25 Apr 2012 : Column 1783



25 Apr 2012 : Column 1783

House of Lords

Wednesday, 25 April 2012.

3 pm

Prayers-read by the Lord Bishop of Bath and Wells.

Death of a Member: Baroness Ritchie of Brompton

Announcement

3.07 pm

The Lord Speaker (Baroness D'Souza): My Lords, I regret to inform the House of the death yesterday of the noble Baroness, Lady Ritchie of Brompton. On behalf of the House, I extend our sincere condolences to the noble Baroness's family and friends.

Roads: Private Investment

Question

3.07 pm

Asked By Lord Kennedy of Southwark

Earl Attlee: My Lords, we are considering a number of options for the future ownership and financing of the strategic road network, looking at a greater role for private funding to provide more investment. This feasibility study is considering a wide range of possibilities, and it will be taking account of the experiences of water, electricity, telecoms and gas as well as rail and other transport sectors.

Lord Kennedy of Southwark: That is a rather disappointing response from the noble Earl. I was hoping for "We've looked at it, it's a stupid idea, and we're not going to do it". What words of comfort does the noble Earl have for the motorist, the small business and the taxpayer that they are not going to have additional costs to bear if proposals to introduce further private capital to our road system come to fruition?

Earl Attlee: My Lords, the first comfort that I will give is that the feasibility study will consider the role that tolling can play, but it will not consider tolling existing capacity or road pricing. The purpose of the feasibility study is to look at how we can better run the strategic road network into the future so that investors can make long-term decisions rather than the short cycles that we are experiencing at the moment.

Lord Mawhinney: My Lords, will my noble friend learn two lessons from the privately designed, built, financed and operated stretch of the A1 between Alconbury and Yaxley? The first is that without that privately funded scheme-which I declare to the House I authorised-motorists on the A1 would still be

25 Apr 2012 : Column 1784

bogged down in horrendous traffic jams with very little likelihood that that road would have been financed directly from the public purse. The second lesson that I hope he will learn is that when cost negotiations are taking place with the private sector they should be done with maximum vigour on behalf of the taxpayer.

Earl Attlee: My Lords, I regularly used to use the bit of road that my noble friend refers to. Particularly impressive was the rate at which the construction project went ahead. It had all the signs of an efficient process.

Baroness Scott of Needham Market: My Lords, given that the objective of government is to encourage the investment of private finance in the transport sector, do the alternatives include the slightly less risky idea of creating a fund into which private investors can put money to invest in a portfolio of transport projects both new and existing?

Earl Attlee: My Lords, I am not quite sure about the exact proposal that my noble friend puts forward, but we are looking at all options and I will be grateful for any input from noble Lords into possible models.

Lord Davies of Oldham: My Lords, it may well be the case that the noble Lord, Lord Mawhinney, authorised an effective improvement to the roads, but I am concerned that the Minister effectively told the House that pretty well everything could be covered by this initiative. For example, would it be possible that there would be designated lanes for those who paid a road toll, so that we had the equivalent of first-class passengers on rail operating on our roads? Or would it mean that a mere resurfacing of the road, or just the addition of a junction, would effectively mean that the road had been upgraded and therefore could be subject to one of these initiatives?

Earl Attlee: My Lords, the noble Lord has made just the same points as I made to my officials. The key question is: is it additional capacity or is it merely an enhancement? If it is additional capacity, we would consider tolling it, but if it was just an enhancement, perhaps that would not justify tolling. The noble Lord puts his finger on an extremely important point.

Baroness Gardner of Parkes: Can the Minister tell me on this Anzac day whether he knows that Sydney Harbour Bridge is a toll road? It has paid for itself probably thousands of times over, but as far as I know there is still a small toll payable. Does he not think that it is a great advantage for people to have a road that otherwise they would not have, but that the cost should not be so high that it creates a major problem, particularly for local people in meeting the toll cost?

Earl Attlee: I am sure that my noble friend makes a very sensible point.

Lord Anderson of Swansea: My Lords, the Sydney Harbour Bridge may well be a successful toll bridge. The Severn Bridge is a successful bridge but it is causing a major impediment to investment in Wales. Given the other problems we face, could that be looked at afresh?



25 Apr 2012 : Column 1785

Earl Attlee: My Lords, as the Question is linked to railways, I can point out that we are electrifying to Wales.

Spencer Perceval

Question

3.13 pm

Asked By Lord Blair of Boughton

Lord Wallace of Saltaire: My Lords, the National Archives holds a number of records relating to the assassination of Spencer Perceval. To mark the 200th anniversary, a selection of these will be digitised and made available online through the National Archives website. The full range of records held by the National Archives about Spencer Perceval can be viewed in the reading room at Kew. The noble Lord might also like to know that a number of events are planned by the House authorities to mark the anniversary. These were set out recently in response to a Written Question by the Chairman of Committees.

Lord Blair of Boughton: I am most grateful to the Minister for that Answer. I confess to being somewhat surprised that there is no memorial to such a grave and unique event within the precincts of Parliament. Perhaps, before I get to my supplementary question, I may beg the indulgence of the House for a momentary reflection on this man and his relevance to our times. Above all, he was the House of Commons end of Wilberforce's great campaign for legislation to abolish slavery. Will the Government use the anniversary of Perceval's death to consider whether enough is being done in this country to combat the pernicious and degrading trafficking of women and girls for sexual purposes by organised crime, of which we have seen appalling examples in recent years in Lancashire and Yorkshire and, only a few weeks ago, allegedly in Oxford?

Lord Wallace of Saltaire: My Lords, there is a rather large monument in Westminster Abbey to Spencer Perceval. On the question of whether there should be one here, since I also have connections to Westminster Abbey, I am not enormously in favour of adding more political statues within the Abbey and I am not sure how many more memorials we necessarily want around here-that is a personal view, not the Government's view. On the trafficking of women, the Government issued their human trafficking strategy last year as a White Paper. We are carrying further the excellent work already undertaken by our predecessors on this very serious problem. It is not just a matter of the trafficking of women; a quarter of those who were trafficked in the last two years were children. The trafficking of children to this country is also a very serious problem.

The Lord Bishop of Chichester: My Lords, does the Minister agree that the continuation of slavery and quasi-slavery in very many parts of the world 200 years

25 Apr 2012 : Column 1786

after the so-called abolition of slavery continues to be a scandal, and could he outline what Her Majesty's Government intend to do in order to continually influence our partners in the international community to bring this to a speedy end?

Lord Wallace of Saltaire: My Lords, sadly, slavery has been with us from time immemorial. Governments have worked for more than 200 years now to get rid of slavery, but we are conscious that we do find instances, even within this country, where effective slavery is imposed, even occasionally on men. We are therefore working within and outside Britain through the United Nations, the Council of Europe convention and EU directives, and closely with our partners across the Channel, to see what we can do to operate against this worldwide problem.

Lord Walpole: My Lords, does the Minister know that I am directly descended from Spencer Perceval's sister, and that Henry Bellingham, the Member of Parliament for King's Lynn and now in the Foreign Office, is directly descended from his assassin? Mr Bellingham and I do speak to each other.

Lord Wallace of Saltaire: My Lords, I should like to know which sister he is descended from, because my understanding is that he had at least six sisters and at least six brothers. I should therefore explain that he was one of the many sons of the Earl of Egmont, so he was not entirely a commoner.

Lord Lexden: My Lords, would my noble friend think of reminding Mr Henry Bellingham that he has already experienced the Perceval family's taste for revenge, having been deprived of his Commons seat at the 1997 election by a direct descendant of the assassinated Prime Minister?

Lord Wallace of Saltaire: I have to admit that that was not in my brief. Perhaps I might add that Spencer Perceval was, like Wilberforce, an evangelical, and having read a little about him, I have to say that he was something of a prig. Included within his entry in the Dictionary of National Biography is the fact that in 1800 he wrote a pamphlet on Biblical prophecy in which he referred to the French Revolution as,

and identified Napoleon Bonaparte as the woman in Revelation, chapter 17,

Lord West of Spithead: My Lords, does the Minister agree that a suitable memorial to the 23,000 Royal Navy sailors who died stopping the slave trade might be more warships for the Royal Navy?

Lord Wallace of Saltaire: I note that the noble Lord makes a very strong point, which I have no doubt he will make again on a number of occasions.



25 Apr 2012 : Column 1787

Baroness Benjamin: My Lords, if the ghost of Spencer Perceval was to pass through this Chamber today, surely the question he would ask is, "Why, 200 years after my assassination, are not just slavery but discrimination and racism so rampant, and what is being done to eradicate them from society?" In honour of Spencer Perceval, therefore, will my noble friend tell the House how determined the Government are to completely wipe out this evil practice that affects certain parts of our society today who feel excluded?

Lord Wallace of Saltaire: My Lords, it might be beyond the capacity of government in an open society completely to eradicate all forms of prejudice. The Government are actively aware of the problems of the trafficking of women and children. Going around Yorkshire, I am aware that one of the things that the police come across, for example, is Vietnamese children trafficked into Britain to tend illegal cannabis factories. The trafficking of Nigerian children is also a problem. We are working closely with the authorities in a number of other countries. The Government and the relevant agencies have close liaison with their Chinese opposite numbers to combat Chinese people-smuggling. We are working as actively as we can.

Lord Foulkes of Cumnock: As far as I know, I am not descended either from Spencer Perceval or, thankfully, his assassin. On the more serious matter of anniversaries, I congratulate the Government on agreeing to support the 800th anniversary of the signing of the Magna Carta in 2015. Will they seriously also consider supporting the centenary of the start of the Great War in 2014 rather than the Battle of Bannockburn, which some people north of the border want to celebrate? I believe that it would be better to celebrate what Scots soldiers did to bring freedom to the whole of the United Kingdom.

Lord Wallace of Saltaire: My Lords, the question of which anniversaries we celebrate, particularly battles, is very sensitive. If any Members of this House find themselves in the Palace of Versailles, I recommend that they visit the Galerie des Batailles. It is a wonderful wing above the Congress room in which the two Chambers of the French Parliament met that celebrates French victories between, I think, the seventh century and 1813. It contains information on a large number of battles about which we were never told and on a very few battles about which we were told.

Baroness Butler-Sloss: My Lords, I congratulate the Government on their White Paper on human trafficking. However, is the Minister aware that a large number of men are trafficked both by debt bondage and by labour exploitation? They include not only those coming into this country but those being taken out of this country, particularly to Sweden.

Lord Wallace of Saltaire: I am aware that a number of men are trafficked. The figures I have suggest that the number is considerably smaller than that for women or children. I will check and will write to the noble and learned Baroness if she thinks that my figures are wrong.



25 Apr 2012 : Column 1788

Health and Social Care Act 2012

Question

3.23 pm

Asked By Baroness Deech

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, all government Bills receive post-legislative scrutiny within five years of receiving Royal Assent. However, I can reaffirm the commitment that I made at the Second Reading and Committee stages of the passage of the Health and Social Care Bill. Although five years would normally elapse prior to the Department of Health undertaking post-legislative scrutiny of a Bill, we will bring that forward to three years for the Health and Social Care Act 2012.

Baroness Deech: My Lords, I am grateful to the Minister for his reply. However, does he agree that the reputation of this House rests largely on its ability to scrutinise, and that there is still insufficient capacity for this House, not a department, to carry out post-legislative scrutiny? Does he further agree that the Health and Social Care Act is very different in the end from what was proposed? It aroused huge concern and must be a number one candidate for monitoring, not necessarily by the department but by this House to ensure the appearance of total objectivity.

Earl Howe: My Lords, I am in tune with the sentiments that the noble Baroness has expressed. I am sure that she will be in no doubt that my department will be monitoring the implementation of the Act very closely. Of course Ministers will continue to provide information to Parliament-for example in response to Questions and in Select Committees and, indeed, in debates if noble Lords put down Motions. I am sure that we will provide a lot of information both on the implementation of the Act and on health and social care more widely in the months and years ahead.

Baroness McIntosh of Hudnall: I wonder if the noble Earl can explain a remark that he made early in his original Answer to the noble Baroness, Lady Deech, when he said that all government Bills are subject to post-legislative scrutiny within five years. I am sure that that is true in some way, but not in a way that I personally understand, and I am sure that it is not entirely clear to the House in what way such scrutiny is carried out. It certainly is not what is commonly meant by post-legislative scrutiny-that all Bills should be subject to it.

Earl Howe: My Lords, my understanding is that formal post-legislative scrutiny is a relatively new invention. It came in under the previous Administration in, I think, 2008. So until now there have been very few if any-there may have been one or two, a

25 Apr 2012 : Column 1789

handful-formal post-legislative scrutiny processes. But we will, of course, see this as a more regular feature going forward.

Lord Mawhinney: My Lords, my noble friend has just reconfirmed that post-legislative scrutiny will take place in three years-that puts it in 2015. Can he tell your Lordships' House whether the Government have a policy to have that scrutiny before or after the general election which is alleged to be taking place that year?

Earl Howe: My Lords, the plan is to conduct the post-legislative scrutiny three years from Royal Assent, so it will no doubt fall immediately prior to what one assumes will be the date of the next general election.

Lord Campbell-Savours: By whom is this post-legislative scrutiny on a five-year basis being conducted?

Earl Howe: My Lords, it will be conducted by the Health Select Committee of another place. The process is that the Department of Health will submit a memorandum to the Health Select Committee and that memorandum will include a preliminary assessment of how the Act has worked out in practice relative to the objectives and benchmarks identified during the passage of the Bill.

Lord Patel: My Lords, the noble Earl said in response to the Question of the noble Baroness, Lady Deech, that in the interim period the department will be undertaking scrutiny of the work of the bodies set up. Can he tell the House how the results of that scrutiny will be reported to Parliament?

