“The establishment of a communication team is a first step in this regard”.
It plans to get a programme “by June”, and before that it will establish a communication team. Does the Minister agree that that statement, to which her Government have subscribed, does not give the necessary degree of urgency to a problem which this House took much more seriously at Question Time than the Government seem to have done in their communiqué?
Baroness Stowell of Beeston: I do not agree with the noble Lord’s description of what the Council agreed. However, clearly, I will ensure that the views expressed during Oral Questions today on that matter are relayed back to the Foreign Office. Indeed, my noble friend Lady Anelay answered those questions, so I am sure she will already have done so.
Lord Howell of Guildford (Con): My Lords, that was a commendable Statement. Has my noble friend noticed that a good deal of the General Secretariat conclusion document is taken up with thoughts about an energy union and energy policy at the EU level? Does she agree that it may be time to remind, or ask her colleagues to remind, the European Commission and the secretariat of the Council that energy competence does not lie totally with the European Union but is shared, with the bulk of it lying at the national level? Some things can be done better at EU level, such as interconnectors of gas and electricity to help the eastern European states, which are dependent on Russia. However, does she accept that a great deal can be done by nation states to improve their affordable energy supplies and to help with decarbonisation and reliability without the expensive and misguided policy advice of the Commission? Can she pass that message on?
Baroness Stowell of Beeston: I always pass on the messages my noble friend provides me with. Energy policy is quite an interesting example of where the Prime Minister has been influential in refocusing the European Union’s approach. We have been able to ensure that we have combined energy security, the costs of energy, and climate change in a more sensible way, so that the way in which we try to improve the internal market for energy in Europe makes sense to member states. Certainly, we have been able to reach agreement without any kind of inflexible targets on member states which mean that they are no longer able to decide their own energy mixes; as my noble friend suggests, that is a very important part of our independence.
Lord Liddle (Lab): My Lords, does the noble Baroness agree that the Statement she has just read out exposes the contradiction and confusion at the heart of the Government’s European policy? In the first half, we had many good reasons why we need to stand together with our European partners—to deal with the situation in Iran, to stand up to Russia, to deal with chaos in north Africa and the problem of migration. All those are good reasons for working within Europe. In the second half, however, we had the Government’s policy of standing there with one hand on the exit door. How on earth can Britain lead in Europe if at the same time it is threatening to leave?
Baroness Stowell of Beeston: My Lords, the only person who is confused about European policy is the noble Lord. During our time in Government, we have been committed to ensuring the best deal for Britain as a member of the European Union. The Prime Minister has been successful in securing a reduction in the European budget. He has vetoed a treaty that was not in our interests and secured lots more reforms that have been in the interests of the British people whereas the noble Lord’s own party leader talks only about Brussels not having enough power and about joining the single currency potentially at some point in future.
Lord Davies of Stamford (Lab): My Lords—
Lord Lawson of Blaby (Con): My Lords—
Lord Bourne of Aberystwyth (Con): My Lords, I think that it is this side and then back to the Opposition.
Lord Lawson of Blaby: My Lords, I quite agree with the Statement where it says that a disorderly Greek exit from the eurozone is in nobody’s interest. Clearly, it is an orderly exit that is desirable. However, I should like to revert to what my noble friend Lord Howell said about energy policy. This is very important. Is my noble friend the Leader of the House aware that over the past few years a great battle has been going on between the Commission, which wishes energy policy to be a European Union competence, and the United Kingdom, supported by Poland in particular, which says that energy policy and mix should be a national competence? So far that has prevailed. Can she give an undertaking that that is the policy of the Conservative Party as there has been a certain amount of party politics, however deplorable, in these exchanges so far? Can she give a firm undertaking that it is the policy of the Conservative Party that energy policy will remain a national and not a European Union competence?
Baroness Stowell of Beeston: Yes, I can give my noble friend that assurance. As I have said, what we have been able to secure because of the Prime Minister’s negotiating powers in Europe is that we retain responsibility for deciding which methods of energy we should use in our country.
Lord Davies of Stamford: My Lords, can the Leader of the House state quite clearly that the sanctions on Russia will not be eased until there is full implementation of the Minsk agreement? That agreement covers only Luhansk and Donetsk—it does not touch on Crimea. The implication is that, if the Russians observe their obligations under the Minsk agreement that relate to Luhansk and Donetsk provinces but remain in full occupation of Crimea, contrary to international law and the Budapest agreement, all economic sanctions will then be lifted. In practice, would not that amount to the western world acquiescing in the illegal occupation of Ukraine? Is that really the Government’s policy?
Baroness Stowell of Beeston: We remain absolutely clear that Russia’s annexation of Crimea was illegal and illegitimate, and we will certainly not change our view on that.
Lord Deben: My Lords, while my noble friend is taking messages back, will she take the message back that it is very often easier to get people to join with you if you occasionally say how good it is to be party to and member of the European Union? Would it not be much more helpful, in the perfectly proper desire to have reform in the European Union, if we just remarked on the huge importance to Britain of being in the European Union and to the European Union that Britain is in it? If we were a bit more positive, we would have more chance of winning.
Baroness Stowell of Beeston: I am grateful for the message from my noble friend as well. I agree with him at the same time as I agree with my other noble friend, because this is precisely the point. We believe that there are really important, positive advantages to Britain being a member of the European Union. However, we do not believe that the status quo is where we should remain. We believe that some changes are necessary in Europe—that is what the Prime Minister is committed to renegotiating; then he is committed to putting that clear choice to the British people. But there are very important and positive reasons for us to remain a member of the European Union.
Lord Anderson of Swansea (Lab): My Lords, will the good governance fund come out of the aid budget or the Foreign Office budget? The Statement says that,
“the Council welcomed the significant reduction in fighting and the … withdrawal of heavy weapons”.
Is this not part of Minsk II, and did not the Government and some allies—some European partners—try to ensure that the sanctions, particularly the tier 3 sanctions, would be renewed forthwith? But the majority of our partners thought it made sense to monitor the implementation of Minsk II, which, after all, was agreed on 12 February. Is this not a reasonable position?
Baroness Stowell of Beeston: In answer to the noble Lord’s first question, the good governance fund will come, initially at least, from the DfID budget. Secondly, I have made it clear that sanctions will remain in place until Minsk II is fully implemented. The importance of those sanctions, and of all members of Europe being united in keeping them in place until Minsk II is fully implemented, was agreed by all member states at the Council last week.
Baroness Smith of Newnham (LD): My Lords, I am grateful to the Leader of the House for repeating the Statement—although I noticed that the noble Lord, Lord Lea, tried to intervene part of the way through. Perhaps that was because he thought that the wrong Statement had been passed to the Leader of the House and it was instead the Prime Minister’s draft notes for the leadership debates ahead of the general election. However, I assume that we are actually debating the Council conclusions and the responses to those. Paragraph 6 of the conclusions says:
“Member States and the Commission should step up efforts to communicate the benefits of the agreement”,
“and to enhance dialogue with civil society”.
Does the Leader of the House agree that it is important to promote dialogue not just on TTIP but on many of the issues linked to that conclusion, including the European Semester, under which heading it, slightly bizarrely, falls? Should we not engage in further dialogue not only on that but also, more generally, on the benefits of British membership of the European Union, which all sides of your Lordships’ House strongly supported in a debate last November?
Baroness Stowell of Beeston: My noble friend is right to highlight the TTIP agreement—the Europe-US trade agreement. Once it is finally in place it will be worth a huge amount to the United Kingdom and all other members of the European Union. It is a good example of why membership of the European Union remains very important to us as a country.
Lord Campbell-Savours (Lab): My Lords—
Lord Stoddart of Swindon (Ind Lab): My Lords—
Lord Bourne of Aberystwyth: My Lords, we will hear from the Cross Benches and then from the Opposition.
Lord Stoddart of Swindon: Why do you think I am sitting over here?
I want to raise a quick question about Iran. We all agree that Iran must never be allowed to develop nuclear weapons, but I would remind the Leader of the House that Iran is a member of the nuclear non-proliferation treaty. Israel is not, yet it has nuclear weapons. What will the Government do to persuade Israel that it too should join the non-proliferation treaty so that proper discussions can take place between two equal parties?
Baroness Stowell of Beeston: The noble Lord raises an important question, but in the time available I will not be able to do it justice. Clearly we want to prevent the extension of nuclear arms wherever there may be a risk of that happening.
Lord Campbell-Savours: My Lords, in the event of an incident occurring somewhere in eastern Europe during the next six weeks, can we have an assurance that the Prime Minister would not unilaterally take action without the fullest possible consultation with the leader of the Opposition?
Baroness Stowell of Beeston: The Prime Minister has been clear that his first priority would be to seek a political solution and diplomatic route in response to any kind of situation and that any action taken by the United Kingdom would be as part of wider international auspices.
Counter-Terrorism and Security Act 2015 (Authority to Carry Scheme) Regulations 2015
Counter-Terrorism and Security Act 2015 (Authority to Carry Scheme) Regulations 2015 24th Report from the Joint Committee on Statutory Instruments
Motion to Approve
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That the draft Regulations laid before the House on 2 March be approved.
