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Protection of Freedoms Bill

Report (2nd Day) (Continued)

5.33 pm

Amendment 37A

Moved by Lord Rosser

37A: After Clause 41, insert the following new Clause-

"Rewriting powers of entry to address metal theft

(1) Section 26 of the Theft Act 1968 (search for stolen goods) is amended as follows-

(2) In subsection (1), after "goods" insert "or that admission to a place specified in the information is reasonably required in order to ascertain whether provisions under section 22A(1) are complied with,".

(3) After subsection (1) insert-

"(1A) A warrant granted under subsection (1) for the purposes of ascertaining compliance under section 22A, shall authorise that person to enter that place at any time within one month from the date of the warrant."

(4) After section 22 insert-

"22A Handling of stolen metal

(1) Subject to the provisions of section 26, any constable shall have a right at all reasonable times-

(a) to enter and inspect any place for the time being a place which is occupied by a scrap metal dealer wholly or partly for the purposes of such business, or any place which he reasonably believes is occupied for such a purpose, irrespective of whether or not it is entered on the register;

(b) to require production for inspection, of any scrap metal kept at that place and any record which the dealer has in his or her possession.

(2) A magistrate may grant, on application by a senior police officer, a closure order or, where such an order has already been granted, an application to extend a closure order in relation to a place, subject to the following conditions-

(a) the senior officer reasonably believes that the trader is encouraging, supporting or facilitating the trade in stolen metal whether knowingly or not, and

6 Feb 2012 : Column 48

(b) in his or her view such closure is necessary for the prevention of theft or handling of stolen goods or for the further investigation of those offences.

(3) For the purposes of this section a person shall be deemed as carrying on business as a scrap metal dealer if-

(a) a place in that area is occupied by him or her as a scrap metal store, or

(b) no place is occupied by him or her as a scrap metal store, whether in that area or elsewhere, but he or she has his or her usual place of residence in that area, or

(c) a place in that area is occupied by him or her wholly or partly for the purposes of that business.""

Lord Rosser: My Lords, the purpose of this amendment is to provide for strengthened and new powers of entry for the police to enter and inspect known or suspected scrap metal dealer premises, and any metal and records kept on the premises, as well as powers to close down dealerships should those premises be suspected of being used for knowingly handling stolen material. At present the police are able to enter only registered premises but this amendment will give the right to enter premises irrespective of whether they are entered on the register, as well as the power to close dealerships.

Considerable concern has been expressed in the light of the increasing incidence of metal theft related to the rise in its value, with the price of copper having doubled to more than £5,000 a tonne since 2009, and the value of scrap metal at an all-time high. This has become a highly organised crime. Metal is stolen to sell on to dealers who will probably smelt it down before selling it on. The impact of such thefts on many people, buildings and organisations is considerable, not least on the railway network and railway passengers and on churches and indeed war memorials, with at least one war memorial a week being stripped in London.

The cost of metal theft is now estimated to be running at £1 billion a year and causing some 16,000 hours of train delays. In total, Network Rail says the cost of such thefts has amounted to some £43 million across the United Kingdom. It is also apparently resulting in the deaths of two thieves a month as they attempt to strip cabling from electricity substations or railways. That last point may not arouse much concern or sympathy, but it is still the loss of two human lives a month which could be avoided and is perhaps a consequence of the current spate of metal thefts that is not often raised.

It is important that action is taken as quickly as possible. At least one major recycling firm has moved to cashless payment, and on Thursday we shall be debating my noble friend Lord Faulkner of Worcester's amendment to the Legal Aid, Sentencing and Punishment of Offenders of Bill, which provides for cashless transactions to be compulsory in the scrap metal trade. This would be an important action in the drive against metal thefts and I commend my noble friend for his robust campaign on this issue.

We know that police forces are stepping up their activities against this lucrative crime but they need to be given further powers to combat it with maximum effectiveness. One such power is provided for in this amendment, namely stronger and new powers of entry for the police to premises suspected of being used for handling stolen metal and the power to obtain a

6 Feb 2012 : Column 49

closure order against a dealership where there is a belief that such criminal activity is taking place. This amendment, providing new powers to the police to enter and close down unregulated scrap metal dealerships, is in line with the recommendations of the Association of Chief Police Officers' metal theft working group.

Combined with the amendment tabled by the noble Lord, Lord Faulkner, to the Legal Aid, Sentencing and Punishment of Offenders of Bill to ban cashless transactions, this amendment presents a robust package of measures to tackle this growing epidemic. I hope the Government will indicate their support for this amendment and ensure that the police are properly equipped to deal with the increasing incidence of metal thefts. I beg to move.

Lord Faulkner of Worcester: My Lords, I have added my name to Amendment 37A, tabled by my noble friends Lady Royall and Lord Rosser, because the new powers that it confers on authorities to enter and inspect scrap metal dealerships represent, as my noble friend Lord Rosser says, an important element in the comprehensive overhaul of the Scrap Metal Dealers Act 1964, which I have been calling for in your Lordships' House since I asked my Oral Question on the subject on 3 October last year. It also fits perfectly with the move to cashless transactions, which the Home Secretary said in a Written Statement on 26 January that the Government now support. This is the subject of my own amendment to the Legal Aid, Sentencing and Punishment of Offenders Bill, which the Committee will be considering on Thursday, possibly alongside the Government's own amendments, the details of which we are awaiting.

This morning I met Deputy Chief Constable Paul Crowther of the British Transport Police to discuss this amendment. As the House will be aware, the BTP has been in the lead on the metal theft issue and I again commend it for what it is doing to tackle it. It has asked me to tell your Lordships-and I quote directly from a message it has given me-that:

"The power of closure is something that we would really want for a number of reasons, not least so that we can support legitimate businesses who will comply with the cashless system when it is introduced".

Over the last four months I have been overwhelmed by the representations that have been made to me about the necessity for government action to tackle what is now a metal theft epidemic. The Transport Select Committee in another place says that the theft of signalling cable was responsible for the delay or cancellation of over 35,000 national rail services last year. There are eight actual or attempted thefts on the railway every day. My friends in the heritage rail sector-and I declare an interest as the president of the Heritage Railway Association-report weekly thefts of metal objects from their yards, depots and sheds, the value of which runs into thousands of pounds. Almost no aspect of our national life has escaped unscathed: manhole covers; war memorial plaques; even huge pieces of art like the Barbara Hepworth sculpture in Dulwich Park or the statue of Dr Alfred Salter in Cherry Gardens, Bermondsey; lead from church roofs and sacred objects from within churches; electricity and telecom cables-the list is endless.

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Many of your Lordships will have seen the open letter published in the Times on 11 January that was signed by an impressive array of business leaders, including the chairmen or chief executives of BT, Network Rail, the Energy Networks Association and the Ecclesiastical Insurance company. They called for a complete update of the Scrap Metal Dealers Act 1964. Among the long list of changes they want to see were police powers to close unscrupulous scrap metal dealers, and police authority to search all premises owned and operated by scrap metal dealers-the measure proposed in this amendment. In my view, the police should be given powers to inspect any articles and records kept on site and to close down dealerships should there be reasonable suspicion that they are handling and dealing in stolen metal.

It is abundantly clear that the law needs to be completely rewritten. In the other place tomorrow there will be a debate initiated by officers of the All-Party Parliamentary Group on Combating Metal Theft-I declare a very modest interest as one of its vice-chairs. In addition to the move towards cashless transactions they will call for a robust licensing scheme for scrap metal dealers to replace the present registration scheme, as well as all the measures that have been put forward by industry, the church and the police.

I shall be very interested to hear what the Minister has to say when he responds. I know that we will achieve a cashless regime either on Thursday or at Report stage of the LASPO Bill, but I hope that he will be able to give a commitment that there will at least be comprehensive legislation in the next Session which will rewrite the Scrap Metal Dealers Act 1964.

Baroness Browning: My Lords, I rise very briefly to endorse what noble Lords have said about the seriousness of metal theft, and I know that my noble friend the Minister is fully aware of the importance of this issue in addressing the existing legislation, which is clearly out of date.

Last year, when I had the privilege to serve in the Home Office, I became acutely aware not only of the breadth of this crime but also, as we have heard, of its effects. Stolen cables not only disrupt but cause chaos on railway lines, and also in telecommunications. I know that the Church of England has also carried out a very important report that looks at what has happened to its churches and cathedrals that have been affected by this.

The point I want to make-I know that my noble friend is aware of it-is that although we see these matters reported in the press, and some people have first-hand experience of the outcome of this crime, it is organised crime. These are not individual actions taken at random. Serious organised crime, on a large scale, is behind the metal theft that is taking place in this country. When, for example, cables are removed, or lead is removed from roofs, all too often the people concerned are not scurrying about; they are wearing the proper safety jackets, looking like workers who should be carrying out these functions. They steal vehicles that have commercial insignia on the side to make it look as though a legitimate vehicle is being loaded with the metal. A lot of thought, a lot of money and a lot of organisation goes into this. I hope

6 Feb 2012 : Column 51

that when my noble friend replies-he and I have discussed this very serious matter-he will be able to reassure the House that the Government are looking holistically at all the elements mentioned this evening. This whole question is about the seriousness of breaking through organisations that clearly find it financially viable to continue this very destructive activity.

The Lord Bishop of Chichester: My Lords, from these Benches, I want very briefly to give my whole-hearted support to this amendment. In the year from 2010-11 thefts from churches went up by one-third, resulting in a loss to the church of £4.5 million in that one year alone. I want to speak particularly because of the importance of rewriting the right of entry. Without that being done, the means of enforcing the otherwise noble aspirations about cash-free and limitless tariff cannot be enforced. That is why the right of entry is extremely important.

5.45 pm

Baroness Butler-Sloss: My Lords, following on from what the noble Baroness, Lady Browning, said about this being organised crime, it is urgent that the legislation is in place for the police to be able to go out there and act effectively. As I understand it, they do not have effective means at this stage. Whatever may be done holistically at some future date, now is when we need to have something for the police to deal with this business.

The Minister of State Home Office (Lord Henley): My Lords, I am most grateful to all noble Lords who have spoken. I will start by referring to the remarks from my noble friend Lady Browning. It is no secret that, only two days before she left the Home Office, I went to visit her, along with other Ministers, to discuss the whole question of metal theft, because she had identified this as a problem and wanted to get action throughout the whole of government. I suggested then, as a Minister in Defra, that I might be able to help by offering some assistance through the work of the Environment Agency. Two days later I found myself in the Home Office and was very nearly in the position of writing a letter from myself to myself. In the end, the letter came from my successor the noble Lord, Lord Taylor.

I am very grateful to the noble Lord, Lord Rosser, for setting out what exactly is the problem. I think that we all understand what it is. I am grateful to him for starting off by emphasising that this is driven by second-hand metal prices. If he cares to look at the way that metal prices have gone over the last few years-sometimes up, sometimes down-he will find that the crime rate for metal theft has more or less exactly followed that line, and that it is on a distinctly upward curve. For that reason I was interested in his new figure for the possible cost of this whole problem to the country, which he put at about £1 billion. I have seen other figures which count the cost to the country and to business, one of about £220 million, another of around £700 million, and I would be interested to know where his figures have come from.

The important point to remember is that very often the actual value of what is stolen is relatively small; the issue is the knock-on effect of that particular crime.

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For example, when the lead is taken off a church roof, the lead has a value, and a value that is going up, but the real damage then comes from water leaking in and damaging the church. If you remove the wiring that deals with signalling from the railway line, you will have hundreds of hours of delays and major disruption caused to a large number of people-and as someone who spends an awful lot of time on the west coast main line I understand that as well.

We have examples of hospitals which have had to cancel operations as a result of power cuts caused by metal theft. I could give examples relating to the police and others, who have had their communications disrupted as a result of metal theft. Then on top of that we have the further elements of heritage crime. Not only war memorials are being taken; the example that the noble Lord, Lord Faulkner, gave of the Barbara Hepworth statue being stolen and melted down is an example of something that went in the opposite direction. Here was something that was of very great value, should one have been able to put it on the market at Christie's or Sotheby's, but which when it went into the scrap metal yard suddenly became worth relatively very little indeed, and in fact would very quickly be ground up into bronze granules to be smelted.

The important point to remember about that particular theft is that it indicates just where the problem is. It is obvious that the first person to handle the statue-the first scrap yard owner who took it in-must have known that it was, as they say, hot. You do not often get Barbara Hepworth or Barbara Hepworth-like statues legitimately coming into scrap metal yards. Someone knew that it was stolen property and that they would be able to convert it into cash, while removing most of its value. On a number of occasions I have made the point that we believe that the Scrap Metal Dealers Act 1964 is-how should I put it?-beyond its sell-by date. We wish to see a reform to that Act as soon as is possible, and we will make sure that we do it.

I am grateful to the noble Lord for tabling this amendment and allowing us to have a debate on the damage that this practice is doing to our infrastructure. I am also grateful to him for highlighting the fact that there have been a number of deaths as a result of this. Although the noble Lord says that it was the perpetrator being killed, we should have some sympathy. For example, a 16 year-old was recently killed taking copper cabling from a power substation. He only did so because it was easy for him to take that copper wire and convert it into cash; and, in the process, someone who did not understand these things killed himself. Moreover, not only are some of the perpetrators being killed; it is likely that, fairly soon, innocent individuals could be killed as they try to sort out the mess caused by these problems.

The House will be aware-the noble Lord, Lord Rosser, referred to it-of my right honourable friend the Home Secretary's Statement on 26 January, when she announced that we will be bringing forward amendments to the LASPO Bill to strengthen the law in this area. I can assure the noble Lord, Lord Faulkner, that we hope to do this on Report rather than tomorrow or on Thursday, which are the other days when we will debate these matters. This is specifically to deal with

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the problem of cash. As I say, the real problem is the ease with which people can convert stolen metal into cash, with no questions being asked and no traceability whatever.

In that Statement my right honourable friend indicated that the amendments would create a new criminal offence to prohibit cash payments to purchase scrap metal and to significantly increase the fines for all offences under the Scrap Metal Dealers Act 1964, which regulates the scrap recycling industry. In effect, once the amendments to the LASPO Bill have been agreed and the Bill has been passed, rather than having a maximum fine of £1,000 for offences under the Scrap Metal Dealers Act, the fine will be unlimited. We will go from an average fine of the order of £350 to a more realistic figure which might encourage some scrap metal dealers to act in a responsible manner.

