Vol. 802 Monday No. 28 24 February 2020

PARLIAMENTARYDEBATES (HANSARD) HOUSE OF LORDS OFFICIAL REPORT

ORDEROFBUSINESS

Grand Committee Trade: Standards Question for Short Debate Post Office: Horizon Accounting System Question for Short Debate India: Citizenship (Amendment) Act 2019 Question for Short Debate Gypsy, Roma and Traveller Communities: Inequalities Question for Short Debate Lords wishing to be supplied with these Daily Reports should give notice to this effect to the Printed Paper Office. No proofs of Daily Reports are provided. Corrections for the bound volume which Lords wish to suggest to the report of their speeches should be clearly indicated in a copy of the Daily Report, which, with the column numbers concerned shown on the front cover, should be sent to the Editor of Debates, House of Lords, within 14 days of the date of the Daily Report. This issue of the Official Report is also available on the Internet at https://hansard.parliament.uk/lords/2020-02-24

The first time a Member speaks to a new piece of parliamentary business, the following abbreviations are used to show their party affiliation: Abbreviation Party/Group CB Cross Bench Con Conservative DUP Democratic Unionist Party GP Green Party Ind Lab Independent Labour Ind LD Independent Liberal Democrat Ind SD Independent Social Democrat Ind UU Independent Ulster Unionist Lab Labour Lab Co-op Labour and Co-operative Party LD Liberal Democrat LD Ind Liberal Democrat Independent Non-afl Non-affiliated PC Plaid Cymru UKIP UK Independence Party UUP Ulster Unionist Party

No party affiliation is given for Members serving the House in a formal capacity, the Lords spiritual, Members on leave of absence or Members who are otherwise disqualified from sitting in the House. © Parliamentary Copyright House of Lords 2020, this publication may be reproduced under the terms of the Open Parliament licence, which is published at www.parliament.uk/site-information/copyright/. HER MAJESTY’S GOVERNMENT

PRINCIPAL OFFICERS OF STATE

THE CABINET

PRIME MINISTER,FIRST LORD OF THE TREASURY,MINISTER FOR THE CIVIL SERVICE AND MINISTER FOR THE UNION— The Rt Hon. , MP CHANCELLOR OF THE EXCHEQUER—The Rt Hon. Rishi Sunak, MP SECRETARYOF STATE FOR FOREIGN AND COMMONWEALTH AFFAIRSAND FIRST SECRETARYOF STATE—The Rt Hon. Dominic Raab, MP SECRETARY OF STATE FOR THE HOME DEPARTMENT—The Rt Hon. Priti Patel, MP CHANCELLOR OF THE DUCHY OF LANCASTER AND MINISTER FOR THE CABINET OFFICE—The Rt Hon. Michael Gove, MP LORD CHANCELLOR AND SECRETARY OF STATE FOR JUSTICE—The Rt Hon. Robert Buckland, QC, MP SECRETARY OF STATE FOR DEFENCE—The Rt Hon. Ben Wallace, MP SECRETARY OF STATE FOR HEALTH AND SOCIAL CARE—The Rt Hon. Matt Hancock, MP SECRETARY OF STATE FOR BUSINESS,ENERGY AND INDUSTRIAL STRATEGY AND MINISTER FOR COP26—The Rt Hon. Alok Sharma, MP SECRETARY OF STATE FOR INTERNATIONAL TRADE AND PRESIDENT OF THE BOARD OF TRADE, AND MINISTER FOR WOMEN AND EQUALITIES—The Rt Hon. Elizabeth Truss, MP SECRETARY OF STATE FOR WORK AND PENSIONS—The Rt Hon. Dr Thérèse Coffey, MP SECRETARY OF STATE FOR EDUCATION—The Rt Hon. , CBE, MP SECRETARY OF STATE FOR ENVIRONMENT,FOOD AND RURAL AFFAIRS—The Rt Hon. George Eustice, MP SECRETARY OF STATE FOR HOUSING,COMMUNITIES AND LOCAL GOVERNMENT—The Rt Hon. , MP SECRETARY OF STATE FOR TRANSPORT—The Rt Hon. Grant Shapps, MP SECRETARY OF STATE FOR NORTHERN IRELAND—The Rt Hon. Brandon Lewis, CBE, MP SECRETARY OF STATE FOR SCOTLAND—The Rt Hon. Alister Jack, MP SECRETARY OF STATE FOR WALES—The Rt Hon. Simon Hart, MP LEADER OF THE HOUSE OF LORDS AND LORD PRIVY SEAL—The Rt Hon. Baroness Evans of Bowes Park SECRETARY OF STATE FOR DIGITAL,CULTURE,MEDIA AND SPORT—The Rt Hon. Oliver Dowden, CBE, MP SECRETARY OF STATE FOR INTERNATIONAL DEVELOPMENT—The Rt Hon. Anne-Marie Trevelyan, MP MINISTER WITHOUT PORTFOLIO—The Rt Hon. , MP ALSO ATTENDS CABINET CHIEF SECRETARY TO THE TREASURY—The Rt Hon. Stephen Barclay, MP LORD PRESIDENT OF THE COUNCIL AND LEADER OF THE HOUSE OF COMMONS—The Rt Hon. Jacob Rees-Mogg, MP PARLIAMENTARY SECRETARY TO THE TREASURY AND CHIEF WHIP—The Rt Hon. Mark Spencer, MP ATTORNEY-GENERAL—The Rt Hon. Suella Braverman, MP

DEPARTMENTS OF STATE AND MINISTERS

Business, Energy and Industrial Strategy— SECRETARY OF STATE AND MINISTER FOR COP26—The Rt Hon. Alok Sharma, MP MINISTER OF STATE—The Rt Hon. Kwasi Kwarteng, MP (Minister for Business, Energy and Clean Growth) PARLIAMENTARY UNDER-SECRETARIES OF STATE— , MP Amanda Solloway, MP Paul Scully, MP (Minister for London) Lord Callanan

Cabinet Office— PRIME MINISTER,FIRST LORD OF THE TREASURY,MINISTER FOR THE CIVIL SERVICE AND MINISTER FOR THE UNION— The Rt Hon. Boris Johnson, MP CHANCELLOR OF THE DUCHY OF LANCASTER AND MINISTER FOR THE CABINET OFFICE—The Rt Hon. Michael Gove, MP MINISTER WITHOUT PORTFOLIO—The Rt Hon. Amanda Milling, MP PAYMASTER GENERAL—The Rt Hon. Penny Mordaunt, MP MINISTERS OF STATE— Chloe Smith, MP Lord Agnew of Oulton § Lord True, CBE PARLIAMENTARY SECRETARIES— Julia Lopez, MP Johnny Mercer, MP (Minister for Defence People and Veterans) § ii

Defence— SECRETARY OF STATE—The Rt Hon. Ben Wallace, MP MINISTERS OF STATE— Jeremy Quin, MP (Minister for Defence Procurement) Baroness Goldie, DL PARLIAMENTARY UNDER-SECRETARIES OF STATE— James Heappey, MP (Minister for the Armed Forces) Johnny Mercer, MP (Minister for Defence People and Veterans) § Digital, Culture, Media and Sport— SECRETARY OF STATE—The Rt Hon. Oliver Dowden, CBE, MP MINISTERS OF STATE— Caroline Dinenage, MP (Minister for Digital and Culture) The Rt Hon. John Whittingdale, MP (Minister for Media and Data) PARLIAMENTARY UNDER-SECRETARIES OF STATE— Matt Warman, MP (Minister for Digital Infrastructure) , MP (Minister for Sport, Tourism and Heritage) § Baroness Barran, MBE (Minister for Civil Society) Education— SECRETARY OF STATE—The Rt Hon. Gavin Williamson, CBE, MP MINISTERS OF STATE— Michelle Donelan, MP The Rt Hon. Nick Gibb, MP (Minister for School Standards) PARLIAMENTARY UNDER-SECRETARIES OF STATE— Gillian Keegan, MP Vicky Ford, MP Baroness Berridge § Environment, Food and Rural Affairs— SECRETARY OF STATE—The Rt Hon. George Eustice, MP MINISTER OF STATE—The Rt Hon. Lord Goldsmith of Richmond Park (Minister for the Pacific and the Environment) § PARLIAMENTARY UNDER-SECRETARIES OF STATE— Rebecca Pow, MP Lord Gardiner of Kimble (Minister for Rural Affairs and Biosecurity) Victoria Prentis, MP Foreign and Commonwealth Office— SECRETARY OF STATE AND FIRST SECRETARY OF STATE—The Rt Hon. Dominic Raab, MP MINISTERS OF STATE— The Rt Hon. James Cleverly, MP (Minister for the and North Africa) § The Rt Hon. Lord Goldsmith of Richmond Park (Minister for the Pacific and the Environment) § Nigel Adams, MP (Minister for Asia) § Lord Ahmad of Wimbledon (Minister for South Asia and the Commonwealth) § PARLIAMENTARY UNDER-SECRETARIES OF STATE— James Duddridge, MP (Minister for Africa) § , MP (Minister for European Neighbourhood and the Americas) § Baroness Sugg, CBE (Minister for the Overseas Territories and Sustainable Development) § Health and Social Care— SECRETARY OF STATE—The Rt Hon. Matt Hancock, MP MINISTERS OF STATE— Edward Argar, MP (Minister for Health) Helen Whately, MP (Minister for Care) PARLIAMENTARY UNDER-SECRETARIES OF STATE— Jo Churchill, MP (Minister for Prevention, Public Health and Primary Care) Nadine Dorries, MP (Minister for Patient Safety, Suicide Prevention and Mental Health) Home Office— SECRETARY OF STATE—The Rt Hon. Priti Patel, MP MINISTERS OF STATE— The Rt Hon. James Brokenshire, MP Kit Malthouse, MP (Minister for Crime, Policing and the Fire Service) § Baroness Williams of Trafford (Minister for Countering Extremism) PARLIAMENTARY UNDER-SECRETARIES OF STATE— Victoria Atkins, MP (Minister for Safeguarding and Vulnerability) Kevin Foster, MP (Minister for Immigration) Chris Philp, MP § iii

Housing, Communities and Local Government— SECRETARY OF STATE—The Rt Hon. Robert Jenrick, MP MINISTERS OF STATE— Simon Clarke, MP The Rt Hon. , MP (Minister for Housing) PARLIAMENTARY UNDER-SECRETARY OF STATE—Luke Hall, MP (Minister for Local Government and Homelessness) International Development— SECRETARY OF STATE—The Rt Hon. Anne-Marie Trevelyan, MP MINISTERS OF STATE— The Rt Hon. James Cleverly, MP (Minister for the Middle East and North Africa) § The Rt Hon. Lord Goldsmith of Richmond Park (Minister for the Pacific and the Environment) § Nigel Adams, MP (Minister for Asia) § Lord Ahmad of Wimbledon (Minister for South Asia and the Commonwealth) § PARLIAMENTARY UNDER-SECRETARIES OF STATE— James Duddridge, MP (Minister for Africa) § Wendy Morton, MP (Minister for European Neighbourhood and the Americas) § Baroness Sugg, CBE (Minister for the Overseas Territories and Sustainable Development) § International Trade— SECRETARY OF STATE AND PRESIDENT OF THE BOARD OF TRADE, AND MINISTER FOR WOMEN AND EQUALITIES— The Rt Hon. Elizabeth Truss, MP MINISTERS OF STATE— The Rt Hon. Conor Burns, MP The Rt Hon. Greg Hands, MP PARLIAMENTARY UNDER-SECRETARIES OF STATE— Graham Stuart, MP (Minister for Investment) , MP (Minister for Equalities) § Baroness Berridge (Minister for Women) § Justice— LORD CHANCELLOR AND SECRETARY OF STATE—The Rt Hon. Robert Buckland, QC, MP ADVOCATE-GENERAL FOR SCOTLAND AND MINISTRY OF JUSTICE SPOKESPERSON FOR THE LORDS—The Rt Hon. Lord Keen of Elie, QC MINISTERS OF STATE— Lucy Frazer, QC, MP Kit Malthouse, MP § PARLIAMENTARY UNDER-SECRETARIES OF STATE— Alex Chalk, MP § Chris Philp, MP § Law Officers— ATTORNEY-GENERAL—The Rt Hon. Suella Braverman, MP SOLICITOR-GENERAL—The Rt Hon. Michael Ellis, QC, MP ADVOCATE-GENERAL FOR SCOTLAND AND MINISTRY OF JUSTICE SPOKESPERSON FOR THE LORDS—The Rt Hon. Lord Keen of Elie, QC Leader of the House of Commons— LORD PRESIDENT OF THE COUNCIL AND LEADER OF THE HOUSE OF COMMONS—The Rt Hon. Jacob Rees-Mogg, MP Leader of the House of Lords— LORD PRIVY SEAL AND LEADER OF THE HOUSE OF LORDS—The Rt Hon. Baroness Evans of Bowes Park DEPUTY LEADER OF THE HOUSE OF LORDS—The Rt Hon. Earl Howe Northern Ireland Office— SECRETARY OF STATE—The Rt Hon. Brandon Lewis, MP MINISTER OF STATE—, MP Scotland Office— SECRETARY OF STATE—The Rt Hon. Alister Jack, MP PARLIAMENTARY UNDER-SECRETARY OF STATE—Douglas Ross, MP Transport— SECRETARY OF STATE—The Rt Hon. Grant Shapps, MP MINISTERS OF STATE— , MP Chris Heaton-Harris, MP PARLIAMENTARY UNDER-SECRETARIES OF STATE— Kelly Tolhurst, MP Rachel Maclean, MP Baroness Vere of Norbiton iv

Treasury— PRIME MINISTER,FIRST LORD OF THE TREASURY,MINISTER FOR THE CIVIL SERVICE AND MINISTER FOR THE UNION— The Rt Hon. Boris Johnson, MP CHANCELLOR OF THE EXCHEQUER—The Rt Hon. Rishi Sunak, MP CHIEF SECRETARY—The Rt Hon. Stephen Barclay, MP FINANCIAL SECRETARY—The Rt Hon. , MP MINISTER OF STATE—Lord Agnew of Oulton, DL § ECONOMIC SECRETARY—John Glen, MP EXCHEQUER SECRETARY—Kemi Badenoch, MP § PARLIAMENTARY SECRETARY AND CHIEF WHIP—The Rt Hon. Mark Spencer, MP LORDS COMMISSIONERS— James Morris, MP Rebecca Harris, MP Iain Stewart, MP David Rutley, MP Maggie Throup, MP Michael Tomlinson, MP ASSISTANT WHIPS— Leo Docherty, MP David T. C. Davies, MP § Alex Chalk, MP § Tom Pursglove, MP Maria Caulfield, MP Nigel Huddleston, MP § Eddie Hughes, MP UK Export Finance— SECRETARY OF STATE FOR INTERNATIONAL TRADE AND PRESIDENT OF THE BOARD OF TRADE—The Rt Hon. Elizabeth Truss, MP Wales Office— SECRETARY OF STATE—The Rt Hon. Simon Hart, MP PARLIAMENTARY UNDER-SECRETARY OF STATE—David T.C. Davies, MP § Work and Pensions— SECRETARY OF STATE—The Rt Hon. Dr Thérèse Coffey, MP MINISTER OF STATE—Justin Tomlinson, MP (Minister for Disabled People, Health and Work) PARLIAMENTARY UNDER-SECRETARIES OF STATE— Mims Davies, MP (Minister for Employment) Guy Opperman, MP (Minister for Pensions and Financial Inclusion) Will Quince, MP (Minister for Welfare Delivery) Baroness Stedman-Scott, OBE, DL Her Majesty’s Household— LORD CHAMBERLAIN—The Rt Hon. Earl Peel GCVO, DL LORD STEWARD—The Earl of Dalhousie MASTER OF THE HORSE—Lord de Mauley PARLIAMENTARY SECRETARY TO THE TREASURY AND CHIEF WHIP—The Rt Hon. Mark Spencer, MP TREASURER AND DEPUTY CHIEF WHIP—Stuart Andrew, MP COMPTROLLER—Mike Freer, MP VICE-CHAMBERLAIN—Marcus Jones, MP Government Whips, House of Lords— CAPTAIN OF THE HONOURABLE CORPS OF GENTLEMEN-AT-ARMS AND CHIEF WHIP—The Rt Hon. Lord Ashton of Hyde CAPTAIN OF THE QUEEN’S BODYGUARD OF THE YEOMEN OF THE GUARD AND DEPUTY CHIEF WHIP—The Earl of Courtown BARONESSES IN WAITING— Baroness Berridge § Baroness Scott of Bybrook, OBE Baroness Bloomfield of Hinton Waldrist LORDS IN WAITING— Lord Parkinson of Whitley Bay Viscount Younger of Leckie Lord Bethell § Members of the Government listed under more than one department HOUSE OF LORDS

PRINCIPAL OFFICE HOLDERS AND SENIOR STAFF

LORD SPEAKER—The Rt Hon. Lord Fowler SENIOR DEPUTY SPEAKER—The Rt Hon. Lord McFall of Alcluith PRINCIPAL DEPUTY CHAIRMAN OF COMMITTEES—The Earl of Kinnoull CLERK OF THE PARLIAMENTS—E.C. Ollard CLERK ASSISTANT—S.P. Burton READING CLERK AND CLERK OF THE OVERSEAS OFFICE—J. Vaughan LADY USHER OF THE BLACK ROD AND SERJEANT-AT-ARMS—S. Clarke, OBE COMMISSIONER FOR STANDARDS—Lucy Scott-Moncrieff, CBE COUNSEL TO THE CHAIRMAN OF COMMITTEES—J. Cooper CLERK OF COMMITTEES—Dr F. P. Tudor LEGAL ADVISER TO THE EUROPEAN UNION COMMITTEE—A. Horne, T. Mitchell LEGAL ADVISER TO THE HUMAN RIGHTS COMMITTEE—E. Hourigan DIRECTOR OF FACILITIES—C. V. Woodall FINANCE DIRECTOR—F. Akinlose DIRECTOR OF PARLIAMENTARY DIGITAL SERVICE—T. Jessup DIRECTOR OF HUMAN RESOURCES—N. Sully CLERK OF LEGISLATION—A. Makower PRINCIPAL CLERK OF SELECT COMMITTEES—Dr C.S. Johnson REGISTRAR OF LORDS’INTERESTS—T.W.G. Wilson

24 February 2020

THE PARLIAMENTARY DEBATES (HANSARD)

IN THE FIRST SESSION OF THE FIFTY-EIGHTH PARLIAMENT OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND COMMENCING ON THE SEVENTEENTH DAY OF DECEMBER IN THE SIXTY-EIGHTH YEAR OF THE REIGN OF

HER MAJESTY QUEEN ELIZABETH II

FIFTH SERIES VOLUME DCCCII

SECOND VOLUME OF SESSION 2019-20

All this was set out in chilling detail in the recent House of Lords The State of the Nation report from the Terrence Higgins Trust, which underlined how action is needed Monday 24 February 2020 immediately to deal with this crisis. Does my noble friend agree with the report that the long-term implications 2.30 pm of all this are extremely alarming? When will the promised sexual health strategy be published, and Prayers—read by the Lord Bishop of Gloucester. what immediate steps will the Government take to improve access to sexual health services in England? Health: Sexually Transmitted Infections Time is not on our side. Question Lord Bethell: My Lords, I completely commend the work of The State of the Nation report by the Terrence 2.36 pm Higgins Trust, which the noble Lord was greatly involved Asked by Lord Black of Brentwood with. It points to a serious situation in the nation’s To ask Her Majesty’s Government what action sexual health, but one that the Government take very they are taking to tackle the spread of sexually seriously indeed. It is worth mentioning that consultations transmitted infections in England. at sexual health services between 2014 and 2018 increased by 15%—from 3.1 million to 3.5 million. This has been in part through the use of new technology such Lord Black of Brentwood (Con): My Lords, I beg as online testing services and delivery kits, which have leave to ask the Question standing in my name on the proved to open up sexual testing to audiences who Order Paper, and I declare an interest as a trustee of find attendance at GUM clinics awkward and the Bloomsbury Network and a patron of the Terrence embarrassing. However, his point on the sexual health Higgins Trust. strategy is well made. The Government are focused on delivering this strategy at the soonest possible moment. Lord Bethell (Con): My Lords, while we have made Engagement is ongoing, and as soon as that is wound progress in some areas, particularly in reducing new up the strategy will be published. HIV infections, we are concerned at the increases in some sexually transmitted infections. To address this, Baroness Thornton (Lab): My Lords, can I say how we are working with Public Health England, local much I will miss the noble Baroness, Lady Blackwood, government, NHS England and NHS Improvement to and how much I enjoyed working opposite her? develop a new sexual and reproductive health strategy. Notwithstanding the noble Lord’s obvious talents, I hope that the Government will find time to appoint a Lord Black of Brentwood: I thank my noble friend Minister for the health service in this House. May I say for that Answer. The desperate truth is that we are how much I agree with the report by the Terrence fast approaching a crisis in sexual health. Sexually Higgins Trust, The State of the Nation? Will the noble transmitted infections such as gonorrhoea and syphilis Lord comment on the lamentable statistics showing are skyrocketing, new infections such as trichomoniasis a 26% increase in gonorrhoea cases and the highest and shigella are emerging, antimicrobial resistance number of syphilis cases since World War II, which is on the march, and demand for services at sexual could be to do with the fact that since 2014 sexual health clinics is vastly outstripping supply as clinics health services have been cut by a quarter? When will close as a result of brutal cutbacks. that be restored? 3 Health: Sexually Transmitted Infections[LORDS] Nuclear Power Stations 4

Lord Bethell: Undoubtedly,the increases in gonorrhoea, would be. That said, I reassure noble Lords that the syphilis, chlamydia and genital warts are of grave British sexual health provisions in the NHS, although concern to the Government. None the less, there are open to criticism, are among the best in the world and huge areas of progress. New diagnoses of HIV have we should be very proud of them indeed. I have not reduced by 29% since 2015, and the HPV vaccination been briefed on the impact on sexual health workers, programme has proved extremely encouraging. There but I would be glad to look out for that information is undoubtedly a need to figure out a new strategy for and chase it down. how local councils will deliver sexual health. That is why we have put the resolution of this at the centre of our sexual health strategy, which will be published Nuclear Power Stations later this year. Co-commissioning with the NHS will, Question as promised by the Secretary of State, be a key feature of that strategy and will benefit from the increase in 2.44 pm the preventive health budget. Asked by Lord West of Spithead To ask Her Majesty’s Government which United Baroness Barker (LD): My Lords, does the Minister Kingdom nuclear power stations will be providing recognise that while there has been good news for power to the National Grid in (1) 2030, (2) 2032, some people on HIV, there is a consistent pattern of and (3) 2035. higher rates of infection among black and minority ethnic communities? What will the strategy do to Baroness Bloomfield of Hinton Waldrist (Con): My tackle that inequality? Lords, based on current plans, in 2030 there will be four nuclear power stations providing power to the Lord Bethell: The noble Baroness makes a very UK electricity system. Two of these stations are scheduled important point. Engagement with groups from BAME to close in 2030. In 2032 and in 2035 there will be two organisations has highlighted that question. There is stations providing power to the UK electricity system. undoubtedly a change in behaviours around sexual However, some developers have plans for new power conduct that it is extremely difficult to address.Advertising stations. and engagement with groups play a part, but clearly the problem is more complicated and sophisticated Lord West of Spithead (Lab): I thank the Minister than that. That is why we will put innovation at the for her Answer but the Government appear somewhat centre of our strategy. The HIV Prevention Innovation complacent about tackling what will be a crisis for our Fund was an interesting precedent and may be one future energy supply,particularly the supply of electricity way in which we can address the kinds of problems as demand for that rises. There is no doubt that the that she rightly highlights. current civil nuclear programme is in complete disarray. We know that, alongside renewables, new nuclear power Lord Winston (Lab): My Lords, the Minister mentions stations are necessary if we are to decarbonise our the issue of chlamydia with grave concern. He can economy. I understand that the real problem is funding write to me if he does not have the figures, but how of nuclear power. Is the regulated asset-based model, often is chlamydia clearly implicated in damage in the used for example on the Tideway scheme, a possible female pelvis—in other words, in damage to fertility? way to fund new reactor projects? I believe we really It is greatly overexaggerated, and it is important to must start funding nuclear power. know that, because it causes a great deal of concern and guilt among a lot of women. Baroness Bloomfield of Hinton Waldrist: I take issue with the noble Lord’s assertion that we do not take Lord Bethell: The noble Lord’s interest in this area nuclear power seriously.We launched the nuclear sector is well known and he makes his point very well. The deal in 2018—the fifth in a series of deals as part of chlamydia screening programme is reviewing the way the industrial strategy—and through this deal the in which it looks at chlamydia and the possible implications sector has been committed to deliver a 30% reduction of chlamydia, and I would be glad to chase down the in the cost of new-build projects by 2030. The Government numbers that he requested. are committed to looking at alternative funding models that could improve value for money and reduce the capital cost of new nuclear projects. He is right that we Lord Cashman (Non-Afl): My Lords, I remind noble have consulted on a regulated-asset base.The consultation Lords that I sit as a non-aligned Member of the closed on 14 October 2019 and we are currently House. The noble Lord, Lord Black, is right to talk of considering responses to inform the best approach to the compromised access, which includes difficulties in the financing of future nuclear projects, which include getting appointments, longer waiting lists and clinic the regulated-asset base and other models. closures. That affects workforce and patient experience. Therefore, what assessment have the Government made Lord Howell of Guildford (Con): My Lords, I declare of the pressures facing the sexual health workforce my registered interest and congratulate my noble friend in England? on her new role. Does she agree that the aim of the present Government and their energy strategy is to Lord Bethell: Access is absolutely key, as the noble move from 19% of electricity coming from nuclear Lord rightly says. Resources are heavily stretched, and power up to 30%? Does she also agree that the movement the patient experience is not what one would hope it in that direction is extremely slow,with Wylfa suspended, 5 Nuclear Power Stations [24 FEBRUARY 2020] Nuclear Power Stations 6

Moorside cancelled, doubts about Sizewell C, the assume that no SMRs will be active by that time? Is Chinese going ahead—we think—at Bradwell, and a that the Government’s policy and, if not, when will the question mark over Oldbury? The general level of SMRs come on stream? progress looks thoroughly unsatisfactory. Can she ask her colleagues to ensure that a clear exposition of how Baroness Bloomfield of Hinton Waldrist: The this nuclear replacement fleet programme is going is Government’s policy is firmly to encourage the presented to both Houses of Parliament very soon? development of both AMRs and SMRs in a number From the outside, it does not look at all good. of sites, including—the noble Lord’s own passion— Trawsfynydd and the site in Cumbria. He will have Baroness Bloomfield of Hinton Waldrist: I acknowledge seen the announcement that Rolls-Royce is looking at my noble friend’s concerns in this sector. The energy both sites. We are still investing a lot of R&D money White Paper will still be published at the end of this in consortiums that aim to provide small nuclear reactors quarter and will address some of those concerns. We that contribute to the national grid, although my have also been investing in new technologies for small original Answer did not include the contribution that and advanced modular reactors, which have significant they could make. potential to support a secure, affordable and decarbonised energy system. Although Horizon has suspended plans Lord Lamont of Lerwick (Con): My Lords, with for Wylfa in Ynys Mon, the consent order is still live regard to the reference by the noble Lord, Lord West, until the end of March and we are working hard to to 2035, is that not the year in which petrol and diesel develop models that could work for Sizewell C and vehicles will begin to be phased out? Is it not the case Bradwell, which would be a different form of reactor that at the moment those vehicles consume something altogether. like 453 terawatt hours of energy each year? Total UK electricity production is only 335 terawatt hours per Lord Ravensdale (CB): My Lords, what assessment year. Does that not mean that, when diesel and petrol has been made of the possibility of further extending cars and other vehicles are phased out, we will need to the life of the advanced gas-cooled reactor fleet beyond double electricity production? Surely that just illustrates 2030? There is the potential to further extend the life the point that the noble Lord, Lord West, is making. of the three newest stations, which would help provide With the phasing out of fossil fuel vehicles, we will much needed low-carbon electricity until new nuclear need to double nuclear production in 2035—the equivalent capacity can be brought online. of 20 Hinkley Point C stations. Is that really realistic?

Baroness Bloomfield of Hinton Waldrist: I assume Baroness Bloomfield of Hinton Waldrist: My noble by the question that the noble Lord means extension friend raises a very important point, which is why we of those that currently have problems? They are obviously are determined to make our new nuclear projects a under investigation by the Office for Nuclear Regulation. success and to develop small and advanced modular Certainly, the ones at Hunterston in the north of reactors. Our investment in hydrogen fuel cells might Scotland are expected to be back online by the end also assist in the development of cars powered not just of April. by electricity but by hydrogen.

Lord Fox (LD): My Lords, I welcome the Minister’s Lord Cunningham of Felling (Lab): My Lords, there announcement that the White Paper is due because it have been persistent stories in the British media that is clear from your Lordships’comments that an updating future nuclear reactors will involve some input from of the energy strategy is required. Can the Minister the People’s Republic of China. Over recent months guarantee that it will include not just nuclear power we have seen, overtly and covertly, how the American but energy storage and the use of renewables to create Administration have sought to frustrate the involvement a baseload so that we have a viable green strategy? of Huawei in 5G telephonic networks. What will Her Majesty’s Government’s reaction be if the American Administration take the same view about Chinese Baroness Bloomfield of Hinton Waldrist: The noble involvement in our nuclear power programme? Lord is quite right to introduce other forms of energy generation. The truth is that we need everything. If we are to reach zero carbon by 2050, we need a combination Baroness Bloomfield of Hinton Waldrist: I cannot of renewables, energy conservation, carbon capture say what the Government’s reaction to that would be and storage, and battery technologies, as well as nuclear. but I can confirm that the China General Nuclear As far as I know, the energy White Paper will address a Power Group is still considering Bradwell as the site of number of these issues. Overall, the nuclear strategy a new nuclear power station. Its reactor design is in the will fall into three cross-cutting themes, as set out in fourth and final stage of the generic design assessment. the paper,that will result in greater economic opportunity: However,safety and security are of paramount importance nations, regions and places; mobilising capital; and to the UK Government, and any investments in the harnessing innovation. UK energy market are subject to a thorough national security review. The UK has a robust and effective regulatory regime and plays a leading role in setting Lord Wigley (PC): My Lords, the noble Baroness international standards. It will be up to the Government referred to the SMRs. Did the answer that she gave on to reassure the that this does not prejudice the involvement of nuclear power stations in 2035 our national security. 7 Short-term Holiday Lets [LORDS] Immigration: Refugee Doctors 8

Short-term Holiday Lets The noble Lord was basically asking about regulation Question of the sector. As I said earlier, we do not have any plans to regulate the short-let market. Protection of 2.53 pm residents and tourists is paramount, which is why we are working with the Short Term Accommodation Asked by Baroness Gardner of Parkes Association to raise standards. The sharing economy creates wealth—we want to encourage it, not curtail it. To ask Her Majesty’s Government what plans they have to discuss with local authorities the steps Lord Best (CB): My Lords, I congratulate the noble required to address any issues caused by short-term Baroness, Lady Gardner, for persisting with this issue, holiday lets. which is now topical; we are all beginning to realise its great significance. The Minister will know that the Baroness Gardner of Parkes (Con): My Lords, I Government plan to introduce a regulator for estate beg leave to ask the Question standing in my name on agents, letting agents and managing agents. At the the Order Paper and declare my interests as listed in moment, it will not regulate bodies such as Airbnb, the register. which organise these very short-term lettings, but it would not take much to add them to the new regulatory arrangements coming down the pipeline. Would that The Earl of Courtown (Con): My Lords, government not be a sensible thing to do? officials meet their counterparts in local authorities regularly and short-term letting is raised through those The Earl of Courtown: My Lords, the noble Lord, channels. I am not aware of any specific recent request Lord Best, chaired the working group on the regulation from a local authority to discuss this issue with any of of property agents. It has reported and the Government my ministerial colleagues but the Government remain are considering its response. As he said, the scope of open to such a discussion. Local authorities already the working group’s proposed new regulator extends have a number of powers to protect those renting on a only to property agents. As agreed with Ministers in short-term basis and their neighbours alike. the department, this excludes short-let platforms and hosts. We will consider these issues of scope when Baroness Gardner of Parkes: I thank the Minister announcing next steps in response to the report. for that Answer. Is he aware of the concern of the Mayor of London about the great loss of permanent Lord Tope (LD): My Lords, I declare an interest as or long-term accommodation for people who want to co-president of London Councils—and, incidentally, live, or do live, in London? Now, there is the danger yet another vice-president of the Local Government that your property can be taken over at any time. We Association. I am sure that London councils and want to introduce a much fairer system. Local councils many other local authorities will be only too willing to should be consulted on this as they know what to do speak with the Minister and his colleagues about this and have done it in the past. increasingly difficult issue, which is affecting not just local authorities but many local residents. Does the Minister understand that it is extremely resource-intensive The Earl of Courtown: My Lords, I am aware of for local authorities to gather the evidence necessary concerns raised by different parties about short-term to bring successful prosecutions proving that a property lets. My noble friend mentioned local authorities. As I has been let out every night for 91 or more successive said earlier, we are open to discussing measures that occasions? That is why there are so few prosecutions could be taken to improve enforcement with local and why this problem is growing in many towns, cities authorities in London or elsewhere, and with the and resorts throughout the country. platforms themselves. However, we do not want to place unnecessary regulatory burdens on households The Earl of Courtown: The noble Lord refers to the in doing so. 90-day limit, which applies only to London. The department met with Airbnb in July last year to discuss Lord Kennedy of Southwark (Lab Co-op): My Lords, its support for the Mayor of London’s call for a I refer the House to my registered interest as vice-president registration scheme and whether it could support of the Local Government Association. I thank the continued efforts around voluntary initiatives. The noble Viscount, Lord Younger of Leckie, for his work department also met with STAA, the industry group, in the department; I am pleased that he was made a in July to discuss its response to the Mayor of London’s member of the Government. The noble Baroness, call, its support for a roundtable with Westminster Lady Gardner of Parkes, has been assiduous in raising council and for a sector-wide roundtable once further this issue. Over many years, the Government have progress is made. been equally consistent in not addressing her concerns. Why will they not deal this issue? All we get from them Immigration: Refugee Doctors is, “We’ve got the necessary powers”. It is just not Question good enough. 2.59 pm The Earl of Courtown: My Lords, I should draw Asked by Baroness Finlay of Llandaff attention to the great work that my noble friend Lord Toask Her Majesty’sGovernment what assessment Younger did in his role in the department. It is great, they have made of the case for accepting refugee though, to have him back in the Whips’ Office. doctors to the United Kingdom. 9 Immigration: Refugee Doctors[24 FEBRUARY 2020] Immigration: Refugee Doctors 10

The Minister of State, Home Office (Baroness Williams Baroness Hamwee (LD): The noble Baroness, of Trafford) (Con): My Lords, our new immigration Lady Finlay, referred to co-operation and collaboration system will ensure that the UK has the skills it needs, between the various agencies and the Government to including those of doctors. Our refugee resettlement enable refugees who are doctors to practise. Can we schemes rightly focus on support for the most vulnerable add the availability or non-availability of clinical recognised refugees, and those we resettle are supported attachments to that list? After all, many of these to apply their skills in the UK. doctors are among—I hate the term, but the Government use it—the brightest and the best. Baroness Finlay of Llandaff (CB): My Lords, I declare my interest as a member of a BMA working Baroness Williams of Trafford: Some clinical group to support refugee and asylum-seeking doctors. attachments will, if people have the skills required, Given the significant hurdles when people flee with no come under the purview of doctors, nurses and other papers or proof of qualifications and are unable to medical staff on the shortage occupations list. If not, meet the English language requirements or pay the obviously the requisite salary will be required. exam fees they need to register,how have the Government sought co-ordination across all healthcare regulators The Lord Bishop of Durham: My Lords, it is important to ensure refugee doctors and other such professionals that Her Majesty’sGovernment give serious consideration can achieve registration and bring their experience to complementary pathways such as this for refugees and skills to the NHS? Given that UNHCR estimates to find sanctuary while they are contributing professional that over 1,000 people who identify as qualified doctors skills of all kinds. However, the Minister will be aware are stranded in refugee camps—many having been that, this year, the existing refugee resettlement schemes trained, in part, in English, yet only 46 having applied will be consolidated into a new global resettlement last year to the GMC—can the Minister tell us how scheme, for which only one year of funding has been many were refused entry last year? announced. Is the Minister yet able to confirm that funding will continue for refugee resettlement for the Baroness Williams of Trafford: The noble Baroness full term of this Parliament, to maintain refugee will know, I am sure, that doctors and nurses are on resettlement at current levels? the shortage occupations list. In that sense, they would not be refused entry, but I completely understand the point she makes about someone who is fleeing who Baroness Williams of Trafford: The right reverend does not have proof of their qualifications. The National Prelate will recognise that the ambition for this coming Academic Recognition Information Centre is the year is that it should exceed previous years, and he will designated UK agency to help doctors and healthcare know that under our various resettlement schemes we professionals get their qualifications recognised by are on course to resettle 20,000 people from the region various NHS bodies. Individuals can, I know, apply this year. It is difficult to make commitments beyond for a statement of compatibility to have that recognised. this year because of the spending review, frustrating though that is, but I will keep him posted on our future ambitions for resettling people. Baroness Lister of Burtersett (Lab): My Lords, if the Home Secretary is looking to the economically inactive to fill the gaping labour market holes that her Baroness Symons of Vernham Dean (Lab): My Lords— immigration policy will create, will the Government now rethink their opposition to allowing asylum seekers Baroness McIntosh of Pickering (Con): My Lords— the right to work after six months? The Lord Privy Seal (Baroness Evans of Bowes Baroness Williams of Trafford: My Lords, our policy Park): My Lords, it is the turn of the Conservative on that has not changed, but these things are constantly Benches. If we get a short question, we shall hear from under review. My right honourable friend the Home the Labour benches too. Secretary is right that, if someone is seeking asylum but not yet legally resident here, they should not be in a position to be able to work. Baroness McIntosh of Pickering: My Lords, I am grateful. Will my noble friend ensure that any doctor who seeks to practise, whether a refugee doctor or Lord Hunt of Kings Heath (Lab): My Lords, the otherwise, is registered to practise in their home country Minister makes great play of the fact that doctors are and has not, under any circumstances, been struck off highly skilled; of course they are. But what about care and banned from practising there? workers? Why is the classification used by the Home Office going to deny us thousands of people coming from other countries to work in our care system? This Baroness Williams of Trafford: I will certainly confirm is complete madness. in writing if that is the case, because we do not want people who are ineligible to practise. We have had Baroness Williams of Trafford: My Lords, it is fair examples of that. to recognise that the problems in the care system are not fixable only through immigration. The MAC Baroness Symons of Vernham Dean: Will the noble recognised in 2018 that the sector needs to invest in Baroness be kind enough, after Oral Questions, to making jobs in social care worthwhile careers rather revisit the answer she gave a moment or two ago about than be propped up with immigrant labour. the health service being “propped up” by immigrant 11 Immigration: Refugee Doctors [LORDS] Terrorist Offenders Bill 12

[BARONESS SYMONS OF VERNHAM DEAN] normal arrangements for prisoners released by the labour? We rely on many immigrant doctors. Many of Parole Board, for this cohort of offenders the board us have had experience of relying on those immigrant will set the conditions of an offender’s licence when doctors in this country. It was an unfortunate term to they are released before the end of their sentence. The use, considering the shortages, the waiting lists and Parole Board has the necessary powers and expertise those people—we all know someone—who have waited to make risk-based release decisions for terrorist offenders. a very long time. She should reconsider her answer. The board currently deals with terrorists serving indeterminate sentences,extended sentences and sentences Baroness Williams of Trafford: Noble Lords will for offenders of particular concern. know that, in using that word, I did not mean it to be in any way derogatory; nor is it a derogatory term. Viscount Hailsham (Con): Will my noble and learned friend remind the House whether the Parole Board Terrorist Offenders (Restriction of has to consider any burden or standard of proof? Is Early Release) Bill there any provision, statutory or otherwise, for the Second Reading (and remaining stages) Parole Board to obtain a letter or opinion from the trial judge as to the dangerousness of the prisoner 3.07 pm concerned? Moved by Lord Keen of Elie Lord Keen of Elie: I am not aware of any statutory That the Bill be now read a second time. provision whereby the Parole Board can secure a letter from the trial judge. Regarding release, the Parole The Advocate-General for Scotland (Lord Keen of Elie) Board has to be satisfied that the prisoner does not (Con): My Lords, the purpose of this Bill is to end the represent a threat of harm if released under licence. automatic early release of terrorist offenders, moving the earliest point at which they can be released and There is a cohort of specialist Parole Board members making their release contingent on approval by the trained specifically to deal with terrorist and extremist Parole Board. Noble Lords will be all too aware that offenders. This is, in effect, the specialised branch of twice in the last few months we have seen appalling the Parole Board that will be used to handle the attacks on members of the public by terrorist offenders. additional cases. This cohort includes retired High In each case, these known terrorists were released Court judges, retired police officers and other experts automatically at the halfway point of their sentence in the field, all with extensive experience of dealing without any oversight by the Parole Board. with the most sensitive terrorist cases. It is clear that we must put a stop to the current We acknowledge that applying these measures arrangements, whereby a dangerous terrorist can be retrospectively is an unusual step. However, this reflects released from prison by automatic process of law the unprecedented gravity of the situation we face, before the end of their sentence. It is clear that automatic and the danger posed to the public. The Bill simply halfway release is simply not right in all cases. We must will not achieve its intended effect unless it operates now respond as quickly as possible. Further releases with retrospective effect, necessarily operating on both of prisoners serving relevant sentences are due by the serving and future prisoners. The provisions do not, end of February, and if the Bill is to achieve its desired however, alter the length of the sentence, and therefore effect then emergency legislative procedure and early the penalty already imposed by the court. The commencement is required. Government are confident that the Bill is compatible The Bill sets out new release arrangements for with Article 7 of the European Convention on Human prisoners serving a sentence for a terrorist offence or Rights, as both European and domestic case law have an offence with a terrorist connection. There are two held that release provisions relate to the administration main elements to this: first, to standardise the earliest of a pre-existing sentence and do not form part of point at which they may be considered for release, at the penalty. two-thirds of the sentence imposed; secondly, to require Due to the nature of this emergency legislation, the that the Parole Board assess whether they are safe to Government are proposing that the provisions in the be released between that point and the end of their Bill apply only to England, Wales and Scotland. The sentence.This will apply to all terrorist and terrorist-related justification for emergency, retrospective legislation is offences where the maximum penalty is above two to prevent the automatic release of terrorist offenders years, including those offences for which the Streatham in the coming weeks and months, and such immediate attacker, Sudesh Amman, was sentenced. Only a very measures are not currently required in Northern Ireland. small number of low-level offences, such as failure to However, we intend to make provision as appropriate comply with a police cordon, are excluded by this for Northern Ireland via the upcoming counterterrorism threshold, and prosecution and conviction for these Bill, which will deal with sentencing and release. offences are rare. The changes affect those serving It is of course crucial that we continue to do sentences for a specified offence, whether the sentence our utmost to rehabilitate terrorist offenders when was imposed before or after the new section comes they are in custody. In prison and on probation, all into force. terrorist offenders are closely managed by specialist The emergency provisions will extend parole release counterterrorism personnel, and we have a range of to those serving standard determinate sentences and capabilities to manage the risk posed by terrorist offenders, other transitional cases subject to automatic release and to support their disengagement and rehabilitation, before the end of the custodial term. In line with the including tailored interventions. The time an offender 13 Terrorist Offenders Bill [24 FEBRUARY 2020] Terrorist Offenders Bill 14 spends in prison is an opportunity for us to do our necessarily urgent steps required to protect the public best to rehabilitate them, while recognising that this from terrorist offenders who are still considered dangerous. is no simple challenge. Psychological, theological and This is a sensible safeguard against the early release of mental health interventions are all used, and Her offenders who continue to pose a significant threat to Majesty’sPrison and Probation Service has psychologists the safety of the public. I commend the Bill to the and specialists to supply formal counter-radicalisation House, and I beg to move. programmes, both in custody and in the community. The desistance and disengagement programme provides 3.17 pm a range of intensive tailored interventions and practical support for terrorist offenders to tackle the drivers of Amendment to the Motion extremism. This can include mentoring, psychological support, and theological and ideological advice. The Moved by Lord Marks of Henley-on-Thames programme draws on the expertise of academics both from the United Kingdom and internationally through At end insert “but that this House regrets that its academic advisory group, ensuring that it is under- the bill fails to propose measures to deradicalise pinned by the latest research on desistance, disengagement and rehabilitate offenders and to provide adequate and deradicalisation to provide constructive challenge resources to that end; and that the bill offends and evidence on good practice in an innovative field. against the common law principle that new law should not be made to have retrospective effect.”

Lord Carlile of Berriew (CB): Can the noble and Lord Marks of Henley-on-Thames (LD): My Lords, learned Lord tell the House what opinions have been I am grateful to the Minister for the careful way in expressed by prison staff, including chaplaincy services— which he has opened this debate. No one who considers for example,in Whitemoor prison—about the effectiveness the recent attacks at London Bridge and Streatham or ineffectiveness of the programme he is describing? High Road can fail to understand the Government’s concern to prevent further such events. At Fishmongers’ Hall on 29 November, Usman Khan, released at the Lord Keen of Elie: My Lords, I am not in a position end of 2018 after serving eight years of a 16-year to give a specific answer to that focused point with sentence, brutally killed two people and injured three regard to the institution in question, but I will take others near London Bridge, ironically and cynically advice and seek to revert to the noble Lord during while attending an event on prisoner rehabilitation. the debate. On 2 February, just over three weeks ago, on Streatham Beyond the work I have outlined, following the High Road, Sudesh Amman, released less than a events at Fishmongers’ Hall in November 2019, we fortnight earlier after serving half of his three and have also announced a set of measures to overhaul the one-third year sentence for possessing and disseminating sentencing and release arrangements for terrorist offenders. terrorist documents, stabbed two innocent members of These include: introducing longer sentences for the the public. most serious dangerous terrorist offenders and ending So it is not surprising that public attention has early release for other serious dangerous terrorist offenders; focused on the fact that these two terrorist offenders an overhaul of prisons and probation, to include had been so recently released from prison at the time tougher monitoring conditions and a doubling of of their offences and that the Government are clearly counterterrorism probation officers; increasing counter- committed to preventing a recurrence of such offences terrorism police funding by £90 million for 2020-21; by recently released offenders. And there is much in and a review of support for victims of terrorism, this Bill that we welcome. For example, it is clear to us including an immediate £500,000 to the Victims of that the Parole Board should be involved in assessing Terrorism Unit. whether prisoners can be safely released before their The Government have also launched an independent early release on licence. review of the way different agencies, including police, But there are two aspects of the Bill which cause probation services and the security services investigate, us particular concern. First, the Bill alters release monitor and manage terrorist offenders. This is referred dates and defers release from prison for all offenders to as the Multi-Agency Public Protection Arrangements, to whom it relates but contains or presages no new and is being conducted by Jonathan Hall QC, the measures to improve the chances of deradicalising and Independent Reviewer of Terrorism Legislation. Many rehabilitating such offenders. Secondly, the Bill offends of these measures are under way, and the legislation to against the common-law principle of retrospectivity: ensure that the most serious and dangerous terrorist new criminal legislation should not have the effect of offenders spend longer in prison, with strengthened increasing the length of a prison sentence imposed on licence periods, will be included in a new counterterrorism an offender who was sentenced before the new legislation Bill dealing with sentencing and release, to be introduced was passed. By “length of the prison sentence” I later this Session. include the time the offender is statutorily bound to We must acknowledge that while all efforts must be spend in prison. made to rehabilitate and deradicalise terrorist offenders, Taking the first point on rehabilitation and there will be times when these efforts do not succeed. deradicalisation, it is worth noting that the Bill affects Therefore we must have in place robust safeguards all offenders within its ambit, not only those who which mean that these offenders are not released present a particular danger. For all those offenders, it automatically. The Bill’s objective is clear: to take the reduces their time on licence when, for many, it is time 15 Terrorist Offenders Bill [LORDS] Terrorist Offenders Bill 16

[LORD MARKS OF HENLEY-ON-THAMES] danger he presented eight months before the London spent under supervision, on licence after release, Bridge attack, but no notice was taken of his warning. that offers the best chance of deradicalisation and Weare not handling this crisis well. In the Netherlands, rehabilitation. France and Spain, serious terrorist and Islamic extremist We know that the probation service is in crisis, prisoners are separated from others, with improvements underresourced and demoralised, but we should aim in prison safety and order, and more chance of targeted to have an improved and well-resourced probation counter-radicalisation interventions working. We have service with more time to work with prisoners following 220-odd terrorists in custody and we must do more to release, not less. Furthermore, there is real concern reduce the threat from them, all the way from the that spending longer in prison risks further radicalising period before they are taken into custody to the period not only those terrorist offenders but others they meet following their release. in prison. Only last Wednesday, devoted its I turn now more briefly to our second concern with lead article and its first leader to radicalisation in retrospectivity. I shall try not to get bogged down in prisons, and in particular a jihadist knife attack on the detailed legal question of whether altering prisoners’ prison staff by a prisoner in HMP Winchester who release dates part way through their sentence is a was there for non-terrorist offences. As the leader breach of Article 7 of the European Convention on writer put it: Human Rights. The noble and learned Lord repeated “Prisons are not only failing to deradicalise terrorists; in some the view of the Government that it is not such a cases they risk creating them.” breach, but there are many who disagree. However, the At Second Reading in the House of Commons, question cannot be entirely avoided in this debate. On , with all her experience, pointed out that the question of penalties, Article 7.1 provides: the Lord Chancellor and the Government were “Nor shall a heavier penalty be imposed than the one that was “absolutely right to be addressing the question of the automatic applicable at the time the criminal offence was committed.” early release of terrorist offenders, but terrorist offenders will still In the case of Uttley in 2004, the House of Lords be released at some point. That is why rehabilitation—the work considered whether Article 7.1 had been infringed that is done both in prison and when they are out of prison—is so important. There have been many efforts at this over the years, when statutory automatic release at the two-thirds but, as recent incidents have shown, not always with success.”— point was changed to release on licence at the same [Official Report, Commons, 12/2/20; col. 867.] point, because release on licence would involve the In 2015, the Lord Chancellor commissioned former imposition of supervision and restrictions on Mr Uttley’s prison governor Ian Acheson to write a review of Islamist freedom under the terms of the licence. The House extremism in prisons, probation and youth justice. He decided that the sentence that was “applicable”, to use reported in March 2016, making 69 recommendations, the terms of the article, was the maximum sentence including the appointment of that could have been passed for the offence for which the defendant was originally convicted. It followed “an independent adviser on counterterrorism in prisons … responsible for an overarching counterextremism strategy”, that Article 7.1 would be infringed only if a sentence imposed on a defendant constituted a heavier penalty special enlightened separation units, as he called them, than that which could have been imposed on him for high-risk extremists, greater training for staff in under the law in force when his offence was committed. cultural and religious traditions, tighter vetting of Since Mr Uttley’s multiple sexual offences included prison chaplains, tackling extremist literature, a focus three rapes, for which he could have been sentenced to on the safe management of Friday prayers to prevent life imprisonment, and since he was sentenced to only their abuse, improving the speed of response to serious 12 years’ imprisonment, he could not complain that violence within prisons,and more involvement of specialist his 12-year sentence was not applicable when his offences police from outside. were committed. It was also said that altering his On 29 January this year, more than two years after release conditions was an act of administration of his his report, Mr Acheson presented a BBC documentary sentence, not an increase in that sentence. called “The Crisis Inside”, in which he said that he was However, I would suggest that the decision in Uttley appalled that his 69 recommendations had been distilled arguably has no application to the changes to the statutory to 11, of which the Government had recommended automatic release date proposed in this Bill, because the implementation of eight. There would be a new all relevant offenders will spend longer in prison than directorate but no new independent adviser. they were statutorily bound to serve under the terms On separation units, planning at this stage was of the 2003 Act when sentence was passed on them. apparently under way. But just three had been Furthermore, in a Spanish case in the European Court recommended, and of those only one had been opened, of Human Rights, Ms Del Río Prada had been sentenced at HMP Frankland. In the programme Mr Acheson prior to 2000 to a total of more than 3,000 years of interviewed Fiyaz Mughal, the founder of Faith Matters, imprisonment for serious terrorist offences for the ETA. who said that the imams relied on by the Government Under Spanish law, these sentences were subject to a lacked the strength or the skills to mount a credible statutory maximum of 30 years. In 2006, the Spanish challenge to the theological base of extremism that supreme court decided that remission for work carried motivated the terrorists. He was also clear that the out in custody would be deducted not from that 30-year Government’s Healthy Identity Intervention programme maximum but from the overall sentences, so that her was far too easy for prisoners to game and manipulate. release date was deferred by nine years from 2008 to The probation service feels undervalued and largely 2017 and thus she would serve the full 30-year maximum. ignored. It is significant that Usman Khan’s mentor The Strasbourg court decided that the change in the following his release warned the Government of the treatment of remissions had not merely altered the 17 Terrorist Offenders Bill [24 FEBRUARY 2020] Terrorist Offenders Bill 18 manner of the execution of the penalty but had redefined and learned Lord, Lord Falconer of Thoroton, expressed its scope. Furthermore, when Ms Del Río Prada was anxieties on this point during the course of that debate, sentenced, she was entitled to expect, as a matter of and I share them. law, that her remissions would be deductible from the My concern, therefore, is simply that an offender 30-year maximum. It followed that there was an convicted before this Bill is statutorily entitled to infringement of Article 7.1. release at one half, under an automatic response. If For my part, I find it difficult to see how the this Bill is passed unamended, his release will be decision in Uttley could enable this Bill to withstand a deferred until after the two-thirds point, and then only challenge under Article 7 on the basis of the Del Río on a Parole Board assessment. Prada case, where every sentence passed on a relevant At Second Reading in the House of Commons, the offender means that the offender will spend a third Lord Chancellor tried to argue that this does not longer in prison than he would have done under the mean that the Bill will change retrospectively the 2003 Act. The case of Uttley has been further considered sentence imposed by the court: in the UK courts, but I would not wish to predict that “Release arrangements are part of the administration of a the view taken in Uttley could still prevail in Strasbourg. sentence, and the overall penalty remains unchanged.” However, I prefer to rest this regret Motion on the That is the point made on Abedin by the noble Lord, long-held— Lord Pannick. A little later,however,the Lord Chancellor rather gave the game away in abandoning this position when he said: Lord Pannick (CB): Is the noble Lord aware of the “The justification for this emergency,retrospective legislation—out recent judgment of the European Court of Human Rights of the ordinary though I accept it is—is to prevent the automatic in Abedin v the United Kingdom on 12 November release of terrorist defenders in the coming weeks and months.”— 2019? This dealt with the change to the statutory [Official Report, Commons, 12/2/20; col. 872.] regime and said: Indeed, the noble and learned Lord today, in opening “Nothing in the Court’s judgment in Del Río Prada”— this debate, accepted that the Bill had retrospective which the noble Lord is relying upon— effect but argued that it did not offend against Article 7.1. “called into question the central proposition outlined in Uttley The Bill is retrospective, whatever the position under that where the nature and purpose of the measure relate exclusively Article 7.1, and I do not believe that the Government to a change in the regime for early release, this does not fall part have made a strong, evidence-based case for retrospection. of the ‘penalty’ within the meaning of Article 7”. I will add only this. To impose apparent injustice on Therefore, the complaint was dismissed. That case serving prisoners risks their being less amenable to would suggest that there is no basis for a complaint rehabilitation, more resentful of their having their about this Bill. time in custody increased, and so more dangerous on release then they might otherwise have been. Significantly, Lord Marks of Henley-on-Thames: My Lords, I am the impact assessment at page 2 recognises both this familiar with the case of Abedin. I do not accept, risk and the risk to rehabilitation in the Bill, saying: however, that that involves or considers the position “A later release date and reduced (or no) licence period could here, where the length of time spent in custody is disrupt offenders’and family relationships and reduce opportunities changed by statute from the automatic release that for rehabilitation in the community, this would be more severe for young offenders and children convicted of terrorist offences. prevailed under the 2003 Act to the prohibition on Additionally, there is a risk of prisoner frustration, disengagement release before the two-thirds point that would prevail or unrest at changing release arrangements, though there is little once this Act was passed. Abedin did not answer that evidence to support how prisoners will actually react, and reaction point. It concerned the mechanism for release; it did is likely to vary from prisoner to prisoner.” not concern the overall time that was necessary by I fear that we abandon long-established principles statute to be spent in custody. That is the answer to the at our peril. The peril is worse still when we legislate in direct point of the noble Lord, Lord Pannick, on the a rush. We have amendments down in Committee ECHR jurisprudence. seeking a review after a year of the operation of this I was saying that I prefer to rest this regret Motion legislation. Weregard such a review as extremely important on the traditional common-law principle against to consider its functioning when we have been denied, retrospectivity. When we debated before the recess the as we have, proper scrutiny at this stage. It is our Sentencing (Pre-consolidation Amendments) Bill, the intention to press those amendments in Committee. I noble and learned Lord rightly described the Bill as beg to move. ensuring that it did not, “contravene the general common law presumption against The Lord Speaker (Lord Fowler): The original question retroactivity.”—[Official Report, 11/2/20; col. 2253.] was that this Bill be now read a second time, since The noble and learned Lord, Lord Hope of Craighead, when an amendment has been moved, at the end to described the principle as being, insert the words as set out on the Order Paper. The “that the convicted person is not dealt with by the imposition of a question I now therefore have to put is that this penalty of any kind that is more onerous than that which applied amendment be agreed to. when the offence was committed.”—[Official Report, 11/2/20; col. 2249.] The penalty that applied when the 2003 Act was 3.36 pm being applied meant automatic release at the one-half Lord Judge (CB): My Lords, we are being required point. This Bill requires consideration of—not automatic to legislate urgently to remedy an emergency created, —release only at the two-thirds point. That is one-third at least in part, by overcomplicated sentencing law. I longer, and that is the point that I make. The noble deeply regret the rush, and my support for the Bill 19 Terrorist Offenders Bill [LORDS] Terrorist Offenders Bill 20