Relevant document: 24th Report from the Joint Committee on Statutory Instruments
The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con): My Lords, I shall speak to the Motions to approve the following statutory instruments: the Counter-Terrorism and Security Act 2015 (Authority to Carry Scheme) Regulations 2015; the Authority to Carry Scheme (Civil Penalties) Regulations 2015; the Passenger, Crew and Service Information (Civil Penalties) Regulations 2015; the Aviation Security Act 1982 (Civil Penalties) Regulations 2015; the Terrorism Act 2000 (Code of Practice for Examining Officers and Review Officers) Order 2015; the Counter-Terrorism and Security Act 2015 (Code of Practice for Officers exercising functions under Schedule 1) Regulations 2015; and the Civil Procedure (Amendment) Rules 2015.
This secondary legislation has been brought forward to implement measures in the Counter-Terrorism and Security Act 2015. These measures have been debated in this House very recently, as the primary legislation was enacted only on 12 February. During Parliament’s consideration of that legislation, there was widespread recognition of the threat from terrorism and broad support for the measures that were in the Bill. These instruments bring to life some of those important provisions. In passing that legislation in February, the House accepted the need for these new powers.
I should inform the House that the Joint Committee on Statutory Instruments has considered all seven of the instruments that we are debating today. It has drawn the special attention of both Houses of Parliament to the Authority to Carry Scheme (Civil Penalties) Regulations 2015 and to the Civil Procedure (Amendment) Rules 2015. The committee cleared the other five instruments. The Lords Secondary Legislation Scrutiny Committee has also considered all seven instruments and has cleared them without drawing them to the special attention of the House.
It might help the House in its consideration of these statutory instruments if I briefly outline what the Government seek to achieve by them, and why we have brought them forward at this time.
The Counter-Terrorism and Security Act 2015 (Authority to Carry Scheme) Regulations 2015 bring into force the authority to carry scheme 2015. These regulations are provided for in Section 23 of the Counter-Terrorism and Security Act 2015. The purpose of the scheme is to prevent or disrupt travel to and from the UK by individuals who pose a terrorism-related or other threat to the UK. It also mitigates the threat of terrorist attack against aircraft and, should the threat change, ships and trains expected to arrive in or leave the UK.
International aviation remains a target for terrorists. There have been attempts to launch attacks inside planes using concealed explosive devices and terrorist groups with the intent and capability to undertake such attacks continue to operate. Authority to carry is now an important element of our counterterrorism strategy. The new 2015 authority to carry scheme allows us to respond to the changing threat and prevent individuals who may pose a terrorism-related or other threat from boarding flights from, as well as to, the UK. In order to remain responsive to changes in the threat, it is necessary to include international rail and maritime. The scheme applies to all passengers and crew travelling or expected to travel to or from the UK. If a carrier does not comply with any aspect of the scheme, particularly if a carrier were to carry an individual it had been refused authority to carry, it will be liable to a financial penalty.
The Authority to Carry Scheme (Civil Penalties) Regulations 2015 establish a penalty regime for breach of requirements of the authority to carry scheme 2015. A carrier may be liable to a penalty for breach of a requirement: to seek authority to carry a person; to provide specified information by a specified time; to provide information in a specified manner and form; to be able to receive communications in a specified manner and form; or a requirement not to carry a person when authority to carry has been refused. The scheme specifies that it is the requirements set out in detailed written notices issued to carriers under the Immigration Act 1971 or the Immigration, Asylum and Nationality Act 2006 that must be met under the scheme, rather than those requirements being specified in detail in the scheme itself.
I will now move on to the Passenger, Crew and Service Information (Civil Penalties) Regulations 2015. These establish civil sanctions that may be imposed on carriers who fail to comply with a requirement to provide information under the Immigration Act 1971 or the Immigration, Asylum and Nationality Act 2006. These will complement existing criminal offences. The regulations allow the Secretary of State to impose a civil penalty not exceeding £10,000 for each breach, but a carrier may not be required to pay a penalty if they have a reasonable excuse or have otherwise been penalised for the same breach. The Government’s clear preference is that carriers are able to comply with these requirements. We will continue to work with carriers to ensure that this happens. However, when there is a failure, particularly if it is wilful or negligent, it is important that appropriate sanctions exist to deter repeat behaviour.
The draft Aviation Security Act 1982 (Civil Penalties) Regulations create a civil penalty scheme for addressing non-compliance with certain security directions or information requests made by the Secretary of State under the Aviation and Security Act 1982 in relation to inbound flights. The Secretary of State would have the power to impose a penalty up to a maximum of £50,000. Specifically, penalties could be issued where, in respect of an inbound flight to the UK, a carrier has failed to comply either with a request for information or a direction requiring that certain security measures are applied. The threat to aviation from terrorism
remains serious. These regulations help the Government to enforce their powers to specify certain security measures for flights operating to the UK where necessary.
The Terrorism Act 2000 (Code of Practice for Examining Officers and Review Officers) Order 2015 gives effect to a revised code of practice for examining and review officers who exercise powers under Schedule 7 to the Terrorism Act 2000 as amended by the Counter-Terrorism and Security Act 2015.
I now turn to the regulations which bring into operation the code of practice in relation to the exercise of powers under Schedule 1 to the Counter-Terrorism and Security Act 2015—the power to seize travel documents. These powers are exercisable at the Northern Irish border area and at ports throughout the UK. They allow for the seizure and temporary retention of travel documents when there is a reasonable suspicion that the person intends to travel to engage in terrorism-related activity outside the UK. Officers exercising the power are required to follow the code, making the code an important safeguard on the use of this power. The code sets out: the process for the training that must be undertaken by officers exercising the power; the procedure for designating Border Force officers to exercise the power under police direction; how the functions under Schedule 1 must be exercised; the information that must be provided to a person subject to the power, and how and when that information should be provided; and the process of reviewing a decision to retain travel documents.
The last of the seven instruments which your Lordships are considering today is the Civil Procedure (Amendment) Rules 2015. The Counter-Terrorism and Security Act 2015 introduced temporary exclusion orders, which enable the Secretary of State to disrupt and control the return to the UK of British citizens suspected of engaging in terrorism-related activity abroad. The temporary exclusion order also enables the Secretary of State to impose certain requirements on an individual on his or her return to the UK. There are two stages of judicial oversight of this measure: a permission stage and an in-country statutory review. This instrument introduces rules of court to govern these proceedings in the High Court and appeals to the Court of Appeal in England and Wales.
I have already mentioned that the Joint Committee on Statutory Instruments reported on this instrument. The Government have acknowledged the issues raised by the committee and has committed to updating the rules by an amending instrument as soon as practicable. That amending instrument will be made by the Civil Procedure Rule Committee, and the process for doing so is already under way. However, as the Government made clear in their response to the Joint Committee, we do not consider that the drafting errors acknowledged render the rules invalid or inoperable. These court rules are essential to ensure that we can operate appropriate safeguards for the temporary exclusion order powers. Accordingly, I hope that your Lordships will support this instrument.
These instruments are needed to implement measures in, or consequential to, the Counter-Terrorism and Security Act 2015. The four border security instruments are required to prevent or disrupt the entry to, return
to or departure from the UK of individuals who pose a terrorism-related threat; to mitigate the threat of an attack on an aircraft operating into the UK; or, in the circumstances of children travelling to Syria, to prevent and disrupt travel by individuals who are putting themselves at risk. The Act made important clarifications to the use of the Schedule 7 power, and the revised code of practice for officers exercising that power reflects these changes. The temporary passport seizure code of practice is an important safeguard on the use of that power. The temporary exclusion order court rules are required to implement the judicial oversight of this power in England and Wales. I commend these instruments to the House. I beg to move.
5.45 pm
Lord Marlesford (Con): My Lords, these instruments form a very important part of the defence of our borders and of the realm. I think I am right in saying that they provide for the reintroduction of the monitoring of the departure of persons from the United Kingdom. I want to ask my noble friend—in as far as the instruments cover the departure of persons from the United Kingdom—about the method of administering the scrutiny of travel documents of persons proposing to or attempting to depart. Is that scrutiny made by the organisation, company or airline by which the persons intends to travel, or by an immigration officer in the same way as is now being done to people arriving? In other words, who will scrutinise passports? Under these instruments, will it be done by the airline or whatever? If it is not being done by an immigration official scrutinising the travel documents using the latest technology, will any warning that an immigration officer would have who scrutinises and examines a passport or other travel document of somebody seeking to arrive in this country—a system that has advanced a great deal in recent years—be available to anyone who is asked to scrutinise the document or passport of someone seeking to depart from the United Kingdom in the same way? In other words, will a non-government official to whom the task is delegated, such as the airline, the railway people or the boat people, have that same information or be able to have it under these instruments?
