Vol. 731 Wednesday No. 207 19 October 2011

PARLIAMENTARY DEBATES (HANSARD) HOUSE OF LORDS OFFICIAL REPORT

ORDER OF BUSINESS

Questions Health: Obesity Public Services: Security of Provision Industrial Tribunals: Fees Nursing: Elderly and Vulnerable Patients Scrap Metal Dealers (Amendment) Bill First Reading Medicines Act 1968 (Pharmacy) Order 2011 Motion to Approve Electricity and Gas (Internal Markets) Regulations 2011 Motion to Approve Terrorism Prevention and Investigation Measures Bill Committee (1st Day) Northern Ireland: Economy Question for Short Debate Written Statements Written Answers For column numbers see back page

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© Parliamentary Copyright House of Lords 2011, this publication may be reproduced under the terms of the Parliamentary Click-Use Licence, available online through The National Archives website at www.nationalarchives.gov.uk/information-management/our-services/parliamentary-licence-information.htm Enquiries to The National Archives, Kew, Richmond, Surrey, TW9 4DU; email: [email protected] 281 Health: Obesity[19 OCTOBER 2011] Health: Obesity 282

Baroness Trumpington: My Lords, does the Minister House of Lords realise that some of us eat like sparrows but end up like turkeys? Does the publication which he spoke of Wednesday, 19 October 2011. cover the situation of those of us whom I have just spoken of? 3pm Earl Howe: My Lords, my noble friend makes what Prayers—read by the Lord Bishop of Leicester. is in fact a very complex point. Many of us believe that there is a genetic element to this, and indeed the 2007 Health: Obesity Foresight report underlined the complexity around the Question causes of obesity. Genetic, psychological, cultural and 3.07 pm behavioural factors all have a part to play in it. I do not have specific advice to give my noble friend—far Asked By Lord McColl of Dulwich be it from me to do so—but there is obviously a balance To ask Her Majesty’s Government what action to be struck between calories in and calories out. they are taking to address rising levels of obesity. Baroness Thornton: My Lords, if the Royal Society The Parliamentary Under-Secretary of State, of Paediatricians, other medical organisations, Which? Department of Health (Earl Howe): My Lords, the magazine, Jamie Oliver and many others regard the Government are committed to tackling obesity, which Secretary of State’s most recent obesity announcement, has serious consequences for individuals, the NHS which presumably is based on corporate relations and and the wider economy. The Government recently the nudge theory, as, variously, “worthless”, “patronising” published A call to action on obesity in England, which and “inadequate”, does the noble Earl regard this as sets out how obesity will be tackled in the new public people not understanding Mr Lansley—again—or could health and NHS systems and the role of key partners. it be that the obesity strategy is actually not adequate Lord McColl of Dulwich: I thank my noble friend and the Government need to go back to the drawing for that reply. Would he kindly consider launching a board? campaign comparable to that launched by my noble friend Lord Fowler in the 1980s, which was so striking Earl Howe: It is only inadequate if we as Government and so very effective? fail to work with partners as we have the ambition to do. We do have that ambition, and obviously we are Earl Howe: I agree with my noble friend about the disappointed by some of the reactions that have been campaign launched by our noble friend Lord Fowler, published. However, we share the concerns expressed which was extremely effective. We recognise that excess by Jamie Oliver and the bodies mentioned by the weight is a really serious problem. That is why we have noble Baroness that urgent action is required to tackle set out what we believe is an ambitious approach to obesity, and we all have a role to play in that. dealing with it. We are radically overhauling the public health system. We are working with business to go Lord Lawson of Blaby: My Lords, as someone who further and faster on making it easier for people to has been there and done that, and indeed written a make healthy choices for themselves and their families. book about it, may I say to the noble Earl that he is We are also continuing to invest in programmes such absolutely right that this is not something that the as Change4Life. The Government cannot solve the Government can do on their own—indeed, may I problem on their own but we can encourage and suggest that it is not something that the Government support a wide range of partners to play their part. can do at all? There is a genetic element, which the The call to action sets out how we are going to do that. Government cannot do anything about, and the rest is about eating less and drinking less. If the Government Lord Brooke of Alverthorpe: My Lords, will the were more concerned about doing something about noble Earl please explain how people can be expected the economy, where they do have a responsibility, and to take personal responsibility for sorting out their less about obesity, that might be sensible. health problems when so much information about the food and drink they consume is kept from them? Can he please also explain why the Government are failing Earl Howe: My Lords, the fact is, as was recognised to press the drinks industry to show the number of in our report, that most of us are eating and drinking calories in alcoholic drinks on the labels, and declining more than we need to and we are not active enough. to meet the industry and press it accordingly? Being overweight or obese is a direct consequence of eating more calories than we need. Increasing physical Earl Howe: I am not aware that we have declined to activity is important but reducing the calories we meet the drinks industry; the noble Lord may know consume is clearly key to weight loss. something that I do not. We talk regularly to the drinks industry. As he will be aware from a Question Lord Maxton: My Lords, does the Minister agree tabled in this House the other day, the result of the that exercise is a vital part of tackling the problem of European nutrition labelling regulation is that we now obesity? If the Government insist on local authorities have the flexibility in this country to construct rules cutting back on their expenditure, will not those same that suit us. That includes encouraging the drinks local authorities close gymnasiums, leisure centres and industry—and I believe that it is willing to do it—to swimming pools, and sell off their playing fields? How place energy information on its labels. does that help us to tackle obesity? 283 Health: Obesity[LORDS] Public Services: Security of Provision 284

Earl Howe: The short answer is the ring-fenced government, we have appointed a Crown representative public health budget, which will encourage local authorities responsible for managing the relationship with that to look across the piece at their public health supplier. responsibilities. Lord Haskel: My Lords, I find that response a little Baroness Hussein-Ece: My Lords— worrying, because we all depend on public services. Does the Minister agree that, at this time of volatile Baroness Howarth of Breckland: My Lords— markets and financial difficulties, the services that we get from these companies are at risk from too much The Chancellor of the Duchy of Lancaster (Lord debt, from hidden debt and from hit-and-run investors Strathclyde): My Lords, if both noble Baronesses are who try to take over these companies? Are the quick, we can get both in. Can my noble friend speak Government taking any extra precautions in these first, and then the noble Baroness? circumstances, because, at the end of the day, it is we the taxpayers who have to clear up the mess? Baroness Hussein-Ece: My Lords, unlike the noble Lord, Lord Lawson, I have not really been there and Lord Wallace of Saltaire: My Lords, one cannot done it, but I am full of admiration for him that he entirely eliminate financial risk either from private or has. However, is it not shocking that 25 per cent of public sector providers so long as public sector providers children aged between two and 15 are now classified as have a degree of financial and accounting autonomy. obese? Does the Minister share my concern that this We have seen that in a number of public sector cases as serious public health problem is not simply a question well as in private sector cases. The Government are of celebrity chefs or of parents being lectured about taking considerable care in contracting to ensure that we lunch boxes, it is about educating children and families look at the financial viability of all suppliers and, in on how to prepare fresh, healthy food? Is there any particular, do our best to encourage small and medium evidence that this is being done consistently? enterprises and social enterprises to be able to bid for public service contracts. That takes rather more Earl Howe: I agree with my noble friend that it is sophistication than dealing simply with major suppliers. about educating both children and parents about healthy diets and healthy eating, and encouraging children at Lord Brookman: My Lords— school to take up healthy diets. Baroness Eaton: My Lords, does my noble friend Baroness Howarth of Breckland: My Lords, I know agree that one of the best ways of helping businesses, that the Ministry is very keen on co-ordination, and I particularly small and medium enterprises, is to scrap am sure that one of the reasons why the team from the complex and unnecessary central prescription around Food Standards Agency was moved into the Department the commissioning process? Will he detail what the of Health was to ensure that it could work on these Government are doing to simplify the systems that issues. The Minister will remember that this team was businesses have struggled with for so many years? outstandingly successful in its work on the salt campaign and was moving on to work on fat and sugar, which Lord Wallace of Saltaire: My Lords, I understand would have helped with the obesity problem. I understand that one of the problems particularly for smaller that the team is now being disbanded. Is that sensible companies and social enterprises bidding for public in the light of the Question of the noble Lord, Lord sector contracts was the prequalification questionnaire, McColl? a document which might have been somewhere between 50 and 300 pages long and led to some smaller enterprises Earl Howe: I am not aware that the team is about to simply deciding not to bid. We have now scrapped that be disbanded but I will take that concern away and and made a much simpler and shorter alternative. We write to the noble Baroness about it. are adjusting the way in which the many hundreds of contracting authorities within the public sector deal Public Services: Security of Provision with those with whom they operate, but I underline Question that we are concerned as far as possible to assist mutuals, social enterprises and small companies in 3.15 pm playing their role in providing public services wherever possible. Asked By Lord Haskel To ask Her Majesty’s Government what steps Lord Brookman: My Lords— they are taking to ensure that companies providing public services are financially secure. Baroness Royall of Blaisdon: My Lords, there are all sorts of pressures on Ministers’ diaries, especially at Lord Wallace of Saltaire: My Lords, it is the the moment, but does the Minister agree that it was responsibility of the relevant contracting authority not acceptable for his honourable friend Mr Burstow to take appropriate steps to ensure that companies to cite diary pressures as a reason for not meeting the providing public services are financially secure, initially financially insecure Southern Cross for discussions, when selecting suppliers and then on an ongoing basis when these were repeatedly asked for by the company through contract management and supplier relationship and when it was providing a public service by providing management. For each of the major suppliers to 31,000 homes for vulnerable people? 285 Public Services: Security of Provision[19 OCTOBER 2011] Industrial Tribunals: Fees 286

Lord Wallace of Saltaire: My Lords, I am not fully The Minister of State, Ministry of Justice (Lord briefed on the exact details of my honourable friend McNally): My Lords, the Government will launch a Paul Burstow’s diary. We have of course been concerned consultation on the introduction of fees in employment with ensuring that the services provided by Southern tribunals and the employment appeal tribunals later in Cross should be maintained. There have been various the year. That consultation document will set out negotiations. Southern Cross confirmed in an options for proposed fee structures and the indicative announcement to the Stock Exchange on 27 September levels that might be applied. No decision will be made that it had reached agreement with its principal landlords on the level of fees to be paid until that consultation and that it would transfer the group’s care home leases has been completed. to its landlords and the related business and assets for the operations of those homes to its landlords or Lord Lea of Crondall: My Lords, I thank the Minister alternative care providers. for that reply.Is he aware that the most recent consultation he has announced is only about the amount of fees Lord Maclennan of Rogart: My Lords, does not and not about the principle, at a time when the BIS Southern Cross illustrate that it is not only small and consultation has not yet been completed? Would he medium sized companies that need to be watched? Is care to enlarge on the evidence to justify Mr George there a continuing process in respect of the larger Osborne’s pre-emptive statement to the Conservative companies that are providing comparable public services? Party conference on 3 October, when he cited as evidence simply “perceptions” of “weak or vexatious Lord Wallace of Saltaire: My Lords, one or two of claims”, when these are in fact being weeded out? the providers of public services in the private sector Secondly, is the Minister aware of the recent statement are now among the largest companies in Britain and by the chairman of the Administrative Justice and the world. Noble Lords who read the financial pages Tribunals Council that the Government’s policy is may know that G4S has just taken over another based on limited evidence, which would have, major multinational company. Liberata, a back-office “a disproportionate and chilling effect on employees”, outsourcing firm, nearly went bankrupt in 2008, partly and, moreover, that he has expressed great concern because of its pensions’ liability, and had to be about tearing up the BIS consultation process, which restructured. It is now partly owned by its employees has not yet been completed? and partly owned by the Pension Protection Fund. The Government, as with all others in such circumstances, Lord McNally: My Lords, the Government announced do get engaged in trying to re-establish companies in the introduction of fees into the employment tribunals difficulty that are playing a valuable role. and the employment appeal tribunals in the Resolving Workplace Disputes consultation published in January Lord McFall of Alcluith: My Lords, given the sorry 2011. The consultation I have mentioned today will example of Southern Cross and the bourgeoning seek views on the fee levels, charging points and so on. outsourcing of public services, which is estimated to On the points that the noble Lord made, this is the go from £80 billion to £140 billion by 2014, is there not whole reason for this second stage of consultation. a case for the utmost transparency on the part of the Small businesses gave evidence about the burdens of Government through extending freedom of information what they describe as vexatious claims brought to to private companies undertaking public services so them. I am sure that others will give evidence to the that they can catch the failed business model, which contrary. That is the point of consultation. they did not do in the case of Southern Cross? Lord Martin of Springburn: My Lords, I can recall Lord Wallace of Saltaire: My Lords, I have to the days when there were no industrial tribunals. Decent repeat: one cannot entirely eliminate financial risk men and women were sacked and could not take any from activities which take place either in the private or legal action. Are we now introducing a blocking the financial sector. We all know that cases of mechanism—that is, fees—for industrial tribunals when mismanagement have taken place in schools, hospitals the industrial tribunal system has been excellent in and other areas in the public and private sector. The resolving disputes? Government have established a new major projects authority within the Cabinet Office and a group of Lord McNally: My Lords, there is no aim to go strategic suppliers. They are working extremely hard back to what the noble Lord, Lord Martin, could to ensure that as much transparency as possible can be rightly describe as the “bad old days”. The industrial provided. However, if the noble Lord thinks that there tribunals system will remain and people will still have is insufficient transparency, I encourage him to return access to it. We expect that the tribunals will have the to this issue on future occasions. power to order that unsuccessful parties reimburse the fee paid by the successful party so that costs are ultimately Industrial Tribunals: Fees borne by the party which causes the system to be used. Question There is nothing in the system that does not say that a small proportion of the costs cannot be charged. We 3.22 pm do not believe that that would fundamentally undermine the very good work that the tribunal system does. Asked By Lord Lea of Crondall To ask Her Majesty’s Government what evidence Lord Thomas of Gresford: My Lords, does my they used in deciding to introduce fees of up to noble friend accept that meritorious claims will be as £1,000 for access by workers to industrial tribunals. much discouraged by the imposition of fees as vexatious 287 Industrial Tribunals: Fees[LORDS] Nursing: Elderly and Vulnerable Patients 288

[LORD THOMAS OF GRESFORD] The Parliamentary Under-Secretary of State, ones? The Government should not base their policy of Department of Health (Earl Howe): My Lords, it is the charging fees on trying to limit the number of cases responsibility of the Nursing and Midwifery Council, that come to the tribunals. My noble friend will recall the NMC, to set educational standards that higher the discussion that we had about this in the immigration education institutes’ educational programmes must appeals tribunal last week. abide by. The Nursing and Midwifery Professional Advisory Board, the PAB, brings together all relevant Lord McNally: My Lords, I suspect that we will have stakeholders, including representatives from the service, discussions along these lines over a range of issues. I professions, NMC, Royal College of Nursing, Unison suspect that small charges for access to courts such as and the higher education institutes, and is well placed the tribunal service will not have a deterrent effect on to advise the department on workforce education and meritorious cases. One small range of consultations training matters. suggested that there might be a small fall-off in applications with the introduction of fees. As part of Baroness Gardner of Parkes: I thank the noble Earl the consultation that will take place in December, we for that reply. Does he agree that while we are all hope to widen that impact assessment to make sure pleased to see graduate nurses achieving new heights, that we are going down the right road. Between 2001 there is considerable concern, following the abolition and 2010, there was an 81 per cent increase in cases of SENs, about the loss of those caring, practical going to employment tribunals. There is a limit to nurses who did not require university entrance levels? what a free service at the taxpayers’ expense can bear. Has he seen Sheila Try’s report, Why is Nursing Failing? Lord Borrie: My Lords, instead of charging workers A Student Centred Action Plan, and, if not, will he ask for exercising their statutory rights to claim whatever his department to look at that? it is that they want to claim for unfair dismissal, discrimination, et cetera, we should try to return to Earl Howe: My Lords, we do value the contributions the position when employment and industrial tribunals that SENs provide, those who are still in practice. It is started, replacing the courts to provide a more informal, certainly the case that the NMC no longer approves less costly and simpler system to operate so that programmes for nurses on part 2 of the register and people would have the opportunity to put their case to there are no plans to reintroduce educational programmes a body that could deal with matters free of charge to part 2 of the register. What we have done is to develop without incurring the sort of expense now being suggested. guidance on widening the entry gate to preregistration programmes for those individuals who show the necessary Lord McNally: My Lords, I fully endorse the growl values and behaviours but who otherwise do not possess of approval from the Benches opposite but this is the traditional academic qualifications. I am aware of precisely the argument that we will have again and the report that my noble friend mentioned. Sheila Try again in the weeks and months to come. The problem has written to me and I have asked the department to is that a system that started off as a non-confrontational, consider the recommendations that she has made. non-legal settlement of disputes has become peopled by m’learned friends at great expense. We are trying to Lord Rooker: Does the Minister agree that it is a move away from a legalistic approach to settling disputes very valuable report? If I may remind him, on 31 March to one that will settle more by arbitration, conciliation in this House when we had a debate on nursing care I and mediation. asked him if he would meet Sheila Try. Following the Lord Scott of Foscote: My Lords, the accessibility of question asked by the noble Baroness, I respectfully a civil justice system is one of the features of the structure ask him to study the latest report by this trained nurse, of the administration of justice that every civilised who makes very valid points about what has gone country ought to provide for its citizens. Is not the wrong with the training of nurses in the last 25 years. danger of a fee structure system that the fees might be set at too high a level, thereby denying access to justice Earl Howe: My Lords, from my reading of the report to those unfortunates who could not afford such a fee? —and I have looked through it—I think there is much there that we can pick up very usefully, so I agree. Lord McNally: My Lords, that is precisely why we are consulting and taking a further impact assessment—so Baroness Masham of Ilton: My Lords, does the that we will have a fee structure that will not have the noble Earl agree that district nurses do a very important detrimental effects the noble and learned Lord is job in keeping vulnerable, elderly and disabled people suggesting. in the community? Is he aware that there is a shortage and that their training needs to be different because Nursing: Elderly and Vulnerable Patients they go into other people’s homes? Question 3.30 pm Earl Howe: The noble Baroness, as ever, makes a very important point. It is one of the reasons we have Asked By Baroness Gardner of Parkes a very ambitious programme of expanding the number To ask Her Majesty’s Government whether they of health visitors. She is right about tailoring the will work with the Royal College of Nursing to training to suit the environment. That is why there are review and adapt the training of nurses to resolve local curricula as well as the core nursing curriculum the present problems of care and nursing for elderly that have approved standards from the NMC but are and vulnerable patients. sensitive to local needs in individual areas. 289 Nursing: Elderly and Vulnerable Patients[19 OCTOBER 2011] Terrorism Prevention and Investigation 290

Lord Elton: My Lords, when Florence Nightingale Scrap Metal Dealers (Amendment) Bill initiated the growth of modern hospitals, the most [HL] important thing she did was to insist that nurses should deliver what she called “tender, loving care”, First Reading which later became known as TLC, and remained so when I was in hospital in my middle age. Is it not time 3.38 pm that the National Health Service assessed the personality of people seeking to embark on nursing careers to see whether it contained enough compassion? A Bill to make provision about the registration and licensing of scrap metal dealers and to amend the Scrap Earl Howe: My noble friend is quite right and there Metal Dealers Act 1964. is now a renewed emphasis on that very point, with initiatives to help the nursing workforce practise to the highest clinical standards. These include Essence of The Bill was introduced by Lord Faulkner of Worcester, Care, which outlines quality provision of the fundamentals read a first time and ordered to be printed. of care, and Confidence in Caring, which improves nurse interaction with patients. While national initiatives such as those can stimulate thinking and offer guidance Medicines Act 1968 (Pharmacy) on best practice, it is really the local nurse leaders, team leaders, ward sisters and matrons who are key to Order 2011 setting and maintaining standards for quality and Motion to Approve safety in their own clinical areas. Baroness Emerton: My Lords, state enrolled nurses’ 3.38 pm training was discontinued on the mere fact that those Moved By Earl Howe nurses were being abused and misused, because they were being asked to do tasks that were above the level That the draft order laid before the House on of their competence. We are in the same situation now 14 July be approved. with these healthcare support workers, who are not Relevant document: 28th Report from the Joint trained to a level where they can accept the tasks being Committee on Statutory Instruments, considered in delegated to them. I ask the Government to look at Grand Committee on 17 October. this, because we cannot continue to misuse those support workers in the way in which we are—by their being given tasks which they are not suited to. Motion agreed. Earl Howe: The noble Baroness, with her expertise, makes a powerful point. We fully agree that there is an issue over unregistered healthcare assistants; I think Electricity and Gas (Internal Markets) the debate is around what we should do about it. We Regulations 2011 believe that the case for statutory regulation has not Motion to Approve been made, although we would not close our minds to it. The point that the noble Baroness makes relates much more to nursing supervision, appropriate levels 3.38 pm of delegation on a ward or in a care home, and Moved By Lord Marland appropriate supervision and training. That is a matter not for regulation but for nurse leaders in hospitals That the draft regulations laid before the House and care homes. on 18 July be approved. Baroness Thornton: My Lords, this is yet another Relevant document: 28th Report from the Joint report to add to others highlighting these issues. I Committee on Statutory Instruments, considered in think that the Minister has gone some way to explaining Grand Committee on 17 October. what change is needed, so that elderly people get treated in hospitals with the respect and dignity they Motion agreed. deserve. However, how does he suggest that the nursing community should resist dangerous cost-cutting exercises by trusts, which are placing patient safety at risk by replacing experienced clinical staff with more junior Terrorism Prevention and Investigation nurses and healthcare assistants? Measures Bill Committee (1st Day) Earl Howe: We believe that patient safety is paramount and that it is a matter not just for staff on a ward but for the board of an organisation as well, to assure 3.39 pm itself that the highest standards are being maintained. Relevant document: 16th Report from the Joint That means having proper staff ratios—ratios of staff Committee on Human Rights. to patients, that is—and ratios of trained and untrained staff within a ward. These are messages that we are consistently putting out. Clause 1 agreed. 291 Terrorism Prevention and Investigation[LORDS] Terrorism Prevention and Investigation 292

Clause 2 : Imposition of terrorism prevention and The Government have accepted that that should be so. investigation measures However, if that is to be so, it is difficult to see what, if anything, is left of the argument that it is the Home Secretary who should make the order because the Amendment 1 Home Secretary is answerable to Parliament. Moved by Lord Lloyd of Berwick 1: Clause 2, page 1, line 6, at beginning insert “The court may 3.45 pm on the application of” Later in this debate the noble Lord, Lord Goodhart, will argue that for the Home Secretary to make the order is contrary to the rule of law. I agree with that Lord Lloyd of Berwick: My Lords, these amendments argument and will not anticipate it. My own contribution fall into two main groups. The first includes is on a lowlier level than that; it is based simply on Amendments 1 to 3, 7, 8, 25, 27, 29, 36, 37, 40 and 41. common sense. It simply does not make sense for the I start by referring to the restrictions set out in Schedule 1 Home Secretary to apply to the court for permission to the Bill, which were so well described by the noble to impose restrictions under Clause 6 and then come Baroness, Lady Stern, at Second Reading. It is wrong back to the same court a week or so later in order to in principle for punitive restrictions of the kind set out justify those restrictions. It is much too cumbersome a there to be imposed on a British subject by a member procedure, as one can see from the complexity of the of the Executive in time of peace. It is as simple as drafting which it entailed. It is much better and simpler that. The Minister’s predecessors on both sides of the for the Home Secretary to apply for an interim order House have previously argued that such restrictions under Clause 6 and for the court to confirm or quash are not punitive—they are preventive. I suggest that the order on the substantive hearing under Clause 9, that is playing with words. Looking at Schedule 1, any after hearing representations by or on behalf of the ordinary reader would say that these restrictions, whatever individual. That is the usual procedure in our courts. their purpose, are punitive in effect. It will be for the noble Lord to explain why it should In her response to the excellent report of the Joint not apply here. Committee on Human Rights, the Home Secretary Before leaving that group of amendments I should argued that prevention orders are now a common like to add two short footnotes. First, the amendments, feature of our legal system. She cited anti-social behaviour if accepted, will not affect in any way the underlying orders, football banning orders, serious crime prevention purpose of the Bill, which is to protect the public. orders, violent offender orders and so on. However, in Since the courts will have the last word anyway in the all these cases the order is made by the court—either way that I have described, the risk to the public will the High Court or the magistrates’ court—as it should remain exactly the same. Secondly, the noble Lord be. Therefore, the purpose of the first group of may refer to the undoubted power of the Home Secretary amendments is simply to bring the Bill into line with to make deportation orders under Section 3(5) of the the precedents on which the Home Secretary herself Immigration Act 1971. But this power affects only relies. In other words, it is for the Home Secretary to those who are not British citizens. It is part of the make the application for an order, but for the order to ordinary law on immigration and has nothing whatever be made by the High Court. to do with this Bill. It may be said that we are dealing here not with On the standard of proof, the relevant amendments ordinary crime but with terrorism, and, where the are Amendments 16, 17, 19, 20, 27 and 41. That safety of the public is at issue, it is the Home Secretary includes the amendment to be moved later by the who should make the order because it is the Home noble Lord, Lord Pannick, and the noble Baroness, Secretary who is answerable to Parliament. There are Lady Hamwee. As I have said, the crucial question to two answers to that argument. One need look no be decided under Clause 9 is whether the individual further than Section 4 of the Prevention of Terrorism has been engaged in terrorist activity.That is an extremely Act 2005—the very that Act that we are repealing. It serious finding to make about anyone—so serious, provides that, in the case of derogating control orders, indeed, that it could well be argued that the standard it is the High Court that makes the order, not the of proof should be the criminal standard. However, Home Secretary. That surely puts paid to the argument these are civil proceedings and I accept that the civil that in terrorist cases it is for the Home Secretary to standard should apply. But I do not accept that any make the order because it is she who is answerable to lower standard should apply. I can see no justification Parliament. whatever for rejecting the balance of probabilities in There is a second answer. Clause 9 provides that the these civil proceedings and substituting reasonable court must review the case as soon as practicable after belief, especially in a case involving the liberty of the notice has been served. The crucial question of fact on subject. The balance of probabilities is the standard that review will be whether the individual is or has adopted in serious crime prevention orders, Section 4 been involved in terrorist activity. In the leading case of the Prevention of Terrorism Act 2005, Clause 2 of of the Secretary of State for the Home Department v the Draft Enhanced Terrorism Prevention and MB—2007, Queen’s Bench, at page 415—the Court of Investigation Measures Bill, which will come before us Appeal held that, in considering that crucial question, in due course, and Clause 26 of this Bill. Why has it the court must reach its own conclusion on the facts. If not been adopted in Clause 3? it disagrees with the Home Secretary, it must say so The whole point of having the balance of probabilities and quash the notice. It is the court’s decision on the as the standard is that it is a flexible standard. It is facts which will prevail, not that of the Home Secretary. relatively easy to discharge at the lower end of the 293 Terrorism Prevention and Investigation[19 OCTOBER 2011] Terrorism Prevention and Investigation 294 spectrum and it approaches the criminal standard at There is a fundamental principle, and I can see no the higher end of the spectrum The balance of justification for the departure from it. We, as Members probabilities is therefore the ideal standard in this case of the House of Lords, should recognise that. for Clause 3, where the restrictions are less severe, and Paragraph 1.8 states: for Clause 26, where the restrictions are more severe. “We also note that Lord Lloyd has tabled amendments to the The balance of probabilities is not only a flexible Bill which have the effect that TPIMs are imposed by the court on standard but is also well understood; reasonable belief the application of the Home Secretary.We support those amendments is neither. which in our view replace executive orders with prior judicial authorisation of the kind which both human rights law and our I should say a word in conclusion on Amendment 44, common law constitutional tradition require”. also in this group—but no more than a word, given Surely we all recognise that we in this country recognise as that it speaks for itself. There is much more that I part of our common law what is spelt out in paragraph 1.8. might say but most of it is contained in the excellent Finally, before I move elsewhere, paragraph 1.14 states: report of the Joint Committee on Human Rights, “In our view, reasonable belief is too low a threshold for the published only this morning in the nick of time. No imposition of such intrusive measures as are envisaged in the doubt, the Minister will have that report and will take TPIMs Bill. The standard should be the balance of probabilities. it well to heart. I beg to move. We support the amendment to clauses 3 and 6 to be moved in Committee by Lord Lloyd, to the effect that the decision of the court as to whether the individual is, or has been involved in Lord Goodhart: My Lords, this country has for terrorism-related activity is to be taken on the civil standard of centuries—going back 800 years to Magna Carta— proof, that is, the balance of probabilities”. recognised the rule of law. Part of the rule of law is Again, that is a fundamental matter. There must be a that those who are tried for crime must be convicted in balance of probabilities. It is no good saying that this court by a judge. For a criminal conviction, there must might be probable; there has to be a balance of be evidence beyond reasonable doubt that a defendant probabilities. Those whose cases fall short of the balance who is charged with terrorist action cannot be convicted of probabilities are not to be treated to orders or of it if there is reasonable doubt as to his involvement. measures under the TPIM Bill; that is a matter only Under the rule of law, those who are convicted of for study and surveillance. misconduct short of crime may be subject to civil I completely support what was said by the noble penalties. I know that terrorism is a terrible crime. I and learned Lord, Lord Lloyd of Berwick. I have accept that someone who is found to be guilty of known him for many years. He has been one of the terrorism on the balance of probabilities but cannot outstanding judicial figures in this country in the past be held to be guilty beyond reasonable doubt should 20 or 30 years. be subject to civil penalties such as TPIM notices, even Britain has a great tradition of recognising the rule though those penalties are very serious. of law. We are failing that tradition if the proposals What I do not accept is that penalties as serious as made by the Secretary of State do not have to have the those imposed under the Prevention of Terrorism Act full support of a court and may be imposed on people 2005, or those that are to be imposed under the TPIM whose actions fall short of the balance of probabilities. Bill, can be imposed by a Secretary of State, who is the In March 2005, during the final stages of the passing prosecutor, without the prior approval of a judge. It is of the Prevention of Terrorism Act of that year, the an absolute principle of British law that trials must be greatly missed Lord Kingsland, leading for the fair. I refer to chapter 9 of the late Tom Bingham’s Conservatives, and my noble friend Lord Thomas of classic book, The Rule of Law. A case where the Gresford and I, leading for the Liberal Democrats, prosecutor is also the judge cannot be fair, even if a tried to ensure that control orders could be imposed court has a power subsequently to quash the measure only by a court. We failed. Six and a half years later, if the court finds the application to be obviously we have a chance to achieve what we failed to achieve flawed—whatever that may mean. It is very far from then. Let us, in these difficult times, not lose that. obvious. This is doubly the case if, as in this Bill, the defendant Lord Morgan: My Lords, I have attached my name does not know what the evidence is against him and to the amendments and shall speak briefly about cannot therefore provide any evidence to be heard in them. I am not a lawyer; there are distinguished and the process against him. It cannot be fair for someone learned lawyers in this House. To me it is a simple who is not found by a court to be guilty on the balance matter of justice. That is why I support the amendments. of probabilities to have TPIM notices imposed on That is why I am in the Labour Party. The Labour him. Before a notice can be imposed, there has to be at Party I thought of believes in justice. That is why I am least a probability of terrorist action. If there is a still a member of it, and I look forward to the Labour possibility short of probability, it is surely a matter Party reflecting that outlook in our discussions and only for surveillance and not for TPIM notices. votes on this measure. It just seems to me profoundly I note with great interest the extremely powerful unjust that someone who is innocent under the law, report of the Joint Committee on Human Rights who is shown to have committed no offence, should be published this morning at 11 o’clock. I refer to three treated procedurally and in his mode of life in this extracts from that report. Paragraph 1.6 states that, way. It is basically unjust. “the well-established principle is that executive restrictions on 4pm liberty are such a radical departure from our common law tradition that they always require prior judicial authorisation after proper I call in aid one of the great figures in our history, legal process. It is for the Government to justify this Bill’s departure Sir Winston Churchill. He was Prime Minister in 1943 from that fundamental principle”. when there were a few pressures on national security. 295 Terrorism Prevention and Investigation[LORDS] Terrorism Prevention and Investigation 296

