If the Government are not prepared to accept this amendment, the least they could do is to make the list in Section 94(4) correspond with the reality of persecution on account of sexual orientation as well as gender, which can be done by order. My noble kinsman replying to a similar amendment at Committee, claimed that an appeal after removal was a satisfactory remedy for those removed to a “safe country”. Could the Minister tell your Lordships how many people who were removed after claiming asylum from a supposedly safe country on the basis of their sexual orientation managed to appeal from abroad, and in how many of those cases they were successful? I know that the Government are very well aware of the widespread persecution of LGBT people, so I assume that they will have kept records of these cases, although I do not expect the Minister to be able to produce them on the spot.

I turn to the third new clause. The purpose is to ensure that an appeal is not treated as abandoned when leave to remain is granted to the appellant. The situation at the moment is that under the provisions sought to be left out of Section 104 of the 2002 Act, this happens automatically, and the result is that the tribunal is prevented from reaching judgments on points of principle that are dealt with in the case. It can happen that a series of cases, all turning on the same principle, are aborted by the Secretary of State in this way, contrary to the interests of justice.

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In the case of Osman Omar, the judgment handed down on 29 November 2012 by Mr Justice Beatson addressed this issue. He resisted attempts by the Secretary of State to argue that the claim was redundant in that she had already granted the claimant further leave to remain. He ruled, in effect, that the Secretary of State cannot keep knocking cases out by settling them on the facts and refusing to litigate on the point of principle. As Mr Justice Beatson said:

“The substantive issue raised by the claimant is an issue which arises regularly. It arose in Francis. It will arise in the case of Ahmed ... which, as I have stated, is listed for hearing at the end of January 2013”.

Therefore, the challenge in these particular cases is to the vires of the regulations, which provide for a fee to be payable for an extension of discretionary leave, but with no discretion for the Secretary of State to waive it in the case of an applicant who seeks leave on human rights grounds but cannot afford the fee because he is either destitute or in receipt only of NASS support. I hope the Minister will agree that it is important for this question to be determined, and that in cases of this kind, it is common sense to leave the matter to the tribunal. I beg to move.

Lord Beecham: My Lords, I have a good deal of sympathy with the noble Lord’s first amendment, but am not perhaps quite as persuaded by the subsequent amendments. However, in any event I pay tribute to the noble Lord, Lord Avebury, for his consistent concern with the problems of a particularly vulnerable group in our society and his very powerful advocacy on their behalf. He has obviously seized the opportunity to bring that concern into this Bill. I object less to that spatchcocking than I did to the previous amendment moved by the Minister in relation to burglary, but perhaps it is not the best forum in which to take these matters forward. I hope that the Minister can go a little further than he appears to have done in correspondence with the noble Lord and at least indicate that this whole area should be reviewed. It is some time since we have had a proper debate around the particularly delicate issues to which the noble Lord referred. While it is probably the case that this is not a matter to be voted on today, it should not be neglected indefinitely and ought to be considered.

Perhaps the Minister could indicate that discussions, not in respect of Third Reading but more generally, could take place around these and allied issues in connection with asylum and immigration matters where they impinge on the presence or otherwise in our country of people who have fled persecution and danger elsewhere, in a context that is outside the legislative framework for the time being. That might be a way forward in which a broad consensus could be reached across the House rather than dealing with it in terms of the amendments that are before us today. Again, I pay tribute to the noble Lord for raising these matters. I hope that can be seen as a first step and not the last step in a process of looking at the issue.

Baroness Hamwee: My Lords, I support my noble friend and add one further thought. In terms of public awareness, I have heard it said that these issues are now at about the same stage that domestic violence

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was about 20 years ago. I think that there would be a good deal more public understanding and sympathy for the sorts of changes that my noble friend has advocated even than there might have been four or five years ago. I think that the public mood is moving somewhat on this. It would be nice for the Government to be ahead of the public mood.

5.45 pm

The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach): My Lords, I cannot promise my noble friend that the Government can be ahead on these issues but I am grateful for the opportunity to debate his amendments. I assure the noble Lord, Lord Beecham, that the Government keep the workings of the asylum process under review. Indeed, it would be wrong not to do so.

Amendment 113D would create a right of appeal whenever someone is refused asylum and granted any form of leave. As a result there would be more appeals against a refusal of asylum for a group of cases where no immediate right currently exists, and multiple appeals from individuals.

As my noble friend Lord Henley acknowledged in Committee, it is an unfortunate consequence of the otherwise very sensible 12-month restriction that some unaccompanied asylum-seeking children will experience delay in bringing an asylum appeal. My noble friend agreed to review the policy in respect of children to ensure that there were no unintendezd consequences. We have completed that review and concluded that this policy, seen in the context of the statutory appeals framework and current economic circumstances, operates as intended. As my noble friend has said, I have written to him to confirm this.

This amendment is to Section 83 of the Nationality, Immigration and Asylum Act 2002, which provides that an individual may appeal against an asylum refusal when leave is granted for a period longer than 12 months. Amendment 113D would remove the 12-month restriction and create a right of appeal against the refusal of asylum regardless of the period of leave granted. It is not unusual for short periods of leave to be extended more than once. Recent case law means that this amendment could create a right of appeal against the earlier refusal of asylum every time further leave was granted. Therefore, this amendment would have serious and undesirable consequences for the existing appeals framework as it could result in multiple fruitless appeals being used to prolong someone’s time in the UK. In the current economic circumstances, it is vital that resources are used where they are most needed. While I recognise that the intention of this amendment is to reduce delay for children and trafficked persons, the consequences for the appeals framework are not justified for the following reasons.

First, the amendment is too broad. It would extend the right of appeal under Section 83 of the 2002 Act to anyone granted leave after a refusal of asylum, not just children and trafficked persons. This would result in additional costs and resources to administer each appeal. Secondly, only a minority of unaccompanied children who claim asylum are affected by this policy in the way described by my noble friend. It would affect only those who are older than 16 and a half

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when refused asylum but granted some other form of leave. As we have said, these children are close to adulthood and have a right of appeal should a decision be taken to remove them after their leave runs out at age 17 and a half. This delay is not unreasonable.

Thirdly, while it is correct that trafficked persons are similarly affected, for similar reasons to those we have given in relation to children we believe that the current policy may be equitable in all the circumstances. Section 83 of the 2002 Act affects only those trafficked persons who claim and are refused asylum. It is important to remember that in all cases before a child or any trafficked person is removed from the UK, they will be entitled to a right of appeal. The Government’s policy ensures that individuals do not have multiple appeal rights over a brief period, possibly raising the same arguments on each occasion as matters may not have evolved since their last appeal. The amendment proposed would undermine this key principle of the Secretary of State’s asylum appeals framework. For the reasons set out above, we are not persuaded that the current policy for appeal rights under Section 83 of the 2002 Act, either for children or more generally, has an impact of the magnitude necessary to justify incurring additional expense in relation to appeals.

Amendment 113E concerns the Secretary of State’s powers to certify, under Section 94 of the Nationality, Immigration and Asylum Act 2002, that removing a person to a safe third country will not breach their human rights where the presumption is that the country to which the person is to be removed is safe. The effect of the certificate is that an appeal can be brought only after the person has been removed. This provision prevents appeals being used to delay removal in hopeless cases. Persons will be removed to a third country only if that country will not remove the person to another country other than in accordance with the refugee convention. If the certificate is challenged by judicial review, the court is required to regard the third country as one where the person’s rights under the refugee convention will not be breached.

Amendment 113E is tabled on the basis that Section 94(8) seeks to oust the jurisdiction of a court to consider the safety of the country of removal. It is, however, unnecessary. The courts are already able to consider whether the person’s human rights might be breached where judicial review challenges the issuing of the certificate. Once removed to the third country, an appeal may be brought and refugee convention issues can be considered. My noble friend asked for some detail here, and I will have to accept his very kind offer to allow me to write to him to give him a response to the data he was seeking.

Amendment 113E also seeks to remove those provisions in Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 that reduce the circumstances in which removal to a safe third country can be frustrated on the grounds of unmeritorious claims about treatment in, or removal from, those countries. The amendment would have a considerable practical impact on removals made to other European countries under the Dublin regulation. That regulation determines which state is responsible for examining an asylum claim. It plays a key role in tackling abuse of asylum

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systems through the phenomenon of “asylum shopping”. Indeed, the value of the Dublin regulation to the UK is clear. Since 2004, the UK has been able to remove more than 10,000 individuals under the Dublin regulation.

It is argued that the amendments are necessary to reflect the terms of the ruling of the Court of Justice of the European Union in the case of NS v Secretary of State for the Home Department, dated 21 December 2011. My noble friend referred to this case. The Government respectfully disagree. The ruling in NS gives useful guidance on the correct approach to fundamental rights as a matter of EU law. However, as a matter of practice, it does not significantly change the approach to domestic legislation. The concept of a rebuttable presumption in legislation when considering the impact of the Human Rights Act is not new. It was firmly established by existing case law from the European Court of Human Rights in KRS v UK in 2008 and from the House of Lords in Nasseri v Secretary of State for the Home Department in 2009. What the Luxembourg court has done in NS is confirm that a similar approach should be taken when it is alleged that there is evidence of the Charter of Fundamental Rights being breached.

I turn, finally, to Amendment 113F. The effect of this amendment would be to allow an appeal to proceed where the appellant has been granted leave by the Secretary of State. The purpose of many appeals is to overturn a decision to refuse to grant leave. Consequently, it is the Government’s position that in the majority of cases an appeal should not proceed where leave has been granted. Currently, Sections 104(4A) to 104(4C) of the Nationality, Immigration and Asylum Act 2002 provide that an appeal cannot proceed where the appellant has been granted leave. The exceptions are where the appeal is brought on the ground of race discrimination or where the appeal is against a refusal of asylum and the leave which has been granted is in excess of 12 months. This is consistent with Section 83 of the Nationality, Immigration and Asylum Act 2002, which was the subject of Amendment 113D. Where the appeal does not fall into these two groups, we do not believe it is necessary or appropriate for it to proceed where leave has been granted. The appeal is unnecessary because leave has already been granted. There is no detriment caused by the absence of a right of appeal which will be cured by this amendment. However, making this amendment would have a detrimental impact as additional rights of appeal would arise, each of which represents an additional cost to the Government and the taxpayer. The increased number of potential appeals will place an additional burden on the tribunal and court systems, which are already dealing with significant numbers of immigration appeals.

We do not believe that preserving an appeal right where leave has been granted is necessarily appropriate. Frequently, the Secretary of State makes a grant of leave while an appeal is pending for pragmatic reasons. This avoids unnecessary litigation at a cost to both parties. Where leave has been granted, an appeal can proceed only on an academic, rather than an individual, basis. The tribunal is primarily a fact-finding tribunal and therefore it is not appropriate for a case to proceed

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before it on an academic basis only. In light of these points, and in the knowledge that I will continue to work with my noble friend and respond to his questions on this issue, I would ask him to withdraw the amendment.

Lord Avebury: My Lords, I am most grateful to my noble friend the Minister for his thorough reply to these three amendments, although—as he would expect—I cannot say that I am entirely satisfied with his response. In the case of Amendment 113D, he did not go into the consequences of giving limited leave to remain to unaccompanied children and trafficked persons—a matter which I tried to outline in moving this amendment. There is room for further examination, and if he is prepared to let me have sight of the review that was undertaken, that would be the most helpful basis on which we might proceed.

As he will have realised, these amendments were all framed by the Immigration Law Practitioners’ Association and it, too, would like to be consulted in any review that will be undertaken in the future on the implications of the present situation for these unaccompanied children and trafficked persons granted limited leave to remain. My noble friend said that the amendment was too broad; we would be perfectly happy if, as a result of further discussions bringing in the legal advice of ILPA, we could agree on a more limited version of Amendment 113D.

With regard to Amendment 113E, removing someone to a supposedly safe third country does not eliminate the right of appeal, but if you have to exercise the appeal from an overseas country with all the disadvantages that that entails in the way of consulting lawyers, obtaining written statements and so on, the right is really not worth very much. The cases we considered mean that the designation of safe third countries is not a satisfactory way of proceeding, particularly when one considers the position of LGBT asylum seekers. I mentioned them in my remarks, but the Minister did not touch on them in his reply. I realise that I was asking for detailed information about what has happened to LGBT asylum seekers who were returned to supposedly safe countries. Maybe we can review the situation once we have that information in front of us.

On Amendment 113F, I mentioned the remarks of Mr Justice Beatson and thought that maybe my noble friend would not have had time to consider that judgment. Perhaps we can pursue the matter in more detail later. He did not respond to the point that, by granting leave to remain in a series of cases that touched on the same matter of principle, the Secretary of State was avoiding any resolution of the matter of principle, which would be helpful in cutting short proceedings of the tribunals in later cases. Therefore, I do not accept what my noble friend said about the saving of time in the courts; I think the reverse is probably true, but again, perhaps we can leave this for further discussion with the benefit of advice from ILPA at a later date. In the mean time, I beg leave to withdraw the amendment.

Amendment 113D withdrawn.

Amendments 113E and 113F not moved.

10 Dec 2012 : Column 902

6 pm

The Deputy Speaker (Viscount Ullswater): Before I call the next amendment, I wish to announce that in the Division on Amendment 113C, there voted Not Content 55, not 54 as announced.

Schedule 16 : Super-affirmative procedure

Amendment 113G

Moved by Lord Ramsbotham

113G: Schedule 16, page 250, line 34, leave out from beginning to end of line 19 on page 251

Lord Ramsbotham: My Lords, I was concerned that timing might be against us getting to this point this evening, because I have an unavoidable engagement to which I must go. Having looked at what was said on the amendments in this group, both at the recommitment and in Committee, I do not feel that there is much more that I need to add. My concern about what is included in the section that I am seeking to have removed is that it is based on perception and not on fact. For example, I learn today that 50% of all cases involving violence are now dealt with outside the courts, which suggests that there is some confusion over where violence should be dealt with. I am very concerned that the word “punishment” should be added like this, because from talking to magistrates and others I know that they are already quite clear what their duty is in terms of the sentences that they have to impose. What we are talking about here is not so much the need to add this initiative to sentencing but looking at and seeing what is actually done with and for those people who receive the sentence.