Lord Campbell-Savours: I understand that there has been some consultation on the proposal for a cashless arrangement. What has been the extent of that consultation? Have the many thousands of small scrap yard operations been consulted? I am not opposing what the Government are doing. I just want to know what the basis is and to what extent it can be justified as a result of any consultation-in other words, that this is not another panic response.

Lord Henley: My Lords, this is not a panic response. It has been discussed in this House and in another place on a number of occasions and we are all keen to move forward.

I have had discussions with the British Metals Recycling Association, a body which represents scrap metal dealers of all sizes, great and small. It-dare I say it?-not surprisingly, is not keen on the idea of going cashless. That might indicate something about the effect of this measure. We shall obviously have to have further consultations with the BMRA and others in the industry before we bring these measures into effect after they have been introduced into the LASPO Bill.

I was formerly a recycling Minister in Defra. We have a very successful industry and I want to see high levels of recycling of metal continue. However, I want to make sure that the metal that is being recycled is legitimate and has not been stolen in one way or another. We do not want to kill off a successful industry but to properly regulate the criminal elements within it. We will certainly have further consultations with the BMRA and others before we bring the measures into effect after the Bill has received Royal Assent.

Lord Campbell-Savours: Are we absolutely sure that we are not driving this business into the hands of the cowboys?

Lord Henley: My Lords, I could refer the noble Lord to discussions that I have had with other people in the industry, who have pointed out that the high levels of cash in the industry are driving criminality. If we can remove a lot of that cash then we can possibly remove a great deal of the criminality. I am not saying that it will be a magic wand that will solve all the problems-just as revising the Scrap Metal Dealers Act 1964 will not solve all problems, as his noble

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friend Lord Faulkner knows well. However, they are steps on the road to better regulating this industry, which is needed.

We are looking for a coherent package of measures to tackle metal theft. Obviously there will have to be further measures and regulation in due course, possibly along the lines of the amendment of the noble Lord, Lord Rosser. I do not want to rush into that at this stage. There is an opportunity to go cashless and to increase what are, at the moment, the derisory fines available under the 1964 Act, and we obviously need to do more to that Act in the future.

I congratulate the noble Lord, Lord Rosser, on his ingenuity in finding a way of bringing forward amendments to this Bill on this subject. His noble friend Lord Faulkner tried to do so but failed. We also gave it some thought, but the drafting of the Bill is such that it is rather difficult.

Lord Faulkner of Worcester: The noble Lord is half right: I attempted to get cashless into this Bill and was told that I could not. I will help to get cashless into LASPO instead.

Lord Henley: My Lords, we have cashless in the LASPO Bill and I hope that it will deal with this problem.

We have to consider the other important points that need to be dealt with. One of those-and, again, this is why I am interested in how the Opposition voted on the previous amendment-is whether the powers of entry are adequate and what powers of entry need to be given to the police. We can look at these matters, first, in the LASPO Bill and consider further regulation in due course.

I welcome the support of the Front Bench opposite for further action in this area. Obviously, there is more that we can do. I do not think that this is the right way of going forward at this stage because, as I said, we want to bring forward amendments in the LASPO Bill on Report. I can give an assurance that as soon as possible thereafter, by whatever legislative means is appropriate, we will bring forward the further amendments that need to be made, particularly to the Scrap Metal Dealers Act 1964. With those assurances, I hope the noble Lord will feel able to withdraw his amendment.

Lord Rosser: The Minister asked me where my figure on the cost of metal theft, at £1 billion a year, came from. I would not say that the figure necessarily came from the most authoritative of sources, but it appeared in a fairly prominent newspaper article last December.

Lord Henley: Is the noble Lord prepared to mention which newspaper he relies on?

Lord Rosser: I am trying to remember which one it was. As the Minister has asked me which one it was, I intend to tell him. I may be wrong, but my recollection is that it was the London Evening Standard.

It is clear that the current level of metal thefts has caused a considerable increase in the cost of security arrangements. It is already costing businesses, organisations and local authorities money and we

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need action. This amendment, along with the amendment from my noble friend Lord Faulkner of Worcester which is to be considered on Thursday, provides for action now-action which we badly need against this serious, organised and growing crime. As my amendment goes further than the Government appear to be contemplating in respect of police powers of entry and closure of dealerships-powers that are needed now-I wish to test the opinion of the House.

5.59 pm

Division on Amendment 37A

Contents 195; Not-Contents 201.

Amendment 37A disagreed.

Division No. 2


Adonis, L.
Ahmed, L.
Anderson of Swansea, L.
Andrews, B.
Armstrong of Hill Top, B.
Armstrong of Ilminster, L.
Bach, L.
Bakewell, B.
Barnett, L.
Bassam of Brighton, L. [Teller]
Beecham, L.
Berkeley, L.
Bichard, L.
Bilimoria, L.
Billingham, B.
Bilston, L.
Blood, B.
Boateng, L.
Borrie, L.
Boyd of Duncansby, L.
Bradley, L.
Brooke of Alverthorpe, L.
Brookman, L.
Browne of Belmont, L.
Browne of Ladyton, L.
Butler-Sloss, B.
Cameron of Dillington, L.
Campbell-Savours, L.
Carter of Coles, L.
Chichester, Bp.
Clancarty, E.
Clarke of Hampstead, L.
Clinton-Davis, L.
Collins of Highbury, L.
Cunningham of Felling, L.
Curry of Kirkharle, L.
Davies of Oldham, L.
Davies of Stamford, L.
Desai, L.
Dixon, L.
Donaghy, B.
Dubs, L.
Eames, L.
Elder, L.
Elystan-Morgan, L.
Erroll, E.
Evans of Temple Guiting, L.
Falkland, V.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Finlay of Llandaff, B.
Ford, B.
Foulkes of Cumnock, L.
Gale, B.
Gavron, L.
Gibson of Market Rasen, B.
Golding, B.
Goudie, B.
Gould of Potternewton, B.
Greenway, L.
Grenfell, L.
Grocott, L.
Hameed, L.
Hannay of Chiswick, L.
Hanworth, V.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haworth, L.
Hayman, B.
Hayter of Kentish Town, B.
Healy of Primrose Hill, B.
Hennessy of Nympsfield, L.
Hilton of Eggardon, B.
Hollick, L.
Hollis of Heigham, B.
Howarth of Breckland, B.
Howarth of Newport, L.
Howells of St Davids, B.
Hoyle, L.
Hughes of Stretford, B.
Hughes of Woodside, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Hylton, L.
Irvine of Lairg, L.
Jay of Paddington, B.
Joffe, L.
Jones, L.
Jones of Whitchurch, B.
Jordan, L.
Judd, L.
Kennedy of Southwark, L.
Kestenbaum, L.
King of West Bromwich, L.
Kingsmill, B.
Kinnock, L.
Kinnock of Holyhead, B.
Knight of Weymouth, L.
Layard, L.

6 Feb 2012 : Column 56

Lea of Crondall, L.
Leicester, Bp.
Leitch, L.
Liddell of Coatdyke, B.
Liddle, L.
Lipsey, L.
McAvoy, L.
McDonagh, B.
McFall of Alcluith, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Mallalieu, B.
Mar, C.
Martin of Springburn, L.
Masham of Ilton, B.
Massey of Darwen, B.
Maxton, L.
Meacher, B.
Monks, L.
Morgan, L.
Morgan of Ely, B.
Morris of Handsworth, L.
Morris of Manchester, L.
Morris of Yardley, B.
Neill of Bladen, L.
Nye, B.
O'Loan, B.
O'Neill of Bengarve, B.
O'Neill of Clackmannan, L.
Pannick, L.
Patel, L.
Patel of Blackburn, L.
Pitkeathley, B.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prashar, B.
Prescott, L.
Prosser, B.
Quin, B.
Radice, L.
Ramsay of Cartvale, B.
Ramsbotham, L.
Rea, L.
Redesdale, L.
Reid of Cardowan, L.
Rendell of Babergh, B.
Richard, L.
Rooker, L.
Rosser, L.
Rowe-Beddoe, L.
Rowlands, L.
Royall of Blaisdon, B.
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Sheldon, L.
Sherlock, B.
Simon, V.
Singh of Wimbledon, L.
Smith of Basildon, B.
Smith of Finsbury, L.
Smith of Gilmorehill, B.
Snape, L.
Soley, L.
Stevenson of Balmacara, L.
Stoddart of Swindon, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Temple-Morris, L.
Thornton, B.
Tomlinson, L.
Touhig, L.
Triesman, L.
Tunnicliffe, L. [Teller]
Turnberg, L.
Turner of Camden, B.
Wall of New Barnet, B.
Walpole, L.
Walton of Detchant, L.
Warner, L.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
West of Spithead, L.
Wheeler, B.
Whitaker, B.
Whitty, L.
Wilkins, B.
Williams of Elvel, L.
Wills, L.
Wood of Anfield, L.
Woolmer of Leeds, L.
Worthington, B.
Young of Old Scone, B.


Aberdare, L.
Addington, L.
Ahmad of Wimbledon, L.
Alderdice, L.
Anelay of St Johns, B. [Teller]
Ashdown of Norton-sub-Hamdon, L.
Ashton of Hyde, L.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Baker of Dorking, L.
Ballyedmond, L.
Barker, B.
Benjamin, B.
Berridge, B.
Best, L.
Black of Brentwood, L.
Blackwell, L.
Blencathra, L.
Bonham-Carter of Yarnbury, B.
Boswell of Aynho, L.
Bottomley of Nettlestone, B.
Bowness, L.
Bradshaw, L.
Bridgeman, V.
Brinton, B.
Brooke of Sutton Mandeville, L.
Brookeborough, V.
Brougham and Vaux, L.
Browning, B.
Burnett, L.
Buscombe, B.
Byford, B.
Caithness, E.
Cathcart, E.
Chidgey, L.
Clement-Jones, L.
Colwyn, L.
Cope of Berkeley, L.
Cotter, L.
Courtown, E.
Crickhowell, L.
Dannatt, L.
De Mauley, L.
Deben, L.
Dholakia, L.
Dixon-Smith, L.
Dobbs, L.
Doocey, B.

6 Feb 2012 : Column 57

Dundee, E.
Eaton, B.
Eccles, V.
Eccles of Moulton, B.
Eden of Winton, L.
Elton, L.
Falkner of Margravine, B.
Faulks, L.
Fearn, L.
Flight, L.
Fookes, B.
Forsyth of Drumlean, L.
Fowler, L.
Framlingham, L.
Freud, L.
Gardiner of Kimble, L.
Gardner of Parkes, B.
Geddes, L.
German, L.
Glasgow, E.
Goodhart, L.
Goodlad, L.
Goschen, V.
Grade of Yarmouth, L.
Green of Hurstpierpoint, L.
Griffiths of Fforestfach, L.
Hamilton of Epsom, L.
Hamwee, B.
Hanham, B.
Harris of Richmond, B.
Henley, L.
Heyhoe Flint, B.
Hill of Oareford, L.
Hodgson of Astley Abbotts, L.
Home, E.
Hooper, B.
Howe, E.
Howe of Aberavon, L.
Howell of Guildford, L.
Hunt of Wirral, L.
Hussain, L.
Hussein-Ece, B.
Inglewood, L.
James of Blackheath, L.
Jenkin of Kennington, B.
Jenkin of Roding, L.
Jolly, B.
Jones of Cheltenham, L.
Kilclooney, L.
Kirkwood of Kirkhope, L.
Kramer, B.
Lamont of Lerwick, L.
Lang of Monkton, L.
Lawson of Blaby, L.
Lee of Trafford, L.
Lindsay, E.
Lingfield, L.
Linklater of Butterstone, B.
Liverpool, E.
Loomba, L.
Lothian, M.
Luce, L.
Luke, L.
McColl of Dulwich, L.
Macfarlane of Bearsden, L.
MacGregor of Pulham Market, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Maples, L.
Marland, L.
Marlesford, L.
Mawson, L.
Mayhew of Twysden, L.
Miller of Chilthorne Domer, B.
Morris of Bolton, B.
Naseby, L.
Neville-Jones, B.
Newby, L.
Newton of Braintree, L.
Nicholson of Winterbourne, B.
Noakes, B.
Northover, B.
Oppenheim-Barnes, B.
Palmer, L.
Palmer of Childs Hill, L.
Palumbo, L.
Parminter, B.
Perry of Southwark, B.
Plumb, L.
Randerson, B.
Rawlings, B.
Razzall, L.
Rennard, L.
Ribeiro, L.
Risby, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Rogan, L.
Sassoon, L.
Scott of Needham Market, B.
Seccombe, B.
Selkirk of Douglas, L.
Selsdon, L.
Sharkey, L.
Sharp of Guildford, B.
Sharples, B.
Shaw of Northstead, L.
Shephard of Northwold, B.
Shipley, L.
Shrewsbury, E.
Shutt of Greetland, L. [Teller]
Skelmersdale, L.
Smith of Clifton, L.
Stedman-Scott, B.
Stewartby, L.
Stoneham of Droxford, L.
Stowell of Beeston, B.
Strathclyde, L.
Sutherland of Houndwood, L.
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Taylor of Holbeach, L.
Teverson, L.
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Thomas of Walliswood, B.
Thomas of Winchester, B.
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Trumpington, B.
Tugendhat, L.
Tyler, L.
Tyler of Enfield, B.
Ullswater, V.
Verma, B.
Vinson, L.
Wakeham, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.
Warsi, B.
Wasserman, L.
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Wheatcroft, B.
Wilcox, B.
Williams of Crosby, B.
Willis of Knaresborough, L.
Young of Hornsey, B.
Younger of Leckie, V.

6 Feb 2012 : Column 58

6.10 pm

Clause 44 : Procedural and supplementary provisions

Amendments 38 and 39

Moved by Lord Henley

38: Clause 44, page 35, line 24, after "41" insert "which neither amends nor repeals any provision of primary legislation"

39: Clause 44, page 35, line 25, leave out from "Wales" to end of line 27 and insert-

"(8) In subsection (7) "primary legislation" means-

(a) a public general Act, and

(b) a Measure or Act of the National Assembly for Wales."

Amendments 38 and 39 agreed.

Clause 49 : Alteration or replacement of code

Amendment 40

Moved by Lord Henley

40: Clause 49, page 38, line 31, after second "the" insert "alteration or"

Amendment 40 agreed.