Baroness Humphreys (LD): My Lords, I merely seek clarification on one aspect of the 2015 Counter-Terrorism and Security Act’s code of practice for officers exercising functions under Schedule 1 of the Act, which accompanies these instruments. This code of practice is referred to in the 28th report of the Secondary Legislation Scrutiny Committee. The final sentence of the information paragraph reads:
“In its consideration of the Code the Committee was concerned that directions about when officers may search a member of the opposite sex, particularly a child, were not as clear and consistent as they need to be”.
I am most grateful to my noble friend the Minister for his reply to my written query regarding this matter, but I remain concerned that the clarification I sought has not quite been met.
The committee and I still have concerns relating to the powers that the code of practice confers on officers who need to search a child—defined as anybody
under 18—in order to seize or retain their travel documents. The code is exemplary in its guidance to police constables and designated border control officers, highlighting the care which must be taken when exercising their powers and the need to be aware of the necessity of safeguarding a child’s safety and welfare, as well as urging officers to be sensitive to the intimidation that children travelling alone can feel and the possibility that they may be vulnerable to exploitation by an adult with whom they are travelling.
I draw the attention of the House to paragraph 31, which outlines the scope of the power as it relates to the searching of children who have been removed from an adult. In particular, it gives guidance that two officers of the same sex as the child should, where reasonably practicable, be present during the search. It was the insertion of the three words, “where reasonably practicable”, which most concerned the committee and which led to its call for clarity. It seemed to the committee that the words,
“two officers of the same sex … where reasonably practicable”,
could give rise to any number of permissible permutations. I would be grateful if the Minister would clarify which of these would be justifiable and acceptable.
If two officers of the same sex as the child are not available, would two officers, one of the same sex and one of the opposite sex, be acceptable? If they are not available, would two officers of the opposite sex to the child be acceptable? If two officers are not available, would just one officer of the same sex as the child be acceptable? If they are not available, would just one officer of the opposite sex to the child be acceptable? At this stage, I am at a loss to understand why the last alternative is included. Are we to take from this that our ports are so understaffed that there are likely to be times when only one officer of the opposite sex will be available to search a child?
The code has already referred to the intimidation that a child travelling alone can experience. Does the Minister believe that a child, removed from an adult, would experience a similar feeling if searched by one or two officers of the opposite sex because they were the only reasonably practicable alternatives?
I would also be grateful if the Minister would add some detail on the advice given to officers governing the circumstances in which a child may be searched in the absence of the responsible adult with whom they are travelling, and explain how the child is to be removed from the adult and where the search will take place. If the child is travelling with an adult who is deemed to be exerting influence or pressure, how is an officer to defend him or herself against accusations of inappropriate behaviour if the child is influenced to make accusations against the officer and there are no witnesses to the search?
However, these children are unlikely to make a complaint about the manner in which they are searched, by whom they are searched and where they are searched. They are intent on leaving this country and, to all intents and purposes, this renders them powerless to control their situation. I would want firm guidelines to govern the way in which my grandchildren could be
removed from my presence and searched at a UK port. Those firm, unambiguous guidelines should be applicable to all children.
The Secondary Legislation Scrutiny Committee called for clarity in this aspect of the code of practice. I hope that the Minister will be able to provide the House with that clarity and describe, definitively, the circumstances under which children will be searched.
Baroness Hamwee (LD): My Lords, I am grateful to the Minister for explaining this raft of instruments. I have a few comments and queries.
As my first query is on an order which is not before us but which is relevant, I do not expect an answer, but I want to use this opportunity to explain a point which I raised with the Secondary Legislation Scrutiny Committee, of which I am a member. The authority to carry scheme sets out to whom it applies. As one would expect, it applies to those who are subject to a temporary exclusion order. Statutory instrument 438—I apologise to the House that I did not make a note of its name—provides that, for the purposes of the service of the order, it can be served on an individual’s representative. I queried who a representative might be for this purpose. The advisers to the Secondary Legislation Scrutiny Committee took this up with the Home Office. I was concerned that, in the normal run of things, one might think that a representative was, for instance, a solicitor, but a solicitor who was not able to pass on the information to his client that an order had been served would find himself in a very difficult state and would probably disclaim the client.
An answer has come back and I want to get it on the record. It states:
“The Home Office agrees that … For adults … a representative must be a legal representative such as a solicitor or legal executive who acts on behalf of the person. The Home Office agrees that the Secretary of State cannot deem someone to be a representative in the absence of a clear relationship such as a … contractual relationship”.
As I have said, any lawyer thinking ahead a bit in that situation would disclaim that relationship. The Home Office also agreed that,
“for someone under 18 the term would cover the person’s parent or guardian”,
and that they could be a representative for this purpose. As I said, I am not expecting the Minister to comment on that.
Paragraph 22 of the scheme states that a person who,
“is refused authority to carry will be informed of that”,
in a notice by the carrier. It occurred to me to ask whether there is any penalty on the carrier who fails to pass on information—not information that they have been denied boarding, because they will have worked that out, but information of the contact telephone and email address that the individual needs to make further inquiries—and whether there should be any liability for compensation on a carrier who fails to pass on that information.
The Explanatory Memorandum to the authority to carry scheme regulations refers to,
“the need for an effective redress process in the case of mistaken identity. Administrative arrangements are in place to ensure that an individual is not mistakenly identified again”.
The second occasion would be pretty awful, but the first occasion of mistaken identity is pretty bad, too. I do not know whether the Minister has any comment on that.
With regard to the penalties for breach of the scheme, again I quote from the relevant Explanatory Memorandum. The consultees felt that the maximum £50,000 fine,
“was excessive and disproportionate, especially when compared to the possible fines imposed by other countries”.
Does the Minister have any information as to that comparison? There is also a feeling that the maximum penalty is unreasonably high, and I understand that there will be guidance on how the penalties will be applied. As this goes to the amount that will actually be levied in different circumstances, can the Minister tell the House when that guidance will be issued?
More generally, there has been a good deal of comment that the current authority to carry scheme is actually quite effective. What extensions from the current scheme will these various regulations and orders bring in?
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The Explanatory Memorandum to the Schedule 1 code of practice regulations talks of engagement with “key stakeholders”. Did those include NGOs, particularly civil liberties NGOs, which obviously have an interest in this issue?
We debated the primary legislation pretty fully, so I do not want to spend too much time on this, but it perhaps builds a little on the points my noble friend Lady Humphreys made. There is reference in the code of practice to officers picking up,
“indicators of abuse or neglect”.
That is beyond what the code is aimed at, but it is very welcome. Reading that, it occurred to me that, although there is reference to abuse and neglect, there is no reference to trafficking. Again, I do not except a reply tonight, but given the work that the Home Office and Parliament have been doing on slavery and trafficking, I wonder whether there is scope for a consolidated code or consolidated non-statutory guidance which brings together all the indicators that officers who may find themselves dealing with children in this situation might be looking out for in order to be able to identify children who are at risk. I appreciate that this is beyond the scope of these various instruments, but it might be very useful work to think about. This is entirely off the top of my head and I do not want to suggest unnecessary work to either the Home Office or UKBA.
Baroness Smith of Basildon (Lab): My Lords, this is a larger number of instruments but a shorter debate than usual. We support the regulations and order, but it would be helpful if the noble Lord were able to answer a few questions. To take the last one first, paragraph 8 of the Explanatory Memorandum for the Civil Procedure (Amendment) Rules, on “Consultation outcome”, says:
“The Lord Chief Justice was consulted … Due to the urgency … there has been no public consultation”.
But that is not the outcome; it just says that he was consulted, without saying what the response was. If there
was an outcome to the consultation, it would be helpful to know what it was, otherwise there does not seem much point in calling it an “outcome”.
The points made by the noble Baroness, Lady Humphreys, on the Counter-Terrorism and Security Act regulations are interesting and valid ones to look at. I would also have thought that in many cases the officers concerned would not want, in their own interests, to be searching a child, whether of the same sex or of the opposite sex, on their own. If I was their trade union representative, I would probably advise them not to. There are dangers to the child, but there are also dangers to the officers concerned. That is something that perhaps should be examined and considered. Our staff do a very difficult job in difficult circumstances and we would not want them to be in a position where they could face accusations; nor would we want a child to feel uncomfortable and even more frightened than they would already be in such cases. I hope the noble Lord is able to give some reassurance and clarification on those points.
The other point I would like to make concerns the risks identified in the impact assessment. It says:
“Possible risks will be mitigated by monitoring and reviewing the use of the powers”.
The powers will be used by Border Force officers and the police but they are the very people who will also be monitoring the use of the powers, or they will at least be collecting the data to monitor the use of the powers. This has been quite a sensitive issue and has had a lot of discussion. Clearly, I am confident that the Government do not want mistakes; they want to get this right. Can the Minister say anything about how the powers will be monitored? Data will be provided by the officers implementing this provision but the monitoring of it will be quite important so that we can assess how effective it is and how appropriately it is being used, to ensure that it is not used for anything other than the purposes for which it is intended.
