order cases. Sufficient information was required by the Appellate It is not just that the litigant will inevitably feel a Committee in a control order case to enable the subject deep sense of injustice when they lose the case and are to give effective instructions, even if such disclosure not told why. Judgments that are reached through a would have damaged national security. I declare an procedure in which at least a summary is not provided interest: I was counsel to AF in that case. to the litigant will inevitably fail to command the confidence of the communities from which the disappointed litigants come. That was a point made 6.30 pm earlier this afternoon by the noble Lords, Lord Dubs To deny the litigant—whether he is a claimant or and Lord Marks of Henley-on-Thames. To adopt this defendant—at least a statement of the gist of the case procedure would run the very serious risk of undermining against him so that he has an opportunity to respond the respect in which the law is held by law-abiding is unfair, and whatever other procedures we put in citizens. Those who have no respect for the law may place, it would remain unfair. The Appellate Committee fail to pass on information that the security services accepted—and it was surely correct to do so—that require in order to do their job. That, too, would pose disclosure of the gist of a case is required because the dangers for national security. For all those reasons I special advocate, however competent or industrious, suggest that we are dealing here with fundamental cannot himself or herself secure fairness for the litigant issues, and that it is vital that the Bill contain the whose case is decided through a closed material procedure. minimum safeguard that the individual concerned should The special advocate, as we heard this afternoon, be told at the very least the gist of the case against them. cannot take instructions from the litigant in relation to the closed material, and cannot put the litigant’s case to the witnesses. That is what Mr Angus McCullough, Lord Lester of Herne Hill: My Lords, my name a distinguished counsel and one of the special advocates, appears on some of these amendments, and I will said in his evidence to the Joint Committee on 26 June. briefly make a couple of points. I say first to my noble It has been quoted already this afternoon, but I remind friend Lord Hodgson that he makes a mistake if he the Committee of what he said: refers to me as heavy artillery, since I was the most “The best that we can do … is very limited indeed … We, as inefficient gunner officer during the Suez invasion. I the Special Advocates, are in great difficulties in displacing the lost an entire water-carrying convoy, and laid a sinister explanation if we cannot take instructions from the smokescreen with 100-metre gaps in it. I do not regard person who is in a position to provide the innocent explanation”. myself as heavy except in a physical sense. Further, the The role of the special advocate will not prevent the noble Lord, Lord Pannick, referred to Blackstone litigant from almost inevitably feeling a deep sense of Chambers, which is my chambers as well. However, I injustice when the case is decided against him for make it absolutely clear than under the cab rank reasons of which he is not informed, and after a principle, many members of my chambers have appeared procedure in which he has played very little part. This on the other side in these cases. Certainly, although I point was made with some clarity in oral evidence to listened to Ben Jaffey, I regard the fact that I am in his the Joint Committee on 26 June by counsel very in chambers as immaterial. experienced in this field, Mr Ben Jaffey, who practises The noble Lord, Lord Pannick, said almost everything from Blackstone Chambers, as do I. He told the Joint that needs to be said, except that the Joint Committee Committee that he would, on Human Rights itself recommended what is now “encourage anyone who finds the idea of a Closed Material Amendment 62. In paragraph 106 of its report, it Procedure more attractive than the alternatives to come and recommends that, watch one from the perspective of an individual before deciding “the obligation to disclose sufficient material to enable effective that it is a better way of approaching things … I have accompanied instructions to be given to an individual’s special advocate should quite a lot of people who have sat behind me in court and they always apply in any proceedings in which closed material procedures have undergone this process of slight realisation over the course are used”. of a day or so … The realisation happens when an individual asks the judge or asks the counsel for the Secretary of State exactly In the previous paragraph, the report quotes my noble what they are meant to have done wrong, and the judge says, ‘I friend Lord Carlile as saying that AF standards—that am very sorry but I can’t tell you that’, and then receives the is, these disclosure standards—, judgment and asks me, ‘I don’t understand why I’ve lost’, and I am afraid I have to say, ‘Well, I don’t either’. Sometimes that “should apply to all proceedings in any event. I can see no process of realisation is quite quick but sometimes it happens respectable argument against gisting in any circumstances”. much more slowly, and the realisation happens as the person who The JCHR report concludes: “We agree”. 165 Justice and Security Bill [HL][LORDS] Justice and Security Bill [HL] 166

[LORD LESTER OF HERNE HILL] the proceedings. If the gist is given, there have been My other point is that although I am keen on the quite a number of cases where the individual has seen European Human Rights Convention setting minimum that it is not worth opposing the application because international standards, in this kind of area it is the he knows perfectly well where he was or what activity common law standards and the standards of Parliament he was engaged in at a particular time. Thirdly, it is a that really set fairness in this country. I sometimes fair process, or at least it is as close to a fair process as worry that reliance on Article 6 of the convention, in a we are going to be able to achieve when dealing with system where the civil law is very strong, may actually national security. My fourth reason for supporting diminish the strength of the common-law system. So I Amendment 62 relates to the other words in it which hope that the fact that these amendments have the do not deal with gisting of itself. It concerns the blessing of the all-party Joint Committee on Human ability, Rights, of the special advocates and of my noble “to enable the excluded party to give effective instructions to his friend Lord Carlile, the former independent reviewer legal representative and special advocate”. of terrorist legislation, as well as of those who spoke I know that this is going to arise a little later too. To in this debate, will carry great weight with the Government. improve the procedure for arrangements to be made under the rules of court, it is absolutely essential for Baroness Kennedy of The Shaws: My Lords, I agree the individual to be able to give instructions to special with my legal colleagues in this House about the need advocates just as they can give instructions to their for gisting as a step towards creating greater fairness. own counsel. In my view, there has to be an obligation to disclose I think that this three-line amendment covers a because the detainees in these cases—I have acted in multiplicity of issues and should be supported. I hope them—are deeply disadvantaged. The noble Lord, that my noble and learned friend on the Front Bench Lord Pannick, has described powerfully the bewilderment will see the sense of it. and disappointment in detainees when an order is made against them, but they have not understood the case against them. I shall give an example because 6.45 pm sometimes that helps us to root our understanding of Lord Judd: My Lords, perhaps it is an appropriate why something might matter. moment for someone who is not a lawyer to add a lay I took a case where a young man was to be deported man’s word. We debated these issues very fully at on the grounds of concerns about national security. Second Reading and I believe that the helpful amendments The gist of the case against him suggested that he had before us are a good attempt to try to meet some of been present at a meeting in a house he shared with the anxieties that were expressed then. Speaking as a many other students at which discussions were held lay man, what has always been important to me is the that were of concern to the authorities. Because the principle which has emerged from the history of our gist of the case was offered to us, it was possible to judicial system: someone who is accused of an offence show that at the time the meeting took place the young should know the case against them so that they can man had been using a computer that was linked to the defend themselves. The noble Lord, Lord Pannick, university in order to work on his thesis. The interactivity talked about how there is an element of unfairness in showed that he had been involved in quite complex, what is happening. That is true, but I think it is more difficult work on his computer, which meant that he fundamental than that. It is not just about unfairness; could not have been participating in and party to the it is that we are breaching the principles of justice as meeting taking place in the house. That was one of the they have emerged. That is what has happened because features of the case that made a real difference, but we of the dreadful and appalling security issues which would not have known about it if the gist had not been have arisen. As these procedures are applied, every given to us. The force of something can only be possible effort should be made to keep the priority of brought home to those not involved in these cases by justice at the forefront. Anything that can be done to the use of a real example. The noble Lord, Lord achieve this should be pursued. Pannick, described people sitting in the court and I am fearful that a certain sort of tendency could being mystified by the process. That drives home just develop, but it should not be assumed that this is a how unacceptable it can be. change of gear which can easily be made in the process I strongly urge that we do this least thing in trying of a case. There must be a real and specific reason for to address the concerns about the whole business of doing it, and it should be limited to the fewest possible closed material proceedings. occasions. Even then, it is terribly important that we are certain that the principle of justice has been very Lord Carlile of Berriew: My Lords, perhaps I may much in the forefront of the minds of the judge and of take a few moments to make four short points in everybody else before we pursue the technique. support of Amendment 62, tabled in the name of my We know that in the cause of combating terrorism noble friend and the noble Lord, Lord Pannick. Gisting and the extremism that leads to terrorism, it is crucial presents great advantages, above all of which, in a not to give ammunition to the cynical extremists who headline, is the advantage of fairness. First, it compels seek to exploit the impressionable with plausible argument. the Government’s advocates to focus on the real reasons I cannot think of anything that has the potential to for pursuing their particular point. Using the very give more ammunition to an extremist wanting to good example cited by the noble Baroness, it enables recruit an impressionable person than for him to be them to see where they are wrong because an answer able to say, “Look, there has not been proper justice in can be given if the gisting occurs. Secondly, it shortens this case”. From that standpoint, the arguments we 167 Justice and Security Bill [HL][17 JULY 2012] Justice and Security Bill [HL] 168 are putting forward are central to the issue of anti-terrorist told that you cannot allow young boys to try climbing and security policy itself. I am absolutely convinced of a tree, you get to the point where the general public that. The people who have put forward these amendments feel that this is a ludicrous overstatement of so-called are doing us a good service in terms of upholding the security and safety, and they become disinclined to principles of justice and avoiding the terrible pitfalls take any notice. That is a trivial example. of counterproductivity in the fight against extremism There are more serious examples. My political and terrorism. memory goes back quite a long way. In our history we have cases all too often forgotten, where security has Baroness Williams of Crosby: My Lords, I should trumped fairness and justice and left behind a real like to follow the noble Lord, Lord Judd, in what one weakness in our democracy.Perhaps the supreme example might call a very short interval for non-lawyers to of that was the decision to introduce the principle of speak. He has pointed to some crucial considerations internment into Northern Ireland’s politics. Just before that need to be borne in mind. I will turn for a moment this I was the Minister of State for Northern Ireland. to Amendments 58 and 59, which are crucial to a fair It meant two things quite quickly. The first was a outcome of this complicated debate. In doing so let strong sense of a breach with what has been a long me say that I strongly agree with those who have argued tradition of this country, at least as far as its internal for gisting as a way of moving a bit closer towards a justice is concerned. Secondly—and I will never forget just outcome for those who cannot be openly represented the words used—this became a recruiting sergeant for and, indeed, cannot instruct their representatives how terrorism. Even Lord Whitelaw, at that time Secretary to behave. It helps the people concerned feel that some of State, noticed how counterproductive internment sort of justice has been done. was and how it led to more and more young Irish men We heard in the words of the noble Lord, Lord and women letting themselves be recruited—signing Hodgson of Astley Abbotts, the attempt to define up—for the production of terrorism. Internment was national security in a way that would narrow down the brought in in 1971 and was eventually dropped. Only implications to what was really of crucial importance after it was dropped was the path open to the Good to the nation. The response from my noble and learned Friday settlement and to what today is, if not a perfect, friend on the Front Bench showed how difficult it is to at least a much better outcome of the situation in make a definition of that kind. However hard we try Northern Ireland. there are always ways in which it is, as he said, either too narrow or too broad. Lord Ashdown of Norton-sub-Hamdon: Ihavenot In Amendment 58, tabled by my noble friends Lord been here today as much as I might have been and Thomas and Lady Hamwee, and Amendment 59, I am grateful to my noble friend for agreeing that I tabled by the noble Lord, Lord Pannick, and my noble might intervene, but I want to reinforce her point. I friend Lord Lester, we have a way of getting back to a was a young soldier on the streets of Belfast in 1970. balance between what is represented by the need for When we marched into Belfast and into the Ardoyne security and what is represented by, in the words of the we were welcomed by the Catholics with butties, as noble Lord, Lord Judd, the principle of justice upon they called them, and mugs of tea. A mere year later, which the whole of the British legal tradition has been as a result of internment and other matters which based. That is exactly right. We have heard a paean of followed swiftly around the time of Bloody Sunday, praise to our judges, saying that they are very capable we were the enemy. It took us the best part of two of making difficult balanced judgments of this kind. decades to recover that trust among the Irish population, The attempt to give back to them the decision about directly as a result of events that she has described. what that balance is is one that we can reasonably feel is in competent hands, where justice is likely to be the outcome. Baroness Williams of Crosby: I am grateful to my What happens if one does not have Amendments 58 noble friend. Nobody knows more directly and more and 59 in this Bill? We have neglected this, or perhaps at first hand than he exactly of what he is speaking, we had an earlier brief discussion about this at the given his long and distinguished service in Northern beginning of the day’s proceedings but we have moved Ireland in several capacities. a long way since. What happens if one regards national A second example that I know about, because I was security as having such a primary place that one living there at the time, was that the dreadful atrocity forgets the interests of justice almost altogether? An of 9/11 produced a great wave of attempts to introduce example of it is the attitude of the general public, more security legislation in the United States. After a where they believe themselves to be put in a position while this included a certain disregard for some of the of extreme difficulty and inconvenience because of a crucial rights of human beings there. American citizens ludicrous pursuit of security. The noble Lord, Lord found time and again, understandably given the terrible Deben, gave us an example of that. effects of 9/11, that their fundamental rights began to Let me give another one, the way in which the be disregarded in the interests of security. It was an concepts of health and safety are now held in almost extraordinarily difficult balance that to this day United universal ridicule by the population of this country. States jurists feel strongly has gone against the basic They were an attempt to go too far, to intervene too liberties of the human being. much, to interfere all the way through, in the ordinary The third example is ourselves. The noble Lord, rights and liberties of citizens. When you are told that Lord Deben, spoke movingly about his son and the you have to cut down a chestnut tree for fear of a dog across the street from No. 10 Downing Street. I conker falling on somebody’s head, or when you are might add that the Olympics are getting almost completely 169 Justice and Security Bill [HL][LORDS] Justice and Security Bill [HL] 170

[BARONESS WILLIAMS OF CROSBY] Under Clause 7, if there was a frivolous invocation of out of hand in the interests of what one might describe national security, a judge could simply reject it. This as an obsessive view about security. We go back to amendment suggests that a judge can substitute his rather a trivial example. Yesterday I was in Trafalgar own view. As I understand it, were the Government to Square with my grandson. We went to see the famous take the view that the judge had got it wrong and had Olympic clock that shows how many hours, minutes overlooked what the Government considered to be the and seconds are left before the opening of the Olympic interests of national security, the Government would proceedings. However, in order to see the clock, which then be in precisely the position they are in—that is, was approximately 40 yards into the square on a having to settle a case—which is the very rationale gloomy, wet evening, we had to pass no fewer than six behind the Bill. security guards, and no fewer than three detailed and Of course, gisting is a fundamental part of the very closely networked railings, which were impossible to difficult role the special advocate has to perform. I pass, so we had to go round them in several directions agree with my noble friend Lord Lester that it is to get anywhere. It took us about 20 minutes to cross perhaps slightly clumsy to incorporate Article 6 into Trafalgar Square, being asked all the way whether we the Bill. As a matter of law, the Human Rights Act had passports, what we were doing there and why, and provides that the convention is read into the Bill, and other things like that. I am a great believer in creating there is a declaration of compatibility on the face of job opportunities for young people, but I cannot help the Bill. But many leading cases have referred to thinking that maybe a job working on, let us say, the Article 6 in reviewing the various provisions giving rise refurbishment of older housing might be more to the interference by the Executive in the liberty of a constructive than sitting in Trafalgar Square stopping subject, and this seems to be a safeguard that the ordinary citizens like me from crossing it. Government have thought appropriate to put in the Bill. I am sorry to put it so strongly, but we are becoming Gisting is considered perhaps to be part of the general obsessive on this issue. We are getting the balance approach to fairness. badly wrong. This Bill is critical for the future of our I entirely agree that gisting is desirable. I suppose liberties in this country and for the attitudes to justice the Minister may rely on what the noble and learned of ordinary people whose support for that justice is Lord, Lord Hope, said in Tariq v the Home Office, critical in a democracy; there is no substitute for civic that, support for the rule of law. I plead with my noble “there cannot … be an absolute rule that gisting must always be friends on the Front Bench that they look closely at resorted to whatever the circumstances”. Amendments 58 and 59, which at least enable the Sometimes it must be almost impossible to provide by judges in this country to restore a reasonable balance way of a gist that which a special advocate would to the clear needs of national security, which I do not naturally want to know but would be a potential deny and which the noble Baroness, Lady Manningham- breach of national security; a gist simply is not practical. Buller, has put extremely well in this debate, recognising Therefore, while acknowledging the force of the arguments that there are two things to be balanced and not one in favour of gisting, we should hesitate a little before thing to sweep away. I plead with my noble friend to providing that there should be an absolute hard and consider accepting these amendments, because they fast requirement. are a crucial safeguard for the liberties of this country and which this Bill ought to include. I share with all noble Lords a desire for fairness and for safeguards to be inserted, but I respectfully submit that we must not be too dismissive of national security, Lord Faulks: My Lords, it is a great privilege to although equally it should not be lightly invoked. follow the noble Baroness and I am sorry to bring an end to this welcome interval from lawyers and to return briefly to the dry legalities of the Bill. The Baroness Berridge: My Lords, I will speak briefly in question in this Bill of who decides national security support of Amendment 62. My noble and learned has troubled me. Clause 6 seems to suggest that the friend the Minister has outlined that this is a balance judge has some role in deciding it. Amendment 59 of security and fairness. In a closed material procedure, suggests that an exercise should be performed by the I do not think it is wrong to say that the national judge in which he or she can assess, by balancing the security issue is a higher priority for the Government various processes—presumably roughly in accordance who are party to the proceedings, and fairness is with the ex parte Wiley approach—which should come higher up the priority list for a claimant who has been first, the interests of justice or national security. excluded. Let us take the example of a claimant who has been 7pm excluded from the hearing and is sitting in the corridor whiling away the hours while the proceedings go on, It seems to me that the noble and learned Lord, and turns to the rules of court that have been drafted Lord Hoffmann, was right, in the well known case of and looks at Clause 7, as we have it, unamended. How the Secretary of State for the Home Department v is the claimant not going to conclude, when looking at Rehman, when he said that, those rules, that almost the sole interest the court is “the question of whether something is ‘in the interests’ of national required to take into account is national security? security is not a question of law, it is a matter of judgment and policy. Under the constitution of the United Kingdom and most According to paragraphs (c), (d) and (e), the court has other countries, decisions as to whether something is or is not in to consider giving a summary, but this is not required. the interests of national security are not a matter for judicial To preserve the integrity of the court, Clause 7 is too decision, they are entrusted to the executive”. constrained around the requirements of national security 171 Justice and Security Bill [HL][17 JULY 2012] Justice and Security Bill [HL] 172 and does not bring in the need for fairness of the decision is effectively made for him by the Secretary of claimant, who will be sitting there wanting to know as State, and that is extremely undesirable. It follows that much as possible about the evidence and, if possible, the amendments in relation to gisting, which the noble to know the gist of the case. Bringing in some Lord, Lord Pannick, described as a minimum requirement, consideration of the need for the claimant to have also have their place in a system which is fair to the enough information to provide instructions is incredibly parties. important. There must be some requirement given to The noble and learned Lord referred to the application the court to consider the issues of fairness under the of the European Court of Human Rights. Although I rules. am sure that he is clear in his own mind that there is no Secondly, although I take full notice of the views of real conflict with the human rights legislation, there is, the noble Baroness, Lady Manningham-Buller, that perhaps, a question about that. Clause 7(1)(e), to which the special advocates who are there on behalf of the other noble Lords have referred, makes it clear, in excluded party cannot be the sole judge of whether relation to gisting, for example, that a summary does national security is breached if a particular summary not contain material the disclosure of which would be of the case is given, what would be the objection to damaging to the interests of national security. However, including the special advocate in the process of deciding it is apparently the position that the European Court what the summary is? Perhaps they could be involved has previously struck down decisions made under the with the relevant party because, as the legislation is existing closed materials procedure on the basis that drafted, the duty of not revealing national security has they were incompatible with the right to a fair hearing in any event been given to the court, so why not have a which, of course, Article 6 prescribes. process where at least the claimant would know that The case law suggests—I am referring now to a the special advocate is able to partake in that process briefing from Justice, the organisation concerned with to determine the summary and the court is the final civil liberties and matters of this kind—that, gateway to ensuring that national security is not breached? “a person must be given as much disclosure—whether through Therefore, I support Amendment 62. the provision of documents, evidence or a summary—as is needed to secure a fair trial”. Lord Beecham: My Lords, the noble Baroness, Lady It refers in its briefing to the case of A v United Berridge, has identified and emphasised the crucial Kingdom, in which, nature of Clause 7. It is the fundamental problem with “the Grand Chamber concluded that where insufficient material the Bill that, despite the protestations of the Lord had been disclosed to an individual subject to a control order”— Chancellor, it gives little discretion ultimately to the of course, we are not talking about control orders here judge as to whether the closed material procedure but about a civil claim— should be invoked. Clause 7(1)(c) requires the court to “this rendered the hearing unfair and incompatible with the give permission if, Convention”. “the disclosure of the material would be damaging to the interests of national security”. The briefing also refers to the case of AF, to which the noble Lord, Lord Pannick, referred. There must be a It seems clear that any disclosure of matters affecting question as to whether the assurance of the noble and national security would suffice to preclude the material learned Lord, obviously given in good faith, that being made available. Therefore, we come back to the Clause 11(5) resolves these matters—because it emphasises position that the noble Lord, Lord Faulks, referred to, the duties of the court under the Human Rights Act, as enunciated by the noble and learned Lord, Lord such that, Hoffmann. “Nothing … is to be read as requiring a court or tribunal to It is almost exactly 50 years since I first became act in a manner inconsistent with Article 6 of the Human Rights acquainted with the noble and learned Lord, Lord Convention”— Hoffmann, as a new student at University College, amounts to very much. On the face of it, it would Oxford—where I was succeeded in due course, several appear that the provisions of the Bill, as drafted, years later, by the noble Lord, Lord Marks—and I would lead to conflict with Article 6. have a great admiration for noble and learned Lord, who was a distinguished opponent of the South African regime. I find it rather surprising that he came to the Lord Lester of Herne Hill: Is the noble Lord aware conclusion that matters of this kind are a matter for of a case I once did, Tinnelly and McElduff v UK, the Executive and not the judiciary. It is not a view where there was a conclusive certificate of national that can be recommended to your Lordships’ House. security under our law which prevented these Northern It strikes a dagger at the heart of our system, and the Irish Catholics from having the merits of their religious amendments before us provide the right approach to discrimination claim heard at all when they were procuring a level of fairness that allows the judge to blacklisted? The Strasbourg court said that that was make a decision on the basis of a balancing exercise. clearly contrary to the convention and therefore the I entirely agree with the noble Baroness, Lady Berridge, national security certificate that had been cleared by and others who have laid an emphasis on the need to the Minister and by the Northern Ireland courts, have that balancing exercise carried out. The amendments which said they had no alternative, was held to be in in the names of the noble Lords, Lord Thomas, Lord violation of the convention. Pannick and Lord Lester, clearly are directed at securing that important balance and fulfilling the—unjustified— Lord Beecham: I am grateful to the noble Lord, claims made for the Bill that ultimately it will be the who brings another example of precisely the same judge who actually takes the decision; otherwise the point made in the briefing that I referred to and 173 Justice and Security Bill [HL][LORDS] Justice and Security Bill [HL] 174

[LORD BEECHAM] Lord Wallace of Tankerness: My Lords, I am grateful underlines the apparent discrepancy between the evident both to my noble friends and other noble Lords who intentions of Clause 11(5) and the reality which would brought these amendments forward and to all noble appear to be applicable. In looking at these amendments Lords who contributed to this debate. The amendments I think that your Lordships’ House may wish, when raise important issues concerning the Bill and it is we come to Report—because we will not be voting therefore important that the House has had a thorough today—to support the thrust of these amendments, which and well informed debate. I am acutely aware that seek to import into what is patently an unsatisfactory noble Lords are concerned about the way in which the procedure at the moment evidence of balance and Bill draws the balance between the interests of national fairness which would leave the decision where it ought security and the role of the judge in providing fairness to be, in the hands of the judge who is dealing with for parties in proceedings. these matters, assisted, we hope, by the special advocate My noble friend Lady Williams is right to remind presenting a case on behalf of the other party to the us—I do not know whether she used the words, but case. the sense of what she was saying was—that the price As matters stand, it does not look as though the Bill of liberty is eternal vigilance and that it is important, adequately reflects these requirements or, indeed, the whenever there are issues such as this, that we give requirements of Article 6. I hope that the Government considerable scrutiny to the way our laws are framed. will look again at the implications of the situation as it Amendments 57, 58, 59 and 68 would, if accepted, is now presented, bearing in mind the widespread remove the obligation on the court not to allow concerns expressed around all these issues by eminent information to be disclosed if it would damage the Members of your Lordships’ House, particularly the interests of national security. Instead, the court would noble Lord, Lord Carlile, who was very clear that the have to balance the damage done to national security Bill, as currently drafted, does not adequately deal with the public interest in fair and open justice. with the need for fairness through a proper existing procedure. I thought that he made that case very On a slightly technical point, my noble friend Lord effectively—as indeed did other noble Lords, legally Hodgson asked why we need Clause 10(1), which he qualified and not legally qualified—raising deep concerns thought was perhaps repetitious. The answer is that about how the Bill will operate in practice, bearing in Clause 10(1) refers to the Section 6 proceedings as a mind, again, that many of us still have to be persuaded whole, whereas Clause 7(1)(c) deals only with the that there is a substantial issue here, given that we have document-by-document process at stage 2, which yet to be shown cases in which damage has been done determines whether individual pieces of material will by the system which has prevailed hitherto. be heard in open court or in a CMP. Of course, when it comes to disclosure the Government The Wiley balancing exercise has been referred to still have the last resort of not proceeding with the in this debate and I believe it underlies Amendments 57, case. That has a financial cost and it may have other 58, 59 and 68. It may help in presenting the case to set costs, but it preserves the rationale for the Bill’s provisions out some of the background to this, although I am in that it preserves the interests of national security. If acutely aware that a number of your Lordships who the Government feel that national security has to be have taken part in the debate are well aware of it. protected, they can effectively stop the case by settling However, the pertinent and pressing questions are it or, perhaps, striking it out. often asked in the contributions from the non-lawyers and it is therefore important to set the response in context. The traditional method of protecting sensitive 7.15 pm material in civil proceedings is for the Secretary of State to claim public interest immunity. Under PII, Lord Butler of Brockwell: Does the noble Lord which is a common law regime, the Secretary of State think that it is a demonstration of damage being done certifies that disclosure of the evidence in question that the Government have been unable to defend would be contrary to the public interest and that the themselves in such cases and have had to settle? interests of justice in favour of disclosure are outweighed by that of the public interest. The public interest could include the interests of national security, good Lord Beecham: There cannot be two winners in international relations, the detection and prevention these situations. It is certainly less than satisfactory of crime, or any other aspect of the public interest. that a case does not proceed to a final adjudication, and it may be that the Government are therefore, to In deciding whether to permit non-disclosure, a some degree, a loser. However, the question is whether court will consider whether the Secretary of State has that consideration should take precedence over the struck the right balance. The court will consider those rights of the individual, the other party to the case, to aspects of the public interest that favour non-disclosure have a proper hearing and to put his side of the case. against those that favour disclosure: for example, the We have to make a choice, and the choice should be, public interest in trials being fair, in justice being open “By all means let us preserve national security, if that and in cases being able to be fully reported. This is is the ultimate requirement, but not at the expense of sometimes called the Wiley balancing test after an the other party, whose right to access to justice will important case on PII. have been obstructed”. That is the decision that we Normally, a claim for PII will be supported by a have to make. We have to do a balancing process ministerial certificate and will be considered by the ourselves, as legislators, and I hope that that is the line trial judge. Unless the fact of a PII claim being made is that we take. itself too sensitive to be disclosed to the other party, 175 Justice and Security Bill [HL][17 JULY 2012] Justice and Security Bill [HL] 176 for example because it might risk revealing the existence material may be heard in a closed hearing is where the or identity of an agent, the other party will be able to court accepts that disclosure would damage the interests attend the hearing. This will be with a view to persuading of our national security. Where the court permits the the court that, in carrying out the public interest material to be heard in closed procedure, the court balancing exercise, it should order disclosure of the must consider ordering summaries to be given to the documents in question, for example because of their claimant or permitting only parts of documents to be likely high degree of relevance to the case. If the court heard in closed proceedings—in other words, redaction. refuses a PII claim, the Government will need to If the court refuses the application for material to be consider whether to settle the proceedings rather than heard in closed proceedings, the relevant person, usually disclose the damaging material. the Secretary of State or a government agency, is required either to disclose the material, or the judge The question that these amendments pose to the can direct the relevant person to not rely on that Government is why the court should not be able to material—in which case it will be excluded from the consider whether there are overriding public interests proceedings—to make concessions or to take such that point to disclosure. In short, the Government other steps as the court may specify. This is a similar consider that the approach in the Bill is the right one level of flexibility to that which is available to the judge because it is in the national security context. The only under PII and ensures that, in practice, the amount of ground on which a court may permit material to be material heard in open session where a CMP is available heard in closed session is on the narrow one that will not be less than had a PII exercise occurred disclosure of material would damage the interests of instead. At all stages, the court will make the necessary national security.Aside from the important countervailing orders to ensure that the proceedings are conducted in fair trial issues, which, as we have heard and as I will a manner which complies with Article 6 of the European return to, are explicitly dealt with in the Bill, the Convention on Human Rights. Government consider that it would be truly exceptional for a different aspect of the public interest to outweigh The Government consider that the approach in the the public interest in preventing damage to the interests Bill is the right one in the national security context. It of national security. is used in other current CMPs such as TPIMs and SIAC. In any case, in practice, under current arrangements, The Government have considered this issue carefully if on the basis of its balancing test the court rejects a and have introduced safeguards that we believe ensure PII claim, in whole or in part, the Government use that there is justice for claimants and that the judge every tool available to them to ensure that that material will have a crucial role in the process. The Government remains protected—including, if necessary, withdrawing are committed to putting as much information as they from the proceedings or settling. can into the public domain and to complying with our obligations under Article 6 of the ECHR. I think it is Amendments 60 and 61 would require the court to important to set out in detail how the Government order a summary of the closed material to be provided have balanced the judicial role to ensure that as much to the excluded parties and, in doing so, would remove information as possible is given to the claimant and the obligation to ensure that a summary of the closed made public. material did not contain material the disclosure of which would be damaging to national security. There It is important to emphasise that, in reality, the Bill is already a provision for a judge to require disclosure contemplates a two-stage test to any application for a where necessary for Article 6 to be enforced. CMP. The result is that CMPs are available in tightly defined circumstances in which the judge is given the My noble friend Lady Berridge asked for special final say over the use of a CMP and a similar level advocates to be involved in determining what that of flexibility to that available to a judge under PII. summary should contain in terms of Clause 7(1)(d). I The first test, which I think we went over during the can assure my noble friend that the special advocates previous day in Committee, is on application by the are very much involved in that process. No doubt we Secretary of State to the judge for a closed material will be arguing—and, as we have in past cases, arguing procedure on the basis that a party would be required effectively—for as much information to be included as to disclose material in the course of the proceedings, possible. We agree that information should be summarised the disclosure of which would damage the interests of if it can be. However, if these amendments were to be national security. The judge will grant the application accepted, and the Government were unable to provide if he or she agrees with the Secretary of State’s assessment a summary due to the sensitivity of the information, and make a declaration that a CMP can be used. I the risk is that the Government would be forced to think my noble friend Lord Faulks said it would withdraw or settle. That would effectively mean that certainly not allow a flippant use or a flippant claim of the problem we are trying to solve would still exist. national security. Indeed, I believe it would not allow Again, there would be silence on very important matters, one where the real motivation was not about national there would be no final judgment for a judge and none security interests being damaged at all but covering up of the questions posed by the claimant would be or concealing embarrassment. answered. There is then the second stage, at which the judge No one has sought to pretend that closed material considers the treatment of each individual piece of procedures are better or as good as open proceedings, material, in particular whether it should be heard in but we have said that second-best justice is better than open or closed proceedings. The judge has a number no justice at all. The intervention of the noble Lord, of important tools with which to ensure that the Lord Butler, indicated that we are dealing with proceedings are held fairly. The sole ground on which circumstances where there is arguably a defence but 177 Justice and Security Bill [HL][LORDS] Justice and Security Bill [HL] 178

[LORD WALLACE OF TANKERNESS] noble Lord, Lord Beecham. Clause 11(5)(c), as it were, one that under present arrangements cannot be advanced trumps anything in Clauses 6 to 10. Perhaps that is because to do so would damage the interests of national where the noble Lord saw a weakness. I hope that security. We are seeking to allow that defence to be put reassures him about the purpose of including that. forward, albeit by means of a closed material procedure. I appreciate the concerns about the claimant Lord Lester of Herne Hill: My difficulty with my getting as much information as possible and the process noble and learned friend’s reply is that he keeps saying: being fair. My noble and learned friend Lord Mackay “I hope that Members of the House will be reassured”, indicated at Second Reading that we have to look not but we need reassurance in the legislation itself. The just at Clause 7(1) but Clause 7(2) as it interacts with problem is that there are no controlling principles. We Clause 7(3)—if a party is unable to provide a summary, do not have a written constitutional charter of rights, then the court can order that party to make concessions the nearest we have is the European convention, which or to not rely on that material. These are very real is pretty vague and not tailored to these particular safeguards. needs. When we come to Amendment 90 at night-time on Monday, where the noble Lord, Lord Pannick, and Amendment 62, which my noble friend Lord Lester I have tried to put in some constitutional standards, it and the noble Lord, Lord Pannick, have spoken to, will be interesting to see whether at least that is accepted. and which was supported by my noble friend Lord Does my noble and learned friend follow that what we Carlile of Berriew and by other noble Lords, suggests seek to do is put some controlling criteria, other than that the best way of ensuring compatibility with our ministerial assurances, in the Bill to make it constitutionally European convention obligations is by adding to the appropriate? Bill words that give effect to the judgment of your Lordships’ Judicial Committee in June 2009, in what I think is commonly known as case AF (No. 3). In that Lord Wallace of Tankerness: I understand the point case, their Lordships ruled that for the stringent control being made by my noble friend, but what is in the Bill orders before them, in order for the control order goes beyond a ministerial assurance. What is in the Bill proceedings to be compatible with Article 6, the controlled is that nothing in Clauses 6 to 11 or in any provision person must be given sufficient information about the made by virtue of them is to be read as requiring a allegations against him or her to enable them to give court or tribunal to act in a manner inconsistent with effective instructions to the special advocate in relation Article 6 of the European Convention on Human to these allegations. I hope I have summarised fairly Rights. I will come to this more specifically in a what the Judicial Committee of the House determined. moment, but these will be matters that will be determined by the court; it is not a matter of ministerial assurance. 7.30 pm As we saw in the case of AF (No 3), the courts asserted what was required to make the proceedings This means that even where disclosure would be consistent with the requirements of Article 6. What is against the public interest, for example if disclosure required to achieve fairness in accordance with Article 6 could put the life of an informant at risk, the disclosure is a matter to be determined by the courts in the obligations set out in AF (No. 3) would apply in such a context of each individual case. The AF (No 3) disclosure context. By contrast, in the case of Tariq v Home requirement will, of course, be applied by the court Office, the Supreme Court did not consider that the when it considers that the requirements of Article 6 so requirements of Article 6 required AF (No. 3)-type demand to ensure that fair trial requirements are met. disclosure to be provided in an unlawful discrimination However, this does not mean that the AF (No 3) claim against the Home Office, brought by an immigration formulation would or should apply in all cases that use officer whose security clearance had been withdrawn. these closed procedures. We submit that we must allow I can assure the Committee that the Government the judges to assess the level of disclosure required in share the desire of all those who have contributed to each case to meet Article 6. the debate and those who have not to ensure that, My noble friend Lord Faulks said that he anticipated wherever closed proceedings are used, they are compatible that I might refer to what the noble and learned Lord, with Article 6. However, I will seek to assure your Lord Hope, said in the case of Tariq. I fully intended Lordships that the provisions in the Bill achieve this. to do so. The deputy president of the Supreme Court That was a specific assurance that the noble Lord, said in that case: Lord Beecham, sought. “There cannot, after all, be an absolute rule that gisting must The proposals have been guided by fundamental always be resorted to whatever the circumstances. There are no rights to justice and fairness, including those in the hard edged rules in this area of the law”. European Convention on Human Rights. The convention Reference has already been made in this debate to itself recognises that it may sometimes be necessary to Mr David Anderson QC, who is in favour of gisting. restrict openness in court proceedings where national In January this year, in evidence to the Joint Committee security requires it. I have made a statement of on Human Rights, reflecting on what the noble and compatibility under the Human Rights Act 1998 in learned Lord, Lord Hope, said, he said: relation to this Bill. As we have frequently reflected “The courts have … said that it is not a hard-edged area of in our deliberations, there are specific provisions in law. In other words, it is one for them to decide on rather than for Clause 11(5)(c) which emphasise that nothing in Clauses 6 Parliament”. to 10 are to be read as requiring a court or tribunal to Later he said, act in a manner inconsistent with Article 6 of the “it is not an area where certainty can sensibly be provided by European Convention on Human Rights. That is legislation ... I do not think I would like the legislation very much specifically the point of reassurance sought by the if it came out”. 179 Justice and Security Bill [HL][17 JULY 2012] Justice and Security Bill [HL] 180