As I have said before, we are in the dark here because we simply do not know what the Secretary of State has in mind. We have not yet seen the terms of the government response to the probation consultation. We understand that there are going to be commissioners all over the country commissioning community sentences, although we do not know whether they are going to come from the probation service, the voluntary sector, the private sector or whatever. We are in the dark and, frankly, I think it is a great pity that something like this should be left in such an imprecise state. That is why I wish to see the thing removed. There is so much work to be done in this area. Anything that needs to be done should be brought back after further work on the whole area, including study of the probation consultation, has taken place. I beg to move.

Lord Rosser: My Lords, we have an amendment in this group. It is interesting that the Government’s response to the consultation on effective community sentences states:

“We will legislate to place a duty on courts to include in the community order a requirement that fulfils the purpose of punishment for the offender. The court will be able to exercise this duty by imposing a fine instead if it considers that to be appropriate. While we will not specify what requirements courts should impose, on the basis that what is punitive for one offender may not be punitive for another, our expectation is that these would generally be restrictions of liberty that represent to the public a recognisable sanction (such as curfews, exclusion, or community payback). The duty will provide for an exemption in exceptional circumstances where it would be unjust to impose a punitive element”.

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The Government’s response refers to restrictions of liberty such as curfews, exclusion or community payback. The use of the words “such as” implies that a court could impose other requirements that would be regarded as restrictions of liberty. Can the Minister confirm if that is the case? What might the other restrictions of liberty be that would be regarded as punitive? Will he also confirm that if a court imposed as a punitive element something other than a curfew, exclusion, community payback or a fine, that would not be regarded as acting outside the terms of this Bill?

The Government’s response to the consultation on effective community sentencing also refers to a punitive element being a restriction of liberty that represents, to the public, a recognisable sanction. Who is to determine what represents to the public a recognisable sanction? Will it be for the court to decide? If it decides that a punitive element is something other than a curfew, exclusion, community payback or fine, will the court, whether the original court or an appeal court, be regarded as having acted outside the terms of the Bill?

Even the Government’s own response to the consultation states that nearly all respondents indicated that offenders with mental health issues should be excluded from a mandatory punitive element and that many suggested that offenders with learning difficulties, those unable to carry out a punitive requirement because of poor health or addiction, those with personality disorders and young adults with low maturity should also be excluded. Does the Minister also hold that view, and would the number of such offenders exceed the 5% that it has been widely suggested would be the percentage the courts might feel able to regard as covered by the definition of “exceptional circumstances” laid down in the Bill and thus exempt from the Government’s definition of a punitive element?

One rather assumes that the Government’s approach is conditioned by the kind of recent statement made by the Secretary of State for Justice, that he shares public concern that offenders given community sentences often feel they are getting away with it; that they have been slapped on the wrist rather than properly punished. However, if that is the case, who is it giving that impression to the public other than politicians who make statements like that rather than spelling out just what a community sentence is? Two-thirds already include a punitive element, on the Government’s apparent definition.

Published research on short custodial sentences found that many prisoners preferred short sentences over community sentences because they found the latter more challenging. Does the Minister agree or disagree with those findings by the Howard League? Why does he take the view that a rehabilitation element in a community order cannot be at least as challenging to an offender, if not more challenging, than the Government’s version of what constitutes a punitive element?

For someone who has an addiction, learning difficulties or low maturity, or has led or been allowed to lead a thoroughly dysfunctional and disorganised life, having to face up to the realities of their lifestyle or situation through a challenging programme that they have to attend at specific laid-down times as instructed and

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co-operate with, or else risk being taken back to court and sentenced in another way, is at least as difficult as doing community payback or paying a fine related to their means. Yet that apparently is not the view of the Minister. Perhaps he could explain why that is not his view. I hope that he will be able to get a bit further than telling us it is because that is not the view of the tabloid press.

If the current position were changed and virtually all community sentences included a punitive element along the lines that the Government appear to be trying to enforce, does the Minister accept that that could be at the expense of rehabilitation elements in a community order? If a punitive element had to be included in an order that currently incorporates what the Government regard as only a non-punitive element, will the Government be providing additional resources to the probation services to cover the cost of this additional requirement, or will probation service budgets be left as they are so that, in order to remain within budget, those services may have to drop the rehabilitation element from the order to enable the cost of the additional punitive element to be paid for within the laid-down budget? What reassurances can the Minister give that this will not happen? The loss of the rehabilitation element in the order where deemed necessary will not contribute anything towards reducing reoffending.

The fact that the Minister does not appear to regard community order requirements involving challenging programmes for rehabilitation as at least on a par, in terms of restrictions on liberty and difficulty for offenders, with unpaid work in the community, a curfew or a fine—which are about the only things the Minister regards as in any way imposing a restriction on liberty—is a step backwards and simply seems to confirm, not challenge, the view that community orders are “soft”. Where unpaid work, a curfew or a fine is appropriate, that is what the offender should be given, but not where it would be inappropriate. The reality is that the Minister has decided that in some 95% of cases involving a community order as a sentence, unpaid work, a curfew or a fine is appropriate. It is usual to hear the facts of a case before coming to a conclusion on what is the appropriate sentence, but that is not what the Government are doing as they seek to specify what must be included in a community order in 95% of cases.

The Government appear to have lost confidence in the courts at a time when crime is falling, without explaining why, other than their own unwillingness to challenge the perception they believe the public hold that current community orders are soft. The reality is that the most important thing the public want to see delivered by a sentence is a reduction in reoffending, and an end to reoffending by the offender. I hope that even at this late stage the Minister will be prepared to change his stance, or at least review it, and support my amendment, which includes a range of existing programmes and orders as being within the Government’s punishment requirement in the Bill.

Lord Woolf: My Lords, I have difficulty with these provisions, for very much the same reasons as my noble friend Lord Ramsbotham and the noble Lord, Lord Rosser.

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I have put forward amendments myself because I feel that if we are not going to have the clean solution proposed by the noble Lord, Lord Ramsbotham, of just getting rid of these provisions—which would certainly achieve everything I want—we have to try more delicate and specific surgery to produce something that the courts can apply practically. To an extent, the amendment in the name of the noble Lord, Lord Rosser, helps in that regard, so as an alternative I would be prepared to accept that.

To clarify my reasoning, proposed new subsection (2A) of Section 177 of the Criminal Justice Act 2003 reads:

“Where the court makes a community order, the court must … include in the order at least one requirement imposed for the purpose of punishment”.

Whether the requirement is imposed for the purpose of punishment or for some other purpose is presumably to be decided by the judge. Under our law, once a person has been convicted, it is the judge’s task to decide what punishment is appropriate. If he comes to the view that it does involve punishment, I would like the Minister to confirm—if I am correct—that the view of the judge will be respected and it is not suggested by the Government that that is a matter with which a higher court would interfere. On the other hand, if that is not so and the decision as to whether the requirement has been imposed for the purposes of punishment is to be made objectively, I would like the Minister to assist me as to what criteria it is to be judged by. If I were that judge, my ordinary reading would be that as these community sentences are imposed as part of the sentencing process, they are all part of the punishment that the court considers appropriate.

My general contention is that we have to have clarity as to what is to happen. Assuming what I have said is not right, who determines the punishment? Does the defendant who is banned from attending a football match determine it or does the court? I am happy to see that the Minister may well be agreeing with me—at least on that matter—but if it is the court, that must be clearly set out.

6.15 pm

If that is so, what we have to deal with is how to apply “exceptional circumstances”. If the judge thinks it is a punishment, presumably he never gets involved in the question of whether or not there are exceptional circumstances. If he takes the view, which I am suggesting that he could well take, that all community sentences are in fact a punishment because they involve the defendant doing something that he has no choice about, I cannot how see how “exceptional circumstances” fits in. That is part of the explanation for the first amendment that I propose, which is to leave out of the Bill the whole requirement that there should be exceptional circumstances. The schedule would then read:

“Subsection (2A) does not apply where there are circumstances which … relate to the offence or to the offender … would make it unjust in all the circumstances for the court to comply with subsection (2A)(a)”.

If the suggestion is that it is for the judge to determine, the word “exceptional” and the provisions of proposed new subsection (2B) are superfluous.

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The other amendment in my name in this group is Amendment 113GB, which would insert:

“Subsection (2A) does not apply where in the opinion of the court compliance with that subsection would reduce the likelihood that the order will prevent reoffending by the offender”.

The purpose of the amendment is to deal with a situation where, if something has to be done that the judge thinks would not be appropriate because of the earlier provisions and which would make it more likely that the offender would reoffend than otherwise, again that means that the subsection does not have the effect of limiting the judge’s discretion.

I should have indicated that I have proposed these amendments with the support of the Prison Reform Trust, of which I am chairman. The Prison Reform Trust strongly supports the position of the Government in seeking to reduce reoffending. Its regret about the language used in the schedule, without the amendments to which I have referred, is that the Government’s good intentions will be defeated by language, if that language were to be read in a way that meant that the judge was required to impose a sentence which he did not consider justice required to be imposed upon an offender.

Baroness Hamwee: My Lords, I have Amendments 113GZB and 113GC in this group, to which my noble friend Lady Linklater has added her name. These also deal with the term “exceptional” and with the application of the section in the Criminal Justice Act 2003 that provides for the court to have regard to the purposes of sentencing, which are listed as:

“the punishment of offenders … the reduction of crime (including its reduction by deterrence) … the reform and rehabilitation of offenders … the protection of the public, and … the making of reparation”.

I do not seek these amendments to exclude punishment from the matters to which the court must have regard and I acknowledge that society must deal with offenders in such a way as to win and retain the confidence both of victims and the general public. However, I cannot extrapolate from the research referred to in the impact assessment that where there is a punitive element, there is less reoffending.

Reading through the impact assessment yesterday, it struck me that the sentences in question, which the impact assessment prays in aid, will have been tailored to the offender by the court. In other words, they will be much more bespoke than it seems we are being asked to agree. Certainly, there is no comparison with a control group. Almost by definition, there cannot be a control group in these circumstances. We are told in the impact assessment that the rationale for intervention is to give tools to sentencers. As we have heard—not only tonight—we already have an extensive toolbox and we are adding to it with the welcome provisions on restorative justice. However, the theory of having certain tools available and their availability in practice may not always be quite the same. Public confidence comes from reducing reoffending and crime overall and we have heard what victims want. At the last stage of the Bill, I referred to research by the Restorative Justice Council and Victim Support, which amounts to victims wanting to be sure that “he does not do it again”.

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The impact assessment also acknowledges that because community orders must be,

“proportionate to the offence committed, delivering a clear punitive element to every community order may, in some cases, cause certain requirements to be substituted by punitive ones”.

This worries me greatly. The Government tell us that some requirements may be labelled punitive, but in fact would be rehabilitative or become rehabilitative. The Minister used the example of requiring someone to get up every morning to go to an educational course. By the end of it, that person might have found it was a good thing, so it will have moved from punishment to rehabilitation. As I have said before—and I do not resile from this—I find both the possible substitution and the labelling worrying: for instance, labelling education or mental health treatment as punitive. The noble Lord, Lord Rosser, has spoken to his amendment, listing the types of community order which may amount to punishment. I depart from others on this because I do not think that saying the punishments “may include” takes us a lot further forward. If it is to send a message to the sentencers, then the new subsection (2A) sends a stronger message, in effect saying that a fine is not a punishment. I realise that we did not focus much on this at the last stage.

Without spending long on this, I very much support Amendment 113GB from the noble and learned Lord, Lord Woolf. This expresses what I for one have not been able to articulate previously. At the last stage and on other occasions we have talked a lot about the characteristics of offenders and their circumstances. We know about mental health problems and substance abuse, which so often underlies them. Other noble Lords will have seen a new report from the Criminal Justice Alliance, drawing attention to the mental health treatment requirement and its underuse. That is a pity, because the very prevalence of mental health problems means such an offender is not exceptional. In Committee, the Minister stated that,

“the courts can tailor any of those requirements to ensure that they do not have a disproportionate impact on offenders”.—[

Official Report

, 13/11/12; col. 1428.]

I do not entirely follow how the “tightly defined threshold”—as he described it—ensures that the requirements do not have “a disproportionate impact”. My logic is too confused even for me, but I did not quite follow the argument.

The Minister also stated:

“Nothing in the Bill seeks to undermine the judgment and flexibility of the judiciary, but it puts rehabilitation as a key objective”.—[Official Report, 13/11/12; col. 1429.]

Surely it must affect the hierarchy of sentencing purposes and principles and therefore affect the court’s flexibility.

The noble and learned Lord referred to using delicate surgery on the clause and his scalpel has excised the word “exceptional”. As an alternative, my term “particular” is drafted in the hope that in presenting the Government with a menu, they might be tempted to choose one of them instead of rejecting everything. It is a little less extreme than complete deletion, but the noble and learned Lord’s point about criteria is, of course, the important one.

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My Amendment 113GC also refers to Section 142 of the Criminal Justice Act, to which I have already referred, about purposes of sentencing. At the last stage my noble friend gave an assurance, saying:

“Let us be clear: of course the five principles are intact”.

However, he went on to say,

“why bring legislation if we do not intend to change things?”

Hansard then reports him as saying:

“We do intend to chance things”.—[

Official Report

, 13/12/12; col. 1432.]

I do not think it meant that.

My noble friend twice said that it was “not the Government's intention” to,

“jeopardise the prospect of rehabilitation”,

or to,

“detract from the court's existing obligation to have regard to the five purposes”.—[

Official Report

, 13/11/12; col. 1435.]

It may not be the Government’s “intention”, but I fear that the words of the Bill detract from the five purposes and create a hierarchy. They would require the courts to bring a different approach to sentencing and—as I have already said to the Minister outside the Chamber—I hope that at least he can put on the record some further assurance that is firmer than saying it is “not the Government’s intention” and persuade your Lordships that these words do not do what I fear.

Baroness Butler-Sloss: My Lords, I must first apologise for not being present at the beginning of this part of the debate. I cannot see the point of Part 1 of Schedule 16. It really is not necessary. It owes more to the requirement of Government for the perception of the public and the press rather than the reality that a community order is in fact a punishment. I said this at greater length in Committee, so I will not go into it now. A community order is undoubtedly a punishment if it requires somebody to do or not do something, is compellable and the failure or refusal to do it has criminal sanctions. To distinguish between one sort of punishment or another is a really impossible situation. Some punishments will be more severe than others, there is no doubt about that, but the Government are pandering to perception rather than looking at the reality of what the judges and magistrates are doing.