The authority to carry scheme regulations and the explanatory memorandums—I am sure that is not the correct plural—all referred to the fact that 28 people or organisations responded to the consultations. Was there one consultation or will 28 bodies respond? Was there one, overarching consultation or separate ones? I think it will be helpful to look at the ones relating to the authority to carry schemes together. It was quite clear that the majority of carriers welcomed the extension of the scope and that was widely supported, although a majority were also concerned that the maximum fine of £50,000 was excessive. I have seen the Government’s response to that. What is important is when that will be implemented. Looking at the Explanatory Note, I am not 100% clear about “best endeavours”; one of the impact assessments also refers to the Secretary of State taking into account how co-operative someone has been. It would be helpful to have a little more guidance on the circumstances in which the Government would pursue action that could lead to a maximum fine. I know that the maximum fine is used only rarely and is intended to be a deterrent but I would like to know the circumstances that would mitigate against prosecution in the first place and, secondly, the level of the fine.
The guidance for these regulations has not been published. A lot will depend on what exactly is in the guidance. Is the Minister able to say when we will see it, what the process will be for scrutinising it, whether there will be consultation with the carriers themselves and when it will be brought to your Lordships’ House?
I also picked up the strange issue about mistaken identity. The Explanatory Memorandum says:
“Administrative arrangements are in place to ensure that an individual is not mistakenly identified again”.
Surely we should have far more robust processes in place if we want to have confidence in the procedure. If mistaken identity occurs once, it surely should not happen to the same individual a second time, or perhaps I am misunderstanding something here. I would like to know what administrative arrangements are in place to ensure that we do not have a second mistaken identity. Really, what are we doing to ensure that we do not have the first mistaken identity? The issue of identification is crucial to providing confidence in this. I am slightly worried.
I understand that there will be some discussions with the industry about the guidance. I would feel happier to see a willingness to make practical changes in how things work. Quite often we can look at something in theory and know where we want to get to, but the industry may have suggestions on how that works practically rather than just in theory. I would like an assurance from the Minister that the Government will consider changes if the industry comes up with ways in which to make this scheme more effective without undermining the basis for it in the first place.
I have similar points to make on the Passenger, Crew and Service Information (Civil Penalties) Regulations, as similar things have arisen. The Explanatory Memorandum states that:
“The Government’s position however remains that carriers must provide accurate, complete and timely information. Not only is this a legal requirement but they also have a responsibility to ensure adequate steps are taken to protect against threats to their assets, passengers and crew”—
and indeed to the country. If a mistake has occurred, what evidence will the Government require from carriers to ensure that they have used best endeavours? Is there some way of monitoring the processes, procedures and protocols that they have in place? That will be absolutely crucial to ensuring that it works in practice.
On the fifth and sixth statutory instruments, the Minister knows that we have supported the power for passport retention and think that it is appropriate. We still take the view that there should be a power of appeal; that is extremely important. Again, the detail of the code of practice will be crucial and we look forward to more information on that. Can the Minister make clear—just to put it on the record—what changes have been made to the code of practice and any guidance as a result of the feedback on the issues? That feedback is mentioned in the Explanatory Memorandum on these regulations and includes,
“specifying the availability of legal aid and clarifying whether family members may access temporary support arrangements”.
Those issues were raised in previous debates that we have had, and by the Joint Committee on Human Rights. If the Minister can give further clarification on that, that would be very helpful.
That is the extent of my questions to the Minister. If he is unable to address those today, he can write to me, which would be extremely helpful.
Lord Bates: My Lords, I am grateful for the contributions that have been made in the debate. I am deeply conscious that there are a large number of orders and regulations before your Lordships this afternoon. The detail of the questioning is very welcome and important—we are talking about very serious issues—and I guess that it will not be possible for me to answer every particular question today. However, I will certainly undertake to write, and copy it to all noble Lords who have been involved in this debate so far.
I will make one general point about the authority to carry scheme and how it operates—this covers the point that was raised about identity and the possibility of mistakes and, in many ways, touches on the point made by my noble friend Lord Marlesford. This is information that the airlines are currently required to send to the National Border Targeting Centre based in Manchester. The information comes in a particular format: it has the passport as one identifier and the date of birth as another identifier, along with the name. It is hoped that through triangulating those three bits of important information the possibility of a mistake can be eliminated.
My noble friend Lady Hamwee asked what changes we are making as a result of this order. Effectively, the changes that we are making in relation to that area are that, in the past, it was for inbound flights. The information on people coming into the UK had to be submitted in advance, cleared and checked against the no-fly list. We are now saying that, where inbound journeys are taking place through certain ports or rail terminals and where UK citizens are travelling abroad for obvious reasons—for instance, if there are flights from London to Istanbul or via Barcelona with an end point in Istanbul—that would raise certain questions. Therefore, we are now asking for that additional information to be provided.
6.15 pm
The noble Lord, Lord Marlesford, raised a point on which he and I have an ongoing discussion: that is, passport checks. Specific passport checks are not covered in these regulations—they were covered in the Immigration Act 2014. However, I take his general point about the need to have strong checks on all people who come into this country and leave it—and those exit checks will be in place, thanks to the Immigration Act 2014, by the end of this Parliament, or certainly by next month.
Concern was raised by several noble Lords, but particularly by my noble friend Lady Humphreys, on the issue of children. I am grateful to my noble friend for having raised this on a number of occasions. She and I have had correspondence on it. Some of that correspondence might be helpful to the House—I am thinking in particular of the letter that I sent her on 18 March—so, with her permission, I would be willing
to share that with other noble Lords. The issue of children is critically important. My noble friend rightly highlighted what will happen under paragraph 31 of the code of practice, but there is also paragraph 27, which states:
“Special care must be taken when considering exercising the power where it is evident that the person is a child”.
“Border Force has a duty … under Section 55 … to safeguard and promote the welfare of … children”.
“Therefore, when dealing with cases involving children (whether in family groups or unaccompanied), police constables, or designated Border Force officers, must be aware of the necessity to safeguard a child’s safety and welfare”.
Paragraph 31 then makes the point to which my noble friend referred. Essentially, we are trying to avoid saying in the code that the search cannot happen in any circumstances: that is, if two officers of the same sex as the child are not available to undertake it. That is for particular reasons. There may be circumstances in which there is a real fear that the child may be at risk, and we would not want that to be an excuse for not being able to act in those extreme circumstances. However, we set out in paragraph 31.ii that,
“the reasons for taking that decision must be recorded in writing … two officers of the same sex as the child should, where reasonably practicable, be present during the search”,
for all the reasons that noble Lords have mentioned. In particular, the noble Baroness, Lady Smith, said that it would be in officers’ self-interest to make sure that another officer was there.
I know that I cannot go perhaps as far as my noble friend Lady Humphreys would want on this occasion, but I am happy to continue the dialogue. I am sure that it will continue into the time of the next Government, so that when we get more feedback on how the scheme is operating and where there have been specific issues, we can ensure that searches of vulnerable children are done in an appropriate way, wherever possible by two officers of the same sex.
My noble friend Lady Hamwee asked about a redress process for individuals who may be mistaken for individuals on the no-fly list. Unfortunately, it is not possible to identify such individuals until the misidentification happens. When it does, action is taken to make sure that it does not happen again. If we have the right information, particularly where we have a passport number, a date of birth and a name, those instances should be extraordinarily rare.
My noble friend also asked about the representative of a temporary exclusion order subject. The temporary exclusion notice regulations are not before the House today and are subject to correspondence between the chair of the Lords Secondary Legislation Scrutiny Committee and my honourable friend James Brokenshire in the other place. I was struggling for the correct terminology for the other place, but I think we can now refer to it as the House of Commons, thanks to the liberation given to us by the Procedure Committee. I am grateful to her for highlighting this point during today’s debate. In the same context, my noble friend
asked about the communications consultation with the Lord Chief Justice. I will write to her on that point.
The noble Baroness, Lady Smith, asked about the consultation exercise and whether there was one consultation or 28. In fact, it was one consultation; 28 carriers responded to it.
Baroness Smith of Basildon: I asked whether there was one consultation on all the statutory instruments grouped together, or one consultation on each statutory instrument.
Lord Bates: There was one consultation on all the statutory instruments together. If that is not correct in some way, I will set that out in writing.
The intention is to work with carriers, not to fine them £50,000. The UK Border Force already works with carriers, and this will continue. Fifty thousand pounds is for the worst-case breaches. Of course, carrying somebody who we consider to be a sufficient threat to be on a no-fly list is not only a foolish thing to do but a very dangerous thing to do, not only for the airline but for the other passengers and the crew of that airline. Therefore it is right that the penalty is strong, but we hope that it will not be necessary.
I think that I have touched on most of the points raised. The noble Baroness asked about monitoring the use of the power and whether the code explains how to use the power. The code includes a section on monitoring the use of the power, which confirms that the police must consider whether there is any evidence that the power is being used on the basis of stereotyped images or inappropriate generalisations. It must review whether the records reveal any trends or patterns that give cause for concern, and, if they do, take appropriate action to address this. Monitoring records should, where possible, include age, disability, gender, race, religion and beliefs, and sexuality. It also confirms that the power is subject to review by the Independent Reviewer of Terrorism Legislation.
In what circumstances would a maximum fine be given? I have covered that already.