Earl Howe: My Lords, the performance of the health service will be very visible as we go along: we will have the NHS Commissioning Board producing its annual report; each clinical commissioning group will be publishing an annual report; directors of public health must produce an annual report; the Secretary of State has to report annually on the overall performance of the health service; and HealthWatch England has to publish an annual report. So there will be no shortage of transparency along the way.

Baroness Jolly: My Lords, as for the Health and Social Care Act, scrutiny was, of course, done by this House. However, there is still more to be done, because there is quite a lot of secondary legislation still to come down the track. Can the Minister give the House some indication of how many pieces of secondary legislation are still to come, when they might be introduced and what areas they will cover?

Earl Howe: My Lords, I cannot yet give my noble friend a precise number, but before the House breaks up in the summer we hope to lay a number of statutory instruments. Some will come into force this October, others are designed to come into force next April, but we will of course be consulting, where appropriate, on all of those and I shall be happy to give the House further information when I have it.



25 Apr 2012 : Column 1790

Baroness Masham of Ilton: My Lords, does the Minister agree that HealthWatch has been left in limbo? Would he agree to a fast-track legislative scrutiny?

Earl Howe: I do not agree that HealthWatch has been left in limbo; in fact, only this morning I was attending a round table of pathfinder local healthwatches and witnessing for myself the tremendous energy and enthusiasm that they were devoting to HealthWatch. So the short answer to the noble Baroness is no, I think the process as regards HealthWatch is very much on track.

Baroness Thornton: My Lords, my question follows on very nicely from that of the noble Baroness, Lady Masham, because "No decision about me without me" was the Government's mantra when they first introduced the White Paper and the Bill. I would like to know not only how soon that mantra might become a reality but also, in terms of post-legislative scrutiny, how the Minister thinks that post-legislative scrutiny might be carried out to allow independent scrutiny given that the two bodies that will essentially control the funding for the patients' voice, HealthWatch, are the Care Quality Commission and local government-in other words, government bodies?

Earl Howe: My Lords, we should not forget the capacity of Parliament, particularly the Health Select Committee in another place, to conduct scrutiny whenever it chooses. Indeed, your Lordships' House could if it wished configure itself in a way to conduct scrutiny of any aspect of the Health and Social Care Act.

Police: Racism

Question

3.30 pm

Asked By Lord Sheikh

The Minister of State, Home Office (Lord Henley): My Lords, the Government take allegations of police racism very seriously. Any such allegations must be investigated thoroughly and, when and where required, perpetrators must be dealt with robustly. I have confidence in the ability of leaders of the police service to deal with this issue.

Lord Sheikh: My Lords, I thank the Minister for that reply. What assurance can my noble friend give your Lordships' House that police officers and staff are receiving appropriate training in community and race relations following on from recent events? Academic research has found that there is still a low level of diversity in senior and specialist ranks of the police forces. What more can be done to encourage police forces to recruit, retain and promote police officers from a diverse background?



25 Apr 2012 : Column 1791

Lord Henley: My Lords, taking the noble Lord's first question first, he is right to talk about the importance of appropriate training, which all police forces are doing up and down the country. We will encourage them to continue doing so. As for his second question about low levels of diversity in the senior and specialist ranks of the police force, he is right to emphasise that point. It is important that we improve diversity at all levels and that police forces remain representative of the communities that they serve so that they can better understand their needs and ensure that the services they provide are appropriate. That is something that the leadership of police forces up and down the country is ensuring is done.

Lord Mackenzie of Framwellgate: My Lords, in fighting racism, which the whole House will support, does the Minister agree that the routine use of the race card is not helpful? Is he aware that when I made a complaint to the commissioner about Commander Ali Dizaei-they were serious allegations-who subsequently went to prison, a complaint was lodged against me with the Clerk to this House, alleging racism and abuse of authority? That complaint was written on behalf of the National Black Police Association by the Society of Black Lawyers. Does he agree that those organisations that seek to represent their members should check the facts far more clearly when making serious allegations that can affect people's reputation and even livelihoods, and that it is not helping the fight against racism?

Lord Henley: The noble Lord makes a very important point about the problems that we are dealing with. What I want to get over is that we do not believe that the police are institutionally racist. It is very encouraging that in the case of the recent allegations the police officers themselves reported that issue, and it is evidence of the fact that there is no institutional racism in the police force. Obviously, cases will nevertheless come to light from time to time, and they must be dealt with in the most appropriate manner. That is why we are looking at the leadership of all police forces, and why we want ACPO and the Met to do their bit and the Mayor of London to do his bit-and in future we want police commissioners to do their bit-to make sure that racism is tackled at every possible level.

Lord Dear: My Lords, I am sure that we all deplore racism and discrimination wherever it occurs, particularly in organisations as pivotal as the police service, which can intervene and interfere in everyday life. I have two questions for the Minister, both concerning leadership, which have already been mentioned tangentially. Will he agree with me on the Floor of the House that in any organisation, and particularly in the police, leadership is absolutely key in influencing the culture of the service-its standards, ethics and so on? If he does agree, as I am sure he will, will he then go further and agree with me that part two of the recently published report from Mr Tom Winsor presents a golden and once-in-a-lifetime opportunity to seize the issue of police recruitment of top-level people and their advancement into rank at an early stage, that it will

25 Apr 2012 : Column 1792

remain at the top of the Home Office agenda, and that there is a real will to continue to pursue that to its final conclusion?

Lord Henley: My Lords, I am grateful to the noble Lord, Lord Dear, for emphasising the importance with which we see the role of leadership within the police force in dealing with these matters and getting the culture right. I hope that will continue. As regards his second point about Winsor, I agree with him on that and we will pursue it. However, I believe that a degree more consultation is needed, and we will certainly do that in due course.

Baroness Hussein-Ece: My Lords, is not the failure to deal with incidents of racism, particularly in the Metropolitan Police, a stain on our tolerant civilised society? Is it not further in stark contrast to the case of Liam Stacey, the student who was jailed for 56 days for posting offensive comments on Twitter after the collapse of the footballer Fabrice Muamba? What urgent action is being taken to restore trust between the police and the communities, and to stamp out the evil scourge of racism that still exists in certain sections of the force?

Lord Henley: My Lords, I am afraid that I do not agree with my noble friend that there is a failure on this occasion. What has happened is that the police themselves have recognised that there is a problem. It was the police officers themselves who raised these allegations and are dealing with them. That is the encouraging sign, indicating that there is not the institutional racism that has been alleged existed in the Met in the past. I am very grateful therefore that that is happening and that those matters are being dealt with.

Lord Hunt of Kings Heath: My Lords, on the question of leadership I take this opportunity to commend the police commissioner on his robust action in relation to the matter to which the Minister has just referred. Can I, however, take the noble Lord back to the Statement that he gave yesterday? He told us that the Home Secretary is considering whether an independent inquiry should be established into allegations of corruption in relation to the original investigation into the murder of Stephen Lawrence. If the Home Secretary agrees to set up an independent inquiry, will the Minister consider passing on to her the suggestion that that inquiry might look at what progress has been made by the Metropolitan Police since the Macpherson report was published?

Lord Henley: My Lords, I echo the noble Lord's opening remarks. As regards his other remarks about the Statement I made yesterday, I think he will remember that there was a general consensus in the House that this was a matter on which we needed to move relatively slowly. I can therefore say to him that things have not moved on much further in the 12 hours since I made that Statement. My right honourable friend the Home Secretary is therefore still considering what to do, and will go on considering those matters while the Met's internal review continues. I will also make sure that she takes note of the comments that the noble Lord has made when she comes to make a final decision on that matter.



25 Apr 2012 : Column 1793

Sunday Trading (London Olympic Games and Paralympic Games) Bill [HL]

Committed to Committee

3.38 pm

Moved ByLord De Mauley

Lord Steel of Aikwood: My Lords, before we pass this Motion I want to ask a question of the Minister about how and which Bills are selected for expedited procedure and others not. I am particularly concerned because this Bill is due to go through all its stages in this House tomorrow, and all its stages in the other House on Monday. That is in stark contrast to what has happened to the Bill which we passed in this House unanimously, the House of Lords (Amendment) Bill, of which I was a sponsor, which was a very modest measure that would improve the workings of this House. I am increasingly annoyed that although that Bill was sent to the other place on 1 March, and despite all the representation that has been made, nothing has happened to it since.

My Bill does not need expedited procedure. It is such a small measure, purely internal to this House. It does not affect anybody in the outside world, or indeed the House of Commons. The current position is that it is due to be debated on Friday, thanks to my honourable friend the Member for Argyll and Bute, who has tabled it. But of course it has absolutely no chance of passing into law, despite the days that we spent on it in this House, unless the Leader of the House of Commons tables an expediting Motion tomorrow. That is what I am hoping the Minister will agree should be done. I remind the Minister that the Bill is purely internal to this House. It involves no public expenditure. It simply authorises the House authorities to do what the all-party committee under the noble Lord, Lord Hunt of Wirral, recommended, which was to draw up a retirement scheme. It enables the House authorities to consider withdrawing the Writ of Summons from those who without due cause do not turn up for six months or so. It also brings this House into line with the House of Commons on the ability to expel serious wrongdoers.

The reason for my mounting irritation on this matter is that I spoke to the Deputy Prime Minister about it at the start of the Easter Recess. He said he was going to speak to the Leader of the House of Commons. I have heard nothing since. I pay tribute to the Leader of the House here and the Leader of the Opposition, who have both made their representations on this matter.

I am asking the Minister to undertake today to convey to the Leader of the House of Commons that we want an expedited Motion tabled tomorrow to enable the Bill to go through. In doing so he could gently say to the Leader of the House of Lords that, if we do not get that, we might find a sudden outbreak of Sabbatarianism in this House. I have the Bill in my hand; it is capable of at least 300 amendments. That would make life rather difficult if he wants to get this Bill through. This may not be the right approach; I

25 Apr 2012 : Column 1794

leave that to the Minister. However, do not underestimate my irritation that this matter has simply not been addressed properly. It is an insult to this House, which spent so long putting the Bill through to the House of Commons.

Lord De Mauley: My Lords, the House of Lords (Amendment) Bill which my noble friend introduced was passed by this House and sent to the House of Commons in March, as he says. My noble friend is quite right to point out that it contains a series of worthwhile measures which this House has shown it supports. However, the Bill is now in the hands of another place. It is a Private Member's Bill, and will therefore be subject to the procedures which apply to Private Members' Bills in another place. Having said that I will of course pass his comments to the Leader of the other place.

Motion agreed.

Parliament Square (Management) Bill [HL]

Bill Main Page

Third Reading

3.42 pm

Motion

Moved by Lord Marlesford

Lord Martin of Springburn: My Lords, I have no intention of seeking to delay this piece of legislation, but I would like some assurances from the Minister. This is obviously a beautiful square, which was greatly enhanced by the cleaning up of the stonework at Westminster Abbey, and of the stonework and the creation of the visitors' centre here at the Palace of Westminster. However, approximately 10 years ago, the Home Office promised and delivered a Bill through both Houses which stated that it would stop the permanent encampment of people like the late Mr Brian Haw in the square. He turned the square into an absolute eyesore and indeed a health hazard. All sorts of strange things happened at that place because of his permanent encampment. Every time that the police acted on the legislation that was introduced by the Home Office, a judge-and I make no criticism of the judges-duly instructed them to put Mr Haw's dirty and unsightly equipment back on to the square, facing the House of Commons, where visitors from all over the world would turn up. It was a disgraceful situation.

3.45 pm

We even had those who called themselves the Tamil Tigers and held hunger strikes, not only on the pavement but on the square itself, which meant that anyone who wanted to visit the beautiful memorials to people like Abraham Lincoln, Nelson Mandela and Lloyd George could not do so. Any of us who have been involved in demonstrations, in the trade union movement or any other movement, know that when you demonstrate at

25 Apr 2012 : Column 1795

Parliament you turn up, make your demonstration and then go on your way, back to your place of work. That did not happen with Mr Haw and the other individuals involved.

One individual had a loud-hailer that was so loud that it even gave offence to the press corps here in the Palace of Westminster, who complained that even during the parliamentary recess they could not do any work because the loud-hailer was so loud. Some of the utterances from that loud-hailer were saying, for example, that certain parliamentarians were murderers. That cannot be right.

I make this point because the legislation was brought in by the Home Office around 10 years ago. I do not know the exact time but it was when Charles Clarke was Home Office Minister. That is not a criticism of him; it is just to give noble Lords an idea of the time window that I am talking about. Could the Minister here or the promoter of the Bill give us assurances that the Bill will solve the very problems that I have been talking about?

The Chancellor of the Duchy of Lancaster (Lord Strathclyde): My Lords, we are just passing my noble friend Lord Marlesford's Bill, and it will then go to another place. However, I assure the noble Lord, Lord Martin of Springburn, that at the very highest level of our Government there is a great interest in what is happening in Parliament Square. There has been considerable improvement in recent months, but no stone is being left unturned-using legal means-to try to improve the situation. I hope that we can move on to whether the Bill do now pass.

Bill passed and sent to the Commons.

Legal Aid, Sentencing and Punishment of Offenders Bill

Legal Aid Sentencing and Punishment of Offenders Bill

Commons Reasons and Amendment

3.48 pm

Motion A

Moved by Lord McNally

The Minister of State, Ministry of Justice (Lord McNally): My Lords, Motion A is the Commons response to the amendment by the noble Lord, Lord Pannick. That amendment has prompted a great deal of high quality, thoughtful and principled debate, and I am extremely grateful to the noble Lord and other legal luminaries in this House who have given us the benefit of their expertise in exploring its effects. Although we have not been able to agree on precisely what those

25 Apr 2012 : Column 1796

effects are, I thank the noble Lord for his clear argument and his commitment to the important constitutional principle of access to justice. I fully understand his motives in doing so. However, the House of Commons has given us its view on the amendment, and I ask the House to support the position that it has taken. I beg to move.