6.30 pm

There is one particular issue: I strongly support the noble and learned Lord, Lord Woolf, on the word “exceptional”. I do not really mind whether the noble Baroness, Lady Hamwee, gets “particular”—I do not mind what the word is—but I must tell the Minister that the effect of “exceptional” will be treated by judges as meaning “exceptional”. That is, I gather, what is wanted. That means that anybody suffering from mental health issues—a very large number of people commit crimes and come through the courts who suffer from mental health issues—will not be treated by the courts as exceptional because they are standard. One only has to look at the prisons and the people coming through the courts to see the number of people with drink, drug or mental health problems who cannot be dealt with under subsection (2B) because what is happening to them is not exceptional. Whatever the Minister may say, he must listen to the fact that the

10 Dec 2012 : Column 909

word “exceptional” will be treated by the judges and the magistrates as “exceptional”. In conclusion, the whole of Part 1 of Schedule 16 is not needed but, if it is to come in, at least take out the word “exceptional”.

Baroness Linklater of Butterstone: My Lords, I add my voice in agreement with much of what has already been said. What my noble friend Lady Hamwee did in drawing our minds back to the Criminal Justice Act 2003 in particular was very helpful for the purposes of sentencing. The noble and learned Lord, Lord Woolf, speaks words of wisdom and we should pay serious heed to him. He pointed out that the overarching requirement of a sentence should be decided by the judge on what is appropriate. Ultimately, I suppose that it follows that it should prevent reoffending and if the punitive element fails to meet that test it is worthless. As was made clear when we debated this in Committee, every community order is a form of punishment so the punitive element that the Government seek is de facto present. Anything additional intended to be somehow more punitive for its own sake is unnecessary, except possibly as a political gesture, and it will fail the test of reducing reoffending anyway. As the noble and learned Baroness, Lady Butler-Sloss, said in Committee, it is also “profoundly unattractive” as an idea. I liked that term very much.

The Minister has got it wrong if he believes that this is what the British public want to see happen. Indeed, there is ample evidence to show from polling that what the British public want from sentences, particularly expressed by those who have been victims of crime, is that it does not happen again. Retribution or vengeance is not sought. The Government maintain that the caveat of “exceptional circumstances”, when a specifically punitive order can be dispensed with, is tightly defined. Yet we have just spent the last 20 minutes realising that nobody can define what it is sought—the definition cannot be pinned down. This was emphasised by the noble and learned Lord who found in the past that use of “exceptional” caused nothing but confusion—he said so eloquently. For the large number of offenders for whom there is an additional punitive requirement, this may be inappropriate and even increase the likelihood of breach and so on.

The reality of a purely punitive requirement on its own principally represents the Government’s gesture of what Chris Grayling said was putting punishment back into sentencing. That is what it comes down to. It interferes with the freedom of sentencers to set an appropriate sentence based on the facts. That is a serious deficiency. We undermine judicial discretion at our peril. It also fails to safeguard those defendants with particular support needs, whether those are mental health, health needs, learning difficulties, drug addiction et cetera, to name but a few. Of course, the fact is that it is precisely this range of such support needs that represents the norm in the prison population. They are not exceptional at all—exactly what the noble and learned Baroness, Lady Butler-Sloss, just said.

To impose a punitive requirement when the offender has these difficulties without also addressing the problems constructively would clearly be unjust. I could go on further but I will finish by saying that there was very

10 Dec 2012 : Column 910

important and interesting work done for the Government by Helen Bewley. She concluded that in fact punishment probably means a curfew, a fine or unpaid work. Her work demonstrates that punitive requirements on their own have no impact at all on the likelihood of reoffending but simply reduce the number of reoffences committed. The most effective outcome was from a combination of supervision with another requirement, with a punitive element added on. If the Government themselves acknowledge the risk that undermines the very rationale for such punitive orders, particularly if used on their own, how on earth can their use in every community order possibly be justified? Indeed, the likelihood instead is more offending, breaches and a generally less safe society—the very antithesis of what is intended.

Lord McNally: My Lords, sometimes I think that debates in this House are like two flotillas of ships passing in fog and not noticing each other. Most of the debate we have heard tonight we heard at Second Reading and in Committee. I can only again express my surprise at noble Lords who I know are deeply committed to this area of the criminal justice system. We have a situation where a Conservative Prime Minister expresses his complete commitment to the concept of community sentencing and a Conservative Lord Chancellor commits himself entirely to the concept of rehabilitation and bringing those ideas into legislation. We have now had three long debates on these issues; I will again try to explain where the Government are coming from but, in the terms that noble Lords have put it, I fear I will fail to convince them again.

The concept of punishment is part of—not separate or left on its own from—what I believe is a very worthwhile package put forward in a flexible way that fully respects the independence and judgment of the court. We keep to the word “exceptional” because without it there would be the opportunity to ride a coach and horses through what we are trying to do, which is to create a tougher system of community sentences that will produce greater public confidence. Let me put that in context: in March, when these proposals were first announced and the Prime Minister announced his support for the concept, Mr Sadiq Kahn, Labour’s Shadow Justice Secretary, said,

“Cameron cannot claim these measures as his own. We support community sentences that effectively punish and reform appropriate offenders because we were legislating on tougher community sentencing long before David Cameron”.

It really is not fair to start trying to split the points that have been made about judicial discretion, which is there, nor are these free-standing punishments. It has been suggested that Part 1 of Schedule 16 is totally unnecessary and counterproductive to achieving the rehabilitation revolution. It has been suggested that there is no evidence to support requiring courts to impose punishment on offenders as part of community sentences. It is on the basis of such arguments that the noble Lord, Lord Ramsbotham, is again proposing that we do away with Part 1 of Schedule 16 entirely.

We are also considering Amendment 113GA. This would specify a list of requirements that courts might include in a community order as the punitive element. I am tempted to remind the noble Lord, Lord Rosser, that, as I have said before, the Labour Party has

10 Dec 2012 : Column 911

claimed to have punishment in community orders as part of its programme long before David Cameron became a convert.

The evidence that underpins the provision comes from victims and members of the public. Time and again, surveys have found that victims and the public see punishment as a critical purpose for community orders to deliver. I will quote only two of many. An ICM survey of victims of non-violent crime, carried out for the Ministry of Justice in 2007, found that punishment is seen as the most important part of a sentence, followed by payback to the community and then rehabilitation. More recently, research on community orders carried out this year by Victim Support and Make Justice Work found that victims,

“believe strongly in punishment and public protection”,

as the purpose of sentencing.

However, the evidence shows that the public are not confident that community orders are effective at delivering that punishment. For example, a survey carried out by Policy Exchange in 2010 found that 38% of the public perceive community orders to be soft, and a further 22% believe they are “weak and undemanding”. Similarly, the Opposition’s 2008 review of crime and justice found that the public saw community orders as a soft option, and that 90% of the public agreed that community orders should involve paying back to the community.

I remind noble Lords, as I did when the House last considered these provisions, that many of those given community orders have not committed minor offences. Some will have narrowly avoided custody. Some will have caused significant physical or mental trauma to victims through assaults. Others will have caused financial or emotional damage through theft, burglary or fraud. As a matter of principle, this Government believe that offences serious enough to cross the community order threshold should result in punishment. That is a principle with which I believe victims and the public would entirely agree. However, I do not believe that the existing community order framework gives victims and the public confidence that community orders effectively punish offenders. That is the reason we are introducing this provision.

I turn to the second concern that noble Lords have raised, which is that the provision will put the rehabilitation of offenders at risk. This will allow me to respond to the Amendment 113GB, in the name of the noble and learned Lord, Lord Woolf, which would disapply the imposition of a punitive element if the court believed that this would reduce the likelihood of preventing reoffending. Again, I will start from what victims and the public say. Of course the public do not want community orders to focus solely on punishment. The research by Victim Support and Make Justice Work, for example, found that neither victims nor the public wanted punishment to exclude efforts to rehabilitate and reform offenders. There are two important points I want to make here. One is about the public legitimacy of community orders. If the public are not confident that community orders are effective at punishing offenders, we cannot expect them to support our efforts to make them more effective at rehabilitating offenders. The second is that the public clearly recognise that this is not an either/or question. Community orders need to

10 Dec 2012 : Column 912

tackle the causes of reoffending but they also need to provide punishment. It is entirely possible for them to do both. For that reason I would argue strongly against the suggestion that a focus on punishment will prevent us from delivering improvements in reoffending rates.

6.45 pm

Nothing in this provision prevents a court imposing a requirement that delivers both punishment and rehabilitation. Nor does the provision stop a court imposing multiple requirements to deliver these purposes. What the new provision does is make clear that courts must be confident that the community order they are handing down represents a punishment to the particular offender before them. The court will still be able —indeed will be under a legal duty, once it has imposed a punitive element—to ensure that the requirements imposed are the most suitable for that offender. These are not empty assertions. They are borne out by the research on this issue that the Ministry of Justice commissioned from the National Institute of Social and Economic Research. That study found no evidence to suggest that adding a curfew or community payback—two requirements which sentencers tell us they would most often consider punitive—would have a detrimental effect on reoffending.

Indeed, it found that combining certain types of requirement, such as supervision, with a curfew or community payback, can reduce the number of reoffences in the first and second year after committing the offence. That suggests strongly to me that this provision does not require the addition proposed by the noble and learned Lord, Lord Woolf. Imposing a requirement that, in the court’s opinion, serves the purpose of punishment does not mean replacing requirements that deliver rehabilitation. As the evidence shows, requirements that are often thought of as punitive can actually enhance rehabilitation when combined with other requirements. I hope this will persuade noble Lords that the community order framework can balance punishment with rehabilitation, without putting at risk reductions in reoffending.

A further concern that noble Lords have raised is that our “exceptional circumstances” exemption to the main proposition is too narrow. The noble and learned Lord, Lord Woolf, and my noble friend Lady Hamwee have tabled Amendments 113GZA and 113GZB proposing that we either leave out the word “exceptional” or replace it by “particular”. I hope that I can answer these concerns by demonstrating that the flexibility of the community order framework affords the courts a great deal of freedom to make reasonable adjustments to fit the circumstances of a particular offender. Nothing in these provisions changes that. Courts will be able to consider which of the 13 current community order requirements, or a fine, might be a just and appropriate means of fulfilling this duty. A court will still be able to tailor any of those requirements to ensure that they do not have a disproportionate impact on offenders.

In short, these provisions will not prevent courts imposing requirements that are focused on the offender’s rehabilitation or imposing a combination of requirements that is most suited to the offender’s needs. It is because of the flexibility of the existing community order framework that there is likely to be only a narrow

10 Dec 2012 : Column 913

range of circumstances in which a court might not consider it just to impose a requirement that meets the purpose of punishment. That is why the current clause has a tightly defined threshold of “exceptional circumstances”. It reflects the fact that nothing in the clause changes the flexibility that courts already have to ensure that punishment is matched to a particular offender’s circumstances. Substituting “exceptional circumstances” by “particular circumstances” or simply “circumstances” would significantly lower the threshold at which courts could decide not to impose a requirement that fulfils the purpose of punishment. I have already set out the evidence of public attitudes to community orders. I do not believe that the public would accept that a significant minority of offenders receiving community orders do not receive a requirement that delivers punishment.

I turn to points that have been made about what constitutes a punitive community order requirement. The noble Lord, Lord Rosser, has proposed that we amend the provision to list what, in his opinion, constitutes a punitive requirement. This idea has some appeal: indeed, our consultation on these provisions originally proposed that courts should be required to include specified elements in every community order. However, respondents to that consultation made several important points about this. They said that such a list would fetter judicial discretion and would ignore the fact that what is punitive for one offender might not be for another. For those reasons we have moved considerably from our original proposal and decided to ensure that courts retain the flexibility to choose which requirement would be a proportionate and appropriate punishment for an individual offender.

I do not propose to get into the detail of what the noble Lord has included in his list because we do not want a list. But, as I have said, we have decided that the right way forward is to let the courts decide what will represent punishment for the offender before them. Only the courts will know the full facts of the case and are ideally placed to make the judgment. This does not trample on judicial discretion; it preserves it.

Finally, Amendment 113GC, tabled by my noble friend Lady Hamwee, would make explicit in the legislation that nothing in the new provisions will affect the statutory purposes of sentencing as set out in the Criminal Justice Act 2003. I understand that she would prefer this to be enshrined in statute rather than to accept an assurance that this will not be the case.

The Criminal Justice Act 2003 sets out for the first time the five purposes of sentencing, namely, punishment, crime reduction, reform and rehabilitation, public protection and reparation. The courts are required by law to have regard to these when sentencing offenders, subject to certain exceptions such as where the sentence is fixed by law. This will not change: nothing in the Bill impacts on these provisions. All that we are doing is to provide that unless there are exceptional circumstances all community orders must include a requirement imposed for the purpose of punishment or to be accompanied by a fine. This will not affect the duty of the court to have regard to all the purposes of sentencing in every case. I am afraid that I cannot agree that we

10 Dec 2012 : Column 914

need a statutory provision to make this clear. That would be unnecessary and superfluous, and accordingly not good law. I very much hope that my noble friend can be reassured on that point.

Returning to the main purpose of Part 1 of Schedule 16, I believe that the inclusion of a punitive element in community orders is a principle which the vast majority of members of the public would support. As the evidence makes clear, victims and the public want to see community orders that tackle the causes of offending and provide a proper sanction for the offence. But they are not confident that community orders always provide an effective punishment. To strike out that provision would be to ignore this evidence. To disapply the provision in the way proposed, or to extend the circumstances in which it would not apply by amending the words “exceptional circumstances”, would seriously undermine the policy.

These amendments would risk a continued lack of public confidence in community orders, without which we cannot expect to make the case for improving our efforts at rehabilitation. To amend the provision in the way proposed by the noble Lord, Lord Rosser, would be unnecessarily to limit the freedom of the courts. The changes we have made to our original consultation proposal are entirely because we have recognised the importance of courts choosing requirements that fit the circumstances of the offence and of the offender.

I hope I have reassured noble Lords that nothing we are proposing will affect the existing statutory duty on the courts to have regard to all the purposes of sentencing when dealing with the offenders who appear before them.

Let me make a personal point on this matter. As regards the point made by my noble friend Lady Linklater, certainly this is not retribution nor is it violence. This Government have diverted treatment for offenders and prisoners suffering from mental health problems and they are given special priority to drug treatment. They have brought in rehabilitation of offenders as a statutory responsibility. As I said at the beginning, we have a Conservative-led coalition in which both the Prime Minister and the Lord Chancellor have set their hands to a process of rehabilitation that is tied to community sentencing. I venture to suggest that those two aspects of policy would not have been the priority of the previous Labour Government, as Mr Sadiq Khan indicated. However, it gives us a chance.