On engagement with NGOs, we undertook a six-week public consultation to raise awareness of the consultation. We notified key stakeholders, including law enforcement, community and regulatory organisations, that consultation had begun, and invited their views. The code focuses on disrupting travel for terrorist-related purposes and on wider safeguarding children issues that are routinely considered by the police.
My noble friend Lady Humphreys asked whether civil liberties organisations in particular had been consulted. I think that the answer is that the stakeholders that we consult include civil liberties organisations; I would expect that to be the case. If that is not the correct answer, of course I will write to her.
With the answers that I have given thus far and the assurances that I have given on continuing the dialogue, particularly in relation to children, I commend the statutory instrument to the House.
Authority to Carry Scheme (Civil Penalties) Regulations 2015
Authority to Carry Scheme (Civil Penalties) Regulations 2015 24th Report from the Joint Committee on Statutory Instruments
Motion to Approve
6.24 pm
That the draft regulations laid before the House on 2 March be approved.
Relevant document: 25th Report from the Joint Committee on Statutory Instruments.
Passenger, Crew and Service Information (Civil Penalties) Regulations 2015
Passenger, Crew and Service Information (Civil Penalties) Regulations 2015 24th Report from the Joint Committee on Statutory Instruments
Motion to Approve
6.24 pm
That the draft regulations laid before the House on 2 March be approved.
Relevant document: 24th Report from the Joint Committee on Statutory Instruments.
Aviation Security Act 1982 (Civil Penalties) Regulations 2015
Aviation Security Act 1982 (Civil Penalties) Regulations 2015 24th Report from the Joint Committee on Statutory Instruments
Motion to Approve
6.24 pm
That the draft regulations laid before the House on 2 March be approved.
Relevant document: 24th Report from the Joint Committee on Statutory Instruments
Terrorism Act 2000 (Code of Practice for Examining Officers and Review Officers) Order 2015
Terrorism Act 2000 (Code of Practice for Examining Officers and Review Officers) Order 2015 24th Report from the Joint Committee on Statutory Instruments
Motion to Approve
6.25 pm
That the draft order laid before the House on 27 February be approved.
Relevant document: 24th Report from the Joint Committee on Statutory Instruments.
Counter-Terrorism and Security Act 2015 (Code of Practice for Officers exercising functions under Schedule 1) Regulations 2015
Counter-Terrorism and Security Act 2015 (Code of Practice for Officers exercising functions under Schedule 1) Regulations 2015 24th Report from the Joint Committee on Statutory Instruments
Motion to Approve
6.25 pm
That the draft regulations laid before the House on 12 February be approved.
Relevant document: 24th Report from the Joint Committee on Statutory Instruments.
Civil Procedure (Amendment) Rules 2015
Civil Procedure (Amendment) Rules 2015 24th Report from the Joint Committee on Statutory Instruments
Motion to Approve
6.25 pm
That the rules laid before the House on 27 February be approved.
Relevant document: 26th Report from the Joint Committee on Statutory Instruments(Special attention drawn to the instrument).
Gaming Machine (Circumstances of Use) (Amendment) Regulations 2015
Gaming Machine (Circumstances of Use) (Amendment) Regulations 201527th Report from the Secondary Legislation Scrutiny Committee
Motion to Regret
6.26 pm
Moved by Lord Collins of Highbury
That this House regrets that the Gaming Machine (Circumstances of Use) (Amendment) Regulations 2015 do not appropriately address the problems of gambling addiction, and offer no significant protections for vulnerable people from getting into debt. (SI 2015/121)
Relevant document: 27th Report from the Secondary Legislation Scrutiny Committee.
Lord Collins of Highbury (Lab): My Lords, I start by recognising that this is not the first debate that we have had recently on this issue. We had a Question for Short Debate tabled by the noble Lord, Lord Clement-Jones, which I participated in, and we have had a number of Oral Questions on fixed-odds betting terminals. Those reflect not only the concern in this House on this issue but also the concern in our communities.
I start my contribution by making no apology for repeating some of the arguments that I have made in those debates. After 15 years of fixed-odd betting terminals on our high streets at £100 a spin, we are still no nearer to a conclusive answer as to whether they are safe to operate in local betting shops. The response
of the Government has been to come up with a £50 cap without any evidence that it would protect vulnerable people from getting into debt or developing a gambling addiction that ruins their lives. Although the Prime Minister promised to get to grips with this issue, it is now a full 12 months since the Government announced that they would do this—in fact, six months later than was foreshadowed in their announcements. Your Lordships’ Secondary Legislation Scrutiny Committee questioned whether the Government could have brought forward the regulations more speedily, especially as, from the words of the Prime Minister, they appeared to accept the need to act.
Irrespective of headline-seeking comments, the difficulty with the proposal is that the Government still cannot explain how they came to decide that £50 will deal with problem gambling or limit the hardship that such high stakes may cause. In these circumstances, many will see this as a bit of a sham rather than firm action. I suspect that in many people’s minds, if there is one thing worse than inaction, it is the pretence of action. The limit relies on the betting industry to apply it. Also customers will be able to bet above £50 on a single play with permission from betting shop staff. The Campaign for Fairer Gambling also claims that its sources in the bookmaking industry have informed it that at least one of the corporate operators is already advising staff to encourage the use of debit cards now that players are being forced by the Government to remote load their money on to the machines from the counter if they wish to access higher stakes. Not only that, but guidance is also being issued to encourage playing two machines at the same time, which would allow players to gamble £100 a spin, circumventing the new law.
Many questions are being asked about the Government’s decisions by the organisations concerned about the proliferation of FOBT machines—a term that I will use throughout the debate—and their impact on problem gambling. Some, such as the Local Government Association and councils from across the political spectrum, are calling for stricter controls. Concerns are also being expressed from within the gambling industry itself. Simon Thomas, the owner of the Hippodrome Casino, stated that betting shops,
“have fast, high stakes machines with little supervision”,
something that I raised in an Oral Question to the Government earlier this year.
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Many of these shops are in areas where there are already clusters of betting shops and the driving force for locating them in the same place is the profits that are to be made from having more and more FOBT machines. The betting industry has argued quite strongly that jobs are at risk if it is not allowed FOBTs. If that is the case, why has the number of employees in betting shops been decreasing while net takings from FOBTs have increased?
Local authorities have a statutory duty to uphold the licensing objectives, which are to ensure that gambling is fair and open, is not associated with crime and does not harm the young or vulnerable. As we have heard in previous debates, 93 councils believe that FOBTs are in breach of all those objectives so have joined the
London Borough of Newham in calling for the maximum stake to be capped at £2 a spin. During the passage of the 2005 Act, my right honourable friend Tessa Jowell expressed concern about the gambling industry becoming “overly dependent” on growth driven by these machines and about their role in problem gambling. On the decision to have a limit of four machines in each betting shop, she said,
“there was no certainty that these machines would remain, because we were absolutely clear that we could not know at that stage what their effect was likely to be”.
It is in response to that cap that bookmakers have opened up multiple premises in clusters to facilitate more machines, as a fixed-margin product guarantees bookmakers a return.
Research by the Responsible Gambling Trust, an organisation about which we will no doubt hear a lot more, has identified a link between social deprivation and the use of machines. In England, two-fifths of all bets were placed in venues in the most deprived areas. However, this reflected the distribution of bookies, with 38% of the branches in the most deprived areas of the country. Those with lower incomes were more likely to start to play machines in a bookmaker’s than those with higher incomes. Higher stakes impaired decision-making quality—the impact was stronger at £20 stakes—but the quality of decision-making was also compromised at £2 stakes. Stake size influences gambling behaviour when combined with other factors such as speed of play, volatility and social interaction.
The Secretary of State for Communities and Local Government has told us that this Government are committed to localism and greater local decision-making in planning. If that is the case, would the Minister care to explain why this does not apply to betting shops? The position of this side of the House is to require betting companies to seek planning permission if they want to open a premise that is not a former betting shop. Local authorities would in turn have the ability to ration and manage the number and location of these shops in their area. Labour would also modify the Gambling Act to give councils powers to review the betting shop licences in their area and retrospectively reduce the number of FOBTs in existing betting shops—for example, from four through to zero— in response to local concerns.
Critics of FOBTs have argued that what makes these machines addictive is the immersive nature of the games, which lulls people into losing more money than they intend, with the roulette wheel spinning so quickly and huge losses accumulated rapidly.
While I support the measures in the industry’s code for responsible gambling, such as increasing the time between plays, pop-ups that warn players how long they have played, gambled or lost and requirements to go to the cash desk to limit the amount they can insert into machines, none of them will be effective without sufficient trained staff—staff who are required to be in casinos but not in betting shops. Betting shop staff are on the front line when it comes to consumer protection, as these regulations are even implying, but single staffing is commonplace in betting shops. Does the Minister agree that staff would be in a better position to intervene and help gamblers if they were not made
to work alone? Labour will expect operators with FOBTs to have at least two members of staff present at all times. If they fail to comply with this, we will make it a licensing condition.
