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Grand Committee

Thursday, 5 December 2013.

1 pm

Ivory Trade

Question for Short Debate

Asked by Lord Faulks

To ask Her Majesty’s Government what assessment they have made of the worldwide trade of ivory and its impact on the elephant and rhinoceros populations in Africa.

Lord Faulks (Con): My Lords, a few years ago the subject of this debate might have been regarded as rather marginal in terms of importance; that is no longer the case. In introducing this debate I should declare an interest as a friend of the Whitley Fund for Nature, a charity concerned with conservation worldwide.

Illegal trade in wildlife has grown to become a massive global industry. It is said to be worth at least $90 billion per year and is ranked as the fourth largest global illegal activity after narcotics, counterfeiting and human trafficking, and ahead of oil, art, gold, human organs, small arms and diamonds. Illegal ivory trade activity worldwide has more than doubled since 2007, and is now more than three times larger than it was in 1998—its highest level in two decades—with ivory fetching up to $1,000 a pound, or $2,205 a kilogram, on the streets of Beijing.

The worst year on record for elephant ivory seizures was 2011, when almost 40 tonnes of smuggled ivory was seized. In the past decade, 11,000 forest elephants have been killed in one park alone—Gabon’s Minkebe National Park—with a total population of forest elephants down 62% in the past 10 years. The kill rate of elephants now exceeds the birth rate—a trend that, if not reversed, could lead to the extinction of the African elephant in some areas in the next few years.

In 2012, a record 668 rhinos were poached in South Africa—up by almost 50% from 2011 figures. In 2013, the toll continued to rise, with 201 rhinos killed in Kruger National Park alone. A subspecies of the black rhino was declared extinct in the wild in west Africa in 2011.

According to Interpol, the US Department of State, the United Nations Office on Drugs and Crime and others, the same routes used to smuggle wildlife across countries and continents are often used to smuggle weapons, drugs and people, with the same culprits frequently involved. Indeed, wildlife crime often occurs hand in hand with other offences such as fraud, corruption, money laundering, theft and murder. At a global level, illegal wildlife trade undermines sustainable development through its effects on security and the rule of law. I could go on. The scale of the problem is difficult to exaggerate.

Who are the killers, and who is paying them? These are questions to which the answer is complex. War lords or militant groups committed to achieving ideological

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or political goals by armed insurrection are connected to large-scale poaching. Experts believe that ivory, like the blood diamonds of other African conflicts, is funding many rebel groups and militias in Africa. Poachers have direct access to military weapons and arms markets linked to organised criminal and terrorist groups. Elephant poachers in many parts of Africa use weapons that can be acquired only from military sources. These weapons have range, accuracy and fire power which enables poaching gangs to kill not only a large number of animals but also the rangers tasked with protecting them.

The illegal trafficking of wildlife appears to be one of the ways in which a number of al-Qaeda affiliates and other militants have chosen to raise money to fund their operations. Recent escapees from the Lord’s Resistance Army have reported witnessing rebels shoot elephants and remove their tusks at Joseph Kony’s behest. Somalia, controlled for the most part by al-Shabaab, a militant Islamist group that pledged allegiance to al-Qaeda, is thought to be training fighters to infiltrate neighbouring Kenya and kill elephants for ivory to raise money. Al-Shabaab was, of course, responsible for the shopping centre massacre in Nairobi in September.

As well as the threatened destruction of the elephant and rhino population, there is the human toll. It is thought by the International Fund for Animal Welfare—IFAW—which I gratefully acknowledge as a source for much of the material in my remarks—that the number of rangers killed in 35 different countries during the past decade is probably between 3,000 and 5,000.

Who are the consumers? For the most part, they are in China. I very much hope that at some stage during the current mission to China someone in the Prime Minister’s very large delegation has found time to draw attention to this really important issue. While more than half of the large shipments of illegal ivory are destined for China, the United States is also a prime market for ivory and ivory carvings. The European Union is widely considered to be the third largest destination for illegal wildlife. It accounts for a third of all ivory seizures worldwide.

What are the solutions? A widespread and many-faceted response is required. This includes tackling terrorists; training and supporting rangers; and providing quasi- military support for the rangers in particularly hard-hit areas. From this year, DNA testing is mandatory for large-scale ivory seizures. Other new technologies are being developed, including alarm systems, as well as an intelligence-led approach. This all requires an integrated enforcement strategy involving all relevant agencies and the sharing of information across boundaries.

More important than any efforts to combat poaching on the ground is probably the reduction in consumer demand. IFAW has utilised mass-media channels to educate the general public in consumer nations about the effect of the wildlife trade on the welfare of animals, including advertising campaigns used in China which specifically target sectors of the community most likely to buy products. The American organisation WildAid is already campaigning hard in China. It has recruited Prince William, the Duke of Cambridge, David Beckham

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and assorted Chinese stars and business leaders using an advertisement on television, trains, planes, taxis and mobile telephones to drive home the message.

I am delighted that there is to be a government-sponsored summit in London in February next year, at which Heads of Government and Foreign Ministers of 50 countries will be urged to fight back against those destroying Africa’s natural heritage to feed the avarice of Asia. Both Prince William and Prince Charles have been raising awareness worldwide. Recently in the Times, which has consistently given wide exposure to this issue, a report said that China had yet to commit to sending a senior Minister to the conference in Whitehall. I very much hope that proves to be wrong.

WildAid has made a powerful and widely distributed video with Yao Ming and Prince William. It is absolutely right to say that there is a risk that targeting only poachers could simply drive up the price of ivory and rhino horn and escalate the conflict, whereas reducing demand in the Far East is likely to be a far more effective long-term strategy.

I do not doubt the Government's determination to make a real contribution to stamping out this dreadful trade. What else can be done? The National Wildlife Crime Unit is at the moment funded year on year, which inevitably makes long-term planning and staff retention difficult. I suggest that the Government should guarantee the long-term funding of this unit, as recommended by the Commons Environmental Audit Committee.

The combating of trade in illegal ivory on the internet should be a high priority. The Government should commit to tackling online wildlife crime through improved monitoring of internet forums and platforms by enforcement agencies, by building partnerships and by establishing best-practice models with internet companies.

The penalties for wildlife crime are, even in this country, much too light. The Government should, both domestically and worldwide, help to elevate wildlife crime to a proper level of seriousness. It is a form of international crime that poses threats to global security and development. To do this will involve strengthening policies and legal frameworks at local, national and international levels.

It should be a matter of fundamental education that every piece of ivory represents a dead elephant or rhinoceros—something, it appears, that the consumer can all too often forget. This is not a problem that can be solved at leisure. It is one of increasing urgency. The destruction of the elephant and rhino population to gratify Chinese middle-class aspirations or fanciful notions of medical benefit is an obscenity. If the world does not act effectively, we will soon lose an irreplaceable asset and further degrade the legacy we, as human beings, leave behind.

1.10 pm

Lord Jones of Cheltenham (LD): My Lords, I congratulate my noble friend on securing this timely debate. It is timely because the Independent newspaper group, along with the Evening Standard, have launched

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a campaign on the subject, and made Space for Giants their Christmas appeal. It is also timely because last week the International Fund for Animal Welfare, IFAW, launched its briefing,

Criminal Nature

, to which my noble friend has already referred. It is timely, too, because this week an international conference has been held in Botswana on the subject.

Ivory—its acquisition, transportation and sale—is a complex, brutal and horrifying process. My noble friend has tried to answer the question of how the world can protect rhinos and elephants from the ivory trade. There are only two ways: stop poaching or eliminate the market. Elephants, rhinos and many other species need protection. Elephants are invariably killed for their ivory, and, as I do not believe any are on licence right now, they are invariably poached. This is a situation of which the locals may or may not approve, but it is hard to show disapproval of a gang of poachers with AK47s at the ready.

So how do you crack down and eliminate the poachers? First, you have to put up a tangible reward for information on poachers and their whereabouts. Incentives need to be scaled and relevant to those on the receiving end. If you seek information on poachers, sooner or later you will get some. Then there has to be an immediate and appropriate reaction, otherwise the information flow will become tainted or tail off due to lack of interest. This means that park rangers, game wardens and other law enforcement agencies need to be trained and equipped for the task. This costs money and a long-term commitment, although the finances are marginal in global terms—you could save all the elephants in Africa for a small portion of the feed-in tariffs generously paid to the renewables industry.