Throughout that reply, I hope that the noble and learned Lords, with their judicial experience, will have noted the continuing emphasis I have made on the responsibilities of the court and the judiciary, and the flexibility of the powers that are being given. I put it to noble Lords who have spoken in this debate, some of whom have been my allies in many fights in this area, that to oppose what is in this section of the Bill is to look a considerable gift horse in the mouth in terms of improving our criminal justice system. I sincerely hope that the noble Lord, Lord Ramsbotham, will withdraw his amendment. If he does not, I certainly would ask the House to vote against the amendment with some passion.

10 Dec 2012 : Column 915

Baroness Linklater of Butterstone: My Lords, perhaps I may quickly say that I never used the word “violence”. The word I used was vengeance.

Lord Ramsbotham: My Lords, I thank all those who have spoken in this debate. I am sorry that the Minister ended in the way that he did. As I said at recommitment, if the Prime Minister had been absolutely four-square behind the rehabilitation revolution, the speech that he gave would have been different. So much of that speech was in the opposite camp. It was the toughness agenda. I quoted great chunks of it at recommitment.

One of my problems with all this is that no one is keener on the rehabilitation revolution, and the prevention of reoffending and getting this right, than I am. However, I find a curious division between, on the one hand, the rehabilitation revolution and, on the other hand, all this punitive element as being evidence of a confusion which needs to be eliminated, not least on behalf of the people who have to prevent reoffending. I am talking about probation officers, prison officers and others who are unclear as to exactly where the direction is.

The Minister said several times that the courts must decide. Of course, they must. Currently, the courts know the form, as we have heard over and over again. Therefore, what is the point of telling them something that they already know and are already doing? It is unnecessary. If this proposal is defeated tonight, I hope that at least the Minister will listen to what has been said during the debate and that perhaps we may have some further reconsideration of Schedule 16, which has come late in this Bill and includes much that is in need of urgent attention. In particular, we must not forget the point that it is no good just saying that something is punitive, if what you want to do with and for offenders cannot be delivered. We still have not had confirmation that that can be delivered.

I have listened with great care to what the Minister has to say and I have considered all the evidence in front of me. I wish to test the opinion of the House.

6.58 pm

Division on Amendment 113G

Contents 32; Not-Contents 156.

Amendment 113G disagreed.

Division No.  2

CONTENTS

Aberdare, L.

Brookeborough, V.

Butler-Sloss, B.

Chester, Bp.

Craig of Radley, L.

Falkland, V.

Faulkner of Worcester, L.

Finlay of Llandaff, B.

Flather, B.

Hameed, L.

Hollins, B.

Hoyle, L.

Hughes of Woodside, L.

Kennedy of The Shaws, B.

Kirkhill, L.

Laird, L.

Layard, L.

Lister of Burtersett, B.

Listowel, E. [Teller]

Low of Dalston, L.

Martin of Springburn, L.

Masham of Ilton, B.

O'Neill of Bengarve, B.

Patel, L.

10 Dec 2012 : Column 916

Radice, L.

Ramsbotham, L.

Richard, L.

Saltoun of Abernethy, Ly.

Stern, B.

Walpole, L.

Wigley, L.

Woolf, L. [Teller]

NOT CONTENTS

Addington, L.

Ahmad of Wimbledon, L.

Alderdice, L.

Allan of Hallam, L.

Anelay of St Johns, B. [Teller]

Ashcroft, L.

Ashton of Hyde, L.

Astor of Hever, L.

Attlee, E.

Avebury, L.

Barker, B.

Bates, L.

Benjamin, B.

Berridge, B.

Blencathra, L.

Bonham-Carter of Yarnbury, B.

Bowness, L.

Bridgeman, V.

Brinton, B.

Brooke of Sutton Mandeville, L.

Brougham and Vaux, L.

Browning, B.

Burnett, L.

Buscombe, B.

Byford, B.

Caithness, E.

Cathcart, E.

Cavendish of Furness, L.

Colwyn, L.

Cope of Berkeley, L.

Crathorne, L.

Crickhowell, L.

De Mauley, L.

Dear, L.

Dholakia, L.

Dixon-Smith, L.

Dobbs, L.

Doocey, B.

Dykes, L.

Eaton, B.

Elton, L.

Falkner of Margravine, B.

Fearn, L.

Feldman, L.

Forsyth of Drumlean, L.

Framlingham, L.

Freud, L.

Garden of Frognal, B.

Gardiner of Kimble, L.

Gardner of Parkes, B.

Garel-Jones, L.

Geddes, L.

German, L.

Gold, L.

Goodlad, L.

Goschen, V.

Griffiths of Fforestfach, L.

Hamilton of Epsom, L.

Hanham, B.

Henley, L.

Hereford, Bp.

Heyhoe Flint, B.

Hill of Oareford, L.

Hodgson of Astley Abbotts, L.

Hooper, B.

Howe, E.

Hunt of Wirral, L.

Hussain, L.

Hussein-Ece, B.

Jenkin of Roding, L.

Jolly, B.

Kirkwood of Kirkhope, L.

Knight of Collingtree, B.

Kramer, B.

Lawson of Blaby, L.

Lexden, L.

Lindsay, E.

Lingfield, L.

Liverpool, E.

Loomba, L.

Lothian, M.

Luke, L.

Lyell, L.

McColl of Dulwich, L.

McNally, L.

Marland, L.

Marlesford, L.

Mawhinney, L.

Mayhew of Twysden, L.

Moore of Lower Marsh, L.

Naseby, L.

Neville-Jones, B.

Newby, L. [Teller]

Noakes, B.

Northbrook, L.

Northover, B.

Norton of Louth, L.

Oakeshott of Seagrove Bay, L.

O'Cathain, B.

Patten, L.

Perry of Southwark, B.

Phillips of Sudbury, L.

Plumb, L.

Popat, L.

Randerson, B.

Rawlings, B.

Razzall, L.

Redesdale, L.

Rennard, L.

Ribeiro, L.

Roberts of Conwy, L.

Roberts of Llandudno, L.

Rodgers of Quarry Bank, L.

Rogan, L.

Roper, L.

Scott of Needham Market, B.

Seccombe, B.

Selborne, E.

Selkirk of Douglas, L.

Selsdon, L.

Sharp of Guildford, B.

Sharples, B.

Shaw of Northstead, L.

Sheikh, L.

Shephard of Northwold, B.

Shutt of Greetland, L.

Smith of Clifton, L.

Steel of Aikwood, L.

Stephen, L.

Stewartby, L.

Stoneham of Droxford, L.

Stowell of Beeston, B.

Strasburger, L.

Strathclyde, L.

Taylor of Goss Moor, L.

Taylor of Holbeach, L.

Teverson, L.

Thomas of Winchester, B.

Tope, L.

10 Dec 2012 : Column 917

Tordoff, L.

Trefgarne, L.

Trimble, L.

True, L.

Tugendhat, L.

Tyler, L.

Ullswater, V.

Verma, B.

Waddington, L.

Wakeham, L.

Wallace of Saltaire, L.

Wallace of Tankerness, L.

Warsi, B.

Wasserman, L.

Wei, L.

Willis of Knaresborough, L.

Younger of Leckie, V.

7.10 pm

Amendments 113GZA to 113GC not moved.

Care Services: Winterbourne View

Statement

7.11 pm

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, with the leave of the House I shall now repeat the Statement made earlier today in another place by my honourable friend the Minister for Care Services on the subject of the final report on Winterbourne View.

“With permission, Mr Speaker, I wish to make a Statement about Winterbourne View. The scandal that unfolded at Winterbourne View was devastating. We were all rightly shocked, angered and dismayed by the appalling abuse uncovered by the “Panorama” programme in May 2011. Straight after the programme was aired, my predecessor, the right honourable Member for Sutton and Cheam, commissioned an in-depth review, to make sure that we learnt lessons and took action. Today I am publishing that review’s final report.

The abuse at Winterbourne View was criminal. Staff whose job was to care for people instead routinely mistreated and abused them. Management allowed a culture of abuse to flourish. Warning signs were not picked up by health or local authorities, the residents’ families were not listened to, and concerns raised by a whistleblower went unheeded. The fact that it took a television documentary to raise the alarm itself speaks volumes. However, the abuse uncovered at Winterbourne View is only part of the story. This case has made us look again at how we care for one of society’s most vulnerable groups of people.

Winterbourne View hospital provided care for people with either learning disabilities or autism, together with either mental health problems or challenging behaviour. Around the country, at any one time, there are around 15,000 people with similar needs, around 7,000 of whom live with their families. Of the remainder, many live in the community, but around 3,400 are in in-patient settings. Their behaviour can sometimes pose a risk to themselves, and sometimes also to others. There will therefore be times when they require intensive treatment and support.

However, hospitals are not where people should live. There are far too many people with learning disabilities or autism in hospital, and they are staying there for too long—sometimes for years. We should no more tolerate people being placed in inappropriate care settings than we would people receiving the wrong cancer treatment. What is necessary is nothing short of a fundamental change of culture.

10 Dec 2012 : Column 918

We have known for over a decade that, with the right support, the vast majority of these people can live happy, fulfilled lives, close to their families and in their own communities. Much of what we know works in this area is based on the pioneering work of Professor Jim Mansell. Professor Mansell helped us set up our review, and supported us right up until his tragic death in January this year. I would like to pay tribute to him for his tireless work in this area, and for the huge contribution he has made to improving people’s lives.

We know what change is needed. It is now time to make sure it happens. Today we are setting out how we will address poor care and abuse, and ensure that excellent care becomes the norm.

First, we will send a clear message to those who provide care. Owners, boards of directors and senior managers must take responsibility for the quality and safety of their services and when they fail, they should feel the repercussions. A number of frontline staff at Winterbourne View rightly received criminal convictions, but the case also revealed weaknesses in our ability to hold those higher up to account. We will address this. We will examine how corporate bodies and their boards of directors can be held to account under law for the provision of poor care, and for any harm experienced by people using their services. We will also explore whether we can make sure directors are fit and proper persons to oversee care, including consideration of their past record with other providers.

We will also tighten regulation. CQC will include reference to the best model of care in its revised guidance about compliance and will consider it as part of the regulation and inspection of services from April next year. CQC will also check whether all providers are following established national guidance or similar good practice, including by carrying out unannounced inspections involving people with learning disabilities or autism and their families. Where standards are not met, it will take enforcement action.

Secondly, we will tackle the wider failings. We must, and we will, stop people being placed in hospital inappropriately and ensure that services are commissioned which properly meet people’s needs. This requires the NHS and local government to work together. All current hospital placements will be reviewed by 1 June 2013, and everyone who is there inappropriately will move to community-based support as quickly as possible, and no later than June 2014. We will also make sure that, in future, health and care commissioners design services that allow people to live safely, with support, in their communities with care plans developed including the individual and their family. By April 2014, every area will have developed an agreed plan to make sure this group receives high-quality care. As a result, we expect to see a dramatic reduction in hospital placements.

The report also sets out the specific actions we will take to support this high-quality care. This includes tackling excessive use of physical restraint, addressing concerns about the over-use of antipsychotic and anti-depressant medication, and improving safeguarding arrangements.

Thirdly, we will support a positive and open culture—one in which staff provide excellent care, but also feel able to speak out when care is poor. The report sets

10 Dec 2012 : Column 919

out how we will support providers to achieve this, including in relation to staff training. Creating a positive culture also means listening to and involving people and their families. At Winterbourne View, families’ concerns were ignored. However, we need to go further than heeding warnings or complaints. We need to ensure people and their families are involved at every stage of their care and that they get the support they need, including advocacy support.

We will make these changes as quickly as possible. The organisations responsible for delivering change share our commitment to making this happen—working both nationally and locally, and across health and social care. A concordat, signed by more than 50 organisations, sets out the specific actions to which each organisation commits to deliver. The NHS Commissioning Board and Local Government Association will come together to lead a joint improvement programme, with financial support from the Department of Health, to supervise the changes. I will chair a board to oversee progress personally.

Winterbourne View fills us all with sorrow and anger but we are using it as a spur to make things better. There are places that are already getting this right. I have seen some for myself and the report discusses many more. This shows what can, and should be, done for all and that a better life for people with learning disabilities and autism is possible. I regard it as a national imperative that we transform the care of those with learning disabilities or autism and behaviour that challenges. I commend this report to the House.”

That concludes the Statement.

7.19 pm

Lord Hunt of Kings Heath: My Lords, I thank the noble Earl for repeating the Statement. I know that Members on all sides of the House were appalled by the terrible incidents at Winterbourne View. I say to the noble Earl that we share a determination to ensure that all necessary steps are taken to prevent a similar tragedy happening again. Our goal must be to ensure that everyone with learning disabilities, including those with challenging behaviours, receives high-quality, decent and humane care and support; and that we finally end up with the practice of sending people with learning disabilities to long-stay institutions far away from their family and friends being a practice of the past.

The noble Earl has announced a number of welcome measures that are certainly a step in the right direction, but we remain concerned that the proposals may not be clear or strong enough to guarantee the changes that people with learning disabilities and their families urgently need. I refer the noble Earl to the NHS mandate, published only a couple of weeks ago, which says that there should be a substantial reduction in reliance on in-patient care. The noble Earl has clearly reiterated that in the Statement. Can he put a figure to that reduction? Is there not a risk that, unless the noble Earl is more precise about how and when that will be accomplished, we may not see the progress that we would wish to see?

Similarly, the Government say that they wish every local area to provide appropriate care and support. Can the noble Earl define what care is considered to be appropriate, and how it might be measured?

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The noble Earl will probably know that I am somewhat dubious about the commissioning function in the National Health Service. We have, after all, had commissioning for more than 20 years under different Governments. One has to ask whether commissioning has led to enhanced outcomes. We see in what happened at Winterbourne View a catalogue of failure by commissioners. Vulnerable adults were placed in unsuitable places, often miles away from their homes. This dislocation, as a recent BMA paper pointed out, can further disturb adults who may already have had traumatic lives. These distances have made it difficult for families and carers to provide oversight and protection. As the BMA said following a round-table discussion in your Lordships’ House, commissioners need better to reflect the individual’s needs and relationships. It must be more local and less institutionalised. Containment must give way to personalised care. Would the noble Earl agree with those sentiments?