One of the key issues cited for inaction on FOBTs is lack of evidence. The Government have continually referred to research commissioned by the Responsible Gambling Trust as a justification for their approach. However, the evaluation of RGT research by Professor Linda Hancock of Deakin University in Australia and Shannon Hanrahan, CEO of the Outcomes Group, highlighted the serious flaws in both its methodology and approach. It has been circulated, I suspect, to many noble Lords via the Campaign for Fairer Gambling. The RGT research focused on problem and at-risk gamblers and how they behave while playing FOBTs and failed to assess the impact of the features of FOBTs on inducing that particular playing style.
While the bookmakers continue to have such influence over the research agenda and the commissioning process, we will never, in the words of the Prime Minister, get to grips with this issue. Does the Minister therefore agree that the betting shop operators should be required to collect and provide standardised data on the use of FOBTs to allow independent researchers to analyse their impact to help inform future decision-making rather than the process we have at the moment where figures are grasped out of the air and regulations are brought forward without the firm evidence to back them up? Our communities are at risk from these machines. We need to act but what we should do is empower local communities to act accordingly. I beg to move.
Lord Lipsey (Lab): Too little, too late. Really, those four words say all that is perhaps needed tonight in the face of these regulations, but I will crave the indulgence of the House to speak a little longer.
I will start with “too late”. I really have nothing to add to the slightly tongue-in-cheek findings of the House’s Secondary Legislation Scrutiny Committee, which wrote in its report, which is before us this afternoon:
“The House will be interested to see that the Government have now laid these Regulations. They will come into force only in April 2015, a full 12 months after the Government announced the need for the new requirement, and six months later than was foreshadowed in that announcement … We question whether the Government could have brought forward the latest Gaming Machine (Circumstances of Use) (Amendment) Regulations more expeditiously, given the concern about problem gambling which they address”.
The House should generally pay attention to the findings of its own committees, and that was a pretty severe condemnation.
In case noble Lords have missed the point, I will summarise it more succinctly. In our previous debate on FOBTs on 24 February, called by the noble Lord, Lord Clement-Jones, I said that those who play these machines were practising onanism. The House will forgive me if I resort this evening to the vernacular: the Government have shown themselves to be a bunch of tossers over this one. That, then , is the “too late”.
More important, however, is the “too little”. Again, I set out my views on this in the excellent debate on 24 February, and I will not repeat tonight all I said
then. I hope that noble Lords have realised just how small the impact of what the Government are proposing will be. An exceptionally hard-crafted impact assessment of the measures shows that on the department’s central estimate it will reduce FOBT spend by 1.4%, which is about six months’ growth. Therefore, the six months we have been waiting for the Government to get round to doing that has totally dissipated its effect. This is fig-leaf government. It is saying, “Oh dear, there seems to be a lot of pressure to do something about this—what are we going to do? Oh dear, we’ll spend a year thinking about it. Oh dear, we’d better bring something before the House before the election”. It really does not measure up in any sense to the seriousness of the problem.
I have got very bored with hearing Ministers and bookmakers saying, “We haven’t got the evidence”. There seems to be quite enough evidence to proceed on a precautionary basis—which is the argument the Government give for these regulations: that they are precautionary. However, given the scale of the problem, this is a pretty pathetic precaution by any standards.
I said in the last debate that a consensus had grown up among campaigners that a £2 limit would be the right figure. That may turn out to be too harsh, for reasons I will give later. However, the figure, when the Government finally get round to taking a serious measure on this, should be nearer to £2 than to £100. Indeed, it should be nearer to £2 than the £50 that is embedded in this order.
One thing that has gone completely unnoticed since our last debate is that the Government have now, deliberately, made it very much harder for them to do anything about this—or at least they plan to make it very much harder. I do not know how many people noticed the announcement by the Chancellor in his Budget speech that the Government would go for a “racing right”. That has been one of the most curious episodes that I have ever seen in government. The Department for Culture, Media and Sport produced two different possible futures for the levy, published in the autumn, despite the fact that the Chancellor had said once before that he would quite like a racing right. To be fair, the Government then published a consultation on the racing right. What do the Government do when those three consultations were just terminating? Without waiting for the department to summarise the results or to find out what those best informed about them wanted or what the public wanted, the Chancellor of the Exchequer—who cannot have much time in his busy portfolio to give attention to racing matters—announced that there would be a racing right.
How does that relate to the FOBT question? Doing anything serious about FOBTs will cost bookmakers money. It will cost them a substantial sum of money—a lot more than 1.4% of their FOBT revenue. But at the same time as the Government are dithering over that, they have suddenly decided to impose an enormous new charge on the betting industry to pay horseracing. The impact assessment on the racing right suggests that on a low yield the costs will not increase but that on the highest yield—50%, which is in the impact assessment—it will cost the bookmakers an extra £390 million a year. If you add a similar bill, as you easily might, for curbing FOBTs, what will be the
result? Will it not be the mass closure of betting shops, the removal of a local facility that many people appreciate, shops rotting on the high street because nobody will take them over, and a huge loss of jobs among betting shop staff? That is the Government’s prospectus for the betting industry.
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There is a consolation here—that the racing right has not only not yet come about but may well never come about. As the Conservative MP Philip Davies and I argued in our response to the consultation on the racing right, as presently conceived it seems to us unlikely to survive the test of competition law in Britain, let alone to survive the state aid test that would be applied by Europe. The Chancellor, to put it kindly, has not thought through not the idea of the racing right, which has something to be said for it, but the idea of a racing right that gives British racing a monopoly of its product and enables it to ask whatever price it may choose, never mind the effect on the betting shops.
I close by saying that here we have two things that the Government could do that will cost the bookmakers money—and what is the priority? Doing something to FOBTs would no doubt at some stage cost jobs and shops, but it would stop the bookies from picking the pockets of hard-working people—and, as has been said in this debate already, very often those of poorer people—with all the social costs that are involved in that. But the racing right picks the same people’s pockets not to deal with a social evil but to subsidise some hugely rich owners of racehorses and some very rich trainers for their holidays in the Bahamas, as well as some very rich jockeys gallivanting about the country in their helicopters and some ludicrously rich breeders, who exist only because of the practice of banning artificial insemination in horseracing. Strangely enough, in this bonanza feast, the one lot of people who do not benefit by a penny, in my long experience, are stable staff, who are still exploited very badly. So that is it—deal with the FOBT problem or help all these very rich people at the expense of poor people. I know which I would put first.
Lord Clement-Jones (LD): My Lords, it is always a pleasure to follow the noble Lord, Lord Lipsey, although I agreed with only a fraction of what he had to say. Nevertheless, it was very thought-provoking.
The noble Lord, Lord Collins, reminded the House that a month ago I initiated a debate about the unsatisfactory nature of the Government's current policies towards FOBTs. Nothing has made me change my mind in the mean time. If today’s Motion goes to a vote, however, I shall not vote with the Opposition. After all, the Opposition have tabled a very half-hearted Motion. But I shall take the opportunity today once again to express the strong dissatisfaction of these Benches with these measures, and our intention, if we are in a position to do so, to go much further after the next election.
I am very pleased that my noble friend Lady Jolly is responding to the debate. Given that it is extremely likely, without giving away any confidences, that we will enshrine a much bolder pledge in our manifesto, I hope that she can square the policy circle as a government
Whip and a Liberal Democrat Peer. Perhaps the Government are displaying their real embarrassment by using three separate spokesmen on the three recent occasions when we have debated or had a question on this subject. I see that the Mayor of London, Boris Johnson, has said that he believes that fixed-odds betting terminals can be dangerously addictive and allow bookmakers to prey on the vulnerable in our society—and he has called for the maximum stake to be cut to £2. This is rather at odds with the current position of the Conservative Front Bench.
The noble Lord has explained, as I did a month ago, what these machines are. FOBTs, technically known as B2 gaming machines, offer high stakes and fast play, allowing users to bet up to £100 every 20 seconds. Figures published this month by the Campaign for Fairer Gambling show that £1.5 billion was lost by gamblers on FOBTs in Britain during 2014. As the noble Lord, pointed out, most of that money comes from some of the UK’s most deprived communities. That highlights the need for an urgent solution to this serious problem.
The £100 stake on FOBTs is more than 40 times the EU average. Combined with the fast pace of play, this makes them particularly dangerous, leading to high levels of problem gambling. The speed of roulette on these machines is more than five times as fast as roulette in a casino, yet they are in lightly regulated high street betting shops—more than 9,000 of them across the country.
We rehearsed all those points in the debate last month, and I highlighted the fact that the local authorities which see the problem on the ground and use the Sustainable Communities Act—93 councils from all three major parties—have called on central government to take this action because of the anti-social behaviour, crime and problem gambling that the machines are causing in their local areas. The Local Government Association has called for a reduction in the £100 stake on FOBTs to £2.
As we have heard, the Gaming Machine (Circumstances of Use) (Amendment) Regulations are designed to introduce a requirement which prevents individuals staking over £50 on a B2 gaming machine, or FOBT—whichever expression your Lordships prefer—unless they load cash via staff interaction, or use account- based play. In response to Parliamentary Questions the Minister, Helen Grant MP, has claimed that this will end unsupervised high stake gambling on FOBTs. But that is not the case. The measures set out by the Government do not address the critical harmful element of the machines, which is the £100 per play maximum stake.