[LORD MORGAN] First, I would like to say that I support everything It was not a very secure time in our history; cities were that has been said about their amendments by the being bombed and people were worried about espionage. noble and learned Lord, Lord Lloyd of Berwick, and Yet Churchill turned his attention to one unpopular the noble Lords, Lord Goodhart and Lord Morgan— individual—a man in many ways regrettable in his although I have not known the noble and learned outlook—and suggested successfully to the Home Lord, Lord Lloyd, for quite as long as I have known Secretary that this man be released, because, in Churchill’s the noble Lord, Lord Goodhart. I support them because famous phrase, to keep someone under the edict of the their amendments are designed to ensure that the state, charged with no offence and in confinement, not imposition of a TPIM notice is a judicial act, and not knowing the charges and not having been charged an administrative act. If a restriction on basic liberty with anything, was “in the highest degree odious”. of this sort is to be imposed on British citizens because In my view the measures in this Bill, which sadly of allegations of wrongdoing, and it is not to be a part replicate so many of the measures in the previous Bill, of the criminal justice process, then surely the procedure which I voted against along with a number of other must contain as much of the rule of law as is possible. noble Lords on this side, are in the highest degree When opening the debate at Second Reading, the odious. Minister said at column 1137 that the Government’s I have two points, which have been explained with approach to balancing civil liberties and national security legal learning that is not at my command by the noble in this context is that the Bill should go no further in Lord, Lord Goodhart, and the noble and learned limiting people’s rights “than is absolutely necessary”. Lord, Lord Lloyd. First, it is quite wrong that legal That was the test he laid down, and it seems to me that decisions affecting someone’s liberty should be imposed that is the right test. However, if we are going to apply not by the judiciary but by the Executive. These are that test, surely it requires that the restrictions on Executive-imposed restrictions on the daily lives of people’s liberties are imposed only with the prior innocent people who have committed no offence. They approval of a judge. If the security services cannot are confined through the fiat of the Home Office, not persuade a judge in a closed session—because that is through the courts. The early amendments tabled by what is going to take place—that the restrictions are my noble and learned friend Lord Lloyd propose needed, then surely they should not be imposed. In an that this be done by the courts. We should have a urgent case, the judge would be asked to give temporary judicial view; it should be brought within the rule of approval until the matter can be fully considered. law and within the criminal justice system. I am not a There was a suggestion at Second Reading that lawyer but I am an historian and I think that this perhaps the judiciary would not want this responsibility. proposal is quite contrary to the way in which our There are two answers to that. First, the Bill confers constitution works. It is unconstitutional. We have on the judiciary the responsibility for deciding whether had the separation of the judiciary from the Executive a TPIM notice is appropriate at a later stage. There since it was set down in cold print in the Act of seems to be no difference in principle if the judiciary is Settlement 1701. This is quite at variance with that. It instead asked to make the decision at the outset. should not be done by a self-interested member of the Secondly, your Lordships should in any event have no Executive. doubt that if Parliament decides that it is appropriate Secondly, this should be done according to a proper to ask the judiciary to perform this role at the earlier burden of proof, which the noble and learned Lord, stage, Her Majesty’s judges will perform their duty Lord Lloyd, has wisely suggested is as recognised in faithfully and effectively. our civil justice system. What we have here is a burden of proof that can be challenged only very indirectly That is what I wanted to add on the amendments of and very marginally by the courts and the forces of the noble and learned Lord, Lord Lloyd. If, however, law in this land. What is it based on? It is based on the judicial control at the outset is not to be included in Executive saying, “This is something that we reasonably this Bill—which would be most regrettable—and if believe”. It is perhaps a slight improvement on its the imposition of a TPIM order is to remain at the predecessor, but as I said in my earlier speech, it is a outset an administrative process, then I have an alternative distinction without a difference. It is not adequate. We amendment, Amendment 17, to which the noble Baroness, should have precisely the same proper judicial test for Lady Hamwee, has added her name. The amendment innocent people of this kind, as we have for people concerns the standard of proof. who are shown to have committed serious offences Under Clause 3(1), a TPIM notice may be issued by under the criminal justice system. Many points will the Secretary of State where she, arise later about the defencelessness and inability of “reasonably believes that the individual is, or has been, involved people charged under control orders to communicate in terrorism-related activity”. with lawyers, which adds to the offence. Amendment 17 seeks to substitute a test of the balance This is an unjust measure. It offends against the of probabilities. I would ask the Minister, in responding traditions of our common law; it offends against the to this debate, to explain why it is that reasonable evolutionary history of our constitution; it offends belief should suffice as the test to be imposed by the against the doctrine of human rights; it offends against Secretary of State. A belief may be reasonable but the basic principles of justice in this proud country. I wrong. Why should these sanctions be imposed on a support the amendment. person if the Secretary of State is unable even to be persuaded that it is more likely than not that the Lord Pannick: My Lords, Amendments 17, 42 and wrongdoing has been committed, or will be committed, 43 in this group are in my name. by the individual concerned? 297 Terrorism Prevention and Investigation[19 OCTOBER 2011] Terrorism Prevention and Investigation 298

If the security services, with all the resources available Government engaged in highly contentious foreign to them, cannot satisfy the Home Secretary that on policy matters—for example, the Iraqi invasion—and the balance of probabilities more likely than not an pretend that one can shed all reference to the political individual is involved in terrorist activities, surely there policy of the time in order to reach an unbiased is no justification for imposing these restrictions on decision on a matter of such gravity. Above all, there is them. Of course, surveillance measures may well be no more difficult judgment than that which needs to appropriate even in relation to such a person against be made in the first instance in these cases. It is, par whom it cannot be shown on the balance of probabilities excellence, a job for an experienced judge who is used that they are involved—but that is a different matter to analysing complex facts and to balancing conflicting and we are not discussing surveillance measures. and often subtle issues. I want to speak also to Amendments 42 and 43 in Lastly, there is a utilitarian argument that is apt to this group which stand in my name. They ensure that be forgotten. If one does not do everything conceivable, when the court assesses the TPIM at a later stage and everything that a civilised community can do, to under Clause 9, the court should form its own view on mitigate the departure from normal judicial essentials, the merits and not apply a judicial review test. These one inadvertently creates an environment in which amendments arise out of the concern expressed by extremism flourishes rather than is deterred. your Lordships’ Constitution Committee, of which I I will say a quick word about my probing am a member, at paragraphs 14 to 17 of its report. At Amendment 5, which suggests that the judge or judges Clauses 9(2) and 16(6), the Bill provides that when the who, under Amendment 1, would make that initial court reviews the TPIM at the later stage, it should judgment are drawn from a panel established for the apply a judicial review test. In the control order context, purposes of the Bill by the Lord Chancellor, with the courts have made it very clear that they will treat the approval of the Lord Chief Justice in England, the the review as an appeal on the merits of the case. The Lord Chief Justice in Northern Ireland—although I Government’s Explanatory Notes accompanying the did not mention that—and the Lord President of the Bill accept that this enhanced level of scrutiny should Court of Session in Scotland. Again, this is a highly also apply to the TPIMs. practical amendment. Very often, high urgency attaches The report of the Joint Committee on Human to these matters: for example, a telephone intercept Rights, published today, also supports my Amendments 42 that indicates that within hours a potentially lethal and 43. It says: explosion will occur. Having a panel, at least one of “The surest way to deliver the intense scrutiny that the Government whom is permanently on call and available, and all of says it intends is to write it explicitly into the Bill. We therefore whom have been initiated into the particular complexities recommend that the Bill be amended to make it clear on the face of the judgments that need to be made under the Bill, of the Bill that the review to be conducted by the courts at the would be desirable and practical and would lead to the review hearing is a ‘merits review’ (as opposed to a supervisory best results. review)”. My final point is to emphasise that we are calling Will the Minister please accept, as the Constitution on our fellow citizens, whether they be the Home Committee and the JCHR have proposed, that it is Secretary or judges, to undertake as difficult a judging desirable to make it clear on the face of the Bill that at task as exists in the panoply of judging. I hope that the the later stage the court will be conducting an appeal Government will concur with the amendments. on the merits, just as is the case in relation to control orders and as the Explanatory Notes state the Government intend to occur? Lord Carlile of Berriew: My Lords, in this context, unlike my noble friends and other noble Lords who have spoken, I propose to speak in support of the Lord Phillips of Sudbury: My Lords, my name Government and of the proposals in this part of the appears with others on Amendments 1 to 4, 16 and Bill. I hesitate to dice with a great historian on matters 18 to 22. Amendment 5 stands in my name only. I of history, but I say to the noble Lord, Lord Morgan, accept that the Bill is warranted, but I echo the point that he was a little selective in his expression of the that where in extreme circumstances—national security historical context. First, in describing Regulation 18B, is a fit subject for an extremity—one departs from a perhaps he should have told the House that it was of a fundamental freedom, it seems to be blindingly obvious completely different character. The way in which it that there is no less a fundamental duty to minimise was made meant that the victim or subject knew that departure. I cannot for the life of me see how we nothing at all of the reasons why the order was made. do that by giving to a politician, however distinguished The so-called tribunal that heard Regulation 18B cases and assiduous, the task of making one of these—I am was completely lacking in transparency of any kind. tempted to say draconian—orders on his or her own. The great dissenting judgment of that wonderful Welsh That cannot be right and I echo all that has been said, judge, Lord Atkin, in Liversidge v Anderson took in particular by the noble and learned Lord, Lord decades to be accepted as the norm for judicial review. Lloyd, and by my noble friend Lord Goodhart. Although Churchill described Regulation 18B and its procedures as, 4.15 pm “in the highest degree odious”, Home Secretaries are always overbusy, and ludicrously a phrase that has become celebrated, the fact remains overstretched for much of the time. They are not that during Churchill’s prime ministership numerous trained to make judgments of this kind, and one has people—indeed, hundreds of people—were imprisoned to say that they are politically influenced—some may as a result of it, and he did not take steps to legislate in say biased. One cannot be a senior member of a favour of that dissenting judgment. Indeed, it was 299 Terrorism Prevention and Investigation[LORDS] Terrorism Prevention and Investigation 300

[LORD CARLILE OF BERRIEW] change to our constitution which plainly ought to be long after he had ceased to be Prime Minister that that passed through the courts at the earliest possible phase. happened. I think that the lessons of history as described I am afraid that, with real respect, I reject that argument. by the noble Lord are not terribly helpful. In dismissing deportation applications and deportation One should also bear in mind that whether we are decisions that are made daily by Home Secretaries, the talking about control orders or the diluted version in noble and learned Lord said that they are made against TPIMs—admittedly only slightly diluted, apart from foreigners so it is less significant, but if he thinks back the matter that we are going to consider in the next to the Belmarsh case that was decided at the end of group—they do not involve the incarceration of the 2004, he will recall that the Judicial Committee of this individual. They involve some restrictions on the House, of which he was a most distinguished member individual’s freedom which I understand most in this at one time, held that discriminating in that way against House regard as proportionate and reasonable given foreigners was unlawful. Indeed, the so-called Belmarsh the requirements of national security. provisions were struck down because they were My noble friend looks as though he wants to intervene, disproportionate and discriminated against foreigners but then he always does. Does he want to? by treating them differently from United Kingdom citizens. Lord Phillips of Sudbury: He does. It seems to me Lord Lloyd of Berwick: My Lords— that my noble friend’s historic account of Regulation 18B omits to mention that it was prevalent during wartime and that, as soon as that was over, it was repealed. Lord Carlile of Berriew: Perhaps I might finish this point before, predictably, the noble and learned Lord stands up. I do understand the distinction he is making. Lord Carlile of Berriew: Which was one of the It seems to me, with great respect, somewhat casuistic. reasons why it was so unjust, because a very large number of people were made the subject of Regulation 18B Lord Lloyd of Berwick: Surely the noble Lord must and almost none of them had any evidence of any accept and understand the difference between deporting kind whatever against them. When we are dealing with a British subject and deporting an immigrant. It is TPIMs or control orders, we have individuals against obvious. whom there is very robust intelligence. I do not think my noble friend has had the opportunity to read that Lord Carlile of Berriew: What I understand is that a intelligence, but had he done so he would undoubtedly deportation decision can be made by the Home Secretary. be so satisfied, being a reasonable person. The administrative court is considering these cases hour by hour, let alone day by day, often as matters of Lord Morgan: I do not propose to review the noble great urgency. It is considering cases in which people Lord’s review of my version of history, but I think it have been imprisoned. Sometimes, very young people worth pointing out that the ignorance of the evidence are imprisoned in unpleasant circumstances in this against them is precisely one of the problems in this country. I do not hear the noble and learned Lord case. The noble Lord rightly says that there is intercept saying that this is an act that should be the subject of evidence, but it is evidence denied to the person. I approval by a judge. In any event, it would be a agree that the person is not incarcerated but he is practical impossibility because the Upper Tribunal seriously restricted. and the administrative court are swamped by more than 10,000 of these cases at present. Lord Carlile of Berriew: I do not know whether the I also reflect on much simpler situations. It is suggested noble Lord has studied the effect of the case of AF that taking a citizen’s freedom away is something that (No. 3), but if he were so to do, he would find that should be determined by a judge in every circumstance. there is a requirement for the court. Successive Home But we even let police constables do it every day of the Secretaries, close to whose department I have worked, week. When a police constable arrests a citizen for have always been assiduous to ensure that there was something as “minor” as, for example, shoplifting, the sufficient material—particularly since AF (No. 3)—so person may be taken into custody on the fiat of a that the individual concerned knew the case he had to police constable. When people are charged with serious meet, at least in gisting terms. I urge the noble Lord to offences and not bailed, although they are brought read the Green Paper published today by the Ministry before a judge quickly, as is envisaged in this Bill, they of Justice, Justice and Security, which deals in part are taken off to such unpleasant places as Strangeways with these matters. or Belmarsh and find themselves in custody until they I would like to move on to the substance of these are brought up fairly summarily before a judge. Although amendments. The noble and learned Lord, Lord Lloyd it goes without saying that judges in every instance are of Berwick, called into his argument the requirement very careful in considering such cases, the care they for a court to approve a derogating control order take does not bear comparison with the care that High under the 2005 Act. In deploying that argument, surely Court judges give to controlees in control order cases. we should remember that, first, that there have been We have already mentioned deportation cases. no derogating control orders under the 2005 Act; and Organisations are proscribed by the Secretary of State, secondly, had there been a derogating control order, it taking the precious freedom of association and would have been so dramatic that we would have had membership of groups away from citizens of this to derogate from part of the European Convention on country and foreigners without discriminating between Human Rights. This would have required, in effect, a them. Decisions are made to invade people’s privacy in 301 Terrorism Prevention and Investigation[19 OCTOBER 2011] Terrorism Prevention and Investigation 302 what may be an outrageous way by warrants to intercept on the Liberal Democrat Benches and Members on their telephones as a result of administrative acts. the Cross Benches. I have the deepest regard for both They are not brought before a court. Certainly, retired groups. I ought to say, if no one has said it before, that judges are involved in these decisions but these are not the noble Lord, Lord Carlile, deserves a huge vote of transparent hearings with evidence and tribunals. The thanks from all of us for the work he has performed subject does not even know that it is happening. In over many years in the role to which he has just addition, covert surveillance, which can be an appalling referred. If I arrive at what is possibly a slightly invasion of people’s privacy, is performed as an executive different conclusion that is closer to that of my former act. constituent and noble friend Lord Phillips of Sudbury, It seems to me that there is some confusion here it will not be for want of admiration of the noble among my noble friends and other noble Lords in Lord, Lord Carlile. their analysis of the roles of different parts of the state My starting point is that 40 or 50 years ago, give or apparatus in the conduct of state business. In my take Regulation 18B, no one in this Chamber would judgment, for what little it is worth, the act of making have thought that anything like the successive regimes a TPIM or a control order has exactly the character of we have had since the 2001 Act were desirable. They ministerial responsibility that successive Home Secretaries, have been imposed on us by a change in the world that some of whom are noted Members of your Lordships’ we have not been able to control and which we have House, are able to carry out. What follows has exactly had to cope with in the interests of our citizens. But it the character of judicial scrutiny which judges are has led us into things that we would not have wished extremely well able to carry out and are experienced in to do in other circumstances. If anyone wonders why I carrying out. It seems to me to be a clear part of our have an interest in this, as well as in too many other constitutional settlement and to fit within it very clearly. things going on in the House at the moment, it is that The standard of proof is not an easy question and I those with longish memories will know that the choice do not pretend that there is a perfect answer to it. If fell on me to chair the Privy Counsellor Review Committee one reads through the open judgments in control of the Anti-terrorism, Crime and Security Act 2001 order cases, one sees that the reasoning of judges in which contained the provisions under which people those cases has been very strong. In almost every case, were basically locked up in Belmarsh without being I would venture that in reality the judgment has been found guilty of anything, and the key was being thrown made on the balance of probabilities and I would not away. The all-party committee found that deeply have a particular difficulty if that was the standard set. unsatisfactory. I notice that the noble Baroness, Lady Hayman, who was a member of that committee, is in However, there is a danger of underestimating the her place. We said that something had to be done difference between reasonable grounds to suspect and about it. The then Home Secretary went out of his reasonable grounds to believe. As a judge on the way to rubbish our report as quickly as he could and Judicial Committee of this House put it on one occasion: nothing happened until the courts threw out the relevant “Reasonable grounds to suspect means I suspect that part and said that it just could not stand. it may be so, while reasonable grounds to believe means I believe that it is so”. It seems to me that the We then got to the control orders under the 2005 Act, executive act of a Minister asking the question “Do I which in my view were an improvement. I share the believe it to be so?” is a proper standard to set and can view which has been expressed that these new proposals be scrutinised carefully by the courts. If the proof of are an improvement on those orders—perhaps marginal, the pudding is ever in the eating in court, that is what but somewhat better. So we are moving in the right has happened with control orders. direction and I would not want it to be thought that I was hostile to the Bill or to its fundamental aim and So far as a one-year TPIM with a two-year limit is purpose. However, I do think—here I come to the concerned, when I was the independent reviewer of position of my noble friend Lord Phillips, the noble terrorism legislation I always supported a two-year and learned Lord, Lord Lloyd, and the noble Lord, limit, and I still do. I see no reason why there should Lord Pannick—that this kind of thing is much better not be a one-year limit with an extension available. done as a court order rather than an executive act That seems to accord with the purpose of control unless there are very strong reasons to the contrary. orders or TPIMs. One can reasonably expect that The noble Lord, Lord Carlile, adumbrated to great during a one or two-year period, the potential of the debating effect a list of things that are done as executive individual concerned to be a terrorist is much reduced orders, and I do not want to debate all those with him, as a result of the order. However, I do have to say to but the mere fact that we have done a lot of things by noble Lords that there are cases where that has not executive orders does not mean that it is desirable. If been so, and there would have to be some exceptional you do not have to do it, I do not think that you provision so that those who, despite a TPIM, continue should. As far as I can see, the case has not been made to be active in terrorism should be subject to a new that this should be an executive order rather than a order if the evidence is available at the end of a court order. I therefore come down in sympathy with two-year period. the general purpose of the amendments in this group.

4.30 pm Baroness Hamwee: My Lords, some of us are even Lord Newton of Braintree: My Lords, having vigorously closer to the crossfire. indicated to the noble Lord that I wanted him to speak I start with a question which perhaps picks up before me, I am left rather regretting it because I now where my noble friend Lord Carlile left off. It concerns find myself caught in the crossfire between Members the time limit on the measures. I had intended to ask it 303 Terrorism Prevention and Investigation[LORDS] Terrorism Prevention and Investigation 304

[BARONESS HAMWEE] correct process should be. The imposition of a TPIM later under some amendments which I have down, but represents a public finding that an individual is involved I shall ask it now. I found it quite hard to follow the in acts of terrorism. Of course, the individual’s name Bill at the points where it begins to refer to revival, is not publicised, but surely his friends and his wider revocation, expiry, and so on. I needed a flow chart to community are aware of it. It is a grave step and a understand just what was available in terms of imposition grave potential stigmatising of an individual with an of measures. Are there any circumstances in which an association with the gravest kind of crime. It is in individual can be subject to a TPIM or a series of those circumstances that one is driven to the conclusion TPIMs lasting more than two years, and, if there is that, if a TPIM is to be imposed, it should be imposed one episode of new terrorism-related activity, which is not by a member of the Executive but rather by a defined, how long in all can a series of TPIMs last? court. It is in those circumstances that I support the I should make it clear that I very much support the amendments to that effect. amendments proposed by the noble and learned Lord, I have not yet heard an argument why it is better for Lord Lloyd of Berwick, and supported by others. I these measures to be imposed by a member of the also support the amendments of the noble Lord, Lord Executive. I have heard arguments from my noble and Pannick. On his Amendments 42 and 43, he quoted learned friend, whose advocacy I have heard many the conclusion today of the Joint Committee on Human times in courts up and down the land and which never Rights on the issue of a full merits review. It is perhaps ceases to impress me, as to why it is not necessarily worth reading into the record as part of this debate constitutionally inappropriate but not as to why it is the comments that the committee made in leading up positively better than the alternative. The argument that conclusion. It said that the Government in replying that has been made by a number of my noble friends to its previous report had argued that, and other noble Lords is that, given what a TPIM “there is no reason to doubt that courts will continue to apply represents and the gravity of the measure, if it can be intense scrutiny in TPIMs cases, as they have in control order done by a court it should be done by a court unless cases, and that ‘continued reliance on case law’ is the best way to there is a very good reason why it should not. I have deliver that intense scrutiny”. heard no such reason. That became part of the conclusion. It seems to me The same applies to the burden of proof. I agree that that does not amount to an argument for the entirely with the noble Lord, Lord Pannick: the balance principles of judicial review and that intense scrutiny of probabilities is a test which is tailor made, perfectly is not excluded by the approach which the noble Lord, made, for the process which the court needs to go Lord Pannick, has advocated and which I support. I through in this situation. It is not the criminal standard have checked the Government’s response to the previous of proof because these are, in essence, civil penalties, report by the JCHR. Nothing significant has been left but a civil standard of proof which, as he said, is out of the paragraph that I have just quoted. flexible, realistic, well understood by the judiciary and On the “balance of probabilities”, I added my does justice in civil cases up and down the land, name to the amendment of the noble Lord, Lord Pannick. including in other civil preventive measures. Can the Minister explain why under Clause 26, which Again, I do not understand what the argument introduces “enhanced”TPIMs, there is a higher standard against this is. If it is that it should be easier to impose of proof than for standard TPIMs? The same applies a TPIM—that we cannot trust a judge to come to a to the Draft Enhanced Terrorism Prevention and safe conclusion about whether something is more likely Investigation Measures Bill which is to have pre-legislative than not—that is a false argument. It is, if you like, a scrutiny. The memorandum from the Home Office to somewhat cowardly argument. We can trust the judges the JCHR regarding the draft Bill with the enhanced to apply a balance of probabilities test in TPIMs in a TPIMs, which, in particular, would provide for relocation, way that is both just and entirely capable of protecting said that the higher test is because of the more stringent the public. measures allowed by the draft Bill. Clearly it would apply the same argument to Clause 26. So called standard TPIMs are fairly stringent but, even apart 4.45 pm from that, I do not follow the logic. The standard of Lord Eames: I rise to briefly support the amendment proof as to the facts which permit a step to be taken is of the noble and learned Lord, Lord Lloyd, but do so a different matter from the steps which are available. I from an angle that has yet to be mentioned in the regard those as closely related but logically separate debate this afternoon. I base it on my own experience issues. I am lost as to why the higher standard of over the years. Exercising the duties given to me in proof, which, as my noble friend Lord Carlile has Northern Ireland, I saw at first hand the burden that encouraged the House to think, would not be a risk to successive Secretaries of State had to carry on behalf the Government in this context, cannot be applied. of the Executive in situations of dire necessity demanding often urgent and serious decisions in a matter of Lord Macdonald of River Glaven: My Lords, I hours. The former Secretaries of State who grace this support the amendments. I can do so relatively briefly House—I see the noble Lord, Lord King, in his place— because I can quite easily and simply adopt many of will recognise the roles of the judiciary and the Executive. the arguments that have been made. The Bill has been thoughtfully carried to this stage, Terrorism is the gravest and most dangerous kind and I am aware from my own contacts of the thought of crime and TPIMs are a properly grave response to and preparation that have gone into the terms before that threat. A consideration of what the imposition of us. The Minister will obviously want to argue that the a TPIM represents gives some clue as to what the right way to do this in the case of urgent and very 305 Terrorism Prevention and Investigation[19 OCTOBER 2011] Terrorism Prevention and Investigation 306 sensitive issues is through the work of the Executive had various degrees of enthusiasm about them and and their decisions. In his position, many noble Lords about the closed hearings and the special advocates, would argue the same. However, where in the sensitive but they said that they could operate unlawfully or and urgent situation of widespread terrorism a whole they could operate satisfactorily—it would depend on community is faced with what should be protection by the individual cases. However, they have survived what the Executive, there is a tendency not to value the was a wholesale attack on them as a measure. It was importance of the community’s confidence in how not decided by any court that they were by definition those decisions are made. contrary to the rule of law. It was acknowledged by In those years to which I referred in my own lifetime judges in a number of cases that the security of the of experience, in the discussions to which I was privy nation was a potent argument in favour of such orders. and decisions that were taken where my own opinion It was not suggested in any of those judgments that was sought, there was no doubt of the urgency and it was better for the courts to have the decision in the necessity of moving as quickly from the level of executive way that this amendment suggests. I doubt that the or political decisions to what could be transparently courts would really relish such a task. Their job, seen as the decisions of the judiciary. The important traditionally, is to scrutinise, to examine the legality of point I am simply trying to underline is that, in our the decision, but not to take upon themselves an discussions this afternoon, let us bear in mind the essentially executive decision. I suggest that the Secretary question of the confidence of the community in decisions of State—knowing, as she will, that her reasonable that are made at this level. I beg to suggest that, where belief will be subjected to close scrutiny by a process those decisions are made by the judiciary, there is which, correctly, places a heavy emphasis on the freedom much more acceptance by a hard-pressed community of the individual—will exercise that power extremely under a situation of terrorism than in the other case. responsibly, and I suggest that the balance should This is not to downgrade the integrity of any executive remain as it is in the Bill. decision, and I am not doing that; I am simply saying Finally, I will say something about the question of that we must take a broader view. For that reason, I the standard of proof. If there is a fundamental shift support the noble and learned Lord, Lord Lloyd. in the way that power is to be exercised, as is suggested by the amendment, and the matter comes to the courts Lord Faulks: I agree with what my noble friend to decide, then it may be that the standard of proof Lord Macdonald and many other noble Lords said, should be the balance of probabilities. That is the test that we can trust the judges. As the Bill currently that has evolved over the years to decide civil matters reads, they have the task of scrutinising the imposition generally. There have been recent decisions that suggest of measures on judicial review principles. Experience there is no shifting standard, but it remains the standard. and the dicta of judges suggest that they will be It has developed pragmatically because there have to particularly rigorous in this. This area is not generally be decisions in civil cases to be distinguished from the considered one where Ministers are permitted quite higher standard in criminal cases. the same sense of discretion as, say, on an issue of However, as I understand the amendment proposed economics, but it is one where judges really can get in by the noble Lord, Lord Pannick, should the power among the detail and form a view of a matter. They remain with the Home Secretary, she should not have are only too conscious of the potential limitations of the decision based on reasonable belief but on balance closed hearings and special advocates, and the potential of probabilities. I respectfully say that that balance of risk that these present to those who are potentially the probability test may be appropriate where there is a target of these measures. judicial process to be undergone, but where we are On the amendment proposed by the noble and talking about an executive decision, reasonable belief learned Lord, Lord Lloyd, I acknowledge his distinguished is much more appropriate than the process of coming pedigree and the pedigree of the amendment, which I to a conclusion on a 51:49 basis, which is far more think goes back some time to the original control suitable for a judicial determination other than the orders, but I respectfully suggest that it is inappropriate. decision which at the moment would—and should—rest I suggest that the obligation rests on the Home Secretary with the Secretary of State. to protect the security of citizens. It rests upon her shoulders and it is a heavy burden. If one needs to find Lord Pannick: Under the Bill as it is at the moment, any emphasis in this from the Human Rights Act, the judiciary are involved at the later stage. If they are Article 2 provides an obligation on the part of the to conduct a merits review, as the Government intend, public authority, the Government, to take measures to they will apply the same test as to standard of proof as protect the life of citizens. Those measures will include the Minister has applied in making the order. If the appropriate measures to prevent outrages of this sort— noble Lord accepts that balance of probabilities is that is of course what this Bill is concerned with. In suitable as a judicial test at the end of the process, this Bill she has to reasonably believe that an individual surely the Secretary of State must apply the same test is involved in terrorist activity and reasonably consider at the beginning of the process. that a TPIM and its appropriate measures are necessary. That is an exercise that she, with that heavy burden Lord Faulks: What I endeavoured to say was that placed upon her, should perform. the balance of probabilities would be appropriate As I understand it, this amendment is born out of were the courts to be taking that initial decision in an outright opposition to TPIMs and their predecessors, place of the Secretary of State, which I understand to control orders. The courts have minutely examined be the burden of the amendment put forward by the these control orders in a number of cases. They have noble and learned Lord, whereas I understand that the 307 Terrorism Prevention and Investigation[LORDS] Terrorism Prevention and Investigation 308

[LORD FAULKS] terrorism prevention and investigation measures. As suggestion made by the noble Lord, Lord Pannick, is far as the Government are concerned, the bar has that the initial stage and the decision to be taken by already been raised under this Bill from “reasonably the Secretary of State should be on the balance of suspect” to “reasonably believes”. Amendment 17 raises probabilities, and there I suggest that the current test it higher to, is more suitable. “is satisfied on the balance of probabilities”, a term with which the judicial system is more familiar Baroness Hamwee: Does the noble Lord have any and with which, no doubt, its practitioners are more at comments on the provisions in Clause 26, which provide ease. for the Secretary of State to take a decision based on the balance of probabilities in the position where the The outcome of all these amendments is quite more stringent measures might be applied? likely to be that the number of people subject to the renamed control orders is less than it would have been Lord Faulks: I have no immediate answer to that, under either of the thresholds—the Government’s but at this juncture I would suggest that the initial proposed “reasonably believes”or the current legislation’s decision-making process is far better on that basis “reasonably suspect”—for the Secretary of State to because that is the most important stage: whether or cross before imposing a TPIM. That may be one, but not you decide that it is appropriate to impose, or seek surely only one, of the intentions of these amendments, to impose, a TPIM—with the approval of the court, it since their authors are clearly unhappy with both the must be said. present arrangements and the amended arrangements set out in the Bill—so unhappy, indeed, that the first Lord Neill of Bladen: My Lords, I wish to add my set of amendments largely takes the Secretary of State view. I entirely agree with what the noble and learned out of the equation. Lord, Lord Lloyd of Berwick, moved by way of an amendment. I fully support that and I also support the 5pm amendment tabled by the noble Lord, Lord Pannick. We do not share the view of the Joint Committee The basic question is one of justice: where should the on Human Rights that the courts are the best judges order be made that leads to these deprivations of of what needs to be done to protect national security, liberty? I have been told that you would have to be in a and thus of when and on whom to impose specified particular residence for a long period of hours. All terrorism prevention and investigation measures. However, those things in orders of that type are grave deprivations we want the courts to have a vital and extensive role in of privilege. Here, I agree with what the noble and ensuring that the Secretary of State has not exceeded right reverend Lord, Lord Eames, said based on his the powers given by Parliament and has neither acted, experience, which is borne out by the material that we nor proposes to act, in an unreasonable manner in the are reading now as to where the public place their light of the information available. Neither do we sense confidence. Perhaps not surprisingly, journalists come that the amendments transferring responsibilities to at the bottom. I do not know where lawyers come in the courts are prompted by a view that Secretaries of but it is somewhere not very high up. Yet the judges State have exercised their powers in relation to control seem to have the backing of the public as being in the orders in an irresponsible and unacceptable way, and safest and soundest place for judgments to be made. If that such powers should therefore be taken away from those judgments involve the liberty of the subject, as I them. It remains our view that when and on whom to believe they do in this case, that is where we should put impose such measures as control orders—to address our money. the exceptional situation in which we now find ourselves—is in essence a ministerial decision, based Lord Rosser: My Lords, one of the attractions of on the intelligence available, and should be made by a these debates is that we get not one but many legal Minister responsible for national security, accountable opinions—different opinions from distinguished legal to Parliament and the electorate, and open to challenge practitioners, at no charge and expressed with some in the media. force. The effect of many of these amendments is to significantly alter the Bill. One set within the group we are talking about gives the power to impose specified Lord Morgan: Is my noble friend aware that the terrorism prevention and investigation measures on an view he has expressed is totally contrary to those of individual to a court, rather than to the Secretary of such figures as Attlee and Aneurin Bevan, who were State. It also appears to require that before such among the founders of the National Council for Civil measures can be imposed, the individual concerned Liberty, which discussed the rights of working men, has to be or has been involved in terrorism-related including the right to demonstrate and the right to activity, which, if that is the case, sounds a bit like speak? He is taking a contrary view, which is very sad. shutting the prevention of terrorism door after the horse has bolted. Most people would prefer to see Lord Rosser: I have no doubt that the views that I action taken against the small minority minded to am expressing are not in line with those of a great commit acts of terrorism before they carry out the many people, but perhaps they did not have to deal deed, rather than afterwards. with the situation that we face today—the threat of The second set of amendments we are discussing acts of terrorism. I repeat that we regard this as a continues to give the Secretary of State a role but ministerial decision. It should be made by a Minister appears to raise the bar that has to be cleared by the responsible for national security, accountable to Parliament Secretary of State before he or she can impose specified and the electorate, and open to challenge in the media. 309 Terrorism Prevention and Investigation[19 OCTOBER 2011] Terrorism Prevention and Investigation 310