Schedule 3 : Corresponding code of practice for Welsh devolved powers of entry

Amendment 41

Moved by Lord Henley

41: Schedule 3, page 127, line 22, after second "the" insert "alteration or"

Amendment 41 agreed.

Clause 54 : Offence of immobilising etc. vehicles

Amendment 42

Moved by Baroness Hayter of Kentish Town

42: Clause 54, page 40, line 24, at end insert-

"if there is no charge for unauthorised parking or if the following conditions are met-

(a) one or more notices which were clearly displayed when the vehicle was parked and-

(i) specify the sum of the charge for unauthorised parking; and

(ii) are adequate to bring the charge and parking requirements to the notice of drivers who park vehicles on the relevant land;

(b) the consent of the driver of the vehicle to the restriction was indicated by the positive acceptance of appropriate documentation before parking on the relevant land; and

(c) the owner or occupier of the land or those authorised to act on their behalf are unable to take steps to enforce the payment of parking charges against the driver because they do not know, and the driver has refused to provide, both their name and a current address for service for the driver."

Baroness Hayter of Kentish Town: My Lords, in moving Amendment 42 I shall speak also to Amendments 43, 44, 45, 47 and 48. I confess that Amendment 43 is the handiwork of the noble Earl, Lord Lytton, although it appears in my name as I beat him to the Public Bill Office. He anticipated that we would reach these

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amendments last week and he cannot be here today, but he has asked me to signify his support and, indeed, has furnished me with what would have been his speaking notes, which I have incorporated into what I am going to say.

The Bill aimed to tackle rogue clampers but instead it outlaws all clamping on private land and opens the door to rogue ticketers. Our amendments seek to mitigate this risk, concentrating on the people who misuse ticketing or clamping rather than the tickets or barriers themselves. There are four issues that I wish to raise: first, car parks, where people pay to park; secondly, residents' own parking areas and similar private parking spaces not let for hire or use by anyone but their rightful owners, visitors or similar invited drivers; thirdly, public spaces, which again are spaces that do not make a charge, but are open to the public for particular purposes; and fourthly, bays for disabled drivers.

First, however, I should make it clear that I deplore unauthorised or unreasonable clamping, be this of extortionate charging or unfair usage, and that also goes for unauthorised or unreasonable ticketing, but that is what we are already seeing in a number of places. As many have warned about this Bill, without the amendments I am proposing, rogue clampers will simply become rogue ticketers, as we have already seen in Scotland. So while those who run car parks will now be allowed to ticket rather than clamp, it is essential that, first, the driver is still protected from rogues by ensuring that there are adequate signs and warnings of the likely charge for any overstay or use of the parking area, and on the rights of appeal.

Secondly, there should be in place an ombudsman scheme-independent dispute resolution-for anyone who is issued with a ticket they wish to dispute. Amendments 44 and 45 provide for this to be set up and paid for by the industry. It would exist for all motorists challenging a ticket for parking on private land. It is not sufficient for a voluntary scheme to be set up. If a particular car parking firm breaks its code of conduct or fails to implement a ruling, it can simply leave the scheme and carry on without a redress facility. It would then be "good firms in", "rogues out" of the complaints scheme, leaving the driver unprotected from the cowboys. The scheme must have legislative backing so that drivers would not be liable to pay a charge to a ticket issuer who was not signed up to the scheme. The development of a code of conduct to cover reasonable charges and adequate signage and warnings would raise standards in the industry and enable drivers to know their rights as well as the expectations on them.

These amendments build on the tried and tested model devised for estate agents, one that is independent of but paid for by the industry, and without the requirement for the Government themselves to set up any such scheme. Indeed, I envisage that existing ADR schemes would bid to run it, so that it could be up and running without inordinate delay. This model is fully supported by Citizens Advice, which has long campaigned against rogue clampers. Indeed, it is to the careful drafting by Citizens Advice that these amendments owe their clarity.

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6.15 pm

I turn now to the second and third categories: residents' own parking areas and similar private parking spaces not let for hire or use by anyone else except their rightful owners, visitors and similar invited drivers. Essentially, this relates to blocks of flats and sheltered housing schemes. This is private land for which no charges are made and no money is levied, but simply where wheel clamping has been used very successfully to deter rogue parkers. This deterrent will now become illegal even on one's own private land. Similarly, there are private spaces open to the public which do not charge visitors for particular purposes for parking in them. I have in mind GP surgeries, day centres, churches, cinemas and offices, especially those close to a tube or train station, or convenient for the shops. Or like the one I saw yesterday near Hampstead Heath, a bowling green and allotment area with parking for club members and gardeners only. But, needless to say, it is very tempting for people walking their dogs on the heath and feeling no shame in parking on someone else's land. Clear signs with warnings of clamping can successfully deter such drivers, but I would bet that car park owners do not know that they will shortly be criminals should they use a clamp.

The House may well feel that the proposed new criminal offence is fundamentally unjust as it offers protection to rogue parkers that is not available to the victims of rogue parking, and it will draw the police into awkward situations. The Government's suggestion that the landowner could arrange to move the unwanted vehicle is completely inappropriate. Even if an elderly person in sheltered accommodation could do so, or get someone physically to move the car, they cannot simply dump it on the main road where there is obviously no easy parking or it might cause an obstruction or be on double yellow lines. Further, the elderly person might well be charged with the offence of taking and driving away as they would undoubtedly be taking the car without the driver's consent.

The noble Earl, Lord Lytton, has devised an ingenious scheme which is set out in Amendment 43. It would allow local groups such as churches, day centres, the residents of a block of flats, sports clubs and village halls to be designated by their local authority so as to meet the Bill's exemption from the clamping ban. Without this, we are going to see an enormous number of very angry residents, GPs and health visitors, as well as wedding guests or those attending funerals who will be inconvenienced by rogue parkers who decide that their need to pop into a shop overrides the right of landowners to use their own property for their desired purposes.

I come finally to the fourth group: bays for disabled drivers. Alas, I have failed to find an amendment that will help, despite the urging of the Blue Badge charity which represents disabled drivers and which, in answer to the noble Earl, Lord Attlee, has said that it would far prefer the car of one of its members to be clamped when a blue badge is not showing than for all its other drivers to be inconvenienced with the ending of clamping, because clamping has played a key role in protecting the bays from encroachment by able-bodied drivers. As even the noble Earl acknowledged, clamping is the great deterrent. Without it, rogue parkers will take

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places never meant for them. I hope the Minister can provide some assurance on how the Government propose to make good the protection of disabled bays on private land, given that the outlawing of clamping will no doubt remove the best disincentive to any driver to encroach on these protected spaces.

We do not want rogue clampers but nor do we want rogue parkers leaving their cars on private property where they have no right to be and interfering with other people's freedom and use of their own land. These amendments seek to restrict rogue ticketers, protect consumers, set up an ombudsman scheme and safeguard the rights of small, private landowners who never wanted to run a car park but just want to be able to park by their own home. I beg to move.

Lord Rosser: My Lords, my noble friend Lady Hayter of Kentish Town has set out the arguments in favour of these amendments. I certainly do not intend to repeat them all. The first amendment aims to close a loophole created by the government amendments tabled in Committee in another place. It ensures that rogue operators will not be able to extort money from drivers by way of barriers rather than clamping.

My noble friend also referred to the amendment that allows for limited licensing of parking enforcement schemes by the Secretary of State to recognise residents and community groups who suffer a serious problem with unlawful and obstructive parking. She explained the reasons why this amendment is necessary and we certainly support it. It retains the clamping ban but allows local resident and community groups to apply for the provision of a parking enforcement scheme to address specific problems with unlawful parking in their area.

Then there are amendments that deal with the introduction of an independent dispute resolution scheme, funded by the industry and available to all motorists-it is important that it is available to all motorists. Cases where mistakes are made or consumers feel that they have been unfairly treated, such as being pursued for excessive charges, can be decided fairly, quickly and cheaply. Rogue ticketing is already a serious problem. It is only likely to get worse once rogue clampers are put out of business. Citizens advice bureaux are dealing with increased numbers of parking inquiries, queries and complaints. Last year, compared with the previous year, they saw an increase in people visiting their website seeking information and advice about parking issues.

The amendment establishes an independent ombudsman system that avoids costs and clogging up of the courts by challenges to parking fines brought by consumers. The issue is that it is not the members of the BPA who are most likely to operate outside the bounds of good practice. In order to protect consumers from unfair and disproportionate charges, all parking operators must be required to meet minimum standards for clear signage and proportionate charges. There must be an independent complaints process for consumers.

That is one of the purposes of these amendments. They give those parking their cars a better deal. They also give a better deal to those in certain locations who have parking on their own particular private property and will apparently be unable to seek effective redress.

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I hope that the Government will give sympathetic consideration to these amendments and indicate that, even if they are not prepared to accept them, they will take the matter away and come back to it on Third Reading with amendments of their own covering the same issue.

Baroness Randerson: My Lords, I do not share all the noble Baroness's concerns but still remain concerned about some aspects of the situation. I thank the Minister for the time he gave us in discussing these problems in a meeting. The Government are showing that they are aware of the issues. Some of their proposals-that places suffering from this kind of inappropriate parking can employ a parking company-would be suitable in large situations where the parking was widespread, regular and frequent. However, often these problems take place in, for example, the car parks of churches or community centres, or in residential car parks associated with blocks of flats. The problem is not on a large enough scale for an organisation which exists for a totally separate purpose from parking. It does not suit that kind of organisation to engage a parking company to sort out its problems. The Government have to look at a different resolution to the problem. There are still some questions to be answered.

In my speech in Committee, I asked the Minister what the situation was in Scotland, where there is no clamping. I am strongly in favour of the purpose behind this Bill in that respect: clamping should not be allowed to continue. Scotland has not had clamping for many years. Are there problems there associated with rogue ticketing? There do not appear to be massive problems with that but there appears to be an increase in the number of complaints about ticketing brought to consumer organisations in recent years. The Government need to address the issue of how they will deal with any problems which may emerge as a result of this change in legislation which will undoubtedly go ahead.

What are the Government proposing to do in relation to the forthcoming EU directive on ADR-the alternative dispute resolution procedure? I gather that that will be required in the near future for all traders providing goods and services. That would include parking companies. We need reassurance about the independent appeals process. There is still this gap in the situation where we can expect supermarkets and so on to find a satisfactory alternative to clamping. It is not reasonable to expect a small community-based organisation to employ a parking company and issue tickets. That is not their purpose. It adds bureaucracy and concerns for them.

Lord Wills: My Lords, I support my noble friend Lady Hayter on this matter. I should declare an interest as someone who suffers fairly regularly from the kind of selfish behaviour that she so compellingly outlined. She set out the arguments so well that I do not intend to rehearse them again. I only ask the Minister to reflect on the sentiment of the House that, in dealing with the very real problems of clamping by private operators that it is widely accepted need to be dealt with, the Government do not create another set of problems. The risks that my noble friend outlined are

6 Feb 2012 : Column 63

real. I hope that the Minister in his reply can give the House some reassurance that the Government are going to tackle them.

Lord Lucas: My Lords, I am thoroughly in favour of Amendment 42, or at least the intention behind it. It is quite clear that the Bill as it stands will allow a continuation of current abuses in different forms. All you need is a couple of posts with a chain coiled next to one of them and you have a barrier that you can put whenever you want. Anyone caught within it might have to pay a large fine to be released. We will have the same people indulging in very much the same practices as at the moment but they will use a barrier rather than a clamp. Clearly this section is designed to exempt local authority car parks and others with a raised barrier and a ticket on entry. I entirely agree with that. However, it must be reworded, and Amendment 42 seems a pretty good way of doing it. It would be desirable to improve the arrangements in the Bill for appealing against unjustified tickets. I have no objection to the way in which the noble Baroness has set about doing it although I suspect she has taken on a hopeless cause when it comes to allowing more people to clamp. The Daily Mail will use that one, I suspect.

6.30 pm

Earl Attlee: My Lords, we have already debated these issues at some length in Committee and I am grateful to noble Lords for taking time to meet with me and my officials since then to discuss these matters further. As the noble Baroness, Lady Hayter, has so expertly and temptingly set out, Amendment 42 seeks to allow the use of fixed barriers in certain circumstances and to specify certain conditions that must be met.

We consider the amendment to be unnecessary as Clause 54(3) already requires that there is express or implied consent by the driver of the vehicle to restricting its movement by parking where there is a fixed barrier. In practice this means that the existence of the barrier must have been apparent to the driver, either visibly or through clear signage, when they parked. Secondly, in order to establish a contract as a basis for payment, the terms for parking would have to be clearly displayed. Therefore, if the landholder demanded a fee for release of the vehicle without such a basis, he would be committing an offence under Clause 54(1). In answer to my noble friend Lord Lucas, I am convinced that we have drafted these provisions correctly.

Amendment 43 seeks to create a new power for the Secretary of State to grant lawful authority to clamp and tow vehicles to those who request it, with the expectation that applications would not be refused if made by local authorities, residents' associations and community groups. Again, we consider the amendment to be unnecessary because there are existing powers for local authorities to take a controlling interest in the management of parking on private land with the agreement with the landholder.

Section 33(4)(b) of the Road Traffic Regulation Act 1984 states:

"A local authority may, on such terms as they think fit ... arrange with any person for him to provide such a parking place on any land of which he is the owner or in which he has an interest".

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The phrase,

"provide such a parking place"

refers to a Section 32 parking place, which is the general power for local authorities to provide off-street parking places. As a result, the local authority could make provisions as to the conditions for the use of the parking places and manage and enforce those conditions under the Traffic Management Act 2004. This would enable local authorities to use their lawful authority to clamp or tow those vehicles that have contravened the terms and conditions for parking on that land.

The amendment would also introduce regulation of wheel clampers overseen by the Secretary of State who will also presumably be responsible for enforcement, rather than the Security Industry Authority or another body. The requirements set out in Amendment 43 could lead to a patchwork system of regulation in that each application made would have to set out how they meet the requirements, including in respect of an appeals process. However, the amendment does not provide for national standards which any local scheme must adhere to, so the amendment could lead to a system where wheel clamping schemes are different throughout the country. I am sure that is not the noble Baroness's intention.