Can the noble Earl explain how the Government will ensure that all local commissioners have the necessary skills to make these changes? Clearly there was a problem with 150 primary care trusts. The question now arises: what will happen with the 212 clinical commissioning groups? Of course, they can rely on and draw on the experience of local authorities. I wonder whether the noble Earl can recollect our discussions during the passage of the Health and Social Care Act, when we on this side of the House argued that the commissioning plans of clinical commissioning groups should have to be signed off by health and well-being boards in order to draw the commissioning plans of both the local authority and the CCGs together into one cohesive approach. Would the noble Earl be willing to consider this issue again?

I am concerned that the authorisation process for CCGs does not mention learning disabilities as an area where competence is required. If this is such an urgent and important priority for the Government, can the Minister explain why this is the case?

I come back to the continued use of long-stay institutions because alternative care has not been developed in the community and at home. In a time of constrained resources, when we need to make the best use of taxpayers’ money, there should surely be one budget for people with learning disabilities, not separate funding for health and council care. How will the Minister ensure that there is a cohesive response at the local level from both the NHS and local government, with the budgetary allocation to make sure that that happens? Will the noble Earl name the specific individual leading this work within the NHS Commissioning Board so that Members of this House are clear who should be held to account?

On the regulator, the serious case review of Winterbourne View said that light-touch regulation by the Care Quality Commission was not appropriate for closed establishments, which should instead be treated as high-risk, with frequent unannounced, probing investigations. The review strongly recommends that these investigations speak to residents’ families and to patients, including those who have left the institution and who may feel more able to speak out and speak up. The Care Quality Commission has just completed

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a focused probe of inspections of long-stay institutions for people with learning disabilities. I think that the implication of what the noble Earl said is that that work will continue, but it would be good to have some confirmation from him.

Can the noble Earl tell me about the CQC’s capacity to undertake this work? I am one who believes that the previous leadership did the best that they could in the circumstances in which they found themselves, notwithstanding the great deal of criticism that they had to take. I have been very impressed by the approach of the new chief executive of the CQC, David Behan. However, I remain concerned that too many responsibilities may have been put on the CQC for it to be able to discharge them effectively. Clearly, in relation to places like Winterbourne View, this has to be an important priority for the CQC. Can the noble Earl reassure me that he is convinced that the CQC can take this on without being submerged by all the other responsibilities, including the whole of primary care which it has been given to address?

Whatever the shortcomings in commissioners and regulators, responsibility ultimately lies with those who provide the services; I agree with the sentiment of the Statement on that. One of the most disgraceful aspects of Winterbourne View was that vulnerable people were neglected and abused while the hospital’s owner, Castlebeck Care, charged huge fees and apparently made huge profits. The serious case review says that Castlebeck made decisions about profitability, including shareholder returns, over and above decisions about the effective and humane delivery of assessment, treatment and rehabilitation. My understanding is that the average weekly fee for residents at Winterbourne View was £3,500, rising to £10,000 for one patient.

While the hospital generated profits of almost £5 million, the review could not determine how much money went back into the hospital, and how much was creamed off for profit. The reason for that is the company’s complex financial structure, with Castlebeck itself owned by private investors based in both Jersey and Geneva. That has made it virtually impossible to hold the company to account. Can the noble Earl confirm that the company has so far failed to meet two of the serious case review’s key recommendations: that it should fund therapeutic services for all ex-patients, and pay for the cost of the review itself which has so far been entirely borne by the taxpayer? The review’s authors say that the corporate responsibility of Castlebeck remains to be addressed at the highest level.

In that regard, I very much welcome the commitment made in the Statement by the noble Earl to the Government examining how corporate bodies and their boards of directors can be better held to account, including a “fit and proper” test for the directors of those companies. Will the noble Earl consider requiring private companies to publish the names of their owners, the members of their boards and the details of their financial structure before they can be licensed and registered to provide publicly funded care? We cannot let the excuse that information is too commercially sensitive be considered acceptable, when what is at stake is the care of very vulnerable people, paid for using substantial amounts of taxpayers’ money.

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Finally, perhaps I may ask the noble Earl about carers and the vulnerable adults themselves. As the BMA report says, carers and adults have important roles to play in identifying needs and helping to co-ordinate and supervise their care. Can the noble Earl confirm that the involvement of carers and the vulnerable adults concerned will come to the fore when taking forward the work of his department, the CQC, commissioners and providers?

How we care for the most vulnerable people is clearly a hallmark of a decent society. The scale of abuse at Winterbourne View was simply unacceptable in the 21st century in one of the most prosperous nations in the world. I have been encouraged by the tone of the Statement repeated by the noble Earl. There are clearly issues that we would like to see addressed and I look forward to his comments. I also look forward to the debate in your Lordships’ House on Thursday, when we will no doubt have a more detailed go at this. However, it is clear that there is considerable support for the kind of decisive actions that need to be taken to ensure that this cannot happen again.

7.31 pm

Earl Howe: My Lords, I am very grateful to the noble Lord for his constructive comments and I welcome his commitment to a shared agenda for improving care for those with learning disabilities and autism. I agreed with a great deal of what he had to say.

As to his individual questions, he first asked whether I could articulate the number of in-patient places we expect to be reduced during the coming months and years. My answer is that we want to see a rapid reduction in the number of people with learning disabilities, autism and challenging behaviours who are in hospitals or residential care and who are away from their home areas. That is not to say that there is no role for assessment-and-treatment centres, which clearly have a role—but it is limited. It is important to ensure that everyone has a care plan built around their individual needs, rather than to say that there should be some kind of top-down national target for the number of units. We believe that plans should be in place and put into action as soon as possible. All individuals should be receiving personalised care and support in the appropriate setting for them no later than 1 June 2014, and we shall work towards that end. It is very much a case of defining the appropriate care for the individual.

To pick up the noble Lord’s final question about the involvement of carers and the vulnerable adults themselves, yes, they should indeed be involved in the planning of care. It is families, carers and the individuals themselves who know best what they need. It was one of the besetting failings of this terrible saga that families and carers were not listened to, and not only about the whistleblowing to which they wanted to alert the authorities. They also had a very good idea of what type of setting and care their loved ones would best respond to—and they were not listened to on that score, either.

The noble Lord asked about clinical commissioning groups and the extent of their expertise in commissioning appropriate treatment for those with learning disabilities.

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I agreed with a great deal of what he said. Commissioning expertise for this group of people is, frankly, in short supply, and that is why the department will fund the joint improvement programme being organised jointly by the NHS Commissioning Board and the Local Government Association. They will be tasked with working closely with clinical commissioning groups and their local authority partners over the next two years, to share and implement best practice. There has to be, as the noble Lord said, a cohesive approach. Joint working here is vital because we are looking at determining not only the right setting for an individual but what the right treatment for that person should be. That necessitates a joint approach. I should add that we would set an expectation that there be pooled budgeting arrangements to drive that forward.

The noble Lord asked me who on the Commissioning Board was leading in this area. Sir David Nicholson has made clear his personal commitment to take action on this. Indeed, the board is meeting people with learning disabilities this Thursday, but the lead director on the board is Bill McCarthy.

The noble Lord asked me what the Care Quality Commission intended to do by way of ongoing work. The CQC will continue to carry out unannounced inspections, which will involve people with learning disabilities and their families, as I mentioned when I repeated the Statement. That will be based on risk, and the CQC has made it plain that these particular settings are a priority for it. We expect it to take account of all the recommendations arising from the serious case review, including the views and statements of those who have left establishments of this kind.

The noble Lord asked me about Castlebeck and the liability that it should have for the ongoing costs of patients who were at Winterbourne View and, indeed, the cost of the serious case review. My reaction is that Castlebeck should give serious consideration to that suggestion. However, there are currently no powers to make that happen, and the Government are keen to ensure that in extreme cases such as this there are consequences for providers of care that is of poor quality.

As regards a requirement for companies to be more open about their board structure and corporate structure, this is something that we shall be looking at over the next two or three months, and we will come forward in the spring with our conclusions on how companies and their boards can better be held to account.

7.38 pm

Baroness Hollins: My Lords, I welcome the report and the detailed actions that are listed in it. Indeed, it fills me with some hope after so many years of commissioning failure. The proposed change support programme is to be led by the NHS Commissioning Board and the Local Government Association. There is something ironic in responsibility for leading this change being vested in those who primarily have been responsible for the current failure. The evidence is that local authority and NHS leadership do not have the skills or knowledge to effect change. Indeed, my former colleague Jim Mansell’s first report on challenging behaviour was published 20 years ago and made similar

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recommendations to those in today’s report. Can the Minister confirm that the programme board will indeed be expected to engage with those from the learning disability sector, who understand the issues involved in the design and delivery of the support programme? Finally, why does the report make little or no mention of the need to provide access to the same range of mental health treatments that other citizens have access to, including psychological therapies?

Earl Howe: The noble Baroness brings us to a set of key points. She said that in her view the NHS and local government simply do not have the capacity to address these issues properly. In many respects we would agree with that, although it would be wrong to make a blanket statement about the whole country because we know that very good pockets of commissioning and provision exist. One of the tasks of the joint improvement team will be to identify those areas of best practice, and to enable those operating in those areas to go out and mentor other areas. Part of the sum of money that we set aside will be devoted to enabling those high-performing areas to backfill the places while they are engaged in that mentoring exercise. Her basic point is well taken. We think there is a job to do here but it is one of those things that the Board and the Local Government Association need to oversee on a national basis.

That is only a short extension from the function of the Commissioning Board in general, which will be to support commissions. We are grateful to the Local Government Association for its overseeing role for local authorities. I fully expect that they will engage with the learning disability sector. I commend to her the concordat, which is accessible on the department’s website, and she will see from that that the 50 organisations that have signed up to it include a number of voluntary organisations in this sector. Jointly, these bodies have committed to a programme of action. It is not just about defining what needs to be done but about how it will be done. It is an impressive set of commitments that those bodies have signed up to.

Lord Pearson of Rannoch: My Lords, the Minister spoke about the need for a fundamental change of culture but I heard nothing in the Statement about training, so I hope that he will forgive me if I ask again a question I have been asking for over 20 years about the training of our teachers, social workers and, in this case, care workers. I do so from my background in the 1980s and 1990s on the body that validated all our teacher training courses and from having taken quite a close look at the curriculum then offered by the Central Council for the Education and Training in Social Work. At the former, I was shocked to find that our mission statement was “to permeate the whole curriculum with issues of gender, race and class”.

Since then we have seen Nursing 2000 put the training of nurses away from hospital wards and into the social science departments of the former polytechnics, with results that I predicted at the time. Have the Government looked into the curricula of the training of care workers and of those responsible for this and similar disasters? What training do they get, if indeed they are trained at all? What genuine qualifications do they have before they commence training? Are they

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proud of what they do, or are they just in it for the money? I hope I am very out of date, but I look forward to the Minister’s reply.

Earl Howe: My Lords, the noble Lord is not out of date, because this is a key issue and I am grateful to him for raising it. It is crucial that staff who work with people with challenging behaviour are properly trained in essential skills. Contracts with learning disability and autism hospitals should be dependent on assurances that staff are signed up to the proposed code of conduct that the Department of Health has commissioned from Skills for Health and Skills for Care and that there should be minimum induction and training standards for unregistered health and social care assistants. Those standards should be met. I would say that owners, boards of directors and senior managers of organisations that provide care must take responsibility for ensuring the quality and safety of their services. There are requirements set out in law in that regard, and they include safe recruitment practices, which necessarily involve selecting the people who are suitable for working with people with learning disabilities, autism and challenging behaviour, and appropriate training for staff on how to support people with challenging behaviour.

From April next year, Health Education England, which is the new, national, multi-disciplinary education and training body, will have a duty to ensure that we have an education and training system across the piece but including a system that can supply a skilled and high-quality workforce for this sector.

Baroness Browning: My Lords, my noble friend said that families’ concerns were ignored, but would he accept that there is huge push-back across all the public services involved with this group when anyone who is a family member of someone over the age of 18 tries to make representations on their behalf? I experienced that again personally, yet again, only this week. Paragraph 3.9 of the department’s response makes reference to:

“Where an individual lacks capacity and does not have a family to support them, the procedures of the Mental Capacity Act 2005 should be followed”.

I am appalled at the way in which the Mental Capacity Act, an excellent piece of legislation, is virtually ignored by many professionals who not only do not advise people of their rights under the Act but just ignore it. If ever a piece of legislation cried out for post-legislative scrutiny, it is this Act of Parliament. It is a strong, good piece of legislation but it needs to be enforced; we need more people to know about it and to use its powers to protect the vulnerable.

Earl Howe: My Lords, my noble friend is absolutely right. Over the coming months the Department of Health will be working with the Care Quality Commission to agree how to improve the understanding of the deprivation of liberty safeguards and to ensure compliance with them. We are very clear that this work is necessary to protect individuals and their human rights. We will report the results of that work by spring 2014. During 2014 the Department of Health will update the Mental Health Act code of practice, and this will also take account of findings from the review.

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Baroness Wall of New Barnet: My Lords, I also congratulate the Minister on repeating this Statement made earlier in the other place, and I welcome the report itself. I want to refer to a couple of areas and follow up his reassurance about the patient care pathway. The importance of that pathway, I am sure he knows, is not only in having it but ensuring that it is carried out with regular updates, and that the progress being made is taken into account to make sure the pathway is staying in touch. That does not always happen, so having the patient care pathway is only one part of what I hope he would ensure would happen.

The other part, and the Minister may not be surprised at this, is Part 7 where again, as my noble friend Lord Hunt has done, I urge him to think again about another area. With regard to the expectation as far as training goes—while Skills for Health and Skills for Care, as mentioned in the document, are doing a great job—it is absolutely crucial to recognise that just the induction for health care assistants in social care really is not enough. I have pleaded with the Minister on many occasions in the context of hospitals. It is equally if not more important that healthcare assistants have the confidence given to them by being registered and qualified in the way that registration ensures, so that the very difficult and important job that they do—and more of them are doing it than are working in any other area—is suitably recognised. I urge the Minister to take away that request in the context of this report, and to look again at ensuring registration for these particularly important workers.

Earl Howe: My Lords, I am grateful to the noble Baroness for what she has said. She is right to point out that the patient pathway is integral to any proper planning process for individuals, and that it should be built around the particular individual’s needs and preferences if possible. This brings us back to the role of an assessment and treatment centre: namely, as its name implies, to assess the needs of a person and to define what their care plan should be over a future period of time. As I mentioned, the care plan is best when it is drawn up with the benefit of advice from the individual, their family and their carers. Therefore, if we want more community care, we need to ensure that there is the capacity in the community to deliver good patient pathways to individuals. We are clear that some areas of the country are ill equipped to do that. Part of the task of the joint improvement programme will be to look at the facilities and resources that are required in local areas to enable commissioners to plan those patient pathways with confidence.