The measures are deficient for the following reasons. First, this is not a stake reduction. After the regulations are passed the £100 stake will still be available, so the machines will still be able to cause harm to problem gamblers and communities. The regulations are not the answer. Only a stake reduction to £2—the maximum stake offered in all other high street adult premises—will prevent the machines causing harm.
Secondly, there is no evidence that bookmakers are serious about tackling problem gambling. The proposals are predicated on the notion that bookmakers want to
prevent problem gambling—but Professor Jim Orford estimates that more than 40% of the profits from FOBTs come from problem gamblers, and there is evidence that bookmakers are actually targeting deprived areas. For example, one chain was recently accused of targeting ethnic minorities, who are more vulnerable to gambling addiction, after the
Independent
revealed that 61% of its shops were in the 40 boroughs with the highest ethnic minority population.
Thirdly, the measures in the regulations will be extremely easy to circumvent. Reports from betting staff suggest that some operators are training staff to inform customers how they can play two FOBTs at the same time. This is particularly concerning for customers who have already identified themselves, and for those signed up to a loyalty card, as they will be accessing stakes of £200 a spin. Any rules around signing up for betting shop loyalty cards can be circumvented quite easily. In betting shops, customers are asked only for a name, a date of birth and an email address or mobile phone number. It is easy to fabricate the first two and create a bespoke email to receive the necessary code. That is all people need, and they can then carry on staking £100 a spin. As no checks are made, this is hardly a rigorous process that would deter likely problem gamblers, who may create many such accounts.
To stake more than £50, customers need to load cash remotely via staff intervention. For those who identify themselves at the counter, staff are suggesting that they are being trained to encourage debit card use. Bookmakers say that this will be more convenient for the customer—but it is also more dangerous, as debit card deposits can exceed a daily withdrawal limit from an ATM. This also allows gamblers to bypass the psychological check of actually putting cash into a machine, potentially making losses worse.
Fourthly, £50 is still far too high and unsafe. Fifty pounds per spin is still very large, allowing people to bet £150 per minute. It is significantly higher than the £2 maximum stake on all other UK machines and the roughly £2.20 EU average. Notably, the maximum permitted stake on gaming machines in Germany, Spain and Italy is less than £1. Fifty pounds per spin is not safe, and it is dangerous for the Government to imply this with their proposed measure. According to recent Responsible Gambling Trust research, 80% of those betting an average of £13.40 or more exhibited signs of problem gambling. Why are the Government not reducing the stake to at or below this level? So far, despite claiming they are taking a precautionary approach, the Government have failed to give a clear rationale.
Fifthly, requiring betting shop staff to police machine use will be dangerous and ineffective. The rise of single staffing in betting shops makes this measure all the more dangerous. The presence of automated FOBTs has led to staff cuts in betting shops, who are down from roughly 60,000 in 2009 to 52,000 in 2014, meaning that shops often have only one person working at a time. This fall in staff numbers comes despite the rise in the number of betting shops from 8,800 in 2010 to 9,000 in 2014. Asking staff to refuse to reload the cards of players who have just lost large sums has the potential to provoke already angry gamblers and lead to confrontation. There are also reports that staff are
currently incentivised to increase machine use, with this often linked to pay. This situation creates a very clear conflict of interests, reducing the likelihood of staff intervening.
Sixthly and finally, the Government are introducing a policy that will benefit bookmakers. Signing up more players to online accounts means that the operators can encourage customers to gamble on their new online platforms as well. This will improve profitability for the bookmakers even further.
The RGT research described loyalty card customers as a “more engaged” sample, and loyalty cards encourage this engagement with offers of free bets. Player tracking is therefore not intrinsically a means for protecting players and can in fact promote addiction.
These regulations will make the situation worse by allowing the Government to refrain from substantive restrictions on the maximum stake, and FOBTs will continue to operate at £100 per play, causing harm to vulnerable people in the most socially deprived areas of Britain. There is clear evidence to show that the public support restrictions on FOBTs. The YouGov survey showed that only 4% of the public would oppose a ban on FOBTs, with 58% of those who gamble more than once a month in favour of an all-out ban. The Gambling Commission has stated that in interpreting the available evidence it will take a precautionary approach, including where evidence is mixed or inconclusive.
The noble Lord, Lord Bourne, said:
“These measures are on track to start in April, and will, I think, make a real difference. The sensible thing to do now is to see how they bed in before thinking about further action. That is a fair and reasonable approach”.—[Official Report, 24/2/15; col. 1640.]
On the contrary, the stake should be reduced on a precautionary basis until there is evidence that it can be safely increased above the £2 level, and the onus should be put on the bookmakers to demonstrate that effective measures can be put in place before being allowed to offer games at above £2. After the general election, my party will do this if we are in a position to do so.
Lord Donoughue (Lab): My Lords, like the noble Lord, Lord Clement-Jones, I enjoy speaking after the person who spoke before me. There is no greater pleasure in this House than watching a Liberal Democrat spokesman in conflict with his representatives on the Front Bench. Sadly, that pleasure will shortly cease.
I had proposed to make a rather tediously long speech this evening. Fortunately, I shall break with the normal tradition of this House of repeating everything that has been said previously and instead say briefly that I agree with everything that the noble Lord, Lord Lipsey, said. He has described the situation fairly, impressively and comprehensively.
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On the racing right, I heard about that with interest in the Budget. It was one of 27 lollipops thrown to different parts of the community. I urge the Government to keep quiet about it henceforward. The racing and betting industries have previously had this kind of solution put up, which was legally unsustainable. I am not a lawyer, fortunately, so I cannot say that with confidence, but I can advise the Government that if
they read, for instance, the analysis of the racing right on the net, issued by Olswang, the country’s leading and best informed lawyers in the racing and betting world, they will see that there are many serious legal questions to be asked. Olswang concluded that it will not survive a legal test. Given our experience with bookmakers in the past, it will certainly experience that legal test.
This evening’s little operation here will fortunately end shortly. It is not very impressive, but everyone should read the speech of the noble Lord, Lord Lipsey, and they will learn the facts.
Baroness Golding (Lab): My Lords, I, too, agree with the noble Lord, Lord Lipsey. He said what many of us have considered saying in the past, but he has done it far more effectively. The number of people who enjoy playing these machines is considerable, and they do so sensibly.
I have friends who travel around the world and playing these machines is their pleasure. They start in the evening with a certain amount of money and they play and play until they have lost it. Sometimes it takes them all night and they are there until five o’clock in the morning but that is their pleasure and why should we stop them doing it? Some of my friends won 2,000 Australian dollars playing in Australia. They decided to leave the money there and go out to try to get rid of it by playing in the same way as they did before. It is their enjoyment and their holiday. The prospect of the poorest people in our communities putting £100 into a machine every 20 seconds is ludicrous. It is beyond belief that they would sit there doing that, losing money. That is absolutely nonsense.
If you are a problem gambler, you are a problem gambler. You will gamble wherever you can—not necessarily on machines, but up in the bedroom, playing online. We cannot stop people who want to gamble from gambling. If they enjoy it, why should we be stopping them?
Lord Dubs (Lab): My Lords, I was not going to say anything but I have been provoked into it by my noble friends behind me. I never thought that I would find myself in such disagreement with them and I regret that they have taken that position.
Of course there are problem gamblers, and of course it is hard for them. We have heard of people who have spent all their money and got into debt simply by gambling away all that they have. Surely there is a responsibility on the Government to at least encourage people who are inclined that way to bet moderately, and not give them the facilities to bet large amounts ever so quickly.
I am not against gambling as such. I remind my noble friend Lord Donoughue of the day that he and I went to a race meeting at Listowel Races in Ireland. We had a great time.
Lord Dubs: We had great craic. I was in the fortunate position that I was quite friendly with the then Irish Culture Minister quite some years ago—he is now dead, unfortunately. He was a very good judge of horses. For the first four or five races I put my money
on the same horses he did and I was well ahead of the game. I lost him for the last race or two and I contributed significantly to the Irish economy. The races were 25 minutes or half an hour apart; therefore, it was possible to be quite measured about it.
The problem is the speed with which one can lose large sums of money on these terminals. Why are so many local authorities appalled by this? Why is there is a wish to keep the maximum stakes down to £2? Surely not all these people are absolutely against any form of gambling, but the local authorities realise that it can get out of hand.
Initially there were two Lib Dem Ministers on the Front Bench; I am afraid that the arrival of the noble Baroness, Lady Williams, has rather spoilt my story. How was it that they pulled such a short straw to be sitting there, shortly before an election, advocating a case that is against their party’s policy? I cannot understand that. How were they persuaded to do this? The mind boggles. They are smiling now, of course, but they both at one point looked very unhappy about the position that they were in. Their faces revealed what they thought about the whole business. They did not agree with my noble friends, of course.
