12 Mar 2012 : Column 1

House of Lords

Monday, 12 March 2012

2.30 pm

Prayers-read by the Lord Bishop of Newcastle.

Death of a Member: Lord Wedderburn of Charlton

Announcement

2.36 pm

The Lord Speaker (Baroness D'Souza): My Lords, I regret to inform the House of the death of the noble Lord, Lord Wedderburn of Charlton, on 9 March. On behalf of the House, I extend our deep condolences to the noble Lord's family and friends.

EU: Economic and Financial Issues

Question

2.36 pm

Asked by Lord Dykes

The Commercial Secretary to the Treasury (Lord Sassoon): My Lords, the Government hold high-level talks with all our European Union partners on economic and financial issues at the regular European Union Economic and Financial Affairs Councils. The next Economic and Financial Affairs Council-ECOFIN-is taking place tomorrow, Tuesday 13 March.

Lord Dykes: I thank my noble friend for that Answer and wish him well for that meeting. Can he explain carefully to the House why, since we had achieved-with some skill-all our objectives on the innovation, investment and growth programme of the EU at the recent meeting of all the member states, we did not therefore show solidarity by signing the fiscal compact treaty as well, alongside every other member apart from the Czech Republic?

Lord Sassoon: My Lords, the fiscal compact intergovernmental treaty was discussed at the European Council on 8 and 9 December. As has been discussed on a significant number of occasions, the UK did not get the safeguards it was looking for and is not a party to that treaty, which is why we did not sign it in the fringes of the European Council on 1 and 2 March.

Lord Barnett:My Lords, will the noble Lord accept my congratulations to the Government on following the previous Government's agreement not to join the euro? Nevertheless, would it not be as well to admit that because of that, unfortunately, the whole question of the survival of the euro is discussed mainly among eurozone Finance Ministers? Why will he not admit it?

Lord Sassoon: Well, I have not been asked the question in those terms before. It is for the eurozone members to bear the brunt of sorting out the eurozone. That is exactly what they are getting on with doing, which is why we welcome the fiscal compact intergovernmental treaty as a necessary step towards the remorseless logic that with currency union comes much closer fiscal union. We keep close to it. Meanwhile, we are working with many like-minded states on an ambitious pro-growth agenda, which is what Europe also desperately needs.

Lord Newby: My Lords, the noble Lord mentioned ECOFIN, but tonight there is a meeting of the 17 Finance Ministers of the eurozone. Will the UK be represented at that meeting, which is discussing the size of the firewall, and if so, what line will it be taking?

Lord Sassoon: No, my Lords; the UK will not be represented at the euro group meeting later today because we are not in the euro group. On the other hand, there will be a debrief of Ministers before the formal ECOFIN starts at breakfast time tomorrow.



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Lord Tomlinson: The Minister referred in reply to the original Question to the failure to satisfy all our negotiating points. Is he yet in a position to share with the House what specifically were the negotiating objectives and which ones in particular are not satisfied by the financial compact?

Lord Sassoon: My Lords, I really cannot add anything to the previous discussions we have had on a number of occasions. It is nice to have the question asked by a different noble Lord this time, but I cannot add anything to what has been said before.

Lord Lawson of Blaby: My Lords, reverting to the original Question, would it not be extraordinarily hypocritical and rather puzzling to the British people if we were to sign a fiscal compact to which we had not the slightest intention of being party?

Lord Sassoon: Absolutely. I completely agree with my noble friend.

Lord Eatwell: My Lords, a Written Ministerial Statement was issued earlier today about the ECOFIN meeting in which it was argued with respect to the financial transaction tax that,

No evidence is provided for that statement. Perhaps the noble Lord can tell us what is the negative impact on jobs and growth of the current stamp duty on share transactions?

Lord Sassoon: I believe that the effect of UK stamp duty on jobs and growth is negligible. The European Commission conducted its own assessment of the effect of the financial transaction tax, which is what I think is relevant, and the numbers that have been produced by others indicate the range of negative impacts. We think that it makes no sense to introduce a financial transaction tax on the basis of Europe going it alone without the rest of the world being there.

Lord Hannay of Chiswick: My Lords, I am delighted that the Minister has tired of the Kabuki play in which he and I have been indulging for some weeks, and I will not continue that now-

Noble Lords: Hear, hear!

Lord Hannay of Chiswick: That seems to be popular in an unusual quarter of the House. Can the Minister perhaps tell us how, the previous strategy having failed on 9 December, the Government will set about protecting Britain's national interests in the area of financial regulation in the current situation in which those proposals are as dead as a dodo?

Lord Sassoon: My Lords, the strategy did not fail on 8 and 9 December. We did not sign up to a treaty which it would have been wholly wrong for the UK to sign up to on the terms that were offered. What is happening now and is very positive is that we are working with a significant number of like-minded countries to drive forward the growth agenda. My right honourable friend the Prime Minister was one of 12 Heads of Government who signed up to a letter

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very much led by us. We have regular meetings with 16 like-minded countries to define and drive forward the pro-growth agenda.

Lord Peston: My Lords, perhaps the Minister will enlighten us on one thing. Given that the Liberal Democrats are traditionally Europhiles and the Tory party is at present packed in both Houses with Europhobes, how can we get a rational approach to anything to do with the European economy at all?

Lord Sassoon: My Lords, I believe that the coalition is driving forward our agenda on Europe with great coherence. As I have explained, the UK is leading the way not just on the single market and competitiveness issues but issues including Iran, Burma and many other areas on which we are very much at the forefront and lined up with many of our European partners.

Lord Pearson of Rannoch: My Lords, when will our estranged political class understand that the euro's problems are embedded in its construction and cannot be cured by throwing yet more money and sticking plaster at the problems of Greece and others?

Lord Sassoon: My Lords, as I have already said, there is a remorseless logic that has to take monetary union towards closer fiscal co-ordination, if not union. That is what the latest intergovernmental agreement is one step towards.

Baroness Farrington of Ribbleton: My Lords, why did the Minister not answer at all my noble friend Lord Tomlinson's question?

Lord Sassoon: My Lords, I believe that I did.

Police and Crime Panels

Question

2.44 pm

Asked by Baroness Henig

The Minister of State, Home Office (Lord Henley): My Lords, we are committed to funding police and crime panels to do the job set out for them in the Police Reform and Social Responsibility Act. We will be providing annual funding of £53,300 per panel as well as an additional £920 per panel member per annum for expenses.

Baroness Henig: I thank the Minister very much for his response. One of the few things we all agreed on when the police and social responsibility Bill was before the House was the need for these panels to be strong and to operate as effectively as possible under the new governance arrangements for the policing landscape. Does the Minister not agree that these panels will want to meet regularly, probably at least once every other month; that they will have extensive legal and financial needs; that they will need good financial and legal advice; that they will certainly have extensive training requirements in the first year to enable them to operate effectively and cohesively; and

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that, therefore, the sums he mentioned are totally inadequate to get these panels operating as we would like in the first year?

Lord Henley: My Lords, I do not agree with the noble Baroness at all. As the Bill went through, we made the function of the panels quite clear: it should be that of a light-touch approach. We then announced how much money would be available for them, which was £38,300 per year each. We have reviewed that figure in the light of various amendments made to the Bill, particularly some that originated this House. The figure, as I have just announced, has been increased to £53,300. We think that that is enough for the panels to do their job. The noble Baroness ought to remember that these panels are not replacing police authorities; their job is to review the actions of police and crime commissioners.

Lord Imbert: In the light of those who have said that they will now put themselves forward as police and crime commissioners, are the Minister and the Government content that they will not bring party politics to bear on policing operational decisions?

Lord Henley: My Lords, I am sure that politics will not come into this, but there will be some people who will stand under party colours. However, that does not mean they will necessarily bring politics into this matter. The noble Lord is going slightly wide of the Question, which is about the panels. The important point is to differentiate the job of the police and crime panels from that of the police and crime commissioner.

Baroness Hamwee: My Lords, even with a light touch, the panels will have to get to grips with a lot of paperwork and information, and undertake a lot of discussion in order to carry out their job of scrutiny properly. If the amount that is to be provided is insufficient, will members be expected to look to their own stretched local authorities for professional and technical back-up?

Lord Henley: My Lords, as I said in answer to the first supplementary question, we have increased by some 40 per cent the amount available to the panels in the light of discussions and thoughts we have had following the passage of the Bill. We believe that it will be sufficient. If individual local authorities wish to spend more, it will be for those authorities to make that decision themselves.

Lord Hunt of Kings Heath: My Lords, the noble Lord will be aware that the police and crime panels are the only check and balance on the potential politicisation of our police forces through elected police commissioners. This is not wide of the Question. Will he respond to reports that Mr Kit Malthouse sought to interfere in the Metropolitan Police's actions in investigating phone hacking? That is but one example of the risk to this new system, in which the police and crime panels are the only defence but the Government are not going to fund them properly.

Lord Henley: My Lords, I have made it quite clear that we are going to fund the panels properly. I am not going to respond to the specific allegation made by the

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noble Lord, but if necessary-if I think it appropriate-I will write to him. What I am making clear is that we think we are providing appropriate funding for the panels to do the job that was set out in the police Bill last year. We think that they can do that because their job is to look at what the PCCs are doing.

Lord Harris of Haringey: My Lords, the experience in London is that so far the only information to have emerged from the Mayor's Office for Policing and Crime, which is a surrogate police and crime commissioner, is a series of listed decisions on the website. How on earth is a police and crime panel outside London going to get to grips with the detail underlying that and the issues determined by the police and crime commissioner, with money that is insufficient to employ more than one or two people in support of busy local authority councillors who will have many other roles in addition to that on the panel?

Lord Henley: My Lords, I think that the noble Lord misunderstands-dare I say it?-how local authorities work. Obviously, the funding will be available to provide for some staffing to assist that panel, but within that local authority there will be other officers doing other jobs who will also be able to assist in that role. That does not require the extra funding that he described. However much money the Government offered, no doubt he and others would say that it was inadequate. We made an announcement on how much it would be. Having reviewed it, we have since increased it. We think that it will be sufficient.

Energy: Voltage Optimisation

Question

2.50 pm

Asked by Baroness Worthington

The Parliamentary Under-Secretary of State, Department of Energy and Climate Change (Lord Marland): My Lords, energy efficiency is the cheapest way of cutting emissions and cutting bills for customers. My department launched the Energy Efficiency Deployment Office, EEDO, earlier this year to drive energy efficiency across the UK economy. EEDO will build on our existing policies, which are already encouraging the uptake of energy efficiency measures such as voltage optimisation.

Baroness Worthington: My Lords, I thank the Minister for his response. However, is he aware that voltage optimisation is not receiving all the support that it is due because of its exclusion from the energy efficiency rating system of buildings, known as SAP? This effectively excludes it from many policies that support energy efficiency and is an example of how we adopt an extraordinarily bureaucratic approach to energy efficiency, which is hampering innovation in this area. I hope that he will pledge to do all he can to remedy the situation so that voltage optimisation receives the support that it deserves.



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Lord Marland: It may be of assistance to noble Lords, although science is not my strong suit, if I explain what voltage optimisation is.

Noble Lords: Hear, hear!

Lord Marland: I am glad that that finds favour with your Lordships. As on a previous occasion, I am grateful to Wikipedia for supplying this valuable information. It states:

"Voltage optimisation is an electrical energy saving technique which is installed in series with the mains electricity supply to give an optimum supply voltage for the site's equipment"-

in other words, as has been done in No. 10, to which the noble Baroness rightly pointed, and in our department, where we have put in this optimisation technique for reducing our own electricity demand. Therefore, it is very worthy of consideration. The problem with it is that it does not have a universal remit and is not necessarily applicable for domestic use. However, we would certainly encourage all commercial property to use it.

Lord Redesdale: My Lords, will the Minister also encourage the development and use of direct-current ring mains in office buildings? This would mean that transformers could be done away with and inverters placed on the tops of buildings to be air-cooled, which would dramatically reduce the amount of energy. The problem with all new technologies is making sure that they meet the energy ratings. I hope that EEDO will look at this, because the department has an obligation under the Climate Change Act 2008 to bring down the amount of emissions coming from the built environment; last year, they went up.

Lord Marland: This is already turning into a very technical Question. My noble friend asks a very relevant question: how can we aggregate electricity usage and reduce it by a central technique? That is what the eco-design directive from the EU is encouraging. It is looking at this as an efficiency measure as we speak and I am hopeful that the outcome will be positive.

Lord West of Spithead: My Lords, some 255 years ago today, we shot an admiral to encourage the others. Does the Minister believe that we could perhaps come up with some more exciting incentives to make people take energy efficiency more seriously?