Lord Pannick: My Lords, I am very disappointed by the Government's response to the amendment on the purpose of legal aid, approved by this House on Monday. Noble Lords will know that this amendment had its origins in a recommendation of your Lordships' Constitution Committee, of which I am a member. The recommendation was strongly supported by many noble Lords at Second Reading and in Committee. The amendment was approved in this House on Report by a majority of 45 votes. After the other place disapproved of the amendment, this House voted again on Monday night, and your Lordships approved an amendment in similar terms, this time by a majority of 15 votes.

At no stage during this parliamentary process has the Minister or anyone else on behalf of the Government made any proposal, publicly or privately, for meeting the concerns of this House, whether by a revision of the wording of the amendments approved in this House or in any other respect. That is despite what the Minister kindly described as the very high quality debates that we have had in this place.

In my view, to ignore the views of this House in this way by bringing forward no proposal whatever to meet the concerns expressed here is, at the very lowest, most regrettable. It is all the more regrettable when the issue is of constitutional concern. I hope that these views may be shared, even by noble Lords who did not support the substance of this amendment.

The sorry state of this saga is exacerbated by the application of financial privilege to this amendment, even though it expressly stated that the allocation of financial resources was a matter for the Lord Chancellor's discretion. This raises issues of considerable concern, which I hope will be shared on all sides of the House. Of course I recognise that financial privilege is not a matter for the Government, but I have had no indication at all that the Government made any representations in support of my contention, shared by many other noble Lords, that it would be quite inappropriate to apply financial privilege to an amendment that expressly stated that financial resources were a matter for the discretion of the Lord Chancellor.

Notwithstanding these matters, I have, with regret, come to the conclusion that I can take this amendment no further. Noble Lords have asked the other place to think again and it has done so. Although I disagree with the result, I do not think it appropriate to invite the House to press the matter further. I should add that if I were a Member of a House of which 80 per cent of Members were elected, I would certainly persist on this matter. Furthermore, given the very limited time made available in the other place for consideration of the amendments that we passed in this House, and given the general absence of scrutiny of this legislation in the other place, I suggest that it is not the procedures of this House that are urgently in need of reform.



25 Apr 2012 : Column 1797

I hope I will be permitted to make one other observation; I do so despite the genuine respect I have for the Minister. The unsatisfactory manner in which the Government have treated this amendment is, I regret, typical of the unsatisfactory manner in which the Government have proceeded on this Bill generally. The Government were defeated on this Bill on 11 occasions on Report and three times again last Monday. So large a volume of defeats occurred because the Government adopted inflexible attitudes and lost the arguments on their merits. Part 1 of the Bill has been made marginally better by the amendments, which are the product of the considerable work done on all sides of this House. The Bill would have been marginally better if this amendment had been accepted, but this remains a bad Bill and there remains in particular a bad Part 1 in it on legal aid.

The Government's general inflexibility on the Bill, as with Amendment 1 in particular, has involved a failure adequately to assess the impact of the provisions before their implementation, a refusal to take on board the fact that many of the financial savings at which Part 1 is aimed are illusory because the denial of access to legal services will result in other financial costs to the state for disadvantaged persons who will be denied the benefits to which they are entitled, and because of a refusal to recognise that the limits on the scope of legal aid imposed by Part 1 will hit hardest the weakest and most impoverished sections of our society, often on complex questions of law such as are raised by immigration law.

The Government's treatment of my Amendment 1 is, I regret, consistent with this inflexibility and narrow perspective. I am sorry to say that the product of the Minister's hard work and the process followed by the Government on the Bill do not reflect well on this Government's reputation. They have damaged access to justice, a fundamental constitutional principle, as this amendment sought to recognise. The Minister has repeatedly emphasised in this House that the Government have accepted amendments during the passage of the Bill, but those amendments have mainly been on matters that should never have been excluded from the scope of legal aid in the first place.

I pay tribute to the noble Lords, Lord Bach and Lord Beecham, for their tireless and eloquent work in exposing the defects in Part 1. I thank them, the noble and learned Lord, Lord Woolf, and the noble Lords, Lord Faulks and Lord Hart of Chilton, for adding their names to the amendment. I thank all other noble Lords who supported the amendment during the passage of the Bill.

Lord Howarth of Newport: My Lords, the amendment moved by the noble Lord, Lord Pannick, on Monday, and the sense of it being approved twice in your Lordships' House, sought to enshrine in Part 1 of the Bill access to justice as the objective of the Bill. Such a statement of principle was made in the Legal Aid and Advice Act 1949 and has been reaffirmed in every Act of successive Governments, including Conservative Governments, dealing with legal aid. When the Labour Government introduced the Access to Justice Bill in 1998, it included Clause 4(1), which instructs the Lord Chancellor to promote,



25 Apr 2012 : Column 1798

At that time, the Liberal Democrats and Conservatives, in opposition, wanted to place further duties on the Lord Chancellor. The noble Lord, Lord Goodhart, speaking from the Front Bench on behalf of the Liberal Democrats, said:

"What needs to be stated at the outset is the reason for providing the funding".-[Official Report, 19/1/99; col. 480.]

It would be helpful if the Minister, the noble Lord, Lord McNally, speaking as a Liberal Democrat, would explain to us why the Liberals have now changed their tune.

4 pm

On the matter of financial privilege, opening his speech in another place yesterday Mr Djanogly said:

"Lords amendment 1B, dealing with the statutory duty for legal aid, impinges on the financial privileges in this House".-[Official Report, Commons, 24/4/12; col. 830.]

I hope the Minister will be good enough to provide us with the Government's computation of the predicted additional costs to public expenditure of the incorporation of the amendment in the legislation, and make some observations on the appropriateness of the claim by the Minister in the other place at the outset, as his leading argument, that the amendment would impinge on the financial privilege of the House of Commons. None of us here contests the principle of financial privilege, but equally there is no obligation on Governments to claim financial privilege in relation to particular amendments. It seems very surprising that an amendment that demonstrably has no implications for public expenditure should have been subject to such a claim, and-

Lord Thomas of Gresford: My Lords-

Lord Howarth of Newport: If I may be allowed to finish my sentence, I would be grateful if the Minister would be willing to help us understand why the Government felt it appropriate to make that claim. As I have now finished my sentence, it is with pleasure that I give way to the noble Lord, Lord Thomas.

Lord Thomas of Gresford: The noble Lord suggested that the Liberal Democrats have changed their tune. The noble Lord will recall that in Committee, on Report and on Monday I said that this amendment meant nothing and added nothing to the Bill. I was supported by my noble friend Lord Lester, who said it was just water.

Lord Howarth of Newport: That may be the view of the noble Lord and his noble friend. It is not the view of the noble Lord, Lord Pannick, and those of us who supported him on two occasions in inviting the other place to think again about this matter.

Baroness Butler-Sloss: My Lords, I strongly support the noble Lord, Lord Pannick. It is manifestly absurd-to me, at least, and it may be to other Members of this House-that this particular amendment should be treated as having anything to do with financial privilege.

25 Apr 2012 : Column 1799

I have always been very hesitant to vote against the Government at the ping-pong stage, as I have always thought that they should get their business through. I voted with the noble Lord, Lord Pannick, on Monday because of the financial privilege point, and for that reason I say today that, whatever else has been said, I find it inconceivable that the Minister in the other place should again have called it financial privilege.

Lord Mackay of Clashfern: Perhaps it is worth pointing out that when this amendment was called, the Speaker of the House of Commons intimated that financial privilege was involved in the amendment. The reason for that is not explained as part of House of Commons procedure. Your Lordships know that I have had some difficulty in the past with references to this feature in relation to other Bills. The fact is that it is not for the Government, at the beginning, to mention this point. It is taken by the Speaker on behalf of Parliament and on behalf of the House of Commons. I have no doubt that, as Speaker Martin told us the last time, he does so on advice from the Clerk of the House of Commons. The Government then proceed from there. They could, if they wished, ask the House of Commons to support the amendment, notwithstanding that it involved financial privilege, but the basic ruling that financial privilege is involved seems to come from the Clerks of the House of Commons. I confess that their way of dealing with the matter is not something that I fully understand.

Lord Woolf: Before the noble and learned Lord sits down, perhaps he could assist me with regard to the question of financial privilege. In view of what he just said about the Government's ability to invite the House of Commons to consider the amendment notwithstanding the point of financial privilege, does he accept that the Government could also have taken the action of saying, "We do not accept the amendment for good reasons"-which would be identified-"and, in those circumstances, we ask the House to indicate, in view of what has been said in this place, what its view is of those matters"? Financial privilege has no substance in fact. As all lawyers know, if the facts are totally inconsistent with the conclusion that is reached, that is wrong as a matter of law. An appellate court will always interfere with a fact-finding tribunal's decision if it is wrong in law in that sense.

Lord Mackay of Clashfern: My Lords, if that is directed at me-

Lord Woolf: It is. Perhaps I may make that clear to the noble and learned Lord, whose views I respect so much. I therefore request him to assist.

Lord Mackay of Clashfern: My Lords, the practice of the House of Commons, as I understand it, is that when an amendment is called that involves financial privilege-in the opinion of the Speaker acting on the advice of the Clerks-this is intimated; and my understanding is that the Government would not be able to challenge that at all, just as we, as a matter of practice, do not challenge it either, although sometimes there have been occasions when some have felt there was a possible reason for challenge. However, as a

25 Apr 2012 : Column 1800

matter of practice, we do not do that. It is open to the Government-notwithstanding the fact that financial privilege is involved-to invite the House of Commons to agree to an amendment that involves financial privilege. Then the Speaker has to certify in the Journal that a matter involving financial privilege has been passed by the House of Commons. The reason for that is that the House of Commons requires, generally speaking, a money resolution in respect of any expenditure involved in a Bill; and if a Bill involves expenditure, a money resolution has to be passed at some stage during the course of the Bill.

In this procedure, there is no room for a money resolution as such, because that happens earlier, but the signification made by the Speaker-in that situation where the House of Commons has decided, notwithstanding that financial privilege is involved, to agree to the amendment, in whole or in part-goes into the Journal in order to replace the need for a money resolution, and it of course authorises the Treasury to disperse money on the basis of that resolution of Parliament. That has nothing to do with the question of whether or not the amendment should be agreed, but, so far as concerns this House, if the resolution is based on financial privilege, the understanding has been-notwithstanding how difficult it might be on occasion for some of us to understand exactly how it arises-that we do not dispute that proposition.

Lord Howarth of Newport: Perhaps I may put it to the noble and learned Lord that while the exposition he has just given seems to be entirely correct, what is interesting-and this may not be a matter on which he personally would wish to comment, although I hope the Minister will do so-is why the Minister chose to emphasise at the outset of his speech that the amendment was subject to financial privilege. Of course it was. The Speaker made it clear to the House that that was the case. However, the Government could have asked the House to waive financial privilege and chose not to do so. That seems curious in an instance where nobody has been able to identify the expenditure implications of the particular resolution. That is what is perplexing us. Some of us have a larger worry about the practice that the Government have adopted of brandishing financial privilege at the outset of speeches in which they seek to refute or reject the advice of the House, because it tends to close down the argument. It leaves us wondering what the Government consider the useful role of this House to be.

Lord Clinton-Davis: Before it is too late, perhaps I may pay tribute to the noble Lord, Lord Pannick, to whom this House owes a tremendous debt. Throughout, he has argued passionately in favour of something he really believes in: legal aid. It is important that the basic principles that were laid down so long ago are observed. Like him, I believe passionately in the purposes of legal aid. Many people outside this House are indebted to what has been achieved.

Lord Bach: My Lords, I can be very brief. The Official Opposition share the disappointment of the noble Lord, Lord Pannick, in the Government's response to his amendment. The Government have approached

25 Apr 2012 : Column 1801

that amendment-a modest and sensible one by any standards-in a most unsatisfactory and unconvincing manner. We certainly agree with what the noble Lord had to say about financial privilege in the context of his amendment. There will be many inside and outside Parliament who will wonder for some time to come why the Government were not able to accept his amendment. We had no satisfactory reason given at any stage, and people will fear the worst as far as concerns this Government's intentions in relation to legal aid.

I, too, would like to pay a compliment to the noble Lord, Lord Pannick, as my noble friend Lord Clinton-Davis did. He is a model of the way in which a noble Lord can assist this House when dealing with difficult and complicated legislation, and he does it from a point of view that always has justice as its base. The noble Lord made some strong strictures on the Bill and I agreed with every word he said. I will be less polite than he was. There are parts of Part 1 of the Bill-the bits that destroy social welfare law-that are not just bad but actually wicked; and I choose that word with great care. They are wicked because they set this country back from the position it was in.

The noble and learned Lord, Lord Mackay of Clashfern, has a great reputation for making sure that the system of social welfare law worked well and to the benefit of the poorest in our society. I very much regret that the Government have changed all that for no savings at all. Even if the savings were great, they would not be worth it-but there will be no savings at all. Why do I say "wicked"? Because I think it makes this country more uncivilised and it diminishes something that is very precious to all Members of this House: our legal system. As such, it diminishes our country, too.

Lord McNally: We have heard that speech several times over the past few months. I repeat that the big betrayal of the poorest in our society would be to lose control of our economy. Sometimes noble Lords opposite take the biscuit in the way they put their arguments. The noble Lords, Lord Pannick and Lord Clinton-Davis, do not have a monopoly of passion in this area. The noble Lord, Lord Howarth, has used his argument before. We have consciously changed the direction of the 1949 and subsequent Bills that were open-ended in their commitment and now have one that is specific in its commitment. That is at the heart of our resistance to the Pannick amendment. It is to mislead the House to argue that the Government have not made clear from the start the purpose of the Bill and of the Lord Chancellor. I tremble to take on a former Lord Chief Justice or a most distinguished QC, but Part 2 states:

"The Lord Chancellor may make such arrangements as the Lord Chancellor considers appropriate for the purpose of carrying out the Lord Chancellor's function under this Part".

