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House of Lords

Wednesday, 4 December 2013.

3 pm

Prayers—read by the Lord Bishop of Derby.

Health and Social Care Act 2012: Risk Register


3.07 pm

Asked by Lord Brooke of Alverthorpe

To ask Her Majesty’s Government whether they will now publish the risk register prepared in advance of the passage through Parliament of the Health and Social Care Act 2012.

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con): My Lords, it remains the Government’s position that they will not be publishing the transition risk register. The decision to withhold the risk register was based on the principle that Governments, together with their civil servants, need to be able to consider all aspects of policy formation, including its risks, in private. It remains our view that a full and candid assessment of risk and the mitigating action required to manage it is carried out within a safe space.

Lord Brooke of Alverthorpe (Lab): My Lords, the House will be grateful to the Minister for reminding us of the Government’s position and of what is in the public domain, but I remind him that the Question is about what the Cabinet and the Secretary of State decided should not be in the public domain. Is there no shame or embarrassment on the part of the Government, who have imposed, quite rightly, a duty of candour on the NHS but who decline to practise that policy themselves by being candid with the public, particularly with those of us who use the NHS? What are the Government hiding? If it is nothing, they should publish the register tomorrow and put it away.

Earl Howe: My Lords, the Government are fully committed to transparency and openness, but they need also to be able to manage large and complex projects and programmes efficiently and effectively. If requests for information are made that threaten to compromise their ability to do that, as is the case here, then the Government have to weigh up whether releasing what is being asked for is, on balance and bearing in mind the consequences, in the public interest. Up to now, we have taken the view that the public interest is not served by publication.

Baroness Brinton (LD): My Lords, the previous Government refused to release Department of Health strategic risk registers in response to three requests under the Freedom of Information Act. Can my noble friend the Minister tell the House whether there is a discernible difference between this Government and the previous one in their approach to the publishing of risk registers?

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Earl Howe: That is a helpful question. I do not believe there is a difference. As the noble Baroness rightly said, on a number of occasions the previous Government refused to disclose the risk registers, and they did so for perfectly good reasons, one of which was to enable the safe space that I referred to earlier.

Lord Mawhinney (Con): My Lords, will my noble friend accept that many in your Lordships’ House will welcome this reaffirmation of the Government’s policy, particularly those who have had the privilege of being Ministers?

Earl Howe: My noble friend of course speaks with enormous experience of life in government, and I welcome his endorsement of the Government’s policy.

Lord Grocott (Lab): Will the Minister, who is clearly not going to give the information from the risk register, perhaps give us a clue along the following lines? Given the experience of the reform in operation, have any of the risks that were identified in the private risk register come to pass, or is everything going wonderfully well?

Earl Howe: My Lords, the risk register, as the noble Lord knows, is simply a tool that records the risk assessment process and the actions that need to be taken to mitigate those risks. However, to be effective, the process has to be robust and consider all likely implications—and indeed some that are not so likely—of a proposed course of action. The candid recording of risks enables them to be effectively managed. However, as the noble Lord knows, we have gone as far as we can in publishing the areas of risk that are contained within the risk register. I remind the noble Lord that in 2012 we published an extensive document that set out quite a lot of detail. That document is still available on the department’s website.

Lord Hunt of Kings Heath (Lab): My Lords, I refer noble Lords to my health interests. To return to the Question asked by my noble friend, is it not a fact that officials warned Ministers that they would be introducing a shambolic reform of the health service? Those officials, much-maligned by the noble Lord’s ministerial colleagues, have been proved to be absolutely right. As we are all looking forward to the new musical by the noble Lord, Lord Lloyd-Webber, can the noble Earl tell me which will be published first: the full Profumo papers or the noble Earl’s risk register?

Earl Howe: My Lords, I do not accept the noble Lord’s description of the transition, which has gone extremely smoothly. By most measures the NHS is performing very well indeed. Waiting times are low and stable, the number of people waiting more than 12 months has plummeted since 2010, hospital-acquired infections are at an all-time recorded low, we have more doctors and healthcare professionals in the system, and mixed-sex accommodation has been reduced to minimal levels. That does not indicate to me that the reforms have had a damaging effect—quite the reverse.

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Lord Dobbs (Con): My Lords, I am not sure whether a risk register was published before the war in Iraq. However, will my noble friend use his best influence on his colleagues in government to make sure that in the interests of candour the Chilcot report is published as soon as possible? We have all waited long enough for answers on that particular affair.

Earl Howe: My noble friend is quite right. We can all look forward to the publication of that thorough report.

Baroness Armstrong of Hill Top (Lab): My Lords, if the reforms are going so well, why does the Secretary of State, who now presides over an Act that said that the health service would be at a long arm’s length from Ministers, now see the key people in the health service at least once a week? Why does he take it upon himself personally to interfere in ways that during the passage of the Bill the Minister here told us very clearly Ministers would no longer be doing?

Earl Howe: The noble Baroness would have cause to complain if, in accordance with the debates that we had in this House on accountability, my right honourable friend did not hold the NHS to account on some of the areas of its activities where there were concerns. That is exactly what he does, and he does it quite properly.

Lord Hughes of Woodside (Lab): Is it not the case, in relation to the Chilcot report, that it is not the Government who are holding it up but something else? Will the Minister not hide behind red herrings like that? It is he and his Government who are refusing to publish the risk register, and they surely must do so.

Earl Howe: My Lords, over the passage of time a view can be taken about the sensitivity of the Department of Health risk register. That is what we have undertaken to do and what we will do. Next spring, we will reach one of the regular review points for the risk register. I can tell the noble Lord that work to review the register has already started in anticipation of that date.

Schools: Expenditure Per Pupil


3.15 pm

Asked by Baroness McIntosh of Hudnall

To ask Her Majesty’s Government what is the average spend per pupil in the state-funded education sector for 11 to 18 year-olds; and how that figure compares to the average spend per pupil in the private sector for the same age group.

The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con): My Lords, we estimate that state schools received revenue and capital funding of £6,350 per pupil in 2012-13, compared to independent day schools, which received £11,510. These figures cover pupils aged three to 19 years old, as there is no available

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breakdown of either figure to cover the requested age range of 11 to 18 year-olds. We cannot provide data relating to 2013-14, as these are not yet available.

Baroness McIntosh of Hudnall (Lab): My Lords, I thank the Minister for that unexpectedly helpful reply. We can accept from what he said that there is clearly a significant difference between the amounts of money being spent on children in maintained schools and those in independent schools. The House has often heard the Minister extol the virtues of the independent schools, and I acknowledge that there is a lot to admire in the best of them, but would he acknowledge that to use as he does the achievements of that privileged and exclusive sector as a stick with which to beat maintained schools is neither fair nor reasonable? Would he further agree that what parents who can afford to pay are buying—and I speak with authority on this matter—is not narrow focus on academic achievement, important as that may be, but a broad curriculum that properly values, for example, sport, music, drama and the humanities, the very subjects now fighting to avoid marginalisation under the Government’s new national curriculum arrangements?

Lord Nash: The noble Baroness is quite right that we cannot make the comparison, for the reasons that she states. I am delighted that she found my Answer helpful; we are always here to be as helpful as we can. I do not seek to use the independent sector as a stick to beat the state sector, but I personally find it quite shocking that 7% of the population go to private schools yet they take more than half the top jobs and more than 40% of the places in our top universities. That is a level of social immobility that I am sure we are all determined to change, without wishing in any way to knock either the state or independent sector.

I agree entirely that all pupils should receive a broad and balanced curriculum. The noble Baroness has vast experience of the performing arts. In their contributions to the “Best Eight” measure, there will be plenty of opportunity for schools to make a showing on a broad and balanced basis with subjects such as drama and music.

Lord Lexden (Con): Would my noble friend agree that it is important to bear in mind that more than one-third of pupils in independent schools pay reduced fees? Would not that proportion be even larger if the Labour Party had not abolished Margaret Thatcher’s marvellous assisted places scheme?

Lord Nash: I am fully aware that the independent sector provides bursaries of £300 million a year to pupils whose parents might otherwise not be able to afford to send them there, and that there are many examples of independent/state school partnerships. More than 90% of the Independent Schools Council members, 1,100 of them, support activities such as co-sponsorship of academies, or sponsorship—34 schools do that, while 388 schools provide specific lessons or other educational activities to state school pupils. Our ambition in this Government is to support all state schools and to improve their performance.

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Lord Storey (LD): My noble friend will be aware that the Charities Act 2011 can allow leeway for independent schools to claim charitable status if they are deemed to be of public benefit. Can the Minister make an assessment of how independent schools can further justify that they deserve this status by sharing facilities with state-educated children in the local community, thereby enhancing their education and opportunities?

Lord Nash: I have already mentioned the independent/state school partnerships, which are very active. I also mentioned bursaries. Precise assessment is impossible but we are keen to encourage, in any way we can, the independent sector to support the state sector. Despite the difference in finances there is a lot that both sectors can learn from each other. We should encourage the independent sector to engage with the state sector, rather than seek to berate it in any way.

Baroness Jones of Whitchurch (Lab): My Lords, I presume that the noble Lord will acknowledge that most public schools are, quite rightly, proud of their sporting achievements and their extensive sports facilities. As the noble Lord has committed himself to tackling the challenge of social mobility, how can this Government justify selling off so many sports fields? I think it was 50 state sports facilities at the last count. This obviously puts children in state schools at a disadvantage.

Lord Nash: As the noble Baroness said to me recently, I was not around, but I think our record on this is rather better than that of the party opposite. Indeed, we now have a very strong presumption that schools cannot sell off their sports facilities unless they are replacing them with equivalent ones. We are very keen to see all new schools have sports facilities. Where we are building schools in confined spaces, which we often are, we have used artificial turf or maybe sports facilities on the roof. We consistently now use games such as table tennis and basketball, which can be played by many pupils in confined spaces.

Baroness Oppenheim-Barnes (Con): My Lords, does the 7% that my noble friend cited as being high achievers include those children in this country who have the finest free education in the world at our remaining grammar schools?

Lord Nash: There is no doubt that our grammar schools provide an extremely good education. It is an interesting fact that, whereas 7% of the population get 50% of the top jobs, the grammar schools, which educate about 4.5% of the population, get more than 20% of the top jobs. This means that 90% of the population are getting into under 30% of the top jobs. It is that kind of inequality, particularly for poorer pupils, that this Government are particularly determined to improve.

Lord Foulkes of Cumnock (Lab): In view of the huge fees at Eton College, does the Minister agree that Stanley Johnson should ask for his money back?

Lord Nash: I do not.

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Railways: Rolling Stock


3.23 pm

Tabled by Lord Greaves

To ask Her Majesty’s Government what opportunities exist for increasing the quantity and improving the quality of railway rolling stock in the north of England.

Lord Bradshaw (LD): My Lords, on behalf of my noble friend Lord Greaves, and at his request, I beg leave to ask the Question standing in his name on the Order Paper.

Lord Popat (Con): My Lords, the Government’s investment in railway electrification in the north gives the opportunity to improve rolling stock. First TransPennine Express’s 10 new electric trains for the Manchester-Scotland route will come into service from this month. The department asked Northern Rail to develop proposals to introduce electric trains in the north-west from December 2014. Current investment in rolling stock will increase the number of vehicles available to the new north of England franchises due to start in 2016.

Lord Bradshaw: My noble friend may have seen the letter written at the end of November by his right honourable friend the Secretary of State, which refers to Rail North—that includes the Northern Rail and First TransPennine Express TOCs—having devolved responsibility for the procurement of rolling stock. This has been announced with great guns in the north, where it is desperately needed. However, the letter also refers to the DfT,

“taking a significant role within an initial partnership structure”.

That statement is further qualified towards the end of the letter with the words:

“DfT will run those franchise competitions to a common timetable, working closely with Rail North”.

Are we to understand that this is devolving responsibility to the regions, or is it yet another way in which the department is actually accreting more responsibility to itself?

Lord Popat: The noble Lord asks an important and interesting question. The Government remain supportive of the principle of devolution in the north of England. We have agreed with Rail North leaders an initial partnership structure to take forward devolved decision-making across the north of England to help manage the risk associated with a project of this scale. Rail North and the department’s officials are developing further details of the partnership for presentation to the Secretary of State and the Rail North local authorities early in the new year. Proposals to decentralise transport powers will assist in building a rebalanced economy away from reliance on the City of London.

The Earl of Courtown (Con): My Lords, my noble friend is probably aware that I travel from Swindon every day, which for many centuries was one of the

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homes of train manufacturing, although, sadly, that is no longer the case. What are Her Majesty’s Government doing to help train manufacturing?

Lord Popat: My Lords, this country has a long and proud tradition of building the best trains in the world. We would, of course, like to buy trains built in Britain wherever possible, and along with the Bombardier factory in Derby, the recent announcement that Hitachi is building a new factory in Darlington is welcome news. As part of our industrial growth strategy, the Government have taken a series of steps to support manufacture in this country. We can, and do, produce high-quality goods that are desired around the world. These railways can be very useful for us to sell abroad, especially to Africa and other countries.

