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House of Lords

Monday, 20 October 2014.

2.30 pm

Prayers—read by the Lord Bishop of Coventry.

Introduction: Baroness Harding of Winscombe

2.38 pm

The Honourable Diana Mary Harding, having been created Baroness Harding of Winscombe, of Nether Compton in the County of Dorset, was introduced and made the solemn affirmation, supported by Lord King of Bridgwater and Baroness Lane-Fox of Soho, and signed an undertaking to abide by the Code of Conduct.

Introduction: Baroness Mobarik

2.45 pm

Nosheena Shaheen Mobarik, CBE, having been created Baroness Mobarik, of Mearns in the County of Renfrewshire, was introduced and took the oath, supported by Lord Strathclyde and Lord Smith of Kelvin, and signed an undertaking to abide by the Code of Conduct.

Banks: Bridging Finance


2.49 pm

Asked by Baroness Gardner of Parkes

To ask Her Majesty’s Government whether they have any plans to encourage banks to provide bridging finance to asset-rich, cash-poor homeowners who wish to downsize, regardless of age.

Lord Newby (LD): My Lords, the Government are keen to encourage all those wishing to downsize, of whatever age, to do so. In the vast majority of cases, bridging finance should not be necessary. For older people, the major constraint to downsizing is often the lack of appropriate alternative accommodation. We are committed to increasing the flow of such housing on to the market, for example through the care and support specialised housing fund.

Baroness Gardner of Parkes (Con): My Lords, I thank the Minister for that reply, but I do not agree with it. Older people are having major problems because where, years ago, bridging finance would have been available to anyone—particularly if they had big equity in a house and were moving to a less expensive house—there is now a strict age limit. It was 75 when I quoted it last time to someone in the Treasury; I checked it again, and it has gone to 70 now. In some cases, some of the banks I rang said it is 65. Does the Minister not think that there is a bit of age discrimination in this?

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Lord Newby: There is a problem with how banks deal with older people who are looking to move, but it has nothing to do with bridging finance in most cases. It is simply about transferring the mortgage from one property to another. The mortgage market review suggested that banks should have some discretion in those circumstances so that people would be able to remortgage on the same terms that they had before, but unfortunately, as in a number of other cases, the banks are interpreting this in a very rigid way, which is undoubtedly disadvantaging some people.

Lord Best (CB): My Lords, will the Minister look out for a report on affordable downsizing, due to be released on 19 November by the APPG on this subject, which I chair? Will he note in particular the central recommendation that, like the right to buy for young people, we get a right to move for those of us in our extended middle age?

Lord Newby: I certainly look forward to reading the report. I will be fascinated to see how that right might be translated into reality for a lot of people, but some local authorities are beginning to look imaginatively about how you help people to move. Very often, one of the big problems is just the physical challenges of sorting out the move, switching the bills and so on. Redbridge, for example, and a number of other authorities have started to provide a service to people who wish to downsize, to help them with all those mechanical arrangements which, for some people, prove to be the last straw in stopping them from downsizing.

Lord Desai (Lab): My Lords, does the Minister recall that during the crisis when we changed from rates and the support grant to the community charge, there was a myth that there were many asset-rich but cash-poor people? It proved not to be true. We are again hearing this myth of asset-rich but cash-poor people, but if they are asset-rich, they should not need a mortgage, as they have enough equity in their present house to relocate.

Lord Newby: My Lords, that is obviously the case for many people who have been in the same house for a long time. Some people entering retirement who still have a mortgage may require a mortgage if they are moving to a smaller property, but it is almost by definition going to be a smaller mortgage than the one they previously took out, given that there will have been some capital appreciation. One of the key challenges for us is that research shows that almost half of all over-55 households have spare space in the house. If we can facilitate downsizing where people genuinely want to do it, society as the whole will benefit.

Lord Taylor of Goss Moor (LD): Will my noble friend agree that older empty-nesters often wish to have their grandchildren or other visitors come to stay with them? There is a myth that when people downsize—which does free up housing for families—they somehow want to go into specialist, tiny homes for people with great needs at the end of their lives. That is not actually the key to unlocking family homes: the key is

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to provide something for people to move into that is appropriate to their needs and expectations. The problem is the fundamental shortage of housing of that sort.

Lord Newby: My Lords, yes, I completely agree. It is important that those housing associations that provide specialist housing designed for older people—one of which is chaired by my noble friend Lord Stoneham—are encouraged to grow so that we can have more appropriately designed and sized accommodation.

Lord Davies of Oldham (Lab): My Lords, the House will have noticed the Government’s concern about this relatively marginal problem of the asset-rich. What about the asset-poor who are forced to downsize under government policy on the bedroom tax?

Lord Newby: The noble Lord knows that 1.7 million households are waiting for social housing in the UK, and the spare room subsidy is intended to help move people into accommodation in those circumstances. I think that he would agree with me that the fundamental challenge that we in all parties face is how to increase the flow of housing, not just in aggregate but so that it is designed to meet the different requirements of different groups, including the elderly.

Lord Flight (Con): My Lords, other than a few of the more enlightened ones, banks are now refusing to provide mortgage loans to anyone over 70. It is very well to say that banks can exercise discretion here, but when they are told by the regulator that that is what the regulator wants, not surprisingly they want to protect themselves, so they say, “Well, we’ll do what we’re told”. If they do otherwise, they put themselves out on a limb if something goes wrong. Basically, the regulator needs to be advised to make it clearer that it wants to see banks use their initiative.

Lord Newby: My Lords, as I said earlier, many lenders appear to be approaching the rules in a way that is against the spirit set out by the FCA. The FCA is reviewing the way the mortgage market review rules operate, and I hope that there will be some movement there. A number of banks and smaller building societies, in particular the Family Building Society and the Bath Building Society, of course do not have any age limits in their lending policies.

Schools: Careers Advice


2.57 pm

Asked by Baroness Prosser

To ask Her Majesty’s Government whether they have any plans to change the current system of careers advice for young people in schools.

The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con): My Lords, my right honourable friend the Secretary of State for Education has made it

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clear that she wants to see improvements in the quality of careers advice and guidance available to young people, with many more schools and employers working together to provide excellent support. That is a clear priority for her. We have made a number of changes in this area, including issuing revised statutory guidance to schools; we are keeping the impact of those changes under review, and are considering what else we can do to improve the links between schools and the world of work.

Baroness Prosser (Lab): I thank the Minister for that quite helpful reply. However, I am sure that he is aware that in providing careers advice, schools face an inherent conflict. The funding regime for senior schools depends in part upon numbers of pupils being retained in the sixth form to study GCSEs and A-level subjects, and of course the position of schools in the league tables is a hugely important pressure on them. Together, those two things deter many schools from advising pupils of the opportunities maybe to study BTEC subjects, applying for apprenticeships, or moving on to further education colleges. Can the Minister therefore tell the House what the Government intend to do about that conflict?

Lord Nash: The noble Baroness is right—there is an inherent conflict in this. Schools have a clear responsibility to ensure that their pupils achieve and progress to positive destinations, whether that is university or another, high-calibre, vocational route. Our revised guidance clearly states that schools should act impartially and recognise that some students would be better suited to educational training beyond schools, and it makes it clear that schools should give other providers the opportunity to inform pupils about the offer. We believe that our new destination measures will also help considerably in that area.

Lord Cormack (Con): My Lords, may I once again urge my noble friend to contact all secondary schools and encourage them to appoint a careers advisory panel drawn from local businessmen and professionals who really know about jobs and careers?

Lord Nash: My noble friend has raised this before and I think it is an excellent idea. In fact all schools should have at least one person focused on the careers function. I know that a number of schools do this and we are considering encouraging more of them to do so.

Lord Quirk (CB): With the school leaving age now raised to 18, is it not the case that all 16 to 19 year-old students are engaged in special 16 to 19 study programmes which are formally and specifically geared to career aspirations? How, then, can it be that Ofsted last week published a report complaining that there was very poor use of the extra time for 16 to 19 year-olds and, specifically, that careers guidance is poor “at all levels”?

Lord Nash: The noble Lord’s comment about 16 to 19 study programmes is quite right. I am aware of what Ofsted has said and we will be reflecting on what other guidance about this we can give to colleges.

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Lord Winston (Lab): My Lords, I declare an interest as the founder and champion of the Reach Out Lab at Imperial College, London. Each year we connect with around 7,000 schoolchildren from the state sector drawn from all over London, plus another 30,000 through collaboration with the Mayor of London. It is very clear, as the Minister accepts, that there is grossly inadequate careers advice. Does he not also accept that it would be much more sensible if universities were better integrated with schools, and is it not about time that we consider that all education should be under one government department?

Lord Nash: I am aware of the excellent programme to which the noble Lord refers. I am sure he is delighted with the increase in STEM subjects which has taken place under this Government. Schools should have a thoroughly close relationship with their local business professional communities and universities and, as far as his last point is concerned, it is one that I am sure all future Governments will consider carefully.

Baroness Humphreys (LD): My Lords, a UNISON survey in June this year showed that 83% of schools surveyed were no longer employing a careers adviser. Have the Government made an assessment of this situation?

Lord Nash: Yes. We believe that one-to-one careers advice is appropriate in certain circumstances but obviously all schools seek to identify their students’ passions and interests at an early age and develop them. The evidence is quite clear from a number of reports, including those from McKinsey and Education and Employers Taskforce, that the best careers advice for young people comes through activities and contact with the world of work. For many of our young people, particularly those from workless households, careers advice these days is as much about inspiration as actual advice on detailed careers.

Baroness Uddin (Non-Afl): My Lords, the Minister will be aware of the importance of face-to-face careers advice for pupils, but particularly for those with learning disabilities, special educational needs and conditions such as autism, only a small number of whom are actually able to access jobs. Can the Minister assure the House that all those disabled people requiring or requesting careers advice will receive it from fully trained careers advisers who are well trained on disability rights and matters?

Lord Nash: Our guidance is quite clear that particularly for children with SEN, whether they have autism or are in other situations, one-to-one careers advice may well be appropriate.

Baroness Wall of New Barnet (Lab): My Lords, having accepted the proposal and explanation by my noble friend Lady Prosser about the challenges faced by secondary schools, further education institutions and universities, how are the Government going to achieve their goal of having more apprenticeships—a major problem for employers—when most young people going into apprenticeships find out from family rather than from any other available careers advice?

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Lord Nash: My Lords, we have an active programme to encourage people to consider apprenticeships. We have a range of marketing materials available from the National Apprenticeship Service, and Not Going to Uni is also an extremely good source of information. The National Apprenticeship Service funds the Education and Employers Taskforce, and more than 70 advisers from the National Careers Service, the National Apprenticeship Service and jobcentres are actively embarked on this at the schools show.

Children: Obesity


3.05 pm

Asked by Baroness Benjamin

To ask Her Majesty’s Government whether they have any plans to develop a co-ordinated cross-departmental strategy to address childhood obesity in order to ensure the health and wellbeing of children.

Baroness Benjamin (LD): My Lords, I beg leave to ask the Question standing in my name on the Order Paper and declare an interest as chair of the All-Party Group on a Fit and Healthy Childhood.

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con): My Lords, we published our cross-government strategy, A Call to Action on Obesity in England, in 2011. It sets out our approach to tackling obesity and includes a national ambition for a sustained downward trend in the level of excess weight in children by 2020. This requires ongoing collective action across all government, businesses, healthcare professionals and individuals. We are seeing encouraging signs of progress, with obesity rates in children falling to 14% in 2012, the lowest level since 1998.

Baroness Benjamin: I thank my noble friend for that Answer. However, a report by the All-Party Group on a Fit and Healthy Childhood has confirmed that childhood obesity has become an epidemic across the country. In some areas, 40% of children are overweight. Medical and dental experts are raising concerns about obesity and health issues in children and millions are being spent by the NHS because of this. Does my noble friend agree that this epidemic has to be called a national emergency and that someone at Cabinet level should be responsible for co-ordinating strategy across all relevant government departments for the sake of our children’s long-term well-being? Will he please agree to meet the all-party group to discuss this report?

Earl Howe: My Lords, first, I commend the all-party group for its report. Tackling obesity is one of our major priorities, as it is for Public Health England. We have a well developed and wide-ranging programme of actions to tackle obesity. We have set a national ambition for a downward trend in excess weight in children. We are delivering the programme through initiatives such as Change4Life, the National Child Measurement

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Programme, school sports funding and the School Food Plan, and through voluntary partnerships with industry. As regards co-ordination, Public Health England is a leader of the public health service and numerous government departments are contributing to the anti-obesity agenda. We have a Minister for Children, and we have already established the Obesity Review Group, which brings together a range of experts and delivery partners from across the system to try to co-ordinate efforts to meet our national ambitions.

Lord McColl of Dulwich (Con): My Lords, will the Minister acknowledge that the Department of Health and NICE misled Parliament and the nation in saying that the obesity epidemic was due to lack of exercise? Will the Minister acknowledge that in fact obese people do not need to increase their activity one iota in order to lose weight? All they have to do is to eat or drink fewer calories.

Earl Howe: My Lords, although physical activity can have a role in maintaining a healthy weight, the Government agree with my noble friend that its health benefits are nevertheless subsidiary in those who are obese to the need to eat and drink less. My noble friend may be interested to know that NICE is currently consulting on its draft public health guideline on maintaining a healthy weight and preventing obesity among children and adults. It currently expects to publish this guideline in February next year.

Lord Elystan-Morgan (CB): My Lords, does the Minister accept that many of us are obese because we are the proud but inevitable products of heredity? Further, does he accept the splendid words of the Scottish author, Eric Linklater, who, speaking of a person of ample frame, said, “His outline spoke not of greed but of grandeur, not of gluttony but of the magnanimity of the human form”?