Let me also remind your Lordships that the Justice which pieces of material should be disclosed and and Security Green Paper suggested that we might which should not and in making representations as to consider legislating to clarify the context in which the what should or should not be in any gist. However, as I AF (No 3) gisting requirement does not apply. The indicated in an earlier debate, it is important to remember, Government listened to the consultation responses, too, that we are dealing with civil proceedings in which which held a majority view that situations in which the the defendant will almost certainly be the state and the AF (No 3) disclosure requirement applied needed to claimant will be the person who has been excluded. be considered on a case-by-case basis in the courts. Therefore, they will know full well what their case is as The Bingham Centre said: it is their own case that they will be advancing. Before “Establishing a statutory presumption as to the circumstances the closed material is made available to the special in which the AF (No 3) disclosure requirement applies would not advocate, there will be an opportunity for the person avoid the need for the precise parameters of the principle being who knows what his or her case is to discuss it with the worked out in the courts. This issue cannot be resolved by special advocate. domestic legislation alone but requires careful and detailed reference to ECHR and EU law. The content of UK legislation could not Finally, many judges have gone on record as praising have any appreciable influence on the CJEU or ECtHR. Therefore the very valuable work that special advocates do in we see no value in this suggestion. If anything, a legislative these cases. It would be wrong to suggest otherwise. presumption would only complicate the law and lead to more Perhaps the noble Lord is not suggesting that, but it rather than less litigation”. would be wrong to give the impression that special I do not think there is any distance between us in advocates are totally hamstrung. They have a very trying to ensure fairness. I recognise the importance good track record, as has been recognised by a number and significance of all the amendments, not least of senior judges. Amendment 62, but our position is that this would put hard edges into law where it is not desirable and where Lord Hodgson of Astley Abbotts: My Lords, the the courts themselves have indicated that they should length of the debate and the breadth and depth of be determined on a case-by-case basis. As I have also contributions have indicated how important gisting is. indicated, if in a particular set of circumstances the My noble friend Lord Carlile spoke about fairness, the court’s view was that the gisting level required in AF noble Lord, Lord Beecham, about balance, and my (No 3) was the one required in that case, the regard the noble friend Lord Faulks about the dangers of not courts must have to Article 6 of the European Convention giving sufficient weight to the demands of national on Human Rights allows them to require that. The security. One of the problems with not practising law common law is as much part of our legal system as is that you do not have real-life examples, such as statute law, and I believe that the courts will continue those produced by several noble Lords this evening, to to be the guardians of individual rights to a fair trial back up the impact and give bite to their particular and that further legislation on this provision is not recommendations. only unnecessary but may even be counterproductive. I shall briefly repeat what I said at Second Reading: my experience of working with, speaking to and meeting Lord Judd: The noble and learned Lord in his full young Muslim men and women as part of the Speaker’s reply referred to the special advocates being on board outreach programme in Birmingham and the West and being involved in the process. Does he agree they Midlands shows that they have a keen interest in how are involved in the process with one and a half hands our justice system works and whether it delivers fairness tied behind their back, because they will have had no and balance to all sections of our community. While opportunity to discuss the really crucial issues with these are probing amendments, I am sure that this is their client, who might well have something relevant to an issue to which we will come back. Now that my contribute to the deliberations going on? When we noble and learned friend has given us a lot of helpful talk about it being better to have an imperfect system information and a careful explanation of the procedure of justice than no system at all, what concerns some to be gone through, we will have time over the summer of us is that this is an exceptional process and the to reflect on this. We shall see where we come out, but Government should look seriously at a belt and braces I am sure we will want to have a further crack at this to approach to make sure that it is exceptional. Otherwise make sure that our society and the communities within there is a tendency over time for it to become just an it do not feel that the justice system does not deliver alternative. fair, open and transparent justice to them. In the mean time, I beg leave to withdraw the amendment. Lord Wallace of Tankerness: I fully accept—and it was said from this Dispatch Box in earlier debates—that Amendment 57 withdrawn. it is very much seen as an exceptional procedure. It is not intended to be run-of-the-mill, and nor would we Amendments 58 to 63 not moved. wish it to be seen as “creep”. It is meant to apply in only a very limited number of cases where the Government Clause 7 agreed. believe that they have a proper defence to cases made against them, but where at the present time it is not Clause8:Appointment of special advocate possible to deploy that defence because it would mean disclosing material which would be damaging to the Amendments 64 to 67 not moved. national interest. Clause 8 agreed. As for the earlier point, it has been said on a number of occasions that the role of the special advocates House resumed. Committee to begin again not before is crucial. It will be crucial in arguing over and determining 8.28 pm. 181 Education Regulations 2012[LORDS] Education Regulations 2012 182

Education (Exemption from School the day have a duty both to the public generally, whose Inspection) (England) Regulations 2012 taxes pay for those services, and to the citizens who use the services. Surely the Government should be the Motion of Regret guardians of both value for money and the quality of 7.45 pm the public services provided. It is largely through Moved By Baroness Hughes of Stretford regulatory and inspection regimes that the Government discharge their duty to service users and the wider That this House regrets that the Education public. That is why we have inspection of hospitals, (Exemption from School Inspection) (England) GPs, police services, children’s homes and care homes. Regulations 2012 (SI 2012/1293) are both unnecessary All major public services, whether provided directly by and counterproductive as they would undermine public bodies or indirectly through private, voluntary the principle of all public services being inspected or independent organisations, are subject to inspection on a regular basis; undermine the professional oversight regimes to protect users and taxpayers. I know of no that is an essential part of good school governance; other services in which categories of provider are and run the risk of damaging children in cases exempt. I would be grateful if the Minister could where schools that have not been inspected then go identify any for us, because I could not find any. into decline. Because, for these very good reasons, this principle Baroness Hughes of Stretford: My Lords, the is so deeply embedded in the way we deliver public background to this Motion of Regret is the regulations services; because many of these services are critical to that determine the framework for inspection of schools people’s well-being; and because the people using them in England by Ofsted. Section 5 of the Education are often vulnerable in one way or another, it would be Act 2005 sets out the duty of the chief inspector to unthinkable for, say, excellent hospitals or care homes inspect schools at such intervals as are prescribed in to be allowed to be completely exempt from future regulations. The 2005 regulations made under Section 5 inspections. We can all predict the reaction if this were provide that the maximum interval between school to be the case, so there are crucial questions that the inspections should be five years. However, the Education Minister—with respect—has to answer, because they Act 2011, the passage of which we debated last year, were not answered in this or the other place during now enables the Government to exempt specific categories the passage of the Education Act 2011. Why do the of school from the chief inspector’s duty to inspect. Government think exemption is acceptable for schools but not for hospitals, care homes and constabularies? This is the first set of regulations to be made under Is this not an abdication of the Government’s duty to the new power and has the effect of exempting from the public? any further routine inspection any school that receives the highest Ofsted grading, which, as we know, is In striking the balance between the demands of currently “outstanding”. Thus, in future, every school inspection and the so-called freedom for schools, which that is rated outstanding will not be routinely inspected the Government are promoting, have they not fallen further by Ofsted unless the school itself requests an too far on the side of the professionals and not sufficiently inspection, in which case it will have to pay for it. The on the need to protect all pupils? The Minister may Government resisted amendments in Committee that well say that the Government believe that they can would allow parents or local authorities to trigger an trust schools to do the best for their pupils. We can for inspection. the most part, although not entirely, as experience tells The Government’s arguments in support of the us. However, that does not answer the point that it is change appear to be twofold. First, they say that wrong in principle for the provider of a service to be exempting outstanding schools from future inspections the sole arbiter of standards without any independent will reduce, in the Government’s parlance, the “burdens” evaluation. on such schools. Secondly, they say that it will enable In addition to this fundamental issue of principle, Ofsted to target resources on less successful schools there are a number of practical consequences to the and so will have a cost benefit. Both arguments have exemption that I believe may have adverse effects on some credence. However, for many years now, under children and schools. I will mention three—other noble successive Governments, Ofsted has moved towards a Lords will have other points—that are of particular risk-based, proportionate approach to determining concern to me. First, an outstanding rating at one the frequency and intensity of inspection of particular inspection is not a guarantee of continuing excellence schools. Successful schools can already expect to be in standards of achievement. Outstanding schools inspected only once every five years. Therefore, risk decline. The 2010-11 Ofsted annual report reveals that assessments already enable Ofsted to target its resources 40% of the previously judged outstanding schools had effectively. However, to exempt schools from routine declined at their subsequent inspection and three had inspection entirely, and for schools to know that they plummeted to a rating of inadequate. For this reason, henceforth they will be exempt, is not simply an extension both the current chief inspector, Michael Wilshaw, of these developments. It is a significant qualitative and the former chief inspector, Christine Gilbert, have change of a completely different order. It is wrong in publicly expressed concerns about the proposal to principle and will have all sorts of adverse consequences exempt, as did the Education Select Committee. in practice. I shall touch on both concerns—the principle Secondly, it is quite obvious that inspectors need and the practical implications. regularly to see the full range of performance The issue of principle derives from questions about during their inspections in order satisfactorily to the role of government in the delivery of our major benchmark individual schools. If excellent schools are public services. I would argue that the Government of progressively excluded from the inspection regime 183 Education Regulations 2012[17 JULY 2012] Education Regulations 2012 184 there is a real danger that inspectors’ expectations will seven by comparison with other countries to being drift downwards over time as they lose touch with the down in 25th, 27th and 28th place in different subject very best practice. areas. Although Ofsted, I am sure, has been pursuing Finally, inspections cover much more than the quality its aims with the best of intentions, and no doubt the of teaching and learning. They have an important, Government’s very tight regulations, particularly the and I would argue vital, role in telling us how well previous Government’s regulations, for how Ofsted schools are addressing the wider well-being of pupils should go about its business, were all done with the and preparing them for life challenges. Exam results best of intentions, it simply did not work in the way alone cannot tell us how well, or even if, a school is that it was hoped it would. The standards of performance teaching personal, social and health education, for in our schools have degenerated quite disastrously in example; how extensive the extra-curricular activities comparison with the standards of performance of are; or, most importantly, how effectively a school is other countries over the period of Ofsted’s work. We implementing good safeguarding policy and practice. need to start inquiring very deeply, rather than have a I know that if this exemption goes through—as I mantra of “inspection is good”, as to exactly what am sure it will—Ofsted has said that it will desktop really does achieve quality in schools and education. assess outstanding schools regularly. However, that There is plenty of evidence that people perform at desktop analysis cannot possibly find out what is their best, whether professionally or in other areas, going on underneath exam results, and clarify and when they are trusted and feel valued. My very strong highlight whether there are any areas of concern, experience of talking to teachers and heads over the particularly in safeguarding and similar aspects of past decade or so is that they have lost that feeling of school life. For these reasons, and others that I suspect trust. They feel they are bound by an overweening will be raised this evening, I believe that exempting inspection regime which has breathed down their necks. any schools entirely from the inspection regime is a They are watching their backs and feel that the failure to children and parents. I beg to move the Government are permanently on their backs telling Motion. them things. That has been part of the Ofsted culture. I am happy to see that that is now being changed Baroness Perry of Southwark: My Lords, I congratulate under the coalition Government. Ofsted is being changed the noble Baroness on setting out her concerns. We very radically and made much more professional and know that she speaks from a very deep concern for the much more limited in its inquisitorial role. That is a welfare of children and has a wish to see excellence in good thing. Nevertheless, for most teachers and schools, education, an aspiration which we all share. I know there is still a sense of being watched rather than being too that she has real concerns about the possibility of trusted. I believe passionately, as well as having seen a school degenerating from outstanding to something the research evidence, that trust and value enable less. professional people and others to perform at their I want to take both aspects she mentioned, the peak. practical and the principle, and to say a few words on There must be accountability to balance autonomy. why I believe that this set of regulations exempting The more freedom that we give to exempt schools, the some schools in this way is the right move. First, on more it is essential that we decide what their autonomy the practical, I think the noble Baroness rather should be. I would very briefly say that I think that overemphasised the picture of schools that were never there are three levels of autonomy that we should inspected. This is not what is going to happen. They trust. The first is the professional code, to which will still be included in national surveys, with subjects teachers themselves rightly aspire. The conscience of and aspects of education, so her concerns that the the teacher in wanting to give his or her absolute best people in Ofsted will no longer have the opportunity is the first level of accountability. That is what we must to see excellence is more than answered by the fact that foster, help and encourage by giving them more freedom they will still be able to see excellence across specific to do that, because it is the real guarantee of quality. It subject areas and specific aspects of education. is only when teachers really feel that they are responsible Secondly, the chief inspector’s risk assessment will for their own performance and that they are required be annual. It will be regular and look at more than to give the best to their pupils that the quality can simply exam results. It will look at any concerns raised really be guaranteed. The second level is that the head about the outstanding schools which are exempt and of the school and other senior people in the school are will then, if necessary, trigger an inspection. The noble responsible for the quality of education in that school. Baroness shares my concern that there is always a We must foster that. Instead of their thinking that danger of a change in a school’s performance when a somebody is going to come from outside and judge new head comes in—either for the better or for the them, they should take responsibility for themselves worse. The regulations cover that eventuality. The and be prepared to make those judgments and deal chief inspector’s risk assessment will be speeded up with any underperformance. after there is a change of leadership in the school. Finally, we have forgotten the role of governors There again, any anxieties one might have have been here. The last port of call, rightly, is and ought to be addressed in the regulations. the responsibility of the governors over the quality of There is a pathetic faith in the value of inspection. I what goes on in the school. If things start to go wrong, say that as one who spent 18 years as an inspector. In it is the governors who should blow the whistle and the 20 years or so that Ofsted has been pursuing its start taking action by changing the head or the other inspections, this country’s young people have moved staff of the school. It is a matter of absolute principle in their performance from being in the top five, six or that we should stop thinking that the Government are 185 Education Regulations 2012[LORDS] Education Regulations 2012 186

[BARONESS PERRY OF SOUTHWARK] “Schools have a right for the inspection to be rigorous, to be always the best judge of things and people. I love the fair. If not they have a right to write in and their complaint will be phrase in the department’s Explanatory Memorandum looked at”. to the regulations where it says: But, “Where is the redress?”, said a head in the “The intention is to give the best schools the power to manage programme. He went on to say: their own performance and to be more accountable locally to “If I get it wrong I will be held to account. Who holds Ofsted their communities, rather than to central government”. to account?”. That is what I believe should happen. The problem is that Ofsted is not obliged to correct its mistakes. The adjudicator can look only at the way the 8pm original complaint was handled, not at the substance of the original judgment. Who does that? It relies on Baroness Walmsley: My Lords, I do not have a people going to judicial review, and we all know what “pathetic faith” in inspections, as my noble friend that means. Lady Perry of Southwark, put it, as may become clear as I progress through my comments. The Explanatory All other regulators are held to account for the Memorandum is very interesting and raises a number quality of their regulation by the Legislative and of issues. I am not against exempting outstanding Regulatory Reform Act 2006. It was clearly the previous schools and giving them more autonomy, as long as Government’s intention that Ofsted, too, should be the risk assessment described in the memorandum is held to account under this Act. The response to the rigorous and properly applied. Paragraph 7.1, which consultation shows that very clearly. Does Ofsted fall my noble friend has just quoted, states that the policy under the LRRA 2006 or not—and, if not, why not? If intention, it does, it should follow the Hampton principles, including transparency. After all, there is evidence that the number “is to give the best schools the power to manage their own performance and to be more accountable locally to their communities, of complaints against Ofsted is rising. The department rather than to central government”. itself admits to one in 12 inspected schools. That is a Does this mean that the Government plan to restore lot. There is not enough information about the the link between academies and their local authorities, qualifications of those who inspect schools and about allowing local authorities to monitor the performance whether they are qualified teachers or have recent of those schools and giving them the levers to ensure experience in school leadership or in the specialist they are serving the community well? If not, that subjects on which they are passing judgment. My sentence is meaningless. noble friend Lady Perry, who is uniquely qualified to There is some detail about the risk assessment in ask questions on these issues, asked a Written Question the notes. It mentions that inspection will recommence about how many were even qualified teachers, but did if performance deteriorates significantly. How will not get a straight answer. It is not even known how that be judged? What is meant by “significantly”? many HMIs have secondary leadership experience, let Annexe A is even more interesting. It suggests that the alone all the freelancers employed by agencies. changes will lead to higher quality inspections. Well, In the light of “raising the bar” for schools, will the we would all like to see that, especially those of us who Government start to collect this data and “raise the heard “File on 4” on Radio 4 on 1 July. We are told bar”for Ofsted? We all want to bring about improvement that Ofsted expects to save around £2.5 million per in our schools, but we need to have confidence in those year through inspecting fewer schools. Can Ofsted who make judgments about school standards. Currently plough back the money to improve the standard of that is in question. It strikes me that the saving implied inspection and inspectors, or does it have to be returned by the reduction in the number of inspections brought to the Treasury? In the latter case, how is Ofsted about by these regulations gives us a great opportunity. expected to improve the quality of inspections without We need to start asking a lot more questions about the any money? quality of Ofsted inspectors and inspections if they Of course, Minsters always say that the quality of are to concentrate on core areas, as they are, and if the schools depends on the quality of teachers and school consequences for schools of the judgments that they leadership. That is, of course, quite correct. In the make are to become more serious, which they are. same way, good inspections depend on the quality of That is only fair. the inspectors. There were some very worrying cases in the programme. Broughton Hall school in Liverpool is a case in point. It sends many pupils to Oxbridge and Lord Hunt of Kings Heath: My Lords, I congratulate 97% of its pupils get five grade A to C GCSEs, even my noble friend for allowing us to debate this important though it is located in a deprived area. The school was issue. I declare an interest; my wife is training to be an threatened by an Ofsted inspector with special measures, Ofsted inspector. I expect to learn much more about even though it had an award-winning outstanding the process in the years ahead. I was surprised that the head. There were 27 errors in the report. Ofsted refused suggestion was made that the Committee stage of the to correct them all but gave the school a “satisfactory” Bill would resume at 8.30 pm. This debate is not time rating. But we all know that, come September, limited and I hope that we will not allow ourselves to “satisfactory” becomes “unsatisfactory”, so the stakes be restricted in the Minister’s winding-up speech. are getting higher. All the more reason therefore, why I accept what the noble Baroness, Lady Perry, said. we are entitled to ask about the quality and fairness of Ofsted inspections are not everything. I also understand the inspections. the criticisms that the noble Baroness, Lady Walmsley, In the programme Sir Michael Wilshaw, Her Majesty’s made about specific Ofsted inspections. However, for Chief Inspector of Schools, said: parents and children Ofsted none the less provides a 187 Education Regulations 2012[17 JULY 2012] Education Regulations 2012 188 key safeguard if things go wrong in an individual fell by one grade, two fell by two grades and one fell by school. That is why I am very much opposed to this three grades. Indeed, my understanding is that none statutory instrument; why, as noble Lords will recall, maintained the outstanding grade. we had a vote on this at Report; and why many noble I have seen no coherent, intellectual argument that Lords remain concerned about the decision. would justify exemption for outstanding schools. There If ever one wanted to a reason to put forward to is no evidence that all outstanding schools remain your Lordships’ House for needing this safeguard, it outstanding. We hear about the risk assessment approach was the quite extraordinary decision of the Minister’s —the desktop approach—but I do not believe that department this week to allow a free school to be there is confidence that that approach can get in to the opened by a group of creationists. The group behind school and actually see what is happening. the plans, known as the Exemplar Newark Business I will ask a number of questions of the Minister. Academy, put forward a revised bid by basically the First, we have heard that Ofsted will pay particular same people who proposed the Everyday Champions attention to a school or college where a new head Academy last year, which was formally backed by the teacher has been appointed. What about a considerable Everyday Champions Church. That bid was rejected change in the leadership team? I also note that the explicitly because of to concerns surrounding the teaching consultation in March 2011—this order has not been of creationism. In February 2011, while promoting consulted on but the original policy was consulted the Everyday Champions Academy bid, the Everyday on—showed 60% of respondents supported a risk-based Champions Church leader, Gareth Morgan, said: approach to determining which school should be “Creationism will be taught as the belief of the leadership of inspected. Can the Minister tell me whether parents the school. It will not be taught exclusively in the sciences, for were brought into this consultation? If parents knew example. At the same time, evolution will be taught as a theory”. that this was going to happen, I doubt very much that That bid was rejected, but it has resurrected itself—if I they would have supported the policy. may use the term in relation to creationism and that belief. This is now going to be bid by the Exemplar 8.15 pm Academy without the formal backing of the church, Can the Minister tell me whether there is a guarantee but the website for the new academy was initially part that every outstanding school will be reinspected before of the Everyday Champions Church website, and the the new system is brought in? In other words, given the plans were launched at the Everyday Champions Church, new criteria that the chief inspector has announced, described as a resubmission of a previous bid. can we be assured that only schools that have gone I use this, first, as an occasion to strongly protest through that process will be given the exemption? An against the decision of the Minister’s department on institution that I know in Birmingham was last inspected, this matter. I find it outrageous—outrageous—that a I think, more than six years ago and was graded school that clearly is going to be tempted down the outstanding. It has had a change of leadership—not creationism route has been authorised by the noble the governing body that the noble Baroness, Lady Lord. What safeguards are there apart from potential Perry, looked for—and it has not had another Ofsted interventions by Ofsted if we find that creationism is inspection. However, because it was graded outstanding being taught? What happens if Ofsted, first time round, six years ago, it seems that Ofsted has bypassed it. makes it an outstanding school? For many parents It might be an institution where the parents are not there will be no recourse whatever. That is why one the sort of people to complain. A large number of objects so much to the Government’s decision in this them might be members of ethnic minority communities regard. who are not used to raising issues and concerns. Who I recognise that exempt schools may still be subject is going to protect the students? What about the issue to inspections as part of the chief inspector’s surveys that the noble Baroness, Lady Walmsley, raised about of general subjects and thematic reviews. I noted what the grades the schools achieve for their students? What the noble Baroness , Lady Perry, said. However, what I happens if there is a change in intake? Is Ofsted going find quite extraordinary is that this flies in the face of to look at this through a desktop process? Clearly, all the other regulatory regimes that are present in despite all the nonsense that we hear from Mr Gove relation to public services, as my noble friend said. I about education, we know of the big impact that thought that the Explanatory Memorandum was intake has on the performance of a school. It is very disingenuous—to put it kindly—when it stated in easy to disguise the actual performance of the school paragraph 7.3: simply by raising the bar for the students you take into “Of the schools judged outstanding and inspected more than your institution. Will the desktop approach take account once since 2005, over 90% have remained either outstanding or of that? I very much doubt it. good at their latest inspection”. I ask the Minister to contrast this with what he and The reality at that time, as we discussed last year, his colleagues are doing in relation to other sectors. I was that, out of 1,155 schools that had been judged know the National Health Service best, and I refer the outstanding in that period, on subsequent inspection House to my interest in it. Last summer, the health more than 30% had a reduced grading, including regulator, the Care Quality Commission, announced 58 that went from grade 1 to grade 3. What we see that it was replacing its light-touch style with an quite clearly is that outstanding schools do not remain annual inspection of each NHS and independent-sector outstanding. That is why this policy is so fatally flawed. provider. As the CQC said at the time, when people’s I also refer the noble Lord to the college sector. I lives and well-being are at stake, the public do not understand that in the inspections undertaken between want to hear about light-touch regulation. We are January 2012 and May 2012, two outstanding colleges supposed to have a Government who favour cohesion. 189 Education Regulations 2012[LORDS] Education Regulations 2012 190

[LORD HUNT OF KINGS HEATH] I, for one, still believe that inspection has been an Why on earth are we having a different approach in essential part of basic education policy for the past relation to health and social care regulation as opposed 30 years. Successive Governments have abided by this. to education? I would hazard an educated guess that The narrative goes something like: “We want to give in October the report of the Francis inquiry will ask more freedom to schools, to encourage them to innovate for much tighter regulation of the health service. Why and take on local character, to trust them more and should schools and educational institutions be different? more, and we are more confident in doing that if there One should look at what is happening. The noble is an accountability mechanism at its core. The better Baroness, Lady Perry, said that we should trust the the inspection framework and the better our testing schools. I am prepared to do so up to a point. I only and the publication of that data, the more successive wish that Mr Gove would trust the governors. The Governments have felt that they could free up so much noble Baroness mentioned them. I should also like more of the education system”. I still abide by that. It take this opportunity to absolutely deplore Mr Gove’s has been a shared concern across the parties and I am remarks in relation to governors. Talk about trusting really worried if Members on the Government Back schools and institutions. He is not prepared to trust schools Benches—and perhaps the Front Bench, from whom we that do not want to become academies. Those school will hear—begin to challenge that shared understanding governors are bullied and harassed for their schools to that we have had for a number of years. become academies. There is not much trust there. The noble Baroness, Lady Perry, talked about a fall Thousands of governors give devoted duty, and being in standards in our schools over the past few years. I a governor today is much harder work than it was fundamentally disagree with her. That is not what 20 or 30 years ago. What a remark. Is the big society I have seen, and I do not believe it describes what is over? Surely, if you were looking for an example of going on in our schools. However, I do remember— devoted voluntary service to the public, it would be because I taught in it—the school system before we school governors. had any inspection at all. I would not want to go back We are being asked to take this policy on trust. The to that. The standard of education, the quality of argument is that by freeing up institutions, letting teaching and the number of children being let down them have their head and allowing them in many ways was far greater before we had this accountability to go down the selective route—which is, of course, framework, including inspection, than it ever has been the reality—we do not need to have inspection because since. That is my first point. Strategically, the Government we can trust the people to do the right thing. I am are pushing freedom for individual schools. Logically, afraid that in education one cannot always trust people they have every reason to care more about the inspection to do the right thing. I should have thought that the framework and the accountability framework, rather safeguard for the public is that if you are truly letting than less. They are throwing it away. go and allowing institutions to stand or fall on their My second strategic point, or point of policy and own two feet, the counterbalance should be to have a substance, is that if you read the Explanatory proper regulatory regime that involves all schools, not Memorandum—which I think was disingenuous in just those that are not classified at any moment in time many ways—it says that allowing outstanding schools as being outstanding. not to be inspected by Ofsted is a reward for good I do not know what my noble friend is going to do performance. We have spent years trying to persuade when it comes to deciding whether to press the Motion schools that being inspected by Ofsted is not a punishment. to a vote, but I feel very strongly about this. It is something that is good for schools and good for teaching, which they should accept. If being exempt from inspection is a reward for good performance, Baroness Morris of Yardley: My Lords, I am surprised what does it say about those schools that we are asking that this measure has come back as a statutory instrument, Ofsted to go into more frequently? It must be that it is given our debate during the passage of the Bill. It is an a punishment for underperformance. ill advised piece of legislation. Like my noble friend who moved the Motion, I want to look at it on the If struggling schools see Ofsted inspections as a strategic level and on points of detail. punishment, rather than as something that can be an essential step in improving their performance, that The noble Baroness, Lady Perry, made a significant absolutely takes away all the progress that has been contribution because there has been agreement over made over the past 20 years in trying to get a new the 30 years since her colleagues’ 1988 education Act generation of teachers to view Ofsted in a completely that inspection constitutes an essential part of the different light. infrastructure of education policy and it was the first time that I had heard any senior politician from any of The second point the Explanatory Memorandum the parties be so critical of inspection per se as part of makes is about freeing up staff time. Ofsted inspection the framework. If I follow the logic of what the noble should not be taking up lots of classroom time. That is Baroness said, I am left wondering why we are letting why we have moved to shorter notice for inspection Ofsted into any school in the country. If Ofsted is so and to inspectors being able to come in with two or weak and if we should now start to question its role in three days’ notice. It is an admission by government the education service, it cannot be just for outstanding that having Ofsted in your school wastes the time of schools; it must be in respect of the schools for which teachers. Frankly, if we want to free up time, it ought we worry far more, which are the satisfactory and to be for teachers who are teaching in schools that still less-than-satisfactory schools in our education system. have a long way to go, rather than in those that are There was no logic in that. outstanding. 191 Education Regulations 2012[17 JULY 2012] Education Regulations 2012 192

The last point, of course, is saving money. If this is “Teachers in Finland can choose their own teaching methods a money-saving measure, say so. Let it be. Let us talk and materials. They are experts of their own work, and they test about that, but let us not pretend that it is a decent their own pupils. I think this is also one of the reasons why teaching is such an attractive profession in Finland because educational measure. teachers are working like academic experts with their own pupils In terms of local accountability, one of the things in schools”. about Ofsted is that it gives a national framework for inspection, and it does not actually rely on local 8.30 pm accountability. I want a system where the schools in I am reminded of visiting a children’s home many the poorest areas are compared with the schools in the years ago and meeting probably the best children’s richest areas; the south with the north; the east with home manager that I have come across. She was an the west; the poor with the rich; the ethnic minorities immigrant from the highlands of Ethiopia who was with the affluent white. Unless we have a national wonderful at setting good boundaries for the children. inspection framework, we will never get that. She did not allow them to eat sloppily at the table and On details of policy, most of these points have been she kept good order, but she was compassionate and a made, but I will make one more. The panoply of rock for the staff in the children’s home. She would bureaucracy that is being built up as part of the risk say, “Who are these inspectors who do not know much assessment will take away any extra time or money about my particular area and tell me how to run my that might have come Ofsted’s way. As the years go by, home?”. She was proud of what she had achieved, and there will hopefully be more schools that receive that was a good example of how a poor inspection can outstanding Ofsted reports, go into that category and undermine the confidence, the work and the morale of will have to be risk-assessed every year. We are assured the people on the frontline. that there is no trigger or tick box, so careful judgments This is a complex issue. I want to concentrate on about all these schools will have to be taken into vulnerable children—those on free school meals and account. looked-after children—and explore what the consequences I will finish with two or three questions, some of of these regulations might be for them. With Ofsted which build on those which have already been asked. not monitoring these outstanding schools in the future, First, I want to pursue one of the questions outlined one has to worry that those pupils’ outcomes might be by my noble friend Lord Hunt. He asked whether allowed to drift. What is measured tends to be academic schools will be reinspected. If in future Ofsted criteria outcomes. I was very encouraged by a recent framework change, will schools be inspected again or will they be for Ofsted, from which I wish to draw an example. It allowed to be free for life from inspection against a set paid particular attention to the emotional, spiritual of criteria that is no longer being used? and other aspects of the development of children and Secondly, why are special schools not in this group? looked at the progress of children with disabilities. If we are going to exempt outstanding schools, then Schools knew that they would be measured against why are we not going to exempt special schools? that. I have a couple of quotations from recent reports Thirdly, the Explanatory Memorandum talks about, of primary schools in County Durham. One says, I think, 60% of people who were in favour of a “Excellent partnership working with the Place2Be ensures risk-based approach to inspection. I am in favour of a that excellent care and support are provided for those pupils who risk-based approach to inspection, but I am not in are potentially vulnerable, to remove barriers to learning”. favour of this. Will the Minister let us know what the That refers to Seaham Trinity Primary School. consultation report said about the number of people “All pupils, including the most vulnerable, are very appreciative who were in favour of this particular recommendation? of the excellent help and guidance they receive from staff who know them very well. Some spoke particularly warmly of the support they receive from the counselling service ‘Place2Be’ which The Earl of Listowel: My Lords, I am most grateful had helped them overcome personal difficulties and allowed them to the noble Baroness for raising this very important to achieve well”. subject. I share many of her concerns, particularly the That refers to Cotsford Junior School in County Durham. concerns raised by several noble Lords about the rapid I am worried that those soft outcomes, those harder- changes in school quality and how we can be sure we to-measure things, may be lost and may not be captured get on top of that in good time and do not allow some by the annual overview assessments. I would appreciate of these children’s education, and their time in school, reassurance from the Minister that the focus on these to be wasted. children, the softer information, the experience with In one particular aspect of our education, which is vulnerable children in schools will not be lost because faith schools—we have heard about creationism—there inspectors no longer go into those schools and see has been a lot of concern in debates on education Bills things for themselves. I know that the Minister will in this House about how they work in practice. Many have data on the progress of looked-after children and faith schools deliver great education to children, but on children on free school meals but there could be a they are a special complexity for this country, and lag between acquiring information about school there is therefore concern about how this regulation performance and the actual experience of a child. By may be implemented in that regard. the time you have that information a child may have I have sympathy with the Government’s position. I been let down for some years. I would like reassurance listened with great interest to what the noble Baroness, on that point. Lady Perry of Southwark, said. I was reminded of the To conclude, I have two questions. First, how does experience in Finland, where there is no school inspection one capture the emotional and spiritual development system. Finland’s Minister of Education says: of such children and how they are fairing without 193 Education Regulations 2012[LORDS] Education Regulations 2012 194

[THE EARL OF LISTOWEL] is important. A good inspection team will recognise annual monitoring of children in school? What sort of that some children have difficulty learning because of metric can capture that? I expect that it is very difficult factors in their lives that inhibit learning, such as a to capture. In terms of staff handover, I am grateful to home background that does not foster it. Schools hear from the noble Baroness, Lady Perry of Southwark, must make good that deficit before children can take that if a head teacher changes, there will be a sudden advantage of what the school offers. If they do not, new focus on that school. However, senior staff move and if they rely on developing self-esteem and overcoming on too; school leadership is very important for good disadvantage solely through literacy and numeracy, outcomes in schools. I would like further reassurance this has a profoundly negative effect on equality of from the Minister, therefore, that there will be close opportunity. A Government who express a wish to monitoring of changes in school staff. Would that be a overcome disadvantage should be ashamed to risk trigger for re-inspection? denying opportunities through negligence and through In conclusion, I worry that schools can decline very a lack of consideration for how schools are delivering quickly and that we might be letting some of their consistently and appropriately for all pupils, including pupils down by this move. I worry that the needs of delivering on dimensions which are non-academic but vulnerable children in schools might be overlooked which support learning. because there will not be inspection in the future. Can I have just looked at the Ofsted subsidiary guidance the Minister give reassurance in his response to the issued to inspectors in January 2012. That guidance debate? includes a spiritual dimension—the pupil’s perspective on life, their enjoyment of learning and so forth. It Baroness Massey of Darwen: My Lords, I am very includes a moral dimension—the ability to recognise glad that my noble friend Lady Hughes of Stretford the difference between right and wrong and the has put down this Motion of Regret. This is proving consequences of actions. It includes a social dimension— to be an important debate, quite rightly raising all co-operation and resolving conflict. It also includes a manner of concerns. I find the notion of schools being cultural dimension—responsiveness to artistic, musical, exempt from inspection quite extraordinary and somewhat sporting, mathematical and cultural opportunities and sinister. If this is about money, can we afford to exploring diversity. downgrade excellence in education? Inspection is about Education is not education if these dimensions of checking on measures to improve quality in all aspects learning are not considered, and they ought to be of school life. inspected. They are the less definable aspects of education. I would like to pick up on some of the things said Inspection teams should look for a positive school by the noble Earl, Lord Listowel. Inspection is not, of ethos that fosters respect for others and respect for course, the only measure. I recognise that many schools self. This ethos, embodied in and reliant on these less have in place excellent self-assessment procedures. definable aspects and the dimensions that I have listed, However, that is not the same as inspection. Who can disappear even more quickly than academic inspects the self-assessment procedures? I wonder whether achievement. It is terribly important to have inspectors the chief inspector’s risk assessment can kick in quickly go in, look around them and focus on the ethos of the enough or be rigorous enough. Regular inspection is school and the elements of learning that are essential something that many schools learn from; it makes to underpin all achievement. them vigilant. My principal concern about exempting I remember a discussion with the inspector for schools from inspection is that, as I know, the Minister personal, social and health education. She had, in her must know and at least three other Lords have mentioned, reports, examples of good practice in different schools. schools can slip very quickly from being excellent, That is another example of what inspection can do—to even good, to being not so good and not so excellent. I gather and share good work on all aspects of education. have known the loss of an inspiring head of department What a waste if that potential is lost. or an inspiring head teacher plummet a school into I do not understand the logic of the Government’s difficulties in less than a year. Deterioration of that thinking on these regulations. Good practice does not kind can go unnoticed for a while but would not if fear inspection. Inspection promotes vigilance and inspection were in place. excellence. Excellence supports children in academic School improvement partners were disbanded by subjects and in personal and social well-being. I urge this Government and not replaced. As a school governor, the Government to think again on this matter. I found in south London that visits by the school improvement partner were a great help in examining The Parliamentary Under-Secretary of State for Schools pupil achievement and well-being, structural issues (Lord Hill of Oareford): My Lords, we have had an and staff training needs. That has gone. Where will the interesting and wide-ranging debate. Many noble Lords checks be? It is ironic that private schools are inspected have spoken with a great deal of passion. We have regularly and thoroughly. Why will some state schools talked again about some of the issues that we discussed be exempt? This lack of inspection could well reinforce previously in Committee and on Report and we have inequality. It is not fair on pupils and parents in state talked about the whole question of inspection itself. A schools to remove controls on standards while they number of themes have been covered. I will concentrate are maintained rigorously in the private sector. my remarks on the Motion before us moved by the I have seen good school inspection teams in operation. noble Baroness, Lady Hughes of Stretford. I will This is where I want to pick up on what the noble Earl, attempt to pick up on the points raised relating to Lord Listowel, said. A good inspection team does not that. If I fail, I will follow up any particular questions just pick up on academic achievement, although that afterwards. 195 Education Regulations 2012[17 JULY 2012] Education Regulations 2012 196