Such a decision is subject to scrutiny by and in the I am afraid this means—I start with an apology—that courts but it is the Secretary of State who should make I will have to answer this debate at some length because the decision. The Government, not the courts, will be it is important to deal with the various points that held accountable for the top priority of protecting the have been raised. public from terrorism. Governments, not judges, pay The 20th report of the Joint Committee on Human the price for failing to protect the nation from terrorism, Rights came out at 11 o’clock today, as the noble and people look to their Government, not the courts, Lord, Lord Goodhart, reminded us. Obviously, the to protect them from acts of terrorism. Government have not had time to consider it in detail. I will respond to a number of the points because the Lord Phillips of Sudbury: The noble Lord has twice points it makes are similar to those put forward by the said that the Minister is answerable to the media. How noble and learned Lord, Lord Lloyd, in his amendments, can the Minister be answerable to the media for an which have been supported by others. However, in due order made in total secrecy? course—I hope that will be before we get to Report—the Government will want to make their formal response Lord Rosser: I said “open to challenge in the media”; in the usual way. At this stage I will respond in part I am not sure that is the same as being accountable to but noble Lords will understand that we are keen to the media. On this issue we continue to hold a very give a fuller response in due course. I will endeavour to different view from that expressed by, among others, ensure that that appears before Report but I can give the noble and learned Lord, Lord Lloyd of Berwick, no guarantee at this stage. and my noble friend Lord Morgan. I simply do not accept that the TPIM regime is I appreciate that one of the arguments is that the outside the rule of law, as the noble Lord, Lord very system of control orders that we have provokes Goodhart, suggested. This Bill and its predecessor are people who might otherwise have been only minded to and have been through the parliamentary process and commit acts of terrorism actually to do so. I am not are subject to review by the courts. To argue that this is aware of the evidence that supports that contention beyond the rule of law is unfair and excessive. This but I am aware that acts of terrorism were committed large group— when there were no control orders in existence and that control orders, which have affected a limited Lord Goodhart: My Lords, I am grateful to my number of people, seem to have been in effect during a noble friend for giving way. That is a misapplication of period when we have been afforded a fair degree of what I was trying to say. I said that you cannot achieve protection from acts of terrorism, despite the threat a rule of law without law, and that involves the right of level having been either severe or substantial. the law of those who are concerned with it. It is I also appreciate that there are concerns over human necessary to have law by lawyers in the courts. It does rights. However, I understand that it is being held that not mean that the decision of the Secretary of State or control orders are compliant with the European someone else is therefore to be disregarded; they are Convention on Human Rights. As well as the rights of both different factors of the same situation. the individual, there are surely issues about the rights of innocent people to be protected from acts of terrorism. Lord Henley: My Lords, I am sorry if I misunderstood As the Minister said at Second Reading: my noble friend; I am a simple soul in these matters. However, my understanding was that he had suggested “It is clear that the current threat from terrorism remains serious and will not diminish in the foreseeable future. It is also that this measure was outside the rule of law. What I clear that in this country there are, and will continue to be, a small was trying to get over is that I do not accept that point. number of people who pose a real and immediate terrorist threat The Bill is going through a proper process and after it but who cannot be successfully prosecuted or deported”.—[Official has been enacted, by the will of Parliament, it will be Report, 5/10/11; col. 1134.] subject to review by the courts. That is the important The current Secretary of State has been prepared to point to remember. use control orders, including the relocation provision, The group of amendments before us deal with four and has received the clear backing of the courts. major points which I will deal with in order. The first We do not agree with much of this Bill, as we made one concerns the very simple point of whether the clear at Second Reading. The Government have already courts should make these orders rather than the Home made changes that weaken the current arrangements Secretary. Secondly, we heard the arguments about and risk having an adverse impact on the ability to where the standard of proof should be. A subsidiary protect the public from terrorism. We do not agree part of that was in the amendments of the noble Lord, with these amendments that we are discussing, apart Lord Pannick, who said that even if we did not accept from the thrust of Amendments 42 and 43 tabled by the first part—that is, shifting the argument to the the noble Lord, Lord Pannick, which is why we have courts—the standard of proof for the Home Secretary’s given notice of our intention to oppose Clause 9. We decision should be changed. Thirdly, we heard the wait to see whether the Minister will accept any or all arguments of the noble Lord, Lord Pannick, set out in of the amendments, which in our view water down the Amendments 42 and 43, dealing with the full merits current arrangements even further. review. Fourthly, there were arguments about the time limit and how long the TPIM orders should last—whether The Minister of State, Home Office (Lord Henley): one year, two years or beyond. I should like to deal at My Lords, this is a very big group of amendments some length with all four points and I hope that I can before the Committee. I thank all noble Lords for get them in the right order. Perhaps my notes can their co-operation in agreeing that we should group assist me in that. It is important that I set out my together such a large number of amendments. However, points. 311 Terrorism Prevention and Investigation[LORDS] Terrorism Prevention and Investigation 312

[LORD HENLEY] that the same should be imposed on the Secretary of I should deal first with the proposal for court-paid State, were she to be the one making that decision. TPIM notices. I do not agree, as I made clear at Although the approaches are different, the question Second Reading, that judge-imposed TPIMs represent that we need to raise is the appropriate test for imposing the right approach for the new regime. I am grateful a TPIM notice. that on this at least, I have the support of the Opposition The issue of a proper test for the preventive powers Front Bench. They might not like other parts of the now included in the Bill was carefully considered as Bill but I got the distinct impression that the noble part of the counterterrorism review conducted by the Lord, Lord Rosser, agreed with me on that issue. Our Home Secretary and the Home Office. The conclusion view is that it is appropriate that TPIM notices should reached was that it was right to raise the threshold for be imposed by the Home Secretary. As the noble Lord, imposing a TPIM notice to “reasonable belief” from Lord Rosser, put it, she is responsible for national the test of “reasonable suspicion” required to make a security and is best placed to determine what is necessary non-derogating control order—which is the only kind in the interests of national security, with the benefit of that has ever been made. I am grateful to my noble the broader knowledge of the threat picture that sits friend Lord Carlile for reminding the House that no with her role as Home Secretary. derogating orders have been made. I emphasise that this is consistent with the approach The decision was made as part of that review that taken to other executive actions in national security the standard should be raised to reasonable belief cases, and decisions based on sensitive material. This from the test of reasonable suspicion. We believe that includes—an example given by my noble friend Lord raising the threshold to reasonable belief provides an Carlile—decisions to exclude, deport or deprive people additional safeguard in the new regime compared to of citizenship on the basis of national security the current control order regime. As we made clear considerations. It is also consistent with the approach when we announced the outcome of the review in taken on decisions to freeze terrorists’ assets—the new January, it is also consistent with the approach that we legislation which this House approved only last year. have taken to the provisions relating to terrorist asset It is also consistent with the current provisions under freezing in the Terrorist Asset-Freezing etc. Act 2010. which all control orders have been made. The TPIM regime is a preventive regime intended Noble Lords will appreciate that this is the view not to protect the public from the risk of terrorism. In just of the Executive; it is also consistent with views reaching the decision to move to reasonable belief, we expressed by the courts on the roles properly played by therefore considered whether changing the threshold the Home Secretary and the courts in national security in that way could put the public at risk. Our conclusion matters. The Court of Appeal explicitly recognised in was that it would be unlikely that any of the cases its 2006 judgment, in the case of the Secretary of State where we would want to impose a TPIM notice would for the Home Department and MB, that, fail to meet the higher test of reasonable belief. “the Secretary of State is better placed than the court to decide We are therefore satisfied that the change to reasonable the measures that are necessary to protect the public against the belief is unlikely to be prejudicial to national security. activities of a terrorist suspect”. At the same time, that represents an increase in the In the same judgment, the Court of Appeal also noted protection for the civil liberties of the individuals that the principle that the courts should pay deference concerned. Those favouring the amendment take the to the Executive on matters relating to state security view that the threshold should be further raised to has long been recognised by the courts in this country, “the balance of probabilities”. In that review, we including the Law Lords, and the European Court of considered that option. However, we concluded that a Human Rights. This supports the argument that the move to the balance of probabilities for the main proper division of responsibilities in the field of national TPIM regime would not give us the right balance to security is for the Home Secretary to make the decisions ensure that the public will be protected. Again, I stress but for the judiciary to review those decisions, and to that it is a question of getting the balance between review them rigorously, as it always does. ensuring the protection of the public and protecting the liberties of individuals. The TPIM Bill provides for extensive, multi-layered court oversight and review of the Home Secretary’s Lord Pannick: Can the Minister tell the Committee decisions. This includes a requirement for court permission a little more about why the balance of probabilities before imposing a TPIM notice, an automatic full test would not provide sufficient protection for national review of every case in which a TPIM notice is imposed, security? and the right of appeal against the Secretary of State’s decisions in relation to, for example, requests to vary Lord Henley: The test that the noble Lord proposes, the measures imposed or revoke the notice. We think as is made clear by the Joint Committee on Human that this apportionment of roles best serves the interests Rights report, is a slightly tougher test than what we of national security while ensuring that the civil liberties suggest, which is that of reasonable belief. If there is a of those who are made subject to TPIM notices are slightly tougher test, that obviously implies that there properly protected. would be a greater risk to security. We have increased I turn now to the question of the standard of proof. the test from reasonable suspicion to reasonable belief. Again, the noble Lord has suggested that his judge-made We do not believe that we should increase it any TPIM notices should be made on the balance of further. I hope that the noble Lord will accept that probabilities. The noble Lord, Lord Pannick, offered argument; but I see that he does not, and I give way yet his alternative in Amendments 42 and 43 by suggesting again. 313 Terrorism Prevention and Investigation[19 OCTOBER 2011] Terrorism Prevention and Investigation 314

Lord Pannick: I am simply trying to establish whether been slow in finding against Home Secretaries of an assessment was made that a balance of probabilities whatever regime for many years in control order litigation, test would be positively damaging to national security and have used their powers to quash control orders or in this country. Was such a conclusion reached? to give directions to the Secretary of State as appropriate under the current system of judicial review principles, Lord Henley: I made clear that, as part of that as interpreted by the Court of Appeal in the case review, we considered moving to that test. I was not in of MB. the Home Office at the time, so I do not know what We are of the view that the courts will apply relevant precise consideration was given, but in the end the case law to TPIM proceedings as appropriate. That decision was taken that, yes, we will raise the standard will, of course, include the case law on the type of from reasonable suspicion to reasonable belief, but review undertaken by the courts in these kinds of that to take it beyond that would create risks. A cases. In summary, in relation to the full substantive decision had to be made on where the appropriate review of each control order, the Court of Appeal balance should be, and that is why we came down in ruled again in MB that the High Court must make a favour of reasonable belief rather than a balance of finding of fact as to whether the reasonable suspicion probabilities. limb of the statutory test for imposing a control order I hope that the noble Lord can accept that, but I is met, and must apply intense scrutiny to the Secretary can see that it is a very difficult one and we will no of State’s decisions on the necessity of each of the doubt discuss it in later stages of the Bill. We believe obligations imposed under the control order while that reasonable belief should deal with the questions paying a degree of deference— raised by the noble Lord. The same applies to his Amendments 42 and 43 when talking about the decision Lord Hunt of Kings Heath: My Lords, I am grateful being made by the Home Secretary herself. Again, I to the noble Lord for giving way because it enables me noted what my noble friend Lord Faulks had to say on to anticipate the arguments we are going to have later, that matter. Possibly they were better words for use on whether Clause 9 should stand part of the Bill. He with the Home Secretary’s decision rather than when will know that the Opposition have concerns about the talking about a judicial process. Again, we feel that we Bill, both because we think that it in some ways have the balance about right. weakens our ability to prevent terrorism acts, and I turn now to the question raised on the full merits because we think that it weakens some of the safeguards. review in the noble Lord’s Amendments 42 and 43, I very much agree with the noble Lord, Lord Pannick, which I mistakenly said were his amendments on the on this. Given that the enhanced level of scrutiny has alternative, but that is covered by his Amendment 17, been one of the ways in which we have seen that the so I correct myself at this stage. His Amendment 42 control order regime works effectively, I am surprised specifies that a full court review of a TPIM notice that the Government are not prepared to accept the under Clause 9 must be “on the merits” and would spirit of what the Constitution Committee has put delete the subsection of that clause which specifies forward. I still do not understand why it is not possible that, to put this in the Bill. “the court must apply the principles applicable on an application for judicial review”. Lord Henley: My Lords, I shall develop those As the noble Lord explained, these amendments arguments further when we get to Clause 9, which the are designed to ensure that the review of an imposition noble Lord wishes to discuss. Late this evening though of a TPIM notice provides a full merits review. He it might be, that might be the appropriate time, and I articulated the view of the Constitution Committee—yet look forward to that in due course. another committee that has been looking at this—in I shall now move on to the fourth point I want to its report on the Bill: that it should be clear, on its face, deal with, which relates to the question of the time in cases concerning TPIM notices. The function of the limit and how long a TPIM notice can have an effect. court is not limited to ordinary judicial review. Such a The noble and learned Lord, Lord Lloyd, proposes constitutionally important matter should not be left changes to the provision relating to the period for for clarification in the Explanatory Notes. Similarly, which a TPIM notice can be served. In his model, as I the noble Lord, Lord Hunt, made it clear that the understand it, there would be a requirement for new purpose behind his intention to oppose the question terrorism-related activity to have taken place while the that Clause 9 stand part of the Bill is to facilitate TPIM notice was in force in order to allow the TPIM consideration of this same issue. notice to be extended into its second year. Again, we The Government have been clear that judicial oversight do not think that this strikes the right balance—and of the process of imposing measures must be a key again, it is “balance” that we want to stress—in the feature of the new regime. The involvement of the context of preventive orders of this kind. Indeed, it courts is an important safeguard for the rights of the would undermine the Government’s ability to protect individual, and the Bill takes a comprehensive and the people of this country from a risk of terrorism. multilayered approach to this. As the Explanatory Although we have decided that extension of a TPIM Notes explain, the case law relating to control orders is notice for a further year should only be allowed on subject to a particularly intense level of review by the one occasion—after which new evidence would be High Court. It is absolutely the case that the Government required to impose a new TPIM notice—we do not intend for the same intense level of scrutiny to be believe that new terrorism-related activity should be applied in court reviews of TPIM notices under Clause 9. required in order to extend the original TPIM notice All noble Lords will be aware that the courts have not for that first year. In other words, one could make the 315 Terrorism Prevention and Investigation[LORDS] Terrorism Prevention and Investigation 316

[LORD HENLEY] Lord, Lord Eames, and to the noble Lord, Lord original notice for a year, then extend it; but if one Macdonald. We shall definitely return to all these wanted to extend it further than those two years, then matters on Report, and in the mean time I beg leave to there must be new activity. withdraw the amendment. An ongoing necessity for the notice can be made out on the basis of the original terrorism-related activity, Amendment 1 withdrawn. particularly where that activity was very serious, suggesting that the individual’s mindset and intention to do serious Amendments 2 to 5 not moved. harm will not have changed after just one year subject to whatever restrictive measures have been imposed in Clause 2 agreed. the TPIM order. Indeed, many court judgments in the context of control orders confirm that ongoing necessity, for the purposes of public protection, is not dependent Schedule1:Terrorism prevention and investigation on any new terrorism-related activity since the imposition measures of the control order. Although the Government’s view is that TPIM Amendment 6 notices should not be used simply to warehouse people for very long periods and should not be imposed Moved by Lord Carlile of Berriew indefinitely on the basis of the same evidence—as can 6: Schedule 1, page 22, line 5, at end insert— happen with control orders at the moment, if the “Residence measure statutory test continues to be met—we do not think A1 (1) The Secretary of State may impose restrictions on the that a notice that can only last one year without individual in relation to the residence in which the individual evidence of new activity while subject to the measures resides. will be sufficient to disrupt the threat proposed by the (2) The Secretary of State may, in particular, impose any of individuals concerned in many cases. Therefore we the following— believe that the right balance—again, I stress “balance”—is (a) a requirement to reside at a specified residence; this “one year plus one year” approach. It is a balance (b) a requirement not to allow others to reside at that between protecting the public from persons believed residence without the permission of the Secretary of to be engaged in terrorism-related activity and protecting State; the civil liberties of those individuals. I hope that also (c) a requirement, applicable between such hours as are answers the point made by the noble Baroness, Lady specified, to remain at the specified residence. Hamwee, as to whether one could go beyond two (3) The specified residence— years with a TPIM notice. What I want to stress is (a) may be in any locality in the United Kingdom that that, if one wants to go beyond two years, one has to appears to the Secretary of State to be appropriate; find some other terrorism-related activity. (b) may be a residence provided by or on behalf of the I hope that that has dealt with most of the points Secretary of State that have been made in the very useful debate we have (4) If the specified residence is provided to the individual by or had on this large group of amendments at the start of on behalf of the Secretary of State, the Secretary of State may the Committee stage of this Bill. No doubt we will be require the individual to comply with any specified terms of occupancy of that residence (which may be specified by reference coming back to all these matters at a later stage of the to a lease or other document). Bill, just as we will be coming back to them on (5) A requirement of the kind mentioned in sub-paragraph (2)(c) Clause 9, as the noble Lord, Lord Hunt, has assured must include provision to enable the individual to apply for the us—possibly later on today. I hope that, as I have permission of the Secretary of State to be away from the specified answered those points, the noble and learned Lord, residence, for the whole or part of any applicable period, on one Lord Lloyd, will feel able to withdraw his amendment, or more occasions. and we can move on with the Committee. (6) The Secretary of State may grant such permission subject to either or both of the following conditions— 5.30 pm (a) the condition that the individual remains overnight at other agreed premises between such hours as the Secretary Lord Lloyd of Berwick: My Lords, I am grateful to of State may require; the Minister for his careful response to this large (b) the condition that the individual complies with such group of amendments. I shall read what he says in other restrictions in relation to the individual’s movements Hansard. Indeed, I shall scrutinise, if that is the right whilst away from the specified residence as may be so word, what he says with care. He referred to the required. decision in MB as in some way supporting his view (7) “Agreed premises” are premises in the United Kingdom that it should be for the Secretary of State, rather than which are agreed by the Secretary of State and the individual. for the judge, to make the order. However, I do not (8) Sub-paragraph (6) is not to be read as limiting— agree with that reading of the case. As I read it, MB (a) the generality of sub-paragraph (7) of paragraph 14 requires the court to make a full merits review at the (power to impose conditions when granting permission), or Clause 9 stage. That is a matter we shall discuss again, just as we shall discuss again the Minister’s reasons for (b) the power to impose further conditions under that sub-paragraph in connection with permission granted by preferring reasonable belief to a balance of probabilities. virtue of sub-paragraph (5) of this paragraph. With two exceptions, all noble Lords who have (9) In sub-paragraph (7) “applicable period” means a period spoken have supported these amendments. I am for which the individual is required to remain at the specified particularly grateful to the noble and right reverend residence by virtue of a restriction imposed under this paragraph.” 317 Terrorism Prevention and Investigation[19 OCTOBER 2011] Terrorism Prevention and Investigation 318

Lord Carlile of Berriew: My Lords, in tabling this place. One effect of the Games on policing in this amendment, I am grateful for the support of the noble country will be that a large number of police officers Lord, Lord Hunt of Kings Heath, who has put his will be removed from their normal duties up and down name to it. This group of amendments is about relocation, the country—dare I say to the Minister, in Cumbria an issue we discussed at Second Reading. The first for example? Those officers will find themselves in sentence of the executive summary of the Justice and unfamiliar places in east London, protecting the Olympic Security Green Paper, published today by the Ministry Park. Perhaps not in Cumbria but in some of our of Justice, is: bigger and more populous resorts during the summer, “The first duty of government is to safeguard our national there will be an increased risk of terrorism events security. In delivering this duty, the Government produces and going undetected. receives sensitive information”. My fourth question, which is connected, is really a I do not want to repeat at great length the arguments rhetorical question. Surely on the basis of the evidence on relocation presented at Second Reading. I simply the Government must accept that they would be fulfilling want to reiterate that the sensitive information, the security what the Green Paper describes as the first duty of that the Government have received, points to the need, government by retaining relocation until after the for the time being at least, to continue as part of the main Olympics and Paralympics are over. legislation the power to order relocation, used sparingly My fifth question relates to something that was as it is and subject to the scrutiny of the courts. raised at Second Reading: the case of CD and the I have drafted the amendment so as to keep the judgment of Mr Justice Simon. When the CD case existing control order provisions for relocation until was heard earlier this year, did Her Majesty’s Government after the Olympic Games, choosing a date after 1 January consider it proportionate and in the interests of national 2013. At that point, it would be open—and I am security to request a relocation component in CD’s completely open-minded about this—to the Government control order? If they did, I come to my final question: to come back to Parliament and to replace the relocation have they changed their mind about CD? If they have, provisions with what is in the Bill, which would remove why have they done so? relocation subject to emergency legislation. All that The decision in the case of CD was taken on would be required would be an affirmative resolution the basis of arguments presented on behalf of the of both Houses. There would therefore be a debate in Government, with special counsel present, after the which the Government would pass to each House of publication of the counterterrorism review that was Parliament the advice that they have received from the independently and very capably scrutinised by my security services, including the sensitive information noble friend Lord Macdonald of River Glaven. If the to which I referred earlier. Government had decided that relocation was no longer necessary, it is surprising that they bothered to make I can best make my argument for this group of the argument against CD. One should, after all, contrast amendments by asking the Minister a series of questions. it with the decision made in relation to Section 44 stop First, is it correct that the National Security Council, and search, which remained on the statute book long after which is made up of Ministers only, has been advised the Home Secretary made the welcome announcement against the removal of relocation from the list of that it was in effect no longer to be used. I am driven available powers? If the NSC was so advised, I suspect to the conclusion that there was a merits argument in that the Minister will be driven to confirm that the the Home Office about both these issues and that the removal of relocation is not as a result of a debate on decision that was taken on the merits was that Section 44 the merits but as a result of political considerations should no longer be used because we did not need it, founded on the manifestos of the two partners in the but the decision that was taken on the merits in coalition. I am as enthusiastic about the coalition as relation to relocation and CD was that it should most Liberal Democrats—well, nearly—but I am not continue to be used because we do need it. All that enthusiastic about political considerations trumping leads me very reluctantly to the conclusion that the national security, which is what I fear may have happened. removal of relocation has far less to do with the My second question is: have Her Majesty’s Government’s first duty than with meeting some Government received any advice from those who are arguments that have been made before this Government currently operational in MI5, MI6, GCHQ or SO15, were formed and in a political context, including a the counterterrorism command, that the relocation very powerful argument made in a Times article by my power has become an unnecessary component of national noble friend Lord Macdonald before he was a Member security for the time being? If they have, perhaps they of this House. will tell us what it is and whence it came, because my What I would ask the Minister to do is merely to belief is that the advice will be eccentric and not in the confirm at this stage, because we will return to this mainstream. later, that the Government are considering this matter My third question is: does any part of the informed and are now considering it on its merits. I beg to move. security bodies—those with the information—support the removal of the relocation power before the Olympics Lord Hunt of Kings Heath: My Lords, I rise to and Paralympics, as opposed to after them? In other support the noble Lord, Lord Carlile, and have added words, what consideration has been given to the pinch my name to his amendment. I really hope that the point that will be created by the Games? We should Minister will give this earnest consideration. He will remember in this context that we are talking about the know that I am highly critical of the Bill that he brings security not only of the Olympic Park and the other before us. It is clear that the exclusion provisions venues where Olympic and Paralympic events will take within control orders have proved to be highly effective. 319 Terrorism Prevention and Investigation[LORDS] Terrorism Prevention and Investigation 320

[LORD HUNT OF KINGS HEATH] Lord Hunt of Kings Heath: Will the noble Lord The evidence given by the deputy assistant commissioner address the evidence given by the deputy assistant to the Public Bill Committee in the other place was commissioner, which I know he will have read, which quite persuasive on that point. The noble Lord, Lord pays tribute to the effectiveness of that exclusion order? Carlile, has already referred to the case that the Home Secretary herself brought forward and argued for the Lord Pannick: I am coming to that, but let us at the use of such provisions. It is clear that the Government outset recognise the impact of a relocation measure. If know that they may need these provisions in the one is going to adopt a measure or power of this sort, future. That is why we have the enhanced TPIMs draft one needs to recognise the striking impact that it has Bill for use if it were ever to be required. on the spouse and the children. A measure that amounts We have the quite extraordinary provision in this to internal exile of a person needs a compelling Bill that if the enhanced provisions were to be required, justification. and were to be required in the period between the Dissolution of Parliament and the first Queen’s Speech Lord Carlile of Berriew: I know that the noble Lord in the next Parliament, the Home Secretary is to be eats legal authorities for breakfast, probably literally empowered by this Bill to use those provisions. If ever sometimes. I would just like him to give his comments there were an admission that the Government know in on the cogent judgment and reasoning of Mr Justice their heart that they may need those provisions and, Simon in CD, the case to which I referred, in which the indeed, have used them in their period of office, there judge took the matters the noble Lord has just mentioned is the evidence. into account and reached a considered conclusion. We then come to the second issue that the noble Does he say that the judge reached the wrong conclusion, Lord, Lord Carlile, has alluded to. It is whether it is giving undue proportion to some of the factors he was right or sensible to remove those relocation provisions weighing? at the current time. We have the Olympics, and we also have the issue that, in lieu of the exclusion provisions, Lord Pannick: Of course, the learned judge was additional surveillance will have to be undertaken by considering the exercise of the powers that are contained the police at additional cost, with additional resources under the control order regime. The Committee and and using more people. The noble Lord will know that the House have to consider what is a fair balance—this in the Public Bill Committee in the other place the is the test that the Minister rightly has repeatedly deputy assistant commissioner expressed some concerns propounded—between national security and the liberty about the length of time that will be required by the of the individual. police to put those measures into place. Lord Carlile of Berriew: I promise not to intervene The amendment moved by the noble Lord, Lord on the noble Lord’s speech again but he is ducking the Carlile, quite brilliantly in my view, gets the Government question. Does he not accept that Mr Justice Simon in off the hook for the period between the end of the that case, having weighed up the facts, came to the Olympics and the beginning of 2013. It also says to conclusion that the safety of the state and of the the Government that, if at that time or beyond it they public was better protected by relocation and that it reach a conclusion that they do not need the exclusion was proportionate to the interests of CD? If so, should provisions, they can simply bring an order before we not keep the situation as it was then? Parliament. No doubt Parliament would assent to that order, as it does assent to government orders. However, Lord Pannick: The noble Lord can intervene as if the Government at that time are not so assured, they many times as he likes. I welcome his interventions. already have the provisions on the statute book with My answer to his point is twofold. We can always add the benefit of them having gone through Parliament more and more intrusive measures and protect ourselves and being effectively scrutinised rather than using the more effectively from the perspective of national security. very unsatisfactory approach of having an emergency The question is: what is a fair balance? I am assuming Bill in the stocks ready for use. that the Government, not just concerned about a I hope that the noble Lord, Lord Henley, might be particular individual case but looking at these issues sympathetic to the amendment in the name of the as a whole, have concluded that relocation would noble Lord, Lord Carlile. It is meant to be a constructive undermine the fair balance because of its particularly response to current circumstances. I certainly think intrusive nature and that the combination of the measures that it warrants due consideration. contained in the TPIM and the surveillance measures that can always be imposed on an individual who is 5.45 pm not relocated will effectively protect the public. It is Lord Pannick: My Lords, I offer the Government true that there is a financial cost, which is the point my support on this issue of relocation. The noble made by the noble Lord, Lord Hunt. Does the noble Lord, Lord Carlile, expressed concern that political Lord wish to add to that? considerations, as he put it, are trumping national security concerns. I suggest to the noble Lord and the Lord Hunt of Kings Heath: The noble Lord is being Committee that the issue is more difficult than that. very kind in accepting all these interventions, but this The way in which the noble Lord puts it ignores a vital is an important point. If the Government were really dimension. The reality is that relocation is a particularly confident, they would not be producing a draft emergency intrusive measure to impose on the subject. It is strikingly Bill or having the provision in this Bill to allow the damaging to the personal life of the individual and his Home Secretary in an election to use the enhanced or her family. measures. I am afraid the fact is that in their heart, and 321 Terrorism Prevention and Investigation[19 OCTOBER 2011] Terrorism Prevention and Investigation 322 particularly in the noble Lord’s own department, they tempted on this occasion because I am able to make a know that the exclusion provisions are very important. remark that, for most of the past six months, my noble I am sure that, in the future, they are going to have to friends on the Front Bench thought they would never use the emergency provisions if this Bill goes through. hear: I support the Government. I do not think that the Government have that confidence, and that is the worry. Lord Henley: My Lords, as someone who started his ministerial career some 20 years ago sitting at the Lord Pannick: We will hear from the Minister in feet of my noble friend Lord Newton, I am grateful to relation to that in a moment. I am satisfied that a hear those remarks. I always knew that he was sound, sensible and fair way of dealing with what is a very loyal and supportive of the Government in every difficult issue, because of the primacy of national possible way. security and the particularly intrusive nature of a The noble Lord, Lord Hunt, was somewhat disparaging relocation power, is for the Government to satisfy about the Enhanced TPIM Bill and asked why we have themselves, as I assume they have done, that relocation it. It obviously indicates that we believe there is a need powers are not needed. However, given the importance for bringing in relocation because we have it in the of this power, they recognise that it is sensible to have Enhanced TPIM Bill. At Second Reading, I made it reserve powers available which, God forbid they are very clear that we hoped that we would never have to ever needed, can be brought into force. I support the bring that Bill into force, but I also tried to point out Government on this. how important it was that we should be able to debate it in a measured manner, which is what pre-legislative Baroness Hamwee: My Lords, I, too, support the scrutiny will allow for, when the threat was not as high Government and I am very much with the noble Lord, as it might be when and should we have to bring it in. Lord Pannick. If my noble friend Lord Carlile succeeds That might be a better way to proceed than to debate in getting answers to his questions about evidence, I it in moments of crisis and rush it straight off the shall consider that there is a huge amount of favouritism shelves while minds are not necessarily as settled as going on. That is exactly the sort of thing that we have they should be. all asked for on many occasions, but inevitably we are not satisfied because we know that advice to the Government is advice to the Government, and we Lord Hunt of Kings Heath: Does not the noble cannot read their heart as we are being asked to do. Lord, Lord Carlile, propose an even better way? Essentially, he is saying, first, let us get over the I do not quite understand the distinction between Olympic-year problem by allowing the Government to politics and security. For all the reasons we have talked have use of this power in this Bill. We are able to about and will continue to talk about, it is a much scrutinise it properly and if at some point in the future more nuanced and complicated—there is probably a the Government are able to conclude that they no geometric term for it that I do not know—picture than longer need it they can bring an order before Parliament. a simple polarisation as regards the impact of particular If I were sitting in the Minister’s place, I would be very measures. Of course surveillance is going to be costly, grateful to the noble Lord, Lord Carlile, because it is a but another balance that one must come to is where very helpful amendment. one puts one’s efforts and spends one’s money.