Secondly, penalties for those guilty of poaching must be severe. Some recent small fines are frankly laughable. Two Irish smugglers who were found with eight rhino horns were find €500 each, whereas the street value is €500,000. It is good to see that Zimbabwe has introduced heavy fines for poaching—$120,000 for a rhino, $20,000 for an elephant—and if you do not or cannot pay you go to a Zimbabwean jail.

I am not in favour of the death penalty. However, poachers do not think twice about killing wildlife rangers if they get in the way, so it is likely that you are going to have to kill a few poachers before the message sinks in that poachers are effectively on licence all day, every day, of every year, from now on. This worked for a while in Kenya, but poaching has been overtaken by terrorism on the security agencies' priority list, although—as we have heard—in Kenya, as in Tanzania, the two crimes are probably closely linked.

The Minister of Environment, Wildlife and Tourism in Botswana, the honourable Tshekedi Khama, received flak recently when he said:

“When we meet the poachers, we do not negotiate”.

It follows, therefore, that declaring war on terrorists and terrorism by removing sources of income extends to eliminating the poachers, and this could most usefully be tasked and funded from anti-terrorism budgets. The conference held in Gaborone in Botswana this week has agreed more tough measures to cut wildlife smuggling. It is to be classified as a serious crime, and gangs risk having their assets seized.

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In some countries poachers with machine guns use helicopters in their murky exploits. They shoot elephants and rhinos from the air, land, take the ivory or horns and take off again. This is not random poaching: this is organised crime, highly financed. There is now hard evidence that these helicopter missions, in particular, are linked to terrorism, drug money-laundering and arms smuggling. They kill for ivory to fund terrorist activity or gun-running or drug activity elsewhere in the world.

I favour the bazooka option for the helicopter raids. It only needs a few of these aircraft to be blasted out of the sky to ram home the message that the poachers are not going to win. Next year the United Kingdom will withdraw its Armed Forces from Afghanistan. Perhaps we could offer to help train wildlife rangers to combat poaching. I know two members of our Armed Forces who would jump at the chance to help.

Finally, the market needs reform, preferably by elimination. A recent poll showed that seven out of 10 Chinese did not know that ivory comes from dead elephants. They seemed to think that it was some kind of mined mineral. Education is the key, not the elephants-are-lovely “Blue Peter” stuff but more along the lines of, “You are ridiculous idiots who need to get a life”. Now, as a realist, I suspect that the Prime Minister is unlikely to have had that sort of discussion on his visit to China this week, but it is encouraging that, according to this month’s National Geographic magazine, the Philippines has become the first non-African country to destroy its ivory stock. The Department of Environment and Natural Resources Secretary, Ramon JP Paje, said:

“The Philippines will not be a party to this massacre, and we refuse to be a conduit to this cycle of killing”.

Education is also needed as to the efficacy, or otherwise, of ingesting the powdered teeth or horn of elephants, rhinos and the like. Frankly, those who indulge in this practice need to be told that they would get as much benefit from consuming their own toenails, and they are free of charge. China and its inhabitants are both changing at a rapid pace, arguably for the better. As a state, it is buying up much of Africa and therefore should have a cultural interest in preserving what might, one day, become its playground. Education, in the final analysis, is the only solution to the demands of the market. Remove the market, and you stop poaching.

It is not all bad news; there is hope out there. Elephant and rhino populations have plummeted in recent decades, but they still exist. They have not yet become extinct and gone the way of the dodo and numerous other species. In some countries, populations are growing. A shining example is Botswana, and I draw attention to my declared interest in that country. At the end of 2012, Botswana’s elephant population was 207,545, which is more than one-third of all African elephants. The number has almost quadrupled in 20 years and is currently growing at 5% each year. This time next year, there will be more than 10,000 extra elephants in Botswana. The reason is not hard to find. Botswana’s rulers pay attention to and love their wildlife. The country’s first president, Sir Seretse Khama, and successive presidents since, knew and know the value

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of wildlife, not for its ivory and skins, but to attract visitors from around the world to see these magnificent creatures. Botswana has banned so-called trophy hunting. I recommend that noble Lords visit Botswana to see for themselves the most incredible wildlife on our planet in its natural habitat. If noble Lords wish to have elephants on their estates, I understand that the Government of Botswana will let you have as many as you like free of charge. You just need to arrange the transport.

I shall end with this personal experience. A few years ago I was on a boat on the River Chobe near Kasane in northern Botswana. In the distance I could see a large dark object in the river—it was a very large elephant. As we got closer I asked the guide why the elephant was there. “Oh, she’s dying”, he said. “She’s in the water to keep cool”. He added, “She’s the matriarch”. All around there were hundreds and hundreds, maybe thousands, of elephants of all shapes and sizes. A few weeks later I went back and asked what had happened to the elephant. I was told that she died. The wildlife wardens had dragged her onto the river bank and removed the tusks. That is what they do in Botswana with dead elephants; the Government take control of the ivory. Then, for hour upon hour, elephants had filed past her in an orderly fashion, touching her body with their trunks. They were her family paying their last respects. Elephants are amazingly intelligent creatures with feelings just like humans. In my view they are far more intelligent than poachers, the organisers of poaching, those involved in the ivory trade and the end consumers. Bad humans have caused the current crisis. It is now up to good humans to ensure that the species survive by eradicating once and for all the trade in ivory which has led to the horrible and indefensible crime of poaching.

1.20 pm

Lord St John of Bletso (CB): My Lords, I am grateful to the noble Lord, Lord Faulks, for introducing this topical and very important short debate. I declare an interest in that for more than 20 years I have been a trustee of Tusk, one of the largest wildlife conservation charities in Africa, which funds not only wildlife conservation but community development and wildlife education, which is very important. I have also worked closely with Space for Giants, to which the noble Lord, Lord Jones, referred, which has done remarkable work in conservation, particularly in Kenya, and is working with the Evening Standard and the Independent on a public awareness campaign.

It is very alarming that, according to reports published recently, particularly in 2011, 12% of Africa’s elephants were illegally killed and as many as 20% of central Africa’s elephant population was poached in just that one year. With South Africa being home to almost 80% of Africa’s rhinos and just over 70% of the global population of rhinos, the poaching of this endangered animal has been rampant. In fact, statistics show that almost two rhinos are being poached every day in South Africa.

As the noble Lord, Lord Faulks, mentioned, most of the seizures of illegal ivory and rhino horn have been destined for the Far East, predominantly China

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and Vietnam, although one should not forget that they have also been going to America and to other parts of the European Union. The illegal cargo, particularly from Africa, has been shipped from ports such as Mombasa, Dar es Salaam and Mozambique, hidden in shipping containers full of foodstuffs. There have been recent reports that the ivory and rhino horn have been smuggled out of Africa on planes in suitcases by many Chinese who are working on the continent. As the noble Lord, Lord Faulks, mentioned, the trade in tusks, horns and other animal parts is one of the world’s biggest criminal enterprises, after arms, drugs, counterfeiting and human trafficking. The trade has helped murderous organisations such as Somalia's al-Shabaab, Darfur's Janjaweed militia and the Lord’s Resistance Army in Uganda. As has already been mentioned, the demand for ivory in China has resulted in prices going up by more than 50% in the past year, and one ounce of rhino horn is worth more than an ounce of gold. The Elephant Action League calls ivory,

“the white gold of jihad”.

However, there have been some success stories. I am pleased that the noble Lord, Lord Jones, mentioned the herd populations in Botswana which are growing at a very encouraging rate. There has also been a lot of success in Kenya, particularly in Laikipia, where poaching has fallen by more than 65% in the past year. Unfortunately, in the DRC, where governance is at its weakest, the elephant population has been hit the hardest by continued rampant poaching. Tanzania has also been particularly badly affected by poachers and, sadly, many elephants have been poisoned, shot down by AK47s and even killed with rocket-propelled grenades by renegade soldiers in helicopters. It is just senseless. At the current rate of poaching, many wildlife experts forecast that, in several parts of Africa, the elephant herds will be totally wiped out.