[LORD JUDGE] State; they are not judicial decisions, and no reference —I do support it—is predicated on the premise that, is made to the sentencing judge about how those before long, we shall be taking an entire look at the responsibilities should be exercised. whole spectrum of sentencing: how it operates, how it In the meantime, the sentence of the court remains is legislated for and how it will work. However, as I in force and, as I said, there are a number of different emphasise, I should prefer specific problems with restrictions. It is possible—we cannot afford it, but as sentencing to be considered in the context of time and a matter of law it is possible—to impose what used to measured reflection. We do not have that time; I am be called control orders and are now called TPIMs. I satisfied that recent events have shown that we are had to remind myself that they are terrorism prevention facing a real threat of catastrophic damage to public and investigation measures, which may be imposed on safety, not excluding multiple murders, by individuals a prisoner at liberty under licence. For an unconvicted who have been convicted and who, even as they strike, person, those conditions are usually regarded, rightly, are still subject to prison sentences for terrorist-related as a massive interference with their ordinary civil offences. In my opinion, although this legislation does liberties. Can we be clear that the liberty of a prisoner no more than postpone release dates—which will come released under the statutes is not the same liberty that and will have to be addressed, and we are not addressing we enjoy as we walk up and down the streets? More that issue—and, even if we had the time to work importantly—or no less importantly—that licence may towards a better solution to this very real problem, the be revoked by the Secretary of State. The offender interests of public safety must come first, particularly may then be recalled to prison without a further trial in the context of retrospectivity and the expectations to serve the rest of the sentence. of convicted criminals. Of course, the Secretary of State cannot whimsically I want to put the issue of retrospectivity into some disapply the relevant statute because he does not like sort of context. There is no right of a convicted someone, and, of course, the criminal will expect to be criminal to be released after he or she has served the released. Since 2012 the sentencing judge has been prescribed part of their sentence; it is only lawyerly required to tell the prisoner that the sentence is X, talk, but the Acts of Parliament that deal with this which means he will serve Y, and so on. By the time refer to a “duty” on the Secretary of State to release the prisoner has been in prison for, say, three days, five the prisoner on licence after he or she has completed days or a week, he or she will have been told the the defined proportion. The release date itself has expected date of release. That is the retrospectivity absolutely nothing to do with good behaviour or concern. It is a serious issue that I do not dismiss, but earning remission. It is automatic and time-based. we have to put it in a context that I have endeavoured The proposed legislation is retrospective but, to put it to describe. What I find completely extraordinary is in context, it does nothing to remove anything that the that, although rightly, the Secretary of State may criminal personally has earned. revoke the prisoner’s licence and recall him to prison It will not help the House if I try to sort out the for breach of any licence conditions, and may—if not, differences between—wait for it—the extended why not?—do so if his behaviour while on licence determinate sentence, the standard determinate sentence, gives rise to a reasonable suspicion that he is engaging the sentence for an offender of particular concern, in activity that represents a threat to public safety, the extended sentences, minimum terms of imprisonment duty to release once the requisite custody has expired and so on. There is a whole cacophony of this sort of appears in practice to be absolute, or at least seems in language. What matters is the complexity that results. practice to be treated as though it were. Can that be Some prisoners are released after half their sentence; correct? If so, is it not obviously wrong—indeed, some are released after half their sentence, provided absurd—that if the deradicalisation process for an the Parole Board has had a look at the case and individual convicted of terrorist offences has plainly recommends it. Some prisoners are released after two- not had the desired effect, it is nevertheless the duty of thirds of their sentence, and some do not get released the Secretary of State to release him? until the minimum term has been completed. There is I shall illustrate what I mean. In relation to the no axiomatic period that works in relation to release Streatham attack, we have been told that the perpetrator and nothing sacrosanct about a half-time release. The was subject to close police scrutiny, as I understand it, legislation has come and gone, and gone and come, immediately or almost immediately after his release, covering these sorts of issues. presumably because he was believed—rightly, as it Those released are released on licence. Their sentence turned out—to pose a serious risk. There may have is not completed until the full period of that sentence been many reasons why he was not recalled to custody. has elapsed. So, under the present legislation, release One may have been that his release had been so recent is more or less automatic, depending on which category that it could have been argued on his behalf that the it comes under, but it is conditional. Among other Secretary of State had failed to comply with the duty features worth underlining are the responsibilities of to release. To the extent that the answer does not the Parole Board, the way periods of remand spent in compromise intelligence or create any embarrassment custody should be credited against the sentence, the to anybody, the simple question is: if the Secretary of power to release early—even earlier than the statute State was lawfully entitled not to release him, why was requires,for example,on compassionate grounds—curfews he released? If she was not entitled, given all the and the nature and terms of licence conditions for evidence we now know, why on earth not? individual prisoners, which have always been regarded The legislation is complex and difficult. I have as administrative responsibilities. They are administrative nothing to say about it that suggests that I am entirely responsibilities to be carried out by the Secretary of happy with it, but we have to look at recent disasters, 21 Terrorist Offenders Bill [24 FEBRUARY 2020] Terrorist Offenders Bill 22 which have provided disquieting evidence that the This emergency legislation, which places early release deradicalisation processes in prison have been far from at two-thirds of the way through the time to be served, successful and that convicted terrorists, still subject to with the Parole Board interposing in the decision on the sentence imposed by the court, have immediately the safety of early release, provides a necessary and resumed terrorist attacks while on licence. There is welcome breathing space—and nothing more. Much an immediate danger; we have to address it. I support has to be done to improve the underlying situation. the Bill. It is not as if this legislation solves the problems we face concerning terrorist violence. Those currently in Lord Soley (Lab): My Lords, I will speak briefly on prison, and potentially those to be convicted of terrorist the question not of law—which I shall leave to others offences in future, will eventually be released. The who have more knowledge than I have—but of Government have promised a further Bill. I entirely dangerousness. I have dealt with this quite a bit, albeit accept the necessity for this legislation, but the policy 40-odd years ago when I dealt with an awful lot of which underlies how we prevent radicalisation and go serious offenders and dangerous people. At times I got about de-radicalisation must go much further and be predictions right and at times wrong, but the important much more effective. As the noble and learned Lord, point is that we need to look at— Lord Judge, said, the penal policy is a maze of extraordinary categories; it is not at all obvious to the Lord Ashton of Hyde (Con): May I remind the layman why there is so much variation between them. noble Lord that there is a speakers’ list? I hope that they can be simplified. There is also the question of how these people are 3.46 pm handled. Wemust develop more effective de-radicalisation policies and prevent radicalisation. The Minister told Baroness Neville-Jones (Con): My Lords, I support us about the policies being pursued, but I share the this Bill. When supporting a Bill, I suppose it is widespread scepticism about their effectiveness. There customary to say that one welcomes it. I am sure I am is a lack of co-ordination between those involved, and not alone in this House in facing a situation I would a lack of information-sharing and bringing together much prefer we did not have to act on, but I recognise the many resources that are potentially available. This the urgency and necessity of this legislation and hope is an area of policy which needs a great deal more others also will. thought and, I hope, explaining to this House in due It is not right for us to take unacceptable risks with course. the lives of the people of this country. There is no There are no quick fixes. Part of the problem is that doubt—it has already been argued—that in the present we face an emergency and must solve an intrinsically situation a level of risk has arisen as a result of difficult long-term problem, which will take time. Even automatic release that should not have arisen and that when we get the next Bill, we will not have solved all should have been foreseen. It has also been said that the underlying problems. I hope the Minister will say retrospectivity in the management of sentencing is more about future intentions when he winds up. wrong. In the current crisis, if I had to choose between Finally, I want to say something about TPIMs and the expectations of prisoners about the management control orders. When I was in office, there was a great of their sentence and the safety of the public, I know deal of objection to the terms of control orders—the where my choice would lie. principle of executive detention and the nature of the We are where we are. As my noble and learned restrictions imposed on individuals. I do not want us friend the Minister said, we have just had two serious to revert to extensive use of executive detention, but cases of random violence committed by individuals policies on licences must be strengthened. I doubt convicted on terrorism charges only shortly after their whether the services involved are well co-ordinated, release, one only a couple of weeks after release. By understand each other’sroles,work to maximum efficiency definition, there can be very little warning to enable and have the finance and manpower resources. the agencies protecting us to deal with such activity: Many things need to be fixed, but the first thing we one individual acting alone, with no possibility of need to do with this legislation is pass it, to give notice for those seeking to detain them. They represent ourselves the breathing space to correct some of the a serious risk to the public, with comparatively little current deficiencies. chance for the probation service and police to be sure that they can intercept the danger. It was a very good thing that the individual who had been released only 3.53 pm two weeks earlier, Sudesh Amman, was intercepted by the police. We were very fortunate—thank goodness. Lord Falconer of Thoroton (Lab): My Lords, I Otherwise, the injury to the public would have been support this Bill, save in one significant respect: increasing much greater. the point at which existing prisoners will be considered It is wrong to court this continuing danger to for release, from half to two-thirds of their determinate the public; we cannot have further repeats. Given the sentence. I agree with noble Lords who have said that number of terrorist offenders due for release in the we need a breathing space, but we can achieve that near future, it is clear that neither the police nor simply by introducing the Parole Board and asking it the probation services have the resources to ensure to consider existing prisoners’ release at half-time. that dangerous individuals never break the terms of The Bill does three things. It provides a new sentencing their licence—were, indeed, this way of handling things regime for future terrorists—I have no objection to sensible. I do not believe it is. that—and does two things in relation to existing prisoners: 23 Terrorist Offenders Bill [LORDS] Terrorist Offenders Bill 24

[LORD FALCONER OF THOROTON] but puts to one side the increase from a half to it increases their release date from half-time to two-thirds two-thirds. That is the right course for the legislature and prevents release being automatic, and brings in to take to deal with the problem of the risk and to deal the Parole Board at two-thirds. I have no objection to with the need to give a breathing space. That would bringing in the board in relation to existing prisoners, not infringe the principle that we have always accepted. as that will allow the state to consider whether or not We should not as a legislature say to a group of that prisoner is safe to be released. If we as a state people—whether justified or not, because it will not need a breathing period in respect of that prisoner, be justified to keep some of those people in beyond bringing in the Parole Board to make a decision deals half their sentence—that we the legislature, not the with that. courts, are deciding what your sentence is. What is objectionable as a matter of principle is increasing the length of sentence retrospectively. It is a 4 pm terrible agony for me to disagree with the noble and learned Lord, Lord Judge, but he did not state in a Lord Beith (LD): My Lords, it is a pleasure to way that I found compelling the position regarding follow the noble and learned Lord in his powerful how long existing prisoners are in prison for. Where speech, and I will return to his key point. But I first there is a determinate sentence for this cohort of want to indicate that the Constitution Committee was terrorists, they are automatically released at half-time concerned about and very much regrets that this is a without the intervention of the Parole Board. It is not fast-tracked Bill whose scrutiny is therefore curtailed. a matter of discretion but of duty for the Secretary of The committee points out that scrutiny of the second State to release them. If the Secretary of State did not terrorism Bill, which we are expecting later in this do so, there could be litigation and she would be Session, must take account of the provisions of this compelled to do so. Bill, which will be revisited at that point. Indeed, the Government’s Explanatory Notes almost imply that that If that period is increased from half-time to two-thirds, is an alternative to the post-legislative scrutiny that the sentence is increased retrospectively. What is so they are not providing for. My noble friend Lord Marks objectionable about retrospectively increasing a sentence has tabled an amendment for Committee—and I have is that it is not the courts that then decide how long the added my name to it—requiring a one-year review. person is in prison for, it is the Executive or the Even though many of the effects of this Bill will take legislature deciding, frequently pursuant to public pressure. time to show, the way in which it has been rushed That really undermines the rule of law. through as fast-tracked legislation requires it to be Should we allow that? Article 7.1 does not allow it reviewed early. at all under the Human Rights Act; there is no entitlement There is fairly widespread agreement on requiring to derogate from that principle, because that is the way all offenders covered by this Bill to be subject to Parole despots behave. The common law is more flexible; it Board assessment as a condition of early release. That will allow derogation from the principle of retrospectivity is a necessary response to the threat posed by ideologically by saying, as we are doing, “All your sentences are driven terrorists who may have been convicted of increased from half to two-thirds.” Whatever sophistry lower-level offences but show no clear sign that they is put forward, that is what is happening. The justification are likely to desist from terrorist activity when released. is given, and the noble Baroness, Lady Neville-Jones, It is right and not an egregious form of retrospection put it well, that we need a breathing space. But you get that existing prisoners should now face a Parole Board your breathing space if you bring in the Parole Board assessment, but I question whether that could not to look at half-time and determine whether you can better be done and would not better address the more release that person, and do so only if it is safe to do so. serious retrospectivity concerns at the halfway stage, If and to the extent that one needs to take a when they currently expect to be released, rather than proportionate step to protect the public—everybody at the two-thirds point. who has debated this so far, including me, agrees that a At either point, the power of the Parole Board not proportionate step needs to be taken—that step is to to release is, in my view and in all the circumstances, a let the Parole Board say, “Is this person safe to release?” reasonable variation of the way in which the total If he or she is not, they are not released at half-time sentence is to be served. It is not clear to me that much and you have the breathing space. I can see no justification if anything is gained for public safety from denying whatever, whether it be under common law or the that assessment until a later point in the custody of human rights convention, Article 7.1, for saying, “Up existing prisoners—a later point that either they or the it from a half to two-thirds.” It is worth pointing out sentencing judge would expect to be the one when they that the person who committed the atrocities in Streatham would be released. The sentence is the whole of the would have been released four months later if his sentence, not just the custody part: the assumption custody had been increased from a half to two-thirds. that custody is the only significant part of the sentence He would not have been released at all until the is wrong, and it bedevils much discussion of criminal end of his sentence if the Parole Board had been justice policy more widely.However,I see no justification brought in, so you solve the problem by bringing in for the move from half to two-thirds for the point at the Parole Board. which the Parole Board makes the assessment in respect I am very happy to say that the noble Lord, Lord of existing prisoners. Anderson of Ipswich, has tabled an amendment that That brings me to the reality of the threat. These accepts the proposition that the Parole Board should people will be released—fairly soon in many cases. be brought in at half-time in relation to existing prisoners, A year or two added to the period of custody solves 25 Terrorist Offenders Bill [24 FEBRUARY 2020] Terrorist Offenders Bill 26 nothing. It does not of itself turn terrorists into peace- have been convicted since their release of further such loving, law-abiding members of the community.Moreover, offences. Indeed, scholars tell us that low recidivism it is a fallacy to say that committed terrorists are a rates are characteristic of terrorist offenders across the danger only when they are released. Some of them western world. could pose more harm through their activities in prison Urgent and piecemeal legislation of this kind, as than they might do outside. Prison presents them with the noble and learned Lord, Lord Judge, has said, a ready supply of vulnerable, resentment-filled potential rarely makes for optimal results. Even after this Bill recruits and with the time and opportunity to groom becomes law, non-terrorist offenders subject to standard and train those people to do massive damage when determinate sentences will continue to be released they are released. automatically at the halfway point, despite far higher A transformation of the prison system is required, recidivism rates. The differential treatment of terrorist so that it has the means, the people and the skills to and non-terrorist offenders and improvements to the engage in a serious deradicalisation programme. I bewildering variety of regimes for sentencing terrorists simply do not recognise as the present reality of the would merit a reflective debate. Given the timetable prison system the description that the Minister gave us for this Bill, I fear that there will not be time for that. of the measures that the Government either are Let me accept the premise of the Bill that terrorist undertaking or believe they will be able to undertake offenders should not automatically be released before in that respect. It will require effective separation of the end of their custodial term, and focus on four radical recruiters from those whom they seek to draw detailed matters, of which I put the Minister on notice into their evil activities and structures.It will be impossible in a letter of last Tuesday and on which I look forward to do these things while our prison system is hopelessly to hearing his response at the end of this debate. and increasingly overcrowded, understaffed and underresourced. We need to take some of the other First, there is the question of its retrospective pressures off the prison system, including from longer application to existing prisoners. There is force, as the sentences, to enable this to be achieved at all. As the noble Lord, Lord Pannick, said, in the Government’s noble Baroness said earlier, it also requires a substantial position that the Bill does not contravene Article 7 of commitment to the probation service and other relevant the European Convention on Human Rights. However, agencies such as the police and the security services. just because we can do something does not mean that we should. It is a long-established principle of our law, We also have to consider the warning from Jonathan expressed judicially by no less an authority than the Hall, reviewer, that the Bill creates a noble and learned Lord, Lord Brown of Eaton-under- situation in which standard determinate-sentence offenders Heywood, that, will be released without ever having been subject to licensing conditions, even though they have been judged “existing prisoners should not be adversely affected by changes in as high risk and therefore not released until the full the sentencing regime after their conviction”. term has expired. This, he points out, creates a cliff That principle was given effect, as has been said, only edge at release, when it might have been more effective a few weeks ago, when existing prisoners were exempted to have at least a period of release under strict licence from a change to the release point for serious violent conditions as a prelude to unconditional release at the and sexual offenders under Article 5(a) of the Release end of the sentence. of Prisoners (Alteration of Relevant Proportion of We will look into these issues at Committee stage Sentence) Order 2019. later tonight, but we need to remind ourselves that the I accept that recent events and the risk of copycat potential of this Bill to reduce or eliminate future attacks are enough to justify Parole Board involvement, terrorist activity is small. It will affect relatively few even in the case of prisoners already sentenced. However, terrorists or potential terrorists—mainly those it has I echo the noble and learned Lord, Lord Falconer, in been possible only to convict of lower-level offences—and asking what additional purpose is served by moving it relies on a prison system that does not have the the first possible release of existing prisoners from the capacity, skills, resources or even space to prevent halfway to the two-thirds point of the sentence. We terrorists from posing almost as great a danger from know that this will result in the continued incarceration, inside prison as they will pose when, inevitably, they without regard to their personal circumstances, of are released. some prisoners who were sentenced on the basis that they are not dangerous and pose no continuing threat to the public. Those prisoners were told by the sentencing 4.06 pm judge that they would be released at the halfway point. Lord Anderson of Ipswich (CB): My Lords, we are What purpose is served by delaying their Parole Board here because of the brutal and despicable knife attacks assessment any longer? The point might appear a committed recently by former terrorist prisoners in narrow one, but it is of real consequence for the liberty Fishmongers’ Hall and in Streatham. Given the of the individual, particularly if this departure from prominence of such attacks in the national consciousness, established legal principle is to become a precedent. a political reaction is inevitable and wholly understandable, Therefore, I have tabled three amendments in the hope but let us not forget that attacks by former prisoners, that they will elicit from the Government more persuasive though an ever-present threat, are, thankfully, unusual. justification for this feature of the Bill than has been As the Minister recently informed me in a Written advanced to date. Answer—and I thank him for that—of the 196 prisoners Secondly, there is the non-application of the Bill to in Great Britain convicted of terrorism-related offences Northern Ireland. Naomi Long, Minister of Justice in and released between 2013 and 2019, only six, just 3%, the Northern Ireland Executive, said last week in the 27 Terrorist Offenders Bill [LORDS] Terrorist Offenders Bill 28

[LORD ANDERSON OF IPSWICH] 4.13 pm Assembly that in her opinion there was no barrier to the legislation being applied UK-wide and that this The Lord Bishop of Gloucester: My Lords, I am was her preference because she was concerned about grateful to those contributing to this subject today what she called who have far greater knowledge than I do, and I will aim to keep my comments brief. “the risk of a two-tier system” Certainly, if a society that relies on government within the UK when it comes to the paroling of to deliver justice has lost confidence in the current terrorist prisoners. I am grateful to the Minister, the system, it is right that we try to address those noble Baroness, Lady Williams, for meeting me to fears, and we must look at the bigger picture. I share talk about that, but can the noble and learned Lord, concerns already expressed about the manner in which Lord Keen, tell us whether the intention is in due this legislation has been brought before the House, course to extend the provisions of the Bill to Northern and particularly the very short time that we have to Ireland, and, if not, why not? consider it. Thirdly, there is the issue of how to manage the risk from offenders released at the end of their sentences. If the justice system is to serve the common good On 22 January, in the debate on the order that I have and the flourishing of people and place, there needs to already referred to, the noble and learned Lord the be an emphasis on a radical mutual responsibility, in Minister rightly said: which we are all truly responsible for one another. Offenders must be expected to take responsibility for “It is crucial that when someone is given a custodial sentence, their actions. This should be about not only taking they spend part of this sentence under supervision in the the consequences and punishments imposed by a criminal community.”—[Official Report, 22/1/20; col. 1115.] justice system but having the opportunity to take How is that principle to be given effect in the case of a responsibility for past actions, and the possibility prisoner who, under this Bill, will reach the end of his of taking responsibility to restore their relationship sentence without the Parole Board concluding that he with society. can be safely released? What is our responsibility? There are undoubtedly Reference is made to TPIMs: powerful instruments some affected by the measure today for whom time in which, since their welcome revision in 2015—in which custody is absolutely vital if they are to have any hope I should declare an interest—have provided for all the of rehabilitation and a future contribution to society restrictive measures previously associated with control that is about good and not harm. Yet, as has been said, orders. However, as of 31 August 2019, only three the current condition of prisons and numbers of staff, were in force. Why so few? Are they too cumbersome? not least those with experience, means that the Prison Are they being applied as flexibly as the law permits? Service simply does not have sufficient resources to Is the Minister satisfied that such measures are an live its responsibility to ensure a genuine opportunity adequate substitute for the period of release on licence for rehabilitation, and thus a safer society. Sadly, I do that my successor as Independent Reviewer of Terrorism not recognise the picture that the Minister painted of Legislation, Jonathan Hall QC, suggested last week the adequate input already available in prison, not should be there for all terrorist prisoners, including least from my discussions with chaplaincy teams. those on determinate sentences, in the interests of As has already been said, it is unsatisfactory that public protection? the Bill before us has been produced in isolation from Fourthly and finally, it is unfortunate that we should legislation that addresses the urgent need for significant be debating terrorism legislation without the latest support and reform of the Prison Service and probation annual report of Jonathan Hall QC. I understand that services. Given the status quo of our criminal justice his report was submitted to the Home Office on system, we will not automatically improve public 7 November last year. All fact-checking and security protection by simply keeping some of these offenders checking was completed by 10 January. There is an in prison for more of their sentence and removing time obligation on the Home Secretary under Section 36(5) spent on licence supervised by the probation service. I of the Terrorism Act 2006 to lay a copy of this annual am concerned that we might perpetuate a myth that report before Parliament “on receiving” it and people will be safer because of this Bill. “as soon as the Secretary of State is satisfied that doing so will not Given that the legislation will give the Parole Board prejudice any criminal proceedings”, an expanded role, I hope the Minister can give us assurance that the Parole Board will be appropriately which is not an issue here. In the circumstances, it resourced to carry out its task, given the complex seems that the Home Secretary is under a legal obligation nature of determining risk in these cases. to publish that report forthwith; it is simply not a matter for discretion. The whole point of the independent The old adage says that hard cases make bad law. reviewer, going back as far as the 1970s, is to inform In the light of the tragic events of past months, it those of us who are expected to pass laws in this is certainly understandable that the Government should heavily classified area about how the existing laws are want to act to ensure public safety. I want that too. operating. Can the Minister confirm the legal position However, I have some fear that tinkering with parts as I have outlined it and ensure that we have the of the system may prove to create as many problems independent reviewer’s report straightaway and in good as it solves. I look forward to hearing the rest of time for the further Bill that he referred to? this debate. 29 Terrorist Offenders Bill [24 FEBRUARY 2020] Terrorist Offenders Bill 30

4.17 pm who are vulnerable, often with complex issues, and who probably should not be in prison at all. To put it Baroness Buscombe (Con): My Lords, it is a pleasure bluntly, they are easy targets. It seems that many to follow the right reverend Prelate the Bishop of convert to Islam for the promise of an easier life, and Gloucester. I am in favour of the Bill; it is a critical just some are able to forget what they have learned stepping-stone to fundamental and urgent reform that when they leave prison. However, let me be clear that will require courage, honesty and acceptance of what this is not a sound reason for opposing the Bill, as is happening in this country, particularly in our prisons. suggested by the noble Lord, Lord Marks: it is not an Let us not forget that we are talking about sentencing argument that people should not remain longer in for treason; a heinous act against our sovereign and prison because of radicalisation. Rather, it means that our state that has become almost commonplace in this we need fundamental reform. country in recent years. I keep using the word “respect”, and I hope noble A recent and brilliant article in the Spectator Lords will allow me to explain why. Some 23 years written by Ian Acheson, and already referenced by ago, I fought the parliamentary seat of Slough. I am the noble Lord, Lord Marks of Henley-on-Thames, still haunted by what young Muslim men would say to refers to the awful reality that our prisons are fuelling me then: “Peta, we like you on a personal level but we radicalism, not fighting it. He references the fact that, don’t respect you people because you are all weak, of 82,000 prisoners, about only 220 are terrorists—but because you do not stand up for what you believe”. I “only” 220 is an appalling number. entirely understand those young men and boys, who Our sentencing rules do not take account of this were, notwithstanding that they were born and brought reality. As a barrister with 43 years’ call, I believe that up in Slough, living a hard, parallel life, stuck between reform of our sentencing rules is absolutely overdue. two different cultures: one largely secular, in good They have not, to my mind, made sense for some time. local schools; the other within a strict regime of work As the noble and learned Lord, Lord Judge, has and prayer at home, where their parents—their fathers explained so well, they are overcomplicated and so in particular—demanded a separate way of life. I often misunderstood. To many living in this country witnessed it for myself. In essence, they were not free now, the current rules do not incentivise good behaviour. to mix beyond the school gates with their school Rather, they are a sign of the weakness of the state friends from other faiths. As for the girls and young and do not command respect. For many people, where women, I was not even allowed to look at them in their there is a conflict between our rule of law and their homes, let alone talk to them, even though I may have religious beliefs, the latter takes precedence. spoken to them earlier in the day in their schools. I want to use this opportunity to share with noble 1 recall saying to my husband back then, “We are Lords a specific case which I feel speaks volumes and storing up enormous trouble in this country, with so demonstrates a truth which has shocked me personally. many largely intelligent, angry and isolated young I hope this will discourage any suggestion that a tough men”—and that was before 9/11. Is it much different and fundamental review of our approach to terrorism now? I doubt it. Why should it be while we just carry and sentencing, and a radical reform of our prison on talking about working together, spending more and probation systems, are not needed. money on so-called local community projects and I will not declare my source, for obvious reasons. undertaking endless departmental reviews, leading to However, I ask noble Lords to accept the veracity of reports that are then shelved and metaphorically marked what I am going to say. It relates to a Christian family “too uncomfortable”? I know, for whom I have great regard and to whom I In essence, our reform must take account of cause: pay tribute for their courage in sharing with me the of what leads to radicalisation and terrorism—the experience of one young man among them who, four bigger picture, as the right reverend Prelate has said. years ago, aged 20, did time in a category A prison. He We need to have the courage to face the truth and has had mental health issues since about the age of embrace the need for fundamental reform. It is time five and suffers from a complex range of learning for tough love and to show wisdom and determination, difficulties. During his time in prison, he was regularly given—as my noble and learned friend the Minister approached by Muslim prisoners and encouraged to has said—the unprecedented gravity of the danger convert to Islam. The message, to be exact, was, “If we face. you convert to Islam, you will have a better life in here, and we will protect you”. Various incentives and enticements were offered to put pressure on him to 4.24 pm convert; one was the opportunity to meet, without Lord Brown of Eaton-under-Heywood (CB): My being overheard by the prison authorities, every Friday Lords, although down the years I have had quite a lot at 1 pm for prayers, where “stuff” was planned. Other of experience of terrorist cases, I recognise that I am enticements were repeatedly offered to him—I did not already out of date and lack the enormous expertise of press for details. several noble Lords who have spoken in this debate—and I asked his mother whether this was an isolated several more who are yet to speak. I will not name case. She said, “This is a massive issue across all our them: that would be invidious, as it would imply that prisons and everybody knows about it, including the others lack that expertise. prison authorities, but they turn a blind eye because I will confine myself at this stage—Second Reading—to they do not want to be personally attacked, and, one or two generalities, and will leave to others discussion anyway, they would be accused of racism”. The main of certain important questions that arise, and the targets for conversion are young men like my source, balances that need to be struck. One that has already 31 Terrorist Offenders Bill [LORDS] Terrorist Offenders Bill 32

[LORD BROWN OF EATON-UNDER-HEYWOOD] have grossly overcrowded prisons, resulting in the well- been identified by the noble Lord, Lord Anderson, is known problems of violence, self-harm, appalling attacks on the one hand the benefit of keeping terrorist prisoners on fellow inmates and prison officers, and problems of incarcerated for the maximum period permissible under substance and drug abuse, which in turn prevent their existing sentence, and on the other hand ensuring engagement with appropriate rehabilitation measures. a post-release period on licence that may help to So, although I am, as I indicated, supportive of the reduce the chance of reoffending. Bill in the round, we need to recognise, and try to find the means to ameliorate, the inevitable effect that this There are a number of other such difficult balances legislation will have, both on the number of indeterminate to strike—tensions within the legislation. The noble sentences and of course on overcrowding in prisons. and learned Lord, Lord Falconer, raised the question of the Parole Board coming into the picture at the halfway stage, as opposed to two-thirds of the way 4.30 pm through. I am not sure that he was right to say that if Lord Harris of Haringey (Lab): My Lords, I refer to the Streatham prisoner had failed to convince the my police and security interests in the register. Parole Board at the appropriate stage, he would not have been freed. He would have been freed; he had a I am grateful to the noble and learned Lord for his determinate sentence and would inevitably have come introduction to the Bill. He has assured the House out at the end of it. that this measure does not breach Article 7 of the European Convention on Human Rights and does not The broad generalities I want to voice are these. impose retrospective punishment on the prisoners affected. First, having looked quite carefully at the Strasbourg I am a non-lawyer, so I have listened with great interest jurisprudence on this,including the various cases discussed to the points made by a number of noble and learned by the noble Lords, Lord Marks and Lord Pannick, I am Lords, noble Lords who are QCs and, in particular, to reasonably satisfied—like the noble Lord, Lord Pannick my noble and learned friend Lord Falconer of Thoroton. —that there is no serious risk of this legislation To my simplistic, non-legal mind, it seems fairly clear: being held to contravene Article 7 of the convention. if a prisoner has been sentenced to a particular term Notwithstanding what the noble Lord, Lord Anderson, of imprisonment, with the clear expectation, backed said about a past decision of mine—a case called by statute, that he or she will be released automatically Stellato, I think—it would be my hope and expectation after half that time, under the Bill it will seem to the that our own domestic courts, in applying our own prisoner as though, retrospectively, that position has historic common law, would not feel it appropriate to been changed. However, the Minister is a law officer, be “plus royaliste que le roi”—in other words, to go and I was always taught that we should accept the further than Strasbourg in condemning what is proposed advice of law officers. It will no doubt be tested in the here as being outwith the powers of the legislature. courts and we will then see how valid it is. My second generalisation is that the problems posed The Minister has told us why the passage of the Bill by terrorist offenders are different in kind from those is urgent: that there are prisoners who, if it does not posed by other categories of offender. Of course it is pass, will be released in a matter of days and present a true that some sex offenders, and others with a history real and present danger to the public. The urgency has of violence, have an undoubted proclivity towards led to the Bill being considered in the House of Commons those peculiarly destructive and distressing forms of in a single day and the expectation that your Lordships’ criminality. But what so frighteningly distinguishes House will do the same. Such procedures are rare and terrorists is their zealotry—their compulsion to kill exceptional, and I do not doubt that there is an and maim in furtherance of fixed doctrinal beliefs. urgency to today’s proceedings, but that urgency, and They are driven to commit atrocities even at the cost indeed the need for these emergency procedures, is of sacrificing their own life. They pose, therefore, a entirely the fault of the Government. We are in this specific and singular threat. position today as a consequence of irresponsible recklessness over the last few years. Thirdly, while I am essentially supportive of the Automatic release has been in place throughout the Bill’s approach—keeping terrorists longer under lock lifetime of this Government. It was known that terrorist and key and releasing only those who prove that they offenders were covered by such automatic release, yet are genuinely no longer intent on causing mayhem to nothing was done. The Government have known the others—I shall continue to espouse the cause of other numbers of those involved, and when they were due to types of criminal, notably most of those remaining be released, but despite that knowledge they waited under the IPP scheme, who are still detained seven and until now to do something about it. The first duty of a half years after it was abolished, as the ill-starred any Government is to seek to protect their citizens project that it was, often having served 10 or 12 years from harm, so why have they waited until this month beyond their due punishment. Their plight should to do so? Had they acted even a few weeks earlier, the continue to be examined sympathetically and not regarded events in Streatham would not have occurred. This as being in any way overlain by the terrorist threat of was a foreseeable issue, yet nothing was done. one or two others in that same category. What is more, the Government have presided over Finally, this country still has far too many an increasingly failing prison service, which the noble indeterminate-sentence prisoners and life prisoners: and learned Lord, Lord Brown of Eaton-under-Heywood, more than double the numbers in Italy, France and referred to. The prison service actually fosters alienation Germany combined. As we have debated often enough and radicalisation; the noble Baroness, Lady Buscombe, in this House—or perhaps not often enough—we also referred to an instance of that. It is so overcrowded 33 Terrorist Offenders Bill [24 FEBRUARY 2020] Terrorist Offenders Bill 34 and understaffed that effective rehabilitation programmes the public. All this Bill does is postpone the problem: are, in most cases, no more than a fantasy. Prisons and prisoners will still come up for release, maybe a few the probation service are in crisis. A RUSI commentary months later or maybe a year or so later, but it will still earlier this month found self-harm was at a record happen. The key question is whether the Prison and level, that the service struggles Probation Service and the Parole Board will have “to provide adequate rehabilitation and community supervision sufficient experienced and suitable expert staff available services to offenders post-release”, to ensure that individual prisoners of concern are and that staff shortages mean weekly case-load targets receiving a proper level of supervision, proper assessment cannot be met. and appropriate support and that deradicalisation and rehabilitation are delivered. As an aside, could the The Prison Reform Trust reminds us how overcrowded Government assure us that they actually know what our prisons are. The prison population already exceeds works in deradicalisation? the number of available decent cell spaces by around 8,000. In practice, the Government do not have a We on this side of the House do not question the prison policy. The numbers do not add up, and our need for the right measures to be put in place to jails are in chaos. In the final days of the last Parliament, protect the public. Automatic release is not appropriate the House of Commons Justice Committee noted that and it is right that there be a proper assessment of the since 2016, just three years ago, the Government had risk that individuals may pose before they are released. made 378 separate and largely unmet promises on However, the Government have been silent on the prisons. As the committee put it, the Government’s resources needed and, without proper assurances on approach is “policy by press release.” that, the Bill is no more than a sticking plaster that will do no more than provide a late temporary fix to a In 2014, the then Prisons Minister—I think there problem that is of the Government’s own making. have been five since then, but I may have missed one or two along the way—asked me to review the self-inflicted deaths of young people in prison custody. My report 4.38 pm was published the following year and concluded that, because of staff shortages and the physical condition Lord Garnier (Con): My Lords, I remember of the estate, the prison environment was grim, bleak during the Tony Blair and Gordon Brown Governments and demoralising to the spirit. Operational staffing making more or less exactly the same speech that the levels were so inadequate that prisoners could not be noble Lord has just made, in criticism of the then sufficiently engaged in purposeful activity and that Labour administrations. There is no perfect answer to time was not spent in a constructive and valuable way. the questions of counterterrorism measures and the Planned core day activities that might help rehabilitation management and organisation of our prison estate. were cancelled. Even medical and mental health Governments of both political complexions have made appointments were being missed because there were mistakes. I am not sure that the debate is hugely insufficient staff to escort prisoners to those appointments advanced by the remarks of the noble Lord, but he is within the prison. entirely free to make them. This is, of course, a proper subject of parliamentary,government and public concern. This has not got significantly better in the last four The two events that have most closely touched us—at years. In fact, the situation is worse. The Bill is urgent Fishmongers’ Hall and on Streatham High Road— only because nothing was done to address the underlying reinforce the need to deal with these questions as best situation much earlier. The Government have known we can and the pressure on the Government to protect that some terrorist prisoners were subject to automatic the public from terrorists. release. This is not something the Minister and his I largely agree with the remarks made by the noble colleagues have suddenly discovered, yet nothing was Lord, Lord Anderson, whose amendment I support, done until now. The Government have presided over a and indeed with a lot of what the noble and learned rapid deterioration in our Prison Service, which has Lord, Lord Falconer, said. We are talking about matters faced budget cuts substantially above those in other of judgment, essentially, and I do not think we need to departments. ascribe ill motive to this or any earlier Government My report in 2015 and successive reports from the when it comes to dealing with these problems. They Chief Inspector of Prisons have highlighted the appalling are hugely complicated and difficult, and it is very rare conditions in our jails. Peter Clarke in his most recent to find a right answer. report says that The noble and learned Lord, Lord Judge, put the “far too many of our jails have been plagued by drugs, violence, hugely complicated sentencing system in context. appalling living conditions and a lack of access to meaningful Although his experience as a sentencer is hugely greater rehabilitative activity.” than mine, I remember that on the occasions when I The Government’s response has been too little and used to sentence people as a Crown Court recorder, too slow. Ian Acheson, whose report has been referred they were not interested in the explanation behind the to several times, in his review for the Government on sentencing regime—they just wanted to know what Islamist extremism in prisons highlighted issues affecting the number was. When the number came out, they precisely the prisoners whom this Bill is concerned went downstairs and off they went. If they now find with. The Government’sresponse to his recommendations that, retrospectively, that number has been increased has at best been patchy. from a halfway-point release to a three-quarter point The Government have no excuse. They knew what release, that will create understandable tension in the was happening: prisoners were coming up to the time prisons in which these people live. I do not mind of automatic release and would present a danger to whether or not this complies with Article 7. I do not 35 Terrorist Offenders Bill [LORDS] Terrorist Offenders Bill 36

[LORD GARNIER] release dates of the prisoners we are talking about think that the man in the dock, or the prison governor have been known since the day they were sentenced to looking after him, is hugely worried about the legal the precise day, and there is quite a large number of niceties; he is concerned about the practical effect of them. Certainly some of them have committed despicable what we are proposing. If we change the halfway point and appalling acts, but to say that this was not predicted to the three-quarter point for those already sentenced— and is therefore an emergency seems to be wholly whether it is an administrative adjustment or a change misleading. in the sentence—we are both misleading ourselves On the subject of retrospectivity and the law, I am about its effectiveness and being unfair. going to use an Americanism and say that I will not You may say that those sentenced for terrorist repeat everything that others I agree with have said; offences do not deserve fairness, but take Sudesh I will simply say that I am going as fifth chair to Amman, who was at the centre of the Streatham High the noble Lords, Lord Marks, Lord Anderson and Road event three weeks ago. He was sentenced to Lord Garnier, and the noble and learned Lord, three years and four months, essentially for uploading Lord Falconer, who expressed views on retrospectivity terrorist material. Although he was released early, he that I share. was the subject of armed police surveillance. It seems to me—this was a point touched upon by the noble IwouldliketojoinwiththenobleLord,LordAnderson, and learned Lord, Lord Judge—that if such a person in his remarks about TPIMs. I respectfully do not is thought suitable for armed police supervision, despite agree with what the noble Baroness, Lady Neville-Jones, getting a relatively short sentence in the sphere of said earlier about control orders, and indeed it may be terrorist law, he might be the sort of person who ought that she was confusing control orders with executive not be released at all. In the context of the timeframe detention—a term she used—which was what control in which this activity took place—he was released just orders succeeded. I am astonished that at one point at before Christmas and was causing trouble on the the end of last year, only two TPIMs were in existence. streets of Streatham in February—one must think They are available to deal with people such as Usman that somebody has some questions to answer about Khan, they have stringent measures, and if Usman Khan why he was released, despite the usual rule being that or Mr Amman had been subject to a TPIM with you are released at the halfway point. However, as I sufficient measures, obviously neither of them would said a moment ago, sentencing is not an answer in have done what they did after their release. itself. Retrospectivity is a matter which will cause I also share the concern of the noble Lord, problems, both for the people who manage prisons Lord Anderson, about the failure to publish the report and for those who look after prisoners once they have of the current independent reviewer,Jonathan Hall, QC, been released. which has now been with the Government for many There is another thing we need to warn ourselves weeks. I have to declare my interest as a former about. If there is a Division tonight, I will vote in independent reviewer, and I have a slight concern that favour of the Government’s proposals, but with some what has happened is either a deliberate slight on the degree of qualification. We need to be careful that we role or a deliberate slight on the reviewer; I cannot do not allow ourselves to think that keeping someone think of any cogent explanation of why Mr Hall’s in prison for a further period without coming to terms report has not been published. with what is going on inside their head is going to I have probably spent more time sitting with defendants solve the problem, other than by keeping that person in cells than possibly anyone else in the Chamber. I off the streets for that limited additional period. The cannot remember what kind of practice the noble number of people who have gone through deradicalisation Baroness, Lady Buscombe, had, but what actually treatment or training or education—call it what you happens? The defendant concerned may be deciding like—and who have then come out of prison and whether or not to plead guilty and may well be faced never committed another offence must, I suspect, be by counsel or leading counsel saying, “Well, you’re unknowable. The success rate of deradicalisation is going to be convicted so you’d better plead guilty, quite low, but that should not discourage us from because if you do that you’ll get a shorter sentence.” making sure that those who organise and teach That is a truncation of a typical conversation that deradicalisation schemes are not demoralised by the takes place in the cells, and I have been involved in events in Streatham and Fishmongers’ Hall. Those countless such conversations. So what do they say? terrible events caused great distress to the victims of “How long will I do?” If you are very plucky, you those two individuals. However, I urge the Government venture something like, “I think you’ll get eight years”— not to allow themselves to tell the public that this usually meaning that you hope they will get six—“and measure by itself is the answer to the problems—because you’ll do four.” That is what is fixed in their mind. it is not. But it is not fixed just in their mind. Like the noble and learned Lord, Lord Garnier, I have sat as a 4.46 pm recorder in many criminal cases. I have known perfectly Lord Carlile of Berriew: My Lords, I think it is clear well to the day that, if I passed a sentence of eight that we are all trying to achieve the same during the years in the circumstances I have described, I was course of this debate: to keep the public safe from taking part in a fiction that judges are forced to carry terrorists by the best means lawfully available. This out. I would rather they did not—I would rather they Bill has been presented as a fast-track Bill, but in my passed the sentence that will be served—but the judge view, although it is certainly an urgent matter, it does knows that that person is going to do four years not justify for one moment being one. The sentence because of automatic release at half-time. So, whether 37 Terrorist Offenders Bill [24 FEBRUARY 2020] Terrorist Offenders Bill 38 the noble Lord, Lord Pannick, is right or not, do we the terrorism threat. As the House knows, both the really want to introduce a law of this kind that makes perpetrators had recently been released automatically the court a double teller of untruths? I therefore have from determinate sentences after serving half the sentence real reservations about this legislation, given particularly in custody. In the face of these events, I accept the that there are other measures available. Government’s argument that speed is necessary in The noble and learned Lord, Lord Judge, in his legislating to prevent the further automatic release of own inimitable way, did not put us to sleep, but he similar offenders in the very near future. I also accept made it clear that if you know anything about the law the argument that offenders of this type should be of sentencing, it is a great cure for insomnia if you required to undergo a risk assessment by the Parole start thinking through it at night. It is extremely Board before they can be released. complicated. But what the sentencing judge does not I was privileged to serve some years ago on the have in these cases is a proper detailed analysis of the committee of the noble Lord, Lord Carlile, which terrorism offender whom the judge is sentencing. There reviewed the parole system. The parole system is an is no hurry in sentencing these cases: desistance and effective way of dealing with offenders in the criminal disengagement programmes can be considered, and justice system. At times in the recent past, the board the judge can be given an opinion before passing has been subject to misplaced and ill-informed criticism sentence. in some quarters. It is therefore gratifying that its But what happens in prison? I was visited last week expertise in assessing risk and safeguarding the public by somebody who told me, on the basis of very sound has been recognised on all sides during the passage of knowledge—I am not going to identify that person—what this legislation. The proportion of offenders of all has been going on in Whitemoor. In that prison very types who are released by the Parole Board and who recently, there was an attack on prison staff which commit a further serious offence is less than 1%. In was, I am told, an attempted beheading. The people any system based on human judgment, it would be who were carrying out the attack were—at least in difficult to improve on that record. some cases—subjects of desistance and disengagement programmes. But there is no structure to those When the board is considering the release of offenders programmes; there is no peer review to those programmes; convicted of terrorist offences, additional measures there is no real analysis of those programmes. If the are in place to ensure that these cases are considered Minister were to go to Whitemoor and ask the staff on by members with expertise and training in terrorist the wings what the effect of those desistance and matters. There is no doubt that the public will be disengagement programmes was, he would be told better protected if the release of such offenders is that they were completely ineffective and poorly planned. subject to prior consideration by the Parole Board. I Usman Khan was in that prison, as I understand it, therefore support the Bill’s replacing automatic release and any person working on the wings would have told in these cases with release at the discretion of the anyone asking the right question, “He is completely Parole Board. However, I have a number of caveats, unreformed; he is absolutely determined to go out and which are important if we are to get the right balance cause mayhem as a radicalised terrorist.” and guard against the risk that rushed legislation may We should really be focusing our discussion—in the turn out to be flawed legislation. broader debate about these issues—not on the narrow The first caveat relates to the additional time that nature of the Bill but on how we should structure some offenders will serve if the Parole Board concludes desistance and disengagement programmes. They do that it is not safe to release them. These offenders are work for some people: I know some people for whom serving determinate sentences, so they will be released they have worked. The Prevent strand of counterterrorism at some time in the future. It is therefore important policy is doing great work; some people have been that while they are in custody, we deploy the most decorated for doing that work. But we need to make effective measures possible to counter and change sure that what we are doing with the cohort of people their mistaken beliefs. This means countering them concerned either works or we know that it is not going through both offending behaviour programmes focused to work, so we can make the right decisions at the on terrorism, and through chaplaincy-based programmes right time in a lawful fashion. seeking to produce a more appropriate understanding of the faith and its requirements for peaceful behaviour 4.53 pm towards others. We should keep the effectiveness of Lord Dholakia (LD): My Lords, I welcome the deradicalisation programmes under continuous review contribution from the noble Lord, Lord Carlile, and I to ensure that they are designed and delivered to have support what he has said. Having worked in the criminal the maximum impact in challenging and changing justice system as a volunteer and having talked to people’spro-terrorist beliefs. I welcome the establishment many professionals involved in the system, it is obvious of the new counterterrorism programmes and that there is no such thing as total security and safety interventions centre within Her Majesty’s Prison and for all our citizens. It is for this reason that we have to Probation Service. I urge the Government to review, be very careful: great care must be taken to ensure that publish and act in the near future on information and in ratcheting up the release mechanism, this legislation research on the most effective approaches to radicalisation. is not counterproductive to the objective of reducing My second caveat relates to the change in the terrorist activities in our country. minimum term which offenders serving sentences for The atrocities perpetrated by terrorists outside terrorism-related offences must serve before they are Fishmongers’Hall and in Streatham High Road brought considered for release. I have already expressed my home to all of us the need for continual vigilance against support for making the release of these offenders 39 Terrorist Offenders Bill [LORDS] Terrorist Offenders Bill 40