Lord Macdonald of River Glaven: My Lords, I, too, Lord Henley: My Lords, I note what the noble Lord support the Government on this issue. It does not says, but I do not accept that. The power might be surprise me at all that if the Government presently necessary in the future; that is why we have brought have a power, they will seek to use it, and it does not the Draft Enhanced TPIM Bill to the House and why surprise me at all that if the security services presently the House will have its chance for pre-legislative scrutiny. have a power, they will seek to retain it. But the We hope that we will not need to bring it into effect. question is, as the noble Lord, Lord Pannick, said: However, we might have to bring it into effect at a time what is a fair balance? Noble Lords will know that the when Parliament is not sitting, which Clauses 26 and counterterrorism review considered these issues very 27 allow us to do. As was made clear by the noble anxiously and received a great deal of evidence. It Lords, Lord Pannick, Lord Macdonald of River Glaven came to the conclusion that public safety could be and others, it is question of getting the balance right. I protected in the absence of the power of relocation am glad that the noble Lord, Lord Pannick, repeatedly but in the presence of additional surveillance, for stressed the word “balance” because it is all about which funding was indicated, and with the sort of balance. measures that have now been brought forward in the Perhaps I may say a little more about how we TPIM Bill. That was the considered conclusion of reached this decision and where we think we are. The the review and appears to be the conclusion of the Committee will be aware that relocation has been of Government. I must say, having scrutinised the evidence particular interest during the passage of the Bill both which was supplied to the counterterrorism review, it in another place and here and strong views, as we have was also my conclusion. I therefore support the heard today, have been expressed on all sides. No one Government on this question. disputes the very powerful disruptive effect that relocation of an individual to another part of the country can Lord Newton of Braintree: My Lords, having have on their involvement in terrorism-related activity. acknowledged on a number of occasions recently my Equally, as, again, the noble Lord, Lord Pannick, capacity to fall to temptation whenever I am in the made clear, it can have a very powerful effect on the Chamber and make some remarks, I am even more individual and his family likewise. So such a power 323 Terrorism Prevention and Investigation[LORDS] Terrorism Prevention and Investigation 324

[LORD HENLEY] Secretary that he is content that the TIPM Bill provides raises very difficult questions of proportionality, including an acceptable balance—I again stress the word in relation to the impact that it can have both on the “balance”—between the needs of national security individual and their family. The counterterrorism and and civil liberties. The overall package—it is not just security powers review acknowledged these difficult the legislative proposals before us—mitigates risk. questions and considered them very carefully. However, we have always been clear that there may As was made clear following that review, the be exceptional circumstances where the measures in Government concluded that it should not routinely be the Bill, together with the additional resources, may possible under the TPIM system to require an individual not be sufficient effectively to manage the risk that we to relocate without consent to another part of the face. That is why we have brought forward the powers UK. Debates on the issue, as, again, has been made in the Enhanced TIPM Bill—powers which, again I clear, frequently turn on that question of balance, stress, we hope never to have to use—which can be specifically between protection of individual liberty brought into effect with considerable speed, but after, and security for the wider population. Views on where we hope, this House and another place have had a the right balance might be understandably differ in chance to give them considerable pre-legislative scrutiny. different parts and, dare I say it, on all sides of the As to the question of whether relocation should House—not many noble friends of the noble Lord, remain at least until the end of 2012, I can see that it is Lord Hunt, have intervened, but I am sure that he a beguiling proposal, but one is always suspicious of would find that there are one or two on the Benches beguiling proposals. I fear the Greeks even when they behind him who do not agree with everything that the come bearing gifts, or however it goes. The Opposition Opposition have had to say. As the noble Lord will be continue to express concerns that the police and Security aware, the former Government took the view that Service will not be ready to implement the new system compulsory relocation was necessary as one of the at the time the Bill is expected to receive Royal Assent wide range of potential obligations under the control because the additional investigative resources which order provisions. That was a perfectly legitimate position, will complement the system will not be in place. However, and my right honourable friend the Home Secretary I can give an assurance that they will be in place in due has used the power to relocate on a number occasions time. The Metropolitan Police Service has confirmed when she has imposed control orders. that arrangements will be in place effectively to manage However, the coalition Government do not think the transition from control orders to TIPMs. We are that this is the only approach that can be taken. Our working closely with the Metropolitan Police to consider conclusion, as we made clear in January, is that a more what further assurances can be given about readiness focused use of the restrictions that will be available for that transition from control orders to TIPMs. under the TPIM Bill, together with—it is important to Similarly, the Security Service has developed detailed remember this and I am grateful that the noble Lord, plans for the agreed additional allocation over the next Lord Pannick, reminded us of it—the significantly four years which it is implementing at some speed. increased funding that we are providing for covert With those assurances, I hope that the noble Lords investigation and other measures, will allow us effectively will feel that now is not the time to press their amendment to protect the public without the need for this potentially and that they will consider withdrawing it. I do not very intrusive power to be routinely available. That is think it is necessary. As I say, we have the Enhanced where our approach differs from that taken by both TIPM Bill, which can be considered at a slower pace my noble friend and the Opposition in their amendments. as part of its pre-legislative scrutiny, and if it is ever necessary—I hope it will not be necessary—to bring it 6pm into force, it will be ready, having been considered at a We will of course be able to use the robust powers measured place, to be brought forward. Having said that we still have in the Bill to disrupt an individual’s that, I hope my noble friend will be prepared to involvement in terrorism. If I wanted, I could take withdraw his amendment. noble Lords in some detail through Schedule 1, which sets out all those powers. The noble Lord shakes his head but I shall remind him that there is a power to Baroness Hamwee: My Lords, I think I heard the require them to reside and stay overnight at a particular Minister refer—I hope I did—to plans for resources address within their home locality; there is a power to for the security services over a period which is longer ban them from certain areas or places; there is a power than to the end of next year. If that is so, I welcome it. prohibiting their association with individuals of concern At the end of his speech he referred to the next four and requiring prior notice of association with other years. I welcome this because it would not be proper individuals. I shall not go on but I want to make it for this Chamber—most noble Lords not being privy clear that we have sufficient powers severely to disrupt to security information—to take a view as to what is the ability of the suspected terrorist and what he required for up to the end of next year and it being might do. something different beyond that. I am not trying to give my noble friend ammunition in favour of his In normal circumstances, our judgment is that the argument but simply to put my concern that we should measures that can imposed under the Bill, allied to not be looking at the matter through that lens. the additional resources that have been provided to the police and Security Service—I again stress that—is the right package of measures to have in place. I can give Lord Henley: My Lords, one is always very careful an assurance to my noble friend that the director when one speaks on these matters with a Treasury general of the Security Service has told the Home Minister sitting at one’s side. However, I can give an 325 Terrorism Prevention and Investigation[19 OCTOBER 2011] Terrorism Prevention and Investigation 326 assurance to my noble friend that we have agreed extra Amendment 9 deals with the hours that an individual resources for the Security Service over the next four-year is required to be at his residence, suggesting that an period. overnight requirement should be for such reasonable hours as are specified. We know that a period of Lord Carlile of Berriew: My Lords, I am grateful to 16 hours is compliant with human rights but a requirement the Minister for his careful answer to this short debate. to be at homes for 16 hours—effectively, an early I regret that he has not answered any of my six evening curfew—does not sit easily with the desirability questions and I invite him to write to me with answers of allowing the individual to work or study. An early to each of those quite specific questions. I regard the evening curfew would, for instance, preclude working emergency legislation model provided in the Bill as a in the restaurant trade. Indeed, having to be at home deeply dysfunctional form of legislation. It will be for 16 hours would probably make it impossible to very difficult to bring into force, involving parliamentary carry out any sort of normal work. Some people work debates that are almost impossible to construct in a from nine to five but we forget that they have to get way that is neither in contempt of court nor breaks the there by nine and leave after five. That is more than the sub judice rule. eight hours which is 24 minus 16. That is my first I of course welcome surveillance, whether over a amendment. short or long period, being enhanced by the provision of extra personnel and additional technical facilities. Amendment 10 is on the question of location. The However, I say to the Minister, to my noble friend Secretary of State can require the individual to reside Lady Hamwee and to the House that it is much more at a locality with which they have “a connection”. My easily said than done operationally. Many of the amendment suggests changing that to “a substantial individuals against whom this kind of surveillance is connection”. “A connection” could be a very slight deployed are very intuitive about surveillance provisions one. Maybe “significant connection” would be better. and often live in places where it is virtually impossible That would be a slightly lower test than a substantial for the police to deploy the full range of surveillance one. To take a deliberately absurd example, I would facilities. That is one of the reasons why relocation has like to avoid sending an urban person off to the been a useful and proportionate measure. Yorkshire Dales, however beautiful, because Mrs Smith However, at this stage it would not be right to press who used to work in his local shop has retired there. the matter to a Division—I have the perhaps over- That would be a connection but not a very sensible optimistic feeling that common sense at some stage one in this context. will prevail—and therefore I beg leave to withdraw the amendment, with the purpose of returning to this Amendment 11 is on the terms of occupancy of a matter at a later stage. specified residence. Paragraph 1 in the schedule allows the Secretary of State to, Amendment 6 withdrawn. “require the individual to comply with any specified terms of Amendments 7 and 8 not moved. occupancy of that residence”. At first, I wondered whether this should be a third Amendment 9 party’s terms of residence but the residence may be Moved by Baroness Hamwee one provided by the Secretary of State. Pointing to a 9: Schedule 1, page 22, line 14, after “hours” insert “reasonable” lease or tenancy agreement would be a more satisfactory way of doing that. That is alluded to but Baroness Hamwee: My Lords, I shall speak also to only as one of a number of possibilities. I assume that Amendments 10 to 15. These are all amendments to “specified” means specified by the Secretary of the the first schedule to the Bill which deals with measures—in State. Again, the Secretary of State might be tempted other words, how the measures are administered. I am to go beyond the bounds of what one would naturally not seeking, and will not at any stage seek during the expect through this paragraph, but be permitted to debate, to argue against the Government’s responsibility do so. to protect their citizens, which is necessarily complex, nor indeed to disrupt activity—“disrupt” is the term Amendment 12 takes us to travel documents. As I the Minister used. However, I do argue that there may have said, the documents—in particular the document be different ways and means. referred to in paragraph 2(3)(d)—should be returned I wish to bring the Committee back to the issue of to the individual at his reasonable request. I am not how one deals with the individual at the centre of all proposing that a passport that has been surrendered this and his or her family; to the possibility of tipping should be handed back but, reading this, it occurred to people, including in the wider community because me that a Freedom Pass, which allows an individual these matters get known about, over into the very over a certain age to travel by bus for free throughout activity that we are seeking to prevent; and to the England, would fall within this category. Is it right to person that we will have at the end of the year or two tell that individual that they cannot have their freedom years. I am well aware that my drafting if often more pass which would allow them to get to, say, their suited to a contract than a piece of legislation but I niece’s wedding? Perhaps that is a bad example cannot help it. I was a solicitor in practice for even because attending a family wedding may raise other longer than I have been in the House. It may be that issues but I am not sure that this deals with that the answer to a number of my amendments is that the detailed sort of situation. I would like to see something Human Rights Act deals with them but I will take a put in place to permit for individual and very detailed short time to raise the specific issues in the House. requirements. 327 Terrorism Prevention and Investigation[LORDS] Terrorism Prevention and Investigation 328

6.15 pm occupancy rules that may be imposed in instances Amendment 13 takes us to paragraph 4 of the where the Secretary of State provides an individual schedule, where a constable can give directions for the with accommodation will in essence be those that purpose of securing compliance with “specified measures”. would normally apply to an individual in private rented That seems a very wide phrase in this context so I accommodation; in other words, a standard letting suggest the words, agreement. “measures specified under this Act”. The noble Baroness has a whole list of amendments. Amendment 14 deals with paragraph 9, on work She wants to be sure that the connection with the area and study. The individual may be required, an individual is sent to is substantial. I can give her “to comply with other specified conditions”. that assurance from the Dispatch Box. I do not think I am not challenging the exclusion of certain work or the word is necessary but obviously we would not study: learning how to make explosives or working as send, as in the example she gave, a person to the an engineer have been referred to as examples. Yet Yorkshire Dales merely because they had once visited work is an important component in the self-respect of one individual there. Yes, it has to be substantial. any individual. The self-respect of the individuals that Wherever she uses the word “reasonable”, again, we we are talking about here—and that of their families—is would want to ensure that “reasonable” was understood a particular issue. Again, I seek a way of writing to be part of the Secretary of State’s decision. reasonableness into these measures. The noble Baroness touched on the police reporting That is very much behind my thinking in my final requirement. It is always the case that, where such a amendment, Amendment 15, on paragraph 10 and the requirement is in place, the Secretary of State will have reporting measures. I have heard of occasions under to act reasonably in terms of the times and manner the current system where a controlee was required to associated with the requirement to attend a police report at a time of day that made work or study station. Changes can be made to take account of a impossible. The individual is required to report to a new job or other changes in that individual’s lifestyle. police station, Amendment 12 touches on the idea of being able to “at the time and in the manner so required”. return travel documents to the individual; for example, I take it that that is in person. He will not be able to something like a Freedom Pass. Obviously asking for say to a prospective employer, “I need to nip out every the surrender of a passport might be very necessary day”—or twice a week or whatever it is—“at quarter and obviously we would want to keep that, but I can to 12 to get to a police station which may not be very see occasions where it might be reasonable to allow the convenient. I will be away for an hour or two. I cannot return of something of the order of a Freedom Pass. If quite take it as my lunch hour because it will take I am wrong in that matter, I will write to the noble longer than that”. If that is at the wrong time of day, it Baroness. makes certain work impossible. I understand the noble Baroness’s general concerns Though these may seem at first sight to be things about the lack of the use of the word “reasonable”, that we should not have to look at in legislation, we but I can give the assurance that it is fundamental to are always looking at how measures might work in administrative law that the Secretary of State, or any practice and how legislation might be used. I have said other public body, behaves reasonably when taking already today that these measures are very stringent. decisions in any capacity. That will certainly apply to An awful lot will depend on precisely how they are the Home Secretary in exercising her powers under applied. I hope that I can be given some assurances, this Bill, as much as it does to any other Minister or either on the wording or on the wording not being public authority taking decisions in an entirely different necessary, by my noble friend on the Front Bench. I context. Indeed, it is a requirement under Section 6 of beg to move. the Human Rights Act that public authorities—that obviously includes the Home Secretary—act compatibly Lord Henley: I hope I can give my noble friend the with convention rights. So there is the additional appropriate assurances. I will just touch on the individual requirement that any interferences with individuals’ amendments one by one, before coming to the generality. convention rights are not only reasonable but proportionate. If the Secretary of State fails to act My noble friend’s first concern was whether the reasonably and proportionately in imposing measures requirement to remain overnight at a specified residence under a TPIM notice, obviously her decisions can be for specified hours would be exercised in a way that is challenged and potentially overturned in the courts. consistent with the ability to work. We have made it perfectly clear that the new provisions are intended to Noble Lords will be aware that Clause 3 of the Bill be compatible with work and study, provided these do provides that each of the measures imposed by the not affect public safety. We are certainly clear that an Secretary of State must be reasonably considered by overnight residence measure will allow an individual her to be necessary to prevent or restrict the individual’s to work, since the hours involved will not equate to the involvement in terrorism-related activity. Clause 9, lengthy curfew that was possible. The specified hours which we will return to in due course, provides that the will also be able to take account of work commitments court must review that decision, among others, by the where appropriate, and that could include early morning Secretary of State and that the court may quash or or early evening shift patterns. The necessity and give directions in relation to any measures imposed proportionality of each measure, including each overnight where it is not satisfied with the Secretary of State’s residence requirement, will be determined according decision-making, including where she has acted to the circumstances of each individual case. The unreasonably or disproportionately. Therefore, my noble 329 Terrorism Prevention and Investigation[19 OCTOBER 2011] Terrorism Prevention and Investigation 330 friend’s amendments are unnecessary as their effect have. Therefore, I hope that they will take notice of will be achieved without it being necessary to amend what that order says. I hope with that the noble the Bill, and I hope she will feel able to withdraw Baroness will feel able to withdraw her amendment. them. Baroness Hamwee: My Lords, I do not expect a Baroness Hamwee: My Lords, I will certainly do so. response from the Minister, but I will use this last I am very grateful to the Minister. Perhaps he is able to opportunity to encourage the Secretary of State, in comment on two particular matters. First—and I am imposing reporting restrictions, to make the sort of sorry, this is almost like trying to prove a negative—can considerations that I have referred to entirely clear he say how substantial or significant a connection rather than just leaving them to be implied. If the there needs to be in requiring somebody to live at a Secretary of State can make that sort of thing express particular residence? This may be something that you rather than implied, it could be a very sensible move. recognise when you see it so I may be asking him a However, having said that, I beg leave to withdraw the question that cannot be answered in the abstract. I was amendment. obviously grateful for his response to my rather extreme example. I do not know whether it is possible to Amendment 9 withdrawn. answer what is required. Secondly, on reporting, I am sure that the Secretary Amendments 10 to 15 not moved. of State would be reasonable; I am much less sure that officers on the ground at particular police stations will Schedule 1 agreed. be quite as reasonable. Is the Minister able to help the Committee as to the role of the Secretary of State and 6.30 pm the comparative role of those officers and whether, though the Secretary of State’s intentions are entirely Clause 3 : Conditions A to E reasonable—I use the word again—it may be possible on the ground locally for them to be distorted and life The Lord Speaker (Baroness D’Souza): My Lords, I made close to impossible for the individual because an should advise the Committee that if Amendment 16 is officer in a particular police station decides on what is agreed to, I cannot call Amendment 17 by reason of actually an unreasonable time, for their convenience? pre-emption. Of course I take the point about being able to challenge through the courts but there is a limit to how many Amendment 16 not moved. challenges there can be. This is the sort of thing that we should be able to sort out, if not to everybody’s Amendments 17 to 22 not moved. satisfaction, then by at least answering their points, without having to go down that sort of route. Clause 3 agreed.

Lord Henley: The noble Baroness probably answered Clause4:Involvement in terrorism-related activity her own question, at least the first one, on what would be substantial. It is similar to the fact that we have put in “overnight” but have not defined what “overnight” Amendment 23 is. We all know what “overnight” means; what we are Moved by Baroness Hamwee saying is that we do not want that 16-hour curfew, we want people to be able to have a job, should that be 23: Clause 4, page 2, line 28, leave out paragraphs (b) to (d) necessary, but we need not be specific. This is where and insert— the reasonableness of the Secretary of State’s decision “(b) conduct which is intended to encourage or assist comes in. Similarly with the connection: obviously conduct falling within paragraph (a); that connection is not just going to be that you have (c) conduct which is intended to assist individuals known or been on a day trip to Blackpool or went to the party believed by the individual concerned to be involved in conduct falling within paragraphs (a) or (b) evade lawful conference there many years ago. surveillance, investigation, or arrest.”

Baroness Hamwee: It once had a better reputation. Baroness Hamwee: My Lords, my noble friend Lord Goodhart has put his name to Amendment 23, partly Lord Henley: We had better not comment on through his connection with Justice, which he will no Blackpool. I suspect the noble Baroness probably doubt mention—the organisation Justice; I am not understands what I am getting at and I hope the suggesting that other noble Lords do not have a connection House will. with justice—and because of the intrinsic value of the Secondly, regarding how the police act, the amendment, which is one that Justice has suggested requirements will be set out in the TPIM notice and in should be raised. that the Secretary of State obviously will have acted This amendment would delete a large part of the reasonably and set out what are reasonable requirements. definition of terrorism-related activity, which came It is then a matter for the police to make sure, if there from the 2005 Act, and replace it with the words in my is a reporting requirement, that they interpret that in amendment. The current definition is broad and includes the proper manner. Obviously if they do not, they will the facilitation of, be in breach of whatever appropriate duty of care they “the commission, preparation or instigation of acts of terrorism”. 331 Terrorism Prevention and Investigation[LORDS] Terrorism Prevention and Investigation 332

[BARONESS HAMWEE] one in the 2005 Act. We consider that to be the That could embrace, for instance, innocent activities appropriate definition and we see no need to change it. such as selling an ordinary household chemical that, It is settled, it has not proved problematic or objectionable unknown to the seller, is intended for use in bomb-making, and the courts have not, for once, disagreed with the or even perhaps acting as a legal representative for a assessment of successive Secretaries of State that terror suspect. The suggested amendment would restrict individuals whose activity falls under it are committed the definition to, terrorists. “the commission, preparation or instigation of acts of terrorism”, Moreover, the Government’s approach to this clause “conduct … intended to encourage or assist”, is underpinned by other requirements in the Bill. Not such acts and conduct intended to help, only must the Secretary of State consider that the “individuals … evade … surveillance, investigation, or arrest”. statutory test for the imposition of a TPIM notice is The extent of the definition of terrorism-related met, including, activity has concerned people for some time. Of course, “Condition A … that the Secretary of State reasonably believes it has to be to defined adequately and appropriately, that the individual is, or has been, involved in terrorism-related but I wonder whether we should not now be looking activity”, again at a tighter definition, which would not involve but the court must review the Secretary of State’s risk—that obviously has to be assessed—but that would decision. As I said, that scrutiny will be rigorous and, not be so extensive that it could go well beyond what as a result of relevant case law, it makes a finding of would be appropriate. I beg to move. fact on the limb of the test relating to involvement in terrorism-related activity. It also gives “intense scrutiny” Lord Goodhart: My Lords, my name is put to this to the necessity of the notice and individual obligations. amendment and while I do not have a great deal to I have looked very carefully at the amendment as add to it, there is a certain difficulty here about how set out by my noble friends. I have even produced a the existing text of Clause 4 is drafted. Clause 4(1) (b) copy that I could share with the House, if it was states: necessary, showing how the clause would look after “conduct which facilitates the commission, preparation or instigation their amendment had been produced. However, I really of such acts, or which is intended to do so”. do not think that on this occasion it is necessary. It In other words, the provision covers somebody who would probably be safer and better to stick with the has facilitated the commission, preparation or instigation well-tried words that we have from the 2005 Act, with of such acts but has not intended to do so. That is the which the courts themselves have not had any problems, possibility. It is perfectly possible, for instance, that as I said. From the look on the face of the noble and someone in a shop may sell something that is, on the learned Lord, Lord Lloyd, when I first mentioned that face of it and so far as that person knows, entirely point, I certainly noticed a degree of agreement with harmless. Yet in fact it has a particular use to the me. If the courts are happy, I suspect we should leave person who is buying it. In Clause 4, this is conduct well alone. I hope, therefore, that my noble friends will that facilitates the commission of an act of terrorism feel able to withdraw this amendment. but that is never intended to do so. It would be inappropriate to go ahead without Baroness Hamwee: My Lords, my concern stems some further amendment and the provision in from the possible prospect of a less benign Home Amendment 23 is perfectly appropriate for this purpose. Secretary, who may misuse the clause. He—let us say It deals with, he—might believe that an individual has been involved “conduct which is intended to encourage or assist conduct falling in terrorism-related activity because he, to use the within paragraph (a)”, example that we have given, has sold household chemicals or, that are to be used for something bad. I suspect that “conduct which is intended to assist individuals known or believed the courts have never had to face the position that I by the individual concerned to be involved in conduct falling am putting forward and so have not been troubled by within paragraphs (a) or (b)”. it. As ever, one tries to anticipate how legislation That provision seems to cover the effect of Clause 4 a might be misused or abused, rather than used in what good deal more accurately than its present formation we would all regard as a proper fashion. However, I does. It seems to me that it is necessary to change the hear what my noble friend has said and beg leave to drafting of Clause 4 and that Amendment 23 is an withdraw the amendment. appropriate way of doing it. It may be that another one can be thought of that is even better. Amendment 23 withdrawn. Lord Henley: My Lords, Clause 4, as my noble friends have stated, provides the definition of the Clause 4 agreed. phrase, “Involvement in terrorism-related activity”, which comes from the 2005 Act. It obviously ought to Clause5:Twoyearlimit for TPIM notices be read in conjunction with Clause 30, the interpretation clause, which also refers us back, if noble Lords will Amendment 24 bear with me, to the Terrorism Act 2000. The starting point of our response to my noble friend’s amendment Moved by Baroness Hamwee is that it is unnecessary.The definition of terrorism-related 24: Clause 5, page 3, line 4, after “if” insert “at the date from activity included in the Bill is, as I said, identical to the which it is extended” 333 Terrorism Prevention and Investigation[19 OCTOBER 2011] Terrorism Prevention and Investigation 334

Baroness Hamwee: My Lords, in moving Baroness Stowell of Beeston: My Lords, I hope I Amendment 24 I shall speak also to Amendments 28, can give some reassurance to my noble friend on the 30 and 31 to 35 in my name. Amendment 24 would issues that she has raised in her amendments today. amend Clause 5(3), which provides that a TPIM notice, My noble friend’s first amendment relates to Clause 5 “may be extended … only if conditions A, C and D are met”. and the power to extend a TPIM notice for a further I am not sure whether my amendment is one of year. As Clause 5 makes clear, a TPIM notice can be drafting or principle. It certainly does not go to the extended only if conditions A, C and D are met at the major principle of the structure of the periods or their time and the TPIM notice would otherwise expire. In limits. However, as Clause 5(3) is drawn, the conditions particular, the notice and the measures specified in it are to be met and that would allow for an extension of must be considered necessary at that point. The Secretary the notice. My amendment concerns when those of State cannot reasonably make a decision to extend conditions are met, saying that they should be met, until shortly before the notice would expire. If she “at the date from which”— attempted to do so, I am sure that the courts would the notice “is extended”. It is not likely that the Secretary not uphold her decision. My noble friend might also of State would decide in the second week of a notice like to know that decisions on whether to renew control that it should, in effect, be a two-year notice. However, orders have been taken only relatively close to what again, looking to a less sensible or benign Secretary of would otherwise be the expiry date. However, I can State, that should not be possible. That is why I have also assure my noble friend that any subsequent change tabled this amendment. in relation to ongoing necessity will be reflected as My other amendments all deal with the term soon as is practical, by either the relaxation of particular “obviously flawed”, although I realise that I have measures or the revocation of the notice as a whole. missed at least one instance of it somewhere in the This is because necessity must continue to be made Bill. As my noble friend Lord Goodhart said in speaking clear at all stages while the notice remains in place. to the first group of amendments, what “obviously My noble friend has also tabled several amendments flawed” means is far from obvious. My amendments, to Clause 6 and Schedule 1 in respect of the word which would take out “obviously”, probe the meaning “obviously”. These are Amendments 28, 30, 31 and of the term. The context, in every case, would in effect 33 to 35. She seeks to clarify the word “obviously” and be an ex parte application. Does “obviously flawed” proposes deleting it from the phrase “obviously flawed” mean prima facie? When these questions were asking where it occurs. I can confirm that, in essence, this during the Public Bill Committee stage in the Commons, language is intended to mean much the same as prima the Minister said: facie in the context of what will normally be an ex “An appropriate test at the permission stage acts as a check on parte application. In other words, her assumption on the Secretary of State’s exercise of his or her powers. At that this matter is correct. stage, it is clearly not appropriate for the court to make the final determination … because it is … an ex parte process”.—[Official At the permission stage, the court will normally Report, Commons, Terrorism Prevention and Investigation Measures consider the application in the absence of the individual Bill Committee, 30/6/11; col. 212.] who is to have measures imposed on him. This is to I understand that but I am still not entirely clear about ensure that the individual is not given advance warning the term as distinct from the context; they may be that he is to be made the subject of a TPIM notice. inseparable. The Minister’s answer was that it reduced The judge therefore undertakes an initial check at this the hurdle that the Secretary of State must meet. I early stage to ensure that there is nothing in the hope that the Minister will today give us some further material presented to him to indicate that the Secretary sense of where in the hierarchy this comes. of State is clearly wrong to think that the statutory test is satisfied, either in relation to having reasonable 6.45 pm grounds to believe in terrorism-related activity or the need to impose a notice, or in relation to one or more In its 16th report—the earlier report on the Bill—the of the proposed measures. It is a preliminary hearing Joint Committee on Human Rights, in referring to the that in essence ensures that the Secretary of State is term “obviously flawed” and the principles of an not using her powers in an obviously inappropriate application for judicial review, said at paragraph 1.31: way, and therefore is very different to the further “That is not usually the approach when a court’s prior permission stages when the courts would review the actual decision. is required to authorise the taking of an intrusive step by the police or the executive: when considering whether to grant a The language of “obviously flawed”is well understood warrant to enter or search property, for example, the court’s and applied by the courts as it is the language that is function is usually to determine whether the necessary conditions used in the control orders legislation—it is already for the granting of the warrant are satisfied”. there. The Government therefore consider that it is It went on: appropriate to continue to use this language. The full “In our view, the court’s function at the permission stage court review will, of course, be undertaken after the should be to determine whether the conditions for imposing measures have been imposed. The procedures for that TPIMs appear to be met, which would be more in keeping with a requirement of prior judicial authorisation of an intrusive criminal are set out in Clauses 8 and 9. justice measure”. Finally, my noble friend’s other amendment in this I hope that the Minister can help us and possibly group relates to what would happen in a circumstance tell us whether this term is used elsewhere. The fact where the court determined that only the Secretary of that I have not come across it is by no means conclusive. State’s conclusion that condition D is satisfied is obviously It might help the Committee to assess it if it has been flawed—therefore, A and C had been met but D was used in other legislation. I beg to move. flawed. This is likely to be where the court identifies 335 Terrorism Prevention and Investigation[LORDS] Terrorism Prevention and Investigation 336

[BARONESS STOWELL OF BEESTON] Amendment 24 withdrawn. that one or more of the individual measures specified in the proposed TPIM notice clearly does not meet the Clause 5 agreed. test that it is necessary for purposes connected with preventing or restricting the individual’s involvement Clause 6 : Prior permission of the court in terrorism-related activity. In these circumstances the court may give permission to impose a TPIM notice, Amendment 25 not moved. but may in doing so give directions to the Secretary of State in relation to the measures to be imposed. Amendment 26 The amendment would amplify Clause 6(9) by adding Moved by Baroness Hamwee the words, 26: Clause 6, page 3, line 14, at end insert— “including the variation or cancellation of specified measures”. “(1A) The application of subsection (1) extends to— As my noble friend has explained, she is seeking an assurance from me that this is already the case. She is (a) a proposed extension under section 5, seeking further information than that which was provided (b) a proposed variation under section 12(c), and during the passage of the Bill in another place. I can (c) a proposed revival under section 13, confirm that, as drafted, Clause 6(9) would allow the of a TPIM notice.” court to give directions in relation to the variation of the proposed measures set out in the draft TPIM Baroness Hamwee: My Lords, Amendment 26 is notice. Equally, it would allow the court to direct that grouped with Amendments 45 and 46, which also a particular measure should not be included in the stand in my name. We touched on this matter when I notice. It should be noted that while the court may asked the Minister a question about the length of give directions in this regard, it will remain the duty of TPIMs earlier this afternoon. I thank him for his the Secretary of State actually to draft the terms of response. Nevertheless, in case there is anything more the measure as this role falls not to the court but to the to come out on this, I will speak to these amendments. Secretary of State, with her recognised expertise and Amendment 26 to Clause 6 would provide that responsibility in matters of national security and the Clause 6(1), which makes the rest of the clause apply, measures that are required in order to protect the extends to extensions, variations and revivals of a public. But when doing so following the directions of TPIM notice. As I said earlier, I had difficulty in the court, she will clearly be very constrained in how following the procedures for the different decisions she conducts that drafting exercise. which are open to the Secretary of State. Therefore, I I hope that I have provided sufficient assurance to thought it best not to be too proud about my drafting my noble friend and that she will withdraw the as I do not have a professional reputation to be amendment. concerned about to the extent that other noble Lords who are very well established in their fields do. That is Lord Hunt of Kings Heath: My Lords, before the why I tabled that amendment. noble Baroness agonises over whether she puts this to Amendments 45 and 46, which seek to amend the vote, the final point made by the noble Baroness, Clause 13, may already have been answered to an Lady Stowell of Beeston, about the Secretary of State’s extent in the previous debate. Amendment 45 would responsibilities is well taken. I congratulate her on provide that condition E—that is, the involvement of what is probably her first appearance at the Dispatch the court—would apply on revival of a TPIM. I am Box, certainly in this Committee stage. encouraged to think that a stopping or pausing of a TPIM might be possible—that is implied by the possibility Baroness Hamwee: My Lords, the noble Lord, Lord of reviving one—but that this measure would apply Hunt, gets there before me. after a TPIM had expired or been revoked. I hope to be told that this is provided elsewhere in the Bill. If it is not, it should apply. If a TPIM notice has expired or Lord Harris of Haringey: As ever. been revoked—no doubt, for good reason—all the conditions should then be tested again. I beg to move. Baroness Hamwee: No, not as ever, sometimes we are shoulder to shoulder. However, I congratulate the Lord Henley: My Lords, we seem to be moving at noble Baroness and I am grateful for her reply. It will quite a speed. My noble friend need not worry too deserve reading. I take her point about the term being much about her drafting. We have all drafted amendments used in control order legislation but I have written in the past that we knew were defective in many ways down, but they are often a useful way of getting the Government “much the same as prima facie”. to the Dispatch Box to explain what is going on. It is I, for one, would not like to tangle with her over worth going into detail on this issue. whether there is any significance in the term “much I will deal first with the substantive amendment the same”. If anybody reading Hansard who is better that the noble Baroness has proposed to Clause 6—to qualified than me thinks that one should take issue which Amendment 45 is consequential. As drafted, with, the Bill requires the Secretary of State to seek prior “much the same as prima facie”, court permission to impose a TPIM notice, other than I will come back to it on Report. As I say, I will read where the urgency procedure set out in Schedule 2 is the noble Baroness’s response. I am grateful to her for relied on. This provides an important safeguard in the detail. I beg leave to withdraw the amendment. relation to the initial imposition of TPIM notices by 337 Terrorism Prevention and Investigation[19 OCTOBER 2011] Terrorism Prevention and Investigation 338 the Secretary of State. However, as my noble friend Amendment 26 withdrawn. has identified, there is no subsequent requirement for the Secretary of State to seek the court’s prior permission Amendments 27 to 32 not moved. before making any other decision in respect of the Clause 6 agreed. TPIM notice. Her amendment would require the Secretary of State to seek prior permission before making three Clause 7 agreed. particular decisions. The first is to extend a notice into a second year under Clause 5. The second is to vary Schedule2:Urgentcases: reference to the court etc the specified measures, on the grounds that this is necessary for preventing or restricting involvement in Amendments 33 to 35 not moved. terrorism-related activity under Clause 12—that is, where the variation is not a reduction in the measures Schedule 2 agreed. or one made with the consent of the individual. The third is a proposed revival of a TPIM notice under Clause 8 : Directions hearing Clause 13. The Bill does not require court permission to take any of these decisions. However, it provides a Amendments 36 and 37 not moved. right of appeal against the exercise of each of these powers. Amendment 38 7pm Moved by Lord Pannick I understand my noble friend’s desire to ensure that the Bill provides sufficient and necessary safeguards in 38: Clause 8, page 4, line 26, at end insert— relation to the use of its powers. However, the issue “( ) Directions under subsection (5) must include a direction that we need to consider is whether the change she has that the Secretary of State shall provide the individual on whom the measures are imposed with sufficient information about the suggested is necessary or appropriate. It would certainly allegations against him or her to enable him or her at the review represent a significant change to what is currently hearing to give (if possible) effective instructions to his or her required under the control order regime, in which once representatives and information to the special advocate in relation court permission has been granted all subsequent to those allegations.” decisions of the Secretary of State, including decisions to renew the order, are made by the Secretary of State Lord Pannick: My Lords, I shall speak also to but with an associated right of appeal. Amendment 49. These amendments concern the disclosure The control order and TPIM regimes are, of course, of information to a person who is the subject of a relatively unusual in requiring court permission before TPIM. As the Committee knows, in the AF case in an order is made or a notice is served. It certainly is 2009 the Appellate Committee of your Lordships’ not a requirement in any other national security context House considered what the principles of fairness require where the Secretary of State has powers to, for example, as to the disclosure of information in the context of deport an individual or deprive them of their British control orders. I repeat my declaration of interest—I citizenship. However we accept that this initial involvement represented AF in the Appellate Committee. is a proper reflection of the significant nature of the The Law Lords decided that a control order is invalid restrictions that can be imposed under either the as a matter of law unless sufficient of the case against Prevention of Terrorism Act 2005 or this Bill. It the individual is disclosed to him so as to enable him provides an additional element of court oversight to to give instructions to his lawyers to answer the allegations reflect the significance of the decision to impose a against him. If the Home Secretary is not prepared to TPIM notice for the first time. disclose that much, the control order cannot be However, my noble friend may not be surprised to maintained. Disclosure to the special advocate does learn that in almost every control order case permission not suffice, said the Law Lords, because the special has been granted to make the order, including in advocate cannot of course disclose the information to relation to the detail of the obligations. It is, as always, the subject of the order and obtain a response from a question of balance. Our view is that the Bill as him. drafted gets the balance right by requiring initial court In the recent Supreme Court case of Tariq v The permission to impose a TPIM notice other than in Home Office, the noble and learned Lord, Lord Hope exceptional cases—which is the key initial decision of Craighead, explained the principle of law at made by the Home Secretary—while allowing the paragraph 81 of his judgment. He said that in AF, Secretary of State to make subsequent decisions but “the fundamental rights of the individual were being severely with an associated right of appeal to the court. We do restricted by the actions of the executive. Where issues such as not believe that the additional safeguards that my that are at stake, the rule of law requires that the individual be given sufficient material to enable him to answer the case that is noble friend suggests are necessary. I therefore hope made against him by the state”. that she will accept they are not necessary. As I said, it The TPIM, like the control order, involves severe is a question of balance. Such safeguards would not restrictions on the personal liberty of an individual. necessarily represent an effective use of the judge’s time. Therefore, a TPIM is going to be unlawful unless the What we propose is about right. I hope, therefore, AF principle is satisfied. This was addressed in today’s that my noble friend will withdraw her amendment. report of the Joint Committee on Human Rights. At paragraph 1.20, it addressed the Government’s argument Baroness Hamwee: My Lords, again I must read what that the AF disclosure obligation, has been said, but I believe that I am satisfied and will “does not necessarily apply to all TPIMs because some will not be remain so. I beg leave to withdraw the amendment. sufficiently ‘stringent’ to engage Article 6”, 339 Terrorism Prevention and Investigation[LORDS] Terrorism Prevention and Investigation 340