I think that it is fair to say that, although there is department has published data showing the destinations clearly disagreement between us as to the definition of for key stage 4 and key stage 5 pupils by local authority “proportionate”, there is agreement in principle that and by institution. having a more proportionate approach to inspection I argue that inspection itself is no longer the sole, or in itself is not a bad idea to pursue. But, as I say, there perhaps the main, source of information regularly is a difference between what we mean by “proportionate”. produced about schools’ performance. As the availability I know that noble Lords opposite and others argue of information has evolved and improved, so we argue that “proportionate” means that all schools should be that inspection should evolve too. That is a point that inspected automatically at least once every five years. I successive Governments have recognised. The last contend that “proportionate” means that so long as Government introduced regulations back in 2009 to there are proper safeguards—obviously I will come allow for less frequent inspection for good and outstanding back to that—it is possible that some schools can be schools; they moved that to every five years, rather exempt from routine inspections. than once every three years. They accompanied that As I listened to the contributions this evening, a with stronger risk assessment. Therefore, I argue that number of common themes emerged. The first was the changes that the Government have introduced that schools can fail very quickly—how can we be sure build on that principle, rather than departing significantly that we will spot that? That was raised by the noble from it. Baroness, Lady Hughes of Stretford, the noble Earl, Lord Listowel, and most recently by the noble Baroness, The noble Baroness, Lady Hughes, drew the distinction Lady Massey. How do you pick up failure? How will between concerns about principle and practical we share good practice? How will inspectors and concerns—I recognise this. Let me say a few words to others within the school system know what “outstanding” address those practical concerns, which a number of means and how will they learn from one another? The noble Lords have raised. I accept the case made by a noble Baroness, Lady Morris of Yardley, asked to number of noble Lords, including the noble Lord, what extent the Government’s proposals were being Lord Hunt of Kings Heath, that schools decline and, driven by financial considerations. How will we know indeed, can do so quite quickly. Ofsted evidence—and about safeguarding concerns? Is it right in principle we have heard some figures—shows that 95% of that all schools should be inspected? I will come back outstanding schools are either outstanding or good at and try to answer all those concerns, but I want briefly their next inspection. However, there is some movement to put the Government’s overall changes in context, from outstanding to good, and some will go further. I because that helps to explain why we are doing what accept that point. That is where the nature of Ofsted’s we are doing. risk assessment process is so important, as my noble friend Lady Walmsley argued. Let me try to outline Before Ofsted was established 20 years ago, back in how that will work, because I recognise that that lies at 1992, we had not had regular inspection of all schools. the heart of a number of the concerns. There was no formal assessment of primary schools and there was no published performance information. First, every exempt school will be risk-assessed The introduction of routine inspection was the start of once a year. That will look at, for example, the overall a process of making parents and the public more performance of the school, the trend in results, the aware of how schools were performing. Since then, as performance of different groups of children, including noble Lords are well aware, there have been a number those with special educational needs—the noble Earl of developments under both Governments which have asked a question about this—and the progress that led to much more information being available. Key they make. In response to a specific question from the stage 2 testing, for example, was introduced in 1994, noble Lord, Lord Hunt of Kings Heath, a school with performance tables were introduced for secondary schools high exam results but poor pupil progress would be in 1994 and primary school performance tables followed picked up. The basis of that assessment will determine in 1996. As a result, today there is a huge amount of what steps Ofsted then takes, leading to a full inspection information available on how schools are performing. if it thinks that that is necessary. In the past, risk I very much agree with the point made by the noble assessment led to about 2% of outstanding schools Baroness, Lady Morris of Yardley, about having that being re-inspected. Ofsted’s experience is that this information that we can share. accurately picked up schools that had slipped in the way that noble Lords were concerned about. The new 8.45 pm chief inspector has said that he expects to be inspecting between 5% and 10% of outstanding schools, but in I contend that we are getting that information fact he has complete discretion as to the number of through the publication of more and more information schools that he thinks should be re-inspected. The on schools. Last year’s performance tables, for example, exemption regulations do not constrain him in respect contained information on attainment and progress, of how many schools he can inspect. and differentiated between high, middle and low attainers. They covered the extent to which schools were narrowing In addition to the annual risk assessment, there are the gap between the most disadvantaged and other a number of other ways in which any emerging concerns pupils. They had information on the proportion of can be flagged and acted on. Parents, for example, can pupils with special needs, those for whom English is contact Ofsted through its website, Parent View, or not their first language and those eligible for free they can make a specific formal complaint about the school meals. They included details on pupil absence kinds of issues raised as examples by a number of and on spend per pupil, and information about the noble Lords. That could lead to Ofsted bringing forward staff, including pupil/teacher ratios. Just today, the its assessment or, indeed, it could lead directly to an 197 Education Regulations 2012[LORDS] Education Regulations 2012 198

[LORD HILL OF OAREFORD] Lord Hunt of Kings Heath: My Lords, the noble inspection. A local authority with good local intelligence Lord will know that the chief inspector is laying much could also contact Ofsted with the same result, bringing greater emphasis on the quality of teaching and learning forward a risk assessment or leading directly to an in the new judgment on schools. I would imagine that inspection. Another factor that can lead to a sudden that would mean that a number of schools graded change in a school’s performance is a change of head, outstanding under the old regime would not be which was mentioned by several noble Lords. That is outstanding under the new one. I seek reassurance on another case that Ofsted would use as a trigger for this. I understand the argument for schools that are early risk assessment. High turnover of staff would graded outstanding by the new chief inspector under also be looked at—the noble Earl, Lord Listowel, the new criteria that he has brought in, but what I do asked about that. Any of these examples could lead to not understand is why schools that were graded a fact-finding visit or a full inspection by Ofsted. What outstanding under the previous criteria will continue in effect we are doing is giving the responsibility for to be treated as outstanding. making these judgments to Ofsted rather than having a uniform approach applied across the country that does not take into account the performance of a Lord Hill of Oareford: The basic response to the school or local circumstances. question comes in two parts. First, to reclassify retrospectively schools that were once classified in a On the question of how good practice will be particular way is difficult. The judgment that is made shared and how inspectors will know what “outstanding” at the time should be based on the framework within looks like, the chief inspector has made it clear that he which they are operating. Secondly, as far as how wants to make much more of the wealth of information these schools will be picked up is concerned, we do not that Ofsted holds on good practice. This will continue intend that they should be re-inspected automatically, to be gathered through routine inspections and surveys. because they were found outstanding under the existing As part of plans to strengthen monitoring and provide framework. But the point about outstanding teaching support for weaker schools, the chief inspector intends would be precisely the kind of issue that, in terms of to put in place more regular monitoring, which will prioritising schools for risk assessment, Ofsted would include inspectors signposting best practice so that put at the top of its list with the focus that it now gives schools can benefit from it. As my noble friend Lady to outstanding teaching. Perry argued, inspectors will continue to see outstanding As I said on Report, Ofsted will carry out a targeted practice through a combination of survey visits, including review during the academic year 2012-13 to look specifically on subjects such as PSHE, to the best schools and the at where the safeguarding arrangements remain strong flow of schools that have moved to outstanding in in a sample of outstanding primary and secondary their latest Section 5 inspection. schools. The findings from that review will be published I was asked about the extent to which these decisions and used to inform the effectiveness of the new arrangements. are being driven by financial constraints. That is not We know much more about schools. We need to use the case. In fact, as developments since the appointment inspection wisely and effectively. We know, including of the new chief inspector in January show, there will from recent evidence from the Institute of Education, in fact be more inspections taking place than originally that inspection has most impact in weaker schools. intended, with more outstanding schools being picked That is why we are keen to target inspection there. up, as well as the more targeted follow-up of schools There is no evidence that Ofsted is going soft on that require improvement. I agree with the comments schools. Most of the time the department gets comments made by my noble friend Lady Walmsley about the in the opposite direction. If anything the chief inspector importance of having good inspectors. I know that the has signalled a tougher approach, but it is right to chief inspector is working up plans to try to make sure recognise those schools that have demonstrated the that he has a supply of good inspectors and specifically strongest performance. We want to encourage the best to attract into inspection more outstanding heads with school leaders to play a full and active part in wider recent and relevant experience. system improvement, working in partnership with other On safeguarding, which is a particular concern of schools, in federations and chains, as well as more noble Lords, Ofsted evidence shows that outstanding formally, such as becoming national leaders in education. schools perform well in terms of safeguarding. In As my noble friend Lady Perry argued, we need to 2009-10, 98% of schools that were judged outstanding signal our trust in these leaders. One way of doing this were either outstanding or good for safeguarding, and is by recognising their hard work and not requiring the figure rose to 99% in 2010-11. I should like to them to be routinely inspected and asking them to reassure noble Lords that, under the new inspection spend more time working with other schools. framework, safeguarding forms part of the judgment The noble Baroness, Lady Morris of Yardley, asked on leadership and management. Inspectors must consider me about special schools. As far as vulnerable children how leadership and management at all levels manage are concerned the reason why the exemption regulations safeguarding arrangements to ensure that there is safe do not apply to special schools—pupil referral units recruitment and that all pupils are safe. In addition, if and nurseries—is because we recognise that there is a anyone, including teachers, parents, pupils or the local concern about vulnerable children. We want the authority, has a concern about safeguarding in any reassurance of knowing before one were to exempt state-funded school, they must raise this with Ofsted, them that we could satisfy ourselves that that was a which can decide to inspect immediately and without wise course of action. The current intention is that notice. That will continue to be the case for any school they will undergo routine inspection, but we will keep exempt under these regulations. that under review. 199 Education Regulations 2012[17 JULY 2012] Justice and Security Bill [HL] 200

Baroness Morris of Yardley: Why are the data less noble Baroness, Lady Perry, I do not think we have had reliable with those schools than they are with non-special an answer to that tonight, even though the Minister schools? That has been the thrust of the Minister’s said he would address the Motion—and the first part argument: that data are strong enough for us to be of the Motion is about the undermining of that principle able to take this course of action. The data are the of regular inspection of public services. In every other same for the special schools, so what is the problem? service, the answer to that question is yes. In some critical services, as we heard from my noble friend Lord Hunt, Lord Hill of Oareford: There are some harder inspection is not becoming lighter touch; it is becoming judgments to make about some of the children who tighter. We have not heard the argument for schools might typically be in special schools or pupil referrals. uniquely to be exempt from inspection. We have not That is a fair point. Given the particular sensitivity heard the Government’s answer to that question tonight. about those schools we would prefer to proceed cautiously Secondly, do we have the evidence that, contrary to in that respect. other public services, outstanding schools exceptionally At bottom, this is an argument about trust, not just remain outstanding once they have been judged so to about trust in schools—and I am not seeking to make be? The answer is no, as we have heard. All the a political point—but about whether we feel that we evidence says that many outstanding schools decline can trust Ofsted to do its job. There is a difference of in standards; some decline dramatically and quickly, opinion between us over the meaning of “proportionate”. as my noble friend Lady Massey pointed out. If they What the Government have been doing has been made can fall dramatically in relation to educational standards, possible by the great increase in information that we they can certainly fall dramatically as well in relation have encouraged, as well as by the further strengthening to safeguarding and those other issues particularly of risk assessment that has been put in place, partly as germane to vulnerable children that the noble Earl, Lord a result of concerns expressed by Members of this Listowel, was concerned about, and I share his concern. House. It is no more than a logical expansion of Thirdly, the Government’s argument comes down developments in recent years. I commend the steps to the fact that the safety net, the annual desktop risk that we have taken to the House. assessment, is there as a catch-all. As my noble friend Lady Morris pointed out, not only is this becoming an Baroness Walmsley: Since my noble friend appears edifice in itself, but in my view it can never be a to be drawing his remarks to a close, will he write to substitute for directly observing what is going on and me about the questions that I asked him? talking to parents and teachers. I am afraid what came to mind when I was listening to the arguments in Lord Hill of Oareford: Yes, of course, my Lords. favour of this as an effective safety net was the Baby P case in Haringey, when I was a Minister, when we The Earl of Listowel: Before the noble Lord concludes, learned that Ofsted had very recently completed a I thank him for his careful response. I may have missed desktop assessment of social care in Haringey, which his response to the question asked by the noble Lord, obviously had failed to uncover the very serious problems Lord Hunt, with regard to faith schools, but will the in policy and practice. It seems to be common sense risk assessments also consider the impact of faith that a desktop analysis of data is never actually going schools on the teaching of science, for example, and to reveal what is going on. the need to monitor that area? I hope that the Minister has at least appreciated the genuine strength of feeling and concern on this side of 9pm the House—and I suspect elsewhere. I am not going to Lord Hill of Oareford: First, inspections into faith press this matter to a vote at this late hour but I hope schools concerning the arrangements that those schools that the Government will reflect and monitor what make around their religious education will continue in happens as a result of this measure. If this measure any case, even for exempt schools. If there are concerns has some of the negative consequences that we fear in of the kind raised by the noble Lord, Lord Hunt of even one school, many children will have their educational Kings Heath, about individual schools, whether by years blighted unnecessarily and avoidably, and I think parents, local authorities or others, those would be we all agree that that would be a tragedy. I withdraw referred to Ofsted and Ofsted would need to take a the Motion. view as to whether it needed to act. Motion withdrawn. Baroness Hughes of Stretford: My Lords, I thank Justice and Security Bill [HL] the Minister and my noble friends and noble Baronesses Committee (3rd Day) (Continued) opposite for their very thoughtful and detailed contributions to what has been a very important debate. 9.05 pm It has boiled down to three crucial questions. I will be brief because I am mindful of colleagues who want to Amendment 67A carry on with the main business. I will not delay the Moved by Lord Beecham House but I would like to bring these three items to our attention. 67A: After Clause 8, insert the following new Clause— “Independent review of closed material procedure First, is external inspection necessary, even if it is The Secretary of State shall ensure that an independent review not of itself now sufficient, to assure quality of education is conducted into the impact of the provisions under Part 2, to for pupils and to reassure the public? Notwithstanding conclude three years after the coming into force of this Act, and the contribution of the Minister and the views of the shall publish a report on the review to both Houses of Parliament.” 201 Justice and Security Bill [HL][LORDS] Justice and Security Bill [HL] 202

Lord Beecham: My Lords, this amendment and the rare have a tendency to creep, as apparently Lord Williams others in this group stem from the report of the of Mostyn assured your Lordships’ House in 1997 in Constitution Committee and representations from relation to the introduction of SIAC. The closed material organisations such as Justice. The Constitution Committee procedures are now used in a large number of statutory records that my right honourable friend Sadiq Khan, situations—I think about 14 different jurisdictions. I the shadow Justice Minister, asked a question in the expect there will need to be some agreement as to how House of Commons about the number of cases in frequently a report is laid but it is important with such which a CMP had been adopted under the existing a closed system that as much information as possible provisions, which relate to control orders and the like. comes into the public domain, particularly information The reply of the Minister, Mr Djanogly, was that there that can be assessed by Parliament. Although not the was no information, it had not been collated and it subject of this amendment, the same argument applies would be too expensive to provide such information. to the use of closed material procedures generally, so The Constitution Committee rightly points out that that Parliament would know how often they are applied these are matters of considerable interest to the public for, granted, appealed and, in particular, successfully and, indeed, to Parliament and such a record should appealed, as well as which government departments be made available. It invites the House, are making use of the procedures and under which “to consider whether the Government should be required to legislative regime they are being used. I also believe maintain consolidated records”. that there could be useful comparative statistics on Amendment 67B looks to provide such information, how often appeals are brought in jurisdictions where as does Amendment 67A, again following the appeal is allowed on a matter of law alone compared recommendation of the Constitution Committee and to on a matter of fact, as in the civil proceedings representations, in this case from Justice, that the considered under this Bill. Government should report on the impact of the provisions Amendment 88 adds the requirement for the of the Bill. The noble Baroness, Lady Berridge, has a independent reviewer of terrorism legislation to bring similar amendment, Amendment 88. a report to Parliament, which I understand would be Amendment 67A talks of a three-year period because similar to the role of the independent reviewer in it seems sensible, given the suggestion that there are relation to control orders and now TPIMs. It could likely to be very few cases, to allow sufficient time to also perhaps provide a means for the independent elapse to gauge whether that is right or not. It would reviewer to receive the continuing views of the special perhaps be wrong to rely on a single year’s experience advocates, which have been such a concern to many as the basis for a review. Three years is long enough, in people including the Lord Chancellor. Unless someone my judgment. Justice suggests a five-year period, which independent reads all these closed judgments in an seems to me to be too long, given the scale of the area, I do not know how we will know if there are changes. I hope that the Government will accept that inconsistent decisions and perhaps cases that have these amendments, which are of course tabled on the been decided without knowledge of a previous precedent basis that we end up with a CMP provision, will due to the fact that these are secret judgments. Some facilitate a greater understanding of how the system of that risk will of course now be averted by the new works and allow consideration of modifications should central database that I have mentioned, which will be any of the difficulties which some of us have canvassed available to special advocates. However, it will not be today in Committee and on previous occasions be completely averted, in my view, due to the nature of warranted. I hope that the Government will look the system and not in a way that Parliament can be benignly on these amendments: they are not in any assured of the integrity of the body of these decisions. way destructive and should allow a proper consideration The independent reviewer of terrorism legislation might of how matters progress should the legislation pass in even need a method of passing cases that he or she is something like its present form. I beg to move. concerned about to be reviewed by the court for the reasons I have outlined. I believe it is very much in the Government’s interests Baroness Berridge: My Lords, I shall speak to to have as much information in the public domain and Amendment 88, which, as the noble Lord, Lord Beecham, as much scrutiny as possible of a closed system. I also has said, is in my name. I concur with much of his hope, along with the noble Lord, Lord Beecham, that reasoning and concerns about the recording and reporting there will be good news on Report on the principle of these matters. The amendments would enable behind this amendment. Parliament to monitor the use of these unusual court proceedings. I would be grateful if my noble friend would say whether the response given in the other Lord Pannick: My Lords, I added my name to place to the question from Mr Sadiq Khan still stands, Amendment 88 and entirely agree with what has been as the Government have very helpfully agreed to compile said by the noble Lord, Lord Beecham, and the noble a central database of closed material procedures for Baroness, Lady Berridge. The noble and learned Lord the use of special advocates. If the Government are the Advocate-General for Scotland said earlier this evening able to compile that database for special advocates, that CMPs are “second-best justice”. If we are to have could they not also do so for Parliament? CMPs as a necessary but regrettable diminution in the If the closed material procedures are granted by quality of justice, and if the quality of justice is to be Parliament, it would be on the basis of there being a strained in this way, with all the damage that is done to very small number of cases. This amendment would fair and open justice, it is essential that the legislation enable Parliament to monitor whether that is indeed contains adequate provisions for reporting and review the case. Unfortunately, things that are intended to be so that this new procedure can be carefully monitored. 203 Justice and Security Bill [HL][17 JULY 2012] Justice and Security Bill [HL] 204

Lord Judd: My Lords, I support these amendments Amendment 67B and the first part of Amendment 88 for all the reasons we have discussed with previous seek respectively to introduce annual and quarterly amendments but will just make this observation. I do reports on the operation of this part of the Act. The not want to be too manic depressive about the implications noble Lord, Lord Judd, made an important point. of this Bill but it seems that all this can become very While it is important to have a process for calling the routine—we have a report and an annual consideration, Government to account and for reviewing the operation but we do things this different way. I am sure that of the Act and the CMP process, we need to be careful noble Lords in all parts of the House know exactly of the law of diminishing returns by introducing a what I am talking about and can imagine, late in the process that is so systematic that over time it is no evening with very few noble Lords present, a ritual longer as impactful as it might otherwise be. What is whereby the report comes before us and is considered. important is that the Government collect the relevant There will be a tremendous responsibility in the future. data so that if a Select Committee or any parliamentarian We all have a duty to keep this sense of responsibility wants to ask a question, or if there is a debate or a alive and, as I put it earlier, to say this is an exceptional parliamentarian wishes to scrutinise the operation of and—I certainly agree with the noble Lord, Lord CMPs, we are in a position to do so. My noble friend Pannick—regrettable digression. It is exceptional and Lady Berridge referred to that point. During the process it must be justified. It must not become just an alternative between now and Report, as we consider the on which we report, take note and so on. It is something implementation phase of the Bill, we will carefully that ideally should not be there. Of course, I take consider how best to do that. I will certainly take on second place to nobody in my anxieties about the board the points made in the debate. nature and gravity of the threats which confront us. Of The second part of Amendment 88 seeks to add the course I take that very seriously. That is why it is all the review of the provisions in Part 2 of the Bill to the more important that we do not cave in to the extremists remit of the independent reviewer of terrorism legislation. and that we do not in the end give them a victory in I am concerned about how practical such a proposal the sense that we have diminished justice. There will be may be to achieve its aims, given that the remit of the an ongoing task for us all to be vigilant on this matter. independent reviewer has already been extended on several occasions. His statutory responsibilities relate 9.15 pm to the Terrorism Act 2000, Part 1 of the Terrorism Act 2006, the TPIM Act 2011 and the Terrorist Asset-Freezing Baroness Stowell of Beeston: My Lords, I am grateful (Temporary Provisions) Act 2010. Furthermore, the to the noble Lord, Lord Beecham, my noble friend Protection of Freedoms Act, which came into force Lady Berridge and other noble Lords who have this year, requires that the independent reviewer or contributed to this short debate. It raises some important someone on his behalf undertakes a review of any issues about how an Act of Parliament, especially one detention of a terrorist suspect beyond the current such as this, is scrutinised after Royal Assent. I understand statutory limit and if the Government intend to commence the intention behind the amendments, which is to functions in the Coroners and Justice Act 2009 relating ensure that effective mechanisms are in place for reviewing to the independent reviewer inspecting places of terrorist the operation of CMPs and other aspects of the Bill. I detention. also understand, support and indeed share the objective of ensuring accountability of Government to Parliament, The TPIM Act is unique in that its measures are particularly in an area where we are moving towards designed to restrict the behaviour and activities of new measures which are different and mark a significant individuals suspected of involvement in terrorism who, step away from what has been routine until this point. the Government argue, cannot be prosecuted or deported. Amendment 67A, moved by the noble Lord, Lord This is why Parliament legislated for close post-legislative Beecham, would require an independent review of the scrutiny. David Anderson QC indicated, when giving impact of the provisions under Part 2 three years after evidence to the Joint Committee on the Draft Detention Royal Assent. It may be helpful to remind noble Lords of Terrorist Suspects (Temporary Extension) Bills, that any Act has always been liable to some form of that his role has already increased and that there is a post-legislative review, whether by a parliamentary limit to how much one person can do. It is important committee or internally within Government. Since that we avoid diluting the effectiveness of the role by March 2008, an additional and more systematic process overburdening it. Notwithstanding this, I recognise has been in place. Normally, three to five years after the valuable contribution that David Anderson QC Royal Assent, the responsible department must submit has made to the debate about the need for CMPs. His a memorandum to the relevant Commons departmental reviewer functions for asset-freezing and TPIMs already Select Committee. The memorandum will include a include the use of CMPs. There is nothing to prevent preliminary assessment of how the Act has worked Mr Anderson or any future post-holder being asked to out in practice, relative to objectives and benchmarks undertake ad hoc reports into issues of wider national identified during the passage of the Bill. The Select security relevance or being invited by Parliament to Committee, or another committee, will then decide give his opinions. It is important that any such ad hoc whether it wishes to conduct a fuller post-legislative report should not seek to provide oversight or review inquiry into the Act. The process applies to all Acts of the judiciary’s decisions on individual cases. That receiving Royal Assent in or after 2005. This process would not be appropriate. already covers a requirement for a review after several My noble friend Lady Berridge asked about the years. Therefore, I think that the objective outlined in database that is being made available to the special the amendment of the noble Lord, Lord Beecham, is advocates. I can inform her that the closed database is already covered. to ensure that special advocates have access to judgments 205 Justice and Security Bill [HL][LORDS] Justice and Security Bill [HL] 206

[BARONESS STOWELL OF BEESTON] there will not be many. That is an assumption which for legal precedent value. However, the database will needs to be tested regularly. A compilation of statistics contain sensitive information and will not be appropriate on an annual basis should help that. for disclosure generally to Parliament. All that said, I hope that I have gone some way to Lord Hodgson of Astley Abbotts: Does the noble reassuring the noble Lord, Lord Beecham, and other Lord agree that the phrase “mission creep” could be noble Lords that the measures currently in place are made for this sort of thing? We just find it spreading sufficient to ensure that the Act, if the Bill achieves out. Mission creep would be a most dangerous aspect Royal Assent, is properly scrutinised and that the of this legislation. department takes seriously its responsibility to ensure that we are in a position to be held accountable in the Lord Beecham: I concur with that view, hence the way that Parliament has every right to expect. On that need for regular reporting, not just of the statistics. basis, I hope that the noble Lord feels able to withdraw The next amendment I will move will deal with other his amendment. aspects. There does not appear to be available in general an indication of how much use is being made Lord Beecham: My Lords, if I am right, this is of the process under the present regime. It will be even the first occasion on which the noble Baroness has more important when we are looking at the new responded to a justice debate. I welcome her to her developments that the Bill proposes. I am somewhat new responsibilities. I wonder whether she is by any disappointed with the reply. It may well be that we will chance related to Lord Stowell, an eminent 18th century have to return to these issues on Report. In the judge from Newcastle. He was the brother of the Tory circumstances, I beg leave to withdraw the amendment. Lord Chancellor, Lord Eldon—the most reactionary Lord Chancellor that the country has ever had. Perhaps Amendment 67A withdrawn. she would enlighten me on her genealogy or, if she is not sure, look into it. Amendment 67B not moved.

Baroness Stowell of Beeston: I will not detain the Amendment 67C House. He is no relation but I know of his existence, Moved by Lord Beecham which is why my title is Baroness Stowell of Beeston. 67C: After Clause 8, insert the following new Clause— “Open statements for closed judgments Lord Butler of Brockwell: Perhaps I may point out Closed judgments must be accompanied by an open statement that he had a connection with the college to which the from the court, which shall include— noble Lord, Lord Beecham, and I also have a connection. (a) the reasons for the closed material procedure; (b) any factors which would be particularly relevant in Lord Beecham: As does the noble Lord, Lord Marks. determining whether all or part of the closed judgment I had the misfortune to sit beneath the portraits of could be made open at a later date; both those distinguished judges at my school and my (c) the duration of open hearings and closed hearings; college. I could not escape them but I would not wish (d) the number of witnesses heard in closed proceedings, to escape the noble Baroness. and the nature of those witnesses; Despite these warm words, I am somewhat (e) the length of a closed judgment; disappointed by the noble Baroness’s reply on the (f) whether national security was an issue in the proceedings; amendments. Amendment 67A seeks, in effect, to replicate and the independent review process of the independent (g) the date at which the closed status of the judgment reviewer of terrorism legislation without adopting that should be reviewed, which must be no later than five individual, as the noble Baroness, Lady Berridge, years from the date of the judgment.” suggested. Having said that, it would not be beyond the wit of government to appoint a second independent Lord Beecham: My Lords, this amendment was reviewer of terrorism legislation and allied matters if suggested effectively by Dr McNamara of the University that were thought to be required. It is the independence of Reading, who is conducting a research project of the review that is essential. Furthermore, the post- around—as he puts it—how different arms of the legislative review process is normally designed to take state control and manage information about terrorism place after three to five years. Five years is too long. and security. It is a project that has involved a great This is a rather different piece of legislation from most many government departments and individuals from of that which would be reviewed. We are dealing with government to police forces and the like. He suggested some fundamental rights and a fundamental change that it would be sensible, again given the important in the justice system. It deserves special consideration. nature of the proposals in the Bill, to look at how the I hope the Government will think again about that. system is working in somewhat more detail than simply The same really applies to Amendment 67B. It is the numbers of cases we referred to in previous important that there should be in the public domain amendments. The thrust of this amendment is to regular checks on precisely what use is being made of require a judgment when it is made to give the reasons these procedures. Concerns have been expressed in for the closed material procedure, such as national Committee today that, like Topsy, the use of these security, as well as the other factors that are listed in things may simply grow. The legislature needs to keep the amendment—I will not take up the time of the an eye on developments here. The assumption is that House by repeating them all. 207 Justice and Security Bill [HL][17 JULY 2012] Justice and Security Bill [HL] 208

The essence is to have a clear view of what is Lord Lester of Herne Hill, quoted, there have been happening in individual cases and ultimately to make examples of closed judgments that contained statements possible the availability of the status of the judgment. of principle that were not in open judgments or that Paragraph (g) of the proposed new clause would give a contained statements relevant to other cases or potential date at which the status of the judgment should be cases. The difficulty is that those practising in this area reviewed—in other words it would create the possibility who represent individual litigants do not have access of opening up the material at some point. That would to this body of jurisprudence. If we are to create this not be an absolute requirement. It would still be a closed material procedure, we have to recognise that matter for determination as to whether the material we are creating a body of case law that is not generally should be disclosed, but a time period would at least available. That is a very real problem for the rule of set the clock running for that possibility. In some cases law. One way in which to address the problem is to it would not eventuate but in others it might be minimise as far as we reasonably can the length of appropriate for the material to be disclosed. This time for which a closed judgment is not generally would reinforce the acceptability if CMPs come into available. For that reason, in addition to the reasons play because the public would have some assurance already given, I support the amendment. that ultimately consideration would be given to disclosing material. That may allay some of the fears that surround Baroness Berridge: My Lords, I, too, support the the issue. I beg to move. amendment and am aware that part of this issue is covered by a later amendment in a separate group. I 9.30 pm want to raise the very practical point that leads on Lord Lester of Herne Hill: My Lords, this amendment from the point made by the noble Lord, Lord Pannick. is perfectly understandable and very prescriptive. It From hearing evidence in the Joint Committee on might be to the benefit of the House if I explained that Human Rights, a very basic question arose: where, I asked the Government in a Question for Written physically, are these judgments? Answer whether they would introduce measures to Normally, you can go into a law library and they ensure that judgments made by courts and tribunals are all there. Special advocates and other people just under the closed material procedures were made public seem to be unaware of where, physically, this body of when the reasons for maintaining their secrecy no case law is stored. We know from the answer to Mr Sadiq longer obtained. This, of course, relates to a later Khan that it seems not to be collated centrally. It is a amendment. very important question. It sounds incredibly basic, My noble friend Lord McNally gave a Written Answer but we need to know where, physically, these judgments on 10 July, which may make any comment unnecessary. are stored. He said: “Closed judgments contain highly sensitive material. For this Lord Judd: My Lords, as somebody who would reason they are not suitable for publication by law reporting organisations which are not security cleared. Closed judgments anyway have supported the amendment, I just want to are usually handed down in tandem with an open judgment, and say that the last two interventions by the noble Lord, most judges”— Lord Pannick, and the noble Baroness, Lady Berridge, I emphasise “most”— have convinced me that this is an essential amendment. “state in their open judgment that a closed judgment has also been handed down ...Judges will put as much of their reasoning The Advocate-General for Scotland (Lord Wallace into open as possible, including statements of legal principle that are most likely to have cross-case relevance. It is open to special of Tankerness): My Lords, it is obvious that the advocates and counsel for the Government to make submissions amendment moved by the noble Lord, Lord Beecham, about moving material from the closed judgment to the open is important and goes to a number of aspects of the judgment. If the court is persuaded that it would not harm the use of closed judgments. I think it is agreed that we are public interest to do so, then material will be moved to the open constantly trying to balance fairness and national judgment”.—[Official Report, 10/7/12; col. WA243.] security. It is self-evident that closed judgments contain It then refers to the code of practice under the material that should not be disclosed in the interests of Freedom of Information Act. I mention that Answer national security. Of course, this is the only basis on because it shows that an unsatisfactory situation will which a judgment can be classified as closed. As is the obtain with regard to these judgments. Whether this practice in existing statutory regimes for CMPs, such or a later amendment or some other approach is as TPIMs and SIAC cases, judges will hand down an needed, I have no doubt that standards are needed so open judgment, in tandem with a closed judgment, that we get common—in fact universal—practice as to that contains the parts of the judgment that can be what we can do to make sure that judgments whose disclosed without causing damage to national security. secrecy has been lost over time or because of particular In February 2010, special advocates raised concerns circumstances may be made public in accordance with about accessing a searchable database of closed judgments. the principle of open justice. I hope this goes some way in answering the point raised by my noble friend Lady Berridge. The Government Lord Pannick: My Lords, I, too, support the agree that it is important to ensure that those who are amendment, and not just because in principle it is entitled to access closed judgments are able to do so right that judgments should be closed for as limited a efficiently and effectively. We have been consulting the time as necessary. There is also a very real practical Special Advocates Support Office on the creation, consideration that, despite what the noble Lord, storage and dissemination of the head notes and are in Lord McNally, said in his Answer that the noble Lord, the process of finalising arrangements. We anticipate 209 Justice and Security Bill [HL][LORDS] Justice and Security Bill [HL] 210

[LORD WALLACE OF TANKERNESS] point that has been made. I am not going to pretend that the database will be populated with all historic that there may be an easy answer to it, but if there is closed judgments by the end of the summer. I know no longer a national security consideration, I see the that does not go the whole way, as some noble Lords force of what has been said. However, I have tried to have indicated, but I hope that I have indicated that we describe the current arrangements for the storage and have addressed the concern that was raised and are permanent preservation of records. making significant progress towards meeting it. However, as things stand, it is up to the courts to The next part of my remarks will probably reflect decide the detail to include in their judgments. The Bill what was said by my noble friend Lord McNally in his allows the judges to make these judgments with as response to my noble friend Lord Lester. It is the case much information available to them as possible, while that judges will put as much of their reasoning into the ensuring that the interests of national security are not open as possible, including the statements of legal damaged. I do not believe that Parliament needs to go principle that are most likely to have cross-case relevance. further and dictate to judges specific information that It is the role of special advocates to make submissions they are require to release, and I therefore do not about what material can properly go into the open believe that the many detailed parts of the amendment judgment. If the court is persuaded that it would not are necessary. I hope that in the light of that explanation, harm national security, material will be included in an the noble Lord will be willing to withdraw the amendment. open judgment rather than a closed judgment. However, it is not always possible to provide an Lord Lester of Herne Hill: I am very grateful to my open statement containing the information as it is noble and learned friend for his open-minded response, described in this amendment. For example, the but there are two problems. One is the problem of amendment suggests that it should reveal the length of legal certainty, which is how the public, lawyers and the closed hearing, the number of witnesses and the people who are not special advocates can know exactly nature of those witnesses, which could be damaging to what the law is. That problem is obviously a human rights national security. If in the judgment the summary said convention problem as well as a common law problem. that the closed session lasted five days while members The second problem is about whose responsibility it of the Security Service gave evidence, this would provide would be to make sure, when secrecy has been lost and to the claimant the knowledge that the intelligence national security considerations are no longer there, services held a lot of information on them when they that something is done to put a matter into the public may not have been aware of that fact. As already domain. I am still puzzled about who would be responsible. outlined, it will be up to special advocates and counsel The final point is: how can one get guidance to the for the Government to make submissions about whether courts to ensure a common approach? Is it contemplated material can be included in an open judgment or that rules will be made through amendments to Clause 7 should remain closed, with the final decision being for or that guidance will be given? Will the judges be the court, which will decide that material should be consulted and so on? These are practical problems classified as closed only if its disclosure would be that are important to address. As I understand from contrary to the interests of national security. the response of my noble and learned friend, he is The amendment also requires the judge to declare open to thought and discussion about those kinds of whether national security was an issue in the proceedings. practical matters. I believe that this is unnecessary. As we have made clear on a number of occasions in Committee, the Bill Lord Wallace of Tankerness: My Lords, there were makes it clear that the only reason a court can go in to three points. First, I understand my noble friend’s a closed session is that the disclosure of some material point about the availability of judgments that are relevant to the case would damage national security. closed to people who are not special advocates. That is The Lord Chancellor’s code of practice on the a difficult problem that I cannot readily see a solution management of records, issued under Section 46 of to, given that the very reason why they are closed the Freedom of Information Act 2000, provides guidance judgments is because of the sensitive nature of the on the management of records held by bodies subject information in them the disclosure of which could be to the Public Records Act 1958. Authorities are required damaging to national security. to identify records worthy of permanent preservation The second point is very much one of detail. Who and transfer them to the National Archives, a place of would determine whether there was, in fact, no longer deposit for public records or the Public Record Office a national security consideration? Where would the of Northern Ireland, as appropriate. Authorities all responsibility lie? That is the very issue that I want to need to consider whether parts of records might be consider, because how that would be addressed does released if the sensitive information were redacted— not readily present itself to me. I sought to indicate in other words, rendered invisible or blanked out. that there is an issue here. I am not pretending for a Information that has been redacted should be stored moment that there is an easy answer, but the issue is securely and should be returned to the parent record important to consider. when the exemption has ceased to apply. On the third point that my noble friend makes about I heard what was said by my noble friends and by consistency, the difficulty—perhaps it is a reality rather the noble Lords, Lord Beecham and Lord Pannick, than a difficulty—is that every case will be dealt with about when the national security considerations have on its own individual circumstances. What goes into in some respects flown off. I want to revisit this matter an open judgment or a closed judgment may well be and discuss it with officials because I recognise the the result of representations, debate and argument 211 Justice and Security Bill [HL][17 JULY 2012] Justice and Security Bill [HL] 212 before the judge by special advocates. In those in civil proceedings is the judge of fact. That is quite circumstances, it is difficult to ensure that there is rigid distinct from criminal proceedings in the Crown Court, consistency because that might inhibit more openness where it is the jury that makes the decision on what in circumstances where a special advocate makes a has happened. compelling case that particular material ought to be It was the procedure instituted in the Diplock criminal included in an open, rather than a closed, judgment. It courts in Northern Ireland, where the judge, unusually, may be the counsel of perfection, or of the impossible, sat alone without a jury. He decided the facts and to think that there would be consistency when we are returned the verdict. The purpose of this practice was dealing with circumstances that can differ considerably to build public confidence in the criminal trial process from case to case. I think it must be left to the in the absence of a jury. The importance of public argument presented by counsel on both sides—special confidence in the system has been emphasised today, advocates and counsel for the Government—to determine most particularly by my noble friend Lady Williams, what a judge puts into open judgment and what is put but also by others who have referred to the need to into closed judgment. keep public confidence in the judicial system. I hope that with those words, the noble Lord, Lord This proposal has been the subject of discussion Beecham, will consider withdrawing the amendment. with the Minister, and with the Secretary of State, for which I am grateful, and I have been provided with a Lord Beecham: I am grateful to the noble and note which sets out the Ministry of Justice’s views. learned Lord for agreeing to give consideration to that The first reason for its lack of support for my suggestion particular aspect. There are two issues here. One is is that, public confidence in the system, for which some “it is better from the point of view of the administration of justice information about the process—I am not talking about and judicial case management that the judge trying the case—who detailed information about the closed material itself— will have a direct interest in ensuring that he or she oversees a fair needs to be in the public domain. The second issue is trial process—should be the judge who determines whether a that this should be done in a systematic way, perhaps CMP should be allowed”. by the equivalent of the 30-year rule for Cabinet papers This totally ignores the fact that, in ordinary civil and the like. litigation, preliminary issues are the province of a I am not suggesting for a moment that we should Master of the Queen’s Bench, or a registrar. He deals set out to prescribe a given period at this point, but at with strike-out applications, case management, and in some point the option of disclosing material ought to particular, with disclosure under Part 31 of the rules be built into the system. This should not necessarily be of the Supreme Court. Applications seeking further with a particular time frame in mind, but be a process disclosure or contesting claims for disclosure are tried that is available to the Government of the day to by the Master subject to appeal, not necessarily to the determine, perhaps in conjunction with the courts, trial judge, but to another High Court judge. what information might be released and when. That is In civil proceedings, unlike criminal proceedings, a something that we might look at further on Report, in two-tier system is in existence at the moment. Anything addition to the point that the Minister has agreed to that is ruled out by the Master on the basis that it take back. However, in the circumstances I beg leave should not be disclosed or is irrelevant or inadmissible to withdraw the amendment. is not put before the trial judge. The trial judge does not become involved in these proceedings until the Amendment 67C withdrawn. case is ready for trial and the disclosure issues are already dealt with. Clause 9 agreed. Another aspect of the Master’s work is to deal 9.45 pm with, as I said, strike-out applications, where allegations in the pleadings which are irrelevant or scandalous are struck out and never come before the trial judge at all. Amendment 67D Clause 9 says that subject to Clauses 7, 8 and 10, the Moved by Lord Thomas of Gresford normal rules of court continue to apply, in relation to disclosure. That seems to mean that the Master would 67D: After Clause 9, insert the following new Clause— govern all applications in the case relating to material “Disclosure judge which is not the subject of a Section 6 application but, (1) The jurisdiction of the court in section 6 proceedings shall when it comes to sensitive material, those applications be exercised by a judge designated by the Lord Chief Justice for such purposes. are dealt with by the trial judge. I do not believe that (2) A judge so designated shall be referred to as “the disclosure the Ministry of Justice has fully taken on board the judge”. standard everyday practice in civil proceedings, whether (3) The disclosure judge shall not be the trial judge of the in London or across the country, where preliminary relevant civil proceedings.” issues are not dealt with by the trial judge. The second reason given by the Ministry of Justice Lord Thomas of Gresford: My Lords, I raised in my for rejecting my suggestion is that relevant, but very Second Reading speech the question of a separate sensitive, evidence, which would fall to be excluded judge for the determination of disclosure issues, in otherwise from the proceedings under a public interest particular PII applications and Section 6 proceedings: immunity application, is considered by the trial judge. that is, a judge who is separate and distinct from the I draw attention straight away to the difference between trial judge. The reason I believe this to be a necessary “material”, which is the word used throughout the safeguard in civil proceedings is because the trial judge Bill—Section 6 applications relate to material—and 213 Justice and Security Bill [HL][LORDS] Justice and Security Bill [HL] 214