We have seen that following seven years of licensing by the Security Industry Authority, rogue wheel clampers continue to carry out their unscrupulous practices and we do not consider that further regulation of the industry will deter them, no matter how much the noble Baroness, Lady Hayter, deplores their activity. An outright ban on wheel clamping without lawful authority is the only way to deal with rogue wheel clampers. Wheel clamping and the towing away of vehicles by private individuals or businesses without lawful authority in order to force payment of a charge are unacceptable and should be prohibited. As well as causing motorists significant distress and anxiety, the clampers in effect hold the vehicle to ransom-or at least threaten to do so as a deterrent. No one can justify or defend the exorbitant release fees and intimidatory tactics employed.

Throughout our debates, many noble Lords have strongly made the point that clamping is a particularly effective deterrent to inconsiderate and unauthorised parking on private land. It may be, but is it also disproportionate. Supposing I was attempting to deter motorists from speeding: if I proposed that the police have the power to clamp an errant motorist's car for a couple of hours without recourse to an independent tribunal, I expect your Lordships would have something to say.

There can be situations where, in the circumstances, the motorist who is clamped has acted reasonably. What about a midwife who is seeing a patient in a large block of flats and reasonably believes that permission to park has been granted? How can it be right to clamp his or her vehicle in such circumstances? One only has to ask what the knock-on effect could be. What about police operations? I spoke to a pal of mine who undertakes covert police duties, dealing with very serious matters. He said in an e-mail:

"I can speak from first-hand experience on this. On several occasions this happened to me whilst on duty on covert operations. On every occasion I had to park my police vehicle quickly and

6 Feb 2012 : Column 65

deploy on foot from the vehicle. The vehicle was always left in open parking spaces on private land and subsequently clamped. Whilst I cannot quote the figures, I know this happens on many occasions in similar circumstances".

The fact is that a clamping company operative, no matter how well meaning, cannot possibly know whether what he is doing is reasonable. Therefore private clamping on private land is fundamentally flawed.

Turning to Amendments 44, 45--

Lord Lucas: My Lords, why would it be any different for the policeman if a barrier had been placed across his car? He still would not have been able to use it. Why is that acceptable and a clamp not?

Earl Attlee: The noble Lord makes a very good point. The policeman would have to take that risk. However, he would be aware that he was taking the operational risk that his vehicle might be clamped.

I turn to the other amendments. As the noble Baroness, Lady Hayter, has explained, these amendments seek to provide an alternative dispute resolution mechanism. The Government would be required to prescribe and enforce the system, which would need to be funded by the industry. It is a bit odd that in this group of amendments the noble Baroness proposes retaining clamping without any effective means of appeal while in other amendments she is insisting on a system of appeal.

As indicated in previous debates, the Government are committed to providing an independent appeals service, which will cover all tickets issued on private land by members of an accredited trade association. In practice, this body will cover all ticketing by members of the British Parking Association's approved operator scheme, who are the major private parking providers in the sector with accredited access to the DVLA keeper data, and will therefore be able to pursue vehicle keepers for unpaid parking charges after the measures in Schedule 4 come into force. However, we have made absolutely clear that we will not commence the keeper liability provisions in Schedule 4 until this independent appeals body is in place.

The amendments tabled in the name of the noble Baroness, Lady Hayter, propose much broader regulation covering all parking on private land which, we believe, would impose a not inconsiderable burden on smaller landowners, including those who wish to manage perhaps only a handful of parking spaces, or even one.

I fear that I am not in full agreement with the noble Baroness, Lady Hayter, regarding Scotland, where wheel-clamping has been banned since 1992. We have seen no convincing evidence that levels of rogue ticketing are a particular problem. However, we are not being complacent; we have given these amendments very careful consideration and, in this respect, I am particularly grateful to noble Lords who have taken the time to meet me to discuss the Government's proposals. I have also had very helpful and informative meetings with the British Parking Association, Citizens Advice and Consumer Focus.

Some noble Lords raised the issue of Citizens Advice Scotland dealing with more than 1,500 parking inquiries, which represents a big increase on previous years. The figures need to be reviewed in the context

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of the number of parking tickets issued each year; I do not have the figures for Scotland to hand but, in England and Wales, local authorities issued over 4.2 million penalty charge notices for on-road contraventions alone in 2009-10.

Following discussions, we have agreed that part of our commitment to monitoring the impact of the provisions will be to continue to liaise closely with consumer protection groups to ensure that if rogue ticketing activity does occur such groups can feed back to us. If it becomes a significant problem, we will consider further measures, including wider regulation, if it proves necessary in the light of experience. I hope that that meets the needs of the noble Lord, Lord Wills.

As I have said, we have already established a new system for parking management companies-

Lord Wills: I am very grateful to the Minister, who is genuinely trying to offer reassurance on these issues. I think that the whole House is grateful to him for that. But is he saying that he will continue to monitor the effects, so that if the Government see an increase in the sort of selfish behaviour by motorists on private land that my noble friend has outlined, they will be prepared to introduce new regulations to tackle it?

Earl Attlee: No, my Lords. Where I am making the absolute commitment is to monitor the effect of rogue ticketing very carefully and, if necessary, introduce further regulation. I will not fall into the temptation offered by the noble Lord.

As I said, we are already establishing a new system for parking management companies that have accredited access to DVLA data. We intend that the independent appeals service will be able to report back to the industry on appeals, so that precedents can be established and drivers do not have to continually appeal on the same grounds. In this way, the appeals body will help to drive up standards in the industry and provide greater clarity to both the motorist and parking operators. The accredited companies operating under this new regime will be able to offer their services to smaller-scale landowners and parking providers, and we believe that in many circumstances that will be an attractive option for landowners with perhaps only a handful of parking places, knowing that parking on their land will be managed by a professional and responsible company with all due safeguards in place. I think that there would be serious reputational issues if an individual or an organisation took the option of not using an ATA operator, but we have left that option open to them.

The noble Baroness, Lady Randerson, asked about the European legislation in gestation at the moment. The Government believe that their proposals offer the right balance between the rights of motorists and those of landowners, for the reasons I have explained. We have agreed to return to the issue if rogue ticketing proves to be a problem, but the question of possible future European legislation is a little academic at this stage, although we will obviously need to pay due regard to any commitment to which the UK Government sign up.

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My noble friend Lady Randerson also raised the problem of small and dispersed parking facilities. It is entirely possible for the landowner or user to take a photo of the offending vehicle and the warning signs and pass them on to an ATA parking operator, assuming that they have the necessary enabling contact. That ATA company would be able to do the administration.

I hope that in the light of these clear assurances the noble Baroness will feel free to withdraw her amendment.

6.45 pm

Baroness Hayter of Kentish Town: When the noble Lord, Lord Lucas, said that I was on to a hopeless cause, I thought of not pushing it to a Vote-but when the Minister starts to use a midwife as the example of why the amendment should not be accepted I felt that he was clutching at straws. Far more midwives will be inconvenienced if they cannot park near to a patient.

I have three points. First, the Minister has not answered the question about the small places that are not making a charge. The noble Baroness, Lady Randerson, spoke of those-small, private areas with no charges being made, where the problem is the deterrent, not trying to put a fee on afterwards. The second matter is where there has been a unanimous agreement in having some sort of independent appeals process. It is simply no good to say that it is only for BPA members; if a member is expelled, that member can carry on running a parking area and will be completely outside any code of conduct. Finally, Disabled Motoring UK is concerned that this Bill will not stop rogue clampers from becoming rogue ticketers. They see it as a real risk to disabled drivers, who are in the main vulnerable people. I do not think that the Minister has answered that point at all. He says that he will wait for problems to occur to see whether to do anything; I do not advise the Government to do that because they will get all the flack. But so be it. I beg leave to withdraw the amendment.

Amendment 42 withdrawn.

Amendments 43 to 45 not moved.

Schedule 4 : Recovery of unpaid parking charges

Amendment 46

Moved by Lord Henley

46: Schedule 4, page 138, line 45, at end insert-

"( ) In sub-paragraph (5)(d) the reference to arrangements for the resolution of disputes or complaints includes-

(a) any procedures offered by the creditor for dealing informally with representations by the hirer about the notice or any matter contained in it; and

(b) any arrangements under which disputes or complaints (however described) may be referred by the hirer to independent adjudication or arbitration."

Amendment 46 agreed.

Amendments 47 and 48 not moved.

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Clause 58 : Emergency power for temporary extension and review of extensions

Amendment 49

Moved by Lord Armstrong of Ilminster

49: Clause 58, page 42, line 3, leave out "and" and insert "or

(iii) at any time when Parliament is sitting or is in recess the Secretary of State, with the concurrence of the Attorney General, considers that it would be inexpedient to introduce primary legislation to authorise a temporary extension of detention either because of time constraints or because of the risk of prejudicing the possibility of a fair trial of a person suspected of or charged with a terrorist offence or because of unacceptable risk to public safety or to security, and"

Lord Armstrong of Ilminster: My Lords, I beg to move the amendment standing in my name and in the names of the noble Baroness, Lady Royall of Blaisdon, the noble Lord, Lord Rosser, and the noble Baroness, Lady Liddell of Coatdyke.

Clause 57 establishes clearly the principle that a terrorist suspect should not be detained without being charged for longer than 14 days. Over the years, there has been much debate about how long that period should be. I have no wish to reopen that debate; the only question is whether there are any circumstances in which a terrorist suspect should be able to be detained for longer than 14 days. It has not been necessary to extend the period of detention without charge beyond 14 days at any time in the last five years. Nevertheless, it is the view of the Home Secretary, as well as of the police and of the Director of Public Prosecutions, that it might one day become compellingly necessary to do so.

The Government took the view that, in order to buttress the principle of the 14-day limit and to make sure that the period of detention without charge could be extended only in the most exceptional circumstances and only for the most compelling reasons, there should be no standing power to extend the period by order, and that it should be extendable only by the introduction of emergency primary legislation if and when the need arises.

Draft Bills were prepared, and a Joint Committee of Members of both Houses of Parliament was set up last year to give the draft Bills pre-legislative scrutiny. That committee, which I had the privilege of chairing, concluded that the Government were right to wish to create a contingency power to extend the maximum period beyond 14 days up to not more than 28 days in truly exceptional circumstances. The committee understood and respected the reasons for proposing that this power should be provided by emergency primary legislation, to be enacted when need arises, so as to ensure that temporary extensions of the period of detention would happen only in very exceptional circumstances and be subject to parliamentary scrutiny and approval.

The committee concluded, however, that parliamentary scrutiny of such emergency legislation would in practice be very seriously circumscribed. The legislation might have to be introduced and debated in a period of high tension and against a background of intense media interest and speculation. It might be very difficult to

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explain to Parliament, and to Members with a direct constituency interest, the reasons for introducing the legislation without disclosing information which would endanger security or public safety or information which could prejudice the right of a suspect or suspects to a fair trial. This could make the process of justifying the legislation almost impossible for the Secretary of State, and totally unsatisfactory and frustrating for Members of both Houses of Parliament.

The committee also thought that there would be an unacceptable degree of risk that it would be almost impossible to introduce and pass the legislation within a sufficiently short time, particularly when Parliament was in recess and would have to be specially recalled. We pointed out that it would be absolutely impossible during the period between the Dissolution of one Parliament and the opening of a new Parliament, because there would be no Parliament. The Joint Committee therefore concluded that emergency primary legislation, as exemplified in the Government's draft Bills, did not offer a satisfactory solution, and recommended a new order-making arrangement, under which the Secretary of State would be authorised to make an executive order of limited duration, if need arose, to extend the period of detention of suspects without charge to not more than 28 days, if exceptional circumstances applied, subject to strict safeguards and subject also to the agreement of the Attorney-General.

In Clause 58 of the Protection of Freedoms Bill, the Government have accepted the committee's recommendation in part, and have made provision for temporary extensions of detention by order in the period between the Dissolution of one Parliament and the first Queen's Speech in the next. But they are still proposing to rely exclusively on the introduction of emergency legislation at any other time when there is a Parliament in being, whether it is in session or not.

I understand and respect the Secretary of State's wish to make it as difficult as possible to extend the period of detention beyond 14 days. But she has accepted that there will be times when it is impossible to introduce primary legislation because there is no Parliament in being, so the principle is breached. The question is whether there should be any other circumstances in which an order-making power should be available to the Secretary of State.

This amendment would define and limit other circumstances in which the Secretary of State could proceed by order, even when Parliament was in being, if there were compelling reasons why it would be impracticable or injudicious to proceed by emergency primary legislation. She would still be able to proceed by emergency primary legislation if she thought that it was consistent with security, public safety and the interests of justice to do so. But she would have an escape hatch, by means of which she could, with the agreement of the Attorney-General, and subject to strict safeguards, proceed by order if she judged that pressures of time, or the interests of security, public safety or justice, required her to do so. The safeguards would be the same as those applying to an executive order made at a time when Parliament was dissolved.

The principle that there should be an alternative to emergency primary legislation is already established by Clause 58. The amendment I am proposing is an

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extension of that principle, not a breach of it. It does not seek to establish a new principle. It is of course possible that there will never be any need to extend the period of detention of terrorist suspects beyond 14 days. I hope that it may be so. But the Secretary of State, the police and the Director of Public Prosecutions all think that it is advisable to provide for the possibility that one day there will be a need to do so. If there is, it may be that it will be possible to proceed by emergency primary legislation. If that is so, fine. But I believe, as did the Joint Committee, that there will be circumstances where that is not possible, but where the period of detention ought to be extended.

To take just one example, suppose that the need to extend the period of detention arose during the Parliamentary Summer Recess. Parliament can be, and of course has been, recalled during a Summer Recess during a time of grave national emergency. But in the Summer Recess, Members of both Houses are scattered to the four corners of the world, and the Palace of Westminster is usually undergoing major works of reconstruction and refurbishment. Is it realistic to suppose that Parliament could be recalled in the Summer Recess just to authorise the extended detention of a terrorist suspect?

Four years of service in the Home Office left me with the conviction that, if anything can go wrong, it usually will-at any rate, in that department of banana skins. The annals of the Home Office are littered with overlooked banana skins and Secretaries of State with red faces. In this matter there are just too many foreseeable risks, and too many reasons why it might be too difficult to introduce primary legislation, to justify a decision not to take a sensible precaution.