Lord Davies of Oldham (Lab): My Lords, can we get to the nitty-gritty here? The Minister is surely aware that the average age of the northern franchise rolling stock is 24 years, and that of the Merseyside rolling stock is 34 years. The northern franchise uses the Pacer extensively. The Pacer is a bus body put on a freight chassis. It is exceedingly uncomfortable, unsafe and by 2019, which is the terminal date, it should meet the requirements of the Disability Discrimination Act, but it will not do so. Are not the Government responsible for this appalling state of affairs on northern railways?

Lord Popat: My Lords, I agree with the noble Lord that most of our rolling stock is very old. That is why we have embarked on £38 billion worth of investment in our railways to include new rolling stock. The Pacer does not currently meet the necessary standards that all trains must meet by 2020. It will be for the owners to decide whether to scrap them or to invest in extending their operating lives. With electrification, many more new trains will replace these old trains.

Lord Shutt of Greetland (LD): My Lords, is the noble Lord aware that last Saturday a significant rugby league match took place in Manchester, and that many people from the eastern side of the Pennines—the Yorkshire side—were anxious to attend it? Northern Rail ran two-coach trains across the Pennines. People were either packed into those trains like sardines or they did not get on them. Does the noble Lord believe that this shows the problem that we have with rolling stock? When significant events take place, if train operating companies cannot increase the number of carriages on trains using their own stock, should they not hire rolling stock from other train operating companies so that people can travel to these events in comfort?

Lord Popat: My Lords, there has been underinvestment in our railways for the past five decades. This Government have embarked on an unprecedented rail modernisation programme. Between 2014 and 2019, the infrastructure operator Network Rail will spend more than £38 billion on running and expanding our railways. With regard to Manchester, new electric trains are being delivered for the First TransPennine Express service from Manchester to Glasgow and Edinburgh. The choice of trains on other routes will be a matter for the local train operators.

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Lord Harris of Haringey (Lab): My Lords, the Minister was asked why the train operators cannot put on extra carriages. Can he explain how his answer addressed that question?

Lord Popat: I thought that I did address it: we have a shortage of carriages. The only way to address that is by buying new ones and many are on order. However, electrification will obviously help the capacity issue.

Immigration: Detention


3.31 pm

Asked by Lord Roberts of Llandudno

To ask Her Majesty’s Government whether, in the light of the case of Mr Isa Muazu, they will clarify their policy in relation to the detention of immigration detainees who are seriously ill and refuse food and fluids.

The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con): My Lords, a refusal to eat or drink will not automatically mean that a person should be released from immigration detention. This position has been upheld by the courts. On 19 November, Mr Justice Ouseley said that he did not accept the suggestion that the Secretary of State had adopted a hardline policy of saying that there would be no release for this claimant who was refusing food and fluid. He went on to say that the decision to start, maintain and continue the refusal of food and fluids to the end was for the claimant to make, adding that,

“his detention does not become unlawful simply because he is determined on that outcome”.

Lord Roberts of Llandudno (LD): My Lords, the Minister may be aware that last week I received an assurance from the Home Secretary that landing arrangements had been made in Nigeria. Something went seriously wrong. Why did the Government attempt to remove a dying man at such human and financial cost, and will the Minister give us an assurance today that Mr Muazu will not be deported in his present condition? Will he also instigate an immediate review into immigration detention and end such routine and inhumane treatment, always remembering that asylum seekers—even failed asylum seekers—are human beings just like us and deserve deep respect?

Lord Taylor of Holbeach: My Lords, it may help the House if I update noble Lords on the current situation concerning Mr Muazu. The welfare of detainees is our highest priority. While refusing food and fluids, Mr Muazu was continually offered medical treatment, including patient care at hospital, which, until recently, he continually refused. Mr Muazu is regularly monitored. The latest assessment—I had a report this morning—shows that he is eating and drinking well and is mobile, and that he continues to be fit to fly.

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Lord Dubs (Lab): My Lords, given that Mr Muazu was sent back on a plane and that the Government had failed to alert the Nigerian authorities about the arrival of that plane, what did the Government think was going to happen to Mr Muazu if he landed there? Were any arrangements made to look after him, given that at that point his health was very precarious?

Lord Taylor of Holbeach: My Lords, Mr Muazu’s flight to Nigeria on Friday returned to the UK for operational reasons which were not connected to his health or conduct. I assure noble Lords that a member of the Nigerian high commission was on that flight.

Lord Pannick (CB): My Lords, does the Minister believe that it was a sensible use of resources to charter an aircraft to remove a single individual from this country, as in the case of Mr Muazu?

Lord Taylor of Holbeach: The operational practices are not a matter that I want to discuss particularly but this case has great public interest. It is not the first time that an aircraft has been chartered for this purpose. It might help noble Lords to know that the number of enforced removals in 2008 was 17,200-odd and last year it was 14,600-odd. However, voluntary removals went up from 18,000 to 29,663 last year.

Lord Tebbit (Con): My Lords, are not all so-called detainees free to leave the so-called detention centre at any time, but only through the door marked “home” and not through the door marked “United Kingdom”? Should our noble friend Lord Roberts not make his complaint to the Nigerian authorities, which refused to accept one of their own citizens back home?

Lord Taylor of Holbeach: I will not comment on the latter point but, obviously, the Government’s policy is that when people are here and they have no permission to remain they should depart voluntarily.

Baroness Williams of Crosby (LD): Does my noble friend agree that someone being deported should at least be physically able to sustain their health during the flight? Does he further agree that there should be some contact with the Government of the country to which a person is returning to ensure that a man who is seriously ill will be met at the airport and taken to suitable accommodation to enable him to survive?

Lord Taylor of Holbeach: I think that my noble friend’s allegations about the condition of Mr Muazu at the time he was flying back to Nigeria are inaccurate. As I have said, he is currently fit to fly. He is eating and drinking, and is mobile.

Lord Tomlinson (Lab): Does the Minister accept that the Government’s policy of trying to reduce the net immigration figure from hundreds of thousands to tens of thousands is in tatters? Does he not share my regret that Mr Cameron had to go to China to slip it out in an answer there?

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Lord Taylor of Holbeach: I am sorry that the noble Lord takes that view. I am normally a consensual politician but I have to say that the record of the current Opposition when they were in Government was that net immigration rose by more than 2 million. That was out of control. The current situation is that this Government are taking steps to ensure that there are proper controls on immigration to this country, which I hope are supported by this House and, indeed, by noble Lords opposite. They can be difficult. The responsibility in a case such as this is not easy. Many noble Lords on both sides of this House have been faced with that responsibility. We should not shirk from that situation.

Children and Families Bill

Order of Consideration Motion

3.37 pm

Moved by Lord Nash

That the amendments for the Report stage be marshalled and considered in the following order:

Clauses 1 to 6, Schedule 1, Clauses 7 to 12, Schedule 2, Clauses 13 to 72, Schedule 3, Clauses 73 and 74, Schedule 4, Clauses 75 to 94, Schedule 5, Clause 95, Schedule 6, Clauses 96 to 105, Schedule 7, Clauses 106 to 119.

Motion agreed.

National Infrastructure Plan


3.38 pm

The Commercial Secretary to the Treasury (Lord Deighton) (Con): My Lords, with the leave of the House, I should like to repeat in the form of a Statement an Answer given by the Chief Secretary to the Treasury today in the other place. The Statement is as follows:

“Mr Speaker, as honourable Members will be aware, this June, I made a Statement to the House laying out the Government’s long-term plans for UK infrastructure, in which I set out our plans to invest more than £100 billion of taxpayer’s money over the next decade towards improving our transport networks, energy networks, digital networks and other specific infrastructure projects crucial to our civic life.

This morning, the Government published the latest updates of the national infrastructure plan, or NIP, and the investment pipeline. First, the documents provide an update on the projects that have been delivered to date, including the completion of 353 flood and coastal erosion schemes; 36 transport projects; major station upgrades, as we have seen at Kings Cross; and 10,000 houses being given access to superfast broadband every week.

Secondly, the documents update our plans to further improve delivery. The updated pipeline provides the most comprehensive overview of planned and potential infrastructure investment ever produced, which gives investors the long-term clarity and certainty they need to put their money into our infrastructure.

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The NIP also includes changes around legal and planning practices, including reforms to judicial review.

Thirdly, the documents update some of the details of our last infrastructure plan, including: changes to energy strike prices reducing slightly support for onshore wind and solar; increasing investment in offshore wind; meeting our growth commitments as cost-efficiently as possible; decisions on the option of the renewable heat incentive regime; changes to specific transport schemes, such as our decision not to toll the A14; to provide new investment in the A5; and to contribute £30 million to the garden bridge in London, as well as other important developments, such as our plans to double our corporate asset sales target.

Finally, today’s publication lays out the commitment, made today by a group of insurers, to work with government and regulators and invest £25 billion in UK infrastructure over the next five years. I am sure that honourable Members will agree that this represents a massive vote of confidence in the UK economy.

It also draws attention to the new agreement, signed with Hitachi and Horizon this morning, which commits us in principle to offering a guarantee for their nuclear power station at Anglesey. I am sure that honourable Members who have had a chance to look through the document will recognise that this is real evidence that we are making real progress on delivering an infrastructure fit for our country’s future.

The NIP is a plan that demonstrates a long-term vision for our energy, transport and digital networks. It is a plan that is helping to secure long-term investment. It is a plan that will lead to sustainable, strong, long-term growth. As such, I look forward to the honourable Member welcoming it with open arms and congratulating us on our progress”.

That concludes the Statement.

3.41 pm

Lord Adonis (Lab): My Lords, I welcome one part of the Statement—the decision to abandon the hare-brained scheme to levy tolls on the A14, which would have led to a mass diversion of trucks and cars on to Cambridgeshire villages.

However, does the Minister agree that the A14 episode illustrates why the Government are delivering so little real infrastructure as they announce ever more grandiose targets and plans? The upgrade of the A14—a vital growth corridor from the east coast ports to the Midlands—was shovel-ready in 2010. One of the first acts of the coalition Government was to cancel it, along with a string of other major road schemes, the expansion of Heathrow and 715 school-building schemes which were all ready to go. Last year, Ministers tried to resuscitate the A14 as a toll road with magic money. Now that scheme has collapsed, we are back to where we were in 2010, except that the costs have gone up by £200 million.

Is this not the story of infrastructure non-delivery on roads, airports and energy, and even more on housing, where completions are at their lowest level since the 1920s? Does this not explain why the ONS says that infrastructure work is down 3.7% in the past year after a fall of 10% in 2012; why the World Economic

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Forum ranks the UK 24th in infrastructure behind Oman and Barbados; and why today’s Treasury press release on the national infrastructure plan heralds, as one of its greatest advances, the spending of £10 million on new light bulbs in NCP car parks?

3.43 pm

Lord Deighton: I thank the noble Lord for bringing his experience to bear on what is a very important subject. I do not want to go through the normal procedure, whereby the Government lay out their plan for infrastructure and then the Opposition say that nothing much is happening. It is much too important for that. Remember that there was no national infrastructure plan before this Government came into office in 2010. All the reasons around any deferral of capital expenditure are totally a function of the economic mess that the previous regime left this country in.

Noble Lords: Oh!

Lord Deighton: One can laugh but it is as simple as that. Over the past three years, we have been trying to fix that problem—to stabilise the fiscal position and to push across money into vital capital schemes where we can afford it. That is what happened in the Autumn Statements in 2011 and in 2012. All the schemes that we laid out then are absolutely on timetable in terms of the announcements made at those points.

My right honourable friend the Chief Secretary went through the entire list of things that are currently being delivered, but the purpose of this plan is to break us out of the short-term cycle. I do not want us to be 27th on that list of countries: we are there because of 30 to 40 years of underinvestment. We, on both sides of the House, need to fix this together by promoting a focus on infrastructure to the top of the priority list for our economic strategy. We need to continue, through Government after Government, to prioritise in the right way; to get the systems working so we choose the right projects; to improve our capability so we deliver them effectively; and to make sure that this country is modernised in the way it deserves.

3.45 pm

Lord Bradshaw (LD): My Lords, I will give you a change from criticism. This plan is one of the first attempts to bring our infrastructure up to date but—there is a big “but”—we do not have the trained people to build power stations, develop the railway or set up the broadband. It is essential that we put some real life into the provision of engineering apprenticeships to provide the skilled people we need. I ask the Government to focus the necessary attention, once again, on our poor record in engineering training.

Lord Deighton: I thank my noble friend for his praise for the plan. It is important to focus consistently, year after year, on improving our capability to deliver infrastructure. I absolutely accept the importance of ensuring that we have a pipeline of engineering capability, brought right through from schools—and a renewed focus on STEM subjects—universities and research establishments, to enable us to deliver these projects effectively.

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Baroness Meacher (CB): My Lords, I speak as somebody who studied a bit of economics a very long time ago. All Ministers understand as well as I do that what happened in 2008 was, in fact, a banking crisis that began in the United States and affected the western world. We happen to have some big banks here and it therefore caused us some difficulties. It is not fair to neglect, over and over again, where this all started.