These statistics, both in the supply and demand of ivory and rhino horn, are alarming, but there are a few glimmers of hope. The noble Lord, Lord Jones, referred to the recent summit in Botswana, where Africa’s elephant rangers and conservationists met to participate in a summit to work out and agree emergency measures—and there have been some encouraging measures from that summit, particularly in the protection of elephants. They plan to promote action by range states to enhance security and tackle wildlife crime. It is also encouraging that there will be another summit here in London next year.

Kenya has one of the largest populations of elephants in Africa. In the most encouraging move since 1977, the Kenyan Government have recently introduced the Wildlife Conservation and Management Bill, which will become law next year. They are also, at long last, giving a lot more support to front-line anti-poaching teams. In South Africa, conservationists have experimented with poisoning the horns of rhinos, which causes no harm to the rhino, but which would render the rhino horn worthless. Over 1,000 rhinos in South Africa have been treated in this manner. It is hoped that, when consumers of rhino horn realise that they could potentially be poisonous, this will drive down demand

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for rhino horn. It is well known that almost all poaching, particularly of rhino, takes place with inside knowledge of so-called gamekeepers, as well as security guards.

In conclusion, there are a number of measures that need to be taken to address this major problem. There needs to be greater investment in more rangers and community policing initiatives to counter poachers, as well as improved law enforcement across all range states and consumer nations. It is well known that the crime syndicates have been bribing police and magistrates in several African countries to prevent prosecution, as well as corrupting border guards, customs officers, port officials, shipping companies and, sadly, even government Ministers.

I entirely agree with the noble Lord, Lord Jones, that there ought to be far greater penalties against those found guilty of poaching and dealing illegally in ivory and rhino horn. To date, the penalties have been derisory. Furthermore, cross-border investigations and prosecutions have been virtually non-existent in Africa. I would also like to see more government-backed demand reduction programmes, particularly in China, Vietnam and other consumer countries in the Far East.

What is apparent is that there is huge ignorance among consumers. There have been strong calls for China to shut down official factories and shops dealing in ivory and rhino horn. Unfortunately, the release and sale of the African stockpile of ivory in 2008 gave the impression to many consumers that buying ivory was acceptable, which enabled traders to launder illegal ivory through the very short time when there was a legal market.

In conclusion, I am encouraged that at long last there are the first signs of global awareness of the illegal ivory and rhino horn trade, as well as the lion trade. Up to 30% of all the lions in South Africa are kept in captivity. It is not just about the impact on the trade; it is also about the sustainability of tourism. It is vitally important that this subject is not ignored and is put higher on the international political agenda. It is through debates such as this one, backed by the power of social media, that we will, I hope, substantially reduce this disastrous situation.

1.30 pm

Lord Knight of Weymouth (Lab): My Lords, I, too, pay tribute to the noble Lord, Lord Faulks, for securing this debate and for the way in which he introduced it. Certainly his points about the relationship to other crime, which were reinforced by the speech of the noble Lord, Lord St John, were very well made and I do not need to add to them. As the noble Lord, Lord Jones, said, this is a very timely debate, not just because of the work that the Independent has launched this week but also because of the meetings in Botswana and Paris this week—which is perhaps why the noble Lord, Lord De Mauley, is not with us. I pay tribute to the work that he is doing on this issue. Of course, there is also the relationship with poverty. It is striking that the world’s most magnificent and, tragically, valuable animals are surrounded by the world’s poorest people and by some of the worst conflict in the world. That makes it particularly difficult to tackle this issue.

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We have heard about the plight of elephants and rhinos. The Independent report suggests that as many as 52,000 elephants a year might now be lost due to poaching and that the population is 15% of what it was 20 years ago. I see from the National Wildlife Crime Unit that 234 items of ivory were seized in the UK last year alone. I also note from Defra’s strategic assessment of the National Wildlife Crime Unit from February 2011 that 12 rhinos a month were being lost in South Africa and Zimbabwe in 2011 due to this trade.

I was fortunate enough to see forest elephants in their natural environment in 2005 in the Virunga National Park in the Democratic Republic of the Congo and I met with the rangers there. I was the first western visitor to the park for 10 years. I believe that every one of the rangers I met has subsequently died as a result of the activity of the Lord’s Resistance Army and from other conflict in that area. I went on from Virunga to Bukavu, principally to see how Darwin money from the UK Government was being spent to protect gorillas in the forests of the DRC. The rangers there made it clear to me that the forest elephants in that part of the world are hugely important to the eco-system because they effectively create the pathways through which the rest of the wildlife is able to move. The tragic fate of the forest elephants, which was highlighted by the noble Lord, Lord St John, is having a serious impact on the rest of the eco-system. This is something that we should value beyond just the charismatic value of these extraordinary animals.

The noble Lord, Lord Jones, explained the choices well. Do you stop the poaching and/or can you stop the market? Both clearly are really hard. We have seen from Tanzania the efforts being made by the president there in launching Operation Tokomeza, with its orders to shoot to kill elephant poachers. Clearly he is doing what he can and reflects the comments from the noble Lord, Lord Jones, about being able to stop poaching. However, when this activity is sitting alongside such intense and difficult conflict and such intense poverty, stopping poaching is extremely difficult, certainly in those countries with porous borders. It is difficult to be optimistic.

In terms of stopping demand, I would be interested to know whether the Prime Minister in his visit to China was able, in among all the many important discussions he would have had there, to raise this issue with the Chinese. Clearly, that is a critical part of the market. Indeed, the irony when I was in the DRC all those years ago was that the Chinese were the people building the roads through the forest for the people and the elephants were making the roads for the animals. The demand from the Chinese appears to be removing that capacity.

I certainly congratulate the Government on the London conference, and Prince William and the Prince of Wales on their leadership on this issue. The noble Lord, Lord St John, mentioned the decision made in 2008 by the previous Government, of whom I was a member. That decision was debatable at best. It was made with good intentions in wanting to depress the price to reduce incentives to poachers and create revenue with the one-off sale for monitoring and enforcement

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against poachers. But I wonder whether the Government have learnt any lessons from that decision to allow one-off trade. Personally I regret the decision and it would be good now to see an unequivocal international ban on all forms of ivory trade, although I will be interested to hear what the Minister has to say on that.

Beyond the work that is being done internationally, where the Government have a pretty good record in terms of international wildlife conservation, there are also measures that need to be taken internally to make sure that we have our own house in order as we try to assert our authority internationally. I remember seeing the Met’s Wildlife Crime Unit’s efforts at Heathrow and seeing the extraordinary range of different things from the wildlife trade that are seized there on a daily basis. I have already said how much ivory is seized by that unit.

What progress is being made in terms of updating COTES, which implements CITES in this country? I pay tribute to the World Society for the Protection of Animals for its contribution of £100,000 per year to the work of the National Wildlife Crime Unit. I understand that the Government contributed £136,000 for 2013-14, but there is no commitment to fund the unit beyond that. Can the Minister update us on whether the Government will commit funds beyond that, at least at the current level, particularly now that we have the Autumn Statement? Perhaps there is some news buried away in the lengthy documentation that not all of us have had a chance to absorb from today's announcement. Many of us in this debate would like to see funding extended beyond the current level, because there is some evidence that London is the centre for some of this trade. We need to ensure that we play our part in forcing through Home Office funding for that unit as well as the one in the Met.

I pay tribute to all those who have spoken in this brief but high-quality debate. I reinforce my congratulations to the Minister on the work that he is doing on the cause this week and my appreciation of the leadership particularly of Prince William in asserting the UK's role through the conference that we will have shortly. I look forward to the noble Baroness’s answers on funding for the units and what we are doing to make sure that we have as good a record as possible here in the UK to reinforce those international efforts.

1.38 pm

Baroness Northover (LD): My Lords, I thank the noble Lord, Lord Faulks, for raising this important issue and all those who have taken part in this debate with such passion and knowledge. My noble friend is quite right: this is not a marginal issue, it is extremely important. It is a challenge that has increased with great severity and rapidity, as noble Lords have indicated. I also pay tribute to the noble Lord, Lord St John of Bletso, for his long-standing work with Tusk.