It is all laid out there in Part 2. To argue that it is not will mean that we will go round in circles.

I have never used the financial privilege argument. As is well known and as we have heard from some very experienced parliamentarians, if an amendment infringes privilege, that is the only reason that will be given.

25 Apr 2012 : Column 1802

If noble Lords want a major reconstruction of our constitution going back 300 years, that is all very well; but, as I said, the financial privilege of the House of Commons is not something to be lightly dealt with. Our opposition to the Pannick amendment from the beginning was that it was flawed, providing as it does a duty that is unclear in both application and effect, as well as displacing a duty that is precise, unambiguous and inherently tied to the Bill and the legally aided services available under its auspices.

I therefore ask the House to support the House of Commons in rejecting the amendment-I understand that the noble Lord, Lord Pannick, is not going to press it. This is really the time to ask the House to agree with the House of Commons.

Motion agreed.

4.15 pm

Motion B

Moved by Lord McNally

Lord McNally: My Lords, we now move to Motion B, which contains amendments in relation to domestic violence. The noble and learned Baroness, Lady Scotland, told this House on Monday that we had a choice to make. Let me reassure this House that the Government have made a clear choice in favour of victims. The Lord Chancellor made this very clear last week when he stated:

"It was never in doubt that there would be legal aid for the protection of victims of domestic violence. Domestic violence is an issue that this Government, like any Government, including the previous one, take extremely seriously".-[Official Report, Commons, 17/4/12; col. 219.]

The debate on the Bill that we have had over the past few months has not always reflected the extent of the Government's clear commitment to victims, so I will give some examples.

The Home Office will provide more than £28 million of stable funding until 2015 for specialist local domestic and sexual violence support services, and will provide £900,000 to support national domestic violence helplines and the stalking helpline. The Ministry of Justice will contribute towards the funding of independent advisers attached to the specialist domestic violence courts a total of more than £9 million up to the end of 2012-13. We will also allocate nearly £3 million a year for the next three years to 65 rape crisis centres and are working with the voluntary sector to develop the first phase of new rape support centres where there are gaps in provision. Domestic violence protection orders are being piloted in three police force areas. We have also announced a one-year pilot that will take place from this summer to test out a domestic violence disclosure scheme known as Clare's law.



25 Apr 2012 : Column 1803

We have always been clear that where there is a need for a protective order to prevent victims coming to further harm, legal aid will be available regardless of means. Separately, legal aid will be available for victims of domestic violence for the secondary issue of private family law proceedings-we have always made clear that this should be the case. The issue in hand is how best to apply this principle.

I will remind the House how far the Government have moved. The evidence list has been very significantly lengthened to include protective injunctions, criminal conviction or ongoing proceedings, undertakings, police cautions, evidence of admission to a refuge, evidence from social services and GPs, referral to a multi-agency risk assessment conference and a finding of fact by the courts. We have doubled the time limit on evidence to two years, other than for convictions, where the only limit will be if the conviction is spent. This is a wide-ranging evidence set, which we are confident will meet the needs of victims in these cases.

I remind the House that our package of proposals contains two very important safeguards that will provide genuine victims with a route into legal aid even if they do not have the headline forms of evidence, the need for which may not have been fully appreciated. One is a finding of fact by the court. This is not part of the UK Border Agency list, which is often cited when assessing proposals, but it is extremely important because it means that where someone does not have the evidence we have stipulated but the courts determine that domestic violence is a relevant factor, perhaps on the basis of evidence from friends or family or a domestic violence support organisation, legal aid will be triggered. As such, even in older instances of domestic violence that go beyond the two-year limit, funding will still be available where a court has determined that it is still pertinent to the case. Of course, there remains the more generic safeguard of the exceptional funding scheme.

I submit that this package represents significant movement by the Government. I remind the House that we have now accepted the ACPO definition of domestic violence in full. We have listened and we have learnt from what noble Lords, Members of the House of Commons, and others said about our proposals. We absolutely agree that victims of domestic violence should receive legal aid. However, other than in protection cases, there needs to be evidence, and this should be covered in regulations because of the level of detail that will be required. This package is now worthy of support. The House of Commons gave its support to this, and now should we. I beg to move.

Motion B1 (as an amendment to Motion B)

Moved by Baroness Scotland of Asthal

Baroness Scotland of Asthal: My Lords, I listened with very great care to what the Minister said in support of his Motion. I listened to see whether there had been significant movement in the Government's understanding of the damage that the restriction that

25 Apr 2012 : Column 1804

remains in relation to domestic violence provision would do to victims, to their children and to the men engaged in this sort of behaviour. I have to say that I listened with disappointment.

I do not hesitate to adopt all the comments made by the noble Lord, Lord Pannick, on the Government's approach to Part 1 of the Bill. I reiterate immediately my appreciation for the fact that the Government have at last moved on definition, and to an extent in relation to the evidential gateway, but I find myself echoing what was said by the noble Lord, Lord Pannick: it was something that we should not have had to ask and press for for so long. It should have been freely and immediately given because it was founded on a fundamental joint understanding of domestic violence, which had been shared, I believed, by all sides of the House for the past 13 years of our Government, and which I was innocent enough to believe was still shared and understood today.

In looking at the amendments, I reassure the noble Lord immediately that I understand that the Government seek to break with the past and with the way in which we provided justice for individuals in our country through the provision of legal aid. That is something that I understand and regret. I also acknowledge that it is the Government's intention to limit their exposure to costs incurred by legal aid and to narrow the scope of provision. At the moment, 265,000 people a year get legal help. That will reduce by 79 per cent to 55,000 under the Bill. I understand that that is the Government's intention and it is something that I regret. At the moment, 112,500 people a year get legal representation. This will reduce by 40 per cent to 67,500 people a year under the Bill. That is something I also regret.

The impact that changes to private family law and legal aid will have on women is another area where it was accepted in the equality impact assessment in the reform of legal aid consultation that it would be the largest number of potential users of legal aid who would be affected by these reforms. It was also accepted that clients in this category were more likely to be female than in any other category of law except education. They represent 63 per cent of total clients, excluding those who have not identified their gender. This proportion exceeds that of the 16-plus population, which is 51 per cent, and that of all affected cases involving females, which is 56 per cent.

I accept that it is an intentional policy decision by the Government to remove that support. I have just told the noble Lord that that is something that I regret, but I accept it. However, we have to look at the provision that will be lost if the amendments go through. The noble Lord knows that at the moment, for ancillary leave proceedings, if an applicant fulfils the financial criteria and is given legal aid, any money that they receive over and above £2,500 can be recouped from them by the Legal Services Commission. If the person has money, £2,500 is the extent of the support that we as a country are minded to give litigants.

The noble Lord knows only too well that the longevity of the domestic violence issue far outlives a two-year period. Many women will never go to the police, to local authorities, to refuges or to their GP. They simply run. Sometimes they run to their families,

25 Apr 2012 : Column 1805

and sometimes they do not even seek ancillary relief. However, those women and their children will still have to respond if the perpetrator brings ancillary relief proceedings against them, whether in relation to maintenance, residence or contact, and if that comes after the arbitrary two-year time limit, the perpetrator, who will often be the more financially advantaged, will have the wherewithal to bring those proceedings, and the victim and her children will have no legal aid to support them. That is why, unlike the noble Lord, Lord Pannick, I will insist that we look at this again. The other place gave cursory attention to these issues. If this is the only issue that will be returned to it, perhaps it will be able to consider it at greater leisure. If it does, perhaps the sagacity of this House will assist it to do a little better than it has to date.

4.30 pm

As for why I am pressing our amendments, although the time limit is a huge issue of importance, so is the scope. As the noble Lord knows, if one has a valid claim, the only criteria or gateway ordinarily required is that cogent evidence or information be brought before the court to persuade it that that assertion is correct and valid. The imposition of the time limit on this occasion is not justified in view of the way in which domestic violence occurs-it flies in the face of our deep understanding of that phenomenon. It is important that we look at the places where applicants go: it is not just to refuges. For example, we know that many councils outsource their provision of outreach services to CABs or local third sector organisations, knowing that they can be more effective at satisfying needs than state social services. Those agencies need to be included. At the moment the gateway does not include information from the police that there have been a number of attendances at a matrimonial home. The noble Lord will know that many victims do not press the matter on to charge or to conviction. The police may have been called many times, but if there is not a charge or a caution, the applicant-victim-will not be able to rely on that for legal aid.

The framework that we suggest in my amendment, which would be better placed in legislation, is just that: there is room within my amendment, if the Government so wished, to bring further regulations, to amend or alter; but the framework would be set in a way that is helpful. Noble Lords will know that this Bill has already made provision for modification. The concessions made in relation to Clause 9(2) mean that we now have an in-built procedure to remove, add or modify Schedule 1 by order, subject to the affirmative procedure. If we were to maintain the framework in legislation, there is a perfectly acceptable means of doing so. The noble Lord also knows that if we deal with this issue only by affirmative resolution, we can either accept or reject, and it is a very blunt instrument. Therefore, I suggest to the House strongly that our position would better secure the well-being of the victims.

We have a choice to make today. It is about the quality of the country we wish to live in. Domestic violence victims are the most vulnerable. One in four women will be affected by this, one in six men and 950,000 children. I ask the Government to think again.

25 Apr 2012 : Column 1806

It will be too late to say we are sorry when we find that because we did not give legal aid in relation to ancillary and other proceedings to genuine victims, people died. This is not a case when we can say, "We do not know. We hope it will not happen". We have the empirical data. Over the last 30 years, we have learnt those lessons, so it is not a case of, "If we do this, it will be all right". From my 35 years' experience in this area, I can tell the House it will not. What we do really matters. There are women and children in this country who are frightened today because of what we are doing in this Bill, and if we wish to assist them, we will ask the other place to think again.

Noble Lords know that my amendments also deal with the child abuse issue in relation to the extension of the time limit. I will be asking the House to support me for one last time on this matter. The Government may have their way. This may be the final time we speak on this issue. I understand that this ping must have its final pong, but this is the last throw of the dice and it is important that we ask the Government to think again. The reason why the churches, charities and third sector organisations are all supporting this amendment is that they have to deal, day by day, with the reality of what we will do. I therefore beg to move.

The Lord Bishop of Chichester: My Lords, I strongly support the noble and learned Baroness in everything that she has just said. She has very starkly set out the figures and the likely impact of not sending this back to the Commons. She has quite rightly said that people could die as a result.

It is hard to engage in this discussion without having a rerun of the long debate that we have just had about the non-pursued Pannick amendment. It seems to me that we are in considerable confusion-and I have to say, with all due respect, that I do not think that the Minister helped us at all in this-about whether what is really at stake is the focus, orientation and purpose of the Bill, or whether it is a genuinely financial provision. We are really-I nearly used the expression "having the wool pulled over our eyes". I feel profoundly unsatisfied and unpersuaded by what we heard earlier this afternoon.

This boils down to the question of what kind of society we want to live in, and that is why it was so important to pursue the amendment in the name of the noble Lord, Lord Pannick, earlier on. I know that we have lost that, but this amendment gives us one more chance to say to the House of Commons, "If we do not get this right, people-in numbers that we cannot calculate, but certainly there will be people, women and children mainly, but some men as well-who will die as a result". I want to give the strongest possible support from these Benches to the noble and learned Baroness, Lady Scotland. I hope very much that we will support her this afternoon.

Baroness O'Loan: My Lords, the serious dangers of restricting legal aid in this area have been recognised by Members of this House and the other place and by the third sector as well as by the churches. The leaders of the Christian, Sikh, Jewish and Hindu communities

25 Apr 2012 : Column 1807

have all written to the Lord Chancellor saying that the Bill risks leaving domestic abuse victims,

They also warn that,

There is no accommodation for those who cannot secure admission to a refuge because it is full, or they have complex needs, or they have little boys who are older than 11, or perhaps because they fled an abusive situation, going to a friend or relative rather than to a refuge. Or even because, unable to access a refuge, they have still accessed non-residential domestic abuse services. There is no logic in excluding these women. Their need is not necessarily any less, and may indeed be greater, than those who manage to make it into the refuges.

Bringing time limitations on the validity of evidence in line with the civil standard would be an appropriate and fair move, not least, as the noble and learned Baroness, Lady Scotland, has said, because of the considerable time-if it ever happens-that it takes victims to be able to face legal process.

Without these changes our legal system will let down many of the most vulnerable people in our society. It will leave them potentially trapped in violent and abusive circumstances. The risks of that are potentially grave if not, as the right reverend Prelate said, fatal.

Lord Macdonald of River Glaven: My Lords, I spoke on the issue of domestic violence on a number of occasions during the Bill's passage. As the noble and learned Baroness, Lady Scotland, said, domestic violence is a phenomenon that breeds insecurity, violence and, as we know, sometimes death. Perhaps as bad as any of those, it travels across generations, repeating itself over and over, in worse and worse spirals of crime. In recent years, as noble Lords know, very much progress has been made by people working in social services, by medical professionals, lawyers, judges and others, in recognising and identifying domestic violence, sometimes in prosecuting it-winning convictions more often than we used to-and in dealing appropriately with its victims.

My concern was that, in its original form, the Bill plainly failed to heed some of these lessons. It failed to recognise that victims do not always present themselves in predictable ways, and that the justice system should-indeed must-offer a broad, expansive and empathetic approach to this crime, and to the victims of this crime.

I had two particular concerns. First, the definition of domestic violence within the Bill was far too restrictive, much more restrictive than the definition that is employed by ACPO and the CPS regularly, successfully and happily and to the good understanding of all agencies involved, including the courts. Secondly, I felt strongly that the range of material allowed to evidence domestic violence so that there was a gateway into legal aid for its victims was far too narrow. I am inclined to agree that neither of these defects should ever have been in the Bill in the first place, and I was surprised, to be frank, that they were.