Lord Deighton: I thank the noble Baroness for broadening the perspective of the debate. While I accept that the banking crisis was an important contributor, it is clear to me, from my time in the Treasury, that the spending planned through those last few years created significant problems for this country.

Lord Beecham (Lab): My Lords, what proportion of the sums involved in the schemes announced today, many of which are recycled, do the Government expect to be spent in the north-east, the region with the highest levels of unemployment—in particular youth unemployment—in the country?

Lord Deighton: I am afraid I do not have the regional breakdown at my fingertips. However, if the noble Lord would care to go into the national infrastructure plan website, there is a map where you can drill down and see the details of every planned project, region by region.

Lord Walton of Detchant (CB): My Lords, following the question asked by the noble Lord, Lord Beecham, do the plans include the long, long-awaited dualling of the A1 in north Northumberland?

Lord Deighton: That particular project, along with five or six others, is the subject of a feasibility study to determine the right solution. Next year, when all those studies are complete, we will make a decision to go ahead with the proposed solution.

Lord Forsyth of Drumlean (Con): My Lords, will the Minister confirm that, had the Government stuck to Labour’s spending plans, capital expenditure would have been cut by considerably more and that, in coming into Government, we actually increased the allocation for capital expenditure? I congratulate him on his initiative, but how are the Government’s proposals to reduce the cost of electricity consistent with promoting offshore wind farms, which are the most expensive possible form of renewable energy and which will have to be paid for through people’s electricity bills?

Lord Deighton: With the first part of his question, as always, my noble friend forensically brings us to the detail. It is quite true that the Opposition’s plans for capital expenditure were lower than this Government’s. Subsequently, we switched current spend into capital spend in the Autumn Statements in 2011 and 2012, which further exacerbated this side’s advantage on investment. On my noble friend’s observation about offshore wind strike prices, the purpose of today’s announcement was to give the industry certainty in order to be able to get on with the building that we

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need, not only in nuclear but in wind and, over time, with the capacity mechanism, in gas. There are of course a variety of views about the speed at which we should decarbonise and the value of that, but the current status reflects our view on getting a diversified supply of energy.

Baroness Ford (Non-Afl): My Lords, the Statement hints at changes to judicial review. As the Minister well knows, delivering infrastructure requires not just a plan —which we are pleased to hear about even though we, as a Government, plainly had a plan, whether he recognises that or not—but access to requisite finance and, critically, planning consent. The Government in their supposed wisdom decided not to go through with the infrastructure planning commission, which would have been a huge asset in delivering speedy planning consents for major infrastructure projects. Can the Minister say whether the changes to judicial review will accomplish exactly the same end?

Lord Deighton: I thank the noble Baroness for her intervention and for bringing her experience to bear on this. The whole idea of the judicial review changes is to make sure that, on all matters relating to national infrastructure, we get through the process more quickly, where it is appropriate, and fast-track them. That is consistent with what she is discussing.

Anti-social Behaviour, Crime and Policing Bill

Committee (6th Day)

3.52 pm

Relevant documents: 12th Report from the Delegated Powers Committee, 4th Report from the Joint Committee on Human Rights.

Amendment 56MD

Moved by Baroness Smith of Basildon

56MD: Before Clause 100, insert the following new Clause—

“Firearms licences: assessing public safety

(1) The Firearms Act 1968 is amended as follows.

(2) After section 28A (certificates: supplementary) insert—

“28B Assessing public safety

(1) When assessing the threat to public safety under section 27, 28, 30A, 30B or 30C, the chief police officer must ensure that a range of background checks are performed.

(2) Where these checks uncover substantiated evidence of violent conduct, domestic violence, mental illness or drug or alcohol abuse, the presumption is that the chief police officer should refuse the licence application unless exceptional evidence can be brought forward by the applicant as to their suitability to possess a weapon.

(3) When assessing public safety within this section, the chief police officer must follow any guidance issued by the Secretary of State.”

(3) After section 113(1) (power of Secretary of State to alter fees) there is inserted—

“(1A) Before making an order under this section, the Secretary of State must consult chief police officers to ensure the level of fees collected by the police under sections 32 and 35 are appropriate after considering the costs they incur through the administration and assessment of firearms’ licences made under this Act.””

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Baroness Smith of Basildon (Lab): My Lords, we support the Government’s clauses on firearms but feel that more needs to be done, which is why we have tabled Amendment 56MD. Our proposed new clause calls for a broader range of better background checks to be included as part of the licensing process. It amends the Firearms Act 1968 so that a history of domestic violence, drug or alcohol abuse, or mental illness provides a presumption against the acquisition of a firearms licence, unless exceptional evidence can be provided to the contrary. It also introduces full cost recovery, to ensure that the cost of a licence reflects the cost to the police of processing it. In this amendment, firearms and shotgun applications are treated the same and the range of background checks is improved. Both the IPCC and the Home Affairs Select Committee in the other place called for this.

The Minister will recall that I raised this issue at Second Reading and gave a specific example, about which I know he will share my concerns. Susan McGoldrick was murdered, along with her niece and her sister, by her partner, who legally held a firearm. As many as one in three women killed by their partner in England and Wales is shot with a legally owned weapon; 64% of these murders involve shotguns. The Government have introduced new guidance, which is welcome, and I know that we cannot stop every crime by legislation alone, but we can do better.

In the past 12 months, 75% of female gun deaths occurred in domestic incidents; in 2009 the figure was 100%. The IPCC and the Home Affairs Select Committee have both proposed tougher rules to prevent people with a history of drug and alcohol abuse, mental illness or violence—particularly domestic violence—from acquiring firearms licences. The IPCC called for:

“Explicit guidance around domestic violence and seeking the views of partners/family members where domestic violence is a previous factor”.

We agree with the need for explicit and clear guidance on legislation but the issue of seeking the views of partners or ex-partners is somewhat difficult, and we would not support seeking the consent of a partner or former partner because that could lead to intimidation and place people at even greater risk. Perhaps there should be wider consultation on this with a range of people.

The present position is that just one home visit is required by law for an initial application. Good practice means that there can be additional visits or checks, but that is not in the legislation. I understand why there are concerns about the impact of part of this amendment on those who have a history of mental illness. I stress that mental illness at some point in a person’s life does not disqualify them for ever but they would have to provide evidence that would allow an exceptional case to be made for their suitability to possess a weapon. Of course, we are not saying that they cannot take part in shooting—there are registered clubs—they just cannot have weapons at home.

The Government have stated that the Home Office will issue guidance and that should alleviate the issue. But we are pretty sure that guidance alone is not enough to tackle tragic domestic violence-related deaths, which have been on the rise. It is not good enough, and that is why we have tabled Amendment 56MD.

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The other part of the amendment concerns full cost recovery. In so many areas, the Government are seeking full cost recovery, but not in firearms. I am curious about the reasons for this anomaly. Our amendment would require the Home Secretary to consult with police officers before setting a fee level that would enable police forces to recoup all the costs they incur when conducting proper background checks.

Currently a firearms licence costs just £50 for five years and only £40 for renewal, but if an application is processed properly it takes up a considerable amount of time, including home checks and background checks, which is not reflected in the cost of the licence. The cost of administering a firearms licence is much higher. Therefore, at present the taxpayer is subsidising the firearms licensing system by an estimated £18 million a year. Given the level of police cuts across the country, that level of subsidy seems unfair. It is difficult to understand why, at £50 for five years, the annual cost of a firearms licence is barely a third of the cost of a fishing licence, which costs £27.50 a year, and roughly equivalent to the cost of a CRB check, which costs £44 and only requires a name to be checked against a database, which is much less onerous.

The Government’s current position is that they will aim to introduce a fee regime in 2015 under which just 50% of the cost—not the full cost—is recovered by the police. I ask the Minister: why only 50% and why not until 2015? Why are fishing licences so much more expensive? Why are the Government not going for full cost recovery when they are committed to that general principle across the public sector, for example, with passports and driving licences? Why is that not extended to gun licences? At Second Reading we discussed full cost recovery on tribunal fees; that will come up again. The Government claim that they want to improve the system of background checks associated with firearms licences but will not commit to putting that in legislation. On full cost recovery, they say that they will introduce a fee regime in 2015.That is too late; it can be done sooner than that.

These issues need to be addressed now. We want to save lives and reduce the number of gun-related domestic violence deaths as soon as possible. Amendment 56MD seeks to do this and is a much more direct and effective solution than the Government’s alternative of vague guidance and promises for 2015. I beg to move.

The Earl of Lytton (CB): My Lords, I start by declaring an interest. I have interests in shooting and I am a firearms and shotgun licence holder. I have also been a referee for others who are such licence holders.

After the tragedy of Dunblane, it was one of my party tricks to ask chief officers of police whom I ran into how we were getting on with the police national firearms computer, which was promised in the wake of that tragedy. It took a very long time for anything that even approached that to become a reality.

4 pm

I said on Second Reading that I supported the Government’s proposals to tighten things up with regard to firearms licences. The amendment, however, seems to rest on a premise that is at variance with my experience and that of others whom I know. I sought

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information from the British Association of Shooting and Conservation. I am not a member of BASC, but every now and again, I attend the All-Party Parliamentary Group on Shooting and Conservation, for which BASC provides secretarial support. It has largely confirmed my belief.

I believe that the measures in proposed new Clause 28B, “Assessing public safety”, and subsection (1) in particular, are already being performed—those checks are already taking place. That is certainly my experience of what the police in more than one force are doing in response to an application. I believe that there is a new ACPO professional practice document for firearms licences due early in 2014. I have not seen it, but I understand that it will set out how that will be dealt with at database level on the police national computer, including local intelligence and the domestic violence unit. I understand that there is also new guidance from the Home Office, but I have not seen that either, but presumably it will tie in with what ACPO is doing. So I question whether the amendment is necessary.

On new subsection (2) and the question of,

“substantiated evidence of violent conduct”,

and so on, the chief officer of police must also always have final discretion on the matter, but that subsection appears to take that discretion away. That was also the view of BASC. In any event, presumption exists that someone such as Michael Atherton, who was known to be a heavy drinker and in a violent domestic situation, will be refused. Durham police knew that but failed to act. The amendment does not add anything and would do nothing to make that failure more or less likely. Perhaps the Minister has a different take on that.

On new subsection (3) and the question of the guidance of the Secretary of State, this may sound like semantics, but if it is guidance, adherence to it is presumably not mandatory. For it to be mandatory, there must be something more like a directive or regulation. If it is guidance or whatever, chief officers of police ought to adhere to it or be able to give pretty compelling evidence why they have departed from it. That should be on a case-by-case basis. The reason that I say that is that I am advised that settled law requires every such case to be considered on its merits.

With regard to the question of fees, I was not clear whether what is proposed is a flat rate, which is what we have at the moment, or whether there should be a variable rate depending on whether someone was what you might call a difficult customer and therefore needed more investigation. Perhaps that could be explained.

I do not really have a view on the actual level, other than that it should be proportionate and consonant with other licensing regimes. I suspect that in reality £50 looks a bit cheap. Those are my comments on the amendment.

Lord Harris of Haringey (Lab): My Lords, this seems to be a matter of straightforward common sense. When there is a history either in which people have been involved in violence or which suggests that they may not always be in full command of their activities, because of alcohol or drug misuse, those are exactly the sort of people who should be denied access to firearms. The cases cited about firearms being used in domestic violence situations are a particularly compelling example of why this is important.

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While I accept that chief officers of police must use their judgment, spelling out in legislation in this way that these are the matters they should look at, and that the presumption should be one in which they would refuse a licence application, is exactly the right way round it. That would then place the onus on those seeking the licence to demonstrate why they are suitable, notwithstanding the history of violence they may have shown or the fact that they were known to have substance abuse problems.

It is also extraordinary to hear from my noble friend Lady Smith about the difference in fees for various sorts of licence. This is surely an example where the fees should be set to reflect the fact that the checks which should be done should be thorough and all embracing, and should certainly cover the matters outlined in this amendment. On any common-sense interpretation of what Parliament should be doing about restricting the access to firearms of people who might be a danger to others, this is exactly the sort of amendment that should be put forward and agreed.

The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con): My Lords, I am pleased that we have had this short debate on what is a very important issue. The new clause proposed by the noble Baroness, Lady Smith, relates to two firearms licensing issues which were discussed extensively during the passage of the Bill in the House of Commons. As the noble Baroness has explained, the first part of the proposed new clause seeks to create a presumption that if an applicant for a firearm meets one of the stated criteria, the police should not grant a licence. The stated criteria include evidence of domestic violence, mental illness and drug or alcohol abuse. While I share the anxiety of the noble Baroness about firearms being possessed or accessed by unsuitable persons, the police already have the ability to take these factors into account when assessing the risk to public safety. I would also be concerned about including mental illness as a presumption for a refusal. It would be wrong for us to suggest that all forms of mental illness, even a past episode, should prima facie disqualify a person from possessing a firearm.