Lord Marland: I am tempted to shoot an admiral every now and then, although not of course the noble Lord, who has distinguished service. This is all part of the Government's policy. I shall not rehearse all our marvellous policies at the moment-I am not saying that shooting the admiral is part of the Government's policy-but clearly the Green Deal is part of them. We reduce demand on electricity and energy by not using it, and we have to find ways of not using it and educate people so to do. That is the only way out of these spiralling upward prices.

Lord Tanlaw: My Lords, is not the simplest way to save electricity to incorporate daylight saving into the Government's policies?



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Lord Marland: I am really enjoying this Question Time.

Lord Broers: I congratulate the Minister on his reply, which is accurate-Wikipedia generally is. Admirals might be electrocuted as well as shot if they do not understand some of these problems clearly. This is a very complex subject with many factors, including the cost of retrofitting a lot of equipment. I looked at some of the data over the weekend and it struck me that the experiment that is being carried out in No. 10 might be quite useful. Can the Minister tell me what efficiency gain No. 10 got and how much it cost?

Lord Marland: This is the first question I have been asked. The overall reduction in energy consumption and carbon reduction in No. 10 was 10 per cent. That was in line with government demand. I can tell the noble Lord that we achieved 13.8 per cent over government, but I am afraid I cannot answer his question about specific costs. I shall be happy to write to him on that subject.

Baroness McIntosh of Hudnall: My Lords, the Minister said that he was no scientist and I have to say that I share that with him; I am certainly no scientist. However, I fail to understand his answer to the noble Baroness, Lady Worthington. Is or is not the voltage optimisation scheme that she is recommending part of the energy reduction that the Government are trying to promote?

Lord Marland: The Government are not here to take on all sorts of design that come in, although we are obviously keen to promote any reduction in electricity demand or supply, particularly in demand-and voltage optimisation is one such thing. It is already in existence. We have led by example, as I have indicated, in our department and No. 10. We encourage all people to look at it on a commercial basis because it saves on electricity demand. I hope that that answers the noble Baroness's question. I repeat for her benefit that I am not entirely clear whether it is of benefit in domestic situations. I have asked my department to organise a workshop on the Green Deal in the next month to study it carefully.

Lord Brooke of Sutton Mandeville: My Lords, is my noble friend aware that in 1757, after the unfortunate death of Byng, a French admiral wrote to Voltaire and said that in similar circumstances he would have done exactly the same thing as Byng. I hope that my noble friend is pleased to have French support in these matters.

Lord Marland: I am sure I echo the sentiments of the House when I say that to have French support for anything is rather unusual but extremely valuable. I thank my noble friend very much.

Baroness Smith of Basildon: My Lords, I share with the noble Lord the fact that I am not quite scientific either. However, notwithstanding Wikipedia, all we are talking about is being as conscientious about energy efficiency coming into a building as we are about using energy in the building or losing it through poor insulation. The noble Lord has made several references to the Green Deal. Is he aware that currently voltage optimisation

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us not eligible under the Green Deal for commercial or domestic buildings? When he holds his workshop it would be helpful if he could look at changing the rules of the Green Deal. DECC has saved £19,000 a year on its energy bills, and many businesses would find that advantageous.

Lord Marland: I am grateful to the noble Baroness, as always, for her support on the Green Deal and for the work that she has carried out on it. As I said, the reason for the workshop is to look very carefully at the issue to see whether it can form part of the Green Deal. When we have come to our conclusions, I will be very happy to share them with her and with the noble Baroness, Lady Worthington.

Patrick Finucane

Question

2.59 pm

Asked by Lord Dubs

Lord Shutt of Greetland: My Lords, the Government believe that the independent review done by Sir Desmond de Silva QC will be the quickest and most effective way of revealing the truth and answering the Finucane family's questions about what happened to Pat Finucane. The British and Irish Governments continue to work together on a wide range of issues of mutual interest-for example, the economy, commemorations and security matters.

Lord Dubs: My Lords, does the Minister agree that demands for a full inquiry into the murder of Pat Finucane have been going on for years? They have come from the United Nations, the European Court of Human Rights, the Dáil, the Irish Government, the US Senate and the House of Representatives. Will he confirm that on 11 October last year at a meeting in No. 10 Downing Street with the Finucane family and their lawyers, the Prime Minister confirmed that he accepted that there has been collusion in the murder of Pat Finucane? Will the Government not accept that they will soon run out of excuses and that until there is a full inquiry into this tragic murder, the world will think that the British Government have something to hide?

Lord Shutt of Greetland: My Lords, first, I commend the noble Lord, Lord Dubs, in his efforts to celebrate British-Irish relations in the St Patrick's Day gala reception that will take place later today.

On the noble Lord's question, yes, many people have an appetite for an inquiry, but we have to accept that there are two features about inquiries: first, the enormous cost; and, secondly, the enormous delay. Indeed, were an inquiry to have been commenced and were it to take as long as the Bloody Sunday inquiry, it would be 2023 before we might expect a result, which in itself is 34 years after the very sad death of Pat

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Finucane. Certainly, I can confirm what the Prime Minister said in Downing Street, but Sir Desmond de Silva has been appointed to do his independent review. He has been on the job for five months and we are to expect a report-he has eight months to go.

Lord Alderdice: My Lords, it is important for us to address very tragic and, in the past, worrying individual incidents, such as the horrible murder of Pat Finucane. However, my noble friend agree that instead of encouraging individual families to deal with individual incidents now that it is well over a decade and a half since the Troubles came to a close, we should increasingly try to find ways in which the community as a whole in Ireland, north and south, and the many thousands of individuals who have suffered bereavement and trauma-and, as is evidenced, a generation of young people growing up with trans-generational effects on them because of the experience of the previous generation-should be our focus for attention and for the limited resources that can be made available to deal with the trauma of the Troubles?

Lord Shutt of Greetland: My Lords, I agree with my noble friend that it is important to look at the many. The Historical Enquiries Team, a devolved matter dealt with by the Police Service for Northern Ireland, was set up in September 2005 to investigate some 3,259 unsolved deaths. To date the team has looked into 2,423, which is three-quarters of the deaths on which the team has either done the job or is getting on with the job at present. Clearly, that is very important work. Yes, there is more important work to be done, and work continues to be done in discussions between the Secretary of State and the devolved Assembly.

Lord Empey: My Lords, I met the Finucane family to discuss their call for an inquiry into Mr Pat Finucane's outrageous death. The family told me that they had no intention of accepting an inquiry held under the 2005 legislation, even though other inquiries promised at the Weston Park negotiations were in part held under that legislation. Will the Minister confirm that government policy remains that there will be no more open-ended and expensive inquiries? If he cannot confirm this, I must call upon him to initiate inquiries into the tragedies at the La Mon House Hotel, the Kingsmill massacre, Omagh, and many more.

Lord Shutt of Greetland: My Lords, it is indeed the Government's position that we should not go in for further lengthy, costly inquiries. We want to see this work continued, as I mentioned to my noble friend, with the Historical Enquiries Team and with other work that can proceed.

Baroness Smith of Basildon: But my Lords, I am not aware that in the case of Pat Finucane anybody has been asking for an open-ended, expensive inquiry along the lines of the Bloody Sunday inquiry that the Minister mentioned. Noble Lords will recall that the agreement between the British and Irish Governments at Weston Park had commitments from both Governments as part of a package of measures to implement the Good Friday agreement, including on

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inquiries and other matters such as police and security. In that agreement, a decision was taken to appoint a judge of international standing from outside both jurisdictions to undertake a thorough investigation of allegations of collusion in a number of murders, including that of Pat Finucane. This was not a stand-alone inquiry but part of a package of measures agreed by the British and Irish Governments, on which the Irish Government have fulfilled their part, while the British Government have pulled back on just one of the inquiries, having had the other. Does the Minister understand how this impacts on trust between the two Governments, given that agreement made in 2001 between them? I appreciate that he may be constrained in his response, given that there is a judicial review on this decision at the moment, but it also gives the Government a breathing space in which to think again. I urge the Minister to take that space and do so.

Lord Shutt of Greetland: The response I would make to the noble Baroness is that there was an agreement in 2001, and we had got to 2010 and nothing had happened. We had a Government in office who had had nine years, and it was not possible: the noble Lord, Lord Empey, referred to what the family was willing to accept, and so forth. When the new Government came in, one of the first things that the new Secretary of State did was to meet the family and discuss things, then eventually to come to a view on whether there is another way forward. As I indicated, Sir Desmond de Silva has been at work now for five months; let him finish the task.

Health and Social Care Bill

Private Notice Question

3.07 pm

Asked By Baroness Royall of Blaisdon

Baroness Royall of Blaisdon: My Lords, I beg leave to ask a Question of which I have given private notice.

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, the tribunal has agreed that the department should not publish its strategic risk register but has upheld the Information Commissioner's initial decision notice on the transition risk register. However, we await the full judgment, which will contain the detailed reasoning for the decision. This makes it extremely difficult to make a decision on whether the Government wish to appeal this decision. I hope very much that the tribunal will give its full judgment as soon as possible.

Baroness Royall of Blaisdon: My Lords, the primary purpose of this House is to scrutinise and improve legislation. I know that the Minister would agree with me on that. In the next 10 days, Parliament has to

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make critical decisions about the future of the National Health Service. Without the information in the risk register or the transitional risk register, Parliament will be less well informed than it otherwise would be. The information tribunal last week instructed the Government to release the transitional risk register immediately, as I understand it, because the Bill is still under consideration. Why are the Government therefore preventing Parliament from having the best possible information on the NHS so that it can make the best possible decisions about the NHS?

Earl Howe: My Lords, many of the risks associated with the Government's reform programme, as the noble Baroness knows, have already been extensively aired-not least in the impact assessment, in my statement of 28 November last and, indeed, in the whole passage of this Bill-but I fully recognise the concern that we should respond swiftly to the tribunal's decision. We are making every effort to update noble Lords on our intention as soon as we possibly can. However, as I have always said, this is not a decision for the department alone and any way forward has to be agreed and signed off across Government. I cannot make a decision without agreeing it with my fellow Ministers in other departments and I am sure noble Lords will appreciate that we have only just received the tribunal's decision.

Lord Falconer of Thoroton: My Lords, I am dismayed by the Minister's answer. Surely it must be the case that Parliament would be assisted by seeing the objective assessment of what the risks are to the National Health Service from the Bill becoming law. I understand that he is saying that the Government have already said what many of them are, but if that is the case then what is the harm in disclosing the list of risks that the objective assessment by civil servants gives of the introduction of the Bill? Surely Parliament would be assisted by having as much information as possible. It cannot be the fault of the information tribunal that we are getting no answer at all from the Department of Health.

Earl Howe: My Lords, no Government have routinely made risk registers available. This is a matter of principle. It is not just that the issues associated with the Health and Social Care Bill have been extensively aired-as I said, they have been-but it is a point of principle whether a risk register that is integral to the formulation of policy should be published.

The tribunal agreed with our assertion that the strategic risk register should not be published but disagreed when it came to the transition risk register. Our difficulty is that the case that we made for both documents, which are of a similar structure and have similar content, was based on essentially the same arguments, which makes it extremely difficult to make a decision on whether or not to appeal the decision. I hope, as I say, that the tribunal will give its reasons for the judgment as soon as possible so that we can determine the right way forward.

Lord Harris of Haringey: My Lords, surely this is not about the routine publication of risk registers but about the publication of a risk register for a specific

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Bill in front of your Lordships' House and Parliament that is causing extreme concern in the country. Why is it not possible on an exceptional basis? I believe that no less a person than Simon Hughes-if such a thing were possible-has advocated to the Government that the risk register should be put into the public domain so that Parliament can look at the implications properly.

Earl Howe: My Lords, I beg to differ with the noble Lord; this is an issue about routine release. I think I am right in saying that the department has received several dozen requests to release the risk register. If this were to become routine, as some people appear to wish it to become, policy formulation in any department would become virtually impossible.

Lord Deben: Does my noble friend agree that a number of the laws passed by the previous Government were also controversial? Can he point to occasions on which the risk register was released in those circumstances?

Earl Howe: I am grateful to my noble friend because I do not believe that there were any. The Opposition sometimes point to the risk register relating to the third runway at Heathrow, but the key difference with that was that it was to do with policy implementation rather than policy formulation. Once you know what you want to do, there are risks associated with rolling a policy out. It is a very different matter when civil servants wish to have safe space to think the unthinkable and then advise Ministers.

Lord Campbell-Savours: Does the Minister intend to delay the Third Reading of the Bill?

Earl Howe: We have a Motion before us in the name of the noble Lord, Lord Owen. That question will be addressed then.

Lord Hughes of Woodside: My Lords, the Minister said that the details of the risks had been well canvassed in this House. If that is the case then in the absence of proper information, with the best will in the world, the discussions must be based on hearsay. That cannot be the right way to go about discussing business.