Earl Howe: There is, I am sure, no more elegant way of describing the issue under consideration at the moment. The noble Lord makes a very important point about heredity. I do not think that sufficient is understood about the role of our genetic make-up in the way in which we all differ in our weight and size. However, for those who are obese, there are clear, evidence-based actions that they can take to lose weight if they have a mind to do so.

Lord Berkeley (Lab): Does the Minister agree that the link between cycling and the avoidance of obesity is extremely strong? Will he speak to his colleagues in the Department for Transport as his predecessor, whom I met at a conference a few years ago, said that the Department of Health would not encourage cycling because it was a transport matter?

Earl Howe: We are straying a little towards obesity in general rather than obesity in children. However, I concur with the noble Lord that cycling has an important place in the way in which we can take exercise, which is beneficial for our general health. I will, of course, take back the noble Lord’s message.

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Lord Walton of Detchant (CB): Will the Minister say what success, if any, the Government have had in persuading manufacturers to reduce sharply the sugar content of fizzy drinks? Has consideration been given to the possibility of restricting the sale of high-calorie-content drinks through vending machines?

Earl Howe: My Lords, our current emphasis is on overall calorie reduction, of which sugar forms an important part. The scope for reformulation to reduce sugar levels varies widely depending on the food that one considers and a reduction of sugar levels does not always mean that the overall calorie content is reduced. The issue is not black and white. An example of that is when sugar is replaced by starch or other ingredients. Nevertheless, we are discussing with the food manufacturing industry ways in which it can reformulate its food and the Scientific Advisory Committee on Nutrition is finalising its review on carbohydrates, looking at sugar as a particular component of that.

Baroness Wheeler (Lab): My Lords, given the difficulty of ensuring effective cross-department co-ordination on childhood obesity, what is the Government’s response to a call by the Royal College of General Practitioners to set up a COBRA-style task force? Would that not be a key way of ensuring a joined-up approach that extended beyond the Department of Health?

Earl Howe: My Lords, as I mentioned earlier, we have set up the Obesity Review Group, which contains a multiplicity of experts to co-ordinate the efforts being conducted not only in government but also in local government and on the part of business and the wider private sector. While I buy into the central point made by the noble Baroness that this needs an overarching scrutiny, we believe that we have that already.

Energy: Winter Supplies


3.13 pm

Asked by Lord Ezra

To ask Her Majesty’s Government what steps they are taking to secure adequate energy supplies during the coming winter.

The Parliamentary Under-Secretary of State, Department of Energy and Climate Change (Baroness Verma) (Con): My Lords, we continue to actively manage risks to the secure energy supplies on which we depend. Working with Ofgem and National Grid, we have introduced new electricity system balancing measures through which we expect de-rated margins to remain around 6.5%; this is within the reliability standard of 4%. Our gas infrastructure is resilient, and import infrastructure can meet nearly double our annual demand without even counting on significant domestic production. We also engage closely with the EU and our G7 partners on measures to increase the EU’s energy security.

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Lord Ezra (LD): My Lords, I thank my noble friend for her Answer, but will she kindly elaborate further on the security of electricity supplies? In view of the fact that the reserve capacity is down to very low levels, and that a number of stations have had unexpected outages—including Didcot B, announced today—can she indicate whether there are likely to be disconnections during peak winter conditions?

Baroness Verma: My noble friend is right to highlight the outages. However, as I stated in my initial Answer, the grid already has existing options for companies to receive payment to reduce the amount of electricity they are taking from the grid at a time of peak demand during winter months. They are finalising new agreements with additional power stations to provide reserve services following the recent loss to which my noble friend referred. The national grid has around three gigawatts of additional tools to boost supply when margins are very tight and is in the process of extending our mutual assistance arrangements with both France and the Netherlands.

Lord Lawson of Blaby (Con): My Lords, the noble Lord, Lord Ezra, has rightly drawn the attention of the House to a truly alarming state of affairs, which is the direct result of subordinating over a number of years energy policy to the damaging, fundamentally immoral and futile demands of the Climate Change Act. Has my noble friend had time to study the outstanding GWPF lecture given by our right honourable friend Owen Paterson MP on this very subject only last week? If she has not, will she now do so?

Baroness Verma: As ever, I am grateful for my noble friend’s interventions because they enable me to highlight that, of course, we do have to look at the costs of any policy. However, we also need to look at the commitments we have made to reducing carbon emissions both in our global targets and in our national targets. I remind noble Lords that having a lower-carbon energy sector has brought in more than £45 billion worth of investment in electricity generation. That is a clear signal that we need a diverse range of energy supplies. I have not looked at my right honourable friend’s lecture notes but I will do so.

Lord Teverson (LD): The Minister mentioned interconnectors, so does she agree that we have a meagre four gigawatts of interconnector supply internationally with the Netherlands and France? Should we not concentrate in terms of balance on increasing that supply, and in that way get a much greater single market in electricity within the European Union?

Baroness Verma: Again, my noble friend raises a very important point. Of course we are working very closely with our partners and we are looking at developing ways of enhancing interconnector supply. I agree with my noble friend that we have work to do, but work is in progress and it is progressing in the right direction.

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Lord Pearson of Rannoch (UKIP): Does Her Majesty’s Government agree that the crippling cost of the EU’s mad climate change policy, to which we are subservient, falls largely on people who cannot afford it? Does the widow’s mite come to mind?

Baroness Verma: No, my Lords. We have a sensible policy in this country, and people across the world look at what we are doing to encourage green energy as well as traditional fuels. If we are to leave a cleaner planet for future generations, we have a part to play.

Baroness Worthington (Lab): My Lords, demand for energy has fallen so far this year. In the first half of this year we saw a 17.5% reduction in gas demand and a 5.7% reduction in electricity demand. People are walking around today in T-shirts. There is no need for the hysterical headlines that we are seeing about closures in plant. We have 25% of our energy today coming from wind. The question is: does the Minister agree that it is time to create an energy security board so that we can stop the alarmist headlines, have a mature debate and get our energy security and demand management policy back on track?

Baroness Verma: I agree with the noble Baroness that we need to have a sensible energy debate; maybe she could take that message back to her leader.

Lord King of Bridgwater (Con): Can my noble friend tell the House that since the Leader of the Opposition announced a proposal to freeze electricity prices, what announcement has been made by any energy company of further investment in energy generation in this country?

Baroness Verma: My noble friend follows on from what I said in response to the noble Baroness opposite. We need a sensible energy policy and we are working towards a sensible debate. We have ensured that we are hard on energy companies where we see that they are not being fair to the consumer. We have brought in the CMA and have tightened Ofgem’s rules—so the Government have done a lot. Energy companies need to play their part, but we as political parties need to play ours.

Lord Stoddart of Swindon (Ind Lab): My Lords, is the Minister aware that when I worked in the electricity industry for the CEGB, we needed 18% spare capacity? She is now trying to persuade the House that 4% spare capacity will give security of supply. Can I assure her that that policy—particularly since we have 25% of energy coming from wind power—is endangering security of supply, not only for industry but for all consumers as well? I hope that the Government will treat this as a matter of urgency, particularly in light of the fire at Didcot over the weekend.

Baroness Verma: My Lords, I think that I have made it clear through my responses that we are very aware of what we have in reserve. We are giving—and have given—powers to both national grid and Ofgem to ensure that we have enough supply.

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Armed Forces (Service Complaints and Financial Assistance) Bill [HL]

Third Reading

3.21 pm

Clause 2: Reform of system for redress of individual grievances

The Amendment

Moved by Lord Rosser

Clause 2, page 6, line 25, at end insert—

“( ) The Ombudsman may, after advising the Secretary of State, investigate any matter deemed to be in the public interest on—

(a) any aspect of the system mentioned in section 340O(2)(a);

(b) any matter relating to the Ombudsman’s functions under this Part;

and make a report to the Secretary of State.”

Lord Rosser (Lab): My Lords, we have had debates in Committee and on Report on giving the Armed Forces Service Complaints Commissioner, now to be known as the ombudsman, wider powers to be able to report on thematic issues without being dependent on the Secretary of State asking for such reports. One reason for providing those wider powers—which is what this amendment seeks to do—is that, under the present arrangements, the commissioner has never been asked by a Secretary of State for Defence to report on a particular area of concern that she or the Secretary of State may have. It is therefore not credible to argue that the ability of the Secretary of State to call for such reports covers the situation.

The Commons Defence Select Committee believes there would be value in the commissioner—the ombudsman—being able to undertake research into and report on thematic issues, in addition to the annual reports, and that the ombudsman’s experience on these issues should be utilised. The Defence Committee reported that, during visits to units, the current commissioner had been informed of issues that would not necessarily come to her as complaints but on which she thought some work needed to be done. Such issues, which might refer to a general culture at a particular location or unit, or more widely, of discrimination or bullying, for example, would not be covered by new Section 340L, which relates to recommendations arising as a result of maladministration. A situation or treatment of an individual or individuals could be questionable or unacceptable without there being evidence of maladministration—assuming there was a willingness to make such a complaint, which relates to process, and whether a complaint has been conducted in a procedurally sound way.

In Committee, the Minister, on behalf of the Government, expressed concern that:

“an ombudsman with a wider remit to investigate matters of their own volition, notwithstanding whether they must first notify the Secretary of State of their intentions, could overlap with these other jurisdictions and cause confusion and difficulties”.—[

Official Report

, 9/7/14; col 243.]

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That argument does not stand up. If that is the reason for not giving the ombudsman a wider remit in relation to thematic issues, then it must equally be a matter of concern under the powers in Section 340L. In respect of those powers, the Minister has said the ombudsman could make recommendations relating to wider systemic issues as a result of finding maladministration.

One difficulty of the Bill is that it is not clear what investigations, if any, the ombudsman can or cannot carry out on his or her own volition beyond investigating an individual complaint of maladministration. The Minister said in Committee that such recommendations could relate to systemic issues, but then said that the amendment seeking to provide for this went “beyond that required”, which would suggest that the Bill does not give, in the Government’s eyes, either the wider powers sought by the Defence Committee or sought in this amendment.

The Minister also said in Committee that there was scope for the ombudsman to raise wider issues,

“in appropriate ways … and to provide an input to investigations or inquiries conducted by other appropriate bodies”.—[

Official Report

, 9/7/14; col. 243.]

Clearly, the latter aspect, of providing an input into an investigation that somebody else has decided to initiate, does not meet the terms of this amendment, on the ability of the ombudsman to be able to carry out his or her own investigation and make his or her own recommendations.

I also have a concern that the Minister’s comment that there is scope under the Bill for the ombudsman to raise wider issues “in appropriate ways” is mainly a reference to being able to put something into the annual report. That view has been strengthened by the Minister’s statement on Report that:

“If systemic failings are identified through the complaints system, it is important that those are brought to the attention of both the individual service and the Ministry of Defence … the Bill gives the ombudsman scope to use their judgement to cover such matters in the annual report as they think relevant to the operation of the system or to the exercise of their role. The ombudsman’s annual reports, like those of the commissioner, will be able to look widely at the system of redress, the sort of complaints that are encountered and what sort of failings and misconduct the system has to deal with”.

The Minister also said on Report that the ombudsman could make wider recommendations,

“beyond those solely relating to maladministration, to addressing the effectiveness of the redress system or other systemic issues. Such wider recommendations could concern the better handling and investigations of complaints of a particular nature, where there is a finding of maladministration in connection with the handling of the complaint at hand. In addition, such recommendations could well concern the commissioning of training in carrying out investigations into certain matters—discrimination being a good example—or appointing a subject matter expert to investigate systemic issues or concerns that have apparently arisen. It is then fundamentally down to the services to respond appropriately and we would expect them to do so”.

It is evident from those quotes from what the Minister said on Report that the Government’s position is that, while the ombudsman can draw attention to systemic issues that have apparently arisen and recommend that they be investigated, the one thing that the Government are not prepared to allow the ombudsman to do is investigate such issues of concern on his or

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her own volition unless required by the Secretary of State to do so—and, as we know, Secretaries of State have a track record of not asking the commissioner to do so.

Indeed, the Minister made this position clear on Report when he said:

“Although we want the ombudsman to address wider issues, including where they have identified systemic abuse, we do not want the ombudsman to have any statutory powers to investigate thematic issues. We do not, for example, want the ombudsman to have any powers to require the production of papers or to question witnesses beyond the powers set out in respect of the exercise of the ombudsman’s primary function of investigating alleged maladministration in the handling of service complaints and whether, as a result, injustice has been caused”.

So the issue is not the principle of the ombudsman being able to call for the production of papers or questioning of witnesses—since that could relate to maladministration—but instead to do so in the context of an investigation into a thematic issue of concern to the ombudsman as opposed to an individual complaint of maladministration. The reason given for this stance by the Government on Report was that they,

“do not want the ombudsman to be an inspectorate for the Armed Forces or to perform the functions of a rapporteur. … Conferring such a role on the ombudsman would also serve to divert the resources of the office”.—[

Official Report

, 29/7/14; cols. 1544-6.]

I hope that the second reason is not a significant one, since it appears to be saying that the reason for not allowing the ombudsman to investigate thematic issues is not related to the merits or otherwise of so doing but rather because the resources cannot be provided to allow him or her to do so.

3.30 pm

The report of the parliamentary Joint Committee on Human Rights on the Bill has recently been published. The committee welcomed the Bill,

“as a significant human rights enhancing measure”,

as have, I think, all parties. Indeed, the committee commended the Ministry of Defence for the exemplary way in which it had assisted it in its human rights scrutiny of the Bill. However, among the issues raised by the Joint Committee was the question of the independence of the ombudsman from the Government and the Armed Forces. The committee says that there is a need to demonstrate,

“the importance of the appearance of independence … to provide the necessary public confidence in the independence of the particular office holder”.