[LORD PANNICK] want anything that the noble Lord has included to of the human rights convention. The Joint Committee detract from the thrust of his important amendments points out: and argument. I beg to move. “This is an argument that the Government has already made and lost”, Baroness Kennedy of The Shaws: My Lords, I support in the context of control orders, the amendments in the name of the noble Lord, Lord “in relation to ‘light touch control orders’”. Pannick. I disclose that I act from time to time in what The Joint Committee expressed the view, with which I have been control order cases and may be called on to agree, that the AF disclosure obligation applies in all act in future such cases. I reinforce the importance of TPIM cases, because they will all involve severe restrictions having disclosure of the essence of the case. The on personal liberty. I should add that if the TPIM is reason for that is that from time to time I have seen less stringent, it is likely to be because the subject of that, when disclosure of the essence of the case takes the order is not one of the most dangerous individuals place, it is possible to show that the inferences drawn and there will therefore be a weaker security argument from certain behaviour are not appropriate. for non-disclosure of the essence of the case against I give an example. The case involved a student such an individual. living in a house with other students. We are always Disclosure to the individual of the case against him concerned that association can be an unfair way to is not just required by law, but is also of enormous judge someone. An assumption was made and disclosed importance as a matter of principle. Your Lordships in the essence of the case against him that a conspiratorial will recall our earlier debate when one of the reasons meeting took place at a particular time. It was possible given by the noble Lord, Lord Carlile, in his objections for us to show that he must have been in his room to the proposal of the noble and learned Lord, Lord using his computer because, during the period of the Lloyd of Berwick, that the imposition of the TPIM meeting, he was in direct contact with the department should be a judicial process, was precisely that the with which he was studying at university, drawing subject is protected by the important disclosure obligations down the homework that he was required to do. Not that will be imposed on the Secretary of State. The only was the university able to confirm that but his noble Lord emphasised that. computer, which was seized, showed that the timing Amendment 38 would require disclosure of the coincided with when some others were involved in the essence of the case against the individual at the directions meeting, when he was in his room studying. Just that hearing. Amendment 49 would make clear that the allowed someone to show that an inference being rules of court must provide for such disclosure. drawn was incorrect. I have two questions for the Minister. First, does he Given that we are putting together a system which accept that the AF principle requiring disclosure of is many ways a source of concern with regard to the essence of the case against the subject applies in liberty, it is really important that opportunities are the context of a TPIM, as it does in the context of a there for people to show that their actions are not the control order? Secondly, does he agree that it would be ones that the state is imagining. We must, in drawing preferable for the matter to be stated in the Bill, to up new proposals—some of which I am not completely avoid the expensive, protracted litigation which will happy with—draw on the decisions made by judges otherwise inevitably occur? under the control order regime. The Joint Committee’s report, which I mentioned, gave its support at paragraphs 1.21 and 1.23 to my two 7.15 pm amendments. The Joint Committee added the valuable Lord Carlile of Berriew: I speak in support of the point that the disclosure obligation should be at the amendment moved by the noble Lord, Lord Pannick. earlier stage of the preliminary hearing, to ensure that As the lawyers here who are familiar with disclosure the subject of the TPIM can instruct his lawyers—or issues involving national security will be aware, there indeed give information to the special advocate—before are a number of areas in which there has been a great the directions hearing. The noble Baroness, Lady Hamwee, deal of satellite litigation in cases on the issue of has tabled drafting amendments to my two amendments. disclosure. I suggest to the Minister that a sound I shall certainly want to consider them and the suggestion principle could be established here. of the Joint Committee before Report but, for today’s I suspect that the noble Lord, Lord Pannick, might purposes, I welcome the opportunity to hear the Minister’s agree that it is a principle that could be extended to response to my amendments. I beg to move. resolve some of the other issues on disclosure that have arisen in cases such as Norwich Pharmacal, Amendment 39 (to Amendment 38) Carnduff v Rock—another civil case—the Tariq case Moved by Baroness Hamwee and, of course, that of Binyam Mohamed, in which 39: Clause 8, line 5, leave out “(if possible)” different issues about the level of disclosure that should be permitted have arisen in different contexts. One of Baroness Hamwee: I absolutely support what the those issues relates to the control principle: the control noble Lord, Lord Pannick, said. My amendments to that a foreign intelligence agency exerts over intelligence both his amendments were partly in response to an material available in the United Kingdom. I hope that earlier draft, which I think he changed before tabling the noble Lord, Lord Pannick, agrees that reducing all them. However, the point remains the same: to tease those principles to statutory form would be of great out whether the words “if possible” are objective or assistance and would provide something that gets us subjective to the individual. I am not sure what “if lawyers out of work but increases certainty—that is, possible” means in the context. I would certainly not legal certainty. 341 Terrorism Prevention and Investigation[19 OCTOBER 2011] Terrorism Prevention and Investigation 342

Lord Rosser: My Lords, the amendments of the today’s was its third report on this issue—the right to a noble Lord, Lord Pannick, which, as he said, are fair trial of individuals subject to a TPIM notice is supported by the recent Joint Committee on Human already fully protected by the provisions contained in Rights report, require the provision of information to the TPIM Bill and the application of existing case law, the individual on whom the measures under the Bill as appropriate, by the courts. are imposed, to enable that individual at the review Paragraph 5 of Schedule 4 to the Bill reflects the hearing to give effective instructions to his or her read down of the Prevention of Terrorism Act 2005, representatives and to the special advocate about the effected by the 2007 judgment of the Law Lords in allegations made against them. MB. As the noble Lord will be aware, the Law Lords In considering this issue, we are also considering read into that legislation, which obliged the courts to national security. We are conscious of the need to ensure the withholding of material from the individual protect people from further atrocities of the kind we where disclosure would be contrary to public interest, have already seen in this country and elsewhere. We the words, are talking about a small number of people whose “except where to do so would be incompatible with the right of activities are felt to pose a real threat to the public, but the controlled person to a fair trial”. in respect of whom sufficient hard evidence cannot be That has been reflected in the provision in Paragraph 5 put before a court in the public domain to enable a of Schedule 4 to the TPIM Bill, which provides that case to be made to the standard that has to be achieved nothing in the rule-making power relating to closed for a successful prosecution. proceedings or the rules of court made under it is to be We would not dissent from the provision of information read as requiring the court to act in a manner inconsistent to the individual, provided that it did not lead to the with Article 6. The Law Lords in AF (No.3) confirmed safety or security of any providers or sources of the read down specified in MB and laid down what information being put at risk; provided that it did not was required by Article 6 in the context of the stringent mean that intelligence provided—perhaps from other control orders before them. There is therefore already countries—dried up, because that intelligence is provided provision in the Bill which ensures that TPIM proceedings only on the basis that it is not made public; and will be conducted compatibly with the individual’s provided that the provision of the information did not Article 6 rights and indeed, the Human Rights Act jeopardise national security, including protection from achieves the same effect. acts of terrorism. That is all that I want to say at this stage to the The chairman of the Joint Committee on Human noble Lord’s amendment. I appreciate that technically Rights stated: we are debating the amendment to the amendment tabled by my noble friend Lady Hamwee. It might be “We maintain our view that the priority in the Bill should be investigation and not prevention”. more appropriate for the noble Lord, Lord Pannick, to comment on that. I hope that he will accept my We certainly support the view that investigation is explanation on why we do not think it is necessary to important and that, where possible, people should be include his amendment. I hope that the assurances charged and their case dealt with through the courts in that I have given from the Dispatch Box will be the normal way. However, we do not support the view sufficient. I hope that my noble friend and then the that the Bill should have prevention of acts of terrorism noble Lord will withdraw their amendments. as an issue of lesser importance. We will want to be satisfied that the effect of the amendments would not be to veer in that direction. We await with interest to Baroness Hamwee: My Lords, I beg leave to withdraw hear the Government’s position, particularly in the my amendment. light of the House of Lords judgment in AF. Amendment 39 (to Amendment 38) withdrawn.

Lord Henley: My Lords, the noble Lord, Lord Lord Pannick: I am grateful to the Minister for his Pannick, asked two questions: first, do we accept that careful response and to all noble Lords who have the AF principle applies to TPIMs as well as to spoken in this short debate. I agree with the observation control orders? I can give him that assurance. It is set of the noble Lord, Lord Carlile, on the need for out in our Explanatory Notes that we believe that certainty in this and allied areas of the law. With previous court judgments will be binding on TPIMs, regard to the amendment of the noble Baroness, Lady as they were on control orders. I do not have the ability Hamwee, to my amendment, by talking about “if to cite cases as authoritatively as my noble friend Lord possible” I intended to refer not to the possibility of Carlile or the noble Lord, Lord Pannick, both of disclosure but the possibility of the subject of the whom obviously eat them for breakfast, but my order providing an answer. I respectfully agree with understanding is that they will continue to bind us. the noble Baroness that it would be wiser to omit the The second question is: do we think that it is words, “if possible” to avoid ambiguity. necessary to get it on the face of the Bill? I hope that I This is a simple but vital issue. Should the Secretary can explain to the noble Lord why I do not think that of State be able to impose these restrictions on an that is necessary. We share the desire of all noble individual without telling him why? It is not just a Lords to ensure that TPIM proceedings are compatible question of fairness. Nothing is more likely to undermine with Article 6 and we believe that the provisions public confidence in a TPIM than for the Secretary of currently contained in the Bill achieve that. As we State to make such an order without telling people explained in our response to the Joint Committee on why. I am sorry that the noble Lord, Lord Rosser, on Human Rights in its 19 July report—I think that the Opposition Front Bench, is not yet persuaded to 343 Terrorism Prevention and Investigation[LORDS] Terrorism Prevention and Investigation 344

[LORD PANNICK] 7.30 pm support my amendment. His position, as he articulated Lord Henley: My Lords, I wish to make only one it, appears to be at odds with the ruling in AF which point. I said at the beginning of business that I had makes it very clear that the duty of disclosure applies only recently seen the Joint Committee’s report, which irrespective of national security concerns. I am also was published at 11 am today, and I had not yet read it sorry that I have not yet persuaded the Minister that in detail. The noble Lord seemed to imply that I would this matter should be in the Bill. I am still concerned have managed to read it during the course of this that on a matter as vital as this, it is not good enough debate. For once, I thought it was more important to simply for the Bill to state that Ministers must act in listen to the noble Lord, and other noble Lords, rather compliance with Article 6 of the European Convention than reading the book. Of course, we will study the on Human Rights, welcome though that is. It is desirable report in detail, and it might be that a further response to address the question of disclosure, which has led to can come between now and Report. I do not think enormous quantities of litigation in the past and will that, as the noble Lord put it, our thoughts have inevitably lead to much more litigation in the future if advanced much during the previous two or three hours. we do not address the matter specifically. It is highly desirable that this matter is put into the Bill in clear, unambiguous terms. We will no doubt return to this Lord Hunt of Kings Heath: My Lords, the noble matter on Report but for the moment, I beg leave to Lord, who manages to make marmalade as well as withdraw the amendment. being a senior Minister in this Government, is clearly multitasked and multiskilled. I had thought he would Amendment 38 withdrawn. easily have been able to read it while considering how to reply to noble Lords, and indeed noble and learned Lord Wallace of Saltaire: My Lords, it may be for Lords, in our debate. That has been, as usual, an the convenience of the Committee if I report that enlightening response from the noble Lord. I will not there has been agreement among the usual channels oppose that this clause stand part of the Bill. that we should continue until 8 o’clock, at which point we should have hit our target for tonight. That will Clause 9 agreed. enable what is intended as a 60-minute dinner-hour debate to become a 90- minute end-of-business debate, Amendment 44 not moved. which I have calculated will allow all speakers an additional three minutes to the advisory time. I hope Clauses 10 to 12 agreed. that that is acceptable. Those who have come in early for the debate may wish to go and stretch their legs for 15 or 20 minutes. Clause 13 : Revocation and revival of TPIM notices

Amendment 40 not moved. Amendments 45 and 46 not moved. Clause 8 agreed. Clause 13 agreed. Clause9:Review hearing Clauses 14 and 15 agreed. Amendments 41 to 43 not moved. Debate on whether Clause 9 should stand part of the Schedule3:Appeals against convictions Bill. Amendment 47 Lord Hunt of Kings Heath: My Lords, I shall not detain the Committee long as we had a debate on this Moved by Baroness Hamwee matter in the first grouping. Essentially, whatever our 47: Schedule 3, page 31, line 20, leave out paragraph 1 view of control orders, there is general agreement that the enhanced judicial scrutiny has been rigorous and the Government have said that such scrutiny will Baroness Hamwee: My Lords, I beg to move embrace the provisions in the Bill. The Constitution Amendment 47, and will speak also to Amendments 48 Committee has suggested that to put the matter beyond and 51. doubt, the Government should table an amendment Amendment 47 concerns paragraph 1 of Schedule 3, to put the matter into the Bill. The noble Lord, Lord which deals with appeals against convictions for breaches Henley, will no doubt have read today’s report of the of measures. My amendment is to enable me to ask Joint Committee on Human Rights, which endorses the Minister why appeals are limited in this way. A that point and says that the surest way to deliver the breach of a measure may turn into a criminal offence, intense scrutiny that the Government say they intend but that is a separate matter from the measure itself. If is to write that explicitly into the Bill. an individual is convicted of that breach, there are I doubt whether the noble Lord’s arguments have consequences for the future, as there are with every advanced considerably since he gave us the Government’s criminal offence. line about two hours ago, so I do not expect him to The Minister may say that the measure itself will respond again to this point. All I would say is that I have consequences. Of course it will. That is executive hope that between now and Report he might say that action without a criminal standard of proof, and so the Government will ponder this matter further. on, as we have discussed. The consequences will be 345 Terrorism Prevention and Investigation[19 OCTOBER 2011] Terrorism Prevention and Investigation 346 social consequences, in a wider sense. If there is a the appropriate fact-finding body. It is this court that conviction for a breach, that has other consequences, has developed a particular expertise and body of because of the record of the individual. Therefore, knowledge in this area of national security, among a Amendment 47 is to ask the Government to explain small and experienced body of judges who hear these the thinking behind that paragraph. cases. This makes it the right court to review all the Amendment 48 would take out subsections (1) and material upon which the Secretary of State relies to (2) to Clause 18. These are about appeals against the make her decisions and make findings on that basis. measure, and again the amendment is to enable me to With regard to the appeal on a point of law, the ask questions. Clause 18(1) says that there may be an noble Baroness asked us whether we thought appeal only on a question of law. I would be grateful if proportionality would be a point of law. Dare I say the Minister could help the Committee on how one it—I might have to be corrected—but I think she is distinguishes between fact and law in this context. probably correct, and it probably would be. If I am How does this apply not just to the decision that there wrong, I will correct that in due course. I will certainly should be a TPIM order but to the detail of the measure? write to her and copy that letter to other noble Lords Is proportionality, which we have been talking about who have taken an interest in these matters. quite a lot, a matter of law? I hope to be told that it is. Finally, I turn to Amendment 51, which deals with My final amendment in the group is Amendment 51, Clause 19. Clause 19, as the noble Baroness is well which relates to Clause 19. Clause 19 provides for the aware, places a duty on the Secretary of State to report Secretary of State to make three-monthly reports to to Parliament on a quarterly basis on the exercise of Parliament, which is welcome. Clause 19(2)(a) provides her powers under this Bill. These are specifically the that this includes and extends to the powers of a powers to impose measures on a person by TPIM Secretary of State “to impose measures”. I am suggesting notice, extend a TPIM notice, vary the measures specified that we should add wording that makes it clear that in a TPIM notice, and revoke or revive a TPIM notice. this covers not just the fact that a TPIM order has Amendment 51 would amend Clause 19(2)(a) to been imposed but the detail of the measures within add “and the measures imposed” at the end of the that TPIM order. I appreciate that it would not be subsection. The relevant provision would thus state proper to put every detail into the public domain. that the requirement was for the Secretary of State to However, I do think it would be proper for the Secretary report on her powers to impose measures on an individual of State to spell out the sort of thing that she is doing, via a TPIM notice under Section 2, and the measures so that we may understand—better than we can if we imposed. As noble Lords will appreciate, the details of are simply told that measures are being applied—just the operation of the system and the particular cases what the impact of those measures may be. I beg will necessarily be sensitive and could not be disclosed to move. publicly. However, taken together, the list of matters on which the Secretary of State much report ensures Lord Henley: I hope I can answer the noble Baroness’s that key information about the operation of the system three points on these three separate amendments, which will be in the public domain, and will be debated we are taking together. I shall start with Amendment 47, regularly. Crucially, this will include information about which deals with Schedule 3. As the noble Baroness is the extent of the Secretary of State’s use of her powers aware, Schedule 3 provides that an individual who has and the number of cases in which measures are imposed. been convicted of the offence contained in Clause 23 We understand that there is interest in as much of the Bill—contravening, without reasonable excuse, information as possible being made available about a measure imposed under a terrorism prevention and the operation of the system and about the cases of investigation measures notice—has a right of appeal those individuals subject to the measures. That has against that conviction if the notice or relevant measure certainly been the case in relation to control orders is subsequently quashed, and if they could not have and it is likely to continue in relation to TPIMs. been convicted had the quashing occurred before they Having that information available will help to ensure were prosecuted. Schedule 3 provides that the court that any debate about the powers is as informed as must allow such appeals. This is obviously not a possible. provision that we expect to be used on a frequent basis. However, its clear purpose is to provide an Lord Hunt of Kings Heath: Perhaps I may ask a important safeguard, and to ensure that the person question about that. The Minister said that the report will be able to get a conviction overturned for contravening laid by the Secretary of State would be as comprehensive a measure that the court has subsequently quashed. as possible within the constraints of the information It is therefore important that the schedule be agreed that she can make available. He then said that that to. I know that the noble Baroness is only suggesting could be regularly debated. As your Lordships know, removing paragraph 1, but that is the operative provision there is a debate to be had next week on annual orders of the schedule, and without it the remainder of the as opposed to a system of parliamentary scrutiny provisions in the schedule are neutered. I hope she every five years. Does the Minister envisage other therefore accepts my explanation and can withdraw ways in which such information can be debated in that particular amendment. Parliament? Amendment 48 deals with subsections (1) and (2) of Clause 18 and is really a question about why we are Lord Henley: The ingenuity of the noble Lord and considering having appeals only on a point of law. We others will find ways in which this House, which seems believe that the limitation is appropriate, because in to have a more liberal approach in these matters, can cases such as this it is the court of first instance that is debate these quarterly reports. There are Questions, 347 Terrorism Prevention and Investigation[LORDS] Terrorism Prevention and Investigation 348

[LORD HENLEY] (4) The assessment shall be made by an independent person Questions for Short Debate and all range of things, appointed by the Secretary of State who shall be appropriately but it is not necessarily for the Government to offer qualified in conjunction with such persons as the individual may those. As regards the debate next week, I look forward nominate and who shall be entitled to make separate reports. to it. (5) The costs of assessments made under this section shall be met by the Secretary of State.” I hope that that deals with the points made by my noble friend. If not, perhaps we can discuss it further in due course, but I hope that today she will feel able to Baroness Hamwee: I shall speak also to Amendment 53. withdraw her amendments. This would be a new clause dealing with a matter that I regard as of the utmost seriousness. It is addressed in Baroness Hamwee: My Lords, I am grateful for the particular to mental health issues. reassurance on my Amendment 49, which takes a The proposed new clause is by no means an opposition stand on a question of law in this context, and I hope to mechanisms for addressing protection of the public that the Minister and I are correct. On Amendment 51, and the prevention of terrorism. It is a separate issue I accept the sensitivity of the detail, which I acknowledged about how measures are applied in practice and about in introducing the amendment. However, I remain the impact of those measures. I have mentioned the concerned that the type and extent of the measures matter already today but it is important to repeat it as being imposed are reported on. The clause is welcome the context for the provision. It concerns in particular and I want to make it work well for Parliament and tipping the individual, his family and members of his others in the transparency for which we are all aiming. community into the precise action that we are seeking I might therefore like to take the opportunity to discuss to avoid; to avoid tipping an individual into breach of with the Minister how one can meet the point without the restrictions on him, which is a criminal offence and going over the top, which I am not trying to do. I beg may turn into a criminal someone who is not a criminal leave to withdraw the amendment. and has no criminal record; and to avoid our failure to recognise that at the centre of all this is a human Amendment 47 withdrawn. being. Schedule 3 agreed. The moment my new clause was published I saw a drafting error, but I will speak to it as I intended it to Clauses 16 and 17 agreed. be. It would provide for an assessment to be made on the likely impact—my drafting error is that I failed to Clause 18 : Proceedings relating to measures refer to the actual impact—of the imposition of measures, Amendment 48 not moved. or the variation of them on the individual and his immediate family every three months, when measures Clause 18 agreed. expire or are repealed or revoked, and thereafter at intervals which the individual may request. The assessment Schedule4:Proceedings relating to terrorism I talk of would include an evaluation of the impact on prevention and investigation measures mental health. It should be made by an independent person appointed by the Secretary of State but not Amendments 49 and 50 not moved. only by that person. I suggest that of course the person should be appropriately qualified, but shall Schedule 4 agreed. work in conjunction with the nominees of the individual who can make separate reports. That is an important Clause 19 : Reports on exercise of powers under Act point because it is all too easy and obvious that independent experts appointed by the Secretary of Amendment 51 not moved. State, as has happened with control orders, are perceived Clause 19 agreed. as agents of the Secretary of State being there to gather evidence and information. 7.45 pm I have proposed the new clause for the reasons I have already given and because one needs to increase Amendment 52 the opportunity for transparency around this whole area. I have said that the costs should be met by the Moved by Baroness Hamwee Secretary of State because I thought that someone 52: After Clause 19, insert the following new Clause— might ask about that. It seems to me that the numbers “Impact of measures of cases we are talking about are small and this would (1) Within 28 days after the imposition or variation of any be entirely proper given that the measures applied are measures, an assessment shall be made of the likely impact of the potentially so very stringent. Amendment 53 would measures— bring these assessments within the remit of the (a) on the individual on whom they are imposed, and independent reviewer. (b) on the immediate family of the individual. The experience of control orders has been not only (2) The assessment shall include an evaluation of the impact that in some cases they are very damaging but that the on mental health. controlee is essentially broken. I want quickly to share (3) Further assessments shall be made not less frequently than every three months and at the expiry, repeal or revocation of the with the Committee the story I heard earlier this week measures, and thereafter during such period and at such intervals of a controlee who had failed to report to the police (but not more frequently than every six months) as the individual on time. I asked how late he had been and was told may request. that it was one hour. His control order of course 349 Terrorism Prevention and Investigation[19 OCTOBER 2011] Terrorism Prevention and Investigation 350 required him to report at a particular time and having —will continue to meet and carry out that function? failed to be there on time he was charged with a breach There is no evidence whatever that controlees have of his order. He found himself in Pentonville. The been treated improperly in the way that my noble shocking part of the story is not just that: it is that the friend set out. individual will not apply for bail. For him, being in On one occasion I suggested to the Home Office Pentonville is preferable to being under a control that there were some difficulties from time to time in order. That is what the state has done to some individuals. giving controlees a single point of contact—perhaps a If that is what we are going to do to them in order to local police officer—who was aware of the situation protect the rest of society, we should know what the and whom they could telephone if they had a problem. impact is. I believe that that has been put right, that they do all have someone to contact, and that sympathetic Lord Hunt of Kings Heath: I do not quite understand consideration is given to all difficulties of the kind that the noble Baroness. Presumably this person was in my noble friend has in mind. breach of the control order by not attending on time. I do not understand the issue. Lord Henley: My Lords, my noble friend has been consistent over the years in her concern about the impact of control order obligations on individuals and Baroness Hamwee: The issue is that to this individual, on their health, in particular on their mental health. being in prison is more acceptable than being in his My first point is that TPIM notices are intentionally place of residence under a control order, with the more limited in nature than those that can be imposed restrictions imposed by the system. I am sure that the under control orders. We will no longer have lengthy noble Lord has heard, from people who had been curfews, compulsory relocation to another part of the under control orders that were quashed, the impact country and total bans on communication equipment. they had on them and their families. The interference Therefore, whatever the result, one would hope that with anything that any of us would recognise as a the effect on individuals would be less than under normal life has been literally intolerable. That is the control orders. point I make to the Committee. I beg to move. Despite the limitations that should significantly reduce the impact on individuals subject to TPIMs, I Lord Carlile of Berriew: My Lords, I applaud and appreciate that my noble friend remains concerned support the sentiment behind my noble friend’s about these issues. I agree with my noble friend Lord amendment, but I suggest that it is not only unnecessary Carlile that the amendment does not achieve what it but would replace a considerable amount of flexibility sets out to do. The noble Lord put a series of questions with something rather less. On the case history that to me about the current position and about what will she has just recounted, I say that nobody has been be the position. He asked whether medical facilities arrested and charged with breach of a control order would be provided by the Home Office for those with for failing to turn up at a police station once, an hour poor mental health. He then asked about the Control late. In every case, there has been an immense degree Order Review Group, and about whether something of tolerance before anyone has been charged. It is only would follow it. He could not quite bring himself to after a very serious breach, or persistent and repeated work out the acronym, but no doubt something can be breaches, that people are charged. put in place that will have a similar role. I am sure that Nor do I recognise the credibility of the account my my noble friend asked those questions in a rhetorical noble friend was given. When I was the independent manner and that he knows the answer certainly to the reviewer of terrorism legislation, on a relatively small first two questions. Such things will be provided by the number of occasions—but several—I was able to visit Home Office: CORG exists; and we will certainly controlees in their own homes, alone, one to one. On consider something suitable to replace it in due course. some occasions I visited them in homes to which they Although I cannot accept my noble friend’s had been relocated. The notion of a state-appointed amendments, I say that the Bill, together with the psychiatrist, however independent, turning up unsolicited relevant control order case law and the duty of the at their home would have been no more comforting Secretary of State to act within convention rights, than One Day in the Life of Ivan Denisovich.Itisa already ensures that the Secretary of State will give the pretty bad idea. appropriate consideration to the impact of the measures I ask the Minister to confirm that the following on the individual and on their family, including the occurs and will occur. First, where there is any suspicion impact on their mental health, both before imposing a or indication of the poor mental health of the controlee TPIM notice and during the year or however long it or of any member of his or her family, medical facilities remains in force. With that, I hope that my noble will be put in place, including, if necessary, psychiatrists friend will withdraw her amendment. and psychologists, to deal with the problem; and that such facilities will be flexible and will be provided at Baroness Hamwee: My Lords, I ought to take two the cost of the Home Office. Secondly, will the Minister minutes to withdraw the amendment—that might be confirm that the Control Order Review Group has obscure to anybody reading this—in order to take us met regularly ever since control orders were brought to the agreed time of 8 pm. Of course I understand in, that it includes various people involved in scrutinising and accept that the measures proposed by the Bill are and observing the person concerned, and that it has less severe than control orders. That is the point of the always discussed such issues where they have arisen? Bill. Not all of them are, because there is the possibility Will he further confirm that under TPIMs, some kind of enhanced TPIMs. I take the point, but it does not of review group—I hope it will not be called TPIMsORG quite cover the ground. 351 Terrorism Prevention and Investigation[LORDS] Northern Ireland: Economy 352

[BARONESS HAMWEE] but to the United Kingdom as a whole. It is an issue I understand the point made by my noble friend which for many years inevitably yielded precedence Lord Carlile about a series of breaches. I talked earlier—I and priority to the suppression of terrorism and to the am not sure whether he was in his place—about the protracted search for political stability. The most vivid need not just for the Secretary of State to be reasonable memories of pain and suffering will long endure in about reporting requirements, but for police officers your Lordships’ House, adorned as it is by distinguished on the ground to be reasonable. former Secretaries of State for Northern Ireland, by Of course, our experiences and what we hear are not ex-Ministers who served with them and by leading the same, and I could never have the particular experience figures from the Province itself. Thanks to their efforts, that he has had, but I hear of the danger of people and to those of so many other people of good will, the who are under such orders becoming so despairing security situation has been transformed and devolution that they almost do not care if they breach. successfully restored. This remarkable progress throws into sharper relief the issue—the third great issue in The real thrust of this amendment is the importance the Province’s life—which is the subject of this evening’s of the involvement of professionals who are of the short debate: its economic future. Peace and political individual’s nomination, not just those who are provided stability need economic progress as their third companion. by the Home Secretary. If I say “by the state” it may sound like One Day in the Life of Ivan Denisovich but I Since I have never held any public office connected say “the state” quite deliberately because that is how it with Northern Ireland, a brief autobiographical note is perceived in this situation. My amendment suggests might not be entirely misplaced. My interest in the the formation of something akin to a case conference Province was first aroused while I was at Cambridge with the considerable involvement of an individual or by a former Westminster MP for South Belfast, Conolly organisation of the person’s choosing because of the Gage, whom Churchill had failed to persuade to take interpretation or perception, which I suppose is inevitable junior office in 1951. He was a staunch unionist with in this situation, that anybody who is provided by the strong progressive views. Between 1970 and 1977, I state is not going to be neutral, far less on the individual’s taught history at Queen’s University, Belfast, where I side. Having said that, I beg leave to withdraw the had the inestimable advantage of working with—indeed, amendment. sitting at the feet of—my noble friend Lord Bew, at whose bootlaces I continue to stare. Amendment 52 withdrawn. During the two years before his murder, I was Airey Neave’s political adviser. On the morning that he was House resumed. killed in March 1979, we finalised the Northern Ireland section of the Conservative manifesto for the forthcoming election. “I wish we had more to say about the economy,” Arrangement of Business he remarked. There was just one sentence: Announcement “We recognise that Northern Ireland’s industry will continue to require government support”. 8.02 pm The words may have been few in number, but they Lord Wallace of Saltaire: My Lords, the Question heralded Thatcherite spending on a large scale, maintained for Short Debate standing in the name of my noble unfailingly under successive Governments of both friend Lord Lexden is now the last business for today. parties, to sustain Northern Ireland’s economy during We have reached today’s target amendment for the troubled years that lay ahead by attracting inward consideration on the Terrorism Prevention and investment, supporting the Province’s precious small Investigation Measures Bill and have adjourned the businesses and protecting its agriculture, which constitutes same until Wednesday next week. The consequence an important element of the Northern Ireland economy. for those taking part in the QSD is as follows: speaking Public spending per head was held at a level that was times for my noble friends Lord Lexden and Lord one-third greater than in the rest of the country. Shutt remain unaltered, but the speaking time for all Such measures were essential in those times, but other Peers taking part in the debate is now increased they have not supplied the Province with the foundations from six minutes to a maximum of 10 minutes. for sustained economic prosperity in the generations that are to come. The long years in which Northern Northern Ireland: Economy Ireland required significant support have left it in a position where public spending is equivalent to more Question for Short Debate than two-thirds of GDP. Taxpayers in Great Britain have been called on to a substantial extent; they now 8.02 pm provide the resources for around half of all government Asked By Lord Lexden spending in Northern Ireland. That surely gives them a powerful interest in the future of the Northern To ask Her Majesty’s Government how they will Ireland economy. encourage the rebalancing of the Northern Ireland Despite high public spending, in no other region is economy in order to stimulate private sector growth. so large a percentage of the population of working age economically inactive. Yet, in this same region Lord Lexden: My Lords, I am immensely grateful to entrepreneurs once built vast businesses that made the have been given this opportunity to raise an issue of north of Ireland a leading industrial centre, part of a the greatest importance, not just to Northern Ireland mighty web of enterprise that also embraced Glasgow 353 Northern Ireland: Economy[19 OCTOBER 2011] Northern Ireland: Economy 354 and Liverpool and created the economic basis for competitor in many areas—has long been reaping the Ulster’s enduring political union with Great Britain. benefits of a 12.5 per cent rate? The issues were set out In 1894—I mentioned that I was a historian—the in a consultation document, Rebalancing the Northern president of the Belfast Chamber of Commerce proudly Ireland Economy, published by the Treasury in March. boasted that the annual output of linen yarn in the The responses were numerous with business organisations north of Ireland, and the five parties in the Northern Ireland Assembly “amounts to about 644,000,000 miles, making a thread which all expressing strong support for change. A ministerial would encircle the world 25,000 times. If it could be used for a working group is now being set up to examine in detail telephone wire it would give us six lines to the sun, and about the complex and technical matters that need to be 380 besides to the moon”. addressed. My noble friend Lord Shutt will no doubt I have no idea whether the great man’s calculations have something to say about it. were accurate, but this claim that Ulster’s linen industry Like the rest of our country, Northern Ireland surpassed all others is incontestable. today needs jobs; that is, jobs in the private sector, jobs Having achieved so much in the past, Northern Ireland that will last, jobs in the industries of the future and can surely set out with confidence to re-establish a jobs that will match the vast range of talent that exists thriving private sector of significant size in a form in that wonderful Province. The highly regarded Northern suited to the conditions of the 21st century. That, of Ireland reform group estimates that a corporation tax course, is the rebalancing to which my Question this rate of 12.5 per cent could create as many as 90,000 evening refers. The absolute necessity of striving to new jobs over a 20-year period. Without new and achieve it has been fully recognised by the coalition fulfilling jobs for young people in particular, much of Government. Indeed, it is one of their principal objectives the Province’s great talent will leave and find employment set out in their programme agreed after the election. elsewhere. Northern Ireland cannot afford such loss. Last year’s Budget spelt out the details: the process of That, above all, is why economic prosperity, springing rebalancing, from private sector growth, is essential to secure the “will include examining proposals for economic enterprise zones, vital third element of the full restoration of the Province’s possible mechanisms for changing the corporation tax rate and fortunes after its long, dark years. That is why so many other economic reform options”. people believe that the case for a 12.5 per cent corporation The case for such action is constantly on the lips of my tax rate is now so compelling. right honourable friend the Secretary of State for Northern Ireland, who puts the arguments for it with 8.13 pm brio and such dedication. Speaking at the Conservative Party conference a fortnight ago, he reviewed progress, Lord Brooke of Sutton Mandeville: My Lords, your reiterating once more that the Government’s, Lordships’ House is in debt to my noble friend Lord “task is to rebalance the economy by encouraging private enterprise Lexden for having obtained this Question for Short and supporting entrepreneurs and new business ... Only last week Debate slot and for his discrimination in choosing the Chancellor announced changes to Air Passenger Duty to save this topical subject. I emphasised the very rebalancing our vital direct air link to the United States. We’ve also provided of this Motion in the speech that I made in your the Executive with the money to set up new enterprise zones”. Lordships’ House in the debate which followed Here my right honourable friend touches on one of the final declaration of peace and the return of the the preconditions of success in Northern Ireland; that Assembly. We should also congratulate him on the is, effective partnership between the coalition Government enchanting comprehensiveness of his introduction. and the Executive at Stormont. It is surely the duty of It is now nearly two decades since I gave up ministerial us all to encourage the Executive to play their full part responsibilities in Northern Ireland, so I shall leave the in the work of partnership. Funds have been supplied corporation tax issue to others, including, retrospectively, to establish enterprise zones. Proposals are now awaited my noble friend, who for understandable reasons maintain from the Executive. It is frankly disappointing that closer familiarity with the Province. That does not five months after the Northern Ireland elections the exculpate me for not having pursued it more vigorously Executive have yet to produce a programme for when I did have ministerial responsibility. Perhaps government. since I came to Hillsborough direct from four years in At the very centre of discussion about how the the Treasury I had too much respect for its then Northern Ireland economy can be rebalanced stands rationale when, of course, the present level of devolution the question of introducing a rate of corporation tax within the total realm was still a thing of the future. in the Province substantially lower than that which I shall, however, briefly relate one telling and not now applies throughout the country. The proposal irrelevant moment in the 1997-2001 Parliament, when stirs some instinctive unionist scepticism. Those, such as I chaired the Select Committee on Northern Ireland Joe Chamberlain, who called for home rule all round— affairs. We were engaged in a report on cross-border devolution for all four constituent parts of the United petrol smuggling between the Republic and Northern Kingdom—at the beginning of the 20th century believed Ireland and were examining the then Treasury Minister in devolved institutions with equal powers. But what responsible to Parliament for Customs and Excise. I we have today is, in the current unlovely phrase, asked the Minister to remind the committee of the asymmetrical devolution with more power vested in Republic’s responsibilities under the Kyoto Protocol some devolved institutions than in others. for carbon emissions. The Minister asked to be allowed In this context, should Northern Ireland have its to consult the accompanying Customs official and own low rate of corporation tax, particularly since responded audibly, within the hearing of the committee, across its land border, the Republic of Ireland—a key to the latter’s advice, with the words, “That can’t be 355 Northern Ireland: Economy[LORDS] Northern Ireland: Economy 356