Earl Howe: My Lords, I think back to numerous debates that we have had in this House, which of course are recorded in Hansard. Many of the risks that I articulated on 28 November last have been gone through by your Lordships almost ad nauseam.

Lord Marks of Henley-on-Thames: What steps have been taken to draw to the attention of the tribunal the urgency of receiving the reasons for this decision, bearing in mind the imminence of Third Reading?

Earl Howe: I have personally seen to it that the tribunal has been made aware of the urgency of releasing its reasons, and it has acknowledged that urgency.

Lord Grocott: Presumably, part of the need for urgency is the Government's scheduling of the Third Reading of the Bill. I know that we are close to the

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end of an unprecedentedly long Session of Parliament but it would be an intolerable situation if the information were finally published after the Bill had become an Act and the information were then judged to have been such that many Members who had voted in favour of Third Reading would regret it within weeks. Surely the very least that the Government could do is to postpone the Third Reading debate until the last possible date before the end of the Session.

Earl Howe: My Lords, I am the first to acknowledge the concern among noble Lords to be fully and properly informed about the risks associated with the Health and Social Care Bill. As I say, we have done as much as we can to implement that intent without transgressing what we still see as a point of principle regarding risk registers. My answer to the noble Lord is that I do not believe it is necessary to postpone Third Reading but we clearly have to debate the Motion in the name of the noble Lord, Lord Owen. At that point, the House will decide whether it is content to give the Bill further consideration.

Lord Peston: Can we go back to first principles, which the noble Earl raised? I speak as someone who has been an adviser. Is he saying that officials would not give their honest view of the risks that policies might incur if their advice was made public? If you believe in open government-certainly, if you believe as an official that your duty is to advise Ministers as best you can and, therefore, you will outline the risks-is that not altogether a good thing? It is not a principle that the Government ought to espouse, rather than say that they do not want to go down that path?

Earl Howe: My Lords, civil servants may not wish to put in jeopardy a policy that they are working on by using language that could be-indeed, is certain to be-misinterpreted or sensationalised, or that could cause embarrassment if exposed to the public gaze. Without full candour, risk registers across government would become bland and anodyne. Effectively, they would cease to be of practical value. That is the fear that has been expressed across government.

Localism Act 2011 (Consequential Amendments) Order 2012

Parish Councils (General Power of Competence) (Prescribed Conditions) Order 2012

Motions to Refer to Grand Committee

3.17 pm

Moved by Baroness Hanham

Motions agreed.



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Insolvency Act 1986 (Disqualification from Parliament) Order 2012

Motion to Refer to Grand Committee

3.17 pm

Moved by Lord Shutt of Greetland

Motion agreed.

Protection of Freedoms Bill

Protection of Freedoms Bill
20th Report from the Constitution Committee

Third Reading

3.18 pm

Baroness Anelay of St Johns: My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Bill, has consented to place her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.

Clause 38 : Judicial approval for directed surveillance and covert human intelligence sources

Amendment 1

Moved by Lord Selsdon

1: Clause 38, page 33, line 41, at end insert-

"32C Evidence gathered by non-public bodies using directed surveillance and covert human intelligence sources

Public bodies shall not adopt for the purpose of a prosecution evidence of offences which attract a maximum custodial sentence of six months or less gathered by non-public bodies using directed surveillance or covert human intelligence sources."

Lord Selsdon: My Lords, Amendment 1 is grouped on its own. As I am on my own, I will wait for the House to evacuate before I continue.

The amendment follows on from the Private Member's Bill which I introduced into your Lordships' House and which was passed, which said that people should not be able to go into other people's homes and property without permission or a court order. At that time we also looked at loitering and the nervousness that was caused by people loitering outside properties, surveillance by television cameras, observance from afar and spying in general, but that was left out.

When we recently dealt with the Bill in Grand Committee, it was suggested to me that certain other areas needed to be dealt with. One related to the amendments to RIPA proposed in the Protection of Freedoms Bill which are designed to address the concern about the use of RIPA powers by public authorities to investigate minor offences. The Minister-the noble Lord, Lord Henley, whom I sometimes regard as being a little bit like "Stonewall" Jackson or Cool Hand Luke, who plays a bat and will not let things go past him-confirmed at that time that he accepted the proposals in the Bill would ban the use of covert

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surveillance by public bodies to gather evidence of non-serious offences and should be amended to ensure that those public bodies could not then get round the law by adopting evidence obtained by covert means by third parties.

When I introduced an amendment to deal with this loophole in Committee on 13 December, I was encouraged at the time by the words of my noble friend Lord Henley, who agreed to look at this issue to,

He has not come forward with any suitable change, but I gather that he has it still in the back of his mind. The great thing with my noble friend is to take things from the back of the mind and try to get them as near the front as possible.

It seems that my amendment was what the "pros" call too widely drawn. When it was suggested that I put down another one, I went, as always, to the Public Bill Office. I learnt that you do not put down amendments at Third Reading unless you can demonstrate that the Minister had undertaken to do something and had not done it. I had forgotten about that. We checked the matter very carefully and this amendment was the result. I hope that it can be accepted.

I would like to ask my noble friend about other issues that I raised in Committee. I asked whether, since we had the Powers of Entry Bill, he would be kind enough to take the 1,200 powers of entry that we had identified, print them and put them in the Library. He said that that was not necessary because everything could be done electronically. I have a slight conflict of interest here in that, as a member of the Information Committee, I can tell noble Lords that half your Lordships are not electronically enabled, if that is the phrase. Therefore, they like to think back to:

"Abstract nouns in -io call

Feminina one and all;

Masculine will only be

Things that you can touch or see".

Your Lordships like to feel pieces of paper from time to time. Therefore, I asked my noble friend whether he would agree to put the list of powers of entry in the Library. He said that he might think about it.

Other matters came up. One of the difficulties with Private Members' Bills is that Ministers are here today, gone tomorrow and back the next day. A code of conduct was proposed. The Minister said that the Bill would induce a code of conduct. I asked him why it could not be stated. I do not think that he said he would think about that. I understand fully that matters such as powers of entry were tacked on to the Protection of Freedoms Bill. However, some aspects of it seem to me that they might even reduce people's freedom. We should debate this matter further. I beg to move.

Lord Marlesford: My Lords, I strongly support my noble friend. He is absolutely right to bring back points that have not been answered by the Home Office. The purpose of Parliament in general and your Lordships' House in particular is to scrutinise legislation and ask questions-and to ask for answers to questions. It is the obligation of the Government to come back with suitable answers that give details as to why particular

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proposals should not be agreed, rather than to give just a blanket refusal. I am very glad that your Lordships' House decided to pass my amendment that is now part of Clause 40 and that we now have a much better understanding of the need to constrain powers of entry.

However, my noble friend referred to RIPA, which extended the powers of the police to enter without warrant. That is probably justified in terrorist matters. I accepted that, which is why, in my amendment that the House has accepted, I excluded from the need to have a warrant those powers that RIPA had recently given to the police under subsection (5)(b). On the other hand, it is important that we should be absolutely clear and precise on the extent to which powers of entry or surveillance are used. It is not at all desirable that general powers of surveillance, particularly by non-government bodies, could be used to provide evidence, because the way in which the surveillance is constructed is quite likely not to have been properly supervised and defined.

We must realise that the object of the Bill is to extend the freedoms of this country. It is high time to do that, and I therefore hope the Minister will give a good reply to my noble friend, particularly on the code of conduct, and publish-more clearly than the information that has been published only on computers-the huge list of existing powers of entry.

The Earl of Erroll: My Lords, I should like to make two brief points. The first arises from something I have noticed in the way that we run our procedures, which has changed a lot over the many years I have been here. In the old days, matters often used to be pushed at Committee stage to decide in principle whether we wanted to change something; it was then tidied up on Report; and very little was therefore done at Third Reading. Unfortunately, because nothing is now pushed in Committee, it is pushed first on Report; and we are therefore relying more and more on the Minister or someone else tidying up or fulfilling an obligation at Third Reading. That is much later than used to be the case. We have a rod with which we are beating our own back. We see this happen to other Bills on which we have Committee-style debates on Report, which in reality should be an occasion for tidying up what we have pushed through in Committee. I highly recommend that we return to our old procedure, and we might then spend less time debating some of the other Bills that are going through interminably and tediously.

Secondly, the amendment is fair and it is right that it has been brought forward. It is an interesting and probably good amendment, because it will discourage local authorities or other bodies from doing one of the things that all these provisions were rightly introduced in the Bill by the Government to tackle-to discourage these bodies from using strong powers in order to enforce what we consider to be trivial offences by members of the general public. The amendment is a good generic way of dealing with the problem in principle. It is a sensible amendment that should be passed.

I should add as a minor point that we are watching the same thing happen as regards the power to fine people for littering. The other morning, I heard how a

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lady in her 70s was fined £80, or whatever the statutory amount is, because a thread fell out of her glove on to the ground. I listened to the local authority trying to defend its action-a thread is not meant to be on the ground and is therefore defined as litter. The case was quite horrific, and I can see exactly the same problem happening in similar cases. I therefore hope that this Government will continue to do what they have done in the Bill. They have made a good first move as regards giving citizens back some rights in certain other areas. This amendment helps in the right direction.

3.30 pm

The Minister of State, Home Office (Lord Henley): My Lords, I will try to keep my response to the point of the original amendment moved by my noble friend Lord Selsdon, tempted although I am to proceed down routes raised by the noble Earl about procedure of the House and littering, which are matters for another occasion, but I will try also to respond to a couple of the points made by my noble friend about powers of entry, because he gave me notice of them.

My noble friend has returned to an issue that he raised in Committee, and I apologise for not getting back to him on it, about the use of covert surveillance by non-governmental organisations or private individuals. In Committee, I said that I would look further at that issue. We have given that matter serious consideration, but we have concluded that amending the provisions of the Regulation of Investigatory Powers Act as they apply to public authorities is not the answer to protect landowners from trespassers or people who do damage on private land. I could go on, but I just want to make it clear that I do not think that what my noble friend suggests in the amendment would be appropriate for this Bill at this stage.

My noble friend then raised the point about powers of entry and asked when the code of practice will be available. We intend to consult on a draft powers of entry code of practice in the summer with a view to its coming into force in the autumn. I will certainly ensure that my noble friend receives a copy of the draft code when that goes out to consultation and look forward to his comments on that in due course.

My noble friend then asked for a list of all the powers of entry. He originally asked for that to be in the Bill-I have explained on a number of occasions why that is not appropriate-but has since asked whether it could be made available in the Library or somewhere else. I have made it clear to my noble friend on a number of occasions that it will be available on the Home Office website. My noble friend is worried that most noble Lords-I think he said 50 per cent of them-cannot access the Home Office website to get hold of such things. In practical terms, for a department to make such things available on its website is normally the best way. If any noble Lords have any problems in accessing that, they can always get assistance from the House authorities-in particular, the Library, which works wonders in providing noble Lords with access to such things.

We have published a list of all the powers of entry that we have identified. We are committed to keeping it up to date. We will continue to keep it up to date on

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our website. I will certainly consider whether it could be made available on one occasion in the Library, but thereafter, it is best that it is kept up to date on the Home Office website, and my noble friend can then get further copies either through the website, if he can access it, or through the Library. I hope that, with those explanations, my noble friend will feel able to withdraw his amendment.

Lord Selsdon: I am most grateful to my noble friend for that, but, as he knows me well by now, he would obviously have expected me to have consulted the Library before speaking. The Library would like to have a hard copy because, as we know, some of the equipment in the Library does not work regularly. There is a shortage of wi-fi throughout the Palace. I hope that he will at least consider printing something out and putting it there. I pay tribute to my noble friend for dealing with such a complex Bill. If I had my way, it would be in three or four parts; it is an enormous Bill to absorb. From the research that I have done outside, it is extraordinarily confusing to what we might call lay people. They are not sure what it is about. It seems in a strange way to restrict freedoms. I am very happy to have been able to raise this issue, and I beg leave to withdraw my amendment.

Amendment 1 withdrawn.

Amendment 2

Moved by Baroness Royall of Blaisdon

2: Before Clause 64, insert the following new Clause-

"Protection from stalking

(1) The Protection from Harassment Act 1997 is amended as follows.

(2) In section 2 (offence of harassment), for subsection (2) substitute-

"(2) A person guilty of an offence under this section is liable on summary or indictable conviction to imprisonment for a term not exceeding five years, or a fine not exceeding the statutory maximum."

(3) For section 4 (putting people in fear of violence) substitute-

"4 Offence of stalking

(1) A person ("A") commits an offence, to be known as the offence of stalking, where A stalks another person ("B").

(2) For the purposes of subsection (1), A stalks B where-

(a) A engages in a course of conduct,

(b) subsection (3) or (4) applies, and

(c) A's course of conduct causes B to suffer fear, alarm, distress or anxiety.