There can be no doubt that elephant and rhinoceros populations are facing a considerable threat from poaching, which has been sweeping much of the African continent. Elephants are being lost at the rate of tens of thousands a year, and at the current rate of increase in poaching, rhino numbers could fall into decline as early as 2015. If left unchecked, as noble Lords have

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said, some country populations will undoubtedly disappear and the very existence of these species could be threatened. That cannot be allowed to happen. I want to make it clear that the Government take the issue of the illegal trade in wildlife very seriously. In reply to the noble Lord, Lord Knight, I confirm our commitment to the ban on the trade of ivory. As I heard the winds threaten to blow the roof off this Room, it sounded as if the gods agree with us.

Traditionally wildlife poaching has been considered an environmental problem—a threat to the conservation of the species but no more. It is increasingly recognised as a problem affecting other sectors as well. Noble Lords made that case strongly. The illegal trade in wildlife is a multibillion pound industry, and as my noble friend Lord Faulks made clear, there is evidence of involvement by organised criminality and, in some cases, heavily armed militias and those linked to extremist activity. As my noble friend Lord Faulks and others have said, this illegal activity undermines the rule of law, can destabilise fragile Governments and impede development goals. My noble friend Lord Faulks made very clear the interlinking between this trade and crime, and the impact on the most fragile of states. The noble Lord, Lord St John, reinforced this very cogent case. To describe ivory as he did, as the “white gold of jihad” aptly recognises its significance.

The UK has for many years taken an active role in the conservation of species internationally, most usually through our engagement with multilateral environmental agreements such as the Convention on Biological Diversity and the Convention on International Trade in Endangered Species. We have supplemented this work with specific engagement on projects involving many of the iconic species that have been mentioned here—tigers, elephants and rhino—and one species that is very popular among the British public but that has not been mentioned here—apes. Support is not always financial; it is also practical. My noble friend Lord Faulks will be pleased to hear that last month, my right honourable friend the Secretary of State for Defra announced that British paratroopers in Kenya would provide patrol and field training for Kenyan conservation rangers to help in their fight against poaching. My noble friend Lord Faulks pointed out not only the risk to the animals, but also to the rangers themselves. This was again echoed by other noble Lords.

In March, UK officials played a major role in achieving strong outcomes to provide greater protection for elephants and rhinos at the CITES conference of parties in Bangkok. This included a requirement for the eight states most implicated in the illegal ivory trade to produce and implement time-limited action plans. Implementation will be assessed next July and we will not hesitate to call for punitive measures where necessary.

Clearly, however, much more needs to be done. As my noble friend Lord Jones and others have mentioned, a summit on the plight of the African elephants, hosted by the Government of Botswana, has just finished. We helped fund this meeting and it was attended by my noble friend Lord De Mauley, the Parliamentary Under-Secretary of State for Defra. He would otherwise have been at this debate. I will pass

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back to him the very generous tribute paid to him on his work by the noble Lord, Lord Knight. We welcome the outcome of that meeting with its 14 emergency measures.

However, clearly no country can solve this problem alone. That is why my right honourable friend the Foreign Secretary announced at the UN General Assembly that the UK will host an international conference in London on 13 February 2014 to galvanise international action. That is a meeting to which a number of noble Lords have referred. We are working very closely across government with a wide range of foreign Governments, multilateral organisations, the Royal Household and NGOs to prepare for this conference. It will seek to address three key areas which must all be addressed if we are to be successful. They are the areas that noble Lords referred to in their speeches.

The first area is improving law enforcement and the role of the criminal justice system throughout the chain of illegal trafficking. This includes the countries in which the animals are poached, the countries through which they transit, and the countries in which they end up. The second is reducing demand for the wildlife products that drive this trafficking through public awareness and behaviour-change campaigns. This area was strongly highlighted by noble Lords. The third is supporting the development of sustainable livelihoods for communities affected by the illegal wildlife trade in order to reduce the incentive to become involved in poaching, as well as working actively within the community against poachers.

The highest levels of government, up to and including heads of state, have been invited to the conference, and key source, transit and destination countries will be present. The conference will focus on elephant, rhino and tiger but the outputs will benefit a much wider spectrum of species. The noble Lord, Lord St John, mentioned lions and the sustainability of tourism. The longer-term economic, as well as environmental, effect of this trade is clearly key. The conference will build on the valuable work already undertaken at international, regional and national levels, giving renewed impetus to existing initiatives and identifying new opportunities for action.

We recognise, as emphasised by noble Lords, that China is the biggest consumer of ivory. As noble Lords mentioned, my right honourable friend the Secretary of State has been in China—in fact, he has been there twice in recent weeks. I assure my noble friend Lord Faulks and the noble Lord, Lord Knight, that he was indeed planning to raise this issue during his latest visit, and I look forward, as no doubt they do, to hearing what progress has been made. The Prime Minister has invited China to the London conference and there are good indications that delegates from that country will attend.

My noble friends Lord Faulks and Lord Jones expressed concern about the level of penalties for those involved in this crime. I point out that those convicted of such crimes can be sentenced for up to seven years. I heard what my noble friend Lord Jones said about the “bazooka” option, and perhaps I should use the phrase of my noble friend Lord Dobbs—“I couldn’t possibly comment”. Clearly, the United Kingdom

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takes this issue very seriously. We follow an intelligence-led approach, escalating it as appropriate, and a number of agencies, including the Home Office and the Border Force, all work together in this area. I think that noble Lords will also be aware of the greater involvement of DfID in the strengthening of policing in relevant areas, including trying to tackle corruption, which undermines fragile states.

I was asked specifically about the ongoing funding of the National Wildlife Crime Unit. I thank the unit on behalf of those behind me and others behind them, and I join in the tributes that noble Lords have paid to it. I remind noble Lords that our commitment to this area is borne out by the commitment made on 23 January, when Defra and the Home Office confirmed that each would provide funding of £136,000 for 2013-14. We are currently discussing future funding across government because we recognise the importance of what noble Lords have been saying. Of course, the National Wildlife Crime Unit is involved in looking at illegal trade taking place on the internet, and this is a new challenge. There is legal trade and less legal trade, and there is totally illegal trade. This is an area that is likely to develop very rapidly and prove very challenging in the future, but we are well aware of that.

We are working internationally with many different organisations. The noble Lord, Lord St John, mentioned the EU. It, too, is taking the threat to this trade very seriously. The EU has put in place wildlife trade regulations, which implement the provisions of CITES and the majority of the CITES resolutions, but they go beyond the convention in many areas. For example, the EU and China signed a landmark agreement to join forces to try to combat the illegal trade in wildlife products. Given China’s interest in relations with the EU, that is a very encouraging development.

We treat the issue of illegal wildlife trade very seriously. We are working together with many countries and organisations to tackle it, which is why we have called the London summit. The Committee is right to emphasise this issue. It has far-reaching consequences in terms of the social, environmental and economic instability that the trade promotes. We recognise that and I can assure the Committee of our determination in this area. I am sure that noble Lords will continue to hold our feet to the fire on this issue.

1.50 pm

Sitting suspended.

Assisted Dying: Legislation

Question for Short Debate

2 pm

Asked by The Earl of Glasgow

To ask Her Majesty’s Government whether they intend to legislate to provide terminally ill patients with the legal right to decide when, where and how they should die, if necessary with the assistance of others.

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The Earl of Glasgow (LD): My Lords, I thank very much all noble Lords who have decided to take part in this debate, although I know that they have been given only one minute in which to speak. Many noble Lords may be very opposed to what I am going to say but I thank them anyway for taking part.

I have long believed that we should all have some choice in the manner of our deaths. There is no point in fearing death itself, because there is nothing that we can do about it, but we do have reason to fear the manner of our death, particularly our physical state in the closing days of our lives. Assuming that we are terminally ill but still in our right minds, probably suffering from physical or psychological pain, why should so many people object to us having the right to decide how we die?

The problem is, of course, that if you wish to die painlessly, peacefully and with dignity, you are almost certainly going to need assistance from others, particularly a doctor or medical practitioner. It is not easy to kill yourself cleanly on your own when you are old and infirm but, as the law stands today, anyone assisting you to die is committing a criminal offence and risks anything up to 14 years’ imprisonment.