This amendment is permissive, not mandatory. If it is passed this evening, the Secretary of State need never take advantage of it if she prefers not to do so. But if this amendment is not accepted she will run the risk of finding herself in a situation where she would like, and she ought, to extend the period of detention of a terrorist suspect or suspects, but feels herself to be prevented from introducing emergency primary legislation to do so, by reasons of pressures of time, or by considerations of security, public safety or justice.

In that situation, if a suspect or suspects could not be further detained but had to be released, and then went on to commit some outrage as a result of which innocent people were killed and injured, and which might not have happened had the suspect or suspects been kept in detention, how would the Secretary of State feel? How would she explain to Parliament, to the country and to the relatives of the victims why she had not felt able to take the action which might have prevented the outrage? The Secretary of State may be made of sterner stuff, but if I were the Secretary of State, I do not think that I could live with that thought.

7 pm

Baroness Liddell of Coatdyke: My Lords, I support the noble Lord, Lord Armstrong, and I have appended my name to the amendment that he has so powerfully moved. I will speak only briefly, because I am very conscious of the fact that I was not able to attend the

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Committee stage of this Bill. With impeccable timing, the noble Lord's amendment, which also at that stage had my name appended, coincided with the birth of my first grandchild, which of course rather overtook my consciousness.

I was a member of the Joint Committee, and, as the noble Lord has so ably and powerfully laid out, this issue of flexibility for the Home Secretary was one that was covered in some detail and gave rise to a great deal of unanimity. As the noble Lord, Lord Armstrong, pointed out, the whole area of terrorism and counterterrorism is littered with the unexpected. This amendment is merely a common-sense move to ensure that the Home Secretary has at her disposal all of the tools to enable her to act in a situation which may be one of crisis.

There are checks and balances contained in other aspects of this legislation. The noble Lord, in his amendment, also refers to other checks and balances. There comes a point when it is essential to put some trust in those who hold the great offices of state in this country and it may be ironic that I, as an opposition Member, point out that I have faith in the Home Secretary not to act in a cavalier manner when she is dealing with matters of such importance as the detention of terrorist suspects.

The noble Lord, Lord Armstrong, referred to the problems that are created around the time of the Dissolution. Many of us who have served in the other place were always very conscious that over the door of the Chamber of the House of Commons is the name of Airey Neave-the last person to be assassinated in the Palace of Westminster. He was assassinated when the Dissolution of the House was going through. He was removing materials from his office in advance of going back to his constituency. So the matter of Dissolution was discussed in some detail in the Joint Committee. Those of us who have been in the other place and have been recalled also know how long that can take. Indeed, Mr Jack Straw made the point that on one occasion it took three weeks to get a recall of Parliament under way. That is not acceptable when you are dealing with matters of terrorism.

There are also issues of parliamentary privilege when these issues are debated. All of us, in this Chamber and elsewhere, have sought to quiz Ministers at the Dispatch Box. If a Minister cannot answer a question then probing questions will inevitably follow. The last thing that anyone would wish would be to see a situation in which a Minister was led into putting words into the mouth of a defence lawyer who could say that a fair trial was denied their client. I urge the House to take this amendment very seriously. It is in the name of common sense. With luck, it need never ever be used but it is part of the armoury of the Home Secretary and the Government to have these provisions in their bottom drawer in the event of such an incident taking place that requires such powers. I support the amendment.

Baroness Royall of Blaisdon: My Lords, I, too, was pleased to add my name to this important amendment moved by the noble Lord, Lord Armstrong of Ilminster, who has set out his concerns powerfully today and in

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Committee. I have little to add to what my noble friend has said. I would merely commend the work of the Joint Committee, which did an excellent job, and say that while the Government have rightly recognised the practical impossibility of having to push through emergency legislation in a state of national emergency while Parliament is dissolved, they still have a duty in many ways to take seriously the committee's concerns over the ability of Parliament to legislate in certain emergency situations in order to provide powers necessary to extend the detention period to 28 days.

Perhaps most importantly, I echo the committee's concerns over the serious risk of jeopardising a fair trial if Parliament is to be provided with enough information properly to scrutinise whether the extension was necessary. As my noble friend has said, the scrutiny of legislation within such a short deadline is of course extremely difficult. Indeed, it could be dangerous if Parliament came to the wrong conclusions. The amendment is a measured response to the concerns which were expressed by the Joint Committee and, as has been said, it provides the Secretary of State with an option to bring in emergency legislation by order in certain circumstances where it is deemed truly necessary and expedient.

It is not mandatory but it is enabling. The Government, if they so wish, could still rely on emergency primary legislation. However, if there were concerns about the balance between having sufficient information to inform debate and the risk of jeopardising a fair trial, they could introduce an executive order. As my noble friend has said, this amendment makes entire common sense; as she also said, we must be able to trust in the judgment of the Secretary of State during times of national emergency. I believe that she should, in these rare circumstances, have the power available to her.

Baroness Hamwee: My Lords, the noble Lord, Lord Armstrong, has done a sterling job in this area and I feel a little embarrassed to ask questions, but I will because that is what we are here for. First, I share his and the noble Baroness's concerns about the danger to a fair trial in the circumstances that the amendment covers. It has always seemed to me that primary legislation in these circumstances is almost likely to be ad hominem. I do not know whether that is the right way to express it, but it could be read as being very personal to an individual.

I should like to ask the noble Lord about two phrases in his amendment. The first is "time constraints". I am not entirely sure what that means. It could be read as simply meaning management of parliamentary business. I dare say that it is intended to indicate insufficient time for adequate scrutiny, although I am not sure that that is implicit. The second phrase is,

I read that as being objective rather than subjective on the part of the Secretary of State and the Attorney-General. I am not sure whether I am correct in this but neither am I sure how one gauges an unacceptable risk as distinct from an acceptable risk. Those matters have to be subjective. One may often have seen in such a provision "the Secretary of State considers that" rather than the more objective approach in this phrase.

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Lord Henley: My Lords, as regards the three questions put by my noble friend Lady Hamwee I hope that I can deal with her first one, about the danger to a fair trial, later on. The other two, on the drafting of his amendment, obviously must be a matter for the noble Lord, Lord Armstrong when he comes to respond.

I echo the words of the noble Baroness, Lady Royall, in commending the work of the Joint Committee. We are very grateful for that and for all it does. I also echo the words of both the noble Lord, Lord Armstrong, and the noble Baroness, Lady Liddell, when they said, "Let us hope there will never be a need to extend from 14 to 28 days"-I think I have those words correctly from the noble Lord. We would all echo that; we very much hope that it will never be necessary. That is one reason why we want to make it as difficult as possible to do this, but I am grateful to the noble Lord for giving us another chance to consider this matter. Similarly, I am grateful to him for coming to see me only last week to discuss his concerns about the limited nature of our order-making power in Clause 58. Given the noble Lord's expertise and experience, I understand that this is a matter to which we need to devote a degree of attention and we certainly listened to what he had to say.

The Government made it clear following last year's Review of Counter-Terrorism and Security Powers that we felt it was right that the maximum period for pre-charge detention should be reduced from 28 days to 14 days. I think that the vast majority of this House agreed that that is a welcome change; I cannot speak for the party opposite. However, we all accept that there will be or could be circumstances-I would prefer to say could rather than will-in which a longer period of detention may be required and, as the noble Lord, Lord Armstrong, rightly asserts, we must be prepared. It is simply the way in which we find ourselves preparing for those circumstances that finds me disagreeing with him.

We have made it clear that emergency fast-track legislation is the most appropriate and proportionate way to respond to the very exceptional circumstances in which longer than 14 days may be required. Detention for 28 days is such a significant diversion from the normal standards of our criminal justice system that the Government are adamant that such a framework should be in place only temporarily, and with prior parliamentary approval. The noble Lord's amendment seeks to allow an urgent order to be made by the Secretary of State at any point if she felt that the use of primary legislation would be inexpedient for reasons of time, risk of prejudicing future trials or risk to public safety or security.

In respect of the question of time, Parliament can, and has, acted quickly to address matters of great seriousness in the past. Many of us have been in one or another House for many years and can remember occasions when we have been called back at short notice. Noble Lords will remember that, following the attacks on New York and Washington in 2001, Parliament was twice recalled within three days. We saw Members of another place recalled to discuss last summer's riots within a matter of days. Only last summer, Parliament was able to pass the Police (Detention and Bail) Bill

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within days of its introduction. We have worked with the Crown Prosecution Service and the police to ensure that decisions can be made early and quickly on whether there is a potential exceptional need to increase the maximum limit to 28 days.

The second issue is that the debates surrounding fast-track legislation might prejudice future trials. This danger would arise primarily if fast-track legislation needed to be passed when a number of suspects had already been arrested. In such circumstances Parliament could continue to debate the principle of an extension to 28 days and the general nature of the threat. It is right to say that Parliament could not debate allegations against specific individuals. However, it would not need to and it would not be appropriate for it to do so. The question of whether extension of detention warrants should be granted in respect of individual terrorist suspects would remain a matter for the courts and not Parliament.

The noble Lord's final concern is that fast-track legislation could not be considered because of a risk to public safety or security. Although the Government accept that the passage of fast-track legislation might be difficult, we do not believe that the difficulties are insurmountable. The Government do not therefore accept that there would be a risk to public safety and security involved in adopting such an approach.

I appreciate the noble Lord's assertion that his amendment is permissive rather than mandatory and that fast-track legislation could still be used rather than the order-making power. However, the existence of such a power is not compatible with the Government's general view that 28-day detention must be exceptional and that the decision to increase the maximum period of detention is one which Parliament should in the main be asked to make. I remain of the view that, should such an order-making power exist, there would always be arguments in favour of using it rather than putting the question to Parliament, where it should rightly be addressed, and the perception of 28-day detention as an extraordinary measure would again be lost. For those reasons, I hope that the noble Lord will feel able to withdraw the amendment.

7.15 pm

Lord Armstrong of Ilminster: My Lords, I would like to express my gratitude to the noble Lord for taking the time to talk about this matter at a meeting last week. That was useful-I hope to both of us.

I say to the noble Baroness, Lady Hamwee, that the time constraint I had in mind is that which would arise if the need to extend a period of detention became clear after somebody had already been in detention for 10 days and perhaps a weekend intervened and there simply would not be time to carry through emergency primary legislation, even on a fast track through both Houses of Parliament. It would be very difficult to define extensively in legislation what considerations of security and safety might apply but they are clearly considerations of prejudice to national security and public safety considerations relating to the possibility of a terrorist incident or outrage being planned which might be avoided, and information about which had better not be disclosed in a debate.

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I am less confident than the noble Lord, Lord Henley, that it would always be possible to avoid the debate in either House straying from general principle into the particular circumstances of an incident if a terrorist incident had occurred, or if there were extensive media speculation about the possibility of such an incident. I believe that there could well be circumstances in which a Member of Parliament might have a constituency interest which would justify him or her raising more detail, or asking for more detail, about particular cases or particular people than would be appropriate or safe to do. Therefore, I remain of the view that the Secretary of State may live to regret not taking advantage of this amendment. However, in the circumstances of this being a straight issue of disagreement, with apprehension I beg leave to withdraw the amendment.

Amendment 49 withdrawn.

Amendment 49A (in substitution for Amendment 54)

Moved by Baroness Royall of Blaisdon

49A: Before Clause 64, insert the following new Clause-

"Protection from stalking

(1) The Protection from Harassment Act 1997 is amended as follows.

(2) In section 2 (offence of harassment), for subsection (2) substitute-

"(2) A person guilty of an offence under this section is liable on summary or indictable conviction to imprisonment for a term not exceeding five years, or a fine not exceeding the statutory maximum."

(3) For section 4 (putting people in fear of violence) substitute-

"4 Offence of stalking

(1) A person ("A") commits an offence, to be known as the offence of stalking, where A stalks another person ("B").

(2) For the purposes of subsection (1), A stalks B where-

(a) A engages in a course of conduct,

(b) subsection (3) or (4) applies, and

(c) A's course of conduct causes B to suffer fear, alarm, distress or anxiety.

(3) This subsection applies where A engages in the course of conduct with the intention of causing B to suffer fear, alarm, distress or anxiety.

(4) This subsection applies where A knows, or ought in all circumstances to have known, that engaging in the course of conduct would be likely to cause B to suffer fear, alarm, distress or anxiety.

(5) It is a defence for a person charged with an offence under this section to show that the course of conduct-

(a) was authorised by virtue of any enactment or rule of law,

(b) was engaged in for the purpose of preventing or detecting crime, or

(c) was, in the particular circumstances, reasonable.

(6) In this section-

"conduct" means (inter alia)-

(a) following B or any other person,

(b) contacting, or attempting to contact, B or any other person by any means,

(c) publishing any statement or other material-

(i) relating or purporting to relate to B or to any other person,

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(ii) purporting to originate from B or from any other person,

(d) monitoring the use by B or by any other person of the internet, email or any other form of electronic or other communication, or making improper use of public electronic communications networks or leaving messages of a menacing character,

(e) entering any premises,

(f) loitering in any place (whether public or private),

(g) interfering with any property in the possession of B or of any other person,

(h) giving anything to B or to any other person or leaving anything where it may be found by, given to or brought to the attention of B or any other person-

(i) watching or spying on B or any other person,

(ii) acting in any other way that a reasonable person would expect would cause B to suffer fear or alarm, and

"course of conduct" involves conduct on at least two occasions.

(7) For the purposes of this section, a person misuses an electronic communications network or electronic communications service or other social media if-

(a) the effect or likely effect of use of the network or service by A is to cause B, another person, unnecessarily to suffer annoyance, inconvenience or anxiety;

(b) A uses the network or service to engage in conduct the effect or likely effect of which is to cause B, another person, unnecessarily to suffer annoyance, inconvenience or anxiety.

(8) The Secretary of State may by regulation add further forms of conduct to subsection (6)(b) above.

(9) A person convicted of the offence of stalking is liable-

(a) on conviction on indictment, to imprisonment for a term not exceeding 5 years, or to a fine, or to both,

(b) on summary conviction, to imprisonment for a term not exceeding 12 months, or to a fine not exceeding the statutory maximum, or to both.

(10) Subsection (11) applies where, in the trial of a person ("the accused") charged with the offence of stalking, the jury or, in summary proceedings, the court-

(a) is not satisfied that the accused committed the offence, but

(b) is satisfied that the accused committed an offence under section 2.