[LORD DHOLAKIA] belief of people in Britain is that, if you are sentenced dependent on a Parole Board assessment of risk. to a term in prison, you should serve it. There may be However, under the Bill, even offenders who have been a reason for having an early release, supervised by the deradicalised and rehabilitated and whom the Parole Parole Board, on clear grounds of good behaviour or Board judges safe to be released will not be released at by being eligible for release for other reasons, but the the halfway point in their sentence and will have to idea among most of the general public is that, when wait until two-thirds of the sentence has elapsed. It is people are sentenced to a period such as in the headline difficult to see how this is supposed to increase public “X gets five years”, that should mean five years. safety. If Parliament decides that it wants this category My starting point is that I strongly support what of offender to serve longer in prison for punishment the Government are doing, and I am sorry that it was or deterrence reasons, for example, that is surely a necessary in the first place. I spent two and a half decision to be taken with full discussion and debate in years as chair of the Council of Europe committee on the normal course of a future Bill’s passage through the implementation of judgments of the European Parliament. It is difficult to see the justification for Court of Human Rights. In Britain, we had the matter making this change in a Bill which is being rushed of prisoners voting, and we got ourselves into a dreadful through all its stages in a couple of days on the mess. The court came down with a fairly reasoned grounds that public safety requires it. decision that was totally misunderstood by the I accept that an emergency justifies emergency Government, and it was —who I still legislation to require a Parole Board assessment before think was the best Justice Minister we had—who went release, but it is difficult to see a similar justification to Strasbourg and unravelled the thing and sorted for changing the release eligibility point for offenders it out. serving existing sentences who would receive a favourable risk assessment by the board. Jonathan Hall, QC, the However, the point that I want to make goes a bit Independent Reviewer of Terrorism Legislation, has further than that. I am not well known on these made this point in his note on the legislation: Benches for asking the Government to spend money, but I reflect on the remarks of my noble friend “unless there is a clear justification for retroactively changing the Lord Howard, when he spoke about locking up the earliest release date for this set of prisoners, it sets an uncomfortable precedent for retroactive alterations to the release dates for other prisoners and throwing away the key. He says that he offenders who are currently serving sentences of imprisonment. did not say that, but that was how it was reported, and In summary, whilst consideration by the Parole Board of all it certainly had a great degree of public support. terrorist offenders prior to release is sensible and to be welcomed, However, what has not had a great degree of public it is unclear to me why this consideration needs to be delayed until support is the deplorable state of the prisons themselves; two thirds of the sentences of prisoners—who would otherwise we have heard about Whitemoor, and we have heard have been released after one half—have elapsed”. from my noble friend Lady Buscombe and the noble My third caveat is that if an offender is not released Lords, Lord Beith and Lord Carlile, about the conditions by the Parole Board at any point before the end of his in prisons. sentence, he will be released with no requirement for compulsory supervision by the Probation Service and I would like to draw attention to a problem frequently with no licence conditions. Perhaps the Minister can brought to the fore by the Prison Officers’ Association, explain the Government’s position. which is the trade union that represents prison officers. It is on the front line in prisons; it is its members who My final caveat is that it behoves us to ensure that are assaulted. One of its members in Whitemoor was any legislation which is being pushed through the threatened with beheading. The fact of the matter is House in haste must be subject to a formal independent that, if there is one area in which privatisation has not review in the near future. worked, it is the Prison and Probation Service. It is a In conclusion, I am willing to support the position lot worse off now than in the past, and in the past it taken by my noble friend Lord Marks because I accept was not fit for purpose. the need to ensure that prisoners serving sentences for terrorism-related offences are released only if the Parole The problem we have is that politicians of all parties Board assesses it is safe to do so. The Government and have been chronically unwilling to stand up to the Parliament must continue to take responsibility for press. The fact of the matter is that it is a cheap and ensuring that the legislation is closely monitored in easy headline to talk about prisoners living in luxury. I practice and that prompt action is taken to remedy have been to Whitemoor prison at the invitation of the any defects or injustices identified in the course of Prison Officers’ Association; it is not a nice place to its implementation. be. It is overcrowded and dirty. The crucial thing about our Prison Service is that it is hidden; it is underground. People never look at it. They do not look at the prison 5.02 pm officers and they regard a person put in prison as out Lord Balfe (Con): My Lords, I am not a lawyer, but of sight, out of mind. But they are still human beings, I have listened with great interest to those lawyers who and the way in which our prison estate works can have spoken today. I start from the position that many only encourage more recidivism. It is not in any way people in Britain do not understand why this law is fit for purpose. necessary, because the common belief is that if people We not only need to look carefully at ways in which are sentenced to a prison sentence, they serve it. It is we can improve the Prison Service; we need more only here that we learn of all the nuances and the way prisons. We cannot keep cramming people into the in which sentences are two-thirds, one-third or a quarter space we have. The population is expanding. The or dependent on the Parole Board. The fundamental desire for prison sentences is expanding. In a democracy 41 Terrorist Offenders Bill [24 FEBRUARY 2020] Terrorist Offenders Bill 42 you have to reflect what the people want, but you communities by incrementally and forensically changing cannot do it unless you have a proper service to do it. the law to confront the latest terrorist behaviour. Any That means we have to up the status of the prison apparent breach of a fair approach can be a recruitment officers and the probation service. We have to talk to aid for radicalisers and terrorist groups, as we experienced the unions—the Prison Officers’ Association and the with internment in Northern Ireland. However, on probation unions—and take them into our confidence balance I believe that our national security requires in building a Prison and Probation Service, and a this change now to keep the public safe, and the deradicalisation service, that actually works. impact on convicted prisoners is not disproportionate We spend a lot of time talking about what happened or unreasonable. in Streatham. Incidentally, my son has a bike shop in The Government’s argument would be stronger if Streatham, not far from where this incident took they made clear arguments about what they would do place. It is a very ordinary suburb of London. We have with the longer time these prisoners are to be kept in to look at ways in which we can improve the Prison prison for. Three areas need constructive ideas to and Probation Service and make it fit for purpose, be developed in the remaining months before these because recidivism is encouraged by these bad conditions. prisoners are released. First, as has already been stated, Bad conditions in prisons, and in particular the feeling deradicalisation in our prison system appears at best among prison officers that they are unwanted, unloved to be stalled. It is not working, as these three cases and basically just kicked around and used for public sadly show. relations purposes, are not the way forward. We have Secondly,the assessment of whether someone remains to value the prison officers and the probation service if dangerous at the point of giving them a licence or at we want to make the Prison Service work in the the end of that licence does not appear to be working interests of what we have set forward as its tasks. either. Neither of these issues is easy, but there are 5.08 pm other places in the world which have dealt with them more effectively. Lord Hogan-Howe (CB): My Lords, I broadly support Finally, I think that we should set up a new unit to this Bill, with one area of discomfort and one suggestion monitor and control those released prisoners throughout for improving the system of controlling the danger of their licence period. We cannot leave it entirely to the released convicted terrorists. The three recent incidents probation service. There is a risk that released prisoners at Fishmongers’Hall, Whitemoor prison and Streatham will not feature highly on the priorities of either the remind us of the continuing threat from Islamism and security services or the police, who are monitoring the terrorism associated with it. thousands of individuals and are said to have hundreds For five to six years, I have been concerned about of live operations while also attempting to obtain two major threats, one of which these cases represent, convictions in those live operations. and that is the wave we are now experiencing of releases from prison of people arrested on short sentences Such a unit could be modelled on the Metropolitan over the last few years. The second is the return of Police’s fixated-individuals department, which has been foreign fighters; 20,000 Europeans went to Syria in the in existence for at least 20 years. That is led by the hope of a caliphate, and the street-level terrorist attacks police but has consultant psychiatrists and mental we saw in the succeeding years in the UK and across health nurses to manage those fixated on royalty and Europe were profound things that have affected our those in diplomatic or government positions. I would society. Both are things that we needed to plan for and add surveillance and technical monitoring dedicated that we are now experiencing in real time. solely to monitoring terrorists on their point of release, because the numbers will grow and therefore the risk is I suspect that many people would have been surprised likely to be magnified. that those convicted of terrorism and given determinate sentences were automatically released halfway through We need a new approach, and part of that will be their sentences. It cannot have been easy for the Prison about a psychiatric assessment. Such an assessment Service, trying to impose a disciplined regime without already takes place in the Prevent space, where a pilot a lever to affect their behaviour that had some effect is taking place, and it certainly takes place in live on their release date. The requirement for the Parole operations, where the security services and the police Board to consider whether it is safe for a terrorist struggle to know when it is the right time to make an prisoner to be released is essential and long overdue. arrest or intervene in the behaviour of someone who The Government propose that this should take place seems to have terrorist inclinations. two-thirds of the way through the sentence. I agree, as I was attracted by the suggestion of my noble friend that is a more significant period. It allows the gravity Lord Anderson that, instead of keeping people in of the offence to be recognised and any attempts at prison, we could extend their licence period. However, deradicalisation to take place. Most importantly, it I am not persuaded, for several reasons. First, presumably keeps the public safe for longer. one of the reasons for suggesting this is because better I admit to some discomfort at the retrospective nature or stronger licence conditions is less intrusive than of this legislation. It is important—though some would prison, but I would prefer them to be in prison and the say it was a fine point—that the ECHR forbids the risk removed altogether rather than managed. Secondly, retrospective extension of sentences because, as has we have already accepted that the test for whether been said by the noble Lord, Lord Harris, for the someone is dangerous is very hard to achieve. Therefore, prisoner and their family the outcome would be the if we still have to apply that test at the end of the same. In this country, on the whole we have succeeded period of detention, the proposal of my noble friend in maintaining the majority support of our minority Lord Anderson would be less persuasive. Also, the 43 Terrorist Offenders Bill [LORDS] Terrorist Offenders Bill 44

[LORD HOGAN-HOWE] If we are talking about justice, what is worrying probation service does not have the system in place about the immediate situation is that there is apparently that he would prefer, and I doubt that it will be put in a rush to prevent the early release of some prisoners place over the next few days, which is the period we are who were under existing arrangements expecting that talking about. Therefore, that system would not be release to happen. But that does not add up to a there to mitigate any risk from letting people out, even convincing battle for hearts and minds; it plays into if we thought that there may be of some level of the hands of the extremists. They want to demonstrate danger. Thirdly, both systems may have legal challenge that when horrible things happen we do not have the if one accepts the theory that by changing the terms of strength or self-confidence to ensure that the principles the sentence at some point there may be a legal challenge we lay down are sustained. to even that type of change. If there is to be a legal It is worth noting that between January 2013 and challenge, it would probably be best to make the December 2019, 196 prisoners were released under the change effective rather than worry that some of these existing arrangements. Six went on to commit further people might kill after they are released. offences, but 190 did not. That is something to consider Finally, the proposed changes, which are broadly when we have this legislation before us. We must not proportionate and reasonable, are unlikely to be a just do something: we must do something that is right, better recruiting sergeant than anything else that has sensible and convincing. happened recently. While there may be some risk, it is An even more important question, which has not not profound and, on balance, the Government’sproposal been answered, is what will happen to these prisoners is reasonable, and I therefore support it. who are detained for longer. Where is the evidence that the resources and arrangements will be there to 5.15 pm undertake effective rehabilitation, decriminalisation Lord Judd (Lab): My Lords, we are clearly facing a and deradicalisation? The evidence is that resources grave threat to people in all parts of the United are not there and that the programme is failing, and Kingdom. It is a heavy responsibility on the Government we will just compound the problem by putting still and we therefore have to take seriously their responsibility more pressure on the Prison Service. This is a grave and how they are proposing to deal with it. I should situation, but it is all the more important to make sure declare an interest. As will become patently clear that we get our response absolutely right and are not during my remarks, I am not a lawyer, but I am rushed into measures that are ill-prepared. president of the Labour Campaign for Human Rights, and I am involved in an advisory capacity at the 5.23 pm Centre for the Study of Human Rights at the London Lord Blair of Boughton (CB): My Lords, I begin my School of Economics. assessment of the present legal position on this area of We are involved in a strategic battle for hearts and policy with a quotation that will be familiar to noble minds. We have to be careful that inadvertent Lords: counterproductivity does not become a spur for increased recruiting by the extremists. They and their leaders are “‘the law is a ass’, said Mr Bumble.” cruel, barbaric, highly manipulative and cynical. At The release of Sudesh Amman was lawful and his all times, we have to demonstrate that we are about further detention would have been illegal, but his values, beliefs and systems that are totally different release represents a failure by the British state. The law from their destructive nihilism that threatens humanity. needs to be changed and I support the provisions of Therefore, if we are to live up to those values and this Bill. However, I do so on the rather precarious demonstrate them, it is vital that any legislation proposed grounds of an anonymous No. 10 briefing that the is carefully considered, with plenty of opportunity for Government intend to undertake a “deep dive” into interested parties—lawyers, community workers, social matters surrounding the release of convicted terrorists. workers and the rest—to be involved in giving their Perhaps the Minister will be in a position to confirm advice on the best way forward. that. At all times, our law has to be clear, fair, consistent There is a lot of diving to do. We simply have not and transparent. It has become clear—as has been got this right. Some of the revisions to previous legislation emphasised in this debate—that we have been dealing introduced by the coalition Government need to be with a situation that has been aggravated by misguided reversed. The most important reversal would be the legislation. Mandatory early release was a bad idea if replacement of the rather weak and little-used terrorism there was an absence of any part to be played by the prevention and investigation measures—little used because Parole Board in coming to a decision on the period of they are not very good—by the more resilient control time stipulated. orders, particularly those with a provision requiring In my view, the involvement of the Parole Board, the suspect person to reside somewhere away from his which the Government are now proposing, is absolutely or her previous contacts. right, but I agree very strongly with those who have As the Bill provides, the Parole Board needs to be argued that, in terms of short-term legislation and involved in the release of all terrorism offenders, whatever interim measures, it is crucial that we make sure that the length of their sentence. However, the Government the Parole Board is involved in those as well. Furthermore, need to look further to see what the Parole Board we need to be certain that, with its responsibilities, the should do if it thinks that a person should not be Parole Board is properly and adequately resourced released. They need to look, perhaps, at Australian and that it too is not working under impossible pressures post-sentence detention orders, which immediately fit because of cuts. this position. We now know much more about prison 45 Terrorist Offenders Bill [24 FEBRUARY 2020] Terrorist Offenders Bill 46 radicalisation and, as other noble Lords have said, the towards a particular following of some description. Government must fully implement the measures suggested While the vast majority may never reoffend, the challenge by Ian Acheson on this phenomenon as soon as possible. we all face and which this legislation seeks to address We must recognise that we have not yet reached the is that if we cannot be sure, we must, in the interests of peak of UK returnees from the fighting in Syria—the safety, err on the side of caution in order to protect the problem will get worse before it gets better. Right-wing public at large and safeguard through robust and terrorism is also on the rise. This means that, while I effective legislation. am urging the Government to take a much more The National Counter Terrorism Security Office holistic approach to the problem than just enacting recently advised that the direct risk of violence posed this Bill—I am sure they will, as it only postpones by former terrorist prisoners on release should be kept rather than solves the situation—it is also time for in proportion. It described reoffending rates as “relatively other political parties to get behind the Prevent low”, stating that only 9% of terrorist prisoners released programme, rather than proposing to abolish it, like since 2012 had been reconvicted for any type of offending. one prospective leader of the Labour Party. This was contrasted with an overall reoffending rate of I accept that risk assessment is not easy.Usman Khan, almost 50% for adults released from custody. Of 200 or who killed two people on London Bridge, pretended so terrorist offenders released from custody since 2012, to have renounced violent extremism. However, the only six had been convicted of further Terrorism Act idea that the law allows the release of a man who is offences at that point. still openly threatening to kill invokes the spirit of Mr Bumble. I have pointed a police revolver at another That said—I make no apology for repeating the human being. I have been present at briefings for details of these facts—let us remind ourselves that on armed operations and given many of those briefings 30 November 2019, Usman Khan killed two people at myself. I very much doubt that the officers involved in Fishmongers’ Hall near London Bridge before being the armed surveillance of Sudesh Amman thought shot by police. Khan had been released from prison in about Charles Dickens, but they must have thought December 2018, having been convicted of terrorism that the situation about which they were being briefed offences in 2012. He was released from prison was simply mad. They are a precious and very limited automatically at the halfway point of the custodial resource. They will have been pulled off surveillance part of an extended sentence for public protection. of another target suspected of planning a terrorist act, Khan was serving an extended public protection sentence to follow a man who had just been let out of prison of 21 years, comprising a custodial term of 16 years and had already committed terrorist offences and was and an extended licence period of five years. For an now threatening more. Days later he was dead; two extended public protection sentence imposed after people were badly injured and two officers were left 14 July 2008, as Khan’s was, release was automatic at with the lifelong burden of having killed a fellow the halfway point of the custodial period. The Parole human being. Board was therefore never involved in Khan’s release. Amman’s release is a straightforward failure of On 2 February 2020, as we know, Sudesh Amman policy and legislation. In summary, while I admire the attacked two people with a knife in Streatham before optimism of those noble Lords who want men such as being shot by police. Amman had been released from Amman to be given the opportunity of being supervised prison in January 2020, having been convicted of on licence by the probation service, that seems a rather terrorism offences in November 2018. He was given a inadequate proposition. In this case, he would have standard determinate sentence of three years and four been followed to his meeting with the probation officer months, and was released from prison automatically by armed surveillance officers. I support the Bill but I at the halfway point. The Parole Board was not involved urge the Government to do much more. in his release. We also know that on 9 January 2020 a convicted 5.28 pm terrorism offender, Brusthom Ziamani, along with Lord Davies of Gower (Con): My Lords, it is a great another prison inmate, was reported to have attacked pleasure to follow the noble Lord, Lord Blair; we were a prison officer at HMP Whitemoor. Both were reported colleagues quite some years ago. I am not a lawyer— to have been wearing fake suicide vests. A prison indeed, I spent most of my years delivering defendants officer was slashed and stabbed, and several others into the hands of lawyers—and I will leave the more were injured. The Metropolitan Police confirmed detailed legal arguments to the lawyers and the noble that the incident was being treated as a terrorist attack and learned Lords. and investigated by officers from Counter Terrorism Our first duty as a Government is to keep the Command. country safe. The 2019 Conservative manifesto said: It is worthy of note that between March and June “We will keep our country safe from terrorism. We will invest 2017 there were four terrorist attacks in London and in the police and security services and give them the powers they Manchester in which vehicles, knives and explosives need to combat new threats”. were used to kill and injure members of the public. That is very good news and clearly an issue that the Thirty-six people were killed in the attacks and almost electorate wanted the new Conservative Government 200 were injured. In addition, as your Lordships will to deliver on. recall only too well, on 22 March 2017 Khalid Masood Terrorism is challenging and terrorists fall into a killed five people, including a police officer on duty unique category. They are committed criminals and here at the Palace of Westminster, before being shot by murderers who, in the main, are ideologically disposed armed police. 47 Terrorist Offenders Bill [LORDS] Terrorist Offenders Bill 48

[LORD DAVIES OF GOWER] release. Presumably formulation of that strategy will During my police career, I served for a number of be included in the tasks of the promised royal commission, years in Counter Terrorism Command in the 1980s about which I have asked questions of the noble and when London and other cities were being blown apart learned Lord the Minister both in our debate on the by terrorist activity, creating carnage and crimes scenes Queen’s Speech and by letter, but I still do not know far too distressing to recount. I never want to see that any details of its timing, chairman or terms of reference. happen again. I believe that this Bill will help in some Unfortunately, as Kenny MacAskill MP, a former measure to deter such future slaughter. This legislation Justice Minister in Scotland, said, the nub of the is needed urgently to put appropriate safeguards in problem is that no Government can ever reassure the place for further terrorism offenders on release from public that a terrorist whose outlook is based on either prison. As we sit here debating the Bill, your Lordships a perverted ideology or a deep-seated hatred, whatever will be only too aware of the urgency of ensuring that their religious or racial background, can ever be it receives Royal Assent this week. deradicalised or will never reoffend. Consequently, the It is, as we have heard, a significant Bill that will authorities—particularly the Prison and Probation change the release point for offenders who have committed Service—is faced with an impossible task, but there a relevant terrorism offence and refer them to the are various measures that can be taken to help it. Parole Board at the two-thirds point of the sentence. The noble and learned Lord the Minister, in his The changes will apply to those offenders who are letter of 13 February to all Members of this House, currently serving a custodial sentence for terrorism drew attention to the forthcoming counterterrorism offences, as well as future terrorism offenders who Bill, dealing with sentencing and release, which he said receive a standard determinate sentence. would include further provisions. However, before that, Public safety is paramount, and the Government I have six questions to ask him, some of which were have a duty to consider the tragic events that I have raised, but not answered, in the other place. already outlined to protect those going about their Some noble Lords have made reference to the 2016 daily lives from terrorists who fall within the scope of report by Ian Acheson, which included the following the Bill. As I have just outlined, I firmly believe that sentence: the Bill should apply to all serving prisoners, as well as “There were serious deficiencies in almost every aspect of the to those sentenced in the future. However, that will not management of terrorist offenders throughout the system.” work unless the Parole Board consists of suitably The Secretary of State responded that things had qualified and sufficiently trained personnel. Faith in moved a long way since then. However, the validity of the parole system has wobbled slightly in recent times, that statement must be in doubt following the dreadful but there can be no room for error where terrorism is incidents that the Minister and other noble Lords have concerned, and I too ask that the Parole Board be outlined, and my first question is: what things have properly resourced. At this juncture, I mention the moved? cost of surveillance in manpower and resources in relation to suspected terrorists. It is exceptional and The Secretary of State also said, has accompanying risks, as appears to have been the “rest assured that whatever resources are needed in order to deal case with Sudesh Amman in the Streatham attacks. with this issue, we will devote them to this particular line of important, intensive work.” In preparing for this debate, I read and was much impressed by the 2015 Acheson review. I noted Financially, he detailed that £90 million had been Mr Acheson’s recent warning concerning the ability of madeavailableforunspecified“counter-terrorismactivity”, the Prison Service to manage terrorism offenders. He in addition to the £900 million made available to stated that he was unconvinced that the Prison Service “support for counter-terrorism”. He also announced had the “aptitude or attitude” to assertively manage extra resources for, terrorist offenders. I am sure I am not alone in being “doubling the number of specialist probation officers”—[Official somewhat worried by his remarks and would welcome Report, Commons, 12/2/20; col. 866.] the Minister’s comments on the Government’s plans and the introduction of more specialist psychiatric to improve this to ensure that the Bill’s objectives are and imam involvement. My second, third and fourth met. questions are: how much of this financial provision To my thinking, this is one of the most important will be made available to the Prison and Probation pieces of legislation that your Lordships will ever have Service; how many specialist probation officers trained to consider in relation to the safety of the public. On to work with terrorists are there; and is there a trained that basis, I support the Bill. specialist in each National Probation Service area? Turning to the all-important deradicalisation programmes, several noble Lords have pointed out 5.35 pm that there is no evidence that any actually work. In his Lord Ramsbotham (CB): My Lords, like my noble summing up in the other place, the Minister mentioned friend Lord Carlile, I am less concerned with the legal theological and ideological intervention and healthy niceties of the purpose of the proposed legislation identity, as well as deradicalisation programmes. This than with the inadequacy of current arrangements leads on to my fifth and sixth questions: what proportion needed to ensure that that purpose can be realised. It of convicted terrorists can regularly attend such is all very well introducing knee-jerk legislation to programmes; and what exactly did the Secretary of ensure that terrorists remain in prison for longer, but State mean when he said that there is a constant the Government should ensure that they have a robust self-searching among those responsible to make sure strategy to try to prevent them offending again on that programmes are properly calibrated? 49 Terrorist Offenders Bill [24 FEBRUARY 2020] Terrorist Offenders Bill 50

Other matters raised in the other place include the Muslim religion is all about. We have not fulfilled possible fusion of the independent review of the Prevent what we should have, by allowing these prisoners to programme announced last year—although it has a continually refresh and re-radicalise themselves. statutory deadline of this August, it still has no named While the noble and learned Lord, Lord Brown of reviewer—withthereviewundertheIndependentReviewer Eaton-under-Heywood, was entirely right when he of Terrorism Legislation, and the appropriateness or talked about the unsatisfactory nature of indeterminate otherwise of current arrangements to deal with the sentences, I believe that in this particular instance all demands of this high-risk, high-level cohort. In his terrorist-related offences ought to be subject to indefinite note on the legislation of 19 February, the independent sentences. These would of course be reviewed regularly, reviewer said that while consideration by the Parole with a benchmark for the number of years at which Board of all terrorists prior to release is sensible and they should be reviewed. to be welcomed, he is unclear why such consideration needs to be delayed until they have completed two-thirds of their sentence, because conditions in prison are so Viscount Hailsham: Will my noble friend consider bad that prisoners may be exposed to worse influences the possibility that control orders,which are less confining, than if they are released. are an alternative to indefinite sentences? In addition to these announced reviews and a tailored review of the Parole Board to make certain that it can Lord Cormack: They may be; that is certainly worth take on the extra workload, MPs recommended scrutiny discussing. However, I still believe that when we are and assessment of deradicalisation programmes and a dealing with these people—bent on mayhem and murder review of the qualifications and certifications of imams of an indiscriminate nature, the most dangerous of and madrassas working in prisons. In other words, whom believe that they are fulfilling a religious purpose there are many more issues to consider than merely —there is a need to monitor them constantly and do keeping terrorists in prison for longer. Therefore, as everything possible to deradicalise them, but to have was pointed out by the shadow Minister in the other sentences that do not present a danger to the general place, a strategic, rather than knee-jerk, approach to public. The first and overriding purpose of the this issue is required. This brings me back to the Government and Parliament is to defend the realm promised royal commission and counterterrorism and all those who live loyally within it. My noble Bill; I look forward to making a contribution in both friend Lady Buscombe was entirely right when she of these. referred to treason. We need a Bill that will really look deeply into these matters. This one cannot. It is necessary and expedient, 5.42 pm but it is not the answer. I very much hope that there Lord Cormack (Con): My Lords, I am delighted to will be a Bill, subject to pre-legislative scrutiny, where follow the noble Lord, Lord Ramsbotham, who was my noble friend Lord Hailsham can pitch his case. We an outstanding inspector of prisons. I very much hope need to take time over that Bill. The one we are that my noble and learned friend who will reply to the dealing with is addressing the emergency, but terrorism debate will reflect on what he has said and try to give is here to stay for the foreseeable future, probably well full answers to the questions that he very reasonably beyond all our lifetimes and those of our children. If asked. we are truly to protect society—bearing in mind, as I support this Bill. I believe that it is necessary, but other Peers have said, that there will be not hundreds this is not the answer to the problems that we have but thousands coming back from Syria in the coming been discussing this afternoon. The elephant in the two or three years—we have to have a system that is as Chamber is the Bill that is yet to come. It is crucially watertight as we can make it. important that we get it right. We owe an enormous amount to our police forces. There are two things that we have not taken sufficiently St Paul’s might well have been blown up without the carefully into account when we look at modern terrorism. brave action of an undercover officer. We owe a great I first entered the other place almost 50 years ago. The deal to those who serve in our prisons, but they have to first 30 or more years of my time there were punctuated work to an agreed strategy—one mistake is too many. by terrorist acts, perpetrated for the most part for In a previous incarnation, I had the great pleasure of political reasons by people who wanted to kill others having the noble Lord, Lord Blair of Boughton, as a but did not want to kill themselves. We are now pupil. He was right when he talked about Mr Bumble dealing with a wholly new dimension. I could not help and the law being an ass. Those officers who shot reflecting on this at the weekend, when I read the down that man in Streatham High Road should never disturbing case of the woman who had become radicalised have been in that position. Let us haste this Bill and a convert, and decided that her mission in life was through tonight and then have a long and determined to blow up St Paul’s Cathedral, and as many people as look at how we tackle the problem in the future. possible, in an explosion. There is somebody who will have to be looked at for a very long time. 5.49 pm I suggest that we need a radical approach to dealing Baroness Jones of Moulsecoomb (GP): My Lords, with terrorism. I believe that there should be a special it is always a pleasure to follow the noble Lord, court devoted to terrorism and a special parole board Lord Cormack; as usual, I agreed with one or two of devoted to dealing with terrorists. In our prisons, it is the things he said. I oppose this Bill. For me, it is a crucially important that there are those who can panicky little piece of legislation that has come out of deradicalise because they know what the authentic two terrible events. It fits the definition of the politician’s 51 Terrorist Offenders Bill [LORDS] Terrorist Offenders Bill 52

[BARONESS JONES OF MOULSECOOMB] European Court of Human Rights, establishes that syllogism: something must be done—this is something, proposition—most recently, as I suggested to the noble so it must be done. It is illogical to think that keeping Lord, Lord Marks, the decision of the European court somebody a little longer in prison will solve any of our on 12 November 2019 in the case of Abedin v the problems. I suppose that the Government will feel that United Kingdom. The noble Lord, Lord Marks, then they can then at least say that they are being tough on argued that there is a common law principle against terrorism, but that is plainly not true. If they were retrospectivity. Well, there is certainly a presumption being tough on terrorism, they would think about against retrospectivity, but it is not an absolute rule. what happens to people in prisons, as well as before The question in every case is whether there is a they go into prison and, very definitely, after they justification for acting in a retrospective manner. It come out. Simply keeping people in prison a little seems to me that, in this context, there is such a longer is no use if they come out just as dangerous, justification. Offenders are about to be released early just as hate-filled and just as angry, or even angrier, as without a Parole Board assessment of whether that is when they went in. safe. No doubt the Government should have acted This Bill will not solve the problems of terror unless more speedily to address this problem, as the noble the Government sort out proper deradicalisation in Lord, Lord Harris of Haringey,and others have suggested, prisons. Of course, the severe cuts to prison budgets but any fault does not alter the situation in which we over the last decade of Conservative austerity cannot now find ourselves. My noble friend Lord Carlile is no have helped improve the quality of supervision in our doubt correct that further measures are needed to prisons. Some are now squalid dumps, in which disengage terrorist offenders from their perverted ideology, radicalisation can fester rather than be solved. If the but again that does not remove the urgent need to easy access to drugs in prison is any parallel, extremism disapply the right to automatic early release of those could spread quickly and we will have a serious epidemic. who pose a real danger to the community. The Government need to take back control of our I agree with the Government on all of that, but I prisons and put in the resources to solve these complex have two concerns about the Bill. The first is why it problems, which cannot be fixed by this Bill. Just does not provide for a Parole Board assessment by the talking tough is really not enough. time these offenders have served half their sentence—a The scope and application of the Bill are very point made by the noble and learned Lord, Lord Falconer important. I have listened to the learned arguments of Thoroton, and my noble friend Lord Anderson of made this afternoon; I hope that the Government have Ipswich. As noble Lords have heard, the Bill confers a listened to them too and will perhaps take some lessons right to a Parole Board assessment only after two-thirds from them. But I have also been contacted by an of the sentence has been served. Since these offenders animal rights activist who is currently serving a prison were previously entitled to release after half their sentence and is due for automatic release in the summer. sentence, the proportionate step to take to meet the This person was visited by a Prevent officer, who told mischief that there is currently no safety valve of a them that their release date has now been scrapped Parole Board assessment may be to provide for a due to the new legislation going through. I do not Parole Board review after half the sentence has been believe that this Bill would have that effect; the Prevent served. That would mean that only those assessed as officer is either behaving in an oppressive manner or is safe to be released early would be so released. Indeed, severely misinformed. Will the Minister please reassure the effect of the Bill will be to keep in prison those me, and correct this Prevent officer, by making very who have served half their sentence, who would be clear that the legislation will not affect the sentences or assessed by the Parole Board as safe to be released. It early release of non-violent environmental, animal is unfortunate that the Minister did not address this rights and social justice political prisoners? issue at all in his opening remarks, despite the fact that It has been an interesting debate but, unfortunately, there is an amendment down. I very much hope that the present Government are far too arrogant to listen he will enlighten the House on this matter in his to the wise words that have been said in this Chamber. closing remarks. I deeply regret that and hope that, in the future, My second concern is that the Government have perhaps they will think twice about bringing something not followed the recommendations in the 2009 report so panicky to this House. of your Lordships’Constitution Committee on fast-track legislation, a matter which, again, the Minister did not address in his opening remarks. I was a member 5.52 pm of that committee in 2009 and, like the noble Lord, Lord Pannick: My Lords, I agree with the Government Lord Beith, I remain a member. The 2009 report that the changes to the early release provisions which recommended that when fast-track legislation is enacted, will be introduced by this Bill are not a retrospective there should be a presumption of a sunset clause as a increase in the offender’s penalty, in breach of their safeguard, because the normal process of parliamentary rights under the European Convention on Human scrutiny would not have occurred. It seems all the Rights. It is well-established that the penalty imposed more important that the Constitution Committee on the offender is the term of years which he or she recommendation should be applied in this Bill. As receives when sentenced by the judge: four years, for your Lordships know,relevant parliamentary committees example. An alteration in the early release provisions that would normally scrutinise this Bill have not yet within that four years does not affect the penalty, and been appointed; I refer to the Joint Committee on so such a change may be imposed on serving prisoners. Human Rights, the Justice Committee, the Home A long line of cases, both in this jurisdiction and in the Affairs Committee and the Intelligence and Security 53 Terrorist Offenders Bill [24 FEBRUARY 2020] Terrorist Offenders Bill 54

Committee. None of these has been appointed yet—I have the right training—they are not trained to be find that extraordinary—and, therefore, they have not welfare officers and counterterrorism experts as well been able to scrutinise this Bill. as spiritual advisers. A programme of rehabilitation We are told that the Government plan to introduce can include, for example, providing ideological challenges a counterterrorism Bill later in this Session, dealing to extremist ideology, improving educational and with sentencing and release, but we all know that such vocational training, or offering volunteering work. plans do not always come to fruition. Indeed, the But, as Dr Ibrahim points out, it needs to be overseen noble and learned Lord had that experience in relation by a single trusted mentor who can build a relationship to the online courts Bill; we are still waiting for it to of trust and be relied on to guide a person in the right come back. Bills that are anticipated do not come direction. An advisory board has been suggested, therefore, forward for a variety of reasons. It seems therefore comprising UK and international Islamic scholars, to very unfortunate that we are being asked to enact, on a advise Her Majesty’sGovernment and the Prison Service fast-track basis, a Bill that does not contain a sunset on tackling extremism in this way. Such people exist clause. I hope that the Minister, in closing the debate, and are available and willing to help. will address that matter. Noble Lords may wonder why I am speaking on this issue. Some four years ago my friend Dr Mustafa 6 pm Mohamed and I were discussing the issue of imam training in the UK, as I explained to him how the Lord Leigh of Hurley (Con): My Lords, it is always training of rabbis had developed in the UK. The an honour to follow the noble Lord, Lord Pannick. I Jewish community recognised the need for rabbis to be welcome this Bill, which honours a promise made by trained in British culture. It proved to be a prescient the Justice Secretary on 3 February. decision, as there was a massive destruction of many—if The situation is very serious. Terror attacks are not most—learning centres in Europe by the Nazis. unlike anyother criminality and require specific legislation, This led to us working up a paper to see if we could possibly with new offences and punishments—which, achieve apprenticeship status for those seeking to become I gather, may be forthcoming, as the noble Lord, imams, and indeed for other clerics. Sadly, the initiative Lord Pannick, indicated. Those who have perpetrated ran into difficulties, despite constructive meetings with such attacks, and might do so again, deserve the full Sir Oliver Letwin, then Chancellor of the Duchy of force of the state as it does everything in its power to Lancaster at the Cabinet Office—and indeed with protect citizens against violent extremists. some folk from Number 10. The noble Baroness, Lady Jones of Moulsecoomb, Now, however, seems the time to re-energise these might be surprised to hear that I agree with much—well, ideas, as we face the consequences of a failure to some—of what she said. She is indeed astonished. I control radicalisation in prisons. It is of course an will raise some issues relating to what is happening international problem. In the Netherlands, three inside prisons that has led to the position we find programmes for Muslim chaplains were set up in ourselves in, with—albeit a relatively small number universities in 2005-06, but in 2013, sadly,two announced of—potentially highly dangerous people. their closure. As recently as 18 February—a week Clearly, the Government have taken considerable ago—President Macron announced measures to tighten and important steps since the Acheson review, as the controls on foreign financing of mosques and said, Minister himself correctly noted, in July 2019. Likewise, “We will train imams in France, so they learn our the Healthy Identity Intervention programme is welcome, language and the laws of the Republic.” but it is voluntary, small-scale and clearly easy to In conclusion, faith training is difficult. There are game. conflicting demands, such as a government requirement Prisons can provide near-perfect conditions for radical, for mixed classes, which clashes with some ideologies. religiously framed ideologies to flourish, but they can But, as Mohamed Amersi of the Faith in Leadership also be incubators of peaceful change and foundation has pointed out, there would be substantial transformation—a positive thought that I want to advantages if programmes of Muslim faith leadership develop. The answer is not just policies but people. training were validated in accordance with national Frequently, the key will be the prison imam, and it is qualifications. At the same time, we need to recognise the training of these people I want to touch on, as I the need to expand existing courses and programmes have been looking at this area for some four years with for Muslim chaplains in Islamic pastoral care and the assistance of Dr Mustafa Mohamed and latterly counselling. Mr Mohamed Amersi, both well-known interfaith As this Bill passes into legislation, will the Minister leaders. agree to facilitate a meeting with the Government for Radicalisation in prisons, an issue that has been the aforementioned Muslim thought leaders, to address mentioned in this debate, was addressed last April by the problems that have led to the need for this Bill? the distinguished academic, research professor Dr Azeem Ibrahim, who pointed out in his paper that substantial 6.06 pm investment is needed to provide expert training for Lord Marlesford (Con): My Lords, I do not welcome imams and chaplains on how radicalisation works the Bill but I support it, because it is needed to protect with vulnerable inmates, and how to respond to and our national security from the deadly threat posed by deconstruct their destructive ideologies and attitudes. convicted terrorists who, if released from prison, may He suggested that we need an infrastructure of still believe that their mission is to kill without qualified experts, such as theological intervention discrimination, under the banner of Islamic jihad. providers, to assist those imams who simply do not There have been eight such attacks in Britain since 55 Terrorist Offenders Bill [LORDS] Terrorist Offenders Bill 56

[LORD MARLESFORD] especially in high-security, category A prisons is very March 2017. Many others have been detected and high. They only have a capacity of 5,600. Belmarsh prevented. I start, therefore, by offering a heartfelt prison, built for 760 prisoners, is regularly overcrowded tribute to our security services—MI5, MI6, GCHQ with as many as 70 more. Each inmate costs £40,000 a and the anti-terrorist police. year. The most expensive, which has been referred to Before considering the Bill in more detail, however, several times, is Whitemoor in Cambridgeshire, at we should face up to what lies behind it all. My noble £58,000 a year. friend Lord Leigh has just indicated some of that. In Secondly, the cost of close supervision of those recent decades, a belief based on the teachings of the who are released can be enormous. The prospect of Wahabi sect of Sunni Islam has gathered momentum detection should be a deterrent, especially as it has among a small but growing minority of Muslims. The recently ended in the death by police shooting of seven belief is that there is a religious obligation to impose terrorists. In Britain, when life is threatened, the police theocratic government, by whatever means are needed, shoot to kill. Unfortunately, some jihadists have been on nation states throughout the world. It is generally groomed to seek martyrdom. The Government are described as political Islam. right to deny the return to the UK of those who have In many countries the dormant seeds sprouted with left to take up arms with ISIS. the Arab spring of 2011. They flowered with astonishing We have a really dangerous threat ahead of us. vigour with the launch of Islamic State from the Iraqi Inevitably there will be difficult balances to strike branch of al-Qaeda on 8 April 2014. IS had declared between homeland security and civil liberties, as there the aim of establishing a worldwide Islamic caliphate. were in World War II, but we are once more under It swept through much of and Syria. After five attack. The overriding motto must be, “Britain’s safety years of struggle, IS lost its last territory with the first”. That is why I support the Bill. capture of Baghuz in Syria on 23 March last year. The embers of IS, however, still glow throughout the world, 6.13 pm including in British prisons. Lord Evans of Weardale (CB): My Lords, I welcome IS is, of course, a cruel distortion of peaceful Islam the Bill for two slightly different reasons. First, the and has been, and will continue to be, rejected by the police and security services are faced daily with acute vast majority of Muslims in the UK. I fear, however, and difficult priority decisions about to which of such that there is little prospect of effective deradicalisation a large number of potential terrorist targets they should of those who believe that they act with religious apply their surveillance resources. By taking the decision authority, as my noble friend was saying. Only when to put surveillance on target A, you are by implication the leaders of Islam themselves seek to extrude and deciding not to put it elsewhere; that is where the risk expel—or,in Muslim terms, declare as kufar or un-Islamic arises. Against that background, it is absurd to have infidels—jihadists who seek to justify their violence, the situation that appears to have applied with the will there be any real hope of proper deradicalisation. Streatham attacker—to release from custody a convicted Sadly, there is little sign of the leaders taking such terrorist who was believed to pose an immediate and initiatives. On the contrary, there has been prolonged direct threat, and to land that problem on to an and determined advocacy of exactly such beliefs in already stretched system. The fact that that individual some UK mosques. continued to pose a threat while subject to armed surveillance demonstrates the difficulty in controlling The Muslim Brotherhood, founded in Egypt by this sort of risk outside a prison environment—and Hassan al-Banna in 1928, has been the political arm we know it can be difficult even within that environment. of al-Qaeda, rather as Sinn Féin was of the IRA. One Anything that can be done to reduce the sharpness of of its leaders, Ibrahim Munir, lives in Britain. The those prioritisation decisions is worth doing and Muslim Brotherhood gains sustenance from both Qatar important, to keep members of the public safe. and Turkey. I have never heard the UK Muslim Secondly, I support the measure because of what Brotherhood publicly condemning IS acts in this the noble Lord, Lord Carlile, referred to as the current country—not even the terrible May 2017 Manchester fiction of sentencing policy. What you see is not what bombing which killed 22 people. In that case, those you get when it comes to sentencing. That undermines alleged to be responsible were the three Abedi brothers, trust and credibility in the criminal and judicial system. who had deep al-Qaeda roots in Libya. Anything that moves the dial towards more alignment The closest that Sunni Islam has to a world leader between the sentence and how long somebody actually is, perhaps, the Sheikh and Grand Imam of al-Azhar serves is highly desirable. The Bill goes some small way University, founded in 970 AD in Cairo. On 2 December towards that aim. last year, the long-time sheikh, Dr Ahmed al-Tayeb, The House has heard quite a lot about deradicalisation. refused to denounce ISIS as un-Islamic but declared We need to be concentrating resources and intellectual that, under sharia, it committed a great sin by causing firepower on this problem. It is one of the key elements “corruption on earth”. He went on to say that, under of the Government’s Prevent agenda, which has been sharia, drinking alcohol is also a great sin but that running for nearly 20 years. As everyone who has those who do so cannot be denounced as infidels. So, followed this knows, it is a difficult process to design tragically,we cannot yet expect support for deradicalisation and implement. I have had the opportunity of visiting from the supreme leaders of the Islamic world. a number of deradicalisation programmes in various So what are the options and implications? First, parts of the world; not only in the United Kingdom what is the potential impact of the Bill on the capacity but in places as different as Singapore and Saudi and cost of our prison system? The cost of incarceration, Arabia. The programmes in place in those countries 57 Terrorist Offenders Bill [24 FEBRUARY 2020] Terrorist Offenders Bill 58 are extremely varied; some are community based, others “It is said that keeping terrorist prisoners longer in custody based in the prison system. None of them is anywhere will protect the public … But the question is whether keeping a close to guaranteeing successful outcomes. non-risky prisoner longer in custody, rather than releasing them, will protect the public.” There are clearly successful cases of individuals With respect, that seems to me to beg the central having been deradicalised; they have gone through the question: how do we know whether someone is non-risky? process and taken the decision to leave behind their Rehabilitation has never been an exact science. It fails extreme views. However, it is difficult to have confidence more than it succeeds but, as a number of noble Lords that that will be the outcome in any particular case. I have said, the problem with deradicalisation is particularly am therefore reluctant to rely on that as a way of acute. As the noble Lord, Lord Evans, has pointed trying to reduce the dangers on our streets. It is not out, a number of attempts all over the world have that it is not important: it is not sufficient. The corollary failed to establish a really satisfactory way of proving is that decisions, even by a well-informed and professional to anybody that deradicalisation has worked in any body such as the Parole Board, are always going to be particular instance. uncertain. Therefore, any decision to allow a convicted I remember as a Justice Minister having a number terrorist to leave prison before the end of their sentence of conversations with my counterparts in the European carries significant risk. The nature of that risk is quite Union, all of whom had the same problems. Whatever intense; we should therefore limit the amount of time the shortcomings of our deradicalisation programme, that individuals in that category spend out on the it was considerably more advanced than those of most streets when there is the opportunity to keep them European countries. It is because of the warped ideology inside. The Bill moves the dial on that aspect; I therefore that often lies behind the terrorism that difficulties are support it. particularly pronounced, and I take the point of the noble Lord, Lord Cormack, that it is very different 6.18 pm from the form of terrorism we were confronted with in Lord Faulks (Non-Afl): My Lords, the Lord Chancellor the 1960s and 1970s. has made a statement, under Section 19 of the Human I understand from the Minister and what was said Rights Act, regarding the Bill’s compatibility with that in the House of Commons that the Parole Board will Act and has firmly defended his stance in the House of have special expertise to help decide whether it is safe Commons. I agree with the noble Lord, Lord Pannick, to release these prisoners, but even very experienced who is not in his place, that the case law, both here and High Court judges, probation officers and those with in Strasbourg, supports the Government’s analysis special knowledge are still confronted with the almost that there is no conflict with Article 7. However, it impossible task of assessing whether someone is safe must be remembered that the courts here do not have or not. The fact is that in one case, Fishmongers’ Hall, to follow the Strasbourg jurisprudence; they merely the prisoner had fooled everybody and in another, the have to take it into account. So one cannot entirely Streatham case, he had not fooled anybody at all. rule out the possibility of a challenge; I hope there is However, even then, with police and security officers not one. right on the scene, he was not prevented from seriously Whatever the legalities, the fictional man or woman wounding those at the scene. in the Dog and Duck, where they discuss these things, What do we do? The Government will bring legislation, may not be well versed in Article 2 or Article 8 of the and nobody can pretend that this Bill is anything but a European convention—the right to life and family temporary response. The noble Lord, Lord Cormack, life—Article 7 or even the presumption against referred to the return of IPP prisoners, and I stand retrospectivity. But they might ask: “What are the behind the noble and learned Lord, Lord Brown of Government doing to protect me? What about my Eaton-under-Heywood, who has been a doughty human rights?” We must have considerable sympathy champion of those unfairly affected by the previous with that concern. regime. He has been absolutely right to pursue the The noble and learned Lord, Lord Falconer, has policy as he has, but we are talking about something made the very real point that we should make sure that different here. The noble Lord, Lord Cormack, talked the Parole Board has a chance to consider these prisoners about the threat to St Paul’s and to individuals. It before they are released, but I gently remind him that needs a radical change of thought. Unfortunately, the shadow Minister said in the House of Commons: civil liberties will be threatened, but the Government “If this Bill is not passed and rushed through its stages over have to do their job to protect the public. the next couple of weeks, terrorist prisoners will be on our streets, Control orders have been raised, along with their without any assessment of risk or dangerousness by the Parole somewhat more anaemic cousins, TPIMs. I am afraid Board. That does not leave the House in the easiest of positions, that control orders would not have helped in Streatham; but it is the reality of the situation before us.”—[Official Report, however close the control, it would not have done any Commons, 12/2/20; col. 873.] good. Whether we have a special court or IPP sentences, Of course I will hear what the Minister has to say, but we must seize this problem. This is a short response to I wonder whether it is feasible to carry out the sort of a particular difficulty, but it does not begin to address detailed and thorough Parole Board assessment that the real problems we face. the noble and learned Lord has in mind. At the heart of the analysis is when, if ever, it would 6.24 pm be safe to release a prisoner who has committed a Lord Macdonald of River Glaven (CB): My Lords, terrorist offence. Jonathan Hall QC, the Independent this Bill places convicted terrorist prisoners in a special Reviewer of Terrorism Legislation, whose distinguished category and makes special rules for the administration predecessors have already spoken in this debate, said: of their sentences. I consider this approach justified. 59 Terrorist Offenders Bill [LORDS] Terrorist Offenders Bill 60

[LORD MACDONALD OF RIVER GLAVEN] 6.28 pm Terrorism offences represent a uniquely broad and Lord Blencathra (Con): My Lords, I support the dangerous threat to not just the public but the organisation Bill, as it is an essential stop-gap measure. When one of society. They are a twin attack on both individuals looks at the offences in Schedule 1, it beggars belief and the body politic. In the face of this analysis, it that these terrorists can automatically be released half seems to me actively perverse for a state to grant early way through their sentences even if they are still a release to terrorist prisoners who are believed to remain threat, spouting fundamentalist hate and vowing to a threat to the public. The Government are right to kill again on release. abolish the automatic right to early release in these cases and, by altering the purely administrative Let us face it, the law on sentencing both generally arrangements around the relevant sentences in this and for terrorists and serious offenders is a mess and way, the Government do not offend any presumption has been for some time. In my opinion, Governments against retrospectivity. This change is proportionate. have made two main mistakes over the years. The first It strengthens public protection and offends no principle is that maximum sentences are too low. The second is of law. letting courts decide on the sentences served rather than introducing mandatory minimum sentences for What of the provision that increases the period to categories of terrorist offences that the courts would be served before release may be considered? My view have to apply if someone was found guilty. is that this, equally, is a proportionate provision that The Minister has said that the Bill applies to standard strengthens public protection and offends no principle determinate sentences where convicts are released of law. To alter the period that must pass before a automatically at the halfway period. That will now be prisoner may be considered for early release is not to increased to two-thirds of their sentence with a Parole alter the original penalty that was imposed by the Board review. That is still grossly inadequate, since sentencing court. To do that would precisely offend there should be no release until they are safe or the presumption against retrospectivity, but the deradicalised. That is why indeterminate sentences Government’s proposal does no more than alter a were so good and I regret that we have lost them. particular aspect of that original penalty’simplementation. The penalty itself, the sentence imposed by the judge, My noble friend says that there will be a proper remains the same.I do not believe that such a modification counterterrorism sentencing and release Bill coming in any way engages a presumption against retrospectivity. soon. I welcome it—it is long overdue. At the moment, only the worst offenders get a life sentence, but what A justification for this measure is readily apparent: does that mean in reality? When capital punishment strengthening public protection from a uniquely dangerous was abolished, we were told that, in the absence of the category of offender. The uniqueness of the danger death penalty, people would get life in jail instead. represented by terrorist offenders lies in the fact that No, they do not. We all know that most sentencing in their crimes are motivated by ideology and that this our courts is a lie and a life sentence is, on average, ideology positively and precisely mandates the commission 15 years. Of course, we hear of the occasional 40-year of further similar crimes. This means that every sentences for vile child killers, such as Huntley, but the proportionate step must be taken to ensure that the vast majority of killers are out in 15 years. prisoner’s ideology has been sufficiently tempered before On terrorism sentencing, there is the sentence for early release can be considered. In my view, that easily offenders of particular concern, who are eligible for justifies a requirement that a longer period should be release after half their sentence. If someone is regarded served by convicted terrorists, as opposed to other as a criminal of particular concern, why in the name prisoners, before they may be considered for early of God is he even considered for early release? He release to allow for a deeper and more intensive should serve the whole term. The problem is—as examination of this important question than might noble and learned Lords, who are much more learned otherwise be available in their case. than I, have said—that the system of sentencing in our I strongly agree with the part of my noble friend courts is based on a big lie. Judges may say to the Lord Carlile’s speech on deradicalisation and probation convicted person, “Youare a dangerous criminal and I provision and its present hopeless inadequacy.In isolation, sentence you to 10 years’ imprisonment”. Everyone in without more, this legislation just kicks the can down the court, except the victim, knows that this is a lie—it the road—not very far in some cases, because we are is in fact only five years. We must get back to honesty dealing with prisoners who will be released, even under in sentencing, as was advocated by my noble friend the provisions of this Bill, in the near future. We need Lord Howard of Lympne when he was Home Secretary, to develop multiagency deradicalisation programmes, where convicts serve a whole term, with a maximum but I agree with my noble friend Lord Evans of of, for example, 10% off for good behaviour or 20% off Weardale that these do not guarantee anything. We for exemplary behaviour, however we may define that will also need to develop programmes for post-release behaviour, which could of course include successful supervision and, if necessary, control. Because these deradicalisation, rare though that will be. programmes would only follow criminal conviction My opinion on the whole problem is that sentencing for terrorist offences, in my view they could easily— is too soft generally. Last week, a Member of the other depending on how they are designed—be proportionate place got Answers from the Ministry of Justice—I and appropriate in these particular cases. All this consider that a misnomer if ever there was one—saying needs thought, effort and a good deal of investment, that two serial offenders with 390 and 291 previous but if the Government really wish to protect the public convictions were spared jail. What planet were these they should urgently commit all three. judges on? The courts are failing again and again to 61 Terrorist Offenders Bill [24 FEBRUARY 2020] Terrorist Offenders Bill 62 lock up serial offenders. Of course, community sentences cannot be very sensible. At the same time, I want to must be tried for first-time and minor offenders, but question whether the retrospective increase in the period habitual, serial and terrorist offenders must receive of imprisonment before consideration of release, which sufficiently long sentences to protect the public. Too is quite different from automatic release, is necessary many of our courts are obsessed with rehabilitation and therefore justified. If it is not necessary, then it and have forgotten that the first rule of sentencing is certainly is not justified. I also question whether the punishment, then protection of the public and then, Bill, on its own, can achieve the Government’s objective ideally, rehabilitation. As my noble friend Lord Howard of keeping the public safe. of Lympne said some time ago, “Prison works”, and I Along with many noble Lords, I very much support look forward to that doctrine being advocated when the involvement of the Parole Board in release decisions we get the terrorism sentencing of offenders Bill in due for terrorist prisoners, as established in Clause 1(2), course. albeit that the scope of this change is limited to a Finally, I admire the enthusiasm of those who try particular category of terrorist prisoner—I learned to rehabilitate convicts. Rehabilitation can work for that from my noble and learned friend Lord Judge; I many categories of people, except two: paedophiles or had no idea about such things. With other noble sex offenders and Islamic fundamentalists. You cannot Lords, I agree very strongly with the noble and learned change or rehabilitate a person’s sexual mores. Would Lord, Lord Falconer, that the involvement of the anyone dare to suggest that you could turn a heterosexual Parole Board in deciding whether these prisoners can into a homosexual or vice versa through therapy? Of safely be released is surely a sufficient safeguard, without course not. Those who advocate such so-called cures needing to resort to the automatic extension of the are rightly condemned. Why then do we persist with period of imprisonment prior to review. I am sure the the belief that someone who believes that rape is the noble and learned Lord the Minister will respond to normal sexual behaviour or that sex with children is the very powerful case made by the noble and learned okay can be cured by talks or therapy? It cannot be Lord, Lord Falconer, and I look forward to what he done. has to say. My experience of four years in the Home Office is My other concern is that, in the absence of highly that many young males get into crime and escalate professional deradicalisation programmes for terrorist upwards, from petty stuff to theft and robbery. Many prisoners who are a risk to the public while they are in grow out of it by age 25 and others can be rehabilitated prison, the likelihood of their release by the Parole with training, a job and housing. These people, however, Board is just about zero. The Minister referred to do not have a deep-seated belief in the fundamental various interventions in prison but with no indication rightness of theft or robbery, nor are they part of an at all of their efficacy or their availability to prisoners. ideology or theocracy where many of their elders They might be—and I think they probably are—small praise it as their sacred duty to steal or rob. But projects here and there, but there is no comprehensive Islamic fundamentalist terrorists are in a totally different availability of highly effective and well-proven services. category. With very few exceptions, they cannot be The Minister will be aware of the warning by Jonathan deradicalised or rehabilitated out of their deeply held Hall QC, the Independent Reviewer of Terrorism beliefs, especially when there are tens of thousands Legislation, that this Bill could make terrorists more like them around the world with similar beliefs. dangerous on their release. Far from being deradicalised Let us not be naive about our ability to rehabilitate in prison through carefully constructed interventions, terrorists. They are a serious threat and, in the vast Hall warns, inmates could be exposed to worse influences majority of cases, will continue to be so. They should in prison than outside. Hall also makes the important serve very long prison sentences. This Bill is a small human rights point that this lengthening of the time but necessary step to protect the public, but I look period behind bars before consideration will apply to forward to that more overarching legislation with terrorist prisoners even if they are no longer a risk to minimum mandatory sentences set down by Parliament the public. At best, it is a terrible waste of taxpayers’ for different categories of offence—five, 10, 15 or 40 years, money and, at worst, a policy which will increase the as appropriate. Parliament should set minimum risks of attacks on members of the public as well as mandatory sentences, with no automatic release for breaching the human rights of the prisoners themselves. anybody, and the courts should implement them if someone is found guilty. I believe that it is time for The Minister will also be aware of the warning of Parliament to properly protect the public. If that Dave Thompson, the outstanding Chief Constable of means a dozen or so new supermax prisons, I understand Police and vice-chairman of the National that the Chancellor of the Exchequer has a bit of Police Chiefs’ Council, that although he supports the spare cash to splash around at the moment. legislation—as I do, in general terms—it will only defer the problem and will not solve it. The crucial element in keeping the public safe is what goes on 6.35 pm within prisons and with prisoners, rather than length of term. My understanding is that deradicalisation Baroness Meacher (CB): My Lords, I rise to express and disengagement programmes have been underfunded my support for the Government’s determination to and poorly executed over recent years. act in response to the imminent release of high-risk prisoners. I agree with one thing that the noble Lord, The main deradicalisation programme in prisons is, Lord Blencathra, said—I do not think I agreed with of course, the Healthy Identity Intervention programme, anything else—and that is that the automatic release which delivers one-to-one individually tailored services. of high-risk prisoners half way through their sentence One consequence of the 40% cuts to Ministry of 63 Terrorist Offenders Bill [LORDS] Terrorist Offenders Bill 64