I understand that there are particular concerns about domestic violence and abuse. In response to these, on 31 July, we published specific guidance on this issue which provided greater detail on how the police should handle such cases. In addition to that the revised full guidance, published as recently as October—the noble Earl, Lord Lytton, may not have seen that but it is available—specifies that the police must take seriously non-convictions intelligence and information when assessing a person’s suitability to possess firearms. It also states that any incident of domestic violence or abuse which comes to the attention of the police should result in a review of the current suitability of the certificate holder. Decisions must be made on a case-by-case basis, but the guidance is clear that evidence of domestic violence will generally indicate that an application should be refused or, if a certificate has already been issued, that the certificate should be withdrawn. This new guidance is now being applied by police forces.

The proposed new clause also seeks to introduce a requirement that the police must follow any guidance issued by the Home Secretary when assessing public

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safety. I understand that argument, but I consider that guidance needs to remain just that. It is right that chief officers have the discretion to assess applications for firearms in their local areas, taking into account the merits of each case and the published guide. Chief officers are ultimately responsible for public safety at a local level. I agree with the noble Earl, Lord Lytton, on this. The Government have sought to make decision-making a local responsibility wherever possible. I would not want to undermine this.

However, we are ensuring that, where national action can support local decision- making, it does. We are working with the national policing lead for firearms licensing to ensure that police have a more detailed awareness and understanding of the Home Office guide. The College of Policing will also be publishing authorised professional practice on firearms licensing, which will complement and cross-refer to our guidance. I believe that this is the way forward. In order to assess standards, HMIC has carried out a scoping exercise on how firearms licensing is conducted in practice, and we will use the findings from the exercise to drive up consistency of decision-making across the country.

I turn to the second part of the proposed new clause, which seeks to introduce a legal requirement for the Secretary of State to consult all chief police officers before revising the licence fees so that they achieve full cost recovery. Noble Lords should be reassured that consultation with the police is integral to the fee-setting process and we fully accept the need to consider the impact of licensing on police resources. That is why a new online licensing system is being introduced, cutting the administrative burden of a paper-based system. Primary legislation is not required to make this happen. Until we have driven out the inefficiencies in the current paper-based approach to the licensing function, it would not be appropriate to raise the fees fourfold in order to achieve a “one giant step” full cost recovery. The current fees and licensing structure has remained the same for a long time and—we all accept—needs to be reviewed. It is extremely important that we achieve a balance between an efficient system and a proper fee level. For this reason, we are considering what level firearms licensing fees should be over the long term, once these efficiencies have been made. I hope that, having demonstrated to the noble Baroness that we have made considerable progress on these issues, she will be persuaded that further legislation is unnecessary and in a position to withdraw her amendment.

Baroness Smith of Basildon: My Lords, I would love to have been persuaded by the Minister, because the only reason we brought this amendment forward is that the current system is not working. If it were, there would be no need for such an amendment, so it is clear that we are extremely concerned. I was interested in the point raised by the noble Earl, Lord Lytton, on the case of Michael Atherton; he said that existing legislation was adequate. I tell him that there are a number of reasons why Mr Atherton should not have had a firearms licence, perhaps most crucially his history of domestic violence. The police wanted to refuse his application, but they were given legal advice that they did not have the grounds to refuse. That is part of the

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problem: it indicates the change in the law that is needed. Discretion can be very difficult for police officers when they are getting legal advice that, if they use that discretion, they will be challenged in courts. That is one of the reasons we have brought this forward. I understand the concerns on mental illness, and I would never suggest for a moment that anybody who has had a mental illness should not be able to hold a licence. I think, however, that there should be a check on people who have had a mental illness who could be a danger to themselves or others; where it is coupled with domestic violence, for example, then there is a case.

I am also rather surprised by the Minister’s issue on full cost recovery, because I do not think that that principle is applied to other areas of full cost recovery. It does not really explain to me why a fisherman pays so much more to have a licence or why that licence is so much more expensive than a firearms licence.

In the light of the debate today I will take away the Minister’s comments and look at them in Hansard, and for now I beg leave to withdraw the amendment.

Amendment 56MD withdrawn.

Clause 100: Offence of possessing firearm for supply etc

Amendment 56ME not moved.

Clause 100 agreed.

Clause 101 agreed.

4.15 pm

Amendment 56MF

Moved by Lord Ahmad of Wimbledon

56MF: After Clause 101, insert the following new Clause—

“Possession of firearms by persons previously convicted of crime

(1) In section 21 of the Firearms Act 1968 (possession of firearms by persons previously convicted of crime), before subsection (3) there is inserted—

“(2C) Where—

(a) a person has been sentenced to imprisonment for a term of three months or more, and

(b) the sentence is suspended under section 189 of the Criminal Justice Act 2003,

the person shall not have a firearm or ammunition in his possession at any time during the period of five years beginning with the second day after the date on which the sentence is passed.”

(2) In section 58(2) of that Act (saving for antique firearms), for “Nothing in this Act” there is substituted “Apart from—

(a) section 21 and Schedule 3, and

(b) any other provision of this Act so far as it applies in relation to an offence under section 21,

nothing in this Act”.

(3) Where—

(a) a person is in possession of a firearm or ammunition immediately before the day on which subsection (1) comes into force,

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(b) by reason of a sentence imposed before that day, subsection (1) would (but for this subsection) make the person’s possession of the firearm or ammunition subject to a prohibition under section 21 of the Firearms Act 1968, and

(c) the person’s possession of the firearm or ammunition immediately before that day is authorised by a certificate within the meaning given in section 57(4) of that Act,

the prohibition does not apply while the certificate remains in force.”

Lord Ahmad of Wimbledon (Con): My Lords, the Government remain committed to strengthening the system of firearms control where necessary in order to protect people from harm. We have identified two loopholes in the Firearms Act 1968 that we are taking the opportunity provided by this Bill to address.

The first change is in response to a recommendation made by the Home Affairs Select Committee in 2010. The committee recommended that persons with suspended sentences should be prohibited from possessing firearms in the same way as those who have served custodial sentences. The Government have accepted that recommendation, and subsection (1) of the new clause will ensure that the same prohibition applies to people who have suspended sentences.

A person who has served a custodial sentence of between three months and three years cannot possess a firearm for five years after the date of their release. For the purposes of suspended sentences, this prohibition will start from the second day after the date of sentence rather than the date of release. This is because a person with a suspended sentence will not be in custody from the date of sentence, so the prohibition needs to begin almost immediately. We have said the second day after the date of sentence so that, if the person does have a firearm, they are not instantly in breach of the law upon receiving their suspended sentence. In effect, they may have around 24 hours to sell the firearm or transfer ownership of it to someone else.

I should say, however, that this requirement on a person given a suspended sentence immediately to divest themselves of any firearms is subject to the transitional provision in subsection (3) of the new clause. This provides that a person who has had a suspended sentence imposed, and who holds a firearm or shotgun certificate on the day that the new legislation comes into effect, will be able to continue to possess their firearm or shotgun for the duration of that certificate. This is to ensure that we are not placing any additional burden and bureaucracy on the police by obliging them to go through their records to find certificate holders who have suspended sentences. As I have already said, this is purely a transitional arrangement; it will not apply to anyone given a suspended sentence after commencement.

The second change, made by subsection (2) of the new clause, will ensure that prohibited persons are prevented from possessing antique firearms. Currently a person with any criminal conviction would be able to possess an antique firearm. Intelligence indicates that there is a growing interest in antique firearms from criminal groups. This amendment will ensure that persons convicted of a criminal offence and sentenced to at least three months’ imprisonment, including a suspended sentence, will be prohibited from possessing antique firearms in the UK.

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We believe that closing both these loopholes will strengthen public protection by ensuring that, as the 1968 Act intended, persons convicted of a criminal offence carrying a sentence of at least three months’ imprisonment are prohibited from possessing firearms. Amendment 104 simply makes a consequential amendment to the extent clause. I commend the new clause to the Committee.

Baroness Hamwee (LD): My Lords, my noble friend the Minister said that an offender would be allowed a couple of days’ grace, as it were, to sell or hand over the firearm. If the offender wanted to hand it to someone in the same household, would that person have to have a licence, so that there would be no question of it being kept around on the premises and available unless the licence was already there for someone else?

Lord Ahmad of Wimbledon: I am sure my noble friend saw me nodding. That is quite correct.

Lord Rosser: We certainly support these amendments as they address gaps in the legislation and will enable more effective and comprehensive monitoring of firearms licensing. It is interesting to note that the Government’s intention to close loopholes in firearms licensing seems to stop at those on suspended sentences and at tightening regulations on antiquities. Although we agree they are important areas, the Government’s legislation, as we said on the previous amendment, does not extend to other rather more serious areas of activity or to preventing people obtaining a firearms licence. The Government seem to be keen on addressing loopholes in certain aspects of granting firearms licences but not, apparently, in others.

Lord Ahmad of Wimbledon: I believe my noble friend Lord Taylor has already dealt with that issue.

Amendment 56MF agreed.

Clause 102 agreed.

Debate on whether Clause 103 should stand part of the Bill.

Lord Faulkner of Worcester (Lab): My Lords, I intervene very briefly on this to thank the Government for including this clause in the Bill. It will have the effect of ending the present ludicrous and anomalous situation where British Transport Police officers can be selected and trained in the use of firearms, but then have to apply individually for firearms certificates, adding enormously to the bureaucracy through which they have to go and delaying the recruitment of trained officers to serve the British Transport Police. This is a subject I raised first during scrutiny of the Police Reform and Social Responsibility Bill in July 2011 and because nothing had happened by the start of this Session, I introduced a Private Member’s Bill which would have produced this effect. I am delighted to say that I got a letter from the noble Earl, Lord Attlee, on 21 May saying that my Private Member’s Bill was not necessary because the Government were going to include this provision. Indeed, the words in this new clause exactly follow the words I had in the Private Member’s Bill, so this is my opportunity to say thank you.

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Lord Rosser: I assume this is something the British Transport Police wants. I can hardly imagine that it is something the Government are imposing on it. Is this something it has been pressing for some lengthy period or has it been pressing for it only recently?

Lord Taylor of Holbeach: The noble Lord, Lord Faulkner, indicated that considerable extra burdens have been created for the British Transport Police in undertaking its responsibilities in this direction. We have been made aware of it. The noble Lord, Lord Faulkner, has been a very strong advocate of the issue. I am pleased that the Home Office has been able to respond favourably.

Clause 103 agreed.

Amendment 56N

Moved by Lord Foulkes of Cumnock

56N: After Clause 103, insert the following new Clause—

“Assault on workers in public facing roles

(1) A person, being a member of the public, who assaults a worker—

(a) in the course of that worker’s employment, or

(b) by reason of that worker’s employment,

commits an offence.

(2) No offence is committed—

(a) under subsection (1)(a) unless the person who assaults knows, or ought to know, that the worker is acting in the course of the worker’s employment;

(b) under subsection (1)(b) unless the assault is motivated, in whole or in part, by malice towards the worker by reason of the worker’s employment.

(3) In this section—

“worker” means a person whose employment involves dealing with members of the public, to any extent, but only if that employment involves—

(a) being physically present in the same place and at the same time as one or more members of the public; and

(b) interacting with those members of the public for the purposes of the employment; or

(c) providing a service to either particular members of the public or the public generally,

“employment” in this context means any paid or unpaid work whether under contract, apprenticeship, or otherwise.

(4) Evidence from a single source is sufficient evidence to establish for the purpose of subsection (1) whether a person is a worker.

(5) A person guilty of an offence under this Act is liable, on summary conviction, to imprisonment for a period not exceeding 12 months or to a fine not exceeding level 5 on the standard scale.”

Lord Foulkes of Cumnock (Lab): My Lords, Amendment 56N would create a new clause in the Bill. I think it is a key amendment. Since tabling it, I have received expressions of support from all sides of the House. I am glad to see the noble Lord, Lord Bradshaw, and the noble Baroness, Lady Coussins, in their places. They and others have expressed to me support for this amendment. I have not yet had the support of the Minister. I know that he is a listening Minister—I think it is the noble Lord, Lord Taylor, who is going to reply. I know him very well. I bump into him at airports and other places. I know he listens to logical

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argument and is concerned about these issues. I am sure that with a little persuasion we will get some sympathy, if not today then at some later stage.

I am sure that other Members of this House have been motivated as I have been by stories of shop workers who have been attacked when trying to apprehend shoplifters and effectively doing the work of a policeman. They are surrogate policemen in those instances, yet they get attacked as a result. There have been stories, too, of licensees set upon by teenage thugs for refusing to sell them liquor because they are underage. They may be underage for buying liquor but many of them are big, strapping lads and can inflict serious injuries on shopkeepers. That was the motivation behind the amendment and I will give a few examples and arguments later.

First, I acknowledge with sincere gratitude the help and support that I have received from the Union of Shop, Distributive and Allied Workers—USDAW—in drafting the amendment and advising on it. Unions sometimes come under attack and receive criticism of one sort or another, which is sometimes apposite, but they really look after their workers in so many ways. When legislation is being considered, our concern is to see what can be done to improve the lot of those workers. I particularly thank Karen Whitefield, a former Member of the Scottish Parliament, who helped with this, and Ruth George, one of the USDAW staff, who helped me greatly.