[LORD THOMAS OF GRESFORD] often PII hearings do take place in such magistrates’ evidence, which is what is admissible and what is courts, where the magistrates carry out the Wiley test relevant and what the judge may take into account in of weighing the interests of secrecy against the interests coming to his decision. of justice. I have never heard of it happening. It may The ministry says that: do, but I have never heard of PII applications determined “The issue is about allowing the judge to know the full facts, by magistrates. In the civil courts, of course, I repeat, even in circumstances where they cannot be fully shared with the the judge discards material which he rules should not claimant. So there will usually be no question of the judge’s mind be disclosed as inadmissible —that is to say, it does not being swayed by evidence which ought not to be taken into enter into the process of his determination of the account at all. It is about allowing the judge to take all the issues in the case. He must sift out, from the material evidence into account”. put to him in the Section 6 application, what is to be Of course, if all the material is put before the judge—not discarded because it is inadmissible and only take into evidence, but material—he still has to exclude from his account relevant evidence. mind irrelevant and inadmissible material. Presumably The final substantive point made by the Ministry of that is multiple hearsay, inexpert opinion, the product Justice is that a separate judge would have to review of intercept and so on. disclosure decisions as the trial progresses. Perhaps he On intercept, I want to ask the Minister a very would, but he would be fully informed of the state specific question. Under the provisions of this Bill on of the proceedings and of the issue which had arisen a Section 6 application, the judge is permitted to look in the open proceedings, no doubt by the state’s at intercept material. Is he, as the trial judge, permitted representative, who would discuss the position with to consider intercept evidence for the purposes of his the claimant’s special advocate before such a hearing. decision on the issues between the parties on material There are ways of getting round what goes on in the that would be inadmissible in open proceedings? The open hearing which may be required to be reported Bill as drafted suggests that he may take such material back to the disclosure judge. into account in making a declaration under Clause 6 My point is that the designation of a disclosure that a CMP application may be made, but nothing is judge by—I put the Lord Chief Justice; it might be said in the following clauses about whether he may more appropriate to say the Lord Chancellor, or, since take inadmissible evidence, like intercept, into account it is civil proceedings, the Master of the Rolls—would in formulating his judgment. ensure that there is a cadre of judges, security cleared, Indeed, there is a huge hole in this Bill. It deals with who would develop expertise in this type of case. They a Section 6 application and how you can make it; it would quickly be adept at redaction, gisting, disclosure deals with how the judge determines that application to a security ring or whatever way they can deal with and what rules are to be applied; and it deals with how evidence or parts of evidence which might be disclosed he is required to withhold material the disclosure of to the parties. A disclosure judge could, for example, which he considers would be damaging to the interests permit the special advocate to ask the claimant specific of national security; but having made all those decisions questions by way of taking instructions and could what then? One would have expected a clause saying control the manner in which that would happen. If the something to the effect that the judge in open court disclosure judge decided there was a limited area of may take into account the material that he has considered the evidence that justice demanded that the trial judge, in the Section 6 application. One would have expected but not the parties, should see, I suppose that in extremis at that point that the Bill would not be silent about that could be done. There could be a tiny residue of what happens afterwards and to what degree he can material which cannot be disclosed by gisting or in any take into account what he has seen but which he other way to the parties in the open proceedings. cannot disclose. If evidence is inadmissible in open Otherwise, however, the trial judge would deal with proceedings, how can it be inadmissible in closed the issues between the parties only on the admissible proceedings? The inherent unfairness of Section 6 and relevant evidence which the disclosure judge had applications is doubly compounded. decided should be open to them all. That brings me to the Government’s third point. The Government have suggested that the rationale Again, I quote: of my amendment is to avoid the contamination of “It is normal for judges at all levels to decide whether evidence the judge’s mind in relation to material which he has is admissible and, if it is not, to put it out of their minds when seen but which is not shared with the parties. The use reaching a judgment”. of the pejorative word “contamination” clouds the That seems to confirm that the judge is to take into issue; the intention of the state in applying for Section 6 account only admissible evidence in deciding the issue. proceedings is exactly to influence prejudice or, if you Again, I ask: does that apply to the intercept evidence like, contaminate the judge’s mind in coming to his that he is permitted to see in a Section 6 application? judgment. I am concerned to ensure that justice is seen Does he put intercept out of his mind? to be done in an open and transparent way that will The fourth point is: command the confidence of the public and continued respect for the rule of law. I beg to move. “This is true even when the judge is also the decision maker on the facts—for example in criminal cases in the magistrates’ court, where there is no jury; and in cases in the civil courts where PII Lord Marks of Henley-on-Thames: My Lords, I claims are made”. added my name to the amendment put down by my We are most certainly not dealing with criminal noble friend Lord Thomas of Gresford. This debate is proceedings in the magistrates’ court in this Bill. I informed by the far-reaching discussion that we had would be grateful if the Minister would indicate how last Wednesday on the relationship between PII and 215 Justice and Security Bill [HL][17 JULY 2012] Justice and Security Bill [HL] 216

CMP. I suggest that in that debate there emerged a Ireland, as my noble friend pointed out, there was a consensus around a series of principles which can be disclosure judge in the Diplock courts. There are other distilled as follows. similar cases in English proceedings, not only, as he First, the use of CMP should always be a last resort said, where the master determines preliminary issues, given the inherent injustice in the trial judge seeing but where it is necessary for a judge to see at an evidence that is withheld from one or more of the interlocutory stage material such as payments into parties. Secondly, there should be substantial flexibility court or offers that have been made that the trial judge in considering how far a just determination of the may not see. In those cases, a different judge is required issues could be achieved by relying on the PII procedure to hear the trial. where the exclusion of security-sensitive material under As a matter of fairness, we should arrange for these PII would not make determination of the issues difficult evidential matters that are the subject of the impossible. Thirdly, the court should always, as far as Bill to be determined by an independent judge. If a possible, make use of gisting, redaction and other disclosure judge deals with these issues, leaving the ways of protecting security-sensitive material rather trial judge to determine the issues in the trial on the than relying on CMP. Fourthly, before resorting to basis of the evidence and procedure that have been CMP the court should always be satisfied that the independently determined by a disclosure judge, I public interest lies in having closed proceedings rather suggest that that is the fairest arrangement that can be than in letting the case go without a determination on made consistent with having the issues in the case the merits at all. Finally, in any CMP, the use of closed judicially determined. material should be kept to the minimum. As has been pointed out a great many times in these debates, the proposals in the Bill import into ordinary 10 pm civil cases a new jurisdiction that involves a substantial The application of those principles requires in every and, for many of us, deeply disturbing departure from case a careful balancing exercise by a judge. That the principles of fairness and open justice that lie at judge’s task is to determine what evidence will be the heart of our system. I suggest that it is incumbent heard in the open and how, what evidence will be on us to make it as clear as we can that the system will excluded under PII or for any other reason, and what be administered as fairly and as transparently as possible. if any evidence will be heard in closed proceedings and The introduction of an independent disclosure judge under what conditions. It is far preferable that the is a minimum step that we should take in that direction. judge conducting the exercise should not be the trial judge, but another judge independent of the judge responsible for the trial of the issues. Lord Pannick: My Lords, I sympathise with the A designated judge or judges will be able to build objectives of the amendment and I agree with much up a body of expertise in dealing with these difficult that was said by the noble Lords, Lord Thomas of questions to give detailed attention without inhibition Gresford and Lord Marks of Henley-on-Thames. to preparing the body of evidence that will form the However, I have this concern about the amendment: in basis of the trial judge’s determination. That exercise practice it will be very difficult indeed for judges to should be conducted without prejudicing the trial determine whether to move into a closed material judge, who should consider only the evidence that he procedure as an abstract preliminary question. We are or she may properly take into account. far more likely to get a sensible result from a judge on whether it is necessary to move into a closed procedure, Lawyers are all familiar with the process whereby a and a far more sensible result on the balance of judge is said to put out of his or her mind the evidence competing interests, if the judge is fully aware of all that he or she has ruled inadmissible. The noble and the detail of the case and has heard the opening from learned Lord, Lord Woolf, talked of the process last the parties concerned on both sides with the open week. However, in our heart of hearts, I suggest that material. The judge will then be able to take a far more even the purest lawyer is aware that the process is informed and sensible view on whether this exceptional flawed. It may work when the effect of the exclusion of procedure is really required. inadmissible evidence is that no acceptable evidence remains to support a particular conclusion. In that I am very concerned that if these matters are addressed case, the result simply follows the exclusion. However, as a preliminary question, we may well find that where there is other evidence in support of a conclusion, judges—very properly, to protect national security—are it is almost impossible to be confident that knowledge going to authorise far more closed material procedures of the excluded evidence does not sway the mind of than would actually be necessary if the judge were even the most conscientious judge. fully aware of all the details of the case and had heard Furthermore, even if those of us who are judges at least the opening statements on an open basis. and lawyers can be convinced that the process of a judge putting excluded material out of his or her mind Lord Thomas of Gresford: Would not the problem is effective, the public cannot be expected to accept then arise that disclosure is a preliminary part of the such a concept. The appearance of justice must suffer procedure in ordinary civil proceedings? It is upon if the public know that the judge has seen evidence disclosure and the pleadings that very important decisions that he or she is not permitted to take into account. are made: for example, for payments in and settlement I accept entirely the point that this is what happens of a case, and so on. As I understand the noble Lord, in those cases where a PII application is made and he is saying, “Well, leave it until the trial has begun succeeds after the judge has looked at the evidence. and both sides, or at least the plaintiff, have opened However, that does not make it right. In Northern their case. Only then should issues of disclosure take 217 Justice and Security Bill [HL][LORDS] Justice and Security Bill [HL] 218

[LORD THOMAS OF GRESFORD] another judge have to some extent been changed in the place”. Now, suppose the trial has started, the expense Commercial Court, the Technology and Construction has been incurred, and something very significant Court and in many cases in the county courts, so that appears as a result of a disclosure application which if possible there is the same judge with a grip on the makes months of work completely unnecessary. Is case right from the beginning. that not the danger of his course? On the face of it there is considerable advantage to having continuity unless, of course, the process is Lord Pannick: The noble Lord is of course correct; going to result in injustice to the litigant. We are that is a danger. However, very often, highly sensitive talking in the context of CMPs with a claimant who questions of disclosure that raise issues of PII are not may feel that injustice is being done to him or her by dealt with as abstract, preliminary questions, but on virtue of the possibility of closed material provisions. the basis that in civil litigation, one needs to see All I can say is that if I were in the position of that precisely how the case is going to be argued, how claimant, I would much prefer the judge who first material is going to be deployed, and what the issues heard and no doubt scrutinised the application under are. I suggest to the noble Lord that it is going to be Clause 6 to conduct the case throughout in order to very difficult indeed, particularly in this exceptionally make sure that there is fairness, to show the flexibility sensitive area, for a judge hearing matters on a preliminary we discussed in the last session of this Committee, and basis to form an accurate and informed assessment of to deal with what might arise in accordance with the what we all agree are going to be exceptional categories guidance given by the Bill in such a way as to provide of cases where closed procedures are appropriate, on justice. Although I wholly understand what motivates this preliminary basis. That is my concern. It is a difficult the amendment, I fear that it is not going to achieve issue. what it is intended to. Lord Thomas of Gresford: This is a very useful dialogue. I hope other noble Lords are listening. Is it Lord Beecham: My Lords, as I said, I have a good not the case that strike-out applications, for example, deal of sympathy for the amendment proposed by the and all sorts of issues are tried on the pleadings? noble Lord, Lord Thomas of Gresford, and I am Donoghue and Stevenson was tried on the pleadings. particularly seized of the argument of the noble Lord, Major cases are tried on the pleadings because, unlike Lord Marks. Ultimately it comes down to a question criminal procedures where the defence statements are of the public perception of a situation where you have laughable, in civil proceedings the case must be set out what appear to be secret trials at the behest of the very fully and considered by both sides, and all the Government of the day. That puts the case in a different evidence must be produced up front, well before the category from other kinds of case where there is trial starts. perhaps a lesser degree of public interest or concern about the nature of the proceedings as a whole. Lord Pannick: The noble Lord is correct and I Cases of this kind are distinguishable from the kind accept, at least to an extent, that there may be Clause 6 of case that the noble and learned Lord, Lord Woolf— cases where a discrete, fundamental issue can be identified another, if I may say, eminent Newcastle holder of at an early stage. However, I suggest that there will high judicial office—referred to. There is a distinction also be cases—the majority, I suspect—where the issues to be made with cases where a judge can put matters will not be formulated and clarified in this specific way out of his mind, and no doubt judges would be able to on a preliminary strike-out basis. I am concerned that do so. However, I suspect that the public will be more it is inevitable that there will also be cases where fresh concerned, to the degree that they are at all concerned evidence comes to light or where, as a result of the way about these things, in a case of this kind where we are the case is put in the trial, new Clause 6 issues arise. It talking in effect about closed procedures and what can seems impractical to require the trial judge, who has be described loosely but not entirely inaccurately as already started to hear the case, then to say, “I am secret trials. going to stop”, whereupon the issue would go off to a disclosure judge. There are real issues here and I am far from convinced that the amendment, the purposes 10.15 pm of which I entirely sympathise with, will result in fewer I lean very much towards the arguments propounded CMPs than the procedure that is in the Bill. by the noble Lord, Lord Thomas, and supported by the noble Lord, Lord Marks. Similar arguments could Lord Faulks: My Lords, I share with noble Lords also apply to the PII procedure. After all, the judges who have proposed this amendment the desire that there are invested with knowledge of material, which there should be public confidence in the system. However, may not be disclosed. The same argument about possible like the noble Lord, Lord Pannick, I do not think that taint and possible perception could apply. There is a this is not the solution. It is true of course that there question about whether the formulation of this are circumstances in which it is desirable, if not essential, amendment should also apply to those circumstances. that one judge should hear one part of the proceedings My noble and learned friend Lord Falconer, who is and another should hear another part, but the question elsewhere, approves of the idea, but his inclination is of it being desirable, as it were, to have separate judges towards a system under which the first judge—let us is a different matter. In fact, there is quite a strong call him the disclosure judge—should decide whether argument that there should be greater continuity. The or not he should go on to the hear the trial having days of having one judge hearing preliminary issues made that adjudication. That is a halfway house and and summonses and then the matter moving on to I am not certain that it is an acceptable way forward, 219 Justice and Security Bill [HL][17 JULY 2012] Justice and Security Bill [HL] 220 but it is perhaps something to be thought about as a some very exceptional circumstances. It is about allowing possible alternative, meeting some of the objections the judge to know the full facts, even if they cannot be which no doubt the noble and learned Lord will be shared with the claimant for reasons of potential raising to the proposition contained in this amendment. damage to national security. There will usually be no For those reasons about public perception it is worth question of the judge’s mind being swayed by evidence exploring this further. I do not know whether the that ought not to be taken into account at all. It is noble and learned Lord is willing to do that. It is about allowing the judge to take evidence into account. something to consider in the light of the unique category My noble friend asked about intercept evidence. of case here and the possible degree of public concern The provision in Clause 6 is to put to one side whether around the process presently prescribed by the Bill. or not there would be an exclusion for intercept material in determining whether a party would be required to Lord Wallace of Tankerness: My Lords, I am grateful disclose material, but it is the intention of the Bill that to my noble friends for tabling these amendments. The intercept evidence should be permitted. The provision issue of the role of the judge in providing fairness for this is in paragraph 9 of Schedule 2. It is of course during a close material procedure is important. As my a matter for the courts and an individual judge in a noble friend Lord Marks said, we have been looking in particular case as to what weight would be given to our debates at the careful balancing exercise by a that evidence. I hope that answers the very specific judge in these matters. As he has said and other noble question that my noble friend raised. Lords have indicated, the issue of public perception and public confidence is important too. I understand Lord Thomas of Gresford: As I understood it, why my noble friend might consider it fairer to have a paragraph 9 of Schedule 2 refers to what the judge separate judge to deal with the applications for a hears in the Section 6 proceedings. What I do not see, declaration that a CMP should apply and on individual when he draws my attention to it, is that the judge can pieces of evidence. This is a matter about which my take into account intercept evidence in determining noble friend Lord Thomas has been particularly anxious. the issues between the parties in the trial. It seems to He raised it at Second Reading and he has raised it be quite wrong that you could take into account with me and with the Lord Chancellor. We have given intercept evidence that you have heard in closed careful consideration to it. He has had the advantage proceedings for the purposes of the trial when it would of being able to anticipate what I am about to say to be inadmissible if the proceedings were not closed. him, but I would still like to say it and perhaps give some explanation as to why we are not being persuaded Lord Wallace of Tankerness: My Lords, I refer my by the merits of the proposal. noble friend to paragraph 9 and indicate that it is the It is better from the point of view of the administration intention that intercept evidence should be permitted of justice and judicial case management that the judge before the court. We may wish to have a debate as to trying the case should be the judge who determines whether that is right or wrong— whether a CMP should be allowed and what materials should be heard in closed proceedings. That judge has Lord Thomas of Gresford: Perhaps I may point out a direct interest in ensuring that he or she oversees a the problem that then arises. The press have been full fair trial process. In earlier debates it has been put to of “secret trials” and so on, and now, if the noble and the Government that we have supplied insufficient learned Lord is right, the Government are proposing a room for judicial discretion and it seems to us that a secret trial, because inadmissible evidence, which you single judge in charge of the entire process is more could not adduce in any form in an open proceeding, likely to guarantee judicial discretion than if the roles whether it is sensitive or not—intercept evidence may of disclosure and trial are compartmentalised. not be sensitive; the methods of obtaining it may be My noble friend is right say that there will be cases but the evidence may not be—could not be introduced too when masters decide pre-trial issues. My anticipation in an open trial. Yet the noble and learned Lord is of what is likely to happen is much as described by the saying that the judge can decide the case—not the noble Lord, Lord Pannick, and echoed by noble friend Section 6 application but the case—on inadmissible Lord Faulks. It is more likely that these issues come up evidence that he has heard in secret. What are the press in the course of the proceedings. In TPIM cases, for going to make of that? example, there are disclosure issues at the beginning. There is an ongoing issue of disclosure. These will be Lord Wallace of Tankerness: My Lords, I will no addressed as the case goes on. Indeed, fresh issues may doubt be corrected if I have got this wrong but I think well arise mid-case. It was also pointed out that in it is the case that it is currently permissible in some cases where public interest immunity is asserted, this is other areas where there are closed material proceedings. normally dealt with by the judge hearing the case. I am We may well wish to have a fuller debate on intercept not saying that it could not be dealt with as a preliminary evidence rather than dealing with it as part of a debate issue but it very rarely is. on whether there should be a separate disclosure judge. In addition, the whole point of the CMP provisions I confirm that in fact it is available in all other closed is to ensure that relevant but very sensitive evidence, material proceedings, so this is keeping it in line with which would otherwise be excluded from the proceedings what happens elsewhere. No doubt we may return to under PII, is considered by the judge. It is not a this if my noble friend wants a more fundamental question of the purpose of this being to exclude debate on the role of intercept evidence. I just point material altogether from consideration in the case. It is out what the position is with regard to the Bill, since in fact the opposite: it is to allow it to be considered in he asked a specific question. 221 Justice and Security Bill [HL][LORDS] Justice and Security Bill [HL] 222

[LORD WALLACE OF TANKERNESS] criminal cases. Of course, criminal cases have been In any event, judges are accustomed to consider adduced with regard to Northern Ireland, where the material for the purpose of making evidential and practice is to have a separate disclosure judge but in a disclosure decisions. It is normal for judges at all levels very specific context—the trial of serious terrorist to decide whether evidence is admissible and, if it is offences in a climate where there a real risk of paramilitary not, to put it out of their minds. I know that there has and community-based pressures on jurors and a history been some discussion about the extent to which that is of terrorist threats against judges. There, it is a very possible. Obviously, it is the case in dealing with PII valuable safeguard, but I do not believe that such claims where PII is successfully asserted. My noble considerations apply to CMPs in civil cases. friend asked about the number of PII claims in criminal I reassure my noble friend who raised this matter cases in magistrates’ courts. That is not really the point earlier that although we have given them considerable that we were seeking to make in the speaking note consideration, we remain unpersuaded by the arguments which he saw; rather we sought to make the point that for a separate disclosure judge. We believe that the in magistrates’ courts there must, day in, day out, be approach we are proposing here will lead to fairness cases, not of PII, in which magistrates have to decide with the same judge involved in all aspects of the case. on the admissibility of evidence. The argument is Therefore, I ask my noble friend to withdraw his heard before the magistrates as to whether particular amendment. evidence is admissible or not and, if it is not, they have to put it out of their minds. The point I was making is Lord Thomas of Gresford: My Lords, I am not that there is no problem in principle, even in criminal surprised, but I am very disappointed by that answer. I cases in magistrates’ courts, for judges to decide issues hope that things can settle down over the Recess so of fact and law. There are cases, too, when they will that the matter can be reconsidered. It seems obvious have to put out of their minds evidence which they to me that it would be in the interests of justice for have deemed to be inadmissible. there to be a separate disclosure judge as I have A separate judge would make review of disclosure described. decisions as the case progresses cumbersome, as was On the point raised by the noble Lord, Lord Pannick, pointed out by the noble Lord, Lord Pannick. The of course issues can arise in the course of the case disclosure judge would need to follow the progress of where what did not appear to be relevant becomes the case in order to understand potential implications relevant. That can be covered—and one way of doing for the fairness of proceedings before he or she was it would be to give the special advocate a watching able to rule on disclosure issues, and that could cause brief throughout the case. Particularly if the Attorney- delay. I accept that this is not the same as the amendment General is paying his expenses, there is no reason why moved by the noble Lord, Lord Dubs, earlier this he should not continue in that role, to watch how the evening, but some of the same considerations arise. case develops and to see if applications need to be I take this opportunity to clarify what I said in an made. earlier exchange with the noble Lord, Lord Dubs, It must be in the public interest that disclosure when he said that the Bill will abolish juries. I think should come at the proper time, early on in the proceedings that I responded by saying that these are civil proceedings before a case is ready for trial. At that point, as I presided over by a single judge and do not relate to indicated to the noble Lord, Lord Pannick, serious criminal proceedings where there would be a jury. For decisions are made: is this case one where you make or clarification and for the avoidance of doubt, the position accept an offer, settle or negotiate? In what way can is that the Bill amends the Senior Courts Act 1981, you shorten the cost and expense of a trial? Certainly and its Northern Ireland equivalent, which contain a in my experience, one always attempts to do that residual right to jury trial in some civil cases. I do not because a settlement may produce a better result than think that that was what the noble Lord, Lord Dubs, a judgment in your favour if you negotiate hard and had in mind, but it is important to say that for well. completeness and clarification. I wish I could expand a little further on this, but I am afraid I cannot. I ask leave to withdraw the amendment Lord Thomas of Gresford: For the avoidance of but hope that we will have further discussions on the doubt, I was involved in a case of false imprisonment matter and come back to it on Report. tried as a civil case in the Royal Courts of Justice in front of a jury, and I am not aware that that possibility Amendment 67D withdrawn. has been abolished.

Lord Wallace of Tankerness: For completeness, the Clause 10 : General provision about section 6 Bill allows the court, however, to refuse an application proceedings for a jury where it is of the view that the trial will involve a CMP. Highly sensitive information clearly Amendment 68 not moved. could not be shared with a jury without presenting serious national security concerns and risks, but the House resumed. original point is that the Bill does not affect trial by jury in criminal cases, since the Bill does not relate to House adjourned at 10.32 pm. GC 67 Arrangement of Business[17 JULY 2012] Designation of Features Regs. 2012 GC 68

our flood and coastal erosion risk management. Whole Grand Committee communities often rely on these features and base their flood protection strategies on the assumption Tuesday, 17 July 2012. that they will remain in place and divert water. However, in the 2007 floods it was discovered—too late—that there were alterations to some of these third party Arrangement of Business assets and flooding resulted, for example in Sheffield Announcement and Chesterfield. In the Flood Water Management Act 2010, provision 3.30 pm has been made in Section 30 and Schedule 1 to allow The Deputy Chairman of Committees (Lord Geddes): the Environment Agency, local authorities and internal My Lords, as I am sure all noble Lords in the Committee drainage boards to designate third party structures or are aware, if there is a Division in the Chamber, the features which affect flood or coastal erosion risk. Committee will adjourn for 10 minutes. Designation requires the owner to seek consent from the appropriate risk management authority before altering, removing or replacing the structure or feature. Designation of Features (Appeals) These provisions are required to prevent uncontrolled (England) Regulations 2012 damage or removal of structures or natural or manmade Considered in Grand Committee features of the environment that perform a flood or coastal erosion risk management function. Further details on the designation process, including appeals, 3.30 pm can be found in the public information leaflet and the Moved by Lord Taylor of Holbeach guidance document produced by Defra and laid for information with these appeal regulations. That the Grand Committee do report to the The requirement to provide a right of appeal by House that it has considered the Designation of way of these regulations is contained in paragraph 15 Features (Appeals) (England) Regulations 2012. of Schedule 1. Section 30 and Schedule 1 were commenced Relevant document: 3rd Report from the Joint in April last year in so far as they provide the power to Committee on Statutory Instruments make the regulations. The substantive provisions relating to the regime for the designation of structures or The Parliamentary Under-Secretary of State, Department features cannot be implemented without the appeals for Environment, Food and Rural Affairs (Lord Taylor regulations. The designation regime provides protection of Holbeach): My Lords, the regulations are required for and restrictions on private assets in the public to be made prior to the commencement of the substantive interest. The appeals regulations provide protection designation provisions under Section 30 of, and Schedule for private rights affected by designation and it is a 1 to, the Flood and Water Management Act 2010. necessary balance that they do so. These appeal regulations are a necessary and appropriate statutory obligation. The purpose of the appeal regulations is twofold. I therefore commend the draft regulations to the Grand First, they will provide a safeguard for individuals Committee. whose property is affected by designation decisions and, secondly, they will ensure that risk management authorities are accountable for their decisions and will Lord Greaves: I do not have a great deal to say be open to transparent, legitimate challenge from about this on behalf of the Liberal Democrats. The individuals about their actions. These appeal regulations regulations, which the Minister has explained very provide the owners of designated assets with the right well, come from the Flood and Water Management of appeal to the First-tier Tribunal against the initial Act. I suppose this little gathering today allows a designation of a structure or feature, as well as against certain amount of nostalgia from some of us who subsequent decisions relating to applications to alter, were involved in the passage of that Act, as often remove or replace a designated feature or to cancel a happens with these orders. These are sensible and designation. A right of appeal is also provided against welcome provisions. Does this mean that the designation the issue of an enforcement notice for contravening a of features can now go ahead or is there anything else designation. standing in the way before this process takes place? As The appeal regulations provide that the First-tier the Minister said, it is a process that was found lacking Tribunal will hear all appeals under Schedule 1. In as a result of the experience in 2007. It is welcome that order to maintain the credibility of the Act and the the recommendation from Sir Michael Pitt’s mammoth efficacy of the designation regime, it is important that report is now filtering its way—if that is the right word the appeals mechanism is independent, efficient and to use in connection with water—down the system and comprehensive, and is a fair and cost-effective way of that we are now on the point of approving these adjudicating any disputes. The process for bringing an regulations, which we certainly support. appeal is governed both by these regulations and by the Tribunal Procedure (First-tier Tribunal) (General Lord Knight of Weymouth: My Lords, as I discovered Regulatory Chamber) Rules 2009. to my cost 10 days ago, I am a property owner in an Perhaps I can explain the nature of the provisions. area that gets flooded and there may be something on Physical defences, such as walls, embankments and my property that at some point might get designated, natural features, are relied upon to deliver much of so I declare that from the outset. Clearly the instrument GC 69 Designation of Features Regs. 2012[LORDS] Designation of Features Regs. 2012 GC 70

[LORD KNIGHT OF WEYMOUTH] as targeted and that the designation decisions will be is associated with the Flood and Water Management based on what the designation authority considers Act 2010, which established a process where the to be appropriate. Can the Minister therefore explain Environment Agency, local authority or an internal to us on what information and guidance provided to drainage board could deem a structure part of the local authorities and internal drainage boards those built environment if it was acting as a flood defence, designation determinations will be made? If there is to even though it might not necessarily have been designated be a means to appeal such designations, there must be or constructed for that purpose. We have heard that an assumption that sometimes those authorities will from the Minister. This is a very positive and necessary get the decisions wrong, so it is of the utmost importance step forward in protecting our flood defence assets that the Government make it absolutely clear how across the country. these bodies should make these decisions. I certainly know from where I live down in Dorset, In conclusion, we do not oppose the instrument where the River Wey and its tributaries got deluged establishing an appeals process but we would like the 10 days ago and we had extensive flooding, that the Minister to explain briefly the guidance that will be complex arrangements of culverts and of different provided to authorities to ensure that decisions to parts of the built environment in the Weymouth and delegate flood defences as such are made according Upwey area are interfered with at our risk. I know that to clear guidance to ensure the number of appeals to the Environment Agency has done various bits of the tribunal is kept to a minimum. work over the last 20 years to mitigate the risk and I do not think there is much they could have done about it given the quantity of rainfall. However, I am certainly Lord Taylor of Holbeach: I thank noble Lords for supportive of wanting to protect those assets as long the welcome they have given to these regulations. as property owners get some advice from the Environment Indeed, I think we in this House maintained near Agency, local authority or internal drainage board as cross-party unanimity on the need for the Flood and to what they are dealing with. I think that this designation Water Management Bill, which has become an Act. process will certainly help. When we were discussing it, we recognised that it derived from adverse situations in 2007. I am sorry to The regulations aim to strengthen the existing standard hear of the noble Lord’s experience. He is not alone in of protection for flood defences for third-party assets having experienced flooding but I recognise that it is and to allow local authorities and drainage boards to not a very pleasant experience, having suffered it once extend protection of those assets, so we welcome the myself. I join him in acknowledging the role that the instrument. It is an important part of establishing a Environment Agency has played during these past few more transparent and accountable way of protecting weeks. I have not heard a word of criticism of the way those defences. However, it will do little to recover the that it has performed and I would like to put on the losses the community will suffer from the cuts to flood record the gratitude of Defra and the Government for defence spending, which concern me. There have been the role that the Environment Agency has played. cuts of 27% despite the fact that we know how valuable such an investment is—every pound spent on flood The noble Lord, Lord Knight, challenged me on defences reaps £8 in investment. I am increasingly the staffing cuts that Defra has undertaken. He will concerned about our resilience to flooding as we move know, as all noble Lords do, that the current economic into the winter. Certainly, in my area the Environment situation has meant that the Government have had to Agency tells me that it looks as if we might go into the look at ways of reducing cost. However, the key thing winter with winter levels of groundwater. That makes has been to try to maintain sharp-end capacity and us extremely vulnerable as we would normally expect that is certainly what the Environment Agency’s response much higher quantities of rainfall then. That is then to these recent events has shown. set against a backdrop that I see in the Defra business As noble Lords will know, the strategy against plan for 2012-14 of a 7.5% reduction in staffing costs which all these matters are considered is contained across the Defra family. within the Flood and Water Management Act, flood I do not want to see the Environment Agency management plans and flood risk strategies, with the losing any more of its staff around flood resilience. lead local authority and the Environment Agency I already know from the flooding incidents 10 days working together to formulate management plans. ago that it was wrong-footed by a Met Office forecast, That was contained in the Act and forms the background which meant that the south-west people were flown up against which actions will take place. to Newcastle because they thought the flooding was Tabled for the convenience of noble Lords are going to be in the north-east and not in the south-west. copies of the publication about the designation, which The people we needed on the ground to provide proper I recommend that they read, because they reinforce warnings and safeguards to us were, by and large, not the thoroughness with which that has been undertaken. there. That suggests that we are already at the most It has been published jointly by Defra and the Welsh extreme end of our resilience in terms of staffing, and Government. It provides the framework against which I will be interested in the Minister’s comments on that. designation will be maintained and guidance for I welcome progress on the implementation of individuals whose property may be so designated, so Sir Michael Pitt’s recommendations, however slowly that asset owners also have a guide. they may come into force, and I welcome the establishment The way in which noble Lords have welcomed the of the First-tier Tribunal for the appeals. I do not regulations is very satisfactory. My noble friend Lord oppose the structure, which seems sensible. I understand Greaves asked: where does that place the substantive that the designation process will be risk-based as well set of regulations? Following the passage of the appeal GC 71 Designation of Features Regs. 2012[17 JULY 2012] Public Bodies Order 2012 GC 72 regulations and the notice regulations laid on 29 June, are the right ones, involving the right individuals and the whole set will come into effect. That will be very groups at the right time. The explanatory documents satisfactory and the process of designation can commence showcased studies on engagement approaches that are as a result. being piloted to ensure that we get the arrangements right in future. We also consulted widely on the future Motion agreed. engagement arrangements, as required by the Act, and we have reported on the consultation. In its consideration of the orders, the Secondary Public Bodies (Abolition of Environment Legislation Scrutiny Committee concluded in its Protection Advisory Committees) fourth report of the 2012-13 Session that it was content Order 2012 to clear these draft public bodies orders within the Considered in Grand Committee 40-day affirmative procedure. However, it had two recommendations. The first suggested that, 3.46 pm “the Government re-consider the need for formal monitoring and evaluation of the successor arrangements which are put in place Moved by Lord Taylor of Holbeach to enable interested parties to be engaged in the delivery of the Environment Agency’s objectives”. That the Grand Committee do report to the I assure the Committee that my department and House that it has considered the Public Bodies the Environment Agency have agreed a formal review (Abolition of Environment Protection Advisory of successor arrangements within two years of the Committees) Order 2012. committees being abolished. Ahead of that review, Relevant document: 4th Report from the Secondary the Environment Agency will undertake stakeholder Legislation Scrutiny Committee; 3rd Report from engagement to allow local, regional and national the Joint Committee on Statutory Instruments customers and stakeholders to comment on how the engagement approaches, as described in the regional models, have been embedded. Based on the views of The Parliamentary Under-Secretary of State, Department stakeholders and customers, the focus of the review for Environment, Food and Rural Affairs (Lord Taylor will be to ensure that the right engagement happens of Holbeach): My Lords, in moving the Motion, I shall in the right place to achieve this local, regional and speak also to the subsequent statutory instrument, to national buy-in, while adapting to local needs and which we may speak if your Lordships wish. The two priorities. The review will be an important reassurance orders have been considered in conjunction with one that the regional models reflect the needs of stakeholders another during scrutiny; hence I think it would be and customers in delivering environmental outcomes. most helpful to refer to them together. The second recommendation suggested that, The orders are to be made under the Public Bodies Act 2011. They will abolish the six regional and local “without delay after abolition of the … Committees, Government and the Environment Agency put in place, and publicise, regular fisheries advisory committees in England and the six meetings with key regional stakeholders to strengthen the process environmental protection advisory committees in England of monitoring and evaluation”. and pave the way for more flexible, non-statutory The Scrutiny Committee was concerned that, if approved, engagement arrangements that can evolve and respond the orders would remove a statutory obligation on the to the needs and delivery of environmental objectives. agency to carry out consultation. Both sets of committees have provided valuable advice to the Environment Agency, and it will continue The Environment Agency’s remit, as set out in the to need such advice. I thank all those who have been so management statement and statutory Section 4 guidance, engaged. However, we believe that a non-statutory published in accordance with the Environment Act approach to engagement could provide greater flexibility 1995, makes it clear that the Environment Agency at a more local, catchment-based level. That will enable must work closely with a wide range of partners in the civil society and local communities to provide advice public, local community, private and civil society sectors. directly to the Environment Agency and to be involved The statutory guidance and remit provide a clear and empowered to take the lead, where appropriate, requirement to engage and consult widely, which the on delivering environmental outcomes rather than Environment Agency already delivers on a regional continue the current focus on just providing advice. level through, for example, the river basin liaison panels, local enterprise partnerships and various fishery As set out in the explanatory documents, in developing forums. the successor arrangements, each of the Environment Agency’s six operating regions in England has produced With regard to publicising meetings and events an engagement model, with input from existing with key stakeholders, the Environment Agency has committees and through discussion with local partners. developed and made good use of social media. It is A broad range of interactions is proposed. The regional anticipated that social media, along with traditional engagement models show the relationship between the forms of communication, will be extensively used to various fora—from national strategy through to local advertise meetings and events linked to local engagement action and delivery. The models are region-specific models. and flexible. They will evolve over time, based on I hope that noble Lords can see that we are continual review by the groups involved against ready for change. The committees have made a environmental priorities, which may vary one from valuable contribution but we believe that the proposed another. This will ensure that the models for engagement arrangements will provide more flexible local, community GC 73 Public Bodies Order 2012[LORDS] Public Bodies Order 2012 GC 74