However, in a significant minority of cases, assisting someone to die is necessary, sensible and humane. Therefore, I, and millions like me, want the law changed so that terminally ill patients who are in their right mind can choose how, when and where they die. In most cases, I suspect that it will be in their own home with their family and loved ones around them. They certainly would not choose to travel to an impersonal clinic in Switzerland to die prematurely and at considerable expense to their family, yet that is what our present law is forcing about one British citizen a week to do.

Of course, if the law is to be changed, there must be safeguards. We cannot allow a cruel or selfish family to pressurise their troublesome old granny into taking her own life. We cannot even allow granny to be put in a position in which she feels she has become such a burden on the family she loves that she believes she has a “duty to die”. Of course there must be very robust and foolproof safeguards, and that is exactly what is to be found in the Bill of the noble and learned Lord, Lord Falconer, on assisted dying, which will be coming to this House some time early next year.

Yet, in spite of all the assurances on safeguards, we know that there is still going to be strong opposition to that Bill—not, I am pleased to say, as strong as it was when the noble Lord, Lord Joffe, introduced a similar Bill to this House some seven years ago, but it will still be formidable. To me, the legalisation of assisted dying in specific and clearly identifiable circumstances seems so sensible and humane that I am finding it more and more difficult to understand why some groups and individuals are so adamantly opposed to it.

I am glad to say that many in the medical profession who were once so opposed are now coming round. Professor Raymond Tallis, chair of Healthcare Professionals for Assisted Dying, says:

“For a small but significant group of terminally ill patients, the dying process results in suffering which cannot be alleviated by even the very best palliative care. We believe that the present law, which does not give patients the option to control the timing of their death, is cruel”.

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Even some of our religious leaders are beginning to see the light. For instance, Rabbi Jonathan Romain says:

“Despite once being opposed to a change in the law, I support this Bill. As a rabbi, my pastoral experience convinces me that we should enable dying patients who consider their suffering unbearable to control the time and place of their death”.

I feel that, initially anyway, many people never really understood what those of us who support assisted dying are really all about. They do not understand our purpose and the strict limitations of what we are proposing. The measure applies only to adults who are certified as being in their right minds and not suffering from medical depressions or any other mental illness which might affect their ability to decide. It applies only to patients who have been diagnosed as being terminally ill and certain to die within six months. It applies only to people who have consistently declared a wish to die before their natural end. The will to live, and to continue living, is very strong in most of us, so we are talking about only a small minority of people. However, they are a significant minority whose plight cannot be ignored any longer.

I do not think that our case has been helped by linking us—sometimes done deliberately by opponents—with words such as “voluntary euthanasia”. “Euthanasia” implies putting other people to death—presumably, not oneself—for compassionate reasons. This issue has nothing to do with euthanasia. It is sometimes referred to as “assisted suicide”. “Assisted suicide”? I would not vote for anything called “assisted suicide”, and I am sure that most noble Lords would not.

I do not much like the term “assisted death”, as our cause is presently labelled. It implies that the assisters are taking part willingly in something that will almost certainly be very traumatic and painful for them too. Even the word “assisted” implies that you are party to some criminal act, which, as the law now stands, is exactly what you would be guilty of.

Therefore, we must redefine what this debate is about. “Assisted” anything is only a necessary and vital adjunct to the real issue. It is really about choice: personal, individual choice. “Choice at the end of life” is my preference—omitting even the emotive word “death”. The law must allow terminally ill patients in their right mind to choose how, when and where they wish to die. If they wish to continue to live right up to their last natural breath, that is their choice. If they wish to avail themselves of palliative care, that is their choice. If they believe that their god wants them to suffer to the bitter end, that, too, is their choice. However, if they prefer to die when they feel ready, and wish to avoid the inevitable suffering and indignity which are likely to face them in their final months, then the law must make this possible too.

The forthcoming Bill tabled by the noble and learned Lord, Lord Falconer, is all about choice, freely taken. It has nothing to do with euthanasia and is in no way linked to the problems of those many elderly people who are no longer capable of making decisions for themselves. I am saddened that so many disabled people feel threatened by this Bill. It is intended to

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give each of them a crucial say in their own destiny—they themselves, not the doctors or their relatives. Surely it should be a comfort to them, not a cause for alarm.

When the Bill tabled by the noble and learned Lord, Lord Falconer, comes before this House next year, I hope that, by then, the Government will have come off the fence on this issue, and will be prepared to support it. Are the Government not ashamed that so many British citizens feel compelled to travel to Switzerland because their own country refuses them a dignified death? I like to think that they do feel a little shame because they turn a blind eye to a public prosecutor who is not prepared to prosecute those family members assisting their ill relations to get to Dignitas, and thus blatantly flouting the law. The law badly needs to be changed to allow choice at the end of life and immunity to those who assist in this regard. It is surely time that the Government faced up to this very important issue.

2.08 pm

Baroness Hollins (CB): My Lords, is it not extraordinary that when we discuss death in this Chamber, it is to propose something as dramatic as state-supported suicide, while at home we are bombarded with emotive leaflets portraying death as the final assault on our dignity?

I am comfortable talking about death and decision-making at the end of life, but the subject arouses very strong emotions; fear seems to predominate. Death needs to be talked about and planned for. Death education at school and end of life preparation classes would be as useful as parenting preparation and retirement classes. How many of us, so determined to retain autonomy and agency at the end of life, have actually made lasting powers of attorney and advance directives? These are powerful legal safeguards, if and when we are no longer able to make and communicate decisions for ourselves. However, they are still infrequently used. What need is there for more legislation when the robust legislation we already have is not being used?

2.09 pm

The Lord Bishop of Derby: My Lords, two quotations. John Donne:

“No man is an island”.

and the Book of Job:

“The Lord gives and the Lord takes away”.

Life is a gift. None of us decided to be born; we came from a relationship between two people, from a culture, from a context, from a spiritual hinterland, and any life is part of that flow. As it flows on, it seeks for more and more. Modern economics, and the market, encourage us to see ourselves as autonomous individuals. The noble Earl just talked about making an individual choice. None of us is an individual in that sense: we are part of a web of relationships, and that web holds us in suffering as well as in the imminence of death. T. S. Eliot said, “In our endings are our beginnings”.

I think we need to approach death by affirming life, being willing to face suffering and having a communal aspect with those around us. As Jesus said on the cross—his final decision, surrounded by others:

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“Father, into your hands I commit my spirit”.

Death is not just about the end of a heartbeat in a physical body, it is about a transition within a life that flows into eternity. We must be very careful about isolating an individual, pulling them out of that stream and implying that they can survive on their own.

2.11 pm

Baroness O'Cathain (Con): My Lords, in all the millions of words that will be spoken today, next week and next year on this subject, I just want to make sure that we do not lose sight of one fact. The relationship between a doctor and a patient is not simply a commercial relationship such as that which exists between a customer and a supplier. It is a relationship of trust, involving a duty of care and protection. To suggest that a doctor should knowingly and deliberately aid and abet a patient’s suicide—I will use that word—takes clinical practice into a place where it has no business to be, and could signify the breakdown of that trust.

2.12 pm

Baroness Grey-Thompson (CB): My Lords, what for many is seen as a “right to die” can too easily become a “duty to die”. That is how assisted dying is viewed by many disabled people. All too often the assumption is made by those who are in robust health that terminal illness is unbearable and that you would be better off dead. I have been told many times, “I would not want to live if I was like you”. The commission chaired by the noble and learned Lord, Lord Falconer, whose Assisted Dying Bill is in front of us, said in its report:

“We … do not consider that it would be acceptable to society at this point in time to recommend that a non-terminally ill person with significant physical impairments should be made eligible under any future legislation to request assistance in ending his or her life”.

The words,

“at this point in time”,

send a chill down my spine. While we may not be eligible now, we are surely in the waiting room. I sincerely hope that Her Majesty’s Government will stay well clear of any legislation to license assisted suicide.

