The Government are proposing a hugely oppressive measure of stripping a person of their leave to remain while they are outside the UK and leaving them in limbo. They must accept the need to put in place safeguards. It may not be possible to ensure that no one other than those in genuine need of the safeguards benefit, but if that is the only objection to the amendment, my noble friend should say so and we can preserve at least proposed new subsections (4)(a) and (4)(b) on Third Reading. Those who are already stateless or who have been granted leave to remain on the basis of an asylum or human rights claim are surely not to be deprived of a meaningful right of appeal against a decision that will ruin their lives for ever. I beg to move.

5.45 pm

Lord Pannick: My Lords, I support the noble Lord, Lord Avebury. As he said, it is very difficult effectively to pursue an appeal from abroad. As I understand the clause that the noble Lord seeks to amend, the Secretary of State may take advantage of the temporary absence abroad of an individual. He or she may wait for the individual to go abroad, and may act even though the individual may be abroad—as often happens—for compassionate reasons such as the ill health of a child or an aged relative. The clause is very unjust and very arbitrary.

Baroness Smith of Basildon: My Lords, when the noble Lord, Lord Avebury, raised this issue in Committee, I raised with the Minister some questions about the process that the Government were seeking to introduce. Like the noble Lord, Lord Avebury, I was not entirely satisfied with the replies I received. In fact, I did not receive responses to some of the questions that I raised. I hope that in the time that has expired since 4 July this year the Home Office has been able to provide some answers to those questions.

The point was raised about someone’s leave to remain being cancelled while they were out of the country. I am still unclear—because I have not had a satisfactory response—about the criteria for cancelling someone’s leave to remain while they are out of the country. Is it a purely administrative decision because the decision-making time has come up for that person—they were going to be denied leave to remain and they happened to be out of the country—or is it the case, as the noble Lords, Lord Pannick and Lord Avebury, suggested, that the Home Secretary will lie in wait for somebody to leave the country, possibly on compassionate

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grounds, whereupon their leave to remain will be cancelled? It would be helpful to know what the criteria will be and how the decision will be made.

It would also be useful to have information on what proportion of cancelled leave to remain is cancelled when the subject is outside the country as opposed to when the subject is in the country. I asked that in July in Committee and did not receive an answer. There has been some time since July to get that information; I hope that the noble Lord will have it available.

Another issue is the definition of “public good”. The legislation refers to a decision on removing the right to remain as being taken,

“wholly or partly on the ground that it is no longer conducive to the public good for the person to have leave to … remain”.

Is there a definition of when the public good is no longer there, or when it should be decided that there is no public good and that leave to remain should be withdrawn? The Government need to answer questions on this. I was disappointed not to get responses from the previous Minister—I am not suggesting that the present Minister did not answer me in July—and I hope to get some responses today.

Lord Lester of Herne Hill: My Lords, the noble Baroness described me as “noble and learned”. I should not be described in that way because I am not a former law officer or Law Lord—and I am not sure about being noble. However, it is true that I look at matters as a lawyer. I cannot help that; it is a problem that comes with 40 years of doing it.

I am interested to know what the Minister’s response would be to the remark made by the noble Lord, Lord Pannick, when he described this as “arbitrary”. That seems to be a correct way of describing it. Can the Minister explain why, if the amendment tabled by the noble Lord, Lord Avebury, were rejected, the Government would not be highly vulnerable to a legal challenge in our courts or, I dare say, the European Court of Human Rights?

Lord Taylor of Holbeach: My Lords, we set out in Committee the reasons for Clause 27. It demonstrates a current anomaly in legislation that allows high-harm individuals to return here to appeal the decision to cancel leave, despite being excluded from the United Kingdom by the Secretary of State.

Exclusion from the United Kingdom is a key tool in tackling those who seek to cause harm to the United Kingdom. Exclusion is used to tackle a range of conduct including terrorist-related activity, serious criminality and engagement in unacceptable behaviours. The exclusion power is used sparingly and is reserved for those who are considered to be the highest-harm cases. It is therefore crucial that once the Secretary of State makes such a decision, it is given full and immediate effect. It should not be undermined by a separate immigration decision, taken only to give effect to the exclusion, and the accompanying rights of appeal.

Of course any such decision by the Secretary of State should be open to challenge and review by the courts. No one is denying that. However, the Government believe that, given the nature of these cases, it is wholly

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reasonable that judicial scrutiny of the facts should be carried out while the individual remains outside the United Kingdom. When noble Lords consider the type of conduct that has led to these decisions by the Secretary of State, it seems to be an entirely reasonable and proportionate proposition.

Lord Maclennan of Rogart: The point has already been made in this debate that if such an appeal is made, the appellant is put at a very grave disadvantage as a result of difficulty in communicating with counsel and in speaking to witnesses who may have something to say that is relevant. The rule of law cannot be properly discharged if the Minister cannot find more support for the absence of the appellant.

Lord Taylor of Holbeach: I tend to disagree with the noble Lord. I cannot see why it should be possible to allow somebody whom the Secretary of State for the Home Department has decided to exclude to return to this country purely to pursue an appeal against that decision. I do not accept that that is reasonable and that is why we have included this clause in the Bill.

Lord Pannick: I am grateful to the noble Lord. Is not the point that however reprehensible the allegations against the individual, if they are present in this country then they are entitled to remain and pursue an appeal? The question is whether, because of the accident that they may be abroad for a day or two for entirely understandable compassionate reasons and because the Secretary of State takes advantage of that absence to make a decision, they should then be unable to pursue an appeal while within the United Kingdom.

Lord Taylor of Holbeach: I think we disagree on that. Noble Lords will understand the premise on which the Government are basing their decision. It cannot be right to allow someone to return to this country when the decision has already been made by the Secretary of State that that person is considered to be undesirable to admit to this country and that is the reason for their exclusion. I should perhaps help the debate by giving some figures. Since 2005, 426 individuals have been excluded on the grounds of national security, unacceptable behaviour, serious criminality or war crimes. Annual figures have varied over the years from 111 in 2007 to 40 last year. Incidences of the decision to exclude an individual with an accompanying decision to cancel leave have totalled 30 over that period. The most was seven in one year and the fewest was two. This year to date: nil. I hope that helps noble Lords to put this matter in perspective. The Government have a responsibility for the security of the country and I hope that will carry some weight with noble Lords in this argument.

I will now carry on with what I was intending to say. Clause 27 seeks to provide the Secretary of State with a certification power where she decides that the decision to cancel leave under Section 82(2)(e) of the Nationality, Immigration and Asylum Act 2002 was taken on the grounds that the individual’s presence in the United Kingdom would not be conducive to the public good. The individual must be outside the United Kingdom

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at the time of the decision for the Clause 27 provision to have effect, the effect being that on certification the in-country right of appeal under Section 92 of the Nationality, Immigration and Asylum Act 2002 no longer applies to such a decision, which means that the person has an appeal from outside the United Kingdom. To be clear, the individual will still have a full merits appeal but that will be exercisable from outside the United Kingdom instead of from within the United Kingdom. We accept that the power to remove appeal rights from the United Kingdom to abroad must be reserved for highest-harm cases. This is why we have restricted the application of the certification power to individuals where the decision to cancel their leave is based on the Secretary of State’s assessment that their presence in the United Kingdom is not conducive to the public good. We have also expressly stated that this applies only to individuals outside the United Kingdom at the time of that decision.

Such cases have been, and will remain, the exception rather than the norm. Clause 27 seeks to maintain the operational integrity of the Secretary of State’s power to exclude an individual from the United Kingdom. Such decisions are not taken lightly and are reserved for the highest-harm individuals. It is therefore imperative that such a decision remains operationally effective, pending judicial scrutiny. For these reasons I cannot support Amendment 118D, which seeks to remove Clause 27 from the Bill. Similarly, Amendment 118C could seriously undermine the Government’s ability to secure our borders against individuals who pose a threat to the United Kingdom. The amendment would exclude from Clause 27 those individuals who are stateless, those who have previously been granted leave to enter, those who remain based on a successful asylum or human rights claim, and those who raise human rights or asylum issues in their grounds for appeal. As previously stated, it is right that we provide protection to those in need and the Government remain committed to their international obligations to such individuals. However, the Government also have an important obligation to protect the public from high-harm individuals whose actions pose a threat to national security or the rule of law.

6 pm

Lord Lester of Herne Hill: I am sorry to interrupt the Minister but I am now genuinely bemused. We know from the Chahal case that the Special Immigration Appeals Commission was set up so that appeals could be dealt with through closed material proceedings, protecting national security and the interests of justice. I welcomed that because I care about national security as well as justice, and that scheme had to be introduced because the European court said so. Now we are in a position where the Government concede that, if the high-harm person is within this country, they should have the necessary right of appeal. The noble Lord, Lord Pannick, made the point that if the high-harm person happens to be abroad for compassionate reasons, it is arbitrary and irrational that that person should not be in as good a position as if he were in this country. Simply using the Home Secretary’s power to say that someone’s presence is not conducive to the public good, which is what happened in Chahal, is

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arbitrary. That is what is bewildering us. We cannot understand why the interests of national security should not, at this point, understand the needs of the rule of law.

Lord Taylor of Holbeach: I am not a lawyer but I am, I hope, filled with common sense. It strikes me as being quite nonsensical to allow an individual back into this country to pursue an appeal against exclusion. The exclusion decision, if I may say so, is taken on grounds that the noble Lord has admitted may well include protecting national security. Indeed, criminality and protecting national security are the only grounds on which high-harm individuals may be pursued. Their right of appeal is not removed. The question is whether they should be readmitted to this country to pursue that appeal. I suggest that is nonsensical and I cannot accept the noble Lord’s position on the matter.

I was explaining that for many of these cases the primary objective is to protect the public from individuals where credible evidence suggests involvement in terrorist-related activity or serious criminality. In other cases, it is to protect the public from individuals intent on inciting others to commit crime or on creating divisions between communities. Therefore, the legislative proposal is designed to target the highest-harm cases, and it is proportionate, for the protection of the public, to ensure that any appeal for which a full-merits appeal right still exists is from outside the United Kingdom.

Amendment 118C would potentially provide every individual refused under this provision with an in-country right of appeal as they would simply need to raise human rights or asylum grounds in their appeal. That cannot be right and for that reason we are unable to support the amendment. I hope that, in the light of my remarks, my noble friend Lord Avebury will understand the drivers behind this clause and why the Government have to ask him to withdraw his amendment.

Baroness Butler-Sloss: I have been listening to this debate without any particularly strong views either way. However, perhaps the Minister can assist with this question. On the assumption that a stateless person, for instance, or indeed anyone else who has been refused a return, is outside the country somewhere, how on earth does he or she actually continue an appeal?

Lord Taylor of Holbeach: My Lords, the process of appeal is open to anybody and the circumstances in which they have found themselves is a matter for them. This country and its Government have decided that their presence in this country is not conducive to the public good, which I think is a reasonable decision for the Government to make. It is open to challenge through the judicial process and that individual still has a right of appeal. It is not for me to suggest the details of ways in which that appeal should be processed.

Lord Gilbert: I, too, have been listening very closely to this debate, with no expertise whatever. However, I take on board the concerns of various noble Lords. Could not the matter be satisfactorily resolved by

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placing on the person making a decision the requirement to let the individual under suspicion know when a decision is going to be taken?

Lord Taylor of Holbeach: I think that would be counterproductive. If the noble Lord thinks through the circumstances of that question, he will understand that.

Lord Woolf: Am I right in thinking that this form of appeal from outside the country has been part of the immigration process for a substantial period? In addition, is it not the case that it can be a written process and that forms can be used for the purposes of the appeal?

Lord Taylor of Holbeach: The noble and learned Lord is perfectly correct in that regard.

Lord Mackay of Clashfern: My Lords, just before my noble friend sits down, I would like to understand the position. Somebody is outside the country having had leave to remain in it previously; the Secretary of State gets information to suggest that that person would be dangerous to the country if he or she returns; and the Secretary of State decides, on that information, that that is so. Is the position then that, in order to comply with the amendment of the noble Lord, Lord Avebury, the Secretary of State would have to allow that person, whom he or she believes to be a dangerous person to the security of the country, back to lodge an appeal? Why should that be? Why should the Secretary of State allow somebody, whom he or she thinks to be a danger to the country, to come back into the country solely for the purpose of appealing against that judgment? If he does come back into the country, there is at least a risk that his activities will not be confined to appealing but may include doing what the Home Secretary has considered constitutes the possibility of danger to the country.

Lord Avebury: My Lords, the crux of the matter is that the Minister suggests that credible evidence exists for the Home Secretary to have made this decision that the person has been involved in serious criminality, terrorism and so on. The Secretary of State waits until the person goes abroad for some reason, whether it be for compassionate reasons, as the noble Lord, Lord Pannick, has suggested, or for any other reason, and then pounces—

Lord Taylor of Holbeach: I realise we are on Report, but I will just say to the noble Lord that it may be that the conduct that leads to the Home Secretary making this decision takes place while this individual is abroad. I think the notion that this is a premeditated trap is false. It is more to do with the possibility that the individual, while abroad, makes contact with someone, or evidence comes to light as to their true intent, or what they might do when they return to this country becomes apparent, and the Home Secretary wishes to deal with the problem.

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Lord Avebury: I do not know. The noble Lord has raised this for the first time. It has often been suggested that the Home Secretary does pounce when somebody is abroad for personal reasons. In the case of MK, which I quoted in Committee and mentioned again briefly during this debate, those acting on behalf of MK certainly believed that the Home Secretary deliberately waited until he was abroad before exercising this power.

The Minister was relying on the Home Secretary having credible evidence of this person’s activities being in the nature of serious criminality, terrorism and so on. One has to take that on trust. In nine cases out of 10, this individual is not going to be able to appeal. The individual will be stateless, as the noble and learned Baroness has just suggested, and that was the case with MK. He was a recognised refugee in this country when he went to Italy, I think. He was in Italy when the Home Secretary made the order against him, making it virtually impossible for him to exercise a worthwhile right of appeal.