[BARONESS MEACHER] have said, quite rightly, that the can may be kicked Justice budgets is that, when prisoners say they are down the road but it will not be kicked terribly far. I willing to on a programme, they cannot get on it do not mean the knee-jerk—to use the term of the before their release date; thus they are incredibly noble Lord, Lord Ramsbotham—“Let’s bang them dangerous, and we have not been able to do anything up for longer because prison works,” or as the noble about it. The pilot showed that the programme was and learned Lord, Lord Falconer, put it more delicately, well received by facilitators and participants, which “in response to public pressure.” The violence both in was helpful, but we will not know whether it actually our prisons as well as outside gives the lie even to works for yet another two years. prison working for the period that the prisoner is I hope that the Minister will respond positively to inside. the thoughtful proposals made by the noble Lord, Most of the discourse has been about punishment—this Lord Leigh of Hurley, because imams have a very is bound to be regarded as an extension of punishment— important part to play in this work if they are moderate but what about rehabilitation? I was taught that there and sensible, which I think was what the noble Lord are three connected objectives in the sentencing of was suggesting. offenders,which ironically the victims of the Fishmongers’ Another concern is that the Acheson review Hall attack would have learned as students at the recommended establishing three separation units to Cambridge Institute of Criminology. detach the most radical inmates from the rest of the We all recognise that this is not easy territory. prison population, but only two are open. What plans Clearly, the process of deradicalisation, if that is the do the Government have to open the third one, because way to put it, is hugely complex. Can it be the same for without those sorts of units, we are building up problems each individual in their circumstances? What are the for the future. The noble Lord, Lord Marks, has factors at play in each case and what are the risks? already referred to the other major concerns about the After the Fishmongers’ Hall attack, Usman Khan’s Government’s refusal to accept the great majority of solicitor was reported as saying that none of the the Acheson recommendations. programmes to which his client was exposed tackled To introduce this Bill in the absence of serious the underlying ideology and that he wrote to organisations investment in deradicalisation programmes and evaluation outside the prison system requesting help for his client. of those programmes—we have to prove that they So this must be a moment for focusing on the programmes work—will be inordinately expensive for the taxpayer. by investing in research into what has the best prospects People will just have to remain in prison for very long of success and investing in specialists who can administer terms, which I am not sure that I am entirely happy them. The Minister must know as well as anyone from with if there is an alternative, and that is effective a department which has suffered 40% cuts that the deradicalisation, which has to be better for everybody. probation service is buckling, and in any event, this is Are the Government aware of any such programmes a very specialist area. We should share the success that have been proven to be effective? I do not have stories too. In summary, we should evaluate where we that knowledge, but perhaps the Minister does. are and where we should be going. Finally, will the Government consider amending The Parole Board, too, carries a huge responsibility. the Bill, first, to withdraw the change to the minimum I acknowledge its expertise, but what extra support period of imprisonment from a half to two-thirds of a based on the best developing research and advice will sentence before consideration for release, in response it receive? Some risks are known within the system, as to the point made powerfully by the noble and learned we have been discussing; otherwise, Sudesh Amman Lord, Lord Falconer of Thoroton? Secondly, will they would not have been under close observation in Streatham. establish proven deradicalisation programmes as essential That must have been a huge cost, and as the noble services for all terrorist prisoners? I look forward to Lord, Lord Evans of Weardale, reminded us, the hearing the Minister’s response. resource is finite. Like others, I am puzzled about the non-use of 6.41 pm TPIMs, although I have heard the criticisms of them. And what about the conditions in our prisons, which Baroness Hamwee (LD): My Lords, we have heard are widely thought to be breeding grounds for some powerful and thoughtful speeches, but that is radicalisation? This measure will add numbers—not what this House does well. I do not want to add to the that many and probably not for very long—to an debate on the retrospective effect of the legislation and environment which of itself is a risk, putting in danger the distinction between sentences imposed before and those who are susceptible but who have been convicted after these provisions come into force—there has been of low-level offences or, indeed, completely unrelated a lot of discussion about the jurisprudence—but I offences. have wondered why we are using the term “retrospection” rather than “retroactive”. However, how the step is What does the impact assessment for this Bill tell perceived by an offender,their family and their community us? First, as regards the Prison Service, each additional seems to me to be particularly important and worth prison place will incur annual running costs of around pausing to consider for a moment. Human rights £63,500. We are told that that will not cover “additional compliance must seem less of an issue than what is rehabilitative activities”, so what will they be? Indeed, perceived as further punishment. will there be any? On the Parole Board, the impact assessment says that the additional workload I want to say a word about why it is necessary to look at the response to individual offenders who are “will be carried out largely within the current resources.” going to be released at some point. Many noble Lords Is that it? 65 Terrorist Offenders Bill [24 FEBRUARY 2020] Terrorist Offenders Bill 66

I have said that there are success stories, as there are to some extent, we have to trust in the emergency, but in some other countries. The noble Lord, Lord Hogan- it would be better if we could be granted a little more Howe, drew our attention to this. I do not suppose trust as well. that all programmes are fool-proof, but we should not I have seen a letter sent by Peter Dawson, director dismiss them out of hand. Can the Minister tell us of the Prison Reform Trust, to the Lord Chancellor what is being done to learn from these and, dare I ask, and Justice Secretary. It is a letter to which I do not to replace the partnership and co-operation agreement think there has yet been a reply, and no doubt there between the EU and, I think, six south-east Asian cannot be a reply this evening. However, it highlights nations? I mention this because, apparently, a very one point that needs to be considered before any successful programme is being applied in Malaysia for further legislation in this area. Peter Dawson is an bringing people home from Syria. Alok Sharma, in a experienced former prison governor and a distinguished previous ministerial incarnation, said that Malaysia is former Home Office civil servant; I hold Home Office a key counterextremism partner because civil servants in quite a lot of regard. Following the “it is a modern and moderate Islamic nation.” debate on the Bill in the other place, he wrote: The noble Lord, Lord Blair, mentioned a “deep “I noticed your response to the general issue raised by Kate dive”. When will that deep dive take place? It is in the Green MP about recall arrangements during the second reading nature of our role that we are generalists—or at least debate. Youmentioned that either arrest or charge on suspicion of most of us are, although I accept that the lawyers a further offence might trigger recall, but of course recall can and very often is triggered at a much lower threshold. In the specific among us are specialists—and one of the objections to case of Sudesh Amman, in the days following his release, there fast-tracking legislation is that there is no opportunity was sufficient concern about an imminent risk to public safety for for stakeholders and specialists to influence it. Earlier the police to mount a covert surveillance operation by armed today, I was very glad to attend a meeting, or what I officers. Why was that concern considered insufficient to justify a would call a seminar, organised by the noble Lord, decision by the National Probation Service to protect the public Lord Anderson, which was tremendously helpful. We by recalling Mr Amman immediately to prison, as the law currently heard a range of views from people with a lot of allows?” experience. There is no opportunity for considering It might be that the Minister will not be in a position evidence, including evidence from government, to to respond to that in his remarks, but that kind of Parliament’s committees—which, like the noble Lord, scrupulous detail in relation to the law as it currently Lord Pannick, I am amazed are not yet set up, but that stands needs to be considered before the deep dive that is the way the other place operates.There is no opportunity we are promised later in the year, after this specific to consider why the legislation is not to be extended to measure, which broadly we support. Northern Ireland, although I hear what has been said We also heard from the noble Baroness, Lady Jones, about that coming along with the next Bill. I am not about rumours and suggestions that some of those sure whether those in Northern Ireland would regard serving offenders on whom this legislation will bite are that as satisfactory. not of the jihadi persuasion but might be minor The cliff edge at the end of a sentence with no “terrorist” offenders who have been convicted of licence period is not the only timing issue, but a cliff criminality in connection with other kinds of activism; edge with no licence seems to be very unwise—as she mentioned an animal rights activist. No doubt the decisions taken to show that “Something is being Minister can give us some answers in relation to the done” without time for consultation and consideration scope of this legislation and the particular offenders often can be. The powers of the probation service who will be affected. regarding someone on licence can be very tough, It is also right that I echo concerns raised by the including recall to prison, so limiting or excluding that noble Lord, Lord Pannick, and others about the lack possibility cannot be appropriate. of an Intelligence and Security Committee at a time I do not want to be glib, but in summary, and to when we are looking at one version of emergency follow the analogy made by the noble Lord, Lord Harris, terror legislation, and why we do not yet have a Hall will the bleeding start again once the sticking plaster is report. These other mechanisms are there to assist removed? Indeed, are we dealing with evidence-based your Lordships’ House and the public in grave times policy or policy-based evidence? such as these. There cannot just be emergency legislation in a vacuum without the supporting mechanisms that have been provided. 6.49 pm That said, I am prepared to accept the emergency, Baroness Chakrabarti (Lab): My Lords,the Opposition and have no choice in doing so. But if there is an support the logic that terrorist offenders—even minor emergency that requires this legislation—I do not terrorist offenders—should not be released from prison mean this rhetorically; this is really the central thrust on an automatic early-release basis; they should be of my concern—it is, for the most part, an emergency subject to assessment by the Parole Board. That said, of the Government’s own making. It is an emergency it is a daunting burden and a grave duty of any made by all those who failed for at least a decade to legislator to be faced with emergency legislation, let protect the Ministry of Justice from 40% cuts—some alone emergency legislation affecting both public safety of the most savage cuts in Whitehall. That has a direct on the one hand and the rule of law on the other. bearing on the nature of capacity,regime and intervention Inevitably, the Executive present us with an emergency, in the prison and probation systems. It is an emergency and such is the nature of sensitive intelligence—reports of overstuffed, understaffed prisons; some parts of relating to specific offenders and their potential prisons are almost controlled by dangerous offenders. associates—thatwelackequivalentinformation.Therefore, As was eloquently put in the other place by no less 67 Terrorist Offenders Bill [LORDS] Terrorist Offenders Bill 68

[BARONESS CHAKRABARTI] However, your Lordships also heard from my noble than the former Prime Minister, prisoners—most of and learned friend Lord Falconer, the noble Lord, whom will leave at some time—are highly likely to be Lord Anderson, and the noble and learned Lord, far more dangerous when they leave than when they Lord Garnier—another fantasy football team—about entered; that includes prisoners suffering from mental the danger that, whether or not this offends Article 7, health and substance-abuse problems who were convicted it would certainly offend the sense of basic fairness of of minor non-terrorist offences, who have gone into a lot of people and prisoners, which is quite important the estate and been radicalised there. when trying to establish and promote the rule of law in With respect to the comments made by the noble our communities. Lord, Lord Blencathra, it is all very well to talk about I therefore humbly submit to your Lordships that, minimum mandatory sentences or longer sentences in the light of that genuine grey area, and given that, for terrorists, but what about the other prisoners who whatever we would like, these provisions will almost are going into the estate? They would never be sentenced certainly at some point be tested in the courts, it would to life in prison, but they are being radicalised. I have be sensible for any Government to listen carefully even heard serving prison officers speak of their own to the amendment in the name of the noble Lord, vulnerability in this kind of regime—vulnerability to Lord Anderson, and to adopt it if it presents no radicalisation as well as to physical harm. Such are the challenge to the basic public policy ambition of this dangers of this crumbling criminal justice system on legislation: that is, to prevent dangerous offenders its knees, the cuts to the Prison and Probation Service, being released automatically into the community while and a system too much run for private profit and not they still pose a risk. As your Lordships have heard for public safety. I noted the remarks from the other from the noble Lord, Lord Anderson, my noble and side of the Chamber on the failure of privatisation in learned friend Lord Falconer,and others, this amendment relation to accountability and public trust in the system. does no harm to that central ambition of the Bill: that I support the basic principle of this Bill: discretionary in future, those convicted and sentenced of the relevant release in the hands of the Parole Board, rather than offences will not be eligible for release until the two-thirds early automatic release for terrorist offenders. I am point in their sentence, and not without the permission glad that that was the limited measure proposed in the of the Parole Board. If the amendment were accepted light of this emergency, but of course there were many by the Government, those already convicted, sentenced alternative briefings to which we were all subjected and serving in prison would not be released automatically suggesting other things that the Government might as now, as they understood when they were sentenced. have been considering and might yet consider. I have They will have to persuade the Parole Board, but at heard talk of derogations from the European Convention least they will be able to go to the board at the halfway on Human Rights, of leaving it altogether, and of point. It is to some extent a compromise: it does not further experiments in executive punishment without offend the public protection ambition of the Bill but charge or trial—all those have been mooted and briefed goes some way towards that sense of fairness and on. I am grateful to the Lord Chancellor, at least at the instinct against retrospection, whether it would ultimately time being, for adopting this more limited measure, fail in court or not. I will be particularly interested in and indeed for taking the trouble to consider its what the Minister says about that amendment, which compatibility with human rights and to make the can only improve the legal defence ability of this Section 19 statement, as mentioned by the noble Lord, legislation in the domestic court and the Strasbourg Lord Faulks, and others. court. On the point of legality and the desperately interesting However,even with that exquisitely drafted amendment forensic debate that has gone on in your Lordships’ and the wonderful seminar that some noble Lords Chamber on Article 7 of the convention and common enjoyed earlier today, this legislation will be vulnerable law traditions on retrospection—between a positively to challenge if adequate resources are not pumped fantasy football league of eminent lawyers—I will say into the prison and probation system so that offenders this. It is quite something to be faced with the noble have a realistic prospect of engaging with programmes Lord, Lord Pannick, and the noble and learned Lords, and of an early hearing before a properly resourced Lord Judge and Lord Brown, on the one hand, and Parole Board. If those resources are not provided, the my noble and learned friend Lord Falconer and no right to engage in programmes and to appear before fewer than three Independent Reviewers of Terrorism the Parole Board will be completely illusory. Therefore, Legislation—the two former ones, and Jonathan Hall resources go not just to the practicality of trying to with his report—on the other. This suggests a grey keep people safe but to the legality and efficacy of area. I have always been completely forthcoming when protecting prisoners’ rights as well. Resources are the I have believed that a measure is patently unlawful and central problem in all this. will fall foul of the courts: this is not one of those Of course, there is no risk-free society, and this is an cases. It is of course for the Government to investigate incredibly difficult area of public policy and legislation, and ultimately defend the legality of their policy and as all noble Lords have acknowledged. However, it is legislation in the courts. so much harder because of the environment of savage Your Lordships heard the noble Lord, Lord Pannick, cuts that has been created over the past decade. Even and the noble and learned Lords, Lord Judge and beyond that decade, our politics have not served this Lord Brown, eloquently explain the case law that area of policy well; there has been a lack of resources, supports the idea that to retrospectively change release combined too often with overblown rhetoric, and even arrangements within the envelope of a sentence does attacks on the rule of law itself. The rule of law binds not offend the principle against retrospective punishment. not just citizens but Governments too, and if we 69 Terrorist Offenders Bill [24 FEBRUARY 2020] Terrorist Offenders Bill 70 undermine it by blaming judges and human rights Let us be clear at the outset. This Bill is not a instruments, and by treating it as an irritant, that complete answer to the challenges we face with regard message will go home to the public and to those who to terrorism, the ability to counter terrorism, radicalisation feel that they have just cause for disfranchisement. The and the ability to deradicalise individuals. There will rule of law is surely the one thing that binds us all be a great deal more to do, and the Government have together, not just in your Lordships’ House but in this made it clear that they intend to follow through and country, even in polarised and difficult times. I hope do a great deal more in this area, including the proposal that, when the Government and those on the Benches for a counterterrorism Bill that has already been referred opposite engage with the deep dive that is yet to come to. The noble Lord, Lord Pannick, suggested that such after tonight, they will remember that and restrain the a Bill may or may not emerge, but at present we are more carnivorous instincts in No. 10. not anticipating a dissolution of Parliament. Therefore, I believe with a degree of confidence that we will be Baroness Buscombe: Does the noble Baroness believe bringing that forward. that sharia councils do not interfere with our rule of Over and above that, noble Lords will recollect that law? Do they fully respect our rule of law? last month, following the terrorist attack at Fishmongers’ Hall, the Government announced a major overhaul of Baroness Chakrabarti: There is one law of the land counterterrorism, prison and probation, a proposal to and it binds everyone. Sharia councils do not provide double the number of specialist probation officers an alternative legal regime; there is one law of the working with terrorists, the introduction of further land, which is what I am talking about. If people seek legislation, such as the counterterrorism Bill, and the to argue otherwise—I take the noble Baroness’s point— creation of a new counterterrorism programme and they need to be disabused of that. There is one law of intervention centre. I note what the noble Baroness, the land which binds us all, in this House, in government Lady Deech, observed: we also have to delve into the and in opposition; it binds the citizenry, the suspects efficacy and effectiveness of many of these programmes and the victims. I think we can agree about that. in order to determine our direction of travel. We anticipate that the new centre will represent a major Baroness Deech (CB): Can the noble Baroness reassure shift in our capability to intervene with terrorist offenders us on the efficacy of the programmes for stopping to try to identify the risk they pose, and to bring to radicalisation? I have read—I do not have the evidence— bear the correct specialists to work with them to that at least one of the terrorists had successfully reduce such risks while they are in custody. completed such a programme, and that other convicted terrorists are encouraged by their hierarchy to go Of course, turning a terrorist away from the mindset neatly through the programme to secure release and be they have is no easy task. It requires not only expertise seen to have been deradicalised. In other words, there and application but eventually a willingness on the may be nothing we can do, no matter how much part of the offender to engage with such programmes, money is thrown at these programmes. and to do so genuinely. Noble Lords have pointed out that there have been instances when it is apparent that some individuals have embraced these programmes, Baroness Chakrabarti: As always, the noble Baroness, but in a wholly superficial, indeed false, way. That is a Lady Deech, points out genuine challenges in this further challenge that we face. area. We have to try, and to put in sufficient resources to make the best attempt. We certainly cannot have a There is clearly more that can be done. Indeed, the situation whereby those going into prison, not for proposed centre will prioritise three things. The first is terrorist offences, are being radicalised there and coming the need to build the evidence base for what works for out more dangerous than when they went in. They will terrorist offenders, using the best evaluation approaches not be touched by this legislation. If and when they we can identify, not just in the UK but in other offend, people will not say, “That was a convicted jurisdictions. Secondly, the centre will have capacity to terrorist”; they will just think that they were yet another respond to new threats and challenges with regard to person who has done the rounds, been in and out of terrorist offending, because those will almost certainly prison for whatever offence,and come out more dangerous emerge. Thirdly, it will try to bring to bear highly than when they entered. trained staff to deliver intervention programmes, which We will have to break shortly, and then we will have will include bolstering the cohort of counterterrorism the opportunity to consider amendments. So many specialists, psychologists and trained chaplains who noble Lords talked of their ambitions for the future, deliver theological and ideological interventions. and I hope that when considering this Bill, and in This is not entirely novel. Since 2010, significant future debates, they will remember not just the legalities work has taken place to try to develop and improve but the practicalities of trying to ensure that this counterterrorism interventions.The primary intervention, emergency is not a permanent one that takes us into as mentioned by the noble Baroness, Lady Meacher, the seventh circle of hell, debating more emergency has been the Healthy Identity intervention, which is a legislation, to little effect, well into the future. one-to-one programme that supports desistance and disengagement from extremism by targeting the social 7.11 pm and psychological drivers of such offending. Again, I Lord Keen of Elie: My Lords, clearly these are do not seek to minimise the challenges that will be grave matters worthy of serious debate, and I am faced in developing and applying these programmes, obliged to all Members of the House for contributing and, indeed, learning from these programmes, because to that debate. that will be part of the process. 71 Terrorist Offenders Bill [LORDS] Terrorist Offenders Bill 72

[LORD KEEN OF ELIE] provision whereby the Secretary of State comes under I shall turn for a moment to one issue that has a duty to release at a certain point in the sentence. The driven the regret Motion and some of the amendments: current position with regard to the type of sentence we whether, or to what extent, the Bill’s proposals have are dealing with is release at the halfway stage. In retrospective effect, and whether they are consistent response to an observation by the noble and learned and lawful pursuant to Article 7 of the European Lord, Lord Judge, I say that the Secretary of State has Convention on Human Rights. On the Article 7 point, a duty to obtemper that statutory obligation and, I let me say clearly that I concur entirely with the view suspect, would be faced with a writ of habeas corpus if expressed by the noble Lord, Lord Pannick, that the he did not. There is a clear duty there, and there is no provisions of this Bill are entirely consistent and allowable way around that. under Article 7 of the convention. Any doubts raised The true retrospective nature of this legislation, by reference to the Del Río Prada v Spain case, insofar as it is at all retrospective, comes from the referred to by the noble Lord, Lord Marks, have, application of the provisions with regard to the Parole in my view, been dispelled by the recent decision in Board, with which everyone appears to be in agreement. Abedin v the United Kingdom. It is for that reason Under the present statute, a prisoner is entitled to that a certificate has been signed, pursuant to Section 19 automatic release at the halfway stage. Wenow propose— of the Human Rights Act, to confirm that the provisions and everyone appears to agree—that this should not of the Bill are consistent with convention obligations. be the case and that they should have to satisfy the There is the further issue of common law. As was requirements of the Parole Board before they are observed, there is no common-law prohibition on released. So a prisoner who anticipated automatic retrospective legislation. There is a presumption against release will no longer be able to do so, because the it, and it is a presumption that has to be addressed. provision with regard to the Parole Board is that it But before we address it, we have to understand what must be satisfied that it is no longer necessary for the is meant in this context by the retrospective element in protection of the public that the prisoner should be the Bill. The noble Lord, Lord Marks, complained confined. That is the retrospective element in all this. that the common-law principle, as he put it, against The noble Lord, Lord Pannick, then asked: why retrospection was being intruded upon because of the apply that at the two-thirds point in the sentence Bill’s intention to increase the length of prison sentences. rather than at the halfway point? There are a number With respect, that is not what the Bill does—but, of of reasons behind the provision in the Bill extending course, the noble and learned Lord, Lord Falconer the period of imprisonment from half to two-thirds of of Thoroton, also referred to increasing the length the sentence. The most immediate was reflected in an of sentences retrospectively. Indeed, the noble Lord, observation from noble Lords that this Bill gave a Lord Harris,suggested that this was Executive interference breathing space. That is certainly required at present, with judicial sentencing. because we face a situation in which we are placing a quite considerable obligation on the Parole Board to Lord Harris of Haringey: If any prisoner had bring forward expertise and examination of individual understood that his sentence was four years but that prisoners, in circumstances in which a number of these automatically, because the Secretary of State had a offenders are due for release at the halfway point in a duty to do so, it was reduced to two years, he would matter of days. In the interim period, therefore, it is feel that retrospectively his situation had changed. I necessary that we are able to accommodate that very said nothing in that context about the Executive. What real risk. I did say is that the Executive have been wilfully failing In addition, it brings the sentence into a position in not bringing forward proposals much earlier to that is consistent with other sentences, where the period address some of these problems. is two-thirds. We suggest that it allows for a further period of incapacitation of terrorist offenders—it may Lord Keen of Elie: I misheard the noble Lord, and I seem limited in some instances, but not in all—and apologise to him for that. I had understood him to confers a degree of public confidence on those concerned refer to the issue of the sentence being retrospectively about recent behaviour and recent events. changed, as reflected in the observations of the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Marks. Lord Falconer of Thoroton: I make it clear that I The point I wish to make has already been touched have no problem with imposing the Parole Board. upon by the noble Lord, Lord Pannick. The position Equally, Equally, I understand the point that the noble is simply this. There is an established line of case law Lord, Lord Faulks, made and that the Minister is up to the Criminal Division of the Court of Appeal making, that there will be quite a lot to deal with. But that a court should pass a sentence that is commensurate I understand that the effect of the Bill will be that you to the offending behaviour in relation to the offence cannot be released automatically until the Parole Board committed, without any consideration of any possible has said you can be, so there will not be a problem on early release. In other words, early release under licence the basis of the draft of the Bill. The bit I question the and the various ramifications of that are an irrelevant Minister on—I find it completely incomprehensible—is consideration to the courts on sentencing. That is that he appears to be saying that moving it from half reflected by the Court of Appeal decisions in Round to two-thirds is part of the administration of the in 2009 and Bright in 2008. So it is not a case of sentence and therefore not caught by retrospectivity, retrospective change to sentence. Somebody is sentenced but that removing release from automaticity is part of to a period of, say, four years. There is then a statutory the sentence. I just do not follow that. 73 Terrorist Offenders Bill [24 FEBRUARY 2020] Terrorist Offenders Bill 74

Lord Keen of Elie: The sentence itself reflects for the incapacitation of the terrorist offender for a the entire period ordered by the court. It is then an slightly longer period—which in turn, we suggest, executive action to decide at what point during that assists in maintaining public confidence in the way in sentence somebody may be released on licence. Let us which we are dealing with these offenders. remember that it is not a right to be released on While I understand the concern about retrospection, licence. There is simply a parliamentary provision by it has to be seen in its proper context. The Bill will not statute that places a duty on the Secretary of State to achieve its intended objective unless there is that element allow release on licence. And it is not an absolute of retrospectivity in it. The noble Lord, Lord Anderson, release: you may be recalled, depending on the conditions alluded to a situation in which a prisoner might remain of the licence and whether you adhere to them. In that in custody until the very end of their sentence and sense, the true retrospectivity of the Bill lies in the then be released without licence.It is in those circumstances imposition of the Parole Board decision-making, not that one can find provision for TPIMs, for example. I in anything else. acknowledge that they have been utilised only to a The question then raised is: why impose that at the very limited extent until now, and it may be that their two-thirds stage of the sentence rather than at the use has to be looked at again. They are very resource- halfway stage? As I say, there are a number of reasons intensive, which may explain to some degree why they why the Government consider that appropriate, the have been employed only in limited numbers until most immediate being the point I made about the need now. Again, we are looking at the need to employ such for a breathing space. We face a number of instances procedures. in which such terrorist offenders are due to be released The noble Lord, Lord Anderson of Ipswich, also and, under present legislation, would be entitled to be raised Northern Ireland, which I believe the noble released without qualification or test in a matter of Baroness, Lady Hamwee, also referred to. The Justice days. To accommodate that is simply not possible. Minister felt that she would like to see the legislation That is why a breathing space is appropriate and why extended to Northern Ireland. We have discussed the we consider that in these circumstances we should matter with officials in Northern Ireland, and there shift the point at which the Parole Board becomes are very real technical difficulties regarding the way in involved to a point consistent with other sentences, which sentencing policy is implemented in Northern which is the two-thirds point. Ireland. It is quite different to sentencing policy in As I say,this has the additional benefit of incapacitating England and Wales in a number of respects. We fully those terrorists and preventing them engaging in activity intend to take forward this legislation, which is why we for a further period. We suggest that this, in turn, intend to look at this in the context of the counterterrorism would confer a degree of public confidence in the way Bill that we intend to bring forward—but at present in which we are dealing with such terrorist offenders. we feel that it would be too complex an issue to try to So clearly the Bill cannot achieve its intended effect deal with in the context of this emergency legislation. unless it operates with retrospective effect, and the The noble Lord, Lord Pannick, asked why, if this is retrospective effect here is the imposition of the emergency legislation, there is no sunset clause. The requirement that the Parole Board be satisfied about Government’s view is twofold. First, it could create the release—rather than the existing legislative provision, uncertainty and confusion, because a prisoner would which places a duty on the Secretary of State to not know whether they were to be subject to the release without any further consideration in respect of regime that we are introducing. Secondly,we are intending that matter. to bring forward a more substantive and wide-ranging counterterrorism Bill, properly addressing these issues, Baroness Meacher: Can the Minister explain something when the various committees of the House are available to me? Perhaps I have misunderstood it, but my to examine the proposed legislation. I hope that that understanding was that if this legislation passed, somebody goes some way towards satisfying the noble Lord. due for release in a few days could not then be released I am conscious of the time, so let me say this in until the Parole Board had got around to reviewing conclusion. In extending parole release to all terrorist whether they could be released. So, if the Parole offenders, the Bill provides a sensible and proportionate Board is not ready for a month, two months or whatever, safeguard against the problem of automatic release. the prisoner would have to wait for that process. Is The consequences of such automatic release are reflected that correct, or have I misunderstood the point? at Fishmongers’ Hall and in Streatham. Further releases of prisoners are due within a matter of days. If the Bill Lord Keen of Elie: My understanding is that under is to achieve its desired effect, early commencement of the present legislative regime, there is a duty on the the provisions, including retrospection, is vital. We are Secretary of State to release the prisoner at the halfway concerned not only with public confidence, but also point. We require a regime in which the Parole Board with public safety.That is the first duty of anyGovernment is able to act in determining whether it is satisfied that and one that we take extremely seriously. I invite the the prisoner could be released—but you could not House to do likewise. hold the prisoner simply on the view that the Parole Board might take a few months to get round to considering his case. That is why it is necessary to look Lord Marks of Henley-on-Thames: My Lords, my at what was referred to as a breathing space: the regret amendment does not ask the House to reject the requirement to allow time to implement this process. Bill. If the noble Baroness, Lady Buscombe, or anyone As I say, it is also consistent with other sentences, else understood it as so doing, that was not intended. I where release is at the two-thirds point, and it allows fully agree with the many noble Lords who said that 75 Terrorist Offenders Bill [LORDS] Syria 76

[LORD MARKS OF HENLEY-ON-THAMES] Syria the Parole Board should carry out a safety assessment Statement before terrorist prisoners are released. I agree with the Minister that that is sensible and proportionate. 7.36 pm Let me briefly take up the point made by the noble The Minister of State, Foreign and Commonwealth Baroness, Lady Meacher, to which I do not accept that Office and Department for International Development the Minister had a satisfactory answer. If the Bill were (Lord Ahmad of Wimbledon) (Con): My Lords, with to achieve Parole Board assessment prior to release the leave of the House, I shall now repeat in the form but did not increase the minimum time in custody of a Statement the Answer to an Urgent Question asked from half to two-thirds of the original sentence, the in another place on the security situation in Syria: breathing space for which the Minister asked would be “We are deeply concerned by the crisis in north-west achieved. As soon as the Parole Board had decided Syria, where the situation on the ground is deteriorating. that release was safe, release would follow. Over 900,000 people have been displaced, fleeing the I also agree that automatic release is not appropriate regime and Russian bombardments. They are fleeing in the case of terrorist prisoners. My amendment is northward and being squeezed into increasingly dense confined to expressing some regrets that the Bill will enclaves, with camps full to capacity. do nothing to improve deradicalisation and rehabilitation, Nearly 300 civilians have been killed in Idlib and that Ian Acheson’s recommendations are hardly being Aleppo since 1 January this year. The UN human implemented, that without further measures we risk rights office has confirmed that 93% of those deaths radicalisation of non-terrorists in custody and that the were caused by the regime and its allies. International Bill may cut down the time for supervision of some humanitarian law continues to be ignored, with civilian lower-grade terrorist offenders, who will spend more infrastructure being hit, probably as a result of active time in custody and less under supervision, thereby targeting. As recently as yesterday, the White Helmets losing the benefits of significant periods of supervision. reported that Russian warplanes hit a children’s and On the Bill’s retrospective effect, I agreed with the women’s hospital in the village of Balioun in Idlib. noble Lord, Lord Harris of Haringey, except when he The UK has condemned, and continues to condemn, described his reasoning as “simplistic”. I also agreed these flagrant violations of international law and basic with the noble and learned Lords, Lord Falconer and human decency. Following UK lobbying, in August Lord Garnier, the noble Lord, Lord Carlile, and other 2019 the UN Secretary-General announced a board of noble Lords that, whatever the position under Article 7, inquiry into attacks on civilian infrastructure supported where a six-year sentence meant three years in custody by the UN, or that were part of the UN deconfliction under the 2003 Act when passed but after this Bill will mechanism, which we continue to support. We look mean four years in custody, it is mere sophistry to forward to the publication of the results as soon as assert that this is not a retrospective change. Similarly, possible. it is mere sophistry to draw legalistic distinctions Wehave repeatedly pressed for an immediate, genuine between a presumption against retrospectivity and a and lasting ceasefire, including at the UN Security principle against retrospectivity and mere sophistry to Council. We have called a number of emergency council draw a legalistic distinction between the sentence passed sessions on Idlib in New York, most recently on 6 February and the time to be spent in custody. I agree with the alongside the P3, where the UK ambassador to the noble and learned Lord, Lord Garnier, that such a UN, Karen Pierce, reiterated our clear call for a ceasefire retrospective change will rightly seem unjust and unfair and our support for Turkey’s efforts in this regard. to serving prisoners, their families and those around There is overwhelming support for this in the Security them and may fuel further radicalisation. Council, and we regret very much that the Russians For the reasons explained by the noble Lords, continue to obstruct the possibility of agreement. Lord Anderson and Lord Carlile, the noble and learned As the Foreign Secretary noted on 31 January, only Lord, Lord Garnier, my noble friend Lord Beith and a political settlement in line with Security Council others, I will support the amendments to be moved in Resolution 2254 can deliver a lasting peace for Syria. Committee to introduce pre-release assessment by the The United Kingdom will continue to support the Parole Board at the halfway point for terrorist prisoners efforts of the UN special representative for Syria, Geir already serving sentences with the prospect of release, Pedersen, to this end. We regret that the Syrian regime if the Parole Board considers their release is safe. That continues to stall this process, despite the cost to the said, I do not intend to press my amendment to the Syrian people and the loss of Syrian lives. vote and I therefore beg leave to withdraw it. Despite this political obstruction, the UK remains Amendment withdrawn. an active leader in the humanitarian space. In the Bill read a second time and committed to a Committee financial year 2019-20, DfID has allocated £118 million of the Whole House. to projects implemented by organisations delivering aid cross-border,primarily into north-west Syria, including Lord Bethell: My Lords, the Legislation Office is Idlib. This has helped to provide hundreds of thousands open for a further 30 minutes for amendments to be of vulnerable people with food, clean water, shelter tabled for Committee. If no further amendments have and healthcare including psychosocial support. been tabled, Committee will start immediately after We have provided funding to response partners, the Question for Short Debate in the name of the including the UN, to pre-position essential supplies to noble Lord, Lord Lucas. If further amendments are support innocent families and civilians displaced by tabled, we may need to adjourn during pleasure, with conflict and are supporting all our partners to respond timings updated via the annunciator. to this humanitarian crisis”. 77 Syria [24 FEBRUARY 2020] Syria 78

7.39 pm the Government review sanctions to see if there are Lord Collins of Highbury (Lab): My Lords, I thank ways in which they could mitigate the impact on the Minister for repeating that response to the Urgent ordinary civilians? Also, into this comes coronavirus. Question. In the other place, the Minister repeatedly What assessment is being made of the risks that it may asserted that we will work with our allies to hold the pose to those with reduced immunity who are crowded Assad regime to account for breaches of international together in terrible conditions, as well as to those humanitarian law. What practical steps are being taken seeking to help them? to ensure that Assad and his international allies answer Lord Ahmad of Wimbledon: The noble Baroness for the war crimes committed in this conflict, and that makes some practical points, and I will write to her on we as a country will remain determined, for as long as her last point on the assessment made on coronavirus. it takes, that they will face that day of reckoning? That is a valid concern, particularly given the current What practical steps are being taken to plug the enormous situation regarding humanitarian aid. The noble Baroness humanitarian spending gap required to help those will be aware that we are deeply concerned that at the innocent civilians who have been forced to flee the UN Security Council, when a resolution was discussed violence in Idlib? on the humanitarian corridors, it was with great regret Finally, our friends in the Kurdish community, and disappointment that two countries—namely, Russia while no friends of the jihadists and their Turkish and China—chose to block the resolution. That has allies in Idlib, may equally be forgiven for looking at resulted in the loss of two of the four crossing points the developments of recent days and wondering if it for humanitarian aid. We continue to press, and we will be their turn next. What action is the Minister support the UN mandate and mission there. As regards taking at the international level to ensure long-term sanctions policy, I will take her point back. protection for those northern Kurdish communities? Lord Howell of Guildford (Con): Can my noble Lord Ahmad of Wimbledon: My Lords, I shall take friend explain—it is obviously a complex situation—the the last question first. I am sure that the noble Lord position at the Turkish border? Is Turkey allowing shares—indeed, all noble Lords will do so—the sentiments more people through who are fleeing from the present that we pay tribute to the courage and sacrifices made conflict? Can he sort out for us the problem: are we by the Kurds in particular. We pay tribute to the work still training and supporting the Kurdish cadres and of the SDF in successful efforts that were made against units? If so, are we finding ourselves simultaneously Daesh in Syria. I assure him that we remain very much working with the Turks and against them? How are we committed to the fight against Daesh and regard the going to resolve this effectively? SDF very much as a partner in this fight. Lord Ahmad of Wimbledon: My Lords, I have said The noble Lord asked about the practical steps we in response to the noble Lord, Lord Collins, that we are taking. First, on 5 February, the former Minister continue to support the Kurds and have paid tribute to for the Middle East and North Africa visited Ankara their efforts. We continue to raise their obvious concerns to discuss the situation specifically in Idlib with Turkish since the Turkish incursion into northern Syria and government Ministers. Last month, the United Kingdom the situation with the Kurds. In 2019-20, we intend to hosted a meeting of special envoys of the small group provide more than £40 million of aid in north-east on Syria, which includes Egypt, France, Germany, Syria, which is focused on reaching those most acutely Jordan, Saudi Arabia, ourselves and the United States, in need, including life-saving supplies, food, water, to discuss the situation in Syria, including specifically shelter and healthcare. As to the support we are providing the need for de-escalation in Idlib. As I said in the in north-west Syria, the border is operational and we Statement, we have repeatedly used our position at have allocated over £100 million to projects implemented the UN Security Council and the UN Human Rights by organisations delivering aid cross-border from Turkey, Council to call on Russia and the regime to end the primarily into north-west Syria. As to the support we offensive, adhere to specifically agreed ceasefires in are giving to Kurdish communities, we regard the SDF Idlib and, importantly, respect obligations under as a partner, and we have raised the issues and concerns international humanitarian law, which was the first of the Kurdish community directly with the Turkish point that the noble Lord raised, particularly with authorities—most recently during the visit to Turkey reference to the Assad regime. I am aiming to travel to of the former Minister for the Middle East. the UN Human Rights Council tomorrow, and my statement will reflect those concerns. Lord Campbell of Pittenweem (LD): My Lords, it is common ground regarding what is happening in the Baroness Northover (LD): My Lords, I also thank indiscriminate bombing of individuals, citizens and the noble Lord for his response. The IRC and others hospitals that those doing so are guilty of war crimes. have described what is happening in Syria as a But is it not worth emphasising at this moment that humanitarian catastrophe—and it clearly is. He has those who direct or authorise such actions are equally expressed his frustration in terms of what can be done complicit in war crimes and, as a result, subject to the to assist. We have the extraordinary situation of joint jurisdiction of the International Criminal Court? Russian-Turkish military patrols in north-east Syria and, at the same time, Russian planes bombing Turkish Lord Ahmad of Wimbledon: Again, assessments positions in Idlib. As to what can be done, addressing continue to be made on the issue of international food prices is of critical importance. They have increased humanitarian law. We continue to press all parties on by 60% since September. Even then, an estimated upholding that law and, as the noble Lord rightly 6.5 million Syrians were already food insecure. Can points out, it specifies and prohibits attacks on civilians, 79 Syria [LORDS] Changing and Toilet Facilities 80

[LORD AHMAD OF WIMBLEDON] Lord Lucas (Con): My Lords, a number of institutions irrespective of the weapon used. The UN commission have recently converted the communal toilets available of inquiry is the international body that will look into to the public from Ladies and Gents as separate toilets those aspects. As it makes its assessment, I assure him to gender neutral. Is this desirable and justified? Has that we support the UN efforts in that respect. there been research into why this is a good idea? Have needs been identified? Have women been consulted? I Lord Pickles (Con): My Lords, I, for one, do not am not aware of anybody quoting any of that sort of regret voting for military action in Syria when President stuff, so let us look at the consequences of these Assad started to murder his population. The failure of changes. Who is disadvantaged by them? Women who both Houses to support that action has largely said to prefer not to be in an enclosed, unobserved space with the murderer Assad that he can do what he wants. One men. That can obviously apply to women whose religion can only get someone into a criminal court if one is in or custom forbids such things, but a number of women a position to do so, and we are not in that position. have had uncomfortable experiences with men in the The Minister said quite a bit about Turkey and Saudi past and there are some very strange men in this world Arabia, but Syria is essentially a client state of the and it is entirely reasonable for women to want a Iranians. What discussions are we having with the separate space. Iranians to persuade them to look towards a peaceful I found myself using a gender-neutral toilet at the solution in Syria? and found it a really uncomfortable experience to come out of a cubicle not Lord Ahmad of Wimbledon: My Lords, my noble knowing whether I would frighten a woman who friend raises concerns on how Syria has been used to thought she was in a women’s toilet or was not expecting promote proxies who are acting within Syria, and to be in the company of a man. I do not want to cause concerns have been raised rightly about Iran’s role. I that sort of discomfort. It does not suit me to have just assure him that we continue to impress upon all those gender-neutral toilets. Many women have expectations who are party to the conflict, and are clear that Russia of toilets being clean places. Most men will know that has an important role to impress upon not just the not all men leave toilets clean—not even in this place. Syrian regime but the Iranians, that the use of proxies Women do not like to be around overt male sexual within Syria is continuing the destabilisation not just behaviours in a space that they find hard to get out of. in that country but in the wider region. Many men—they have even flashed me—act in such a way, and it seems reasonable that women should have Baroness Chalker of Wallasey (Con): Is my noble a space where they can be free of that. friend able to tell the House what more can be done through the ICRC to help with the appalling situation In some places such as nightclubs, the Ladies can faced by children and women heads of families in the be a refuge from serious unwanted behaviour, and I do Idlib area particularly,where literally the most vulnerable not think that any woman really wants to wash her are the key targets for the Russian attacks? bloody underwear when she has flooded during a period in front of men. So, altogether, what are we Lord Ahmad of Wimbledon: My noble friend speaks doing? Why are we seeking to make women feel unsafe with great insight on this. She mentioned the ICRC, in the toilet provision we make for them—unsafe and and there are other agencies. We continue to impress uncomfortable? What is the justification for it? Who is on not just Turkey but other partners to ensure that gaining an advantage in this process? the humanitarian corridors can be retained, sustained Some people feel that if they use the toilet that and strengthened. The regret, as I said very clearly in appears to be appropriate for their sex they will be the last debate we had on this issue, is that two questioned about their apparent gender. I can understand humanitarian corridors were closed down. That is why that discomfort. There are occasions when one certain aid cannot reach the most vulnerable. But we accompanies someone of the opposite gender, such as will continue to impress on UN agencies, NGOs working when I am looking after my daughter or when a carer in the region and, most importantly, those countries is looking after someone of the opposite sex and that have a stake in Syria and have an influence over wants to use a facility where both of them can go. all parties in Syria, whatever side they are on, to But people who are genuinely advantaged by this continue to allow humanitarian access to all parts of change are essentially the woke administrators of public Syria, particularly to those who are impacted and institutions. I see very few people who would genuinely most vulnerable. benefit from having universal gender-neutral toilet provision. Changing and Toilet Facilities in A much better way of catering for these people is to Public Buildings provide a limited gender-neutral facility. We could do Question for Short Debate as we have done with disabled toilets and provide separate facilities and label them so that the expectations 7.50 pm are clearly that one does not use them unless one needs them. If that is not possible, we could convert the Asked by Lord Lucas Gents. Pretty well all men could survive having a brave To ask Her Majesty’s Government what plans enough woman as company in the Gents. I do not they have to ensure that at least half of the communal think it would upset them. They may be a bit ashamed changing or toilet facilities offered in public buildings of the way they are behaving, but I do not think they are reserved for women only. would be otherwise disadvantaged. If we are going to 81 Changing and Toilet Facilities[24 FEBRUARY 2020] Changing and Toilet Facilities 82 provide gender-neutral facilities, convert the Gents; do to compete in sport, who is allowed in which kind of not convert the Ladies. On changing facilities, I do not spaces and what kind of services people are allowed to think that there are any circumstances under which it request from someone of the natal gender they require. is appropriate for women’s changing rooms to include I do not see why women should be required to provide exposed male genitalia. That is going beyond what we intimate services, such as a search, to someone not of would all consider reasonable. their own sex. I do not see why women should have to So we should legislate; we cannot let this trend go be examined by someone who is genetically male if on. A facility that we have provided for women all my they would prefer someone genetically female. These life is being removed from them without their consent are difficult questions, I think they need sorting out, and without consultation with them—without any and I urge the Government to get a grip. consultation at all, as far as I can see. We should legislate so that organisations that live off public funds 8.01 pm provide women with toilet and changing facilities that Baroness Brinton (LD): I thank the noble Lord, match their established need—by which I mean that Lord Lucas, for securing this debate. I think that we all the organisation should conduct proper inquiries as to understood that it was going to be wider than perhaps what that established need is. its title proposed. Before we come on to that, I want to The question alongside this is who should use women’s make a personal and specific comment about the facilities. Noble Lords who listened to my last speech number of disabled toilets and changing rooms available on the subject will know that I am thoroughly in in public places and whether they are fit for purpose. favour of breaking down gender boundaries. We should The debate of the noble Lord, Lord Lucas, is about all have the freedom to act, behave and dress in a way finessing issues, but disabled people often find that that is permitted to anyone of any gender. Gender there are not disabled facilities available for them and boundaries have done us no good in education and they are in a slightly more difficult position. careers, and by and large they have set back women in I cannot count the number of times I have gone their ambitions. They do not make life easier for male into a disabled toilet in a public building and discovered nurses either, and we should do away with them. I do that it is also a dumping ground, usually, but not only, not personally have any difficulty with the idea of for cleaning materials and equipment. One restaurant self-identification as to how we behave and act in the just the other side of Parliament Square was using its world. But that does not necessarily mean that men disabled toilet as a spare chair store, so you could not should have access to women-only spaces, and that I even get in through the door, let alone approach the should be able to march into the Ladies over there just toilet itself. This is not a matter that requires change or because it is a nicer facility than the Gents and I feel regulation. It is always about staff training and the like identifying as a woman at the moment. Women culture of an organisation. have facilities set aside for them for many good reasons, as I set out. The noble Lord, Lord Lucas, was carefully trying There should be a genuine and open discussion to assess where the boundaries are in this difficult about who should be allowed in the Ladies and similar debate about women-only spaces. He argued that some women’s facilities and under what circumstances, and people need them because they believe that they feel that discussion should take place without insults. The less safe and that men or others, whether trans or not, first requirement for that is that the Government risk making these spaces unsafe. That could be a should step up. The Government have a responsibility difficult assertion. In my years working with victims of to hold the ring in these discussions. They have vacated abuse and domestic violence, one common feature is the ring and allowed it to become a space for warring that people could never have imagined their perpetrator interest groups, and that has been extremely destructive. as being dangerous to them until it was too late. Also, the principal interest groups—those with the Abusers look like us—all of us. strongest and longest reputations—need to commit In January, a woman who posed as a teenage boy themselves to discussion. Stonewall should put away was jailed for grooming girls as young as 13, starting its kimono and baseball bat and settle down to the online and then meeting them. The judge described idea that maybe it needs to modify its rather extreme her behaviour as predatory and her targets as vulnerable views. The Fawcett Society should listen to its founder girls who often started with low self-esteem—that is and the quote that is on the statue in Parliament why they were the targets. Five years ago, the Daily Square, Telegraph wrote an excellent article on female paedophiles, “Courage calls to courage everywhere”, following the jailing of Marie Black and Carol Stadler, and get involved in the discussion in a serious way. who were part of a gang in Norwich. The article quoted forensic psychologist, Nina Burrowes, who At the moment, we have a serious firefight, but the said of female abusers: people who are getting hurt are not the combatants, … they are the transgender and other vulnerable people “I do believe [women sexually abusing children] happens less often than men, but it happens a lot more than you realise. I who are on the sidelines. It is our responsibility as a suspect it’s much more underreported”. Government and as a society to settle these things in a civilised way and to produce a civilised outcome. I do She suggests that society has not been willing to learn think that there is the potential for that. If we settle more about female paedophilia. She said: down to do it, we shall be successful. “We find it abhorrent because it challenges our ideas of women and motherhood … We like to live with the idea that men There are many aspects of the relationships between are dangerous and women are safe, so when you see children women and trans women, and men and trans men, [talking] to a male stranger in the park it’s dangerous but if they that need sorting out. Weneed to sort out who is allowed are talking to a woman it isn’t.” 83 Changing and Toilet Facilities[LORDS] Changing and Toilet Facilities 84

[BARONESS BRINTON] some male and female chromosomes and it is a well- Can the Minister give the House data on the actual recognised medical condition that deserves respect incidents recorded in changing rooms and toilets, broken and support. Whether Miss Rebecca Long Bailey MP down by gender and type of crime, such as theft and likes it or not, sex is biological and binary and is not a assault? What practical arrangements can be made to social construct. police these spaces? Many people find that they are However—and this is very important—medical science turning up in a space that is deemed by some to be quite rightly recognises the well-known medical condition inappropriate. It would be very difficult if it was that there are people who feel an overwhelming sense expected to be policed solely by other users of that of a different gender identity. That is perfectly okay space. and acceptable. The Gender Recognition Act quite I want toilets, changing rooms and all public spaces rightly lets these people change their sexual identity to be safe for all users. The data does not show us that after showing the gender recognition panel that they transwomen are more dangerous than anybody else. have transitioned over a two-year period. That is a On the contrary, there is considerable evidence that wise and sensible process and does not deprive any LGBT people, especially transpeople, are more likely transsexual person of any rights, real or imagined. to be attacked, more likely to suffer abuse and hate crime and more likely to be at risk of suicide because I urge the Government, therefore, to drop the of the pressure. suggestion that the process should be abandoned and not to permit the absurdity of self-identification, with I just hope that we can pause for a moment and the huge loss in freedom and safety for women that consider how a transwoman, portrayed as a possible that would entail. I say “absurdity” but it is more of an danger to families by some, might feel. Last week I obscenity, because we have the reality, as seen in saw on the BBC website an amazing young poet, Gray Answers to Parliamentary Questions tabled by me, of Crosbie, tell of their experience. The concerns of non- male rapist convicts suddenly telling the Prison Service binary, intersex and transpeople are rarely heard. I am that they are identifying as women and our useless, quoting selectively from their poem: incompetent, politically correct Prison Service immediately “Our society has a limited capacity for people who don’t fit transferring them to female prison wings where they the norm … have raped and sexually assaulted real women prisoners. And we are normally offered female or male What a wonderful sexual predators charter. The Prison Mark the box with a tick, make yourself fit ... But I am more that other. Service should move these men back to the male wings Into this society entirely divisible by two into woman and man immediately until they have satisfied the two-year But I relate most to the ampersand (and I need a haircut!) … transitional condition. But still too often there’s some of us are standing clutching As a man—even one in a wheelchair—I cannot our bladders trying to decipher which bathroom symbol we better imagine the fear and lack of safe space that women resemble, based on what we are wearing or on how brave we are feeling. can face when they go to the loo and some big, hulking male brute comes in demanding to use the There’s a day to day struggle that people quietly battle like find a way to wear your own skin whilst navigating a world in facilities because he has decided that he wants to which we don’t always fit in … life can be tough out there identify as a woman that day. I entirely respect his So do you have to make a fuss”. right to adopt a woman’s sexual identity, but not until he has satisfied the 2004 Act and fully transitioned I absolutely accept the spirit in which the noble over the two-year period. Lord, Lord Lucas, has brought this debate but I am concerned that perhaps this matter is overstated. Of course, I have often attempted to get wheelchair access to buildings, but I made some big mistakes in 8.06 pm my two failed attempts to get the Government to amend the Equality Act. What all we 800,000 wheelchair Lord Blencathra (Con): My Lords, I am pleased to users should have done was claim that we were self- support my noble friend and noble Baronesses in this identifying as women or men and then a whole industry short but very important debate. As usual, I shall would have moved into high gear to get us access to speak quite bluntly. anywhere we wanted in the country, and no doubt we As one of 800,000 wheelchair users, I, too, have an would have had the police running around as well, interest in access to toilets and I agree with what has checking out wheelchair transgender hate crimes. been said so far about their inadequacy. There are This excessive nonsense has to stop. I repeat that I over 70,000 public buildings in the UK that wheelchair deeply respect those who want or need to change their users cannot get into, let alone have the luxury of sexual identity, but I want the Government to stand deciding which toilet to use. My blunt message to the up to the militant, fascist transgender lobby—the small Government tonight is this: when will you stand up to militant minority—particularly those who try to change the small, militant, transgender fascist lobby and say that the sex of children. I and many doctors are deeply the rights of 32 million real women and 800,000 wheelchair concerned about the work of the Tavistock clinic, users are more important than the rights of tens of which is giving puberty-blocking drugs to children thousands who identify as transgender? aged 11—children who may not know at that young As every doctor and even first-year medical student age what their sexual identity will be in later life. knows, there are only two biological sexes, male and Giving sex-change drugs to young children might female, with a tiny number of people who are known completely destroy their lives if, later on when as genuine hermaphrodites, male pseudo-hermaphrodites they mature, they come to a different view on their or female pseudo-hermaphrodites. These people have sexual identity. 85 Changing and Toilet Facilities[24 FEBRUARY 2020] Changing and Toilet Facilities 86

I support the proposition put forward by my noble they should, and it is an issue that needs to be resolved. friend Lord Lucas that at least half of public toilets I am very grateful to the noble Lord, Lord Lucas, for and changing facilities should be reserved for women. introducing this debate because it has given me an That means less than half for men, but that is okay opportunity to bring up some of the wider matters because, as a man, I am always mystified that queues relating to continence and incontinence in this country. for women’s toilets seem to be a lot longer than queues for the male ones, although we had better not go into 8.15 pm that. My noble friend’s proposal would allow all transgender people to have a choice, once they have Baroness Nicholson of Winterbourne (Con): I thank transitioned as per our law, and there must be no the noble Lord, Lord Lucas, for giving us the opportunity question of others who have merely self-identified to discuss this very important topic. I follow the noble picking and choosing on a daily basis what toilet Baroness, Lady Greengross, in her view that this is one they use. of the most important topics that rarely gets discussed.