2.13 pm

Lord Judge (CB): My Lords, the short question is whether this criminal offence should continue on the statute book. The issue has been up and down the courts of the land, in the Divisional Court, the Court of Appeal, the House of Lords and the European Court of Human Rights, back down and back up again. I have been told that I am right and that I am wrong. Last month I dissented. The issue is far too important to be resolved by judges and the Director of Public Prosecutions. Legislation is the only way to deal with this issue, and there should be a free vote in both Houses on this very difficult and delicate moral, social and personal problem.

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2.13 pm

Lord Dubs (Lab): My Lords, when the Bill of the noble Lord, Lord Joffe, was being debated here, I thought, “I cannot vote to oppose something which I would want for myself”. How can I deny that to other people? To me, that seems to be the guiding principle. I believe that public opinion is so overwhelmingly on the side of the Bill of the noble and learned Lord, Lord Falconer, that it will happen sooner or later. I think that we are trying to hold back something that is inevitable. Of course there must be safeguards. Today, there are none. If you can afford a flight to Switzerland, there are no safeguards at all.

Some years ago, a friend of mine was dying of motor neurone disease and was tapping out his messages on a little keyboard. He raised this issue and said, “Please, please, please, vote for a change in the legislation”. On that basis, that is what I will do when the Bill comes forward.

2.14 pm

Lord Kerr of Kinlochard (CB): My Lords, the polls tell us that four out of every five people in the population want the reform for which the noble Earl has asked; that four out of five of the disabled people in the country want that reform; that four out of five of the people professing a religious belief want that reform; and that two-thirds of general practitioners would like that reform. Parliament has a proud tradition of getting ahead of public opinion; in this case, we are lagging far, far behind. Noble Lords should think of Wilberforce, slavery, child labour and capital punishment; they should think of the creation of the National Health Service, which was opposed at the time by the medical profession. It really is time that the House of Lords and the House of Commons resumed their traditional role as the conscience of the country and that we pass the reform called for by the noble Earl, Lord Glasgow.

2.15 pm

Baroness Nicholson of Winterbourne (LD): My Lords, the noble Earl has given us the “good intentions” speech. The slippery slope he outlined was paved with comforting phrases, but were they justified by facts? One of his phrases was “death clearly inevitable”; another was “certain to die within six months”. However, in a survey taken last October of 156 patients whose prognosis was death within 14 days, 12% lived longer. These patients had advanced, incurable cancer and were referred for palliative care services. Further research following that showed that 10% of MDs made inaccurate prognoses for two-week survival, and in a survey of 1,018 patients with advanced cancer, only 56.3% were able to be accurate with medical predictions. I think that the base of the case is not proven.

2.16 pm

Baroness Murphy (CB): My Lords, I support the stance of the noble Earl, Lord Glasgow, and the introduction of a very limited Bill to enable those with terminal illness to have help to die at a time of their choosing. For me, it is a moral issue and a

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matter of simple humanity that we should respect the diversity of patients’ wishes in the last months of life, just as we are beholden by law to respect their wishes at other times. It seems to me that we can talk endlessly about safeguards; next week, in another, similar debate, we will be able to explore mental capacity, mental illness, the prediction of six months’ duration and undue pressures. I will be happy to talk about all those things in the future. We should base our decisions on research evidence of outcomes from other jurisdictions that have already bitten this bullet and have 16 years’ worth of good information about what happens when you take a chance. All those predictions of cataclysm and slippery slope have proved to be completely false. I hope very much that we will support the wish of the noble Earl, Lord Glasgow.

2.18 pm

Lord Dobbs (Con): My Lords, the present position is untenable. Decisions as to what is right and what is wrong at the end of life cannot be left to an unelected official such as the DPP. That is unfair on the DPP; it is grossly unfair on those who are terminally ill and their loved ones. It is our duty as parliamentarians to take responsibility for those decisions, not to pass off that responsibility to others.

I am in favour of the Bill introduced by the noble and learned Lord, Lord Falconer, with its rights and safeguards. I will fight for it, even as I will listen carefully to the ethical and practical arguments of those—many of whom are dear and respected friends—who are not convinced by it. The quality of our lives is often measured by the manner of our leaving. May we seek to make that moment as dignified as possible.

2.19 pm

Viscount Craigavon (CB): My Lords, in supporting the noble Earl, Lord Glasgow, on this subject, my sole point today is that almost every time we have a debate on this subject, some other countries or states change their laws to allow assisted dying. That is the direction in which we are inexorably moving, supported by the generally agreed figure of 80% of our population. We all know about Switzerland, and Luxembourg joined the Netherlands and Belgium in this some time ago. We have learnt that the French Government—not a French Back-Bencher—are likely to try to introduce a law next year. We know that the practice has settled down in Oregon and Washington state, which have been joined by Montana; and in May this year Vermont passed but has not yet implemented a similar law. Massachusetts was denied a change in the law in 2012 by a majority of only 1%—that is, 51% voted against a change. The Parliament of Quebec is currently considering a law which would include assistance to die; and in Australia, a recent debate in the Tasmanian Senate was lost by only two votes. I believe that, with the safeguards proposed, we have a duty to follow these enlightened democracies and give a lead to others without delay.

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2.20 pm

Lord Blair of Boughton (CB): My Lords, I declare an interest as one of the commissioners of the noble and learned Lord, Lord Falconer. I want to reflect briefly on the experience of being a commissioner.

First, I want to emphasise that whatever is being proposed is voluntary—voluntary for the person involved as a patient and voluntary for the medical practitioner. Secondly, as others have said, research on the jurisdictions that have allowed assisted dying shows no evidence of a slippery slope. Thirdly, even though I was a police officer for 35 years, the testimony that we were given of some of these dreadful deaths is among the most shocking things that I have ever encountered.

Finally, speaking as a former police officer, even if the DPP's current guidelines make prosecution unlikely, they do not make the search, questioning and possible arrest of the people involved unnecessary. At the moment that has to happen. However good the police are, someone is left not only with a death but with precious objects removed from their house, and with the decision hanging over them about whether to prosecute.

2.21 pm

The Lord Bishop of Wakefield: My Lords, I imagine that after clinicians, clergy—of a variety of faiths—are those who have the most frequent experience of being alongside those who are terminally ill and dying. That gives clergy no privilege in our opinions, but it does offer us a unique set of experiences in the care and support of the dying.

Part of that support, from all concerned in such caring, is reassurance to those who are terminally ill. The framing of the present law is integral to such reassurance. Fears of being a family burden, uncertainty about one's own self-worth or society’s pressures on limited resources can undermine the feelings of the terminally ill. That calls out of us compassion. Choice is a two-edged sword.

Some have the inner strength to respond and act decisively in the face of possible imminent death—that word “possible” is crucial because predictions are never certain—but such inner strength is probably not there within the majority of us. My concern is not just for those who might opt for assisted dying, but for those who do not. If the law were to be changed, those people would be presented with an unenviable and perhaps impossible choice. We should approach arguments for assisted dying with great caution.

2.22 pm

Baroness Masham of Ilton (CB): My Lords, this is a very dangerous question. If the law is changed, it will put ill, frail and disabled people who are vulnerable in an even more vulnerable position. We are living in the shadows of the late GP, Dr Harold Shipman, who visited elderly people in their own homes and killed them, and the neglect and bad treatment that killed many people in Mid Staffordshire Hospital as it put the importance of foundation status in place of good nursing and compassion. We now have many people who are fearful that hospitals may kill them rather

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than cure them. Patients in pain need it to be controlled. They need nourishment and liquid if they want it and to trust, not fear, those who care for them.

2.23 pm

Baroness Greengross (CB): My Lords, I agree with the noble Earl, Lord Glasgow, and support his view. I support it after working with older people for about the past 40 years and listening to what they want at the end of their lives. People want to have their wishes for care and the end of life respected. I agree with the right reverend Prelate that life is a gift, and we must recognise that at the end of life, the last few weeks, days and hours of our lives are very important. We must avoid all possible risks of ill treatment and the wrong sort of persuasion—all the dangers that people have spoken about. Such treatment is impossible: we cannot tolerate it. However, I believe that we can control and avoid it. We should therefore allow people to stand by the phrase “nothing about us without us” and listen to what they want. The majority of people—80% in this country—want to have control over when they die. We must not ignore that.