I know of cases where it has been alleged that somebody’s presence in the United Kingdom is non-conducive to the public good. I had long correspondence with successive Secretaries of State trying to discover the issue in a particular case—that of the leader of the Jammu Kashmir Liberation Front, who was formally a refugee in this country and was declared by the Home Secretary to be non-conducive to the public good after he had been arrested on charges of terrorism and acquitted. Nevertheless, he was sent packing and has not been readmitted to the United Kingdom since then. I made great efforts to persuade Secretaries of State that he is no danger to the public in this country and that his activities as the leader of the Jammu Kashmir Liberation Front have been peaceful, but I have never been able to get behind the decision. The decision that somebody’s presence is non-conducive to the public good is one that the Secretary of State exercises by his or her absolute authority, and it is difficult to challenge.

I am grateful to the noble Lord, Lord Pannick, and my noble friend Lord Lester for the support that they have given to this amendment. I was thinking of testing the opinion of the House. I have decided at this stage not to, but to think further about what my noble friend has said in reply and to consider what methods we have for dealing with this situation. It is a serious flaw in our procedures to force somebody, who is in exile and has no access to lawyers or to witnesses, as my noble friend has just said, to attempt to refute allegations of which he may be only dimly aware. For the time being, I beg leave to withdraw the amendment.

Amendment 118C withdrawn.

Amendment 118D not moved.

Clause 29 : Drugs and driving

Amendment 118E

Moved by Baroness Meacher

118E: Clause 29, page 28, line 24, leave out “controlled” and insert “psychoactive”

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Baroness Meacher: I shall speak also to Amendment 118GA and shall not speak to Amendment 118G. I also wish to register my support for Amendment 118J, tabled by the noble Baroness, Lady Hamwee.

The aim of Amendment 118E is to clarify in law that Clause 29 is seeking to improve road safety and that whether a drug is controlled is irrelevant in this context. The Government aim to treat driving under the influence of drugs and alcohol on the same basis is to be applauded, but if it is irrelevant to road safety that alcohol is uncontrolled, why should it be relevant whether a stimulant or other drug is controlled? Surely the important point is whether the stimulant is affecting the driver’s safety behind the wheel.

I can illustrate the irrationality of the clause as it stands with an example. We know that when a controlled drug, such as ecstasy, is heavily contaminated, young people will switch to a similar, but uncontrolled drug, a powder, bought over the internet, probably from China. If there are two drivers, one driving dangerously because of the level of ecstasy in their body and the other driving dangerously because of the same level of the legal stimulant in their body, there is no difference in terms of traffic safety between the two drivers. Both are equally dangerous and surely should be charged, presumably for dangerous driving. I ask the Minister either to accept the amendment or to explain to the House why an intoxicated driver on a psychoactive substance, which the authorities simply have not yet had the time to ban—or perhaps they will never get around to it, as it takes them many years—should be treated more leniently than his friend on the same quantity of a controlled but no more intoxicating drug.

6.15 pm

Amendment 118GA deals with my second concern: that drivers should not be arbitrarily stopped and tested for drug use, any more than they should be for alcohol use, if there is no reason to believe that their driving is impaired. I am aware that Section 4 of the Road Traffic Act 1988 covers this point to some degree. However, we know from the expert technical panel advising the Government that:

“There is no universal agreement on how to measure impairment”.

Certainly impairment differs for different classes of drugs, for stimulants, depressants and hallucinogens, for example. I am concerned that if impairment is difficult to identify or measure, the assumption that evidence of impairment must be present before a driver can be stopped could be overridden by this legislation. I ask the Minister to make clear in his response that the intentions of Amendment 118GA will apply; that is, that the requirements before a driver is stopped are that the driver has been involved in a road traffic accident or in a moving traffic offence, or that he is in charge of a vehicle and the roadside evidence suggests that he is impaired due to alcohol or any drug. There is an issue about medicines, which we will come to.

I want to move on to the stage where a driver has been stopped, the required conditions, I hope, having been met. I refer to a recommendation in the Home Affairs Select Committee report in relation to the appropriate maximum permissible level of concentration

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of a drug in a person’s blood or urine under Clause 29 of this Bill. The Home Affairs Select Committee says,

“the appropriate maximum permissible level of concentration in a person’s blood or urine … should be set to have the equivalent effect on safety as the legal alcohol limit”.

I understand that the Home Affairs Select Committee wants a level playing field between the treatment of those driving with alcohol or drugs and that a zero tolerance approach should be avoided for all these categories of driver. Will the Minister assure the House that the department will not abandon the concentration limits aligned with those for alcohol? If the expert panel concludes that it is too difficult to set such limits, what action do the Government propose to take? One of our difficulties in these debates is that the expert panel has not yet reported and we do not what its recommendations will be so, in a sense, we are having this debate without the key information that we need.

Another matter about which I would be grateful for clarification concerns the expert technical panel’s work. Is that panel considering psychoactive substances that are not medicines? On page nine of its presentation to parliamentarians, it refers to establishing the,

“level of use of illicit drugs and psychoactive medicines by driving population”.

There is no mention here of new psychoactive substances, albeit that more and more young people will be driving under the influences of those substances.

Another issue arising from Clause 29 concerns young people taking cannabis, perhaps weeks prior to being apprehended for driving when suspected of being under the influence of alcohol or drugs. The risk in these circumstances is that the young person will reveal cannabis in their body, yet be unimpaired. In a conversation with officials, I was given some assurance on this point. It was suggested that the testing equipment will be geared to testing the THC level rather than the level of cannabis in the body. I understand that THC remains in the body for a relatively short period, and this could substantially overcome the problem. Can the Minister reassure the House on these points? Will the technical equipment be able to identify the level of THC present and is the Minister aware of how long THC remains in the body?

I want to add my support to Amendment 118J, tabled by the noble Baroness, Lady Hamwee, which seeks to give some protection to patients on long-term medication from the considerable stress of arrest, testing and potential prosecution. I hope that the Minister can agree to the noble Baroness’s amendment. I hope that the Minister can provide further assurance on the Floor of the House about patients with chronic illnesses who need medication long term. Napp Pharmaceuticals rightly points out that such patients should not be placed in the position of having to satisfy an onerous burden of proof that they are indeed safe to drive. I understand from Dr Wolff’s letter that the position is not straightforward, certainly with regard to benzodiazepines, that patients on these drugs are at an increased risk of an RTA when compared with drivers who are not under the influence of benzodiazepines, and that the risk is particularly increased when these

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drugs are consumed in combination with alcohol. Clearly, patients need to be fully informed about those risks.

In relation to morphine, I understand that the panel is considering a limit which is significantly above the average concentrations of morphine in blood found in cancer patients receiving long-term steady-state doses of morphine. That is some reassurance, but again if the Minister can elaborate, it would be helpful. The point made by Napp Pharmaceuticals is that the defence in the legislation as it stands applies only once the case has progressed. It will not protect innocent patients on prescribed medications from the stress of arrest and further testing at the start of the process. Does the Minister agree that Clause 29 needs to be amended to cover drivers who are able to show that they have not taken alcohol and who can explain that they are on prescribed medication? Will the Minister consider bringing forward a government amendment to this effect at Third Reading? It would be helpful to be given some reassurance. A zero tolerance approach would be very serious for these chronic patients who need their medication and can drive safely while taking it. I beg to move.

Baroness Hamwee: My Lords, semaphore signals made across the Chamber are always excessively polite. I do not want to take too much of your Lordships’ time on these amendments, but that is not to say that I do not think they are important. However, I am aware that some noble Lords may be hoping to get on to another amendment soon.

The letter which some noble Lords have received from the noble Earl, copying us in and updating us—if I can put it that way—on the findings of the expert panel was extremely helpful. However, it confirms not only some of the points to which the noble Baroness referred but that this is very much still a work in progress. At the previous stage, the Minister referred to the vast array of drugs which needed to be considered. That is certainly the case given the existence of controlled, uncontrolled, traditional and designer drugs. Drugs are not as easy to deal with—if that is the right word —as alcohol. The Department for Transport has not yet published the expert panel’s report, which may be more relevant to the next group of amendments, but it has provided some reassurances, albeit they are not yet in the public domain in the normal sense of the word.

I support what the noble Baroness said about looking at the effect of drugs rather than assessing whether they are classed as controlled drugs. Dr Wolff’s very helpful presentation, which some of us were able to attend, explained that the panel’s work is based on an assessment of risk. That, it seems to me, is absolutely at the heart of what the noble Baroness has said. We are all aware that, as regards psychoactive drugs which are not yet controlled and may never be, chemists around the world are looking at old pharmacopoeia and designing new drugs. They will always be ahead of the rest of us in terms of the proper control of these substances.

I support Amendment 118K. I am impressed that the noble Baroness, Lady Smith, has managed to incorporate “knowingly” in the amendment by drafting

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another paragraph. I struggled to find a way of incorporating “knowingly”. My approach was not as ambitious as hers. My Amendment 118J would insert “substantially” to make paragraph (b) read:

“D took the drug substantially in accordance with any directions given”.

This provision refers to prescribed medicines. I am aware that it is very easy to forget to take a prescription medicine at precisely the right time. I have done that, and I am sure that most other noble Lords have done it. The medicine may state that it should be taken with a meal, but you might have missed the meal. Patients are human, and they forget. They do what they think is best in catching up with the daily dose. The panel said that it was important to strengthen medical information but warned individuals about the risks of consuming the relevant drug and driving, particularly if alcohol is also consumed. It recommended that healthcare practitioners should be better informed about these risks. I am sure that that is right and admirable, but I do not think that it wholly meets the point. As has been said, road safety is involved in this matter. The balance between protection and having the flexibility required to take account of human imperfections is difficult to strike. Again, we are talking about inappropriate risk.

Amendment 118M was suggested by the Joint Committee on Human Rights and concerns spiked drinks. Its report refers to the,

“apparent increase in recent years of incidents of spiking drinks in public places, in particular with so-called ‘date-rape drugs’ … We are also anxious about the impact of strict liability criminal convictions on individuals’ CRB checks, even where disqualification from driving may have been avoided through a special reasons hearing”.

The committee states earlier in its report that the point may have been made that a drink has been spiked. It is not impressed by the Government’s objection to permitting a “spiked drinks” defence. The committee states that,

“the Government’s objection does not hold good if such a defence imposed the legal burden of proof, as opposed to the evidential burden of proof, on the defendant: that is, if the Bill provided for a defence only if the defendant can prove that the drug was present in their body due to the intervention of a third party without the defendant’s knowledge or consent. We are concerned that the new strict liability offence as presently drafted is incompatible with the presumption of innocence in the absence of a spiked drinks defence which casts the legal burden of proof on the defendant”.

Therefore, the committee recommended this amendment to your Lordships and, indeed, to Parliament.

Lord Walton of Detchant: My Lords, I wish to speak briefly in relation to this group of amendments and Clause 29, largely in order, I hope, to receive reassurance from the Minister.

A number of medical bodies and a pharmaceutical company have drawn to my attention the possibility that this legislation and the testing systems could mean that patients taking legal medication for chronic pain might well face prosecution. Patients with chronic pain well established on a stable dose of prescription or over-the-counter opioid analgesics may have levels of metabolites in their system well above any threshold used for roadside or police station testing, even though such levels of these metabolites would not in any sense

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impair their ability to drive. Patients driving while taking these remedies might then be subjected to the threat of criminal prosecution or, at the very least, might face stressful allegations and the onerous burden of proving that they were not impaired and that there was no other reason why they should not be driving.

The defence included in the legislation is welcome. Subsection (3) of proposed new Section 5A states:

“the specified controlled drug had been prescribed or supplied to D for medical or dental purposes”,

and that,

“D took the drug in accordance with any directions given by the person by whom the drug was prescribed or supplied”.

That is very helpful, but the concern that has been drawn to my attention is that, although that defence sounds absolutely solid, it would be available only once a case has progressed. It might therefore not protect innocent patients from the stress and inconvenience of arrest, further testing and potential prosecution. The wording of the defence does not put the burden of proof on the prosecution; the onus is on patients to show that they took the prescribed medication in accordance with instructions. This might well prove to be a difficult task, and it would be unjust to criminalise an innocent patient as a result of a technicality. Will the Minister reassure me that this particular clause is strong and solid enough to avoid that problem?

6.30 pm

Baroness Smith of Basildon: My Lords, I shall speak to Amendments 118H, 118K and 118L. I say to the Minister at the outset that we totally support what the Government seek to achieve here. We appreciate that this is not a drugs amendment, it is a road safety measure, but the Minister will have heard from the comments already made that there is support for the Government’s intention but also some concerns about how it would operate in practice against those who are not the legislation’s targets. Drug-driving is a problem that we are all incredibly keen to see addressed. I refer to a case that the Minister will know well, of 14 year-old Lillian Groves, who was run over and killed by a driver who had taken drugs. This illustrates the importance of ensuring that the police have every tool available to tackle those who take illegal drugs and then drive, creating a danger to themselves and others. My concerns are not about the principle of what the Government seek to achieve, but—as the noble Lord, Lord Walton, and the other noble Baronesses have said—its implementation. We need to ensure that the legislation hits the right target and does not affect the innocent on prescribed medication. We have to get it right.

I thank the Minister for the briefings that he has provided and for the opportunity to meet him and his officials. I hope he can say enough today to satisfy us that the drafting of these clauses will not unnecessarily impact on those whom it is not intended to affect. The amendments I have put forward largely replicate those tabled in Committee and seek to strengthen the defence for individuals on prescription drugs who, through a simple error and no fault of their own, have been found above a certain limit. Amendment 118H would delete the existing new Section 5A(3)(b) of the Road Traffic Act, which requires individuals on prescription

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medication to “show that” they took the prescribed drug in accordance with any and all instructions, both from the doctor and manufacturer. There are serious concerns that requiring positive proof that the individual complied with all advice is pretty onerous. Instead we propose Amendment 118K, which would mean that individuals could not use their prescription as a defence if it was proved that they had taken the dosage knowingly —the point made by the noble Baroness—contrary to any advice given by a doctor or supplier. That additional wording in brackets picks up on the points about manufacturer’s instructions being required to be considered as part of the prescriber’s or supplier’s advice, rather than placing the burden on the patient to read and understand all and any such instructions. The noble Lord, Lord Walton of Detchant, made the same point. We share his concern about how fair it is for patients on long-term pain medication to find themselves in such a situation and having to show that they have complied with absolutely every medical requirement.