On the issue of the training of care assistants, I take the noble Baroness’s point. I think that it is common ground between us that those who lack a recognised qualification should nevertheless be enabled to upskill themselves and get themselves on a register to prove that they are familiar with and abiding by a code of conduct that has been recognised, with the register itself being duly accredited. Our position is that the system of voluntary registration, almost by definition, will result in an upskilling of the workforce, but it is not the whole story. There is a role for employers to ensure that there is proper supervision of care assistants, and that proper delegation takes place that does not

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require a person to do more than he or she is skilled to do. There is no single answer here, but I believe that voluntary registration is a good start.

Baroness Masham of Ilton: My Lords, following from the question about registration and regulation, is the Minister aware that people such as nurses and care assistants who have been sacked for dishonesty or undertaking dangerous procedures with patients can take a job anywhere as a care assistant? Without regulation, how will he control the matter? It is very dangerous for vulnerable patients because these establishments are so hard-pressed to get staff to work in their centres that they will take almost anyone, without even taking up references.

Earl Howe: My Lords, the noble Baroness raises another important point. In this country we have a list that acts as a check on those who have abused or otherwise maltreated adults or children and have been dismissed on that basis, to ensure that the scenario that she has painted in which someone who has committed such an offence is re-employed cannot occur in practice. I am not sure that I recognise the situation that she outlined because the POVA system is designed to ensure that dangerous people are not employed to look after the vulnerable. However, I will gladly drop her a line in writing to set out what we propose in this area.

Lord Willis of Knaresborough: My Lords, I echo the comments around the House that this Statement is appropriate. The fact that it has support across the House demonstrates that there is unity in terms of tackling the issue. I spent a significant part of my professional life working with young people with severe behavioural issues. As the head of a school, I, together with my governors, would be held responsible for what happened to those young people—and rightly so. The weakness in the Statement is that it does not go far enough.

The Minister was right to make clear, and I am glad he did, that it was the management and the corporate owners of the home who were principally responsible, yet it was the staff who were prosecuted and jailed. I would like to hear what steps are going to be taken with the CPS to deal with corporate responsibility, and why that is not the priority here. Without it, frankly, a lot of the things that appear in this report will not have the necessary teeth.

I respectfully but fundamentally disagree with the noble Lord, Lord Pearson, on the training of nurses and other health workers. The more that we demand of staff in terms of their education and other opportunities, the better the staff we will ultimately get. However, I agree with him and with the noble Baroness, Lady Masham, that it cannot be right that the most vulnerable people in our society are looked after by people whom we cavalierly say do not require qualifications. How unacceptable is that in the 21st century? A voluntary register of an organisation that is disreputable is utterly and totally meaningless. We need a commitment on this from the Government. I agree that this will be over a period of time; it will

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not happen tomorrow. However, simply stating, as recommendation 15 does, that by 2013 there will be a voluntary register will not give parents and carers of these very vulnerable adults and young people the support and comfort that they need. I plead with the Minister to make the case in the department for mandatory registration, to ensure that there is appropriate regulation and that nobody works with these young people or adults who does not have appropriate qualifications and training.

Earl Howe: My Lords, I am very happy to recognise the excellent work done by my noble friend in the report that he published and submitted to the Royal College of Nursing, which we will debate later this week. He rightly drew attention to the responsibility that lies with leaders of organisations and boards of directors. They should be fully held to account for poor quality or for creating a culture in which neglect or abuse can happen. I completely agree with that. He was right to say that despite convictions for some front-line staff, Winterbourne View has revealed weaknesses in our ability to hold to account those who were higher up. Owners, boards of directors and senior managers must take responsibility for the quality and safety of their services.

We are determined to strengthen the accountability of boards of directors and managers, but we are not yet in a position to say exactly how that should be done. It is not as easy to define a legal route as it might first appear. It is perhaps easier to do so in the area of financial irresponsibility or negligence than it is where value judgments have to be made over the quality of care delivered to a group of individuals. However, I can tell my noble friend that this is one of the priorities that we have set ourselves. I listened with respect to his suggestions on the compulsory registration of care workers. I repeat what I have said in the past: the Government’s mind is not closed to this suggestion.

Energy: Efficiency

Question for Short Debate

8 pm

Asked By Lord Teverson

To ask Her Majesty’s Government how they intend to implement their strategy for energy efficiency.

Lord Teverson: My Lords, I thank the group of noble Lords who are joining in on this debate. I thank them for their dedication towards the important subject of energy efficiency. It is quite appropriate today, perhaps, that E.ON, the last of the big six, has just announced its energy price rises for dual-fuel customers of some 8.7%. This means that we have had energy price increases over the last few weeks of between 6% and 11%, which is not insubstantial when we have household average earnings going up by 1% or 2%.

As a nation and as households, we tend to tackle problems and think about them more when the bill arrives on the doormat, whether it is the electricity bill or the gas bill. The nation’s example would be the

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impending £100 billion to £200 billion invoice that will arrive for new energy infrastructure over the next decade—depending on whether you include generation alone, or all the other areas of networks and the national grid and all of that side as well. At that point, you think you must make changes in the way that you live and you have to save on that expenditure. That is why energy efficiency and the efficient use of energy are core areas on which, as a nation, we must make sure that we concentrate.

Indeed, we have had a number of recent successes or moves forward by the Government. We have had the publication of the electricity market reform Bill, which may provide us with opportunities for demand reductions in future. We will see how that progresses through Parliament. The Energy Efficiency Deployment Office was set up in the last year, which I welcome very much. We have had the consultation on demand reduction at the end of November. We have also had a government energy efficiency strategy, which is what caused me to call for this debate. The sad thing was that, rather predictably, that strategy was not really noticed or commented on by the press or the wider community. I suppose that, in comparison with gas fracking, wind turbines supposedly blotting the landscape, the stops and starts of new nuclear or maybe even the occasional arguments between the Treasury and DECC, an energy efficiency strategy is not seen as particularly interesting news. I very much differ over that, and I will explain exactly why.

The most important thing is that there are a number of benefits from such a strategy and from energy efficiency. First, and perhaps most importantly from a human point of view, is that of fuel poverty. Clearly, if we have an energy-efficient household stock and economy, fuel poverty will go down. At the moment there are 3.5 million households in fuel poverty. Cold winter deaths are thought to be somewhere in excess of 25,000, costing the NHS £1.3 billion—but, far more importantly, there is the human cost of those deaths to those individuals and to their families.

Energy efficiency means that emissions come down and there is greater energy security. It also means, according to the Secretary of State, that we will need 22 fewer power stations in our investment programme by 2030. It could also mean that we do not have the cost of winter fuel payments that at the moment cost the Exchequer £130 million each year in subsidising people’s fuel bills, when what we really want is for them not to have to pay those prices anyway. Of course, the other big benefit of energy efficiency is that we actually reduce the energy bills not just of households but of British industry as well, making it more competitive.

Therefore, we currently have a number of initiatives, most of which I welcome. The Green Deal operates from 28 January 2013, and with that we have the open home networks. Regrettably, we have had a gap between the Green Deal starting and CERT ending, and some strain put on the industry and the house refurbishment sector over that time. We have the energy company obligation coming in. Today we announced simplification of the carbon reduction commitment, which I very much welcome. I hope that soon it will recognise

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renewable energy usage as well. We have the smart meters roll-out programme starting in 2014 and the enhanced capital allowance for business.

Despite having that collection of measures, what we have is seen by industry in particular and households to a degree, as a lack of clarity about the future landscape. Business has certainly not been aware of all those incentives. Although we have a carbon plan, I believe that for the first time we have a proper and important strategy for the future in this area.

I have always been pretty critical of the United Kingdom’s energy performance as regards the houses and factory units that we built in the 1960s and 1970s. However, going through the figures, I have to admit that over the past 20 years or so, under Governments of different colours, we have not done too badly. In fact, total UK energy usage has been flat since 1970. Since 1980, energy intensity—that is, the amount of energy we use per unit of GDP—has gone down 52%. That fall has been quicker over that period than that of the United States, Germany, Japan or France. We are one of the lowest of the major developed nations in terms of energy intensity. Of course, one of the reasons for that is that we have given up producing most things and we have a service-based industry. The financial services industry does not create much at all, according to some people, but it certainly does not create a lot of carbon emissions or have high energy usage.

However, since 1980, although energy usage as a whole has stayed the same, electricity usage has gone up by 60%. Even with present policies, another 10% rise is expected by 2030 and that could go up to 15% when we move to electric vehicles and a switch in space heating from oil and gas to electricity. However, the prize is great: some 150 terawatt hours of savings could be captured by 2030 according to at least relatively independent reports. Given that in 2010 total usage was 328 terawatt hours, that is a saving of 45% of current consumption. However, the risk that has been identified is that 92 terawatt hours of that will not be achieved, which is a quarter of the expected 2030 electricity consumption. That is why the concentration on energy efficiency for electricity in particular is so important. In December 2001, the Government’s carbon plan said that if we are to cut our greenhouse gas emissions by 80% by 2050:

“Energy efficiency will have to increase dramatically across all sectors”.

However, it is not just a matter of electricity usage. I have a particular concern about the zero carbon homes programme to be implemented for new homes from 2016 and for new industrial premises from 2019. Those two are a core area. The energy efficiency strategy identifies four barriers, including an underdeveloped market for energy efficiency. That market has grown but is still underdeveloped, particularly in comparison with the United States. There is also a lack of trusted and appropriate information. I hope that having smart meters in households will start to put that right. Further barriers are misaligned financial incentives, although the Green Deal is trying to do something about that, and undervaluing energy efficiency generally.

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I have several questions for my noble friend the Minister. How will the Government start to overcome those barriers? That is not fully outlined in the strategy but perhaps that is still to come and the work is still to be done over this current year. Smart meters are the way to engage the public much more broadly. I would be interested to hear from the Minister where the Government are in terms of getting public engagement. Will there be a system like the TV digital switchover that was so successful? How will we get the demand side incorporated in the Energy Bill that is starting to go through Parliament? How will we integrate the European energy efficiency directive that is to come into force in 2014 into our own strategy? Can the Minister assure me that there will be no more watering down of the zero carbon buildings?

One billion pounds are being put forward for carbon capture and storage and £100 billion of investment in power generation is expected. Given that we have a housing stock of 26 million homes, that £100 billion of investment could be used in spending £4,000 on each home to cut demand in the first place. There is a great prize to be won. It is not just a case of win-win; in this case it is win again and again and again. I commend the Government’s recent work on their energy strategy and ask them to deliver it.

8.11 pm

Lord Judd: My Lords, it is good to follow the noble Lord, Lord Teverson. Nobody takes these issues more seriously than he does and his knowledge is daunting. What he is raising and all the associated issues are absolutely central to future survival, sustainability and prosperity of our nation. The deliberations that are going on in government and elsewhere are of crucial significance. We all ought to be focusing on them, not just the usual few who concentrate on these matters.

At the outset I should mention Doha because it is intimately related to what we are talking about. Doha has been a significant step. I think that there are a lot of sceptics who feel that what was agreed has yet to be implemented. We want to see the evidence of implementation because it is in the implementation of what was agreed that the real tests will be, not in the good intentions. In retrospect it could turn into a cynical exercise. It must be made effective. I hope that the Minister will take a moment to reassure us on that issue.

One of the things that has become very clear is that in a country which has become used to cheap and easily available energy, those days are over for ever, and we have to adjust our behaviour as a nation to meet that. Of course, issues of equity and justice apply internationally at Doha but also in our own society. The methods of production, whether that involves plant or distribution, can have a disproportionate impact on less articulate, less well placed communities which have everything dumped in their immediate vicinity because the forces of NIMBYism take control. There is a real need to concentrate all the time on equity and justice in our own society—not to mention the aesthetic and environmental issues. Do we want to have a country worth living in or do we want one littered with energy infrastructure and distribution

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systems in which we can no longer get spiritual regeneration? These are all crucial issues.

I suggest that those issues are all related to the need in our nation for an immense culture change on the demand side. We really have to nurture a sense of national responsibility. Let me take, for example, fashion. I hope this will not be regarded as a joke because I think it is a very serious matter. We are entering the coldest part of winter. Fashion is all about smartness and elegance and how you look. Surely in a society that was taking its energy needs seriously, it would be about keeping warm. Why do we not give higher priority in our clothing and other designs to the need to keep warm and use less energy? What about our Parliamentary estate and Whitehall? Yes, there have been moves in this direction and they are to be welcomed, but it is still tinkering: we all know that. Noble Lords should walk around this building at night. How many lights are left on by us all? How much equipment is left on which need not be? Let us look at Whitehall and government institutions. How much waste is there still at that level? Where is the example to the nation? Surely, in our schools and universities, we need to have far more emphasis on talking about energy and economics with youngsters, students and post-graduates. There should be far greater emphasis on conservation. In engineering, why is there not greater priority given to the need to work on conservation, as distinct from just production methods and efficiency? We must put conservation and a changed living style much more centrally into our deliberations on these issues.

I find an inherent contradiction between a preoccupation with getting efficiency, trying to control prices and taking our responsibilities—some of which I just mentioned—seriously and having so much of the energy system dominated by private enterprise, which is about profit. There is a contradiction there. I am not ashamed to say that I have never been—I hope—a dogmatic person in my political beliefs, but I believe in pragmatism in the age in which we live. I cannot help but be convinced that the sphere of energy is an excellent example of an aspect of national life which should be better looked after by the nation as a nation within a co-ordinated and comprehensive approach to the necessary planning. We need to get the right people to do the right things within it rather than, as at the moment, trying to regulate the market as it develops its own thrusts and priorities. It seems that we are putting the whole thing back to front, and I would like to see a reassertion of national responsibility in these matters. That involves all the points that I mentioned earlier, but also involves ensuring that it is not just a departmental responsibility, but that it goes into the realms of higher education, the Civil Service and the parliamentary estate.

That brings me to one last issue—and I know that the Minister, who takes this matter very seriously, will forgive my mentioning it. There is one area in which, because of our insatiable demand for energy, we have a most critical issue. We have decided that it is necessary to have another generation of nuclear power. I cannot say that I am thrilled by this, but I am persuaded that it is necessary. Having been in government myself, I realise that decisions sometimes have to be made on

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balance, but once you have made them, the task is to get on with them as responsibly as possible. That is my general position on nuclear energy.