(3) This subsection applies where A engages in the course of conduct with the intention of causing B to suffer fear, alarm, distress or anxiety.

(4) This subsection applies where A knows, or ought in all the circumstances to have known, that engaging in the course of conduct would be likely to cause B to suffer fear, alarm, distress or anxiety.

(5) It is a defence for a person charged with an offence under this section to show that the course of conduct-

(a) was authorised by virtue of any enactment or rule of law,

(b) was engaged in for the purpose of preventing or detecting crime, or

(c) was, in the particular circumstances, reasonable.



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(6) In this section-

"conduct" means (inter alia)-

(a) following B or any other person,

(b) contacting, or attempting to contact, B or any other person by any means,

(c) publishing any statement or other material-

(i) relating or purporting to relate to B or to any other person,

(ii) purporting to originate from B or from any other person,

(d) monitoring the use by B or by any other person of the internet, email or any other form of electronic or other communication, or making improper use of public electronic communications networks or leaving messages of a menacing character,

(e) entering any premises,

(f) loitering in any place (whether public or private),

(g) interfering with any property in the possession of B or of any other person,

(h) giving anything to B or to any other person or leaving anything where it may be found by, given to or brought to the attention of B or any other person,

(i) watching or spying on B or any other person,

(j) acting in any other way that a reasonable person would expect would cause B to suffer fear or alarm, and

"course of conduct" involves conduct on at least two occasions.

(7) For the purposes of this section, a person makes improper use of an electronic communications network of electronic communications service or other social media if-

(a) the effect or likely effect of use of the network or service by A is to cause B, another person, unnecessarily to suffer annoyance, inconvenience or anxiety, or

(b) A uses the network or service to engage in conduct, the effect or likely effect of which is to cause B, another person, unnecessarily to suffer annoyance, inconvenience or anxiety.

(8) The Secretary of State may by regulation add further forms of conduct to subsection (6)(b).

(9) A person convicted of the offence of stalking is liable-

(a) on conviction on indictment, to imprisonment for a term not exceeding 5 years, or to a fine, or to both,

(b) on summary conviction, to imprisonment for a term not exceeding 12 months, or to a fine not exceeding the statutory maximum or to both.

(10) Subsection (9) applies where, in the trial of a person ("the accused") charged with the offence of stalking, the jury or, in summary proceedings, the court-

(a) is not satisfied that the accused committed the offence, but

(b) is satisfied that the accused committed an offence under section 2.

(11) The jury or, as the case may be, the court may acquit the accused of the charge and, instead, find the accused guilty of an offence under section 2.""

Baroness Royall of Blaisdon: My Lords, it is of enormous significance that today we are debating amendments that would create a new criminal offence of stalking. At Second Reading, I said that this Bill presented us with an opportunity to address an important loophole in our law that meant that those subject to the sustained and harrowing experiences of stalking were not receiving the recognition and protection that they needed and deserved. I therefore warmly welcome the fact that the Government now accept that the law needs changing.



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This change in policy is a tribute to campaigners-in particular, the National Association of Probation Officers and Protection against Stalking, as well as the members of the independent parliamentary inquiry, chaired by the right honourable Member for Dwyfor Meirionnydd, Elfyn Llwyd, whose report has been so influential, and, most importantly, the victims. I refer to women such as Tracey Morgan, Sam Taylor and Claire Waxman, who have shown the most extraordinary courage in speaking out for reform. I am grateful to the Minister for meeting me on Thursday last week to inform me of the amendments, although at that stage I was not able to see them. Now, having looked at them, I am concerned that there are some deficiencies.

A specific criminal offence of stalking is not just about raising awareness. Indeed, ensuring that stalking is named as a crime and that specific examples of stalking behaviour are set out in statute are certainly part of the solution. It will mean that police officers and prosecutors who use the 1997 Act as their operational framework will be able better to recognise and respond to cases of stalking. However, that is only part of the problem. The other, perhaps most significant, issue is that, even when stalking is identified, the police are unable to bring successful prosecutions against stalkers that will result in adequate sentences. The overwhelming evidence from the independent inquiry showed that the law is currently a barrier to just sentencing because the evidence required for stalking to be tried as an indictable offence is, in practice, too difficult to provide.

The two new offences proposed by the Government do not seek to remedy that. In fact, they perpetuate this key deficiency in the 1997 Act by continuing the distinction between what they consider low-level stalking offences, as in proposed new Section 2A, which are subject to a maximum sentence of six months, and serious cases of stalking, as in proposed new Section 4A, for which it must be proved that the victim suffers a fear of violence. However, we already have this distinction in the 1997 Act between Section 4-putting a person in fear of violence-which was originally intended to cover cases of stalking and carries a maximum of five years' imprisonment, and the Section 2 offence of harassment, which covers lower-level offences and has a maximum sentence of six months. As noble Lords will know, Section 4 is very rarely used by the police because fear of violence is in practice very difficult to prove. As a result, cases of stalking are usually prosecuted under the Section 2 offence, meaning that most convicted stalkers come away with a sentence of just a matter of days or no custodial sentence at all and are free to continue to traumatise their victims and, in some terrible cases such as those of Clare Bernal and Jane Clough, to murder them. Of the estimated 120,000 cases of stalking in the UK per year, in 2009 just 786 people were found guilty under the existing Section 4, which concerns putting people in fear of violence, with only 170 given a custodial sentence, most of no more than weeks.

I am therefore extremely concerned that, by simply creating two new offences as an addendum to the existing Section 2 and Section 4 offences, we will continue to see prosecutors unable to prove fear of violence opting to jail stalkers who have waged sustained

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and terrifying campaigns against their victims under new Section 2A, the basic offence of stalking, with a maximum of six months in prison.

Two women, both victims, who met the Prime Minister last Thursday-International Women's Day-were given an assurance that things would be changed, but they then found out that their circumstances would not be covered by Section 4A as currently drafted, as it would not be possible for the police to prove that they were in fear of violence, yet both women were stalked for six and 10 years respectively and have suffered terrible psychological trauma. Both suffered mental breakdowns, both have sought medical treatment for extreme stress and anxiety, and both have little or no confidence in the criminal justice system, which has consistently let them down.

Under the amendments, the perpetrators would still be tried in the magistrates' court and, even if they received the maximum sentence of six months, they would be released automatically at the halfway point and would be back in the community after four weeks if tagged. Because of the near impossibility of proving fear of violence, perpetrator after perpetrator has been given ludicrously lenient sentences in the magistrates' court and has consistently broken restraining orders, with none receiving treatment or rehabilitation. The independent parliamentary inquiry, expert witnesses from the police, the National Association of Probation Officers, Protection against Stalking and victims are all absolutely united in the view that Section 4A must be amended to "fear, alarm, distress or anxiety" so as to apply explicitly to cases where severe psychological damage has been caused but no explicit threat of violence or physical attack has been made.

It is staggering that the Government are proposing to retain the fear of violence distinction, despite such evidence. It is also staggering because in Scotland we have a clear legal precedent for a single offence of stalking without fear of violence. The Criminal Justice and Licensing (Scotland) Act, which was introduced in 2010, created a single offence of stalking, triable either way, with a maximum sentence of five years' imprisonment. It is then up to prosecutors and the courts to decide at what level the case should be heard.

My Amendments 2 and 3, on protection from stalking, would replicate the Scottish model of a single offence of stalking, listing types of stalking conduct, triable either way, and would replace a duty on the Secretary of State to ensure adequate training and support for implementation. However, in the event that the Government are not willing to accept this alternative proposal, I have also tabled amendments to their amendments. With the inclusion of these amendments, I believe that we can ensure that the two stalking offences that the Government propose would deliver adequate sentencing of offenders and protection for victims.

Amendments 10, 11 and 12 make changes to proposed new Section 4A that would widen the scope of the offence to apply to cases causing the victim to suffer fear, alarm, distress or anxiety. That would ensure that for cases such as Claire's, where it is impossible to prove fear of violence, where the victim has suffered years of psychological trauma the stalker will be eligible for the maximum sentence of five years. Amendment 9

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would allow cases tried under the basic offence of stalking, created by proposed new Section 2A, to be referred up to the Crown Court for sentencing, if magistrates deem it appropriate: for instance, when new evidence came to light to suggest a sentence higher than six months were required. If theft can be tried either way, we believe that it is wrong to set such limitations in a trial of stalking.

Amendments 7 and 8 make changes to the list of examples of acts that should be considered in certain cases as amounting to stalking in order to allow for the addition of other forms of conduct in the future. I know that the Government will wish to argue that proposed new Section 2A states that these are examples and that therefore flexibility is already provided, but it is important to understand that the police will look to what is contained within the law for their operational framework. Therefore, we think that it is important to make it clear that the list is not exhaustive and provides for the addition of new types of behaviour, such as cyberstalking, that may arise in the future.

Finally, Amendment 14 would mean that, if an individual had been arrested for stalking, the police would have the power to enter their property without a warrant in order to prevent any evidence being destroyed. It would in fact return the power that previously existed in cases of harassment but that was removed as an unintended consequence of the Serious Organised Crime and Police Act 2005.

Too many women have already died at the hands of their stalkers and I am glad that the Government agree that we must act now to provide greater protection for the women and men who have had their lives stolen from them by this harrowing crime. It is for the sake of these and future victims of stalking that we believe that it is vital that we get the changes right. We must address the problems of the existing law in full. Therefore, I strongly urge the Government to listen to the experts and victims and to support these amendments to their proposals today.

Lord Henley: My Lords, it might be convenient if I intervene at this stage, partly because I have government amendments in this group-Amendments 6, 13, 16, 18, 29 and 32-partly so that I can explain what we are intending and partly to deal with some of the concerns raised by the noble Baroness and to pre-empt some of the debate, particularly as we are at Third Reading. I shall also speak at the end of the debate to deal with any points that have been made.

I am very grateful to the noble Baroness not only for her explanation of four of the amendments but because she has raised this issue throughout the passage of the Bill, as she was quite right to do. She was also right to pay tribute to Elfyn Llwyd, to his inquiry in another place and for all that that has done, for which we are grateful.

The noble Baroness referred to the comments from my right honourable friend the Prime Minister last Thursday on International Women's Day. The Government made the point that:

"Stalking is an issue which affects many lives, often in devastating ways. That is why we are taking it seriously and introducing these new offences"-



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my right honourable friend made it clear that we would bring forward amendments to the Bill-

"Offenders need to know that they will be brought to justice for making others' lives a misery. We will do all we can to protect victims of stalking more effectively and to end this appalling crime".

He said:

Throughout the House we agree that tough action needs to be taken, that new offences need to be introduced and that sentences must reflect the severity of the crime. The only thing that we disagree on is the drafting on how to achieve this aim.

3.45 pm

Perhaps I may go through the government amendments. The new offence set out in government Amendment 6 will introduce two new, free-standing offences of "stalking" and "stalking involving fear of violence" that will sit alongside the existing harassment offences in the Act and will attract the same maximum penalties. The new offence of stalking under new Section 2A will be tried in the magistrates' court, with a maximum penalty of six months' imprisonment or a fine of up to level 5 on the standard scale-currently £5,000-or both. The new offence of stalking involving fear of violence under new Section 4A may be tried either way, in the magistrates' court or the Crown Court. If tried in the Crown Court it will have a penalty of up to five years' imprisonment or an unlimited fine, or both.

The noble Baroness tabled a number of amendments to Amendment 6. I will deal briefly with each of them. Amendments 7 and 8 relate to the list of examples of acts or omissions that may be associated with stalking. The list of behaviours is designed to provide examples of the core behaviours associated with stalking. This is a non-exhaustive list and will therefore cover forms of behaviour not yet developed. That is why it states, "for example". For this reason there is nothing to be gained from adding the words "inter alia" as proposed by Amendment 7. The relevant subsection is already explicit that the list of acts or omissions provides examples only. Moreover, the use of the word "examples" has the advantage of being in English and so will be clear to police and prosecutors, who might not understand "inter alia"-although I imagine that they normally do.

Amendment 8 seeks to add a catch-all of,

as well as a power to add to the list of behaviours by order. As I indicated, the list provided is designed to be a non-exhaustive list of core behaviours associated with stalking. As such, it is not a definitive list of behaviours and so would cover other stalking behaviour that would cause a reasonable person to suffer fear or alarm. Moreover, given that the list is indicative, it is not necessary to take a power to add to it. Should it prove necessary to do so, we can issue guidance to the police to inform them of other behaviours that might be equally applicable. We want to ensure that we do not give stalkers an excuse to try to circumvent this legislation.



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Amendment 9 seeks to make the new Section 2A offence an either-way offence with the same maximum penalty-five years' imprisonment-as the new Section 4A offence. We need to take into account the behaviours criminalised by the new offence of stalking. Given that such behaviours fall short of putting someone in fear of violence, we believe that it is appropriate that this should be a summary-only offence attracting the usual maximum penalties for such offences.