We are worried that we risk criminalising individuals on medication on the basis of a technicality, simply for failing to correctly interpret an element of the patient information leaflet. It could be a slight, insignificant deviation from the instructions. The noble Baroness, Lady Hamwee, made the point about the timing of when a medication could be taken. What if the advice from a doctor differs from that on the manufacturer’s small print? Under the proposed new subsection (4)(a), patients would have to have done something positive, contrary to the instructions they had received, rather than have to positively prove that they acted in accordance with advice. It changes the emphasis of the proof.

New subsection (4) also focuses on what is probably the main medical aspect of the period when the body is getting used to the prescribed drug in the system. This has been mentioned by other noble Lords. Deleting new subsection (3)(b) and the use solely of the caveat in new subsection (4) then fits more appropriately with the evidential requirements of new subsection (5). Patients would be able to show that they have a prescription. They could take a copy of it or carry a letter from the prescriber. Evidence could be produced at a police station. However, the evidential burden of new subsection (3)(b) on patients if they had to “show that” they followed any and all instructions would be considerable. Clearly we are not seeking to protect anyone who is unfit to drive, but although the Government intend this new offence to mirror drink-driving limit offences, taking prescription medication that would otherwise be illegal does not automatically make someone unfit to drive; I am thinking specifically about pain medication.

As an example of why I am concerned, and to take what could happen to somebody sequentially, if an individual on medication has perhaps been rear-ended through no fault of their own, the police would arrive and, currently, breathalyse both drivers. Under the new legislation, they would “drugalyse”, or drug test, both drivers. The test might indicate that they are over the limit, but it does not tell the officer undertaking the test how far over the limit they are. So what would happen next to that individual? If they say that they have a prescription for the medication they are taking but do not have the prescription with them, how can

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they prove that they have taken medication in accordance with medical advice and not taken illegal drugs? Would they be taken to the police station, where obviously at some point they would be able to prove that they have a prescription? That would clearly be an inconvenience and could be particularly distressing. We do not want to reach a situation where individuals are deterred from taking their medication—again I am thinking specifically about long-term pain relief—because some individuals would be more of a hazard without their pain-relief medication than if they were on it.

The Home Office has been developing roadside “drugalyser” tests for the past 10 years. Without these, the individual would have to be taken to a police station for testing. When do the Government expect roadside drug tests to be available to the police? Do the Government intend to implement the new offence before roadside drug tests are available? How often would they expect the test to be used? Considering their high cost, I presume that the police would undertake a breathalyser test first. How often would the Government expect roadside drug tests to be used in the same cases as a breathalyser? Also, looking through the information that has been supplied, any assessment of the proportion of cases in which the Government expect to find individuals below the alcohol limit but above the limit for a certain concentration of controlled substance was missing.

Despite the good intentions—which we support—what concerns me is that the details of how it will work in practice have not been worked through for those on prescription medication. I am grateful to the Minister for sending me the letter from the chair of the drug-driving panel, Dr Kim Wolff, which the noble Baroness, Lady Meacher, has also referred to. However, I am extremely disappointed that the expert panel has not been able to publish its interim report before this stage of the Bill, though I think Ministers indicated we would be able to get it. Clearly, the levels that the panel is likely to recommend—particularly in the case of prescribed drugs—and the rationale behind the recommendations would have been a huge help in our deliberations today. They may have clarified a number of the issues that I and other noble Lords have raised. What is encouraging is Dr Wolff’s assurance in her letter that:

“In considering what limits should be set for common prescription medication, the Panel has looked at normal therapeutic ranges used in prescriptions, compared to those found in addicts misusing medicines”.

In relation to morphine, she said that the panel,

“are considering a limit that is significantly above the average concentrations of morphine in blood found in cancer patients receiving long-term steady-state doses of morphine”.

However, Dr Wolff also states that the panel’s primary consideration is,

“clear scientific evidence of risk of road traffic accidents”,

and that in the case of, for instance, prescribed benzodiazepine drugs:

“risk is especially high during the first four weeks of treatment and is particularly increased when benzodiazepines are consumed in combination with alcohol”.

Here, Dr Wolff outlines the inherent difficulties in setting a blanket limit in the case of medicated drugs, because tolerance can change over time and is subject

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to variation by other factors. I suspect that the Minister will be unable to answer at this stage whether the panel, on the evidence so far, will set a limit for benzodiazepine much lower than the average level for someone on long-term drug use, because of the increased risk in the first four weeks of medication. However, that is an important consideration in the implementation of these clauses.

Much of how this will be implemented will hang on the recommendations that the panel makes, which we do not have available. How will it factor in the effects of mixing drugs with alcohol? Will it feel compelled to set the limit a lot lower than the average dosage because of the risk of increased road safety problems when the drug is mixed with alcohol—even a quantity of alcohol below the legal limit? Someone could be below the legal limit on drugs and below the legal limit of alcohol but still be a danger to themselves and other road users, because the Government’s offence does not provide—understandably, because we have not yet had the report of the panel—for a combined alcohol and drug limit for certain controlled substances.

We all want all drug drivers who are a danger taken off the roads. We totally support the Government’s aims. However, we need to ensure that we are going after the right people. I hope that the Minister can give some assurances that he will look again to reassure himself and this House about the defence in this group of clauses for people on prescription medication, to ensure that it is appropriate and fair; that he will not shut the door on ensuring that the legislation hits the right note; and that he will take away the comments made today.

I hope that the Minister can answer my final question clearly. Can he confirm that the Government would not consider it appropriate for any action to be taken against those on prescribed medication, unless it is clear that their driving is impaired?

Earl Attlee: My Lords, I recognise that the amendments relate to concerns about the Government’s approach to drug-driving and, in particular, how the new offence will affect drivers who take prescription or over-the-counter medicines. I am grateful to the noble Baroness, Lady Smith, for her recognition of the problem. I will try as hard as I can to reassure the House that your Lordships’ fears will not materialise.

First, I emphasise that any passengers would not be screened for drugs following a vehicle being stopped by the police and the driver being tested for drugs. The noble Baroness asked me a number of very good questions, and I will answer them first, before going into detail. She asked, in effect, how much discretion a policeman has to arrest for drug-driving. Whether an officer decides to arrest and continue an investigation, including carrying out an evidential blood test, once someone has proved positive in a drug screening test, will depend on the facts of a particular case. Officers will be aware of the statutory defence of taking a specified controlled drug in accordance with medical advice and prescription.

As for the CPS, in reaching a decision as to which cases to prosecute, Crown prosecutors must take into account the Code for Crown Prosecutors. The code

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includes a requirement that prosecutors should swiftly stop cases where the public interest clearly does not require prosecution. I will return to that in a moment.

The noble Baroness also asked me about publication of the expert panel report. The expert panel is independent of government. It is important that it takes the time that it needs. Advising on which drugs the new offence should cover and on limits to set for driving purposes are complicated issues which require careful consideration. The expert panel has considered a wide range of drugs and has needed to reconcile the available evidence from the UK and abroad. This means that it has taken longer than we anticipated for the panel to report. The Government intend to publish a copy of the report of the expert panel on drug-driving as soon as we are able after the report is finalised. Of course, we will not proceed further with the secondary legislation until we have the expert panel’s report.

The noble Baroness also asked me about roadside drug tests. The Government expect roadside drug test equipment to be available in 2014, when we anticipate bringing the new offence into force. We would expect breath tests to be conducted first, as they are quicker and easier. We cannot speculate on how many tests would be taken, as that is an operational matter for the police.

6.45 pm

On Amendment 118E, in the name of the noble Baroness, Lady Meacher, I must emphasise that the North review recommended that the new offence focused on controlled drugs as defined in the Misuse of Drugs Act 1971. Focusing on controlled drugs limits the scope of the offence to a specific category of drugs. This category of drugs is considered to be sufficiently harmful to warrant restricting its availability under the Misuse of Drugs Act 1971. Within the category, the Government will set limits only for drugs which are known to affect road safety.

The noble Baroness asked about cannabis. Broadly, she is right. Yes, we expect to set limits for THC, the active ingredient in cannabis. Scientific advice is that, for the purpose of drug detection, the window of opportunity for the detection of THC after a single dose would be less than nine to 12 hours.

It is important to remember that a person driving under the influence of a drug which is not controlled under the Misuse of Drugs Act 1971 could still be prosecuted under the existing offence in Section 4 of the Road Traffic Act 1988. If there was evidence that, for example, the use of a particular type of “legal high” was impacting on road safety, consideration could be given to classifying it as a controlled drug under the Misuse of Drugs Act 1971 and therefore potentially bringing it within the scope of the new offence. I expect that the same could apply to the issue of parallel drugs, to which the noble Baroness, Lady Meacher, referred.

The noble Baroness’s amendment would mean that the Government could set limits in respect of a much wider group of drugs. The Government do not consider that that change is necessary. Consideration has been given to which drugs the independent panel must consider. Its task has not been easy and it would not

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be a good use of resources to assess drugs that are not thought to be a significant problem. As I said, if they become a significant problem, they can be brought into scope.

Amendments 118G and 118GA, also in the name of the noble Baroness, Lady Meacher, are intended to restrict the circumstances in which a person can be found guilty of a drug-driving offence to where a driver, or the person in charge of a vehicle, has been involved in an accident or to where there is evidence of impairment.

A police officer may only require a person to co-operate with a preliminary drugs test in certain circumstances. Preliminary testing can be required only if the officer suspects that a driver is under the influence of a drug or has a drug in his body; if the driver has committed a moving traffic offence; or if the driver has been involved in a road traffic accident.

That is the same as the drink-driving regime. The existing drug-driving offence in Section 4 of the Road Traffic Act requires proof of impairment and is difficult to use. There have been few successful prosecutions, as identified in the North report. The new offence is designed to improve enforcement against drug-impaired drivers and to deter them. It is specifically intended to avoid the need to prove impairment, in order to enable more effective enforcement action to be taken against drug-drivers.

The amendments would enable the new offence to be used only where an accident had taken place, or where there was evidence of impairment. This would significantly reduce its deterrent effect and usefulness. The independent panel looked at the degree of risk of an accident, rather than the level of impairment of the driver. This was explained to your Lordships when Dr Kim Wolff, who leads the panel, addressed your Lordships at a meeting.

On the issue of spiked drinks, following the Joint Committee on Human Rights’ report into the Crime and Courts Bill, the noble Baroness, Lady Hamwee, in Amendment 118M, has proposed introducing a defence for a person who has unwittingly consumed a drug as a result of a third party’s intervention—in other words their drink was spiked. The Joint Committee suggests that such a defence would mitigate against the impact of strict-liability criminal convictions on individuals’ CRB checks, even where disqualification from driving may have been avoided through a special reasons hearing. A strict liability offence is one committed regardless of any intention, recklessness or knowledge on the part of the individual.

The rules on special reasons are set out in Section 34(1) of the Road Traffic Offenders Act 1988. This provides for a mitigation of sentence by a court where it considers there are “special reasons” not to disqualify a driver convicted of an offence that carries an obligatory disqualification. The Government consider that Section 34(1) operates effectively and has not resulted in any injustice with regard to the existing offences in Sections 4 and 5 of the Road Traffic Act 1988. It is worth remembering that the problem identified by my noble friend already exists. If a spiked drinks

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defence was included in the new offence but not in Sections 4 and 5 of the Road Traffic Act 1988, this would create a two-tier system with no apparent logic for this.

Prior to amending existing legislation—which would need to include Sections 4 and 5 of the Road Traffic Act 1988, if a similar defence was to be included in those provisions—we would have to consult with stakeholders. We have no such plans at this stage. Additionally, there would need to be a similar consideration in respect of other modes of transport, whose drink and drug-driving legislation relies on, or closely mirrors, the provisions in the Road Traffic Act 1988. Therefore, we do not consider that Clause 29 requires adjustment to include a spiked drinks defence.

As we have heard, a number of noble Lords are concerned about the impact which this legislation could have on patients taking prescription medication and have tabled Amendments 118GA, 118H, 118J, 118K and 118L to address this issue. It is to no one’s benefit for drivers who are innocent of any wrongdoing to be arrested. The new offence is intended to target those who drive after taking illicit drugs or prescription drugs which are being misused and therefore give rise to road safety risks. The Government have therefore included a defence so that a person who has taken their medication in accordance with medical advice would not be guilty of an offence.

The noble Baroness, Lady Smith, asked me what happens if the doctor’s advice conflicts with the advice on the leaflet supplied with the drugs. Proposed new Section 5A(3)(b) says:

“so far as consistent with … directions”.

A doctor’s instructions therefore take precedence over the patient information leaflet, so the doctor trumps the leaflet.

In answer to the noble Lord, Lord Walton of Detchant, the medical defence itself provides considerable protection to those taking properly prescribed or supplied medical drugs. The noble Lord asked me about metabolites. Drugs can be broken or metabolised into other substances called metabolites. Where the metabolites are controlled drugs themselves, the Government could set limits for them. The Government have no plan to amend the legislation to include metabolites not controlled in the scope of the offence.

Baroness Smith of Basildon: My Lords, I am sorry to intervene but I just want the noble Earl to clarify the point about the instructions. Proposed new Section 5A(3)(b) says that D, the person who has been arrested,

“took the drug in accordance with any directions given by the person by whom the drug was prescribed or supplied, and with any accompanying instructions (so far as consistent with any such directions) given by the manufacturer or distributor of the drug”.

Is the Minister absolutely clear in his comments today that the doctor’s instructions with the drugs would always override any manufacturer’s instructions and that that would be a defence in law?

Earl Attlee: My Lords, as I understand it, the doctor’s instructions will trump the leaflet. If I am wrong on that I will write. Also, the leaflet normally refers to the doctor’s advice so the leaflet would give the trumping authority to the doctor.