It is a sad moment that we are putting forward regulations that cannot do much good at best and will do harm at worst. I do not think that the change advocated by my noble friend on the Front Bench would mean the massive closure of betting shops; it would just get betting into a sensible proportion. That is all we are asking. We are not saying that there should not be gambling and betting. It can be fun, but it should not get totally out of hand; I believe that this proposal does that.
Lord Donoughue: Does my noble friend not also remember that at that Irish race meeting, when the Irish Minister for Racing—the late, great Joe Walsh—put his bets on, the bookmakers did not even give him a ticket, unlike my noble friend or me? When I asked the bookmaker later why he did not give Joe Walsh a ticket, he said, “You do not give an Irish Minister for Racing a betting ticket”. Does he not think it would be a great advance in this country if British politicians and Ministers were treated with the same respect at our racecourses?
Lord Dubs: I do not particularly disagree with my noble friend. I am tempted to go into all sorts of other anecdotes about our experiences together, but I had better not. I will just say this: when we were drinking some nice single malt whisky in a hotel in Brussels on one occasion, he accused me of being a Roundhead and said that he was a Cavalier. Does he remember that?
Lord Dubs: I am sorry that these regulations are being put forward. There is no need to do so in the dying embers of a Government. It will do harm; it will not do good. I very much regret what the Government are doing.
Baroness Jolly (LD): My Lords, I stand before you as a government spokesman but also as a Liberal Democrat. However, I shall not bore noble Lords with the diets of Liberal Democrat raffles, which is the extent of my gambling.
I thank the noble Lord for bringing this Motion of Regret before the House, allowing us to highlight the measures that we are bringing in to improve the protection of gaming machine players. Allow me to begin by re-emphasising that the Government understand the public concerns around fixed-odds betting terminals—FOBTs from now on—and consider the future of their regulation to be unresolved.
Gambling has long been positioned in public policy terms as a mainstream leisure activity. Most people who gamble do so in this context: they choose how much they will spend. This is how they choose to use their leisure time, as the noble Baroness, Lady Golding, said. Generally speaking, they have fun so doing, but it is important to remember that all gambling—not just machine gambling—can and does cause harm for some gamblers, their families, friends, communities and employers. That is why we have intervened to regulate it.
To that end, I now turn to the Motion,
“that the Gaming Machine (Circumstances of Use) (Amendment) Regulations 2015 do not appropriately address the problems of gambling addiction, and offer no significant protections for vulnerable people from getting into debt”.
In April 2014, the Government announced their intention to take precautionary action in this area, with measures for new gambling controls and protections on track to come into force next week. The regulations in question today are designed to reduce the amount of unsupervised cash gambling on so-called FOBTs. We are introducing these precautionary and proportionate measures based on the available evidence. In addition, we have supported, and continue to support, independent research in this area and continue to oversee a cultural change on social responsibility.
The noble Lord, Lord Collins, asked about the independence of the RGT, which commissioned the research. The RGT is an independent charity and the research was commissioned from an independent and reputable provider, NatCen, a leading not-for-profit social research organisation. He also asked whether or not the industry co-operated and provided the information which the RGT asked for. There was an unprecedented level of openness and co-operation from the operators; it is the first time that bookmakers’ data have been scrutinised by independent researchers and also the first time that there has been access to loyalty card gamblers. This has resulted in the largest sample of problem gamblers ever taken in Great Britain.
All players using these machines will be required to use account-based play or load cash over the counter, forcing an interaction, when they wish to stake over £50. Making staff interaction a compulsory component of high-staking machine play ensures greater opportunities for intervention where patterns of behaviour indicate that someone may be at risk of harm from their gambling. In addition, account-based play allows players access to up-to-date and accurate information in the form of activity statements and real-time information
about their session of play, which can help people maintain control. On that basis, we believe that these measures will help higher-staking customers benefit from more conscious decision-making, while increasing opportunities for interaction and intervention with appropriately trained staff, and therefore assisting customers to stay in control of their gambling behaviour.
Opponents of this measure call for a reduction in stakes on these machines to £2. We do not accept that this is justified or proportionate. The campaigners on this issue often fail to highlight two key points. The first is that problem gamblers usually gamble on a wide range of products. The idea that cutting the stake on one machine in one environment will somehow make problem gamblers see the error of their ways seems fanciful, as they are likely simply to take their business to the arcade or casino or online. The second is that not only do we find significant proportions of problem gamblers staking at lower levels but we find many of those staking at higher levels are doing so safely. The evidence points to a stake cut of this scale doing little to protect problem gamblers, and a lot to constrain the choice of normal leisure gamblers.
That is why we are pushing for better interventions that complement controls on the machines and the betting environment, with a greater focus on individual customers. The Government believe that this is a sensible approach that balances the commitment to reduce problem gambling and protect the vulnerable while, at the same time, protecting an enjoyable leisure activity for the vast majority of customers who visit bookmakers’ offices.
It is perhaps worth reminding ourselves that, in addition to these amending regulations, the bookmaking industry has itself made progress, with support from the Government and the Gambling Commission, to further assist gamblers who display signs of problematic behaviour. The betting industry introduced new measures, under its code of conduct from 1 March 2014, aimed at improving social responsibility measures towards problem gamblers.
The noble Lord, Lord Collins, asked about staff numbers. I will get back to him about these. I am sure that all noble Lords have briefings from the industry, but one thing that is included is training of staff in these measures.
While a step in the right direction, we support the Gambling Commission’s move to make the measures mandatory in its updated licence conditions and codes of practice—or LCCP—published in February 2015. We believe that the measures we are taking are sufficient to improve player protection on a precautionary basis. These moves, combined with the measures outlined in the Gambling Commission’s response following its consultation on the social responsibility provisions in its LCCP, are justified on this precautionary basis.
I should like to re-iterate that not only are the Government responsive to evidence that is produced concerning gambling-related harm but they have also made great steps in improving the quality of the available evidence through their positive engagement with industry. This remains an issue which I am sure all sides of the House treat with the utmost seriousness. Striking the right balance between protecting a leisure
activity and helping those who have fallen into harmful habits and preventing others from succumbing is the objective of all sides of the House.
I apologise to the noble Lord, Lord Collins, that I was without an official for the first eight minutes of this debate, but I will pick up on a few of the issues that he raised. The point that parts of the industry are now recommending that staff encourage people to play two machines at the same time and encourage the use of debit cards over cash causes alarm bells to ring, as far as I am concerned. Before we prorogue, I will write to the noble Lord to give clarification on that issue.
It is also worth mentioning to noble Lords that I am here today rather than the noble Lord, Lord Gardiner of Kimble, who should have taken the debate, because, unfortunately, he has a close family bereavement. I offered to do this and I was happy so to do.
Other areas of concern included single staffing. I take issue over the lack of evidence—there is a debate to be had about whether the RGT is independent, but many organisations are funded. For example, Drinkaware is funded by the drinks industry and it comes out with very hard-hitting reports as well.
I thank my noble friend Lord Clement-Jones for being robust, as ever.
I close by emphasising again the importance of taking these precautionary and appropriate measures based on the available evidence. As I said at the beginning of my speech, the Government consider the future of FOBT regulation to be unresolved. The next few weeks will see all parties articulate their view on this issue once Parliament dissolves and the election campaign plays out.
I thank noble Lords for their contributions. We all want to offer protection to those who are vulnerable. This SI was written after a consultation and any future Government will have the opportunity to assess its success at their earliest convenience and make the changes that they think appropriate.
I hope that I have covered satisfactorily all the questions put to me and that the noble Lord will be sufficiently reassured to withdraw the Motion.
Lord Lipsey: I do not think that the noble Baroness has answered the question about the long delay raised by the House’s committee on secondary legislation.
Baroness Jolly: I do not have that information, but I am happy to write to the noble Lord to let him know the reason for the long delay.
Lord Collins of Highbury: I, too, thank noble Lords for this debate. It has been really important to raise these issues again. The concern is not just in this Chamber; it is in our communities. Nor is the concern just among people who do not gamble; the concern is among people who want to use their local betting shop as a community resource but are fearful of what they are turning into. That is the problem.
Of course, it is not just about activity on these machines in relation to problem gambling; it is about the way that they can be used and the pressures that this puts on staff. For the sake of clarity, I think that all noble Lords who have contributed to the debate have shared one absolute, common concern—that these machines are potentially dangerous and that we should have a precautionary approach.
The actions of the Government have been, in my noble friend’s words, too little, too late. I think that I said that if there is one thing worse than inaction, it is the pretence of action. Not for the first time, my noble friend Lord Lipsey and I agree on the fundamental issues, even if we occasionally disagree on other issues. As a co-signatory of the amendment that supported the horserace betting levy, I was very keen to ensure that the consultation on its future was full and frank.
I agree with my noble friend that it was wrong for the Chancellor to prejudge issues to make short-term political gain, but I fear that that is a problem with the coalition as we have it at the moment. When Labour is returned to government on 7 May, our focus will be on giving control to local communities to determine what is safe in their own areas. In the light of the comments I have made, I beg leave to withdraw the Motion.