(11) The jury or, as the case may be, the court may acquit the accused of the charge and, instead, find the accused guilty of an offence under section 2.""

Baroness Royall of Blaisdon: My Lords, in moving Amendment 49A, I wish also to speak to Amendments 49B and 49C, and to do so with humility and determination. I speak with humility because since our useful, and in many ways moving, debate in Committee, when we heard the courageous testament of the noble Baroness, Lady Brinton, I, like other noble Lords, have had the opportunity to learn more about stalking and to meet other victims. These are extraordinary people-usually women-who live in fear for themselves and their children, and who have been completely and utterly failed by the criminal justice system at all levels. I speak with determination because with this Bill we have an opportunity both to introduce a specific offence of stalking in England and Wales and to change the culture of our criminal justice system from top to bottom by requiring, among other things, mandatory training, risk assessment for victims, psychiatric assessment and treatment for perpetrators and a victims' advocacy

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scheme. Naturally, such changes would have to be accompanied by an awareness campaign to ensure that the issue was taken seriously.

In a time of unprecedented cuts, women's safety must be a priority. Only today, the Daily Mail reported that half a million street lights are being switched off by local authorities forced to find savings, meaning that women working shifts or returning late from an evening out will be forced to walk the streets in darkness. Similarly, cuts to backroom police services will inevitably hit specialised units such as those concerned with domestic violence. This amendment is an opportunity to provide real protection for victims of stalking and serious sustained harassment, 80 per cent of whom are women.

As we heard in Committee, lives are destroyed by devious manipulators. Sometimes lives are tragically ended by this murder in slow motion. We are not talking of a small number of people; nearly one in five women over the age of 16 has been a victim of stalking. The number of lives affected is staggering, yet we know that stalking is grossly underreported. Of the estimated 120,000 cases of stalking each year, just 53,000 are recorded as crimes by the police and only one in 50 leads to an offender being jailed. The overwhelming majority of sentences are for less than 12 months and some are for a matter of days. Where restraining orders are given, they are constantly breached and the victims live in constant fear.

By recognising stalking as a specific offence in law, as it has been in Scotland, we would ensure that the courts looked at an entire course of conduct when it comes to stalking rather than just one specific incident of harassment, as currently happens in so many cases. It is estimated that victims tend not to report stalking until around the 100th incident-yes, the 100th-because it often begins with individually minor incidents, such as nuisance phone calls, and it is invariably only when the perpetrator's actions finally escalate to serious and violent offences, sometimes after many years of sustained terror, that the police will step in.

Two weeks ago after eight years of sustained suffering, Claire Waxman's stalker was finally jailed for 16 weeks for a second breach of his restraining order, after being given a suspended sentence and ordered to pay compensation. The introduction of a specific offence will train the police and the courts to focus on the pattern of behaviour reported and enable early intervention to protect women like Claire-and indeed men-whose lives are stolen from them by their stalkers. The change in Scottish law, which this amendment was modelled on, has led to an increase from an average of seven prosecutions for stalking a year to 140 prosecutions in the first four months in Strathclyde alone. Last year, only 565 offenders found guilty of serious harassment received a custodial sentence, the vast majority of which were for less than 12 months, and many for just days. The increase from six months to a five-year maximum custodial sentence that the amendment would make would enable these cases to be heard in a Crown Court and ensure adequate protection for victims.

Thanks to charities such as Protection against Stalking and the Network for Surviving Stalking, and the work of Laura Richards and Harry Fletcher, there is now a vast body of evidence about stalking, its impact and

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the gaps in data, legal provision, training, awareness, assessment and treatment for offenders. More people are beginning to understand the need for murder prevention. This week will see more evidence with the publication of the report by the independent people's inquiry into stalking-an inquiry that has given a voice to victims who have suffered too long in silence and at the hands of the criminal justice system. I pay tribute to all members of the All-Party Parliamentary Group, and especially to Elfyn Llwyd MP, its chairman, for their tremendous work. Many of its members are from this House, from all Benches. I have not yet seen the report but I know that it will recommend a draft Bill on stalking.

From detailed conversations that I have had I am confident that the most important elements of this Bill are covered in my amendments. Amendments 49B and 49C would place a duty on the Secretary of State to introduce such a regulation as is necessary to effect the comprehensive reform to training, victim support, risk assessment and other such measures that the people's inquiry is calling for. Some of these measures can be done through regulation and secondary legislation. Others no doubt will need primary legislation, but by tabling these amendments-one of which lists the measures to be included in any further regulation, and the other a less prescriptive duty on the Secretary of State-the opportunity is here for the Government to furnish the Bill with further measures at a later stage.

As noble Lords will know, the Government have undertaken a consultation on stalking, which ended yesterday, and I have no doubt that it will conclude that the actions that I am proposing here today are necessary. Indeed, the Prime Minister himself has said that there is a gap to be filled, and both the Home Secretary and Lynne Featherstone are understood to be sympathetic. When the Minister responded to the amendment that I moved in Committee, he suggested that while there might be a case for strengthening the law on stalking to raise its profile, he felt that the Protection from Harassment Act was adequate to cover this criminal behaviour. Indeed, speaking of the new offence, he said:

"We do not consider that to be proportionate where the conduct does not cause a person to fear that violence would be used against them on each occasion".-[Official Report, Commons, 6/12/11; col. 661.]

I hope that as a result of the many briefings and representations that the noble Lord must have received, he will now change his mind. In our debate on 6 December, the noble Baroness, Lady Brinton, said that we should not accept any amendment on that occasion because we had to get it right but that we should do it early next year. That time has come. This Bill provides us with a huge opportunity to change the law, to change the culture of the criminal justice system, to diminish the fear of victims and provide them with support and assess, and to treat the perpetrators. If we wait for a new Bill, I fear that the best could be the enemy of the good. The victims of this insidious crime need these changes to be made now. They are suffering day after day and they do not have the luxury of time to debate.

Perhaps the noble Lord will again say that we should wait until the results of consultation have been considered before deciding whether to accept my

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amendments. I respectfully suggest that the Government should accept my amendments, which I believe to be comprehensive but also provide them with an opportunity to furnish the Bill with further measures that may be suggested by the results of their consultation if there continue to be gaps. I understand that Third Reading will not be until March, so there would be adequate time for further amendment if necessary. I beg to move.

Baroness Brinton: My Lords, I rise to speak to all three amendments in the group. Stalking is a heinous crime that currently goes much unrecognised, except for the few exceptional cases that hit the tabloid headlines. The headlines are not exceptional because of the stalking, the behaviour of the perpetrators or the suffering of victims, but usually because of the murder of the victim or, finally, the conviction of a perpetrator after many years of stalking.

I spoke in Committee about my personal experience. It was interesting that following that a number of noble Lords spoke to me privately to say that they had also experienced stalking-some from many years ago. It was evident that it was as vivid to them as my account to your Lordships' House. My perpetrator was convicted more than three years ago. I think that many of us take many years to recover from the impact of the offence.

I thank the Minister for the discussions that I have had with him in the past few days. I hope that he will be able to reassure the House about some of the points raised by the noble Baroness, Lady Royall of Blaisdon. The harassment legislation was put in place by the previous Government, who decided that stalking could be included within the broader scope of harassment. However, the breadth of the definition means that a stalker, who may have hundreds of incidents on his record, is conflated with a neighbourhood dispute over hedges. As a result, sentencing for stalking is limited to a handful of months, whereas the whole nature of stalking is, as stated by one of the victims giving evidence to the inquiry, "a rape of the mind". It also curtails the victim's life as they cannot take up a normal life again while the perpetrator is able to attempt to continue to control their lives.

Amendment 49A broadly copies the Scottish legislation, and rightly proposes an offence of stalking. It outlines the increased penalty for being convicted of the offence. It does not, however, as I outlined in my speech in Committee, tackle the core and underlying problem of training for everyone involved in the criminal justice system. Stalkers are usually bright, manipulative and obsessed with their victim. Many convicted of stalking behaviour have been assessed by psychiatrists as suffering from personality disorders. They are frequently charming and able to convince professionals, neighbours and even, as in my case, random members of the public that they are hard done by and misunderstood, and it is all the victim's fault for taking things a bit too seriously.

Amendment 49B attempts to put some flesh on the items that the Scottish legislation fails to mention, but from discussions with the noble Baroness, Lady Royall, there is some detail here. However, I fear that it is

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incomplete, and it would benefit from the detail of the inquiry's report and probably from the responses to the Government's own consultation on stalking, which has just closed. Let me give two illustrations. The first is the general principle behind both this amendment and Amendment 49C that all the other details are settled in regulation. This is very worrying. Proposed subsection (1)(a) refers to how to,

This would involve a sea change in the approach to this type of crime, and I believe requires more than a passing reference to regulations. It has not been common in our criminal justice system to insist that perpetrators have treatment, and it is right that both this House and another place would want to have the chance to discuss this in some detail. Do not get me wrong; I believe that it is absolutely right that perpetrators have treatment. My issue is about the time left in Parliament to discuss that matter, which is an important change in the way in which our legislation operates at present.

It is important also because perpetrators must have a real chance to begin to understand and change their behaviour. This happened in my case; my perpetrator voluntarily agreed to have treatment, and it gave both me and the others affected confidence that he would finally stop. Too often, prison or restraining orders have not sufficed, and as soon as the perpetrator is back in society, or without constraint if the restraining order is lifted, the behaviour starts again. Insisting on treatment for perpetrators is a matter of freedoms and liberties. We need to have an open debate about the legislation, and I am afraid therefore that the amendment needs to be more specific.

7.30 pm

Secondly, subsection (2)(b) of the new clause proposed in Amendment 49B states that regulations shall provide for "risk assessments for victims". Victims have given very clear evidence to the inquiry that there must be a complex set of risk assessments for those affected by the behaviour of the perpetrator but that it should not and must not be limited to the victim. Most incidences of stalking relate to people who have been or believe that they have been in a relationship with the victim. Often, the victim's children, among others, can be just as affected by the perpetrator. Imagine, for a moment, this running alongside a stalking case being investigated by the police, where the police have supported the victim in getting the criminal courts to issue a restraining order against a perpetrator, which is not uncommon. Now add to that a session in the Family Court, where the perpetrator has asked for extended contact with the children. At present, it is probable that the judge in the Family Court will not be aware of the criminal investigation running in parallel. I am sorry to say that, even if told, the judge may believe that the victim is being difficult about allowing the perpetrator access to his children.

This scenario is, sadly, not imaginary. Victims have talked publicly about how the family justice system seems unable to handle this, with the result that in one case the police had to intervene to tell the judge that he had to take account of restraining orders when considering access and that the victim was not just being difficult about her ex-husband. Risk assessments must include

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ongoing criminal cases, and must refer to the children of victims as well, not only to the victims. I am afraid that that is another reason why Amendment 49B is not sufficient.

I remind the Minister of my own example in which the police silver team investigating was exemplary but junior staff in control and receiving telephone calls were not trained using the code word. As a result, some months after the initial case started, if people rang using the code word, there was no immediate action. There were at least two occasions on which that lack of training or understanding meant that my perpetrator got away, again. I therefore ask the Minister to reassure the House that the department will look at stalking in its widest sense and assess the culture and training for everyone in the criminal justice system. Can he also provide comfort for the House on how serious the Government now consider stalking to be, and tell us what they will do to introduce legislation-preferably as soon as possible-support and training for victims, as well as the assessment and treatment of perpetrators?

I said in Committee that I support the principles and ideals behind the amendments, but I fear that they are too early and not detailed enough for the following reasons. First, copying the Scottish legislation is a start, but it does not reflect what Scotland has learnt from the law since its introduction, and there has been helpful evidence on both the success of and the omissions in the inquiry. Secondly, the Government's own important consultation on stalking closed only yesterday, and they must have time to evaluate the views of the many respondents. Thirdly, the all-party-supported people's inquiry into stalking report will be launched and published tomorrow. Here I wish to thank Napo and Protection against Stalking, and quite specifically Harry Fletcher and Laura Richards, for the detailed work they have done to help the all-party inquiry to hear so much evidence from victims, probation officers dealing with perpetrators, and many people in the criminal justice system. It is the weight of that evidence that the Government should read and address.

Sadly, therefore, I cannot support the amendments should the noble Baroness press her amendment. Given the facts outlined above, I hope that she can be persuaded not to divide the House on this occasion, but I also hope that, when he responds at the end of this debate, the Minister will be able to demonstrate how seriously the Government take stalking by providing reassurance for all of us that there will be legislation soon.

Just in case mischievous folk try to say that we in the coalition are not in favour of legislation on stalking or protecting women, let me be clear that this is simply not the case. Prime Minister David Cameron himself asked for a copy of the report on stalking when the all-party group was set up last year. He has repeated his concerns since then. Both the Deputy Prime Minister and Minister Lynne Featherstone, whose responsibilities include women, have made speeches outlining the importance of change in stalking legislation. It would therefore be utterly wrong to use this amendment to attempt to tarnish the Government, when in fact the problems lie with the amendments themselves and their timing.

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Stalking is a dreadful act. As with deeply personal offences such as rape and sexual assault, it is just not possible for people not close to victims to understand what happens and how it affects them and their families for life-sometimes even for death. It requires legislation and a serious change in culture throughout the entire criminal justice system. We need to debate that change very publicly and carefully, in order to get it right, because some of the necessary changes are fundamental to making any legislation on stalking effective. However, it will impact on the freedoms of the perpetrator too. I thank and commend the noble Baroness for her amendments, but they are not the right vehicle; nor would it be right to rush something through that was inadequate. I am sorry that I cannot support them. I hope the Minister will be able to reassure us that we will very shortly see draft legislation to make stalking a crime.

Baroness Howe of Idlicote: My Lords, like the noble Baroness, Lady Brinton, I have also been involved with this committee, which has been looking in very great deal at this issue. As others have said, with the marvellous help of Laura Richards and Harry Fletcher, who have done a tremendous amount of work, we have listened to the most appalling stories. Again, as has been said, it is not just the individual whose life is ruined; it is often whole families who have to rush around the country trying to escape the persecution. As we also know, it is not just a question of trying to escape; there are murders and other terrible consequences. I, too, congratulate the noble Baroness, Lady Royall, on tabling the amendment. It is a good and very worth-while attempt not only to replicate the Scottish legislation-which, as we have all heard, has made good progress, and lessons are being learnt from it-but to make some additions, which we have worked on in our committee. Very sadly, it is probably not the right time to do so. We have a clash because the report that we have all been working on is published tomorrow, and it is very comprehensive. This makes, in my view, a strong case for a far more comprehensive piece of legislation.