We may have different views on how that can be achieved, but I suggest that independence is not particularly enhanced by the Government saying,

“we do not want the ombudsman to have any statutory powers to investigate thematic issues”—[

Official Report

, 29/7/14; col. 1545.]

when the Armed Forces covenant sets out that the Armed Forces have,

“a responsibility to maintain an organisation which treats every individual fairly, with dignity and respect, and an environment which is free from bullying, harassment and discrimination”

and when the announcement of the creation of the ombudsman came a short time after the verdict was delivered on the inquest into the death of Corporal Anne-Marie Ellement. The inquest found that Anne-Marie had suffered workplace bullying, including

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rape-related bullying and the Coroner termed the situation a “hothouse”, concluding it was inevitable that incidents would occur.

It really is not clear why the Government are not prepared to go down the road of giving the ombudsman statutory powers to investigate thematic issues other than at the direction of the Secretary of State. What in reality are the concerns that cannot be overcome? What do the Government consider the ombudsman might do that would be unacceptable or would compromise national security if he or she had the right to investigate thematic issues of concern on their own volition? The recommendations arising from such an investigation would not be binding. They would have to go to the Secretary of State or Defence Council, who would decide whether to accept them in full or in part or not at all. Therefore, what is the concern that is so strong that a measure that would certainly enhance both the reality and the appearance of independence of the ombudsman cannot be countenanced? I beg to move.

Lord Palmer of Childs Hill (LD): My Lords, it is to the credit of your Lordships’ House that we have a Bill with only one amendment. It is a compliment to all sides of the House that we have managed to get a Bill that has got to this stage. I am a fairly new addition to this place but one amendment to a Bill seems a massive achievement. However, it is even greater than the noble Lord, Lord Rosser, just said. I believe that we have achieved an awful lot in the Bill and the amendment is almost clutching at straws or trying to find problems. I find that the commissioner—the ombudsman—will be able to take matters to the Defence Council and the problems described seem more in the realms of fantasy than reality.

As I see it in the Bill, in reality we have the ability to conduct investigations—I do not read it as saying that there can be no investigation of any sort. I do not think that the proposal by the noble Lords, Lord Rosser and Lord Tunnicliffe, gives the ombudsman that much more power than is there already. The ombudsman may investigate if a matter is,

“deemed to be in the public interest”.

In fact, most problems occur when particular members of the Armed Forces suffer some sort of bullying or have some complaint. That is where the complaints arise, rather than the big systemic complaints to which the noble Lord, Lord Rosser, referred. I do not see that the amendment is needed. There have been a lot of reassurances; they may not all be in the legislation but can be found in Hansard. But it has been proved that assurances given in Hansard can be taken and used in the appropriate manner.

If there is a vote, I shall certainly vote against the amendment, but I take this opportunity of asking my noble friend the Minister whether he would comment on a specific case. Perhaps he could say how, bearing in mind the comments of the noble Lord, Lord Rosser, the approach to that specific case would be helped and enhanced by the new legislation that we seek to pass. I refer to the case, reported over the last few days, of former Corporal Neathway, a paratrooper who was

20 Oct 2014 : Column 427

disabled. It took three years for his complaint to surface and for it to be seen that his commanding officers, at lower staff level and brigadier level, had not done what was necessary. What would happen under the new legislation, after the efforts of your Lordships’ House, with all the faults that the noble Lord, Lord Rosser, has sought to expose, if the case of this former corporal in a parachute regiment happened now rather than three years ago?

The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever) (Con): My Lords, the issues covered in this amendment have already been the subject of useful and detailed debates in Committee and on Report. I said on Report on 29 July that I would consider the issue further so that we could return to it this afternoon.

The Bill provides that the ombudsman’s primary function will be to investigate and report on allegations by complainants that there has been maladministration in handling their complaint. The reports from the ombudsman will contain binding decisions on whether there has been maladministration and whether, as a consequence, injustice has or could have been caused. The ombudsman can also make recommendations for remedial action including the reinvestigation of the complaint, suggested improvements to the way in which investigations into such allegations are carried out, or specific actions that would make the complaints system more effective. In addition to this, there is nothing to stop the ombudsman commenting on any underlying concern or pattern of behaviour that has given rise to the complaint.

As I said on Report, we envisage that, when the ombudsman considers it appropriate, he or she will publish information on any matters of general concern arising from the operation of the service complaints system, however such matters come to the ombudsman’s attention. We do not think that a statutory power needs to be provided for the ombudsman to be able to do this. We want the ombudsman to raise such issues as quickly as possible. When systemic failings are identified, it is important that they are brought to our attention so that they can be put right when possible.

My noble friend Lord Palmer of Childs Hill raised the really important issue of the Neathway case and asked how that case would be covered by the Bill. The Bill will mean that the complaints process in future is quicker; anyone who is unhappy with how their complaint has been handled will be able to approach the ombudsman—for example, if they believe that their case has taken too long to resolve. The ombudsman’s independent oversight will give the Armed Forces lessons in how to further improve the process.

A service complaint panel has reached a determination about the service complaint made by ex-Corporal Tom Neathway, the panel on behalf of the Defence Council has formally apologised to ex-Corporal Neathway and has made recommendations for the Army to consider. The Army has appointed a commanding officer unconnected with the events to consider all matters arising from the service complaint panel’s determination.

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The Bill also provides that the ombudsman must produce an annual report. This will be able to look widely at the complaints system, the sort of cases it handles and what sort of failings and misconduct the system has identified. As I have said before, this is a wide and appropriate role for the ombudsman to have, using his or her knowledge and experience of the complaints system and any information that has come to light through that process, whether from the complainant, families, service welfare organisations, MPs or the services themselves. The ombudsman therefore has the ability to report on any underlying themes. The current commissioner has used her annual reports to comment on issues such as the effectiveness of the Army’s zero-tolerance policy on bullying.

The ombudsman can therefore report on a wide range of issues relating to the effectiveness, efficiency and fairness of the service complaints system, including on any systemic issues that have come to his or her attention. This can be done immediately through individual investigation reports, or by publishing information of general concern, or through the annual report.

The aim of this amendment, however, is to allow the ombudsman to carry out investigations into wider issues, such as a culture of bullying at a particular location, and to produce reports on those issues. Consequently, its purpose is to introduce a new role for the ombudsman that goes beyond that set out in the Bill.

There are three important reasons why we do not want the ombudsman to have such a power. First, carrying out such investigations would divert the ombudsman from their primary role of making the complaints system work better and, in particular, hold the chain of command to account in its handling of service complaints. Secondly, the ombudsman might not be the best person to carry out such an investigation. Such investigations might require the full-time dedication of a number of people with specific skills and expertise, such as investigators and lawyers. Finally, it is the chain of command that is responsible for the welfare of its people and for the environment in which they work. We would expect the ombudsman to bring any systemic failings to the attention of the individual service concerned, and to the Ministry of Defence, so that they can put things right. However, it is not for the ombudsman, in the manner of an inspectorate, then to go on to examine these issues.

I hope that I have made the Government’s position clear. We do not want the ombudsman to highlight any thematic issues they come across and to make these concerns quickly and publicly available. However, we do not want the ombudsman and supporting staff then to go off and investigate these matters. Giving him or her the power to do so would significantly change their role and distract them from the main task of making the service complaints system better.

As we have now reached the final stage of our consideration of this Bill, I thank all noble Lords for their work on it. I agree with my noble friend Lord Palmer and I also thank him for his support on this amendment. We have had some excellent debates on a number of issues, some of which we have looked at in considerable depth. I hope that all noble Lords feel

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that there has been adequate time for scrutiny. I am particularly grateful to the noble Lord, Lord Rosser, for the constructive way that he has put the Opposition’s case, and to my noble friends Lord Thomas and Lord Palmer and others for their expert contributions. I also thank my noble friend Lady Jolly for her assistance, and officials both in this House and in the Ministry of Defence for ensuring the smooth running of the Bill.

With that, I ask noble Lords to reject this amendment.

3.45 pm

Lord Rosser: My Lords, I thank the Minister for his response. I express no surprise that the Government have not felt able to accept this amendment, since the Minister indicated to me in a recent letter that the Government would not be tabling any amendments on thematic investigations for Third Reading. As we come to the end of our consideration of the Bill, I thank the Minister and the noble Baroness, Lady Jolly, for their thoroughness and unfailing courtesy, at the Dispatch Box, in correspondence and outside the Chamber, in responding to issues that we have raised. I extend those thanks to the Bill team and to all noble Lords who have taken part.

I also thank the Minister for his kind words. I am grateful to him for having somewhat contradicted the noble Lord, Lord Palmer of Childs Hill, who clearly believes that the issue I am raising is of no significance. Indeed, I think he used the expression “clutching at straws”. The Minister clearly does not believe that the issue I am raising is clutching at straws. He has said specifically that the Government do not want the ombudsman to be able to carry out an investigation into, for example, bullying at a particular location. That is not a minor issue or clutching at straws; that would be a particularly useful and relevant role for the ombudsman to have. When the Minister talks about undermining the chain of command, it depends on whether the chain of command will regard the ombudsman as the enemy or as being of assistance to it in dealing with issues of military life and military personnel that arise. We are getting off on a very bad footing but I sense that the ombudsman will be regarded as the enemy, who should not be let out more often than is absolutely necessary.

In his response, the Minister reiterated the Government’s position: while they agree that the ombudsman should address wider issues, they do not want him to have any statutory powers to investigate those issues. The ombudsman can apparently report that there is a wider problem but he or she cannot fully investigate whether that is the case, or, if it is, the extent to which it is the case, and make recommendations. The ombudsman can do this if the Secretary of State requires him to do so but not of his own volition. We know that Secretaries of State do not ask—they have not asked the present commissioner—for such investigations to be carried out. Investigations into maladministration will not necessarily provide scope for raising matters of concern over thematic issues or abuses because such an investigation needs a specific complaint, or complaints, of maladministration. There does not have to be a procedural issue in how complaints are dealt with for there to be an issue of concern.

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In conclusion, the main issue is that the Government intend that the ombudsman may only report, not investigate, concerns over systemic or thematic abuses or issues, and that it should then be up to the Defence Council or the Ministry of Defence whether any further action is taken to investigate those concerns. By definition, the ombudsman will not be able to substantiate such concerns or base any recommendations on the facts that emerge from the investigation. He or she will not have the power to investigate concerns beyond what arises from an individual complaint, not about the issue itself but about maladministration of the way a complaint has been dealt with. As the Joint Committee on Human Rights said, the appearance of the independence of the ombudsman is important to provide the necessary confidence. In opposing my amendment, the Government have not provided a sufficiently convincing explanation of the difficulties that would be caused by the ombudsman having the power to carry out investigations.

Lord Astor of Hever: My Lords, I may be able to help the noble Lord. In winding up, I misread one word. I said that we do not want the ombudsman to highlight any thematic issues; I should have said that we do want the ombudsman to highlight the thematic issues. That was entirely my misreading.

Lord Rosser: Although that sounds like a significant change in the Government’s position, actually it is not. What the noble Lord has said is that the Government want the ombudsman to be able to highlight systemic issues—that is, to say, “I’ve been told that there is a problem”—but not to investigate the issue. I am grateful to the noble Lord for correcting what he said but it does not alter the position that the Government do not want the ombudsman to be able to investigate.

There is a difference between telling somebody that there is a problem and being able to investigate it. As I was saying when the Minister intervened, the Government have not provided a sufficiently convincing explanation of the difficulties that would be caused by the ombudsman having the power to carry out investigations into thematic issues of concern of his or her own volition, even though they do not dispute that it may be necessary to carry out such investigations—but only if the Secretary of State requires the ombudsman to do it. So it may be necessary if the Secretary of State wants it but not if the ombudsman thinks it should be done. That does not add up to a credible position on the Government’s behalf, and I wish to test the opinion of the House on my amendment.

3.51 pm

Division on the amendment.

Contents 172; Not-Contents 209.

Amendment disagreed.

Division No.  1


Adams of Craigielea, B.

Adonis, L.

Ahmed, L.

Anderson of Swansea, L.

Andrews, B.

Armstrong of Hill Top, B.

20 Oct 2014 : Column 431

Bach, L.

Bakewell, B.

Bassam of Brighton, L. [Teller]

Beecham, L.

Berkeley, L.

Billingham, B.

Birt, L.

Blackstone, B.

Blood, B.

Boateng, L.

Borrie, L.

Bradley, L.

Brennan, L.

Brooke of Alverthorpe, L.

Brookman, L.

Browne of Belmont, L.

Carter of Coles, L.

Chandos, V.

Christopher, L.

Clancarty, E.

Clark of Windermere, L.

Clarke of Hampstead, L.

Collins of Highbury, L.

Corston, B.

Coussins, B.

Cox, B.

Crawley, B.

Crisp, L.

Cunningham of Felling, L.

Davies of Abersoch, L.

Davies of Oldham, L.

Desai, L.

Donaghy, B.

Drake, B.

Eames, L.

Elder, L.

Elystan-Morgan, L.

Farrington of Ribbleton, B.

Filkin, L.

Foulkes of Cumnock, L.

Gale, B.

Gavron, L.

Gibson of Market Rasen, B.

Giddens, L.

Glasman, L.

Golding, B.

Goldsmith, L.

Goudie, B.

Gould of Potternewton, B.

Grantchester, L.

Griffiths of Burry Port, L.

Grocott, L.

Hanworth, V.

Harrison, L.

Haskel, L.

Haworth, L.

Hayter of Kentish Town, B.

Healy of Primrose Hill, B.

Henig, B.

Hilton of Eggardon, B.

Hollick, L.

Hollis of Heigham, B.

Howarth of Newport, L.

Howells of St Davids, B.

Howie of Troon, L.

Hughes of Woodside, L.

Hutton of Furness, L.

Irvine of Lairg, L.

Jones, L.

Jones of Moulsecoomb, B.

Jones of Whitchurch, B.

Jordan, L.

Judd, L.

Kennedy of Cradley, B.