[LORD TAYLOR OF HOLBEACH] I am not quite sure why it says that, because I thought and civil society engagement for both advice and that cost/benefit analyses took into account non-economic delivery, and that this approach will have the ability to terms as well, but never mind: if it is not a cost-saving evolve to meet the challenges ahead. I commend the measure and a matter of doing things better, that is draft orders to the House. okay. The Minister referred to the recommendations of Lord Greaves: My Lords, the orders stem from the scrutiny committee. I was not sure whether he was the proposals in the Public Bodies Act, on which we saying that the two-year review will take place. Perhaps had some extensive and interesting discussions— he can clarify that or whether other arrangements will coincidentally, with the same Minister, and he did a be made to make sure that monitoring and reviewing sterling job on that Bill. We are now discussing just take place. On the recommendation that there should be two groups of bodies: the regional and local fisheries regular meetings with the “key regional stakeholders”—I advisory committees and the environment protection say that biting my tongue and making the words come advisory committees. out of my mouth—was the Minister saying that those meetings will take place or that they are not necessary The first thing that I can say may be considered to because they will form part of the new arrangements be a typical niggle coming from me, but I find some of anyway? the language used in these reports a bit over the top and I wonder what it all means. I think that I know Finally, the Minister said that they will make use of what it means, because I look at the detail, but I still social media. I think I know what social media are, but do not like the language. For example, page 4 of the I am not sure that everyone tweeting each other all the explanatory document for the environment protection time is the way to do this. Is he talking about more advisory committees order—the same language is used conventional websites and forums, rather than the in the other one, too—states: frantic arrangements that one finds on things such as “Localism and Big Society agendas require the Environment Twitter and Facebook, which seem to me not the Agency to more directly engage with civil society, the public and media that should be used in this context? Perhaps I business. A non-statutory approach would provide greater am out of date. flexibility”— I understand that— 4pm “and remove statutory constraints which would enable civil society and local communities to be empowered to take the lead where Lord Whitty: My Lords, I start by declaring an appropriate”. interest as a shortly-to-be-retiring—I regret—member I have to say that I find this language difficult to of the board of the Environment Agency. In that understand. I would be interested if somebody had context, I thank the Minister very much for his remarks to write an examination answer on what it means. I about the performance of the agency staff during the have spent a great deal of time, including struggling great difficulty of having four or five serious flood with the 450 pages of the Localism Bill, trying to instances in different parts of the country at more or understand what localism and the big society agendas less the same time, which is, thank God, a pretty really are and I am still struggling. I understand a lot unusual event. I think that the agency delivered. of the detailed stuff which comes out allegedly as part I also need to inform the Minister that to some of these agendas, but what it all means as an overall extent I am here to represent my noble friend Lord strategy is still a mystery hidden in the fogs of some of Smith of Finsbury, who is chair of the Environment the upper echelons of the Government. However, the Agency and who apologises for not being here today. details here are much easier to understand. Much of what I say reflects his views although, as I am We welcome the increased emphasis on catchment retiring from the board, I can also make my own areas, which have always been difficult for public remarks. authorities to deal with, because they very rarely coincide I welcome the changes. The noble Lord, Lord Greaves, with administrative and local authority boundaries. has already referred to the rather lengthy proceedings They are difficult to deal with, but, if you are dealing that the Minister had to undergo in his previous with flooding, the catchments are the most important capacity during the passage of the Public Bodies Bill, of all. which he no doubt recalls without great nostalgia. The The documents make it clear that the measures are order concerns the sole part of the Bill to which I did not a matter of saving money or part of the cuts, and not object. That is because, in this instance, a statutory that the amounts being saved will come from, for structure is not necessarily the best way to carry out example, the salaries of chairs of the bodies. I understand partnership, share information and mobilise members that existing staff resources will be redeployed to outside the agency. It is important that the work of the make sure the new non-statutory, flexible arrangements advisory committees is recognised. The people who are fit for particular purposes. Will my noble friend have served on them have given stalwart service and the Minister confirm that that is the case and that this have tried to represent the interests involved in delivering is not a cost-cutting exercise? Page 7 of the first of the environmental and fishery outcomes but also to feed explanatory documents states: back information from the agency to those bodies. “There are no overall savings from the abolition in economic However, there are probably better and certainly terms”. more flexible ways to do that which are more nimble It then states that, and able to move with the times. I have some slight “it is expected that there will be a zero net cost /benefit associated sympathy with the view of the noble Lord, Lord with abolition”. Greaves, of the more advanced forms of social media— GC 75 Public Bodies Order 2012[17 JULY 2012] Public Bodies Order 2012 GC 76

I am not entirely in front of the curve myself on in day-to-day terms they mean talking to people a lot that—but, in this area, the social media used in their more and in a lot more detail and probably for longer broadest sense are a useful means of communication than sending out signals from the centre—are time- about flooding but also in more day-to-day environmental consuming and therefore staff resources-consuming problems in mobilising those who are interested from and, to some extent, money-consuming. public agencies, private citizens and organisations. The In other words, the big society—if one was to call it response time for using social media is much faster that—is not costless. In some ways, it may be more than with more traditional methods of communication. costly than more centrally directed activities and When Defra consulted on that, there was not a institutionalised responsibilities. At the worst end under huge number of responses. Of those who responded, the old system, a member of staff might well worry those for and against were more or less in balance. about the advisory committee a month before it is due There was a distinct negative balance in the north-west—as to meet and write appropriate papers and probably get the noble Lord, Lord Greaves, will be pleased to hear. a decent outcome. However, this requires a year-long That is not necessarily because they are more stroppy engagement with the bodies that are represented on in the north-west. The agency has therefore taken those committees. So, from the point of view of agency steps to address the situation in the north-west, including staff resources, this does not really save money. I know a proactive use of social media. I think that it is true to its primary aim is not to save money but to come up say that most organisations in the north-west are now with a better system but, nevertheless, the Explanatory satisfied that the new forms of consultation will be an Note suggests that some of the formal money will be adequate replacement. saved. It will not be saved. It will be deployed in a In my own area, which is the same as that of the more effective way and there will be, if anything, more noble Lord, Lord Knight, the Environment Agency pressure on staff than under the old system. Subject to has developed from a situation a few years ago where that caveat and the fact that we will at some point it was not seen as the most user-friendly organisation review these proceedings and changes to see if they are to having much more constructive relationships with working, I support the Minister in these orders. organisations involved in these fields. For example, people will know that fishermen are not necessarily the easiest people to engage with, particularly if one is from a public body, but the relationship between the Lord Knight of Weymouth: My Lords, I, too, support agency and the organisations involved in fisheries in the orders. As ever, it is a delight to come back to the south-west has become very positive on the salmon, public bodies orders and to reminisce about some of trout and coarse fishing side. We have for some time the Minister’s finest moments in the main Chamber had a fisheries forum. That will be built upon and the working on that Bill. I am sure that he will recall better relationships at different, more local levels will replace than I that when these bodies were discussed, my the rather centralised operation of the advisory noble friend Lord Grantchester broadly welcomed the committees. The situation is similar with the rivers move to rationalise the system. At the heart of this is and the river trusts in the area. Indeed, I am aware ensuring that stakeholders around fishing are properly that in some areas the river trusts are taking on some engaged. That means not just the professional people responsibilities from the agency. and businesses that are dependent upon fishing and angling but the more than 6 million people who over The abolition of the committees, while they were the past two years have indulged in some form of useful, is likely to be replaced by something more freshwater fishing. This is an important issue for a positive that will deliver the environmental outcomes large number of people. that we all seek, whether it is on the electronic consultation and social media side or, possibly more importantly, My questions concern the two key areas. I pay the overall engagement. I know that the noble Lord, tribute to the Secondary Legislation Scrutiny Committee, Lord Greaves, also objects to some of the conceptual whose fourth report on the Session I found extremely terms in there, which I do not entirely dissent from. helpful in getting my head around these orders. I start However, there is a degree of empowerment here. with the issue of accountability, which, as the Minister Bodies on the ground are taking responsibility in said, is the main issue about which the committee had keeping the agency informed and being guided by the concerns. He reminded us that its recommendation agency in dealing with incidents. For example, on was for the Government to reconsider the need for rivers where there are not major flooding incidents, it formal monitoring and evaluation of the successor takes first-line responsibility. That is quite important. arrangements, and I welcome what he said about reviews. This is a “big society” approach, replacing a fairly complex set of statutory bodies—regional quangos, Lord Greaves: My Lords, I wish to make it clear if you like—with a different form of engagement with that it is not the process that I object to, it is the words civil society in local communities. used to describe it. There is a concern that, in the absence of a formal set of structures, there will be reduced accountability, Lord Whitty: My Lords, I probably share that view. and I am sure that the review will focus on making sure However, the reality is that it allows more people to be that that has worked well. I would be grateful for a engaged and to take responsibility. To that extent, I little more detail about how the review might work; who share the objectives of the Government. The only note it might be led by, whether that person will be independent of caution I introduce is that the processes of engagement, of Defra and whether the report will be published and empowerment and partnership—all abstract terms but the process transparent so that we can properly scrutinise GC 77 Public Bodies Order 2012[LORDS] Public Bodies Order 2012 GC 78

[LORD KNIGHT OF WEYMOUTH] Without being distracted by the use of social media it here in Parliament. Answers to those sorts of questions in these things, the more serious issue is to try to now or later would be very helpful in giving us, and the understand a little more from the Minister about how limited numbers who responded to the consultation on it might work. Will the money be spent on apps, theseorders,somecomfortaroundthewelcomeannouncement webinars and tweet-meets? In particular, what proportion that the Minister made regarding the review and the and how much will be spent on staff against this positive response that he has given to the Committee, difficult fiscal environment and the pressure to which I very much welcome. reduce staffing costs? Will Defra monitor the staffing On effectiveness, the Explanatory Memorandum arrangements to ensure that there are enough people talks about the need for effective local stakeholder on the ground? Here, I might have common cause with engagement and partnership. It is clear that the money the noble Lord, Lord Greaves. We cannot solely rely currently being spent on these sets of bodies—£225,000 on technology because some people find it difficult to and £192,000 respectively—is being reinvested in that engage with technology or, surprising as it may seem, engagement. I would be interested to know a little do not even want to. Often, the technology can create more about how that money might be spent. Perhaps the noise and the interest, and bring people together, unlike the noble Lord, Lord Greaves, I am quite an but you still need people on the ground to engage with enthusiast for communication through social media. people and with that technology. Indeed, in the recent flooding incident, one of the If the Minister can give me some answers about things that was quite striking was that these days the how the review would work and how this money will telephone is a far less reliable form of communication be reinvested, I will be delighted. Suffice to say that I because most of us no longer just have a telephone do not want to oppose the orders. I am happy to let a that plugs into the wall and is powered off the little bit more catchment-based and more community-based of power that comes out of the phone line; most of us approach operate and see how it is reviewed. have wireless phones that depend on mains power. If you are going through a flood, for example, you turn Lord Taylor of Holbeach: My Lords, again, I am off that mains power and then your phone does not very grateful to all noble Lords who have spoken and work. One of the advantages of using social media is for the welcome that they have given these two draft that for many of us they are run off our smartphones orders. I think that there is an understanding that this or mobiles. It is difficult for any agency to keep up represents a new way of working and doing things with the changes that people make to their mobile better. It is not about saving money; it is about engagement phone numbers, but engaging with apps, Twitter and and providing the opportunity for fuller participation. even Facebook seems to be quite an effective way of If my noble friend Lord Greaves found the section on adding a bit of resilience as technology changes. civil and big society vexing in its use of language, I recommend to noble Lords that they read the Explanatory 4.15 pm Memorandum. Although it has a rather stiff and starchy front, which they all have, when you get into it, it is full Lord Greaves: The noble Lord was kind enough to of useful recommendations. refer to my scepticism. Does he agree that for rapid dissemination of information—for example, that flooding Lord Greaves: I have read it. is likely, has started or whatever—social media such as Twitter come into their own and are brilliant, but that for more considered consultation, people putting forward Lord Taylor of Holbeach: I know that my noble their views and so on, slightly less frenetic forms of friend clearly got beyond page 4 and got well into the social media that are not clogged up with 95% dross subject, as I would have expected him to have done. It are a better way of doing it? is a very useful document, which gives a lot of illustrations which will help to reassure noble Lords about what is involved. It is about getting people involved and facilitating Lord Knight of Weymouth: I certainly agree that if engagement. you need to get information out very rapidly, media It also is about a new way of working on catchment such as Twitter are helpful, but in an emergency, cell areas. I saw a map of European catchment areas the broadcasting is the most effective because you can get other day and it is remarkable how catchments for the to every mobile phone within a cell area. I think that United Kingdom are so much more appropriate because the Environment Agency is looking at how that might we have such a variety of river basins, whereas some be used. larger countries in Europe, such as Germany, have I was going on to address the other point made relatively few but substantial rivers. We have a large about more sustained, ongoing stakeholder engagement. number of rivers and it is quite right that we deal with It is notable to look at how the really large commercial them on the basis of catchments. interests, the large retailers, are using Facebook, for I can reassure noble Lords that there will be a example, to create massive communities of people review after two years. We will review progress jointly around Facebook pages, particularly in the United with the Environment Agency against the high-level States. Twitter is as good as the people you want to principles. Ahead of the review, we will engage with follow. If you choose to follow people who post only stakeholders to allow them and local and national dross, you will get a lot of dross, but if you choose to customers to comment on how everything has gone. unfollow the dross, you will get what you want. It is Through that process, we hope to inform the Environment entirely up to you. Agency how the policy is going forward. GC 79 Public Bodies Order 2012[17 JULY 2012] FinancialServicesandMarketsAct2000 GC 80

There was a certain amount of jesting about social Financial Services and Markets Act 2000 media. I probably come half way between the noble (Regulated Activities) (Amendment) Lord, Lord Knight, and my noble friend Lord Greaves. I am certainly less familiar than the noble Lord with Order 2012 Twitter and such things. The Explanatory Memorandum Considered in Grand Committee contains examples of how social media are already 4.35 pm being used. I draw the attention of the noble Lord, Moved by Lord Sassoon Lord Knight, to pages 42 to 45 for examples of what That the Grand Committee do report to the House has already been developed. The noble Lord, Lord that it has considered the Financial Services and Whitty, mentioned the engagement that has already Markets Act 2000 (Regulated Activities) (Amendment) occurred in the north-west. At yorkshirefishing.net, Order 2012. anglers had a two-hour online question-and-answer Relevant document: 4th Report from the Joint session with the Environment Agency’s fisheries and Committee on Statutory Instruments biodiversity team. Those are the sort of things which I see justifying the use of social media as means of The Commercial Secretary to the Treasury (Lord engagement. I think that all noble Lords will recognise Sassoon): My Lords, these regulations were laid before that, over time, their use will become much more the House on 14 June and implement changes to customary and a part of the formal pattern of things. legislation, now required under EU law, to ensure that My noble friend Lord Greaves and the noble Lord, UK financial services and commodity trading firms Lord Knight, wanted to examine where the money are able to bid in auctions of emissions allowances in would be used. No savings are being made here, but the UK and across Europe. It is important that the some money will be able to be redirected. That will be UK allows these firms to bid in auctions of emissions used to support the new England and Wales Fisheries allowances to maintain London’s position at the heart Group. This group will monitor further changes needed of the carbon market, of which it currently enjoys an for the regional models to be able to engage the right 80% global share. people at the right time. The money will go back into The EU Emissions Trading Scheme was the world’s the kitty. It is anticipated that some further resources first and largest international scheme for the trading may be needed to support engagement. For example, of greenhouse gas emissions and is at the heart of the the Environment Agency in the south-west has committed UK Government’s policy to tackle climate change funding to provide a local angling development board cost-effectively. It is estimated that the EU Emissions and an angling development officer. Those are useful Trading Scheme will deliver emissions reductions of examples of the recreational opportunities which such 3,100 metric tonnes of CO2, relative to 2005 levels, engagement will provide. between 2013 and 2020. Across the EU, it is predicted I hope that the further reassurances that I have to deliver emissions savings of 21% below 2005’s verified given will ease the way towards the next and final stage emissions by 2020. There will also be a dramatic rise in of the process, which started some 21 months ago. To the level of auctioning. This is in line with the market- this end, I commend the two orders to the Committee. based approach of the scheme and best ensures the efficiency of the system. Motion agreed. As the system moves to a greater level of auctioning, it is important to ensure confidence and integrity in it Public Bodies (Abolition of Regional and and in the way that auctions are run, so the EU regulatory framework for auctions has been strengthened Local Fisheries Advisory Committees) and introduces common EU standards for regulating Order 2012 certain bidders in the auctioning of emissions allowances. Considered in Grand Committee It is up to each member state to implement this framework in accordance with its own national laws. 4.23 pm This includes requiring certain bidders in the auctions Moved by Lord Taylor of Holbeach to be authorised by national authorities: for the UK, that is the Financial Services Authority. To minimise That the Grand Committee do report to the administrative burdens, these regulations apply only House that it has considered the Public Bodies to banks, investment banks and credit institutions (Abolition of Regional and Local Fisheries Advisory when wishing to bid in auctions on behalf of others, Committees) Order 2012. and to commodity traders when bidding in their own Relevant documents: 4th Report from the Secondary right or on behalf of others. Under the EU rules, Legislation Scrutiny Committee and 3rd Report eligible participants in the EU ETS will be able to bid from the Joint Committee on Statutory Instruments. directly, subject to meeting certain admission requirements, without FSA authorisation. However, it is likely that Motion agreed. financial institutions will provide an important means for operators to enter the market where direct bidding The Deputy Chairman of Committees My Lords, is not practical or desirable. the noble Lord, Lord Sassoon, is not able to be Implementing these changes will result in the Financial present just this minute. The Grand Committee therefore Services Authority gaining powers to authorise those stands adjourned until 4.35 pm. financial services to bid in auctions of emissions allowances across Europe. To achieve this, the regulations amend 4.24 pm secondary legislation relating to FiSMA, the Financial Sitting suspended. Services and Markets Act, and make minor amendments GC 81 FinancialServicesandMarketsAct2000[LORDS] Equality Act 2010 Order 2012 GC 82

[LORD SASSOON] Lord Sassoon: My Lords, I am grateful to the noble to the Act itself. Minor amendments to domestic anti- Lord, Lord Davies of Oldham, for making sure that money laundering legislation are also required. We our afternoon is not quite as exciting as the close of have considered the impacts of these regulations on business last night. I thank him for his support for the business and have minimised costs to UK financial measure, which is, rightly, seen not only as uncontentious institutions by ensuring that, for such firms, we meet but as supportive of this important area of policy our obligations and no more. We consulted on our development. In response to his question about the approach in the usual way and received no substantive consultation, I can tell him that it lasted for eight responses. In addition, the regulatory policy committee weeks. I believe the lack of substantive responses is a has scrutinised and approved these changes. The FSA reflection that this is a very simple measure, which has also consulted on its regulatory approach, including simply extends the requirement of authorisation to firms any fees and compliance costs applying to those wishing if they want to continue to operate in the EU auction to bid. Again, it received no substantive responses. process as it moves into this new phase 3. I am not at It is important to note that only those financial all surprised or in any way concerned by the lack of services firms wishing to bid in auctions of emissions substantive responses. As the noble Lord says, there allowances will be subject to these regulations and was one, but I believe that it was pointing out something need to be authorised by the FSA. Firms will therefore in the grammar or the spelling of the rules, which it is seek authorisation to bid only if they consider that it important to get right—I know that your Lordships’ will provide a financial return to them. are always very keen, as respondents to consultations It is important that we make these legislative are, to make sure we get the grammar right. changes now, before the first auctions of phase 3 and aviation emissions allowances begin. The first UK Lord Davies of Oldham: Is the Minister confessing that auctions will take place in November this year, subject theGovernmentwerewrongandtherespondentgotitright? to EU approval. Germany and the European Commission have also indicated that they will begin auctioning Lord Sassoon: I do not actually know whether the allowances after the summer on their own platforms. respondent got it right; all I know is that that was In summary, these legislative changes are required the issue that came up. by EU law so that UK-based firms can participate in On the noble Lord’s point about SMEs, I do not see auctions of emissions allowances across Europe and it in the way that he sees it. Principally, this is a provide services to others wishing to buy allowances. The sophisticated market—trading in emissions is not changes are necessary to preserve London’s position at something that the man or woman on the street would the heart of, and leading, the developing carbon market. do. We are talking about, on the whole, sophisticated commodity trading firms or large financial intermediaries, so the measure is not targeted at SMEs directly. They Lord Davies of Oldham: My Lords, what a joy it is will be the ultimate users and beneficiaries of the broad to discuss with the Minister, after a fairly contentious emissions system being put in place, but they are not issue last night—namely, the Government’s Finance likely to be players. On the other hand, if they want to Bill—this instrument, a measure that is not only be players, as the impact assessment set out, the costs uncontentious but is in fact welcomed by the Opposition. of going through the registration authorisation process I agree with the rationale that he has given both for the are not onerous. necessity of the measure and the benefits that it will On the noble Lord’s last point about how the bring regarding access to the auctioning of greenhouse order fits within the objective of meeting the climate gas emission allowances. change targets, I confirm what I said in opening. This We have one or two questions that I am sure that Government, like the previous Government, are keen the Minister will be more than ready to answer. Is he to see a market-based solution as far as possible to as surprised as I am that, from what one can gather, meeting the targets—the emissions trading system and the consultation, which, admittedly, ran for a very auctioning very much underpin the market-based limited period, heard from only one respondent? This approach. In that context, this is a small additional must surely be some kind of record. It indicates either measure to make sure that the auctioning element of that the measure is beyond reproach in every way—the this construct is properly regulated. I hope that that answer that the Minister will certainly favour—or that answers the noble Lord’s questions. it presents a limited opportunity.Small and medium-sized Motion agreed. enterprises do not appear to think that they have much opportunity under the order. Does he have any comments to make on that? Equality Act 2010 (Age Exceptions) I would be interested to see just how the Minister Order 2012 evaluates the significance of the measure in the Government’s overall objectives regarding climate change. Considered in Grand Committee Not only do we share those objectives but we are keen that the Government continue to sustain the policy to 4.47 pm hit the targets that have been established for a considerable Moved by Baroness Verma time now. I note the urgency of the situation, given That the Grand Committee do report to the that European auctions are taking place in the fairly House that it has considered the Equality Act 2010 near future. That is required under EU law and it is (Age Exceptions) Order 2012. only right that the measure is before us. We give it our Relevant document: 5th Report from the Joint fullest support. Committee on Statutory Instruments GC 83 Equality Act 2010 Order 2012[17 JULY 2012] Equality Act 2010 Order 2012 GC 84

Baroness Verma: My Lords, I am pleased to confirm if they cannot provide cover. It also commits the to the Committee that from 1 October 2012 our intention industry to show how it prices products by reference is that it will no longer be lawful to provide inferior to age. goods, services or facilities, or simply to refuse to On concessionary services, Article 4 is probably the provide them at all, because of a customer’s age. This widest ranging exception and one particularly welcomed includes public services such as health and social by small business. It allows any service provider to care. Unjustified age discrimination is already prohibited offer a concessionary service based on age: for example, in the workplace. After extensive consultation and enabling a hairdresser or someone who owns a fish deliberation over recent years and by different and chip shop to continue to offer discounts for pensioners. Administrations, it is now time to complete the task and end such discrimination in the provision of services. Article 5 is an exception for age-related group holidays. We are doing this by implementing the prohibition on It may be helpful to your Lordships if I touch on our such discrimination in the Equality Act 2010, which overall approach to applying the prohibition to the had cross-party support during its passage through holiday sector. We have taken the view that the provision your Lordships’ House. Alongside the prohibition on of holiday accommodation, be it a hotel, chalet or unjustified age discrimination I am pleased to present rented cottage, should not be treated differently to the this draft order, which contains necessary exemptions provision of other mainstream goods and services to it. With Parliament’s approval, this order will come such as shops and restaurants. For example, while a into force on 1 October 2012, alongside the prohibition. hotel or cottage owner could offer discounted rates to pensioners, taking advantage of the exception in Article 4 I turn now to the specifics. Harassment and which I previously described, they could not refuse to victimisation related to age will be banned without let rooms or their property to adults aged under 25 or exception. However, concerning discrimination itself, 21 without showing sufficient reason—for example, we need to ensure that the new law prohibits only evidence that their property had been damaged by harmful or unjustifiable discrimination because of younger people in the past. I refer to younger adults age. It should not outlaw the many instances of justifiably because the ban does not protect children, so hotels different treatment. Nor should it have the practical and restaurants can still lawfully have a “no children” effect of ending such treatment. The draft order therefore policy from 1 October. sets out a number of targeted exceptions to the ban on Our proposed treatment of some holidays, as opposed direct age discrimination. They add provisions to to holiday accommodation, is somewhat different for Section 195 of—and Schedules 3 and 16 to—the Act a particular reason. Rather than applying to holiday under the power contained in Section 197. Those providers as a whole, the exception in Article 5 addresses exceptions specify particular types of age-based actions, the specific and limited circumstances of package measures and practices that we consider to be justifiable, holidays designed for people in certain age groups. In beneficial or needed for sound public policy reasons. other words, it applies where mixing with people of a The exceptions will provide legal certainty for both similar age is a key element of the product and its service providers and customers. Extensive consultation enjoyment. For example, when the product includes on that issue in 2009, and again in 2011, has helped us travel to the holiday destination, accommodation and to decide where exceptions are needed and what shape activities during the vacation, this would qualify as a they should take. “relevant holiday service” for the purposes of the I will now briefly run through the exceptions in exception. Noble Lords may recall that this was an order. The specific exception for immigration in Article 2 exception called for by several noble Lords in this allows immigration officers to continue to consider House during the passage of the Equality Bill in 2009 age when determining a person’s eligibility to enter and we have been convinced by those arguments. and remain in the UK. For example, it would permit Article 6 covers age verification schemes, which are the continuation of the youth mobility scheme, which used by retailers selling age-restricted products when allows young people aged 18 to 30 to come to the UK they challenge customers where there is a doubt that for a limited period to experience life here and perhaps they are not old enough to purchase the product. The earn some money. exception allows this to continue so that retailers can, for example, ask for proof of age before selling products Article 3 allows financial service providers, such as such as alcohol or cigarettes. This new exception was banks and insurance companies, to continue to use added following the last consultation. age to determine, for example, the products and prices that they offer. Financial service companies need to Article 7 covers residential mobile homes in which factor age into their products and prices, because people live as their main residence, but not holiday people of different ages carry different risks. The most lets. This exception recognises that there is an important obvious example is that of insurance. However, the quality of life issue for people who want to live among exception is qualified because it requires any risk others of a similar age group in contrast to the transient assessments related to age to be based on relevant nature of holidays. It accordingly allows operators of information from a source on which it is reasonable residential park home sites to continue to include age for the provider to rely. We know that some older limits in their park admission rules and other arrangements people, in particular, are concerned about access to in respect of the sale and occupation of pitches and insurance, so we have also endorsed a voluntary agreement mobile homes. by the insurance industry to improve that. The agreement Article 8 inserts a new exception into Schedule 16 started on 6 April this year and commits insurance to the Equality Act allowing, for example, golf clubs companies to signpost customers to different providers to offer concessions to members above or below a GC 85 Equality Act 2010 Order 2012[LORDS] Equality Act 2010 Order 2012 GC 86

[BARONESS VERMA] preserving the ability to use age factors where it is certain age or based on length of membership. Article 9 right to do so; for example, in targeting cancer screening permits the use of age restrictions in sport, where on the age groups most at risk. many events are classified according to age bands at This legislation is targeted, fair and proportionate. local, regional, national and international level. It We have consulted extensively on it. The vast majority obviously makes sense to allow such age banding to of businesses and organisations will be able to continue continue. to operate as usual, and certain areas will be exempt from the ban altogether. The new law prohibits only As well as the specific exceptions in this order, the harmful or unjustifiable treatment that results in genuinely Equality Act contains a statutory authority exception, unfair discrimination because of age. It will not outlaw which allows differential treatment based on age where the many instances of different treatment that are this is required or allowed by statute. For example, either justifiable or do not give rise to harm. I commend exceptions to charges for prescriptions and eyesight the order to the Committee. tests based on age are provided for in legislation, as is the age of entitlement for the state pension and things such as free bus passes. 5pm Exceptions are not the only means available to Baroness Thornton: My Lords, I thank the Minister service providers wishing or needing to treat customers for her very good explanation of this rather straightforward differently on the basis of age. Under the Act, it will be order. The order arises out of the Equality Act 2010, possible for service providers to justify treatment that which my noble friend Lady Royall and I took through would otherwise amount to direct or indirect age the House before the general election. There are two discrimination. They can discriminate where they can areas that I want to explore. show that it is a proportionate means of achieving a We welcome the implementation at last of Labour’s legitimate aim. That is the legal wording but, less age discrimination legislation and the fact that that the formally, this test is known as objective justification. Act will come into force in October. What preparatory work is being undertaken to explain and publicise this I gave an example earlier of a holiday cottage important legislation and which government departments owner not wishing to rent to very young adults because are involved in its implementation and rollout? Is it, their cottage had been damaged by such people in the for example, BIS or the DWP? Is support being given past. Another example of objective justification might to employers and employees? Perhaps the Department be a car rental company that has had several of its cars of Health—to which I will return—is involved as well. written off by drivers aged under 25 or over 75. It Who is leading on the preparation for rollout of the could decide not to rent cars to people in those age legislation in October? Is it the Government Equalities groups or perhaps to charge them a little more. It Office or the EHRC? What quantum of resources could seek to justify that by pointing to the need to might be applied to it? The impact assessment, which reduce road accidents generally and particularly those came with the helpful notes accompanying the order, caused by its clients. It might also, for example, argue explains what the impact might be on businesses, that it needed to run its business efficiently. Whatever charities and voluntary and public sector bodies; it case the company might make, it would need to does not say what resources might be put into explaining demonstrate how the remedy adopted was proportionate and promoting the legislation. to the aim. If someone then took the company to I welcomed the Minister’s mentioning the Government’s court for not renting them a vehicle or offering them a awareness of issues relating to discrimination in health vehicle on less favourable terms, the court would have services, because, even at Question Time today and as to decide whether the company’s actions were legitimate the Minister will know, a noble Baroness mentioned in all the circumstances. that older people with depression are not being offered talking therapies because of their age. The breast cancer There is widespread acknowledgement that we need charities produce enormous amounts of evidence that to do more to address the growing evidence of poor or suggests that older women with breast cancer are routinely inferior treatment of older citizens by the health service undertreated. and in social care. That is not of course to say that all Are the Government still refusing to implement who work in these sectors are discriminating in this the dual discrimination provisions in the Equality way, but a series of recent reports have exposed existing Act which will make it easier to challenge the multiple shortcomings. Therefore, there are no specific exceptions layers of discrimination that older people face, from age discrimination for health or social care. such as the toxic combination of ageism and sexism? The Secretary of State said on 15 May that there The ban is not the whole answer. The NHS and the would be a delay to the commencement of the dual social care sector are making great strides to improve discrimination provisions. What does that mean? How the experience of older customers, in particular, but long is that delay going to be? When can we see orders where things continue to go wrong the ban will provide which implement those provisions, or an intention to a valuable new means of redress for patients. Therefore, do so? whenever different treatment is proposed or provided for patients because of their age, the health or care During the passage of the Bill in another place, the provider will have to objectively justify it, if challenged. Minister’s colleague, Lynne Featherstone, put down I believe that this meets our intention to eliminate an amendment which suggested that the Bill be harmful age discrimination in an area where the greatest implemented within six months of its passage, because concern has been expressed. At the same time, we are she did not trust what might happen after the general GC 87 Equality Act 2010 Order 2012[17 JULY 2012] Equality Act 2010 Order 2012 GC 88 election and she feared that the party elected, if it was The commission, having analysed Article 4, advises not sympathetic, might not implement it. The Minister that, will be pleased to know that a combination of my then “as currently drafted, the exception may fail to meet the policy right honourable friend Vera Baird and her honourable intention of the exception, as stated by the Government Equalities friend Mr Harper persuaded Ms Featherstone that Office in its 2011 consultation paper: ‘The exception will not, this was not necessary and that the Bill would be however, allow concession to be a deterrent to people who do not qualify for them or unreasonably to inhibit access to the service implemented, albeit perhaps with a delay—as is the concerned by those outside the target age group’”. case. The commission says that: I turn to the orders in front of us today. Of course “There is a risk that, as currently drafted, the exception could we welcome them; why would we not? They directly be used to create artificial pricing structures designed to exclude arise from commitments given during the course of older (or younger) people from access to particular services”. the Bill in February and March 2010. There were A number of examples are given, including a fashion serious discussions during that period with Saga, Age retailer which wishes to maintain a younger customer UK and organisations that provide financial services profile. It inflates its prices for clothing while offering about what those exceptions should be. The continuing a 50% discount for the under-30s, thereby allowing consultation seems to have covered most of those them still to pay reasonable prices. points. My only question about the consultation arises As regards my main point, have the Government from the fact that Age UK mounted a campaign had discussions? Is the Commission reasonably satisfied, objecting to the proposed specific extension of financial from its independent perspective of not being part of services, because in its view that would continue to a government department—its independence is crucial perpetuate the culture of ageism. What is the to the way in which it operates— with what the Government’s view of that campaign? The 17 campaign Government are doing? Have the Government at least letters received from Cornish self-catering holiday home explained why they are doing things in a specific way? workers seeking a specific exception to ban young Has the Commission accepted that as the Government’s people from their accommodation have my total sympathy, right? when one hears about what young people get up to in Cornwall after their exams. Baroness Hussein-Ece: First, I declare an interest as We welcome this measure. We think it is important, a commissioner for the Equality and Human Rights and I hope that the Government are going to put Commission. I also wish to pay tribute to my noble resources into supporting organisations and people friend Lady Verma for very comprehensively setting during its implementation in October. During the out the provisions of the Equality Act 2010 (Age debate in March 2010 there was cross-party agreement Exceptions) Order 2012. She took us all the way in the House about these exceptions, and I think that through the order. I welcome the order and, in answer the Government have covered all the issues that needed to the noble Baroness, Lady Howe, the Commission to be covered. My only questions are about its has also welcomed it. implementation, resources and publicisation, and ensuring Noble Lords might recall one of the key that all the people who should know about this will recommendations of the Equality and Human Rights know about it. Commission’s very successful inquiry into older people and human rights in home care, which quite recently Baroness Howe of Idlicote: My Lords, I, too, received widespread publicity. In that work, there was congratulate the Government on the great deal that a specific call for the ban to commence as soon as has been achieved. I have memories of the heavy possible in order to tackle the problem of ageist attitudes support for Saga initiatives and so on, which clearly and unjustifiable age-based discrimination in this sector, have been very well handled subsequently. some of which we know has been endemic and harrowing. I should like to ask the Minister a couple of questions. I have a specific question about the Equality and I recognise that the legislation should allow for some Human Rights Commission. I happen to have been types of age differentiation to remain lawful. However, seeing the commission about another matter today, as has been explained in response to some of the and as a result have received some comments about consultations last year, we have concerns about some the articles that we are discussing. My general question, of the exceptions—for example, Article 3 and the and I will back this up in a minute with a specific one, financial services. Obviously, we all have concerns is whether the Government have had more recent about the financial services. That exception could be detailed discussions with the EHRC and made certain seen to have been cast rather widely in that it refers to that it is satisfied. I am thinking particularly about the whole sector as well as covering all transactions Article 4, “Exceptions for concessionary services”. and interactions between customers and service providers. The commission says: As drafted, the exception would make it difficult or “In its 2011 consultation response, the Commission noted that the exception for general beneficial concessions was limited by a impossible to challenge some types of age discriminatory test of reasonableness. The exception also contained a requirement treatment. I understand that these things happen; for that the concession (or more favourable term) did not have the example, a bank may decline someone over the age effect of preventing persons of other age groups from requiring of 75 applying for a credit card or making another the services. However, in the version of the Order currently before type of application. Given this exemption, presumably Parliament”, a bank still would be able to do that. How would such apparently, a 75 year-old have recourse to that treatment? Could “both these limitations have been removed”. that be redressed under this provision? GC 89 Equality Act 2010 Order 2012[LORDS] Equality Act 2010 Order 2012 GC 90