This amendment would cover more than just shop workers. It would cover health workers, public transport staff—about whom the noble Lord, Lord Bradshaw, is particularly concerned—local government staff, government agency staff, postal workers, teachers and catering staff; so the coverage is widely spread. In our privileged position in this House, it is sometimes easy for us to be divorced from the problems experienced daily by those on whom we rely for basic goods and services, so I will give some statistics that the union has provided. In 2012 alone, there were 120,000 violent attacks against retail staff throughout the United Kingdom; it is a very widespread problem. The Association of Convenience Stores has also expressed concern about this. In a briefing earlier today, it said that in the past three months more than half of retailers reported being victims of verbal or physical abuse during the course of their work. These are ordinary working people, often earning the minimum wage or little more, who are being attacked for simply doing their jobs and upholding the law of the land.

Consider for a moment the fact that 30%—nearly a third—of such violent and abusive incidents occur, as I said earlier, when customers are challenged on restricted items such as alcohol or cigarettes; that is, when staff are upholding the laws that we passed. Other such incidents occur when staff confront shoplifters, again when those staff are upholding the laws that we passed.

The assaults suffered by these workers are especially traumatic. People then have to go back and continue to work each day in the same situation in which they were attacked. Many retail staff report anxiety, panic attacks and a pervasive fear that such an incident will happen again. Such are the conditions under which they work.

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I was given one example of a man in Sunderland out celebrating his lenient sentence—ironically, for a previous assault on someone with learning disabilities—who tried to steal some pork scratchings. He was challenged by a shop worker. First, he racially abused her in front of children and then tore out chunks of her hair. The shopkeeper was left shaking and crying, with her hair on the ground. The offender received as a punishment only a 12-month suspended sentence, effectively getting off. Such decisions do not acknowledge the physical and mental anguish suffered by the victim and do not inspire public faith in the criminal justice system. To make matters worse, there are so many cases that go unprosecuted. Perhaps it comes as no surprise that an USDAW survey showed that 17% of retail staff who had suffered a physical assault at work had not reported it as they believed that nothing would be done.

4.30 pm

What, then, does the amendment do? It sets out to create a specific offence of assaulting someone who works with the public in the course of their employment. At present, doing that is simply one of 19 aggravating factors, and experience of prosecutions and sentencing shows that that is often not enough to see justice done. In far too many instances, because of the laws that currently govern assault in the workplace, the police and the CPS seem to decide that it is just not worth prosecuting people in those cases of common assault, as they will be fined perhaps only £50 at the end of that long procedure.

If, however, the amendment was passed, it would help to bring such cases to court and ensure that sentencing reflected the seriousness of the crime. By making assault on a public-facing worker a separate offence the amendment would elevate the seriousness of that crime and put it well above the offence of common assault in the sentencing guidelines. That, in turn, would make the range of penalties for offenders higher, thus encouraging a higher number of prosecutions. It would also send a clear message that such behaviour was totally unacceptable and, I hope, have a deterrent effect.

I advise the Committee that in Scotland similar protective measures for emergency workers have led to a decline in such incidents and to more than 1,000 prosecutions. I hope that the Committee will agree that the time has therefore come to provide shop workers, health workers, public transport staff, local government staff, government agency staff, postal workers, teachers and catering staff with a similar level of protection. If the Government are really on the side of those hard-working people—I know that the Minister has said so on a number of occasions, as have others—they can start by joining with us who support this amendment to give these men and women the peace of mind and support that they deserve. I beg to move.

Lord Bradshaw (LD): My Lords, I support what the noble Lord has just said. I was moved to speak to the amendment having recently watched the six films on Channel 4 about the staff on First Great Western. It was brought to my attention—although I should have known it—that there was a lady guard or train manager

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on a train going from Paddington to Swansea. She went the whole way and was by herself. The train was invaded by drunks at Paddington, Reading, Swindon, Bristol, Newport and Cardiff. They got off at one place, another lot got on, and they got more and more drunk as the train went on. She had no means of defending herself whatever; I think it was only her good sense of humour that got her through. Other films showed people manning ticket barriers by themselves and being fearfully abused by people who were offering violence and that sort of thing.

That caused me to wonder about transport workers who work alone. If you are driving a bus in north London on a Friday night—I do not advise you to be a passenger—some people’s behaviour can be quite awful. We expect public servants to take that. As the noble Lord, Lord Foulkes, said, we sit here in comparative safety and peace, but I know from my time on the police authority that going around big cities on Friday and Saturday nights is an appalling position in which to be, especially during the small hours. I suppose that policemen cannot be offended by obscenities and threats of violence, but I am sure that many staff are very much frightened by them.

When I was coming to your Lordships’ House at the beginning of the week, on Monday, I was standing on the Bakerloo line platform at Paddington, where there was a relatively young lady who was the Bakerloo line duty manager. A man who looked as if he was drunk and had been to the races—the camel coat was the sign—was abusing her with the most awful obscenities, waving a stick and threatening to punch her, and all sorts of things. Yet she was down there in the station, absolutely alone; there was nobody else to whom she could turn for support.

What I want to know, and what I would like the Minister to mention in his reply, is whether the penalties really fit the crime. Is it enough to fine people £50 when the magistrate or court sits on a Tuesday morning, when everybody is sober and fairly well behaved? There should be an exemplary punishment. I am not in favour of shutting a lot of people up in prison, but there is scope for very substantial periods of community service. If they have to be served on Saturday and Sunday—or, more particularly, on Sunday, clearing up the mess of the night before—it is all well and good. If those people can be taken off the streets for a fair period of time, it would send a message not only to them but to the people with whom they associate.

In the peaceful town where I live—at least, I think that it is peaceful—fairly recently, a person racially abused a bus driver, assaulted him and broke his glasses. In that case, the court sent him to prison, though not for very long. It needs to be ingrained in people’s minds that if you assault somebody who is doing a public duty, particularly when that person is alone, you need to be dealt with more severely. I hope that the noble Lord, Lord Taylor, will have something to say about how that penalty can be toughened up.

Baroness Coussins (CB): My Lords, I support Amendment 56N. It would be particularly helpful and appropriate for workers in the licensed trade. I currently work with producer companies, but declare an interest as a former chief executive of the Portman Group, where

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I also worked with licensees in both the on-trade and the off-trade. I am aware that vulnerability to assault is a live and worrying issue among this group of people, who have already been flagged up as a group for concern by the noble Lord, Lord Foulkes. The public are not generally aware that this is one of the issues of concern to people in the licensed trade, because it does not get any attention or media coverage. On the contrary, coverage about alcohol-related violence and anti-social behaviour tends to portray licensees as the bad guys for serving underage customers or drunks, or for provoking violence just by being there. The truth is that only a very small proportion of licensees are guilty of such offences as serving underage customers; the vast majority are scrupulously and professionally operating responsibility schemes such as proof of age ID to abide by the law and do the right thing. Yet, all too often, they are the victims of a backlash by violent customers for doing so.

The noble Lord, Lord Foulkes, referred to the survey from the Association of Convenience Stores, which was conducted only in August this year—so it is very recent and up to date. That survey revealed that 51% of retailers reported being a victim of verbal or physical abuse in the previous three months during the course of their work. When you match that up with the shopworkers’ union survey data, which suggested that refusing to sell age-restricted goods such as alcohol is a flashpoint for violence and abuse in 30% of cases, you can see how important this new measure would be for the licensed trade. Of course, it is not just a problem for the off-trade; the National Pubwatch scheme reports that pub licensees and their bar staff, as well as door staff, face a great deal of hostility when they are just doing their jobs. Indeed, National Pubwatch recently ran a campaign called “Court not Caution” to draw attention to the extent to which assault against their members was often ignored or seen to be dismissed by the police, who often seem to caution people for really quite serious incidents. This is leading to an undesirable loss of confidence in the criminal justice system. In one case a licensee had been smashed in the face with a glass but the offender was simply cautioned—never mind a £50 fine. The licensee subsequently suffered mental trauma and had to leave the trade and her livelihood. I believe the offence proposed by this amendment would be proportionate and consistent with the existing offence of assaulting a police officer and I urge the Government to give it the most serious consideration.

Lord Condon (CB): My Lords, I declare my registered interest in policing. I am sympathetic to the reason why the noble Lord, Lord Foulkes, has moved the amendment and why it has been supported by the noble Lord, Lord Bradshaw, and the noble Baroness, Lady Coussins. However, I fear the real mischief they and we might seek to address is not the absence of suitable offences but the absence of action by, perhaps, police, prosecutors and sentencers. There is a range of assault offences already on the statute book that is more than adequate to cover the challenges that noble Lords have raised, such as common assault, assault occasioning actual bodily harm, grievous bodily harm and aggravated assault if there is a racial element.

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There are more than adequate offences on the statute book to deal with this challenge. The real mischief is the absence of action, the overuse of cautioning or the overly lenient sentencing around these offences—

Lord Foulkes of Cumnock: I understand what the noble Lord is saying but will he accept that there is a specific offence of assault of a police officer, which has higher penalties than ordinary assault? When a shopkeeper is doing effectively the work of a police officer in arresting someone who is shoplifting, should that not be considered in exactly the same way as an attack on a police officer?

Lord Condon: I hear what the noble Lord says but I do not find myself in total agreement with his arguments. He mentioned the experience of Scotland. That was a very laser-like, focused new offence on emergency workers only. I am genuinely sympathetic to the motivation behind this amendment but it is such a broad category of workers, across such a huge range of situations. Apart from the important symbolism of saying, “Here is a new offence”, I fear it would not add practically to improving the situation overall, and I say that with hesitation. The example the noble Lord, Lord Foulkes, gave of a licensed worker having their hair pulled out is clearly at least an assault occasioning actual, if not grievous, bodily harm. If there was no action, it is a dire condemnation of the police involved in that particular offence. I am very sympathetic to the motivation but the real mischief is in getting more action carried out, rather than adding more offences.

Lord Faulkner of Worcester: My Lords, I am afraid I do not take the same view as the noble Lord, Lord Condon, and support very much what my noble friend Lord Foulkes and the noble Lord, Lord Bradshaw, have said. I am particularly pleased that the noble Lord, Lord Bradshaw, has talked about public transport workers, who are some of the most vulnerable public servants. They face members of the public, often on their own, in very difficult circumstances.

I declare an interest as a member of the First Great Western stakeholder board and I can say to the Committee that all of us were very proud of the staff depicted in the television programme to which the noble Lord, Lord Bradshaw, referred. We, too, were horrified at the thought that women would be in charge of trains, on their own, late at night, travelling to far-flung parts of the United Kingdom and being subjected to the sort of treatment he described. It is unacceptable. The situation might be easier if the trains were policed by officers from the British Transport Police—not armed officers; I spoke about them a moment ago. Just the presence of British Transport Police on the trains has a very significant effect. However, the force is not large enough to be able to police all the trains so there has to be a measure of self-restraint and adequate penalties for people who behave in an unacceptable and violent way towards public servants doing their job properly.

All too often one finds that members of the public do not want to know when they see these things going on. When fellow passengers have behaved in an anti-social manner on the Underground or the Croydon tram, I have always felt a little nervous about trying to intervene.

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One of my colleagues on the Great Western board attempted to intervene on the District line at Westminster when a man was racially abusing another passenger. The man was completely off his head on drink or drugs. No one came to my colleague’s aid and, when he got off the train, the drunk got off with him and then assaulted him on the platform. As far as I know, no follow-up action has been taken. This is not acceptable. Noble Lords have done the Committee a great service in bringing this amendment before it. I hope that the Minister will take what has been said very seriously.

4.45 pm

Baroness Hamwee (LD): My Lords, I understand, and can picture, some of the incidents that have been described. When I used to have to go up to Manchester regularly at weekends, I took to checking whether Manchester United was playing at home and took care not to travel back on trains which might be full of supporters. Having said that, I agree with the noble Lord, Lord Condon, on this. I would be very reluctant to make this a new criminal offence and add it to the statute book. Indeed, I would be reluctant to add any new criminal offence to the statute book unless it was absolutely necessary. Will my noble friend say a word about aggravating factors in sentencing? Would this be a matter for sentencing guidelines, which I know are not under the control of the Government given that we have a Sentencing Council? If an offence has been committed in this context, a sentence can be imposed without the need to create a new offence. I take the point that has been made about that. If a new offence were created in this context, the same problems would arise in pursuing a prosecution as arise with existing offences.

Lord Rosser (Lab): My Lords, the amendment we are considering, which was moved so ably by my noble friend Lord Foulkes of Cumnock, would create a specific offence of assault against workers in public-facing roles. Reference has been made to various people who fall in that category such as shop workers, and they also include bus drivers and health workers. The proposed offence would carry a period of imprisonment not exceeding 12 months or a fine not exceeding level 5 on the standard scale.

Reference has been made to statistics provided by organisations such as the Association of Convenience Stores, USDAW and the British Retail Consortium. The latter estimated that 30,000 attacks on shop staff were reported last year. Women comprise a high percentage of staff in shops, and that is the case with a great many public-facing roles. Given that it is their employment, if they see a potential incident arising it is not particularly easy for them to walk away from the scene.