That said, I commend the noble Baroness, Lady Royall, on later Amendments 49B and 49C in this group. They are an attempt, although I tend to agree probably not a practical one, to come to the right conclusion. We have, however, been told that Third Reading is not until March, so there might be some time to work on this report. If that is the case, we should gratefully look at that. Whether or not we will be able to accept it in its final stage, it would be an example of an updated piece of legislation that might in due course need further improvement but might be a step in the right direction.

I will mention cyberstalking briefly because it is a major and worrying area that needs dealing with. The perpetrator can not only continue to hound and haunt the victim in appalling ways but reinvent himself, pretend that he is the victim and spread all sorts of rumours. It is a very serious situation that we have ignored for far too long. One is almost surprised at how little attention has been paid to it. We should think back and not forget that domestic violence was

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regarded as something that was within the family and that the police should not get involved. How ridiculous that sounds in today's world.

Again, I congratulate the noble Baroness, Lady Royall, on what she is doing. I hope that we can make progress between now and Third Reading in the way I suggested, and then think again. I very much support what is being done.

Lord Lucas: My Lords, I very much look forward to reading the report tomorrow. I support the direction that the noble Baronesses have taken but I feel that Amendment 49A raises too many questions, particularly around the boundary of what is and is not acceptable conduct. For example, there is no requirement on A to behave reasonably, only on B. In subsection (5) of the proposed new clause we are getting close to the continental form of law where something is permitted only if it is allowed in legislation, whereas in the English form of law something is permitted if it is not forbidden in legislation. That requires careful consideration. I hope that the report of the noble Baroness will be the start of that process, and that my noble friend will be very supportive in his reply.

Lord Henley: My Lords, perhaps the House will welcome my intervention at this stage. I echo the words of the noble Baroness, Lady Howe, in saying that, surprisingly, I, too, commend the noble Baroness, Lady Royall, on tabling the amendments in this group. However, I have some doubts about their practicality and timing.

My first doubt is about their practicality. There are three amendments in the group. I am not sure in which order the noble Baroness would wish to see them on the statute book, or whether she wants to see them all on the statute book at the same time. Amendment 49A sets out in some detail what she proposes to do, although subsection (8) of the proposed new clause still gives the Secretary of State power by regulation to add further forms of conduct to subsection (6). The second amendment is a somewhat briefer attempt to do the same thing, which gives greater power to the Secretary of State to govern by regulation. The third, Amendment 49C, seems to imply that the Secretary of State can do what she likes, when she likes, merely by regulation. I am not sure that that is the right way to go about legislating in this field. I hope that I will cover these points in greater detail in my brief remarks.

I appreciate also the extreme importance of this matter. I make it quite clear to the noble Baroness and to the House that the Government take this very seriously indeed. We understand what my noble friend Lady Brinton called the fear and trauma that it can cause victims, many of whom are women living in fear of physical violence as well as mental anguish. We accept that more needs to be done-I make that quite clear-to protect victims of stalking and to stamp out such behaviour. That is why the Government took the initiative as long ago as last November in launching their consultation, which sought views on how we could more effectively protect victims of stalking-including, if necessary, through strengthening civil and criminal law, and police powers.

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7.45 pm

My right honourable friend the Prime Minister, as my noble friend Lady Brinton said, has already acknowledged that there is a gap in the law. The question is how we close it. The issue not just for the noble Baroness but for the whole House is whether voting on these amendments today will help afford further protection to the victims of stalking or whether, as I respectfully submit, it would be preferable to give a little more time for consideration of the views of victims, practitioners and the police before a decision is taken.

Reference was made to the consultation that I have just spoken about. As the noble Baroness, Lady Royall, reminded the House, it closed only yesterday. It will take a bit of time to study the results. There were nearly 150 responses from a diverse range of individuals and groups. Rather surprisingly for a consultation that has allegedly closed, there are one or two more views that will come in, but they are almost there. The groups include victims of stalking, women's groups, the police and others. We owe it to all of them to look very carefully at, and consider very properly, their views and the evidence before we decide on the best way forward. Again, I assure the House that we are committed to doing this as expeditiously as possible-but obviously it will take a little time to consider 150 responses.

We will also look at the views of the all-party Justice Unions Parliamentary Group, which will publish its report tomorrow. The noble Baroness confessed that she had not seen it, and nor have I. However, other noble Baronesses such as the noble Baroness, Lady Howe, and my noble friend Lady Brinton have been actively involved in it. We owe it to them and to the group to consider the report very carefully. Those who have been part of the group have the advantage of knowing what is in the report. Unless I am mistaken, the noble Baroness, Lady Royall, does not-and nor do I. We are very keen to consider the group's conclusions and recommendations alongside the other responses to our consultation.

I hope that the noble Baroness will not feel that I am seeking more time purely to delay or prevaricate. The issue is far too serious for that. However, as I said, with the best will in the world we cannot be expected to consider 150 responses in 24 hours, and we cannot yet consider the other report, which we are looking forward to seeing tomorrow-as is my right honourable friend the Prime Minister.

Reference was made by other noble Lords, in particular the noble Baroness, Lady Howe of Idlicote, to Third Reading. That will not happen until well after the half-term Recess. We could push that back well into March. Therefore, there is a reasonable amount of time, and to some extent the timetable is in our hands, subject to normal discussions with the usual channels. That will give us sufficient time to consider the responses to the consultation and the report from the all-party group, and to reach a view within government on the best way forward in advance of Third Reading.

The noble Baroness will appreciate that I cannot give her a cast-iron guarantee that we will bring forward the amendment that she wants at Third Reading. If

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she presses her amendment tonight, we will have the problem of having muddied the waters and made a decision in the House. We will then have constraints on what we can do at Third Reading. The noble Baroness is as familiar as I am with the guidance in the Companion to the Standing Orders on what we can and cannot do at Third Reading on an amendment on which we have come to a conclusion.

I would be very grateful if, on this occasion, the noble Baroness would listen to me rather than taking advice from her noble friend the opposition Chief Whip, although she can take advice from him in due course. I cannot guarantee an amendment at Third Reading, but I can promise to give the noble Baroness an assurance in advance of Third Reading as to whether or not we will be bringing forward an amendment at that stage. If we do not bring forward an amendment at that stage it will then be open to the noble Baroness, along with the noble Baroness, Lady Howe, and other noble Lords, to bring forward any such amendment as may be wished. The noble Baroness would be at liberty to bring those amendments back and press them to a Division at that point.

The choice is one for the noble Baroness but if she presses this to a Division, and if the House comes to a conclusion, she will have actually made it harder for both the Government and herself to achieve what she wants to do at Third Reading which is in something like six weeks' time. It might be five weeks or four but, as we all know, it will be well into March.

I therefore urge the noble Baroness to listen to the remarks of some others in this debate and, on this occasion, to withdraw her amendment, bide her time for a few weeks longer and then let us see what might be possible at Third Reading.

Baroness Royall of Blaisdon: I am grateful to all noble Lords who have participated in this short debate for their very positive and supportive views. We are agreed, all around this Chamber, that this is a heinous crime and that we really must do something about it. I will not respond now to all the points that have been made because people want to know whether or not we are going to vote. Timing is clearly of the essence-the timing of my amendment is not perfect, in view of the fact that the people's inquiry will report tomorrow and the Government's own consultation finished yesterday. When the Minister talked about the consultation, he said that they would look at the results-it is terrific there have been 150 or more responses-and that, if necessary, the Government would bring forward amendments or further legislation. I was thinking that that was not good enough but as he went on it seemed clear that, while he cannot give me a binding commitment that he will bring an amendment back at Third Reading, he was inviting me to withdraw my amendment on the basis that, if he does not bring forward an amendment at Third Reading, he would be willing for me to do so. Is that correct?

Lord Henley: I was trying to give an assurance that, although I cannot speak for the House, the noble Baroness would be perfectly within order to bring forward her amendments to be discussed again at Third Reading. On that occasion it would, obviously,

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be a matter for the House to consider the amendments. Under the much stricter rules on what can and cannot be brought forward at Third Reading, I would certainly have no objection to her bringing forward her amendments or some variant of them.

Baroness Royall of Blaisdon: I am very grateful to the Minister for that assurance, in view of which it would be wrong of me to press my amendment to the vote this evening. However, if the Minister is not able to bring forward amendments at Third Reading, I will certainly do so and, at that stage, I will pursue it to a vote 150 per cent. With that, I beg leave to withdraw the amendment.

Amendment 49A withdrawn.

Amendment 49B not moved.

Amendment 49C not moved.

Consideration on Report adjourned until not before 8.54 pm.

Local Authorities (Conduct of Referendums) (England) Regulations 2012

Motion to Approve

7.55 pm

Moved By Baroness Hanham

Amendment to the Motion

Moved by Lord Beecham

Lord Beecham: My Lords, I rise to move a regret Motion in the terms set out. In doing so, I declare an interest as a member of Newcastle City Council for the past 45 years. I also have to say that I have not the slightest interest in being either an elected mayor or a police commissioner-no doubt to the great relief of many of the citizens of Newcastle.

The issue before us stems from the Government's decision to impose referendums on 11 local authorities in May with a view to determining whether they should move from their present system, which is a leader and cabinet system, to that of an elected mayor. If the local electorate, or as many of them as decide to participate, opt to change to a mayoral system, there

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will, as I understand it, be elections in the dark nights of November next year, to coincide with the police commissioner elections.

The Government's decision raises two issues which fall to be debated. The first is around the merits or otherwise of the mayoral system. That is the background to the regret Motion, although, whatever view one takes about the mayoral system, there is a separate question about whether it is justifiable to impose a referendum as opposed to relying on the system which has operated for the past 10 years of allowing a referendum if 5 per cent of the local electorate choose in a petition to demand one or, indeed, if a local authority decides to hold a referendum.

With regard to the first matter-the merits of the system-it is customary for Governments to have an evidence base for radical changes that they propose. In this case, such evidence is lacking in two key areas. The first is the claim that the elected mayor system is inherently better than the leader and cabinet model-more effective leads to better governance. I would argue that cities like Manchester, Birmingham, Leeds, Sheffield, Newcastle and many others have demonstrated an ability to innovate, to promote efficiency and to drive regeneration without an elected mayor. There has been a celebration of the renaissance of some of our great urban centres over the past few years, almost all of them in places with the long-standing-certainly over the past decade-leader and executive model.

There was a long tradition of local government leading the way in social policy before elected mayors. Distinguished local government figures such as Joseph Chamberlain and Herbert Morrison and, for all his faults, Newcastle's own Dan Smith, created enormous change, not just in their own localities, but in the politics of local government generally. Huge advances were made over many decades in social policy, in housing, the move from gas and water municipal socialism which Joseph Chamberlain was espoused in the 20th century, to housing and social care, to transport and the arts. These were signal achievements of the old system of local government and it is yet to be demonstrated that the mayoral system, now operating in a relatively small number of places, is actually any better. I would argue that there is little evidence of that either here or indeed abroad. The noble Baroness may, as she did in Grand Committee, cite examples such as Barcelona. However, as I pointed out at the time-in fact, I think that the noble Baroness pointed it out but perhaps without quite realising what she was doing, with all due respect-Barcelona has an elected mayor who is not elected in a personal capacity but is elected, in the same way that a Prime Minister is elected, as the head of his party-the party list in the case of Barcelona. This is not quite the direct electoral system that is being advocated here. So, in my view, there is not that advantage of a mayoral system.

8 pm

It is sometimes said that mayors are more visible and more accountable. Members of your Lordships' House may not think I am all that visible at the best of times, but 17 years after I was leader of Newcastle City Council, it is, somewhat to my surprise, not

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infrequently that I am recognised in the streets of Newcastle as somebody who played a significant part, for a time, in the council's affairs all those years ago, and I am sure that I am not unique in that way. There are probably many other places where those who have led councils whose physical presence was greater than mine are recognisable not just for that reason but because of what they had attempted to do on behalf of their community.

Irrespective of whether one supports the mayoral system, there is a fundamental question about whether we should be proceeding in this way. There is a real issue about the appetite for change. As the amendment indicates, a mere 5 per cent of the electorate of any council could have called a referendum in the past 10 years. Only 39 referendums have been called and in only one of those was the turnout for the referendum more than 40 per cent, apart from in a handful that coincided with the general election, where, obviously, with 60 per cent or so going to the polls, a higher turnout figure was recorded for the referendum. In fact, in many cases, even in those authorities where the mayoral system was opted for, the turnout was pretty low. It was 16 per cent in Bedford, 18 per cent in Lewisham and, just a week or so ago, in Salford, 21 per cent in Mansfield, 25 per cent in Watford and Doncaster, 26 per cent in Newham, 27 per cent in Stoke, which eventually thought better of it and decided to abandon the system in a second referendum a few years later, and there were only three authorities with turnouts of over 30 per cent. That is hardly a ringing endorsement of the notion that people are pining for a change in the system.

Nor is it right to say, as was proclaimed as the likely outcome of the change by those who espoused it-my noble friend Lord Adonis among others-that this will somehow lead to greater participation in local elections. In fact, in only one mayoral election, apart from those that occurred on general election day, has the turnout exceeded 40 per cent, and that was in Boris v Ken round 1 in 2008, when the turnout was all of 45 per cent. I vividly remember, as will, I am sure, other noble Lords, particularly the Minister, coming into London, getting out of a Tube station and seeing the placards every time, with the Evening Standardreferring to this impending dramatic event. But it did not seem to excite the electorate all that much even here.

We have this position where the appetite is extremely limited, and not just among the electorate. There are very few in any political party who seem to advocate the system. The noble Baroness was a distinguished leader of an important council for many years, but that council has not chosen a mayoral system. I do not know whether she has been advocating it overtly or quietly, but if she has, she has failed to persuade it thus far. Indeed, apart from four councils in London, which had all been Labour controlled, no council in London and very few councils elsewhere, despite years of control by Conservatives, Liberal Democrats or both in coalition, have actually opted to call a referendum or encourage their electorate to do so. That remains the case today in most of the authorities that are in the Government's list. It is possible that political groups in Birmingham may

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support a referendum and I gather that Liverpool is likely to opt as a council for a referendum, which is, of course, its choice.