The new Section 4A offence will be an either-way offence that may be tried in either court, and will attract higher penalties when tried on indictment. In this regard, it is worth pointing to the government amendment to Schedule 9, which adds the new offence of stalking involving fear of violence to the list of violent offences in Schedule 15 to the Criminal Justice Act 2003. The effect of this is that a conviction for such an offence can attract a public protection sentence which, under proposals in the LASPO Bill, will be an extended sentence. Such a sentence will see offenders serve at least two-thirds of their sentence in prison and be subject to longer periods of supervision on licence. We can therefore make a real distinction between lesser and more serious cases. We will accompany these offences with guidance and training for the police and prosecutors so that they understand this too. I believe it would be wrong to muddy the water between these two offences. If the concern is that the existing Section 2 offence is not being properly dealt with at present, and, together with the new Section 2A offence, will not be in future, then it is the practice on the ground that we must tackle, not the offence itself.

Amendments 10, 11 and 12 seek to extend the new Section 4A offence of stalking involving fear of violence. The suggestion appears to be that this offence will be difficult to prove because of the requirement to show that the alleged victim was in fear of violence. The noble Baroness, Lady Royall, has suggested that her Amendment 2 is preferable as the test there is whether the alleged victim suffered fear, alarm, distress or anxiety. Our approach with these two new offences, as with the existing harassment offences and many other areas of the criminal law, is to have a tiered approach which reflects the seriousness of the offending behaviours. Alarming a person or causing them distress would be caught by the summary offence of stalking. As such, an individual who stalked a person so as to cause them alarm or distress would be rightly charged with that offence.

If more serious behaviours were present, and those behaviours made the victim fear that violence would be used against them, then that would rightly attract the more severe penalties available for the Section 4A offence. I recognise that fear of violence may not of itself fully cover the trauma suffered by victims in the more serious cases of stalking. Such victims may not always be in fear of physical violence but they none the less suffer serious psychological harm. I recognise that we need to include this concept in our new Section 4A offence.

Having put down this amendment only late on Thursday last week, I accept that it is rather difficult to make manuscript amendments at Third Reading, but I ask the noble Baroness not to press her Amendments 10

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and 12 on the understanding that the Government will bring forward amendments to the new Section 4A offence to import a reference when the Bill returns to the House of Commons next Monday. One could take any form of words: "severe alarm", "severe distress", "serious psychological harm" or similar wording. I do not want to get bogged down on the precise wording at this stage. We are still considering the precise formula, but it is important that I make an assurance that we are very keen to make sure that serious psychological harm gets included within that amendment.

I have asked my officials to meet Napo, which has played a key role in the independent inquiry conducted by Elfyn Llwyd on stalking, later this week to discuss the appropriate wording. I know that it has been speaking to a number of your Lordships-including, no doubt, the noble Baroness-and that it shares the concerns about the psychological impact that stalking has on victims. I also undertake to share the wording of the further amendment that we would bring forward in another place with the noble Baroness, and others, in advance of tabling it. Obviously, we will have to move fast later this week but, as she is aware, we have been capable of nimble footwork in the past.

Government Amendment 13 will introduce a new search power-I appreciate that search powers are somewhat controversial on occasions-exercisable by warrant for the lower-level stalking offence to allow the police to search for equipment used to stalk and to gather the evidence necessary to secure convictions and prevent stalking behaviour escalating. There is already a power of entry for the Sections 4 and 4A offences. Amendment 14 to government Amendment 13 seeks to add a further power of entry exercisable by a constable without a warrant or the consent of the occupier. This further power would apply to both the new stalking offence and the existing harassment offence.

We take the view that only those offences serious enough to be tried on indictment, such as our new Section 4A offence, should attract entry and search powers exercisable without a warrant following arrest. The new Section 2A offence, as a summary-only offence, is by definition less serious, and we consider that requiring a warrant for a search under new Section 2B represents an appropriate balance between protecting people from stalkers and respecting the rights of those who, at the point of the search, are unconvicted and therefore innocent in the eyes of the law.

Amendment 3, tabled by the noble Baroness, Lady Royall, introduces a requirement on the Secretary of State to ensure that serial stalking offenders are flagged on the police national database. I assure her that whenever someone has been convicted or cautioned for a stalking offence, as with any other recordable offence, that conviction or caution will be so recorded. If a local police force has information that a person may be a stalker but there is insufficient evidence to charge them, that information would be recorded on local police systems and reflected on the police national database, which can be accessed by all UK forces.

The police national database is an important new development, allowing greater visibility of all local records for investigative and policing purposes, and should be fully operational within the next 12 months.

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The management of all police information, national and local, is obviously a matter for chief officers, including whether information is or should be flagged up on the PNC. None the less, any such information held on local systems may, if relevant, be disclosable on an enhanced criminal record certificate.

The second part of Amendment 3 requires the Secretary of State to lay before Parliament an annual report on the implementation of an offence of stalking. Again, I am not persuaded that there is a need to impose a statutory duty to this effect. However, I can assure the noble Baroness that we will keep the new offences under review, and I am confident that the Government will face pretty thorough scrutiny on this issue as time goes on-as they should-and will, as a result, report to Parliament on these matters from time to time.

We hope that creating specific offences of stalking, along with a new search power, will raise the profile of this crime and ensure that more stalkers are brought to justice. However, we recognise that a change in the law alone is not enough. The Government's revised action plan, Call to End Violence against Women and Girls, published only last Thursday, includes several actions to raise awareness of stalking and improve the training and guidance given to both police and prosecutors.

We believe that the government amendments deliver the outcomes sought by campaigners on this issue. They strengthen the law by providing for two new offences of stalking. We take this issue very seriously. If we did not, the Prime Minister would not have focused his speech on International Women's Day on this subject.

On this basis, I hope that after we have had a debate the noble Baroness will feel able not to press her amendments, on the understanding that we will bring forward changes to the government amendments in another place to address her point about the psychological harm suffered by the victims of stalking. If she insists in pressing her amendments, I invite the House to reject them and support the Government's alternative proposals.

Lord Campbell of Alloway: My Lords, briefly, I congratulate the noble Baroness on her amendment, which has filled a gap in criminal law. I also congratulate the Government on giving an assurance that they will deal with its implementation, which they need to think of with care because it is not going to be so easy to implement.

4 pm

Baroness Brinton: My Lords, I am very grateful to the Minister for the Government's considerable progress on stalking law reform since Report and for the government amendments laid before your Lordships' House. I am also grateful for the amendments tabled by the noble Baroness, Lady Royall, which help to clarify some of the issues that many of us believe remain outstanding.

I am particularly grateful for the Minister's clear response to the noble Baroness, Lady Royall, on her Amendments 10 to 12 which amend government Amendment 6. The issue around the Government's new

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Section 4A and the insertion of the words "fear, alarm, distress or anxiety", in whatever form that might take, as proposed by the noble Baroness, Lady Royall, really concern those of us who have been involved in stalking law reform for some time. There seems to have been confusion in some of the discussions outside your Lordships' House. As long as "serious" and "severe" relate only to the psychological issues and not to fear of physical violence, that is a very helpful clarification. I am looking forward to the Commons consideration of Lords amendments next week.

The omission of those words in the government amendments today has caused complete consternation among victims, their families and the organisations working for stalking law reform. Those of us parliamentarians on the People's Inquiry into Stalking Law Reform made it absolutely clear in our report that the serious psychological effects of stalking can be as devastating as violence. Often, the consequences are more long term-long after the physical bruises and the scars have diminished.

Last Thursday, three courageous victims-Tracey Morgan, Sam Taylor and Claire Waxman-who have all campaigned for stalking law reform for many years, discussed the need for reform and related it to their own cases. In his very welcome speech launching the reform on International Women's Day, the Prime Minister made the point about long-term psychological damage to victims such as Tracey, Sam and Claire. I really hope that it was an oversight in the speed to get the government amendments out that these key and vital words were omitted from new Section 4A.

Last week, many victims and their families were talking at No. 10. They were initially overjoyed and relieved that at last the scourge of stalking would be recognised for the horrible and serious crime that it is and no longer lumped in, as we have said before in this House, with neighbourhood disputes. Many victims are diagnosed with post-traumatic stress disorder and others have breakdowns, all of which fits well with the description read out by the Minister.

Given the time that I have taken up in your Lordships' House outlining the need for training and guidance throughout the criminal justice system, I was particularly pleased with the Prime Minister's speech last week from which my noble friend quoted earlier in this debate. I am also pleased that another place will have the opportunity to discuss this key reform, as all the debate on stalking and the Protection of Freedoms Bill to date has been in your Lordships' House. In particular, this will give Elfyn Llwyd MP, the chair of the People's Inquiry into Stalking Law Reform, the opportunity to comment on these very welcome government amendments, even if some minor details need to be sorted out. The inquiry team, Protection against Stalking and the National Association of Probation Officers have worked cross-party and tirelessly to influence the Government. It has been a privilege to be a small part of that team.

I want to end by endorsing the Government's amendments with the words of Tracey Morgan which seem particularly pertinent today. She said:

"The victims I hear from are saying the same things I was 15 years ago-what's changed? We need to do more. This is about murder prevention".



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It is wonderful news that the Government are doing more and I know that that will prevent murder and other serious crimes against innocent victims of stalking. I hope that those who have long championed the change in the law will, at last, be able to hand the problem over to those in the criminal justice system, which is where it should be.

Baroness Howe of Idlicote: My Lords, as one of those who have taken part in the inquiry, I congratulate the Government on what they have come around to; that is, a serious awareness of the horrendous crime of stalking. In many cases the advent of the internet has been very valuable, although it is now quite often used for cyber stalking and this horrendous crime. It has to be tackled.

I also congratulate the noble Baroness, Lady Royall, on her attempt to produce the right form of words for this part of the Bill. On this point, I have one sadness, and that is that there is not a completely separate Bill on stalking. We all know how crowded our agendas are, but that would have been an important step. An actual Bill dedicated to stalking would stand out and attract everyone's attention. In the mean time, I hope the Government will agree to the amendment tabled by the noble Baroness, Lady Royall. Picking up the threads, it sounds as if there really is a basis for giving the other place an opportunity to debate this important subject because I think that some of them are hardly aware of the issue. That would be an added plus.

There must be a clear understanding that what must be discussed are the horrendous psychological effects of this crime, which have been very well set out by the noble Baroness, Lady Brinton, who is an expert in the field. It is a form of psychological violence that may not be as visible as physical violence against women but, my goodness, the long-term effects are huge. With my fingers crossed, I hope that the right conclusions will be reached not just between all these Benches but between both Houses.

Baroness Hamwee: My Lords, the Government are indeed to be congratulated on having moved so positively and with such comparative speed following the report and their own consultation. I also congratulate the members of the parliamentary group and the individuals who have so bravely spoken out. I have one point to put and one question to ask.

The point is to encourage the Minister-not that I think he needs to be encouraged-with regard to the terminology, "fear, alarm, distress or anxiety", as well as violence. I want to mention to the House that last week during the Report stage of the Legal Aid, Sentencing and Punishment of Offenders Bill, my noble friend Lord McNally, the Minister at the Ministry of Justice, put forward a definition of domestic violence that was agreed. It covers,

As I say, I do not think that my noble friend needs encouragement, but if that is useful ammunition to pass on to those who are doing the drafting and who might be a little resistant to the extension, I hope he can use it. My question is about remedies. There is a

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provision in Section 3 of the 1997 Act for a restraining order. When the Act is amended, will that section remain available for use by a victim of an offence under either of the new sections? I am sorry that I did not give my noble friend notice of my question, but it only occurred to me during the first speech in this debate. Would Section 3 have to be used or is there an inherent right in the courts? I am thinking of an extreme situation, although they are all extreme, where someone is given a custodial sentence, but there is also a concern that he should stay away when he comes out of prison. I am particularly prompted in this because of the provision in Schedule 1 to the legal aid Bill which allows for civil legal aid services to be provided in relation to an injunction made under Section 3 of the Protection from Harassment Act 1997. I hope that everything which needs to be can be swept in the last knockings of this issue.

Lord Hodgson of Astley Abbotts: My Lords, I congratulate my noble friend on having brought forward these amendments. I was the subject of stalking for four or five months and a truly terrifying experience it is, too. I was stalked by a woman who rang me at all hours of the day and night and who I believed did not know where I lived. However, the day that I moved house and returned from the other place to my new home, I found a note through the door, saying, "I hope that you will be very happy in your new home". Such an experience leaves you with an impression that there is somebody out there, waiting for you and watching for you. I am very pleased that the Government have moved on this because it is a very serious social problem.