[LORD BROOKE OF SUTTON MANDEVILLE] industry or service—of course, there is nothing about true”, until appreciation sank in that the Republic being 27 that is mandatory—and that there will emerge enjoyed privileged treatment under the protocol as a from the analysis a whole raft of opportunities. Anything non-industrial economy, whereas Northern Ireland’s that Her Majesty’s Government do in the mean time treatment was as part of the United Kingdom. I do to favour the entrepreneurial spirit will be a bonus and not blame the Minister’s Private Secretary for deleting to be welcomed the more in the Province. the expostulated remark from the official record but it Finally, as to the public sector, I remind your Lordships’ was an incidental insight into the precise extent of the House of Lenin’s doctor, the Armenian Armand Hammer, Treasury’s understanding of the Province’s difficulties. to whom Lenin offered a monopoly of a single product In my confidence that others will fully air the in the new Utopia. Dr Hammer, who could recognise corporation tax dilemma, let me turn to personal a bureaucracy when he saw one, chose pencils, and experience of my own 50 years ago this autumn and from that acorn grew Occidental Petroleum. look at the debate’s gravamen from the private sector’s end of the telescope. I realise that the debate is about 8.20 pm Her Majesty’s Government’s encouragement but one Lord Alderdice: My Lords, I am grateful to and of the ways in which the economy will be rebalanced is congratulate my noble friend Lord Lexden on obtaining through entrepreneurial activity. Fifty years ago, I was this debate on rebalancing the economy of Northern the first head-hunter in the United Kingdom. I was Ireland, which is a challenge. The value of this debate the seventh consultant member of a small firm which in your Lordships’ House is that we are not under any had been established five years earlier in Chicago. I compulsion to do other than try to explore the questions undertook to join it for a year to set up a new office in honestly and in a fashion that might be helpful to Her London, although I told the eponymous founder of Majesty’s Government in fulfilling their responsibilities the firm, who died in January of this year, that I had in relation to the Province. no idea whether there would be a responsive British Market; I had no idea whether I would be any good at I note that in chapter 2 of the book that launched it; and I had no idea whether I would enjoy it. In the the consultation there is a list of some of the strengths event, we planted an acorn, we have harvested a of the Northern Ireland economy: a relatively young forest—of course including subsequent competitors, population, high quality education and training, some of which were started by our own people— and persistently competitive labour costs, a flexible and that firm is now the largest firm of its kind in the world responsive skills system, a track record of attracting to be still in private hands, which, in that industry, is inward investment, 100 per cent broadband coverage, exactly where it should be. It was on that firm’s business good transport links, a relatively low crime rate, strong that I first visited Northern Ireland in 1963. tourism potential and so on. That list, more or less, is one that many of us in Northern Ireland are familiar Why is that relevant to Northern Ireland today? I with because we have spent a good deal of our lives go back again to my time there as a Minister when trying to use lists of this kind to sell Northern Ireland anything that created private sector activity was of to other places. Indeed, it is not hard to be convinced course a plus. I used to keep my eyes open for gaps in that we have these great strengths and potential. Some the economy where the Province was consuming products noble Lords have laboured for some years in Belfast or services, however small, that it was not itself making. City Hall. It is hard to inhabit such a building and not Where I needed to buy services, which I could have feel a sense of confidence and pride in a city that could bought in England but which were available in the produce something of that kind for its main building. Province—my mind goes back to a fair amount of It is an acknowledgment of the strength of the local bookbinding; certainly, to a commemorative sampler; economy at the time. Belfast is the city that produced and, more grandly, to a fibreglass dingy for the and launched the “Titanic”, and we still produce Hillsborough Castle lake, which had then an island T-shirts that say, “She was all right when she left us”. and a boathouse but no boat, that was baptised as the There is a great sense of pride in these things, and “Tom King” after my predecessor—I bought them out anyone who in the great days of the shipyards stood in of my own pocket as a tiny contribution to the local one of the hulks that were being produced—cathedrals economy. When there was no local product that I of engineering—could not but get a lump in his throat could buy, I made quiet inquiries as to why not. and feel a sense of pride about living in a place that We all know the skills base of the local economy. could make such extraordinary products. Today there is not time to tell the moral tale in the But it is important not to inhale when dealing with public sector of the Passport Office crisis at the beginning your own propaganda and to recognise that, although of the 1990s and the Province’s dramatic resolution of there are great strengths in Northern Ireland, our it—unlike Dr Watson’s remark about Sherlock Holmes problems with the economy did not all come from the and the Giant Rat of Sumatra, the world is ready for Troubles. Of course we had great strengths at the end that story but we have no time. But it was a particularly of the 19th and the beginning of the 20th centuries vivid index of the Province’s superlatives. when we were a central feature of an empire that I hope that out of this debate, whether through Her spanned the world, and with all sorts of economic Majesty’s Government or the devolved Executive or differences from the world in which we now live. It was even from an enterprising charity, will come an analysis also the case that many of those who laboured long of all the things that today the Province consumes but and hard in the shipyards, the linen mills and other does not make or internally provide. I hope too that at industrial aspects knew very poor circumstances in least one person of 27, as I was 50 years ago, has the terms of their own health and welfare. That was one of excitement of creating a business that creates a new the reasons we were successful too. 357 Northern Ireland: Economy[19 OCTOBER 2011] Northern Ireland: Economy 358

The truth is that after partition in the early 20th century, But the possibility that people would take responsibility when the world moved into depression and we did too, for something as large as corporation tax, or perhaps it became increasingly difficult to sustain a Northern more modestly, aircraft passenger duty, is to say to our Ireland economy that was independent in terms of its local elected Assembly and Northern Ireland Executive, own taxation and economic strength. As the 20th century “You now have the responsibility as well as the power moved on, it became even more difficult for our industries to do some of the things that are necessary to make a to be competitive, and long before the Troubles broke change. Are you up for it?”. That, in a sense, is the out we were in very substantial difficulties and already question that I come back to my noble friend with needed support from the rest of the UK economy. because, as has already been said, some months on There was a certain amount of optimism in the 1960s from the election to the Assembly and the establishment when Brian Faulkner was Minister of Commerce. He of the Northern Ireland Executive, the plan is not at certainly brought a degree of energy, enthusiasm and all clear. a sense of optimism that there were new possibilities, No one went into the election in Northern Ireland and it is not at all clear how things would have gone in any great doubt as to which would be the major had he been able to remain in post, the Troubles had parties of government or who were likely to be the not happened, and so on. But if we stare long and First and Deputy First Ministers. When an election hard at the reality we quickly come to the conclusion was held in the United Kingdom as a whole and the that we could not assume that, without the Troubles largely unexpected outcome—at least in some circles—of and all that came with them, everything would have a coalition came into being, it took only a few days to been well in the Northern Ireland economy. put together a coalition agreement. One might be The Troubles added to our problems in two ways. critical or otherwise of it, but the fact is that it took First, they chased away business, whether internally or only a few days—and there was no clarity before the through inward investment. Who would want to invest election that there would be that kind of an outcome. in a country that was at war with itself? But there was In Northern Ireland, it was absolutely clear what the another almost insidious way in which our economy outcome would be, and months later we still do not was damaged, and that was through the sustenance have the kind of plan that is necessary to take the that was necessary from the British Government and country forward. Although the question of corporation the British Treasury to maintain some cohesion in the tax and other fiscal freedoms is important, and although community, ensure that public services were delivered, it is true that we have great strengths and possibilities, and that security did not suffer any more than was we have two major problems. One is the fact that our absolutely necessary. What that did over two generations peripheral position and our previous dependence on was to produce a population in Northern Ireland that heavy engineering and other aspects of the economy was extraordinarily dependent on the public sector are disadvantages, and we have a cultural disadvantage and public expenditure. It is not just that it was the in that we have become an institutionalised, dependent case in practice; it was a culture that was espoused and economy which is much more difficult to get out of adopted—it was taken into the whole community. because it needs a change in people’s mindset. When my noble friend talked about “jobs, jobs, But I come back to the fact that there are strengths. jobs”, as he quite rightly did, the problem with the We have two universities and relationships with other phrase is that there is an assumption that it is up to the universities that produce ideas and the possibility that Government or someone else to provide us with those those ideas could be productive and help to build up jobs, whereas actually what we want is a community and strengthen our economy. It is also true that, even that sees itself taking the initiative in order to provide now, many of our most creative young people find its own wealth creation. I am afraid that I found it themselves having to leave Northern Ireland rather enormously difficult in east Belfast—a community than be able to stay and develop their skills in order to that would like to live with the myth of an enthusiastic, build our economy. If there are things we can do to entrepreneurial and largely unionist population—to help nudge—perhaps it requires more than a nudge; persuade local people to start up their own businesses perhaps it requires a really substantial push—those and try to create wealth for themselves. It was always a who now have the responsibility for Northern Ireland question of being dependent on the Government doing to take that responsibility seriously for the development something or someone else providing the jobs. and rebalancing of the economy, and if this debate contributes to that, I think we will have done a worthwhile The reason I mention this is not because I am job and made a contribution. particularly sceptical about any of the proposals around. My noble friend mentioned the corporation tax proposal, which seems to me to be a potentially substantial jolt. 8.30 pm It is not going to be a requirement that the Northern Ireland Executive should institute a particular level of Lord Bew: My Lords, I thank the noble Lord, Lord corporation tax. The challenge is this: are you prepared Lexden, for securing this important debate on the to take on board this opportunity? I hear in Scotland, need to rebalance the Northern Ireland economy. I for example, all sorts of talk about wanting the power would also like thank him for his very kind words to set corporation tax, but the Government there are about me, but to say one thing: he misrepresents the not even implementing the capacity they already have flow of intellectual influence. When the noble Lord, to raise income tax, should they choose to do so. It Lord Lexden, was an academic at Queen’s University makes me wonder whether what is in truth required Belfast in the 1970s, he with Professor John Vincent there is a serious economic power or whether it is a wrote a book called Governing Passion. For my generation political game being played for wholly other reasons. of graduate students, it was a powerful and exciting 359 Northern Ireland: Economy[LORDS] Northern Ireland: Economy 360

[LORD BEW] primarily because of the low level of corporation tax, book that had a huge impact on the way we wrote but most of those companies do not say that. They about politics. I therefore put it on the record that the tend to put it low on their list of reasons for moving to flow of intellectual influence went that way. the Republic of Ireland—there was recently a case of It is important not only to thank the noble Lord, a company that was considering Derry but went to Lord Lexden, for securing this debate but to draw Kerry. Companies do not say that corporation tax is attention to the fact that we have had, at least in the the reason; they tend to put it at about number five on past year or so since the change of Government, a their list of reasons. Being a credulous sort of person, more intense debate about the Northern Ireland economy. I tend to believe them. Whatever the merits or demerits of the argument But this is where my mind begins to change on this about corporation tax, to which I shall come in a topic; I have begun to rethink. I am not convinced that minute, it is important that we have had the beginnings companies tell us the full truth about their decision-making of a serious discussion. It has inevitably been delayed in this matter. I give an example that has struck home because of the whole question of the Troubles and the to me in the past 18 months watching the public recovery from them, and the domination of public debate in the Irish Republic. It brings home some of debate by the need to find a secure settlement. the difficulties for Northern Ireland. Google along When the issue of corporation tax first entered the with a number of other American companies about public domain as a crucial subject, my own reaction 18 months ago began to criticise the educational system was initially quite sceptical. I always thought that it in the Irish Republic, saying, “It is not as good as you was good that we were talking about it because at least think it is and this is a problem for us”. The then Irish we were talking about the need to rebalance the Northern Minister of Education, Mr Batt O’Keeffe, immediately Ireland economy, at least it was a new idea, and at responded and took these criticisms quite seriously. least it was focusing public debate on an economic The new Minister, Ruairi Quinn, has said in a memorable question. None the less, I was sceptical, and the noble but graphic phrase, “We have been codding ourselves Lord, Lord Lexden, has already referred to part of the about the quality of our educational system”. The reason for it: you could reasonably argue that unionism concerns of the American companies were highlighted in the past century had one idea that really worked. by a number of international reports that seemed to That one idea was equality of taxation means equality show that Ireland was sliding down, particularly on of services and good things flowing from the London the mathematical side. There are great concerns, for Treasury in return. This was Edward Carson’s idea. It example, about the quality of maths in Irish schools is why, for example, before Irish independence he now. This crisis has been brilliantly covered by Sean always supported vigorously in this House expenditure Flynn, the education correspondent of the Irish Times, of money by the British state on the west of Ireland. in a series of magnificent articles. At the turn of the Those of us who know the west of Ireland know that year, he described 2010 as a very bad year for Irish some of the public amenities that you can find there education. and in the ports are a product of decisions made by However, in the past few weeks, Google, one of the the British Treasury before 1916 and 1921. It has leading companies making this criticism of the education always been a logical idea that a unitary state implies a system, has announced that it is going to Dublin and unitary taxation system and a unitary flow of benefits not to Belfast, which was also a bidder, for a major to the citizens in return throughout its regions. That new investment. So it turns out that you can believe was the ground for my scepticism. that a society has significant defects in its educational system that create problems for such American companies Now that we exist in a different world with devolution with what they are looking for in their workforce, but in the United Kingdom, there is much conversation they still, oddly enough, end up in the place with the about the possibility of the devolved systems having best tax regime. That is what has made me cynical different taxation regimes. It seems widely considered about the reasons given by companies for acting as to be entirely compatible with the continuation of the they do. Details of that sort enhance the case for union that one has taxation regimes that are not as corporation tax reform for the benefit of Northern simple and uniform as those with which I grew up. Ireland. There is therefore an argument on that score that uniformity may not as be as important as many people I understand that it is possible that this issue may considered it to be in the last century. be stuck. The Treasury has objected, as have a number of very serious economists. There are complications There is another simple point: Northern Ireland around the issue that are nothing to do with Northern does not do too badly with foreign direct investment—it Ireland’s place in the United Kingdom but a lot to do actually does better than the other regions of the with Scotland and what Scotland wants to do, as has United Kingdom. It has major problems with the already been alluded to by the noble Lord, Lord productivity of workers and of the culture, which has Alderdice. If the Treasury is going to say no and if the been so admirably described in its historical evolution public argument is going to go against the case for by the noble Lord, Lord Alderdice, but it does better corporation tax, which has been made eloquently by than other regions of the United Kingdom for FDI. many Northern Irish politicians of all parties and by I began to wonder even so whether it was right that the Secretary of State, Owen Paterson, we have the we should talk so much about corporation tax. I problems as outlined by the noble Lord, Lord Alderdice. looked at the companies that went to the Republic of We have the problem of a dependency culture that Ireland, which is obviously Northern Ireland’s major relies on the state and the Treasury, for reasons that competitor. Many companies, it is argued, go there are not the fault of the people of Northern Ireland. 361 Northern Ireland: Economy[19 OCTOBER 2011] Northern Ireland: Economy 362

What, then, is going to be done? There is perhaps one thinking by the Northern Ireland Executive about slight hope: that an unintended consequence of the how to develop infrastructure for the creative industries changes in university fees and the system in operation and allow them to play their part in economic in the United Kingdom might be that some of the regeneration. The Northern Ireland Programme for talent that currently goes to English and Scottish Government for 2007 to 2011 made scant reference to universities will stay in Northern Ireland, which might this sector. I hope the next one, when it appears, will in turn turn out to be a very useful development for remedy that. the economy. The newspaper sector is facing particular challenges. I understand and respect the arguments of the In recent years its workforce, according to Skillset, has Treasury going back to the Varney report, which was a shrunk to around 1,000 people, and the workforce of serious document, but if the answer is going to be no, the publishing sector as a whole has halved. There are the question must be: what else are we going to do? At serious commercial question marks hanging over the this point, I am not hearing much else. viability of some of the Province’s smaller local newspapers, themselves a vital part of Northern Ireland’s civic tapestry. 8.39 pm One of the key problems is the change that is taking Lord Black of Brentwood: My Lords, I join others place in the public sector, ironically enough. Fewer in congratulating my noble friend Lord Lexden on public sector jobs has meant reduction in public sector securing this debate. I know from my long association recruitment advertising, which accounts for some 70 per with him that there is no greater or more eloquent cent of the recruitment revenues on some newspapers. champion of the people of Northern Ireland, its history The depressed property market, which is probably and heritage, and the opportunities for its future than more stressed in Northern Ireland than anywhere else my noble friend, as has been evident today in his in the United Kingdom, has had a similar impact on choice of debate and the passion of his remarks. classified advertising revenues. These pressures come Economic issues are perhaps of more significant at a time when, ironically, weekly newspapers in Northern importance in Northern Ireland today than almost Ireland are often at the centre of boosting the Province’s anywhere else in the United Kingdom. I would like to private sector businesses, while initiatives such as the speak about one small but crucial sector of Northern Newspaper Society’s local business accelerators campaign, Ireland’s economy—its creative industries. As the media launched only today and welcomed by the Prime play a role in that I should declare an interest as a Minister, can play an important part. It is an excellent director of the Telegraph Media Group. The creative initiative. Papers such as the Banbridge Leader and the economy is important not only because of the private Dromore Leader and the Mid Ulster Mail and Tyrone sector jobs it can create and the investment it brings, Times have launched successful business awards, but because it is so often at the very cusp of the highlighting the strength of local SMEs and the resilience public/private divide that is the defining characteristic of larger businesses. of the Northern Ireland economy, which we are discussing A number of things can be done to help strengthen this evening. As such, the creative economy could and the creative economy—the jobs it supports and the should have a vital role to play in rebalancing the investment it brings, as well as the vital part it plays in economy of the Province. the cultural life of Northern Ireland—as the economy Northern Ireland is already home to a lively cultural is rebalanced. sector, employing, according to the Northern Ireland First, it is vital that we do what we can to help the Executive, some 36,000 people, and there are many Province’s newspaper industry. There are continuing success stories to tell—such as the emerging film and concerns about the threat to statutory public notices TV production centre, with Northern Ireland being in newspapers, a key source of income as well as an used as a base for filming major productions such as essential tool for members of the public and community HBO’s “Game of Thrones” and Universal’s “Your groups to find out about public events and developments Highness”. Northern Ireland Screen’s target is for in their area. Already local council public notice advertising direct, achievable, levered investment in the Northern spend is down 37 per cent in Northern Ireland, which Ireland economy of £112 million from screen production is hitting newspapers hard and opening up a democratic activities between 2010 and 2014. deficit. Further reductions would be intolerable. Northern Ireland has a long-standing musical heritage. Secondly, I welcome what the Government are doing Indeed, Belfast will be hosting the MTV European to help publishers in Northern Ireland, as elsewhere, Music Awards on 6 November. diversify their businesses. The Government are planning It also has a vibrant newspaper industry, with over 50 three local TV stations in Northern Ireland and there publications throughout the Province. Papers such as was considerable interest in the recent visit of the the Tyrone Courier have even beaten UK-wide circulation Secretary of State for Culture Media and Sport to trends. This publication is believed to have doubled its promote those plans, which can help the media in readership in the past 10 years by focusing on key Northern Ireland expand beyond print and offer cross- community issues. selling of advertising packages across the full range of But there are some serious economic issues ahead media—newspapers, TV, radio and Internet. in this sector. For understandable reasons, there have It is however vital that the UK regulatory regime been cuts to the Creative Industry Innovation Fund, recognises the realities of today’s highly competitive which helps leverage investment in the cultural economy. local media markets, allows greater flexibility over Perhaps more worryingly, there seems to be little strategic media mergers and acquisitions and does not continue 363 Northern Ireland: Economy[LORDS] Northern Ireland: Economy 364

[LORD BLACK OF BRENTWOOD] arms against the democratic wishes of the people. The to block small, family-owned newspaper publishers noble Lord, Lord Lexden, has done a twin service in from developing and growing their businesses in the securing the debate. deeply troubling way that happened only this week in I, too, am interested in the decisions on air passenger a proposed merger relating to the Kent Messenger duty. The Treasury announced the formal process Group and Northcliffe Media. yesterday and of course there will be negotiations with Thirdly, there are significant opportunities to begin, the Northern Ireland Executive. It will not be a for-nothing through heritage-led regeneration, to build hubs of negotiation on behalf of the Executive. They will probably creative industries that will help promote private sector find that, just as the same principle will apply to investment and jobs. Such regeneration can be a great corporation tax, the loss of revenue will eventually catalyst for private sector growth in areas of major come out of the block grant. Having been involved at deprivation—for instance around the Carlisle Memorial the start of the route development fund in about 2000 Church and the Crumlin Road Gaol and Courthouse or 2001 which helped us to secure the transatlantic in North Belfast. This is a focus for the valuable work service, I am obviously anxious to see it maintained. of the Belfast Buildings Preservation Trust, which I Only a year or so ago, we got the New York Stock strongly commend. The trust, along with the Northern Exchange to set up in Northern Ireland. What kind of Ireland Design Alliance, is seeking to use the creativity message are we sending them if we suddenly say we are that is the driving force of this sector to help in the stopping the very aircraft that gets them to and from delicate task of rebalancing economic structure and their headquarters? We want to remember, going back policy in Northern Ireland. This will also help the 10 years, that we had one international flight out of heritage-based industry, in particular, to forge new Northern Ireland. It went to Amsterdam. We are now links with EU member states and with the United competing with air passenger duty in Dublin of ¤3. States of America, countries with which there has The Executive will have to take the decision that is traditionally been little engagement in this sector necessary to make up the shortfall in funding. and, as a result, lost opportunities for private sector investment. One sector that sometimes gets left behind is the agri-food sector. At present, it accounts for some Another significant opportunity is the BBC’s decision 20 per cent of Northern Ireland private sector to move programme and production responsibility employment. Everybody had been saying that financial, outside of London. Speaking last week at the Belfast hi-tech or IT services were the solution. The dotcom Media Festival, director general Mark Thompson spoke bubble burst, then the financial services bubble burst. of his hope that BBC Northern Ireland would become Throughout the bad days after the crash in 2008, the a ″fully-fledged creative hub″. That will contribute not agri-food sector and the land-based industries, which only to national network programming but, provided are a much greater proportion of the Northern Ireland the BBC opens its arms to the private sector rather economy than in the United Kingdom as a whole, than acting as a publicly funded competitor, it can kept on steadily going. Invest NI, which I had some create another unrivalled opportunity to promote the part in creating, had taken a view in recent years that it economic rebalancing that is central to this debate. would concentrate its activity on jobs that produced In all these areas, policy needs to be developed to salaries of £25,000 a year or more. In most cases, the encourage relevant new skills, to help in the creation of agri-food sector did not come across that. The average new economic hubs, to support risk-taking and a salary there is currently some £20,000 to £22,000. creative approach to regeneration, and, above all, to However, in light of current circumstances and given provide leadership in a sector where this has traditionally the plans that the Irish Republic has announced to been in short supply. In that way, the richness of grow its food sector by 40 per cent by 2020—Scotland Northern Ireland’s cultural sector—its music and has also announced that it intends to grow its food performing arts, its screen and TV potential, its newspaper sector—if we were to do the same thing it would have publishing industry and new media and its heritage a dramatic effect, creating between 7,000 and 8,000 and built environment—can play a long-term role in jobs directly and a significant number in addition. attracting private sector investment and new jobs and, at the same time, enhancing the quality of life and of Given the circumstances that the world finds itself enjoyment of people throughout the Province. in, being a significant provider of food is not a bad place to be. In the current circumstances, while I accept the need for high-value-added jobs, we have to 8.48 pm be more realistic in the current labour market and economic situation. I would be inclined to give significant Lord Empey: My Lords, like others, I thank the support by having a major plan to develop the agri-food noble Lord, Lord Lexden, for securing this debate. sector, not only on the food processing side but particularly One interesting point that has not yet been made is in research. There is a lot of research money in Europe. that this debate is about rebalancing the economy of We get just about—and no more—our share of it. I Northern Ireland. It is not about the latest security strongly urge the Executive to pursue this because we atrocity or terrorism—something that we have been can collectively achieve a lot more by doing so. living with for so long—but how the economy can be improved. It is about time that we looked at this issue. Much has been said about corporation tax. I am At the end of the day, rebalancing and strengthening not going to rehearse the arguments. I regard it as only the economy is one of the tools that we can use to one of a whole series of tools. I support the idea—I prevent further outbreaks of terrorism and maintain have always done so—but there is no silver bullet that the isolation of those who are prepared to take up will fix the problem. I know from my own experience 365 Northern Ireland: Economy[19 OCTOBER 2011] Northern Ireland: Economy 366 on the skills side that, as a United Kingdom, there is on having this debate. As the noble Lord, Lord Empey, still in excess of one-fifth of our population that is not says, the great news is that we are discussing the economy adequately literate. Northern Ireland is actually slightly of Northern Ireland and not the security situation. better off than the rest of the UK in that regard, but I declare an interest as chairman of the largest what a statistic for a country that prides itself on being newspaper group in Northern Ireland and the Republic one of the top economies of the world. of Ireland, employing some 300 people, so I know We saw the social problems in the summer during something of the problems of business in both parts the riots. The common denominator by and large, of that island. I am delighted to hear the noble Lord, with some exceptions, was the absence of basic skills. Lord Black, mentioning the Tyrone Courier and certainly When we translate all of that back to Northern Ireland— he will be well reported in the Tyrone Courier next the noble Lord, Lord Alderdice, made a number of week because it is the largest weekly newspaper in very important points about the culture—we might Northern Ireland. One thing I disagree with him about say that people have been bred up on the benefits is that he says the small papers are in trouble. No system. That is not where their natural home is, but to way—small papers are succeeding. We have the largest get away from it, when you add all the benefits—free circulation in Northern Ireland, with 75,000; the big school uniforms, dentistry, healthcare, opticians and papers, like the Belfast Telegraph, are down to 50,000. so on—you would need nearly a bank manager’s wages The weekly papers are succeeding; the daily papers are to make it worth your while to work. in decline right throughout the United Kingdom—so Given the combination of that with the lack of be careful at the Telegraph! opportunity, what do we expect people to do? They The noble Lord, Lord Lexden, said that devolution have to put food on the table somehow, so it is up to was successful. I was deputy leader of the Ulster us, in rebalancing the economy, to get the message Unionist Party at that time with the noble Lords, Lord across. I have been in the middle of Stormont for Empey and Lord Trimble. We negotiated the Belfast years, and have seen how the carve-up happens at the agreement. To say it is successful is going a bit far. I table whenever the money from London is put on am more inclined to agree with the present Secretary there—everybody grabs their bit and that is the way it of State for Northern Ireland in his speech in Manchester works. We have to realise that that endless flow that we a few weeks ago when he said it is getting to the time have seen for many years is no longer endless and it when they have got to make decisions. People in will get progressively less. That is an inevitability as the Northern Ireland are losing respect for the Northern economy of the United Kingdom faces up to the fact Ireland Assembly, and if it collapses then the gap is that we talk about deficit reduction but in fact we have filled by terrorism yet again. It is important that structural debt and all sorts of debt, and it is going to decisions are made. take a generation to clear it. Northern Ireland is not Look at the decisions that have been missed. We going to be able to rely on very substantial amounts of mentioned golf; the great international football pitch—no public expenditure to survive. decision; the extension of Belfast City Airport—no Therefore, I entirely support the comments of the decision. The replacement of the 11-plus—abolished; noble Lord, Lord Black. I believe very strongly in the now we have three 11-pluses. creative industries. There is tremendous potential and Lord Empey: Five. we have some wonderful talent. Look at our golf. We have huge opportunities there to exploit that from a Lord Kilclooney: Well, there is one for integrated tourist point of view and in other ways. What other schools, one for Roman Catholic schools and one for small province in the world could have produced so state voluntary schools, which is amazing. On John many talented people in such a short time? It is Lewis’s planning application at Lisburn, there is no statistically almost impossible but we have done it. decision. There are no decisions being made and sooner When we add in our land-based industries and our or later the public in Northern Ireland will catch on, experience in food production, in those three areas which will be very bad news there. As far as devolution alone there is potential for significant growth. is concerned, we should place on record our appreciation It is depressing in the current circumstances to see of the work of Senator George Mitchell, who some of youth unemployment in particular rising, but I retain us were with on Monday evening at King’s College, residual optimism that ultimately the entrepreneurial and our thanks to the former Prime Minister, the right spirit and indeed the genes that were in the economic honourable Tony Blair. He is criticised very much life of this part of the United Kingdom can be revitalised. these days in the media but we should place on record It is a matter of concern that so far into the new our appreciation of the time and effort he gave to Assembly progress has not been made. I know how bring devolution. hard it is to produce these programmes for government. The noble Lord, Lord Lexden, said that GB taxpayers It is a very tiresome process, but at the end of the day are subsidising Northern Ireland. He forgot to mention if we do not get on quickly, we are not giving the right places called Scotland and Wales, and other parts of leadership to the industry that is so necessary for our England. They are getting subsidised as well. We are future prosperity. actually quite successful now. We are not the poorest part of the United Kingdom any longer. Wales is—check the figures. Our unemployment in Northern Ireland is 8.57 pm now less than the UK average. We have statistics to Lord Kilclooney: My Lords, I should like to fill the show that Northern Ireland is progressing and we gap—I was not aware of this debate until today, should not always be on the back foot, trying to say unfortunately.I congratulate the noble Lord, Lord Lexden, that things are bad there. 367 Northern Ireland: Economy[LORDS] Northern Ireland: Economy 368