Kennedy of Southwark, L.

King of Bow, B.

Kingsmill, B.

Kinnock, L.

Kinnock of Holyhead, B.

Kirkhill, L.

Knight of Weymouth, L.

Laming, L.

Layard, L.

Lea of Crondall, L.

Liddell of Coatdyke, B.

Liddle, L.

Lipsey, L.

Lister of Burtersett, B.

Low of Dalston, L.

Luce, L.

McAvoy, L.

McDonagh, B.

Macdonald of Tradeston, L.

McFall of Alcluith, L.

McIntosh of Hudnall, B.

MacKenzie of Culkein, L.

McKenzie of Luton, L.

Mallalieu, B.

Martin of Springburn, L.

Massey of Darwen, B.

Maxton, L.

Meacher, B.

Mendelsohn, L.

Mitchell, L.

Monks, L.

Morgan, L.

Morgan of Ely, B.

Morgan of Huyton, B.

Morris of Aberavon, L.

Morris of Handsworth, L.

Noon, L.

Nye, B.

O'Neill of Bengarve, B.

Patel of Blackburn, L.

Patel of Bradford, L.

Pendry, L.

Pitkeathley, B.

Plant of Highfield, L.

Ponsonby of Shulbrede, L.

Prosser, B.

Ramsay of Cartvale, B.

Rebuck, B.

Reid of Cardowan, L.

Rendell of Babergh, B.

Richard, L.

Rooker, L.

Rosser, L.

Rowlands, L.

Royall of Blaisdon, B.

Sawyer, L.

Scotland of Asthal, B.

Scott of Foscote, L.

Sherlock, B.

Simon, V.

Singh of Wimbledon, L.

Smith of Basildon, B.

Smith of Finsbury, L.

Soley, L.

Stern, B.

Stevenson of Balmacara, L.

Stoddart of Swindon, L.

Stone of Blackheath, L.

Symons of Vernham Dean, B.

Taylor of Blackburn, L.

Taylor of Bolton, B.

Temple-Morris, L.

Thornton, B.

Tomlinson, L.

Tunnicliffe, L. [Teller]

Turner of Camden, B.

Walker of Aldringham, L.

Wall of New Barnet, B.

Warner, L.

Warnock, B.

West of Spithead, L.

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Wheeler, B.

Whitaker, B.

Whitty, L.

Williams of Baglan, L.

Williams of Elvel, L.

Winston, L.

Wood of Anfield, L.

Woolmer of Leeds, L.

Worthington, B.

Young of Hornsey, B.

Young of Norwood Green, L.


Aberdare, L.

Addington, L.

Ahmad of Wimbledon, L.

Alderdice, L.

Anelay of St Johns, B.

Armstrong of Ilminster, L.

Ashton of Hyde, L.

Astor of Hever, L.

Attlee, E.

Avebury, L.

Baker of Dorking, L.

Bakewell of Hardington Mandeville, B.

Balfe, L.

Barker, B.

Bates, L.

Benjamin, B.

Berridge, B.

Black of Brentwood, L.

Blencathra, L.

Borwick, L.

Bourne of Aberystwyth, L.

Bowness, L.

Brabazon of Tara, L.

Bradshaw, L.

Brinton, B.

Brougham and Vaux, L.

Browning, B.

Butler-Sloss, B.

Byford, B.

Caithness, E.

Cameron of Dillington, L.

Carlile of Berriew, L.

Carrington of Fulham, L.

Cathcart, E.

Chidgey, L.

Clement-Jones, L.

Colwyn, L.

Condon, L.

Cope of Berkeley, L.

Cormack, L.

Cotter, L.

Courtown, E.

Craig of Radley, L.

Craigavon, V.

Crathorne, L.

Crickhowell, L.

De Mauley, L.

Deighton, L.

Denham, L.

Dholakia, L.

Dixon-Smith, L.

Dobbs, L.

Dykes, L.

Eaton, B.

Eccles, V.

Eccles of Moulton, B.

Eden of Winton, L.

Edmiston, L.

Empey, L.

Falkland, V.

Falkner of Margravine, B.

Farmer, L.

Faulks, L.

Fearn, L.

Fellowes, L.

Fellowes of West Stafford, L.

Finkelstein, L.

Flight, L.

Fowler, L.

Framlingham, L.

Garden of Frognal, B.

Gardiner of Kimble, L.

Gardner of Parkes, B.

Geddes, L.

Goodlad, L.

Greenway, L.

Grender, B.

Hameed, L.

Hamilton of Epsom, L.

Hamwee, B.

Hanham, B.

Hardie, L.

Harris of Peckham, L.

Harris of Richmond, B.

Higgins, L.

Hodgson of Abinger, B.

Hodgson of Astley Abbotts, L.

Holmes of Richmond, L.

Horam, L.

Howarth of Breckland, B.

Howe, E.

Howe of Aberavon, L.

Howe of Idlicote, B.

Humphreys, B.

Hunt of Wirral, L.

Hurd of Westwell, L.

Hussein-Ece, B.

James of Blackheath, L.

Jenkin of Kennington, B.

Jenkin of Roding, L.

Jolly, B.

Jones of Cheltenham, L.

Kalms, L.

King of Bridgwater, L.

Lamont of Lerwick, L.

Lane-Fox of Soho, B.

Lawson of Blaby, L.

Lee of Trafford, L.

Leigh of Hurley, L.

Lindsay, E.

Lingfield, L.

Liverpool, E.

Loomba, L.

Luke, L.

Lyell, L.

Lytton, E.

McColl of Dulwich, L.

MacGregor of Pulham Market, L.

Mackay of Clashfern, L.

Mackay of Drumadoon, L.

McNally, L.

Maddock, B.

Magan of Castletown, L.

Mancroft, L.

Manzoor, B.

Mar, C.

Marks of Henley-on-Thames, L.

Marlesford, L.

Miller of Chilthorne Domer, B.

Mobarik, B.

Montgomery of Alamein, V.

Moynihan, L.

Naseby, L.

20 Oct 2014 : Column 433

Nash, L.

Neville-Jones, B.

Neville-Rolfe, B.

Newby, L. [Teller]

Northbrook, L.

Northover, B.

O'Cathain, B.

Paddick, L.

Palmer, L.

Palmer of Childs Hill, L.

Parminter, B.

Patten of Barnes, L.

Perry of Southwark, B.

Popat, L.

Purvis of Tweed, L.

Ramsbotham, L.

Rawlings, B.

Redesdale, L.

Rennard, L.

Ridley, V.

Risby, L.

Roberts of Llandudno, L.

Roper, L.

Rowe-Beddoe, L.

Ryder of Wensum, L.

Sanderson of Bowden, L.

Scott of Needham Market, B.

Seccombe, B.

Selborne, E.

Selsdon, L.

Sharkey, L.

Sharples, B.

Sheikh, L.

Shephard of Northwold, B.

Sherbourne of Didsbury, L.

Shields, B.

Slim, V.

Smith of Clifton, L.

Spicer, L.

Stedman-Scott, B.

Sterling of Plaistow, L.

Stewartby, L.

Stirrup, L.

Stoneham of Droxford, L.

Stowell of Beeston, B.

Strathclyde, L.

Suri, L.

Suttie, B.

Swinfen, L.

Taverne, L.

Taylor of Holbeach, L. [Teller]

Tebbit, L.

Teverson, L.

Thomas of Swynnerton, L.

Thomas of Winchester, B.

Tope, L.

Trefgarne, L.

Trenchard, V.

Trimble, L.

True, L.

Tugendhat, L.

Tyler, L.

Ullswater, V.

Verma, B.

Wade of Chorlton, L.

Wakeham, L.

Wallace of Saltaire, L.

Wallace of Tankerness, L.

Walmsley, B.

Warsi, B.

Wei, L.

Wheatcroft, B.

Williams of Trafford, B.

Wilson of Tillyorn, L.

Woolf, L.

Younger of Leckie, V.

4.05 pm

A privilege amendment was made.


Moved by Lord Astor of Hever

That the Bill do now pass.

Lord Astor of Hever: My Lords, I beg to move.

Lord Kennedy of Southwark (Lab): My Lords, on Report, I moved an amendment about having a credit union for the Armed Forces. The noble Baroness, Lady Jolly, responding for the Government, was unable to accept my amendment but agreed that I could meet with the Minister responsible, Anna Soubry. That meeting took place at the MoD last week, and was very positive. Following the debate in the Chamber, a meeting also took place with forces charities which are supportive of a credit union for the Armed Forces. I understand that a discussion has taken place with the company which provides the payroll service for the MoD and it is hoped that either the costs will be considerably reduced or there will be no cost at all to the MoD.

What I understand to be happening next is that the MoD will identify a number of credit unions that are the right size to be able to deliver financial services to the Armed Forces community. We should be in a

20 Oct 2014 : Column 434

situation by the end of this year or early next year to offer the Armed Forces community credit union facilities that will provide loans, savings and other financial products that will be available through payroll deduction.

I thank the noble Baroness, Lady Jolly, for her kind assistance, Anna Soubry for working very hard on this, and the noble Lord, Lord Astor. I have been a supporter of the credit union movement my whole adult life and, as a Labour Co-op Member of your Lordships’ House, I am delighted that the campaign has proved successful and that members of the Armed Forces community will soon be able to benefit from this development, as will the Armed Forces charitable services. Could the Minister maybe say a few words to the House? I thank him very much for that.

Bill passed and sent to the Commons.

Criminal Justice and Courts Bill

Report (1st Day)

4.05 pm

Clause 3: Schedule 15B offences

Amendment 1

Moved by Lord Beecham

1: Clause 3, page 4, line 43, at end insert—

“(13) Before this section comes into force, the Secretary of State shall—

(a) consult the Parole Board about the resources required for additional hearings resulting from the implementation of this section; and

(b) lay a report before Parliament containing—

(i) his assessment of the resources required for additional hearings; and

(ii) his plans to ensure that the Parole Board has adequate resources to fulfil the requirements of this section effectively.”

Lord Beecham (Lab): My Lords, I shall speak also to Amendment 8. Amendment 1 is by way of a sunrise clause that would require the Secretary of State to consult the Parole Board about the resources required for additional hearings resulting from the implementation of this clause of the Bill, which deals with the arrangements for the Parole Board, and lay a report before Parliament containing his assessment of the resources required for additional hearings and his plans to ensure that the board has sufficient resources to fulfil the requirements of the proposed section.

The amendment was the subject of debate in Committee. It was prompted by the growing pressures on the Parole Board and the impact that they were having on the timely discharge of its responsibilities. In that debate I expressed concern about the effect on the board’s workload of a number of provisions in the Bill as a result of the number of categories of offender being made subject to the decision of the board in relation to release instead of being eligible for automatic release after serving two-thirds of their term. These cases include prisoners convicted of terrorist and explosives

20 Oct 2014 : Column 435

offences, who would be subject to the enhanced dangerous offenders scheme, all offenders serving extended determinate sentences, and others who would be subject to discretionary, rather than automatic, release after serving half their term. In addition, the Bill prescribes a new release test for recalled prisoners.

All these factors threaten a substantial increase in workload, with a potential requirement, on the Government’s own estimate, eventually, of 1,000 extra prison places. The situation is certain to be made worse by a substantial anticipated rise in oral hearings consequent on the decision of the Supreme Court in the case of Osborn. Given the department’s track record in forecasting the effect of IPPs on prison numbers, there must be some doubt, to put it mildly, as to the robustness of its estimate. As it is, the board is anticipating holding an additional 4,500 oral hearings a year.

The Minister wrote to me on 29 July in reassuring terms, saying that the experience of the first few months after the judgment showed that the board’s predictions about the caseload were too pessimistic, and that in any case, it was,

“developing significant changes to its operating model and these were being tested”.

The Minister affirmed that the resources question would be kept under review and, of course, I welcome that. It would, however, be interesting to know what the projected caseload in that respect now looks like and what the anticipated cost is and to receive an assurance that any extra work for the board, and its already reduced staff, will not be at the expense of its basic caseload and the times in which it can deal with hearings. Will the Minister provide his assessment of the cost of the additional hearings and how and when this will be met? In particular, will he tell us what consultations have taken place with members of the board and others over the proposal for one-member panels for determinate sentence reviews and two, instead of three, members for indeterminate case reviews?

The Minister hinted somewhat coyly that the Government were,

“considering a number of options”

to address the situation. Three months after the relevant debate in Committee, and all of six days before the first day on Report, the Government unveiled their proposal to create an entirely new service, recall adjudication, which is the subject of the Government’s amendments in this group and of my further amendment. The Government’s proposals are based on the judgment of the Supreme Court in the Whiston case, which the Government interpret as giving a green light in terms of compatibility with human rights obligations—assuming that these are not to be abrogated as the Tory Party attempts to fend off the threat from UKIP. Justice, however, the legal organisation, questioned the robustness of that interpretation.

The Minister organised a briefing meeting at short notice and will, of course, describe the proposal in the course of this debate as he speaks to the amendments in his name. In essence, however, the Government propose to allow the Secretary of State to refer determinate sentence recall cases to a recall adjudicator, which

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may, in a somewhat circular fashion, turn out to be the Parole Board. Consultations have apparently been held with the board and the judiciary. The Minister told those of us who attended the meeting that they had apparently approved the change, although, for some reason, there has been no public consultation nor, until now, any parliamentary involvement. Such parliamentary involvement, of course, in terms of this Bill, is at virtually the last gasp.

In his letter of 13 October, the Minister indicated that the department would be working with the Parole Board and other unidentified stakeholders on,

“the drafting of the rule”—

in the singular, strangely—

“the design of adjudicator model and the guidance underpinning this”.