[BARONESS HUSSEIN-ECE] on the basis that it would not undermine access to the Another example might be that of an insurance service for age groups not the subject of a concession. company making a decision about someone at the We consider it highly unlikely that providers would other end of the age spectrum, someone aged under 25. introduce a warped pricing system just to exclude a When insuring young people for driving a car, we particular group. After all, shops, cafes and places like know that many insurance companies tend—I will not that are there to maximise their take on monetary use the word discriminate—to make it more difficult value and are hardly likely to deprive themselves of or charge higher prices for those under the age of 25. valuable customers in that way. She also asked whether What safeguards may be in place to address these we had discussed Article 4 with the EHRC and my points? noble friend Lady Hussein-Ece clarified that position—yes, I very much agree with what the noble Baroness, we did. We have had discussions on the consultation Lady Thornton, said about information to ensure that with the commission throughout, as with other groups. service providers, employers and the general public are We have not had any recent discussions with it but we made well aware of these new provisions, as well as of have not been made aware of any opposition that it their rights under the new Act. may have to the order. My noble friend raised the point that the financial 5.15 pm services exemption was too broad. I suspect that my response is not going to satisfy her on the question of Baroness Verma: My Lords, I thank noble Lords credit cards, and we may have to come back with a bit for their warm welcome to the order and for giving it more detail on that one. However, in most cases the reasonably easy travel. However, a number of points problem is not that people cannot access insurance; it have been raised so I will deal with those first. If I do is that they do not always have the information about not manage to satisfy noble Lords today, I will undertake other alternatives. That is why the insurance industry to write a fuller response and get a copy placed in the has entered into an agreement with the Government Library. to improve signposting and transparency to ensure The noble Baroness, Lady Thornton, asked how that no one is left without access to an insurance the Government were preparing service providers for service. However, they need to comply with responsible implementing this order from October. There is going lending practices as well. Their entire business or to be tailored guidance, which is prepared by the individual services may be part of the market in which Home Office and the GEO, and we hope that it will be they have particular expertise. The example that comes published within the next week or so. It will be tailored to mind straightaway is Saga. to specific sectors. The Department of Health will be On the whole, the order covers most of the concerns providing its own guidance to the health service and to raised by noble Lords. We agree on principle that its employees, and Her Majesty’s Treasury will issue older people—indeed, people of all ages—have to be guidance related to the financial services sector. treated fairly and that there should be no deviation The noble Baroness asked about dual discrimination from that principle. Equally, however, we know that and other delays. At this moment, we do not have we want some preferential treatments, such as free bus plans to implement dual discrimination. This position, passes and discounts for older people, to continue. On and its feasibility and potential burden on businesses, that basis, we are confident that the combination of has been and is being reviewed in the course of our these exceptions and the discrimination ban will keep Red Tape Challenge initiative. GEO will be leading on a balanced approach in what the Government are this implementation plan, so we will be the lead within trying to do. the Government taking this forward. The noble Baroness, Lady Howe, asked if the EHRC Motion agreed. had concerns about Article 4 on concessions. We do not believe so. We have simplified the exception, but Committee adjourned at 5.20 pm. WS 23 Written Statements[17 JULY 2012] Written Statements WS 24

stronger than the ENDPB option. Further value for Written Statements money work is under way to confirm this assessment. In the meantime, as resources and commercial appetite Tuesday 17 July 2012 constrain our ability to pursue these two options simultaneously to the next stage, I have decided that MoD should focus its effort on developing and testing Armed Forces: Defence Equipment the GOCO option further. and Support The work to determine value for money between Statement the options will take place over the next few months, and in parallel we will begin development of a commercial strategy, engaging industry to hone our requirement. The Parliamentary Under-Secretary of State, Ministry This work will support decisions later in the year on of Defence (Lord Astor of Hever): My right honourable whether to proceed with the GOCO option and whether friend the Secretary of State for Defence (Philip to launch a competition for the private sector management Hammond) has made the following Written Ministerial company to run the organisation. Provided that the Statement. further work demonstrates that the value for money A core element of the transformation process under case for GOCO over ENDPB/SP is conclusive, this way in the Ministry of Defence (MoD) is reforming its will be followed by an investment appraisal that will acquisition system to drive better value from the defence test the GOCO against a public sector comparator, budget. This includes changes to the Defence Equipment following which a decision on whether or not to proceed and Support (DE&S) organisation to ensure it has the will be taken. structures, management and skills it needs to provide the right equipment to our Armed Forces at the right time, and at the right cost. This is essential to tackle Armed Forces: Medals the legacy problems in defence acquisition that led to Statement cost and schedule overruns, and which have resisted previous reform. The people at DE&S work hard to provide battle-winning equipment, support and logistics, The Chancellor of the Duchy of Lancaster (Lord but the current system does not work for them, does Strathclyde): My right honourable friend the Prime not always support them, and is not delivering value Minister has made the following Statement. for money for the taxpayer. I have today placed a copy of Sir John Holmes’ Over the past year, Bernard Gray, the Chief of interim review of the rules and principles governing Defence Materiel, has analysed the root causes of the the award of military medals in the Libraries of both current situation and identified three interlinked issues. Houses. The interim report brings welcome transparency These are a historically overheated equipment programme, to these arrangements. It finds that the overall approach where far more projects were planned than could be is reasonably based. However, it also identifies areas paid for; a weak interface between DE&S and the where it is worth considering whether the rules could wider Ministry of Defence with poor discipline and be applied with greater flexibility and transparency. It change control between those setting requirements for proposes ways forward to address some past grievances equipment and those delivering the programmes; and while maintaining the distinctive British tradition that insufficient levels of business capability at DE&S for military medals are hard earned. I hope this will help the scale and complexity of the portfolio it is asked to to draw a line under past campaigns and provide a deliver. The result has been significant additional costs more open decision-making process in future. I welcome in the defence budget of the order of hundreds of the report and have asked Sir John to lead a second millions of pounds each year, with money spent managing stage of work to make further recommendations using the consequences of delay rather than delivering maximum the principles he has proposed to implement his findings. capability for the Armed Forces. This work will be completed as soon as possible in the I was able to announce to the House on 14 May autumn. (Official Report, col. 261) that we had finally balanced the defence budget. The MoD is now engaged in a process of transformation to deliver the behaviour- Boundary Commission for England changing incentives and structures that will maintain Statement the budget in balance in the future. The restructuring of DE&S is key to this process. The Minister of State, Ministry of Justice (Lord For decades the Ministry of Defence has wrestled McNally): My right honourable friend, the Lord with this issue without success, and it is clear that Chancellor and Secretary of State for Justice (Kenneth addressing it within current structures will be extremely Clarke) has made the following Written Ministerial challenging. Earlier this year, I therefore asked my Statement. officials to focus their efforts on considering the comparative benefits which could be derived from I should like to inform the House that I have made changing DE&S into either an executive non-departmental the following appointment under Schedule 1 to the public body with a strategic partner from the private Parliamentary Constituencies Act 1986: sector (ENDPB/SP), or a government-owned, contractor the Honourable Mr Justice Sales re-appointed as operated (GOCO) entity. The work done to date, deputy chairman of the Boundary Commission for suggests that the strategic case for the GOCO option is England effective until 30 June 2014. WS 25 Written Statements[LORDS] Written Statements WS 26

British Council: Annual Report Competition and Markets Authority Statement Statement

The Parliamentary Under-Secretary of State, Department The Minister of State, Foreign and Commonwealth for Business, Innovation and Skills (Baroness Wilcox): Office (Lord Howell of Guildford): My honourable My right honourable friend the Secretary of State for friend the Minister of State (Jeremy Browne) has the Department of Business, Innovation and Skills made the following Written Ministerial Statement. (Vince Cable) has today made the following Statement. Copies of the British Council’s annual report and I have decided to appoint Lord Currie as the chair accounts for the 2011-12 financial year have been placed designate to the Competition and Markets Authority. in the Libraries of the House. It can also be found at the British Council’s website: www.britishcouncil.org Lord Currie will commence his appointment in the summer which will be for an initial period of four DuringtheperiodtheBritishCouncilreceived£180,500,000 years. His appointment as chairman will be subject to grant-in-aid from the Foreign and Commonwealth the Enterprise and Regulatory Reform Bill receiving Office. Royal Assent and to scrutiny by the BIS Select Committee. The appointment has been made in accordance with the Commissioner for Public Appointments Code Capital for Enterprise Ltd of Practice (April 2012). Statement Lord Currie was Chair of OFCOM from its inception in 2002 until 2009, Dean of Cass Business School in 2001 until 2008 and before that deputy dean at London The Parliamentary Under-Secretary of State, Department Business School. for Business, Innovation and Skills (Baroness Wilcox): My honourable friend the Minister of State for Business He is currently chair of the International Centre for and Enterprise (Mark Prisk) has today made the following Financial Regulation and board member of Dubai Statement. Financial Services Authority. Lord Currie also holds a number of non-executive roles spanning academia, The triennial review of Capital for Enterprise Ltd Government and the voluntary sector and sits as a will commence during October 2012. Cross-Bencher in the House of Lords. The coalition Government made a commitment Lord Currie will be stepping down from his current to review public bodies, with the aim of increasing non-executive directorships of Royal Mail, IG Group, accountability for actions carried out on behalf of the and BDO. state. BIS has agreed with the Cabinet Office that Capital for Enterprise Ltd will be one of the NDPBs for which Correction to Commons Written Answer the review will commence during the second year of Statement the triennial review programme (FY 2012-13). The review will be conducted as set out in Cabinet The Minister of State, Ministry of Justice (Lord Office guidance, in two stages. McNally): The Lord Chancellor and Secretary of State Stage 1 will: for Justice (Kenneth Clarke) has made the following Written Ministerial Statement. identify and examine the key functions of the Capital for Enterprise Ltd and assess how these functions I regret to inform the House that I have recently contribute to the core business of BIS; discovered that there was an inaccuracy in the Answer I gave to a Commons Parliamentary Question (85074) assess the requirement for these to continue; on 15 December 2011 (Official Report, col. 882W) if continuing, then assess delivery options and about off payroll Senior Civil Service appointments to where the conclusion is that a particular function is the honourable Member for Harrow West (Mr Thomas). still needed examine how this function might best I am now advised that the correct answer is that at be delivered, including a cost and benefits analysis the time of the question in December 2011, the Ministry where appropriate; and of Justice had engaged nine senior managers working if one of these options is continuing delivery in Senior Civil Service positions on an interim basis through Capital for Enterprise Ltd, then make an (deployed within the MoJ IT Directorate). Within its assessment against the Government’s “three tests”, executive agencies and non-departmental bodies, there these are: technical function; political impartiality; were two senior managers engaged in a Senior Civil need for independence from Ministers. Service position on an interim basis (one in the National If the outcome of Stage 1 is that delivery should Offender Management Service and the other in the continue through Capital for Enterprise Ltd then the Legal Service Commission). second stage of the project will be to ensure that it is Furthermore the Answer described the process for operating in line with the recognised principles of the procurement of contractors and interims through good corporate governance, using the Cabinet Office a single managed service provider, Capita Resourcing “comply or explain” standard approach. Limited. This was normally the case for the main The report of the review should be completed within department and its executive agencies. However, it six months from commencement, and will be placed in should have been made clear that the Ministry’s non- the Libraries of the House. departmental public bodies have their own processes WS 27 Written Statements[17 JULY 2012] Written Statements WS 28 and are not obliged to use the Ministry’s single managed Proposal for bank recovery and resolution directive service provider. In addition, where the single managed The Commission presented its proposals for a directive, service provider was unable to source specifically skills which the council noted, and Ministers held a preliminary individuals, then other providers are engaged. exchange of views. The presidency’s aim is for the council to agree a general approach by December. Detainee Inquiry Presentation of the Cyprus presidency work programme Statement The new presidency presented its work programme on economic and financial affairs for the next six The Minister of State, Ministry of Justice (Lord months. It will prioritise implementation of recently McNally): My right honourable friend the Lord adopted initiatives on economic governance, fiscal Chancellor and Secretary of State for Justice (Kenneth consolidation, strengthening the European financial Clarke) has made the following Written Ministerial services framework and accelerating structural reforms, Statement. as well as some tax issues. Ministers exchanged views In my Statement on 18 January 2012, announcing on this: I highlighted the European Commission’s the Government’s decision to bring the Detainee inquiry ¤15 billion upward revision to its June proposal for the to a conclusion, I said that Sir Peter Gibson, the 2014-20 multi-annual financial framework, which was inquiry chair, had agreed to provide the Government already unaffordable, and called for re-prioritisation with a report on its preparatory work to date, highlighting of the EU Budget. The council took note of the particular themes or issues which might be the subject presidency’s programme. of further examination. The inquiry sent its report to the Prime Minister on 27 June 2012. The Government Follow-up to the European Council on 28 and 29 June are now looking carefully at its contents and remain 2012 committed to publishing as much of this interim report Ministers discussed work required to follow up the as possible. I will provide a further update when the June European Council discussions, on establishing House returns. what has been termed “genuine economic and monetary union” and a banking supervisor. On the latter, the Commission will present proposals, expected in the ECOFIN autumn: the council held a preliminary exchange of Statement views in advance of these. I intervened to welcome the European Council’s commitment to the integrity of The Commercial Secretary to the Treasury (Lord the single market and to highlight the need to protect Sassoon): My honourable friend the Financial Secretary against its fragmentation—such as discrimination between to the Treasury (Mark Hoban) has today made the the euro area and euro “outs”; and I pointed out that following Written Ministerial Statement. banking union makes sense for the euro area, as The Economic and Financial Affairs Council was mutualised risk should be accompanied by mutualised held in Brussels on 10 July 2012. Ministers discussed control. the following items. European semester Economic governance—“two pack” The incoming Cypriot presidency updated Ministers The council adopted the recommendations to member on the process to be followed for trilogue negotiations states on their economic and fiscal policies, and the with the European Parliament on the “two pack” of specific recommendation on the economic policies of economic governance proposals. The Parliament has the member states of the euro area. As required by the suggested changes to the proposals. The council confirmed “comply or explain” principle established by economic that the general approach it agreed on 21 February governance legislation agreed last year, the council would be the starting point for the negotiations: the provided explanations of its modifications of Commission first working-level meeting with the Parliament was proposals and recommendations. scheduled for 11 July. Ministers also discussed the European semester Revised capital requirements rules (CRD4) more broadly and suggested ideas for improving the The presidency briefed Ministers on progress made process in 2013. The presidency called for further in trilogue negotiations, and expressed its wish to discussions at council meetings scheduled for the autumn. finalise the negotiations as soon as possible. It had Spain’s excessive deficit procedure already held its first trilogue and had scheduled further In a late addition to the agenda, Ministers agreed to meetings very soon. It will aim to achieve adoption of extend Spain’s deadline to correct its deficit under its both the directive and the regulation at first reading, excessive deficit procedure. Spain will now have until though it acknowledges several outstanding issues 2014 to bring its deficit below the EU’s 3% of GDP requiring resolution—including the mechanism for reference value. member states to impose additional prudential requirements, remuneration policies, crisis management, Other business sanctions, the balance of power between the authorities The council agreed to recommend the nomination of home and host countries, corporate governance, of Yves Mersch (currently head of Luxembourg’s and the powers of the European Banking Authority central bank) to the executive board of the European (EBA). The UK favours a full and faithful implementation Central Bank (ECB). This recommendation will be of Basel 3 in the EU and member states having the submitted to the European Council for a decision, flexibility to increase minimum standards in order to after consultation with the European Parliament and protect financial stability in their jurisdiction. the ECB’s governing council. WS 29 Written Statements[LORDS] Written Statements WS 30

Education: Reform the Secretary of State for Communities and Local Statement Government’s consultation on the introduction of a business rates retention scheme from 2013-14. Distributing this money on a clear and transparent The Parliamentary Under-Secretary of State for basis will help to restore confidence in the system and Schools (Lord Hill of Oareford): My right honourable will put an end to the dramatic year-on-year turbulence friend the Secretary of State for Education (Michael and national variation in funding levels. This will take Gove) made the following Written Ministerial Statement. us further in achieving our objective of raising the attainment of all pupils across the country. We need to reform the way that local authorities and academies are funded for central education services. I have also published the Government’s response to We have inherited a complicated system which can no the consultation held late last year on the way that longer support the rapid growth in the number of funding for central education services was removed academies and today I am announcing proposals to from local authorities in 2011-12 and 2012-13 to reflect make it fairer, simpler and more transparent from the transfer of responsibilities to academies. This sets 2013-14. out the steps we have taken to ensure that the amounts deducted better reflect the number of academies in Academies are responsible for a range of education each local authority over the two year period. services such as school improvement, audit and HR, Copies of these publications will be placed in the that local authorities perform on behalf of maintained Libraries of both Houses. schools. Academies receive a grant (known as the Local Authority Central Spend Equivalent Grant or LACSEG) to fund those additional duties. This gives Electoral Registration academies greater freedom to secure the right services for their pupils. Statement Local authorities and academies receive funding for these responsibilities separately and the current Lord Wallace of Saltaire: My right honourable method of calculating how much money each academy friend the Minister for Political and Constitutional should receive is convoluted and bureaucratic. We Reform (Mark Harper) has made the following Written have to wait until every local authority tells us how Ministerial Statement. much they plan to spend on services for maintained I am announcing today that the Government have schools in their area before we can calculate the grants placed the implementation plan for individual electoral for academies. This means that academies can receive registration (IER) in the House Library. The plan has vastly different levels of funding from one year to the also been published on the Cabinet Office website. next and the rates tend to vary starkly across the The aim of this plan is to explain how the new country. system will affect citizens and electoral administrators Moreover, as more schools adopt the freedoms of and how this change will be delivered. In particular, academy status, basing this grant on the amount spent it outlines the timetable for the work and how this by the local authority is increasingly incongruous. In will be managed alongside other activities electoral two local authorities, for instance, all state funded administrators will have to carry out over that period. secondary schools are now academies and the funding This plan has been developed in consultation with key for education services needs to be brought into line delivery partners, the Association of Electoral Administrators with this significant shift in school provision. (AEA), the Electoral Commission (EC) and the Society of Local Authority Chief Executives (SOLACE). Local authorities fund central education services from the money they receive for schools from the We have been working with stakeholders throughout Department for Education, as well as from their general the process of developing our proposals for IER, and funding. The Government believe that money intended have already consulted on the overall policy and the for schools should be given straight to schools themselves Electoral Registration and Administration Bill, adapting so that they can decide how best to spend it. That is our policy to reflect feedback from Parliament (notably why I announced in March that, from 2013-14, it will the Political and Constitutional Reform Committee, be compulsory for local authorities to allocate all of which carried out pre-legislative scrutiny on our proposals), the money that they receive specifically for schools the public, and other stakeholders. We piloted data (the Dedicated Schools Grant) directly to the maintained matching last year with 22 local authorities. We will schools and academies in their area. continue the approach of working with stakeholders throughout the delivery of this change, to ensure that I am also proposing that the money that is currently we have assurance that the new service will work paid separately to local authorities and academies for effectively on the ground before we go live in 2014. central education services should be replaced by a single grant. This would be allocated on a simple national basis according to the numbers of pupils for Employment: Jobseeking Support which they are responsible. The new grant would be Statement paid directly to individual academies and to each local authority for all the pupils in maintained schools. The funding for these functions will be transferred from The Parliamentary Under-Secretary of State, Department the Department for Communities and Local Government, for Work and Pensions (Lord Freud): My right honourable to be administered by the Department for Education, friend the Minister for Employment (Chris Grayling) and so I am consulting on these proposals alongside has made the following Written Ministerial Statement. WS 31 Written Statements[17 JULY 2012] Written Statements WS 32

The Government have a strong offer of support to sector and to promote this capability overseas. UKTI help young people find work: the Work Programme, is embedding this campaign into trade work in all the YouthContract and measures such as work experience markets where there is a clear opportunity to do so. and apprenticeships. The Export Credits Guarantee Department (ECGD), We know that lack of experience in the workplace operating as UK Export Finance, has been engaging can be a fundamental stumbling block for young with companies and trade bodies based in the UK jobseekers. This is compounded in difficult economic which are involved in the development and export of times when the labour market is even more challenging green technology exports. The purpose has been to for those seeking their first job. ensure companies are aware of the support that is I will test the impact of providing additional support available to them from ECGD if they require credit to young people with a limited work history from the insurance, export working capital finance, contract very start of their benefit claim. This trial has been bond support or if their buyers require export credit jointly developed with the Greater London Authority. loan finance. Through engagement with overseas project Further information on the details of this scheme sponsors ECGD has also promoted the availability of will follow in due course. export credit finance to help to influence them to purchase supplies from companies based in the UK. EU: Health Council This work by UKTI and ECGD is intended to Statement assist UK exporters of low carbon technologies and support them in taking advantage of international The Parliamentary Under-Secretary of State, Department opportunities. of Health (Earl Howe): My honourable friend the As to support for dirty fossil-fuel energy production, Parliamentary Under-Secretary of State, Department “dirty” should be taken as referring to projects which of Health (Anne Milton) has made the following Written produce pollution in excess of international environmental Ministerial Statement. standards. The standards which ECGD applies are EU Health Ministers met in Nicosia, Cyprus, on those set out by the OECD in the OECD Council 10 and 11 July. The United Kingdom was represented Recommendation on Common Approaches on Officially at official level. The agenda included discussions on Supported Export Credits and Environmental and organ donation and transplantation, the health workforce, Social Due Diligence and are usually those of the and health security. World Bank Group. ECGD will normally refuse support for exports to projects that do not meet those standards. The meeting began with a discussion on organ donation and transplantation. This discussion was The UK will seek to promote the strengthening of followed by a lunch debate on the health workforce, the relevant World Bank Group international standards centring on the priorities outlined in the EU’s action to include limits on emissions of greenhouse gases. plan for the EU health workforce. There was also broad consensus that the EU could support the pursuit of these priorities in member states by facilitating the Government: Consultations sharing of experiences and best practices, but that Statement member states alone were competent to define their own workforce strategies. Lord Wallace of Saltaire: My right honourable Following presentations from the presidency, the friend the Minister for Government Policy (Oliver Commission, the WHO and Greece, health security was Letwin) has made the following Written Ministerial also discussed, in particular risk and crisis communication Statement. strategies. Today my honourable friend the Minister for Business and Enterprise (Mark Prisk) and I are announcing a Export: Green Technologies new approach to Government consultations. Statement The Civil Service Reform Plan commits the Government to improving policy making and implementation with The Minister of State, Department for Business, a greater focus on robust evidence, transparency and Innovation and Skills & Foreign and Commonwealth engaging with key groups earlier in the process. Office (Lord Green of Hurstpierpoint): My right honourable As a result the Government are improving the way friend the Secretary of State for Business, Innovation they consult by adopting a more proportionate and and Skills (Vince Cable) has today made the following targeted approach. The new approach to consultation Statement. is based on making the type and scale of engagement The 2010 Coalition Programme for Government proportional to the potential impacts of the proposal. contained a commitment that: The emphasis is on understanding the effects of a “We will ensure that UK Trade and Investment and the proposal and ensuring real engagement rather than Export Credits Guarantee Department become champions for following the same bureaucratic process. British companies that develop and export innovative green technologies round the world, instead of supporting investment This guidance therefore replaces the Code of Practice in dirty fossil-fuel production.” on Consultation issued in July 2008. UKTI set out in its strategy “Britain Open for This will mean that departments will follow a range Business” how it would promote low carbon exports; of timescales rather than defaulting to a 12-week this includes a Green Export Campaign that aims to period, particularly where extensive engagement has build the UK’s reputation in the green and low carbon occurred before. Policy makers will need to give more WS 33 Written Statements[LORDS] Written Statements WS 34 thought to how we consult with people. The aim is to (b) the claimant has failed to beat a defendant’s replace potentially unproductive process with real ‘Part 36’ offer to settle; or engagement with those who are affected. In some (c) the case has been struck out where the claim cases there will be earlier consultation so groups can discloses no reasonable cause of action or where it shape policy earlier in the process. is otherwise an abuse of the court’s process (or is Consultation can take different forms but the otherwise likely to obstruct the just disposal of the expectation is that it will be “digital by default”. This proceedings). approach will need to be varied for vulnerable or other groups whose access to information technology is iv. The principles set out in Part 36 of the Civil limited, but it should mean that departments can be Procedure Rules override QOCS, but only up to the more, not less, effective at reaching particular groups level of damages recovered by the claimant; affected by policies. v. QOCS protection would apply in relation to The principles of the compact between Government claims that are discontinued during proceedings (subject and the voluntary and community sector will continue to iii(a) above); and to be respected. vi. QOCS protection would be allowed for all appeal The new consultation principles will be promoted proceedings as the requirement for permission to appeal within Whitehall now, and the public will begin to see controls unmeritorious appeals. new guidance take effect after Recess. In line with the principles of open policy making we welcome views The Ministry of Justice is considering further the on how new approach should operate in practice. practicality of QOCS protection not applying to elements Copies of the new guidance have been placed in the of a claim for personal injury that are pursued for the Library of the House. benefit of a third party (such as a property damage insurer or a credit hire provider) in respect of goods, services or indemnity provided by a third party to the claimant as a consequence of the accident. Legal Aid, Sentencing and Punishment of The sanctions under Part 36 of the Civil Procedure Offenders Act 2012 Rules (offers to settle) are to be reformed on the Statement following basis in order to encourage early settlement: i. there is to be an additional amount to be paid by a defendant who does not accept a claimant’s offer to The Minister of State, Ministry of Justice (Lord settle where the court gives judgment for the claimant McNally): My honourable friend the Parliamentary that is at least as advantageous as an offer the claimant Under-Secretary of State, Ministry of Justice (Jonathan made to settle the claim. This additional sanction is to Djanogly) has made the following Written Ministerial be calculated as 10% of damages where damages are Statement. in issue, and 10% of costs for non-damages claims; This Statement amends the one I made on 10 July ii. in mixed (damages and non-damages) claims, the (Official Report, col. 20WS). The wording in relation sanction will be calculated as 10% of the damages to the sanctions under Part 36 of the Civil Procedure element of the claim; Rules (offers to settle), paragraph (i), contained a factual error, which has now been corrected. iii. however, the sanction under these provisions On 24 May 2012 (Official Report, col. 94WS), I is to be subject to a tapering system for claims over announced the Government’s implementation plans £500,000 so that the maximum sanction is likely to be for the provisions under Part 2 of the Legal Aid, £75,000; and Sentencing and Punishment of Offenders Act 2012 iv. there would only be one sanction applicable for relating to civil litigation funding and costs. The split trials. Government have now considered further advice from the Civil Justice Council and I can therefore set out The new rule on proportionality has been agreed by further details of those provisions. the Civil Procedure Rule Committee (CPRC), and the test is intended to control the costs of activity that is A regime of qualified one way costs shifting (QOCS) clearly disproportionate to the value, complexity and is to be introduced in personal injury claims, so that importance of the claim. The senior judiciary are claimants conducting their case properly will not have considering revisions to the costs practice direction to to pay towards defendants’ costs if the claim fails. give effect to the new rule. Rules will be drafted on the following basis: i. QOCS will apply to all claimants whatever their Changes to the Civil Procedure Rules (CPR) will be means; there is to be no financial test to determine considered by the CPRC in the autumn, in order for eligibility; the necessary changes to come into effect for April 2013. The Ministry of Justice will continue to engage with ii. Subject to the provisions below, claimants who key stakeholders throughout the implementation stage lose will not have to contribute towards defendants’ and will also work closely with the senior judiciary on costs (there is to be no minimum payment by a losing other aspects of Lord Justice Jackson’s reforms, which claimant); are due to come into effect at the same time. Updates iii. QOCS protection would be lost if are provided on the judiciary website at http://www. (a) the claim is found to be fraudulent on the balance judiciary.gov.uk/publications-and-reports/review-of- of probabilities; civil-litigation-costs. WS 35 Written Statements[17 JULY 2012] Written Statements WS 36

Local Government: Finance personnel for second homes discount on their private Statement properties, they do make payments on their UK or overseas service accommodation in lieu of council tax. This payment is paid to the billing authority The Parliamentary Under-Secretary of State, Department where the service accommodation is located by the for Communities and Local Government (Baroness Hanham): Ministry of Defence. My honourable friend the Parliamentary Under-Secretary of State for Communities and Local Government (Bob Council tax support Neill) has made the following Written Ministerial Statement. I am today publishing a consultation and informing To support the planning of local council tax the House of a number of steps we have taken to reduction schemes, and to provide clarity on our plans support our localism agenda and the important financial for secondary legislation, I have also published, on 16 reforms we are delivering through the Local Government July 2012, key draft regulations regarding the localisation Finance Bill. of council tax support, as we said we would in the detailed statement of intent on regulations published Business rates retention in May. The business rates retention scheme will enable local authorities to retain a proportion of locally Under the reforms set out in the Local Government collected business rates to help fund the services they Finance Bill 2012, local authorities will be required provide, therefore creating a direct link between business to make their own council tax support schemes by rates collected and local authority income, and reducing 31 January 2013. The draft regulations I published local authorities’ dependency on central government yesterday will ensure all local schemes contain any grants. The technical consultation document, also requirements prescribed by the Secretary of State, published today, sets out proposals for the detailed including provision of support for vulnerable pensioners, and workings of the new business rates retention scheme also set out the requirements for a default scheme, that is to be introduced from April 2013. which will come into effect if a local authority fails to The scheme will give councils a strong financial make a scheme by the prescribed deadline. incentive to promote local business growth whilst ensuring that all local authorities have adequate resources to The publication of these regulations in draft form provide services to local people. Analysis undertaken is intended to give authorities and interested parties by the Department for Communities and Local the opportunity to make any comments or ask Government shows that the projected economic benefits questions on the process and the draft regulations, to of the new business rate retention scheme could add ensure that the final versions will enable local authorities an additional £10 billion to national Gross Domestic to implement the prescribed requirements or default Product over the next seven years. And councils who scheme smoothly. succeed in growing their local economy get a direct boost to their coffers. This is not simply about It is essential that local authorities press ahead now redistributing the proceeds of growth—if these reforms with developing their schemes. Schemes have to be lead to every council working as hard as it possibly agreed by the end of January 2013 and will apply from can to help businesses thrive, then they have the potential 1st April 2013. This means local authorities need to to increase growth overall, which is good news for start consulting now to ensure they can give full communities in as much as any increase in business consideration to the views local people express, and rates means more money to invest in local services. provisions in the Local Government Finance Bill make This publication follows the 2011 consultation on clear that the billing authority can consult prior to the the proposals for business rates retention and Bill coming into force. extensive discussions on the proposals with the local Parish and community cheques government sector, as well as the associated Statements of Intent published on 17 May this year. I have Today we have published a consultation paper placed copies of the consultation document in the proposing the removal of an outdated rule that limits Library of the House, and the consultation document, the ability of parish and community councils to use a supporting Equality Statement, a Plain English Guide modern methods of payment. The rule requires all to Business Rates Retention, a Step by Step guide and cheques and other orders for the payment of money a revised Pooling prospectus are also available on the to be signed by two members of the council. It applies Department for Communities and Local Government to all parish councils in England and community website and the Local Government Finance website councils in Wales, as well as some charter trustees in at: www.local.communities.gov.uk/finance/brr/sumcon England. As the rule is contained in primary legislation /index.htm. the paper proposes that the reform should be implemented by We look forward to receiving views on our proposals. a legislative reform order made under the Legislative The consultation period will close on 24 September and Regulatory Reform Act 2006. The paper sets out 2012. We will then put forward our proposals for local the robust yet flexible control framework that will take government funding for 2013-14 in a draft Local the place of the two signature rule; this framework has Government Finance Settlement later this year. been developed by the local council sector. Subject to Council Tax Information Letter the outcome of the consultation, the Government The Government also today issued a council tax propose to lay a draft order before Parliament in the information letter to local authorities to make them autumn. A copy of the consultation paper has been aware that, when considering applications from service placed in the Library of the House. WS 37 Written Statements[LORDS] Written Statements WS 38

Money Laundering Regulations 2007 This test will be amended in the regulations to Statement ensure that individuals who are not fit and proper cannot run a business which is at high risk of money laundering, terrorist financing and proliferation The Commercial Secretary to the Treasury (Lord of financing. This also ensures consistency with the Sassoon): My honourable friend the Financial Secretary Financial Action Task Force (FATF) global standards, to the Treasury (Mark Hoban) has today made the the EU directive and the fit and proper test applied following Written Ministerial Statement. by the Financial Services Authority (FSA) under The Government are today publishing their response the Payment Services Regulations; to the consultation on proposed changes to the Money right to appeal against HMRC decision: the Laundering Regulations 2007 and an impact assessment Government will clarify the right to appeal, to ensure on those changes. The 2007 regulations implement the that individuals have easy and economic access to a European Union’s third money laundering directive in fair hearing if they wish to challenge HMRC’s decision; the UK. The proposals being taken forward will both reduce regulatory enforcement measures: these measures the regulatory burden on firms and make the UK’s support the Office of Fair Trading, HMRC and the money laundering regime more effective and proportionate. FSA as supervisors in taking action to ensure The amendments are, for the most part, intended to compliance with the regulations. benefit UK businesses by removing from the scope of A full explanation of the proposals being taken the regulations those firms that are not at high risk of forward can be found in the Government’s response money laundering or terrorist financing and by enabling document and impact assessment. Copies have been UK businesses to take full advantage of simplification placed in the Libraries of both Houses. measures provided in the European Union (EU) directive. The Government committed to a post-implementation review of the 2007 regulations two years after they came into force. This review was undertaken in 2009-10, Overseas Stability in conjunction with the Better Regulation Executive. Statement The review entailed an extensive call for evidence, meetings, conferences and interviews with stakeholders. The Government’s response to the review was published in June 2011 and contained a consultation on 17 proposals The Minister of State, Foreign and Commonwealth to improve the UK’s anti-money laundering and counter Office (Lord Howell of Guildford): My right honourable terrorist financing regime. friend the Secretary of State for Foreign and Following this consultation, which drew 72 responses Commonwealth Affairs (William Hague) has made and involved extensive engagement, the Government the following Written Ministerial Statement. are taking forward proposals with a net annual benefit I, together with my right honourable friends the for businesses of £3 million. Secretary of State for International Development and The measures that will be taken forward are: the Secretary of State for Defence, wish to update the extending the use of reliance: the Government will House on the progress our three departments have extend the permitted use of reliance, a mechanism made in implementing the Building Stability Overseas by which a firm can rely on the customer due Strategy (BSOS) that we launched on 19 July 2011. diligence (CDD) carried out by a different firm. The BSOS is one of the cross-government strategies This will minimise the duplication of CDD checks adopted following the Strategic Defence and Security by the regulated sector and reduce the burden Review. CDD places upon customers; We launched the BSOS at the time of the Arab exempting non-lending credit institutions: only Spring, which was a profound demonstration that businesses that lend and advance money should be genuine stability can only be achieved when societies subject to the regulations. The regulations will be have strong and legitimate institutions to manage tensions amended to exempt credit institutions that offer peacefully. The BSOS was the first cross-government time to pay for non-refundable services, such as strategy on conflict issues. It sets out that it is in the health and golf clubs. The Government do not UK’s interest to build capacities overseas that help consider that such businesses present a high risk of prevent the conditions that lead to conflict before they money laundering; and terrorist financing, or that develop; and to identify emerging crises early and to the global standards and EU Directive require respond rapidly to prevent or mitigate them. such businesses to be regulated; We have made good progress in implementing the regulating overseas estate agents: global standards new strategy since its publication. The BSOS has and the EU directive require the regulation of estate produced a range of different mechanisms that ensure agents because of the high money laundering risks that the different skills, perspectives and expertise in this sector. UK estate agents selling overseas across government are brought together in an integrated properties will, therefore, now be within scope of way. the regulations; We have established new systems for early warning, amending the fit and proper test: the “fit and proper to better identify rising risks. Senior officials from persons” test is applied by Her Majesty’s Revenue across government meet regularly to systematically and Customs (HMRC) to decide whether a person review and, if necessary, challenge the Government’s is suitable to run a money service business (MSB). approach to selected priority countries. WS 39 Written Statements[17 JULY 2012] Written Statements WS 40

We have increased the level of overall resources for Action Service conflict prevention team and we are conflict prevention in the tri-Departmental Conflict ensuring conflict prevention features in EU budget Pool and are aligning the pool’s approach more towards negotiations. We are also engaging with a broader upstream conflict prevention. I intend to place before range of partners, including Brazil and South Africa. the House details of proposed conflict resources The BSOS has enabled the UK to remain at the heart allocations, through the Conflict Pool, for financial of international thinking on conflict prevention. The years 2012-13-2014-15 once the National Security Council London conference on Somalia in February was a has endorsed them. good example of the way UK leadership can reinvigorate Our aim is to ensure a clear fit between Conflict and galvanise international efforts. Pool allocations and the Government’s highest conflict and We recognise that Government do not have all the stability priorities. We have increased Conflict Pool answers and therefore we are seeking deliberately wider funding for the Middle East and North Africa region, views beyond Whitehall to provide challenge and to aligning our work closely with that of our Arab ensure we access, reflect on and assimilate latest thinking. Partnership initiative which supports Arab-led efforts We have used the positive reaction to the publication to build more open, prosperous and stable societies. of BSOS from NGOs and academics specialising in We are increasing our support to Somalia and Pakistan, conflict to develop relationships further through joint while continuing important commitments to the Balkans, initiatives. the Caucasus and to the UK’s peacekeeping presence The BSOS recognised the need to include the protection in Cyprus. Within the Conflict Pool, we have also of women and children. I informed the House of the created a new £20 million early action facility (EAF) Government’s new initiative to tackle sexual violence to provide rapid funding for unforeseen crises or to in conflict on 12 June including the establishment of a address new opportunities for conflict prevention. The new team of experts and an international diplomatic facility has already been used to support work on campaign during our G8 presidency in 2013. As well Syria. as directly supporting and undertaking investigations, For the first time, we have made Conflict Pool this team will support upstream interventions by providing allocations across more than one financial year, increasing training to national authorities to strengthen their our ability to plan ahead, deliver better value for domestic response to rape and other crimes of sexual money and improve the impact of our work. We are violence. In post-conflict scenarios, holding those strengthening the Conflict Pool’s focus on achieving responsible for appalling crimes of sexual violence results.Ourreformprogrammewilldrawonrecommendations and removing the sense of impunity will contribute to from independent reviews this year by the National the peace building process. Audit Office and the Independent Commission for Aid The new approach outlined in the Building Stability Impact. Overseas Strategy is already beginning to have real We commissioned an internal review of the tri- impact on way the UK tackles conflict and instability departmental Stabilisation Unit. The review concluded overseas. We have the tools in place and are now that there continues to be a clear need for the Stabilisation working on implementation. Addressing instability Unit. It will remain an important tool to help integrate and conflict overseas is a sound investment in both the Government’s approach to conflict and to help our national interest and a better future for all. build more stable states. We are working to implement the recommendations of the review, including strengthening the leadership of the unit and its oversight Pensions by our three departments, moving the unit to a new Statements location and driving value for money and efficiency changes (including headcount reductions). The Minister of State, Ministry of Justice (Lord Our development programme continues to prevent McNally): My right honourable friend the Lord conflict upstream, supporting countries to make that Chancellor and Secretary of State for Justice (Kenneth vital transition towards a peaceful, stable and lasting Clarke) has made the following Written Ministerial future. Three-quarters of the Department for International Statement. Development’s (DfID) focus countries are fragile and On 5 July the Chief Secretary to the Treasury conflict affected states. DfID is on track to direct 30% confirmed to the House that the Government will be of UK official development assistance (ODA) to such taking forward legislation to introduce changes to countries by 2014-15. In 2011-12 UK Aid investments pension schemes for the NHS, teachers and civil servants. supported freer and fairer elections in four countries, I have been considering the necessary reforms of helped 300,000 women to access justice through the the judicial pension scheme (JPS) in line with these courts, police and legal assistance and helped over wider public service pension reforms. The JPS is a 16 million people hold their authorities to account. critical element of the remuneration offered to the The UK can achieve a much greater impact to judiciary. Nevertheless we must ensure that the pensions building stability and preventing conflict around the provided are fair, sustainable and affordable. Accordingly, world when we work with others. We are well placed to I have written to the heads of jurisdiction today setting do so, exploiting the UK’s established roles and networks out my proposals that will ensure that the pension at the UN, within the EU, NATO and other multilateral provision for judges compares fairly with that offered fora and with our traditional partners. We are working to others in the public service. They also meet Government with the UN’s Department for Political Affairs to expectations for reform. This will be discussed with improve its capacity for conflict prevention. We have the judiciary over the summer and I will come back to provided UK secondees to the European External the House further on the final detail. WS 41 Written Statements[LORDS] Written Statements WS 42