8.11 pm I request the Minister to think about the point I am about to make, which concerns the confusion the Baroness Greengross (CB): My Lords, a YouGov Equality Act 2010 has created around the definition of poll from 2017 found that 59% of women queue for a woman. I will offer a comparison between the Act toilets on a regular basis compared with 11% of and annexe B of the National Health Service guidelines men. We all know about that, and many studies and on same-sex accommodation. Why have I chosen the recommendations have not been implemented. However, National Health Service? It is the single biggest employer the situation goes much broader than that, because in Britain and probably offers the most comprehensive there really are not enough public toilets in the UK. suite of changing and toilet facilities of any organisation. There was a 13% decline in the number provided by local authorities between 2010 and 2018, according to Annexe B is headed, “Delivering same-sex a report by the BBC’s Reality Check in 2018, and this accommodation for trans people and gender variant decline has coincided with cuts in local government children”. I point out to the Minister that this funding since 2011. misrepresents the legislation that it purports to represent. There is no verifiable data on the total number of The second paragraph starts: public toilets in the UK but the British Toilet Association “Under the Equality Act 2010, individuals who have proposed, estimates that there has been a 60% reduction just in begun or completed reassignment of gender enjoy legal protection the last decade. Therefore, there is a huge problem, the against discrimination. A trans person does not need to have had, issue being that there are too few public toilets. or be planning, any medical gender reassignment treatment to be This is not a small and isolated problem. Fourteen protected under the Equality Act: it is enough if they are undergoing a personal process of changing gender”. million adults in the UK have a problem controlling their bladder and 6.5 million have bowel issues.According As is clear, instead of quoting the Equality Act, this to NHS England, women are five times more likely to guideline paraphrases Section 7(1), which states: develop urinary incontinence than men. Fewer public “Aperson has the protected characteristic of gender reassignment toilets make it harder for these people to leave their if the person is proposing to undergo, is undergoing or has home. A Royal Society for Public Health survey in undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other 2018 found that one in five people do not feel able to attributes of sex”. go out as often as they would like due to the lack of While the need to be proposing to transition, in the public toilets provided throughout this country. The process of transitioning or to have completed transition same survey found that 56% of respondents restricted is included, the NHS guideline omits the phrase, fluid intake before going out to reduce the need to find a toilet. “by changing physiological or other attributes of sex”. Although overall the lack of public toilets has a In order to qualify for the protected characteristic greater impact on women, there are other toilet issues of gender reassignment within the meaning of the facing men. The All-Party Parliamentary Group on Act, the individual must intend to embark on or to Continence Care, which I am very proud to have have actively embarked on a process of physiological chaired and now jointly chair, has launched a campaign change. While the Act indicates that this should include called Bins for Boys. Currently, most male toilets do surgery, the minimum requirement should be that the not have sanitary bins.However,many men have problems individual is taking cross-sex hormones or can provide with continence, just as women do, so that is appalling. evidence to prove that they are planning to do so. For example, here in the Palace of Westminster there is only one sanitary bin in the 57 male toilets, so what With regard to, do the men who have a problem with continence do in “changing … other attributes of sex”, the whole of this palace? since sex is biological, this refers to making some One bit of good news is that in stations—in London, kinds of anatomical change. The Equality Act as at least; I do not know what happens in the rest of the passed into law never intended that individuals could country—there is now no charge for public toilets. simply self-ID as the sex they are not. Instead, the Act That is a huge improvement and we are very pleased established qualifying criteria. Individuals wanting to about that. claim protection from discrimination by virtue of gender This is an important and widespread issue but it is reassignment had either to be changing aspects of largely hidden and must be publicised. It is something their physiology or be able to prove an established that people do not like to talk about but, in my view, intention to do so. 87 Changing and Toilet Facilities[LORDS] Changing and Toilet Facilities 88

[BARONESS NICHOLSON OF WINTERBOURNE] Social convention is there to safeguard women and Proof that the authors of the NHS guidance have girls to prevent harm. Eroding social convention will misunderstood Section 7(1) of the Equality Act comes make it harder to maintain these boundaries. in the second half of the second paragraph: “In addition, good practice requires that clinical responses be Sadly, we live in a world of upskirting, secret filming patient-centred, respectful and flexible towards all transgender of women and girls in toilets, and rape videos posted people whether they live continuously or temporarily in a gender online and made available for purchase or subscription. role that does not conform to their natal sex”. Maybe we know more about abuse these days, but we Section 7 of the Act offers nothing whatsoever about have hundreds of years of history of this. Much as I living in a gender role: it is about making physical want it to go away, we are not at that point yet. changes or at least having evidence-based intentions Historically, there are not enough spaces for women’s to do so. A man could wear a frock, rouge and nail gel toilets whether in sports venues, theatres or public every day of the week for 10 years without qualifying buildings. I grew up in a world where there were no for the protected characteristic of gender reassignment accessible toilets. As a young child, visiting the Tower according to the Equality Act 2010. of London at seven years old, I asked someone where It must be concluded that the NHS hospital guidelines the nearest accessible toilet was; I was told Paddington contained in annexe B are significantly divorced from —brilliant. the wording and intent of the legislation that they claim to reflect. I want the Minister to think about We talk about the urinary leash: women not being that and identify whether the NHS should in fact able to leave their homes because of the risk of not withdraw its guidelines and do something that actually being able find toilets. As a disabled person, I face that follows the Act. problem every single day. When an accessible toilet is not being used as a storeroom, there is a last-moment celebration. Every train I get on and every new building 8.21 pm I go to, I have to think about whether there is an Baroness Grey-Thompson (CB): My Lords, I thank accessible toilet. I was in a restaurant last week. Everyone the noble Lord, Lord Lucas, for tabling this debate. I checked that it was accessible for me to get in there thought quite a lot before putting my name down but, right at the last minute, they realised that the because how quickly this debate can become contentious. women’s toilets were downstairs. There was a panic When I previously posted on social media about single-sex because, if I needed to go, I would have to tell about spaces, I did not receive some of the backlash that 10 people and they would have to clear out the men’s other women have; I received some positive messages, toilets for me to use them. That is not a position that some not. More concerning ones pointed out that I any woman wants to be in. We need to have more was being monitored, down to people identifying what accessible toilets. It is great that there is recognition of I had retweeted and insinuating that I needed to watch invisible impairments, but this comes back to redesigning what I say on the subject. It is really important that we what we have. enable people to have an open debate about this issue, to get to the best possible solution for everyone. A lot of disabled toilets are locked for a reason. Apparently, they are places where people go to take I have read a lot around this issue in the last year or drugs and have sex. That is the excuse and the reason so and know that it is quite easy to go down a rabbit given for why they are locked. But the Radar scheme, hole. It very quickly becomes a complex discussion, which is available in so many places, does not show on but we must think about everyone’s safety, privacy and the outside whether or not the toilet door is locked. I dignity. Everyone should feel safe and not intimidated was in one of these toilets recently, when a gentleman or bullied when going to the toilet. How I use my did not realise and opened the door and walked in on platform is something that I take really seriously: I do me. We both panicked, and it felt like for ever before not want anyone to be victimised or hurt, but we need the door closed again. That is one option I have. If to find a solution that protects people. there is somebody in an accessible toilet who needs to We need a redesign of all the toilets that we have. I be in there for a long period of time, the only other personally favour an option of single-sex toilets—male option I have is to use the women’s toilet. In that and female—but also gender-neutral toilets,in appropriate instance, I have to go with the door open. I am not numbers that enable people to use them. The best sure whether I have publicly declared this before, but I gender-neutral toilets that I have seen have floor-to-ceiling am incontinent; I have to catheterise. I have to sit with doors, basins and bins—my noble friend Lady Greengross my chair in the door of the toilet. Without going into would be very pleased. Something that we do not the details, I am in a potentially vulnerable position discuss enough is that they all have wheelchair access, when I catheterise myself. I need to wash my hands which is a joy to behold as a disabled person. before and straight afterwards; it is even more difficult Let me be very clear that the vast majority of when I have my period. My biggest fear is that someone people will not use access to women’s spaces to get will run away with my chair for a bit of a laugh. As a close to women and girls in an unhealthy way. But I disabled person, that is a very vulnerable position to have been involved in elite sport for the last 40 years, be in. and we have seen that a small number of horrible individuals will use their position to get close to children, This is why I believe we have to think more clearly women and boys. That is why we need to have protections about how we configure toilets; how we provide the in place. There is a reason that the UN, WaterAid and best opportunity for everybody. I look forward to other organisations have called for single-sex spaces. continuing this debate. 89 Changing and Toilet Facilities[24 FEBRUARY 2020] Changing and Toilet Facilities 90

8.26 pm women should fear: it is not trans women who are the perpetrators of the crimes against them. Unfortunately, Baroness Barker (LD): My Lords, this debate has as we have seen in this short debate, the noble Lord’s been going on for about 50 years; first, on television, intent gets twisted, and we cannot get the kind of when Jan Morris was asked about it. The unfortunate rational debate that he wants. thing is that, in those 50 years, we seem not to have accumulated any more information or evidence on I ask the Minister: since there is no evidence that which to base the debate. We are stuck having the the Equality Act 2010 is having a negative effect and same discussion over and over again. I ask the noble putting the rights of trans women and women at odds Lord, Lord Lucas: what purpose is served by having with each other, does she believe that it is right to keep this debate over and over again in the same terms? the Equality Act, given that it affords protection to Various points have been made this evening which both women and trans people, and will the Government really are a proxy debate for the Gender Recognition make sure that they do not water down those legal Act. I could take issue with many of the points made protections? by the noble Baroness, Lady Nicholson, but I do not have time to do that this evening. 8.31 pm I say to the noble Lord, Lord Lucas, that he might bear in mind when making his criticisms of Stonewall Lord Kennedy of Southwark (Lab Co-op): My Lords, and the Fawcett Society that they have repeatedly had I first thank the noble Lord, Lord Lucas, for tabling to face the sort of intemperate remarks that the noble this Question for Short Debate. I should again declare Lord, Lord Blencathra, used to express his very firmly an interest as a vice-president of the Local Government felt view. To what extent are we moving the issue Association, because many of these facilities are provided forward each time we have this debate? I do not think by local authorities. that we are, and I do not think that we are doing The noble Lord has raised a very important issue. women any great favours by increasing their fears I hope we can have a longer debate in this Session. I without an evidence base on which to do so. know that the noble Lord has tabled many Questions, I was hoping that the noble Lord, Lord Lucas, was but the Government should consider having a longer going to come up with some data and research to back debate in the next few months—that would be very up his assertion, but he did not. So, I ask him: what welcome. research has been done on crimes recorded by types of I very much support the work of the British Toilet unisex toilet? Was there a breakdown according to the Association in its campaign to make more toilets type of crime—harassment, assault or breach of the available generally to the public. There has been a peace? Is there any research that tells us whether noticeable and disappointing reduction in the number people are more inclined to report crimes in mixed-sex of facilities, and a number of noble Lords have made facilities because they dislike them, as he outlined? Is reference to that. The noble Baronesses, Lady Brinton there a distinction between the number of crimes and Lady Grey-Thompson, raised important issues committed in mixed-sex facilities in different venues—pubs about the facilities for disabled people and how we still versus museums, for example? have a considerable way to go to deliver an adequate It seems to me that we need to do two things. First, number of toilets to meet people’s needs. we should look at America, where these bathroom The noble Baroness, Lady Grey-Thompson, was Bills have been brought in. Rather than being policed, absolutely right when she said that we must have an there is, frankly, a vigilante approach. In those cases open and respectful debate that addresses concerns where people take it into their own hands to decide about protecting people. I was very sorry to hear that who is conforming to the law and who is not, it is quite she has again suffered abuse on social media: we need often based on people’s physical outward display—so to deal with that in this House and elsewhere—it is lesbian women who look very butch get challenged just unacceptable. going into women’s toilets. I do not think that that is The provision of toilets and changing-room facilities what the noble Lord, Lord Lucas, is intending, but it is in public buildings has had considerable attention in a potential consequence. the media recently, and that is to be welcomed. It is We are proposing to take away from trans women only by discussing these issues that we can come to a a right that they already have: trans women use position where we are generally agreed on the way women’s toilets all the time, and so far, the noble Lord, forward. I agree with the noble Lord, Lord Lucas, that Lord Lucas— these matters need to be resolved by talking in a calm and non-aggressive manner, and by dealing with the issues in a sensitive way. Lord Lucas: My question was about giving all men access to women’s toilets, and the undesirability of There are three issues which need serious consideration. that. There is parity of access to toilet facilities between men and women and the fact that that there need to be more women’s facilities than men’s to achieve that Baroness Barker: I have to say to the noble Lord, parity, as the noble Lord, Lord Lucas, mentioned in Lord Lucas: he might have seen in the briefing pack his contribution. Then there are the needs of the trans provided by the Library authorities the article by community to be able to access toilets and changing-room Andrew Gilligan when he was a Times journalist. He facilities and to feel safe, protected and not discriminated made a rather crude FOI request about different types against. The third issue is the need for women to be of crimes, and he concluded that it is men whom able to access toilet and changing facilities, and, again, 91 Changing and Toilet Facilities[LORDS] Changing and Toilet Facilities 92

[LORD KENNEDY OF SOUTHWARK] travelled further than where family and friends resided to feel safe, protected and not discriminated against. It and had limited facilities away from home. This lack is easy to say that; delivering it is more difficult. But of lavatories impeded women’s access to public space respecting people, respecting difference and seeking and to workplaces. The Ladies’ Sanitary Association ways to move forward on that basis must be the right campaigned from the 1850s onwards, succeeding in thing to do. the opening of the first few women’s lavatories in The noble Baroness, Lady Brinton, made the point Britain. By 1915, after the success of suffragettes that it is often members of the trans community who campaigning for the right to vote, the provision of are abused in these situations. We need to take that female lavatories was still unequal. However, as women point to heart. We also need to make policy, regulations were now entering previously male-dominated professions, and decisions based on evidence, not discrimination, people began to campaign for better facilities at work. and to challenge ourselves on what we think are Some employers did not want to install women’s loos, acceptable norms or attitudes. especially after World War I, as they believed that women were stealing men’semployment. Some Victorian I listened carefully to the comments of the noble lavatories were becoming increasingly elegant, such as Lord, Lord Blencathra. I agree that at least—and the gentlemen’s public conveniences at Rothesay pier probably more than—half of all facilities should be on the Isle of Bute. These have recently been restored. reserved for women. Some of the noble Lord’scomments For 40p, you can see the ornate tiling and mosaic were not particularly helpful. This is not about satisfying delight of male loos. an aggressive, militant lobby, but about ensuring that we are all treated with respect. If we do that and, as Even today, the renewal and restoration project the noble Lord, Lord Lucas, called for, if people come here in the Palace of Westminster concerns us all. The together and discuss this matter in that way, we can get programme of works is designed to protect the Palace a reasonable solution. I also agree with the comments and its historic legacy for future generations. One from the noble Baroness, Lady Barker, about both anticipated long-term benefit is a more open, accessible Stonewall and the Fawcett Society. Parliament for all. The noble Baroness,Lady Nicholson of Winterbourne, raised a number of questions about the NHS. I look Under the 1992 workplace regulations, it became forward to the response to those points from the noble illegal for an employer to not ensure that men and Baroness, Lady Bloomfield of Hinton Waldrist. I see women have separate facilities. Thank goodness we the argument for gender-neutral facilities as clearly as look after all sexes much better now.Building regulations I do the argument for women-only facilities; both are work through a set of “functional requirements”. valid. I would want to accommodate both demands in These set out, at a high level, what buildings must be public buildings. Some may oppose that as a way and provide. On lavatories, the building regulations forward and, although attitudes may change over time, require provision of adequate and suitable “sanitary I cannot at present see how we can have either/or. conveniences”, in part G, and reasonable provision for Some public buildings have partly switched over to people to gain access to and use such facilities, in part gender-neutral toilets and you can design and deliver M. Statutory guidance supporting the building regulations excellent facilities, taking into consideration the needs refers to British Standards for lavatories, and to further of all. I may be wrong, but I think I am right in saying standards which are developed by industry experts. that the public toilets in the main reception of Southwark British Standards are voluntary by themselves, but Council are all gender-neutral. we often refer to them within statutory guidance as an I again thank the noble Lord, Lord Lucas, for approved means of complying with the building regs. raising this issue, which must be discussed again and We refer to BS 6465-1, which is a British Standard on again in this House. Only by having a debate can we toilet provision with the full title Sanitary Installation: come to reasonable solutions on issues that concern Code of Practice for the Design of Sanitary Facilities many people. I look forward to the Minister’s response and Scales of Provision of Sanitary and Associated to this Question. Appliances. The standard applies to new buildings undergoing major refurbishment and to many building 8.36 pm types, including public buildings and locations with communal changing, such as shops, sports centres, Baroness Bloomfield of Hinton Waldrist (Con): My swimming pools and recreational facilities. Lords, this has been a far more wide-ranging debate than the Question initially suggested. On reflection, The standard contains helpful guidance on the the start of my speech may not be as relevant as I likely gender ratio of, for example, a workforce. It thought it was earlier today, but I will bash ahead considers the number of people requiring sanitary anyway. I am grateful to my noble friend Lord Lucas provision, and tables male-to-female ratios and numbers for introducing this debate and for asking the Government of sanitary fittings needed for the size and type of to outline plans to ensure that half of all facilities are building. Developers will use an estimate of the population reserved for women only. coming to their building and follow the guidance to It might be helpful to start by considering the balance the provision. If the gender ratio of occupants history of public lavatories in Britain. George Jennings, is not known at the design stage, or there are likely to a plumber from Brighton, showcased his first flushing be a similar number of men and women, the standard lavatory at the Great Exhibition in 1851. Early public suggests a set of assumptions to use. It suggests providing loos were called “public waiting rooms”, and the vast 20% more facilities than the anticipated use. If the majority were for men’s convenience. Women rarely guidance is followed, it would result in an equal number 93 Changing and Toilet Facilities[24 FEBRUARY 2020] Changing and Toilet Facilities 94 of male and female toilets. The standard does not standards need to keep abreast of change in our explicitly recommend unisex facilities or changing rooms, culture, population and technology. We have both but says: government guidance and independent best practice “Where unisex toilets are provided, WCs should be in self-contained standards that combine to guide property owners on toilets with full height walls and doors.” how best to provide access and balance the mix of This standard is made by experts in the field coming to lavatories and changing rooms. an evidence-based consensus on best practice. A great deal of work is being carried out in reviewing Other standards can also help. Those designing the regulatory system for buildings and the building offices might follow the British Council for Offices regulations. This work builds on the recommendations guidance, and there is also the Health and Safety of the independent review of building regulations Executive’s approved code of practice. In addition, and fire safety led by Dame Judith Hackitt, which health and safety legislation within a workplace details recommended a different, more coherent approach to the requirements for separate rooms for men and the regulatory framework. Noble Lords will recall women and the ratios of loos for each sex. Local that we have already agreed to take forward the authorities also have the power to specify the numbers recommendations of Dame Judith’s report, in full, as and positions of sanitary appliances at places of the basis for regulatory reforms to building and fire entertainment. This includes directing the owner to safety. This work includes plans to review and upgrade maintain and keep clean such provisions, and defines our statutory guidance in due course. the needs for indoor and outdoor facilities, such as I turn to the specific questions asked by noble Lords. sports centres.Where there are problems, a local authority On the point made by my noble friend Lord Lucas, I can decide and require the owner to put them right. If have probably covered that there is no requirement for gender and lavatories are causing people problems, a gender-neutral toilets and regulations, and neither local authority can use Section 20 of the Local regulation nor standards prescribe gender-neutral toilets. Government (Miscellaneous Provisions) Act 1976 to require an owner to put them right. The noble Baronesses, Lady Brinton and Lady Grey- My noble friend Lady Nicholson mentioned her Thompson, have mentioned to me outside the Chamber, concerns relating to the Equality Act 2010. Lavatories as well as in their contributions this evening, the and changing spaces are part of each person’s everyday lamentable lack of disabled facilities, in both numbers activities. Access to facilities when you need them is and in the appropriateness of their size. I am sad to important regardless of disability, pregnancy or chronic say that that is still the case within the Palace of illness, and whatever your ethnicity, age, sex or gender. Westminster. The noble Baroness, Lady Brinton, made We have protected characteristics and rights under the a very good point when she said that some of it—such Equality Act 2010. I reassure the noble Baroness, as restaurants using disabled facilities as storage Lady Barker, that the Act provides protection against facilities—is partly down to the need for better staff discrimination and unfair treatment on the basis of training and inculcating that culture within an the protected characteristics in the Act—age, disability, organisation. It is not always a question of legislation, gender reassignment, marriage or civil partnership, as she said. I am afraid that the data on incidences of pregnancy and maternity, race, religion or belief, sex theft and assault is not data that this department and sexual orientation. The Act is clear that trans keeps. It will be kept by the Home Office and I will people should be treated according to the gender they gladly endeavour to try to find out some statistics on present, although it also states that transgender people the incidence of theft and assault in public loos, and can be excluded from single-sex places if it is proportionate. equally, what practical arrangements are made to police However, it is for providers to determine this on a these spaces. case-by-case basis. The noble Baroness,Lady Grey-Thompson, mentioned The protected characteristic of gender reassignment the redesign of loos. We are looking at the guidance encompasses people who are intending to, are undergoing supporting the building regulations and, as part of or have undergone gender transition. This does not our review,the toilet guidance is being reviewed, including require any medical intervention to have occurred. We on accessible toilets. We have had a consultation on have heard some people’s concerns that progressing changing toilets, and we are looking at the wider, the rights of transgender people should not have a inclusive nature of provision in public buildings. I detrimental effect on the rights of others, especially have covered the data on crime and assaults. women. Weare committed to maintaining the safeguards The noble Baroness, Lady Greengross, rightly drew that protect vulnerable women and allow organisations attention to the decline in the number of public loos. I to provide single-sex services. The law makes it clear know that is not specifically the subject of this evening’s that separate male or female services exist for a reason: debate, but it was a point very well made and one to provide gender-appropriate services. which I am particularly aware of, having raised a The Government are committed to tackling harassment Question in the House on this only last year. She and abusive behaviours by all individuals and to ensuring mentioned the greater impact that this has for women, that safe spaces are safe for those using them. The but also mentioned the good work that the APPG is Equality Act also allows people with the protected doing in highlighting the “bins for boys” initiative, characteristic of gender reassignment to be excluded which we should take note of, and that Network Rail from a single-sex service where it is necessary and has abolished all charges for loos in most London proportionate. Each organisation owning a building railway stations. I think that concludes my remarks, shapes its premises to suit its need, and it is not the but if there is anything I have missed out, I would be Government’s role to tell them how. Regulations and delighted to write to noble Lords. 95 Terrorist Offender Bill [LORDS] Terrorist Offender Bill 96

Terrorist Offenders (Restriction of On that issue, I will not summarise the respective Early Release) Bill arguments of what the noble Baroness,Lady Chakrabarti, described, perhaps optimistically,as two fantasy football Committee (and remaining stages) teams of lawyers, although I would correct her in one respect by pointing out that the noble Lord, Lord Pannick, 8.48 pm as I have confirmed with him, is for these purposes a member of the squad supporting these amendments, along with the former Independent Reviewer of Terrorism Clause 1: Eligibility for release on licence of terrorist Legislation, the noble Lord, Lord Carlile, the former prisoners: England and Wales law officers, the noble and learned Lords, Lord Falconer and Lord Garnier, and the others who made such pertinent contributions, including the noble Baroness, Amendment 1 Lady Meacher, and my fellow signatory, the noble Lord, Lord Beith. The noble Lord, Lord Hogan-Howe, Moved by Lord Anderson of Ipswich although not a member of the team, expressed his 1: Clause 1, page 2, line 32, after “period”” insert “, in relation discomfort about the way the Bill has been written. to a sentence imposed after this section comes into force,” The Minister advanced two reasons in his all-Peers Member’s explanatory statement letter which I dealt with in opening, and then two This amendment creates a distinction between sentences imposed more came along as he wound up the debate. With before and after this section comes into force. Prisoners sentenced great respect to him, they were not obviously more after this section comes into force are not eligible for release until convincing. He spoke first of consistency with sentencing they have served two-thirds of their sentence. For this category of prisoner, there is no change from what the Bill currently provides. regimes where Parole Board consideration comes at the two-thirds stage, but the point goes nowhere for there are plenty of other regimes at which Parole Lord Anderson of Ipswich (CB): My Lords, though Board consideration happens at half time. He spoke in common with some others of your Lordships, I of a breathing space, but the releases that are due in regret the highly accelerated way in which this Bill has the next few days and weeks—the ones that we are been handled, the compressed timetable has one very told make this Bill so urgent—are of prisoners who considerable advantage: the excellent debate we have are well past both the half way and the two-thirds just had at Second Reading, much of it touching on point, so the application of one test rather than the the subject matter of these exploratory amendments, other makes no difference in practice and gives the is still ringing in our ears. For that reason, there seems Parole Board no additional scope to draw breath. He little point in trying to repeat the full glories of that spoke of public confidence, but that is a self-serving debate at this hour of the evening, for the battle lines argument; it is about appearance, not about a real and are pretty clear. objective justification. He also spoke of a further Every speaker who addressed the issue, as the Minister period of incapacitation as being an advantage of the rightly said, sees the need for a degree of retrospective scheme in the Bill, but if these amendments were to be effect to protect the public: the injection of Parole accepted, no one would be released at half time unless Board review into the sentences of existing prisoners, the Parole Board considered them to be safe, so the only despite the fact that those prisoners will have been prisoners who will be further incapacitated by the assured by the judge who sentenced them that they provisions that we seek to amend are those who, in the would be automatically released by the halfway stage assessment of the Parole Board, could safely be released. of their sentences. None of us is prepared to see them That, I suspect, is more than enough from me. I beg released before the end of their sentence without the to move. Parole Board’s say-so. The issue raised by Amendments 1 and 2 which Lord Garnier (Con): My Lords, there was never any relate to England and Wales, and Amendment 4 which possibility of my becoming a member of the Court of relates to Scotland, is whether we should go further Appeal, but had I been a member, the job I would into the dangerous waters of retrospectivity, as the Bill most like to have had is that of the third member of in its unamended form would do, by providing as a the court who says, “I have read the judgment of my universal rule that not even Parole Board scrutiny will learned friend. I agree and I have nothing further to be considered until the two-thirds point of the sentence. add.” I have heard what my friend the noble Lord, This—let us not forget—is in relation to prisoners who Lord Anderson, has said both at Second Reading and are at the bottom end of the terrorism scale where just now and I have nothing further to add save one seriousness is concerned and who are not assessed as point. dangerous by the trial judge or they would have been During the course of the Second Reading debate, on a different and more onerous type of sentence. instead of saying “two-thirds” I said “three-quarters”. On this issue, the European Court of Human Rights I do not suppose that that made much difference to seems to be a sideshow.As the noble Lord, Lord Pannick, the way in which the House considered the matter, and said—and I agree with him—it is not likely to be the noble Lord, Lord Anderson, has made the points contravened by whatever we do. What we need to ask that need to be made. The one thing I have learned in is whether sufficiently cogent reasons have been advanced politics is that it is possible to win the argument and to to displace, in the interests of public safety, the normal lose the vote, and it is possible to make winning presumption that a prisoner’s sentence will not be arguments and sensibly to avoid a vote. For my part, I changed to his disadvantage after it has been passed. think that the noble Lord, Lord Anderson, has made 97 Terrorist Offender Bill [24 FEBRUARY 2020] Terrorist Offender Bill 98 and won the arguments, but whether he moves this represent what I would have considered a reasonable issue to a vote is another matter. However, he has Bill to tackle the difficult problems we are dealing with certainly won the moral victory. tonight. I support strongly my noble friend Lord Anderson and others who have signed these amendments. Lord Beith (LD): My Lords, I do not dissent at all from that assessment that a moral victory has been won, but that is only the beginning of the story. I Viscount Hailsham (Con): My Lords, I rise only simply want to address the Government’s distinctly briefly. First, I apologise for not participating in the lacking arguments against the amendment as advanced Second Reading debate. I had a professional engagement so far in a context where there was such widespread that I thought would go on all day, so I did not put my agreement on the efficacy of bringing the Parole Board name down to speak, but I have been present throughout into all cases but no very clear defence by the Government almost all the debate, so I am familiar with the arguments as to why the two-thirds provision has to be imposed that have been articulated. on those who would otherwise have been released Turning directly to the comments and the amendment without the Parole Board’sinvolvement half way through of the noble Lord, Lord Anderson, like other noble their sentence. Lords I do not like changing goalposts. I entirely take The arguments produced by the Government have the point made by the noble Lord, Lord Beith, the been very strange. One was that it would create greater noble and learned Lord, Lord Falconer, and of course confusion. It is in the essence—in the nature—of this the noble Lord, Lord Anderson, himself. In principle, provision that there will be confusion, because nobody it is an unsatisfactory business. I am not competent to can know what assessment the Parole Board is going form a view as to whether this is an infringement of to make of their case. The avoidance of confusion is Article 7 of the European Convention, but I am not a primary objective of this: quite the contrary, we bound to say that I took a great deal of reassurance on invite the Parole Board to make a very serious that point from the speeches of the noble and learned consideration of each case and only to allow release at Lord, Lord Judge, and the noble Lord, Lord Pannick, either the halfway or two-thirds point if it is satisfied both of whom addressed the matter most directly. that there is not a danger to the public from doing so. My arguments are of a more pragmatic nature. The confusion argument does not really make any Firstly,the Bill introduces two elements of retrospectivity. sense at all. The first is the introduction of the Parole Board Then there is the argument that this will increase filter—a point made by the Minister. The second, and public confidence. Of all the things that might increase different, element is the introduction of raising the public confidence, I cannot see someone rushing into minimum custodial period from one-half to two-thirds. the pub saying, “Have you heard? Do you know that Almost everybody who has spoken in this House, and some of these offenders might spend up to another everybody who I heard, welcomed the introduction of year in jail, but then they will be released?” That is not the Parole Board filter and thought it was a jolly good what public confidence is built on, and it is the wrong idea—but it is retrospective. Once one has decided argument to use for something that involves issues of that one can as a matter of principle accept that liberty. retrospective change, I find it quite difficult to see why Then I want to challenge the argument about the as a matter of principle one should not accept the further period of incapacitation, because terrorists in other change: namely, raising the minimum period prison are not incapacitated. They engage in grooming from one-half to two-thirds. and recruitment activities and, as I said in the Second Reading debate, in some cases might be able to achieve 9 pm more by their work among other prisoners—including I will make two final pragmatic points. First, this prisoners who are not there for terrorist offences—than will make very little difference—a point which was they might be able to achieve on the outside. They identified by the noble Baroness, Lady Meacher, to might recruit a larger number of people, so I do not which the Minister referred. Lastly, we have been told accept the incapacitation argument. many times, and I wholly agree, that this is but to The only argument that would be persuasive would secure a breathing space. We have an emergency, and I be that it was impossible, with this amendment as accept that, but we will now see coming down the drafted, to avoid the situation in which the Parole track the counterterrorism and sentencing Bill. I very Board could not cope in a reasonable period of time much hope that that Bill will be the subject of widespread with the cases at the half-time stage, but that probably consultation. I hope in fact that there will be a review. could be overcome by alternative drafting if the drafting We will hear the noble Lord, Lord Marks, talking presented tonight has that problem. That would be the about a review; I should support him, because I want only argument that would persuade me: that we were a much wider review. However, we ought to have a letting people out without the Parole Board assessment, review of existing legislation, and therefore we will when the whole purpose of this is to make sure that have the opportunity to revisit precisely this question they have that assessment. on that occasion. Therefore, I do not like moving Therefore, unless the Government produce a better goalposts but in this case, and in the context of the argument, I do not think that they have made the case. Bill, I am content to do so. Lord Carlile of Berriew (CB): My Lords, my name is the fourth name on these amendments, and I am not Lord Thomas of Cwmgiedd (CB): May I add one going to add anything, save to say this: I wish it had observation? I warmly support the idea of a Parole not been necessary to table these amendments. They Board review. It is plainly not contrary to Article 7, 99 Terrorist Offender Bill [LORDS] Terrorist Offender Bill 100

[LORD THOMAS OF CWMGIEDD] not address that, as it is not addressed to that point in and, if one looks at whether it is justified as against time. On Article 7, it misses the point, and does not the presumption against retrospective or retroactive achieve anything. legislation, there are reasons which justify taking that view, as has been explained in the debate. Ultimately, it The noble Lord, Lord Anderson, said that the may be for others to opine on that. convention was a sideshow. That brings me to the other point, which I think I do understand, on the value of However, the one thing that troubles me is the retaining the Parole Board at halfway through the retrospective nature of this. I accept—it is obviously sentence, partly for the reason that changing the system sensible—that a mistake was no doubt made many for those who have already been sentenced seems years ago, before the full import of terrorist offences instinctively rather unfair to them. It also has a value was understood, which assumed that you could safely in getting the Parole Board in as early as possible, release anyone at the halfway point. I have dealt with because the longer it has to assess the element of risk, many appeals on terrorist cases and I can only confirm the greater the possibility that it can achieve something what has been said, which is how difficult it is to make useful at the end. To shorten it, which seems to be the the assessment. Therefore, it is plainly right that there effect of the Government’s amendment, reduces the be an assessment—but, if that is the position and we opportunity for the board to get into the depths of say, “Okay; the person is to stay in prison up to the the mind of the individual and to see what it can do maximum of the term imposed by the judge, until he is about the risk. If that is the purpose of the amendment, deemed to be safe”, the detention is lawful and there is why not have the same rule for everybody? It is accepting justification for that retrospectivity. What I fail to the Government’samendment for the newcomers—those understand—I am sure that it is my fault—is why we who have not yet been sentenced. It would be more should apply this to a person who was properly sentenced, logical to apply the same rule throughout. is not dangerous and should not be serving more than the minimum term. I cannot accept the argument that That goes back to the point made by the noble and we are trying to make the sentencing system logical, learned Lord, Lord Falconer of Thoroton, when he which is confusing. Anyone with any experience of it asked what the change from a half to two-thirds knows that it is in sad need of reform, and the Law would achieve, given that the Parole Board will be Commission Bill will help great a deal in that respect. involved anyway. If it comes in halfway through, there is no question of the prisoner being released until it is In addition, evidence shows that keeping someone safe for them to be released, which could well be right in prison, particularly if it is for an Islamic terrorist up until the end of the sentence imposed by the judge. offence as opposed to another kind of terrorism offence, Logically, it would be sensible to have the same rule might make them more dangerous. It therefore seems for everybody, rather than split it up. The other point, that the only reason that can be advanced is that it is which is worth emphasising, and perhaps an answer to not practicable for the Parole Board to deal with the the noble and learned Lord, Lord Thomas, is that a matter immediately. However, if this legislation makes great deal has been said about automatic release, but it it lawful to maintain someone until the Parole Board is not unconditional release. This point was made very decides that they are safe, what is the risk in saying, effectively by the noble Baroness, Lady Chakrabarti, “That is the law; we don’t need to impose a two-thirds when describing the deficiencies of the Parole Board term”? I do not follow that. It seems that it is grossly system. unfair and very difficult to justify for someone who, in fact, is no danger.I cannot see the risk for the Government, When the original scheme was devised with release but maybe I have not understood this properly, because subject to conditions, it was understood that these detention in custody would be perfectly lawful, and it conditions meant something. I remember cases in would be very difficult to mount a case saying that the which I was involved where people were returned to prison authorities were negligent or in breach of duty custody because they had breached their conditions. It in not getting on with the matter, when it is Parliament was not just a day in custody; they were in for a itself that has decided to make the change. On that substantial time until it was regarded as appropriate basis, the Bill is plainly necessary,but I do not understand for them to be released again. In the case of life this one minor aspect of it, and I look forward to the prisoners, sometimes they went backwards and forwards Minister’s clarification. because they had breached conditions, and they went back in again. This is what we have lost, I am afraid. It bears thinking about that the release halfway through Lord Hope of Craighead (CB): I have some difficulty is not unconditional; it is a conditional release subject in understanding what exactly the amendment is trying to the licence terms. That has a bearing on whether to achieve. I have the greatest respect for all four noble this is something that attracts the Article 7 attack in Lords who have tabled the amendment, but to take the any event. For the reasons I have indicated, I am point on Article 7 of the European Convention on slightly puzzled by the amendment, and I am not sure Human Rights, I do not think that the amendment that I would support it. meets the terms of the article. It seeks to address the position when the sentence was imposed, whereas Article 7 refers to the situation at the time when the Lord Mackay of Clashfern (Con): My Lords, I will act that gave rise to the criminal offence was committed. not apologise to your Lordships for not speaking It is worded in such a way that the individual should at Second Reading. It is, rather, a matter for have been aware at the time of his conduct what congratulation—noble Lords have not had to listen to sentence he was likely to receive. The amendment does me twice. 101 Terrorist Offender Bill [24 FEBRUARY 2020] Terrorist Offender Bill 102

The situation is one of severe crisis in respect of the 9.15 pm damage that has occurred as a result of the release of persons described in this Bill. That is a matter of the Lord Falconer of Thoroton (Lab): My Lords, I utmost importance for Her Majesty’s Government, strongly support the amendment tabled by the noble because if any human right is vital it is people’s right Lord, Lord Anderson. It grieves me to do so because to be protected against danger, by their Government. I am disagreeing with the noble and learned Lord, That danger has been illustrated vividly by these two Lord Mackay of Clashfern, but this is emergency incidents. legislation, so described. Put aside the question of precisely what Article 7 means or how the presumption I do not imagine for one minute that anyone thought against retrospectivity works; it is essentially a bad that the man involved in the London Bridge incident thing for a legislature to change the sentence of everybody was going to do anything like that. One of the people in a particular group.Everybody accepts that proposition, murdered was doing his best to look after him and to except, possibly, one noble Lord who said that it bring him into ordinary life in a good way, yet that would be good if everybody’s sentence went up—but man was struck down. I do not believe it is possible to let us put that to one side. It is bad for a legislature to discern who is dangerous and who is not, because the change a whole cohort sentence because you should problem with this type of danger is that it is not be sentenced by the courts, not by a legislature that necessarily there when the man or woman is originally subsequently takes a different view, primarily because sentenced. It is danger that, to a great extent, seems to of public pressure. It may be legitimate public pressure, have arisen as a result of the experience in prison, and but it is public pressure nevertheless. that is most unfortunate. There may be circumstances that make it necessary to break with that principle. If you have to break with On the other hand, if you had an opportunity to it, break with it to the minimum degree required to ask somebody to change his mind, you may find it provide public protection. I do not agree with the “in difficult if he has a religious persuasion. The people for a penny, in for a pound” approach of the noble trying to get rid of this danger in prison are finding Viscount, Lord Hailsham: that if there is some justification that it is very difficult to succeed and mightily difficult for retrospectivity, any retrospectivity is justified. That to know when, if at all, the attempt has succeeded. cannot be the right approach. The concentration therefore has to be on the circumstances in which one of these people is released. One way of The problem here is that prisoners may well be very dealing with that, to get a bit of time, is to postpone dangerous—the Streatham terrorist was plainly and the release. That is what is done in the move from half evidently dangerous, because he had said that he wanted to two-thirds. Of course, there is still a third of the to commit very dangerous crimes—and yet they have sentence left. to be released. The solution is to make sure that somebody looks at every individual case and that those people can be released only if, in the words of The second point that has been made clear is that the Bill, there is a substantial number of convicted prisoners up for release quite soon. The Parole Board’sinvestigations “the Parole Board is satisfied that it is no longer necessary for the are quite substantial, and I do not believe it would be protection of the public that the prisoner should be confined.” possible for the board to deal with a large number of these satisfactorily in a very short time. We have to So, unless the Parole Board is satisfied that the person remember the decision the board is going to take. is no longer a danger, they must be kept in prison. Personally, I would not like to be a member of the On the right way to approach this, instead of saying Parole Board taking that responsibility. I am glad to that everybody must stay in prison for longer, even if say that there are people who do that and who have the they are evidently no longer a danger, the right course skills to do it properly. On the whole, the Parole is for everybody to be looked at. As the noble and Board’s decisions have been pretty well received. One learned Lord, Lord Mackay of Clashfern, says, it or two—I remember one in particular—have been by might be that we cannot reach everybody by the time no means well received, but generally they have been. they are half way through their sentence. That is dealt So it is important that it gets a proper opportunity to with by the perfectly adequate drafting in this Bill, carry out its task. which says that you can be released by the Secretary of State only after you have been examined by the Parole The rule is to be that when the two-thirds is up, the Board and it has directed that you can be released. prisoner is released or not according to whether the Therefore, the factor that determines when you get Parole Board is satisfied that it is safe for the person to released is not that you have to wait until you are be released. That seems the best possible solution to a two-thirds of the way through your sentence before it mighty difficult problem. However,it is only a temporary is considered, but that you are considered at half-time solution, because when the sentence is fully served, the and, if there is a delay while the Parole Board gets its person is to be released in any case, without anything act together, you the prisoner must wait, and the from the Parole Board. That matter must be dealt with problem is solved. Of course there are difficulties in in the Bill that is to come. In the meantime, with making an assessment, but there is that difficulty respect to the noble Lord, Lord Anderson, I cannot whether it is two-thirds of the way through a sentence see any justification for dividing up the original division or halfway through. It is fundamentally wrong that we with this amendment. The Bill would be better without just up it to two-thirds for no good reason in the the amendment. context of emergency legislation. 103 Terrorist Offender Bill [LORDS] Terrorist Offender Bill 104

[LORD FALCONER OF THOROTON] In answer to the noble Viscount, Lord Hailsham, the I shall make one more point and then give way to difference between one aspect of the retrospection and the noble Lord, Lord Cormack. I do not accept the the other is that one does not compromise public proposition being advanced that this provision, which safety, pure and simple. increases detention from a half to two-thirds, would By accepting the amendment of the noble Lord, not offend against Article 7; nor do I accept that it Lord Anderson, nobody is let out, even with the would not offend against the presumption against administrative challenges of getting up a Parole Board retrospectivity.All the Article 7 cases are about changing under the appalling and savage cuts and debilitation to the terms. So, in the Uttley case, somebody comes out the system that I spoke about earlier, without Parole with some terms on release, whereas previously there Board approval. That is the distinction between his would have been no terms on release. In another case amendment and the status quo ante, which is that where it is held not to be retrospective under Article 7, people come out automatically, regardless of their a person is moved from one country to another and risk, at the halfway point. different provisions apply; but that was the provision In answer to others, I have so much respect for the right from the start. In the Aberdeen case, which the noble Lord, Lord Cormack, but his point was about noble Lord, Lord Pannick, relied on—sadly, he is not people who are not even on the radar. That problem is here—somebody was released and then recalled. The ongoing and not dealt with by this Bill. Saying that rules changed regarding what happens when you are people should be held for as long as possible is not an recalled. These examples do not go to the fundamental answer to the amendment in question now.By definition, point of keeping you in prison for longer. those who are affected by this Bill are subject to finite In the one case in which that matter was considered sentences that are not always very long, because these by the European Court of Human Rights, the Inés are not by definition the most serious terrorist offenders, Del Río Prada case, the fundamental reason why it as the noble Lord understands. These are people who was held to be retrospective was that a sentence was were subject to the regime that we have been examining changed because time off for work in prison suddenly because they were at the lower end of the scale. To began to count in a different way and, instead of quote once more the former Prime Minister, these getting out in 2008, the unfortunate prisoner was not people are coming out at some point, and there has to going to get out until 2017. That was held to be in be some principle in the way that we engage with this. breach of the retrospectivity rule. I find it very difficult to distinguish this case from that case, whereas it is easy to distinguish all those other cases in which the The Advocate-General for Scotland (Lord Keen of Elie) precise terms changed but not the length of time in (Con): My Lords, we all understand the purpose of prison. this amendment and of the other amendments in the However, that is not the prime way in which I put group, albeit that I will come on to deal with the point my case, which is that if we are in emergency legislation that arises with regard to the second amendment if I going to impose this provision, we should not be may.But I begin by referring to one or two observations upping the sentence if we can meet the emergency made by the noble Lord, Lord Anderson. He observed with the introduction of the Parole Board. We can do that when sentenced these persons were not regarded so and should do no more than that now. I give way to as dangerous by the court, but I cannot wholly accept the noble Lord, Lord Cormack. that proposition. Their offences may not have been part of the extended determinate sentence regime at Lord Cormack (Con): I would rather make my own the time they were sentenced, but of course a number comments, because the noble Lord did not give way at of terrorist offences were added to the extended the point at which I wished to intervene when he was determinate sentence regime only in 2019. It cannot be talking about the two cases that are the reason behind assumed that these people were regarded as non-dangerous this emergency legislation. He talked about the Streatham at the time they were sentenced, so I cannot wholly stabbings. What he failed to acknowledge was that the accept that. really dangerous terrorist was the one at Fishmongers’ The second fact that I have to raise concerns the Hall, who had feigned conversion and then turned on suggestion that those due for release in coming days the very man who had been his mentor. That, in a are past the halfway or two-thirds point. I am advised nutshell, illustrates why it is important that we have that the prisoners due for release shortly are approaching this emergency legislation. I made it plain in my speech the halfway release point in their sentences. That is at Second Reading that this is only the beginning. We simply the advice that I have been given. Therefore, want substantial legislation; my noble friend has promised there remains an issue over their release. The noble it and we must hold him to that promise. But we need and learned Lord, Lord Falconer of Thoroton, said, to pass this tonight without further ado, and I very “They can wait for the Parole Board to get its act much hope that the noble Lord, Lord Anderson, who together”, but I rather think that if that happened we made an extremely good case with great eloquence, would face a challenge under Article 5.4 of the convention, will feel able to withdraw his amendment. and therefore that is not a complete answer at all. Indeed, the noble and learned Lord talked repeatedly Baroness Chakrabarti (Lab): My Lords, I associate about fundamental points.That leads me to fundamentally myself with the noble Lord, Lord Anderson, and my disagree with him on a primary point that he kept on noble and learned friend Lord Falconer. I have listened making, which is that the legislation would change the to this debate and heard no compelling reason why sentence and that they should be sentenced by the this amendment has not been adopted by the Government. court. The legislation does not change the sentence; 105 Terrorist Offender Bill [24 FEBRUARY 2020] Terrorist Offender Bill 106 they have been sentenced by the court. As I alluded to Clause 1 agreed. earlier,there is lengthy legal authority for the proposition that the court has regard to the appropriate sentence Clause 2 agreed. that should be imposed for the crime irrespective of what point there may be executive action for release during the period of that sentence. In other words, it Amendment 3 does not distinguish between the custodial and non- Moved by Lord Marks of Henley-on-Thames custodial elements. That is why the provisions of the Bill are entirely Article 7 compliant apart from 3: After Clause 2, insert the following new Clause— anything else. “Review of sections 1 and 2 I understand the concern that arises when we have (1) The Secretary of State must arrange for an independent review of the impact of sections 1 and 2 to be carried out to look at the presumption against retrospective operation in relation to the initial one-year period. of the law. One thing that the Bill does is to bring the (2) The Secretary of State must, after consultation with the earliest release point for the standard determinate Independent Reviewer of Terrorism Legislation, appoint sentence into line with the earliest release point for a person with professional experience relating to extended determinate sentences and therefore to produce, imprisonment for offences of terrorism to conduct the if nothing else, an element of consistency. We have review. been clear that terrorist offenders should serve time in (3) The review must be completed as soon as practicable custody that better reflects the seriousness of their after the end of the initial one-year period. offending, particularly in light of recent events, and (4) As soon as practicable after a person has carried out the the measures in the Bill are in keeping with that review in relation to a particular period, the person approach. must— I repeat the point—albeit some noble Lords do not (a) produce a report of the outcome of the review, and feel that there is much force in it—that applying these (b) send a copy of the report to the Secretary of State. measures retrospectively will ensure that terrorist prisoners (5) The Secretary of State must lay before each House of who are currently serving sentences are incapacitated Parliament a copy of the report sent under subsection (4)(b) for longer. There is a reason for that in light of what within one month of receiving the report. happened, for example, in November last year. (6) The Secretary of State may— I want to raise one further point. As I read (a) make such payments as the Secretary of State Amendment 2, it would apply not only to those serving thinks appropriate in connection with the carrying fixed determinate sentences but would also reduce the out of the review, and release point for those who have been convicted and (b) make such other arrangements as the Secretary of sentenced under the extended determinate sentence State thinks appropriate in connection with the regime. I suspect that is an unintended consequence—it carrying out of the review (including arrangements for the provision of staff, other resources and is not the primary grounds on which I resist the facilities). amendment. In light of this debate, I urge the noble (7) In this section, “initial one-year period” means the Lord to withdraw this amendment. period of one year beginning with the day when this Act comes into force.” 9.30 pm Lord Anderson of Ipswich: I am a little nervous of senior political figures, however eminent, saying that Lord Marks of Henley-on-Thames (LD): My Lords, they have won the argument unless they have also my Amendments 3 and 5 seek a review of the working shown themselves capable of winning a vote. Despite of this legislation one year after the Bill comes into that, we have had two excellent debates, both at Second force. Amendment 3 is concerned with Clauses 1 and 2, Reading and just now, on the subject matter of these relating to England and Wales, while Amendment 5 is amendments. Extremely eminent people have lined up concerned with Clauses 3 and 4, relating to Scotland. on both sides. I think someone tuning in to Parliament I suggest it is always sensible to review the working TV might have thought at times that they were watching of legislation after it has come into force. That usually Supreme Court TV but, none the less, points have occurs in the case of non-urgent legislation after a been made and markers have been well and truly laid period of years. However, review is even more important down for the forthcoming terrorism sentencing Bill and urgent in the case of emergency legislation. This and, indeed, for future Bills. Bill cries out for a specific review of how its provisions It seems to me that moving an amendment from the are working, precisely because it is being put through Cross Benches is a bit like crossing the road in that it is Parliament as emergency legislation. We have had no prudent to look very carefully to the left and to the time for consultation or proper scrutiny—one day in right. As I have been doing that over the past few the other place and one day here. The result has been minutes, it has seemed very clear to me that the traffic that a number of questions that have arisen today have is a great deal heavier on the government side and I been inadequately considered, so that the Government have drawn the necessary conclusions. My heartfelt have no answers to them. That is not a criticism of the thanks go to all noble Lords who have spoken in this noble and learned Lord, nor of the Government in debate, but I shall be seeking leave to withdraw the general. It is the inevitable consequence of the haste amendment. with which we are passing this Bill. Amendment 1 withdrawn. We have heard today from noble Lords around the House about the risks posed by the lack of measures Amendment 2 not moved. to improve deradicalisation and rehabilitation in prisons, 107 Terrorist Offender Bill [LORDS] Terrorist Offender Bill 108

[LORD MARKS OF HENLEY-ON-THAMES] it is to be expected—and the independent reviewer, and of the risks of radicalisation in prison of non- Jonathan Hall QC, has confirmed—that he will scrutinise terrorists. Wehave also heard of the dangers of legislation this legislation in his regular annual review. I am sure that in practice, even if not in law—as to which there that that is so, and it is indeed very welcome, but has been much argument—has retrospective effect. I neither of the independent reviewer’s reviews will be agree with the noble Lord, Lord Pannick—which I specifically directed to the efficacy or merit of the have not always done today—in his point that this Bill provisions of this legislation. They cannot therefore involves keeping in custody terrorist prisoners who take the place of proper parliamentary scrutiny, which have served half their sentences and who would have we have been denied. It is an inappropriate treatment been released had they had a safety assessment by the of Parliament to attempt to piggyback post-legislative Parole Board at that point. scrutiny of this Bill on reviews conducted for a separate I have discerned no indication from the Government and different purpose, however good those reviews that the point made by the noble Lord, Lord Pannick, might be expected to be. has been considered by them. The noble Lord made Our amendments would require the Government to his point in the context of serving prisoners, whose commission a review by an independent professional, time in custody is to be increased by the enactment of whose appointment would be made in consultation this legislation. However, this is presented, rightly, as a with the Independent Reviewer of Terrorism Legislation. public safety Bill, and the point might also be relevant No one has seriously challenged the mechanism of in relation to some terrorist offenders, not yet sentenced our proposed review. I beg to move. and probably at the lower end of the scale, who would plainly have a better chance of rehabilitation if released Lord Anderson of Ipswich: My Lords, I want to pick following the halfway point on a favourable Parole up on the point just made by the noble Lord, Lord Marks, Board safety assessment. about the independent reviewer. As a former independent Then there was the argument put forward by the reviewer myself, I am temperamentally rather inclined noble Baroness, Lady Meacher, that a breathing space to the merits of independent review. However, in his could be secured by interposing a Parole Board safety note of 19 February on this Bill, Jonathan Hall said: assessment, when it can be prepared, but before a “I consider that the effect of sentences passed under the release following the halfway point and such an Terrorism Acts falls within my remit as Independent Reviewer of assessment, and before the two-thirds point. That, Terrorism Legislation, and therefore I would propose to report on the impact of these changes (and of the changes likely to be made again, was an argument that the Government could by the more sizeable Counter-Terrorism Sentencing Bill later in not meet. the year) in one of my forthcoming annual reports, most likely my Those are all concerns that cry out for review report on the Terrorism Acts in 2020.” because the emergency treatment of this Bill has cut Perhaps I may ask the Minister, when he responds, to its consideration to the bone; yet, far from accepting confirm whether it is his impression, as it is mine, that the need for an urgent review, the Government’s position reviews of that nature fall within the existing remit of is unclear, inconsistent and, bluntly, all over the place. the independent reviewer. Perhaps I may also ask the At paragraph 58 of their impact assessment the noble Lord, Lord Marks, to comment on whether, in Government wrote: the light of that fact, his amendment will really add anything at all. “In the normal way, the … Bill will be subject to a post-legislative review to determine whether this legislation is working in practice as intended. This will take place between three and five years Viscount Hailsham: My Lords, I rise very briefly to following Royal Assent.” express my views on this amendment. I have a lot of Therefore, there will be a review but very late. In sympathy in general with the proposition that we need contradiction to that position, in the Explanatory Notes, a review. However, I cannot support it on this occasion the Government say the following at paragraph 16, in for two reasons. question-and-answer form, on issues raised by fast-track The first is, I admit, wholly pragmatic; this is going legislation. The question is: to go nowhere. This matter was discussed in the House “Are mechanisms for effective post-legislative scrutiny and of Commons. The noble Lord, Lord Marks, will know review in place? If not, why does the Government judge that their that there were two amendments, creating a new Clause 1 inclusion is not appropriate?” and a new Clause 3. The latter in the House of The Government’s answer is: Commons was in exactly the same terms as the noble Lord’s amendment and was barely discussed. I think “No post-legislative scrutiny is planned. However,the Government that new Clause 1, which was a Labour Party amendment, intends to introduce a Counter-Terrorism (Sentencing and Release) Bill later in this Session.” also received no effective discussion. So it will not go anywhere, and I personally am not in favour of However, we do not know what will be in that Bill, and parliamentary ping-pong on this matter, rather for the it does not seem to answer the need for a specific reasons advanced by my noble friend Lord Cormack. review of the working of this Bill. The second reason is rather longer: this does not go Today I have been told by the Government that they nearly far enough. Indeed, such a review could stand are not prepared to agree to a review because the in the way of the kind of review that I would hope to independent reviewer is already engaged upon his review persuade your Lordships is desirable. We have a of the Multi Agency Public Protection Arrangements counterterrorism and sentencing Bill coming forward. —theso-calledMAPPA—andthereleaseandsupervision For that purpose, it is absolutely essential that there is arrangements will inevitably be included in that. Also, very wide consultation prior to the consideration by 109 Terrorist Offender Bill [24 FEBRUARY 2020] Terrorist Offender Bill 110