That is all very well, but Parliament is not being consulted, nor will it have any opportunity to exercise any judgment about the proposals. It is simply being expected to sign a blank cheque with the promise that the resources aspect will be the subject of a report to Parliament—eventually—but with no apparent intention to seek parliamentary approval of this or any other aspect of what is, after all, a radical change. This is happening at a time when the Parole Board is in the middle of a triennial review which these proposals will clearly pre-empt.

As the Prison Reform Trust points out, even if it were proposed and acceptable for determinate sentence recall prisoners to be denied an oral hearing, why, at the £60 cost of a paper hearing, is it necessary to create a wholly new and untested structure? How sensible is it, when the whole system is caught up in a maelstrom of change and acute pressures which affect all the statutory players—the Prison Service, NOMS, probation, the police and the courts—to add another ingredient to the mix?

In the event the proposal may prove to be acceptable, but at this stage we have very little information to go on; for example, on the criteria on which the Secretary of State will rely, the qualifications, training and job description of those who will be employed, or, of course, the cost. Given the plethora of as yet unanswered questions, it would clearly be desirable for change of this magnitude to be the subject of a proper parliamentary process before what may, it is to be hoped, be a positive change. It is equally desirable, if not more so, to review the outcome of this untested change and secure parliamentary approval after a period in which its efficacy can be judged—hence the second amendment in my name, which is a sunset clause, as opposed to the original sunrise clause in Amendment 1.

I submit that it is not unreasonable to ask the Government to bring forward a report on the workings of this new arrangement, with details of full costs and the like, and then after a modest period to seek approval for its continuation. This habit of last-minute amendments, one with which we are becoming too familiar, not merely from this department but from others, impedes the proper functioning of parliamentary scrutiny and of your Lordships’ House in particular. The Minister is not personally responsible for that, but his political master is, and it is time that the Lord Chancellor and Secretary of State bore in mind the role of this House

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and of Parliament as a whole in considering matters of great public moment such as those that affect the Prison Service, those who work in the Prison Service and, of course, those in their custody. I beg to move.

4.15 pm

Lord Woolf (CB): My Lords, I disclose that I am the chairman of the Prison Reform Trust, which, as the noble Lord, Lord Beecham, has already pointed out, has circulated a paper that expresses concerns which he has adopted, very admirably, in the submissions he has just made to the House. I urge the Minister to think about those submissions very carefully. Whereas I, of all people, would like to think that I am a supporter of any procedure that cuts the costs of the administration of justice, at this stage the matter has not been detailed enough. Perhaps it would be better to find another instrument to which this very late amendment can be attached, but some such machinery to deal with this is urgently required.

The Minister of State, Ministry of Justice (Lord Faulks) (Con): My Lords, I thank the noble Lord, Lord Beecham, and the noble and learned Lord, Lord Woolf, for their contributions to this short debate. I will take this opportunity to explain to the House in a little more detail the context and reasons for the Government’s amendment, which will enable the Secretary of State to appoint “recall adjudicators”, before going on to explain the nature and purpose of those amendments. I will then turn to the amendment the noble Lords have tabled to Clause 3, and to their Amendment 9A, which seeks to insert a new clause.

When your Lordships last debated the provisions in Part 1, concern was raised about the burden that some of the provisions would place upon the Parole Board, particularly given the increased demand for oral hearings following the Supreme Court judgment in the case of Osborn, Booth and Reilly. At the time I explained what the Parole Board and the Ministry of Justice were doing in response to that demand, and indicated that we were considering whether there may be other options to alleviate the pressure on the board.

I hope that these government amendments demonstrate to the House our commitment to supporting the board and will serve to alleviate some of the concerns that have been expressed. They will allow the board to focus its resources where they are most needed. It is only recently that it has become possible to contemplate amending the legislation in the way that we now propose, and I hope that this answers the criticisms made by the noble Lord, Lord Beecham, of the amendment and its lateness.

In July, a Supreme Court judgment was handed down in the case of Whiston v the Secretary of State for Justice. This dealt with the question of whether an offender who is subject to home detention curfew and is recalled to prison for breaching his licence conditions is entitled, under Article 5.4 of the European Convention on Human Rights, to have his detention reviewed by a court-like body—the Parole Board. The Supreme Court found that there was no such entitlement and that for all determinate sentenced offenders further detention during the licence period was satisfied, in Article 5

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terms, by the original sentence imposed by the court. Therefore this does not depend on any party-political interpretation of the European Convention but on the decision of the Supreme Court.

Last week I chaired an all-party meeting in which we discussed these changes—which, of course, I accept have come late in the day. I hope that I was able to explain during the meeting to those noble Lords present the reason behind this change and why it was late, in order to give Peers an opportunity to understand what we were doing. The Whiston case is a significant change to previously established domestic case law on which the current provisions in the Criminal Justice Act 2003 are founded. Under the 2003 Act, determinate sentence recalled prisoners are entitled to have their cases referred to the Parole Board. This was to satisfy their Article 5 rights to a court-like review of their detention.

But the Whiston judgment means that the review of determinate sentence recall cases no longer has to be conducted by the board because Article 5 is not engaged. We are therefore seizing this opportunity to build into the statutory framework a new, flexible way of working which will provide for this category of case to be diverted away from the board. That is what these amendments are designed to do.

Amendment 9 inserts new Section 239A into the Criminal Justice Act 2003. This will create a power that enables the Secretary of State to appoint “recall adjudicators”. It is these adjudicators who will take on the functions relating to the release of recalled determinate sentence prisoners currently performed by the Parole Board. The Secretary of State will be able to appoint the Parole Board as a recall adjudicator to allow the board to continue to review these cases if necessary, but also to appoint other persons.

Much of the detail of how the recall adjudicator model will operate—including exactly who will be appointed and the nature of those appointments—will be the subject of further detailed development. As I indicated during the meeting, and do again in the House, the appointments will be filled by those with significant criminal justice experience. I apologise if at this stage I cannot provide noble Lords with the level of detail for which they might normally wish. I acknowledge, of course, that the as yet unknown detail about the precise operation, impact and cost of the new model is what lies behind the noble Lord’s amendment to insert a sunset or sunrise clause into these provisions. I will return to that when I respond to the amendments.

First, I shall explain to your Lordships the main features of the provisions as well as the safeguards that will make sure the system for reviewing the detention of recalled prisoners will remain fair, robust and efficient and—importantly—that risk assessment and public protection will continue to be of paramount importance in any release discussion. While the review of detention need not be undertaken independently by a court-like body or process, it will have to satisfy the common-law requirements of impartiality and procedural fairness in line with the Osborn judgment. This means that oral hearings will still be required if they are necessary in the interests of fairness to the prisoner in the

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particular case and it will be necessary to interpret that requirement consistent with the Osborn decision.

Your Lordships have already agreed that Clause 8 should stand part of the Bill. This introduces a new test for the release of determinate sentence recalled prisoners. The test requires consideration to be given to whether the offender needs to be detained for the protection of the public but also whether the offender would be highly likely to breach their licence again if released. Recall adjudicators will be required to apply that test—that is, they will be under a statutory duty to consider both public protection and the risk of further non-compliance in reaching their release decisions.

A consistent and robust process will be followed by recall adjudicators. To ensure that this is the case, these amendments provide a power for the Secretary of State to issue procedural rules. Of course—this is important—there will be an opportunity for further parliamentary scrutiny, as these rules will be made by statutory instrument, subject to the negative procedure.

The Secretary of State will also have the power to appoint a chief recall adjudicator. The chief recall adjudicator, who must also be appointed as a recall adjudicator, will oversee the activities of these adjudicators and bring coherence and co-ordination to their work. To assist in this role, provision is also made for the chief adjudicator to issue guidance. Recall adjudicators will be required to carry out their functions in accordance with that guidance.

The Secretary of State will be responsible for making decisions on appointments and the termination of appointments, although the chief recall adjudicator will be able to make recommendations to the Secretary of State about the termination of appointments.

The other amendments that we have tabled in this group all flow from and are consequential to the provisions in Amendment 9 to allow for the appointment of recall adjudicators.

I hope that your Lordships will agree that these amendments will not only help to alleviate pressure on the Parole Board but will give us the opportunity to look afresh at an alternative model for reviewing the detention of determinate sentence prisoners when they are recalled to custody. In short, if these cases do not need to be dealt with by the board, we believe that they should not be. The recall adjudicator provisions will give us the flexibility that we need to put such a system in place. This is the package of government amendments that I commend to the House.

Before I sit down, I turn to the amendments tabled by the noble Lords, Lord Beecham and Lord Kennedy. The Government cannot support these amendments. Amendment 1 places a statutory duty on the Secretary of State to consult the Parole Board and to lay a report before Parliament about the resources that the board requires before the provisions in Clause 3 are implemented.

The Government are committed to ensuring that the Parole Board is always adequately resourced to fulfil its important responsibilities. The amendments that I have spoken to, which are designed to alleviate pressure on the board and to free up its resources, underline that commitment. I assure your Lordships

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that any future pressures on the board arising from the implementation of other provisions in the Bill will be discussed with the board so as to ensure that the necessary arrangements and resources are in place. I can confirm to noble Lords that there have been discussions with the Parole Board, the Lord Chief Justice and the senior presiding judge about the appointment of recall adjudicators.

Clause 3 adds a small number of additional terrorist-related offences to Schedule 15B to the 2003 Act, and the impact of this on the board will be minimal. We do not believe that a duty to consult the board or to lay a report before Parliament is appropriate or necessary. With respect, and as I said in Committee, such a duty would not be a practicable approach to these provisions. Changes to the workload of an arm’s-length body are commonplace. There are governance structures in place to ensure that new pressures on the Parole Board are taken account of. As noble Lords will be aware, the Ministry of Justice is accountable to Parliament for the discharge of its responsibilities. Putting such an obligation on the face of the legislation would, I suggest, be an undue burden on Parliament.

That brings me to the other amendment tabled by the noble Lords, which would insert a sunset clause into the recall adjudicator provisions, suspending them two years after the date of commencement. Prior to this, within 18 months of commencement the Secretary of State would be required to lay before Parliament a report on the impact of these provisions. Having done so, the Secretary of State would be able to make regulations for the continuation of the provisions—those regulations to be made by statutory instrument and subject to affirmative resolution of both Houses. In effect, Parliament would have to review the impact and agree to the continuation of the provisions to avoid their suspension after two years.

I understand the concern of noble Lords that the introduction of recall adjudicators is a new and, as yet, untested concept. It is critical that we get this right, and I appreciate the recommendation by the noble Lords for greater scrutiny by this House and the other place. However, I do not believe that it would be either appropriate or helpful to have a sunset provision of this sort. I can assure your Lordships that we will continue to work closely with the board and others on the development of the recall adjudicator model, making sure that it delivers the efficiencies and benefits that we expect while we maintain, as we are obliged to do, a robust and fair process for recalled prisoners.

4.30 pm

I would be happy to keep your Lordships closely informed as the model is developed and to share further details of how it will work, including assessments of the resources and costs involved once those are available. Once we have developed and implemented this new flexible and more efficient model, its impact and operation will be closely monitored and reviewed; I will make a commitment to Parliament to provide it with updates and reports.

The provisions that the Government have brought forward are designed for maximum flexibility in the way in which the new model is set up and operated, subject, of course, to safeguards. However, the flexibility

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means that the operation of the model can be easily adjusted and refined to make sure that it is delivering the best possible approach.

The noble Lord, Lord Beecham, asked about the number of oral hearings per year and, indeed, per month. Before the Osborn-Reilly decision, the board conducted an average of 435 oral hearings each month; that is around 5,000 a year. It is now, on average, conducting 528 oral hearings a month; that is over 6,000 a year. So there has been an overall increase in oral hearings conducted by the board, but within this the board is dealing with a greater proportion of determinate sentence oral hearings.

The noble Lord asked about the cost. The Parole Board has a total budget allocation of £13.8 million for 2014-15; that is an increase of £3 million on the board’s resource allocation of £10.8 million—although, following the Osborn case, there was an additional in-year funding provided of £1.2 million. However, we do not have a breakdown of how much of the board’s budget is spent specifically on determinate recall cases. They make up about half of the board’s total caseload, if all paper and oral hearings are included.

Therefore, I respectfully suggest that a sunset clause is both unnecessary and inappropriate. It would create uncertainty about the future of the scheme, undermining most or all of the investment and commitment that will be vital to making the new model as effective as possible. Such a clause might reduce the attraction of high-calibre, well qualified and suitable applicants to the position of recall adjudicator if they believed the scheme could be scrapped less than two years after it had been introduced. As I said at the Peers meeting, anybody who is appointed as a recall adjudicator will be given rigorous training to enable them to perform their tasks; it is not a question that they will be appointed tomorrow and begin sitting the day after.

The same uncertainty would make it difficult for the Parole Board to plan for its future workload and to develop efficient operating models if it does not know whether determinate recall cases will continue to be dealt with by recall adjudicators. The Osborn case created an additional demand for work to be performed by the Parole Board. The Whiston case has given an opportunity for the Parole Board to be relieved of some of the workload and for the setting up of a recall adjudicator system.

This is an appropriate legislative vehicle to be considered by Parliament, dealing, as it does, with the Parole Board. Ideally, the matter would have gone through all parliamentary stages but the decision came at a stage when it was not possible simply to act immediately. The matter needed to be considered carefully, and it has been considered carefully. It will be subject in due course, as I said, to parliamentary scrutiny.

This is a real opportunity to improve the system, and I trust that the assurances that I have given about the Government’s continued commitment to supporting and working with the Parole Board and the many different challenges they face, and to keeping your Lordships informed of the future details and impact of the new recall adjudicator model, will persuade the noble Lords, whose concern is understandable, to withdraw their amendments.

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Lord Lloyd of Berwick (CB): My Lords, I do not know whether the Minister’s amendment has been called. I rise just to say that I certainly support the Government’s view, subject to the amendment proposed by the noble Lord, Lord Beecham. Anything that we can do to relieve the burden on the Parole Board is worth doing. I confirm, incidentally, that the Minister was quite right to say that this would not have been possible until the recent decision of the Supreme Court at the end of July. To that extent, I certainly support the Government.