2.25 pm

Baroness Hayter of Kentish Town (Lab): My Lords, when I was growing up, women largely fell pregnant when nature determined it and without access to safe, legal abortion. Today, science and humanity have combined to allow us to choose when to get pregnant and to plan our families. Sadly, we seem reluctant to allow that humanity and science to make our departure from this world as painless and as planned as our arrival. Colin Marriage, a man with terminal cancer, had excellent care in hospital but when he was told he had a week to live, he cried, not because it was so short but because it was so long. He did not want that last week of sickness, inability to sleep and pain. Why inflict such cruelty at that point on a man who is competent to choose? Surely that is the reason that the majority of GPs now feel that their college should abandon its opposition to assisted dying. I share that view.

2.26 pm

Baroness Flather (CB): My Lords, I am old enough to remember when it was said that pneumonia is the best friend of old people. We have long since passed that stage. Pneumonia is no longer a friend to anybody. Everybody survives it, whatever age they are. My gynaecologist told me, “Don’t go to the hospital to die. You will be put on machines and so on and be kept alive”. These are things that I remember from my youth. We are doing that. Medical advance has made it quite impossible for us to die naturally at the time we should die. That is a big problem.

I say to the right reverend Prelate that life is a gift only when it feels like a gift. It stops being a gift when you are suffering and do not wish to go on. As a man of faith, he cannot possibility advocate that we should stop life at any point, but we cannot all follow the example of the Son of God.

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2.27 pm

Baroness Howe of Idlicote (CB): My Lords, those who specialise in palliative care, a discipline in which this country leads the world, every day assist people as they die. The noble Earl referred to assisted dying, which is a euphemism for allowing doctors by law to give lethal drugs to terminally ill patients to enable them to commit suicide. I draw the noble Earl’s attention to the view of the Royal College of Physicians, that a doctor’s duty of care for patients,

“does not include being in any way part of their suicide”.

That view is endorsed by the majority of practising doctors. Doctors have a duty to treat illness or mitigate its effects. That does not extend to killing their patients or giving them the means to kill themselves. It is all very well to talk about choice and control at the end of life. The stereotype of the clearheaded and self-confident person intent on ending his or her life is the exception rather than the rule. Most people who are facing death are struggling to come to terms with their mortality and are vulnerable. They need our care and our protection, not encouragement to end it all.

2.28 pm

The Earl of Arran (Con): My Lords, in supporting the noble Earl, Lord Glasgow, I shall talk about the Oregon Death with Dignity Act 1997. I was privileged to travel to Oregon in 2004 with the Select Committee on the Assisted Dying for the Terminally Ill Bill and saw compelling evidence that that law works. The then chief executive of the Oregon Hospice Association told the committee that the Act had not adversely affected the hospice movement. It has improved in Oregon since the passing of the Act. Ninety-seven per cent of those who had an assisted death in Oregon in 2012 had been enrolled in hospice care. Assisted dying is complementary to excellent hospice and palliative care. They are not mutually exclusive. We also know that the main reasons for seeking assistance to die centre on loss of autonomy and dignity as opposed to inadequate pain relief. We know that the Oregon system works well—so well in fact that, as has already been said, the states of Washington, Montana and Vermont have subsequently legalised assisted dying.

2.30 pm

Baroness Meacher (CB): My Lords, this debate is about the autonomy of the individual—a fundamental principle in modern medicine. All most people are asking for is the right to choose to avoid the fear of unbearable suffering at the end of life, and then the intolerable suffering itself. This may not principally be physical pain. I humbly suggest that none of us has the right to deny others the choice about how much suffering they want to, or can, bear.

The other key word in this debate is compassion—compassion for people who will die within six months, a very short period. We must legislate to permit people a dignified death.

2.31 pm

Baroness Wheeler (Lab): My Lords, I thank the noble Lord for securing this debate. This important issue deserves time and deliberation by us. I hope that

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this will lead to further attention being given in this House to the importance of continuing discussion and dialogue on the current situation, the legal uncertainties, ambiguities and suffering of people in the appalling situation endured by Tony Nicklinson and others. We all acknowledge that suffering, no matter what our views are on how the issues should be addressed or taken forward.

Had I more time I would have spoken more fully about the end of life care discussions under the Care Bill and stressed the importance of recognising the overall progress that has been made. Today’s focus on the legal right for terminally ill patients to decide when and how they should die is outside the scope of that Bill but we should acknowledge the substantial changes in care and support at the end of life made since the End of Life Care Strategy’s 2008 launch. We should also acknowledge the changes in attitudes and approach to the cared-for, carers and staff, resulting from end of life care plans, better communication and openness and understanding with patients and their families. There is cross-party support both for people to have the right to record their preferred place of death—the “where” part of today’s question—and to work towards free end of life social care for the terminally ill. Both are very important developments.

On the legal issues before us, I want to stress Labour’s continuing commitment to the neutral stance that we have always adopted when Parliament has discussed changing the law to provide support for terminally ill patients to choose when and how they should die. We have always made it clear that this is a matter for Parliament to decide. It is an individual matter of conscience and would be the subject of a free vote. Today’s debate shows the strong and opposing views on the issue. People’s views are strongly and sincerely held. However, we must all acknowledge that high-profile court cases and the impact of key interventions, such as the Director of Public Prosecutions’ guidance, mean that public awareness, concern and confusion is increasing. I am sorry that I have no more time. I look forward to the Minister’s response.

2.33 pm

Lord Ahmad of Wimbledon (Con): My Lords, I congratulate my noble friend Lord Glasgow on securing this debate. I listened carefully to each and every contribution. I hope that noble Lords will allow me to break with normal convention and not refer to every speech that was made, as important as they were. It is a matter for the Hansard record and, as has been said, there is another, more lengthy debate next week on a similar issue. As one of my noble friends said, this is a subject that we will return to not just next week but next year as well.

This House has debated the particularly sensitive issue of assisted dying on a number of occasions, sometimes at great length and sometimes, as on this occasion, with admirable succinctness. The noble Lord, Lord Popat, indicated to me that I need not worry about the clock striking three. I believe that this is the first debate specifically about this law in the current Parliament. It is therefore a welcome opportunity to

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address a matter that arouses, as we have seen today, high public interest, understandable emotion and at times, of course, controversy.

I sought to keep a tally, as noble Lords made their contributions, of who was for and who was against. It is interesting to do a tally, and I think that it was reasonably even. I can assure noble Lords that my maths is not that far off. Those who believed that there should be a change were certainly in the majority in this case. However, this debate invites different views not just in this House but in the country generally.

Both Houses have debated the Director of Public Prosecutions’ policy for prosecutors in cases of encouraging or assisting suicide in the last Session. The House of Commons passed, without a vote, a Motion welcoming the policy on 27 March 2012, but widely differing views were expressed on the desirability of legislative change. It is evident from this afternoon’s debate that there are strong and deeply differing views on both sides of this issue.

It would be disingenuous not to mention, as other noble Lords have done, the Assisted Dying Bill. I note that the noble and learned Lord, Lord Falconer of Thoroton, is in listening mode this afternoon. It was introduced in May this year and seeks to legalise, in England and Wales, assisted suicide for terminally ill, mentally competent adults who are reasonably expected to die within six months. The Government will take a collective view on the noble and learned Lord’s Bill in order to respond to the debate on specific provisions, but not before Second Reading. As things stand, however, no date has been set for Second Reading, and today’s debate is not about specific proposals. Rather, the question before us today is one of principle—whether there are any circumstances in which it should be legal to assist another person to die.

It is worth taking a moment to consider what we mean by “assisted dying”. As several noble Lords have said, it is not a term that exists in law per se. Rather, at times, it is a catch-all term and, wherever you stand on the matter, it is sometimes used for either assisted suicide or euthanasia or both. Both these areas of law raise very difficult moral issues and they often form part of the same debate. But there is an important distinction. Euthanasia, killing someone for compassionate reasons and possibly on the request of that person, constitutes murder in common law and carries a mandatory sentence of life imprisonment. Helping another person to take his or her own life is contrary to the statutory offence of encouraging or assisting suicide and carries a maximum penalty of 14 years’ imprisonment. There is no offence, or defence, of mercy killing, nor is there any exception to the offence under Section 2(1) of the Suicide Act 1961. As noble Lords will know, the Suicide Act was amended by Section 59 of the Coroners and Justice Act 2009, but the purpose was to clarify rather than change the law. By doing so, Parliament confirmed that it should remain an offence to encourage or assist suicide.