It has been argued that there is no need to create a different category of offence. I think that the issue is fairly clear cut. The noble Lord, Lord Condon, and the noble Baroness, Lady Hamwee, have expressed the same view on this issue and we wait to hear whether it is shared by the Minister. However, I think a lot of people feel that those who are attacked and assaulted in the course of their employment are entitled to greater protection than might be the case in other circumstances.

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The current sentencing guidelines for assault indicate that an offence committed against those working in the public sector or providing a service to the public should be regarded as an aggravating factor adding to the seriousness of the offence. However, as has been said, that is just one of a number of possible aggravating factors. There is a wide range under the sentencing guidelines for common assault offences of this kind.

We are also aware that many of these assaults do not seem to be reported where they happen in the course of people’s employment, which is what we are talking about. The survey by USDAW, as I think my noble friend Lord Foulkes mentioned, showed that 17% of retail staff who had suffered a physical assault at work had not reported it as they believed that nothing would be done. There is also a feeling among some employees that many cases which are reported are not prosecuted, even where the assailants are known to the police.

Reference has been made to the separate offences of assaulting police officers in the execution of their duty and, in Scotland only, assaulting emergency service workers. The offence in Scotland in respect of emergency service workers is defined by the Emergency Workers (Scotland) Act 2005 and is, I think, subject to a maximum of nine months in prison or a fine of up to £10,000. Prosecutions using that Act have grown year on year since its introduction. There were 324 prosecutions in 2010-11 and, in total, there have been just over 1,100 prosecutions since the Act came into force, with the implementation of the Act raising the profile of assaults on those who provide emergency services.

The evidence indicates that if we had a separate offence in England and Wales of assaulting public-facing workers—we are talking about people in contact with the public in the course of their employment—with tougher penalties than for common assault, that would increase the likelihood of cases being prosecuted. It would restore what is clearly waning confidence among many public-facing workers that the judicial system will protect them, and it would act as a deterrent, as preliminary evidence from Scotland shows that while the number of prosecutions for assaulting emergency service workers has gone up, the number of such incidents has declined. That suggests that the message may be getting over, but I am afraid that attacking and assaulting people in the course of their employment when they are carrying out that role in direct contact with the public just will not be accepted. There has to be a change in attitude towards assaults of this kind, and I suggest that that can only properly be reflected in making clear that the penalties will be higher than they would be for other kinds of assaults.

The present arrangements in England and Wales do not appear adequate, as assaulting a public-facing worker in the course of his or her employment is not a separate specific offence and is regarded as being only one of a number of potentially aggravating factors relating to the crime of common assault. The result is that such assaults are not regarded as being much more serious than many other assaults in the way that applies, as it should, to assaults on a police officer in England and Wales and emergency service workers in Scotland.

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If the Government want to assert that this Bill is about putting the victim first, they should recognise that public-facing workers are all too often victims of assault in the course of their employment, and they should accept this amendment, which creates a separate specific offence, with tougher penalties, for assaults of this kind.

Lord Taylor of Holbeach: My Lords, I welcome this debate. It is very interesting that the speeches we have heard have all referred to behaviour which the earlier parts of the Bill are designed to address. Often, assaults arise from anti-social behaviour in the first instance. It has been a very useful debate. The Government cannot support the noble Lord’s amendment but perhaps I may explain why. It has been discussed twice in the House of Commons, so it will not come as a surprise to the noble Lord, Lord Foulkes, that I am not in a position to accept it.

I wholeheartedly share the view of noble Lords that assaults on people whose work brings them into contact with the public are unacceptable. I assure your Lordships that the Government take this matter very seriously. The speeches in this debate reflect our equal concern at the large number of assaults on people serving the public.

The Government entirely agree that no one should be expected to face violence in the course of their work, particularly when they are serving the public. We have a wide range of people on whom we depend to deliver services—nurses, teachers, police officers and firefighters, to name a few. Assault is wrong and a crime, whoever the victim. Transport workers and shop workers also form part of our essential infrastructure, as do many others whose work brings them into contact with the public. Staff of small shops may be particularly vulnerable because they may need to stay open long hours to make a profit and may operate with minimal staff. The noble Baroness, Lady Coussins, referred to people who work in the retail drinks industry. It is vital that the criminal justice system treats violence against these essential members of society adequately.

However, I do not believe that changes to the law, or a new specific offence, are necessary to achieve that. The noble Lord, Lord Condon, articulated that view well. I do not consider the proposed changes would mean more prosecutions or warrant the higher sentences which might follow. For example, I think that noble Lords would accept that if someone is assaulted in their own home and must live with the sense of fear and anxiety that that may cause, that, too, warrants a stiffer sentence. Nor do we believe that a higher sentence would necessarily have a deterrent effect. The evidence on that point is decidedly mixed. There is already a range of offences having general application which criminalise violent behaviour, and which would already apply in the context envisaged by this new clause. Further offences would only complicate the law and make prosecution more complex rather than make it more straightforward. I reiterate: assault is wrong, whoever the victim.

All cases referred to the Crown Prosecution Service by the police are considered under the Code for Crown Prosecutors. Under the code, prosecutors must first be satisfied that there is sufficient evidence to provide a

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realistic prospect of conviction, which I think we all understand. In every case where there is sufficient evidence to justify a prosecution, prosecutors must go on to consider whether a prosecution is required in the public interest, which, again, we would understand. However, the section of the code giving guidance on this public interest test says:

“A prosecution is also more likely if the offence has been committed against a victim who was at the time a person serving the public”.

That is in the prosecution’s guidelines and is an important recognition of the point which the amendment seeks to address. If the evidence is there, and the code is satisfied, the CPS will prosecute.

Finally, mention has been made by my noble friend Lady Hamwee of the sentencing guidelines, which specify that where an assault is committed against someone providing a service to the public, whether in the public or private sector, this is an aggravating factor and so should result in a higher sentence within the current maximum. The Sentencing Council has made clear in its guidance that that phrase includes those who work in shops and the wider retail business sector, which reinforces the way in which the implementation of the law already reflects the concerns of noble Lords on this issue.

I listened to the speeches made by my noble friend Lord Bradshaw, the noble Baroness, Lady Coussins, and the noble Lord, Lord Faulkner of Worcester, as well as the speech made by the noble Lord, Lord Rosser. It has been a useful debate. I intend to draw the attention of the Crown Prosecution Service and the police to the terms of the debate because it reinforces the message that we take this issue seriously in this House as well as within government. With that assurance, I hope that the noble Lord, Lord Foulkes, will be prepared to withdraw his amendment.

5 pm

Lord Foulkes of Cumnock: My Lords, the one point on which I totally agree with the Minister is that it has been a useful debate. I am really grateful for the eloquent and powerful support that the amendment has received from the noble Lord, Lord Bradshaw, my noble friends Lord Rosser and Lord Faulkner—before he was elevated to his position as Deputy Chairman—and the noble Baroness, Lady Coussins.

I am deeply disappointed that the noble Lord, Lord Condon, who eloquently argued the case that there should be a special offence of assault of a police officer, does not agree that that should also apply to shop workers who are effectively apprehending criminals on behalf of the police. They are doing the same job as the police are doing and ought to have the same kind of treatment.

Lord Taylor of Holbeach: May I explain that particular discrepancy? We do not ask of people in their normal employment that they place themselves in positions of danger in dealing with potentially violent incidents. We do ask that of the police. That is why all Governments through time have conceded that a special task is imposed on serving officers of the police in the conduct of their duty. That is the reason for that special offence.

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Lord Foulkes of Cumnock: But shopkeepers and others are put in the position where they are not able to get away, as my noble friend Lord Rosser said. They are doing this in the course of their duty and their employment. They are apprehending shoplifters. That is what some shop workers are trained to do. They know they have to do that as part of their responsibility. They are doing the work, effectively, of a police officer. We can come back to that.

The Minister said that this has not been agreed on two occasions in the House of Commons so there should be no surprise that he will not accept it here. But this is a revising Chamber. What are we here for if not to consider what comes from the Commons and make suggestions, proposals and amendments? I hope that that argument will not be used completely as a barrier, otherwise we might as well all go home.

My noble friend Lord Rosser underlined this issue when he said again and again that we are talking about people who, in the course of their work, cannot walk away. The noble Baroness, Lady Hamwee, said that she avoided the trains back from Manchester on which there were football supporters because she did not want to be assaulted. With respect, she can avoid those trains, but the workers on those trains cannot avoid them. They have to be there to run the trains and collect the tickets. That is the difference, and I hope that the noble Baroness, Lady Hamwee, who has tabled a lot of amendments to the Bill, will consider that carefully.

Lord Taylor of Holbeach: Would the noble Lord consider an assault on the noble Baroness, Lady Hamwee, on a train to be less severe than an assault on someone employed to work on the train? In effect, the noble Lord seeks to introduce a special measure for someone who is assaulted in the course of their work. My argument is that assault is wrong; it is a crime whoever is the victim. Let us keep it simple and not complicate this with what people are doing at the particular time they are assaulted.

Lord Foulkes of Cumnock: I am not saying that. It would probably be even more heinous if the noble Baroness, Lady Hamwee, was attacked. However, as she has told us, she can avoid those trains on a Saturday afternoon: the workers on the trains cannot. I do not want to prolong the debate as there are other important amendments.

Having heard the arguments, I am happy, between now and a later stage, to consider, with my noble friends on the Front Bench, the unions and others, what the Minister has said, particularly his helpful point about drawing this debate to the attention of the police and Crown Prosecution Service. The amendment might be revised or, as the noble Lord, Lord Condon, suggested, we might look at narrowing it down to deal with people in particular circumstances. I hope I will have the opportunity to bring it back on Report and test the view of the whole House. Meanwhile, I beg leave to withdraw the amendment.

Amendment 56N withdrawn.

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Amendment 56NA

Moved by Lord Rosser

56NA: After Clause 103, insert the following new Clause—

“Control of new psychoactive substances

(1) Any person supplying, or offering to supply, a synthetic psychoactive substance including but not restricted to—

(a) a powder;

(b) a pill;

(c) a liquid; or

(d) a herbal substance with the appearance of cannabis, which is likely to be consumed by a person for the purpose of causing intoxication,

will be subject to a synthetic psychoactive product order prohibiting its supply.

(2) Any subsequent breach of that order will be an offence.

(3) A person guilty of an offence under this section shall be liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale.

(4) This section does not apply to alcohol, tobacco or any drug currently scheduled under the Misuse of Drugs Act 1971 or the Medicines Act 1968.”

Lord Rosser: My Lords, Amendment 56NA and the proposed new clause seek to stop the high street trade in what are known as legal highs. Head shops are retailers that have traditionally sold material and devices relating to the cannabis culture. In the past five years, these outlets have mostly diversified their range of products to include legal highs, which are psychoactive substances that have not been assessed for their harms by the relevant authorities and mimic the effects of illegal drugs such as cocaine, cannabis and ecstasy.

It is estimated that there are around 260 of these head shops, located in major cities and some of the more affluent suburbs. A further report has indicated that legal highs are also on sale in such diverse places as shoe repair shops, petrol stations and takeaway restaurants. Since 2009, the volume of trade and number of outlets in the United Kingdom selling new psychoactive substances has risen considerably. There has yet to be any significant legal challenge to their questionable operations, but the current law does not really provide for this eventuality. Local authorities that have attempted to prosecute sellers under consumer protection legislation have failed. To evade prosecution through the Medicines Act 1968, the legal highs are invariably labelled “research chemicals” which are “not for human consumption”.

The Office for National Statistics has estimated that the number of deaths from new psychoactive substances has risen from 29 in 2011 to 52 in 2012. The Scottish Government’s drug-related death statistics estimate 47 legal high deaths in Scotland in 2012. The reported effects vary depending on drug type, but include symptoms such as anxiety, paranoia, delusions, psychotic episodes, irregular heartbeat, chest pains, hyperthermia and seizures. The UN Office on Drugs and Crime estimated the number of young people aged between 15 and 24 in the United Kingdom who have taken a legal high at 670,000 or 8.2%. That figure is the highest in Europe. It is estimated that the number of websites selling new psychoactive substances in Europe rose from 170 in 2010 to 690 in 2012. About half of these are based in the United Kingdom.

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Both ACPO and Police Scotland have expressed support for introducing some enforcement measures against head shops. Legal highs often have an inconsistent set of ingredients; there is no regulation on how they are produced and the substances have, in effect, no status. The manufacturers, often in China or India, are always a step ahead of the law and when any temporary ban is signed, new untested drugs with similar properties come on the market within days. However, the reality is that only three substances have been subject to temporary banning orders in the past two years. The European Monitoring Centre for Drugs and Drug Addiction identified 76 new substances in 2012 and the United Nations Office on Drugs and Crime report for 2013 recognised that more legal drugs are available for purchase than are listed in the UN conventions on drugs.

Amendment 56NA is based on the existing Intoxicating Substances (Supply) Act 1985, which prevents the sale of glues and butane to minors. That law has been successful over some years in reducing the number of deaths from volatile substances. Under the provisions in the amendment, a court would issue a civil order against a particular shop, listing the products identified by trading standards officers which appeared to be psychoactive, synthetic and intoxicating, and prohibiting their supply. The amendment specifically excludes medicines, alcohol and tobacco. Any breach of the synthetic psychoactive product order issued to a supplier or retailer would be a criminal offence.