25 Apr 2012 : Column 1808

I am extremely grateful to my noble friend, who has been happy-perhaps I do not know how happy he has been-to have many conversations with me on this topic. I am grateful to the Secretary of State, the Lord Chancellor, as well. I believe that the Government's response has been broad. I have enormous respect for the noble and learned Baroness who, when she was a distinguished Attorney-General, was an inspiration to prosecutors on this topic, as well as on many others. Her distinguished period of office is remembered with great affection in the CPS.

The Government have adopted the ACPO-CPS definition, for which we were asking since before Report stage, and included it in the Bill. I commend them for that. They have also broadened significantly-with respect, more significantly than some noble Lords' speeches have allowed-the categories of evidence that will trigger legal aid in these cases for the victims of domestic violence, including evidence from social services and medical professionals in addition to the other gateways which existed, and where the court wishes to consider a finding of fact that domestic violence exists so as to grant legal aid, it can consider matters such as police call-outs and referrals to domestic violence centres, as the noble and learned Baroness, Lady Scotland, has called for.

After considering the Government's response with as much care as I can, I have concluded that this has been a strong example of a Government who were clearly-and who, with respect, had been badly in error, in my view-listening to the concerns of this House and responding. For my part, I shall support the Government on this issue.

Lord Blair of Boughton: My Lords, I lent my name to the first iteration of the amendment put forward by the noble and learned Baroness, Lady Scotland. I want to speak again for a moment about this. I accept and, as has the noble Lord, Lord Macdonald, I praise the Minister for the movement that the Government have produced. However, in my experience of 35 years of dealing with these kinds of cases, there is something very specific about a certain category of offender, including the offenders of child abuse, domestic violence, stalking and partner rape-namely, their deviousness and the control that they exercise on their victims. Therefore, I strongly support the idea that we should not let down this group of victims by imposing an arbitrary limit on the time in which the evidence can be produced in a way that will provide legal assistance to those victims.

Some of your Lordships will be experienced enough to remember the great Erin Pizzey, who was the first founder of women's refuges. Her book had the most staggeringly accurate title about the kind of man who would commit these offences. I do not mean to say that there are no women who do this but we are primarily talking about men. The title of that book was Scream Quietly or the Neighbours will Hear. I think that we should say, just one last time, will the Government please look at this time limit again, because this group of offenders works in a completely different way from most other criminals?

The Earl of Listowel: My Lords, I wish to speak about the time limit as regards the abused children

25 Apr 2012 : Column 1809

who come under paragraph 1 of Schedule 1. The noble and learned Baroness referred to these children. I have been approached by the Grandparents' Association and Grandparents Plus, which have expressed their deep concerns about the time limit. For example, in the case of a mother who is a drug addict, child protection proceedings may be started. The mother may enter prison or disappear from the scene for some time and the grandparents step in to care for the child. The mother may return to the scene but is not be happy with the situation and wants to have her child back. The grandparents would need to apply for a special guardianship order or a residence order.

It would be helpful if the Minister would be prepared to go even further as regards paragraph 11 of Schedule 1 and lift the time limit in order that those grandparents who provide such an important role do not risk having to invest their life's savings in trying to protect their relationship with the grandchild for whom they are caring.

4.45 pm

Lord Mackay of Clashfern: There is one question I would like to ask the noble and learned Baroness. I understand the point about time limits; I listened carefully to what was said about that. I tried to follow fully what she was saying and I think that, on the whole, I succeeded in doing that. However, she said-and I know that this can happen-that a woman subjected to domestic violence may do nothing about it at the time and then wants to bring it up, very properly, later on. I do not at the moment see where that situation is covered in her amendment. I can see the relevance of the time limit, but when the woman in question has not done anything about it at all-except suffered it, which is enough-I do not at the moment see that that situation is covered, unless it be of the type prescribed in regulations. That is an open-ended thing, but so far as the rest of it is concerned-having listened, I hope, carefully and understood fully, I think, what the noble and learned Baroness was saying-I have not quite grasped that particular point.

Baroness Scotland of Asthal: I hope that I can help the noble and learned Lord. On the last occasion on which I spoke, I said that I accepted that even my amendment would leave out many people who needed and should have help and assistance, and that I was not happy that even my amendment would go as far as it should, but I was drawing back from the ideal, accepting that the Government wanted a very narrow gateway. That is point number one.

Point number two is that if, in such a situation, the woman had available to her and could produce evidence that there had been a number of police calls to her home, notwithstanding the fact that she had not pursued it to the extent of asking for or supporting a charge and a conviction, then she would still have evidence available to her which she could rely upon, notwithstanding the fact that while the parties lived together she had not pursued it as she should have. One reality that we have had to face for a number of years is that, quite often, victims will hide from the

25 Apr 2012 : Column 1810

perpetrator, as opposed to confronting him, but there are occasions when the perpetrator will find and pursue the victim and then the victim has no choice but to respond. It is in those sorts of cases that, if we do not give a greater degree of flexibility, we will find that there is difficulty. That woman might have not gone to the refuge, but she may have received telephone or other support from it indirectly. Therefore, part of our amendment is asking for not only admission to a refuge to be included, but also other evidence that could be given by the third sector or professionals to say that there was valid evidence upon which the woman would be able to rely to prove that there had been domestic violence.

Baroness Hamwee: My Lords, I hope that my noble friend, in responding to this, can help the House as to how extensive regulations can be to cover the concerns that have been expressed. I have spoken on many occasions over the years about domestic violence, and my response to a lot of what has been said, particularly comments made by the noble Baroness, Lady O'Loan, whom I respect enormously, is to think that we should be doing more with the services that we give to, mostly, women who find themselves in this situation. However, that is about services-refuges and other sorts of help-and it does not go to the evidence, so I hope that my noble friend can help expand on the answer that we have been given by the Commons: that regulations should deal with these matters.

Lord McNally: My Lords, the noble and learned Baroness, Lady Scotland, is a powerful advocate. Throughout, she has presented a case against the Government which I am sure has swayed a number of your Lordships. That is why I sometimes get a little bit exasperated. For example, the right reverend Prelate says that the wool was pulled over his eyes, but I assure him that I made every effort to make clear where we are going, how we are going there and why we are going there on this Bill. Rather like the outgoing Labour Government in their manifesto, we sought to cut legal aid. The noble and learned Baroness read out a load of statistics that suggested that this Bill might achieve that purpose. I point out that part of our approach from the very start was to try to move away from litigation to arbitration, mediation and the alternative settlement of disputes, and we will do so in the various parts of the legal system that were covered by legal aid.

I worry sometimes when I listen to the language that is used. I heard what the noble Baroness, Lady O'Loan, said, and I read in a Sunday newspaper that women who could not get into refuges would be denied legal aid-as if that was it, and they were like Oliver Twist being turned away from the workhouse door. The noble Baroness knows that that is not true.

Baroness O'Loan: My Lords, with great respect, I did not say that women who could not get into a refuge would necessarily be excluded, but it is a fact that that is one of the forms of evidence. If you do not have either that form of evidence or the other forms of evidence that are required, you will not get in.



25 Apr 2012 : Column 1811

Lord McNally: But isolating one aspect and saying that if a woman goes to a refuge and cannot get in she will not get legal aid ignores the fact that I have put before the House-the whole list of options that people can turn to. I do not think that it serves the case of women subject to domestic violence to somehow suggest that the passing of this Bill will cut them off from legal aid. The fact is that we will be spending something like £120 million a year in legal aid in this area of law. As I pointed out in my opening remarks, one thing that I am most proud of about this Government is that we have put funding into domestic violence issues in a very detailed way-in a way to which the noble Lord, Lord Blair, referred.

We are talking about a very specific area of assistance in a very specific area of law, with victims seeking legal aid for private family matters. With her skills, the noble and learned Baroness, Lady Scotland, has turned this into a debate again and again on who is in favour of helping domestic violence victims, and who is against. I think that is a clever way of putting it to the House, but it is not a fair way. We have tried and listened and moved on all these areas. Long ago, the request from the Opposition was for the ACPO definition; when the ACPO definition was conceded, it was the UK Border Agency that became the mark. The fact that we have done ACPO-plus does not seem to matter. The fact that we have brought in funding for specific aid in this area does not matter. We will always find there is another bar to clear, so that as noble Lords come in asking, "What's this about?", it can be said to them, "It's about voting for legal aid for those affected by domestic violence". But legal aid is there for those affected by domestic violence. The criteria by which they qualify have been widened. We have listened to this House and acted on its advice.

On the point raised by the noble Earl, Lord Listowel, about family legal aid in children and kinship, where private family law proceedings are being taken as an alternative to public law proceedings-for example, where it is more sensible for grandparents to care for a child rather than the parents-legal aid will be available. If there is evidence of child abuse, it will also be there. I will look at the further points the noble Earl made, and if I may I will write to him, but we believe that exceptional funding will also kick in in this area.

The noble and learned Baroness, Lady Scotland, is a powerful and sometimes an emotive advocate but it is sometimes worth cutting through the emotion, and I ask the House to do that-to cut through the threat that this will cause death-and look at the facts. The fact is that this Government have listened and extended the criteria for this form of legal aid beyond what the House first asked for. This Government have put real money into real, pioneering services in terms of this terrible scourge of domestic violence. The Commons has considered this, and was right to return it to your Lordships. I believe this is the moment to ask your Lordships to accept the view of the Commons. I beg to move.

Baroness Scotland of Asthal: My Lords, perhaps I might say to the Minister straight away that I hope it has been clear from everything I have said that I have always believed, and still believe, that all sides of this

25 Apr 2012 : Column 1812

House-and, I hope, of the other place-are of one mind in the approach that they take towards helping domestic violence victims. Nothing I have said from this Dispatch Box has undermined that. What I have been clear about is that this Government have been wrong not to widen the gateway. With respect, we have consistently argued about the time limit and the evidential criteria, right the way through, and we have not changed.

I also say gently to the Minister that in looking at reducing litigation, the one happy thing about domestic proceedings-both in private family law and in relation to domestic violence cases specifically-is that family lawyers worth their salt always appreciate that if a family has got to the stage of having to litigate, they are dealing with damage limitation and not winning or losing. That is why only about 5 per cent of the cases ever go right the way through into contested matters, so in this area of law we are not looking at cases running away and people litigating when it is unnecessary. The Government are continuing the approach that the previous Government took in advocating mediation whenever it is proper.

However, we have a difference of view. I thank the noble Lord very much for his compliments about my advocacy, but I have to tell him that this is not about advocacy. This is about truth and fact, and if I do nothing else I will always stand side by side with the victims of abuse. I believe that is where the Government should be too.

5 pm

Division on Motion B1

Contents 238; Not-Contents 238.

The Deputy Speaker (Baroness Harris of Richmond): My Lords, there being an equality of votes, in accordance with Standing Order 56, which provides that no proposal to amend a Bill in the form in which it is before the House shall be agreed to unless there is a majority in favour of such an amendment, I declare the amendment not insisted on.

Motion B1 disagreed.


Division No. 1


CONTENTS

Adams of Craigielea, B.
Adebowale, L.
Adonis, L.
Ahmed, L.
Allenby of Megiddo, V.
Alton of Liverpool, L.
Anderson of Swansea, L.
Andrews, B.
Bach, L.
Bakewell, B.
Barnett, L.
Bassam of Brighton, L. [Teller]
Bath and Wells, Bp.
Beecham, L.
Berkeley, L.
Best, L.
Bew, L.
Bichard, L.
Billingham, B.
Bilston, L.
Blair of Boughton, L.
Borrie, L.
Brooke of Alverthorpe, L.
Brookman, L.
Browne of Belmont, L.
Browne of Ladyton, L.
Butler of Brockwell, L.
Butler-Sloss, B.
Cameron of Dillington, L.
Campbell-Savours, L.
Carter of Coles, L.
Chandos, V.
Chichester, Bp.
Christopher, L.
Clancarty, E.
Clark of Windermere, L.
Clarke of Hampstead, L.


25 Apr 2012 : Column 1813

Clinton-Davis, L.
Collins of Highbury, L.
Corston, B.
Coussins, B.
Craig of Radley, L.
Craigavon, V.
Crawley, B.
Cunningham of Felling, L.
Davies of Coity, L.
Davies of Oldham, L.
Davies of Stamford, L.
Desai, L.
Dixon, L.
Donaghy, B.
Donoughue, L.
Drake, B.
Dubs, L.
Eames, L.
Eatwell, L.
Elder, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Exeter, Bp.
Falconer of Thoroton, L.
Falkland, V.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Finlay of Llandaff, B.
Flather, B.
Ford, B.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Gale, B.
Gibson of Market Rasen, B.
Giddens, L.
Glasman, L.
Golding, B.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Grabiner, L.
Grantchester, L.
Grenfell, L.
Grey-Thompson, B.
Griffiths of Burry Port, L.
Grocott, L.
Hannay of Chiswick, L.
Hanworth, V.
Harries of Pentregarth, L.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haskins, L.
Haworth, L.
Hayman, B.
Hayter of Kentish Town, B.
Healy of Primrose Hill, B.
Henig, B.
Hennessy of Nympsfield, L.
Hereford, Bp.
Hilton of Eggardon, B.
Hollick, L.
Hollins, B.
Hollis of Heigham, B.
Howarth of Breckland, B.
Howarth of Newport, L.
Howie of Troon, L.
Hoyle, L.
Hughes of Stretford, B.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Janner of Braunstone, L.
Jay of Ewelme, L.
Jay of Paddington, B.
Jones of Whitchurch, B.
Jordan, L.
Judd, L.
Kennedy of Southwark, L.
Kerr of Kinlochard, L.
Kilclooney, L.
King of Bow, B.
King of West Bromwich, L.
Kinnock of Holyhead, B.
Knight of Weymouth, L.
Laird, L.
Laming, L.
Layard, L.
Lea of Crondall, L.
Levy, L.
Liddell of Coatdyke, B.
Liddle, L.
Lipsey, L.
Lister of Burtersett, B.
Listowel, E.
Low of Dalston, L.
McAvoy, L.
McConnell of Glenscorrodale, L.
McDonagh, B.
Macdonald of Tradeston, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Maginnis of Drumglass, L.
Mallalieu, B.
Mar, C.
Martin of Springburn, L.
Masham of Ilton, B.
Massey of Darwen, B.
Maxton, L.
Meacher, B.
Mitchell, L.
Monks, L.
Moonie, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Handsworth, L.
Morris of Manchester, L.
Myners, L.
Neill of Bladen, L.
O'Loan, B.
O'Neill of Clackmannan, L.
Ouseley, L.
Palmer, L.
Pannick, L.
Parekh, L.
Patel, L.
Patel of Blackburn, L.
Patel of Bradford, L.
Pendry, L.
Pitkeathley, B.
Ponsonby of Shulbrede, L.
Prescott, L.
Prosser, B.
Puttnam, L.
Radice, L.
Ramsay of Cartvale, B.
Ramsbotham, L.
Rea, L.
Reid of Cardowan, L.
Rendell of Babergh, B.
Richard, L.
Richardson of Calow, B.
Rogan, L.
Rooker, L.
Rosser, L.
Rowe-Beddoe, L.
Rowlands, L.
Royall of Blaisdon, B.
Sandwich, E.