[LORD KILCLOONEY] underinvestment did not disappear with the Good I come to the issue of corporation tax. I have Friday agreement or the establishment of the Northern always been critical of the Northern Ireland Secretary Ireland Executive. of State in his campaign to have a lower level of I entirely agree with the objectives of improving the corporation tax in Northern Ireland. If you look at economy, attracting private sector investment and the PwC accountants’ report on what attracts an improving skills, as the noble Lord, Lord Empey, said. investment, corporation tax is number 10 in the priorities As noble Lords have said, this has to be done in —not number one but number 10. I know that from several ways. A reduction in the level of corporation my experience in business in both Northern Ireland tax is the main argument put forward in the document and the Republic. Other things come into account: on rebalancing the economy. However, I do not see national insurance contributions; other forms of taxation; bringing the rate of corporation tax down to 12.5 per education—there was some criticism of that this cent, in line with the Republic, as a silver bullet. It was evening—and labour costs. The noble Lord, Lord Bew, Kate Barker who first commented on this in her mentioned Google but he did not happen to mention Economic Advisory Group report. She reported that Dell, which left Limerick in the Republic of Ireland. if a reduction in corporation tax were to be introduced, Why? Was it the 12.5 per cent corporation tax? It it would have to be alongside other measures to rebuild stayed in the European Union and went to Poland, the economy. I am not sure whether Kate Barker at with its 19 per cent corporation tax, because that tax is that time considered it alongside the reduction in the not the main factor in deciding how you develop a block grant; I think that came from the Azores judgment. business. There are many other issues: read the papers However, we need to look at the other side of the tomorrow and see what Aviva has announced in the equation and at further cuts in the block grant. Republic of Ireland today. The Northern Ireland Executive are already having I am going to be told that my time is up. All I can to make savings and efficiencies following the cut of say in closing is that, as a Unionist, I believe in £4 billion to £5 billion over the next four years as a equality of services, equality of taxation and equality result of the public spending review. They are taking of responsibilities. action; I am pleased to see that the RPA—the review of public administration—is proceeding to reduce the 9.02 pm number of councils. However, I am sure that the Baroness Smith of Basildon: My Lords, this has Executive will have heard the frustrations expressed been a stimulating and, I hope, a very valuable debate tonight in your Lordships’ House about the programme for the Government. As the noble Lord, Lord Empey, for government. said, the significance of debating the economy is one I was the relevant Minister on two levels. I had to that your Lordships’ House should be proud of. I look at two decisions: one on the introduction of congratulate the noble Lord, Lord Lexden, not only water charges and another on the 11-plus, which was on his choice of debate, which has given us the opportunity also mentioned. Neither of those were popular decisions to debate extraordinarily important issues this evening, and nor are they now. However, clearly difficult decisions but on the way in which he introduced the debate. I must be taken so I am certainly not against the Northern think your Lordships’ House will be very grateful to Ireland Executive having to take political responsibility him for doing so. for their own budget. My real fear is that the cuts The comments made by the noble Lord, Lord already announced are too harsh and too deep, and Alderdice, at the beginning of his contribution were will bring significant problems to both individuals and very appropriate. He talked about the purpose of the Northern Ireland economy. I was struck by the tonight’s debate, which is to help assist the Government comment of the noble Lord, Lord Black, about the in what is a difficult decision to make: how to rebalance creative industries and how difficult they are finding and grow the Northern Ireland economy. It is a debate some of the cuts that they have had to face. that, as we have heard tonight, cannot be taken in I welcome some of the decisions made by the isolation because the economy of Northern Ireland is Executive in support of businesses. For example, there inseparable from what has occurred politically, socially was an announcement yesterday by Invest NI, which is and security-wise over 30 years. We recognise that part of DETI, the Department of Enterprise, Trade there is higher per capita public spending in Northern and Investment, of a new £50 million fund to provide Ireland and understand that the Government want to loans to companies that have not been able to access see the level of public spending reduced more quickly equity. Despite government promises to get the banks there. We all want to see a stronger and more resilient to lend more, that remains a significant problem for economy, because nothing causes public concern and many smaller businesses and medium-sized enterprises dissent faster than rising unemployment, the fear of that are trying to grow. I congratulate Invest NI on a unemployment and poor public—and indeed private— great initiative, which has the potential to make a real services. difference. After decades of underinvestment in key services— We see a position where the Northern Ireland Executive although not for a lack of spending, as there were very already have to make significant changes and cuts, high costs associated with policing and security—there and need to attract investment to rebuild the economy. is a real need for public services to improve and be My concern arises because the impact of a reduction more efficient. YourLordships’ House has to understand in corporation tax could be a loss of a further £300 million that there are special reasons why public spending in or £367 million—different figures have been mentioned. Northern Ireland remains higher, and it was clear That cut in devolved spending has to be taken into from the debate tonight that it does. That backlog of consideration by all who are debating this issue. Where 369 Northern Ireland: Economy[19 OCTOBER 2011] Northern Ireland: Economy 370 will that money come from? Which services will bear devolved matter but if we are to work with the Executive the brunt of that further cut? That is the area of and the people of Northern Ireland to secure the concern. Is it too high a price to pay? In examining the stable and resilient economy that we want to see we case for a cut in corporation tax for Northern Ireland, have to listen to local decision-makers and take on one has to look at the reasons for the growth in board their arguments on these issues. investment that we saw in the Republic of Ireland. Finally, I understand that the Government are Was the primary factor in the growth in investment establishing a working party—it may already have and the increase in jobs that was seen—we do not see met—with Northern Ireland representatives and UK it now—a different level of corporation tax? Ministers. Given the significance and impact of this I am not a tax expert but I have tried to speak to issue it would be helpful to have representatives from and read the works of those who are. They tell me that all the political parties on the Executive discussing and the Republic did not compete on just its tax rate. examining it. Many experts say that, in effect, many companies are offered a zero rate—they pay nothing at all—and that 9.12 pm is part of the reason for the current problems that the Republic of Ireland is experiencing. There was significant Lord Shutt of Greetland: My Lords, I congratulate growth, yet while the rate of corporation tax remains the noble Lord, Lord Lexden, on securing this splendid the same the economy now has significant problems. and important debate. I am grateful to your Lordships The level of unemployment in the Republic is significantly for the quality of their contributions. Noble Lords higher than it is in both the UK as a whole and have travelled down memory lane but in so doing have Northern Ireland. For example, unemployment in provided tremendous insight into the journeys and Northern Ireland is a little more than 7.5 per cent, experiences that have ultimately brought them to this while in the Republic it is 14.3 per cent—up from House. It is a privilege to listen to so many wonderful 4.6 per cent in 2007. Among 18 to 24 year-olds, contributions. unemployment has significantly increased here in the The coalition Government’s commitment to UK to just over 21 per cent. In Northern Ireland it is rebalancing the Northern Ireland economy is one of 18 per cent but in the Republic of Ireland youth the key objectives we share with the Northern Ireland unemployment is a staggering 31.5 per cent. Executive. The recent announcement by the Chancellor that air passenger duty in Northern Ireland would be Therefore, I urge caution: I worry that some may reduced and then ultimately devolved to the Assembly feel that a cut in corporation tax is enough to encourage shows that we are prepared to act decisively and that much needed investment. I note that the noble creatively in order to keep the economy moving. I Lord, Lord Lexden, agrees with my concern that on its believe we all agree that the Northern Ireland economy own it is not enough. We recognise that it is much is overreliant on public sector spending. The situation more complex and that significantly more information is understandable—one of the sad legacies of the is needed. I understand that the Northern Ireland Troubles is that the economy stagnated in Northern Grand Committee in the other place has postponed its Ireland while it grew elsewhere. The support of the session on the economy and instead is debating the big public sector was necessary, but both now and in the society because it feels that it does not have enough longer term relying on those levels of public spending information at this stage and wants more information is unsustainable. before it resumes that debate. The Northern Ireland Executive and Invest Northern I appreciate that the Government know that there is Ireland have had some notable successes in attracting a lot of work to be done before any decision can be investment in recent years, with new entrants to the taken but, for the debate to proceed, more basic Northern Ireland market such as the New York Stock information is required. The Minister may have this Exchange and Citigroup and the expansion of existing information to hand. I am not clear whether the businesses such as PricewaterhouseCoopers—all creating Government yet know how many companies in Northern jobs which add value to the Northern Ireland economy. Ireland pay corporation tax and at what level. Do we However, these successes are not enough. Northern know what the total take of corporation tax in Northern Ireland still has some way to go and, for that reason, Ireland is? Unless we have those figures it is very the Treasury consultation paper on rebalancing the difficult to ascertain what the cut in the block grant Northern Ireland economy set out some radical proposals should be. for discussion. The paper suggests that the level of corporation tax The business community has made the case that a tapers off as the level of the block grant goes down. reduction in corporation tax to a level similar to that However, if it proves evident that the cut in corporation in Ireland would kick-start inward investment and tax is not having the intended effect, do the Government growth, sending a resounding message that Northern plan to consider making adjustments to the amount of Ireland was open for business. Those responsible for block grant being removed? I know the issue will be attracting inward investment in the Republic are adamant resolved but the Azores judgment specifically says that about the role their business tax regime has played in there has to be a balancing to ensure that any money ensuring that even during the global economic downturn that could be gained through corporation tax has to Ireland remains at or near the top of the global be taken away from another area. Therefore, if the rankings for attracting inward investment and jobs. amount gained through cutting corporation tax is not The head of the Irish economic development agency realised, does the amount of the block grant still go has said that the 12.5 per cent corporation tax rate is down by that amount? I have reservations about this the “cornerstone” of Irish industrial policy. 371 Northern Ireland: Economy[LORDS] Pensions Bill [HL] 372

[LORD SHUTT OF GREETLAND] Republic has fought tooth and nail to retain a 12.5 per However, we need to be cautious—as has been cent rate. I turn to the noble Lord, Lord Bew, who has repeated here—because low corporation tax is not a been moving on this issue. The Republic’s clear view silver bullet. Infrastructure, education, training and that that 12.5 per cent rate has been so important the planning regime all play a key role, too. The concentrates the mind. I understand that. Exchequer Secretary has written to the First Minister The noble Lord, Lord Alderdice, asked whether the and Deputy First Minister about the creation of a Northern Ireland Executive are up to the job. It is not working group to further examine issues raised during for me to take a view on whether people are up to the the consultation period. The work of that group will job. They have been elected and, under the system there, be vital in gaining deeper insight into the potential various people have executive roles. I am led to believe costs, benefits and administrative hurdles associated that we will not have to wait that much longer for a with a tax reduction. We must not try and pre-empt programme for government. On rebalancing the economy, the outworkings of that process. No decisions have the discussions are not a done deal, but if the rebalancing yet been made, but we all look forward to the insight on corporation tax can take place, that may well that the ministerial group will give to the issue. energise them to look at other areas where the Executive I will now endeavour to pick up the points raised can do what they can do to rebalance the economy. during the debate. The noble Lord, Lord Lexden, Five sets of people are involved: much depends on referred to the working group and hoped that I would the devolved Government, what they can do and the add something on it. The noble Baroness also referred powers that they have, including with what is clearly a to it. It is only in recent days that the invitation was well-thought-of organisation, Invest Northern Ireland; put to the Northern Ireland Executive asking them there is also what this Government can do, although to nominate Ministers to serve on a group. Their because of devolution that is somewhat limited—that decision was to come up with four Ministers—the is one reason why this idea has come from the Secretary First Minister, the Deputy First Minister, and the two of State; there is the involvement of Europe; there is Ministers responsible for finance and for trade and the use of the cross-border entities, particularly on industry. The point was made about business as usual tourism; and, very importantly, there is the inventiveness and getting on with life in the way in which others of the private sector itself, which is a point that has would. The four Ministers have been put up. The already been made by several noble Lords. Executive were asked, “Who would you like to serve on I was very impressed by the contribution of the the group?”. It was not even asked of them, “How noble Lord, Lord Black of Brentwood. I am always many would you like? Who would be the appropriate impressed by that which I do not expect and do not people?”. The Executive have chosen those four people know about which arises in debates in this House. On because of their function. They will, of course, be able culture, the city of Derry/Londonderry will be the city to report back to the Northern Ireland Executive. Three of culture in 2013. Bearing in mind the detail of what parties who also have jobs in the Executive are not among the noble Lord had to say, I felt that he could well be those four people. In effect, it is the people themselves placed as a consultant to the Northern Ireland Executive on that Executive who have come up with the four on cultural matters. people who they think are right to serve on that group. The noble Lord, Lord Empey, referred to food and Lord Kilclooney: As to the cost of reducing corporation was the one person who said that this was not about tax in Northern Ireland, the Chancellor of the Exchequer bother in Northern Ireland but about the economy of during his most recent visit to Northern Ireland said Northern Ireland. It is not for the UK Government to that reducing the tax could mean a reduction in the say where Invest Northern Ireland’s priorities ought to block grant of £400 million. This committee will now be. The noble Lord makes the very valid point that for consider what would be the cost of the tax reduction. so many reasons it is clearly an area that should be looked Is it not surprising that various businesses and at as a possibility for investment. Of course, it would organisations supported the reduction of corporation be for the Northern Ireland Executive to take that view. tax without even knowing how much it was going to I am concerned about the time. My time is up. If cost the people of Northern Ireland? there are any specifics and anything that I have been asked about to which I have not responded, I will Lord Shutt of Greetland: There is work to be done, endeavour to do that. It is has been a splendid debate which is why the committee has been set up to look at on the possibilities of what can be done, based on the the detail of how this would work. Think about this: rebalancing report and splendid introduction made by in this jurisdiction, we have income tax rates of 20 per the noble Lord, Lord Lexden. I hope and believe that cent and 40 per cent, and 50 per cent for people so many of the contributions will be noted by Her earning in excess of £150,000. In the Republic, the tax Majesty’s Government as we go forward. rates are 21 per cent and 40 per cent. In this jurisdiction, we have VAT of 20 per cent. In the Republic it is 21 per House adjourned at 9.25 pm. cent. It is even stevens. On corporation tax, our rate is at 26 per cent, being Pensions Bill [HL] reduced to 23 per cent, but in the Republic it is at Returned from the Commons 12.5 per cent. The Republic has held discussions with Europe as to how to endeavour to solve its troubles. Of The Bill was returned from the Commons agreed to with course, it was under great pressure not to have that low amendments. It was ordered that the Commons amendments rate of corporation tax. I find it instructive that the be printed. WS 19 Written Statements[19 OCTOBER 2011] Written Statements WS 20

The courts currently retain discretion on both the Written Statements question of whether a PCO should be granted and Wednesday 19 October 2011 the level at which it should be set. The Government have accepted for some time that it would be in the Energy: Fuel Poverty interests of applicants in environmental judicial review cases to provide greater clarity about the level of costs Statement through a codification of the rules on PCOs which sets out the circumstances in which a PCO will be granted The Parliamentary Under-Secretary of State, Department and the level at which it will be made. of Energy and Climate Change (Lord Marland): My The proposals in this consultation are designed to right honourable friend the Secretary of State for establish the basic principles for rules setting out the Energy and Climate Change (Chris Huhne) has made nature and content of a PCO in a standard case and the following Written Ministerial Statement. how far, and in what circumstances, it will be possible In March 2011, I announced the appointment of to depart from the standard case. Professor John Hills of the London School of Economics to lead an independent review of the fuel poverty To keep the overall level of costs down it is also definition and target. Professor Hills was asked to proposed that where a cap on the claimants’ exposure look at fuel poverty from first principles: considering is granted there should also be a linked cap on the the nature of the issues at the core of fuel poverty, liability of the defendant for the claimants’ costs (known including the extent to which fuel poverty is distinct as a cross-cap). from poverty, what the effects of fuel poverty are, and Copies of the consultation paper are available online, how best to measure it. at www.justice.gov.uk. Since the review was launched, Professor Hills and The consultation period will be from 19 October 2011 his team have gathered, working closely with stakeholders, until 18 January 2012 and I will make a further Statement and analysed evidence, and I am pleased to draw to regarding the response shortly after the consultation the attention of both Houses that he will be publishing period ends. the Independent Review of Fuel Poverty Interim Report at 12:00 today on the Hills Review website1 . I am grateful for all the work Professor Hills and Government: Resignations his team have done to put together this substantive Statement interim report. My officials and I will review the report carefully: and, alongside other stakeholders, we will be discussing the questions raised with Professor The Chancellor of the Duchy of Lancaster (Lord Hills in greater detail over the coming months. Strathclyde): My right honourable friend the Prime Minister has made the following Statement. I would encourage my parliamentary colleagues and stakeholders to do the same, as Professor Hills I am placing in the Libraries of both Houses the and his team further develop their findings towards report by the Cabinet Secretary, Sir Gus O’Donnell, the publication of the final report, which I look forward into allegations against my right honourable friend the to receiving in early 2012. Member for North Somerset (Dr Fox). 1 http://www.decc.gov.uk/en/content/cms/funding/fuel_poverty/hills_ My right honourable friend resigned last week as review/hills_review.aspx Defence Secretary accepting that he had mistakenly allowed the distinction between personal interest and Environment: Judicial Review Cases Government activities to become blurred. Statement I accepted my right honourable friend’s resignation from Government and his reasons for resigning while The Minister of State, Ministry of Justice (Lord making clear that as Defence Secretary he had McNally): My honourable friend the Parliamentary implemented fundamental changes that will help to Under-Secretary of State, Ministry of Justice (Jonathan ensure that our Armed Forces are fully equipped to Djanogly) has made the following Written Ministerial meet the challenges of the modern era. The report by Statement. the Cabinet Secretary confirms that my right honourable I am publishing the consultation paper Cost Protection friend did breach the Ministerial Code. for Litigants in Environmental Judicial Review Cases This Government have already introduced changes on 19 October 2011. that significantly increase government transparency This is a formal consultation exercise undertaken including publishing lists of ministerial meetings with by the Ministry of Justice to seek views on the external organisations and all procurement over £500. Government’s proposals to codify the current case law The Permanent Secretary at the Ministry of Defence on protective costs orders (PCOs) in relation to judicial has already accepted that there should have been review claims which fall under the Convention on much tighter procedures within the department and is Access to Information, Public Participation in Decision- taking steps to strengthen them to ensure that the Making and Access to Justice in Environmental Matters Ministerial Code is properly adhered to. (the Aarhus Convention), including those covered by The Cabinet Secretary has recommended further the public participation directive (Directive 2003/35/EC) strengthening of procedures across Government. I (the PPD). PCOs are orders developed by the courts have accepted these recommendations and the Cabinet which are designed to set a pre-determined limit on a Secretary will write to Permanent Secretaries setting claimant’s exposure to a defendant’s costs. this out. WS 21 Written Statements[LORDS] Written Statements WS 22

Planning In December 2010, my department published a call for evidence and in July 2011 issued a draft new Statement National Planning Policy Framework. The 12-week consultation period on the draft framework closed on The Parliamentary Under-Secretary of State, 17 October. We will now carefully consider all of the Department for Communities and Local Government submissions that have been made. (Baroness Hanham): My right honourable friend the Minister for Decentralisation and Planning (Greg Clark) I have asked the Communities and Local Government has made the following Written Ministerial Statement. Select Committee to consider and make suggestions I wish to update honourable Members on progress on the draft. We will also take fully into account the towards the reform of national planning policy. comments of honourable Members in a debate to be held in the House of Commons in Government time The Localism Bill, which has completed its Report on 20 October, and in the House of Lords on 27 October, stage in the House of Lords, makes a significant as well as the comments made in the debates during transfer of power over planning matters from central the proceedings on the Localism Bill. and regional government to local communities. To enable these powers to be used, national planning Having fully considered the suggestions made, the policy must be made more accessible; in the course of Government will then publish the revised text taking the last decade, national policy has grown to over one into account representations that have been made and thousand pages in volume—a significant barrier to the a summary of responses to the consultation. The engagement of local residents and their community Government are committed to the publication of this representatives. final version of the framework by 31 March 2012, but Our reforms are intended to simplify the system, intend to do so well ahead of that time. strengthen local participation and help achieve sustainable development. The planning system has always enshrined The framework aims to strengthen local decision- the principle that the economic, environmental and making and reinforce the importance of local plans. social dimensions of sustainable development should We will therefore work closely with local authorities to be considered in a balanced way—and it will continue ensure that appropriate transitional arrangements are to do so. in place before the new framework comes into force. WA 67 Written Answers[19 OCTOBER 2011] Written Answers WA 68

(d) what were the categories of army apprenticeships Written Answers in each case. [HL12178] Wednesday 19 October 2011 The Parliamentary Under-Secretary of State, Ministry Apprenticeships of Defence (Lord Astor of Hever): The number of people under the age of 18 recruited into the armed Question services in the past five years is as follows: Asked by Lord Bradshaw Royal Royal Air To ask Her Majesty’s Government, further to Year Navy Army Force Total the Written Answer by Baroness Wilcox on 12 May (WA 226), and in the light of the move by the Heart 2010-11 280 2,390 90 2,760 of England NHS Foundation Trust to offer degree-level 2009-10 610 3,700 470 4,780 apprenticeships resulting in the training of nurses 2008-09 840 4,340 770 5,940 outside the university system, what progress they 2007-08 840 4,720 390 5,950 have made in the development of work-based 2006-07 820 4,990 150 5,960 apprenticeships resulting in the gaining of a professional qualification and membership of a professional All numbers are rounded to the nearest 10. body such as the Institution of Civil Engineers, The number of Army recruits under the age of 18 Institution of Mechanical Engineers, Institution who started and completed Army apprenticeships in of Electrical Engineers or the Royal College of the past five years are as follows: Nursing. [HL12270] Number of recruits The Parliamentary Under-Secretary of State, Department Number of recruits who completed the for Business, Innovation and Skills (Baroness Wilcox): Year starting the course course The Government have continued to work to extend advanced and higher apprenticeships opportunities 2010-11 1,261 954 and to strengthen links with professional qualifications 2009-10 1,418 1,089 and bodies since the Written Answer on 12 May. 2008-09 1,407 963 In summer 2011, we launched the higher apprenticeship 2007-08 1,346 968 fund, with £25 million to support the creation of up to 2006-07 1,317 940 10,000 advanced and higher apprenticeships over the next four years, giving firms in sectors such as advanced These Army recruits undertake a vocational manufacturing, information technology and engineering apprenticeship which enables them to prepare for the hi-tech skills they need to grow. Professional bodies military training and life. In addition, they undertake were amongst those encouraged to respond. The deadline academic qualifications in information technology (IT), for proposals closed on 16 September and these are mathematics and English; soldiers are enrolled on a now being evaluated. The outcome will be announced level 2 apprenticeship for IT users which consists of in November. the level 2 IT diploma for IT users along with functional In addition, we have asked the Technician Council skills (FS) in English and mathematics at level 1. All to look at the issue of professional registration for those who achieve level 1 FS in English and mathematics people graduating from apprenticeships, and anticipate during the programme have the additional opportunity its advice in the new year. This will include examining to achieve those skills at level 2. the extent to which apprenticeship frameworks currently lead towards registration, and if there are further steps that professional bodies or others might take to offer Colombia more help to people to attain this goal. Questions It is important that professional bodies are involved from the outset in the development of apprenticeship Asked by Viscount Waverley frameworks, in particular at the higher level, to ensure that these lead towards eligibility for membership and To ask Her Majesty’s Government whether they professional status. Apprenticeship framework developers will sign any agreements during President Santos’s have considerable experience of working with professional forthcoming official visit to the United Kingdom in bodies within their sectors. support of programmes and reforms for social prosperity in Colombia. [HL12272] Armed Forces: Under-18s Question The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford): President Santos of Asked by Lord Judd Colombia will be visiting Britain next month. His visit To ask Her Majesty’s Government, for each of will further broaden our strong relationship with the past five years, (a) how many people under the Colombia. age of 18 were recruited into the armed services, The British Government want the visit to deliver (b) how many recruits under the age of 18 started ambitious and sustainable goals that benefit both army apprenticeships, (c) how many recruits under Britain and Colombia. Although it is too early to the age of 18 completed army apprenticeships, and comment on what agreements may be signed during WA 69 Written Answers[LORDS] Written Answers WA 70 his visit, discussions will cover a range of issues, neutralising militias, and to ensure that minerals including trade, prosperity, human rights, international and resources of the Democratic Republic of Congo co-operation and counter-narcotics. are not used for illicit purposes. [HL12321] Asked by Viscount Waverley The Minister of State, Foreign and Commonwealth To ask Her Majesty’s Government what plans Office (Lord Howell of Guildford): The UK is one of they have to promote United Kingdom economic the major donors to the Democratic Republic of Congo interests in Colombia. [HL12273] (DRC) election process. We have already provided £26.1 million with a further £5 million committed by Lord Howell of Guildford: We are working with the end of 2012 for the 2007-13 electoral cycle. While we Colombian Government to support their programme are not funding election observation directly, we pushed of socioeconomic reforms, which aim to lay the basis strongly for the EU election observation mission. This for increased UK/Colombia trade and investment in is deployed for a period of three and a half months, the future. This includes specific projects to promote from the end of September 2011 until mid-January best practice in public contracting, developing the 2012. The first long-term observers are now in the regulatory framework for renewable energies and sharing country. We also remain in close contact with partners, experience on public private partnerships. including the Carter Center, African Union, and the UK Trade and Investment supports companies seeking Southern African Development Community (SADC), to enter the market through the range of services that the Catholic Church, and the Electoral Institute for it offers, including identifying and communicating the Sustainability of Democracy in Africa (EISA) specific opportunities and linking UK companies with about their observation missions. partners and customers in the market. We are funding disarmament, demobilisation, We raise specific issues affecting UK economic repatriation, resettlement, and reintegration (DDRRR) interests with the Colombian Government. This includes programmes to encourage the surrender of members the continued presence of non-tariff barriers in the of the armed groups in eastern DRC. These programmes liquor sector, which have an impact on UK spirits. combined with the continued military pressure from the Congolese army (FARDC) are helping to reduce the threat of armed groups, substantially reducing their number over the past two years. We welcome the Compensation improved relationships between DRC, Rwanda and Question Uganda and the strengthened co-operation this signifies. We will continue to engage with these countries to Asked by Lord Sheikh encourage greater co-ordination on regional security To ask Her Majesty’s Government what steps issues. they are taking to address any growth of a We, alongside international partners, are working compensation culture in the United Kingdom. to ensure that the DRC’s mineral wealth is brought [HL12187] under legitimate control, as a source of revenue for the state and the local population, and to restrict financial support to armed groups. Further information about The Minister of State, Ministry of Justice (Lord our work on conflict minerals is available online at McNally): The Government are implementing a ww.fco.gov.uk/conflictminerals. fundamental reform of no-win no-fee conditional fee agreements. Under these changes, meritorious claims will be resolved at more proportionate cost, while unnecessary or unavoidable claims will be deterred Drugs: Pyridostigmine Bromide from progressing to court. Question As part of our commitment to curb the compensation Asked by Lord Morris of Manchester culture, the Government have also announced their intention to ban referral fees in personal injury cases. To ask Her Majesty’s Government what legal advice they have taken in regard to their legal responsibility in having funded the use of Democratic Republic of Congo pyridostigmine bromide prescribed to NHS patients Question and any illnesses this has caused. [HL12378] Asked by Lord Alton of Liverpool The Parliamentary Under-Secretary of State, Department To ask Her Majesty’s Government what response of Health (Earl Howe): The Government have not they intend to make to the request of the Episcopal taken legal advice on the prescribing of pyridostigmine conference of the Catholic Church in the Democratic bromide to National Health Service patients. Pyridostigmine Republic of Congo to increase the number of bromide is licensed, in the community, for the treatment international observers monitoring the forthcoming of myasthenia gravis, paralytic ileus and post-operative elections in the Democratic Republic of Congo, to urinary retention, and, as for all licensed medicines, its disarm and neutralise armed groups threatening to safety in clinical use is monitored by the Medicines destabilise the elections and initiate dialogue with and Healthcare products Regulatory Agency (a process Rwanda and Uganda to seek their assistance in known as pharmacovigilance). WA 71 Written Answers[19 OCTOBER 2011] Written Answers WA 72

Embryology Earl Howe: The Human Fertilisation and Embryology Authority has advised that “IVF-based technique” is Questions not terminology used by the authority in exercise of Asked by Lord Alton of Liverpool its licensing powers. Asked by Lord Alton of Liverpool To ask Her Majesty’s Government what breaches there have been of Human Fertilisation and To ask Her Majesty’s Government, further to Embryology Authority (HFEA) regulations concerning the Written Answers by Earl Howe on 3 October the number of children who may be fathered by one (WA 106), whether the Human Fertilisation and man; whether a sperm donor has fathered 17 families; Embryology Authority now considers research licences and what measures are being taken by the HFEA to R0152 and R0153 to be the same licence; and, if so, ensure that the law is upheld. [HL12316] why they are still listed separately on the authority’s website. [HL12370] The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): The Human Fertilisation and Earl Howe: The Human Fertilisation and Embryology Embryology Authority (HFEA) has advised that the Authority (HFEA) has advised that research licence answers to the noble Lord’s questions are contained in R0153 expired on the 31 August 2011. Research licence the authority’s paper Family Limit: Implementation, R0152 continues to be active and now encompasses presented on 14 September 2011, which is published R0153’s activities. on the HFEA’s website at: www.hfea.gov.uk/docs/ Authority_papers_for_publication_without_ The HFEA has also advised that the pages referred research_report.pdf. to by the noble Lord are expected to be refreshed in the near future. The minutes of the meeting will be considered for approval at the authority’s next meeting on the 19 December 2011 and then published on the website. Employment: Agency Workers Asked by Lord Alton of Liverpool Question To ask Her Majesty’s Government, further to Asked by Lord Laird the Written Answer by Earl Howe on 3 October (WA 105), whether the Human Fertilisation and To ask Her Majesty’s Government, further to Embryology Authority can confirm that research the Written Answers by Lord Wallace of Saltaire licence R0122 did not involve any human embryos. on 3 October (WA106), what are the various qualifying [HL12317] periods they understand are proposed or in effect in other European Union countries under Article 5(4) of the European Union agency workers directive Earl Howe: The Human Fertilisation and Embryology before which equal treatment does not apply on an Authority has confirmed that research licence R0122 assignment. [HL12194] permitted the use of human embryos for research purposes. The Parliamentary Under-Secretary of State, Department Asked by Lord Alton of Liverpool for Business, Innovation and Skills (Baroness Wilcox): The Government understand that day 1 rights apply in To ask Her Majesty’s Government, further to the majority of member states. However the Netherlands the Written Answer by Earl Howe on 3 October has a qualification period of 26 weeks for workers that (WA 105), whether the Human Fertilisation and are subject to certain collective agreements and Ireland Embryology Authority would always notify patients has yet to transpose the directive. of the possibility that their eggs or embryos had been used in research without their consent if there was good reason to believe that this might have Employment: Work Programme been the case; and, if not, how might patients discover this for themselves. [HL12318] Question Asked by Lord Christopher Earl Howe: The Human Fertilisation and Embryology Authority has advised that were it to be made aware of To ask Her Majesty’s Government what data human embryos being used for research purposes they require from private sector providers to the without the gamete providers’ consent, it would take Work Programme for the purpose of establishing steps to ensure that the gamete providers were informed (a) the nature and incidence of problems encountered, of this. and (b) successful and unsuccessful approaches to these problems. [HL12409] Asked by Lord Alton of Liverpool To ask Her Majesty’s Government, further to The Parliamentary Under-Secretary of State, Department the Written Answers by Earl Howe on 3 October for Work and Pensions (Lord Freud): The performance (WA 106), in what ways the Human Fertilisation of all Work Programme providers, including those and Embryology Authority considers somatic cell from the private sector, is monitored through formal nuclear transfer to be an IVF-based technique. performancemanagementinformation(MI)andperformance [HL12369] information is reported to Ministers and performance WA 73 Written Answers[LORDS] Written Answers WA 74 managers and also used to evaluate the effectiveness of has introduced a new requirement, the CPA1 qualification. the programme. This information identifies whether This will assess the competency of engineers in the providers are achieving their contractual job outcomes analysis of combustion performance, including the and enables improvement action to be taken. use of an electronic combustion gas analyser. From In addition, a range of issues such as performance April 2012, possession of the CPA1 qualification will levels, attachment of participants, minimum service be mandatory for all engineers before they can register standards and complaints and other feedback to support as competent to install central heating systems and gas effective delivery of provision are discussed at monthly fires. contract performance reviews. issues are generally resolved at a local level as we have strong relationships between providers, Energy: Wind Turbines Jobcentre Plus and DWP performance managers; Question and Asked by Lord Greaves approaches to resolve these issues are as follows: To ask Her Majesty’s Government how many Robust protection for subcontractors has been accidents have been associated with the construction established through the Merlin Standard which all and operation of wind turbines in the United Kingdom Work Programme providers must attain (and maintain). in each of the past 10 years; how many of these The Merlin Standard aims to encourage excellent supply were fatal; how many related to terrestrial wind chain management and fair treatment of sub-contractors farms and how many to maritime wind farms; and by prime providers. Primes are required to be Merlin- in each case how many were to persons employed accredited within 12 months, and to maintain accreditation or otherwise involved in the wind power industry through biannual reassessment with penalties for non and how many were to other persons. [HL12230] compliance. The intention is for the Merlin process to be transparent with assessment reports published on the Merlin web portal. The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud): HSE does not record data in the form requested for wind farm accidents. Energy: Efficiency However, we can confirm from records of HSE Question investigations that there have been four fatal accidents since 2001 within the wind energy sector (two in Asked by Baroness Randerson 2007-08, one in 2009-10 and one in 2010-11). To ask Her Majesty’s Government what is the All four fatalities were on shore and involved people total Barnett consequential for Wales of the funding at work (ie employees and self-employed working at allocated for the enterprise zones already announced wind farms). for England. [HL12260]