There is a need to act. The sale of dangerous substances in an everyday retail environment has the effect of normalising their use. It encourages experimentation among minors and exposes more vulnerable people to powerful psychoactive substances. The problem with legal highs is that people wrongly believe that, because they are legal, they must be safe, and having the substances so openly available only reinforces that impression. The reality is that the number of head shops is growing inexorably and nothing appears to be currently in place to prevent that continuing —hence the proposed new clause that we are now debating, which will help to check the substantial increase in the number of shops selling these substances and help to cease the trade in untested psychoactive substances in existing outlets.

The second amendment in the group aims to probe the Government about the comparative lack of data on the impact of legal highs. The Government need to do more work to assess and understand the impact of legal highs on the resources of the police, the NHS and other agencies and the link to anti-social behaviour, criminality and drug abuse. The proposed new clause in Amendment 56NB addresses this point by requiring the Secretary of State to carry out a review within 12 months of the Bill passing.

I hope that the Minister, in responding, will recognise that this problem is getting worse. It has not stabilised: it is getting worse and doing so fairly quickly. Although the Minister may well tell us everything that the Government have done—I am sure the Government have been seeking to do things to address the problem—the reality is that whatever the Minister will tell us has been done has not had the impact desired. The problem is growing and we need action now. This amendment

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constitutes that action and stands a chance of being an effective way of addressing an increasingly serious problem.

5.15 pm

Baroness Meacher (CB): My Lords, in speaking to Amendment 56NA, I commend the noble Baroness, Lady Smith, and the noble Lord, Lord Rosser, for tabling it. We need government and, indeed, all political parties to get together to try to create a safer world for our young people while new psychoactive substances are so readily available to them. The amendment has merit on two grounds: first, it seeks to remove these substances from the shop window, as one might put it, which has to be helpful; and secondly, a feature of the amendment is that it focuses exclusively on suppliers and does not seek to criminalise the users of these substances. Those are two important points in favour of the amendment.

However, we need to be aware of some of the potential problems with the amendment. My only qualification for speaking today is that I chaired the APPG inquiry into new psychoactive substances, which received evidence from all the major governmental and non-governmental organisations involved in this field, as well as academics and those working on the front line, who really understand the implications of policies and perhaps their ineffectuality. As a result of that work, I have a number of concerns.

The first is the absence of proportionality or logic in the proposal. We have to accept, albeit reluctantly, that a sizeable proportion of young people will use drugs that may harm them. Our aim must surely be to reduce the incidence of addiction to any dangerous drug and, in particular, to reduce addiction to the most dangerous drugs, whether legal or illegal. We also need to reduce as far as possible the risk of a young person having a single dose of a substance that can cause death or serious injury.

Our drug policies must face reality. We will not stamp out drug use through bans and punishment. Our only hope is to create a rational system which makes abundantly clear to our young people those substances that are seriously dangerous, those that cause medium harm and those with short-term and relatively mild ill effects. We have not even begun to go down the road of proportionality in our drugs policy and, unfortunately, this amendment does not adopt this essential principle. Some other countries have done so, with impressive results, and even the US is beginning to take steps in a rational direction.

My comments on this amendment reflect my increasing conviction of the need for proportionality in our drug policies, combined with extensive information, education, treatment and psychological support for those who need it. Only with such an approach will we have a chance to achieve a safer drugs policy.

We need young people to respect the law. If the law is an ass, young people will get round it or simply ignore it. The amendment does not offer a proportionate response to these substances. There is also a lack of logic in the amendment, if I may put it that way; for example,

“a herbal substance with the appearance of cannabis”,

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would be banned under this amendment. Why those particular herbal substances? They may in fact present a far lower risk and be far preferable for the health of young people than legal drugs such as tobacco and alcohol, and certainly the many other drugs that are available.

The Angelus Foundation, the organisation behind this amendment, argues in its briefing that the ban should apply only to synthetic psychoactive substances. It accepts that head shops have sold a number of substances that are non-addictive, do not cause significant social problems or are mild in their effects. It rightly says that such substances should not be caught by this amendment. But why should synthetic substances of similarly low risk and lack of social consequences be banned? Young people will very quickly realise the inconsistency in the situation.

Turning to a different issue, I find myself in agreement with the Home Office concern that the amendment completely bypasses the ACMD—the Advisory Council on the Misuse of Drugs. That august body of scientists should be at the heart of drug policy-making, assessing risks and actually making decisions—if I had my way —on the classes of different drugs. If we had scientists making these decisions, we would arrive at a more sensible set of policies.

Another and quite different concern is that if this amendment were passed it might be seen as a solution to the problem of NPS. Of course, a proportion of these young people will immediately go to the web if they cannot get what they want from the local head shop, and that proportion could be very close to 100%. Young people know all about the web—far more than I do—and it would not take them many minutes to realise that that is all they have to do to get what they want.

A very different question is whether the authors of the amendment explored the implications for research of this measure. Already, serious psychopharmacological researchers are having incredible difficulty obtaining the substances they need to undertake their research.

Also, have those supporting the amendment considered its cost implications? Trading standards representatives who gave evidence to our APPG on Drug Policy Reform made clear that if they are to take responsibility for policing head shops, they will need money to do it. That money has to cover the testing of those substances. It is no good their picking up a substance from a head shop if they have no idea what it is and no money to test it.

In conclusion, I applaud Angelus for its untiring work to try to reduce the access of young people to dangerous psychoactive substances. I welcome the attempt to reduce the risks to our young people of NPS. Whatever is agreed on the amendment, I hope that all political parties will work together to achieve improved policies to deal with the considerable risks presented to our young people by new psychoactive substances.

Baroness Hamwee: My Lords, I well understand the concern expressed by the noble Lord, Lord Rosser. For instance, I recognise what I can think of only as collusion between sellers and buyers of substances labelled bath salts, plant food, and so on. The noble Baroness says that this is her only qualification—come

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on, it is some qualification. We are very lucky to have her explain her point so clearly and, to my mind, so persuasively. As she says, trading standards authorities are as concerned as everybody else and struggling to find a way to deal with this. Has the noble Lord had comments on the proposal from the Trading Standards Institute?

Like the noble Baroness, the points that occurred to me, which I will not repeat but simply support, are: is this risk-based, is it evidence-based, will it bring the law into disrepute, does it recognise the psychology of the consumer? Chemists in China will stay ahead of the game and will use the internet. Of course we have to be smart, but we have to be smart differently, not try to beat them in the way that they are working.

Lord Howarth of Newport (Lab): My Lords, the problems of new psychoactive substances are real and perilous. My noble friend Lord Rosser mentioned the number of recorded deaths. It is simple for an organic chemist to synthesise a new psychoactive substance to mimic the effect of a substance that has been banned. We understand that, across Europe, about 250 new psychoactive substances have been introduced in recent years. The Angelus Foundation, which originally proposed the new clause, has counted at least 250 head shops offering to provide such substances on the shopping streets of this country. There are other outlets, as has been mentioned, all of which succeed at the moment in evading existing regulation.

It follows that the buyers of those substances have no information about the composition, toxicity or purity of what they are buying. It is not only from the head shops that those substances can be obtained. Increasingly, they are being bought over the internet. Social networking spreads the news of the arrival of a new substance, and it is not at all uncommon for party invitations, distributed through social networking, to contain links to the suppliers of such substances.

The situation is very dangerous. The substances are cheap to produce and pretty cheap to buy. Sadly, young people are willing to take extraordinary risks with their own health and safety. A survey by Mixmag of club drug users found that no fewer than 25% of respondents said that they were willing to purchase and consume any white powder, unidentified.

The Angelus Foundation is right to have highlighted this issue and to have dedicated itself to improving the education available to people about new psychoactive substances. I pay tribute to Maryon Stewart, who created the Angelus Foundation following the tragic death of her daughter, who had consumed a new psychoactive substance. Maryon Stewart was impressive when she gave evidence to the inquiry which the noble Baroness, Lady Meacher, chaired on this issue.

However, with genuine great respect for the Angelus Foundation, and of course for my noble friends Lady Smith and Lord Rosser, I believe that this proposed new clause is not the right way to approach the problem. Attacking head shops in the way that it envisages might indeed succeed in driving them out of business, but my worry is that it would drive the people who are purchasing these substances into the arms of nastier criminals—into the danger and squalor of engaging

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with gang-related street dealers in car parks and alleyways. If they are not already using the internet, and I suspect that most of them will be, it will of course drive them into its seductions and dangers, perhaps particularly those of the dark web. The European Monitoring Centre for Drugs and Drug Addiction reported in its 2013 annual statement that it has identified 693 different internet outlets offering new psychoactive substances for sales. Actually, what I think will happen is that the internet will drive the head shops out of business, just as it has driven record shops and book shops out of business. This is not a measure that would enable us to police the net.

The Angelus Foundation has been candid that its purpose in proposing this new clause is to ban the sale of new psychoactive substances but all the evidence from 50 years of prohibition is that banning substances does not stop trafficking in drugs or people using drugs. In fact, it drives innovation; as one avenue is closed, another is opened. Prohibition has been an engine of crime. It has been counterproductive and has produced appalling consequences.

There are also civil liberties implications in this proposed new clause. Since an earlier version was debated in another place, it has been revised to require a lower standard of proof. The proposition is now that if a court is satisfied merely on the balance of probabilities, and not beyond reasonable doubt, it may make an order against a head shop listing products which appear to trading standards officers to be psychoactive and synthetic, and to have been bought for the purpose of intoxication. If the proprietor is unable to demonstrate that that is not the case, he will be liable to a prison sentence of six months or a level 5 fine. It is inconceivable that in this country we should legislate to imprison people because it appears to an official of the state that such and such is the case and the accused is unable to disprove the allegation. We have not seen legislation like this since the days of the Warsaw Pact in eastern Europe. It would be wrong for us to lower our standard of justice.

I am also bemused to note that the expectation, according to the Angelus Foundation briefing, is that consultation should follow once the legislation is on the statute book. That would be Alice in Wonderland legislation. I had not hitherto seen my noble friend Lady Smith of Basildon as the Red Queen, or my noble friend Lord Rosser as the Red King.

The Intoxicating Substances (Supply) Act 1985 is, I suggest, a bad model for legislation to deal with the problem that we are addressing. It was designed to ban the sale of glue or lighter fluid for purposes of intoxication, but we know what glue and lighter fluid are. The very difficulty is that we do not know what these new psychoactive substances are, so how would the court establish the balance of probabilities? Would it be on the basis of guesswork or on the say-so of a trading standards officer? Justice, like policy, ought to be based on evidence. One of the great difficulties that we are facing is that the infrastructure for forensic testing in this country is entirely inadequate. We have not invested as we needed to do in it. That is a point that we made in the all-party group’s report. The result is that the Misuse of Drugs Act 1971, temporary

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class drug orders and the whole apparatus of the Advisory Committee on the Misuse of Drugs are underresourced and unable to deal with a problem of the scale, complexity and pace of change that we have to deal with in respect of new psychoactive substances.

5.30 pm

Therefore, what should we do? I believe that the most promising approach to this very serious problem has been developed in New Zealand. In 2011, the New Zealand Law Commission made recommendations on how to deal with new psychoactive substances. It took the view that universal prohibition would be unacceptable on cultural grounds and inconsistent with the principles of a free society, as well as being impractical. It recommended that a would-be supplier of a new psychoactive substance should have the opportunity, paying for scientific research, to show that the substance would be of limited harm and to seek the approval of a regulatory body to introduce it to the market. They were very specific that no sale should be permitted to minors.

In 2012, the New Zealand Health Minister, Peter Dunne, accepted the recommendations of the New Zealand Law Commission and its Parliament has legislated to create a legally regulated market in synthetic drugs. Having considered the matter, they believed that this was safer than continuing with the dangers of an unregulated market. To date, I understand that 15 new psychoactive substances have been submitted for approval under this process.

I believe that we are driven to conclude that the way to protect our young people and our society as a whole from the dangers of new psychoactive substances is to legalise and regulate them: not the most dangerous of them, but a range of them. This is less dangerous than persisting with a policy of prohibition. The reality is that people are going to get hold of these substances; young people will always experiment, always take risks and always challenge authority. These drugs are dangerous, and it is for that very reason that they ought to be regulated. If a limited range of psychoactive substances—the safer ones—were legally available, with their purity controlled and with trustworthy advice as to their usage, people would be less attracted to taking risks with harder drugs or with unknown, new psychoactive substances. There would be less incentive for producers and retailers to introduce new drugs on to the market.

Of course, as the noble Baroness, Lady Meacher—who is my friend— emphasised, we would need to accompany any such policy with a wholly improved strategy for education and information. To me, it is sad and a real worry that the education department seems to be so largely disengaged from the whole issue of drugs. It lays minimal obligations on schools in respect of drugs education. It shrugs its institutional shoulders in saying that it does not monitor the programmes or resources used by schools in drugs education. We need to do very much better in schools, but the reality is that people who want to understand these drugs will go to websites such as the excellent one created by the Angelus Foundation, whynotfindout.org, or others created by people who are experienced in this field and want to protect people from the harms that drugs may cause, such as DrugScope.