I hope that I may be permitted to add one comment. We shall shortly be coming to Amendment 39 in my name, which would do far more to relieve the burden on the Parole Board than this proposal could ever do. Furthermore, it could be done without any cost at all, it could be done at once and it has been calculated that it would save the Government some £25 million a year. I hope that those who are interested in relieving the burden on the Parole Board will stay behind and take part on that amendment when it is called.

Lord Faulks: My Lords, we have had something of a trailer from the noble and learned Lord, Lord Lloyd, and I do not propose to respond in detail at this stage. For the sake of clarity, I might say that these amendments are about determinate sentence prisoners as opposed to indeterminate sentence prisoners, into which category IPP prisoners fall.

Lord Ponsonby of Shulbrede (Lab): My Lords, I want to make one very small point about the Government’s proposals, which is mainly to do with the name “recall adjudicator”. I understand that when a district judge goes to prison and hears cases and then gives an additional period in custody to prisoners who offended while in custody they are referred to as adjudicators. We will have adjudicators turning up at the prison gates, plus recall adjudicators. I wonder whether that is a sensible way to proceed. I raise that as a small point.

Lord Beecham: My Lords, I am grateful to the Minister for his typically clear exposition of the Government’s position—or some of the Government’s position. I thought there were some omissions in how he put matters. He adopted the Candide style of defending the Government, where everything is the best of all possible judicial worlds, but that might be a slightly flawed approach in the circumstances. He did not, for example, deal with the point of the Government’s own estimate of 1,000 extra prison places being required as a result of the changes in category. That was before the Osborn case, which will clearly increase the load further. It may be that the board’s original estimates were on the high side, but there can be no gainsaying the fact that the board would be required to conduct a great many more oral hearings than at present.

There may well be merit in the Government’s proposals for recall adjudicators, but I do not know why the Minister should be so hesitant about reviewing the position in a couple of years. If, indeed, he is confident that the system will work, there would be no problem. If, on the other hand, the system presents problems, it is as well to deal with them before too long a period of

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time passes. I should have thought that the sunset position in respect of the new organisation would be worth considering. The problem that the Government and the Parole Board face is, of course, the huge number of matters to be dealt with. The noble and learned Lord, Lord Lloyd of Berwick, will hopefully be making his contribution to reducing those numbers, shortly, perhaps. We will see what happens.

At the moment, what we seem to end up with is a two-tier system and it is not quite clear to me how the two organisations will be managed. The Parole Board exists as a board. Will the adjudicators, for example, be directly a board or will there be a separate board for that? All of this is up in the air. It is, frankly, not good enough for the Government to say that they have to rush this legislation through because of the Whiston case. That is not the case at all. They could have taken the time to consult, not only with those within the system but with those outside it, and not simply—though necessarily—with the House of Commons and your Lordships’ House, but with other interested parties. None has been given an opportunity to be consulted on a major change of this kind. I do not blame the Minister, but it is regrettable that the Government have acted in this rather typical way under the aegis of the present Lord Chancellor.

I will not divide the House on this matter. We hope that the system works. We would like the Government to consult widely, even now, on how the matters are to be taken forward, and to keep the matter under review. It may be that, for example, the Justice Select Committee will want to look at the operation of the new system after a period. However, that does not excuse the Government for bringing legislation to us at short notice, in a matter as important as this, without allowing for a proper examination. Having said that, I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Schedule 1: Sentence and Parole Board release for offenders of particular concern

Amendment 2

Moved by Lord Ashton of Hyde

2: Schedule 1, page 82, line 31, leave out from “Act” to end of line 32

Lord Ashton of Hyde (Con): My Lords, Amendments 2, 3 and 101 make minor changes to correct an inconsistency in the current legislation relating to driving bans imposed on those who are sentenced to, or are serving, custodial terms.

The Coroners and Justice Act 2009 created an as yet unimplemented provision that requires a court, when sentencing an offender to custody and banning the offender from driving, to take account of the time the offender will spend in custody when setting the length of the driving ban. This was a widely welcomed provision and was designed to avoid a driving ban expiring, or being significantly diminished, during the period the offender is in custody. It therefore requires the court to consider the impact of the time the

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offender will spend in custody and extend the driving ban by an appropriate amount. The issue that this proposed new clause and amendments address is caused by subsequent legislation—which applies only in England and Wales—that changed the process by which sentences are calculated and expressed by the court.

In short, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 took away from the courts the requirement to calculate, and deduct from the sentence, time spent on remand. This function is now carried out by the National Offender Management Service, which is best placed to calculate periods spent on remand. This change in process is, however, inconsistent with the provision introduced by the Coroners and Justice Act 2009 that required the court, in setting the appropriate driving ban, to take account of the sentence length after the remand time credit has been deducted.

To allow the court to impose the extended driving ban at the same time as it imposes the custodial term, this proposed new clause, and consequential amendments to Schedule 1, remove the requirement that the court consider the sentence length after the remand time is deducted. These amendments are therefore a small change to allow the court to impose a custodial term and a suitably extended driving ban at the same time. These amendments will, in due course, allow work to proceed to commence the provisions in the 2009 Act across the country, as soon as it is practical to do so.

4.45 pm

Amendments 102, 112 and 182 insert new clauses and a schedule to the Bill which will allow the UK to give effect to a proposed new bilateral treaty between the UK and the Republic of Ireland permitting mutual recognition of driving disqualifications between the two states. The mutual recognition of driving disqualifications within the EU is currently permitted under the EU Convention on Driving Disqualifications, to which only the UK and the Republic of Ireland are signatories.

As the House is aware, on 1 December 2014, more than 130 measures agreed before the Lisbon treaty which affect the administration of justice and the fight against crime in this country will come under the jurisdiction of the European Court of Justice. The UK alone had the right to decide whether it wished to accept ECJ jurisdiction and Commission infraction powers for these instruments. We chose not to and exercised the opt-out in July last year. This will take effect on 1 December.

We have subsequently reached an “in principle” agreement with the Commission on a package of 35 measures to rejoin, although discussions with the Council continue. We set all this out in a Statement to the House in July. The convention is one of the provisions that we are not rejoining and, as such, mutual recognition of driving disqualifications with the Republic of Ireland will cease to be applied from 1 December 2014 until another mechanism is in place.

These amendments will allow the United Kingdom to enter into a proposed bilateral treaty with the Republic of Ireland on similar terms to those under the convention. However, the provisions will also improve

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the current situation by closing the loophole which allows those falsely claiming residence in the state of offence to avoid having their disqualification recognised in their home state. Currently, an Irish driver disqualified from driving while in Great Britain is able dishonestly to claim residence there and avoid the UK notifying Ireland that the driver has been disqualified. The same situation exists for UK drivers disqualified in the Republic of Ireland. These amendments will ensure this is no longer the case.

We are also updating the list of Northern Irish offences which are mutually recognised with the Republic of Ireland to bring them into line with those that Great Britain mutually recognises with the Republic of Ireland. The amendments to the Crime (International Co-operation) Act 2003 give effect to the move from the EU convention to the proposed bilateral treaty.

Since implementation in 2010, mutual recognition of driving disqualifications between the United Kingdom and the Republic of Ireland has worked well and both this Government and the Republic of Ireland are keen to ensure that these arrangements continue. In order for a similar system to be introduced once the convention has ceased to apply in the UK, these amendments are necessary. I beg to move.

Lord Beecham: My Lords, I welcome the noble Lord, Lord Ashton of Hyde—more Jekyll than Hyde, I would have thought—to the Dispatch Box on what I think is his first occasion and congratulate him on the way in which he has presented the amendments. I look forward to working with him until he starts speaking from this Dispatch Box next May.

There is nothing much more to be said because, on these amendments, there is no great concern on the part of the Opposition or anybody else. Nevertheless, I am sure that the House will join me in congratulating the noble Lord and echoing my anticipation of listening to many more contributions from him on this Bill. I dare say that the noble Lord, Lord Faulks, would welcome some help from him during the next few days, and I am sure that he will get that.

Amendment 2 agreed.

Amendments 3 to 5

Moved by Lord Faulks

3: Schedule 1, page 83, line 11, leave out from “Act” to end of line 12

4: Schedule 1, page 83, line 30, leave out sub-paragraph (3) and insert—

“( ) In subsection (5A) (inserted by section 14 of this Act)—

(a) for “to a prisoner” substitute “to—

(a) a prisoner”, and

(b) at the end insert “, or

(b) a prisoner serving a sentence imposed under section 236A.””

5: Schedule 1, page 84, line 8, leave out sub-paragraph (3)

Amendments 3 to 5 agreed.

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Clause 7: Electronic monitoring following release on licence etc

Amendment 6

Moved by Lord Marks of Henley-on-Thames

6: Clause 7, page 6, line 33, at end insert—

“(c) include provision for the court to decline to make an electronic monitoring condition in any case where the court considers that it would be unjust, unnecessary or impractical to do so.”

Lord Marks of Henley-on-Thames (LD): My Lords, Amendment 6 is an extremely modest amendment. Your Lordships will appreciate that Clause 7(3) permits the Secretary of State to make electronic monitoring conditions compulsory. I spoke on this issue in Committee, arguing that the imposition of an electronic monitoring condition should remain a matter for the court. I argued that the power to impose such a condition on a prisoner’s release on licence was, indeed, a desirable and sensible power, and that such a condition should be imposed where appropriate. However, I also argued that there may be circumstances in which it would be impractical or unnecessary to impose such a condition, for example where an offender was disabled or was to be hospitalised upon release.

In response to my amendment, my noble friend Lord Ahmad said that he was aware of the concerns that physical or mental health issues or possible practical problems might make compulsory electronic monitoring conditions unsuitable. My noble friend also gave, as an example of impracticality, a case where arrangements could not be made for recharging the battery in the tag—he was right to do so and there may be many other examples of impracticality. However, my noble friend contended that there was flexibility in the order-making power under the subsection that would enable these cases to be taken into account. I am concerned about that. My noble friend said that the Secretary of State would be able to,

“provide for cases in which the compulsory condition should not apply”.—[

Official Report

, 14/7/14; col. 402.]

I regret that I do not read the clause in that way. While there would, under subsection (3)(3)(b), be power to make provision in relation to persons selected on the basis of criteria specified in the order or on a sampling basis, that is not the same as enabling cases to be dealt with on a case-by-case basis.

The amendment would, quite simply, enable the Secretary of State to incorporate into the order a small element of judicial discretion, whereby, in a given case, a court could decline to make an electronic monitoring condition if it considered it would be unjust, unnecessary or impractical to do so. It would be for the Secretary of State to decide whether to incorporate such provision as I suggest in the order he makes. For that reason, I reiterate that my amendment is modest and limited. It is intended to be helpful. I beg to move.

Lord Ponsonby of Shulbrede: My Lords, I want to speak in favour of the amendment of the noble Lord, Lord Marks, but to slightly widen the point that he

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made. It is my understanding that if one gives a suspended sentence when sentencing and includes, as a part of that, a curfew, then the court is obliged to provide that the curfew is tagged. Very often that is appropriate, but not always. I have certainly dealt with cases where it was totally unnecessary to tag the offenders concerned and it just added to the cost of the whole sentence. There should be judicial discretion when giving tagged curfews in suspended sentences.

Lord Beecham: My Lords, the Bill extends electric monitoring, a procedure which thus far has proved problematic and extremely expensive, when you think of the problems with G4S and I think Serco in the contracts that they had. It extends the principle into new territory—namely, that of prisoners on licence. The policy in that respect has been criticised by the Chief Inspector of Prisons on the grounds that there is little evidence of absconding or committing further offences while prisoners are on licence. It would be interesting to hear the Minister’s comments on that. In passing, I hope that he is in a position to deny current rumours that the highly respected chief inspector is unlikely to be reappointed. He has a deserved reputation for the job that he has been carrying out in difficult circumstances for the last few years.

The impact assessment in support of this provision is somewhat feeble. It states:

“Though benefits likely to arise from the increased use of ELM have been identified, we are not able to quantify these benefits at this stage, as ELM is not yet in widespread use in England and Wales. As such, we are unable to calculate impact”.

In other words, this is an impact assessment with no impact whatever. As the following further statement confirms, the number of additional prison places cannot be accurately estimated. Let us reflect on the terrible overcrowding in our prisons now, with a shocking rise in the number of suicides, as we read at the weekend. What is the Government’s estimate of the likely impact of the implication of this new technology, in terms of both cost and of increasing the prison population?

The way in which the Government intend to progress the matter is, as usual, equally unsatisfactory, with the Secretary of State empowered to impose a code of practice without parliamentary scrutiny or approval—hence Amendment 8, which would require such parliamentary approval for the code of practice that the Government envisage. Perhaps the Minister could tell us what is happening about the code. In Committee, the then Minister, the noble Lord, Lord Ahmad, who has escaped or is on licence to another department, said that a revised code would be issued to promote transparency in relation to outsourced services. What is happening about this? What consultations have taken place, and with whom? Will there be reports on the outcome of those consultations?

Amendment 7 would make contractors subject to the provisions of the Freedom of Information Act in the same way as public authorities. It seems absurd that, in the world of the Ministry of Justice alone, Her Majesty’s prisons are subject to FOI requirements while private prisons are not. Given that we are talking

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about encroachments on the liberty of the individual—and they may well be justified in many cases—it is surely necessary to extend the protection of the FOI regime to this area. I should make it clear that we are not against electronic monitoring, as it clearly has a place, but it must be technically effective and cost effective, especially in the light of the previous experience, with the contracts that went so badly awry and led to large sums of money having to be reclaimed from the contractors, and applied sensibly. We have very little to go on at the moment in terms of how the new scheme would work.