My stalker was in the end revealed to be much more harmless than many, in the sense that her real name was Anita Hodgson-that is why she had appealed to me. She called herself Anita Windsor and believed that she had been married to Prince Charles and that people were denying her rights to join the Royal Family.

Lord Marlesford: Perhaps I may say a word on Amendments 13 and 14, Amendment 13 already having been referred to by my noble friend the Minister as a government amendment and Amendment 14 being in the name of the former Leader of the House. I support both amendments and rejoice that Amendment 13 sets out exactly the right conditions and constraints on powers of entry. In the first instance, it requires a warrant; in the second, following your Lordships' amendment on Report, it points out that premises may be entered without the agreement of the occupier in cases where the authority using the power can demonstrate that the aim and use of the power would be frustrated if a warrant or agreement were sought. That is very neatly replicated in the government Amendment 13. I am glad that the Government are at last taking an approach that should be used for all powers of entry. I totally support the Leader of the Opposition's Amendment 14. Again, it will ensure that the amendment proposed by your Lordships' House on Report is perfectly consistent with all matters connected with the Bill. They are worthwhile changes, as well as dealing with the serious problem of stalking.



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4.15 pm

Lord Henley: My Lords, my noble friends Lady Brinton and Lady Hamwee were absolutely correct about getting the wording right. That is why I wanted to make it quite clear that I could not give the precise words at this stage and why it is very important that we have further discussions, as I promised, with Napo, which will take place this week. I along with other colleagues in the ministerial team will make sure that we get the wording right.

I also note the point made by my noble friend Lady Hamwee about the importance of consistency of language between one piece of legislation and another, and what she said about the legal aid Bill. The danger of inconsistency is that when legislation comes to be interpreted by the courts they have to think why Parliament has used different words on different occasions. So I note what my noble friend had to say and we will discuss it during the week. However, I cannot give any cast-iron guarantees at this stage other than what I have said. My noble friend Lady Brinton said how happy she was that the amendments would now give an opportunity for another place to discuss these matters.

The noble Baroness, Lady Howe, said that she would prefer a completely separate Bill. However, in the nature of these things, that is not always possible. My right honourable friend the Prime Minister recognised that here is an opportunity where we can do something, particularly in the light of the earlier discussions we had had on the Bill-I again pay tribute to the noble Baroness, Lady Royall-and the commitments I had given on Report. I hope that we can make some progress on that front but, obviously, it cannot be the Bill that the noble Baroness would like in an ideal world. This is not always an ideal world and we sometimes have to make use of what we have.

My noble friend Lady Hamwee also asked about remedies, particularly in relation to the point she made about the restraining order. I can assure her that the restraining order is contingent on Section 1. It remains unchanged and therefore will be incorporated into the stalking offences. I understand that it can be used for the offences under proposed new Sections 2A and 4A. If I am wrong about that, I shall get back to my noble friend and all other noble Lords as quickly as possible.

The point made by my noble friend Lord Hodgson about having been a victim of stalking some years ago was a useful intervention. It reminded the House that this offence does not necessarily affect only women but can affect people of either sex. We have to remember that point even though, in the main, victims tend to be women. That is why my right honourable friend the Prime Minister made his announcement on another day.

I hope that both in this brief intervention and in my earlier remarks I have satisfied most of the points raised by the noble Baroness. I will listen with care to what she has to say and then it will be for the House to make up its own mind.

Baroness Royall of Blaisdon: I am grateful to the Minister and to all noble Lords who have participated in this short but excellent debate.

I understand what the noble Baroness, Lady Howe, said about ideally having a separate Bill. However, I

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am delighted that the noble Lord has taken the opportunity to introduce these offences into the Bill. It means that more women and men will be protected in the very near future. Who knows how long a separate Bill would take to get onto the statute book.

On the amendments I have tabled, I well understand that the House would not be behind Amendments 2 and 3 and I accept that. On Amendments 7 and 8, I hear what the Minister said about his words being merely examples and I reluctantly accept that. However, the police in Gloucestershire would certainly understand "inter alia", even if the police in Cumbria would not.

I was disappointed by the Minister's response to Amendment 9 for two reasons. From time to time, cases are discussed by a magistrates' court but, in the course of the proceedings, it becomes clear that the evidence shows there is more to a case than at first seemed. It would then be entirely appropriate for the court to decide that the case should be tried in a Crown Court so that an offender could be given the maximum sentence if necessary. I am also very concerned about repeat offenders. As we know, in the past there has been a problem for victims who have suffered from people who have offended time and time again. Under the proposals put forward by the noble Lord, if someone repeats a minor offence, he or she will continue to be tried in a magistrates' court-it will be a summary offence-and on each occasion they will be eligible for a maximum sentence of six months. I do not think that that is enough.

The key amendments are clearly Amendments 10, 11 and 12. I hear what the Minister says and am grateful for his assurances that the Government will bring forward new wording that will take into account serious psychological harm, which can be absolutely devastating, as the noble Baroness, Lady Brinton, said. In fact, in some ways it can be even worse than the fear of physical violence. The words in my amendment are those proposed by the independent inquiry, the victims and the experts, and are tried and tested words that have been proven to get results in Scotland. Why will the Minister not accept my amendment and then, if necessary, look at the matter more closely before it is discussed in the other place? I am glad that the other place will, in any event, have an opportunity to debate these very important issues. Although I fully accept the Minister's proven good intentions as well as those of the Prime Minister, I am slightly concerned that throughout the very welcome process that we have undergone as a result of the deliberations in this Chamber, at each stage there has been a slight impediment to the progress that could properly and better be made. I am concerned that we will not get the wording that we in this House and everybody deems necessary. Therefore, I would feel much more comfortable if the Minister could say that he accepted my amendment and would then act accordingly in the House of Commons.

I also have some concern about Amendment 14. Under current legislation, those arrested for relatively minor drugs or theft offences can have their premises searched on the advice of a police inspector that a warrant is not required. That makes the whole issue relating to stalking seem to be less important. As we

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know that cyber-criminals are becoming more and more active, I am worried that if people have to wait for a warrant the necessary material in the house could disappear before a warrant is obtained and the premises properly searched. Therefore, I have concern about Amendment 14.

I am very grateful to the Minister for having come as far as he has come. I know that he is pushing the boundaries to ensure that we get the right results in the end with the appropriate wording in the Bill. However, I urge the Minister at this late stage to accept Amendment 11. I am withdrawing my amendment with a slightly heavy heart because I want to be confident that the Bill is absolutely right to guarantee the safety of men and women and ensure that perpetrators of stalking are not only apprehended but imprisoned and given the right treatment where necessary. I would also like to withdraw the amendment knowing that we will have a further opportunity briefly to consider and vote on these issues in the consideration of Commons amendments at the next stage in this House. Will the Minister accept Amendment 11, the key amendment with the key wording, which is of such importance to victims, campaigners and all those involved in these issues?

Lord Henley: My Lords, I made it clear to the noble Baroness that I could not accept Amendments 10, 11 or 12-all three go together. The point I was trying to make is that we want to get this wording right, and I do not want to be bound by precisely those words. We have moved pretty fast since the end of our consultation and the end of the independent inquiry. We have brought forward this amendment, which we announced last week. I then made it clear that we would have further discussions with NAPO on this matter. That is what I want to do. I do not want to bind us before we have those discussions by accepting the precise wording of those amendments. That is why I made it clear in my opening speech that we wanted to address the spirit behind them but that we wanted to discuss these matters further. I cannot accept Amendments 10, 11 or 12, but the noble Baroness has heard the commitment I have made. With that, I hope that when we finally get to those amendments-I appreciate that we have one or two debates to go before then-she will feel it is not necessary to move them. We can discuss them after another place has discussed them.

Baroness Royall of Blaisdon: I beg leave to withdraw the amendment.

Amendment 2 withdrawn.

Amendment 3 not moved.

Clause 64 : Restriction of scope of regulated activities: children

Amendment 4

Moved by Lord Harris of Haringey

4: Clause 64, page 53, line 9, at end insert "and includes the monitoring of verbal, sign language and written communication between the supervised person and such children"

Lord Harris of Haringey: My Lords, this group of amendments deals with the vetting and barring of

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people working with children. I am grateful to the Minister for the meeting that took place with a number of your Lordships to consider these complicated and difficult issues. The breadth of attendance at that meeting indicated that this is a widespread, non-political concern about trying to get this part of the Bill to be as good as we can get it.

The Government are trying to reduce the number of people and individuals who have to be subjected to a vetting process before they can be employed. That general objective of reducing the numbers who go through this process is entirely laudable, but the balance has to be struck between that desire to reduce numbers and ensuring that children and young people can safely take part in activities, knowing that the adults who are working with them are proper individuals who can be trusted with children. The legislation would include certain categories automatically, in an expectation that they would be subjected to the vetting arrangements. Yet volunteers and others may not be subject to such vetting if they are under day-to-day supervision, which the Government have defined within the amendments considered at the previous stage of this Bill. I do not believe that the question of day-to-day supervision, however defined and however much additional guidance is issued, will automatically be a helpful distinction.

I think that many of your Lordships will have received a very helpful briefing from the children's charities, which have highlighted why this is an issue. They say that Clause 64,

The situation is that as the legislation stands, people who are subject to day-to-day supervision do not need to be checked. Even if they are checked, the information that will emerge from CRB and enhanced CRB checks may not necessarily include the barring information showing that incidents have occurred in previous employments, or whatever else may be the case. That is where there is a serious loophole. Indeed, the briefing goes on to say:

"We are concerned that the proposed definition of regulated activity does not cover some groups of people who have frequent and close contact with children. This creates risks for children. Those who seek to harm children can be predatory and manipulative. If certain types of work are exempt from vetting and barring, in some sectors or settings, but not in others, dangerous adults are likely to target those organisations with weaker arrangements".

4.30 pm

Let us be clear: this is not about activities that take place in a supervised environment. Obviously, you would trust any organisation to have arrangements to ensure that a child is not abused in a classroom or changing room. The risk is in the relationship that may build up between a child and someone who is in a supervised setting but who is a volunteer and has not been subject to proper vetting where the child and their parents will assume that that is a trusted person, someone who is safe. The risk is that the undesirable contact will not happen in school, at the after-school

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club or in the sports facility; it will happen separately and elsewhere because there has been an assumption that that person is trusted.

At an earlier stage the Minister talked about the role of parents and said that they also had a duty to protect their children. No one is denying that, nor is anyone suggesting that it is possible with these arrangements to protect every child from every adult who may have malign intent towards them. However, this is about trying to ensure that you can protect children appropriately under the circumstances. I ask noble Lords to put themselves in the position of having a child in a setting that they assume is secure and where they assume that staff are properly vetted, only to be told after some appalling event, "Well, we checked but we didn't have access to all the information about that individual because it was on the barred list and not included in the extended CRB check", or, "We didn't need to check because the individual was subject to day-to-day supervision".

At an earlier stage the Minister promised us that guidance was going to be issued about the nature of day-to-day supervision and about what could and could not be applied for. The purpose of my Amendment 4 is to try to make it clear how difficult it will be to frame that guidance appropriately. It is trying to say that, unless you are supervising the relationship between that adult and that child to the extent that you know the nature of all the conversations and the contact taking place between them, you do not know whether you may have created an environment in which the adult may abuse the child outside that setting. It is so easy for a helper to say, "Oh, I've got the latest version of such-and-such a computer game at home; if you want to see it, friend me on Facebook and I will make the arrangements". Unless day-to-day supervision prevents those conversations, that is where the vulnerability occurs. That is why there is a risk around this issue. I would love it if the Minister could stand up and tell us how the guidance would prevent those situations from happening. I hope that with this amendment I have clarified that that is the sort of thing that needs to be covered within that guidance.

There are a number of alternatives here. One would be for a school, a club or whatever to say to children and parents, "We have got proper vetting information about the following people who your child will encounter, but we are not able to obtain full vetting information about all the others". That is not a satisfactory arrangement for the adult who is included in the second list, and it is certainly not an adequately safe arrangement.

I am not clear how guidance on the issue of supervision is going to protect children. That is why I put my name to Amendment 5, which tries to move the argument on to say that it is important that organisations that are engaging volunteers and so on have the right to be given all that information. You are put in an appalling position if you run a youth club and have tried to do everything that you can, so you have run a CRB check, but you do not know, because you are not allowed to know, that the individual concerned is in fact barred from contact with children. However much day-to-day

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supervision there is, and however well specified it is in the Government's guidance, that situation will not be remedied.

In responding to these amendments, I hope that the Minister will demonstrate how the Government will take on board the real concerns expressed by your Lordships from all four corners of the House, and make sure that Parliament is not inadvertently creating an appalling loophole that will put children at risk in the future. I beg to move.