There is a problem, though, that we are going into the next generation of nuclear energy before we have started to solve the problem of the waste from the first nuclear generation. Scientists and others will tell us that we need not worry because the solutions are there, but the point is that we have not done it yet. I declare an interest as somebody who lives in west Cumbria. From another galaxy, we would look highly irresponsible for getting ourselves into a position now with this lethal stuff—which already exists and will have implications with gigantic dimensions for future generations hundreds or even thousands of years ahead—where we are leaving the decision as to whether we proceed with what is already on the map as a possible solution to the local authorities. I know many of the people in the local authorities and have great respect for them and admiration for their public service; but how do they begin to have at their disposal the expertise, knowledge and background to make key and critical decisions in this area?

This is a national responsibility that needs to be decided at the national level, even though of course we then consult with local authorities about the implications of how it might go forward. I would be far happier about the whole issue, as it develops in west Cumbria, if it was clear that, after bringing to bear the best possible minds, and scientific evidence, that we can as a nation, this was the best possible place to have it. We should have the best possible place in the UK, and not just somewhere that has been bamboozled, bludgeoned and bribed, if I may use the term, into having it. It is crucial that this is taken seriously, and we have all have a responsibility in this House for that.

I conclude with the theme I raised a little earlier. Whatever the point at which we dip in to these complex issues, I hope that we have not given up on strategic thinking in which we say, “Now look—efficiency, the cost, its social and environmental implications, and the safety of future generations cannot just be left largely to market forces playing, for example, against local authorities”. These issues demand national strategic thinking and planning of the highest quality.

8.22 pm

Lord Whitty: My Lords, I am grateful to the noble Lord, Lord Teverson, for starting this debate and will go on to agree with quite a lot of what he says. However, I detected a note of slight depression in his voice at the paucity of attendance in this House, which reflects a rather longer-term lack of attention to energy efficiency in the spectrum of energy issues facing us. I was the Minister responsible for energy efficiency for several years in this House, among other responsibilities. When Defra had a debate on hunting about 500 noble Lords were here, but as soon as we got on to energy efficiency, we had about the same number as we have tonight. That reflects a bigger picture because energy efficiency is not sufficiently highly regarded in Whitehall and among other departments; nor, in many respects, is it among industry and society as a whole.

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My basic theme tonight will be that the Government need to be much more aggressive in proclaiming the benefits of all dimensions of energy efficiency and in making sure that business and society get engaged in developing better energy efficiency in our country. The noble Lord, Lord Teverson, is quite right that the document that he referred to did not receive great publicity. It spells out all the benefits and some of the proposals for dealing with them, but it is pretty incomprehensible to the vast majority of people and was not picked up at all by the media. However, as it says, the return on investment pound for pound in energy efficiency is hugely higher than from the same amount of money invested in other aspects of energy and in most aspects of industry. The return is huge and, of course, energy saved is also carbon saved and is the most efficient way of saving on greenhouse gases.

We see a lot in the papers about shale gas, the nuclear option, whether Mr Putin is going to switch off the gas and the fact that there is a bigger coal burn than was anticipated in Britain, Europe and the rest of the world—all of which is setting back the kind of issues my noble friend Lord Judd referred to at the beginning of his remarks, in terms of climate change.

Energy efficiency is vital and we need to proclaim that from the rooftops, not add it on as the final chapter of every energy Bill and White Paper that we have seen over the past 20 or 30 years. We have to be careful not to overclaim, because as in the field of climate change and renewable technology, there are a lot of sceptics out there, who seize on any flaw in our argument. Energy saved is not 100% saved because there is a rebound effect and there are people out there who will therefore write off investment in energy efficiency.

Obviously, people use money saved from cutting their energy bills on other things, including more energy for something else or simply to keep their homes warmer. There is a rebound effect. The Government put it fairly low, at 15% for domestic consumers and almost nil for industry. It may be higher than that but it is never 100%; it is rarely more than 20% or 30%. It is a vast improvement to invest in energy efficiency, compared with investing anywhere else.

Of course, despite the fact that the public, business commentators and the media express very little interest in this area, we have had an era of hyperactivity from the Government, and rightly so. It was true of the previous Government—we did some good things, as have this Government—but we ought to be on the verge of a new era in this respect. We have the Green Deal, about to be launched properly—we have had a soft launch; I do not know if anybody noticed it—and we have smart meters. I never know why the two strategies are not combined because that would make a lot more sense to householders and consumers

We should recognise that a huge amount of work is being done by DECC in preparing for the launch of the Green Deal: accredited assessors are being trained, the products that are eligible for the Green Deal are being defined, the regulations are being put in place, and the Green Deal Finance Company is being set up. But this all starts in about six weeks’ time and there is hardly a punter out there who knows anything about it.

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To a large extent, the same was true of smart meters. We now have standards for smart meters. In 2014 they become mandatory: all utility companies will be obliged to install smart meters in every home in the country, supposedly, over a period of five years—a massive conversion programme. How many householders actually know about it? About 40%, apparently, have vaguely heard about smart meters; a much smaller proportion know what they will do, how to use them and the benefits they will bring to consumers and society.

As a minimum, we need a major education and information campaign on these two programmes, and we need it now. It needs to be government-led; it must not be seen by householders as a marketing exercise by particular companies. Unfortunately, the companies involved in setting up something as complex as the Green Deal include energy companies and local builders, with banks providing the financial back-up. They are all absolutely needed and provide a huge amount of expertise, but they are not sectors that are hugely trusted by the average punter. We need that trust, which only government can convey.

The noble Lord, Lord Teverson, referred to the digital TV conversion. I was a bit sceptical that we would manage to deliver that programme, but of course it was delivered on a rolling region-by-region programme, whereas with the Green Deal and smart meters we are starting everywhere at the same time and hardly anybody knows about it.

We need a well resourced strategy of consumer information and engagement. Only a few weeks ago, the Minister said that we would be getting a strategy on engagement very shortly. Time is running out for 28 January. Will we get it before Christmas? Will we know what kind of programme is being run or supported by the Government before the Green Deal comes into play? Will we have a central delivery body, as elements of the industry advocate? At what stage will the Minister know the answers?

Of course, energy efficiency is not just about passive measures to improve the structure and resilience of buildings. At least two other dimensions should be included in an energy efficiency strategy. One is the issue of use. Even new buildings built to an extremely high standard do not in the event perform to that standard because the users do not know how to make maximum use of them. That is partly because the developers and architects are rarely the actual occupants and users; but there are also issues of product standards in our homes, in industry and in public buildings. The second dimension is the inefficiency in the system of distribution and transmission of electricity and gas, where a huge amount of heat is lost. We have never properly developed combined heat and power into being a normal part of industrial and domestic residential developments. Yet it can save 30% of what we generate in even the most efficient forms of energy generation, which disappears almost immediately into heat. We need far better development of our systems so that we use this heat and maximise the efficiency of the energy that we generate.

Some of the most obvious things are still a problem in parts of the country. I wrote a report last year on Northern Ireland, for example. The vast majority of

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households and small businesses in Northern Ireland still use oil for their heating, which is both expensive and extremely damaging in terms of carbon emissions. It would be much more efficient simply to connect them to the gas network. The same is true of parts of rural England and Scotland.

Almost my last point is this: the noble Lord, Lord Teverson, referred to the recent announcement by E.ON and the other energy companies. Clearly, price and the expectation of increases over the next few years will drive people and industry to look at energy efficiency more closely. However, the present tariff structure in our energy system for domestic consumers and in the contracts that the energy suppliers make with industry is doing exactly the reverse. We still have a situation where the more you use, the cheaper energy becomes. While the Government are struggling to make a reality of the Prime Minister’s commitment to offer everybody the cheapest tariff—I have a Question about this later this week—they should also look at how we can get Ofgem and DECC to move towards a tariff system that encourages rather than discourages energy efficiency.

8.33 pm

Baroness Worthington: My Lords, I am grateful to the noble Lord, Lord Teverson, for initiating this debate which gives us an opportunity to discuss the Government's energy efficiency strategy. A number of noble Lords have commented on the fact that to date this has probably not received its due attention. It is a shame there are not more noble Lords in the Chamber, which again reflects the fact that the strategy is not receiving the attention it deserves. Energy efficiency and the management of our demand for energy should have a special place in energy policy as that is the only policy which directly addresses all three elements of the energy trilemma: namely, that we seek to reduce carbon emissions while increasing the security of supply and keeping costs low. Reducing our demand for energy meets all of those objectives. One would therefore assume that it would take centre stage in the newly published Energy Bill. However, a quick search of the Bill reveals that energy efficiency is not mentioned once and that demand reduction is only mentioned twice. This compares to nuclear which is mentioned 350 times. I acknowledge that this is a crude methodology, but it gives a clear indication of where the Government's priorities lay in the formation of that Bill. Nuclear may help to reduce carbon, and it does help to diversify our energy sources, but if press reports about the strike price are to be believed, it may not be cheap. Recent reports of yet more budget overruns in France, where EDF is building a reactor of the same design as that proposed for Hinkley Point, are not encouraging.

The one area of the Bill that talks about managing demand for energy is under the capacity market mechanism described in Chapter 3. This section is, however, merely enabling and there is no plan to introduce the mechanism before the end of the decade. A consultation document published alongside the Bill shows just how far we are from a well-thought-through demand reduction policy. Consultation on details is not expected until late 2013. Surely, if we are interested in meeting our carbon budgets and security supply

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objectives at least cost, this should be the first policy pursued. Why is it taking us so long and why do we not have a more clearly defined strategy? The answer is that, just as the department’s budget is dominated by spending commitments on nuclear waste and decommissioning, its intellectual capacity has also been absorbed with the question of how to ensure there is investment in a new fleet of nuclear power stations. I am not saying that those are not needed but we need to have balance in our policy. We really ought to be doing more on energy efficiency.

Chapter 3 sets out the carbon market mechanism. That at least provides an important stepping stone towards the valuation of services that reduce our demand for energy but there is no rationale for delaying implementation of this element. The sooner we start to work on how to manage our energy the better. Only then will we be able to ensure that we are building the capacity we need, not simply the capacity that we imagine might be needed. My friend in the other place, Alan Whitehead MP, has written extensively and eloquently on this topic and recently suggested that we should use the Bill to introduce a market for decapacity payments as soon as possible. This is an interesting idea worthy of greater exploration.

How we define decapacity payments would obviously need discussion but it could be that they are for those activities which deliver permanent and active demand reduction measures. This could help us to focus particularly on activities which reduce our peak demand. At the moment, we have a very difficult demand profile with big spikes in demand on winter evenings. Our supply system has to have enough capacity to catch these peaks, which means we always have a large surplus in capacity during the remainder of the year. This oversupply is currently at very high levels. When Ofgem warns that our supply capacity could fall to 4% above demand, it is quoting capacity in excess of peak, not demand in the intervening periods. If we can reduce the peak, we will not need to build as much replacement capacity to maintain that margin of error, saving everyone money.

The sorts of activities that could qualify for a decapacity payment include those which currently fall between the stools of existing energy efficiency policy. One example I have seen at first hand is voltage optimisation, which can be very effective. I visited Chaucer Technology School in Canterbury and saw how it had reduced its electricity bills by 13% through voltage optimisation, saving £8,000 per year. It is going to invest that money, alongside money saved by fitting a biomass boiler, in LED lighting. That is another technology that could be supported as a decapacity measure.

That investment by the school was facilitated by the Salix finance facility, a very successful policy introduced under Labour by the Carbon Trust. It provides zero-interest loans to public-sector buildings to invest in energy efficiency and demand reduction. To date, it has funded over 9,000 projects, valued at £194 million, which over the lifetime of the projects will reduce emissions by 4.5 million tonnes. The initiatives currently facilitated by Salix must be encouraged and incentivised across the country. It is quite notable that the

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Government’s energy efficiency strategy barely mentions Salix. It is there but only in an annex. Is the Minister aware of the work of Salix? Could she outline the department’s plans for it in the future?

To return to decapacity, as mentioned before, a number of technologies could be very usefully brought forward by such a mechanism. I talked about LED lighting and voltage optimisation. There is also smart metering, and efficient pumps and motors. These make up a big portion of our non-domestic electricity demand and should be incentivised more.

My noble friend Lord Whitty mentioned the use of tariffs. It is definitely true that with the advent of smart meters we should be able to have a much more flexible demand profile, moving our demand away from peak times and increasing the efficiency of our system. Those time-of-use tariffs could, when aggregated, have a very big impact on our system and should be supported as a priority. Could the Minister comment on the idea of the early introduction of a decapacity incentive mechanism in the context of Chapter 3 of the Bill? This could receive widespread support and we would encourage DECC to deploy more resources in this area.

In speaking about energy efficiency, it is usual to focus on the end use of energy and this evening noble Lords have, indeed, talked much about the numerous policies that exist in that area. I would like to focus a little on upstream energy efficiency which is an overlooked area of policy which we should take seriously. The efficiency with which we convert primary fuels—that is coal, oil and gas—into electricity is very important in defining how efficient we are in carbon terms across the whole system. Electricity generation is still the biggest source of CO2 and how we make it is therefore important. During the last dash for gas in the late 80s and 90s, we made significant reductions in our emissions because we replaced ageing coal plant with new, cleaner, gas plant. Not only was the fuel cleaner but the stations burning it were more thermally efficient. This is a very important point and there has been no progress in policy terms on it since then. So we find, in 2011, that the thermal efficiency of our gas plant is close to 50%, whereas our coal fired stations are only 35.7% efficient. In 2011 we relied on, and in 2012 are still relying on, these inefficient stations more than on gas because of high gas prices while coal stations are still operating at high load factors. Much of our old coal will come off the system but 20 gigawatts of old coal capacity will remain on the system, much of it built in the 1960s. We lack any direct strategy that addresses the energy efficiency of upstream electricity generation. The one policy that did exist—the IPPC directive—was lost when there was deregulation in favour of the EU Emissions Trading Scheme. That and other efforts to price carbon have so far, sadly, failed to provide a strong incentive. Will the Minister give assurances that the Government will include upstream energy efficiency in power generation? Can we expect measures to be brought forward that will help to improve the situation now and in the future?