Lord Faulks: My Lords, I am grateful to all noble Lords who have taken part in this debate. Perhaps I should begin by suggesting that Amendment 6 is, perhaps, not as well conceived as it might be, because it would provide for the court to decline to impose an electronic monitoring condition in certain cases. However, the court has no role in setting conditions for offenders released from custody on to licence after serving the required part of their sentence. This is a matter for the Secretary of State, through the governor. The parole board also makes recommendations as to licence conditions when the offender is subject to discretionary release.

In the case of an electronic monitoring condition imposed by virtue of an order made under proposed new Section 62A of the Criminal Justice and Court Services Act 2000, as inserted by Clause 7, this is solely a matter for the Secretary of State, through the governor. The amendment would actually have no effect. However, I understand the concern behind the amendment, which is that offenders should not be made subject to compulsory electronic monitoring when this is unsuitable for some reason, or when it is impractical. We recognise that there will be offenders who are unsuitable for compulsory electronic monitoring. For example, this may be because of physical or mental health issues, or because of a practical problem, such as not being able to make arrangements for the offender to recharge the battery in the tag.

These issues are, we suggest, already dealt with by the clause. The order-making power specifies that the Secretary of State may provide for cases in which the compulsory condition should not apply. I appreciate that this may not be immediately obvious from a reading of the clause, but the Explanatory Notes—although I take the comments of the noble Lord, Lord Beecham, about their inadequacy in some respects, and I shall come on to deal with that—are helpful in this regard, as indeed was my noble friend Lord Ahmad when he spoke on the matter in Committee.

5 pm

Perhaps this is the point at which to deal with the question of impact assessment. I think that it is generally accepted that electronic monitoring can have a useful role. It identifies the whereabouts of a potential offender and can act as a deterrent or assist in detection were offences to be committed. Thus there is no doubt about the merits of electronic monitoring in appropriate cases. It is difficult to assess its effectiveness in terms of reducing the prison population. It is hoped that if it acts as a deterrent it may in fact reduce the

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prison population, but anything by way of an impact assessment would inevitably be something of a guess and would no doubt be criticised on that basis.

Subsection (3) introduces new Section 62A into the Criminal Justice and Court Services Act 2000. That new section allows for the Secretary of State to make an order requiring electronic monitoring in particular cases described in the order. However, it also allows the Secretary of State to make provision by reference to whether a person specified in the order is satisfied of a matter. So, it would be possible for the order to exclude offenders on an individual basis if the person specified in the order is satisfied that the offender has a physical or mental health problem which renders the offender unsuitable for the licence condition, or in cases in which a person is satisfied that it is impossible to make arrangements for the offender to recharge the battery in the tag. Relying on Section 62A(2)(b) and Section 62A(3)(c), the order could provide that an electronic monitoring condition must be imposed otherwise than in such cases.

I hope that this provides the necessary reassurance that the clause makes provision for the concerns which lie behind the amendment, so that compulsory electronic monitoring will not be used inappropriately. I am grateful to those who put down the amendments for the opportunity to elaborate and, I hope, to clarify that.

Amendment 7 would require outsourced electronic monitoring services providers to make information available as if they were subject to the Freedom of Information Act 2000. This would be achieved by a requirement in the code of practice to be issued under a new Section 62B of the Criminal Justice and Court Services Act 2000, to be introduced through Clause 6 of the Bill. Similarly, Amendment 120 would extend the Freedom of Information Act 2000 to providers who have entered into a contract with the Secretary of State to provide or run secure colleges under Schedule 6 to the Bill. It would do so directly, rather than via a code of practice. In summary, both amendments would require private providers to make information available both in response to FoI requests and proactively through publication schemes.

As my noble friend Lord Ahmad of Wimbledon made clear in Committee, we recognise the concerns that exist about the status of private sector contractors under the Freedom of Information Act. Pausing there, the noble Lord, Lord Beecham, made reference to the difficulties—to put it mildly—with G4S and Serco. In effect, he posed the question as to what we have done to guard against a repeat of the overcharging scandal. My answer is that lessons have been learnt, the new contracts will be subject to robust contract management from the outset and under the new arrangements, the Ministry of Justice will have far greater oversight over costs and charging than previously, with direct access to supplier systems to increase transparency.

We recognise the concerns that exist. As noble Lords may be aware, this issue was considered during post-legislative scrutiny of the Freedom of Information Act 2000 by the Justice Select Committee in 2012. We are already taking steps to address these concerns in ways consistent with that committee’s recommendations.

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Rather than favour the formal extension of the Freedom of Information Act, the committee recommended that contractual provisions be used to ensure openness. The committee was of the view that,

“contracts provide a more practical basis for applying FOI to outsourced services than partial designation of commercial companies under section 5 of the Act”.

It also believed that,

“the use of contractual terms to protect the right to access information is currently working relatively well”.

We intend to issue an expanded code of practice under Section 45 of the Freedom of Information Act to promote transparency about outsourced public services in response to FoI requests. This approach represents an appropriate balance between transparency and minimising burdens on business.

Lord Beecham:Could the Minister indicate whether there will be consultation on those proposals, and with whom?

Lord Faulks: I hope to come to that in a moment.

As was explained in Committee, the code will not only encourage the use and enforcement of contractual provisions to ensure that current FoI obligations about information held on a contracting authority’s behalf are met but will promote the voluntary provision of other information where this would help to provide a more meaningful response to requests. The success of this approach will, as was also made clear in Committee, be monitored by both the Government and the Information Commissioner. If it does not achieve sufficient transparency, we will consider what other steps, including the possible formal extension of FoI to contractors, are required. Once the code of practice is issued, it is important that we give it the opportunity to prove its worth before deciding whether further measures are necessary. I therefore invite noble Lords not to press Amendments 7 and 120.

We also debated Amendment 8 in Committee, and I sought then to explain why it is not appropriate. We agree that the code of practice is a necessary and important document. It is intended to make sure that the necessary safeguards are in place for the proper management of the data gathered by electronic monitoring conditions. It will, of course, comply with the Data Protection Act. However, it is for operational purposes and will not introduce any new legal requirements. That is why we do not propose to agree its content through parliamentary procedure.

I should remind the House that it passed the provisions in the Crime and Courts Act 2013 that inserted new Section 215A into the Criminal Justice Act 2003. This also provides for a code of practice relating to the processing of data from electronic monitoring and is linked to provisions allowing location monitoring of offenders as a community requirement. This provision was approved by Parliament with no requirement for the code to be subject to affirmative secondary legislation. The amendment would, therefore, be inconsistent with the provisions already approved for a code of practice.

I should perhaps add a little more about the scrutiny that has been undertaken in relation to electronic monitoring and the approach to contract management that has informed the new contracts. Within the MoJ,

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and specific to electronic monitoring, this has meant the new contracts being drafted and let with key elements such as open-book accounting being critical. Accountability for contract management will be much clearer, with contract owners called regularly to account for their detailed knowledge of the contracts and their operational assurance that services are properly assured and audited.

On the amendment, I can only reiterate the assurances that I have given previously. We have committed to consultation on the code of practice, which will include consulting the Information Commissioner. I also confirm that the code of practice will be published. I do not have, at the moment, a specific date for publication of the code of practice but we hope to issue guidance to the standard contract clause by the end of 2014. If I receive further information on the probable date for the code of practice, I of course undertake to inform the House, and certainly the noble Lord, Lord Beecham.

I hope that I have satisfied the House on these issues of concern. Electronic monitoring would naturally be a matter of concern, but it is also a valuable tool in the detection and prevention of crime. I therefore ask the noble Lord to withdraw his amendment.

Lord Marks of Henley-on-Thames:My Lords, in relation to Amendment 6, I accept my noble friend’s point that it is for the Secretary of State rather than the court to deal with electronic monitoring conditions. He is right about that. He was also right to recognise the concerns as to whether such conditions could be imposed inappropriately or where unnecessary, unjust or impractical.

I understand him to have given an assurance that he understands that the power to make an order which makes,

“provision by reference to whether a person specified in the order is satisfied of a matter”,

enables the order to ensure that the person is satisfied that it would not be impractical to impose such an electronic monitoring condition. On that basis, I join in his observation that it is not entirely clear, even though it may be clear from the Explanatory Notes, which of course form no part of the statute. Those who are left with the difficult task of unravelling this arcane piece of drafting will no doubt be able to read the report of that assurance. On that basis, I beg leave to withdraw this amendment.

Amendment 6 withdrawn.

Amendments 7 and 8 not moved.

Amendment 9

Moved by Lord Faulks

9: Before Clause 8, insert the following new Clause—

“Recall adjudicators

(1) After section 239 of the Criminal Justice Act 2003 insert—

“239A Recall adjudicators

(1) In this Chapter, “recall adjudicator” means a person for the time being appointed as such by the Secretary of State.

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(2) The Secretary of State may appoint the Board or another person.

(3) The Secretary of State may, in particular, appoint a person—

(a) to carry out all or only some of the functions of a recall adjudicator;

(b) to carry out such functions only in relation to a specified area;

(c) to carry out such functions only in relation to a specified description of case.

(4) The Secretary of State may make rules with respect to the proceedings of recall adjudicators.

(5) The Secretary of State may appoint a recall adjudicator (referred to in this section as “the chief recall adjudicator”) to oversee the activities of recall adjudicators.

(6) The chief recall adjudicator may, in particular—

(a) issue guidance with respect to the carrying out of the functions of recall adjudicators, and

(b) make recommendations to the Secretary of State about the termination of appointments under this section.

(7) Before issuing guidance the chief recall adjudicator must consult the recall adjudicators and the Secretary of State.

(8) A recall adjudicator must carry out his or her functions in accordance with guidance issued from time to time by the chief recall adjudicator.

(9) The Secretary of State may make payments to a recall adjudicator.

(10) A person is not to be regarded as acting on behalf of the Crown, or as enjoying any status, immunity or privilege of the Crown, by virtue of an appointment under this section.”

(2) The amendments of Chapter 6 of Part 12 of the Criminal Justice Act 2003 (release etc of fixed-term prisoners) in section 8 of this Act confer functions on recall adjudicators in connection with the release of fixed-term prisoners following their recall.

(3) Schedule (Recall adjudicators: further provision) to this Act contains further provision relating to recall adjudicators.”

Amendment 9 agreed.

Amendment 9A not moved.

Clause 8: Test for release after recall: determinate sentences

Amendments 10 to 37

Moved by Lord Faulks

10: Clause 8, page 7, line 41, after “(4)” insert “—

(i) ”

11: Clause 8, page 7, line 42, at end insert “and

(ii) for “the Board” substitute “a recall adjudicator”,”

12: Clause 8, page 8, line 2, leave out “Board” and insert “recall adjudicator”

13: Clause 8, page 8, line 10, leave out “Board” and insert “recall adjudicator”

14: Clause 8, page 8, line 11, leave out “the Board is”

15: Clause 8, page 8, line 14, leave out “Board” and insert “recall adjudicator”

16: Clause 8, page 8, line 16, leave out “Board” and insert “recall adjudicator”

17: Clause 8, page 8, line 18, leave out “Board” and insert “recall adjudicator”

18: Clause 8, page 8, line 33, at end insert—

“( ) in subsection (4), for “the Board” substitute “a recall adjudicator”,”

19: Clause 8, page 8, line 35, leave out “Board” and insert “recall adjudicator”

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20: Clause 8, page 8, line 43, leave out “Board” and insert “recall adjudicator”

21: Clause 8, page 8, line 44, leave out “the Board is”

22: Clause 8, page 9, line 1, leave out “Board” and insert “recall adjudicator”

23: Clause 8, page 9, line 3, leave out “Board” and insert “recall adjudicator”

24: Clause 8, page 9, line 5, leave out “Board” and insert “recall adjudicator”

25: Clause 8, page 9, line 13, leave out “the Board” and insert “a recall adjudicator”

26: Clause 8, page 9, line 15, leave out “the Board” and insert “a recall adjudicator”

27: Clause 8, page 9, line 19, leave out “Board” and insert “recall adjudicator”

28: Clause 8, page 9, line 22, leave out “Board” and insert “recall adjudicator”

29: Clause 8, page 9, line 28, after “(2)” insert “—

(i) ”

30: Clause 8, page 9, line 28, at end insert “and

(ii) for “the Board” substitute “a recall adjudicator”,”

31: Clause 8, page 9, line 28, at end insert—

“( ) in subsection (3), for “The Board” substitute “A recall adjudicator”,”

32: Clause 8, page 9, line 29, after “(4)” insert “—

(i) for “Board” substitute “recall adjudicator”, and

(ii) ”

33: Clause 8, page 9, line 36, leave out “Board” and insert “recall adjudicator”

34: Clause 8, page 9, line 37, leave out “the Board is”

35: Clause 8, page 9, line 39, leave out “Board” and insert “recall adjudicator”

36: Clause 8, page 9, line 41, leave out “Board” and insert “recall adjudicator”

37: Clause 8, page 9, line 44, leave out “Board” and insert “recall adjudicator”

Amendments 10 to 37 agreed.

Clause 9: Power to change test for release after recall: determinate sentences

Amendment 38

Moved by Lord Faulks

38: Clause 9, page 10, line 25, leave out “Board” and insert “recall adjudicator”

Amendment 38 agreed.

Clause 10: Initial release and release after recall: life sentences

Amendment 39

Moved by Lord Lloyd of Berwick

39: Clause 10, page 11, line 2, after “(prisoners)” insert—

“(a) after subsection (2) insert—

“(2A) Without prejudice to the powers of the Secretary of State to change the release test under this section, the Parole Board shall direct the release on licence of prisoners serving indeterminate sentences with a tariff of less than 2 years imposed before 2008 when the Criminal Justice Act 2003 was amended.”;”

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Lord Lloyd of Berwick: My Lords, this amendment relates to a group of 650 prisoners serving indeterminate sentences for the protection of the public under Section 225 of the Criminal Justice Act 2003. They are part of a much larger group of over 5,000 prisoners serving indeterminate sentences under that section. However, this amendment does not affect the larger group.