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The medical defence places what is known as an “evidential” burden on a person accused of committing the offence. This means that the accused person must simply put forward enough evidence to “raise an issue” regarding the defence that is worth consideration by the court, following which it is for the prosecution to prove beyond reasonable doubt that the defence cannot be relied on.

I know that the noble Baroness, Lady Smith, and my noble friend Lady Hamwee are concerned that a patient who inadvertently deviates slightly from the recommended dosage might be unable to rely on the medical defence. I want to reassure the House that the Government and the independent panel will take into account the normal therapeutic ranges for medication when considering what limits should be set for drugs. This will reduce the risk of patients who take medical drugs correctly being affected by this legislation. The panel will be well aware of the risks pointed out by my noble friend Lady Hamwee. I would also like to point out that in the terms of reference, term 6 is:

“To establish the likelihood of whether these concentrations would be exceeded through prescribed or otherwise legally obtained drugs (as distinct from illicit drugs)”.

A small minority of individuals taking long-term medication at elevated concentrations could be in excess of the specified limit for a particular drug, as was so well explained to the House by the noble Lord, Lord Walton of Detchant. In most cases such users would only come to notice if their driving is impaired—when they can be dealt with under the existing offence in Section 4 of the Road Traffic Act 1988—or for some other reason requiring police action. Another point to note is that the Code for Crown Prosecutors specifically states that prosecutors “should swiftly stop cases”, as I have already mentioned.

Furthermore, the Government expect that the courts will take a sensible approach to the operation of the new offence. For example, a defendant seeking to rely on the medical defence may be afforded more or less leeway depending on the facts of a particular case, such as the nature of the medical advice provided, including the wording of any leaflet accompanying the medicine.

Finally, in Amendment 118GA the noble Baroness, Lady Meacher, has also proposed that primary legislation should include requirements for testing to be reliable and for the Government to set limits that are linked to road safety. We do not consider it necessary to set these requirements in legislation. First, the preliminary testing devices currently being developed would undergo a rigorous type approval process before being used for enforcement purposes. This type approval process is so rigorous that it is taking some time to secure approval and I have raised this issue with my right honourable friend the Secretary of State because we need this equipment in operation. However, it is vital to the integrity of our system of justice that the courts can rely on the evidence of the new equipment. Furthermore, evidentially testing using blood or urine specimens is already carried out for the enforcement of the existing drink and drug-driving offences without any express requirement for the testing to be reliable.

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Secondly, we are clear that the purpose of the new offence is to improve road safety, as I have already stressed, so careful consideration will be given to the advice received from the expert panel and to the responses to the public consultation before setting any specified limits and regulations. The regulations would then need to be specifically approved by Parliament using the affirmative procedure. The new offence is intended to enable more effective law enforcement and to improve road safety by deterring drug-impaired driving and bringing more drug-impaired drivers to justice. In light of the points I have raised I hope the noble Baroness, Lady Meacher, will agree to withdraw her amendment and that my noble friend Lady Hamwee and the noble Baroness, Lady Smith, will not press their amendments. I have been asked many detailed questions. Where I have not answered them I will write, and no doubt another place will look very carefully at these provisions.

Baroness Meacher: I thank the Minister for his response. I remain completely unconvinced that there is any logic at all in differentiating between controlled and uncontrolled drugs. I would submit that the North committee, to which the Minister referred, had no awareness of the incredible flood of new substances coming into this country. It is a vast number. There were 65 new substances this year, 49 last year and 41 the year before. That changes the entire environment within which we work and Ministers may come to regret the idea that this legislation should also fail to take account of those changes.

Earl Attlee: My Lords, we asked the expert panel to consider the drugs that we thought were causing a road safety problem but the last thing we said was that it should consider any other drugs that it thinks necessary.

Baroness Meacher: I know that noble Lords do not want me to take any more time because people need to move on. My only other small point is that the Minister referred to risk as being the main indicator of the need for action rather than impairment. I would suggest that the two are incredibly closely related. The importance of impairment is to avoid discrimination against certain groups and the stopping of drivers in particular communities when there may be no indication of an impairment of driving. It is those matters which we should be aware of. That said, at this stage anyway, I will withdraw the amendment although I may come back at Third Reading because we still await the outcome of the expert panel’s deliberations.

Amendment 118E withdrawn.

Amendment 118F had been withdrawn from the Marshalled List.

Amendments 118G to 118M not moved.

7 pm

Amendment 118N

Moved by Baroness Hamwee

118N: Clause 29, page 29, line 23, at end insert—

“( ) Before regulations under subsection (8) are laid before Parliament, the Secretary of State shall publish a report regarding the controlled drug proposed to be specified and the limit proposed to be specified.”

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Baroness Hamwee: My Lords, I hope to be very brief on this amendment and on Amendment 118P. These amendments deal with the regulations which, as the noble Earl has assured the House, will not be proceeded with until a good deal more work is done. My first amendment would provide for a report from the Secretary of State about the,

“drug proposed to be specified and the limit proposed to be specified”,

before laying regulations. Like all other noble Lords who have taken an interest in this, I am very keen that the decision should be made on the basis of evidence. This amendment is to suggest that the evidence base should be in the public domain and easily accessed before we are asked to deal with regulations.

I said a few minutes ago that there is a huge array of drugs. I was quoting the noble Lord, Lord Henley, when I said that but, having seen that remark in Hansard, it struck me that it may be difficult to decide whether to support regulations that cover more than one drug or where there is concern about the limit applying to a particular drug. It would be very helpful to have regulations made a drug at a time so that the vote can be very clear when the matter comes before both Houses of Parliament. Following the points that have been made about the importance of controlling drug-driving, I hope that the House would be able to vote for the inclusion of a particular drug without jeopardising the inclusion of another if there is concern about one which is on a list or the limit for one which is on the list. I beg to move.

Earl Attlee: My Lords, I would point out first that these are very important clauses and it is right that the House looks carefully at them. I know that these amendments relate to concerns around how the Government will implement the new offence. Amendment 118N proposes that the Government should be required to publish a report regarding the controlled drugs and limits to be specified in regulations before such regulations are laid before Parliament. The Government do not consider that such a requirement is needed. Clause 29 already requires the Government to consult before specifying in regulations the drugs and limits for the new offence. The Government also intend to publish a copy of the report of the expert panel on drug driving shortly. I have already provided an explanation to the House on the reasons for its delay. The consultation will set out the evidence base for specifying particular controlled drugs and limits in regulations.

Amendment 118P proposes that individual sets of regulations should be drafted for each controlled drug to be covered by the new offence. I recognise the importance of considering carefully the specified limits for each controlled drug. That is why we will consult on the drugs to be included in the offence and the limits which should be specified. It will be open to anyone to respond to that consultation and their response will be considered carefully. Drafting a new set of regulations for each controlled drug would be time-consuming for the Government to prepare and for Parliament to consider, and would be likely to involve much unnecessary repetition. It could also make it more difficult for those seeking to use the legislation since there would be multiple sets of regulations to refer to, making the relevant law unnecessarily complex.

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The Government therefore believe that it would be better for all concerned for a single set of regulations to be produced following consultation. In the event that the regulations were not approved by Parliament due to the inclusion of a particular specified drug or limit, the Government would amend the regulations and lay a further draft before Parliament for approval. In the light of the points I have raised, I hope that the noble Baroness, Lady Hamwee, will be willing to withdraw her amendment.

Baroness Hamwee: My Lords, for speed, I will not comment on that other than to thank the noble Earl. I beg leave to withdraw the amendment.

Amendment 118N withdrawn.

Amendment 118P not moved.

Amendment 119

Moved by Lord Dear

119: After Clause 29, insert the following new Clause—

“Public order

Public order offences

(1) The Public Order Act 1986 is amended as follows.

(2) In section 5(1) (harassment, alarm or distress) for “, abusive or insulting” in the two places where it occurs substitute “or abusive”.

(3) In section 6(4) (mental element: miscellaneous) for “, abusive or insulting” in the two places where it occurs substitute “or abusive”.”

Lord Dear: My Lords, in introducing Amendment 119 I have in the front of my mind the words attributed to Voltaire as far back as 1759:

“I may disagree with what you say, but I will defend to the death your right to say it”.

That is what it is all about tonight. The amendment seeks to curb what I believe is an increasing misuse of the criminal law so as to curb or prevent the proper exercise of free speech. The amendment intends that the word “insulting” should be taken out of Section 5 of the Public Order Act 1986 and that Section 6 of that Act should be similarly amended to take account of the earlier change.

It might help your Lordships if I examine the history of the inclusion of the word “insulting” in legislation to illustrate how and why we have arrived at the current state of affairs—a state of affairs that, I would venture to suggest, is wholly unacceptable. In the mid-1930s, there was a progressive increase in severe public disorder on the streets of east London and in other great cities of this country, when supporters of Mosley’s black-shirted fascists were clashing with both moderate left-wing and extreme left-wing opponents. The law then was proving inadequate to deal with the problem and, as a result, the Public Order Act 1936 was enacted. It did a number of things. It introduced a number of very serious new measures: for example, to authorise or ban public marches and demonstrations; to ban quasi-military organisations; to outlaw the wearing of political uniforms in public; and so on.

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At a much less serious level, Section 5 of that Act introduced the now familiar words whereby it became a criminal offence to use “threatening, abusive or insulting” words or behaviour in a public place or at a public meeting whereby a breach of the peace was occasioned or likely to be occasioned. I would ask your Lordships to fasten on to the important words there: “threatening, abusive or insulting” and “breach of the peace”. That legislation stood the test of time, and the police regularly resorted to arrests for breaches of Section 5 in what might loosely be described as disorderly or hooligan behaviour on a typical Friday or Saturday night.

Fifty years later, as part of a general tidying-up of the law that deals with public disorder, the Public Order Act 1986 reflected much of the thinking that lay behind the old Section 5. It re-enacted the legislation that made it a criminal offence to use,

“threatening, abusive or insulting words or behaviour”,

and extended it to circumstances covering displays of any writing or sign in a public or private place within the hearing or sight of a person likely to be caused harassment, alarm or distress. It removed the reference to breach of the peace and it did not require any intent to cause harassment. Clearly, the intention of the new Act was to require a greater degree of particularity in the statute so as to increase protection for vulnerable individuals.

So far, so good, and the new Section 5 also appeared to work well for a time; but not for very long. With the wisdom of hindsight, it is clear that there has been a steady increase of cases where the words “insulting words or behaviour causing distress” were being misapplied in circumstances where individuals or organisations disagreed with comments made about their own sexual orientation, general beliefs or objectives, and where the criminal sanction offered by Section 5 was used by them deliberately to curb or suppress the proper exercise of free speech, either by prosecution, or by utilising the undoubted chilling effect of a threat of prosecution.

There are numerous examples, and some of them are enshrined in the folklore that has grown up round this subject. For example, the student arrested in a demonstration for suggesting that a police horse was “gay”; the street preacher arrested for saying that he regarded homosexuality as “sinful”; the 16 year-old boy arrested for holding up a placard that read “Scientology is a dangerous cult”; the pensioner threatened by police with arrest for putting a sign in his window that read “Religions are fairy stories for adults”; and the man arrested and charged after he growled at a dog, even though the dog owner did not wish to prosecute. There was no mention of what the dog wanted. There were the animal rights activists who were threatened with police action useless they removed little models of seals from public view; seals that had been red-painted to represent blood. The list goes on and on, and I will not weary your Lordships with more examples.

Whose fault is it? Who should we blame? Obviously, on occasions the police are to blame. They have not exercised always the degree of common sense and discretion that would properly have resulted in a blind eye being turned to the conduct in question. Often,

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however, the police have been manipulated by those whose tactic has been to complain to the police on the spot and insist on police intervention, with the express or implied threat of a complaint against them unless action is taken. A now often risk-averse police service, and sometimes risk-averse prosecutors as well, have found it safer to mount a prosecution and leave the courts to adjudicate.

If change is in the air—the change that is projected into Amendment 119—how much support is there for it? I remember the Committee stage of the Counter-Terrorism Bill in 2008 when I tabled the amendment to prevent the then Government from extending the limit on pre-charge detention of terror suspects from 28 days to 42 days. As with this debate about freedom of speech, that issue was concerned with a major constitutional freedom. As with this issue today, there was a long run into the debate. But in 2008, opinions were divided. I was confronted then with all the alternative arguments: in person, in your Lordships’ House and outside, by letter and e-mail. There were debates on the radio, on television and in the press. There were arguments for and against, before the amendment was carried with a majority of 191.

But what a contrast that was with the current situation. With only one exception—I will refer to that later—I have not heard a word in argument for the retention of “insulting” in Section 5. There have been no personal approaches to me, either here or outside; no letters or e-mails; no telephone calls. Every comment in the media is supportive. I understand from colleagues in the House that they have been the recipients of a flood—or is it a blizzard?—of letters from people outside in all walks of life supporting the amendment. There appears on that basis to be little or no opposition. I wait with interest to see what is voiced tonight.

And look at the support. The noble Lord, Lord Macdonald of River Glaven, until recently the Director of Public Prosecutions, has signed the amendment and written a detailed opinion that I have circulated individually to Members of your Lordships’ House. It gives a brilliant resumé of the substantial legal arguments supporting this change. The noble Baroness, Lady Kennedy of The Shaws, an eminent QC and chairman of Justice, and the noble and learned Lord, Lord Mackay of Clashfern, one of the most respected Lord Chancellors of recent years, have also signed the amendment. I am very grateful to all three for their interest and support.

But there is much more, and from individuals or organisations that do not always work harmoniously one with the other. The National Secular Society and the Christian Institute are often at odds, but here they stand shoulder to shoulder supporting the amendment. I should like to record my warm thanks to the staff of the Christian Institute for the administrative help that they have given me prior to this debate. There are also the Peter Tatchell Foundation; the Bow Group; the Freedom Association; the Equality and Human Rights Commission; and the Joint Committee on Human Rights, which reported as recently as 20 November, saying:

“We understand the sensitivities with certain communities on this issue, but nonetheless we support an amendment to the Bill which reduces the scope of s. 5 Public Order Act … on the basis that criminalising insulting words or behaviour constitutes a disproportionate interference with freedom of expression”.