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I share the deep alarm that has motivated my noble friends in proposing this new clause and the deep concern of the Angelus Foundation, parents and all of us, but I do not think that this proposed new clause is the right way to go.

Lord Paddick (LD): My Lords, to explain the background to the comments that I am about to make, as most noble Lords will know I was a police officer for over 30 years and have seen things from the enforcement side. However, a few months ago a former partner of mine in his early 40s, to whom I was still very close, took an overdose of an illegal drug and died. Hopefully, noble Lords will realise that I am not biased one way or the other on this issue, bearing in mind recent events.

Obviously, I welcome the opportunity to debate this issue, and I therefore welcome the amendment tabled by the noble Baroness, Lady Smith of Basildon, and the noble Lord, Lord Rosser. However, I have to agree with the noble Lord, Lord Howarth of Newport, the noble Baroness, Lady Meacher, and my noble friend Lady Hamwee that this is not the way to reduce harm. My professional experience has taught me that young people in particular—though, as I say, my former partner was not particularly young, but then everything is relative—take no account of whether or not a drug is illegal, particularly bearing in mind the discredit that has been cast on the system of drug classification, where very harmful drugs are in a lower category and far less harmful drugs are in a higher one. They certainly do not pay any attention to what class any illegal drug might be. As far as I see it, the evidence that cannabis use has been reducing, for example, is the result of information in the media about potential harmful medical effects of cannabis. That is what has really had an effect on people’s attitude towards that drug, not whether or not it is illegal or indeed what class of illegality it is in.

This is a very difficult issue to deal with. As we know, particularly with regard to legislating, all that the manufacturers do is slightly alter the compound whenever a drug is made illegal, as previous speakers have said. Clearly we need to allow our young people to know exactly what the effects of these sorts of substances are and try to persuade them not to take them, bearing in mind that most young people pay no attention to whether or not they are illegal. We should therefore put far more emphasis on and resources into education and far less into enforcement, let alone into making yet more substances illegal.

Lord Taylor of Holbeach: My Lords, I welcome this opportunity for debate. The quality of speeches that we have had has shown that the House is good at debating issues of this type; indeed, my noble friend Lord Ahmad took a debate only recently on this subject. It is a good thing that we are reviewing policy in this area. As the noble Lord has explained, these new clauses seek to address the open sale of new psychoactive substances.

Lord Maxton (Lab): On that point, I noticed that the title of the new clause says “new”, but that word does not appear anywhere else in the amendment. Does the title therefore take precedence over everything else?

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Lord Taylor of Holbeach: I think that the intention of the new clause is to deal with the problem of novelty, and indeed much of the debate has been concerned about novelty and the ability and inventiveness of the producers of these drugs. I will check the wording of the amendment in that regard but, as I am not seeking to make it a part of the Bill, it is not a concern of mine.

Many of these new products are often sold under misleading descriptions but of course are ultimately marketed for the purposes of intoxication, and there are potential harms to our fellow citizens from the fact that they are freely available. The first amendment builds on the provisions of the intoxicating substances supply legislation that previously led to the successful prosecution of a legal high supplier. It is also similar to the legislative proposals adopted in Ireland and Poland. Similar new clauses were tabled by the Opposition in the House of Commons and Jeremy Browne, who was then the Minister responsible for drugs policy, set out the Government’s approach to new psychoactive substances. He also referred to the Home Office’s international comparators study of alternative approaches to drug issues such as legal highs, which we now expect to complete soon to help inform our response.

The Government have been far from inactive in this area of our drug strategy. We are working with the Advisory Council on the Misuse of Drugs, monitoring the emergence of and trends in new psychoactive substances and updating our legislation following advice on the related health and social harms where appropriate. We are also supporting law enforcement agencies to use the full force of the law where officers suspect that head shops are selling controlled drugs or substances containing them. That is often the case because hundreds of these substances are already controlled drugs in the UK.

Last week, we initiated a concerted programme of enforcement activity to disrupt the market in new psychoactive substances, restricting their availability on our streets and targeting the criminals behind the supply of these substances. As part of this, police have been visiting head shops across the country to send out a clear message that so-called legal highs cannot be assumed to be safe or legal. We are also working with prisons to raise awareness of the risks of legal highs with both prisoners and visitors. The UK Border Force and the National Crime Agency are also stepping up action to stop new psychoactive substances at the borders.

The noble Lords, Lord Paddick and Lord Howarth of Newport, originally raised the issue of what we are doing in terms of education. We are doing all we can to inform young people, prevent them from taking drugs in the first place and intervene early with those who start to develop problems. We want all young people to have access to education and information on drugs so that they are aware of the harms and are able to make informed choices and resist peer pressure. The Home Office ran a communication activity from July to October this year which targeted 13 to 19 year-olds contemplating using legal highs, and we are going to consider using similar campaigns in future.

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Lord Howarth of Newport: Has the Minister held discussions with his counterpart Ministers in the education department? The evidence given to the Home Affairs Select Committee was that the majority of schools provide drug education only once a year or less. As far as the national curriculum goes, they are required to provide some sort of drug education within the science curriculum, but that is just about it. PHSE has only a toehold in school education. This is not the right way to help young people develop the resilience and capacity to take their own responsible decisions. A great deal more needs to be done in our schools.

Lord Taylor of Holbeach: I note the noble Lord’s point. I assure him that communication across government on this is very vigorous. I am sure he will agree that schools are not the only place where you can communicate with young people. We live in an age where there may be other less formal ways of conveying this message. I think the Government are right to see issues such as this also in those terms. I hope he will understand that our strategy is multifaceted; it is not just the single point that he made. The legal high trade is very resilient. It is inventive. There is no silver bullet for dealing with it. We need to ensure that whatever we are doing is equally resilient and effective.

The noble Lord, Lord Howarth may have been referring to a meeting of the Home Affairs Select Committee last week, at which my colleague Norman Baker, who is the Minister now responsible for drug policy, advised the committee that he is particularly keen that we look at all the options for tackling new psychoactive substances and learn from other countries in that regard—the noble Lord referred to New Zealand, for example—and that is what we are doing. However, even though this area is a cause for concern, caution needs to be exercised before we take any further steps. The possible unintended consequences need to be fully understood. That is why I think that the speeches of my noble friends Lady Hamwee and Lord Paddick, along with the excellent speeches from the noble Baroness, Lady Meacher, and the noble Lord, Lord Howarth, demonstrate that they are right to be concerned that the amendment and this new clause are deficient.

With this in mind, the move away from an evidence-based approach to drug harm that Amendment 56NA could imply is not one that the Government can take lightly; I think noble Lords were right to point that out. We are committed—as indeed we should all be committed—to ensuring that our legislative response continues to restrict the supply of harmful new psychoactive substances, both in our communities and online, by providing UK law enforcement with robust and practical powers to tackle this trade.

Baroness Meacher: The Minister said that the way forward is more enforcement. Is he aware of the view of the UK Border Agency, ACPO and others that the legal framework and the enforcement behind it is actually not fit for purpose to deal with the particular problem of “new psychoactive substances”, as they are called—although in fact they are often not new?

Lord Taylor of Holbeach: Enforcement is, of course, part of the issue. If we decide that we need to restrict the supply, we will need to have the methodologies of

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enforcement. However, I think that I have made it clear that having evidence and information is equally important to underpin any legislative background against which we are operating. There is much going on in this area and I make a commitment to keep noble Lords informed of developments. With that in mind, I hope that the noble Lord will be able to withdraw his amendment.

Lord Rosser: I will ask the Minister to clarify one point before I make my main response. Did he say that officers, whether police or trading standards officers, had been going around the country to head shops and warning them of the error of their ways—those were not the Minister’s exact words but that was the general thrust of them—and that those officers were also saying to them that legal action could be taken against them? Or were they just going around and chatting to them, giving no indication at all that they had any powers to do anything?

Lord Taylor of Holbeach: I cannot recall any such reference in what I said.

Lord Rosser: I am sorry if I misunderstood. I thought that there had been a reference to such approaches being made. I will make one particular point on that, which is really a follow-up to the point that I just made, even if I misunderstood what the Minister had said.

Lord Taylor of Holbeach: I have come across the point referred to by the noble Lord. The police have indeed been visiting head shops across the country to send out the message that legal highs cannot be assumed to be safe or legal. I think that is a reasonable thing to say. It is part and parcel of the communication that the people who are engaged in this trade need to be aware of their social responsibilities and the legal risk in what they are doing. It is a reasonable task to ask of police, who are enforcing the law in this area.

Lord Rosser: I have no problem at all with the police going around and doing that. I was asking: if the police are going around doing that—I have no problem with it; it is a good idea and they should be doing it—are they able to say to those they meet who are involved in that particular trade that any legal action can be taken against them?

Lord Taylor of Holbeach: If the drugs are illegal, clearly that is exactly the position, and that is the point they make. The assumption those people may have, that some of the formulated chemicals that they are selling are legal or safe, may well be wrong. The noble Lord will know that some chemicals on the list of banned substances under recent legislation—last time we brought in 10 proscribed formulations—may well be present in products that those people may not be aware are illegal.

Lord Rosser: One of the main points is whether those are illegal drugs, in which case action can be taken. That is one of the issues around many of those psychoactive substances. If the noble Lord says that the police are going around and saying that some of

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those substances may well not be legal, can he tell me whether any prosecutions are forthcoming as a result of those visits?

Lord Taylor of Holbeach: Certainly, if people were found to be in possession of illegal drugs, an offence would have been committed and the opportunity to prosecute undoubtedly exists. The point is that there are people in this business who assume that what they are doing is beyond the scope of the law. We seek to make sure that they are properly informed of the fact that there is no such hiding place. The law is there to protect the citizen, and the current and future drugs legislation is designed to do just that—to make it clear to them that there is no hiding place for them.

Lord Rosser: If the Minister had been able to give me some assurance that he felt that action could be taken through the law against people involved in supplying those particular substances, I would feel greatly relieved. However, I have listened to what the Minister has had to say and there have been an awful lot of mays, ifs and maybes, and nothing specific. He is not saying that, as a result of looking at current legislation, the Home Office and the Government are satisfied that action can now be taken under a particular Act. My understanding and the information I have—the Minister may well tell me that I am wrong—is that some local authorities have attempted to take action under existing legislation but have not been successful. However, if the Minister is saying that there is legislation under which we can take action against those people in relation to those substances, I would be greatly relieved. However, I would like to know what that legislation is and what action is being taken.

Lord Taylor of Holbeach: I promised to keep Peers informed of the outcome of that campaign, and will do so. However, it is quite clear that with some of those psychoactive drugs—I believe that I debated that issue with the noble Lord in Grand Committee, when we passed that legislation—the truth is that people may be dealing in those chemicals who are unaware of the illegality of their actions. I will keep noble Lords informed and I hope that we can move on.

Lord Howarth of Newport: Is it not a great difficulty that neither the police nor trading standards officers have the means to test those substances and find out what they are?

Lord Taylor of Holbeach: They have access to the means to test the substances, which is a reasonable enough basis on which to alert the people running those premises that they might be dealing in illegal drugs.

Lord Rosser: Obviously, I shall withdraw my amendment. I feel that the Minister seems rather nearer to me than virtually all other noble Lords who have spoken in the debate in feeling that legal action might be possible and have some value.

Lord Taylor of Holbeach: We have identified harmful legal formulations. The noble Lord sat with me while we discussed that in Grand Committee. This House has approved statutory instruments that identify those substances. We are quite clear that our war on dangerous

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drugs will include the restriction of supply of harmful psychoactive drugs. It does that at present and will do so in the future. However, the development that the proposed new clause seeks to put into the Bill takes this further than what we consider to be our current policy. We ask the noble Lord to withdraw the amendment because we are working in that area. My honourable friend Norman Baker is likely to produce his views on this matter shortly. I have committed to informing noble Lords on that basis.

Lord Rosser: I appreciate the Government’s position, which is that if any of those substances sold contained controlled drugs, they would expect the retailers to be prosecuted. That is what Norman Baker was quoted as saying in the press. However, the issue is that many of the substances involved are not illegal, for all the reasons that we have been discussing. That is one of the reasons why we have the problem that we have. I am aware that the Government are not entirely unsympathetic to the issue of law enforcement, even if there has not been much support for that idea from anywhere else in your Lordships’ House today. I am referring to the Government’s approach, which we are dealing with. When I say “legal enforcement”, I mean as per the amendment that I put forward. I do not suggest that people are suggesting that legal action should never be taken.

In the Written Statement to which the noble Lord recently referred, which was published towards the end of November, he quoted the Minister for Crime Prevention, Norman Baker, who said that the G8 member states had,

“identified a need to speak with one voice to source countries, creating a space for dialogue about substances of concern and pressing for domestic controls in source countries and law enforcement cooperation”.—[

Official Report

, 26/11/13; col.




I am not entirely sure what “law enforcement cooperation” refers to, although I am not asking the Minister that now.