25 Apr 2012 : Column 1814

Sawyer, L.
Scotland of Asthal, B.
Scott of Foscote, L.
Sewel, L.
Sherlock, B.
Simon, V.
Singh of Wimbledon, L.
Skidelsky, L.
Smith of Basildon, B.
Smith of Finsbury, L.
Smith of Gilmorehill, B.
Snape, L.
Soley, L.
Stern, B.
Stevenson of Balmacara, L.
Stoddart of Swindon, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Temple-Morris, L.
Tenby, V.
Thornton, B.
Touhig, L.
Triesman, L.
Tunnicliffe, L. [Teller]
Turnberg, L.
Turner of Camden, B.
Wall of New Barnet, B.
Walpole, L.
Warner, L.
Warnock, B.
Watson of Invergowrie, L.
Wheeler, B.
Whitaker, B.
Whitty, L.
Wigley, L.
Williams of Elvel, L.
Williamson of Horton, L.
Wills, L.
Wilson of Tillyorn, L.
Wood of Anfield, L.
Woolf, L.
Woolmer of Leeds, L.
Worthington, B.
Young of Hornsey, B.
Young of Norwood Green, L.

NOT CONTENTS

Addington, L.
Alderdice, L.
Allan of Hallam, L.
Alliance, L.
Anelay of St Johns, B. [Teller]
Armstrong of Ilminster, L.
Arran, E.
Ashcroft, L.
Ashdown of Norton-sub-Hamdon, L.
Ashton of Hyde, L.
Astor, V.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Baker of Dorking, L.
Barker, B.
Bates, L.
Benjamin, B.
Berridge, B.
Black of Brentwood, L.
Blackwell, L.
Blencathra, L.
Bonham-Carter of Yarnbury, B.
Bottomley of Nettlestone, B.
Bowness, L.
Bradshaw, L.
Bramall, L.
Bridgeman, V.
Brinton, B.
Brittan of Spennithorne, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Browning, B.
Burnett, L.
Buscombe, B.
Byford, B.
Caithness, E.
Carlile of Berriew, L.
Cathcart, E.
Cavendish of Furness, L.
Chalker of Wallasey, B.
Chidgey, L.
Clement-Jones, L.
Colwyn, L.
Cope of Berkeley, L.
Cormack, L.
Cotter, L.
Courtown, E.
Crathorne, L.
Crickhowell, L.
De Mauley, L.
Dear, L.
Deben, L.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
Dobbs, L.
Doocey, B.
Dykes, L.
Eaton, B.
Eccles, V.
Eden of Winton, L.
Elton, L.
Empey, L.
Falkner of Margravine, B.
Faulks, L.
Feldman, L.
Feldman of Elstree, L.
Fink, L.
Flight, L.
Fookes, B.
Fowler, L.
Framlingham, L.
Fraser of Carmyllie, L.
Freeman, L.
Freud, L.
Garden of Frognal, B.
Gardiner of Kimble, L.
Gardner of Parkes, B.
Geddes, L.
German, L.
Glendonbrook, L.
Glentoran, L.
Gold, L.
Goodlad, L.
Goschen, V.
Grade of Yarmouth, L.
Greenway, L.
Griffiths of Fforestfach, L.
Hamwee, B.
Hanham, B.
Harris of Richmond, B.
Henley, L.
Heyhoe Flint, B.
Higgins, L.
Hill of Oareford, L.
Hodgson of Astley Abbotts, L.
Home, E.


25 Apr 2012 : Column 1815

Hooper, B.
Howard of Rising, L.
Howe, E.
Howe of Aberavon, L.
Howell of Guildford, L.
Hunt of Wirral, L.
Hurd of Westwell, L.
Hussain, L.
Hussein-Ece, B.
Inglewood, L.
James of Blackheath, L.
Jenkin of Kennington, B.
Jenkin of Roding, L.
Jolly, B.
Jones of Cheltenham, L.
Kakkar, L.
King of Bridgwater, L.
Kirkwood of Kirkhope, L.
Knight of Collingtree, B.
Kramer, B.
Lang of Monkton, L.
Lawson of Blaby, L.
Leach of Fairford, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Lexden, L.
Lindsay, E.
Lingfield, L.
Liverpool, E.
Lloyd of Berwick, L.
Loomba, L.
Luce, L.
Luke, L.
Lyell, L.
Lytton, E.
McColl of Dulwich, L.
Macdonald of River Glaven, L.
MacGregor of Pulham Market, L.
Mackay of Clashfern, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Magan of Castletown, L.
Mancroft, L.
Marks of Henley-on-Thames, L.
Marland, L.
Marlesford, L.
Mawhinney, L.
Mayhew of Twysden, L.
Methuen, L.
Miller of Chilthorne Domer, B.
Miller of Hendon, B.
Montrose, D.
Morris of Bolton, B.
Naseby, L.
Neville-Jones, B.
Newby, L.
Newlove, B.
Noakes, B.
Northbrook, L.
Northover, B.
Norton of Louth, L.
Oakeshott of Seagrove Bay, L.
Palmer of Childs Hill, L.
Palumbo, L.
Parminter, B.
Patten, L.
Perry of Southwark, B.
Phillips of Sudbury, L.
Plumb, L.
Popat, L.
Randerson, B.
Rawlings, B.
Razzall, L.
Reay, L.
Redesdale, L.
Rennard, L.
Renton of Mount Harry, L.
Ribeiro, L.
Risby, L.
Roberts of Conwy, L.
Rodgers of Quarry Bank, L.
Sassoon, L.
Scott of Needham Market, B.
Seccombe, B.
Selborne, E.
Selkirk of Douglas, L.
Selsdon, L.
Shackleton of Belgravia, B.
Sharkey, L.
Sharman, L.
Sharp of Guildford, B.
Sharples, B.
Sheikh, L.
Shephard of Northwold, B.
Shipley, L.
Shutt of Greetland, L. [Teller]
Skelmersdale, L.
Slim, V.
Smith of Clifton, L.
Soulsby of Swaffham Prior, L.
Spicer, L.
Stedman-Scott, B.
Steel of Aikwood, L.
Stephen, L.
Stewartby, L.
Stirrup, L.
Stoneham of Droxford, L.
Storey, L.
Stowell of Beeston, B.
Strasburger, L.
Strathclyde, L.
Swinfen, L.
Taverne, L.
Taylor of Holbeach, L.
Tebbit, L.
Teverson, L.
Thomas of Gresford, L.
Tope, L.
Trimble, L.
True, L.
Trumpington, B.
Tugendhat, L.
Turnbull, L.
Tyler, L.
Tyler of Enfield, B.
Ullswater, V.
Verma, B.
Wade of Chorlton, L.
Wakeham, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.
Warsi, B.
Wasserman, L.
Wei, L.
Wilcox, B.
Williams of Crosby, B.
Willis of Knaresborough, L.
Younger of Leckie, V.
5.14 pm

Motion B agreed.



25 Apr 2012 : Column 1816

Motion C

Moved by Lord McNally

31C: Page 32, line 36, at end insert the following new Clause:-

"Sections 43 and 45 and diffuse mesothelioma proceedings

(1) Sections 43 and 45 may not be brought into force in relation to proceedings relating to a claim for damages in respect of diffuse mesothelioma until the Lord Chancellor has-

(a) carried out a review of the likely effect of those sections in relation to such proceedings, and

(b) published a report of the conclusions of the review.

(2) In this section "diffuse mesothelioma" has the same meaning as in the Pneumoconiosis etc (Workers' Compensation) Act 1979."

Lord McNally: My Lords, I would like to start by paying a sincere tribute to the noble Lord, Lord Alton of Liverpool, for his vital role in pursuing his cause conscientiously and relentlessly. I know how conscientious and relentless he can be when he gets hold of a campaign, this time in the cause of mesothelioma victims and their families. I know others have followed his lead, but, as he pointed out, when this Bill first came before the House, there was no mention of this cause and he has, quite literally, put it on the front pages. He can take great personal credit for helping us achieve the position we have reached today and on which I hope all sides can agree.

In the past few days, we have had the opportunity to debate at some length issues in relation to the plight of sufferers of this terrible disease. I and ministerial colleagues have also held a number of meetings with the noble Lord, Lord Alton, and others, including my noble friend Lord Freud, which have been extremely productive. I am grateful for the general recognition of the value of what the Government now propose in respect of a pause in commencement of the reforms in Part 2 in relation to mesothelioma.

Let me be clear about what we are doing. The Jackson reforms in Part 2 of the Bill are due to come into effect in April next year. They will continue to come into effect then, except in so far as they affect mesothelioma claims. Mesothelioma claims will therefore continue for the time being with the current arrangements of recoverable success fees and insurance premiums. As I informed your Lordships on Monday, we are working hard to agree an acceptable scheme to help victims who are unable to trace their employer's insurers; as I said, I hope that we will be in a position to make an announcement before the Summer Recess. The arrangements for any new process will obviously take some time to bring forward. We will review the position in due course and publish the findings of that review. Only after we have done so, and we are satisfied that the time is right to implement the provisions in Part 2 in relation to mesothelioma, will we do so.

Amid general approval in the House of Commons yesterday, one issue was raised which related to the terms of the review that we have committed to undertake. I hope that your Lordships will understand that I cannot say much more at this early stage about the precise terms of that review, but it will be a proper and

25 Apr 2012 : Column 1817

appropriate one. My right honourable friend the Lord Chancellor will publish the results, and we will not commence our reforms as far as mesothelioma is concerned until we are satisfied that a structure exists which enables swift and fair compensation for victims and their families.

The strength of feeling in this debate has been palpable and genuine. I am glad that we have been able to meet some of the concerns expressed by tabling the amendment that we have. I beg to move.

Lord Alton of Liverpool: My Lords, I first thank the Minister for the kind remarks at the outset of his speech. I suspected that he might have meant that I have been a bit of a pain in the neck on this subject.

Lord McNally: Precisely.

Lord Alton of Liverpool: He put it rather more elegantly. The Minister having had a tough time during proceedings on Part 1 this afternoon, he will be glad to know that I can be very warm in what I am about to say to him, and also to the noble Lord, Lord Bach, and my good friend, the noble Lord, Lord Avebury, for the encouragement and support that they have given me as I have taken this amendment forward at every stage of the Bill.

It puts me in mind of a passage from EM Forster's book, Two Cheers for Democracy. He said that only "love, the beloved republic" deserved three cheers, but that sometimes the cantankerous, difficult, awkward Member of Parliament who sees some minor injustice and is able to get it right is the justification for our system. I suspect that that is something that unites us on all sides of this House and, indeed, in another place as well. On that note, the noble Lord, Lord Cormack, is about to intervene.

Lord Cormack: I was going to draw the House's attention to the fact that our dear friend Tam Dalyell from another place recently published his autobiography and entitled it The Importance of Being Awkward.

Lord Alton of Liverpool: I am happy to be in the company of another member of the awkward squad on this occasion; I was happy to be in the Division Lobby with the noble Lord, Lord Cormack, during earlier proceedings on this Bill. Although it has not been possible for us to achieve all of the things that we would have wished to achieve during the proceedings, it speaks well of your Lordships' House that we were willing to send back to the House of Commons for the second time, on Monday, the provisions in the Bill which relate to men and women who have been exposed to asbestos and, as a result, have developed the fatal illness of mesothelioma.

Yesterday in another place, Mr Jonathan Djanogly, the Parliamentary Under-Secretary of State, moved an amendment in lieu of Amendment 31, which was agreed in the other place, as the noble Lord has told us, without Division. The amendment specifies that the mesothelioma provisions may not be brought into force until the Lord Chancellor has carried out a full review of their potential impact and has published a report on the conclusions of the review. The practical

25 Apr 2012 : Column 1818

effect of this is that terminally ill victims will not have to surrender up to 25 per cent of the compensation which they have been awarded in success fees over and above the base fees which lawyers will already have received. There is now an opportunity to recast what many of us believe is, in any event-and the noble Lord, Lord Thomas, alluded to this during our proceedings earlier in the week-an immoral use of success fees in cases where causation is not in issue, as well as to devise a new scheme which the noble Lord, Lord Freud, told us on Monday is now being worked on by the Department for Work and Pensions.