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Justice fully supports the amendment, writing:

“It is essential for the progress of society that we do not ossify public views by censoring debate on matters of current public controversy”.

Liberty would scrap the whole of Section 5, not just one word; but it has pledged wholehearted support, saying:

“The amendment would herald a very significant victory for freedom of expression”.

I will not go on; there are other organisations, and perhaps they will forgive me for not adding to this very long list and taking time tonight.

Where do the police stand in all of this—for it is front-line officers who are so often caught up in the practical application of these laws? The Association of Chief Police Officers has declared that it is not opposed to the change. Only the Police Federation expressed reservations; it is the one organisation that I know has doubts about this. The Police Federation fears that the amendment would reduce the powers of police in dealing with disturbances on the street that were low- level but nevertheless troublesome. I suggest that those fears are misplaced. Most of us know that the federation is feeling bruised at the moment. Change is not at the top of its agenda. But it might well take heart from the letter that the current DPP, Keir Starmer QC, wrote to me only last week, in which he said:

“The issue has been the subject of consultations by the Home Office in both 2009 and 2011. On both occasions, the CPS responded confirming that we are not in favour of a legislative amendment to remove the word ‘insulting’ from section 5. However, having now considered the case law in greater depth, we are unable to identify a case in which the alleged behaviour leading to a conviction could not properly have been characterised as ‘abusive’ as well as ‘insulting’. I therefore agree that the word ‘insulting’ could safely be removed without the risk of undermining the ability of the CPS to bring prosecutions”.

That is a very significant message indeed, and from a very significant player. As noble Lords will readily appreciate, we now have the current DPP and his predecessor both saying that the amendment can and should be carried.

This amendment, if carried, would not leave a hole in the law. Section 5 in its curtailed form would still allow prosecution for “threatening or abusive behaviour”, and there are tougher and more targeted laws, such as incitement to racial hatred, and a range of aggravated offences where hostility to the group to which the individual belongs is taken into account. Along with general laws, such as public nuisance and breach of the peace, these give the police all the powers they need to protect minority groups. It is minority groups that the law needs to look at particularly, and they would not be left out. The “abusive” limb of Section 5 covers most, if not all, genuine cases of public disorder. I will not go into the judgment in Southard v DPP, but one could find that explored there in some detail. Any repeated harassment of an individual is caught by the Protection from Harassment Act while those who, for example, burn poppies on Remembrance Sunday would be caught by Section 4A of the Public Order Act, which outlaws intentional harassment, alarm or distress.

Having tried to deal with a brief resumé of how we are where we are, looked at the abuse of Section 5 and examined some of the relevant legal provisions, I have

12 Dec 2012 : Column 1123

to ask: is there any reason why this amendment should not have a clear run up the final straight to the finishing tape? Almost inevitably, as happens in life, one problem remains—a fly of fairly considerable proportions in this particular jar of ointment—and I have to say that it concerns the Home Office. The Home Office launched a public consultation on 13 October last year that sought views on three issues. Two of those are of no interest in this debate today, but one examined the possibility of removing “insulting” from Section 5. I think, though without proof, that that is the consultation that the DPP referred to before he changed his view. That consultation closed on 13 January this year. As noble Lords will know, the guidance is that the Government should respond to a public consultation within three months—that is to say, in this case, some time in April this year. To date, we have not heard a word.

At Second Reading of the Protection of Freedoms Bill in November 2011, and again on the fourth day of the debate on the Queen’s Speech in May this year, I declared that, but for the consultation period, I would have tabled an amendment to delete “insulting” from Section 5. In winding-up that latter debate, the Minister asked for patience. On 4 July this year, when the noble Lord, Lord Mawhinney, raised the issue again, the Minister again requested that we remain patient. Still there is silence. It is now over 14 months since the consultation was launched, over 10 months since it closed and over five months since the Minister asked for a little more time to consider the matter. What is going on? Is it procrastination, prevarication or bureaucratic incompetence? I do not know but, whatever the answer, I suggest very strongly that we should not and cannot wait any longer.

I opened this debate with a quotation, and I finish with another. Echoing the judgment of the European Court of Human Rights in Handyside v UK, Lord Justice Sedley, when he allowed the appeal of a street preacher for an offence under Section 5 in Redmond-Bate v DPP, said:

“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having”.

In short, the removal of “insulting” from Section 5 will ensure that where words are not abusive and, importantly, where there does not exist any evidence of intent to harass, alarm or cause distress, nor any likelihood of fear of violence or actual violence, then those words will not be illegal, even though they may insult. You do not have to agree with the sentiments expressed—only with the right of the proposer to voice them in benign circumstances. You can be reassured that the remainder of the criminal law in this area will continue to protect all groups and individuals who are intentionally insulted.

I put it one last way. To oppose this amendment is to support and to play into the hands of those whose sole aim is to suppress views with which they do not agree, come what may. I ask this House to recognise the current abuse of the criminal process, to reflect on the need to protect basic freedoms under the law, to remember that freedom of speech is one of the most

12 Dec 2012 : Column 1124

important civil liberties—some would argue, the most important civil liberty—and to support the amendment. I beg to move.

Baroness Kennedy of The Shaws: My Lords, I support the amendment. I will not take long because I hope that we will move to a vote very quickly. I am the chair of Justice, the legal organisation, and I can say with confidence that that organisation, which represents the legal profession up and down the country, is wholehearted in its support of this amendment. The stories that the noble Lord, Lord Dear, has told of ridiculous cases being brought before the courts could be replicated in robing rooms and courtrooms throughout the land, and I am afraid that it really is time that we put a stop to this.

A very famous American judge once spoke about the importance of the marketplace of ideas, which means listening to views that sometimes one does not like, sometimes, as Lord Justice Sedley said, are irritating, sometimes are provocative, sometimes are heretical and sometimes might upset us. However, that is what democracy is all about, and we should take pride in it.

I wholeheartedly support the noble Lord, Lord Dear, in this amendment, and I hope that all noble Lords who are here will see the importance of this. Unfortunately, the thin-skinned are not serving our democracy well by seeking to have these cases brought. I pity the police who are put into this difficult position, and I am glad to see that both the former Director of Public Prosecutions and the current one recognise that the law is there to deal with truly offensive behaviour or that would lead to further crime and disorder. I hope that noble Lords will support the amendment.

Lord Mackay of Clashfern: My Lords, as the third string, it seems to me that freedom of expression is an extremely important part of our democratic heritage, and it has not been won without quite important sacrifices by many people who have gone before us. It is a criterion for seeing whether democracy is supported that freedom of speech is supported strongly.

Some matters connected with freedom of speech are very topical at present with regard to the public press, but the notion that freedom of speech can be tampered with without serious consequences to our democracy is a considerable mistake. The amendment would be an important step in clearing our situation regarding freedom of speech. There is no menace in an insult. Abusive or threatening language is different. It is menacing to people and, rightly, is subject to criminal law. An insult, though, is in no way threatening, except as a challenge to what I am saying. Surely we have all had one or two challenges to what we say, and we are usually the better for it, sometimes by strengthening our argument in favour of what we are saying and sometimes leading to wise reconsideration and withdrawal. I suppose that all of us have had such experiences.

I support very strongly the amendment moved by the noble Lord, Lord Dear, and I hope that if the Government are going to finish their consultation, they will do so in the right direction. It seems to me that they have taken a long time. Often that is necessary in order to clear up some issues, but I am sure my noble friend will explain tonight exactly what the

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position is in relation to this consultation. Why has the result not been given within the timescale that the Government themselves set?

7.30 pm

Lord Morris of Aberavon: I rise briefly in support of the masterly way in which the noble Lord, Lord Dear, has introduced and covered every aspect of this amendment. I just want to say three things. First, freedom of speech is essential. There is always a tendency for there to be well intended restrictions, and then there are unintended consequences. This is what has happened in this particular sphere.

Secondly, it is crucial that the Director of Public Prosecutions has changed his mind. I have a great respect —having been the Attorney-General and responsible for the Director of Public Prosecutions—for the experience and wisdom of the director, whoever he happens to be. In this case, he has said—and I repeat what has already been said,

“we are unable to identify a case in which the alleged behaviour leading to conviction could not properly be characterised as ‘abusive’ as well as ‘insulting’”.

He said the word “insulting” could “safely be removed”. I think we should pay regard to that opinion. The correspondence we have heard of and received describes excess of zeal by a particular officer, which has led to the distress of those who have been prosecuted. The last example given by the noble Lord, Lord Dear, concerned the causing of distress to a pair of Labradors by saying “woof woof” in the hearing of a policeman. That is true; it happened, it was prosecuted and the person was convicted and fined £50. Fortunately, that conviction was quashed on appeal. I will not go on; I think the case is proved.

Baroness Butler-Sloss: My Lords, like many other people, I received a large number of e-mails and letters all going one way in support of the noble Lord’s amendment. I would just like to tell the House about one letter I received. In my very untidy desk, I have lost it, but it was about a lay preacher who preaches on the street and preaches on Sundays in church. He happens to subscribe to a literal form of the Old Testament with which I do not agree, but he was preaching on his literal interpretation in the street. Someone complained to the police, and he was arrested and spent seven hours in the police station. He was placed on police bail on the order that he was not allowed to preach. If that is not an abuse of the freedom of speech, I do not know what is. I cannot understand why the Minister and the Government are not supporting this amendment.

Baroness Hamwee: My Lords, I was hoping that my noble friend Lord Macdonald would be in his place as he was a little earlier. I hope he is not stuck in a lift or something. I want to put on record on his behalf, on my behalf and on behalf a number of people who are becoming quite vocal, my wholehearted support for this amendment, and I speak for a number of colleagues. I put my name to the equivalent amendment at the previous stage and, as I recall it, the noble Lord, Lord Mawhinney, said, “For heaven’s sake, even the Liberal

12 Dec 2012 : Column 1126

Democrats have this as party policy”. Well, we do; we would have gone further, but we are happy to go as far as is before us tonight.

Baroness Smith of Basildon: My Lords, as we have heard, it is nearly a year since the Government launched their consultation on public order policing and whether the word “insulting” should be removed from Section 5 of the Public Order Act. In the Committee on this Bill—a good five months after the close of the consultation—the Minister said that he hoped that at Report stage, the Government,

“will be able to put forward the Government’s considered view to the House”.—[

Official Report

, 4/7/2012; col. 781.]

Since then, the Government had a further five months to come to a decision, and yet—unless the Minister is going to make an announcement this evening—even at this stage, we still have not had a public announcement from the Government about their position, or about the findings and evidence from the consultation which your Lordships’ House has asked for.

I say to the Minister that this is typical of this Bill. From the National Crime Agency framework document, the debate we had earlier and the panel report on drug driving, evidence that would have assisted this House in consideration of the Bill and been welcomed by noble Lords for scrutiny has not been available to your Lordships’ House. It does this House, and those proposing the amendment today, a grave disservice that the Government are so tardy bringing forward information that is crucial to this debate. I share the frustration of the proposers at the Government’s failure to provide this information for the debate today. Are the Government finally able to state their considered position now or will we have more evasion and more waiting for a consultation that closed many months ago?

I understand some of the difficulty for Ministers; it lies in the nature of coalition Government. The Liberal Democrats, at their spring conference this year, passed a motion to repeal this part of the legislation. We also know from names on the amendment that a number on the Conservative Benches—as we heard this evening—also support removal. The campaign is led in the other place by David Davis MP. If there is so much interest in this issue, why have the Government not brought forward the results of the consultation in order to have a proper, informed debate on the merits of the issue, rather than leaving it to campaigners?

I am not suggesting for one moment that the law as it stands is perfect in its application; we have heard numerous examples why it is not. I appreciate that there are grave concerns that there are cases where its use by the police and the CPS has been disproportionate and, indeed, ridiculous at times. There is a very strong argument for better guidance on the application of this clause to ensure that its use is always appropriate and effective.

However, we are concerned that the evidence of the need for its removal has not been presented to your Lordships’ House. We do not want to risk removing a useful tool which currently enables the police to address homophobic and religiously offensive issues. There is still a huge grey area when it comes to these issues.

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Many of your Lordships have said that they received no correspondence in favour of “insulting” remaining; I did receive such correspondence. I tried to look at it in balance with the other correspondence I had. YouGov polling estimates that over 400,000 lesbian, gay and bisexual people a year experience homophobic insults, abuse and harassment. Furthermore, 77% of victims of homophobic crimes and incidents do not report them to the police because they have no confidence that the police will or can do anything. I question whether it is right to take tools away from the police which they could use properly to address these sorts of hate crimes and what message that will send. We need a proper debate on whether the existing law is the right approach. It has to be done on an evidential basis, which is why I find it totally unacceptable that the Government apparently have evidence which they are not bringing forward.

We have heard examples of disproportionate and ridiculous use of the legislation, but there are also examples of its proportionate use. I have been sent these by Stonewall. I am not normally shy and retiring or very modest in my approach, but I am loath to read out the insults and the behaviour that was hurled at a Mr Braithewaite, when he intervened for a fellow passenger on his train, Heather Williams, who had been accosted by a third passenger—the defendant—for being transsexual. The language that was used and the behaviour towards them led to a prosecution and a successful conviction under Section 5 of the Public Order Act. I do not believe anybody in this House would want to tolerate or allow that kind of behaviour to go unpunished.

If there are to be changes in the law, there should be a full examination of the evidence. We want to ensure that people like that are properly punished for their crimes. The letter today from the Director of Public Prosecutions should be fully considered in the light of what he has to say, and the Government’s response to their consultation.

Baroness Kennedy of The Shaws: Perhaps I may ask my noble friend whether the word “abusive” would deal with that. The law is there to deal with it. The example that my noble friend has just given could be met with the law in the way being proposed by this amendment.