Parliament of that Bill. That could be called a review Therefore, I say to the noble Lord, Lord Marks, but is essentially a consultation, and it has to address that I am not against reviews, but I think his review is at least four substantive matters. far too narrow and could stand in the way of the much First, there is the complexity of the existing sentencing bigger review that I think is essential. and sentence arrangements. These were described very eloquently by the noble and learned Lord, Lord Judge. It is a hugely complex area. There is huge scope for 9.45 pm consolidation and simplification. That should be addressed in a pre-Bill consultation process. Lord Keen of Elie: My Lords, this Bill is only one element in a much broader response to terrorism, Secondly, we need to know much more about how which includes both legislative and non-legislative terrorism prisoners are being managed in the prison measures. The Government’s view is that it would be estate, and in particular the degree to which Mr Acheson’s inappropriate to consider just one element of those actual recommendations are being implemented. To measures in isolation. We have announced our intention the extent that they are not, we need to know the to introduce a counterterrorism (sentencing and release) reasons why. Bill, which has been referred to. That will make wider Thirdly, almost everybody who has spoken in these changes to the release arrangements governing terrorist three debates has welcomed the Parole Board filter prisoners, as well as the penalties available to the that is being introduced. But the Parole Board can courts. The provisions of this Bill—hopefully by then only act on information that it receives. It is absolutely enacted—and the questions surrounding discretionary essential that there is provision within the prison system release for terrorist offenders will no doubt form part for making suitable information available. That means of that ongoing debate. a whole range of things, such as having experienced Last month, the Government launched an independent probation officers; having experienced prison officers review of the multiagency public protection arrangements. —which is very important, because too many are This review is being led by the Independent Reviewer retiring and being replaced by very young ones; of Terrorism Legislation, Jonathan Hall, Queen’sCounsel. appropriate courses; meaningful out-of-cell activity; The release and supervision arrangements for many of and not churning prisoners from prison to prison the prisoners to whom the Bill applies will inevitably within the estate. We have to know about all of this. be included in that review. A report following the The noble Lord, Lord Ramsbotham, has made this MAPPA review will be provided to the Home Secretary point on many occasions. Provision of all of these and Justice Secretary for publication as soon as is things in prisons is lamentable. We are going to see practicable. really large sums of money being dedicated to the Prison Service. But if the Government are serious Taking up the point made by the noble Lord, about increasing the number of prisons, the money Lord Anderson of Ipswich, we anticipate that, in the will actually go on buildings, not to the provision of course of his routine duties as the Independent Reviewer the courses and information that will be absolutely of Terrorism Legislation, Jonathan Hall will scrutinise essential to enable the Parole Board to make an effective the new release legislation for terrorist offenders in his decision. annual report; that is a statutory commitment. Indeed, as the noble Lord, Lord Anderson, observed, the My last point is that, down the track, the Parole Independent Reviewer has already said in his comments Board will release prisoners who go on to commit very on the Bill that he envisages doing just that in a future serious offences—probably multiple murder. It will report. I would certainly accept that that falls well almost certainly happen and will be a tragedy. At that within the boundaries of his responsibilities, and it is point, there will be immense public opinion calling for in these circumstances that we say that a further prisoners to be kept in prison indeterminately. If I may review is unnecessary. say so, that is the point that my noble friend Lord Cormack was addressing. My point is that that pressure The Government are clear that we want to see an will arise. I personally believe that it may be necessary end to the automatic early release of terrorist prisoners. to introduce some form of post-sentence control-order In the forthcoming counterterrorism Bill, we will make process, as mentioned by the noble Lord, Lord further changes to the law surrounding the release of Macdonald. That may be necessary, but I think it these offenders. In addition, later in this Session we should take the form more of the old control-order intend to introduce a sentencing Bill that will cover regime, rather than indeterminate sentences of the wider areas of sentencing and release policy. Again, kind identified by my noble friend Lord Cormack. that will provide an opportunity to discuss sentencing Whatever the case, we need to consider it now, not and release arrangements. In these circumstances, we in the context of emergency legislation. If there is consider that there is no requirement for the further emergency legislation, there will be immense pressure review proposed by the noble Lord, Lord Marks, and for indeterminate sentences, and I have a very strong I urge him to withdraw his amendment. feeling that that is profoundly wrong and that we should not do it. The consultation that will precede the introduction of the counterterrorism and sentencing Lord Marks of Henley-on-Thames: My Lords, I Bill should address what happens if the Parole Board turn first to the point made by the noble Lord, does release offenders who go on to commit multiple Lord Anderson, and the question that he asked me. I murder. It is much better to do this over a slightly accept, of course, that the independent reviewer Jonathan longer period, without the urgency of emergency Hall, QC will be looking at the way this Bill is working; legislation, than to do it in the latter context. but he will do so in a much wider context—that of his 111 Terrorist Offender Bill [LORDS] Terrorist Offender Bill 112

[LORD MARKS OF HENLEY-ON-THAMES] Burt of Solihull, B. Parminter, B. annual review and his MAPPA review. An issue of Campbell of Pittenweem, L. Pinnock, B. serious principle is involved. What is needed here is a Cotter, L. Redesdale, L. Dholakia, L. precise review of how the provisions of this emergency Rennard, L. Falkner of Margravine, B. Roberts of Llandudno, L. legislation, passed with inadequate scrutiny,are working. Foster of Bath, L. Sheehan, B. I turn now to the observations of the noble Viscount, Fox, L. Shipley, L. Lord Hailsham. I am afraid that if this House always Glasgow, E. Shutt of Greetland, L. Greaves, L. Smith of Newnham, B. took the view that the House of Commons might kick Grender, B. Stoneham of Droxford, L. back amendments we make, we would lose a great deal Hamwee, B. of our usefulness. The points that we make and the Humphreys, B. [Teller] Hussein-Ece, B. Stunell, L. amendments we pass are often very influential to a Suttie, B. much wider audience. I am not deterred by the fact Janke, B. Jolly, B. Teverson, L. that my colleagues in the House of Commons, who Kramer, B. Thomas of Gresford, L. are slightly less numerous than my colleagues here, Lee of Trafford, L. Thurso, V. failed to get their amendment through that House, or Maddock, B. [Teller] Tope, L. by the fact that the Labour Party’s amendment did not Marks of Henley-on-Thames, Tyler of Enfield, B. succeed. I suggest that it is for us to form a view of this L. Tyler, L. amendment. Newby, L. Wallace of Saltaire, L. Northover, B. Walmsley, B. When the noble Viscount went on to explain the Oates, L. Willis of Knaresborough, L. kind of review that he foresaw as necessary and should take place, and indeed when the Minister responded to NOT CONTENTS these amendments, they were both considering a much wider,more comprehensive, fuller review of the treatment Agnew of Oulton, L. Eccles, V. Anderson of Ipswich, L. Empey, L. and punishment of terrorists, including the Acheson Anelay of St Johns, B. Evans of Bowes Park, B. recommendations on how to secure rehabilitation and Arbuthnot of Edrom, L. Fairhead, B. the whole issue of deradicalisation. Those issues are Ashton of Hyde, L. [Teller] Fall, B. crucial, and my regret Motion was concerned with the Attlee, E. Farmer, L. lack of those provisions. The very fact that the reviews Baker of Dorking, L. Fink, L. that the noble Viscount and the Minister have in mind Barran, B. Finlay of Llandaff, B. are so general and broad-reaching deprives them of Bates, L. Finn, B. the specific accent that a review of this legislation Berkeley of Knighton, L. Flight, L. Berridge, B. Fookes, B. ought to have. Bethell, L. Fraser of Corriegarth, L. We should not forget the emergency nature of this Blackwood of North Oxford, Freud, L. legislation: it is just over three weeks since the awful B. Gadhia, L. atrocity in Streatham High Road. We will have passed Blencathra, L. Gardiner of Kimble, L. this legislation tonight—as I am sure we will—in Bloomfield of Hinton Garel-Jones, L. response to a promise made by the Lord Chancellor, Waldrist, B. Garnier, L. Borwick, L. Geddes, L. the Secretary of State for Justice, the very next day. We Bottomley of Nettlestone, B. Gilbert of Panteg, L. have done it in double-quick time. Question after Bridgeman, V. Gold, L. question was raised in today’s Second Reading—a Brookeborough, V. Goldie, B. very good debate—by noble Lords who know a lot Brougham and Vaux, L. Goldsmith of Richmond about the subject but have had insufficient time to Brownlow of Shurlock Row, Park, L. consider the provisions of this Bill and their consequences. L. Goschen, V. As a matter of principle,it is important that post-legislative Buscombe, B. Griffiths of Fforestfach, L. scrutiny is directed urgently at Bills that are passed as Byford, B. Hailsham, V. Caine, L. Hamilton of Epsom, L. an emergency, and with this Bill, where the liberty of Caithness, E. Harris of Peckham, L. the subject—however undeserving many of the subjects Callanan, L. Haselhurst, L. may be—is at stake, that principle is of great importance. Carrington of Fulham, L. Hayward, L. I have not heard anything said today that addresses Cathcart, E. Helic, B. the requirement for a review of emergency legislation Chalker of Wallasey, B. Henley, L. of that kind, and I therefore wish to test the opinion of Chisholm of Owlpen, B. Hill of Oareford, L. the House. Choudrey, L. Hodgson of Abinger, B. Coe, L. Hodgson of Astley Abbotts, Colgrain, L. L. 9.52 pm Cormack, L. Hogan-Howe, L. Courtown, E. [Teller] Holmes of Richmond, L. Division on Amendment 3 Couttie, B. Hooper, B. Crathorne, L. Hope of Craighead, L. Contents 49; Not-Contents 165. Davies of Gower, L. Horam, L. De Mauley, L. Howard of Lympne, L. Amendment 3 disagreed. Deben, L. Howe, E. Deech, B. Howell of Guildford, L. Division No. 1 Dixon-Smith, L. Hunt of Wirral, L. CONTENTS Duncan of Springbank, L. Inglewood, L. Dunlop, L. James of Blackheath, L. Addington, L. Bennett of Manor Castle, B. Eames, L. Jenkin of Kennington, B. Barker, B. Brinton, B. Eaton, B. Jopling, L. Beith, L. Bruce of Bennachie, L. Eccles of Moulton, B. Judge, L. 113 Terrorist Offender Bill [24 FEBRUARY 2020] Terrorist Offenders Bill 114

Kakkar, L. Reay, L. 10.03 pm Keen of Elie, L. Redfern, B. Kirkhope of Harrogate, L. Ridley, V. Clause 3: Eligibility for release on licence of terrorist Lamont of Lerwick, L. Robathan, L. prisoners: Scotland Leigh of Hurley, L. Rock, B. Lexden, L. Rogan, L. Amendment 4 not moved. Lilley, L. Rowe-Beddoe, L. Lindsay, E. Sanderson of Welton, B. Clause 3 agreed. Lingfield, L. Sassoon, L. Lucas, L. Clause 4 agreed. Sater, B. Mackay of Clashfern, L. Manzoor, B. Scott of Bybrook, B. Amendment 5 not moved. Seccombe, B. Marlesford, L. Clauses 5 to 10 agreed. Maude of Horsham, L. Selkirk of Douglas, L. McColl of Dulwich, L. Sherbourne of Didsbury, L. Schedules 1 and 2 agreed. McInnes of Kilwinning, L. Shinkwin, L. McIntosh of Pickering, B. Smith of Hindhead, L. Bill reported without amendment. Mone, B. Stedman-Scott, B. Montrose, D. Stowell of Beeston, B. House resumed. Morris of Bolton, B. Stroud, B. Lord Bethell (Con): My Lords, the legislation office Nash, L. Sugg, B. is now open for amendments to be tabled for Third Neville-Jones, B. Suri, L. Neville-Rolfe, B. Taylor of Holbeach, L. Reading. Timings for Third Reading will be confirmed Newlove, B. Thomas of Cwmgiedd, L. via the annunciator. Nicholson of Winterbourne, Trefgarne, L. B. Trenchard, V. 10.06 pm O’Shaughnessy, L. True, L. Sitting suspended. Parkinson of Whitley Bay , L. Vere of Norbiton, B. Patel, L. Verma, B. Penn, B. Wasserman, L. Terrorist Offenders (Restriction of Pickles, L. Wei, L. Early Release) Bill Polak, L. Wilcox, B. Third Reading Porter of Spalding, L. Willetts, L. Price, L. Williams of Trafford, B. 10.50 pm Ramsbotham, L. Young of Cookham, L. Randall of Uxbridge, L. Younger of Leckie, V. Bill passed. House adjourned at 10.51 pm.

GC 1 Pension Schemes Bill [HL][24 FEBRUARY 2020] Pension Schemes Bill [HL] GC 2

Grand Committee Much of the content of the Bill is about maintaining and building confidence in the DB system, but with a Monday 24 February 2020 stronger regulator, and improving scheme funding rules. We support this approach. It is a pity that the Bill did Pension Schemes Bill [HL] not include a framework for consolidation but we note Committee (1st Day) that this is to come. Perhaps the Minister will give us a timeline on that. 3.30 pm Although DC schemes remove longevity risks from Relevant documents: 4th Report from the Delegated employers, they are generally characterised as having Powers Committee and 2nd Report from the Constitution lower contribution rates, doing nothing for our chronic Committee undersaving. The Minister in the other place has declared The Deputy Chairman of Committees (Lord Geddes) that he does not want to see the advent of CDC as (Con): My Lords, I remind the Grand Committee that being a channel to further closures of DB schemes. In if there is a Division in the Chamber while we are particular, he clarified that the Bill’s proposals do not sitting—and I am told that may possibly happen later provide a back door to converting DB rights into in the afternoon—this Committee will adjourn as soon CDC rights and are not intended to encourage public as the Division Bells are rung and resume 10 minutes service and/or DB schemes to convert their accrued thereafter. benefits. Clauses 1 to 6 agreed. Can the Minister say how this intention is manifesting itself in the Bill? The data that have been presented to Schedule 1 agreed. us show that CDC schemes can generate a pension income significantly above that of a DC arrangement, but of Clauses 52 to 57 agreed. course this is not guaranteed. The question arises as to Schedule 4 agreed. whether the lure of higher returns could be a catalyst to more DB schemes closing to future accrual. There Clause 7 agreed. are restrictions that make this difficult, at least at the moment—single or associated company arrangements Clause 8: Application for authorisation being but one. Can the Minister say what mechanisms might be contemplated to deflect such moves, if it is Amendment 1 the business of government to do so? Moved by Lord McKenzie of Luton The briefing makes it clear that an employer remains 1: Clause 8, page 5, line 19, at end insert— within its rights to close an existing DB scheme to new accruals and to offer pensions on a different basis “(c) the impact of a collective money purchase scheme on private and public sector defined benefit schemes.” going forward. We know that it has become common for employers to close DB schemes and to open Lord McKenzie of Luton (Lab): My Lords, in moving DC schemes in their place, but the briefing note says Amendment 1 I will speak also to Amendment 34. that CDC schemes should be seen in this context, as a The latter seeks to insert into the regulations’ objectives new option for employers looking to develop their the promotion of DB schemes. Amendment 1 adds as pension offering. Closing DB schemes could indeed be one of the things that TPR may take into account such a channel. I beg to move. when considering an application for a collective money purchase scheme the potential impact of such a scheme TheParliamentaryUnder-Secretaryof State,Department on the DB landscape. Together, the amendments are a for Work and Pensions (Baroness Stedman-Scott) (Con): peg on which to hang a discussion about the position I thank the noble Lord, Lord McKenzie, and the noble of DB schemes and their future, especially outside the Baroness, Lady Sherlock, for tabling these amendments. private sector, and to see what more might be done to Taken together, they seem to explore the Government’s sustain them for future accrual. response to the continuing decline of defined benefit As the White Paper reminds us, DB schemes currently pension provision in the UK. I will address the specifics have 10.5 million members, with £1.5 trillion under of these amendments but, first, it may help if I talk management—a not insignificant component of the about the Government’sapproach to workplace pensions pensions landscape. Notwithstanding this, DB schemes in general. continue to close to future accrual or membership. The Government’s priority is to promote pension Hitherto, the alternative has been some DC scheme, savings for later life through workplace pensions.However, and now there is the prospect of CDC schemes in the it is for employers to decide what form of provision to future. make. This is part of their remuneration strategy to In times past, DB schemes were the stalwarts of the recruit and retain quality employees. The Government’s occupational pension system. Things looked good, role is not to tell employers what sort of pension to with seeming scope for regular improvements in benefits provide, but to promote workplace pensions and to set and with surpluses and contribution holidays available. some minimum standards. That is why we require Indeed, were there not concerns at the Treasury about employers to automatically enrol all eligible employees the system being used for tax shelters? These halcyon into a qualifying workplace pension scheme and to days have diminished through a combination of factors: make a minimum contribution to that scheme. more realistic actuarial assumptions; increasing longevity The majority of defined benefit schemes are now of members; impacts of inflation; falling asset prices; closed and, as a result, the defined benefit landscape and, probably, less effective collective bargaining. is changing. Most schemes are maturing with fewer GC 3 Pension Schemes Bill [HL][LORDS] Pension Schemes Bill [HL] GC 4

[BARONESS STEDMAN-SCOTT] amendment could have unintended consequences for contributing members and more receiving pension members. If the amendment meant that a CDC scheme benefits. The Government’s 2017 Green Paper and 2018 could not be authorised, it seems likely that the employer White Paper did not seek to prevent changes to the would close its defined benefit scheme and offer an pension landscape, but to protect the interests of the individual defined contribution scheme instead. It is large number of members who will still rely on defined important that the decision on whether to authorise a benefit schemes for their retirement income. That is CDC scheme is based on the criteria and information what the scheme funding measures in this Bill do. relating to that scheme. It would not be fair on employers Before the introduction of automatic enrolment in or employees to cloud the issue by linking the authorisation 2012, the decline in defined benefit pensions was not to consideration of other types of schemes. Requiring matched by increases in other types of pension. Overall, the regulator to make judgments about different types therefore, pension participation was in decline. Automatic of schemes would also have implications for its role. enrolment has been hugely successful: over 10 million Amendment 34 provides for a new objective for the people have been automatically enrolled into a workplace Pensions Regulator: to promote the membership of pension and the decline in participation has reversed. defined benefit schemes. The regulator exists to protect The number of eligible employees participating in a workplace pensions in the UK. It makes sure that workplace pension increased from 10.7 million in 2012 employers put staff into a pension scheme and pay to 18.7 million in 2018. money into that scheme, and that workplace pension Amendment 1 seeks to put a duty on the Pensions schemes are run properly. It does not matter whether Regulator to take into account the impact on defined members are in a defined benefit scheme, a defined benefit schemes when considering an application for contribution scheme or a CDC scheme—the regulator’s authorisation of collective money purchase schemes, role is to protect their scheme. also known as collective defined contribution—CDC— As I said in my introduction, the Government’s schemes. Given the term CDC is widely understood, priority is to promote pension savings for later life and I shall use it throughout these debates. While the set minimum standards for employer-provided workplace Government do not think they should tell employers what pensions. The Pensions Regulator is required to ensure sort of pension they should provide, beyond setting that those minimum standards are met. The Government some minimum standards, they want to foster innovation, do not consider it appropriate to task the regulator so that employers have real choices in the type of with promoting particular types of pension schemes. pension they offer. This could undermine its role as the regulator of workplace pensions in the UK generally. It is for I know that concern has been raised that CDC schemes employers to decide what type of pension they provide; will replace defined benefit schemes. The noble Lord, employers who provide defined benefit pensions need Lord McKenzie, raised this at Second Reading. I want to be genuinely able to afford the costs and bear the to be clear that the Government do not see CDC risk. Promoting defined benefit pensions to employers schemes as a replacement for defined benefit schemes. which may be unable to do this would conflict with the , the employer actively looking to set up regulator’s other objectives, such as protecting members’ a CDC scheme, does not believe that either. Indeed, it accrued benefits and minimising the risk of calls on has always seen its CDC scheme as an alternative to its the Pension Protection Fund. individual defined contribution schemes. To manage The noble Lord, Lord McKenzie, asked why cost and risk, employers are moving away from defined superfunds are not in the Bill. Developing a new benefit schemes towards individual defined contribution regulatory framework for them is a complex task. We schemes. CDC schemes should be seen in this context. are working hard across government and with relevant For example, Royal Mail has been working on a CDC stakeholders to build consensus on the right approach. scheme in partnership with the Communication Workers We aim to publish our response to the consultation Union because both sides felt that it served Royal Mail shortly; it will set out in more detail our proposals for employees better than an individual defined contribution a future legislative framework. Once that it is complete, scheme. I am sure that noble Lords will recognise what we will look to legislate as soon as we can. a positive message this sends about CDC schemes. I hope that the noble Lord, Lord McKenzie, and Royal Mail is not alone. There is growing evidence the noble Baroness, Lady Sherlock, recognise that the that many employers with defined contribution schemes Government’s approach is sensible and proportionate. want to provide their employees with a pension scheme I urge the noble Lord to withdraw the amendment. that provides an income in retirement. CDC schemes are a new opportunity for employers and employees to choose a pension scheme that works for both. I point 3.45 pm out that the Bill includes clear safeguards for existing Lord McKenzie of Luton: I thank the Minister for defined benefit pensions: Clause 3 prohibits public service that full reply.Wenever intended to press the amendments pension schemes being CDC schemes, and Clause 24 anyway. As I said at the start, it is an opportunity to prohibits accrued defined benefits being converted have a discussion about where the Government are into CDC benefits. Therefore, accrued defined benefit going, particularly on DB schemes. pensions cannot be put at risk by the existence of I am still a little unclear. I quoted one of the CDC pensions. briefing papers which the Government provided in I understand the desire to ensure that members preparing for this debate. It referred to a new option in good-quality defined benefit schemes continue to for employers looking to develop their pension offering have access to guarantees from their employer, but the going forward, which seems inconsistent with what we GC 5 Pension Schemes Bill [HL][24 FEBRUARY 2020] Pension Schemes Bill [HL] GC 6 had understood to be the commitment made earlier by Lord Sharkey (LD): My Lords, this is a probing the Minister: that the Government do not want CDCs amendment to allow discussion of the intergenerational to undermine the existing DB regime. There seems a fairness of CDC schemes. The Government’s excellent risk of doing that, and that in many ways was the policy brief notes say on page 9 that concern about tenor of the reply she gave: it is not up to the Government, intergenerational fairness was raised by many respondents it is up to employers. Of course we accept that there is to their consultation on collective money purchase a role for employers, but is there not an obligation to schemes. They then say explicitly that they recognise work with employers to ensure that the best type of that younger members in CDC schemes arrangement is available? Historically, that has been “may get less value from flat-rate contributions … if they decide to” DB schemes. leave the scheme and transform their credits into a Is not a test for this the extent to which we are saving cash equivalent. The Royal Mail CDC scheme proposed enough as a nation? We do not save only through here is such a flat-rate contribution scheme. pensions but saving through pensions is clearly a very important part, particularly as the Minister instanced The Government clearly accept the possibility of the auto-enrolment provisions, which we agree have less favourable treatment of the young, but both the been a huge success.One might just reflect for future policy likely scale of this or proposals for its mitigation are that they were conceived under a Labour Government, not an obvious feature of the Bill or its associated with the legislation prepared under a coalition documents. The Government say that they will ensure Government and introduced under a Tory Government. that Perhaps there is an example in pensions policy of how “both benefits in accrual and pensions in payment” we might better work together on other matters. must be adjusted I will summarise my concerns. It is good that CDC “to preserve the collective nature” schemes are available to provide, generally, a better of the scheme. They go on to talk about sharing the return than can come from a straight DC scheme. It is current effects of investment being out and under- not all upside, as we shall discuss in other amendments, performance. This seems a little vague in a vital area. but it is important that we do not lose sight of the The details will presumably surface in an unamendable benefits available under a DB regime which, apart SI generated by Clause 18(4), to which we will return from other things, had contribution levels way above later. It also seems not to address the question directly. pretty much anything that arises under a DC scheme. The question really resolves into this: “What protection That should concern us all: the level of saving that is or protective mechanism is there for young members taking place. against older members expensively cashing in?” An Having said that, I do not know whether the Minister alternative way of putting this is to say what detriment wants to come back. younger members could suffer, or what limit will be put on such suffering, under the scheme. This is surely Baroness Stedman-Scott: I thank the noble Lord for vital information for anyone trying to understand the the observations he has made. I am thrilled that noble likely risks and returns. Lords agree that auto-enrolment has been a great The situation here is that many of those consulted success and a great way for people to save for their raised concerns about intergenerational fairness and retirement. The role of government in all this is to the Government admit that it is a possibility. The encourage saving through automatic enrolment, pensions Government have chosen to press ahead without either and other savings vehicles. The noble Lord has raised quantification of the possible disbenefits to younger some valid points. I will take them back to officials members or a clear mechanism for reducing or limiting and, if we need to write to him or meet him to talk any disbenefits. This is not only unsatisfactory in its about them further, that is what we will do. own right; it runs counter to the Government’s repeated acknowledgement that communicating the key elements Lord McKenzie of Luton: I thank the Minister for of the scheme clearly and understandably is vital to its that. I stress, in agreeing about the success of auto- success. enrolment, that it was started off by a raw junior Minister in the DWP getting that early legislation through. There is a connection, of course, between intergenerational fairness and capital buffers. We will Amendment 1 withdrawn. debate capital buffers later but it is worth noting the actual connection here. In an analysis in late 2018 of Clause 8 agreed. the DWP’s proposal for the CDC scheme, AJ Bell noted: Clause 9: Decision on application “It’s clear from the DWP’s preference not to allow so-called ‘capital buffers’—where funds are built up in reserve to make payouts more predictable—and the proposed removal of any Amendment 2 trustee discretion in adjusting benefit levels that concerns about Moved by Lord Sharkey intergenerational fairness in CDC are front-and-centre of ministerial minds.” 2: Clause 9, page 5, line 37, at end insert— “( ) that the scheme provides for intergenerational It went on: fairness among its members, specifically in connection “And by suggesting any outperformance or underperformance with the amount of benefits paid to pensioners, should be reflected in the benefits paid to all members—including proposed adjustments to annual benefits and cash those already receiving their pensions—the DWP leaves us in equivalent values provided to members wishing to little doubt it will not allow schemes to be skewed in favour of one transfer out of the scheme.” cohort of members over another. This fairness will, however, GC 7 Pension Schemes Bill [HL][LORDS] Pension Schemes Bill [HL] GC 8

[LORD SHARKEY] pension cuts, primarily for political reasons, it quite potentially make outcomes in CDC less predictable and raises the clearly pushes the risk on to the younger generation as spectre of pension cuts should investments consistently underperform benefits are paid out at a higher rate than they should … over time. The DWP itself notes any reductions in benefits will be.That is a real and live example of how intergenerational not be well received, and so clear communication of this—not just upfront but on an ongoing basis —will be absolutely essential.” unfairness can and does arise in CDC schemes. It is therefore essential that this enabling Bill deals explicitly We will turn to that later in our discussions. AJ Bell with this issue. CDC schemes will fail if such unfairness concluded: is allowed to occur or is seen to be a risk. “Simply referring disgruntled members to a complex set of scheme rules they signed up to blindly years ago won’t be good I support Amendment 2, which requires schemes to enough. Getting these communications right will arguably be the provide for intergenerational fairness among members biggest challenger for employers who choose to go down the as a prerequisite for gaining authorisation. I also CDC route.” support Amendment 7, which introduces the concept The Government, in their Royal Mail CDC proposals, of intergenerational fairness when transfer values are choose mechanisms for intergenerational fairness over calculated. benefit stability. This may well be entirely the right Amendment 6 is very simple. It requires that the choice but it is very hard to tell, since the mechanism scheme must have rules to ensure fairness among all for bringing about this fairness is not explicit and no members when setting benefits.I have deliberately left that quantification is yet possible. Equally, it is not clear quite wide. I have not referred only to intergenerational what benefit variations are likely without the smoothing fairness because I would like also to cover fairness potential of a capital buffer. More clarity is surely within generations. For example, in the event that needed before employees are asked to sign up to someone makes a transfer out of the scheme, it could buffers, or no buffers, and on the optimum position. Is impact intergenerationally and also intragenerationally the choice really between intergenerational fairness if the transfer valuation is too high. and stability? Is that not a false dichotomy and is there Royal Mail kindly contacted me before this debate not a middle position combining elements of both, to explain that its proposed scheme has intergenerational which is likely to be more appealing than the Government’s safeguards in place, which is good to hear. However, decision in this Bill not to allow capital buffers as an this Bill relates not just to the Royal Mail scheme, but aid to benefit stability? to other schemes in future. Just because Royal Mail Our amendment tries to push the Government a may comply does not remove the need to ensure that little into being more explicit and much clearer. It adds fairness is very clearly built into the legislation. It is a one further condition to the list of authorisation criteria critical issue. in Clause 9(3): that It is probably arguable whether Amendment 6 is “the scheme provides for intergenerational fairness among its required if Amendment 2 is accepted, although I see members” no downside, and considerable merit, in making explicit in specified areas. that a scheme must have rules to ensure fairness when The objective of the amendment is, of course, to the rate or amount of benefits is determined, along allow discussion of the whole issue of intergenerational with the other rules already set out in Clause 18. fairness, but also to suggest a non-prescriptive way of As an aside, any changes made in this part will need ensuring that the issue is properly and explicitly addressed to be reflected in the Northern Ireland part. in scheme design and to allow discussion of the right The Government have recognised the concerns around balance between intergenerational fairness and benefit intergenerational fairness inherent in CDC schemes, stability. so I hope that the Minister will consider these amendments I very much look forward to Members’ contributions seriously. This is too important a risk not to be dealt and the Minister’s reply. I beg to move. with in the Bill.

Lord Vaux of Harrowden (CB): My Lords, I rise to support Amendments 2 and 7 and speak to my 4 pm Amendment 6. Baroness Altmann (Con): My Lords, I support all three Intergenerational fairness is probably the single amendments. I have added my name to Amendment 2 biggest issue that is generally raised about CDC schemes. —so excellently moved by the noble Lord, Lord Sharkey The noble Lord, Lord Sharkey, has set the case out —which intends that any CDC scheme that is applying well. As an extreme example, if returns were zero or for authorisation must have a considered strategy for negative but the trustees wished to continue paying the the long-term intergenerational fairness considerations target level of benefits to existing pensioners, the scheme that we have just discussed. The scheme would need would become in effect a Ponzi scheme, with payments not just buffers—we will talk about buffers in the next to existing pensioners wholly dependent on a steady group—these would also be required against scheme stream of new joiners. That is an extreme example, failure and scheme wind-up. In this case I would prefer and to call CDCs Ponzi schemes, as some commentators to think of these as risk margins, to recognise the have done, is overstating the situation. However, at a long-term risks to remaining members, most particularly less extreme level, if we look at what is currently if scheme members transfer out. That is the particular happening in the Netherlands, schemes have recently aim of my Amendment 7, which would also impose on been able to avoid, temporarily, making cuts in benefits the scheme, when calculating benefits, a requirement by the Government temporarily lowering the minimum to consider how it will recognise the risks in future funding requirement. While this has avoided immediate years if somebody cashes in the pension today. GC 9 Pension Schemes Bill [HL][24 FEBRUARY 2020] Pension Schemes Bill [HL] GC 10

The cash equivalent transfer value is not really a I have come to the conclusion that the only way in benefit under the scheme. If the member is in poor which you can have fairness is to have some kind of health, for example, they will be selecting against the buffer, which we will come to later on, or some kind scheme, because the scheme will assume a certain life of risk margin as proposed by the noble Baroness, expectancy. Some will have less and some more, but if Lady Altmann, or maybe both. In the interests of all those who have lower life expectancy transfer out at fairness, those who are transferring out should have to full value, then clearly the pensions in payment are too take their share of the risk; otherwise, if you are a high. If they take money when markets are performing good market-watcher you could perhaps spot your well, they may receive more than if they had waited moment to make your move, and then that is perhaps longer and there was a market correction, so the unfair on the rest. remaining members, again, will bear the cost. I, along with others, think that something must be Given that a CDC scheme is designed specifically enabled for these measures to be required. It is nice to to pay a pension rather than a lump sum as an know that something is already envisaged for the scheme, alternative, without the same draconian guarantee but there needs to be something for every scheme. requirements on employers, to the defined benefit There should at least be a requirement for that, and system that we have had traditionally in this country— actually I think there should be a permission for things which as the noble Lord, Lord McKenzie, rightly says, such as buffers and risk margins,rather than a prohibition. is the gold standard—we would not want this to be at the detriment of defined benefit but rather as an Baroness Janke (LD): My Lords, I too signed alternative to defined contribution. However, those Amendment 2, which my noble friend Lord Sharkey members who transfer out are not placing their trust so ably introduced. I will be brief because I think all in the scheme; they are not saying, “I want my pension the arguments have been very well covered. The only to come from the scheme,” and they are leaving the thing that I would add is that the importance of remaining members to bear an extra risk. I remind transparency in a scheme such as this seems fundamental. noble Lords that we have seen this in defined benefit I know we are talking about communications and schemes with the minimum funding requirement, and ensuring that members are fully aware of what they also with the rules around scheme surpluses. In the are signing up to, both the benefits and the disbenefits short term it was judged that an amount in the scheme later on, but, as part of the arguments that have been was sufficient to pay a specific level of pension over put forward in favour of this group of amendments, the long term and it turned out that that was not the there is the whole issue of explanation and ensuring case, because assumptions were incorrect, markets that members are fully aware of their position under changed or demography changed. Therefore, it is wholly this type of scheme. I particularly support the idea inadequate to assume that whatever is happening today that in order for a scheme to be registered, the explicit should be reflected, for example, in cash equivalent prerequisite is to show what the strategy is to address transfer values. the whole issue of intergenerational fairness. I know As the noble Lord, Lord Vaux, said, it is not just we will be talking about capital buffers later on, but intergenerational fairness; it will select against today’s the amendments address the interests of transparency pensioners, potentially, because if over the next couple and fairness and the welfare of all members of the of years markets are weak, pensions will need to be scheme, and I support them. reduced more to reflect people who transferred out at Lord Flight (Con): My Lords, it will be very important what seemed to be fair value two years previously. I to address these issues because I suspect that CDCs hope my noble friend will consider the thrust of these will become very popular among the younger generation amendments and perhaps look at whether we can as they have considerable attractions. I add only that introduce some requirements for schemes when members the principle of building up of reserve seems to be one transfer out or when market values are judged to be at way of evening out fairness. a certain level. Can we insert some risk margins that will protect members who rely on this scheme for their Lord McKenzie of Luton: This has been a good lifetime pension in the future? debate. I think we are minded to support this measure. I am not very clear in my mind as to precisely how Baroness Bowles of Berkhamsted (LD): My Lords, Royal Mail is tackling this issue at the moment, and if like others, I speak in favour of all three amendments. the Minister were able to deal with that in her response In fact, I signed Amendments 6 and 7 but too late for that would be a help. One thing that has come through it to show on the Marshalled List in respect of from the Government’s own thinking about this is that Amendment 7. I was one of the many noble Lords who wherever we end up on it, there must be specific rules. mentioned intergenerational fairness, and fairness more This should not be just a matter of trustees’ discretion; generally, at Second Reading because, as has been it should be clearly set out in the rules. I shall wait to explained, a significant number of members, particularly hear what the Minister has to say. older members but not necessarily just them, transfer out after some good times for investments in the Baroness Stedman-Scott: I thank noble Lords for investment cycle. That leaves others bearing the brunt tabling these amendments linked to fairness. Concerns of later down cycles, hence the Ponzi analogy. I am about fairness often arise in respect of CDC. I fully actually not quite sure what “fairness among all members” understand noble Lords’ interest in this important actually means—it is difficult because of, for example, matter. I share their commitment to ensuring that the different longevities between men and women—but members of CDC schemes are treated fairly. However, I signed Amendment 6 because that was the closest I do not agree that the amendments proposed are thing to saying, “You’ve got to look widely at everything.” necessary to protect members. GC 11 Pension Schemes Bill [HL][LORDS] Pension Schemes Bill [HL] GC 12

[BARONESS STEDMAN-SCOTT] money purchase benefits, a CDC scheme’s purpose is Ensuring that members are treated fairly has been a to provide a variable income for life in retirement for central part of our work on CDC since we began. We its members and not a transferable cash sum. have been mindful of the problems that other countries have experienced—for example, in their approach to 4.15 pm adjusting benefits—and we have learned from them. The value of members’ rights in a CDC scheme is Envisaged regulations under Clause 18 will mean that derived from reference to the cost of providing a scheme rules will require that there is no difference in variable income when the member retires. The more treatment between different cohorts or age groups of distant the date the member is due to draw an income, scheme members when calculating benefits and applying the smaller the share of the current assets attributable benefit adjustments. If they are not compliant, the to that member’s pension. We envisage that regulations scheme will not be authorised. will require this to be communicated to the membership, Noble Lords have previously expressed concern that so that they understand the implications of a decision a significant number of older members might choose to transfer out of the scheme. to leave a CDC scheme shortly before retirement The noble Lord, Lord Sharkey, also asked if this and that this may pose a risk to younger members. would mean benefit cuts for members. Fluctuations in Noble Lords will note that one of the authorisation benefit levels are fundamental to CDC scheme design. criteria in Clause 12 relates to the soundness of the It is possible that members will see cuts in their pension scheme design. It is intended to protect members from values in some years, but they should also see increases being enrolled in ill-considered and poorly designed in others. The Pensions Regulator will look at the way schemes which are unlikely to remain viable over the the scheme communicates with members, as part of its long term. authorisation and ongoing supervision. The scheme will need to demonstrate that it clearly communicates It is important that due consideration is given by the fluctuating nature of benefits to members. employers to a scheme’s viability at the design stage, including to how the benefits aspired to will be affected The noble Lord, Lord Vaux, asked how the Pensions by significant potential events, whether this is a reduction Regulator will determine whether the design of the in investment returns or in membership. Envisaged CDC scheme is sound. As I have said, we intend to regulations to support the design requirement will aim consult further on these matters when we bring forward to ensure that sufficient evidence is provided to satisfy secondary legislation for CDC schemes. However, it is the regulator that appropriate stress testing of the intended for the criterion to focus primarily on providing scheme’s design has been undertaken and that a suitable sufficient evidence for the Pensions Regulator to be strategy is in place for monitoring and reacting to threats satisfied that the core foundations of the scheme are to a scheme’s viability. These are complex matters, so sound. For example, are the scheme’s design and rules we will consult thoroughly on what the regulations should compliant with legislative requirements? Are the actuarial, require in this respect and more widely. We want to investment and other assumptions used in determining ensure that the scheme design is subject to appropriate its design and proposed benefits comparable to industry scrutiny by the regulator at the initial application stage norms and existing data; for example, on longevity? and on an ongoing basis. I am happy to discuss the How have the assumptions about investment returns scheme design requirements in more detail when we been reached and tested against risks, such as a reduction reach the relevant clauses. in investment returns or the number of members, or employers’ insolvency? My noble friend Lady Altmann mentioned cash The noble Baroness, Lady Altmann, asked about equivalent transfer values. We propose that a member’s the ongoing viability of the scheme and how it will be transfer value will be calculated by reference to the monitored. Clause 13 provides added protection by present value of the assets currently held that are requiring that the viability report must be reviewed by needed to pay the anticipated pension whenever that is trustees and certificated by the scheme actuary at least due. That means that, if every member chose to leave once a year, with revisions made to the report if at the same time, they would get the present value of appropriate. Furthermore, if the most recent viability their anticipated pension. Nobody would receive anything report becomes inaccurate or incomplete to any significant that was due to anyone else, as the valuation process extent, the trustees must revise the report and submit a means that the assets and the cost of all the anticipated newly certified report to the regulator to consider. pensions should always be in balance. It also means This will help ensure that, should it become evident that a member transferring and a member staying that the scheme’s viability is under threat and always keep the present value of their rights in the intergenerational fairness is at risk, the regulator is scheme and nobody receives anything more than is alerted and can engage with trustees on the action to due to them from the scheme, whether they stay or go. be taken. The noble Lord, Lord Sharkey, asked about the The noble Baroness, Lady Bowles, asked about impact of cross-subsidisation on younger members in ensuring that members are properly informed about CDC schemes. Such members may get less value from the risks of CDC schemes. The possibility of fluctuations flat-rate contributions if they decide to transfer out of of benefits will be made clear and transparent in the the scheme before retirement. It is important to remember key member communications at points throughout that pension schemes are long-term saving vehicles, their pension scheme’s journey. Regulations under the designed to deliver an income in retirement. Our focus Bill and powers in the Pension Schemes Act 1993 will is on the long-term benefit of a CDC pension scheme require CDC schemes, for instance, to: publish a clear for the scheme members. While CDC benefits are statement on this and on the scheme website, as well as GC 13 Pension Schemes Bill [HL][24 FEBRUARY 2020] Pension Schemes Bill [HL] GC 14 publishing the scheme rules; provide details of fluctuation Lord Sharkey: My Lords, I am grateful for the risks at the point of joining; emphasise benefit changes Minister’s explanation and for her invitation to discuss in the annual benefit statement for active and deferred the issue further. I will definitely take her up on that. members; be clear in the retirement information packs At Second Reading, I talked a lot about the huge that benefits can change during retirement; and notify reliance in the Bill on secondary legislation and the members, in advance, of any change to their rate of difficulty that it presents for Parliament to assess such benefit during retirement. Members and other interested things as intergenerational fairness provisions, as we parties will also have access to scheme documentation simply do not know the detail of the mechanism. The that must be published on the scheme’s website; for Minister explained that it is envisaged that legislation example, the scheme’s annual actuarial valuation. under Clause 18, which means secondary legislation, Finally,how is RMG’sproposed headroom mechanism will set out how intergenerational fairness will be built fairer than a capital buffer? The Royal Mail scheme into the schemes. I am sure that that is everyone’s features an alternative headroom mechanism, designed intention but it will be by secondary legislation and, to reduce the volatility of pension increases and the realistically speaking, Parliament itself will not have risk of cuts. It is envisaged that, when the scheme is an opportunity to make changes to secondary legislation. opened, the level of contributions will include a material It would be much better in the case of intergenerational amount of headroom funding for future increases. If fairness, and when it comes to buffers, to have this in some headroom remains and the assets are not well the Bill, given that I think all of us in this Room behind track, there would not be a pension cut. This is acknowledge the tremendous importance of getting different from a typical capital buffer because the this matter right. Getting it right via secondary legislation headroom funding is gradually spent on providing is entirely possible, of course, but it rather excludes us increases across all generations who have accumulated and Parliament from a detailed examination of what benefits under the plan, rather than being an amount this vital mechanism is. I urge the Minister to think that one generation is required to contribute to but about trying to accelerate the process of defining the which is held back from that generation’s increases to mechanism so that we get a chance to look at it before mitigate a later generation’s risk of potential future we have finished our proceedings on the Bill. Having cuts. said all that, I beg leave to withdraw the amendment. I recognise noble Lords’ concerns— Amendment 2 withdrawn. Baroness Bowles of Berkhamsted: I would like to intervene at this point because a lot has been spoken Clause 9 agreed. about. When there is a calculation of the percentage of the value of the assets for an individual transferring Clauses 10 to 13 agreed. out, which is done on various actuarial calculations, will those actuarial calculations be able to take into account long-term market risk so that there is an Clause 14: Financial sustainability requirement element of the fact that if you are withdrawing at a time of high markets, you may be getting more, as I said, than would have been your long-term due? If Amendment 3 there is no such mechanism, have we learned nothing Moved by Lord McKenzie of Luton from mutual funds running on net-asset value, where there are runs and the people who are slowest to move 3: Clause 14, page 9, line 8, after “scheme”, insert “or by an and get their money out are the ones who are trapped employer” with low value? We have invented things such as gating mechanisms to cope with that. There is potentially Lord McKenzie of Luton: My Lords, I move such a thing as a run on a pension fund, so how will we Amendment 3 on behalf of my noble friend Lady Drake, guard against that? whose expertise noble Lords will see shining through this presentation. Collective money purchase schemes Baroness Stedman-Scott: The noble Baroness is will be a new model of pension provision in the UK renowned for her forensic abilities. I am advised that landscape. A key function of the legislation and the we will need to write to her on that particular question. associated regulation that authorises and supports these In fact, we are meeting this week, and I hope we can new schemes is to understand the risks that members get her an answer that is accurate and share it with of the schemes may face, and put in place measures other noble Lords, if that is acceptable. that seek to mitigate those risks. We just heard a strong I recognise and share noble Lords’ concerns. I example of that. One risk is that, for some reason, a assure your Lordships that the Government are not collective money purchase scheme becomes financially oblivious to the potential risk in CDC schemes. I hope unsustainable. One can speculate on the possible reasons: my explanation has reassured your Lordships that our the main employer might become insolvent, decline in proposed legislative framework is designed to ensure size or withdraw from the scheme, thereby cutting off that both employers and trustees are alive to these the future supply of contributing members. That could threats when designing their CDC schemes, and that undermine the shared-risk approach in a CMP scheme. the Pensions Regulator is able to undertake appropriate Alternatively, some catastrophic administrative or scrutiny both before and after granting authorisation. governance failure could lead the regulator to rescind With that, I urge the noble Lord to withdraw his the scheme’s authorisation. The resolution of such amendment. failures will incur significant costs. GC 15 Pension Schemes Bill [HL][LORDS] Pension Schemes Bill [HL] GC 16

[LORD MCKENZIE OF LUTON] The effect of the amendment is to place the members The Bill as drafted follows in significant part the in the CMP scheme in a comparable position to those authorisation and supervision regime put in place for in a master trust, by adding the employer to those master trusts. Clause 31 identifies such risks to the parties to which the regulator can specify requirements sustainability of a money purchase scheme,as I referenced; to provide funding to meet the financial sustainability these are referred to as triggering events. Clause 34 requirement. It is my understanding that Royal Mail, refers to the continuity options that must be taken on its own discretion, intends to make a contribution should a triggering event occur, such as the wind-up to some form of financial sustainability, which is and transfer of assets to another scheme, resolution of welcome if correct. The Bill, however, provides the the event or converting to a closed scheme. It is enabling legislation for all future CMP schemes and, arguable that the resolution of such triggering events as such, the Pensions Regulator should be given the is more complex for a collective money purchase scheme power to specify the requirements that an employer than a master trust because of the existence of pensioners should meet in respect of the financial sustainability and pooling arrangements in CMP schemes, which are requirement. The amendment would explicitly give the potentially more costly to resolve. regulator that power. I beg to move. Where such a triggering event occurs, a provision replicates what exists in the master trust legislation: a Baroness Stedman-Scott: I thank noble Lords for ban on increasing members’ charges, thus protecting tabling the amendments. I turn first to the proposed the member from bearing the cost of sorting out that amendments to Clause 14. The fundamental aims of triggering event. None the less, the cost of resolving a the financial sustainability requirement are to avoid triggering event and pursuing one of the continuity disruption to members through CDC schemes failing options must be met. The Bill is unclear on the source because of inadequate financial planning or resources of funding to meet those costs. My noble friend’s and to ensure that, if a scheme experiences a triggering concern, which I share, is that the Bill as drafted event, the costs of dealing with that and continuing to means that the only source of funding within a CMP run on the scheme for an appropriate time can be dealt scheme to resolve a triggering event will come from with. These costs may include costs of transfer and the members’ themselves, albeit that these funds are wind-up, if that arises. built up in advance from their savings. None the less, As these will be new schemes, it is possible that the the members are funding the risk of scheme failure. up-front costs of establishing and running a CDC The Pension Schemes Act 2017 was a response to scheme may not be covered in full by the charges paid the exponential growth in the minimally regulated by members.Similarly,if a scheme experiences a triggering master trust market. A key risk, which was a matter of event, it might also find that it has insufficient resources considerable debate in the House during the Act’s to meet the cost of resolving that event without further passage, was that in the event that a master trust failed recourse to members’ funds. The financial sustainability and costs crystallised, they should not be met from requirement is intended to protect against these risks. members’ savings. The 2017 Act introduced a financial It is envisaged that there will be a variety of mechanisms sustainability requirement: that a buffer of financial for financing these costs. As the noble Lord, resources had to be in place as the line of defence to Lord McKenzie, identified, those are likely to involve protect members’ money from being drained when a support from establishing and connected employers. triggering event occurred and had to be resolve; and We will consult on this matter before bringing forward that in the event of a triggering, such resources should regulations, but a range of options is likely to be be sufficient to meet the costs of continuing to run the available—for example, an amount held in escrow or scheme for a period of between six months and two years. contingent assets. Those responsible for setting up the master trust had, in some way, to share in the responsibility of providing Envisaged regulations made under Clause 14(3) for the financial buffer, which would be available in the will ensure that the regulator has sufficient evidence to event of a scheme failing. satisfy itself that the financial sustainability criterion is met and that members are protected. We intend that these regulations will require evidence of any financial 4.30 pm commitment by the establishing employer or connected The Bill currently restricts qualifying CMP schemes employers and that the scheme has access to the to those set up by an employer or connected employers. financial resources it needs, including in the event of Clause 14 sets out a financial sustainability requirement employer insolvency. If the regulator is not satisfied for CMP schemes to have a buffer of financial resources that the scheme is financially sustainable, the scheme to meet will not be authorised to operate by the regulator, so it “the costs of continuing to run the scheme for such period”— is in an employer’s interest to ensure that its scheme between six months and two years—when a triggering meets the envisaged requirements. We do not intend to event occurs. However,there is no provision in Clause 14 require CDC schemes to hold a minimum level of for the regulator to have the ability to specify requirements capital to meet relevant cost. If authorisation is to that the employer or connected employers must meet work effectively, the Pensions Regulator must be able in respect of contributing to the buffer of financial to consider the risks posed by each scheme to determine resources that has to be in place to meet the costs of whether adequate mitigations are in place. I believe resolving the triggering event. Without such a provision, that that is a fairer and more effective approach. there is the potential for members of CMP schemes to I turn to my noble friend Lady Altmann’samendment. risk bearing more of the costs of resolving the scheme It would add to the illustrative list of what regulations failure than is borne by members of a master trust. may require the regulator to consider when deciding GC 17 Pension Schemes Bill [HL][24 FEBRUARY 2020] Pension Schemes Bill [HL] GC 18 whether the processes used to run the scheme are should include buffers. It seems to me that there is sufficient to ensure it is run effectively. I appreciate the merit in consulting the workforce about which they importance of good systems— prefer. In paragraph 1.3 of the consultation response the Baroness Altmann: I thank my noble friend. Before Government said: we finish on this topic, I hear what is being said but “We do not want to preclude or legislate against buffers in what I was trying to achieve with Amendment 5 was to CDC schemes—there are perfectly good reasons why employers avoid repeating the mistakes already extant in automatic and workforces may wish to provide for a scheme that mitigates enrolment schemes. We are setting up a brand-new volatility in this way, and we agree that a buffered scheme could system, and there seems to be nothing in the current be appropriate in some circumstances.” processes which would require checks on data accuracy. Those circumstances might very well include avoiding The processes mentioned in Clause 16 include records frequent and disconcerting changes in benefits but management, in subsection (4)(d), while subsection (4)(b) also the provision of wind-up or restructuring costs, recommendsstandardsforITsystems’“quality”.However, even if that does somewhat impact intergenerational there are no processes to verify on an ongoing basis a fairness. My request is for clarity about this cloud of regular audit of whether the data are correct. We assets or obligations that might substitute in some way know that data are currently incorrect in a large for capital. I am not clear about how that will happen. number of auto-enrolment schemes. Even the modern It would be good idea to make sure that in any future ones are full of errors. schemes the workforce is consulted about whether or not they prefer a buffer. I am trying to introduce something that would help us learn from experience and avoid repeating the kind Baroness Sherlock (Lab): May I, too, seek clarification? of mistakes that we know have arisen. They are not I was not entirely sure what the Minister was saying intentional mistakes, but if we put in place right from about where the money could come from for a buffer. I the start processes which require data audits and, think I understood her to say that the regulator would potentially, capital buffers as well, against mistakes not approve a scheme unless the sustainability criteria that have not been foreseen, we will set up a more had been met and that they could be met only if an robust system for the longer term. adequate amount of money was placed in, for example, escrow. Is she saying that a scheme would be approved Baroness Stedman-Scott: I thank my noble friend only if the regulator was satisfied that enough money for her intervention. My understanding is that CDC had been provided up front by the sponsoring employer schemes are obviously new and will not carry any legacy to fund the continuity options in the event of a triggering data issues, which should lower the initial risk. The event? If so, why does she not simply accept this focus will be on not cleaning old data but establishing amendment? That is all it says. strong processes for loading, managing and maintaining data, with regular checks to ensure that quality is Baroness Stedman-Scott: I shall turn first to the point maintained. If that does not answer my noble friend’s raised by the noble Lord, Lord Sharkey. The funding point in the way she would like we can deal with it of future inflation increases provides the headroom when we meet later in the week, if that is acceptable. funding that is required. The answer to the question I appreciate the importance of good systems and asked by the noble Baroness, Lady Sherlock, is yes, the processes. However, the proposed addition to the money would be in an escrow account if needed. illustrative list is unnecessary, as we already envisage that appropriate requirements relating to the accuracy Baroness Sherlock: So could it never be the case of member data and record keeping will be included in that in the event of a triggering event, such as a regulations.Schedule 5 of the illustrative CDC regulations wind-up, an employer pulling out or an employer provides an early indication of our thinking in respect downsizing, money would have to come from members’ of member records. However, we will consult to ensure contributions to fund the continuity option? I am that what is included in the regulations is appropriate sorry to push this, but this kind of clarity is important. and that sufficient scrutiny is applied. We also want to ensure that any requirements are proportionate. Baroness Stedman-Scott: Noble Lords must forgive me for turning to my friends. This is my first Bill. The In conclusion, I hope that my statements today and answer to that question is no, it should not be. the illustrative regulations deliver sufficient reassurance of our commitment to ensuring that CDC schemes are Baroness Bowles of Berkhamsted: Now I am confused. financially sustainable and that systems and processes In the previous group,when we were talking in anticipation for member data are sufficient and effective. With that, about buffers and intergenerational fairness, the Minister I ask the noble Lord to withdraw his amendment. said that there would be headroom funding. I understood that to be up front, getting the scheme up and running, Lord Sharkey: I should like to ask one or two questions but the Minister then said that that was going to be about the buffer concept. It seemed to me that a lot of spent. I do not think she said what it was going to be what was being described was the equivalent of a spent on, or have I got the wrong end of the stick? buffer in some ways, but it was not entirely clear how it would be produced, brought forward and exercised. Baroness Sherlock: I think this is a language question. It was not entirely clear to me whether the members The problem that my noble friend Lady Drake raised of any proposed CDC scheme would be given a at Second Reading and which we are trying to raise choice or say in whether the scheme should go ahead here is not about a capital buffer to deal with the without buffers, as the RM scheme will, or whether it intergenerational questions of benefits and payments GC 19 Pension Schemes Bill [HL][LORDS] Pension Schemes Bill [HL] GC 20