As your Lordships know, the IPP sentence has now been abolished. Mr Blunkett, who introduced the sentence in 2003, has accepted that although the idea was sound the implementation was disastrous—for which, I believe, he has apologised, a rare thing in politics. The problems became apparent very early on. As a result, Section 225 was amended in 2008. The amendment affected in two ways the group of prisoners with whom I am particularly concerned. First, the indeterminate sentence ceased to be available for those with a tariff of less than two years. Secondly, whereas the court was bound to assume under the provisions of the Act that the defendant was dangerous before 2008, that assumption ceased to apply after 2008. It was for the judge thereafter to decide in each case whether or not to impose an indeterminate sentence.

5.15 pm

So far, so good. But there was one great defect in the amending legislation, which I am afraid to say I failed to notice at the time. It made no provision at all for those who had already been given an indeterminate sentence with a tariff of less than two years before the amendment took effect. One therefore had this position: a defendant committing a minor offence—such as arson, wounding, or whatever it might be—before 2008 which merited a determinate sentence of, say, four years, would be given an indeterminate sentence with a tariff of two years, or half the notional determinate sentence. That was the way in which it was intended to work and did work. There was no alternative.

However, exactly the same defendant committing exactly the same offence after 2008 could not be given an indeterminate sentence; it was simply no longer available for him. He will have been given, correctly, a determinate sentence of four years. As a result, he will of course have been released years ago under the ordinary early release provisions entitling him to release at a halfway stage. Meanwhile, the 650 unfortunate defendants committing exactly the same offence before 2008 are still in prison. I suggest that it does not take much imagination to see the sense of injustice that that has created.

When we debated this matter in Committee, the picture was clear enough but the detailed figures were not available. Therefore, on 14 July, I put down a Question for Written Answer. On 1 September, not before time, I was told that the information,

“could be provided only at disproportionate cost”.—[

Official Report

, 26/9/14; col.

WA 464


Happily, the Ministry of Justice had second thoughts and, last week, the figures were provided at last, just in time for this debate. Those figures have now been published. Your Lordships will not have seen those figures so I must ask the House to be patient as I summarise them. I think I can undertake that your Lordships will find them somewhat surprising. Eight

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of these prisoners with whom I am concerned were given tariffs of less than three months. Twenty-two of them were given tariffs of less than six months; 27, tariffs of less than nine months; 64, tariffs of less than 12 months; 88, tariffs of less than 15 months; 114, tariffs of less than 18 months; and 327 of them, tariffs of less than 24 months. That makes 650 in all. The current assessment in relation to 500 of those 650 prisoners is that they present a very low or, at most, a medium risk of reoffending. The question arises as to how that can possibly have been allowed to happen. Those 650 are still in prison six, seven or even eight years after they completed those very short tariffs. How can that be justified?

I shall fast forward to 2012 when IPP sentences were abolished. On that occasion, the Government decided, rightly in my view, that something must be done about the backlog. By Section 128 of LASPO, the Lord Chancellor was given power to amend the release test for these IPP prisoners so that it was no longer necessary for them to satisfy the ordinary release test which applies in the case of life-sentence prisoners. In other words, the test needs no longer to depend on risk. Surely, it must be obvious that the Lord Chancellor was given that power for one purpose only; that is, in order to speed up the release of these IPP prisoners who are still in prison. There could, quite literally, have been no other purpose. Perhaps I may come back yet again to the 650 prisoners. Currently, they are being released at the rate of 120 a year. Therefore, it will be at least five more years before the backlog in their respect is cleared, in addition to the six, seven or eight years by which they have already exceeded their tariff.

This power was given to the Lord Chancellor by a Conservative Government when Ken Clarke was Lord Chancellor. However, the present Lord Chancellor has declined to exercise that power. The question is: why? He has given only two reasons in the correspondence that I have had with him. In February 2013, he said that it would not be right to interfere with the decision of judges who had taken risk management issues into account. That was just plain wrong. The judges who passed these sentences had not taken risk management issues into account. As already explained, they were bound to assume dangerousness until the Act was amended.

The second reason, which was given a year later, was no better. He said:

“It would be inconceivable and indeed irresponsible for the Government to release individuals that the … Parole Board … assess as continuing to pose risks to the public”.

He said that he could not “countenance such a change”. The difficulty with that as a reason is that it totally disregards Section 128 of LASPO. The whole purpose of Section 128 was to enable the Lord Chancellor to change the release test. Was it then irresponsible of Parliament to give him that power? Is it inconceivable that Parliament intended him to use that power? There surely must be some other reason why the Lord Chancellor has declined to exercise the powers which he has been given. But as to that we can only speculate. I hope that the Minister can enlighten us.

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In March, a leader in the Times ended:

“The scandal Mr Grayling should address is that a process set out in law”,

has not been “followed in life”. It must be followed now. I suggest that “scandal” is not too strong a word in this context. The Lord Chancellor had a chance to address that scandal when we debated this amendment in July but he did not take it. The Minister, when he came to reply, gave the same reason—the first reason—that had been given by the Lord Chancellor. He pointed out that the power he had been given was discretionary, which of course is quite right, so it was said that he need give no reason at all, and that was it. I find that totally unsatisfactory.

The question then is: what should we do? As the Lord Chancellor has declined to exercise the discretion that he has been given by Parliament, it seems to me that we in Parliament must now take the matter back into our own hands and exercise the discretion ourselves. That is the sole purpose of the amendment.

Years ago, in a passage often quoted by the noble Lord, Lord Ramsbotham, Winston Churchill said that the one infallible test of any civilised country is the way it treats its prisoners. I suggest that the current Lord Chancellor would do well to keep that advice in mind. Thus any judge would tell you that justice as a concept is indivisible. Victims are of course entitled to justice, and so are members of the public, but so too are prisoners. Indeed, the prison system only really works when sentences are seen to be fair as between one prisoner and another. That is one of the basic principles of all sentencing. Otherwise there will surely be trouble.

Last week I attended a meeting of the Constitution Committee at which the Lord Chancellor gave evidence. He said much about his stewardship role over the judiciary but nothing at all about his duty as Lord Chancellor—indeed, his primary duty under Section 1 of the Constitutional Reform Act 2005—to uphold the rule of law in all its aspects, until he was gently reminded of that matter by the chairman. Nor did he say anything about the role of the Lord Chancellor as custodian of the constitutional values of this country. I found that surprising and very worrying. Fairness, as indeed he must know, lies at the very heart of the rule of law.

The purpose of this amendment is to bring back to some 650 of our prisoners a sense that they too are entitled to a measure of justice and fairness under the rule of law, which the Lord Chancellor is bound to uphold. I beg to move.

Lord Brown of Eaton-under-Heywood (CB): My Lords, in over half a century in the law, inevitably one comes across a number of injustices in individual cases of one sort or another. However, I think I can fairly say that I have never come across an injustice as plain and persistent as this on an institutionalised basis, because that is what this is, and it grows worse with every passing year.

In order to understand how truly shocking it is, it is necessary to understand three basic matters. First, preventive detention, which IPPs essentially amount to—incarcerating people on an indefinite basis, not as

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punishment for what they have done but to guard against the risk that they may cause harm if they are set at liberty—is basically inimical to our sense of fairness. It is true that we accept that discretionary life sentences can be passed in the cases of the most serious and dangerous offenders, but that is really a very far cry from IPPs, with which we are concerned here, which extended to no fewer than 153 specified different crimes. They were, of course, as has been explained, abolished in 2012 once the basic unfairnesses finally came to be recognised.

5.30 pm

The second point is that the seven-year life of IPP sentencing fell into two distinct phases: phase 1—April 2005 when it began until July 2008 when the scheme was amended, so that was just over three years—and phase 2, from the amendment in July 2008 until abolition four years later in 2012. The noble and learned Lord, Lord Lloyd of Berwick, explained the two most critical differences between those phases. First, in phase 1, the tariff term—half of what the determinate sentence would have been, representing the appropriate punishment for the crime—could have been as little as a month, as we have seen from the figures, and was frequently only a very few months, whereas in phase 2 an IPP sentence could only be passed if the tariff term exceeded two years. The second difference was that in phase 2, an IPP sentence was made discretionary, whereas in phase 1 the judge had generally been required to assume dangerousness, so he had no discretion on the matter; he had been bound by statute to pass an indeterminate sentence.

The third matter is that those sentenced even during phase 2, once they served their tariff term, could possibly be said to have had a real grievance because even they were worse off than those who committed equivalent offences after the abolition of the scheme in 2012. Anybody subsequently offending as they had done could not have been sentenced to an indefinite term as they were.

This amendment is not in any way directed to them, but instead addresses an altogether more flagrant injustice. It concerns only those who were sentenced in phase 1 and only those with tariff terms of less than 24 months—650 prisoners, as the noble and learned Lord, Lord Lloyd, has explained—who are infinitely worse off than any of the others, and particularly worse off than those sentenced in phase 2. They are worse off in three particular ways: first, because their tariff terms were less than 24 months, as explained, which could not have applied to phase 2 detainees; secondly, because in their case, the court had had no discretion in the matter, but had been required to assume that they were dangerous and to pass the sentence; thirdly, because by definition their sentence was imposed now more than six years ago, so that they would already would have served two years longer than any determinate sentence would have been, subject, perhaps, in a rare case to an extended sentence. In the great majority of cases, however, they will have been serving years longer even than that.

As I put it in Committee in July, this amendment would cut the Gordian knot with regard to this most unfairly treated cohort of IPP prisoners, and would

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bypass the Secretary of State’s surprising and regrettable refusal to exercise his Section 128 power to adjust the test for the Parole Board to apply. The amendment would at least ensure that this cohort, at long last, would be set free. Of course, some of them may in future commit further offences—of course that is possible. That, however, is the price we pay generally for not allowing preventive detention, and it is the price that we must pay for ending this ever lengthening regime which is now, in their case, one of purely preventive detention. At long last, it would remove this unpleasant stain from our criminal justice system. I join with the noble and learned Lord, Lord Lloyd, in urging the House to pass this amendment and end this major injustice in our law.

Lord Ramsbotham (CB): My Lords, I pay tribute to my noble and leaned friend, Lord Lloyd, for his tireless pursuit of this particular issue, which amounts to nothing less than a stain on our national reputation for observing the rule of law. More than that, as a former Chief Inspector of Prisons, I am most surprised that the Secretary of State, who is faced with enormous financial problems in the management of his prisons, should not be seeking every possible way of getting out of the prisons the people who should not be there. That is an avoidable expense, and I have said this over and over again.

Furthermore, as the Minister knows, the prisons do not have sufficient resources to provide the means by which these people can prove their right to be released to the Parole Board. Only last year, I reported to the House a most tragic case of an IPP prisoner who had already been in prison for more than three years after his tariff and was sent to a prison where he would receive the course that he required in order to satisfy the Parole Board, only to be told that not only did that prison not have the course, but it was not intending to do so for two years; so he committed suicide. He is not the only IPP prisoner to have taken his own life because of his despair of the Government exercising their obligations, which have been so clearly deployed by the noble and learned Lord, and observing this country’s reputation for observation of the rule of law.

Lord Hurd of Westwell (Con): My Lords, this House is quite accustomed to criminal justice legislation and in debates of this kind looks inevitably to those who have genuine experience of the legal profession to take the lead. Every now and then, however, an issue comes up that requires some contribution from people like the noble Lord, Lord Ramsbotham, and myself who, although we are not trained lawyers and have never practised law, nevertheless in the course of our careers have come across, and have been made to come across, cases where injustice appears to have been done. This is turning into such a debate.

It is hard to unpick the excellent demonstration of the facts produced by the noble and learned Lord, Lord Lloyd of Berwick. We are left with those facts, but we have to find a remedy. The noble and learned Lord has set out in his amendment the only remedy that he thinks is to hand: to take back into Parliament, into our own hands, the permission—the discretion—

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which is given in the legislation to the Lord Chancellor, but which he repeatedly refuses to exercise, although the arguments for exercising that discretion have been made over and over again and are very strong indeed.

Therefore, I simply come in to say, as someone who is not a lawyer but who has been forced by his career to take an active interest in the effect of the law on individuals, that I see in this an example—I would say a flagrant one—of injustice being permitted, indeed committed, by those who do not intend it. Nevertheless, the law as proposed would have that effect. I therefore very much support the noble and learned Lord’s amendment and the arguments which have been put in its favour from all sides of the House.

Lord Carlile of Berriew (LD): My Lords, we have heard three very powerful speeches from noble Lords—and noble and learned Lords in two cases—on the Cross Benches, and I anticipate that we are about to hear another one in a moment. We also heard a powerful intervention from a former Home Secretary, who is one of the most admired figures in British politics in the last 40 years. I cannot improve on what they have said, and will not try to do so. All I want to say, speaking as I do from one of the political Benches in this House, is that this is an issue upon which those of us who sit on political Benches are entitled to, and should, exercise our consciences. If we engage our consciences, the extraordinary speech from the noble and learned Lord, Lord Lloyd of Berwick, completely wins the day. I therefore hope that noble friends, as well as those elsewhere in the House, will see that if this matter divides the House, the only course they can take is to support this amendment.

Lord Phillips of Worth Matravers (CB): My Lords, the unhappy cohort of prisoners to which this amendment relates linger in prison years after they have completed terms of imprisonment that reflect their culpability. They linger because of a statutory presumption that they are dangerous, which is discredited, has been repealed, and is surely, in the cases of many of them, unjustified. I find it impossible to envisage any credible reason why the Secretary of State has not exercised the power that he has been given to procure their release. His inertia belies the title of Secretary of State for Justice. This amendment cries out for the support of the House.