Lord Bichard: My Lords, I will speak to Amendment 5, which is in my name. Since it is a complex issue, I hope your Lordships will bear with me while I explain precisely what is in that amendment. Inevitably, I may trespass on some of the ground that the noble Lord, Lord Harris, has already touched on.

Essentially, the amendment has four components. The first provides that anyone who permits an individual to work regularly and closely with children, in whatever setting and even if the activity is not regulated, can obtain an enhanced criminal record certificate, which will disclose any convictions and any intelligence held by the police about that individual and which is relevant to that employment. It is important to note that the responsibility for deciding whether such a check is necessary would in future rest with the employer and not be required by law. The employer would be the person who makes a judgment on whether such a check is needed, based on their knowledge of the activity and the local circumstances concerned.

The second component provides that the Secretary of State will offer guidance on what is meant by "regular and close contact", which will help employers to make their decision.

The third part provides that the guidance should also recommend that enhanced criminal record checks be made where individuals work regularly and closely with children.

The fourth part of the amendment would ensure that the enhanced criminal record checks should also give access to suitability information relating to children under the provisions of the Police Act 1997. Put simply, this would give access to information about individuals who are barred from working with children or vulnerable adults in a regulated activity, and whose names therefore appear on one or other of the so-called barring lists.

The Minister may well find this last component of the amendment difficult. It might be argued that information that causes an individual to be barred from working with children in a regulated activity is not relevant to their working with children under supervision in a non-regulated activity, even if the contact is close and regular. I take a contrary view to that argument for the following reasons.

First, anyone working with a child in situations in which they have an opportunity to develop a bond of trust can groom that child and then exploit the bond of trust when they are not being supervised. No amount of supervision, however intensive, can prevent that bond of trust being established. We all know that the opportunities to exploit it are increasingly available, not least via social networking sites.



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The second reason why I do not accept that argument, which was touched on by the noble Lord, Lord Harris, is that children build trust with individuals who work with them in, for example, youth clubs, colleges or sports clubs. However, that trust is not exclusive to those settings. If they encounter that adult on other occasions, they are likely to invest the same trust in them and therefore be vulnerable to them. That is why the issue for me is not, and never has been, the quality of supervision, but rather whether the adult might pose a risk to the child. If someone is on a list which bars them from working with children in unsupervised situations, it seems to me that that information should be made available to employers who are considering whether or not to allow those persons regular and close access to children. Not all noble Lords will be aware that one in five of the people on the barring list has not come in contact with the police; they are there because of information that has been provided-for example, by previous employers.

I ask noble Lords to envisage the circumstances whereby an individual is allowed to work with children on a close and regular basis following a CRB check, that individual then abuses a child and the employer subsequently discovers that the individual was on a barred list but that this information had not been made available to them because of this legislation at the time they took the decision to employ that person. That would be very difficult to justify and explain to the employer, the parent, or indeed to the public at large.

This amendment is not about allowing more CRB checks to be made; it is for employers to take that decision. It is not about the state requiring employers to do something which some might regard as unnecessary. It is simply about giving employers the data which are available and which will help them to make an informed decision. I have sought in this amendment to produce a system which is simple and proportionate. Therefore, I have avoided distinguishing between settings such as colleges, schools and clubs. Instead the amendment refers to "regular and close contact" wherever it occurs. I have left the final decision with the employer. I accept that the current arrangements are not proportionate and are too bureaucratic, but we must ensure that any revised arrangements are comprehensible, consistent across settings and place the safety of the child above all other considerations.

4.45 pm

The Lord Bishop of Hereford: My Lords, I welcome hugely the amendment in the name of the noble Lord, Lord Harris, and that in the name of the noble Lord, Lord Bichard. I particularly welcome them because I firmly believe that they need to be accepted as they would strengthen the Bill and make it a much safer document.

From the point of view of the churches, other faith groups and voluntary organisations, the amendments have the great advantage of making it possible for the first time within the Bill for there to be CRB checks for volunteers. To my mind, without these amendments, there is a serious omission in that regard. By broadening out that eligibility, the amendments would allow the

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churches to have CRB checks for Sunday school teachers, youth workers or perhaps organists who have the role of musical director for children's choirs.

This is a complex area regarding how we within the churches, and therefore within the church communities, have been able to check using eligibility that has until now conferred by either the broad understanding of regulated activity as it has been hitherto, or having to use the concept of regulated positions from the Criminal Justice and Court Services Act 2000. However, there has until now been no recognition in the Bill of the role of the volunteers; hence, my welcome for the two amendments in the group.

Amendment 5 in the name of the noble Lord, Lord Bichard, specifically includes making those responsible for the employment and appointment of people who meet the definition eligible to make enhanced CRB checks and obtain suitable information, which we understand, and hope will be understood, to mean the vetting and barring information to which the noble Lord has made reference. However, I would make a slight qualification to what he said. He used the term "employer" throughout most of his speech, although his amendment does not do so. I want that term to be understood to include, say, a church that has volunteers, and for "employer" not necessarily to mean paid employees. Provided it is understood to include volunteers, we would be of one mind on this.

The amendment gives space, as we have been told and as the wording makes clear, for the Secretary of State to define what is meant by the phrase "regular and close contact". Those words could be a little slippery. It is difficult for us within our churches to be specific as to what "regular" means, and we commend the approach used in Scotland, where the protection of vulnerable groups scheme also requires regular contact, but "regular" is defined there as a core part of the role rather than by a weekly or even monthly requirement. I ask noble Lords to picture a situation, perhaps in one of our village churches in our diocese of Hereford, where there might be only a monthly Sunday school or family service and where the key adults have regular but only monthly contact. Or, perhaps in one of our more urban situations, there might be a holiday play scheme whereby the adult workers, although they may regularly be involved each year, would be there for only four or five days a week in the summer holidays. However, in all those situations, the workers get to know the children well and, as the noble Lords, Lord Harris and Lord Bichard, said, the point is about access.

However, I would add a further dimension to what they said. This is also about the authority that we the church give if these workers are used, and known to be used, as volunteers within the life of the church. It makes the child think, "That is the nice Mr So-and-so who I know from church, so he is safe". That is the assumption made. We are responsible for giving that authority, and that is part of what concerns me so strongly and why I welcome this amendment. It recognises that when such volunteers take a role, even if it is not frequent but is nevertheless regular, it is possible to build up authority and therefore trust, as well as access. That access is not about just the supervised

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range of the activity. The access exists outside; and that is the crucial part for me. We have been reminded that access is there within social networking, but it should be recognised, please, that access is available in lots of other ways. Half the population of the diocese of Hereford, which includes south Shropshire as well as Herefordshire, live in villages of 500 people or less. If you live in a village of 500 people, your family knows all the other families, and there is therefore trust and access. You are bound to see people at other times. It is inevitable, and that is the nature of community and village life. To say that because the regulated activity is safe, everything else is safe, is frankly not sufficient. We are responsible by giving authority and access. Therefore, it is crucial that we can also have the CRB checks.

I emphasise my strong welcome for the amendment; I would love it to be extended from just children and young people to vulnerable adults, because we could have had the same debate on the same issues there.

Baroness Walmsley: My Lords, I support the amendment of the noble Lord, Lord Bichard. It may be moderate and proportionate but has the potential to close a dangerous loophole in the Bill. Both he and the noble Lord, Lord Harris, have explained clearly the issues of secondary access, so, it being Third Reading, I do not intend to repeat them.

I do not support the amendment of the noble Lord, Lord Harris of Haringey. As he hinted, it is intended to highlight the fact that it is impossible for any employer or organiser of volunteers, however conscientiously they supervise a person working with children, to supervise them when they are off the premises. That leads us to the point that we have to ensure that the people who are on the premises working with children are safe to do so.

I hope that my noble friend will be able to assure the noble Lord, Lord Bichard, that his amendment is unnecessary. I hope that he will give him 100 per cent assurance, not just 80 per cent assurance. By that I mean that barring information will be made available to conscientious volunteer organisers or employers of paid employees.

We should cast our minds back to when the Safeguarding Vulnerable Groups Act was introduced. It was brought in because it was discovered that paedophiles were working in schools. At that time, the hapless Minister was made responsible. As a result, we set up an Act of Parliament to put in place a committee of experts to decide whether the information available made it possible to say whether that person was safe to work with children.

As the noble Lord, Lord Bichard, pointed out, only 80 per cent of the people who have been decided by the expert panel to be unsafe are known to the police. I point out that the enhanced CRB check contains information about not just charges and convictions but other information only if the police, at their discretion, think it is relevant to release it.

That expert committee has barred one in five people not as a result of police information but because of other information that the police do not know and

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therefore could not release even if they wanted to. Those experts believe that the information passed to them is serious enough to bar that person from working with children. Given that you cannot supervise a person 100 per cent even on the premises, and you certainly cannot supervise a person off the premises, it is only right that conscientious employers who want to do the right thing for the young people in their charge should be able to have that information-not just the police information but the information from the expert committee, which we as a Parliament have set up, and which believes that that person is not safe to work with children.

That is particularly important given that we are taking away certain roles from regulated work. That means that organisations such as FE colleges cannot under the Bill get that information about some of their employees. That beats me. I cannot for the life of me figure out why the Government feel that it is appropriate to treat young people in colleges differently from those very same children when they go to a school for the rest of the week. However, that is beside the point, because the amendment of the noble Lord, Lord Bichard, would allow employers in colleges to obtain the information that they are crying out for to enable them to protect young people in their charge. I hope that my noble friend will be able to give us a 100 per cent assurance that those risks and loopholes will be closed.

The Earl of Erroll: My Lords, everyone is singing from the same hymn sheet on this matter. These are very well meaning amendments and I thoroughly approve of the sentiment behind them but I should like to strike a note of caution: I am not sure that they will necessarily work in the real world because rules do not protect people.

I think that we are going to get the same problem as arises with the Health and Safety Executive. I know that applying for CRB information is supposed to be voluntary but colleges will protect themselves defensively by automatically asking for checks on everyone. Such requests will become standard and we will be back where we were. The purpose of the Bill is partly to try to reduce the number of checks being carried out, as they have been blocking perfectly good and well known people working in situations where they might come into contact with children or whatever. We were going so far overboard that something had to be done to roll the situation back, and we have to be careful that we do not end up back where we were.

The other thing is that we must think about how effective all this checking is. We know that several thousand records are incorrect, with people having a black mark against their name because the name given is wrong or whatever, but the trouble is that we do not know who they are. They are being criminalised when they are not criminals at all and have never been in contact with children in any way. They are not even victims of hearsay.

The second problem is that 20 per cent of the people on the register, I am horrified to say, are there as a result of unverified hearsay. That may be perfectly all right, as I expect that a large proportion of those people will have done something wrong. However,

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what about those who cannot do anything about it because they do not know that someone-possibly for a thousand and one reasons-has given information which could be blocking them?

My final point is about keeping our eyes open. It has to be remembered that in many instances someone without a criminal record will just be someone who has not yet been caught. Therefore, just because they do not have a criminal record does not mean that they are okay, and that is why I think that we have to start keeping our eyes open. The trouble is that we trust too much in box-ticking, and that then also constrains the people who are trying to protect the children-the governors and teachers. My wife is a senior school governor and was recently involved in a case where she had to go to court because the school in question was trying to fire a teacher. This is an example of something happening off the premises. It involved a friend of the teacher who was behaving inappropriately towards the children. The teacher's union defended the teacher's right to continue to work at the school, despite the teacher having shown appalling judgment. The school was terrified of losing the case. My wife spent a huge amount of unpaid voluntary time in her busy day learning about the law and how to deal with the case in court and so on because she was going to have to attend the hearing. If she got it wrong, the teacher would be allowed to continue to be in close contact with the children. Therefore, you need to keep your eyes open.

We can often detect the bad eggs but the problem is that employment law does not let us do anything about it. I think that we need to look at how employment law restricts our ability to protect children, because you cannot say to someone, "You don't fit in. Your face doesn't fit-we think there's something wrong about it"; you have to continue employing them. Although it may not be a matter for this Bill, I think that some effort should be made in that direction, rather than just trying to tick more boxes. The databases are inaccurate and, on their own, will not protect children.

Baroness Howarth of Breckland: My Lords, I support the amendment of the noble Lord, Lord Bichard, and I understand why the noble Lord, Lord Harris, has tabled his amendment as an example. I say to the noble Earl who has just spoken that I, too, live in the real world-having spent more years in it than I am prepared to admit-dealing with victims and abusers. That is why I believe it is crucial that the Government listen very carefully to what is said on this amendment. It is only describing close and regular contact, and that is the absolute key.