[BARONESS SHERLOCK] et cetera. All this amendment does is insert the words, at a time. It was the equivalent in master trust regulations “or by an employer”, because of the concern that the where the sponsoring employer has to put money up Bill mayallow regulations to be made requiring the scheme front in a safe place so that if things go wrong and the to put money in. We want to be sure that the Bill will scheme collapses the fallout can be funded without require the employer, rather than the scheme, to provide raiding members’ benefits. I think the noble Baroness, the money. That is why the amendment is written as it Lady Bowles, is describing something slightly different. is, accepting that the Government will have to work out what is in the regulations and then what the Baroness Altmann: I hope I can intervene helpfully. regulator actually did as a result. Are the Government This is allied to the issue of data. If a scheme has to confident that the wording of the Bill will allow them wind up, the biggest cost is the administration, and the to place a requirement on the sponsoring employer to likelihood of a scheme with poor data records needing do what the Minister has described? to take money from members’ pensions to meet the very high costs of administration when a scheme is Baroness Stedman-Scott: I am advised that we are failing is much greater. That goes back to the original confident that that will be the case. reason for suggesting that we need a buffer that can cater Baroness Altmann: In that case, I seek clarification for the disaster scenario. It is like an insurance policy on what would happen if the employer became insolvent. so that if things have gone horribly wrong with that There would still be the same problem that members’ scheme, members do not potentially end up with no pots would be needed to cover the costs of wind up, pension because there is something that we have set up because they could not be got from the employer. If from the beginning that can help fund the costs involved there is not a capital buffer up front and we rely on and there are systems and processes to check regularly waiting to recover it from the employer, we may still that data are correct along the way which would end up with the same kinds of errors that we had in mitigate the costs of going back over many years and defined benefit schemes, where there was nobody to trying to resurrect records. get the money from and the members ended up with potentially no pension. 4.45 pm Baroness Stedman-Scott: Let me try to be helpful Baroness Donaghy (Lab): In the absence of knowledge and to placate noble Lords on this: money needed to in this area I have had to resort to listening to the wind up should come from the employer. A scheme debate. I think the consultation is important. We need would not be authorised if it did not have this financial to be clear what the headroom is, what the buffer is and sustainability from the employer. Is that helpful? whether the headroom is to take account of inflation, as the Minister says. Taking account of inflation has Lord Sharkey: But the scheme does not include a buffer nothing to do with sustainability, emergency action or and I am still not clear about the money. If it is going catastrophes of other kinds, so we need clarity about, to come from the employer, where does it say that they first, what questions are asked in the consultation and, have to do that? All we are talking about is a notion of secondly, what responsibility is taken. fairness, but people may disagree about what that means. It is all very well saying that the regulator will look at this and make sure it is sustainable, but I am not Baroness Stedman-Scott: I think the original question sure that the history of the Pensions Regulator gives was around the consultation we are going to do on me a good night’s sleep. I apologise if I have got it this. This will be resolved in the consultation. wrong, but there seems to me to be a bit of confusion about what this headroom or buffer is for, who takes Baroness Neville-Rolfe (Con): I think this shows responsibility for it and how the Pensions Regulator that it is important that we understand what the will keep a look out. It is not clear to me that statutory statutory instruments in this area are going to look instruments will do it. However, if the Minister is like. It will obviously lead to a clearer conversation if confident that they will, we need to see them. the Government are able to move on that. The second thing is that, in my experience, things do not necessarily Baroness Stedman-Scott: Our job is to give noble go the way you expect. When I sought my pension Lords comfort and to clarify matters, which we must estimate before I retired, I ended up a year later do. I am advised that if there were to be an insolvency getting a less generous pension than I had anticipated, of an employer, that would be anticipated up front perhaps because things had changed on the underlying when the scheme was established and some provision demographics—health or whatever. We have to be would have to be made for the risk of it happening. It quite careful to take account of the complexity of would of course be part of the ongoing monitoring. these things in the sorts of SIs that we make. Clearly, With regard to the helpful suggestion from the we need to consult on them for that very reason. noble Baroness, Lady Donaghy, about the questions in the consultation, I might be getting myself into trouble—I Baroness Sherlock: On a final point of clarification, am very good at that—but maybe we could write to if I have heard the Minister correctly—and I will read noble Lords who have taken part in this debate and the record—I think she is trying to reassure us that she ask for their opinions about what questions should be will consult and that this will be dealt with in regulations. included. The problem is that Clause 14(4)(b) states that regulations Apart from those matters, if there are any other may include provision, points that I have missed out, or if I have not done as “specifying requirements to be met by the scheme relating to its good a job as I should have, we will write to all noble financing, such as requirements,” Lords to clarify. GC 21 Pension Schemes Bill [HL][24 FEBRUARY 2020] Pension Schemes Bill [HL] GC 22

Baroness Sherlock: Would the Minister be kind Government will expect Parliament to reject any attempt enough to write in any case, clarifying the helpful by a future Government to use them in such a way, but points that she has made here? They came in bits, so it these powers will be exercised by secondary legislation might be useful to have a note setting them all out so how will Parliament stop or modify that? What together, if that would be okay. precedents can the Minister point to there? The third response by the Government in support of these powers Baroness Stedman-Scott: I am happy to make sure is that they will consult before using them. None of that that happens. these arguments strikes me as particularly convincing. The powers granted are enormously wide and Lord McKenzie of Luton: I beg leave to withdraw unconstrained. Their existence would certainly not the amendment. add to confidence in the stability of the scheme. There is surely a more proportionate way of doing Amendment 3 withdrawn. what is required. The Government say that without Amendment 4 not moved. these powers, there is a risk that they would not be able to stop schemes operating on principles that run contrary Clause 14 agreed. to the basic principles underlying the provisions in this part of the Bill. If that is the case, surely it would be Clause 15 agreed. simpler and proportionate to set out in the Bill these basic principles and that compliance with them as a Clause 16: Systems and processes requirements condition of the scheme’s authorisation. I look forward to the Minister’s response to that proposal. If the Amendment 5 not moved. Government insist on proceeding with these wide and unconstrained delegated powers, I am sure that the Clause 16 agreed. House will want to return to the issue later in our discussions. Clause 17 agreed. I turn to Amendment 14. The Government’s policy Clauses 56 to 68 agreed. brief describes Clause 47 as allowing the Secretary of State to make regulations using the affirmative procedure Clause 18: Calculation of benefits to remove the restriction on CDC schemes for single employers or connected employers. This would open Amendments 6 and 7 not moved. CDC schemes to multiple employers and master trusts. The DPRRC and the Constitution Committee have both examined the powers in the clause, and the Amendment 8 Constitution Committee agrees with the DPRRC that Moved by Lord Sharkey the power granted in it is inappropriate. It notes that 8: Clause 18, page 11, line 34, leave out subsection (4) the clause is skeletal and contains a broad Henry VIII power. In paragraph 28 of its report on the Bill, the Lord Sharkey: My Lords, I shall speak also to DPRRC states: Amendment 14 as well as to my clause stand part Motion. “The fact that the Bill currently prohibits multiple-employer collective money purchase schemes suggests that such schemes Amendment 18 is a probing amendment whose may give rise to significantly different regulatory issues from those purpose is to enable discussion of the powers given to presented by single employer … schemes which are currently allowed the Secretary of State to make regulations altering various under the Bill. This is … supported by the fact that clause 47(3) key aspects of the scheme. Clauses 18(4) to (8) set out to (5) gives the Secretary of State such wide powers to make what those powers are. The Government’s policy brief changes to the provisions that govern single employer schemes”. discusses Clause 18(4), and it is worth quoting what it In the very next paragraph of its report, the committee says: says: “Concern has been expressed that the Government could “Given this background, we consider it is inappropriate to therefore use regulations to make changes to the basic principles leave the provisions for regulating multiple-employer collective underpinning a CDC scheme’s financial model, potentially leaving money purchase scheme to subordinate legislation; and, therefore, it financially unviable.” that the delegation of powers by clause 47 is inappropriate”. It goes on: Subsection (5), the subject of my amendment, is “Concern has also been expressed that changes to the regulations a naked Henry VIII power, including as it does the under this clause could have the effect of re-designing an existing delegated powers to collective money purchase scheme—potentially years down the “(a) modify a provision of this Part, or any other enactment, as it line—by overriding what the scheme rules say about the methods applies to relevant schemes; (b) amend, repeal or revoke a provision and assumptions to be used in calculating benefits. If this happened, of this Part or any other enactment.” it could undermine the actuarial modelling on which the initial design was based and change the deal offered to members when This kind of unfettered licence to amend, repeal or joining the scheme. It can also affect the intergenerational balance revoke primary legislation by statutory instrument has of the scheme.” always been unattractive to this House. My amendment The Government’s response to this very serious set proposes to remove subsection (5) but I ask the Minister of concerns is in three parts, none of which seems to to consider withdrawing the whole clause. As the be particularly compelling. The first is to deny that DPRRC and the Constitution Committee have said, if any of this is the purpose of the power to make we want to legislate for multiple employer CDC schemes regulations, but Mandy Rice-Davies would have known then it should be via primary legislation, not via the to how to respond to that. The second is to say that the use of secondary legislation and Henry VIII powers. GC 23 Pension Schemes Bill [HL][LORDS] Pension Schemes Bill [HL] GC 24

[LORD SHARKEY] uses to the negative procedure. This applies in particular I have also given notice of my intention to oppose to Clauses 11 to 14. The Government have set out the Motion that Clause 51 stands part of the Bill. I what they consider to be the reasons for the first-use have done this so that we may ask the Government affirmative procedure. The DPRRCrehearses the reasons about their use of delegated legislation in Part 1. in paragraph 13 of its report, and it was not convinced. Clause 51 contains very wide-ranging powers, which It concludes: “may be used … to make different provision for different purposes; “The scope of the powers remains the same on the first and … to make provision in relation to all or only some of the subsequent exercises, and therefore there is nothing in principle to purposes for which it may be used … confer a discretion on a prevent the changes made by subsequent exercises of a power person … make consequential, supplementary or incidental provision from being as significant as the provision made on the first … make transitional, transitory or saving provision”. exercise. In the light of this, the House will wish to look carefully The last two are probably okay—they seem boilerplate, at the Government’s arguments in each case as to why they to have common-sense meanings and to be properly consider it likely that changes made on subsequent exercises of a power will not be of such a nature as to require the affirmative restricted—but the first three powers are very wide. resolution procedure to apply.” What exactly is it to confer discretion on a person? I strongly urge the Minister to take heed of the advice What does that allow in practice and what limitations of the DPRRC and to let the House have a schedule of are there to it? It is rather attractive but, I would be the appropriate arguments for each proposed first-use grateful if the Minister could explicitly answer those affirmative. There are many of these cases. Rather three questions when she replies, as well as explaining than letting us have a schedule of the arguments, why the first two very wide powers are needed at all. perhaps it would be better and simpler for the Minister The Government have attempted some kind of to agree to replace all first-use affirmative procedures explanation of Clause 51 on page 13 of their policy with straightforward affirmative procedures. I beg to briefing note. It states: move. “Clause 51 … (2) allows the regulations made under Part 1 to make different provisions for different purposes.” Baroness Janke: My Lords, I support the amendment. That is not an explanation; it simply repeats the text of My noble friend Lord Sharkey raised this matter at the Bill. I take it that what is meant is that the Second Reading and in subsequent briefings. I alluded regulation-making powers set out in Part 1, in their to transparency earlier; there is also the issue of proper context and given their proper purpose, may be accountability.Wehave heard about the recommendations amended to encompass different purposes in any way of the DPRRC. I note that the Constitution Committee the Government might choose. Why is that necessary? agrees with the DPRRC that the use of Henry VIII The Government try to explain by way of example. powers is inappropriate in this Bill, regrets the inclusion They say: of skeletal provision and notes that “This will allow us to make different regulations to provide for “complexity is not an excuse for taking powers in lieu of policy different CDC scheme structures if necessary. They cite by way of development”. example Clause 51(2) would allow us to introduce a different regulatory framework for the way in which multi-employer CDCs It is an august committee, so we should treat its must calculate and adjust benefit values compared to single-employer recommendations seriously. I support the amendments CDC schemes should that prove necessary.” and would like to the hear the Minister’s response to This power already explicitly exists in Clause 47(3) the recommendations of the DPRRC. to (5), which we have already discussed. As we have noted, both the Constitution Committee and the DPRRC Viscount Eccles (Con): My Lords, perhaps I might thought these powers inappropriate. If they were make a general comment. I support the way in which inappropriate in Clause 47, they are no less inappropriate the noble Lord, Lord Sharkey,introduced his amendment. in Clause 51. This is a problem with framework Bills. Why do we have framework Bills? It is because we do not know the answers 5 pm to the problems posed, in this case by a particular kind The Government give only this one example of the of pension scheme. The results, if the Bill goes ahead possible use of the powers in Clause 51. They could as it is, will be quite worrying. I would not wish to be a equally be used in unrestricted ways anywhere in Part 1. trustee of this pension scheme. Why not? Because I Can the Minister explain why it is necessary to have would not have any powers. At any time, my efforts to such wide-ranging and unrestricted powers in the Bill? play a proper role as a trustee of this pension scheme As it is, most of the delegated powers in Part 1 are could be upscuttled by the Government changing their vague and undefined and await consultation before mind and introducing another piece of secondary taking definitive legislative form, but at least they are legislation. All the fundamentals of this pension scheme— tethered, no matter how loosely, to some purpose or particularly in Clause 18, which the noble Lord referred objective. Clause 51 powers are not tethered, and it is to—are entirely in the hands of the Government of hard to see why they are in the Bill. the day. Clause 51(4) and (5) helpfully set out the meaning We have talked about all sorts of things that I am of negative and positive resolution procedures. This is also thinking about from the point of view of the trustee. a helpful reminder given the large number of uses of As a trustee, it would be my responsibility to try to both in Part 1. However, the use of the powers has ensure I had some sort of capital buffer, if I needed it. another feature noted by the DPRRC in paragraphs 11 I would have to talk to the employer in a way that to 14 of its report. This is the use of first-time affirmative would give me some chance of success. With the Bill procedure, in which the first exercise of the power is as it is now, the position of trustees is impossible or subject to the affirmative procedure and subsequent near to it. GC 25 Pension Schemes Bill [HL][24 FEBRUARY 2020] Pension Schemes Bill [HL] GC 26

LordMcKenzieof Luton:ThenobleLord,LordSharkey, First, it enables flexibility to ensure that the legal has made a powerful case on these provisions and we framework remains appropriately tailored to developments looktosupporthim.Theremustatleastbeastrongreason in the pensions industry. Secondly, it provides legal to say why they cannot be pared down and need to be certainty more quickly and enables those affected to as wide as they are. If there is an argument for them, at prepare for changes to the law. This is important for least they should be pared down. In so far as whether the pensions industry. this is doable—the noble Lord said he is not sure what I note that comment has been made on the propriety the answer is—in some of these areas, I am not sure that of affirmative procedure on first use only. I take this we know what the question is, which is deeply worrying. opportunity to make it clear that the Government do These things need to be sorted out because, as they not accept that the practice of specifying an affirmative stand, they are going to undermine a scheme that procedure on first use is licence to use those provisions generally has a lot of support, particularly our support, inappropriately at a future stage.The reason for affirmative in principle. I would like to get it back on track, so that on first use then negative is that a decision on when the we can deal with it, deliver it and not be waylaid by scheme design is sound will be critical to the effective these very real concerns over delegated powers. running of the scheme and to safeguarding members. Therefore, it is important that when first determining Baroness Stedman-Scott: My Lords, I recognise the these matters the regulations are subject to full debate. expressed concerns over the regulation-making powers Further use of the powers is likely to be limited to in Part 1 of the Bill and how they might be used. There adapting matters the regulator will be required to take has also been comment on the principles underlying into account in the light of operational experience, so the choice of negative or affirmative procedure for the negative procedure would be appropriate. some of the regulations. This is why we have shared With respect, this House is called to scrutinise the illustrative draft regulations to help noble Lords scope of the proposed delegated powers and the understand how we intend to use these powers, but the parliamentary oversight of those powers.The Government secondary legislation to be made under the proposed can, of course, give this House assurance as to their delegated powers can be laid before this House in final future intentions in using these delegated powers. To form only after Royal Assent, in accordance with the assist the House, the Government have produced procedures set by Parliament. This House will have illustrative regulations relating to Part 1. I hope this theopportunitythentoscrutinisethesecondarylegislation. illustrates both the way delegated powers in that part There are important legal principles at stake before are intended to be used and the limitations in pre-empting the proposed delegated powers can be exercised properly. their use. In many instances, the Government will wish or have Clause 18 provides for CDC schemes to be required promised to consult further on the technical substance, to have rules for how the current value of CDC scheme particularly in Part 1. There are instances where there members’ benefits must be calculated and adjusted may be a statutory requirement to consult because of each year and for powers for government to make a connection to existing legislation. There are instances provision about those rules. It is therefore a very where there may be a need to await the outcome of important clause for ensuring that all members of consultation being undertaken by the regulator or CDCschemesareprotectedfrominappropriatecalculation where consultation is needed with professional bodies. methods, with all benefits calculated equitably, with Finally, there are instances where proposed delegated no differentiation on the basis of age, gender and so powers are sought to enable the Government to react forth. to future developments. The amendment moved by the noble Lord, Lord Where there is an intention, promise or legal Sharkey, would significantly reduce the Government’s requirement to consult on the substance of secondary ability to ensure that all members of CDC schemes are legislation, the legal position is clear that the Government treated fairly.For example,scheme rules could discriminate cannot prejudge the outcome. Had the Government against certain members on the basis of age, and the purported to draft all the secondary legislation at the Government would have limited powers to react swiftly same time as drafting the Bill, that would have entailed, to stop this unfairness. inevitably, prejudging the substance without the benefit of any necessary consultation or consideration of the 5.15 pm eventual wishes of Parliament. Likewise, it is more We will also use regulations under Clause 18 to appropriate to consult once the Bill is passed, so as not require all CDC schemes to use the central estimate in to prejudge the intentions of Parliament. all financial assumptions and projections when calculating Those are the points of principle. I will now deal and adjusting benefit values. This means that a scheme with the point that the provisions intended for future would not be able to take an overly optimistic view of secondary legislation could, nevertheless, be written future investment returns, for example, but will also into the Bill, at the inevitable cost of delaying introduction. not be able to take an overly cautious approach. This approach is consistent with the approach to Regulations made under Clause 18 can also be used to previous pension schemes Bills, recent examples being make different provisions for different purposes. This the Pension Schemes Act 2017 and the Pension Schemes is provided for in Clause 51. We will use this power to Act 2015. As with those Acts, the provisions in the Bill ensure that the regulatory framework for the calculation embody the fundamental policy. and adjustment of benefit values is tailored appropriately Provisions of a more technical nature, or which are for different types of CDC schemes. Concerns have by their nature liable to change, are delegated to secondary been expressed that regulations made under Clause 18 legislation. This staged approach has two benefits. could have the effect of redesigning an existing collective GC 27 Pension Schemes Bill [HL][LORDS] Pension Schemes Bill [HL] GC 28

[BARONESS STEDMAN-SCOTT] that the powers we seek are necessary and subject to money purchase scheme, potentially years down the appropriate scrutiny. I therefore urge the noble Lord line, by overriding what the scheme rules say about the to withdraw his amendment. methods and assumptions to be used in calculating benefits. I reassure noble Lords that while we must Lord Vaux of Harrowden: I have a question regarding protect members from unfair treatment, we do not the first-time affirmative point. I think the Minister intend to undermine the way in which CDC schemes said that the second use on the negative basis is likely work through regulations. to be limited to the uses that she talked about, but she did not say that it would be used only in those One of the criticisms of Part 1 is that it does not go circumstances. Obviously, this could go on beyond the far enough. Many people, including those from the current Government. If she is not prepared to remove insurance industry, trade unions, pension providers the first-time affirmative aspect, would she at least be and pension commentators,have called for CDC provision prepared to consider limiting those secondary usages to be extended to master trust, accumulation-only to the limited situation that she has described? vehicles and other models of non-connected multi- employer schemes. We can see merit in these other Baroness Stedman-Scott: I thank the noble Lord for scheme types. We need to consult carefully with experts that important point, which we will certainly consider. and interested parties in order to get the detail right. We can then make appropriate amendments to existing Lord Sharkey: Before I come to the meat of the legislation to allow for these and other scheme types to matter, may I ask what it means to “confer discretion” operate. The regulation-making powers in Clause 47 on a person? allow for that. However, the proposed amendments to those powers could make the rollout of these other scheme types more complicated as it would require us Baroness Stedman-Scott: It would be very helpful if to bring forward new primary legislation to achieve that. the noble Lord would repeat that for my officials. I recognise that through this clause we are seeking a Lord Sharkey: I am delighted to repeat it. What wider power. We do not do so lightly. It is important to does it mean to “confer discretion” on a person? remember that the provisions in Part 1 of the Bill were developed with real-world input from the Royal Mail Baroness Stedman-Scott: As I understand it, it means Group and the Communication Workers Union. We to delegate powers. want to work in a similar way with interested master trusts and others to ensure that when we come back to Lord Sharkey: If that is what it means, and I am Parliament with regulations to extend CDC provision sure it does, then we are giving the absolute, unrestricted to other models, we get the detail exactly right. The authority for delegation of any power to anybody at underlying principles and requirements for other CDC all. That seems to me to be slightly wider than is schemes will be agreed during the Bill’s passage. Using normal. regulations made under Clause 47(5) to amend legislation I shall move on. I will have to read tomorrow’s will allow us to ensure that these principles apply Hansard very carefully to understand exactly what the appropriately for other models of CDC schemes in Minister said, but there were several points that struck future. This will allow employers and scheme members me as really quite controversial. One of those is about to benefit from new types of scheme without unnecessary Clause 51. The Minister said, and she is obviously delay, while providing for full parliamentary scrutiny entirely correct, that you cannot set up a multi-employer through the affirmative procedure. CDC scheme by regulation if you remove Clause 51. Clause 51 is a standard Bill clause. Provisions setting Yes, that was the point of my amendment: it seemed out the scope of regulation such as this are common in wrong to introduce multi-employer CDC schemes by other legislation. For example, the Pensions Act 2014 regulation. That is also exactly what the DPRRC said. and the Pension Schemes Act 2017 contained similar It is wrong, or inappropriate, to do it that way: that provision. The clause expands on the scope and procedures was the whole point of my amendment. I do not think to be used in relation to the regulation-making powers it is a substantive response to that to say, “Well, if we in Part 1 of the Bill, such as enabling regulations to accept it, we cannot do it.” That was the point of the make different provision for different purposes, amendment. consequential or supplemental provisions, or transitional I thought I also heard the Minister say that one of or transitory provisions. If the clause does not stand my amendments—I cannot now remember which—would part of the Bill, we will be unable to make regulations adversely affect the ability to reduce intergenerational to accommodate different types of CDC schemes. That fairness because it would remove a delegated power. I would create a lack of clarity regarding the actual form am not at all certain, having thought about it, that it that the regulations would take and the parliamentary would have that effect, but in any case we have already procedure that would apply to them. heard very strong arguments for intergenerational fairness mechanisms being in the Bill. I did not hear in the I concede that this speech has been a long one, but I Minister’s reply a lengthy argument against the view of know that this is an important issue. Discussion about the DPRRC that the powers in Clause 47 are the use of delegated powers has been a perennial inappropriate. I understand their absence is inconvenient, feature of the House and I expect that it will remain but it does not address the central argument put so. I thank noble Lords for raising these important forward by the DPRRC that it is inappropriate to and necessary concerns. I hope I have demonstrated create these new schemes entirely by regulation. GC 29 Pension Schemes Bill [HL][24 FEBRUARY 2020] Pension Schemes Bill [HL] GC 30

Tomake a general comment about the framework Bill, schemes—they have banned cold calling for example—but a lot of what is going on seems to be effectively cutting there are still too many abuses out there and there is a Parliament out of meaningful participation in critical risk of people being approached and encouraged to aspects of scheme design. I understand that there is a forgo the benefits they have accrued under a CDC need for a strong element of a framework Bill when scheme for something that may not be worth quite so you are dealing with these kinds of pensions, but it much. seems wrong to deploy them so widely that Parliament I found the meetings that the Minister held with itself is effectively cut out of the process. Parliament is officials and Members of your Lordships’ House cut out. No matter how many times we mention enormously helpful. This issue was raised. If I remember secondary legislation in this debate, it is clearly the correctly, two arguments were given for not doing what case that we cannot amend and do not reject secondary I propose now. One was that it will take time to build legislation. It is difficult to see exactly what our up a transfer value of £30,000, which is the trigger participation in secondary legislation would amount level at which you have to get independent financial to. Having said all that, I beg leave to withdraw the advice. In other words, people who are subscribing to amendment. these schemes would not be able to build up £30,000-worth of assets very quickly so there would be time to Amendment 8 withdrawn. introduce a scheme. The other argument was that we Clause 18 agreed. are talking about a new type of scheme and therefore independent financial advisers may need time to develop Clauses 19 to 23 agreed. the relevant portfolio of skills to give relevant advice to those who are thinking of transferring. Clauses 69 to 74 agreed. I do not find either of those arguments convincing, particularly as it would be possible for people to Clause 24 agreed. transfer into, for example, the Royal Mail scheme. Like other noble Lords, I got a letter from Royal Mail: Clause 25: Transfer rights “Dear Lord Young … If you have any questions or would like to discuss the issues raised during the debate at Second Reading, Amendment 9 please do not hesitate to contact me.” Moved by Lord Young of Cookham I contacted Royal Mail and asked whether it is envisaged that those who join Royal Mail after the scheme has 9: Clause 25, page 17, line 26, at end insert— started and have a pension pot from their earlier “( ) If the trustees receive an application under section 95 employment will be able to buy into the CDC scheme. relating to money purchase benefits that are collective The answer—it is now “Dear George” rather than money purchase benefits, the trustees must check “Dear Lord Young”as the relationship warms—was: that the member or survivor has received appropriate independent advice before— “In answer to your question, yes, the rules of our CDC scheme (a) converting any of the benefits into different benefits will allow members to transfer in (“buy in”) and provide themselves that are flexible benefits under the scheme; with additional benefits under the two parts of the scheme, (a CDC pension and a defined benefit lump sum on retirement).” (b) making a transfer payment in respect of any of the benefits with a view to acquiring a right or entitlement So it could be the case that quite soon after the Bill to flexible benefits for the member or survivor under becomes an Act and Royal Mail goes ahead somebody another pension scheme; who joins Royal Mail and after a few months or a year (c) paying a lump sum that would be an uncrystallised decides to transfer out may have a pot worth more funds pension lump sum in respect of any of the than £30,000, but at the moment they will not have to benefits. seek any independent financial advice before taking ( ) The Secretary of State may by regulations make that decision, putting them in a different category provision about— from other beneficiaries. (a) what the trustees or managers must do to check that a member or survivor has received appropriate The other argument was that this is a different independent advice for the purposes of this section, product and therefore different skills will be needed to and give advice to a beneficiary about whether it is worthwhile (b) when the check must be carried out.” transferring out. It is a different product, but I wonder whether it is so different that IFAs will not be able to Lord Young of Cookham (Con): My Lords, give independent advice to an individual looking on Amendment 9, which is tabled in my name and that of the one hand at the advantages of remaining within a my noble friend Lady Altmann, seeks to give protection particular CDC scheme and on the other hand at the to beneficiaries of CDCs who want to transfer out. possible advantages of transferring out. Given that Basically, it extends the protection that already exists CDC schemes exist in other countries and that there in statute for DB beneficiaries to beneficiaries of CDCs, has been a debate about CDCs for some time in this which we are discussing this afternoon. country, I would have thought it perfectly possible to As the law stands, that protection does not apply to require people to take that advice. the beneficiaries of the schemes we are talking about, I was reading the briefing from the RSA, which so I have done a cut-and-paste job, lifting a chunk of drew my attention to the fact that: legislation and applying it to CDCs. I welcome the “There is a provision in the Bill to allow the Regulator to steps the Government are already taking to stop people temporarily ‘pause’ the transfer option, which mitigates the risk being misled into giving up rights under pension of large-scale transfers out of the system due to misinformation.” GC 31 Pension Schemes Bill [HL][LORDS] Pension Schemes Bill [HL] GC 32

[LORD YOUNG OF COOKHAM] pension environments about how to deal with or define There is indeed a provision in the Bill. It is tucked “advice”, “adequate” and all that, but it is not beyond away in Clause 44 under a pause order. It seems very the wit of noble Lords to cover that off. cumbersome. This clause enables the Pensions Regulator to pause certain activities once a collective money purchase scheme has experienced a triggering event, Baroness Stedman-Scott: My Lords, this amendment and one of the things that a pause order can then do is would mean that a member of a CDC scheme would stop a scheme making transfers out of the scheme. I be unable to transfer their share of the collective assets am not sure that is what we want. It involves the to another pension scheme, with a view to acquiring Pensions Regulator and is essentially reactive, whereas flexible benefits or accessing them flexibly under the weneedsomethingproactive,whichhappensautomatically pension freedoms where this was permitted by scheme and in advance. I did not find that provision in Clause rules, unless they had taken regulated advice. I welcome 44 an adequate response to a problem that may affect the interest of the noble Lord, Lord Young, and that just one or two individuals in a CDC scheme, and will of my noble friend Lady Altmann, in this area and therefore not engage the attention of the Pensions agree that taking advice can play an important part in Regulator, because there is nothing systemically wrong helping to ensure pension scheme savers make informed with the way the CDC scheme is being run. decisions about their pension savings. This includes whether to access them flexibly under pension freedoms There is an issue here. It may arise slightly more or transfer their savings to another pension scheme, quickly than was originally envisaged. The solution I with a view to acquiring flexible benefits. have may not be perfect, but it is a little better than the pause order, the triggering events and the provision in This is why we introduced the advice requirement Clause 44. I beg to move. under the Pension Schemes Act 2015 for members with safeguarded benefits. These are benefits, for example 5.30 pm defined benefits, that contain a promise about the rate or amount of pension income that the member will Baroness Altmann: I support my noble friend’sproposed receive in retirement. The advice requirement ensures amendment. He has raised an important issue here. that members with safeguarded benefits worth more Once again, it is about pre-empting a problem that we than £30,000 must take regulated advice before they can have seen elsewhere and not importing it into brand-new flexibly access their benefits under the pension freedoms legislation. The pause order and triggering events that or transfer their pension savings to another pension might permit some protection against people transferring scheme, with a view to acquiring flexible benefits. out inappropriately will arise only if the scheme is in Pensions transfer advice is highly specialised, involving trouble and the regulator has already picked that up. a full assessment of a member’s financial circumstances That will be a number of steps down the line. and a personal recommendation. This helps the member I wholeheartedly agree with what my noble friend to understand the potential implications of surrendering said. Before transferring out of a defined benefit scheme, benefits, where the amount of pension that the person one is required to take advice if one is losing a meaningful will receive under the scheme is guaranteed by the lifelong potential income—not guaranteed, but potential. employer. Pensions transfer advice can be offered only That protects members and potentially the scheme. If by advisers whose firms have the relevant permissions there are risk margins in transfer values, members set out by the Financial Conduct Authority, along should also have somebody talk them through what with professional indemnity insurance. This comes at they might imply for them. Given that the aim of the a premium, because it is restricted to those prepared CDC scheme is to deliver a lifetime pension, having to take on the business, and can be expensive. By setting the same requirement for advice as we already have in a financial level at which the requirement is triggered defined benefit schemes does not seem overly draconian. in relation to safeguarded benefits, we have sought to I am not saying this is necessarily the right wording or ensure that it is applied proportionately. It may not be optimal route for a CDC scheme, but the aim of this cost effective for members with smaller amounts of amendment to protect members has merit. I would be pensions savings to take and pay for such advice. grateful if my noble friend and the department might It is also worth noting that collective money purchase consider introducing it. benefits, as a subset of money purchase benefits, are “flexible benefits” for the purposes of the provisions Viscount Eccles: My Lords, I say in support that, if of the Pension Schemes Act 2015. As such, a CDC I were a trustee of a pension scheme, and one, two or scheme could decide to allow members to access their more people wanted to transfer out, I would be extremely share of the collective assets flexibly under the pension unhappy if they had not taken independent financial freedoms. Before such an option is offered in the advice. I would see that as a necessary condition of scheme’s rules, we intend for trustees to consider fully coming to the deal that we were possibly coming to. the potential impact this might have on other scheme members and on the ongoing viability and sustainability Lord McKenzie of Luton: My Lords, we should of the scheme. For example, if significant numbers of thank the noble Lord, Lord Young, for bringing this members crystallise all or some of their benefits shortly amendment which, as he said, mirrors other aspects of before retirement, this might impact the scheme’sviability. pensions legislation. I was unclear whether this sits As part of the authorisation regime, the Pensions alongside the pause and triggering events or would Regulator must be satisfied that a scheme’s design is supersede it. I hope the former, as it would be the sound, and that such impacts have been considered quickest and easiest way to deal with it. Intrinsic to the and appropriately planned for, so that the scheme wording are challenges that have been met in other design meets the authorisation requirements. GC 33 Pension Schemes Bill [HL][24 FEBRUARY 2020] Pension Schemes Bill [HL] GC 34

We envisage that regulations in support of the Lord Young of Cookham: My Lords, we are inching scheme design criterion will require evidence that there towards the solution that I was after. I think I heard has been appropriate consideration of risks relating to my noble friend say that she did not rule out legislation pension flexibilities, and that action has been taken to in due course, once the necessary skills had been acquired. mitigate such risks. The ongoing requirement for review I would like to pick up one or two points. At one of the scheme’s viability report should ensure the point, I think my noble friend said it might not be cost scheme monitors any impacts arising from pension effective to have advice for smaller amounts. The flexibilities. These are complex matters; accordingly, amount that I envisaged was exactly the same amount we will need to consult thoroughly on what the regulations that is already required to get independent financial might require in this respect. advice for a defined-benefit scheme, so if it is cost CDC provision is new and the nature of CDC benefits effective for a defined-benefit scheme beneficiary to is very different from defined benefits, to which the get advice for an amount over £30,000 then I would existing advice requirement relates. As I have explained, argue that it is the same for someone with collective pension transfer advice is highly specialised. As CDC contributions. schemes are new and only one employer has so far I heard what my noble friend said about safeguarding committed to establishing such a scheme, it will likely the interests of other scheme members but that is not take time—until more CDC schemes are in place—before actually the point I was making. I understand that the advisers consider entering this new market. It will also trustees will want to look at the impact on other take time for advisers to develop the necessary expertise scheme members if a large number withdraw, but that to offer appropriate and effective transfer advice to is not quite the same as making sure that those who members of CDC schemes. We would need to work withdraw have had access to the right advice. I think closely with the Financial Conduct Authority, which she also drew a distinction between benefits that are will regulate these potential advisers, to determine safeguarded because they are defined benefits and what effective or quality advice might look like. benefits under this scheme, which are not safeguarded. Legally she is of course perfectly correct, but in effect As I have said, CDC is a new provision. Even if we one hopes that there will not be that much difference were to set a level—for example, £30,000—at which a between the level of benefits that you get from the requirement could apply, it may take time for members’ scheme that we are discussing and the level that you funds to grow to this level. I can assure the Committee get from a DB scheme. that my officials will monitor this situation as these I look forward to the regulations that my noble new CDC schemes bed in. Once it is clearer that an friend referred to. I was reassured by what my noble advice requirement for CDC schemes is warranted, for friends Lord Eccles and Lady Altmann said about the example because members’funds have grown significantly, role of trustees. At the moment, under Clause 25(2), we will still need to work out what the appropriate all they can do is hold things up for three weeks. financial level is for triggering the advice requirement However, if trustees take the advice of my noble friend in CDC schemes and how that requirement would Lord Eccles and take steps to ensure that people have work best in practice. At that time, we will engage with taken the necessary advice before they transfer out, the industry and stakeholders to work out these that is the way to go. As I said, I am grateful to my details, and we will then consult on the proposal that noble friend for her response. We are moving in the has been developed. Subject to the outcome of that right direction and I beg leave to withdrawthe amendment. consultation, we will seek to legislate to implement the requirements. Amendment 9 withdrawn. In the meantime, we will require CDC schemes to provide their members with appropriate information to help them to understand how their scheme works. For Clause 25 agreed. example, we would want the communication that the trustees send to a member who has applied for a Clauses 75 and 76 agreed. transfer to contain the estimated value of their share of the collective assets and to outline the potential implications of transferring out of the CDC scheme Clauses 26 to 28 agreed. before normal retirement age. Member communications at joining and near retirement will also signpost CDC 5.45 pm scheme members to the guidance that is available from the Money and Pensions Service. The Money and Pensions Service is responsible for providing guidance Amendment 10 to people with pensions, and that will include members Moved by Lord Hutton of Furness of CDC schemes. 10: After Clause 28, insert the following new Clause— I hope my explanations have reassured noble Lords “Duty to notify the Pensions Regulator: fit and proper persons that until a CDC advice requirement is needed, requirement members with collective money purchase benefits will (1) The trustees of an authorised collective money purchase still have access to information and guidance to help scheme must notify the Pensions Regulator within two weeks them to make informed choices. For the reasons that I of a person assuming a role listed in paragraphs (b) to (e) have set out, I urge my noble friend to withdraw his of section 11(2). amendment. (2) The Pensions Regulator must— GC 35 Pension Schemes Bill [HL][LORDS] Pension Schemes Bill [HL] GC 36

(a) assess whether the person in respect of whom notice Baroness Bowles of Berkhamsted: There is nothing is given under subsection (1) is a fit and proper that needs to be added; it has already been said. I just person to act in the relevant capacity, and want it to be noted that I, too, support the principle (b) if it is not satisfied that the person is a fit and proper behind the amendment. person to act in that capacity, consider whether to withdraw the scheme’s authorisation in accordance with section 30.” Baroness Stedman-Scott: I thank noble Lords for Lord Hutton of Furness: My Lords, the provisions raising these amendments that relate to events which in the Bill dealing with the authorisation of CDCs are can occur in an authorised CDC scheme and which must based on the equivalent provisions of the 2015 Act. be notified to the Pensions Regulator. The amendment Weall know that those provisions have not been brought in the names of the noble Lords, Lord Hutton and into effect and we therefore have no firm evidence as Lord McKenzie, would require the trustees of an to whether they are robust, but there is a genuine problem authorised CDC scheme to notify the regulator where with the way in which they are designed to work. a person assumed a role that was subject to the fit and The powers conferred on the regulator appear to be proper persons assessment. This notification would be confined to the initial authorisation of a collective required within two weeks of the change. The regulator money purchase scheme—I am talking specifically would be required to assess whether the new person about the fit and proper persons test. The powers met the fit and proper persons requirement. Where it given to the regulator by Clause 11 are tied specifically was not satisfied, the amendment would require it to to Clause 9, which, as noble Lords will see, is about the consider withdrawing authorisation from the scheme. decision on the initial application to authorise a collective The fit and proper persons requirement is set out in money purchase scheme. What is going to happen if, Clause 11 and is one of the authorisation criteria. The as inevitably will happen at some future date once the aim is to ensure that only suitable people are involved scheme has been authorised, there is a change in with a CDC scheme in order to protect the interests of the trustee membership of the scheme, or if any of the members. It is also worth noting that the Bill already other persons referred to in Clause 9 change? It is not includes a power in Clause 30 for the regulator to at all clear that the Pensions Regulator at that subsequent withdraw a scheme’s authorisation if it is not satisfied point has the power to determine whether that person that the authorisation criteria are met. The regulator is a fit and proper person to act in any of the capacities will need to be satisfied that this is the case on an referred to in Clauses 9 and 11. ongoing basis, including that the fit and proper persons The regulator has the power in Clause 30 to withdraw requirement continues to be met. Some events would authorisation from a collective money purchase scheme still warrant consideration by the Pensions Regulator if he or she regards the authorisation criteria as not because they could affect the ability of an authorised being met. That might include, for example, that a CDC scheme to continue to meet the authorisation trustee or any other person is not considered to be a fit criteria. and proper person. Clause 29 allows the regulator to Clause 28 covers such “significant events”, which issue risk notices if there is a prospect of the authorisation must be notified criteria being breached—that, again, might include “as soon as reasonably practicable” that one of those persons is a not a fit and proper person. However, the power of the regulator at that to the Pensions Regulator.The draft illustrative regulations point is to withdraw authorisation for a collective that we shared with noble Lords, and which have been money purchase scheme; it is not to make a determination placed in the House Library, provide an indicative list about whether anyone is a fit and proper person. It is of potential significant events. Noble Lords may be really a sort of nuclear option, which is to withdraw reassured to know that the event in their amendment authorisation from the entire scheme. That clearly is contained in the illustrative regulations. We will cannot be appropriate; it would not be in the best work with the Pensions Regulator and others to develop interests of the scheme members. the CDC significant events; we will also consult on the draft regulations in due course. I acknowledge that my amendment is almost certainly imperfect—let us get that issue out of the way—but it Amendment 11, tabled by the noble Lord, is designed simply to allow us to have a discussion. I Lord Sharkey, would mean that the decision of any hope that the Minister can reassure me that I am employer or relevant former employer completely off beam, but is it not better to have it “to withdraw from the scheme” made explicit in the Bill that it is in respect not just of would automatically be considered a triggering event. the initial application that such judgments have to be It may be helpful to point out that the triggering made about fit and proper persons but of each subsequent events listed in Clause 31 are already intended to appointment? capture withdrawal events that pose a significant risk to the future of a CDC scheme. For example, the Lord McKenzie of Luton: My Lords, I have put my withdrawal by the employer from a single employer- name to this amendment for the clear reasons that established CDC scheme or the largest employer in a have just been stated. There should be a continuing connected employer scheme may trigger the winding obligation to make such a judgment, because, between up of a scheme. The withdrawal may also have arisen decisions and determinations, many sorts of things as a result of employer insolvency. In this scenario, it could happen to the individual involved. Be it an is clear that such a decision could risk destabilising the annual event or a one-time event, there needs to be an scheme. As such, it should be treated as a triggering ongoing obligation for a judgment to be made. event and be subject to greater scrutiny and oversight GC 37 Pension Schemes Bill [HL][24 FEBRUARY 2020] Pension Schemes Bill [HL] GC 38 by the Pensions Regulator to ensure that the trustees I know that my final point goes beyond my are taking all necessary steps to address the issue and amendments; I hope that I am allowed to make it. On protect members. the assumption that the Bill becomes law—I very Not every withdrawal of an employer, however, much hope that it does—it is striking that we have a may pose such a significant threat to the scheme. For specific set of provisions for how trustees for these example, the impact of a small connected employer collective money purchase schemes are to be appointed; deciding to withdraw from a CDC scheme may be they must be fit and proper persons, for example. But minimal on the viability and sustainability of the scheme; if one looks at the appointment process for other it may not warrant a decision to wind up the scheme as pension schemes, such as defined contribution and a whole. Such an event would be more appropriately defined benefit schemes, there is no parallel provision. dealt with as a significant event. We intend that such Under the Pensions Act 2004, those trustees must have events should still be reflected in the continuity strategy, some knowledge of pensions law and of their own so that the regulator is aware that this risk has been scheme, but there is no equivalent provision for the considered and planned for. appointment of trustees to other pension schemes. I We propose that regulations would provide for such wonder whether it is justifiable to have this particular events to be a significant event, which would need to provision relating just to these new pension schemes— be notified to the regulator. Such a notification will perhaps it is—but not to have a parallel provision for allow the regulator to engage with the trustees to ascertain other trustee and significant appointments to DB and the impact on the scheme’s viability and continuity, DC schemes. and whether this should lead to a formal triggering My only request to the Minister at this point—we event or other regulatory action. This approach allows may come back to it—is that this may be an appropriate the regulator to retain appropriate oversight of withdrawal time for us to take a wider look at overall pension decisions and resulting actions, while providing some scheme governance. In my view, there is nothing more flexibility and proportionality in approach where the important to the health and well-being of a pension withdrawal of the employer is not expected to impact scheme than the quality of the governance in place to significantly on the scheme. I am also pleased to oversee it. If it is appropriate for trustee and other advise the Committee that the regulator will engage appointments to these new pension schemes, of which with the scheme to look at the options before withdrawing I am very supportive, to be subject to this process, authorisation. For the reasons I have set out, I urge there is a convincing case, too, for an equivalent provision the noble Lord to withdraw his amendment. for defined contribution and defined benefit schemes. Lord Sharkey: I thank the Minister for her Lord Flight: The noble Lord is absolutely right. It is comprehensive explanation of whyit may not be necessary extraordinary that one group has a lot of requirements to add what I proposed. However, I am uncertain on when another has none. Historically—let us say 30 years one thing about triggering events. It concerns the ago—trustees of pension schemes were often not fifth of the triggering events which we have been talking remunerated. Someone applying to be a CDC trustee about. I could not find anywhere in the Bill what the today would not think of taking on the responsibilities trustees must do in the event of an Item 5 triggering unless they were remunerated. event apart from notifying the Pensions Regulator Baroness Stedman-Scott: On the first point made that such an event had occurred. I acknowledge that I by the noble Lord, Lord Hutton, we will write to may have simply missed it but I would be grateful if clarify things. We have not listed “significant events” the Minister could say what the trustees are supposed in the Bill because if members are to be protected, it is to do after an Item 5 triggering event. What actually important that such events can be adapted to emerging gets triggered? threats as well as lessons learned through live running. We want to ensure that these events are appropriate Baroness Stedman-Scott: I thank the noble Lord for and reflect the specific risks that may be posed by his question. I am advised that we will write to him CDC schemes. We will consult with the regulator and with the answer. others before laying any regulations before Parliament. We will consider the noble Lord’s final point—it was Lord Hutton of Furness: My Lords, I am grateful to well made—about pension scheme guidance in terms the Minister for her response but something is still not of the new CDC scheme and existing schemes and clear to me. She says that there is a continuing power come back to him on it. on the Pensions Regulator’s part to vet all appointments that fall under Clause 9. I cannot find that continuing Lord Hutton of Furness: I beg leave to withdraw the authority; I do not know where it is in the Bill. If she amendment. could, at some future point, alert me to what provision of the Bill covers that ongoing authority on the regulator’s Amendment 10 withdrawn. part to make appointments, I would be grateful. Clauses 29 to 30 agreed. The second interesting point is that the Minister referred to Clause 28 as if it had some relevance to the Clauses 77 to 81 agreed. point covered by my amendment. There is no definition Clause 31: Triggering events of “significant event” in the Bill; it will be set out in future regulations. My concern may well be addressed Amendment 11 not moved. if the Minister were to confirm that any new appointments Clause 31 agreed. of trustees or other persons listed in Clause 9 falls within the definition of “significant events”. Clauses 32 to 44 agreed. GC 39 Pension Schemes Bill [HL][LORDS] Pension Schemes Bill [HL] GC 40

Schedule 2 agreed. so crucial to good decision-making. These are a new type of pension scheme. Let us make sure they are fit Clause 45 agreed. for this century. I beg to move.

Clauses 82 to 95 agreed. Baroness Sherlock: My Lords, I thank the noble Baroness, Lady Bennett of Manor Castle, for raising Schedule 5 agreed. this issue and for starting so gently with us—we look forward to seeing where she will take us in future. We Clause 96 agreed. do not get much excitement on pensions Bills, so we are looking forward to her giving us some. 6 pm I am glad that the noble Baroness raised diversity, because it is something that we are certainly concerned Clause 46: Publication of information about, as most people interested in pensions should be. She is not alone in raising these concerns; the Amendment 12 Pensions Regulator raised them, too. It published a consultation document last year on the future of Moved by Baroness Bennett of Manor Castle trusteeship and governance, in which it made a strong 12: Clause 46, page 37, line 14, at end insert— case for the need to improve diversity in pension “( ) require information to be made available to the boards. It made many of the points that the noble Pensions Regulator relating to actions taken by the Baroness raised about the size of the gender pensions scheme to ensure diversity considerations are taken gap, but it also flagged up the gap that those who are into account in the recruitment of the trustee board disabled or from a black, Asian and minority ethnic with regard to— background have poorer pension outcomes than other (i) age; workers. (ii) gender; and A lack of diversity on pension scheme boards has (iii) ethnicity.” long been acknowledged as a problem. The 2016 PLSA Member’s explanatory statement annual survey found that, on average, schemes had This amendment will require pension schemes to make available more than 83% male trustees, with one-quarter of information on the diversity of the trustee board to the Pensions trustee boards being all-male. We are not talking Regulator. about these things not being entirely balanced. If in this day and age a quarter of trustee boards are Baroness Bennett of Manor Castle (GP): I ask your all-male, something needs addressing. Lordships to note that this is the first time I have The idea behind the noble Baroness’s Amendment tabled an amendment in Committee, so please forgive 12 is that schemes should report on the action that any infelicities in my procedural approach. I would they are taking to address diversity. It does not even appreciate any nudges in the right direction, should I mandate an outcome; it asks simply, “What are you need any. In speaking to this and other amendments doing about it?” In fact, TPR put that option in its bearing my name, I note the assistance and initiative consultation document. It said in response to the of the campaign group ShareAction, which has helped consultation that opinion was divided, pretty much with what I am about to say and the amendments. down the middle, with half the people thinking that The noble Baroness, Lady Altmann, said earlier this was a good idea and the other half thinking that it that in setting up CDCs we are starting with a blank was a bad idea. Therefore, it decided not to do it. slate. We are starting in the modern era. This is the Obviously, I could make an alternative argument chance to do things right. Many of your Lordships are based on those same facts, but I just want to ask the aware of the numerous studies showing that more Minister: if not this, then what and when? The back-up diverse groups of decision-makers make better decisions. position from TPR was that it was going to have an If the trustee boards of the CDCs reflect the diversity industry working group to look at improving the of the wider groups of people they represent, their diversity of scheme boards. Will that go ahead? If so, collective life experiences will improve their capacity has it launched or when will it launch? Crucially, how to understand the unique challenges faced by different will we know whether it works? What would success pension scheme members. Pension outcomes are affected look like? If we are not going to ask people even to by issues such as gender, ethnicity and, as we referred report on the actions they are taking, we would want to in an earlier amendment, generational equity. I am to know that the alternative will make a difference. If sure there is a great deal of expertise on pensions in this TPR and the noble Baroness, Lady Bennett, are of Room. Many noble Lords will know that the gender one mind in saying not only that the lack of diversity pension gap is currently 40%—twice the gender pay gap. is a problem but that more diverse boards make better I warn your Lordships that this amendment is very decisions—and they are making decisions about diverse modest compared with many that I may put before the scheme membership—this is an issue on which the House. It is not calling for mandatory diversity rules. Government have to take some kind of action. So if If we were talking about the composition of major not this, then what? company boards, I have long been a campaigner for mandatory rules on gender diversity on those. These Baroness Stedman-Scott: My Lords, the two are measures aimed to ensure that CDC trustee boards amendments tabled by the noble Baroness, Lady Bennett, are fit for the modern era and that they have at least to Clauses 46 and 119, both relate to issues of diversity considered these issues of diversity that we know are and protected characteristics. GC 41 Pension Schemes Bill [HL][24 FEBRUARY 2020] Pension Schemes Bill [HL] GC 42

I will speak first to Amendment 12. I note that the over 40,000 pension schemes, with data varying in aim of Clause 46, which contains requirements relating quality and stored to different standards.The Government to the publication of information concerning CDC expect that it will take three to four years for there to schemes, is to drive transparency about how they be adequate coverage, with pension schemes initially operate. The noble Baroness’s amendment would require providing simple levels of information. Increasing the CDC schemes to provide diversity information to the amount and complexity of information required from Pensions Regulator on what actions the scheme has pension schemes in the early stages may significantly taken to ensure diversity with regard to age, gender delay delivery. The development of dashboards will be and ethnicity in its trustee recruitment. As we heard iterative,and we will continue to consider what information from the contributions, particularly that of the noble is placed on them following their initial delivery to the Baroness, Lady Sherlock, there is work to be done on public. this. TPR has not launched the working group yet, and We recognise the importance of diversity in trustee its timescale is not confirmed, but we will monitor the boards, not just for CDC schemes, but across all situation. For the reasons that I have given, I hope that trust-based schemes. Indeed, the Pensions Regulator the noble Baroness will withdraw her amendment, but has recently published its response on the future of I am sure that she will never let up on her campaign. trusteeship consultation, which considered specifically whether there should be a requirement for pension Baroness Bennett of Manor Castle: I thank the schemes to report to the regulator what actions they Minister for her response. She referred to the fit and are taking to ensure diversity on their board of trustees. proper persons test. I am not a legal expert, but my The response to the consultation advised that there understanding is that the test looks at people as individuals, was a lack of consensus on this issue, as has been with the Pensions Regulator being asked to judge referred to, with some respondents in favour of it and them as such. So far as I can see, there is no requirement others suggesting that there were initiatives already in on the Pensions Regulator to look at the group and place or that such a reporting regime would place an ask, “Is this group appropriate to represent this body?” unnecessary additional burden on schemes. The noble On the Minister’s point about an industry working Baroness, Lady Sherlock, asked, “If not this, then what?” group, these can be a very good thing; however, they I can tell her only that the regulator concluded that can also be an alternative to action. This subject has “it would be beneficial to create an industry working group” been widely researched and there is a great deal of to further investigate raising the profile of this important knowledge about it, so I am not sure why we need a issue, with a view to developing additional guidance working group rather than action. and supporting material to help improve the diversity The Minister referred to putting high-priority of trustee boards. So, I think that will happen. As I am information on the dashboard. I strongly suggest that sure noble Lords will appreciate, I would not want to what I have proposed should be high-priority information pre-empt this significant work, but we will keep it when pension participants are making decisions.However, under review and consider it further as it progresses. for the moment, I beg leave to withdraw the amendment. The Government’s focus on the trustee landscape, including for CDCs, is to ensure that trustees meet Amendment 12 withdrawn. standards of honesty,integrity and knowledge appropriate to their role. I think that employers and members 6.15 pm participating in these schemes would reasonably expect that to be the case. Together with Clause 9, Clause 11 means that the Amendment 13 Pensions Regulator must be satisfied that the persons Moved by Lord Vaux of Harrowden involved in the CDC scheme are fit and proper persons 13: Clause 46, page 37, line 14, at end insert— to act in relation to it. If the regulator is not satisfied, authorisation of a CDC scheme cannot be granted. “( ) Regulations under subsection (1) must ensure that any information published relating to the scheme must clearly We recognise that if we want to engender confidence and prominently state that benefits that may be payable in CDC, and ensure that the interests of members are under the scheme are only targets and not guaranteed, protected, it is vital that the schemes be managed by and that benefits paid may vary, increasing or decreasing appropriate individuals. from time to time.” On Amendment 15, relating to pensions dashboards, again the Government recognise the importance of Lord Vaux of Harrowden: I hope the Committee does diversity on trustee boards. However, we have had to not mind if I start by saying that my name is pronounced consider what information to prioritise as being required “Vaux”. I blame the noble Lord, Lord Brougham and from day one. As we set out in the Government’s Vaux, for the misunderstanding. response to the consultation on pensions dashboards, Amendment 13 is very straightforward and, I hope, the intention is to start with the provision of basic not too controversial. We have already had discussions pensions information. This initial information is intended today on the importance of communication regarding to help consumers plan for their retirement, in line CDC schemes. CDCs are often described as being with our primary policy objectives. somewhere in between defined benefit schemes and The success of dashboards is predicated on there defined contribution schemes. That is an important being a good level of coverage across pension schemes. misunderstanding; they are not. They are defined Achieving good coverage is a complex task. There are contribution schemes, with none of the guarantees of GC 43 Pension Schemes Bill [HL][LORDS] Pension Schemes Bill [HL] GC 44