The Parliamentary Under-Secretary of State, Department I can now report to the House that the Local for Work and Pensions (Lord Freud): My honourable Government Association and local government trade friend the Minister for Pensions (Steve Webb) has unions have begun informal consultations with their made the following Written Ministerial Statement. respective memberships on new design proposals for Later today I will be publishing the command the scheme to be in place by 2014, within the 19.5% paper Government Response to the Consultation: Improving cost ceiling agreed by the Government. A favourable Transfers and Dealing with Small Pension Pots, Cm8402, outcome will be followed by a statutory, national along with an associated impact assessment. consultation by the Government in the autumn. From this month, the first savers will start to be Details of the proposals are contained in a joint automatically enrolled into workplace pension statement issued by the local government trade unions schemes. This will help many people to start saving, and the Local Government Association which can be or save more into a pension. But bringing more found at www.lgps.org.uk. A copy of the Statement people into pension saving will increase the numbers has been placed in the Library of the House of small dormant pots, which are created as people move jobs. Our updated figures, set out in the impact assessment, suggest that around 50 million dormant pots will be created by 2050 if no changes are made to the current Prisons: Capacity Management transfers system. This could significantly undermine Statement the Government’s commitment to encourage pension saving if people lose track of their pots, and so miss out on valuable retirement income We need to reduce the number of small dormant The Minister of State, Ministry of Justice (Lord pension pots in the system, making it easier for people McNally): My right honourable friend the Lord to keep track of their savings. This will also reduce Chancellor and Secretary of State for Justice (Kenneth administrative burdens for providers, supporting low Clarke) has made the following Written Ministerial cost pension provision. We issued a consultation document Statement. in December 2011 which set out ways to deal with a The Government are determined to provide a fit for proliferation of small pots, ranging from small changes purpose modern custodial estate that can deliver high to the current system to encourage transfers, to automatic quality, cost-effective and secure regimes that protect transfers of small pension pots. I am grateful to all the public and reform prisoners. While the prison those individuals and organisations who provided population temporarily rose as a result of last summer’s responses and participated in our workshops. civil disturbances, since April it has resumed falling. The overwhelming response to the consultation was New modern prison places in the private estate at that the small pots issue urgently needs to be resolved. HMP Oakwood and HMP Thameside have begun to The vast majority of our respondents agreed that an come on stream so that we now have an opportunity automated transfer system is the best way forward. to close some of our more expensive and superfluous Creating a system in which small pots follow people prison places. through employment is the preferred approach among I am therefore announcing the closure of HMP savers, according to a recent survey by the Association Wellingborough which will see a reduction of 588 prison of British Insurers. The Government’s analysis indicates places. that this option will achieve the most consolidation and generate the most administrative savings in the On Friday 13 July the gap between the prison long run. We have outlined our preference for this population and our useable capacity stood at three approach in the command paper, ahead of essential and a half thousand places. The prison estate in work with all interested parties to firm up the policy England and Wales has not operated with this degree and design an implementation strategy. of headroom since early 2011 and there is more unused capacity in the prison estate now than there was before I will place a copy of the impact assessment in the the announcement in July last year to close HMPs House Library. Latchmere House and Brockhill, or prior to the serious The Parliamentary Under-Secretary of State, Department public disorder in August 2011. for Communities and Local Government (Baroness Hanham): Capacity continues to grow with the number of My honourable friend the Parliamentary Under-Secretary available prison places planned to reach 91,600 by the of State for Communities and Local Government (Bob end of the year. This will ensure that our operational Neill) has made the following Written Ministerial Statement. capacity continues to take account of prison population My right honourable friend, the Secretary of State projections in a way which meets the need both for for Communities and Local Government, made a greater efficiency and ability to support a strengthened Statement to the House on 20 December 2011 setting focus on protection of the public and rehabilitation. out principles to govern the reform of the Local The closure of these places will provide estimated Government Pension Scheme agreed between the Local cost savings of over £10 million in annual running Government Association and local government trade costs and avoid significant capital costs on refurbishment unions. These reforms are designed to ensure the of up to £50 million in the next few years. We would scheme is sustainable and affordable in the long-term, expect to be able to absorb most staff displaced by this whilst at the same time being fair to both scheme process elsewhere in the system and to avoid the use of members and local taxpayers. compulsory redundancies wherever possible. WS 43 Written Statements[17 JULY 2012] Written Statements WS 44

Railways: Red Tape Challenge Special Advisers Statement Statement

Earl Attlee: My right honourable friend the Minister of State for Transport (Theresa Villiers) has made the The Chancellor of the Duchy of Lancaster (Lord following Ministerial Statement. Strathclyde): My right honourable friend the Prime Last November,the Department for Transport launched Minister has made the following Statement. the rail transport theme of the Red Tape Challenge—part Listed below are the names of the special advisers of the Cabinet Office’s project to review all of the in post at 17 July 2012, including each special adviser’s outstanding regulations currently on the statute book. pay band, and actual salary where this is £58,200 or Following a rigorous process of challenge, stakeholder higher, together with details of the special advisers’ discussion and public consultation, I am now pleased pay ranges for 2012-13. to be able to announce the results. The paybill for the period 2011-12 was £6.2 million1. The department put forward every secondary regulation This compares to £6.8 million for the period 2009-10 relating to rail transportation for public discussion (excluding severance payments made at the general under the rail transport Red Tape Challenge. 198 of election to special advisers in the last Administration). these were judged still to be live with a further 23 being Salary if identified as already “lapsed or spent”. Of these 221, I Appointing Special Adviser £58,200 or propose to scrap, merge, simplify, amend or improve Minister in Post Payband higher (£) 88 (40% cent). The Prime Andrew Cooper Within scheme 140,000 The detailed breakdown I propose is: Minister ceiling Craig Oliver Within scheme 140,000 Keep Improve Scrap Moved* ceiling Edward Within scheme 125,000 Number 129 28 60 4 Llewellyn ceiling Percentage 58% 13% 27% 2% Kate Fall PB4 100,000 * Moved regulations predominantly relate to another red tape Julian Glover PB3 83,000 theme and will be resolved in a different part of the challenge. Gabby Bertin PB3 80,000 Liz Sugg PB3 80,000 Patrick Rock PB3 78,000 Amongst the measures being pursued, we intend to: Andrew Dunlop PB3 74,000 harmonise and simplify the process for obtaining an operating licence; Rohan Silva PB2 69,266 Ameet Gill PB2 67,000 reduce regulatory burdens and costs on historic cableways; Michael Salter PB2 65,000 Ramsay Jones PB2 65,000 merge a number of instruments to make regulations easier to understand; and Claire Foges PB2 63,000 remove a significant number of lapsed or redundant Alan Sendorek PB2 60,000 instruments. Shaun Bailey PB2 60,000 The full list of regulations, including further Laura Trott PB2 60,000 information on the actions we are intending to take, is Isabel PB2 available on the department’s website at www.dft.gov.uk/ Spearman (p/t) Alex Dawson PB1 consultations/gov-20111110. Deputy Prime Jonny Oates PB4 98,500 Overall, this represents an important step forward Minister in removing unnecessary regulatory burdens. Some Neil Sherlock PB3 80,000 elements of this programme will mark a major shift in Joanne Foster PB2 65,000 the way the department does business. James McGrory PB1 The outcomes also need to be viewed against the No. 10 Advisers backdrop of the Government’s wider efforts to put an Julian Astle2 PB3 80,000 end to the micro-management that occurred under the last Government in relation to matters such as franchise Oily Grender3 PB3 80,000 management. Both our franchise reform programme Sean Kemp PB2 60,000 and our Command Paper Reforming Our Railways: Tim Colbourne PB1 Putting the Customer First seek to transfer more decisions Departmental from Whitehall to the professionals who run our railways advisers as part of our efforts to deliver a more financially Bridget Harris4 PB2 69,266 sustainable and customer-focused railway. Veena Hudson5 PB2 65,000 The department is already implementing the John Foster6 PB1 results of the roads transport Red Tape Challenge (see Matt Sanders7 PB1 www.dft.gov.uk/consultations/gov-20110520) and aviation Verity Harding8 PB1 transportation, the final transport theme, is now open Monica Allen9 PB1 for public comment until 26 July. WS 45 Written Statements[LORDS] Written Statements WS 46

Salary if Salary if Appointing Special Adviser £58,200 or Appointing Special Adviser £58,200 or Minister in Post Payband higher (£) Minister in Post Payband higher (£)

First Secretary Arminka Helic PB3 70,000 Richard Parr PB1 of State, Secretary of Secretary of Jonathan Caine PB2 69,266 State for State for Foreign and Northern Commonwealth Ireland Affairs Secretary of Euan Roddin PB2 60,000 Chloe Dalton PB2 64,500 State for Scotland Denzil PB2 Secretary of Richard PB2 Davidson State for Wales Hazlewood Chancellor of Ramesh PB2 60,000 Secretary of Sue Beeby PB2 10 the Exchequer Chhabra State for ° Poppy Mitchell- PB1 Culture, Media, Rose the Olympics Lord David Hass PB2 69,266 and Sport Chancellor and Guy Levin PB1 Secretary of State for Justice Chief Secretary Julia PB3 74,000 Goldsworthy Kathryn Laing PB1 Will de Peyer PB2 63,000 Secretary of Fiona PB2 65,000 Minister Naweed Khan PBO State for the Cunningham without Home Portfolio Department and Minister for Leader of the James Marshall PB2 Women and House of Lords, Equality and Chancellor of the Duchy of Nick Timothy PB2 65,000 Lancaster Secretary of Hayden Allan PB2 Elizabeth PB1 State for Plummer Defence Flora Coleman PB0 Secretary of Emily Walch PB2 60,000 State for Minister for the Henry Newman PB2 Business, Cabinet Office, Innovation and Paymaster Skills General Giles Wilkes PB1 Simone Finn PB2 (p/t) Secretary of Philippa Stroud PB2 69,250 Minister of Martha Varney PB1 State for Work State, Cabinet and Pensions Office Lisa Hunter PB1 Minister of Nick Hillman PB2 Secretary of Chris Nicholson PB3 80,000 State State for Energy (Universities and Climate and Science), Change BIS Leader of the Robert Riddell PB2 Katie Waring PB2 House of Secretary of Bill Morgan PB3 76,000 Commons and State for Health Lord Privy Seal Paul PB3 68,000 Chief Whip Ben Williams PB2 68,000 Stephenson (Commons) Secretary of Dominic PB2 69,266 Chris White PB2 State for Cummings Education 1 Includes salary, severance pay and pension contributions Henry de Zoete PB2 2 Maternity leave cover for Polly Mackenzie

Secretary of Giles PB2 64,500 3 State for Local Kenningham Maternity leave cover for Lena Pietsch Government 4 Covering work in the House of Lords Sheridan PB2 64,500 Westlake 5 Covering work in the Department for Communities and Local Secretary of Graham Hook PB2 65,000 Government, Department for Transport and the Department for State for the Environment, Food and Rural Affairs. Transport 6 Covering work in the Department of Health and Department Victoria PB2 for Work and Pensions. Covering work in the Cabinet Office, Crawford Department for Education and the Department for Culture, Secretary of Amy Fisher PB2 60,000 Media and Sport. State for Environment 8 Covering work in the Home Office and Ministry of Justice. and Rural Affairs 9 Covering work in the Ministry of Defence, Foreign and Simon Cawte PB2 Commonwealth Office and the Department for International Development. Secretary of Philippa PB1 State for Buckley 10 In addition, the Chancellor of the Exchequer has appointed International Rupert Harrison (PB3, £80,000), and Eleanor Shawcross (PB2) Development to the Council of Economic Advisers. WS 47 Written Statements[17 JULY 2012] Written Statements WS 48

Special Adviser Pay Bands for 2012-13 on tax policy development. Any changes to the dates The pay bands and pay ranges for special advisers mentioned above will be publicised on the tax consultation for 2012-13 are as follows: tracker. Scheme Ceiling £142,668 Pay Band 4 £88,966 - £106,864 Vehicles: Vehicle Identity Checks Statement Pay Band 3 and Premium £66,512 £103,263 Pay Band 2 £52,215-£69,266 Earl Attlee: My honourable friend the Parliamentary Pay Band 1 £40,352-£54,121 Under-Secretary of State for Transport (Mike Penning) Pay Band 0 up to £40,352 has made the following Ministerial Statement. The department has today published a consultation paper on the future of the Vehicle Identity Check Taxation (VIC) Scheme. Statement The purpose of the VIC scheme is to deter the crime of vehicle ringing. Typically, this involves the The Commercial Secretary to the Treasury (Lord theft of a car often of significant value, which is then Sassoon): My honourable friend the Exchequer Secretary given the identity of a similar car (make, model, to the Treasury (David Gauke) has today made the colour etc) which has been the subject of an insurance following Written Ministerial Statement. write-off. The written-off car is obtained cheaply; its Budget 2012 announced a number of tax policy identity (VIN and registration numbers) is then transferred changes that will be subject to consultation. HM to a higher value stolen car which, now apparently Revenue and Customs is today publishing the following genuine, can be sold at market price. documents: Since the introduction of the VIC scheme in April 2003, High-risk areas of the Tax Code: the stamp duty land around 717,000 checks have been undertaken and 38 tax (SDLT) “transfer of rights” or “subsale” rules confirmed “ringers” detected, at a cost of around £30 —a consultation on broad options to address SDLT million to the motorist. About 75% of the checks were subsales avoidance. undertaken on cars which were seven years or older, written-off because the cost of even small repairs was VAT Treatment of Small Cable-Based Transport—a greater than the very low market value of the vehicle, consultation on the introduction of a reduced rate of often meaning that the cost of the check fell on the less VAT for small cable-based transport. well-off members of society. The following consultations are due to be published Although it is felt that the scheme has become, during Summer Recess. unintentionally, an unnecessary burden to many honest Life Insurance Policies: Time Apportioned Reductions motorists, the police feel that it is still the only deterrent —a consultation on reform to time apportionment to “ringers”. The scheme also enables vehicle purchasers reductions reflecting a policyholder’s period of residence to be aware that the vehicle they are considering outside the UK. purchasing has previously been a write-off and confirms Foreign Currency Assets And Chargeable Gains—a that the vehicle identity has been checked and therefore consultation on whether to introduce a rule requiring provides some protection against purchasing a stolen companies with a non-sterling functional currency to vehicle. compute their capital gains and losses in their functional I intend to consult on whether to retain, re-scope or currency. abolish the scope of the VIC scheme in a move to Details of these and other planned consultations explore whether fewer vehicles can be checked in the are included in a consultation tracker, available from future in order to remove unnecessary burden on law- the HM Treasury website: http://www.hm-treasury.gov. abiding citizens, without jeopardising prevention of uk/tax_updates.htm. vehicle ringing. The tracker includes specific anticipated launch The consultation documents can be found on the dates wherever possible, to help representative groups department’s website. An electronic copy has been and others manage their engagement with the Government lodged with the House Library.

WA 21 Written Answers[17 JULY 2012] Written Answers WA 22

people will benefit from improved management of Written Answers shared water basins in Africa and we will help protect 39 million hectares of forest globally. Tuesday 17 July 2012 UK support is currently delivered through a wide variety of partners, including non-governmental Afghanistan organisations, partner country Governments and Question multilateral organisations such as the UN. The UK Government also influence the rest of the international Asked by Lord Hylton community to secure ambitious actions at a global level. To ask Her Majesty’s Government whether they will use the international aid conference for Afghanistan The UK will continue supporting such programmes. on 8 July to recommend the reservation of specific We will build on approaches that we know to be sums of international aid for (1) protecting the civic successful. We will look hard at the evidence and the rights of women and girls, (2) extending and improving effectiveness of what we and others are doing to their education and training, and (3) for providing achieve better results and value for money for poor micro-finance for women’s businesses. [HL1361] men, women and children. This will continue, where appropriate, to include work through non-governmental organisations. Baroness Northover: The international community must make long-term development commitments at Tokyo to secure Afghanistan’s future. Once the level of international finance and the Government of Bahrain Afghanistan’s reform commitments have been agreed, the UK, along with our Afghan and international Question partners, will review how resources can best be prioritised Asked by Lord Patten for the good of the Afghan people. Last weekend the Secretary of State for International Development To ask Her Majesty’s Government, further to announced that the UK will maintain its current funding the Written Answer by Lord Howell of Guildford levels of £178 million per year for the next five years. on1May(WA 438), what evidence they currently The UK is already working closely with the have of Dr Al Singace’s medical treatment.[HL1536] Afghan Government and Afghan civil society to secure progress on women’s rights, by educating girls, by helping 8,000 of the poorest women into jobs and by The Minister of State, Foreign and Commonwealth working with groups dedicated to protecting women. Office (Lord Howell of Guildford): Dr Al Singace At last weekend’s Tokyo conference, the Secretary of remains in detention as his case is being retried in the State for International Development met Afghan women Bahraini civilian courts. A member of staff from our civil society representatives to hear first-hand how the embassy regularly attends the hearings and we continue UK can best support women’s rights in the years to raise with the authorities their international obligations ahead. The UK also worked hard to ensure the conference to ensure all citizens can exercise the universal human outcomes incorporated strong language on the protection rights and freedoms to which they are entitled, including of women’s rights, including implementation of the our expectation that they have full access to any medical law on violence against women. care and treatment that is required.

Africa: Conservation Question Banking Asked by The Earl of Sandwich Question Asked by Lord Myners To ask Her Majesty’s Government what are their priorities in supporting conservation protection To ask Her Majesty’s Government whether they programmes in Africa; whether they will maintain will ask Sir John Vickers and the Independent their support for these programmes; and to what Commission on Banking to produce a supplementary extent in doing this they will work through non- review of HM Treasury’s proposals to ring-fence governmental organisations. [HL1414] retail and investment banking. [HL1371]

Baroness Northover: The coalition Government’s priorities for environmental protection are to improve The Commercial Secretary to the Treasury (Lord management of water resources; give more protection Sassoon): The Government published their proposals to forests; secure food supplies; and help poor people on ring-fencing in the banking reform White Paper on protect their lives and livelihoods from the impacts of 14 June 2012. No supplementary reviews are planned climate change. In Africa, we are supporting this work but the White Paper is open for public consultation through programmes such as the International Climate and the Government welcome views from all interested Fund (ICF), civil society partnerships and the Darwin parties. The consultation will close on 6 September Initiative. For example, through the ICF, 15 million 2012. WA 23 Written Answers[LORDS] Written Answers WA 24

Banking: Chief Executives The Government have also has proposed the establishment of a full parliamentary committee of Question inquiry comprised of representatives from both the Asked by Lord Myners Commons and the Lords into professional standards in the financial services industry. Both Houses are in To ask Her Majesty’s Government whether the the process of establishing this inquiry, under the appointment of someone to the position of chief chairmanship of Andrew Tyrie, MP. executive officer of a bank requires the approval of 1 http://www.fsa.gov.uk/static/pubs/final/barclays-jun12.pdf. the Financial Services Authority; and, if so, when approval was given to the appointment of Mr Bob Diamond to this position at Barclays. [HL1290] Benefits Questions The Commercial Secretary to the Treasury (Lord Sassoon): This is a matter for the Financial Services Asked by Baroness Morgan of Drefelin Authority (FSA), whose day-to-day operations are independent from government control and influence. To ask Her Majesty’s Government, in the light This question has been passed on to the FSA, which of the introduction of employment and support will reply to the noble Lord by letter. A copy of the allowance (ESA) time-limiting, what progress they response will be placed in the Library of the House. have made with the commitment to introduce a light-touch assessment for ESA for cancer patients awaiting, undergoing and recovering from treatment Banking: LIBOR to ensure more cancer patients are placed in the Question support group; and when they hope to put these changes in place. [HL1592] Asked by Lord Myners To ask Her Majesty’s Government whether they The Parliamentary Under-Secretary of State, Department intend to investigate whether taxpayers have been for Work and Pensions (Lord Freud): Our informal disadvantaged by the manipulation of the London consultation on accounting for the effects of cancer Interbank Offered Rate for sterling, particularly as treatment in the work capability assessment (WCA) it applied to various forms of liquidity support and closed earlier this year. deposit guarantees given to banks. [HL1291] Having now analysed the responses received, we are currently working through the detail of our proposals. The Commercial Secretary to the Treasury (Lord Until we have done so it would be inappropriate to Sassoon): Following an investigation, the Financial make comment on any changes to the WCA. Services Authority (FSA) announced that it had found We will publish a consultation response later this that Barclays made inappropriate submissions to the summer which will outline our proposals. USD and JPY LIBOR as well as EURIBOR between January 2005 and May 2009. The FSA’s Final Notice1 Asked by Baroness Morgan of Drefelin describes attempts by Barclays staff to influence both LIBOR and EURIBOR. To ask Her Majesty’s Government whether they have made any assessment of how many cancer There were two types of attempted manipulation in patients have lost benefits, because of time-limiting relation to LIBOR. The first were attempts to manipulate of employment and support allowance. [HL1593] the rate up or down by individual traders, depending on their trading positions, between January 2005 and July 2008. The second were attempts by the bank Lord Freud: The information requested is not available. artificially to flatter its perceived creditworthiness, by artificially lowering its LIBOR submissions, between September 2007 and May 2009. Burma Barclays was fined £65 million for breaches of three Questions of the FSA’s principles for businesses. Investigations, Asked by Lord Alton of Liverpool by both the FSA and overseas regulators, into other banks’ activities are ongoing. To ask Her Majesty’s Government whether the The LIBOR and EURIBOR benchmarks are based Government of Burma is allowing full and free on submissions from a number of banks, some of access to local and international aid agencies to which are not used in the final calculation. assist internally displaced people in (1) Arakan State, This calculation method, combined with the fact and (2) Kachin State. [HL1330] that manipulation attempts were both to raise and lower LIBOR submissions artificially, makes any accurate Baroness Northover: We remain concerned about net calculation of the end effect on any end user of limitations to access for local and international aid interest rate products extremely difficult. agencies trying to provide aid to Arakan and Kachin, However, all issues relating to LIBOR will be examined and have raised this issue with the Government of in great detail. The Chancellor has announced an Burma. independent review of the regulation of LIBOR to be On 28 and 29 June 2012, a joint visit of government, headed by Martin Wheatley, CEO-designate of the international organisations and non-government new Financial Conduct Authority. organisations took place to Rakhine (Arakan) State. WA 25 Written Answers[17 JULY 2012] Written Answers WA 26

In Kachin State, UN relief convoys into non- Agriculture government controlled areas have restarted along pre- There is a wealth of multilateral agencies providing agreed humanitarian corridors. Security concerns in technical assistance and other forms of support, including areas where fighting continues have prevented access the Food and Agriculture Organisation (FAO), the to much of the state. International Fund for Agricultural Development (IFAD), Asked by Lord Alton of Liverpool the World Food Programme (WFP), the International Food Policy Research Institute (IFPRI) and the Alliance To ask Her Majesty’s Government how much for a Green Revolution in Africa (AGRA). aid funding they provided to internally displaced Education people in Burma in 2011–12; and how much they The World Bank is the largest external source of intend to provide in 2012–13. [HL1332] aid to education and generates high-quality policy products. Other important organisations that work on Baroness Northover: In 2011-12 DfID provided around education include the Global Partnership for Education £2.5 million in bilateral aid for basic healthcare, food (GPE). The United Nations Children’s Fund (UNICEF) security, improved sanitation and grants to help with and the United Nations Education, Scientific and the costs of schooling for internally displaced people Cultural Organisation (UNESCO). The Commonwealth in Burma. Projected figures for 2012-13 are under also has a separate intergovernmental organisation review. which supports education, the Commonwealth of Learning. Asked by Baroness Kinnock of Holyhead Health To ask Her Majesty’s Government how much The World Health Organisation (WHO) is the leading funding they have given to Myanmar Egress in agency in this field and provides a wide range of Burma in (1) 2010, and (2) 2011. [HL1352] support to developing countries. This is also an area where foundations play a major role, including the Gates Foundation, which has deployed more than Baroness Northover: In financial year 2010-11 around US$15 billion over the past 18 years. £22,000 was provided by DfID for Egress to support training for the design, implementation and evaluation With its limited resources, the Commonwealth of projects for NGOs and individuals involved in Secretariat adds little value to the work of these development in Burma. organisations. We believe the secretariat should focus its work on other areas where it can make a bigger DfID did not receive any subsequent requests for difference, as the Secretary-General has proposed. funding from Egress and therefore no funding was provided to Egress in the financial year 2011-12. Asked by Baroness Kinnock of Holyhead Courts: Fines Questions To ask Her Majesty’s Government whether they have discussed with other European Union member Asked by Lord Touhig states the reduction of funding for refugees living To ask Her Majesty’s Government what assessment on the Thai-Burmese border. [HL1353] they have made of the impact of proposed charges to recover the costs of collecting fines from offenders Baroness Northover: DfID staff frequently discuss on the number of appeals to magistrates’ courts. support for refugees living on the Thai-Burmese border [HL1458] with EU counterparts as well as with other donors. To ask Her Majesty’s Government what assessment DfID has consistently supported the need to ensure they have made of the impact of proposed charges sufficient support for refugees living on the Thai-Burmese to recover the costs of collecting fines from offenders border. on the ability of offenders in (1) social housing, and (2) privately rented accommodation, to meet rent payments. [HL1459] Commonwealth To ask Her Majesty’s Government what assessment Question they have made of the impact on child poverty Asked by Lord Judd levels of proposed charges to recover the costs of collecting fines from offenders. [HL1460] To ask Her Majesty’s Government, further to To ask Her Majesty’s Government what discussions the Written Answer by Baroness Northover on have been held by the Ministry of Justice with 5July(WA186), which organisations offer comparative (1) the Department for Work and Pensions, (2) the advantage to the specific work of the Commonwealth Department for Education, and (3) the Office of in the spheres of agriculture, health and education; the Children’s Commissioner, regarding the impact and why they necessarily do. [HL1483] on dependent children of proposed charges to recover the costs of collecting fines from offenders.[HL1461] Baroness Northover: In each of these three areas there are organisations which are well-placed to provide The Minister of State, Ministry of Justice (Lord the support which the Commonwealth’s developing McNally): An impact assessment on the provisions in country members require. To take each in turn: Clause 20 of the Crime and Courts Bill has been published WA 27 Written Answers[LORDS] Written Answers WA 28 alongside the Bill and is available at: http://www. The Minister of State, Home Office (Lord Henley): homeoffice.gov.uk/publications/about-us/legislation/ The Government keep the tools and powers available crime-courts-part2/. An equality impact assessment to tackle fraud under review and are determined to has also been made with regards to provisions in strengthen the approach to tackling fraud. As part of Clause 20. the work in this area, the Government launched a Fines are a criminal sentence which is means-tested consultation on 17 May 2012 on the possible introduction by the court against the person’s circumstances. It is in of deferred prosecution agreements. This consultation the interests of that person to provide details of their can be found at: https://consult.justice.gov.uk/digital- circumstances prior to sentencing including whether communications/deferred-prosecution-greements. they are in receipt of benefits, social housing and The Government will publish their response to this whether they have any dependants. That will allow the consultation in the autumn. court to set the fine at a level that is manageable as well as reflecting the seriousness of their crime. Without any information the fine will be based on an assumed Dogs: Puppy Farming weekly income and is likely to be set much higher. Questions If a person pays as ordered by the court that person will not be subject to any collection costs. If offenders, Asked by The Countess of Mar particularly those who could be considered vulnerable, find themselves in hardship, it is vitally important that To ask Her Majesty’s Government what are the they contact the court before going into default. current controls on puppy farming; and what course of action is available to a member of the public who We do not believe it is appropriate to means-test encounters a third party selling puppies that appear collection costs. The costs will be set at a level that to originate from a puppy farm. [HL1527] is proportionate to actual cost of collection and administration. To ask Her Majesty’s Government whether they Asked by Lord Touhig will legislate to ban the sale of puppies by third parties; and, if so, when. [HL1528] To ask Her Majesty’s Government what information the Ministry of Justice holds on the primary reasons The Parliamentary Under-Secretary of State, Department for offenders failing to meet payment plans for fines for Environment, Food and Rural Affairs (Lord Taylor imposed in (1) 2008–09, (2) 2009–10, (3) 2010–11, of Holbeach): The Breeding of Dogs Act 1973 requires and (4) 2011–12. [HL1462] dog breeders who carry out a certain level of dog Lord McNally: Her Majesty’s Courts and Tribunals breeding activity to be registered with their local authority. Service does not collect detailed offender profile It is an offence punishable by three months’ imprisonment information which shows the reasons why offenders or a £1,000 fine not to be registered. fail to comply with their payment plans for fines. The Breeding and Sale of Dogs (Welfare) Act 1999 The Government take the issue of fine enforcement and the Animal Welfare Act 2006 provide robust very seriously and Her Majesty’s Courts and Tribunals powers to prevent puppies being bred and kept in Service is working to ensure that clamping down on conditions that fail to take account of their welfare tine dodgers is a continued priority nationwide. needs. The courts may impose sentences of up to six months’ imprisonment and fines of up to £20,000. A The Courts Act 2003 sets out the specific criteria member of the public who believes that these Acts are under which an offender may apply to the fines officer being breached should report their concerns to their for a variation of their payment terms or volunteer for local authority or to the RSPCA. an attachment of earnings order or a deduction from benefit order. However, such an application may not The Government have no plans to ban the sale of be made unless: puppies by third parties. there has been a material change in the offender’s circumstances since the collection order was made, or since the fines officer last used these powers to Elderly People: Accommodation vary; or Question if the offender has provided more information about Asked by Lord Taylor of Warwick their circumstances (ie information that was not available to the court when the original payment To ask Her Majesty’s Government what plans terms were set). they have to provide more independent accommodation for vulnerable elderly people. [HL1432] Crime: Fraud Question The Parliamentary Under-Secretary of State, Department Asked by Lord Morris of Aberavon for Communities and Local Government (Baroness Hanham): This Government are investing £4.5 billion over the To ask Her Majesty’s Government whether they spending review period to deliver 170,000 affordable have plans to amend current legislation to allow homes by 2015 for rent and affordable home ownership. them more easily to prosecute those alleged to have This investment will lever in £15 billion of private committed fraud and conspired to commit fraud. sector investment, a total of £19.5 billion invested in [HL1295] new affordable housing. WA 29 Written Answers[17 JULY 2012] Written Answers WA 30

Nine per cent of homes provided under the Affordable as the number of cases in this sector increases. In Housing Programme will be for supported housing. addition, the Health and Social Care Act 2012 (Section This is broadly comparable to delivery in the previous 79(4)) requires Monitor and the OFT to co-operate programme. during the assessment of merger cases. For example, In addition, this Government will inject £200 million Monitor must provide the OFT with advice on the into the supported housing market over the next five effect of the matter under investigation on benefits for years to help build an estimated 6,000 new homes for people who use healthcare services provided for the older people and younger disabled adults. purposes of the NHS and such other matters relating to the matter under investigation. Additionally there The National Planning Policy Framework, published have been a number of OFT secondments to Monitor, in March 2012, sets out that local planning authorities the Co-operation and Competition Panel for NHS should plan for a mix of housing based on current and services and the Department of Health, building OFT future demographic trends, market trends and the expertise in the health sector. needs of different groups in the community, such as older people. Market Studies The OFT has also conducted market studies which Elections: Voting System consider the interest of NHS patients and patients in Question general. Asked by Baroness Boothroyd In May this year, the OFT published a market study into the £5.73 billion UK dentistry market. This made To ask Her Majesty’s Government what is the a number of recommendations, which the OFT identified final cost to public funds of the referendum on as in the interests of NHS patients, including in relation the alternative vote, including central government to the provision of clear, accurate and timely information costs, local authority costs met by the consolidated for patients, direct patient access to dental care fund, and costs met by the Electoral Commission. professionals and reform of the NHS dental contract [HL1543] in England. Lord Wallace of Saltaire: The Electoral Commission’s In April this year, the OFT referred the market for latest estimate for the total cost of the referendum private healthcare to the Competition Commission. on the voting system is £74,670,000. The final figure The OFT’s market study established reasonable grounds will be published in a report which the commission will that private patients and their GPs face difficulties produce this autumn. selecting private healthcare providers on the basis of A breakdown of latest estimated costs for each of quality or value for money, and this may ultimately the elements of the poll is set out in the table below: result in patients paying higher prices or receiving lower-quality care. Category Actual cost (or latest estimate) In September last year the OFT published conclusions Fee and expense payments to £58,228,000 of its mobility aids market study. The study concluded counting officers that elderly and vulnerable consumers were not being Campaign mailings by the £8,530,000 treated fairly by traders, that consumers could not designated lead campaign groups access or act on information easily and that competition Electoral Commission activities £7,912,000 in the wheelchair sector was not working well for consumers. It undertook enforcement action against a number of firms and made recommendations to the Enterprise Act 2002 NHS supply chain and to the community of individual public sector purchasing bodies across the UK, with Question a view to increasing their ability to drive vigorous Asked by Lord Hunt of Kings Heath competition in the wheelchair sector. To ask Her Majesty’s Government what expertise Furthermore, an evaluation of the liberalisation the Office of Fair Trading has to make judgments of retail pharmacy services in the UK, following about what is in the best interests of NHS patients recommendations in an OFT market study, identified under the Enterprise Act 2002. [HL1272] shortened travel times and waiting times and improved access to lower-priced over-the-counter medicines, The Parliamentary Under-Secretary of State, Department extended opening hours and greater choice for patients. for Business, Innovation and Skills (Baroness Wilcox): The OFT has also gained additional experience of The OFT has a number of powers under the Enterprise the pharmaceutical sector and NHS procurement Act 2002 (EA02) where it is required to consider the processes in its proceedings against Reckitt Benckiser interests of consumers who may include NHS patients. under the Competition Act 1998. In April 2011, the Merger Control OFT announced its decision that Reckitt Benckiser The OFT already has expertise in handling cases in had infringed UK and European competition law in the healthcare sector (such as those involving private the market for the NHS supply of alginate and hospitals or dental practices with a substantial proportion antacid heartburn medicines and imposed a penalty of of NHS patients). It expects to enhance this expertise £10.2 million on it. WA 31 Written Answers[LORDS] Written Answers WA 32

Enterprise Zones The following is a breakdown of reported cases from 2009 to 2012 arising from the Bangladeshi community Question in the United Kingdom: Asked by Lord Kinnock (1) in 2009, a total of 168 reports relating to possible forced marriage were received by the FMU; To ask Her Majesty’s Government what time elapsed between the establishment of enterprise (2) in 2010, a total of 179 reports relating to zones in Liverpool, Sheffield, Tees Valley, Humber, possible forced marriage were received by the FMU; Black Country and North East England and Deeside (3) in 2011, a total of 114 reports relating to in North Wales and HM Treasury’s agreement to possible forced marriage were received by the FMU; designate sites within those zones as areas in which and enhanced 100% capital allowances are available. (4) in 2012, to date, a total of 55 reports relating to [HL1411] possible forced marriage were received by the FMU.