Baroness Smith of Basildon: My Lords, it may well be. The answer is that I do not know. There has to be a proper examination of the evidence. If I was absolutely clear, and if we could be absolutely confident that this poor woman, Miss Williams, who was abused on a train, would be covered without the word “insulting”, I would move forward on this. I think that we could accept that. Until we have evidence from the Government that allows us to be absolutely clear that we are protecting people who are subject to abuse and insult—

Lord Morris of Aberavon: If my noble friend wants evidence, would she not take into account the views of the Director of Public Prosecutions who is in charge of all prosecutions and has reached the view that without this word there are sufficient grounds to prosecute in this kind of instance?

12 Dec 2012 : Column 1128

Baroness Smith of Basildon: My Lords, I would absolutely take that view on information from the Director of Public Prosecutions. However, that also has to be seen in line with the consultation that the Government have undertaken. A letter produced today does not give me confidence that we would protect those people. I do not know whether the Director of Public Prosecutions has looked at the case of Mr Braithewaite and Heather Williams, if that is what he has in mind. If the DPP could give an assurance on that case and other successful prosecutions, it would give me a lot of reassurance that we are not removing protection.

Lord Morris of Aberavon: My noble friend must have regard to the fact that the director is the head of the prosecution service. He is in charge of the Crown Prosecution Service. It is the CPS which takes the decision on whether a prosecution should take place. From his long experience at the Bar and in the law, I am sure that he has taken into account the views of all his colleagues in the service. Is that to be disregarded?

Baroness Smith of Basildon: My Lords, I am not disputing that. I am disputing that that should be taken in context with the other information. We have been waiting for almost a year for the Government’s consultation response. It is a disgrace that it has not been made available to the House. It is for the Government to justify that and not me.

Lord Thomas of Gresford: We would not sully our ears with the expressions used in the instance that the noble Baroness has given. Was it not abusive? Was it not threatening? Was it merely insulting?

Baroness Smith of Basildon: My understanding of the case concerning Mr Braithewaite and Miss Williams is that the defendant was charged and convicted of a Section 5 Public Order Act offence for the homophobic insults. There were other offences as well, but homophobic insults were a significant part of that prosecution. It is for the Government to bring forward what they intend to do. I am not against change or further discussion on this but, on the evidence today, I want to see the evidence from the Government in much greater detail and to know exactly what the outcomes and the consequences would be for those who the law currently protects.

Lord Taylor of Holbeach: My Lords, I understand the interest that has been shown in this debate. I thank the noble Baroness, Lady Smith, for at least demonstrating that the issues that the House has to consider are perhaps a little more complicated than some of the speeches have implied. It is important to stress that there was a further sentence to the letter of which the noble Lord, Lord Dear, kindly sent me a copy. After the comments about the ability to prosecute, the letter continued:

“However, I appreciate there are other policy considerations involved”.

He is right that the Government have to consider the full implications of this amendment.

12 Dec 2012 : Column 1129

Let us make it clear: the Government are not seeking to change the law. It is this debate and this amendment that are seeking to change the law. The law has existed and has protected free speech, and incidents have been demonstrated. But we need to be properly considerate before we change the law in this area.

7.45 pm

As the noble Lord, Lord Dear, has explained, the amendment would repeal as an offence the use of insulting words or behaviour that are likely to cause “harassment, alarm or distress”. As has been mentioned, the House will recall that a similar amendment was put forward by my noble friend Lord Mawhinney in Committee. At that point, he agreed to withdraw his amendment to allow the time for the Government to fully consider their response. After all, they had a public consultation, as the noble Baroness has mentioned, on possible reform of the whole of Section 5. I am grateful to my noble friend, who I do not think is in his place.

The Government have completed their consideration of the consultation responses. The consultation produced a polarisation of views—I do not think that that will surprise noble Lords—between those seeking removal of the word “insulting” and those wishing to retain it. The number of responses—there were more than 2,900—the strength of feeling and the complex issues raised by respondents, on both sides of the debate, make this a far from straightforward decision. If it were easy, I certainly would try to make it easy.

The task falling to Government on this issue is to carefully balance the right of people in a democratic society to express themselves freely with the Government’s responsibilities to protect the rights of others to go about their lawful business without being caused harassment, alarm or distress. Therefore, it is important that the debate on this issue is properly informed.

Section 5 does not make it an offence for one person simply to insult, abuse or even threaten another. That is the law. For the offence to be committed the words or behaviour used, or the insulting writing or picture displayed, must be within the sight or hearing of a person likely to be caused harassment, alarm or distress. It is perfectly possible for a person lawfully to express views in public, which are considered by others to be insulting, abusive or threatening without being likely to cause harassment, alarm or distress, and therefore not to contravene Section 5.

The courts have held, in the case of Percy v the Director of Public Prosecutions, that Section 5 is proportionate and satisfies the necessary balance between the right of freedom of expression and the rights of others to go about their business without being subject to behaviour likely to cause harassment, alarm or distress.

However, the Government recognise the strong arguments on both sides of this issue. Some feel that the “insulting” limb of Section 5 has a chilling effect on freedom of expression—we have heard speeches to that effect—and a disproportionate impact in relation to religious groups who practise their religion by preaching in public. It has further been argued that insults should not be a criminal matter and it is not for the police and the courts to decide what constitutes an insult.

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Some believe that removing the word “insulting” from Section 5 would affect only very low-level disorder and would have no material effect on our ability to prosecute serious public order offences. They feel that offences such as poppy burning could be captured by the “abusive” limb of Section 5 or by other provisions such as Section 4A of the Public Order Act, which covers intentional harassment, alarm or distress.

The Government have also listened to the police and other criminal justice agencies, and the concerns they have about ensuring that the police have the powers they need to protect the public and to maintain public order. The police have said that Section 5 is a key early intervention tool that allows them to deal with a wide variety of public order and anti-social behaviour offences at the earliest opportunity. From that point of view, the “insulting” limb of the offence gives them the flexibility they need to respond to hate crime and to defuse tension quickly in public order situations.

Some argue that reform of Section 5 could reinforce perceptions that it is acceptable to disrespect or even swear at police officers. While swearing is not itself an offence, it can be covered by Section 5, which applies not only to members of the public but to public officials, including police officers who are sworn at in the course of their duties. It is also argued that removing the “insulting” limb of the offence could impact on the ability to prosecute successfully cases such as the burning of poppies on Remembrance Day and the desecration of monuments or symbols of national significance, such as flags and war memorials.

The Government have carefully considered the legitimate concerns and strongly held views of respondents to the consultation. There are good arguments on both sides. However, I must inform the House that the Government strongly holds the view that the word “insulting” should be retained in Section 5 of the Public Order Act.

The Government have a responsibility to protect the public so that communities and law-abiding citizens can live in peace and security. The police must have the powers they need to meet this responsibility. We have considered this matter—

Lord Maginnis of Drumglass: My Lords—

Lord Taylor of Holbeach: I am sorry, but I am not prepared to give way. I want the House to hear the argument that has gone through the Government.

We have considered this matter at great length—for too long, as the noble Baroness has suggested—and we have reached the firm view that Section 5 should not be reformed. There is insufficient evidence that the removal of the word “insulting” would be beneficial overall. I regret that this decision will not be welcomed by everyone, but I assure the House that it has been given careful consideration. I regret to say that should the noble Lord, Lord Dear, seek to test the opinion of the House, I will urge noble Lords—

Lord Maginnis of Drumglass: My Lords—

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Noble Lords: Order!

Lord Taylor of Holbeach: I will urge noble Lords to reject the amendment.

Lord Morris of Aberavon: Would the noble Lord like to comment on the fact that the Director of Public Prosecutions has changed his mind? How do the Government respond to and answer that change of decision?

Lord Taylor of Holbeach: The letter is available, no doubt, from the noble Lord, Lord Dear, in full. I suggest that noble Lords read the full text of the letter, not just selective quotations.

Lord Maginnis of Drumglass: In so far as I understand the term “abusive”—most noble Lords will understand that term—can the Minister define in legal terms the word “insulting”? I have not heard in anything that he said tonight a proper definition of “insulting”. I have heard it defined by the Opposition Front Bench. I shall leave my question at that. Can the Minister define “insulting”?

Lord Dear: My Lords, I shall respond to one thing. Lest there should be any doubt that I might have been concealing something in the letter from Keir Starmer QC, the DPP, having safely said that you can take “insulting” out of the section, in the last line he says:

“However, I also appreciate there are other policy considerations involved”.

I am bemused. I think that he probably knew something that I did not: that the Government are confused.

I hope that noble Lords on both Front Benches will allow me to say that I am totally confused by their attitude. We have a picture on the one hand that everything is well, despite the fact that the current DPP, the ex-DPP and the ex-Lord Chancellor—a plethora of legal minds in this House—have said that “insulting” can and should come out. The law is not leaving a hole in its place; “abusive” will cover it. There is the safety net of Section 4A, what is left of Section 5 and other legislation. I am deeply disappointed. I had hoped that the Government would support this, with the wide-ranging, voluminous support that there is on all sides of the House, from people who have much better experience than me.

The signals that have been sent tonight—indeed, that have been sent to all of us in the preceding few days—show that many noble Lords have put themselves about very considerably to hear this debate, travelling from the far corners of this country; I do not use those words lightly. We have waited far too long for this. Although I regret to have to say so, I beg leave to test the opinion of the House.

7.57 pm

Division on Amendment 119

Contents 150; Not-Contents 54.

Amendment 119 agreed.

12 Dec 2012 : Column 1132

Division No.  1


Adebowale, L.

Armstrong of Ilminster, L.

Ashton of Hyde, L.

Barker, B.

Benjamin, B.

Best, L.

Bilimoria, L.

Blair of Boughton, L.

Boateng, L.

Brabazon of Tara, L.

Bradshaw, L.

Brinton, B.

Brookman, L.

Brougham and Vaux, L.

Burnett, L.

Buscombe, B.

Butler of Brockwell, L.

Butler-Sloss, B.

Cameron of Lochbroom, L.

Cathcart, E.

Clancarty, E.

Clarke of Hampstead, L.

Clement-Jones, L.

Colwyn, L.

Cormack, L.

Crathorne, L.

Curry of Kirkharle, L.

Davies of Coity, L.

Dear, L. [Teller]

Deben, L.

Donoughue, L.

Eames, L.

Eden of Winton, L.

Edmiston, L.

Elder, L.

Elton, L.

Erroll, E.

Falkland, V.

Falkner of Margravine, B.

Fellowes, L.

Flather, B.

Forsyth of Drumlean, L.

Fraser of Carmyllie, L.

Gardner of Parkes, B.

Geddes, L.

Gordon of Strathblane, L.

Goschen, V.

Greaves, L.

Greengross, B.

Greenway, L.

Hamilton of Epsom, L.

Hamwee, B.

Hannay of Chiswick, L.

Haskins, L.

Haworth, L.

Heyhoe Flint, B.

Howard of Rising, L.

Howe of Idlicote, B.

Howie of Troon, L.

Hurd of Westwell, L.

Inglewood, L.

Jenkin of Roding, L.

Joffe, L.

Jolly, B.

Jones, L.

Jordan, L.

Judd, L.

Kennedy of The Shaws, B.

Kilclooney, L.

Kirkhill, L.

Kirkwood of Kirkhope, L.

Knight of Collingtree, B.

Kramer, B.

Laird, L.

Lamont of Lerwick, L.

Layard, L.

Lea of Crondall, L.

Lee of Trafford, L.

Lindsay, E.

Liverpool, E.

Lothian, M.

Lucas, L.

Luce, L.

Lyell, L.

Mackay of Clashfern, L.

Mackenzie of Framwellgate, L.

Maclennan of Rogart, L.

Maginnis of Drumglass, L.

Mallalieu, B.

Marks of Henley-on-Thames, L.

Masham of Ilton, B.

Mawson, L.

Mayhew of Twysden, L.

Meacher, B.

Miller of Chilthorne Domer, B.

Montrose, D.

Moore of Lower Marsh, L.

Morris of Aberavon, L.

Neville-Jones, B.

Nicholson of Winterbourne, B.

Northbrook, L.

O'Cathain, B.

Oppenheim-Barnes, B.

Palmer, L.

Palmer of Childs Hill, L.

Pannick, L.

Patel, L. [Teller]

Pearson of Rannoch, L.

Prashar, B.

Risby, L.

Roberts of Llandudno, L.

Rogan, L.

Rooker, L.

Roper, L.

Rowe-Beddoe, L.

Rowlands, L.

Ryder of Wensum, L.

Saltoun of Abernethy, Ly.

Selborne, E.

Sharp of Guildford, B.

Sharples, B.

Sheikh, L.

Shephard of Northwold, B.

Shipley, L.

Shutt of Greetland, L.

Simon, V.

Skelmersdale, L.

Slim, V.

Stern, B.

Stewartby, L.

Stoddart of Swindon, L.

Sutherland of Houndwood, L.

Taverne, L.

Teverson, L.

Thomas of Gresford, L.

Thomas of Swynnerton, L.

Tordoff, L.

Tyler of Enfield, B.

Ullswater, V.

Vinson, L.

Walmsley, B.

Walpole, L.

Walton of Detchant, L.

Warnock, B.

12 Dec 2012 : Column 1133

West of Spithead, L.

Wheatcroft, B.

Williamson of Horton, L.

Willoughby de Broke, L.

Woolf, L.

Young of Hornsey, B.


Ahmad of Wimbledon, L.

Anelay of St Johns, B. [Teller]

Ashcroft, L.

Astor of Hever, L.

Attlee, E.

Bassam of Brighton, L.

Bates, L.

Beecham, L.

Black of Brentwood, L.

Byford, B.

Cavendish of Furness, L.

Collins of Highbury, L.

Cope of Berkeley, L.

De Mauley, L.

Faulkner of Worcester, L.

Fink, L.

Freud, L.

Gale, B.

Garden of Frognal, B.

Gardiner of Kimble, L.

Hanham, B.

Haskel, L.

Hayter of Kentish Town, B.

Hill of Oareford, L.

Howe, E.

Kennedy of Southwark, L.

King of Bridgwater, L.

Lexden, L.

McDonagh, B.

McIntosh of Hudnall, B.

Marland, L.

Morris of Bolton, B.

Newby, L. [Teller]

Northover, B.