[LORD VAUX OF HARROWDEN] requirements that the Pensions Regulator has to be any level of outcome that a defined benefit scheme satisfied with, is all about the systems and processes of provides. We have heard comments today about accrued communication. I accept that that is important but so benefits and about transfer values being calculated is the content of the communication. The issue of risk, based on target benefits payable. All these things are and who carries the principal burden of risk in a more like defined benefit schemes but, in reality, do collective defined-contribution scheme, is central. Anyone not relate to CDC schemes. who has followed what happened in the Netherlands a Given that the schemes provide these target outcomes, few years ago will be aware of the enormous sense of there is a real risk that employees signing up will not disappointment, anger and, I think, surprise that many fully understand the reality that they are taking all the of the scheme members felt when their pensions in investment risk and the employer is taking none. In benefit were reduced. No one thought that was possible particular, unlike with a DB scheme or an annuity but of course it was, because, at the end of the day, under a DC scheme, the amount of pension can and collective money purchase schemes are, as the noble does vary year on year, up or down, after it has started Lord said, collective defined contribution schemes. to be paid. This is again a very important difference The risk is entirely on the scheme member; it is not on from a defined benefit scheme or an annuity under a the employer at all. No guaranteed promises are being defined contribution scheme. made to scheme members about what their retirement The experience in the Netherlands in 2012-13 shows benefits will be. how this can come as a surprise. People were deeply The issue of the content of the communications shocked when their pensions were cut in actual terms that the scheme must make available to its members is by up to 7%. Very few Dutch schemes have managed just as important as the systems and process of to keep up with inflation over recent years, and further communication. It is a mistake in the Bill for the cuts are expected in the coming years despite having emphasis to be placed on just the systems and processes, been postponed this year by government jiggery-pokery. as it is, with no acknowledgement of the importance This has seriously undermined faith in the schemes of the content. because people expected to be paid a consistent, inflation- linked pension under them, and they have been shocked. Baroness Altmann: My Lords, I added my name to If we are to avoid a similar loss of face, it is essential the amendment moved comprehensively by the noble that the risks are made very clear in any publication Lord, Lord Vaux. I want to add a few points. issued by the schemes.That needs to cover all interactions: As many of us said at Second Reading, communication when people are considering whether to sign up; whenever is one of the key issues of this type of pension scheme, statements and other communications are sent to especially in a country that is used to traditional defined members; when people are nearing retirement and benefit schemes, which were thought to offer guaranteed deciding what to do; and, as pensioners, as time goes pensions—and have done so in most cases. This is on. Most commentators on the Dutch situation highlight completely different. Indeed, it relates to the idea of that the proper communication of risk is one of the capital buffers and some kind of insurance. If there biggest clear lessons that we should learn from the are no buffers and there is no insurance and things go Dutch experience in setting up our own similar schemes. wrong, it is entirely possible that the member will get The Minister said at Second Reading, and she has no pension from this type of pension scheme. Will that repeated today, that the Government will ensure that concept of risk be explained to members? Will it be in communications to members, particularly at key explained to members who may, as my noble friend points throughout a member’s pension scheme journey, Lord Young said, be transferring into a CDC scheme? CDC schemes are clear and transparent that benefit The aim of this scheme is to offer lower-cost values may go up as well as down—or down as well as administration and better returns on the investment up, actually. However, that does not seem to be a than an individual defined contribution scheme because requirement in the Bill. The regulations about publications of the economies of scale and access to a wider range in Clause 46(2) do not seem to facilitate that, and I of assets—perhaps also with more individualised cannot find it anywhere else. Clause 46(2) says that the professional management of the scheme as a whole—and regulations may, among other things, to offer better income prospects than what an individual “require the trustees to publish a document specified or described would achieve through buying their own annuity, with in the regulations … require information or a document to be all the risk and profit margins involved in that transaction. made available free of charge … require information or a document to be provided to a person in a form or by means specified or Communication to the members that this does not described in the regulations … require or permit information guarantee a pension and that there are no pension specified or described in the regulations to be excluded from a rights in this CDC scheme will be crucial. Explaining document when it is published in accordance with the regulations.” to members, who will be contributing their own resources, Nowhere does it talk about the importance of what this means—not least to Royal Mail members, communicating risk. Amendment 13 would simply whose guaranteed defined benefit scheme was ultimately make the clear communication of the risks—just as picked up by the taxpayer and then moved into a new the Minister has said will happen—a legal requirement. type of defined benefit scheme that was considered I very much hope that the Government can accept this unaffordable by the new body and is being replaced by really very simple proposal. this scheme—needs to be an integral part of establishing the scheme. Lord Hutton of Furness: The noble Lord, Lord Vaux, I thank the noble Lord, Lord Vaux, for raising this has drawn attention to an important issue. The wording important issue. I hope that my noble friend will take of Clause 15, which deals with communication it on board. GC 45 Pension Schemes Bill [HL][24 FEBRUARY 2020] Pension Schemes Bill [HL] GC 46

Baroness Bowles of Berkhamsted: My Lords, I should disclosure regulations under Section 113 of that Act have added my name to this amendment; I apologise to ensure that, for CDC schemes, such information for not getting around to it. It is important, as has been includes key risk messages about benefit fluctuation; explained. for instance, providing full details regarding the possibility Another question triggered in my mind is: what of benefit fluctuation at the point of joining in scheme information relating to the lifetime allowance will be information; emphasising that benefits can change in provided for the member? You get information from a the member’s annual benefit statement for active and defined benefit scheme; you know what you are expected deferred members; being clear that benefits can change to get—though, as we know from the NHS, you can during retirement in retirement information packs; get into difficulties if, suddenly, you are earning a little and notifying members in advance of any change to too much. If you pay into personal pensions, or whatever their rate of benefit during retirement. they are called nowadays, you get a number for the I appreciate the intention behind the noble Lord’s pounds that you are likely to have as a transfer value, suggestion but, if this amendment stands, all documents but what will you get here, especially as you will and information published would need to include a perhaps be at risk? For example, you may think, “Well, risk warning message, which would not be relevant in I’d quite like to run a personal pension alongside this all circumstances; for example, in the scheme’s statement just in case.” How are you going to calculate whether of investment principles. I suspect this would also not you are at risk of breaching the lifetime allowance? If meet the noble Lord’s intention that such messages be you did breach it and then got a tax charge, but then included in other important communications also made the scheme started to pay you less pension for whatever under existing powers. I believe that the best way to reason, would you get that tax charge back? approach these concerns is to set out the required information in regulations, as I have indicated, as this Lord McKenzie of Luton: My Lords, I agree entirely would allow the Government to work with the pensions with what has been said about the need to communicate industry to ensure that relevant targeted messages are and the basis on which to do so. I simply raise that, in developed for each relevant document or piece of 2018, we had extensive discussions on the Financial information. Guidance and Claims Bill, as it then was. A key point was the lack of full understanding of financial matters 6.30 pm of the general public. I have forgotten the statistics, The noble Lord, Lord Vaux, mentioned Holland, but there was a House of Lords review of financial communications about pensions and the target not inclusion, and its conclusions were stark. This is not a being a guarantee. Communication issues in Holland reason not to communicate; it is a reason to communicate occurred mainly because, for many years, the Dutch even more intensively. In how we communicate, we system worked as though benefits were guaranteed. need an understanding of how people might receive When adjustments needed to be made, they came as a these messages and we should not assume they can surprise. We will ensure that CDC schemes must make operate in an environment like this—as many, we it clear and transparent in their member communications know, cannot. that benefit values may go down as well as up, particularly at key points throughout the member’s pension scheme Baroness Stedman-Scott: My Lords, I agree that, journey, at joining, and annually both before and for CDC schemes to be a success, a high degree of during retirement. In addition, one of the authorisation transparency and effective communications are key. If criteria requires that the regulator is satisfied that we want to foster member trust in this new provision there are adequate systems and processes for providing in the UK, the full scope of risk and benefits of information in relation to scheme members and others. collective schemes must be clearly communicated to The noble Lord also made a point about informing members and others, particularly highlighting the nature people properly about the risks in CDC schemes. This of benefits, their potential fluctuations and that they will be made clear and transparent in key member are targeted. I mentioned this at Second Reading. communications at points throughout their pension I have already shared with noble Lords a draft scheme journey. Regulations under the Bill and under illustrative statutory instrument. Paragraph 32 gives existing regulation-making powers in the Pension Schemes examples of the documents and information we plan Act 1993 will be made to require CDC schemes to, for to require CDC schemes to publish. This includes instance: publish a clear statement and the scheme documents that relate to target benefits, including the rules on the scheme website; provide full details at the actuarial valuation and a statement informing members point of joining; emphasise benefit changes in the and prospective members that benefits may be adjusted member’s annual benefit statement for both active and based on the actuarial valuation and are not guaranteed. deferred members; be clear that benefits can change We will also require CDC schemes to publish their during retirement in their retirement information packs; scheme rules, which will include details of benefit and notify members, in advance, of any change to design. their rate of benefit during retirement. Members and In addition to those regulations under Clause 46, other interested parties will also have access to scheme the existing disclosure requirements under Section 113 documentation that must be published on the scheme’s of the Pension Schemes Act 1993 that currently apply website—for instance, the scheme’s annual actuarial to money purchase occupational pension schemes will valuation. apply to CDC schemes, as they are a subset of money I assure noble Lords that, as occupational pension purchase benefits.This covers targeted individual member schemes, CDC schemes are already subject to a broad information, and we intend to amend the existing range of regulatory disclosure requirements, including GC 47 Pension Schemes Bill [HL][LORDS] Pension Schemes Bill [HL] GC 48

[BARONESS STEDMAN-SCOTT] 23_ In section 54(2) (regulations subject to affirmative the provision of key information to members on joining procedure), omit the “or” after paragraph (e) and at and at retirement, as well as annual statements. The the end of paragraph (f) insert “, or intention is to use regulation-making powers to adapt (g) the first regulations under paragraph 1 or 3 of that or supplement those requirements, allowing for these Schedule that make provision in relation to collective money purchase schemes within the meaning of and other relevant matters to be set out in detail for Part 1 of the Pension Schemes Act 2020 (see section CDC schemes. We want to consult thoroughly on these 1 of that Act).” important provisions to ensure that we get them right. 24_(1) Schedule 18 (power to restrict charges or impose I am pleased to confirm for the noble Baroness, requirements in relation to schemes) is amended as Lady Bowles, that HMRC is looking at her point and follows. will bring forward its own legislation. We will consider (2) In paragraph 1(1) (power to restrict charges), in the communications on that. each of paragraphs (a) and (b), for “a member” For the reasons I have explained, I believe that our substitute “members”. favoured approach provides a more targeted response (3) In paragraph 4 (interpretation), after sub- while still ensuring that members are protected. I paragraph (2) insert— therefore urge the noble Lord, Lord Vaux, to withdraw “(3) Where a pension scheme is divided into sections, the amendment. each section that is a collective money purchase scheme for the purposes of Part 1 of the Pension Schemes Act 2020 (see section 1(2)(b) of that Act) is Lord Vaux of Harrowden: I thank the Minister for to be treated for the purposes of this Schedule as a her answer. I do not think that we are a million miles separate scheme.”” apart—the intentions are the same. Member’s explanatory statement I still struggle to see how the Bill relates to what she This amendment ensures that regulations under Schedule 18 is telling us because I do not think the regulations that to the Pensions Act 2014 may be made in relation to collective money purchase schemes. The first such regulations will be subject it refers to do what she is suggesting they should. I to the affirmative procedure. The power to make regulations in urge her to take a closer look at that. relation to other types of scheme is unaffected. Also, because the communication of risk in this situation is so fundamental, there is a benefit in placing Baroness Stedman-Scott: My Lords, we are committed in the Bill the obligation to make sure that that to protecting members of workplace pension schemes communication is made properly to members and from unfair charges. This is why we introduced a potential members, taking the point made by the 0.75% cap on charges in the default funds of money noble Lord, Lord McKenzie. There is an argument for purchase schemes used for automatic enrolment. This it appearing in the Bill, even if not in the wording that cap, which received cross-party support, has proved I have provided—I am happy to look at any other successful, with average charges in schemes used for form of wording—but something must make it clear automatic enrolment reducing by a significant margin. that it is necessary for that risk to be communicated We want to ensure that members of collective money properlytomembers,prospectivemembersandpensioners. purchase schemes in Great Britain and Northern Ireland On the basis of what the Minister said, I beg leave can be similarly protected, which is why we are tabling to withdraw the amendment. these amendments. Our response to the consultation on delivering CDC Amendment 13 withdrawn. schemes confirmed our intention to implement an annual CDC charge cap set at 0.75% of the value of Clause 46 agreed. the whole CDC fund, or an equivalent combination charge. The response also confirmed our intention Clause 97 agreed. that the scope of the CDC cap will be the same as the existing charge cap. Unlike the existing charge cap, Clause 47: Powers to extend definition of which applies at member level, our intention is that the qualifying schemes CDC charge cap will apply across the whole of the fund. This reflects the collective nature of these schemes Amendment 14 not moved. and means that the CDC charge cap will apply to all members in the collective money purchase scheme, Clause 47 agreed. including pensioner members. Again, this reflects the collective nature of the schemes and the fact that the Clause 98 agreed. same fund will provide members with a variable pension income in retirement. We want to ensure that members Clause 48 agreed. of CDC schemes also benefit from other existing charge control measures, such as the member-borne commission ban and the early exit charge cap. Schedule 3: Collective money purchase benefits: minor I will speak first to Amendment 15, which will and consequential amendments amend the Pensions Act 2014 to ensure that the powers in that Act, under which we are able to provide for a Amendment 15 charge cap and other charge control measures, can also be used in the case of collective money purchase Baroness Stedman-Scott Moved by schemes in Great Britain. We are amending paragraph 1 15: Schedule 3, page 131, line 18, at end insert— of Schedule 18 to that Act, which provides a power to “22_ The Pensions Act 2014 is amended as follows. prohibit by regulations certain charges in relevant schemes. GC 49 Pension Schemes Bill [HL][24 FEBRUARY 2020] Pension Schemes Bill [HL] GC 50

This is to make clear that regulations under this power Another point my noble friend mentioned is that can also be made in relation to collective money that there should be no exit penalty. If that were the purchase schemes. As with the existing default fund case, the issue we were discussing earlier about potentially charge cap for DC schemes, it is appropriate to use reducing or applying a risk margin to transfer values regulations to define the details of the cap and how it would become impossible. Intergenerational fairness, will apply. We will of course engage with the regulator which we were concerned about in our earlier discussions and stakeholders in developing these details and will in Committee, may be undermined if there is an then consult on the draft regulations. We aim to align express prohibition on what may be called an exit the application of the CDC charge cap with that of penalty, but which to others is a risk margin or buffer the existing charge as far as possible. againstfuturemarketdislocationsorchangedassumptions. It is entirely appropriate that members of collective money purchase schemes benefit from similar charge Baroness Stedman-Scott: The noble Baroness, control protections that apply to members of individual Lady Bowles, asked what the cap covers. This is defined money purchase schemes. This amendment makes clear in the regulations, and we will send details to all Members that regulations made under the powers in Schedule 18 of the Committee. We will consult on 0.75% and the to the Pensions Act 2014 can provide for controls on final level of the cap, as part of the regulations, so there the charges borne by members in collective money will be more opportunity for noble Lords to influence purchase schemes. The amendment to paragraph 1 of that. The noble Baroness, Lady Altmann, raised the Schedule 18 to the Pensions Act 2014 means that exit penalty. I will have to write to her on that. where a scheme which provides CDC benefits has more than one section, each section offering CDC benefits Amendment 15 agreed. will be treated as a separate scheme for the purposes of the charge cap provisions. This is consistent with other Schedule 3, as amended, agreed. provisions about how sections of schemes offering CDC benefits are to be treated and ensures that sections Clause 99 agreed. offering CDC benefits do not cross-subsidise other sections of the scheme. 6.45 pm The amendment to Section 54 of the Pensions Act 2014 means that the first regulations under paragraphs 1 or 3 of Schedule 18 made in relation to Schedule 6: Collective money purchase benefits: minor CDC schemes will be made by the affirmative resolution and consequential amendments for Northern Ireland procedure. Section 54 already provides for the first regulations under these paragraphs to be made by the affirmative procedure, but regulations have already Amendment 16 been made under these paragraphs. We wish to ensure Moved by Baroness Stedman-Scott that the first regulations made in relation to charge caps for CDC schemes have the same level of 16: Schedule 6, page 139, line 22, at end insert— parliamentary scrutiny as those regulations did. Turning “22_ The Pensions Act (Northern Ireland) 2015 (c. 5 briefly to Amendment 16, this makes corresponding (N.I.)) is amended as follows. changes to Northern Ireland legislation to provide for 23_ In section 51(4) (regulations subject to confirmatory procedure), omit the “or” after paragraph (e) and at a charge cap for CDC schemes in Northern Ireland. the end of paragraph (f) insert “, or This will ensure parity of member protection for members (g) the first regulations under paragraph 1 or 3 of that of CDC schemes across the UK. I beg to move. Schedule that make provision in relation to collective money purchase schemes within the meaning of Baroness Bowles of Berkhamsted: My Lords, I have Part 2 of the Pension Schemes Act 2020 (see section 52 no objection to making things the same everywhere, of that Act).” but last time I came across this 0.75% cap I did not ask 24_(1) Schedule 18 (power to restrict charges or impose a question, so I will now. What exactly does it cover? requirements in relation to schemes) is amended as Compared to some SIPP investor platforms and so follows. forth, it seems rather high. Does it cover all the trading (2) In paragraph 1(1) (power to restrict charges), in charges as well? You can get 0.15% from Vanguard, each of paragraphs (a) and (b), for “a member” 0.25% from AJ Bell and up to 0.45% with all your substitute “members”. trading charges covered from Hargreaves Lansdown. I (3) In paragraph 4 (interpretation), after sub- could go on. If you go to some of the insurance companies paragraph (2) insert— —I will go on—they tend to be greedier, up to 0.3%, but “(3) Where a pension scheme is divided into sections, that is far short of 0.75%, so what is this paying for? each section that is a collective money purchase scheme for the purposes of Part 2 of the Pension Baroness Altmann: I shall raise similar points. Will Schemes Act 2020 (see section 52(2)(b) of that Act) ask my noble friend say how the 0.75% charge cap was is to be treated for the purposes of this Schedule as a separate scheme.”” arrived at, given that the purpose of the CDC scheme, as I understood it, is to provide members better value Member’s explanatory statement than if they had their own defined contribution fund This amendment ensures that regulations under Schedule 18 and to benefit from the economies of scale of collective to the Pensions Act (Northern Ireland) 2015 may be made in relation to collective money purchase schemes. The first such management and administration, which clearly should regulations will be subject to the confirmatory procedure. The be much lower per member than an individual defined power to make regulations in relation to other types of scheme is contribution scheme? unaffected. GC 51 Pension Schemes Bill [HL][LORDS] Pension Schemes Bill [HL] GC 52

Amendment 16 agreed. subsections (2)(b) in the offences, which say that the person intended the actual course of conduct to have Schedule 6, as amended, agreed. such an effect, need to be deleted because they would negate recklessness as an offence. Clauses 49 to 51 agreed. Of course, having appropriate checks and procedures in place would be an obvious defence, just as they are Clauses 100 to 106 agreed. in the various “failure to prevent”types of offences that have come into being, such as for bribery and money laundering. Clause 107: Sanctions for avoidance of employer debt etc Now I come to probing the third term: “unscrupulously”. This may not be a normal legal term, but everyone knows what it means. It is used in Amendment 17 describing the objectives of those whom it is wished to catch. It is used about the new offences—starting at Moved by Baroness Bowles of Berkhamsted the bottom of page 7 of the Explanatory Notes, which 17: Clause 107, page 90, line 24, after “person” insert “wilfully, state: recklessly or unscrupulously” “They will provide additional deterrents for unscrupulous behaviours and will enable the Regulator to punish abuse and Baroness Bowles of Berkhamsted: My Lords, this wrongdoing within the occupational pensions industry appropriately.” important group of amendments deals with the definitions That is exactly what we want to be able to do: punish of new criminal offences and new regulatory fines, and unscrupulous behaviours. with the defences to the criminal offences. I will also Compared with some of our Commonwealth speak to my Amendments 18 and 22 as well as to colleagues, we in this country are rather a soft touch. Amendments 23 to 26 in the name of the noble Lord, Australia has an offence of unconscionable conduct in Lord Hutton. commerce. It works under common law and shows that Amendments 17 and 22 are probing amendments. expressions describing bad behaviour do not need to They would require that, for the criminal offences of be shunned in legislation. Yes, it is a catch-all phrase, avoidance of employer debt and risking accrued scheme but we should be starting to give it serious thought benefits, the person has to have behaved wilfully,recklessly when it accurately describes the underlying behaviour. or unscrupulously.I want to say a few words about each As a little thought experiment, what happens if of those terms, which is where the probing comes in. we apply the three words “wilfully”, “recklessly” and I do not think that “wilfully” changes much in the “unscrupulously” to driving fast in a 30mph zone? sense of the clauses because later, in subsection (2)(b) What would we get? “Wilfully” means that there was of the respective new sections, it is stated that the person an intention to drive faster. “Recklessly” might mean intended the actual course of conduct to have such an not bothering to look or have regard to surroundings effect. It could be argued that the wording of the or missing the sign. What might be “unscrupulous”? I subsections further highlights the necessity for a greater have had some fun thinking about this. Here are a few understanding of the consequences but, in my view, possibilities: blanking out your number plate with a the insertion of “wilfully”would make those subsections fancy gizmo or having false number plates; getting redundant. My Amendment 18 and Amendment 24, a friend to remove the 30mph sign; or perhaps making tabled by the noble Lord, Lord Hutton—to which I someone else the fall guy, saying that you were not the have put my name—would delete those subsections. one driving. These may be wilful acts but while it is It gets a little more complicated when it comes to questionable whether they are specifically wilful at the considering “recklessly” but it is important to consider time of the actual offence or what the precise intended that term because, as several noble Lords pointed out effect was, they are certainly unscrupulous. at Second Reading, the Government consulted on I turn briefly to the amendments in the name of the “wilfully”and “recklessly”. As I see it, “recklessly”does noble Lord, Lord Hutton. I apologise for going ahead not require the same degree of intent as to outcome, of the mover but there are words in common. In his so it broadens the scope. It implies a lack of due amendments, “wilfully” and “recklessly” are used in a diligence or a high degree of negligence. One could slightly different place but what I have said about their perhaps express it almost as wilfully negligent—that meaning also applies. There is also the consequence of is, not bothering to have proper checks in place and needing to delete the subsection reciting intent. caring even less. Amendments 23 and 25 are applied to deal with the These are egregious matters we are considering, criminal offence and civil fine relating to putting accrued when pensions are put at risk either deliberately, without scheme benefits at risk. The wording caring or for ulterior motives. To my mind, it would be unthinkable to allow unscrupulous individuals to get “detrimentally affects in a material way” off the hook of criminal charges with the defence of appears and has caused some concerns, which were “I didn’t know” because they had not made, and referenced at Second Reading. I think that the positioning had no intention of making, the right kind of checks. of the wording works well and support the addition of “Recklessly” is not the same as “accidentally” or those words to the fine offence. Obviously, it is possible “incidentally”; “recklessly” is “I don’t care” and it to merge the noble Lord’s proposal and my own with should be covered. It should not require that the regard to the criminal offence of risking the accrued precise end effect was intended, which is why both scheme benefits. GC 53 Pension Schemes Bill [HL][24 FEBRUARY 2020] Pension Schemes Bill [HL] GC 54

More broadly, it seems that “wilfully”or “recklessly” In responding to these amendments,would the Minister could be usefully incorporated into the financial penalty —I think it will be the deputy Leader—give more on avoidance of employer debt, so that it was in all detail and further examples of the harms we are trying four of the new offences, including the two criminal to remedy in this part of the Bill? Much mention was ones and the new fines. Then there would be no made at Second Reading of BHS and Carillion, but playing off about different meanings. But I will listen these companies had unique factors that went way carefully to the Committee, particularly to see whether beyond pensions. The impact assessment assumes up the noble Lord, Lord Hutton, has a different nuance to five cases every year. Is there other evidence in to mine. recent years that justifies criminal penalties and these The other amendments in this group, tabled by the estimates? noble Baronesses, Lady Noakes, Lady Neville-Rolfe In closing, I shall make a wider point. We need to and Lady Sherlock, relate to defences and call for get this legislation right, and we have been trying to do guidance. I sympathise with the general intent but that today, because the costs of getting it wrong, and have some reservations; however, I will speak to them the inevitable legal costs, will fall on pension schemes later when we have heard from the movers, as their and therefore leave less for the very pensioners we are wording is not interconnected like my amendments trying to help with the Bill. The new criminal offences and those of the noble Lord, Lord Hutton. I beg to appear to cover not only the employer but trustees, move. advisers, third parties and possibly the regulator. They could embrace routine debt funding necessary for Baroness Neville-Rolfe: My Lords, I refer to my a viable business, or changes to investment strategy entry in the register of interests and shall speak to designed by trustees to improve their fund. The perverse Amendments 19 to 21, which are grouped with those effect of getting the arrangements wrong—this is a of the noble Baroness, Lady Bowles. My amendments theme I always return to—could be cost and delay, are also in the name of my noble friend Lady Noakes, which might be problematic in a tight financial situation who sadly cannot be in her place today.Weare concerned and push more businesses into the Pension Protection that the powers in Clause 107 may be drawn too Fund, which is exactly what we all want to avoid. It widely. This is a concern shared by a number of those could also deter trustees from taking on the responsibility involved in the pensions sector—indeed, it was touched for pension funds. My noble friend Lord Eccles, who I on by the noble Baroness, Lady Drake, a great expert am sorry to see is not in his place, made this point in in pensions matters, at Second Reading. relation to the wider regulation-making power in Clause In the same debate my noble friend the Minister 51, although I very much understand the difficulties helpfully said that the intention of the clause was, that my noble friend faces in this area. “to punish those who wilfully or recklessly harm their pension scheme”.—[Official Report, 28/1/20; col. 1353.] 7 pm In the light of that, it seems that the criminal offence is Lord Hutton of Furness: My Lords, I shall speak to really aimed at parties whose conduct is extreme and my Amendments 23, 24, 25 and 26. It was clear at lies outside the range of ordinary reasonable conduct. Second Reading and has been again today that most If so, we believe that the thought could be captured Members of your Lordships’ House accept the need better by applying the offence only where, for this new criminal offence: I certainly do. Recent “no reasonable person having regard to all of their duties and all events have confirmed that there is a gap in the law relevant circumstances”, and we should try to fill it—that is our responsibility. would have acted as they did. The change from However, when it comes to the creation of new criminal “reasonable excuse” to “no reasonable person”, as in offences, there are always some important questions Amendment 19, may not sound like much of a change; to be clear about, from the beginning. Who are we however, I assure noble Lords that it is important. I aiming this new criminal offence at? Have we got that am advised that a substantial body of case law makes right, and are we clear, in the way the offence has been it clear that the two are very different. The former drafted, that we are catching or bringing within the potentially creates a fine objective judgment, while the net of this new offence those people and those people latter recognises that there is a range of conduct that alone? can be seen as reasonable. Our Amendment 20 proposes Weneed to be clear who can prosecute. It is interesting for consideration today a list of factors that could be to look at the origins of this offence, and the way it taken into account by the courts. came about in the consultations. It is clear in the Finally, Amendment 21 proposes an exemption, Green Paper and the White Paper that the Government, drawing on an idea in the Pensions Act 2004. It would rightly, had in mind that the Pensions Regulator would provide a system of binding comfort that could be be the prosecuting authority. That is not the case in given by the regulator or the Pension Protection Fund. the Bill, where we have the rather unsatisfactory state Given the gravity of the criminal offences those involved of affairs that not just the Pensions Regulator but the in the pension world will potentially face as a result of Secretary of State and the Director of Public Prosecutions the Bill, there seems to be a strong case for examining can prosecute. As I said at Second Reading, that does this. We want good, honest people to be involved in not clearly set out where the prosecuting authority the sector and not deterred from any involvement. lies, which is why I support Amendment 35, tabled by These amendments deal with new Section 58A of the my noble friend Lady Sherlock. Pensions Act 2004, but obviously if the argument were There is a parallel here with other offences. This is a accepted by the Government, a similar change would new offence, complicated in nature and unclear in its be needed to new Section 58B. precise scope. When Parliament is creating new offences GC 55 Pension Schemes Bill [HL][LORDS] Pension Schemes Bill [HL] GC 56

[LORD HUTTON OF FURNESS] indictment, where the statutory sentence of imprisonment such as this, it has a responsibility to the general would kick in, or it could be tried on a summary population—and, in this case, to those concerned with conviction. But by its very nature a summary trial the governance of pension schemes—to help them implies that an offence is not as serious as a charge understand what is covered by this new legislation and that can be brought before a jury in a Crown Court. what actions people need to take to make sure they For the life of me, I cannot understand why this stay on the right side of the law. Amendment 35 would offence has mutated into a serious and a less serious help us clarify some of those issues. offence at the same time. That is incomprehensible to There is a general problem with the way this clause me. This is a serious offence that should be tried on has been drafted, which has been a familiar theme of indictment by an appropriate criminal prosecutor. the comments of the noble Baronesses,Lady Neville-Rolfe I am afraid that in my humble view this clause and Lady Bowles. I support much of what they said. I needs a complete rethink. It is too wide of the mark am concerned that this offence, in its current form, is and obtuse in what it is covering, and the sentencing drafted too widely. When it was envisaged, and the arrangements are indecipherable; they are an inherent Government did their consultation, it was going to be set of contradictions. This should be an offence triable an offence to catch the behaviour of unscrupulous on indictment only, period, because we are talking employers or directors of companies. That is the origin about serious offences. of this offence. We do not need to go into the detail of The noble Baronesses, Lady Neville-Rolfe and the case, but we all know what we are talking about. Lady Bowles, both referred to the wording used to It is clear, from a cursory reading of this clause, that describe this offence. I have simply tried to bring into this offence would cover more than just employers and the Bill the wording that the Government themselves company directors. It could cover scheme trustees, consulted on when the offence was being talked about actuaries or advisers, or pretty much anyone in a position and conceived. It was about wilful or reckless behaviour; to give advice on the management of a pension scheme. in fact, I think the Government used the phrase “grossly I genuinely doubt that was the intention of the reckless behaviour” in their consultation. In the way Government when they consulted on this clause. They that this offence has been drafted, I absolutely accept have made this provision too broad in scope. They that the Government are trying to ensure that the should have another look at the way that this clause offence is based on wilful or reckless behaviour, but has been drafted. there is almost an obligation on the Government when they have consulted on a particular offence to stick as They should definitely have another look at who closely as possible to how that consultation was done, the prosecuting authority should be. Generally, in our developed and extended, and to bring forward legislation system, it is very unusual for the Secretary of State to that as closely as possible represents that offence in be able to bring a criminal prosecution against another any new legislation. I think there is a way that the person. There may be one or two examples I am not Government could do that. My amendment is one aware of, but I am sure the Minister is well advised simple way of doing it, although there may be a better about how many situations there are in which the way. I think it is incumbent on the Government to try Secretary of State has such a power. Generally, it is as far as possible to stick to what they consulted on, best to leave criminal prosecutions in the hands of but there is a very real danger that this clause will not criminal prosecutors. With the best will in the world, do that. I hope the Minister will be able to offer me and the high regard I have for the Secretary of State, and other Members of the Committee some reassurance she is not a criminal prosecutor. I would not want her that the Government might be willing to have another to be in the position of being advised to bring a think about the nature of this new offence. prosecution. I would like the Minister to set out how that process would work within the department. It Baroness Bowles of Berkhamsted: My Lords, I am would be unusual. As a Secretary of State, I was never sorry to rise again but I did warn the Committee. I advised to bring a criminal prosecution. Particularly if agree that it is necessary to look again at the precise the DPP and the Pensions Regulator both decided not wording. I do not think that “recklessly” is covered, to bring a charge, it would be extraordinary for the and it should be. It may well be a solution to remove Secretary of State to be able to carry on with a trustees from the scope. criminal prosecution none the less. I want to address the concerns I have about defining The third question about criminal offences is pertinent “reasonable excuses”. Sometimes you can end up forcing to this offence. What is the penalty for the wrongdoing unintended interpretations that can work both ways, that we have in mind? To go back again to the Green either giving loopholes to bad behaviour or unintentionally and White Papers, the origin of this offence was the limiting the scope of excuses. That means, if you like, behaviour of unscrupulous employers, who deliberately it can work for the prosecution or the defence, but it put at risk scheme members being able to acquire their means you do not get what you thought you had got. scheme benefits. By its very nature, that is a serious If anything is specified or picked out as an example, it offence and the draft statute we are discussing has a needs to be clear that it may not be binding in all sentence of up to seven years’ imprisonment for such circumstances and that the examples are not an exhaustive an offence. Bring that on. That is an appropriate list, so that if something else is brought forward as a statutory offence. defence it is legitimate for it to be considered. What I do not understand about this offence, in There are certainly regulators that have fallen into what would be new Section 58B(9)(b) of the statute, is the trap of too many guidelines. The FRC was criticised that it could be tried either way. It could be tried on in the Kingman report for the detrimental effect on GC 57 Pension Schemes Bill [HL][24 FEBRUARY 2020] Pension Schemes Bill [HL] GC 58 reporting and audit of too many guidelines, resulting Baroness, Lady Bowles, expressed that point well. I in boilerplate recitations rather than thoughtfulness. accept that there is a balance at stake here and that the In this subject, we are also interested in thoughtfulness drafting must strike a balance. It is right to expect those and people thinking about what they are doing. We charged with managing or overseeing pension funds to debated the FCA report into GRG in the Chamber on do so with appropriate skill and knowledge, and with 27 June last year, and the FRC gave a line-by-line care and integrity.However, I am also conscious that the report of how its published interpretation of “fit and Government would not want inadvertently to discourage proper” had greatly narrowed what in my personal good, capable people from, for example, serving as experience was always held out to be a wide-in-scope pension scheme trustees if they feared the unforeseen basic test. It was even described to me by some people consequences of making reasonable judgments in good as our version of “unconscionable conduct” in that faith; nor would they want to foster unhelpful levels or bad conduct would not be fit and proper and that was types of risk aversion. the way in which we went about getting bad behaviour. There is a need to have more clarity, for Parliament However, in the GRG case and the report from the and the sector, as to how these provisions will operate FRC we found that not to be the truth because of the in practice. Reading the impact assessment, it seems guidelines and training that were put around those clear that the Government expect the criminal offences words. So what we do here needs to be done with care. in particular to catch hardly anybody. It is based on Concerning Amendments 19 and 20, it should not one person a year being convicted, so the clear expectation be a reasonable excuse to do something just because in the minds of those drafting this is to have a nod that someone else has or might have done it. That is an a safety net will go out—unless I have misunderstood, excuse for a race to the bottom and to disengage from in which case please correct me. responsibility. It is reasonable to have regard to market Amendments 17 and 22 propose the formulation practice but the competitive urge to do what others do “wilfully, recklessly or unscrupulously”. I do not need or to push it a bit further has to be resisted—such to revisit this but I would be interested to know behaviour was among the causes of the financial crisis. whether the Minister agrees with the noble Baroness, I fully accept that there are difficult matters to Lady Bowles, in her probing approach on what that balance for business; these are in part explored in later phrase means. Also, why did Ministers decide not to amendments relating to dividends. Perhaps the law go with “wilfully” or “recklessly”? What did they think has not been clear enough so far about what are the was changing between that and the formulation that right priorities; in the past, pensions have been put at they used in the Bill in the end? the bottom of the pile, with deficits paid down slowly The amendments tabled by the noble Baronesses, and surpluses raided and holidays taken rather more Lady Neville-Rolfe and Lady Noakes, are interesting. eagerly, with a lax attitude when the company is I hear that the noble Baroness, Lady Neville-Rolfe, generally well capitalised. That has been the wrong regards the current reasonable test as being too low. message. I believe it is now the right time to clarify that Many people would regard the test that no reasonable obligations rank ahead of options in the balance of person would do something as very high indeed. I legitimate interests and call on capital. wonder whether the Minister has a sense of how easy it would be for anyone to be convicted on a test of that Baroness Sherlock: My Lords, I will speak to nature. That is the judgment. Amendment 35 in my name and respond to the debate on the other amendments. In doing so, I remind the 7.15 pm Committee of an historic remunerated interest as the I am also a bit worried about the factors being former senior independent director of the Financial taken into account, including normal market practice. Ombudsman Service. I am with the noble Baroness, Lady Bowles, on this. At the outset, I say that we on these Benches place a What would happen when normal market practice high priority on ensuring that the regulator has the was in contravention of the aims of the Bill? For example, powers and sanctions that it needs to tackle bad the way that PPI was sold was normal market practice, yet behaviour in the operation of pension schemes. I agree we are now in a position where probably some £50 billion with the noble Baroness, Lady Bowles: conduct that of compensation will be paid to consumers by banks puts at risk the assets that people have worked for all and financial service companies. That was normal their lives is serious behaviour indeed. It can have a market practice; it did not make it right, and now it is dramatic effect on the lives of millions of people and having to be put right at vast expense. push them, in the end, into a retirement based in penury My noble friend Lord Hutton made a very interesting rather than the security that they could have reasonably speech. His amendments shift the test in a slightly expected. Of course, allied to that is a public policy different direction towards the impact of an act deemed interest: it may discourage people from saving if they to put benefits at risk rather than the material detriment do not feel that the vehicles are secure and that their test elsewhere. I would be interested if the Minister could money will be safe. So we welcome the introduction of tell us what the Government think that would mean. I the new offences and the focus on preventing bad have seen a copy of a letter written to the noble Baroness, behaviour and stepping in before the consequences get Lady Stedman-Scott, by the Association of Pension too serious or, even, the situation becomes irrecoverable. Lawyers, as I am sure other noble Lords have. It thinks In the Committee, at Second Reading and outside, I that the current drafting would capture an act which have heard some concerns about the Bill’s drafting, made a small change in the risk but suggests that the especially around what reasonable behaviour is and formulation written by my noble friend Lord Hutton what conduct causes material detriment. The noble would mean, GC 59 Pension Schemes Bill [HL][LORDS] Pension Schemes Bill [HL] GC 60

[BARONESS SHERLOCK] incidentally, the Pensions Regulator has previously “in order to be guilty of a criminal offence, someone must have encountered—are, for example, the sale of an employer moved the scheme benefits from ‘not at risk’ (i.e. a broadly secure with a defined benefit scheme without replacing an position) to ‘at risk’ (i.e. a broadly insecure position), rather than existing parental guarantee over the employer’sSection 75 merely made a small change.” debt, resulting in the loss of the guarantee, including Does that accord with the Government’s understanding failing to tell the trustees about the sale in advance. of that question? I would also be interested to hear the That might be one example. Government’s response to my noble friend’s question on prosecuting authorities and how the offences will A second example would be the purchase of a be prosecuted. company, subsequent mismanagement of that company and extraction of value prior to it going into Amendment 35, which is in my name, tries to steer administration, while a third might be the stripping of a way through this by offering an opportunity for the assets from the employer, resulting in a substantial Government to give some clarity, without moving too weakening of support for the scheme. I do not mean far in either direction. We are trying to steer between to suggest that that is an exclusive list, but I hope it the classical rocks and give the Government a path gives the Committee a flavour of the actions that we through the middle. I take the point made by the noble are targeting. Baroness, Lady Bowles, that the wording we have might prove either too restrictive or not sufficiently If found guilty of an offence under these new sections, restrictive, and I will be open to the Government a person would be liable to a fine on summary conviction finding their own way to do this. The aim of this or, on conviction on indictment, a fine or imprisonment amendment is that the regulator should clarify how it for up to seven years. Where a financial penalty is issued understands the nature of reasonable behaviour, and in respect of these provisions, the person may receive a “conduct that detrimentally affects in a material way the likelihood penalty of up to £1 million. The noble Lord, Lord Hutton, of … scheme benefits being received”. asked me why we had drafted it so that the offence The aim is to indicate that the bar for material detriment could be tried either way. I think that, in sum, the has been set lower than the Government clearly intended reason is that it gives the Pensions Regulator discretion it to be set. If the Government are to go down this to focus on all ranges of what might be considered bad road, either by accepting my amendment or by telling behaviour or wilful or reckless behaviour, not just the us that the regulator intends to make a statement, they most severe. It gives the regulator that flexibility. need to do that as soon as possible because they will I realise that Amendments 17 and 22 are probing have to consult on it. Before the Bill finishes its passage amendments. They seek to probe whether and how far through this House, it would be helpful to have some the two new offences should apply to any person idea of how they are going to go about that because whose conduct is within the scope of the offences, and we have heard today that clarification could take us in they suggest that they might apply only to a person lots of different directions, making different people who wilfully, recklessly or unscrupulously does an act variously happy or unhappy depending on the way the or engages in such conduct. I will say something about Government go about it. the words “wilfully” or “recklessly” in a moment, but The Minister’s reply to this group is of particular is it is important first to understand that the new importance. I have tried to point out the specific hurdles criminal offences and financial penalty provisions target he will have to jump over, but it will be important for conduct that avoids employer debt to pension schemes him to give us as clear an answer as he can to each or risks accrued scheme benefits being paid. It is the point to help us—and the many people who will be conduct that we are focusing on here. It is an offence listening to this debate and reading the transcript—to only if the person intended to harm the scheme or understand where the Government are going. We have should have known that the conduct would have that no desire to undermine the ability of the regulator to effect and has no reasonable excuse for their actions. pursue those who put at risk the hard-earned funds of In proposing these criminal offences, it is absolutely pension savers; equally,we need to be sure that appropriate not the Government’s intention to interfere with routine safeguards are there. I look forward to the Minister’s business activities. The Pensions Regulator also continues reply. to be responsible for making sure that employers balance the needs of their defined-benefit pension Earl Howe (Con): My Lords, this is quite a large group scheme with growing their business. However, it is of amendments, all having as their subject matter important that where the elements of the offences are Clause 107. I want to do justice to them so I therefore met, no matter who has committed them, the Pensions hope the Committee will forgive me if my reply is Regulator should be able to respond appropriately. somewhat longer than might be welcome or the norm. Any restriction of the persons would create a loophole Let me briefly set out what this clause seeks to do. for these people to act in such a way. Clause 107 introduces two new criminal offences into Leading on from that, Amendment 18, tabled by the Pensions Act 2004, in new Sections 58A and 58B, the noble Baroness, Lady Bowles, seeks to remove the and provision in new Sections 58C and 58D for mirroring requirement in the new criminal offence in new financial penalties. These provisions strengthen the Section 58A for the Pensions Regulator to prove that a deterrent and punishment for certain conduct which puts person intended an act or course of conduct to have pension schemes at risk. My noble friend Lady Neville- the effect stated in the offence. The amendment would Rolfe and the noble Lord, Lord Hutton, asked what significantly change the nature of the new offence. It sorts of acts we are targeting. The types of acts that would also duplicate many elements of the new offence could fall within the criminal offences—and which, contained in new Section 58B. In practical terms, new GC 61 Pension Schemes Bill [HL][24 FEBRUARY 2020] Pension Schemes Bill [HL] GC 62

Section 58A as introduced applies only where wilful This is why the Bill, as introduced, includes the concept behaviours have occurred. That is evident as the section of materiality, as a means to indicate that consideration requires that will need to be given to the level of impact the conduct “the person intended the act or course of conduct” has on the likelihood of accrued scheme benefits being to have the effect as set out. It is worth my adding that received. The concept “puts at risk”does not include any this offence also mirrors the existing main purpose test indication that the level of impact should be considered in the contribution notice regime and has been worded at all. Therefore, if the amendments were to be accepted, accordingly. it could be argued that conduct that puts benefits at risk by even a fraction of a per cent could be in scope, The noble Baroness made reference at Second Reading which would go beyond the policy intention. to the difficulty, in her view, of proving intent in the Amendments 19, 20 and 21 seek to provide further corporate environment. I have to say that I am not clarity around the way in which the reasonable excuse with her on that. Proving that a person’s behaviour defence will work and to provide protection from was intentional is something that the regulator currently prosecution if an act or course of conduct has been does under the main purpose test in the contribution approved by the Pensions Regulator or the Pension notice regime, so we are confident that this should not Protection Fund. I believe that Amendments 19 and be cause for concern. 20 are unnecessary and will set out why. In contrast to some of the earlier amendments, The existing phrase in the Bill “reasonable excuse”, Amendments 23, 24, 25 and 26 would change the basis which is to be removed by Amendment 19, has an of the new criminal offence, as included in new inherently wide meaning in practice and could be Section 58B, making the scope of the activities caught interpreted to include the factors being presented in by the offence wider than as set out in the Bill. the amendment. It is therefore unnecessary to set out Mirroring changes have also been made to the those factors. The factors that the prosecuting authority corresponding financial penalty provision, as included would consider when determining whether there is a in new Section 58D. As introduced in the Bill, the reasonable excuse would depend on the individual basis of the test in these new sections is whether a circumstances of each case. Amendment 20 could, person does an act or course of conduct which, however, limit the factors the prosecuting authority “detrimentally affects in a material way the likelihood of accrued and the courts could consider when determining whether scheme benefits being received”. there is a reasonable excuse and may potentially result The test requires that the person knew or ought to in unintended consequences. For example, a person have known that the act or course of conduct would may have a reasonable excuse that does not fall into have this effect. However, the amendments as tabled one of the factors to be considered. It is the age-old would mean that the test is met where a person, problem of including a list in legislation—a problem “wilfully or recklessly puts at risk accrued scheme benefits being with which my noble friend is very familiar, I am sure. received”. There are two main points I would like to address 7.30 pm on these amendments and on why their wording is not The decision on whether a person has a reasonable appropriate. The first is a point of clarification around excuse and, ultimately, has committed an offence in a why we have not drafted the new offence and particular case is a matter for the courts. In coming to corresponding financial penalty in terms of the words such a verdict, the courts will have given due regard to “wilful” and “reckless” conduct. We have listened to all the circumstances in the case in question. That can feedback following consultation around the application only be right. of a test and we concluded that there would be too much uncertainty regarding what the words mean for Turning to Amendment 21, I start by outlining that us to legislate on this basis. Instead, the provisions it is not the policy intention to give the Pensions have been drafted in such a way that it should be clear Regulator or the Pension Protection Fund the power whether the test is met. effectively to grant immunity against prosecution, in respect of the new criminal offence at new Section 58A. Secondly, changing the basis of the test to “puts at It is for the court to decide whether or not a person risk” could cause uncertainty within the industry. We should be convicted of an offence, having regard to all consciously used the existing contribution notice tests the circumstances of the case in question. as the basis for the new sanctions, as they target similar behaviours and are already familiar to the industry. By As regards whether a prosecution is brought forward, comparison, changing the basis of the test at new it is for the prosecuting authority to determine whether Sections 58B and 58D to “putting at risk” would to do so, having regard to its own prosecution policy create a new concept. Our view is that this would and the Code for Crown Prosecutors. It is common create uncertainty and a lack of clarity about the practice that if the prosecuting authority thinks that application of the new sanctions. In particular, changing there are insufficient grounds to prosecute, or that the basis of the test could raise questions around the there is no public interest to do so, it does not prosecute. interpretation of the legislation, which the Bill, as In this case, the regulator has the choice not to bring introduced, already seeks to address. forward a prosecution if it decides that the behaviour in question is reasonable. It is clear that the types of conduct that either, Further, as it is not just the Pensions Regulator “detrimentally affects in a material way the likelihood of”, which could bring forward a prosecution, the amendment benefits being received or, as per the amendment, “puts would give the Pensions Regulator and the Pension at risk” benefits being received, could be wide-ranging. Protection Fund the power to overrule the decision of GC 63 Pension Schemes Bill [HL][LORDS] Pension Schemes Bill [HL] GC 64

[EARL HOWE] to publish guidance pertaining to the new offences at other prosecuting authorities, such as the Director of the point of Royal Assent. The problem with that is Public Prosecutions. We believe that that would be that the provisions in Part 3, which include the new inappropriate. criminal offences, are subject to changes up to the point of Royal Assent and it would be unwise to Lord Hutton of Furness: I hear what the Minister pre-empt the will of Parliament by preparing guidance says about prosecuting authorities but can he turn his based on draft provisions. It is expected that, following remarks to the subject of why in those circumstances Royal Assent, the regulator will consult on the contents the Secretary of State should be considered a legitimate of the guidance for the new offences and expects to prosecuting authority? He has not mentioned that. I publish this guidance prior to commencement. It is understand his points about the DPP and the Pensions clearly important that the industry’s views are sought Regulator but what about the Secretary of State? on what is contained in the guidance, and the timing requirement proposed in this amendment would mean Earl Howe: I was coming to that but I will deal with the regulator would consult before the offences are it now. The Secretary of State for Work and Pensions finally settled. can institute proceedings for an offence under new Sections 58A and 58B in England and Wales only. A further reason the amendment is unnecessary— This drafting mirrors the legislation of similar offences, indeed, I would say inappropriate—is due to the inclusion such as insider dealing in the Criminal Justice Act of the phrase 1993, as well as offences in the Financial Services and “guidance … concerning the operation of law”. Markets Act 2000 and the Insolvency Act 1986, where This phrase has a very specific meaning, and implies the Treasury or the Insolvency Service could bring that the intention behind the amendment is that it will prosecutions. be for the Pensions Regulator to determine how the The inclusion of the Secretary of State here enables legislation should be interpreted. This is of course a the Government to ensure that the most serious conduct matter for the courts, which will make the decision as that harms pension schemes will remain punishable in to whether an offence has been committed in a particular the future. For example, if the ability of the regulator case. Therefore, while the regulator’s guidance will to bring about proceedings is hindered or the regulator provide assistance as to how the regulator intends to ceases to exist—or exists in a different form—this use the new criminal offences, it will not be definitive; provision could cut in. It is not envisaged that the nor could it or should it be, since something deemed to Secretary of State will institute prosecutions where the be reasonable in one case, for example, may not be Pensions Regulator or, where relevant, the Director of reasonable in another.I should mention, for completeness, Public Prosecutions has decided against it. Further, that there are a number of technical issues with all where the power to institute prosecutions is exercised, these amendments which could cause confusion. I the guidelines from the Code for Crown Prosecutors shall not go into them here, but I can explain the will apply. details to noble Lords if necessary,outside the Committee. My noble friend Lady Neville-Rolfe asked what Lord Hutton of Furness: Where will that be set out? kind of estimate we make of the number of people If the Secretary of State will not prosecute in those who might go to prison under these criminal offences. circumstances, how will that be made clear? Clearly, irresponsible treatment of pension schemes is Earl Howe: It will be made clear—in practice, if rare; however, it is important that where we have wilful anything—but the Secretary of State will reserve the or reckless behaviour,appropriate sanctions are available. power for the rarest of occasions, I imagine, in the The Pensions Regulator has successfully brought circumstances that I outlined. The normal course would 16 convictions over the past two and a half years—it is be for the traditional prosecuting authorities to act. of course for the courts to decide who gets convicted Only where the Secretary of State sees an egregious and what the penalty should be. I hope it is widely example of someone likely to get awaywithout prosecution accepted that the Pensions Regulator must meet a for reasons beyond the control of the prosecuting higher threshold before a criminal prosecution can be authorities will he or she step in. I cannot generalise commenced. As the Pensions Regulator has already about the circumstances. That power is there, as in the commented, it would use these new powers only in the other Acts that I mentioned, very much as a long-stop right circumstances. provision. The noble Lord, Lord Hutton, asked a further Amendment 35, in the name of the noble Baroness, question about the words “any person” and what Lady Sherlock, proposes a new clause requiring the other legislation uses that phrase. It is the norm for Pensions Regulator to publish guidance on how it criminal offences across the statute book to be drafted intends to use the new criminal offences. We think this as applying to “any person” and I can give him amendment is unnecessary. The Pensions Regulator examples—I would be happy to write to him. already has a general prosecution policy in place which It is clear that the majority of employers want to do sets out the matters it considers when using its prosecution right by their scheme. However, we must ensure that powers. The Pensions Regulator intends to issue further there are sufficient safeguards to protect members’ specific guidance explaining its approach to prosecuting pensions from the minority who are prepared to put the new offences under Part 3 of the Bill. them at risk. If the category of persons whose conduct I fear there is also a practical difficulty, because it is is within the scope of the offences as set out in unclear how the amendment could be implemented. Clause 107 were to be narrowed in the way that some The amendment would require the Pensions Regulator of the amendments propose, we believe that the deterrent GC 65 Pension Schemes Bill [HL][24 FEBRUARY 2020] Pension Schemes Bill [HL] GC 66 provided by the offences would be weakened, as indeed the employer and a parental guarantee not being would the safeguards built into them. In contrast, replaced, that might be done through negligence rather making the scope of the activities caught by the offences than intent and then it would not be caught because wider, as separately proposed by other amendments, the words “ought to have known” do not appear in the not only risks removing a key consideration of the new Section 58A offence, although they do in the new level of impact of the conduct but also reduces safeguards. Section 58B offence. So the Government have caught The Government have therefore sought to strike a recklessness in new Section 58B but not in new Section balance to ensure that members’ benefits are protected 58A. Maybe the words “ought to have known” or while taking into account impacts on business. something like them could be put there. I apologise again for speaking at such length, but I hope that the comments I have made will allow noble Earl Howe: It might be helpful to the noble Baroness Lords to feel comfortable in not pressing their if I clarify. New Section 58A is intended to capture the amendments. concept of wilfulness and new Section 58B the concept of recklessness. Baroness Bowles of Berkhamsted: I thank the Minister for his comprehensive reply. I had intended to probe Baroness Bowles of Berkhamsted: I see. I do not see especially around the words “wilful” and “reckless”; I why we could not have them caught in both. Anyway, had a little add-on for fun. When I first thought of we have debated this long enough. I thank the Minister putting those words in after “person”, I rapidly came for his replies,and I beg leave to withdrawthe amendment. to the conclusion myself—I think the noble Baroness, Lady Stedman-Scott, was there—that in the end they Amendment 17 withdrawn. did not make any difference. However, I am not actually sure that that is quite true with regard to the offence of Amendments 18 to 26 not moved. the avoidance of employer debt. New subsection (2)(b) states Clause 107 agreed. “the person intended the act or course of conduct to have such an effect” Clause 108 agreed. but that has to be applied to the examples that might be targeted given by the Minister. In the case of sale of Committee adjourned at 7.44 pm.