Therefore, before we leave this matter I would like to ask the Minister-and during a conversation yesterday I was able to give him some notice of my intention to do this-if he would clarify one or two questions which arise from the Government's announcement and the amendment in lieu. First, is the Minister able to assure us that there will be absolute synchronisation between the Ministry of Justice and the Department for Work and Pensions to ensure that the mesothelioma provisions in the Bill will not be implemented in advance of the new regime coming into force? Secondly, Mr Jonathan Djanogly told the House of Commons yesterday that the new proposals,

That would certainly be the best way to proceed; can the Minister tell us when he expects his noble friend Lord Freud to be able to make a statement on the shape of the new scheme and whether there will be formal consultation with victims' groups and other interested parties before a Bill is introduced? Also, do we have any idea of a timetable for the proposed legislation?

Let us assume for a moment that such a scheme-which has proved elusive in the past-were not brought forward, and that the insurance industry simply decided to play fast and loose with the Government: what would the Government do in those circumstances? Would they simply rely on the outcome of the review which they have instigated, and if the internal Ministry of Justice review concluded that it wanted to proceed with the mesothelioma provisions which have now been suspended, can the Minister assure us that there would be robust parliamentary scrutiny and opportunities to contest such an outcome? Will formal commencement orders be required, for instance, before the now dormant mesothelioma provisions in the LASPO Bill can be put into effect? Would such orders be introduced by statutory instrument, and, if so, is it the case that they would not be subject to parliamentary debate? In those circumstances, can the Minister assure the House that the Government would find a way for both Houses to be able to return to this question? It would be a pretty unsatisfactory situation if we were unable to do that.

With regard to the review itself, will it be conducted entirely by Ministry of Justice officials? Will the Minister at least reflect upon the desirability of involving some independent voices-perhaps, at least, a representative of one of the asbestos victims' groups? Will those conducting the review call witnesses, take evidence and have a record of proceedings-will it be transparent?



25 Apr 2012 : Column 1819

I will end by making two short observations. First, as I have said, I am extremely grateful to all noble Lords, and indeed honourable Members of another place, who have supported this amendment at every stage. In particular, I want to put on the record that the right honourable Member for Wythenshawe and Sale East, Mr Paul Goggins, and Tracey Crouch, Member of Parliament for Chatham and Aylesford, gave considerable help, across the political divide, to ensuring that the case there did not go by default. The cross-party concerns which were raised in this House and in another place, and which were followed through by votes in the Lobby, were crucial in persuading the Government to think again.

I also pay tribute to the indefatigable efforts of Mr Tony Whitston of the Greater Manchester Asbestos Victims Support Group, whom I met with the noble Lord, Lord Avebury, and Mr John Flanagan of the Merseyside Asbestos Victims Support Group, for keeping these issues before us. The information and case histories which they have provided have been focused, understandable and rooted in their own day-to-day experience of working with the victims of this killer disease. Their resolve and dignified approach do them, and those who they represent, great credit. I know how grateful they are to your Lordships for insisting that their case be heard.

Secondly, and rather topically, this outcome says something about the particular strength of your Lordships' House. Like the Minister, I served in another place for 18 years before I stood down. When the Bill came to us, I was staggered to find-as the noble Lord mentioned at the beginning of his remarks-that the issue of mesothelioma, which has after all claimed the lives of 30,000 British people, had not been debated or scrutinised at any stage. I repeat the observation I made on Monday last, that that is a vivid example of the vicious use of guillotines and programme Motions. The revising role of this Chamber-carefully scrutinising legislation and assessing its impact-is a strength that should not be lightly dismissed.

Finally, in three days' time it will be Workers' Memorial Day, which commemorates those killed, injured or made ill through work-a day that is meant to highlight the importance of good health and safety in the workplace. Asbestos disease is often called "the widowmaker". In 2010, asbestos-related diseases accounted for 93 per cent of all industrial injuries disablement benefit payments for respiratory disease. It is a wretched disease-a death sentence with fatal consequences. All over this country, men and women were exposed for decade after decade to toxic substances, mainly at work, which ruined their lives and cost many their lives. As well as those 30,000 who have already died in the United Kingdom from mesothelioma, an estimated 60,000 more are yet to lose their lives due to past exposure-the vast majority of which, of course, occurred at work. The victims of this disease sacrificed their health and often their lives while working to support their families and contributing to the wealth of this country.

Throughout our debates, I have argued that it is iniquitous that such people should have to surrender up to 25 per cent of the damages they have been awarded. Happily, the Government have been persuaded

25 Apr 2012 : Column 1820

that there is no racket involved in these cases, no ambulance chasing, and no compensation culture. They are right to have thought again, and I welcome that. We all now wish them well in coming forward with a far better approach to dealing with such cases. Linked to that is a promise that we remain diligent in monitoring the progress that has been made.

Once again, I am appreciative to the House for the support and encouragement that it has given in pursuance of this important matter.

Lord Avebury: My Lords, I want to add only a few words about the outstanding role of the noble Lord, Lord Alton, in leading this campaign during the proceedings on the Bill over many weeks and months. I do not think that anybody else could have had the success that he has achieved, because he is one of the most assiduous Members of this place. If he likes the label given him by the noble Lord, Lord McNally, it is a title that he well deserves and which we would all be proud to wear.

I want to add only one question to those that have already been posed. In the review of the potential impact, will it be possible for asbestos victims and their relatives to make representations and be heard orally by those conducting the review? This is important, if I may say so, because some of the material provided to us by Tony Whitston was of great importance in deciding certain questions-in particular, whether or not people would be deterred from taking proceedings if the Bill had come into effect in its previous form. There was abundant written evidence from victims that if they knew that 25 per cent was going to be deducted from their damages, they or their bereaved relatives would not have bothered to go into the fray. It is important that that evidence is presented to the review.

Perhaps I may say, finally, how grateful we are to my noble friend Lord McNally, because he has listened carefully all the way through. In particular, as he mentioned earlier, he was willing to meet the noble Lord, Lord Alton, myself and others, and take carefully back to his department the arguments that we put. That meeting and the further meetings that the noble Lord, Lord Alton, had with him have been instrumental in enabling the Government to arrive at this welcome conclusion.

5.30 pm

Lord Wigley: My Lords, I also welcome the Government's shift on this matter. I am sure it is one that will give the noble Lord, Lord McNally, considerable satisfaction, given the family dimension and his understanding of this condition. It will, I hope, be of considerable benefit to many thousands of sufferers and their families. I join in congratulating the noble Lord, Lord Alton. I am aware of his campaigning ability from many years in another place. We campaigned sometimes together and sometimes on opposite sides. When one was on the opposite side, my goodness, one knew one had a contender to deal with. The diligence that he and other colleagues across parties have applied to this issue will be of considerable satisfaction to the groups of campaigners who represent sufferers and their families.



25 Apr 2012 : Column 1821

I want to raise a couple of points with the Minister. I note with interest that the definition of diffuse mesothelioma used here is the one that was incorporated in the Pneumoconiosis etc. (Workers' Compensation) Act 1979. Another dimension of what he mentioned a moment ago is the fact that there are still people who cannot trace their employers or pinpoint which employer was responsible at the time at which the disease may have developed. That is the case for a number of diseases. The 1979 Act, as noble Lords will remember, arose largely from the position of slate quarriers, but many other workers were affected in the cotton and pottery industries and some in the steel industry.

I am not going to reopen the debate that we lost the other night. We lost that one, and so be it, but there will be some cases in which there is suffering that is not covered by any other provision. When the review is undertaken, I hope that some consideration can be given to whether there are other cases of industrial workers who have suffered loss of health, and in many cases loss of life, and do not have an avenue through which to get compensation. If they do get compensation, they should not have that compensation unreasonably eroded. I hope that can be taken on board by the DWP. I understand that the noble Lord, Lord Freud, the Minister in the DWP who may be handling this, also has a good understanding of the suffering that arises from these conditions, so hopefully we can make progress.

Finally, this may be a lesson for us in this House to try and try again. We could have abandoned this the other night without insisting on the amendment that we put through to the other place. We did not and that is what enabled progress to be made on this occasion. There may be other instances when we need to be equally tenacious and determined in order to make sure that the other place gives adequate attention to a subject and that progress such as this can be made.

Lord Thomas of Gresford: I add my congratulations to the noble Lord, Lord Alton, on all the very hard work that he has put into this matter. I also pay tribute to the work of the Greater Manchester Asbestos Victims Support Group, in particular to Tony Whitston, who has lobbied so hard on behalf of victims; and there are other support groups, such as the Merseyside support group, which have lobbied just as hard.

I argued on Monday that success fees ought not to be claimed by solicitors in this type of case. I was pleased to hear the Minister in another place, Mr Djanogly, say yesterday:

I was strongly supported on Monday by my noble friend Lord Faulks, and I am grateful to him for the concern that he has shown on this issue. An objection was made by the noble Lord, Lord Bach, that it was impossible to guarantee that solicitors would not charge a success fee against their clients' damages.

I interjected that if public opinion saw it as an abuse, no doubt the Lord Chancellor would step in to

25 Apr 2012 : Column 1822

deal with it by way of regulation. There is another way in which this issue could be approached. I suggest to Mr Whitston, his excellent organisation and other similar support groups that he should draw up a list of solicitors who have indicated to him that they would not charge a success fee when, ultimately, the new regime for CFAs is introduced for mesothelioma sufferers. The support group could receive applications from solicitors to be put on an approved list and satisfy itself that firms that are accessible to victims in those industrial parts of the country where the disease is most prevalent-shall we say Newcastle, Leeds, Manchester, Birmingham, Bristol and, of course, the industrial areas of north and south Wales?-are geared up and competent in this area of work. Sufferers from mesothelioma turn to the support groups, and if they had a list of solicitors who had undertaken not to charge success fees against the damages they receive and who they are satisfied are competent, that would be a great way forward.

Lord Wigley: I follow the point that the noble Lord made the other night; I well understand it and have some sympathy with it. Clearly, if the sort of provision he is suggesting were to be made, it would be very helpful. Does he feel that it should be limited to mesothelioma, because there are many other cases of compensation in which it is equally unreasonable that there should be a deduction of up to 25 per cent from the compensation?

Lord Thomas of Gresford: The noble Lord will recall that on Report, I referred not only to cases of mesothelioma that Mr Tony Whitston drew to our attention from the Brymbo steelworks in Wrexham but to cases of pneumoconiosis that I have known. He is a slate quarry person; I come from a colliery area and I know of the long-term suffering of those victims. With mesothelioma, that could be done now and could be extended to other diseases in due course.

The support groups would be uniquely placed to monitor the service that such firms gave to mesothelioma sufferers, who could report back on their experiences to both the support groups and their successors. That is the answer to those who say that solicitors will not do this work at all unless they are cosseted by success fees. It spreads the work around the country to areas that are particularly concerned with this disease, where experience could be built up by firms of solicitors. It may discourage any idea of focusing litigation of this type in the City of London branch offices of firms that then claim to be paid at City of London rates. Anecdotal evidence suggests that that happens in some CFA cases.

As my noble friend Lord Faulks said on Monday, there are lawyers who are dedicated to achieving the best result for their clients and not so much for their fees. I have no doubt that they would flock to be placed on an approved list and forbear charging a success fee at all. I hope that such an approach will appeal to the Minister, the Lord Chancellor and the Ministry of Justice.

Lord Bach: My Lords, I begin by congratulating the Minister on being a member of the luckiest Government there can ever have been in the history of Parliament.

25 Apr 2012 : Column 1823

The odds against drawing three votes on crucial amendments, two on Report and one at this stage of proceedings so that the Government win the vote, as it were, must be immense. He has managed to do that and I congratulate him on it. I just hope for his sake and the Government's that their luck does not begin to run out.

On this issue, the Minister also deserves some congratulation if, as I suspect he did, he played a part in persuading his fellow Ministers, and the right honourable and learned gentleman the Lord Chancellor, that there had to be some give or concession. If he played a part in that, I congratulate him and think that he has served the House well in that regard.

I, too, want to compliment those outside the House. As the noble Lord, Lord Alton, stressed, the co-ordinator of the Greater Manchester Asbestos Victims Support Group, Mr Tony Whitston; Mr John Flanagan, the Merseyside equivalent of that organisation; and many others outside have worked incredibly hard to make sure that people who do not always have a very loud voice have had a say in Parliament-or rather in this House of Parliament. It is absolutely clear that when these matters were raised in the House of Commons when this Bill was first taken through, they were completely dismissed. It was only when the Bill came to the House of Lords that the noble Lord, Lord Alton, with his usual courage and zeal, managed to raise these matters, with the help of the noble Lords, Lord Avebury and Lord Wigley. Eventually, at the very last minute, he got a concession from the Government.

I pay tribute, too, not only to those I have mentioned but to the noble Baroness, Lady Doocey, the noble Lord, Lord Avebury, and the Conservatives who abstained in the vote on Monday night. Had they not played the part that they did, the amendment in the name of the noble Lord, Lord Alton, would not have gone through. I remind the House that it won by nine votes. If it had been lost there would have been no review or concession; there would have just been rejoicing in the Ministry of Justice. It was as close as that. It is because of the bravery of those who were prepared to abstain or vote against their own Government that we are here today congratulating the Government, quite rightly I am sure, on their concession.

Seriously, it is a good concession and we know, or trust, that the review will be genuine. We look forward to playing our part in making sure that the sufferers of this terrible disease get a fair deal when the Government have had their review. Not only the noble Lord, Lord Alton, but all of us will be watching very closely to see how developments move forward in this very vexed field. As for this House, for once it can congratulate itself.

Lord McNally: I think that if the noble Lord were to ask Señor Torres, he would find that a draw is also sometimes a victory. He is the Chelsea centre forward. I know that the noble Lord, Lord Bach, is a Leicester City supporter and does not mix in that kind of high-class company.