Patten, L.

Ponsonby of Shulbrede, L.

Popat, L.

Prescott, L.

Prosser, B.

Randerson, B.

Roberts of Conwy, L.

Rosser, L.

Royall of Blaisdon, B.

Seccombe, B.

Smith of Basildon, B.

Stoneham of Droxford, L.

Stowell of Beeston, B.

Strathclyde, L.

Taylor of Holbeach, L.

Verma, B.

Wallace of Saltaire, L.

Wallace of Tankerness, L.

Young of Old Scone, B.

Younger of Leckie, V.

8.08 pm

Amendment 119A not moved.

Clause 30 : Orders and regulations

Amendments 120 and 120A

Moved by Lord Taylor of Holbeach

120: Clause 30, page 30, line 43, after “30” insert “or 30A”

120A: Clause 30, page 31, line 6, at end insert—

“( ) an order under paragraph 76E of Schedule 12;”

Amendments 120 and 120A agreed.

Amendment 120B not moved.

Clause 33 : Short title, commencement and extent

Amendments 121 and 122

Moved by Lord Taylor of Holbeach

121: Clause 33, page 32, line 41, after “17” insert “and 18”

122: Clause 33, page 32, line 41, after second “to” insert “11, 12 and”

Amendments 121 and 122 agreed.

Amendment 122A

Moved by Lord Pannick

122A: Clause 33, page 33, line 1, leave out “Section 21(2) comes” and insert “Sections 21(2) and (Abolition of scandalising the judiciary as form of contempt of court) come”

Amendment 122A agreed.

12 Dec 2012 : Column 1134

Amendment 122AA

Moved by Baroness Deech

122AA: Clause 33, page 33, line 16, at end insert—

“( ) section (Appeals relating to regulation of the Bar);”

Amendment 122AA agreed.

Amendment 122B

Moved by Lord Pannick

122B: Clause 33, page 33, line 17, at end insert—

“( ) section (Abolition of scandalising the judiciary as form of contempt of court);”

Amendment 122B agreed.

Amendments 122C to 124

Moved by Lord Taylor of Holbeach

122C: Clause 33, page 33, line 33, at end insert—

“( ) Subsection (11) applies to section (Use of force in self-defence at place of residence) only so far as the provisions amended extend to England and Wales or apply in relation to service offences.”

123: Clause 33, page 33, line 34, after “apply” insert “to amendments made by section (Disclosure of information to facilitate collection of fines and other sums)(13) and (14) or”

124: Clause 33, page 33, line 38, after “section” insert “(Immigration cases: rights of appeal; and facilitating combined appeals),”

Amendments 122C to 124 agreed.

Public Services

Question for Short Debate

8.09 pm

Tabled by Lord Boateng

To ask Her Majesty’s Government what steps they intend to take to enable the voluntary sector to participate in the delivery of public services.

Lord Boateng: My Lords, I am grateful for the opportunity to ask this Question. I am even more grateful to the numerous noble Lords on all sides of the House who have indicated a willingness to speak in this short debate. The numbers themselves indicate the extent of enthusiasm and interest in the House in the voluntary sector. That comes as no surprise, because noble Lords of this House, on all sides, will have cut their teeth in public service in the course of engagement with and membership of voluntary organisations of all sorts. We are enthusiasts for the role of the voluntary sector and its capacity to contribute to the civic life of our country. We owe it a debt of gratitude.

This is a time of risk and opportunity for the sector. The opportunity lies in the undoubted commitment of this Government and indeed the appetite of peoples of all political persuasions and none for public service reform. We want to see the delivery of our public services improved and made more efficient. We believe—

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overwhelmingly, in my experience—that the voluntary sector has a role to play in enabling that to happen. It is a source of innovation; it permits a greater degree of connection with our citizens because it operates close to the ground; and it is a source of passion, enthusiasm and activism within communities up and down the country.

The opportunity is there for the public sector to take to its heart the voluntary sector, to embrace it and to enable it to contribute to the reform process. Many of us hope and believe that that was the impulse that lay behind the Prime Minister’s promotion of the big society. I have never been one of those who decried that term and ambition. I believe quite unabashedly in the big society where that means the active involvement of the citizen and their enablement and empowerment to take responsibility for the improvement of the community as a whole. It is summed up in the South African principle of “ubuntu”: we are what we are because of others, and our relationship with others shapes not only ourselves but also our society for the better.

That is why I was glad—along with a number of noble Lords in this House and honourable Members in the other—to accept the invitation of the Association of Chief Executives of Voluntary Organisations to join the Commission on Big Society. It produced a report which was widely welcomed by the voluntary sector and received by Government. We would benefit from a considered and detailed response from the Government. I hope that that will be forthcoming, and I look forward very much to the Minister’s response to the debate this evening, in view of his wealth of experience in the not-for-profit sector.

Central to the report’s findings was the call for a better partnership between central and local government and the voluntary sector. It made a number of practical proposals, which I will come to, as to how that partnership might be enhanced. The opportunity is there, if the Government will but take it, to find a partner for change and improvement in the voluntary sector. However, there is also risk. Only this week we saw published by the Charities Aid Foundation and the National Council for Voluntary Organisations a report on UK giving in 2012 that found that donations to charity had fallen by 20% in real terms in the past year. This means that £1.7 billion less is being given to charity. In addition, fewer people are donating to charity, and the average amount given by donors also fell. This undoubtedly reflects the period of austerity and the challenging economic times in which we live.

Even more worrying was the concern highlighted by a trawl of some 252 senior workers in charities by the Charities Aid Foundation. The results, also published this week, highlighted the severe threat facing many of our nations’ charities. The survey found that 17% of those asked said that is was likely that their charity would face closure in the next 12 months; 40% worry that their charity may have to close if the economic situation does not improve; nearly half—49%—of charities asked had been forced to use their reserves to cover income shortfalls over the last year; and more than one-quarter—some 26%—have cut front-line services.

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This is not a plea for more resources for charities in these straitened times. Of course, one always hopes for more resources and greater giving to charities. I hope that the Minister will pass on to the Chancellor of the Exchequer and the Chief Secretary that there is more that Her Majesty’s Revenue and Customs could do in reviewing the gift aid system and to promote giving; I hope it will do so. However, the main purpose of this debate is to ask what we can do and we should be doing to promote the partnership between the voluntary sector on the one hand and central and local government on the other. I argue that this partnership is at the heart of the reform of public services and the better delivery of services to the public.

That partnership was enshrined in the compact between the voluntary sector and government which was initiated by the previous Government and which has been carried on by the current Government—and to their credit. It sets out the key principles of the approach which needs to be taken to improve the relationship to the mutual advantage of both. The compact is itself subject to stresses and strains at this time. The recent Compact Voice report on local authorities and the voluntary and community sector found that up to 50% of local authorities are in fact cutting the voluntary and community sector disproportionately. What will the Government do to ensure that local authorities are sticking to best value guidance? One year on from the publication of the NAO report into compact implementation, what demonstrable progress has been made in the implementation of its recommendations?

I also raise with the Government the issue of commissioning. If there is to be an effective partnership between the voluntary and statutory sectors at a time of public service reform, we need effective public service commissioning. We need to see that the Public Services (Social Value) Act is effectively implemented. We need flexible commissioning approaches which allow potential providers to deliver in consortia and partnerships and to assist that progress. We also need to invest in the capacity of the provider base, particularly those smaller organisations which are working with vulnerable or hard-to-reach groups. Very often it is those hard-to-reach groups that can be adversely affected by the payment by results approach adopted by government. I do not deny that there is value in the approach, but I fear that bad practices such as cherry picking and going for low-hanging fruit, the targets that are easiest to achieve, may lead to a situation in which we will fail to serve those most in need—the most difficult to reach of those suffering from a disability, and the most hardened of those being served by the excellent charities working in the field of rehabilitation, crime prevention and with the homeless—if we adopt a payment by results approach.

What are the Government doing to ensure that emerging payment by results methods have effective tariff systems? They can make a huge difference to ensuring that government and the voluntary sector are working effectively together to address the needs of the most vulnerable. What are the Government doing to support the voluntary sector in the transition to payment by results models?

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I will end there. This is an important debate. I will welcome the Minister’s response to these questions and to the many others that no doubt we will hear from other noble Lords.

8.20 pm

Baroness Stedman-Scott: My Lords, I thank the noble Lord, Lord Boateng, and congratulate him on securing this debate. I declare an interest as the chief executive of Tomorrow’s People and a trustee of New Philanthropy Capital.

The subject matter is important to our country, our communities and our Government. We need professional, effective and robust public services delivered by whoever can best do the job. Noble Lords will need no confirmation that I am completely committed to the voluntary sector and the role that it plays. That it has a role to play in the delivery of public services I have no doubt. However, there are real challenges for both government and the sector if this is to happen and if we are all to step up to the mark.

I hope that my contribution to this debate will be seen as challenging but helpful, ambitious but realistic. It is not a case simply of assuming that the sector can step up to the challenge; it will have to consider some significant issues. I have no desire to set the hares running, but while I know that the Work Programme is new and in its early stages, there are significant lessons that we can all learn from the process of becoming involved in it. That applies to the sector and to government. The sooner we learn those lessons for the benefit of the people we are all in business to serve, the better.

I will address my first remarks to the sector; I am talking to myself now, in the nicest possible way. There needs to be a maturity in measuring impact in a consistent way. This is crucial. It is not what we as a sector believe that we can do, it is what we know we can do, with evidence to back up what we know we can achieve. My second point concerns financial capacity and capability. The issue of working capital needs to be understood. The payment by results point made by the noble Lord, Lord Boateng, is critical. Nobody I have spoken to has a problem with being judged on their results, but it is no good going into these things believing you can achieve something if you cannot prove it. If the voluntary sector is going to come into public service in a serious way, we must face the issue of scaling up. Sometimes in scaling up, organisations lose the magic of what they can do. Sometimes in becoming too big, we lose something. We must not compromise mission for volume and vanity. Coco Chanel said: “Turnover is vanity, profit is reality and cash flow is sanity”. That applies also to the voluntary sector.

I turn now to the Government and say to the Minister that there needs to be maturity in the commissioning process. Progress has been made. This has been demonstrated by the DWP innovation fund. I am grateful to the Government for that, but some people have said to me: “If only the Government would commission what works rather than what can be traded at the lowest fiscal cost”. We may get value into that. I am the first to understand that we are in

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very difficult times and that cost is a major factor. However, sometimes we spoil the ship for a ha’porth of tar.

It never does any harm to remember the people we are in business to serve. We have to hold them at the heart of what we do. Can the sector step up to the mark? Of course it can—but with changes. I am sure that with government procurement changes we can all do a much better job.

8.25 pm

Baroness Barker: My Lords, I, too, thank the noble Lord, Lord Boateng, for introducing this debate. I declare an interest; I have a consultancy called Third Sector Business.

Three years after the financial crisis in the City, the shock waves are making their way out to local government and to charities. The noble Lord mentioned the survey results that came out this week from the Charities Aid Foundation. They should have come as no surprise. The survey showed that there are approximately 10,000 charities that are very vulnerable because they derive a large percentage of their income from delivering services through contracts with local authorities. Probably some of the charities have lost sight of the purpose for which they were set up. Some of them may deserve to move over and make way for more innovative and interesting social enterprises that are very tech-savvy and cost-effective; but some of them for years have been subsidising local authority service provision, and some of them are very important to the communities that they serve and to which they bring additional benefits. Therefore, some of the organisations deserve help to survive.

The Government recognised that in April this year when the Cabinet Office launched the £10 million Investment and Contract Readiness Fund, run by Social Investment Business. That is a three-year programme, but it is urgent that learning from the programme should be got out quickly to charities that clearly need to develop new business models and the sort of skills that the noble Baroness, Lady Stedman-Scott, talked about, such as measuring their impact, knowing their cost base and, above all, being able to demonstrate that they are the best organisations to serve the people who need public services.

In 2007-08, the Public Administration Committee published Public Services and the Third Sector: Rhetoric to Reality, in which it asked: “Does size matter?”. It is a hugely important question. In future, public services that will be delivered by the third sector will primarily be those where it can be demonstrated that money is being saved elsewhere in the public expenditure budget. The problem with that is that often the people who deliver the services have real difficulty demonstrating the savings and the value to other parts of the public service system. Under the previous Government, Total Place budgeting began to address that issue. Under this Government, community budgeting is going to continue—but it has a long way to go before it will be possible for one public service commissioner to say, hand on heart, that giving money to a particular voluntary organisation has definitely saved money.

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It is particularly important for models of preventive services—in other words, services that apply across whole communities that are at risk rather than to individuals. Will the Government put greater effort into developing the community budgeting skills of local authorities and of the voluntary sector? Community budgeting will only work, as the noble Baroness, Lady Stedman-Scott, said, if we have a commissioning process which is sufficiently flexible to deal with the major problems which we have. There is a question about how we configure large and small voluntary organisations in future to deliver public services on the scale which we know is going to be necessary. We know that in social care, in order to relieve the pressure on NHS budgets, the voluntary sector is going to have to deliver a lot of high-quality services. In conclusion, this is going to be a very turbulent but quite exciting time if the Government can assist the voluntary sector with two or three specific targeted things which I have mentioned. I hope the Minister will say that they can.

8.30 pm

Lord Adebowale: My Lords, I will start by thanking the noble Lord, Lord Boateng, for his foresight in leading this debate. It is a very important issue which goes to the heart of what we might call a civilised society and the future of social services generally. In particular, it is a privilege to hear my good friends and colleagues, the noble Baronesses, Lady Stedman-Scott and Lady Barker, speak. Their comments were appropriate and timely. I was particularly keen to hear the philosophical reference to the ubuntu—something we should remember not just in the not-for-profit sector but in business generally. I declare an interest as the chief executive of Turning Point. I do not know whether Turning Point is too big or not. I am often amused by this reference to too big or too small in the not-for-profit business but not necessarily in any other business. Ours is an organisation that employs nearly 3,000 people and has services in 250 locations with a turnover of 80 million quid. That is not vanity; it is just a fact, and we will, I hope, make a surplus. The fact that we are not for profit does not mean that we are for deficit. This is an important point.