The Commercial Secretary to the Treasury (Lord Sassoon): The Liverpool, Sheffield, Tees Valley, North Government Departments: 08 Telephone East and Black Country enterprise zones were announced Numbers in Budget 2011; the Humber Renewable Energy Super Cluster zone on 17 August 2011 and the Humber Question Green Port Corridor zone at Autumn Statement 2011. Asked by Lord Laird The Deeside zone was announced by the Welsh Government in January 2012. To ask Her Majesty’s Government whether they Agreement to designate sites within zones as eligible have plans to cease using telephone numbers with for 100% capital allowances was announced at the the 08 code within government departments and Autumn Statement 2011 for all zones, apart from in associated agencies. [HL1266] the Humber Green Port Corridor and Deeside zones, which were announced at Budget 2012. Lord Wallace of Saltaire: Each department is responsible for their approach to the use of non-geographic Fluoridation telephone numbers and as such no central decision has been taken on plans to cease their use. Question Asked by Earl Baldwin of Bewdley Government Departments: Service Users To ask Her Majesty’s Government, further to the Written Answers by Earl Howe on 27 February Question (WA253),1May(WA448–9) and 25 June (WA16–7), Asked by Lord Stoddart of Swindon whether they will specify the statistically significant results that were reported by researchers at Newcastle To ask Her Majesty’s Government whether the University into the bioavailability of fluoride in policy advocated by the Prime Minister in his speech drinking water in 2004. [HL1389] on 25 June that recipients of welfare benefits should be described as claimants and not customers will be The Parliamentary Under-Secretary of State, Department applied to the National Health Service and HM of Health (Earl Howe): The results of the study were Revenue and Customs, and users described as patients summarised by the principal researchers in the article and taxpayers respectively. [HL1313] “Bioavailability of Fluoride in Drinking Water: a Human Journal Experimental Study”, which was published in the The Parliamentary Under-Secretary of State, Department of Dental Research volume 84(11): 989-993, 2005. A for Work and Pensions (Lord Freud): The word “claimants” copy of this article has been placed in the Library. more accurately describes how certain categories of service users interact with the Department for Work Forced Marriage and Pensions. It is for individual departments and agencies to make decisions about their service users. Question Asked by Baroness Uddin To ask Her Majesty’s Government how many Government: Air Travel cases dealt with by the Foreign and Commonwealth Questions Office’s Forced Marriage Unit arose from the Asked by Lord Ashcroft Bangladeshi community in the United Kingdom in (1) 2009, (2) 2010, (3) 2011, and (4) 2012 to date. To ask Her Majesty’s Government, further to [HL1226] the Written Answer by Lord Strathclyde on 5 July (WA 192), what are the names of all those who The Minister of State, Home Office (Lord Henley): travelled on the chartered aircraft with the Prime The Forced Marriage Unit (FMU) captures information Minister to the United States on 13 March, other about contacts, requests for advice and assistance in than the aircraft staff, any individuals who will be relation to possible cases of forced marriage. named in the quarterly publication of ministerial WA 33 Written Answers[17 JULY 2012] Written Answers WA 34

overseas travel details, members of the political otherwise retaining healthcare professionals to advise office that accompanied the Prime Minister, and the CCG on commissioning decisions for certain services, journalists whose costs were met by the relevant or appointing professionals to any committee that the news organisations. [HL1424] CCG may set up to support commissioning decisions. It could also involve accessing advice from clinical To ask Her Majesty’s Government, further to senates and networks. the Written Answer by Lord Strathclyde on 5 July (WA 192), what are the names of the members of the political office and journalists referred to in the Health: Defibrillators Answer. [HL1425] Question To ask Her Majesty’s Government, further to the Written Answer by Lord Strathclyde on 5 July Asked by Lord Hunt of Kings Heath (WA 192), what was the cost charged to the news organisations and the Conservative Party in respect To ask Her Majesty’s Government whether they of journalists and members of political offices who will take action to ensure that defibrillators are travelled with the Prime Minister on a chartered installed in all schools, sports centres and other flight to the United States on 13 March. [HL1426] public buildings. [HL1532]

The Chancellor of the Duchy of Lancaster (Lord The Parliamentary Under-Secretary of State, Department Strathclyde): It has not been the practice under successive of Health (Earl Howe): The department is not responsible Administrations to name individuals accompanying for the provision of automatic external defibrillators Ministers on overseas visits. I refer the noble Lord to (AEDs). The National Defibrillator Programme, which the Answer I gave on 5 July 2012 (Official Report, is the responsibility of ambulance trusts and is col. WA 192). co-ordinated by the British Heart Foundation, installs AEDs where they are most needed. Health and Social Care Act 2012 Questions Health: Healthcare Workers Question Asked by Baroness Finlay of Llandaff Asked by Lord Willis of Knaresborough To ask Her Majesty’s Government, under the provisions of the Health and Social Care Act 2012, To ask Her Majesty’s Government what is their how the board of a clinical commissioning group latest estimate of the total number of people working will receive local secondary care expertise to inform in the healthcare system in England, broken down commissioning decision-making at a local level. by professional groups for whom registration is [HL1555] mandatory, and healthcare workers whose registration is voluntary. [HL1375] To ask Her Majesty’s Government whether, under the provisions of the Health and Social Care Act 2012, clinical commissioning groups will be required The Parliamentary Under-Secretary of State, Department to use local expertise in secondary care to inform of Health (Earl Howe): The total number of staff the commissioning of NHS services at the local employed by the National Health Service in England, level. [HL1562] including primary care, is 1,350,377 headcount and 1,148,844 full-time equivalents (FTE). For those professional groups for whom registration is mandatory, The Parliamentary Under-Secretary of State, Department the information collected is set out in the following of Health (Earl Howe): Each clinical commissioning table. This does not cover the private sector, voluntary group (CCG) must have a governing body, which will sector or those employed by local authorities. have the role of ensuring the CCG exercises its functions effectively, efficiently, economically and with good England as at September 2011 governance. Its membership must include at least one Headcount FTE secondary care specialist who should have no conflict of interest in relation to the CCG’s responsibilities. Regulated 640,281 564,516 For example, they should not be from a local provider. Professional Groups The role of the secondary care specialist is to provide All doctors and 143,836 134,713 an independent perspective, informed by their expertise dentists Qualified nursing, 370,327 319,919 and experience. They are likely to play an important midwifery and role in making sure that the CCG has effective systems health visiting staff in place for involving a range of healthcare professionals Radiographers 16,816 14,702 in decision-making. Speech and 7,528 6,024 The Health and Social Care Act 2012 places a duty language therapists on CCGs to obtain appropriate advice from a broad Arts, Music and 643 426 range of health and care professionals to enable them Drama therapists to discharge their functions effectively. This would Chiropodists/ 3,774 3,106 include those with expertise in local secondary care. podiatrists This could involve, for example, a CCG employing or Dieticians 4,236 3,610 WA 35 Written Answers[LORDS] Written Answers WA 36

England as at September 2011 The Parliamentary Under-Secretary of State, Department Headcount FTE of Health (Earl Howe): We have made no assessment of this study, which looks at mitochondrial function in Occupational 17,776 15,097 patients with chronic fatigue syndrome/myalgic therapists encephalomyelitis. Physiotherapists 22,030 18,586 Mitochondrial disease affects all organ systems and Biomedical 12,916 11,921 scientists mitochondrial dysfunction has been increasingly linked Clinical scientists 4,698 4,371 with a number of neurological conditions including Pharmacists and 16,026 14,250 stroke, seizures, ataxia, migraine and Parkinson’s disease. pharmacy There is also an association between mitochondrial technicians dysfunction and a number of retinal degenerations, Practitioner 8,307 6,877 including diabetic retinopathy, glaucoma and age-related psychologists macular degeneration, as well as in some cardiac Paramedics 11,368 10,914 conditions such as cardiomyopathy or conduction defects. Source: Health and Social Care Information Centre Annual The most common condition related to mitochondrial Workforce Census dysfunction in the endocrine system is diabetes and adult onset diabetes has been found to have a There are other staff within the annual workforce mitochondrial component. census who include both professional groups for whom registration is mandatory and unregistered staff. However, it is not possible to disaggregate the information from Health: Primary Care Practices the overarching staff groups. For example, general Question practice staff may include physiotherapists, chiropractors or osteopaths, who are registered, in addition to Asked by Lord Hunt of Kings Heath receptionists and secretaries, who are not. Therefore, To ask Her Majesty’s Government what plans the numbers reported in the table may not include all they have for the continued use of the General professional groups for whom registration is mandatory. Practice Outcome Standards Commissioning Tool. The department does not collect information relating [HL1454] to numbers of unregulated workers included on voluntary registers. The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): I refer the noble Lord to my Answer of 12 June 2012 (Official Report, col. WA 242). Health: Mental Health Question Asked by Lord Ouseley Horses Questions To ask Her Majesty’s Government how they involve Black Mental Health UK in seeking to Asked by Viscount Astor understand and tackle disproportionality as it affects To ask Her Majesty’s Government what measures black patients and mental health providers.[HL1383] are in place to monitor the performance of horse passport issuers. [HL1472] The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): Matilda MacAttram, director The Parliamentary Under-Secretary of State, Department of Black Mental Health UK, is a member of the for Environment, Food and Rural Affairs (Lord Taylor Ministerial Working Group on Equality in Mental of Holbeach): Horse passport issuing organisations Health, which is chaired by Paul Burstow MP, Minister (PIOs) are required to comply with written efficiency for Care Services. criteria which are supplied to all PIOs. Performance against these criteria is assessed through a programme of independent audits to assess efficiency. Health: Mitochondrial Disease Asked by Viscount Astor Question To ask Her Majesty’s Government how many Asked by The Countess of Mar horse passport issuers are required to carry out DNA testing prior to the issuing of a horse passport. To ask Her Majesty’s Government, further to [HL1473] the Written Answer by Earl Howe on 25 June (WA 22–3), what assessment they have made of the findings recently published in the International Lord Taylor of Holbeach: Horse passport issuing Journal of Clinical and Experimental Medicine on organisations (PIOs) must have a system in place to mitochondrial dysfunction; and whether mitochondrial verify the pedigree of registered equidae. There is no dysfunction occurs in any medical conditions obligation to carry out DNA testing in order to meet other than chronic fatigue syndrome or myalgic this requirement, but DNA testing is a commonly encephalomyelitis. [HL1336] used approach. WA 37 Written Answers[17 JULY 2012] Written Answers WA 38

Asked by Viscount Astor funding allocated to the named developers from the 2011-15 Affordable Homes Programme and expected To ask Her Majesty’s Government whether DNA outputs for affordable rent and low-cost home testing by horse passport issuers is required by ownership properties in London can be found on legislation, guidance or on an individual basis. the Homes and Communities Agency’s website at: www. [HL1474] homesandcommunities.co.uk/affordable-homes. Lord Taylor of Holbeach: DNA testing of horses in Asked by Baroness King of Bow order to establish pedigree is not required by legislation To ask Her Majesty’s Government what formula or guidance. DNA testing is widely used by recognised was used to determine the £14 million reduction in horse passport issuing organisations in order to meet the level of historic debt to be redeemed prior to the the requirement for them to have in place a system to introduction of housing revenue account self-financing verify the pedigree of registered equidae. in the London Borough of Tower Hamlets between Asked by Viscount Astor the consultation paper in 2010 and the final determination in 2012. [HL1589] To ask Her Majesty’s Government whether they recognise the Gypsy Cob pony as a breed. [HL1475] Baroness Hanham: The self-financing settlement Lord Taylor of Holbeach: Her Majesty’s Government was subject to a lengthy process of assessment and do not currently recognise the Gypsy Cob pony as a reassessment in close consultation with all stock-owning breed within the meaning of Commission Decision local authorities. The early figures were necessarily 92/353/EEC. indicative and as the process developed we made changes to the methodology, updated key data (such as stock Asked by Viscount Astor numbers and rent levels) and made adjustments regarding To ask Her Majesty’s Government whether they changing inflation rates. recognise the Gypsy Cob Society as holder of the We published several models between 2010 and the Gypsy Cob stud book. [HL1476] final determinations in 2012, alongside detailed commentaries, which showed and explained clearly Lord Taylor of Holbeach: The Gypsy Cob Society how and why each council’s valuation and settlement (also known as Gypsy Cob Society (2010) Ltd) is not a payment changed over time. These consultation recognised breed organisation or association under documents are on the department’s website. the terms of Commission Decision 92/353/EEC. As Asked by such, Her Majesty’s Government do not recognise the Baroness King of Bow Gypsy Cob Society as holder of the Gypsy Cob stud To ask Her Majesty’s Government what level of book. right-to-buy sales were assumed in the calculation Asked by Viscount Astor of the level of debt allocated to the London Borough of Tower Hamlets under housing revenue account To ask Her Majesty’s Government how many self-financing. [HL1590] organisations have had their horse passport issuing status removed since horse passports were introduced. [HL1477] Baroness Hanham: I attach the figures below, which were published on 1 February 2012 and can be Lord Taylor of Holbeach: Five horse passport issuing found on the department’s website at www.communities. organisations have had their recognition removed by gov.uk/publications/housing/ Defra. selffinancingdeterminations. Where right-to-buy sales are higher than predicted under self-financing (such as due to the recent increases Housing in discounts) then a proportion of the receipt may be Questions used by the council to pay off the debt related to the Asked by Baroness King of Bow additional sold properties. In other words, the local authority will always have sufficient income to service To ask Her Majesty’s Government how much debt. funding from the 2011–15 Affordable Homes Programme has been made available to (1) Circle Tower Hamlets—Forecast number of RTB sales in self-financing Anglia, (2) East Thames Housing Group, (3) Genesis 2012 13 2028 20 Housing Association, (4) Metropolitan Housing 2013 15 2029 20 Trust, (5) One Housing Group, and (6) Swan Housing 2014 17 2030 20 in London; and how many new (a) affordable rent properties, and (b) low-cost home ownership properties 2015 17 2031 20 2016 18 2032 21 will be built by each as a result. [HL1588] 2017 18 2033 21 2018 18 2034 21 The Parliamentary Under-Secretary of State, Department 2019 18 2035 21 for Communities and Local Government (Baroness Hanham): From 1 April 2012, the Mayor of London has had 2020 18 2036 21 oversight of strategic housing, regeneration and economic 2021 18 2037 22 development in London. Details of the amount of 2022 19 2038 22 WA 39 Written Answers[LORDS] Written Answers WA 40

Tower Hamlets—Forecast number of RTB sales in self-financing To ask Her Majesty’s Government whether they support the principle that district councils in areas 2023 19 2039 22 with a county council deliver services on a county-wide 2024 19 2040 22 basis with one delivery team across the county. 2025 19 2041 23 [HL1435] 2026 19 2042 23 To ask Her Majesty’s Government whether they 2027 20 have prevented any joint working or joint delivery arrangements organised by two or more local Asked by Baroness King of Bow authorities since 2010. [HL1436] To ask Her Majesty’s Government why they are The Parliamentary Under-Secretary of State, Department limiting the level of right-to-buy capital receipts for Communities and Local Government (Baroness Hanham): used in the development of new council housing to My department does not monitor individual local 30% of development costs; and whether they will authorities’ delivery arrangements, although we are allow local authorities to utilise general fund and keen to promote best practice. We are stopping the housing revenue account reserves to supplement top-down, micro-management of local government, that capital funding. [HL1591] such as by scrapping local area agreements and comprehensive area assessment. Baroness Hanham: For the first time, every additional We have not prevented any joint working or joint home sold under right to buy will be replaced by a new delivery arrangements since May 2010. Councils act home for affordable rent. We have limited the level of independently of central government. Indeed, the general right-to-buy capital receipts to 30% based on evidence power of competence introduced via the Localism Act from the 2011-15 Affordable Homes Programme. As should make it easier for councils to work together in the Affordable Homes Programme, the remainder and innovate. The Act also introduces a duty to co-operate of the cost will come from borrowing against the net in relation to the planning of sustainable development. rental income stream from the new property, and We are keen to promote joint working across all cross-subsidy from the landlord’s own resources. Under tiers of local government to help councils deliver the reinvigorated right-to-buy scheme, the right-to-buy sensible savings and improve front-line services; initiatives receipts effectively replace government grant and by such as city deals, community budgets, the growing restricting use of receipts to no more than 30% of places fund and the weekly collections support scheme costs we not only ensure value for money but maximise have actively encouraged this. the number of new homes built. Asked by Lord Rooker If an authority wishes to limit its borrowing, there To ask Her Majesty’s Government whether they is certainly nothing to prevent it using its reserves to have had any discussions with the Local Government contribute towards new development. Boundary Commission for England regarding joint working arrangement between local authorities. [HL1437] Imports Baroness Hanham: Ministers have discussions from Question time to time with the Local Government Boundary Commission for England which can cover a wide Asked by Lord Pearson of Rannoch range of issues that are relevant to the commission’s To ask Her Majesty’s Government what was the work and responsibilities. The Government are clear aggregated value of imports of cars in 2011, as that local authorities can achieve very substantial defined in HM Revenue and Customs’ Heading 8703, benefits for their communities and council tax payers from outside the European Union; and what was by joint working arrangements enabling both the sharing the corresponding gross amount of customs duty of staff and back-office facilities and the joint provision charged thereon. [HL1388] of front-line services. For example, the tri-borough initiative in London (across Hammersmith and Fulham, Kensington and The Commercial Secretary to the Treasury (Lord Chelsea, and Westminster) is on track to save £40 Sassoon): The aggregated value of imports of cars in million a year by combining services and management 2011 within Heading 8,703 was £4,776,701,309.44 costs. Potentially £2 billion of taxpayers’ money could and the gross amount of customs duty charged was be saved if other councils across the country were able £121,126,581.14. to copy such sensible savings. Local Government Local Authorities: Joint Services Question Questions Asked by Lord Rooker Asked by Lord Rooker To ask Her Majesty’s Government whether they have made an assessment of the disadvantages or To ask Her Majesty’s Government whether they advantages of two-tier local government in parts of monitor arrangements which local authorities make England, compared to the unitary local government between themselves to deliver joint services.[HL1434] arrangements in Scotland and Wales. [HL1438] WA 41 Written Answers[17 JULY 2012] Written Answers WA 42

The Parliamentary Under-Secretary of State, Department NHS Commissioning Board for Communities and Local Government (Baroness Hanham): The coalition Government consider that top-down Question unitary local government restructuring would be expensive, Asked by Lord Hunt of Kings Heath divisive and time-consuming; this is why we legislated through the Local Government Act 2010 to stop To ask Her Majesty’s Government whether the the last Administration’s unitary local government National Health Service Commissioning Board restructuring in Devon, Norfolk and Suffolk, saving Authority is ready to go live in April 2013 with a an estimated £40 million. A copy of the impact assessment system in place for monitoring general quality and to the Bill can be found in the Library of the House. patient safety. [HL1455] There is significant scope for more joint working and sharing of back-office services, both in two-tier areas and in single-tier councils. This can be achieved The Parliamentary Under-Secretary of State, Department quickly and efficiently without wholesale restructuring. of Health (Earl Howe): Quality is a systemic issue. It is not the preserve of any one part of the system. Members For example, the tri-borough initiative in London of the National Quality Board (NQB) have been working (across Hammersmith and Fulham, Kensington and through how the different parts of the system will Chelsea, and Westminster) is on track to save £40 million come together, from April 2013, in order to monitor a year by combining services and management costs. the quality of care being provided to patients with a Potentially £2 billion of taxpayers’ money could be view to preventing, identifying and responding to saved if other councils across the country were able to failures in quality. This includes the role that the NHS copy such sensible savings. Commissioning Board will play. The systemic nature of quality requires collective effort and collaboration London Festival 2012 across the system in order to protect patients, and the Question NQB is taking forward this important piece of work well in advance of the new system coming into effect Asked by Lord Beecham from 1 April 2013. The NQB intends to publish its report in final draft format shortly. To ask Her Majesty’s Government, further to the Written Answer by Baroness Garden of Frognal As of 1 June 2012, the patient safety function of the on3July(WA 153–4), how much National Lottery National Patient Safety Agency has transferred into or government funding is expected to be spent (1) in the NHS Commissioning Board Authority. The NHS total, and (2) on a per capita basis, in support of Commissioning Board Authority continues to receive events forming part of the London Festival 2012 in reports of patient safety incidents and to review and each of the seven areas of the United Kingdom disseminate learning from them. identified in the London Festival Guide. [HL1376]

Viscount Younger of Leckie: I refer the noble Lord Overseas Aid to the Answer given to him by my noble friend Baroness Garden of Frognal on 3 July 2012 (Official Report, Question col. WA 154). Asked by The Earl of Sandwich Analysis has not been made to map costs by geographical region. To ask Her Majesty’s Government whether they intend to continue their International Partnership Agreement Programmes with leading non-governmental London Underground: Line Extensions aid organisations; for what lengths of terms; and Question with which organisations. [HL1415] Asked by Lord Kennedy of Southwark To ask Her Majesty’s Government what discussions Baroness Northover: DfID has Programme Partnership have they had with the Mayor of London and Arrangements (PPAs) with 38 non-governmental Transport for London about proposals to extend organisations. These three-year grants commenced on the Northern Line from Kennington to Battersea. 1 April 2011 following a new competitive process and [HL1399] will end on 31 March 2014. A list of the organisations receiving the grants is available on the DfID website: Earl Attlee: The Chancellor’s Autumn Statement in http://wwvv.dfid.gov.uk/Work-with-us/Funding- November 2011 confirmed the Government’s support opportunities/Not-for-profit-organisations/PPAs/. for the Northern Line extension to Battersea. The My right honourable friend the Secretary of State Department for Transport has regular discussions with for International Development has publicly stated that representatives of Transport for London (TfL) about this will be the final round of PPAs. We will consider the project, to monitor progress and discuss key issues. options in the next few months for what will replace The Secretary of State for Transport also accompanied the PPAs when the current arrangements end. Information the Chancellor and the Mayor to the Battersea Power about future arrangements will be available on the Station site shortly after the Chancellor’s announced DfID website. Any new system will focus on the the Government’s support for the extension in his results to be achieved for poverty alleviation on behalf Autumn Statement in November 2011. of the British taxpayer. WA 43 Written Answers[LORDS] Written Answers WA 44

Paraguay the HM Chief Inspector of Prisons report on HMP Eastwood Park published on 4 July 2012. As with all Question establishment inspection reports by HM Chief Inspector Asked by Lord Hylton of Prisons, NOMS intends to produce an action plan responding to all the recommendations made in the To ask Her Majesty’s Government whether the report between three and six months of the date of United Kingdom’s relations with Paraguay have publication. I will therefore write to the noble Baroness been affected by the change of president; and whether detailing the response to this particular recommendation they will seek international consensus on forest once the plan has been sent to the Chief Inspector. protection, land reform and social justice in Paraguay. NOMS residential services specification requires [HL1360] that prisoners are afforded a minimum of 30 minutes in the open air daily, subject to weather conditions and The Minister of State, Foreign and Commonwealth the need to maintain good order and discipline, and Office (Lord Howell of Guildford): It is UK practice to Eastwood Park is currently meeting this requirement. recognise states, not Governments. The UK continues to keep the situation in Paraguay under close review, taking account of the ongoing Prisons: Use of Force work and discussions in the Organisation of American Question States (OAS) and the European Union (EU), and in Asked by Baroness Stern the region. We welcome the report of the OAS Secretary-General To ask Her Majesty’s Government what progress of 10 July, which has examined the facts closely. There they have made in reviewing the monitoring and clearly are concerns about what has happened. Key governance of the use of force and the use of areas highlighted include the need to: complete the special accommodation at HMP Woodhill to achieve judicial process; strengthen governance in Paraguay in a reduction in their use, following the report by the transition to the 2013 elections by promoting HM Chief Inspector of Prisons published on 29 June. public dialogue and supporting the legal reforms that [HL1510] may help avoid further crises; and ensure the electoral process is participatory and transparent, and that The Minister of State, Ministry of Justice (Lord there are no reprisals or exclusions, especially against McNally): HMP Woodhill has taken a number of former President Lugo or his supporters. steps to improve monitoring and governance of use of A spokesperson of Baroness Catherine Ashton, the force and special accommodation since the inspection EU’s High Representative for Foreign Affairs and including: increasing the frequency of use of force Security Policy, issued a statement on 23 June expressing review meetings; increasing the seniority of the manager concern and calling on all parties to respect the democratic who presides over these meetings to governing governor will of the Paraguayan people. We will be working level; weekly checks of all use of force paperwork; and with our EU partners to see what the EU can do to the use of formal staff meetings to focus on the issues support. around special accommodation. As a result there has We are committed to strengthening our relationship been a year-on-year reduction in the use of force from with Paraguay. We plan to reopen an embassy in 187 incidents in January to June 2011 to 159 in the Asuncion in mid-2013. This new embassy will further same period of 2012; use of special accommodation strengthen British diplomatic engagement in the Latin has also declined from 16 instances in the period American region; will help to unlock commercial September 2011 through January 2012 to only six opportunities for British companies in this significant instances between February and June this year. market; and will allow us to work closely with Paraguay on regional issues such as counter-narcotics and organised Railways: Freight Charges crime. These will be our priorities, but the issues that the noble Lord raises are important and are not unrelated Question to our interest in supporting democracy, the rule of Asked by Lord Bradshaw law and human rights in Paraguay. To ask Her Majesty’s Government what discussions they have had with the Office of Rail Regulation Prisoners: Women about increasing the freight rates on haulage of Question coal. [HL1582] Asked by Baroness Stern Earl Attlee: The track access charges levied on rail To ask Her Majesty’s Government what plans freight operators in the next railway funding control they have to increase the time spent by female period from 2014 to 2019 are matters for the Office prisoners in the open air at HMP Eastwood Park, of Rail Regulation (ORR), which is the independent following the recommendation of the July report by economic and safety regulator for the railways in HM Chief Inspector of Prisons. [HL1509] Great Britain. Some elements of these charges are the subject of a The Minister of State, Ministry of Justice (Lord current ORR consultation on the variable usage charge McNally): The National Offender Management Service and a freight-specific charge, which can be found on (NOMS) is considering the recommendations made in the ORR’s website at www.rail-reg.gov.uk. WA 45 Written Answers[17 JULY 2012] Written Answers WA 46

Royal Household: Travel Baroness Northover: We estimate there to be around 107,000 people displaced from Blue Nile State into Question South Sudan since fighting began in Sept 2011. The Asked by Lord Berkeley Parliamentary Under-Secretary of State, Stephen O’Brien, visited Jamam Camp in April 2012 to assess conditions To ask Her Majesty’s Government, pursuant to there, and was concerned at the high numbers of The Grant-in-aid for Royal Travel by Air and Rail people, the lack of access to safe water and the risk of Annual Report 2011–12, (1) whether members of flooding. Officials from DfID Juba remain in close the Royal Family other than the Queen and Duke contact with United Nations High Commissioner for of Edinburgh travel by scheduled airlines for all Refugees (UNHCR) and NGO workers at the Jamam, overseas visits for which such flights are available, and other refugee camps in Upper Nile State, and are and, if not, why not; (2) what class of air travel aware of the increased risk of cholera. The UK remains members of the Royal Family and their staff use one of the leading donors to the humanitarian response. when on scheduled flights; (3) whether members of DfID has already allocated over £29 million to the Royal Family other than the Queen and Duke humanitarian response in South Sudan. Our support of Edinburgh travel by scheduled train services will help to provide over 130,000 people with clean where these are available, rather than by air, and if drinking water and 100,000 people with emergency not, why not; and (4) why the Prince of Wales used food assistance. In response to increasing needs, the a charter flight from London to Riyadh at a cost of UNHCR has also bid for $20 million from the £67,215. [HL1419] Central Emergency Response Fund, to which the UK contributes 20%. Earl Attlee: Expenditure of the royal grant-in-aid budget is the responsibility of the Royal Household. St Helena: Airport Detailed accounts showing how the grant-in-aid has been spent during 2011-12 have been published in the Royal Public Question Finances:AnnualReport2011-12http://www.royal.gov.uk/ Asked by Lord Jones of Cheltenham LatestNewsandDiary/AnnualFinancialReports/ Annualfinancialreports.aspx.Indecidingthemostappropriate To ask Her Majesty’s Government what progress mode of travel for official travel, the household will has been made on the construction of the airport have regard to the following key criteria: for St Helena. [HL1546] safety; security; Baroness Northover: A contract for the design, construction and operation of the airport on St Helena value for money; was signed by the St Helena Government and Basil length of journey; Read (Pty) Ltd of South Africa on 2 November 2011. minimising the disruption to others; The detailed design and preliminary works are effective use of the Royal Family’s time; progressing well. On 10 July 2012, Basil Read’s dedicated environmental impact; and ship became the first vessel of its size ever to dock in transport which is consistent with the requirement St Helena, using a temporary wharf constructed under and dignity of the occasion. the project to deliver major construction equipment and materials. Construction of the access road to the The Royal Household’s objectives in managing royal airport site is well ahead of schedule. The project is travel expenditure are: currently providing employment for more than 150 Saints. to seek to contract in the most economic and efficient way for the supply of air and rail services, consistent with safety, security, and other requirements of Royal Sudan Travel; and Question to ensure that members of the Royal Household take financial considerations fully into account when Asked by Lord Alton of Liverpool framing, reaching or giving effect to decisions which To ask Her Majesty’s Government what assessment bear on the grant-in-aid. they have made of whether the numbers of refugees fleeing Blue Nile and South Kordofan have now reached the official United Nations High Commissioner South Sudan for Refugees threshold required to declare an official Question emergency; whether the number of children fleeing has exceeded the threshold required for the declaration Asked by Lord Alton of Liverpool of an official emergency; and whether they agree To ask Her Majesty’s Government what assessment with the assessment of Médecins Sans Frontières they have made of the number of refugees who that there are now more than 120,000 refugees and have fled from Blue Nile State into South Sudan; that the situation constitutes “a full blown emergency”. whether they have sent officials to assess the conditions [HL1449] in Jamam camp and other refugee camps; and whether they concur with the assessment of aid Baroness Northover: According to the latest estimates agencies that, in addition to widespread malaria, an from United Nations High Commissioner for Refugees outbreak of cholera is imminent. [HL1448] (UNHCR) there are currently 162,500 refugees in WA 47 Written Answers[LORDS] Written Answers WA 48

South Sudan and a further 36,500 in Ethiopia who confirmed funding of a maximum of £371 million have been displaced from Southern Kordofan and for two extensions to the Nottingham tram system Blue Nile State. There is not yet an accurate estimate which are currently under construction; for the number of children in the camps. UNHCR confirmed funding of a maximum of £75.4 million described the situation as an emergency on 13 June. for an extension to Midland Metro to Birmingham The UK has been monitoring the situation closely. New Street Station, which is also currently under The Parliamentary Under-Secretary of State, Stephen construction; and O’Brien, visited Jamam camp in April. We continue to confirmed funding for the £58 million pilot scheme be in close contact with UNHCR, their NGO partners to run revolutionary tram trains on both rail and and the Government of South Sudan on the situation. tram networks between Sheffield and Rotherham. We have allocated over £29 million to the humanitarian response in South Sudan through our support to the In addition, the Department for Transport is working Common Humanitarian Fund (CHF), ICRC and the with the light-rail sector, including UKTram, to take World Food Programme. We are also providing support forward actions arising from the Department for Transport through our contributions to the European Commission report Green Light for Light Rail, published in September Humanitarian Office (ECHO) and the Central Emergency 2011, in order to make light-rail schemes more cost- Response Fund (CERF). effective in the future . The development of tram schemes in Wales is a matter for the Welsh Assembly Government.

Transport: Light Rail Questions UK Honours Asked by Lord Kennedy of Southwark Question Asked by Lord Berkeley To ask Her Majesty’s Government what is their assessment of the progress of phase two of the To ask Her Majesty’s Government, further to Nottingham Express Transit. [HL1484] the Written Answer by Lord Wallace of Saltaire on 16 May (WA 9), why they consider it appropriate for honours to continue to refer to the British Earl Attlee: Phase two of the Nottingham Express Empire. [HL1494] Transit scheme, work on which commenced at the beginning of this year, is progressing well, providing significant supply chain and job opportunities. The Lord Wallace of Saltaire: As stated in my Answer works are being co-ordinated with a major £67 million on 16 May, the Order of the British Empire was refurbishment of Nottingham Station to create a world- founded to recognise those who had fought in the class transport interchange and gateway to the City of First World War tradition and its title remembers the Nottingham. The extended Nottingham Express Transit British Empire, which was the largest empire in history. system will improve accessibility to almost 2,000 workplaces in the conurbation, including both of the city’s universities and the largest hospital in the area—the Universal Credit Queen’s Medical Centre—and overall will serve 20 of the 30 largest employers in Greater Nottingham. Question Asked by Lord Kennedy of Southwark Asked by Lord Kennedy of Southwark To ask Her Majesty’s Government what work To ask Her Majesty’s Government whether decisions they are undertaking to develop new or expand have been made on how claimants for universal existing light rail or trams systems in England and credit will have their official documentation verified as part of the claims process. [HL1583] Wales. [HL1485]

The Parliamentary Under-Secretary of State, Department Earl Attlee: The Government recognise the many for Work and Pensions (Lord Freud): Universal credit clear benefits of light rail schemes—they are good for (UC) is being designed as a predominantly online passengers, good for local economies and in the right service. This approach is in line with the Government’s circumstances can be an effective and efficient means digital by default objectives. of taking large numbers of passengers directly into the Documents will still need to be verified as part of heart of a city, so reducing traffic congestion and the claims process. Risk tools will allow us to target greatly improving accessibility. verification activity where it is most needed depending This Government have a good record in approving on the claimant and/or the type of transaction they new tram schemes. Since May 2010 they have: are undertaking. The risk assessment tools will become confirmed funding of over £120 million for the more sophisticated over time, meaning that levels of Manchester Metrolink extensions to Ashton and to staff verification activity will be higher in early stages. East Didsbury which are currently under construction Postal, telephony and face-to-face channels will be and expected to be in operation in 2013; used to verify information as appropriate. WA 49 Written Answers[17 JULY 2012] Written Answers WA 50

Waste Management: Incinerators Asked by Baroness Turner of Camden Questions To ask Her Majesty’s Government, in the light Asked by Baroness Turner of Camden of Norfolk County Council’s decision to withdraw its participation in the Borough Council of West To ask Her Majesty’s Government, in the light Norfolk’s poll on the installation of a new incinerator of Norfolk County Council’s decision to withdraw near King’s Lynn, whether the Secretary of State its participation in the Borough Council of West for Communities and Local Government will intervene Norfolk’s poll on the installation of a new incinerator in this planning decision. [HL1490] near King’s Lynn, what guidance they offer local authorities on participation in, and response to the Baroness Hanham: Following Norfolk County results of, local polls. [HL1489] Council’s decision to be minded to approve the planning application for the energy from waste plant at King’s The Parliamentary Under-Secretary of State, Department Lynn, the Secretary of State is now carefully considering for Communities and Local Government (Baroness Hanham): whether or not the application should be called in for The Government are a localist Government and the his determination. holding of polls to seek a community’s view on an In the mean time, an Article 25 holding direction issue is entirely a matter for the councils concerned. has been issued which directs that Norfolk County The Government therefore issue no guidance on such Council shall not grant permission on this application matters. without specific authorisation.

Tuesday 17 July 2012

ALPHABETICAL INDEX TO WRITTEN STATEMENTS

Col. No. Col. No. Armed Forces: Defence Equipment EU: Health Council...... 31 and Support ...... 23 Export: Green Technologies ...... 31 Armed Forces: Medals...... 24 Government: Consultations...... 32 Boundary Commission for England ...... 24 Legal Aid, Sentencing and Punishment of Offenders British Council: Annual Report...... 25 Act 2012 ...... 33

Capital for Enterprise Ltd...... 25 Local Government: Finance ...... 35 Money Laundering Regulations 2007 ...... 37 Competition and Markets Authority ...... 26 Overseas Stability ...... 38 Correction to Commons Written Answer ...... 26 Pensions...... 40 Detainee Inquiry...... 27 Prisons: Capacity Management ...... 42 ECOFIN ...... 27 Railways: Red Tape Challenge...... 43 Education: Reform ...... 29 Special Advisers...... 44

Electoral Registration ...... 30 Taxation ...... 47

Employment: Jobseeking Support ...... 30 Vehicles: Vehicle Identity Checks...... 48

Tuesday 17 July 2012

ALPHABETICAL INDEX TO WRITTEN ANSWERS

Col. No. Col. No. Afghanistan...... 21 Enterprise Zones...... 31

Africa: Conservation ...... 21 Fluoridation ...... 31

Bahrain...... 22 Forced Marriage ...... 31

Banking ...... 22 Government: Air Travel...... 32

Banking: Chief Executives...... 23 Government Departments: 08 Telephone Numbers...... 32

Banking: LIBOR ...... 23 Government Departments: Service Users ...... 32

Benefits...... 24 Health and Social Care Act 2012...... 33

Burma ...... 24 Health: Defibrillators ...... 34

Commonwealth ...... 25 Health: Healthcare Workers ...... 34

Courts: Fines ...... 26 Health: Mental Health...... 35

Crime: Fraud ...... 27 Health: Mitochondrial Disease...... 35

Dogs: Puppy Farming...... 28 Health: Primary Care Practices...... 36

Elderly People: Accommodation ...... 28 Horses ...... 36

Elections: Voting System ...... 29 Housing...... 37

Enterprise Act 2002 ...... 29 Imports...... 39 Col. No. Col. No. Local Authorities: Joint Services...... 39 Railways: Freight Charges ...... 44

Local Government...... 40 Royal Household: Travel...... 45

London Festival 2012 ...... 41 South Sudan ...... 45

London Underground: Line Extensions ...... 41 St Helena: Airport ...... 46

NHS Commissioning Board ...... 42 Sudan ...... 46

Overseas Aid...... 42 Transport: Light Rail...... 47

Paraguay...... 43 UK Honours ...... 48

Prisoners: Women...... 43 Universal Credit ...... 48

Prisons: Use of Force...... 44 Waste Management: Incinerators ...... 49 NUMERICAL INDEX TO WRITTEN ANSWERS

Col. No. Col. No. [HL1226] ...... 31 [HL1425] ...... 33

[HL1266] ...... 32 [HL1426] ...... 33

[HL1272] ...... 29 [HL1432] ...... 28

[HL1290] ...... 23 [HL1434] ...... 39

[HL1291] ...... 23 [HL1435] ...... 40

[HL1295] ...... 27 [HL1436] ...... 40

[HL1313] ...... 32 [HL1437] ...... 40

[HL1330] ...... 24 [HL1438] ...... 40

[HL1332] ...... 25 [HL1448] ...... 45

[HL1336] ...... 35 [HL1449] ...... 46

[HL1352] ...... 25 [HL1454] ...... 36

[HL1353] ...... 25 [HL1455] ...... 42

[HL1360] ...... 43 [HL1458] ...... 26

[HL1361] ...... 21 [HL1459] ...... 26

[HL1371] ...... 22 [HL1460] ...... 26

[HL1375] ...... 34 [HL1461] ...... 26

[HL1376] ...... 41 [HL1462] ...... 27

[HL1383] ...... 35 [HL1472] ...... 36

[HL1388] ...... 39 [HL1473] ...... 36

[HL1389] ...... 31 [HL1474] ...... 37

[HL1399] ...... 41 [HL1475] ...... 37

[HL1411] ...... 31 [HL1476] ...... 37

[HL1414] ...... 21 [HL1477] ...... 37

[HL1415] ...... 42 [HL1483] ...... 25

[HL1419] ...... 45 [HL1484] ...... 47

[HL1424] ...... 33 [HL1485] ...... 47 Col. No. Col. No. [HL1489] ...... 49 [HL1546] ...... 46

[HL1490] ...... 50 [HL1555] ...... 33

[HL1494] ...... 48 [HL1562] ...... 33

[HL1509] ...... 43 [HL1582] ...... 44 [HL1583] ...... 48 [HL1510] ...... 44 [HL1588] ...... 37 [HL1527] ...... 28 [HL1589] ...... 38 [HL1528] ...... 28 [HL1590] ...... 38 [HL1532] ...... 34 [HL1591] ...... 39

[HL1536] ...... 22 [HL1592] ...... 24

[HL1543] ...... 29 [HL1593] ...... 24 Volume 739 Tuesday No. 36 17 July 2012

CONTENTS

Tuesday 17 July 2012 Royal Assent...... 99 Questions NHS: Primary Care Trusts...... 99 NHS: Mental Illness...... 102 Social Care: Sustainable Funding...... 104 Olympic Games 2012: Traffic...... 106 Draft Electricity and Gas (Smart Meters Licensable Activity) Order 2012 Motion to Refer to Grand Committee...... 108 Local Authorities (Mayoral Elections) (England and Wales) (Amendment) Regulations 2012 Motion to Approve ...... 109 Parliamentary Commission on Banking Standards Membership Motion ...... 109 Defence Equipment and Support Statement...... 111 Justice and Security Bill [HL] Committee (3rd Day)...... 119 Education (Exemption from School Inspection) (England) Regulations 2012 Motion of Regret...... 181 Justice and Security Bill [HL] Committee (3rd Day) (Continued)...... 200 Grand Committee Designation of Features (Appeals) (England) Regulations 2012...... GC 67 Public Bodies (Abolition of Environment Protection Advisory Committees) Order 2012 ...... GC 71 Public Bodies (Abolition of Regional and Local Fisheries Advisory Committees) Order 2012 ...... GC 79 Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2012 ...... GC 80 Equality Act 2010 (Age Exceptions) Order 2012 Considered in Grand Committee ...... GC 82 Written Statements...... WS 23 Written Answers...... WA 2 1