This week, the Lucy Faithfull Foundation celebrates 20 years' work. As the noble Lord will know, Lucy was a very eminent Member of his Benches. During that time, the foundation undertook all the background work that has led to the understanding of grooming. Other organisations have picked up that work and developed it, but the basic work was developed and continued by that foundation. That work informs the knowledge of grooming and how children develop relationships and trust in adults whom they get to know in settings where they believe that they are safe. Indeed, I remind the noble Lord that some children

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are seriously abused within those settings. I cite the example of a teacher who regularly abused a number of small children in a classroom, until he was found out. These people are clever; they are totally able to deceive; and we have to recognise that the law has to be as clever as they are.

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I accept, as the noble Lord, Lord Bichard, said, that some of the regulations have not been appropriate. I recognise that the stewards who are to look after the Jubilee run in my local village now have to be checked, but they should not be checked because they will not have close and regular contact. The general public became very concerned and anxious about the fact that ordinary folk, doing an odd bit of volunteering, might be caught by the checks.

The other difficulty is that, if you work in a number of voluntary organisations, you have to be checked for each of them. The actual system has never really caught up with modern life. You do not want to know how many police checks I have. They are in a little folder and they have to be updated regularly. That is bureaucratic nonsense. Those are the kind of issues to which the Government should turn their minds and not to removing the protection of children.

Like the noble Lord, I too accept that something needs to be done about employment tribunals, but that is a totally different issue. The fact that the disciplinary procedure that takes people through schools and other organisations is protracted is bad for children as well as adults. I have known children who have been dragged through places for months, not knowing what is going to happen, before even the main case comes to court. That is an issue but it is not the same issue and it should not allow your Lordships to be distracted from the main point, which is protecting children.

I pay huge tribute to the noble Lord, Lord Bichard, who has carefully set out his points, which is why I am not trying to go through his intellectual arguments. I am simply trying to appeal to your Lordships' consciences in relation to where we are in protecting children in this country, which is a good place. The noble Baroness, Lady Walmsley, has played her part in getting us to this place. Many noble Lords have worked towards it. Remember, the noble Lord, Lord Bichard, like many of us who work in this area, knows about the pain. Soham taught him a great deal about the pain that is caused if you do not pay attention to this. Soham concerned someone who was previously known but who was not properly checked before he worked in the school.

I have dealt with the stories of children and families that you would not wish to hear: from those whose children's lives have been totally destroyed to those who have lost children. Therefore, all we are asking the Government to do is to ensure that when someone is in close and regular contact with children-not the steward and not a parent who goes on a group trip once a year-they are checked and that those checks are given to employers.

The church is another very good example. I have worked with people in churches who have had to deal with situations where wonderful people, as they are described, turned out to be serial and serious abusers.

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The Lucy Faithfull Foundation staff work not with nasty-looking people in raincoats but with respectable, professional, well meaning, well presented adults, who turn out to be the most horrendous predatory paedophiles. We must remember that and protect our children.

Baroness Heyhoe Flint: My Lords, I regret that I was not able to be present for the debate on Report, and I am therefore glad to have this opportunity to make brief comments on the progress that has been made on this part of the Bill. In the long innings of the Bill, I started off as an attacking batsman working with the sports and recreation sector in seeking to knock certain aspects of it out of the ground. I am now sufficiently reassured to play a steady, forward-defensive, strong and resolute stroke against the proposed amendment.

In previous debates, my sporting colleagues and I, including my noble friend Lord Addington, highlighted the concerns voiced by the sport and recreation sector, which has more volunteers than any other sector in the United Kingdom-no fewer than 2 million. The central concern was that the term "day-to-day supervision" was not workable for organisations that safeguard children in a wide range of specialised and unique environments. However, I very much welcome the clarity provided by the amended qualitative description of supervision, and was greatly encouraged by the assurance given by the Minister on Report that sports organisations would have precisely the discretion that they need in determining the appropriate level of checking for voluntary roles.

In counteracting the arguments put forward by the noble Lord, Lord Harris, I am grateful to the Government for having listened and responded in this way. My sentiments are echoed by the England and Wales Cricket Board, the Football Association and other members of the Sport and Recreation Alliance, which represents more than 300 governing bodies. The Government have struck the right balance and arrived at a proportionate place, and I look forward to hearing what the Minister will say today.

The governing bodies of sport are keen for this receptive dialogue to continue, and I welcome the Minister's other assurances on Report that his department will work alongside the sport and recreation sector to develop guidance and implement the new safeguarding framework, including in the further education sector. The noble Baroness, Lady Walmsley, spoke about that. Organisations that administer sport and recreation will need to plan well in advance of changes to ensure that the new system is implemented effectively. Therefore, anything that the Minister can say to reassure the hard-working staff of these governing bodies about the timeline and the process of the consultation will be greatly appreciated.

In conclusion, my key point, having had several in-depth meetings with the Minister and his team, and consulted very widely with national governing bodies of sport, is that we have been assured that safeguarding children will always be a priority of this Government. Safeguarding is the responsibility of everyone-the Government, employers, voluntary organisations and communities. The Government can ensure proper

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eligibility for criminal record disclosures for those working with vulnerable groups. However, it is also the responsibility of employers and voluntary organisations to ensure that they have in place proper, risk-based safeguarding mechanisms that protect children, and that they do not rely solely on a criminal record or barred-list check. Additionally, taking some supervised work out of regulated activity will give employers and administrators scope to make the appropriate judgment, and will reduce the burden on employers and encourage volunteering.

We in the sector that I represent have been assured that statutory guidance on supervision will be provided. The Bill makes it clear that supervision must be reasonable in all circumstances for protecting the children concerned. People working closely with children but not within regulated activities will be eligible for enhanced criminal record certificates. It is not right to provide barred-list information on enhanced criminal record certificates that does not relate to regulated activity. The information is not relevant to employers who are not providing regulated activities, and could lead to too many people being barred from work in which barring is not relevant. This action could significantly expand the scope of the scheme, possibly to greater numbers than proposed by the old scheme. With this proportionate and balanced understanding and government assurances, I feel it would be unwise to support Amendment 5 because it would take the regime back to something that would be disproportionate and would discourage volunteering across all sectors of life.

Baroness Butler-Sloss: My Lords, I very much support what the noble Baroness, Lady Howe, said from her enormous experience. I suggest that the House and particularly the Minister should take very careful account of it. Saying that means that I very much support what the noble Lord, Lord Bichard, said about his amendment, which I also support. I do not at the moment think that I support what the noble Lord, Lord Harris of Haringey, said. The amendment tabled by the noble Lord, Lord Bichard, is the one that matters.

The important point is regular and close contact with children. I listened with some dismay to the noble Baroness, Lady Heyhoe Flint, because I am not sure that she is talking about what we are talking about. I do not believe that what she said is really what we are concerned with on this amendment. I am a school governor-I am going to a governors' meeting tomorrow-and I have been CRB checked, but I cannot see for what reason I should be CRB checked because I never see a child without someone else there. Even when I go around the school, I am always accompanied. That is not what this amendment is about. It is about regular and close contact with children, as I said, and that is the point on which noble Lords should concentrate.

Baroness Randerson: My Lords, I thank the noble Lord, Lord Bichard, for putting forward this amendment. His huge experience and understanding of this issue give this amendment strength across the Chamber. Noble Lords will be aware that in the earlier stages of the Bill I put down amendments in relation to further education in particular. From the start, I have been very concerned that the Government's vision of the

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world of education is just too neat and tidy and has clear demarcation lines. In practice, life is not like that. The Association of Colleges, which represents the colleges, shares those concerns. It suggested that further education and sixth-form colleges should be placed in the same category as schools. The amendment tabled by the noble Lord, Lord Bichard, uses a form of words that takes a different, but appropriate, approach. It is a subtle, flexible approach that is suitable across a variety of settings, not just in further education or the world of education as a whole but in the church, voluntary organisations, leisure activities and so on.

In practice, young people develop relationships of trust with people to whom they can directly relate and who are helpful to them. Indeed, they often fight shy of relating to, liaising with or trusting the people who are formally in charge of a situation. Very vulnerable young people will instinctively shy away from figures of authority, so very often they develop a bond of trust with the lady in the canteen who gives them a extra-large helping, the IT technician who helps them sort out their computer, the lady in the library who does not give them a fine when they bring a book back late, or even the groundsman who has found them smoking secretly in a corner and has not told people in authority. Therefore, it is not easy to define that situation.

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I was concerned because I believed the Government had overlooked the fact that tens of thousands of 14 to 16 year-olds are educated in further education colleges. It is important to remind ourselves that children are under 18 and that two-thirds of A-levels in this country are taken in further education colleges-many, of course, by adults but also a very large number by 16 to 18 year-olds.

In addressing our remarks, perhaps the Minister could refer to vulnerable adults. There are many of those in further education colleges, but also in a variety of leisure settings, which could be covered by the definition in the amendment tabled by the noble Lord, Lord Bichard. The Government need to address that situation.

Finally, I very much welcome the fact that Amendment 5 puts the onus on employers. It makes it clear that good and responsible employers will be expected to seek that information. The noble Earl, Lord Erroll, referred to risk. It is important that we accept that we cannot rule out risk. Risk will always exist, but this amendment puts the onus on good employers to act in this appropriate manner.

I look forward to the Minister's response and I very much hope that he will be able to reassure us that the Government have taken the purpose of this amendment to heart.

Lord Hodgson of Astley Abbotts: My Lords, I participated in the Second Reading debate in November. I have not participated in the stages since, although I have read the proceedings in Hansard with some care. I intend to ask my noble friend to reject these amendments but, before I turn to the substance of my remarks and because this is such a difficult and emotional subject, I hope the House will permit me a brief diversion.



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At Second Reading, I made it clear that I thought the activities of those who preyed on children-or vulnerable adults, as the noble Baroness has just said-were repulsive. That was the word I used then and I use it again this afternoon. I went on to argue for the need for proportionality and the measurement of effectiveness and impact and so forth. Therefore, I was very disappointed when the noble Lord, Lord Rosser-I am pleased to see him in his place on the Front Bench-said in his winding-up remarks:

"It is all very well wanting to reduce regulation, as clearly the noble Lord, Lord Hodgson of Astley Abbotts, does, but not if it is at the expense of someone else's safety".-[Official Report, 8/11/11; col. 219.]

I regard that as a cheap shot. I am happy to be told that my judgment is wrong, that my understanding of the law is wrong or that the practical implications of what I am proposing are wrong, but I am not prepared to be told that I put the reduction of the regulatory burden before the safety of children. That was unfair.

The noble Baroness, Lady Howarth, gave the House a graphic explanation of her work in this area. I will just add my own few words. My wife's cousin is a forensic pathologist, and he undertakes for the noble Lord's department post-mortems of the most searing kind. I talked to him about his work and I asked him if he did not find it rather macabre. He said, "Not really, because I am a detective. Some detectives will crawl across the carpet looking for clues in the fibres. I am finding the clues in people, and I am therefore able to convict the guilty and let the innocent go free". Because I am squeamish, I also say, "Isn't it rather strange to be dealing with corpses?". He said, "By the natural order of things you get used to it but when we have a child brought into our post-mortem room, there is a palpable change in the atmosphere, the tension and the behaviour of the team". Whatever I am saying about the need to not accept these amendments, it is not because I think that children should not be protected. That forensic pathologist's stories of the things he has seen are harrowing beyond belief.

On 6 February 2012, the second day on Report, in moving his amendment, the noble Lord, Lord Bichard, said,

I say amen to that. I entirely agree with the noble Lord. I further agree that getting the balance right is exceptionally difficult.

However, I argue that to some extent the Government have already got the balance right, which is why I shall ask my noble friend to resist this amendment. I do so for three reasons: first, it changes the relative importance of judgment as opposed to process; secondly, there is a bandwagon effect in this whole area, which will result from some of the wording of the noble Lord's amendment; and, thirdly, there is the danger that this amendment will contribute to the further atomisation of our society.

On judgment versus process, I follow some of the remarks made by the noble Earl, Lord Erroll. When I was taking evidence on the preparation of the report Unshackling Good Neighbours, it was astonishing how

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many people saw the official check as the beginning and end of the matter. There is health and safety, and other areas, as well as the CRB. Too often, individuals did not wish or saw no reason to use or trust their individual judgment. My fear is that the more we push the process forward, the less people will feel that they need to use their judgment and intervene, because they feel that it is someone else's responsibility.

Strangely, in the briefing we received from Fair Play for Children, some of that attitude reveals itself. It states:

"We also point out the possibility that the person, in applying for another post within the organisation, might find himself subject to scrutiny against the barred list, and barring revealed. That places employers at that stage in an invidious position of having had such a person working for them with children and then having to comply with statute to refuse the new job".

I cannot for the life of me see what is "invidious" about this. It is about a proper, disciplined and clearly run business. If a person changes his job and has different responsibilities involving further exposure and involvement with children, at that point the employer is entitled to say, "I am afraid this is not something which you can become involved with because of the role you are now undertaking". When I read that the,

I believe that the Government have got the balance about right.


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