I have spoken for some time without mentioning the policy which the Government consider to be the game-changer in respect of energy efficiency: the Green

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Deal. The noble Lord, Lord Teverson, mentioned it and I am grateful to my noble friend Lord Whitty for introducing it to the debate. I am not fully persuaded that this is the right policy to unlock these savings. I have worked in this area for a number of years and I have not noticed a huge demand from people asking for new loan structures to enable them to invest in energy efficiency. My fear is that, given that the interest rates are going to be relatively high and there will be penalties for early repayment, this might not deliver as we would hope. I hope I am wrong and time will, of course, tell. I agree with the comments of noble Lords that it needs a much more concerted effort to communicate this policy to members of the public and businesses. I am told that very many businesses simply assume that it does not apply to them. We have a very big education job ahead of us if this policy is going to succeed. I urge the Government not to become overly confident or complacent in expecting that the policy will deliver. It is entirely based on the desire of people to take it up, so we should not be using its existence as a reason not to look at other policies in this area. I noted a statement in the consultation document on demand reduction that there was a strong case that we do not need any more measures in the domestic sector because of the presence of this policy. I would urge caution, because it certainly has not delivered yet and we should still be looking at broad-based measures for demand reduction across all sectors.

I am running out of time, but I will finish by saying that we do not yet have an energy efficiency strategy: we have a very nice document, a lovely MACC curve and lots of fine words about the potential but, echoing the words of the noble Lord, Lord Teverson, we still do not know how the Government are going to get on and deliver. I urge them to do so.

8.45 pm

The Parliamentary Under-Secretary of State, Department of Energy and Climate Change (Baroness Verma): My Lords, I very much welcome the opportunity to focus on this particularly important aspect of energy and climate change policy. I am grateful to my noble friend Lord Teverson for raising this debate at a very opportune time. He raised a number of points which I, too, will touch on and feel are worthy of repetition. Of course, I will try to answer as many questions as I can. If there are any I cannot answer tonight, I will write to noble Lords and place copies in the Library.

Last month, the Government not only published the energy efficiency strategy but introduced the Energy Bill, which includes electricity market reform, a landmark change that will attract the investment we need to replace our ageing energy infrastructure with a more diverse and low carbon energy mix. As noble Lords have mentioned, we have also launched a consultation on how we can further encourage electricity demand reduction. Today, we have provided the details of how the CRC energy efficiency scheme will be simplified. We are making great strides in this area. I am disappointed that the noble Baroness, Lady Worthington, thinks that the Government are not doing enough. When the Bill arrives in this House, we will have plenty of time to discuss many of these issues.

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All noble Lords have made some extremely important and considered remarks, even if I do not agree with them all. However, I agree with the noble Lord, Lord Whitty, that an extremely important subject such as this, which affects everyone, needs to have a narrative that is absolutely right and understandable. Perhaps we need to communicate our messages a little more clearly.

Although debated since the 1970s, there has not been a constant focus on increasing the UK’s energy efficiency. To address this, the Government created the Energy Efficiency Deployment Office in DECC in February this year. The energy efficiency strategy is EEDO’s first significant project and it provides the platform for energy efficiency policy for the coming decades. The strategy identifies the energy efficiency potential in the UK economy, the overarching barriers to achieving that potential and the actions that we are already taking to address those barriers.

As my noble friend mentioned, we could be saving 196 terawatt hours, which is equivalent to 22 power stations, through socially cost-effective investment in energy efficiency. Greater energy efficiency can be, and is, an extremely positive force in our economy. The energy efficiency sector in the UK already accounts for around 136,000 jobs in the UK and, during 2010-11, created sales of £17.6 billion. These sales have grown more than 4% per year since 2007-08 and are due to grow by 5% per year between 2010-11 and 2014-15. Nevertheless, energy efficiency has significant further potential in the UK. With the right market we could unlock further investment in energy efficiency, helping to generate further economic growth and jobs. Our analysis suggests that the Green Deal and the energy company obligation alone could support up to 60,000 jobs across the UK in 2015.

Investing in energy efficiency measures often requires local labour, can increase the productivity of the economy by releasing resources and, over the long term, can stimulate innovation. Developing a mature, knowledgeable energy efficiency market will also open up significant further export opportunities for the UK as the global effort to combat climate change ramps up. There are also savings to be made by householders and businesses. Research has suggested that, if no energy efficiency gains had been made since 1970, current energy use would be almost double its current levels, adding about £1,000 to the average domestic energy bill.

Improved energy efficiency also has obvious wider benefits, including reducing our greenhouse gas emissions and improving our security of supply. If we can reduce our demand for energy, we can achieve a cleaner, more sustainable energy system that is less reliant on primary fuel imports. Be in no doubt, energy efficiency needs to be a key part of our energy policy mix if we are to achieve our target of an 80% reduction in greenhouse gas emissions by 2050.

Achieving these multiple benefits is not easy, and the energy efficiency strategy makes clear the barriers that we face. We need to stimulate the market, ensure that consumers trust the information provided to them and make energy efficiency salient to those who could benefit from it. Society does not currently value energy efficiency as it could.

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The Government are already taking significant steps to address these barriers and deliver the necessary culture shift. We are supporting consumers to cut energy waste and reduce bills by providing help to pay for and install energy efficiency measures. Our Green Deal and smart meters policies will help households make further efficiency improvements and put them back in control of their energy use.

The Green Deal has been designed to help energy bill payers keep their homes warm while saving money. It will help finance the installation of a broad range of improvements, including insulation, double glazing, microgeneration, lighting and heating. It will pave the way for one of the biggest retrofit programmes in our history. The first Green Deals will be available to consumers from the end of January, and the energy company obligation will provide extra help for those most in need and for properties that are harder to treat. Smart meters will give consumers near-real-time information on their energy consumption helping them to control and manage their energy use and make savings. Smart meters are already available, and energy suppliers expect to install significant numbers of smart meters before the start of the mass rollout at the end of 2014.

To address energy efficiency in the wider economy, we are also providing access to finance through the recently launched UK Green Investment Bank. This includes two specialist non-domestic energy efficiency funds, worth £50 million each. With the required match-funding from the private sector, this will create up to £200 million of investment to be spent by April 2015.

On 29 November, the Government also published the electricity demand reduction consultation. This sets out ambitious, economy-wide proposals to reduce electricity demand, building on the long-term strategic framework of the energy efficiency strategy. Taking measures to cut electricity use can be much cheaper than building new generation. Our analysis suggests that there is potential to go further than existing policies, so the consultation seeks views on different ways in which this might be done using market-wide financial measures or targeted financial incentives, such as scrappage schemes.

As a package of measures, our energy efficiency policies should deliver savings of 163 terawatt hours in 2020. This is an energy saving equivalent to 19 power stations. Our strategy is to achieve every bit of this potential, but also to look for more. It is innovative ideas such as the Green Deal, the Green Investment Bank and electricity demand reduction that will help make us world leaders on improving energy efficiency. Our efforts to achieve more will come in steps, and we cannot yet anticipate everything we will achieve cost-effectively, but the consultation is there on EDR, and we should debate what can be achieved. Next spring, we will consult on audits for bigger business and seek to understand the appetite for making audits have real impact.

I shall try to respond to some of the points that noble Lords have raised. My noble friend Lord Teverson asked about the transition period. Energy suppliers

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will continue to make available insulation measures as they continue to undertake mitigation action in the first few months of 2013. The Green Deal offers will begin to come online in January next year.

My noble friend also asked about a comparison with the digital TV switchover. We have sought to learn from the switchover but this is not like for like—the smart meter rollout will be different; it is also is led by energy suppliers and so it cannot be on a region-to-region basis. We are confident that the industry knows that it has to do a lot of work to ensure that information is available to consumers.

My noble friend also asked about our handling of the energy efficiency directive. As well as leading on the implementation of the energy efficiency strategy, EEDO will provide the central co-ordination point for the implementation of EU energy efficiency directives. Departments responsible for policies affected by each article will feed into EEDO, which will provide support and ensure consistency.

I am fast running out of time so I think it would be appropriate if I do my concluding remarks and then write to noble Lords. It would be unfair to skip over responses very quickly without giving some detail. I thank noble Lords for their important contributions and I look forward to future debates. I hope that noble Lords will support the Government in their endeavours to strengthen the energy efficiency market in the UK. Our strategy is an important document that sets out a long-term challenge for the UK but it is important also that it sets out an opportunity. It is clear that greater energy efficiency must be at the centre of UK energy policy in the coming decades. This country has an excellent record of using its resources effectively, and energy should be no different. In achieving an energy efficient future we can increase energy affordability, reduce carbon emissions and deliver a more secure energy system.

Crime and Courts Bill [HL]

Crime and Courts Bill

Report (3rd Day) (Continued)

8.57 pm

Amendment 113GD

Moved by Baroness Linklater of Butterstone

113GD: Schedule 16, page 251, line 33, at end insert “, and

(c) which gives an opportunity to a victim or victims to talk about, or by other means express experience of, the offending and its impact.”

Baroness Linklater of Butterstone: My Lords, I have retabled my amendment following discussion in Committee with an amended wording that is possibly clearer and specific to the restorative process. This is all about giving the victim the opportunity to talk about the whole experience of the offence they have suffered or to express their feelings in some other way which is better or easier for them. It is nothing to do with compensation or financial need, but specifically the personal, human dimensions of the event. It could also involve others who have been directly or indirectly

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involved in the event or events or possibly in supporting the victim, which could involve family or other relevant people close to the victim.

This puts the victim at the centre of the process, always remembering, of course, that the purpose of RJ is for both victim and offender. The dialogue and engagement of both parties is at the heart of the restorative process—for each to hear the other articulating in whatever way they choose just what the experience was like for them, what they felt then and feel now, what it meant in order to make sense of the event, to come to terms with it all and to achieve some sort of closure. The chance to hear the offender apologise for what has occurred can mean a great deal to the victim, as can the opportunity to describe the impact of the event on his or her life. It can also be very helpful—not to say a revelation—to the perpetrator, as well as making him understand the results of his actions, of which he is often entirely oblivious.

9 pm

What is really important is that the amendment makes it possible for RJ to be formally available in this country, and an integral part of the sentencing process and subsequent outcomes. It makes provision for the court to defer sentencing following a guilty plea for a conference to take place, or for some time to be given to the victim to decide if this is what they really want. There will also be provision for post-sentencing restorative conferences in due course, usually in more serious cases. This will also mean that there will be a need for the development of sentencing guidelines so that the courts feel comfortable with the new provisions. After all, it is in the courtroom that the whole process will start, with the sentencer making the crucial decision to allow for the possibility of a restorative conference. This is likely to require some considerable training so that all concerned really understand and appreciate the benefits to be gained by the whole process, and how to take account of the outcomes at the point of sentence. This will involve new skills and understanding, not just in court but on the part of many other facilitators, administrators and sentencers who will have to realise that the Government intend that the option to defer for RJ should be available in all types of case. This is likely to take time to develop and evolve and, as skill and confidence grows, it will become clear that this is a process that will certainly be applicable to more than just those on the cusp of custody. Above all, it is important that the courts can feel confident that the process is being delivered following best practice, with skill and quality. This means investment in the necessary capacity at a local level.

This is a very important time for restorative justice and all those likely to benefit from it. I look forward to hearing confirmation from the Government that they, too, are confident in their commitment to taking this new way of working forward. I beg to move.

Lord Rosser: My Lords, briefly, we await with interest the Government’s response. Certainly, the amendment would appear to fill in a gap in this part of the Bill, since one’s understanding of restorative justice was

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that it was at least as important, if not more important, for the victim as it was for the offender. Yet while the relevant clause provides for participating,

“in an activity … where the participants consist of … the offender and one or more of the victims”,

it then goes on to say,

“which aims to maximise the offender’s awareness of the impact of the offending concerned on the victims”.

It would appear as though the view in this part of the Bill is that the offender’s needs and awareness are regarded as rather more important than those of the victim or victims. I conclude by saying that my understanding of restorative justice is that it is there for the benefit of the victims at least as much as, if not more than, that of offenders.

Lord Ahmad of Wimbledon: My Lords, I welcome the enthusiasm and support for restorative justice from across the House. Indeed, at the recommital stage of the Bill my noble friend Lady Linklater moved an amendment in relation to pre-sentence restorative justice. That amendment added an explicit reference to restorative justice meeting the needs of the victim.

Her Majesty’s Government entirely agree that RJ, when used appropriately, can be an extremely positive experience for victims. For example, our own research has shown that 85% of victims participating in direct RJ conferencing with their offenders were satisfied. We therefore gave an undertaking to consider the amendment in advance of Report. I assure the House that we are fully supportive of the intention behind the amendment. We consider that the phrase,

“meet the needs of the victim”,

needs more explicitly to reflect the benefits provided by restorative justice. Victims may have many needs as a result of a crime, and we should be clear about which of them RJ may meet.

I am sure that noble Lords will agree that one of the most important benefits of RJ is to give victims a voice in the criminal justice system. The amendment therefore seeks to reflect this. It puts an equal emphasis on victims and offenders in defining RJ requirements by focusing on victims’ need to have their voice heard. It also seeks to cover the different ways in which victims might want to express themselves. The phrase, “talk about” seems to us a direct and simple way of describing what might happen in the majority of cases—victims talking at a face-to-face meeting or mediation about the impact of the offending. The words,

“or by other means express experience of”,

is intended to cover other ways of sharing experience, thoughts and feelings.

In short, we appreciate that some victims may be too traumatised, or otherwise unable or unwilling, to talk about their experience. Instead, they may want to express their feelings in writing or drawing, or through other means. We therefore believe that the amendment will strengthen the role of victims in the restorative justice process. In the light of this, the Government propose to accept the amendment.

Amendment 113GD agreed.

10 Dec 2012 : Column 945

Amendment 113GE

Moved by Baroness Linklater of Butterstone

113GE: Schedule 16, page 252, line 6, at end insert—

“Part 2AProvision for female offenders

7A (1) Contracts made by the Secretary of State with probation trusts shall require each probation trust to make appropriate provision for the delivery of services to female offenders.

(2) Provision under sub-paragraph (1) shall include provision for women to carry out unpaid work and participate in programmes designed to change offending behaviour in groups consisting only of women.”

Baroness Linklater of Butterstone: My Lords, I shall now speak about provision for women offenders. I echo the Minister’s remarks in relation to RJ, which he said gives victims a voice. What I hope to gain from this amendment is to ensure that the Bill gives women a voice. We are returning to the issue of specific provision for women who offend because of the recognition around this Chamber and in the country at large of the importance of this issue and the need, above all, to give statutory underpinning to the policies and plans to meet women’s needs.