The Parliamentary Under-Secretary of State, Department Finance: Credit Easing for Communities and Local Government (Baroness Hanham): Questions At Budget 2011 the WelshAssembly Government received Asked by Lord Myners Barnett consequentials of £6 million over the spending review period as a result of increased provision in To ask Her Majesty’s Government whether England on enterprise zones. proposals to introduce credit easing will require state aid clearance from the European Union. [HL12222] Energy: Gas Safety To ask Her Majesty’s Government what are the Question criteria they will use to identify businesses they will support through credit easing, and where responsibility Asked by Lord Hunt of Kings Heath will rest for assessing, pricing and managing commercial To ask Her Majesty’s Government how they will risks. [HL12223] ensure that gas engineers on the gas safety register To ask Her Majesty’s Government whether credit use flue gas analysers. [HL12210] easing will have to be conducted on commercial terms if it is to comply with European Union The Parliamentary Under-Secretary of State, restrictions on state aid; and, if this is the case, why Department for Work and Pensions (Lord Freud): The the funding needs of small and medium-sized enterprise Gas Safety (Installation and Use) Regulations 1998, are not already being met by the commercial banking Regulation 26(9), include a requirement that gas engineers and financial sectors. [HL12326] comply with manufacturers’ instructions. This will include carrying out a combustion gas analysis using a The Commercial Secretary to the Treasury (Lord flue gas analyser if specified by the manufacturer. Sassoon): HM Treasury is currently considering a Following an industry initiative, aimed at improving range of options for credit easing, as announced by the testing of combustion performance during the the Chancellor of the Exchequer on 3 October 2011 commissioning of appliances, the Gas Safe Register The Chancellor will provide more details regarding (the statutory registration scheme for gas engineers) credit easing at the autumn statement on 29 November. WA 75 Written Answers[19 OCTOBER 2011] Written Answers WA 76

Finance: Exchange Traded Funds Earl Howe: Vaccination is a medical treatment using a medicinal product, while drinking fluoridated water Questions is not a medical treatment involving a medicinal product. Asked by Lord Myners To ask Her Majesty’s Government whether they Fuel Prices have investigated the management of gold bullion exchange traded funds, and in particular whether Question such funds are managed in a way that ensures Asked by Lord Bradshaw redemptions can be met in a timely and proper To ask Her Majesty’s Government how much manner without risk to the stability of the financial extra revenue they have estimated they will receive system. [HL12185] each year from fuel duty raised by the extra fuel To ask Her Majesty’s Government whether they consumed through raising the motorway speed limit plan to take action to establish governance requirements from 70 miles per hour to 80 miles per hour. for exchange traded funds to address the risks for [HL12191] investors of abuse of conflicts of interests.[HL12325] To ask Her Majesty’s Government whether they The Commercial Secretary to the Treasury (Lord intend to examine if banks are using exchange Sassoon): Forecasts of fuel duty revenue are published traded funds under their management as a funding by the Office for Budget Responsibility (OBR). The mechanism by pledging collateral that is not subject forecasts take into account a range of factors, including to independent scrutiny. [HL12363] economic conditions, pump prices and the efficiency of vehicles, as well as the impact of policies. The Commercial Secretary to the Treasury (Lord Should the policy to increase motorway speed limits Sassoon): The Government are aware of the recent be confirmed following public consultation, the OBR developments in the exchange traded funds industry. would take a view as to whether and how the impact We are working closely with the Financial Services should be reflected in fuel duty forecasts. Authority and Bank of England to analyse the risks associated with these products and consider what Gaza regulatory responses may be necessary. Question Asked by Lord Warner Fluoridation To ask Her Majesty’s Government what proportion Questions of the aid they have committed to help rebuild Asked by Earl Baldwin of Bewdley homes and public buildings in Gaza, including schools and hospitals, which have been damaged or To ask Her Majesty’s Government, further to the destroyed by Israeli military forces, cannot be used Written Answers by Earl Howe on 19 July (WA 266) because of the restrictions on the importation of and 14 September (WA 64), whether they now intend building materials to Gaza imposed by Israel’s to commission an organisation without significant blockade. [HL11585] links to the dental profession to prepare and publish periodic systematic reviews updating the worldwide Baroness Verma: DfID does not provide aid directly evidence on water fluoridation following the York for reconstruction in Gaza. We do, however, provide review in 2000, rather than to monitor and evaluate funding to the UN Relief and Works Agency (UNRWA) specific effects of fluoridation or conduct government- including for the reconstruction of homes and public commissioned research projects. [HL12348] buildings. We are therefore concerned that only 28 per cent of UNRWA’s programme of work for Gaza has The Parliamentary Under-Secretary of State, been approved by Israel and that difficulties in securing Department of Health (Earl Howe): We are aware that materials for reconstruction projects continues to delay the Australian Government’s National Health and progress. Medical Research Council published a further systematic review in 2007. The department constantly reviews what work it will commission. The department’s National Gulf War Illnesses Institute for Health Research welcomes funding Question applications for research into any aspect of human Asked by Lord Morris of Manchester health, including water fluoridation. These applications are subject to peer review and judged in open competition, To ask Her Majesty’s Government what with awards being made on the basis of the scientific representations the Secretary of State for Defence quality of the proposals made. has received from Mr Shaun Rusling, of the National Gulf Veterans and Families Association, on the Asked by Earl Baldwin of Bewdley illnesses of veterans of the 1991 Gulf War; and To ask Her Majesty’s Government why vaccination, what reply has been sent. [HL12165] which confers a degree of immunity on adults other than those vaccinated, requires individual informed The Parliamentary Under-Secretary of State, Ministry consent, whereas fluoridation, which confers no of Defence (Lord Astor of Hever): It would not be such benefit beyond the individual, does not. appropriate to disclose the nature of correspondence [HL12351] without the permission of the individual to do so. WA 77 Written Answers[LORDS] Written Answers WA 78

Housing The contract monitor will consider whether an allegation is such that it is appropriate to suspend the Question accreditation of any officers involved in that incident. Asked by Lord Christopher The management of the escorting service will also commission an internal investigation. To ask Her Majesty’s Government whether they Any investigation substantiated by the UK Border intend to bring forward a Bill once the consultations Agency will lead to some form of disciplinary action. on the national planning framework are concluded; This could ultimately include the revocation of an and, if not, what means of implementation will be individual’s accreditation to work for the agency. The used. [HL12410] individual may also face criminal charges if the police decide that an offence has been committed. The Parliamentary Under-Secretary of State, Where detainees are not satisfied with the outcome Department for Communities and Local Government of their complaints, they may refer the matter to the (Baroness Hanham): The draft national planning policy Prisons and Probation Ombudsman and are told at framework brings together in a single concise document the time how to do so. a broad range of national planning policy currently set out in planning policy guidance and statements. The framework sets out national planning policy and, Immigration: Rayat London College in line with previous procedures for issuing new or Question amended national planning guidance, does not require legislation to implement it. Given the importance of Asked by Lord Laird national planning policy, the Government have secured time to debate the content of the draft framework in To ask Her Majesty’s Government whether Rayat both Houses. London College remains a UK Border Agency highly trusted sponsor; and which education oversight body last inspected, audited and approved the college, and when. [HL12302] Immigration: Deportation Questions The Minister of State, Home Office (Lord Henley): Rayat London College does not hold highly trusted Asked by Lord Hunt of Kings Heath sponsor (HTS) status. The college’s website shows To ask Her Majesty’s Government what action that it is accredited by the British Accreditation Council they are taking to ensure that UK Border Agency (BAC). The inspection regime is the responsibility of staff travelling to Kenya accompanying deportees BAC. do not inflict pain on them, including through using different forms of lock restraints. [HL12228] Insurance: Fraud To ask Her Majesty’s Government what disciplinary action they have taken against any UK Border Question Agency staff who have inflicted inappropriate levels Asked by Lord Sheikh of pain on deportees on journeys from the United Kingdom to Kenya. [HL12229] To ask Her Majesty’s Government what reports they have received about the estimated costs to insurers of false claims. [HL12186] The Minister of State, Home Office (Lord Henley): The UK Border Agency expects the highest standards from its staff and contractors and will take appropriate The Commercial Secretary to the Treasury (Lord robust action against those who fail to adhere to them. Sassoon): The National Fraud Authority estimates that insurance fraud costs £2.1 billion every year. The UK Border Agency has a team of eight contract monitors who monitor and report on the performance The Association of British Insurers has said that of the escorting service provider. Members of the 133,000 false general insurance claims were detected Independent Monitoring Board regularly report to in 2010, worth £919 million. They estimate that, overall, the contract monitors and the chief inspector of prisons general insurance claims fraud adds £44 to the premiums also carries out announced and unannounced inspections. paid by the average policyholder. The UK Border Agency operates a comprehensive The Government continue to work with the insurance complaints system as part of its monitoring arrangements. industry to tackle fraud. The industry has agreed to All detainees are told how to complain on arrival at a fund a specialist insurance fraud police unit which will removal centre and upon escort, and forms are widely focus on enforcement and prevention strategies to available in a range of different languages. Complaints tackle current fraud issues. about the use of force are referred to the UK Border The Government are also working with the industry Agency’s Professional Standards Unit for investigation with a view to allowing them access to the driver and are also referred automatically to the police for details held by the Driver and Vehicle Licensing Agency. their own parallel investigation. The Professional This will help prevent fraud by allowing insurers to Standards Unit uses a team of dedicated investigators check the motoring convictions (disqualifications/penalty who are all professionally trained to police standards. points) provided by those applying for motor insurance. WA 79 Written Answers[19 OCTOBER 2011] Written Answers WA 80

Justice: Criminal Records The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford): The Government Question are a long-standing supporter of Kosovo’s continued Asked by Baroness Randerson integration into the international community, including through membership of international organisations. To ask Her Majesty’s Government whether they In the context of the Council of Europe, an application intend to implement any further recommendations for observer status must be sent to the Secretary-General from Sunita Mason’s report A Balanced Approach— by the Government of Kosovo. The Kosovo Government Safeguarding the Public through the Fair and have yet to make such a request. The Government will Proportionate Use of Accurate Criminal Record continue to support the Kosovo Government as they Information. [HL12264] seek to guarantee the fundamental values of the Council of Europe: human rights, democracy and the rule of The Minister of State, Home Office (Lord Henley): law. Work is continuing on the implementation of a number of the recommendations from A Balanced Approach. Mahmoud Abu Rideh The recommended arrangements for auditing non- Question police organisations’ use of the police national computer are under development. Asked by Lord Laird Work is under way to consider the merits and To ask Her Majesty’s Government, further to practicalities of filtering out old and minor records the Written Answer by Lord Freud on 3 October from Criminal Records Bureau disclosures. Mrs Mason (WA 178–79), whether they will instruct a civil chairs a panel of experts which provides advice on this servant in the course of his official duty to release issue. publicly details of the social security benefits paid The Government are continuing to reconsider the to the late Mahmoud Abu Rideh. [HL12304] Rehabilitation of Offenders Act as part of its broader review of sentencing. The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud): While Provision for guidance on the disclosure of soft for the purposes of Section 123 of the Social Security intelligence to employers is contained in the Protection Administration Act 1992 a disclosure made by a civil of Freedoms Bill, as is provision for bringing functions servant in the course of his official duties is made with of the Criminal Records Bureau and the Independent “lawful authority”, the department’s policy on the Safeguarding Authority together to form the Disclosure disclosure of personal data is as described in my and Barring Service. previous answer. I do not intend to instruct officials to Guidance for employers and individuals on the make a disclosure which is contrary to this policy. disclosure process and the broader handling of criminal records continues to be developed and improved. Marriage: Same-sex Civil Marriage Question Justice: Sentencing Asked by Lord Janner of Braunstone Question To ask Her Majesty’s Government whether they Asked by Lord Laird have plans to legislate for gay marriage; and, if so, To ask Her Majesty’s Government whether they when. [HL12279] will publish the verdicts and details of those convicted of crimes in the United Kingdom on a regular Baroness Verma: On 17 September the Government basis. [HL12198] announced their intention to publish a formal consultation on equal civil marriage in March 2012. This would allow us to make any legislative changes before the end The Minister of State, Ministry of Justice (Lord of this Parliament. McNally): Sentencing outcomes are a matter of public record and local criminal justice partners are able to publicise outcomes in cases of public interest, subject Middle East Peace Process to legal considerations and reporting restrictions. Revised Question guidance on publicising sentencing outcomes was Asked by Lord Janner of Braunstone published to this effect in June. The Ministry of Justice publishes routinely statistical information on the operation To ask Her Majesty’s Government what is their of the courts, including sentencing practices. current assessment of the progress of the Middle East peace process. [HL12280]

Kosovo The Minister of State, Foreign and Commonwealth Question Office (Lord Howell of Guildford): We continue to believe that the best way to achieve a lasting solution is Asked by Lord Hylton through negotiations. Our focus is on doing all we can To ask Her Majesty’s Government whether they to achieve this—putting pressure on both sides. intend to propose that Kosovo be given observer We welcome the statement issued by the quartet on status at the Council of Europe and be represented 23 September. Getting the parties back to genuine in the Council’s Parliamentary Assembly.[HL12243] negotiations is our primary objective. The statement WA 81 Written Answers[LORDS] Written Answers WA 82 refers to the parameters set out by President Obama in competition issues in the mobile sector, Ofcom is May, with which we agree. It also sets a clear timetable planning to consult again based on a revised analysis for talks. Both parties stated their willingness to talk with, as before, a range of options dealing with auction in their speeches to the UN General Assembly—we design and competition. The consultation will be issued are urging both parties to respond positively to the towards the end of this year with the auction expected quartet’s invitation. to take place in the last quarter of 2012. It is important Palestinian President Abbas has lodged an application to note that the bands would not be available for new for full Palestinian membership of the UN. We do not use until 2013 in any case as they are still being cleared anticipate an imminent vote in the UN Security Council of existing users so this delay is unlikely to have an on this request. Whether the membership committee impact on the availability of new services to the consumer. returns the issue to the Security Council, or whether President Abbas decides to turn to the General Assembly, the UK will use its vote in a way that increases the NHS: Quality Standards likelihood of a return to meaningful negotiations. Question Asked by Lord Evans of Watford Migrant Workers: Bulgarians and Romanians To ask Her Majesty’s Government why the development of quality standards and patient care Question are being delayed; and what assessment they have Asked by Lord Laird made of the impact of the delay on the quality of care the National Health Service can provide. To ask Her Majesty’s Government, further to [HL12338] the Written Answer by Lord Freud on 20 June (WA 254–55) and by Baroness Browning on 14 July (WA 211), what is the explanation for the difference The Parliamentary Under-Secretary of State, Department between the 135,740 national insurance numbers of Health (Earl Howe): We are not aware of any such issued to Bulgarian and Romanian adult nationals delay. Providers of healthcare are required to register entering the United Kingdom since 1 January 2007 with the Care Quality Commission and to comply with and the 240,840 work permits of various types 16 registration requirements that set essential levels of issued to such nationals in that time. [HL12195] safety and quality.Authoritative guidance is also available on many important aspects of health care quality in the form of guidance from the National Institute for The Minister of State, Home Office (Lord Henley): Health and Clinical Excellence (NICE). We would in general expect the number of national NICE has already published 12 quality standards insurance numbers issued to be less than the number and a further 34 topics have been referred to it for of work permits issued. An individual worker will be development. The Health and Social Care Bill creates issued with only one national insurance number, but a role for the re-established NICE to develop quality some EU2 nationals will receive more than one work standards that will contribute towards improved outcomes permit, as they are required to hold a new work permit for patients. The intention remains to develop a in respect of each job they undertake. Some other comprehensive library of quality standards, prepared EU2 workers will receive a work permit but not, in the by NICE, to support improvements in key areas of end, take up employment in this country. care. The difference in volumes of work permits and national insurance numbers issued is increased in this instance because the data compared are drawn from different time periods: January 2007 to December Pensions 2010 for the national insurance numbers; January Question 2007 to 30 June 2011 for the work permits. Asked by Lord Myners Mobile Communications To ask Her Majesty’s Government whether they have revised their estimates for the number of eligible Question workers who will exercise their right to opt out of personal pension accounts in the light of the increase Asked by Lord Myners in the rate of termination of existing pension plans. To ask Her Majesty’s Government whether they [HL12323] will bring forward the auction of the fourth generation long-term evolution mobile spectrum, and take action The Parliamentary Under-Secretary of State, Department to promote competition in the auction. [HL12055] for Work and Pensions (Lord Freud): The department estimates that between 2 million to 4 million workers Baroness Rawlings: The design and timing of the eligible for automatic enrolment will exercise their auction is a matter for Ofcom, following a direction right to opt out of pension saving. This estimate was from the Government in December 2010. In the light last updated in January 2011 in response to a nationally of the detailed responses to an earlier consultation representative survey commissioned by the department dealing with the design of the combined auction and in 2009, to measure the intended response to the reforms WA 83 Written Answers[19 OCTOBER 2011] Written Answers WA 84 of individuals eligible for automatic-enrolment. The Public Bodies Bill results from the survey on expected opt-out are presented below: Questions Asked by Lord Hunt of Kings Heath Participation Proportion (%) To ask Her Majesty’s Government what were the Definitely stay in 31 circumstances in which consultation responses on Probably stay in 34 the Public Bodies Bill were lost by the Ministry of Probably choose to opt out 12 Justice. [HL12226] Definitely choose to opt out 9 It depends 15 To ask Her Majesty’s Government whether the consultation on the Public Bodies Bill has been extended as a result of the loss of consultation Police: Operational Policing responses. [HL12227] Question Asked by Lord Hunt of Kings Heath The Minister of State, Ministry of Justice (Lord McNally): Ministry of Justice officials became aware To ask Her Majesty’s Government what decisions in mid-September of a technical fault with the inbox were taken by Ministers in relation to operational that was set up to receive e-mailed responses to the policing during the recent riots. [HL11640] consultation on reforms proposed in the Public Bodies Bill. The fault meant that some e-mails may not have The Minister of State, Home Office (Lord Henley): been received before 20 September, when the fault was The Home Secretary set out her clear expectations to fixed. E-mail was not the only available method of chief officers on the police response to the disorder, submitting responses to the consultation and the fault and offered her support to ensure that they had the did not affect the receipt of hard copy responses or the necessary resources and powers to deal with the disorder. use of the questionnaire that could be completed on Operational policing decisions were taken by the chief the Ministry of Justice website. officers of police. The consultation closed on 11 October and has not been extended. A message was sent to some 7,000 stakeholders on 23 September advising them of Population the fault and requesting that any responses submitted Question via e-mail were re-sent. A similar message was placed on the consultation page on the Ministry of Justice Asked by Lord Laird website. The department has received approximately 2,750 To ask Her Majesty’s Government what they responses to its consultation and these will inform estimate the population of the United Kingdom Ministers’ final decisions in respect of those bodies will be in 2050. [HL12455] that are subject to the Public Bodies Bill. The department intends to publish its response to the consultation by Lord Wallace of Saltaire: The information requested the end of this year. falls within the responsibility of the UK Statistics Details of the consultation can be found on the Authority. I have asked the authority to reply. Ministry of Justice website at: http://www.justice.gov.uk/ Letter from Stephen Penneck, Director General for consultations/reform-public-bodies.htm. ONS, to Lord Laird, dated October 2011. Asked by The Earl of Listowel As Director General for the Office for National Statistics, I have been asked to reply to your question To ask Her Majesty’s Government whether they to Her Majesty’s Government regarding estimation of will publish in full the responses they have received the population of the United Kingdom for 2050. to their consultation on the Public Bodies Bill regarding the Youth Justice Board immediately after the The most recent national population projections, consultation closes, and in time for the Report stage based on the resident population in mid-2008, were on that Bill in the House of Commons. [HL12274] published by the Office for National Statistics on 21 October 2009 The projected total population for To ask Her Majesty’s Government what are the the UK in 2050 is 76.8 million people. names of those who responded to their consultation on the Public Bodies Bill regarding the YouthJustice The next set of national population projections, Board. [HL12275] based on the mid-2010 population estimates, are due for publication by the Office for National Statistics on To ask Her Majesty’s Government how many 26 October 2011. (a) individual members of the public, (b) charities, The assumptions underlying national population (c) public bodies, and (d) other bodies, responded projections are demographic trend-based. They are to their consultation on the Public Bodies Bill regarding not forecasts and do not attempt to predict the impact the Youth Justice Board. [HL12276] that factors such as future government policies or To ask Her Majesty’s Government how many changing economic circumstances might have on the responses to their consultation on the Public Bodies population. The projections also become increasingly Bill were (a) in favour of, and (b) against, the uncertain the further they are carried forward in time abolition of the Youth Justice Board. [HL12277] WA 85 Written Answers[LORDS] Written Answers WA 86

Lord McNally: The Ministry of Justice consultation The UK Border Agency can identify that since on reforms proposed in the Public Bodies Bill closed 5 May 2010 1,175 individuals have been returned to on 11 October. Approximately 2,750 responses were Sri Lanka. received in total. Seventy responses have been received There is no evidence that those previously removed concerning the Youth Justice Board. to Sri Lanka have been mistreated by the Sri Lankan The department intends to publish its response to authorities. the consultation by the end of this year. As required The UK Border Agency does not routinely monitor by the Government’s Code of Practice on Consultation, the treatment of individual failed asylum seekers who the consultation response will provide a summary of return to their home country. We believe that the best who responded to the consultation exercise, the number way to avoid ill-treatment is to make sure that we do of responses that were in favour of against the not return those who are at risk. We do this by Government’s proposals, and a summary of the views ensuring that trained caseworkers make the right decisions expressed in response to each question. based on the circumstances of each individual case, In addition, clause 11 of the Public Bodies Bill and by providing a right of appeal to the independent requires a summary of representations received in the courts. consultation to be contained within the explanatory document that must accompany each Order laid by Ministers when using the powers provided by the Bill. State Recognition Details of the consultation can be found on the Question Ministry of Justice website at: http://www.justice.gov.uk/ Asked by Lord Laird consultations/reform-public-bodies.htm. To ask Her Majesty’s Government, further to the Written Answer by Lord Howell of Guildford on 3 October (WA 190) concerning the recognition Public Toilets of a country, how they define a “clearly defined Question territory with a population”. [HL12238] Asked by Baroness Randerson The Minister of State, Foreign and Commonwealth To ask Her Majesty’s Government how they will Office (Lord Howell of Guildford): This is a question improve the availability and standard of public of fact that will be determined after considering all the circumstances in each case. toilets. [HL12218]

The Parliamentary Under-Secretary of State, Sudan Department for Communities and Local Government Question (Baroness Hanham): The Government believe that Asked by Baroness Kinnock of Holyhead decentralisation is the way to ensure that public services and amenities better reflect local needs. Public toilets To ask Her Majesty’s Government whether any are provided by a range of organisations including pressure is being put by the United Kingdom on the local councils, transport operators and the private negotiating teams from Sudan and South Sudan to sector. In addition, many local authorities are taking agree a transparent and independently verified new positive steps to enhance public access to toilets in oil export arrangement. [HL12298] their area through approaches like community toilet schemes, where local shops and businesses receive a The Minister of State, Foreign and Commonwealth small fee for allowing free access to their toilets. Office (Lord Howell of Guildford): We continue to urge both Sudan and South Sudan to come to an agreement on oil, and regularly stress the need for Sri Lanka accountability, inclusivity and transparency in our contacts with both Governments. Question We welcome the meeting between President Bashir Asked by Lord Kennedy of Southwark and President Kiir in Khartoum on 8 and 9 October, and urge them to continue to work together on this To ask Her Majesty’s Government how many and other issues, drawing where needed on the mediation Tamils they have returned from the United Kingdom work of President Mbeki and the African Union High to Sri Lanka since 5 May 2010; and what assurances Level Implementation Panel on Sudan in negotiating as to their safety have been received from the Sri a settlement. Lankan authorities. [HL12256] Syria The Minister of State, Home Office (Lord Henley): Questions The UK Border Agency does not record specific data regarding an individual’s ethnicity. Asked by Lord Janner of Braunstone The information can only be provided at To ask Her Majesty’s Government what is their disproportionate cost as it would require a manual assessment of the crackdowns on dissidents in search of individual case files. Syria. [HL12281] WA 87 Written Answers[19 OCTOBER 2011] Written Answers WA 88

The Minister of State, Foreign and Commonwealth The Minister of State, Home Office (Lord Henley): Office (Lord Howell of Guildford): The Foreign and The number of confirmation of acceptance for studies Commonwealth Office follows closely developments (CAS) assigned and used by privately and publicly in the situation in Syria. We are deeply concerned at funded institutions in 2010 is as follows: the continuing violent repression of civilians by the Syrian regime. The United Nation’s latest estimate is Institutions Assigned Used that more than 2,900 people have been killed in Syria Privately funded 200,230 173,795 since March 2011. The UK is at the forefront of Public funded 241,245 196,070 international action to put pressure on President Assad and his regime to immediately end the violence, release Not stated 3,720 3,065 all prisoners of conscience and allow free, unhindered Total 445,190 372,925 and immediate access to the UN for an independent An application for a tier 4 licence asks for the assessment of the situation on the ground. number of CAS required by the sponsor for a 12 month Asked by Lord Janner of Braunstone period. The total number of CAS applied for by all tier 4 sponsors in 2010 is not centrally held and could To ask Her Majesty’s Government whether they only be obtained at disproportionate cost. plan to take further measures against the Government To note: of Syria. [HL12282] figures are rounded to the nearest five; the rounding of figures may not add up to the totals shown; Lord Howell of Guildford: The UK has been very this information is based on how sponsors clarify themselves active in increasing international pressure on President when submitting an application to become a sponsor; and Assad and his regime to stop its violent repression of not stated means that the sponsor has not indicated that they civilians. This has included EU sanctions including an are publicly or privately funded. oil embargo. We continue to work with EU partners to Asked by Lord Laird consider what further sanctions are appropriate. We To ask Her Majesty’s Government, further to seek to avoid as far as possible any negative impact on the Written Answers by Baroness Browning on the civilian population. We will continue to use these 6July(WA 86) and 20 July (WA 355–6), whether, principles to guide our assessment on further EU for the purposes of Appendix A Section 75 of the sanctions. Immigration Rules for tier 2 (Intra company transfer) visas, the UK Border Agency (UKBA) use the same legal definition of business expenses as HM Taxation Revenue and Customs (HMRC); and whether the Question UKBA counts as business expenses payments which a sponsor states are to cover the cost of living in the Asked by Lord Kennedy of Southwark United Kingdom but which the sponsor also informs To ask Her Majesty’s Government what proportion HMRC are for the purpose of reimbursing business of respondents to their recent consultation on HM expenses incurred by employees in performing their Revenue and Customs real-time information PAYE duties. [HL12419] considered that the proposed timetable for being Lord Henley: The UK Border Agency does not use ready for universal credit was realistic. [HL12200] the same definition of business expenses as HM Revenue and Customs (HMRC). The agency assesses salary The Commercial Secretary to the Treasury (Lord packages in order to compare a migrant worker’s pay Sassoon): HM Revenue and Customs’ consultation on with what would be paid to a resident worker doing real-time information (RTI) ran between December the same job. For this purpose, the agency considers 2010 and February 2011 and received 187 formal payments to cover the cost of living in the UK to be responses. remuneration and not business expenses, irrespective Of those who expressed a view on the original of whether they are treated as business expenses by timetable for the introduction of RTI, as set out in HMRC. that consultation, 25 per cent thought it was achievable. Asked by Lord Laird In response to that consultation, HMRC announced a new timetable in May 2011. To ask Her Majesty’s Government how many immigrants from other European Union (EU) countries, who were nationals of non-EU countries Visas and had been granted passports or other visas and Questions travel documents by those countries, came to the United Kingdom in each of the last five years; what Asked by Lord Laird are the United Kingdom entry requirements for third country nationals resident in other EU countries; To ask Her Majesty’s Government how many and what estimate they have made of the number of confirmations of acceptance for studies for foreign Dutch Somalis entering the United Kingdom for students under tier 4 of the points-based system residence purposes. [HL12421] were filed with the UK Border Agency in 2010 by (a) privately funded institutions, and (b) publicly Lord Henley: The UK Border Agency can not funded institutions; and how many of each were provide statistics on the number of immigrants from accepted. [HL12303] other EU countries who were nationals of non-EU WA 89 Written Answers[LORDS] Written Answers WA 90 countries and had been granted passports or other Permanent residence can be acquired after five visas and travel documents by those countries and years of residence in a qualified capacity. who have since come to the United Kingdom in each Third country nationals resident in other EU countries of the past five years. who are not EEA nationals are subject in the same way as all other third country nationals to the Immigration Directive 2004/38, known as the free movement Rules unless they are able to acquire a right to enter or directive, establishes a right of entry and residence in reside in the United Kingdom under the directive as the United Kingdom for EEA nationals. An initial the family member of an EEA national. right of residence of up to three months can be The UK Border Agency cannot estimate the number extended if the EEA national is, or becomes, a qualified of Dutch Somalis entering the United Kingdom for person under the directive as implemented by the residence purposes. However, Dutch nationals clearly United Kingdom by the Immigration (European enjoy the same free movement rights as all other Economic Area) Regulations 2006. European nationals. Wednesday 19 October 2011

ALPHABETICAL INDEX TO WRITTEN STATEMENTS

Col. No. Col. No. Energy: Fuel Poverty ...... 19 Government: Resignations...... 20

Environment: Judicial Review Cases...... 19 Planning ...... 21

Wednesday 19 October 2011

ALPHABETICAL INDEX TO WRITTEN ANSWERS

Col. No. Col. No. Apprenticeships ...... 67 Insurance: Fraud ...... 78

Armed Forces: Under-18s...... 67 Justice: Criminal Records ...... 79

Colombia...... 68 Justice: Sentencing...... 79

Compensation ...... 69 Kosovo ...... 79

Democratic Republic of Congo ...... 69 Mahmoud Abu Rideh ...... 80

Drugs: Pyridostigmine Bromide ...... 70 Marriage: Same-sex Civil Marriage ...... 80

Embryology ...... 71 Middle East Peace Process...... 80

Employment: Agency Workers ...... 72 Migrant Workers: Bulgarians and Romanians...... 81

Employment: Work Programme ...... 72 Mobile Communications ...... 81

Energy: Efficiency...... 73 NHS: Quality Standards...... 82

Energy: Gas Safety ...... 73 Pensions...... 82

Energy: Wind Turbines...... 74 Police: Operational Policing...... 83

Finance: Credit Easing ...... 74 Population ...... 83

Finance: Exchange Traded Funds...... 75 Public Bodies Bill...... 84

Fluoridation ...... 75 Public Toilets ...... 85

Fuel Prices ...... 76 Sri Lanka...... 85

Gaza ...... 76 State Recognition...... 86

Gulf War Illnesses ...... 76 Sudan ...... 86

Housing...... 77 Syria ...... 86

Immigration: Deportation ...... 77 Taxation ...... 87

Immigration: Rayat London College ...... 78 Visas ...... 87 NUMERICAL INDEX TO WRITTEN ANSWERS

Col. No. Col. No. [HL11585] ...... 76 [HL12165] ...... 76

[HL11640] ...... 83 [HL12178] ...... 68

[HL12055] ...... 81 [HL12185] ...... 75 Col. No. Col. No. [HL12186] ...... 78 [HL12277] ...... 84

[HL12187] ...... 69 [HL12279] ...... 80

[HL12191] ...... 76 [HL12280] ...... 80

[HL12194] ...... 72 [HL12281] ...... 86

[HL12195] ...... 81 [HL12282] ...... 87

[HL12198] ...... 79 [HL12298] ...... 86

[HL12200] ...... 87 [HL12302] ...... 78

[HL12210] ...... 73 [HL12303] ...... 87

[HL12218] ...... 85 [HL12304] ...... 80

[HL12222] ...... 74 [HL12316] ...... 71

[HL12223] ...... 74 [HL12317] ...... 71

[HL12226] ...... 84 [HL12318] ...... 71 [HL12321] ...... 70 [HL12227] ...... 84 [HL12323] ...... 82 [HL12228] ...... 77 [HL12325] ...... 75 [HL12229] ...... 77 [HL12326] ...... 74 [HL12230] ...... 74 [HL12338] ...... 82 [HL12238] ...... 86 [HL12348] ...... 75 [HL12243] ...... 79 [HL12351] ...... 75 [HL12256] ...... 85 [HL12363] ...... 75 [HL12260] ...... 73 [HL12369] ...... 71 [HL12264] ...... 79 [HL12370] ...... 72 [HL12270] ...... 67 [HL12378] ...... 70

[HL12272] ...... 68 [HL12409] ...... 72

[HL12273] ...... 69 [HL12410] ...... 77

[HL12274] ...... 84 [HL12419] ...... 88

[HL12275] ...... 84 [HL12421] ...... 88

[HL12276] ...... 84 [HL12455] ...... 83 Volume 731 Wednesday No. 207 19 October 2011

CONTENTS

Wednesday 19 October 2011 Questions Health: Obesity ...... 281 Public Services: Security of Provision...... 283 Industrial Tribunals: Fees...... 285 Nursing: Elderly and Vulnerable Patients...... 287 Scrap Metal Dealers (Amendment) Bill [HL] First Reading ...... 290 Medicines Act 1968 (Pharmacy) Order 2011 Motion to Approve ...... 290 Electricity and Gas (Internal Markets) Regulations 2011 Motion to Approve ...... 290 Terrorism Prevention and Investigation Measures Bill Committee (1st Day) ...... 290 Northern Ireland: Economy Question for Short Debate ...... 351 Written Statements ...... WS 19 Written Answers...... WA 6 7