I would like to quote a member of Bradford city council, in the absence of the noble Baroness, Lady Eaton, who is not in her place tonight, but who was in her place for many years as a very distinguished leader of Bradford Council. One of the Bradford members was quoted as saying:

"My colleagues and I are not supportive of elected mayors ... We do not think that the proposals are suited to the needs of the Bradford district ... We are hopeful that local people will recognise that an elected mayor would be unlikely to improve the quality of life of local residents or the quality of services provided to them and vote to reject the proposals".

That was Councillor Anne Hawkesworth, the Conservative group leader on Bradford Council. I gather that that view is echoed by many of her colleagues elsewhere and certainly by many Lib Dem colleagues, including distinguished local government figures such as Councillor Richard Kemp and others, including the last Liberal Democrat leader of Newcastle City Council. Whether his predecessor remains of the same mind that he once had, we shall perhaps learn in the course of the debate.

In addition to the lack of general interest in the idea of elected mayors, there is a serious question about the nature of the powers to be conferred on a single individual. The concentration of power in a single pair of hands which requires a two-thirds vote on a council to overturn a decision of the elected mayor on key issues such as the budget, the children's plan and so on is a very high ask. It can lead to the situation that we have seen in an adjoining authority to my own and that of the noble Lord, Lord Shipley-North Tyneside Council. For several years it had a Labour mayor and a very substantial Conservative majority on the council, and now it has a Conservative mayor and a very substantial Labour majority on the council. That is, to put it mildly, somewhat confusing to the electorate, and it cannot really be right that that situation can arise so easily and, moreover, that it would require a two-thirds vote to outvote an elected mayor. It seems that we are moving from local democracy to local autocracy, and that is not in the interests of representative local government.

We have this dilemma and we have the cost to bear in mind. The noble Baroness was good enough to make clear in Grand Committee that the cost for each authority of, roughly, £250,000 would be met in the first instance by the Government, but it is still money that could have come into local government and been used for better purposes, as could the equivalent amount, because it will be roughly the same, that will be spent on any more referendums should they occur in November this year at a time when budgets are under so much pressure. One would think that in these very difficult times this is an additional reason to avoid this issue leading to expenditure when there is so little public support for it.

I ask the Government why, in the face of apparent public indifference and the opposition of many of their own local councillors from both the partners in the coalition, quite apart from Labour and other councillors, they are insisting on forcing through the calling of referendums. If people want them, the option is there. Why are they forcing this procedure on an

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indifferent electorate? Holding them should surely be a matter for local choice, not at the behest of the Government. I would also like to ask them what their intentions are in relation to the 300 or so other authorities that have not yet held referendums. Will they too be compelled to go through this process and, if so, how will they be selected and when?

One issue that has been mentioned in the course of the debates over the mayoral referendum is whether we should be moving from individual city mayors to subregional or conurbation mayors, mayors of Greater Manchester or Merseyside, as was advocated by the noble Lord, Lord Heseltine, and Sir Terry Leahy recently in their report about Merseyside, and perhaps there are other places too. It is interesting that a Government who abolished metropolitan counties 20 or so years ago without having a referendum on that issue should now be thinking of reinventing some subregional governance arrangement, but one of this nature, with an even greater risk of the concentration of power, given that the geographic and population scope that would be involved would be greater than would arise in an ordinary mayoral referendum in an individual authority.

We are faced with the cost of following a government policy that is rooted in no evidence at all and apparently has no public support of any significance to achieve objectives that are very far from clear-unless there is a somewhat hidden political agenda. I bear in mind the words of the Member for Grantham, Nick Boles, who some years ago was advocating the system because it was the only way to provide a ladder by which the Conservative Party might climb back to power in places like Manchester or Newcastle. He is likely to be disappointed, in any event, should mayoral elections take place in May of this year, but that may be the motivation-not on the part of the Minister, I am sure, who is much too honourable for such a cynical approach, but I would not put it past some of her colleagues in the higher reaches of government and beyond.

It is therefore a matter of real regret that we should be forcing people into this process and, given the Government's explicit inclusion of powers to inflict this whenever and on whomever they like, it is worrying that we are embarking on this process at this time. I beg to move.

Lord Shipley: My Lords, I declare an interest as a member of Newcastle City Council. I do not set out to make this a Newcastle debate. However, Newcastle is one of the 11 cities identified. I do not regret this Motion and I believe that the noble Lord, Lord Beecham, is mistaken in moving his amendment, for a number of reasons. Let me explain why.

I believe that the debate about elected mayors has moved on. The noble Lord, Lord Beecham, is absolutely right that a year or two ago I felt that the balance of evidence was strongly against. I no longer believe that to be true. One of the key reasons for that-there are several, which I will come on to-is the elected police commissioner, which I believe has altered the nature of representative democracy at a local level, and that as people get used to electing directly an individual to a role, it will be very odd if the leader of a council is not similarly elected. I will come back to this.

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I have not fully understood the issue of cost. There clearly is a cost in running a referendum but actually the referendum will take place on a local election polling day, and the election, should it be approved, will take place on the day elected police commissioners are being voted in.

The decision to have a referendum in the cities identified was actually part of the Localism Bill. We debated it and we came to a conclusion. That Bill is now an Act. Of course, the proposal was in the coalition agreement-it featured it as one of a number of matters-and both that agreement and the decision in the Act should be honoured.

The second reality is that the campaigns have actually started because the polling day is only three months away. I just do not think that you can now seek to put the clock back. Of course, this is only a regret amendment, but we should now be willing to test the opinion of the electorate and it is right that in the 11 cities a decision should be made by those electors.

8.15 pm

I note the criticism about the powers of the Secretary of State, but actually those powers simply require a referendum to be held and do not dictate the outcome. It is very difficult for politicians to argue with the ballot box. Electors will make a decision as to what they want. They should be informed about the reasons in favour and those against. Those cases can be made, people can campaign, but people should be allowed to come to their own conclusions.

Local authorities now have the power to decide the outcome-to hold or not to hold a referendum-unless 5 per cent of an electorate call for a referendum. The difficulty with that argument is that in a city with an electorate of 200,000, 5 per cent amounts to 10,000 people. That is a barrier. There has to be a very strong campaign for a mayor to be elected for people to gather 10,000 names out of an electorate of 200,000. That drives the status quo, unless there is a very good reason why people are prepared to campaign and spend time and money in calling for a referendum through gathering petitions. How much better it is if you simply test public opinion, as the Government wish to do.

There are advantages in a mayoral system. I welcome the referendum campaigns because they enable those advantages to be debated. There is a whole set of reasons why I think a mayoral system is right. Mention was made of the noble Lords, Lord Adonis and Lord Heseltine. I am convinced by the arguments both have made-it is partly about leadership, partly about figureheads and partly about connecting the electorate with a person who is democratically accountable for what happens in that city.

However, the argument goes further than that. It is better for a council leader-and I have been one myself, for a period of just over four years-to be elected by the electorate as a whole rather than by a party caucus meeting, which is what happens in practice. In other words, if, for the sake of argument, you have 40 councillors and you are the majority party, you can actually elect the leader of that council-who has

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statutory powers-on 21 votes. I do not think that that is sufficient mandate and I have come to the conclusion that it is better to have a mayoral system where there is an electoral mandate for that person.

The noble Lord, Lord Beecham, talked in terms of the evidence base, and whether it is better. I believe that collectively, the cities of England punch well below their weight. The context of this is devolution into Scotland, into Wales, and into Northern Ireland, and also into London. Tonight we see, in the Evening Standard, that the Mayor of London is urging that he be given power over the railways into London. There is a strong case for that, and indeed, as part of discussions going on with the eight English core cities on a devolution to them, issues around transport are being discussed.

With an elected mayor in each of those 11 cities, where there would also be a cabinet, and ward members, who would implement some of the powers of the Localism Act, not least around neighbourhood planning, I do not see this as simply a matter about a two-thirds vote. I see it as being about renewing democracy, and empowering ward members as part of the Localism Act. However, we will have that debate at a later stage. The question is whether we should test the public view, and in my view, we should. The noble Lord, Lord Beecham, said a moment ago that there is no apparent public support for elected mayors. I draw your Lordships' attention to the very recent referendum in Salford which voted in favour of an elected mayor, and of course the recent decision over Leicester-

Lord Beecham: Would the noble Lord count a turnout of 18 per cent as a vindication of his position that there is a great public interest in this?

Lord Shipley: It is too low, but of course, local elections and leaders of councils are being elected in practice on similar numbers. So no, the point is not material. The fact is that the people of Salford have voted for an elected mayor. It is simply not the case that there is no apparent public support for elected mayors. I believe that we should test the public view. That was agreed as part of the Localism Act, and we should not regret that but should test the public opinion.

Lord Grocott: My Lords, I cannot claim any direct interest in the cities that have been selected for these various orders, though I have lived in the West Midlands for many years. I have a particular interest, almost a responsibility, to mention Birmingham. The House may know that my noble friend Lord Corbett has not been very well lately but he would undoubtedly have been here otherwise, and I know that he would have said that this is a daft idea. I know this because I checked with him when I saw him this morning. Although he takes no responsibility whatever for the arguments that I propose, perhaps this could be taken as, to a degree, a reflection of his views as someone who for many years was an outstanding Member of Parliament for the city of Birmingham.

I must take issue briefly with the comments that we have just heard, not least on the argument about direct democracy as if it is somehow more legitimate if a mayor is elected by the whole population of the area rather than being elected by some other mechanism. This is essentially an argument for a presidential system,

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because I very much doubt whether the noble Lord, Lord Shipley, would say that the Prime Minister has less authority because he is not directly elected by the population as a whole. I, for one, infinitely prefer our parliamentary system, which is basically how our local government system has operated, in much the same way that the Government is decided in the House of Commons. Executive heads are essentially chosen by their peers, and over a period of years their strengths and weaknesses are tested and observed. Although, regrettably, the mayoral system was introduced by a Government whom I supported on most things, it has always seemed to me an attempt to graft a different system from abroad-an alien system sounds so unpleasant-which has no roots in this country. That is the basis of my objection.

I have one or two detailed points to make. The argument that has just been advanced by the noble Lord, Lord Shipley, was that the Government are simply asking local people for their opinions. His position is that it is up to local people to make their minds up. A very skewed question is being put, in the sense that the Government are insisting that these local authorities hold referenda, which seems to be at total variance with all the impassioned speeches we have heard about localism from the Benches opposite. However, it is worse than that, because the Government are insisting that these tests of local opinion shall only be held in those local authority areas which currently do not have a mayoral system. I would have felt slightly more comfortable-but not a lot more-if they had asked one or two of those local authorities that have had experience of this mayoral system over the last 10 years whether they thought it was a good idea to continue with that method of local government. In the one test we have had-in good old Stoke, home of the mighty Potters-the people of Stoke have said, "Thank you very much. We have tried this system out for the past few years and we do not think there is very much to it". I guess that may well be the response of a number of other local authorities should members of the public locally be asked their opinion. However, the Government say, "No, we are not going to ask questions in those areas-only in other areas-and they shall have these referenda whether they want them or not". The only question I want to ask is: where is the demand? There is no evidence of demand that I have seen for locally elected mayors in any of the places where compulsorily they must hold a referendum.

We have already mentioned that the turnout in Salford was 18 per cent, which, as my noble friend on the Front Bench pointed out, and I agree wholeheartedly with everything he said, is hardly a resounding acclamation for the system-and that is the turnout, not the vote in favour. On the turnouts for some of the referenda we have had so far, in Sunderland it was 10 per cent, in Ealing it was 10 per cent, in Southwark it was 11 per cent-which I suppose is an improvement-and two-thirds of the areas have rejected the idea. I hope very much that the ones that are being tested in this compulsory vote will also reject the idea.

As to the cost in these straitened times-which the Government Benches constantly remind us about-it will be £2.5 million for the referendums. That is about a quarter of a million pounds for each one that is held.

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Is this really a priority that local people want in these difficult times? I ask, rhetorically, the two previous speakers who have both led their local authority that, if they had been given a quarter of a million pounds, at what point would they have thought the best way to spend it was to hold a referendum on changing the system of local government.

It is, of course, not only the cost of the referendum but should the vote go in favour, there will be the cost of the reorganisation. I have raised this issue already with the noble Baroness, Lady Hanham, and she said in Committee, rather optimistically, that it would depend on the kind of mayoral system that is adopted, which is true. She said:

"The mayor comes in and it might need to provide him with a room. He will probably need a couple of members of staff".

I think that is fairly unlikely. She continued:

"I do not anticipate there being a huge extra cost to the council as a result of this".-[Official Report, 17/1/12; col. GC 146.]

The noble Baroness is very experienced and respected in local government and we do not know whether she is right or I am right in saying that it will cost a lot more than a room and a couple of officers whatever system gets adopted. I cannot think of why on earth we should want to go down that road and spend that amount of money. Certainly, as someone who does not live in London but who watches the mayoral system as it goes on, I cannot believe that it is cheap. Perhaps it is, I do not know the figures, but I would like to ask the Minister-I gave notice to her office about this-whether she can tell us what the government of London cost in the last year under the old system for its head office administration, not for individual services, and what it costs now. I would bet a few shillings that the cost has not gone down. I hope the figures are there somewhere.

My noble friend Lord Beecham asked: what are the benefits of the system? It has been running for 10 years or so in many councils so we ought to know by now. The Government make grandiose claims about it in the supporting document. The Explanatory Memorandum states that the Government believe that,

So I have to tell the two previous leaders of Newcastle council that, according to the Government, you failed. If you had been directly elected mayors, the place would be zooming.

Lord Bradley: On that point, the acclaimed regeneration of the City of Manchester is widely acknowledged to be on the basis of the stability of the political leadership over the past 28 years, when there have been only two leaders of the council. Businesses and civic institutions work closely with that leadership and have been able to plan, over those years, the regeneration which is a model for cities throughout the country.

Lord Grocott: That is a fulsome testimony which is entirely justified. I do not know of a shred of evidence to show that in the past 10 years London has been far better managed and that far more prestige has been brought to the city than that brought to Newcastle-I mention Newcastle as a name out of the hat- Birmingham or Manchester by the people who led those cities. I could list the other cities as well.

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