I was very grateful for the comments at the beginning of the speech of the noble Lord. I notice that he quickly tailed off towards the end to start initiating

25 Apr 2012 : Column 1824

rebellions, and so on. I have continually made the point that I am well aware that any Minister is a bird of passage, but I have always been a lover of this place-I mean the whole Parliament building. I sometimes say when I show visitors around that I never come into this place without a sense of awe for what it stands for and what it does. Anyone who stands at this Dispatch Box takes the buffeting and advice and has to work through very much with the help of the awkward squad. The only problem with the awkward squad is that when one campaign is over it immediately starts on another. I noticed from the remarks of the noble Lords, Lord Avebury and Lord Wigley and, indeed, the noble Lord, Lord Alton, himself that further campaigns will be on the way.

5.45 pm

I can absolutely guarantee that we will work in a synchronised way with the DWP. That is not such a surprise. It is a sign of our industrial heritage that quite by chance my noble friend Lord Freud and I have family members who have died of this horrible disease. Taking the point made by the noble Lord, Lord Wigley, when my sister died of it, because it was not possible to identify which of her employers had been responsible, there was no way forward for her. I do not think we need to worry. Certainly while my noble friend Lord Freud and I are responsible for this, we will make sure that there is a sense of urgency in our approach to these matters. If the insurance industry were to start playing fast and loose or stalling on this matter, I would suggest that it researched the Hansards of these debates and it would know that it was storing up significant trouble for itself.

I have helpfully been sent the replies to the questions asked by the noble Lord, Lord Alton. I mentioned that the report will be synchronised. Commencement of the provisions in Part 2 will be by statutory instrument in the usual way. They do not require the approval of both Houses. The amendment means that the commencement cannot begin on mesothelioma claims until a review has been carried out and a report published on the likely effect of the provisions on mesothelioma claims.

Questions were asked about whether people will be able to give evidence to that review and who will be on it. At this moment, it is very difficult to give firm commitments, but given the list of usual suspects interested in this case we are not going to be in the business of trying to put forward some kind of whitewash scheme. We will make sure that this is a proper review and that Parliament has a proper opportunity to see the outcome. If asbestos victims want to contribute to such a review, it makes sense that they should do so. Certainly, I would not want a barrier to that.

My noble friend Lord Thomas's suggestion is not a matter for government, but I hope that the campaigning organisations in this area take note of it because it is a useful initiative on claiming success fees.

I think I have covered the questions that were asked. I am extremely grateful for the contributions. At the beginning of the Bill, I could not even say "mesothelioma", but now I manage to get it out. We should thank the campaigning organisations outside.

25 Apr 2012 : Column 1825

Sometimes we hear about lobbying, and everybody sees it in the most sinister terms. Sometimes lobbying is very good and very helpful to Parliament in its work. This is a case where lobbyists have found parliamentary champions who have had an impact. As I say, this is something that neither the noble Lord, Lord Freud, nor I will lose sight of-and even if we tried to, the awkward squad would keep us up to the mark. I beg to move.

Motion C agreed.

Leveson Inquiry

Statement

5.50 pm

Baroness Garden of Frognal: My Lords, with the leave of the House, I will now repeat a Statement made in another place by my right honourable friend the Secretary of State for Culture, Olympics, Media and Sport. The Statement is as follows:

"With permission, Mr Speaker, I would like to make a Statement following yesterday's developments in the Leveson inquiry. Although I intend to respond fully to allegations about my conduct and that of my department when I present my evidence to Lord Justice Leveson, I believe it is important to update the House on actions that have been taken as a result of evidence released yesterday.

We are 273 days into a process whose early stages will last until October. This is not the time to jump on a political bandwagon. What the public and all colleagues want to hear is Lord Justice Leveson's views after he has considered all the evidence. I do, however, think it is right to set the record straight on a number of issues in light of the evidence heard yesterday at the inquiry.

Specifically on the merger of News Corp with BSkyB, I would like to remind the House of the process I followed. Throughout, I have strictly followed due process, seeking the advice of independent regulators and, after careful consideration, acting on their advice. I have published all advice that I have received from Ofcom and the OFT, together with correspondence between myself and News Corporation, including details of all meetings I have held in relation to this process. As part of this process, my officials and I have engaged with News Corporation and its representatives, as well as other interested parties, both supporters and opponents of the merger.

Transcripts of conversations and texts published yesterday between my special adviser, Adam Smith, and a News Corporation representative have been alleged to indicate that there was a back channel through which News Corporation was able to influence my decisions. That is categorically not the case. However, the volume and tone of those communications were clearly not appropriate in a quasi-judicial process, and today Adam Smith has resigned as my special adviser. Although Adam Smith accepts that he overstepped the mark on this occasion, I want to set on record that I believe that he did so unintentionally and did not believe that he was doing anything more than giving advice on process. I believe him to be someone of outstanding integrity and decency and it is a matter of huge regret to me that this has happened.



25 Apr 2012 : Column 1826

I only saw the transcripts of these communications yesterday. They did not influence my decisions in any way at all, not least because I insisted on hearing the advice of independent regulators at every stage of the process.

I will give my full record of events when I give evidence to Lord Justice Leveson. However, I would like to resolve this issue as soon as possible, which is why I have written to Lord Justice Leveson asking if my appearance can be brought forward. I am totally confident that when I present my evidence, the public will see that I conducted this process with scrupulous fairness throughout".

5.54 pm

Baroness Jones of Whitchurch: My Lords, I thank the Minister for repeating the Statement.

It has not come as a great surprise to many on this side of the House, and perhaps around the Chamber, that we are debating this issue this afternoon. For those of us who over the past 18 months have been regularly debating the wisdom of allowing one media organisation to own 40 per cent of market share, it has often felt that the Secretary of State has interpreted the rules so as to give maximum advantage to News Corp's bid. We may be surprised by the source of the new allegations-old friends settling scores, perhaps-but not the substance.

The Secretary of State's current predicament might have been averted if he had listened to those of us around this Chamber, and many in the wider media world, who urged him to refer the merger of News Corp with BSkyB directly to the Competition Commission in the first instance. Instead, he chose the quasi-judicial role in overseeing the process that his previous support for the Murdochs would always have left open to question. The serious allegations made in yesterday's e-mails seem to bear out the concerns that he proved unable to carry out this role in a suitably impartial and transparent way.

There are serious questions at the heart of this issue about the operation of the Ministerial Code, to which the Secretary of State must now be held to account-which is why it is important that he give a full and frank explanation to Parliament rather than waiting for Leveson to take its course. As we have seen over the past few months, many other careers have foundered on the evidence presented to Leveson in advance of his findings, and there is no reason for MPs to be immune from facing up to their immediate responsibilities and failings. Ultimately, it is not the job of the Leveson inquiry to oversee the implementation of the Ministerial Code.

First, therefore, in the light of the Statement, perhaps I may ask the Minister whether the Cabinet Secretary has been consulted on the process now being pursued to scrutinise Mr Hunt's role, and is he happy that the Secretary of State continues to have responsibility for overseeing the BSkyB bid rather than Parliament? Is it the view of the Cabinet Secretary and the Prime Minister that consideration of any breaches of the Ministerial Code should now be put on hold until the end of the Leveson inquiry? If not, what steps have been put in place to pursue this issue further?



25 Apr 2012 : Column 1827

Secondly, in the light of the resignation of Adam Smith, Mr Hunt's special adviser, does the Minister accept that this does not absolve Mr Hunt from responsibility for the actions of his adviser as set out in paragraph 3.3 of the Ministerial Code? Can she clarify what instructions were given to Adam Smith by Mr Hunt throughout the negotiating period, and whether he specifically disobeyed those instructions? Can we also be told the precise reasons for Mr Smith's resignation?

Thirdly, can the Minister confirm whether the DCMS Permanent Secretary sanctioned the use of Adam Smith as a go-between with News Corp over that period? Did Mr Smith keep notes of his discussions, and, in the interests of transparency, can she assure us that they will be published?

Does the Minister accept, with the benefit of hindsight, that if there was to be any liaison between News Corp and the department during this highly sensitive period, it would have been better carried out by a departmental official? Does she also accept that it would have been improper for the Prime Minister to have any private discussions with Mr Murdoch on the subject of the bid regardless of whether he had direct quasi-judicial responsibility for the decision? Can she now tell us what the nature of that discussion was and whether it was minuted? If it was, should it not also now be published?

Next, can the Minister explain the rationale of giving News Corp private advance notice of Ofcom's advice and the Secretary of State's intentions before they were presented to Parliament, and can she state categorically that those opposing the bid were given equal access to the advance information?

Finally, what is the Government's response to the question raised today by Robert Peston about the potential involvement of the Financial Services Authority in assessing whether there has been a leak of price-sensitive information? Mr Peston suggests that if Fred Michel did indeed receive advance information on 24 January that Mr Hunt intended to make an announcement the following day that he was minded to accept undertakings in lieu in order to prevent a referral to the Competition Commission, then that had price and market sensitivity and the FSA should investigate. Does the Minister agree that the FSA should be asked to check whether any breaches of financial trading rules were involved?

I do not apologise for raising a range of significant questions on this issue today, as there are important issues of propriety and confidence in government processes at stake. I look forward to hearing the Minister's answers and would ask her to write if she does not have the full details and responses to hand.

6 pm

Baroness Garden of Frognal: The noble Baroness asked some highly pertinent and relevant questions on this rather complex and difficult matter. I will answer as best I can while recognising that most of the evidence will be pulled together for presentation to the Leveson inquiry and may not be readily available at this stage.

My right honourable friend the Secretary of State answered extensive questions this morning in the House of Commons on many of the matters that the

25 Apr 2012 : Column 1828

noble Baroness raised, including the fact that before he took over the BSkyB bid he was on record as having expressed some sympathy with the Murdoch media. He reported that to the Cabinet Secretary and it was fully discussed. He assured the House of Commons that, from the time he took over responsibility for it, he took steps at every stage to demonstrate his impartiality, to ensure that there was openness and objectivity in the process.

My right honourable friend the Secretary of State cited in particular four decisions, each of which were against News Corporation's wishes: first, that he was minded to refer the bid to the Competition Commission; secondly, that he would not accept the bid until Ofcom and the OFT had advised on issues of plurality; thirdly, that he would extend the consultation more widely; and finally, after the Milly Dowler evidence, that the coalition Government would set up the Leveson inquiry to try to ensure that all these matters were very fully looked into. Now that BSkyB has withdrawn its bid there are matters that no longer need pursuing in that respect, although obviously the reasons behind that and all the factors leading up to it are still open for debate.

The noble Baroness mentioned Adam's Smith's resignation. He stated in his resignation letter that,

It is certainly a matter of regret that Adam Smith has resigned, but he has obviously taken that decision in the light of events as they have unfolded. The noble Baroness asked whether his role had been agreed by the Permanent Secretary. As I understand it from my right honourable friend, the Permanent Secretary was indeed in discussion regarding the roles at every stage. There is a complex set of contacts at many levels for such a bid, but my right honourable friend has given assurances that he operated with transparency throughout.

On the details of meetings and communications, my right honourable friend stated that he published all relevant material and meetings, and that these are still available on the DCMS website. For the sake of clarity, in response to a PQ from Mr John Mann, he stated:

"Records of meetings, telephone calls held between officials and press officers with outside parties and records of telephone calls and email exchanges between officials and Ministers and outside parties are not recorded centrally and would incur a disproportionate cost to collect".-[Official Report, Commons, 7/9/11; col. 616W.]

In the light of all that has been published today, we are more than ever aware of just how amazingly convenient e-mail can be and just how amazingly dangerous it can be when misused. Undoubtedly, the evidence that is available will be presented in full to the Leveson inquiry. If there are aspects of other matters that the noble Baroness raised that I have not covered but could, I will indeed take her up on her offer and write to her afterwards.



25 Apr 2012 : Column 1829

6.04 pm

Lord Fowler: My Lords, although I am very touched by the Government's faith in the independent review-my noble friend might remember that that was not always the view of her department when refusing to set up an independent review-I wonder whether she agrees that not everything should wait for Leveson, particularly in one respect. Is it not a fact that the current way of deciding media bids is, frankly, now bust? Do not politicians need to be taken out of the decision-making process and a demonstrably independent system, with either Ofcom or the Competition Commission deciding, set up, and set up now? If that change requires new legislation and there is no room in the programme, we can all think of a Bill that can be dropped to make way.

Baroness Garden of Frognal: There is one aspect of my noble friend's question to which I shall resist replying at this stage. He is absolutely right. Under the Enterprise Act 2002, the Secretary of State has the power to intervene in the public interest and in a quasi-judicial capacity. My right honourable friend is on record as stating publicly that there are very strong arguments for politicians to be taken out of discussions on these sorts of matters and for them to be undertaken by the regulators. We will certainly look to be taking that forward.

Lord Low of Dalston: My Lords, I do not envy the noble Baroness having to answer questions on matters which are so obviously a matter of the personal responsibility of the Secretary of State. However, does she agree that the focus on the Leveson inquiry in this instance is a complete smokescreen? The terms of reference of Leveson, which I have just looked up, are entirely general and directed towards the future. It is not the role of the Leveson inquiry to pronounce on the Secretary of State's handling of the Murdoch bid for BSkyB. Does the noble Baroness not agree that the Secretary of State has to answer to Parliament and not to Lord Justice Leveson?

Baroness Garden of Frognal: The noble Lord is quite right that Leveson has a very broad remit. However, it is a vehicle for all manner of evidence to be brought into the open and fully discussed. It appears to be doing an extremely thorough job on that basis. The Secretary of State is very well aware that he needs to answer to Parliament, which is one reason why he gave the Statement today followed by a full set of answers to questions. That will continue to be the position. We are not simply pushing these questions to the back of Leveson, but once you have set up an inquiry of this nature, you might also ask-and indeed Lord Justice Leveson has also asked, having set up the inquiry-that it be allowed to proceed.


Next Section Back to Table of Contents Lords Hansard Home Page