I want to refer to the not-for-profit sector’s and the voluntary sector’s contributions to health and social care, because that is my interest at the moment, and to the impact of spending cuts. In reference to health and social care, it is important to note that voluntary sector and, although I do not particularly like the word, not-for-profit sector organisations contribute a huge amount across a wide range of public services. I want to restrict my contribution to the health and social care sector, which is the focus of my day job. It is estimated that 57% of the not-for-profit sector workforce is employed in health and social care, which amounts to around 437,000 people. Over £4 billion-worth of health and social care services are provided by charities and social enterprises. Turning Point is a social enterprise. These services provide vital support to people at the sharp end of the inverse care law. It has been an ongoing theme of my existence as a Peer constantly to

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refer to the fact that those most in need of health and social care services tend to get them least. I could make reference to employment and other services that fit within that law. Often these people are at their most vulnerable and unwell. Not-for-profit organisations have specialist skills when it comes to delivering services to those with complex needs and the ability to innovate and offer tailored services that people can have confidence in was mentioned by the noble Lord, Lord Boateng.

The sheer size of the not-for-profit sector and what it offers means that its contribution to health and social care in particular is invaluable. However, both the public and not-for-profit sectors are facing very difficult times. The cuts are biting and we are all feeling the effects of reduced budgets. Many smaller charities are at risk of closing entirely. I think it is worth repeating the reference made by the noble Lord, Lord Boateng, to the Charities Aid Foundation which showed that one in six charities believe they face closure in the coming year amid public spending cutbacks and falling donations. Not-for-profit organisations are having to think long and hard about how they can remain sustainable when faced with local authority and health budget cuts while maintaining the quality of services and support that they provide to the people that need it. My own organisation, as has been reported and as some of your Lordships will be aware, is having to make some very difficult decisions in order to continue to provide high-quality services to support the most vulnerable people in society. The proposals that we are currently discussing with our staff and union were borne out of economic necessity and the decision to announce them was not taken lightly. The very tough economic climate means that we and other providers are facing the prospect of dwindling local budgets and the changing demands of commissioners who have less funds at their disposal.

I acknowledge that local authorities are working very hard to protect frontline social care services but it is a fact that they are facing a 28% reduction to their government grants. According to the Autumn Statement austerity is now also set to last for longer than expected—at least until 2017-18 if we are lucky—and the IFS has warned that more cuts will be needed in the future to plug the black hole in spending that it has identified of up to £27 billion. Given the vulnerability and lack of ring-fencing around much local government funding, the prospect of further cuts and their potential impact is deeply concerning. Everyone in the sector will have seen Barnet Council’s graph of doom which illustrates the acute social care funding pressure that local authorities are already facing as well as giving a warning for the future. The Government need to ensure that there is adequate local funding in the future so that fundamental social care needs can be met. Local authorities, care providers and the voluntary sector must be able to maintain and protect the quality of services and care that they provide. This is not just about the Government’s enthusiasm for the sector; it is about the Government’s ability actually to acknowledge the challenge facing public services at this time and to work in partnership with the not-for-profit sector, the private sector and the public sector to reverse the inverse care law.

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8.37 pm

Lord Judd: My Lords, as one who, like many others in this House, has spent a great deal of my life in voluntary agencies, I very much welcome the way in which my noble friend introduced this debate. It is absolutely undeniable that, with their integrity, experience, ethos and principles, voluntary agencies have a great deal to contribute to effective public service. They are free of the pressures of shareholders and profit. They are there to serve.

However, if this is to be the success that we all want it to be, we have to watch some issues very carefully. One is that this is genuine partnership and not simply voluntary agencies being contracted to provide a service defined by government. There must be an interplay between the agencies and the Government as to what the right services are and how they should be delivered. I was very worried once when I visited a young offender institution where there were dedicated workers on a contract to get those within the institution into jobs. As they did their work, they became convinced that there were quite a number of youngsters who were quite unfit to go straight into jobs and needed a lot more support, help and counselling before they would be ready to go into the employment sector. They got absolutely no credit for spending time on this; in fact, as they put it to me, they were endangering the contract because their job was to deliver people into jobs. That seems to be something we must look at very carefully, because it is a real danger, which could turn a good adventure into a sad story.

The other danger that we must take seriously is financial dependency. If voluntary agencies are working increasingly on government contracts, will their existence as agencies become dependent on that kind of income? I raise this because if I became convinced of anything in my time as director of Oxfam, it was that responsible advocacy could be one of the greatest services to those with whom we were working. By building real relationships of solidarity and real experience at the ground level, we were able to speak to government and society about the real underlying challenges we faced. I think it would be very unfortunate if, by the way that the scheme developed, agencies started self-censorship or dumbing down their advocacy role. That would be to betray their unique contribution.

As a member of the party I am in, I am in politics because I care about public services—I want the highest quality services. However, having worked in the voluntary sector, both as a volunteer and a staffer, I must say that the essence of the voluntary sector at its best is that it is a catalyst or challenge to society; it uses its experience to widen society’s outlook and to increase the sense of responsibly in society and, indeed, in government. As we take this opportunity forward, we must guard that principle as fiercely as we possibly can.

8.40 pm

Baroness Tyler of Enfield: My Lords, I add my congratulations to the noble Lord, Lord Boateng, on securing this very timely debate and start by declaring my interest as president of the National Children’s Bureau and vice-president of the charity Relate. I want to focus briefly on the importance of the voluntary

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sector in delivering vital services to vulnerable children and young people, as well as to older people, and to stress the importance of collaboration between sectors.

The children’s voluntary sector represents a quarter of the voluntary sector—34,000 organisations, the vast majority of which are small, local and with a low budget. It currently relies more on public funding than the voluntary sector overall, so is particularly vulnerable to austerity. Research so far suggests that it is also struggling to access new funding streams such as private sector funding and the newly emerging social investment market. In 2012, the NCB and the National Council for Voluntary Organisations estimated that children’s charities face cuts nearing £405 million between 2010-11 and 2015-16.

Despite austerity and despite these cutbacks, the children’s voluntary sector is doing invaluable work to identify and address social inequalities that, if unaddressed, can last a lifetime. I will give one quick example, of a project called Making it REAL—Raising Early Achievement in Literacy. It is a great project, with the NCB working in collaboration with eight children’s centres. The programme so far has touched nearly 500 carers, parents and grandparents, nearly 400 child participants and nearly 150 younger siblings through home visits and events in Sheffield and Oldham. Parents have improved their knowledge and confidence to support their children’s learning and children have progressed to the stage where nearly 90% can name a favourite book, compared to less than a quarter at the start, and more than 70% enjoy books most days compared to a mere 13% at the outset. I say that to try to bring this debate to life.

There are many other examples that I would love to give noble Lords but I have not got the time to show how the voluntary sector can really add value to the way the statutory sector delivers its statutory services. There are so many excellent examples of co-operation, and a very good report—which I commend to the House—called the Ripple Effect has set out some very good case studies in this area.

The services delivered range from cradle to grave. I have talked about children’s services but will very briefly talk about the work of the WRVS, which has 43,000 volunteers giving practical and emotional support to 100,000 older people monthly. It co-ordinates public services, and the home from hospital services provide support to older people after hospital discharge. By carrying out very simple tasks, shopping or making sure the right foods are available, they make a huge contribution to older people’s reablement. As my noble friend Lady Barker pointed, out the NHS is spared hospital costs to a very large degree. It is a real win-win.

This debate allows us an opportunity to ponder the way forward. The voluntary sector offers great potential for help in joining up services and making the best use of limited funds. I know that the children and families voluntary sector is eager to work with the Government to create a strategy which will enable it to become more sustainable and resilient during these difficult times. It will need a two-pronged approach. The voluntary sector needs to do all that it can to manage reduced resources and cut costs, including pursuing different

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business models and mergers, investing in its voluntary workforce and reinvigorating its fundraising strategies in all the ways that it can.

The Government have a clear role in engaging with the sector to develop the sort of transformation strategy that will help small and local charities to become much more resilient. This is likely to work better if it brings together representatives of the voluntary sector, service commissioners and potential investors. Will the Government be prepared to enter into these discussions with the sector to try to develop this sort of transformation strategy?

8.44 pm

Lord Mawson: My Lords, I thank the noble Lord, Lord Boateng, for this timely debate. I have spent the past 35 years demonstrating in practice how the voluntary sector can play a crucial role in innovation and in delivering public services in new ways that focus on the customer. How can it use its position, sitting between the often large bureaucracies of the public and private sectors, to bring much needed innovation in the delivery of public services?

The Health and Social Care Act eloquently mentions this. Integration, innovation, and enterprise are found in the legislation that encourages us to go local. These are important words, but words alone will not make this happen. New thinking and hard work are required. So how do we enable more voluntary sector organisations to win and deliver more public service contracts in a way that is a game changer?

First, you should start small and learn how to innovate and deliver public services well in one place before you exercise that overused phrase, “Roll it out”. The micro and the macro are connected. The Government should choose six projects located in specifically identified areas in the inner city, suburbia, the countryside and the north and south of England, and get it right in a few places and really understand what the blockages are, and not roll out a national programme before this has been done.

Steve Jobs obsessed about creating his first Apple store. He hid away for nine months in a warehouse and was fanatical about the small details. Apple is now one of the most valuable companies in the world. If the voluntary sector has a role, it must be in innovation, creating integrated customer-focused services and lifting the game. I worry that the Government have become very adept at talking and simply putting old men in new clothes.

My second point focuses on how best to get the voluntary sector to deliver. Simply encouraging it to play a role in delivering public services will achieve little. The rules, specifying to the nth degree how a contract is to be delivered rather than enabling the supplier to propose different solutions, possibly by integrating different services, constrict much needed flexibility and creativity. The VCS plays this bureaucratic game as well or badly as the public and business sectors. You are not good at delivery just because you are under the banner of “voluntary sector”. Flexibility is desperately needed, and I am pleased that the noble Lord, Lord Heseltine, makes this point in his important report.

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If you want innovation, you need to create space for it to happen and reward it. It is amazing how the new academy infrastructure for schools, for example, is quickly starting to look exactly like local authority education departments by another name. This happened 30 years ago when the Government got hold of housing associations and dumbed down their entrepreneurial flair. The business community moving into the health sector is starting to look like a public sector response with a few more bells and whistles. Working relationships with social entrepreneurs are not cementing fast enough because the Government are not commissioning services to create new, lean, innovative relationships. Bureaucracy speaks to bureaucracy. It does not understand any other language. The procurement systems of this country are broken. I have tried to raise these concerns with the Government. The noble Lord, Lord Gardiner, and I have talked about this, but no one seems to follow through on the practical detail. We have tried, but I have received no practical response that is interested in getting hold of this detail.

Generally, the gap in expertise and imagination is in the statutory and public sectors. While there is a procurement college now for large contracts, will the Minister tell us where is the support for innovation in the £20,000 contracts and for the hundreds of thousands of statutory and quango staff? Real change in public service must involve senior leadership. Otherwise it will quickly be regressive. In relative terms, contracts to the VCS are small and so the senior staff—the CEOs—do not often get involved themselves. What would happen if the procurement processes encouraged this engagement?

The Prime Minister once talked about the big society but, like the third way, it seems to have lost its way. I am interested in small societies and those teams of local players who can make all the difference. In order to see results, we need to understand the practice of what people on the ground do, and we need to help them to grow and up their skills in an organic way. They must be encouraged by us to innovate and deliver more, but we must not put elephants on their backs. We should incentivise this joined-up leadership, encourage these relationships between business and social entrepreneurs and build them into the procurement contracts. This is how we will create social value and innovation and move it to scale. It is all about relationships.

8.50 pm

Lord Best: My Lords, I, too, thank the noble Lord, Lord Boateng, for initiating this excellent debate.

I want to use my few minutes to make a practical point about the engagement of smaller charities and community-based organisations which currently find it very hard to win contracts to provide local services. Local authorities and health trusts, as well as central government, are often reluctant to entrust public money to these smaller bodies because they are unlikely to have capital to invest or assets to borrow against and they are inherently insecure financially, so there is a risk to public funds should they fail. Thus, despite the emphasis on localism and the fact that smaller bodies may well have the all-important trust of local communities,

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knowledge of neighbourhood issues, access to volunteers and real commitment at the grass-roots level, they lose out to major, national, often profit-making, organisations.

Sometimes the small charity or the community-based social enterprise finds itself used as “bid candy” to help the major players—the prime contractors—win contracts for public services, but then sees very little of the action thereafter. My proposal is that these smaller local bodies team up with the major housing associations operating in their area. Today’s housing associations are an enormously significant part of the voluntary sector. They are non-profit social businesses embedded in specific places with a full range of managerial skills that can provide the financial security and longevity which service funders desire. Together, the housing associations hold assets worth, at the last estimate, more than £109 billion. I declare my interest as chair of the Hanover Housing Association.

There is a large and growing number of examples of how this partnership between a quite small community-based organisation and a well resourced housing association can deliver a local service with an implicit guarantee against bankruptcy or failure because of the strength of the housing association’s balance sheet. A report out last week from the think tank ResPublica demonstrates how lots of housing associations are now delivering on the localism agenda by acting as vehicles, enablers, capacity builders and brokers for community activities of many kinds. I have time to give only one example. I visited a brilliant project in September supported by Aspire Housing, a housing association with homes in north Staffordshire and south Cheshire. The association has teamed up with a number of local social enterprises, of which this project was one, to provide employment and training for well over 1,000 young people each year by successfully organising apprenticeships and the skills that get them into work.

I accept that my proposal for more of these partnerships to enable the voluntary sector to deliver more and better public services could be undermined by welfare reform changes that impoverish housing association tenants and thereby jeopardise the finances of the housing associations, but that is a story for another day. Tonight, I would greatly welcome hearing the Minister’s response to this way of squaring the circle and enabling funders to work with a financially secure, well grounded, safe social business in the form of a strong housing association in partnership with really local voluntary sector, non-profit, charitable and social enterprises.

8.54 pm