The Government’s view is that any change to the law in this area, whether in relation to euthanasia or assisted suicide, is a matter of individual conscience. It is, rightly, a matter for Parliament to decide rather than for government policy. However one interprets

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the term, assisted dying is a highly emotive issue which polarises opinion among the public, in the media and across the political spectrum. It raises the most profound ethical, moral, social and religious issues. As I am sure all noble Lords will agree, there are no easy answers. I am, of course, acutely aware of opinion polls suggesting that there is strong public support for a change in the law. But even if one accepts that the law should change, there is no consensus, in Parliament or elsewhere, on where a line should be drawn, what safeguards should be put in place and for whom. We should not underestimate the magnitude of any change that says that we can help people to kill themselves rather than helping them to withstand their suffering. Even the most limited step in this respect would represent a fundamental shift in the line that we have held to so far on the ethics of helping people to die.

As noble Lords have mentioned, much of the debate in recent months has centred on individual, high-profile cases, such as those of Nicklinson and Lamb v Ministry of Justice and AM v Director of Public Prosecutions, in which the Court of Appeal gave judgment on 31 July. It would be a hard person indeed who is not deeply moved by the terrible plight of those such as the late Tony Nicklinson, who sought to challenge the legal ban on voluntary euthanasia, and Paul Lamb, who took up that challenge. They were, and are, faced with the sort of difficult choices that none of us would ever want to make. As an appeal to the Supreme Court is currently pending, noble Lords will understand that it would not be appropriate for me to comment on that case or the related one of AM, where the challenge is to prosecution policy.

On the other hand, as some noble Lords have mentioned, we cannot lightly dismiss the fears of some of the most vulnerable members of our society—sick and disabled people who fear that a right to die could become almost a duty to die. Whatever the arguments for and against change, I am sure all noble Lords agree that sick and disabled people are entitled to the same protection in law as everyone else. It is important that the ongoing debate should not lead those whose lives are affected in this way to feel less valued.

My noble friend contends, as do others, that the law should be changed to reflect what is regarded as prosecution practice. Other people believe that the deterrent effect of the present law, combined with the compassionate exercise of prosecutorial discretion, offers the best of both worlds. The guidelines published in February 2010 by the former DPP set out the factors that prosecutors in England and Wales will consider when deciding whether it is in the public interest to prosecute in cases of encouraging or assisting suicide.

Among the public interest factors tending against prosecution are that,

“the victim had reached a voluntary, clear, settled and informed decision to commit suicide”,

and that the suspect was “wholly motivated by compassion”. This has been interpreted by some as meaning that the CPS will not prosecute those who help terminally ill relatives to die. One of the public interest factors tending in favour of prosecution is that,

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“the suspect was acting in his or her capacity as a medical doctor, nurse, other healthcare professional”.

This has been alleged to cause difficulties for healthcare professionals because it is not clear what constitutes assistance.

Particularly in view of the litigation currently before the courts, it is not appropriate for me to comment on the merits or otherwise of prosecution policy. What I can say, unequivocally, is that the DPP’s policy has not changed the law. Only Parliament can do that. Nor does the policy mean that cases of encouraging or assisting a suicide will not be prosecuted in England and Wales. Assisted suicide remains a criminal offence. As with all criminal offences, allegations of encouraging or assisting suicide will be reviewed individually on the basis of their particular facts and circumstances and against the criteria of the offence-specific policy and of the general Code for Crown Prosecutors, with its two-part test of sufficient evidence and public interest.

The legal, administrative, practical and resource implications of any change to the law in this highly controversial and emotional area are considerable. As noble Lords have indicated, in the very limited time available this afternoon we cannot do justice to them. I have no doubt that the debate will continue in one form or another in Parliament and in other forums. In closing, I once again thank all noble Lords for their contributions, and I am reminded of Kipling:

“If you can fill the unforgiving minute With sixty seconds’ worth of distance run”.

I also congratulate noble Lords on achieving that aim.

2.43 pm

Sitting suspended.

Copyright

Question for Short Debate

Asked by Baroness Buscombe

3 pm

To ask Her Majesty’s Government what plans they have to modernise copyright exceptions; and what assessment they have made of the benefits of those plans and their impact on the economy and growth.

Baroness Buscombe (Con): My Lords, I am pleased that we have convened this short debate regarding copyright exceptions. This is an important opportunity to focus upon a few key issues that remain of real concern to the creative industries, notwithstanding many meetings between the IPO, Ministers and stakeholders—I understand in the region of 250 all together—together with impact assessments and the sharing of early drafts of the statutory instruments.

The Government’s aim must be right—to increase the value of copyright while supporting our creators and our freedom of speech. This package of reforms is intended to enable non-commercial, pioneering research, private study and teaching in schools and define the parameters within which we, as consumers, can use

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what we have paid for. It is not directly concerned with business-to-business licensing; it is, however, about making it easier for businesses to provide new technologies without being held liable for how consumers might use their products. While these reforms do not expressly concern business-to-business licensing, the whole business community is potentially affected.

My focus is on testing whether the legislation will do what is intended, as opposed to allowing unintended consequences to flow from imprecise drafting or a failure to future-proof innovation that could harm rights holders. That is quite a challenge in itself. While there has been extensive debate around exceptions, there remain areas where rights holders continue to question whether applying an exception is the most expedient way forward.

I begin with concerns regarding text and data mining. Given the speed of technological advancement and innovation, some have suggested that the exception route is rendered unsuited to protect rights holders and suggest that, instead, digital market-based solutions to some of the emerging issues around text and data mining would be better addressed through improvements to licensing and technological standards. The Government recognise that copyright needs to meet current and future technological challenges. Is this achievable with the use of exceptions? For example, while an exception may remove a publisher’s exclusive right to prevent copying for the purposes of text and data mining, a researcher’s ability to engage in the activity across different publisher platforms is dependent upon there being an alignment of technological and contractual standards and practices.

Another area of concern is provisions for contract override. I would welcome reassurance from my noble friend the Minister on this point: while the override on one level makes absolute sense, I can see a real conflict where a contract runs the risk of including two contradictory statements of what is and is not acceptable. For example, while the purpose of the contract override is to ensure that contracts would be rendered unenforceable if they restricted or prevented a relevant exception, it is also the Government’s stated policy that publishers should be able to maintain the ability to impose conditions of access prior to the mining of works. In practice, surely this means that the publisher can restrict the scope of an exception, in which case, with the addition of a contract override, the whole contract becomes unenforceable. Clarity and reassurance on this point would be extremely helpful. Perhaps my noble friend the Minister could explain why the proposed contract override provisions have not hitherto been subject to their own separate consultation, discussion or economic impact assessment.

A further complication here relates to European law. I refer in particular to the enforceability of technical protection measures as set out in Article 6 of the copyright directive and Section 296ZA of the Copyright Act. Copyright holders are permitted to restrict or prevent certain acts through the use of technical protection measures if certain criteria are met, in which case how does this work with contract override?

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Some definitions require clarity. For example, can my noble friend explain what is the difference between “for the purposes of instruction”, “non-commercial use” and “non-commercial research”? In addition, the term “lawful access” could be interpreted according to how the user might wish to access the content. What is genuinely “non-commercial”? In other words, the exception must not be used as an excuse to avoid obtaining a licence. Will those in academia interpret this in the same way as rights holders who need to earn their living?

Private exceptions further highlight the difficulty of definitions. Private exceptions should be narrowly defined so that third-party aggregators cannot choose to commercially exploit creative content and also to ensure that the ability to license value-added services is not compromised.

From a legal standpoint, I can see that there is a world of difference between stating that a private exception is to be used only in parodying a work, rather than having an exception for any work that is used in the process of a parody. It may seem a subtle distinction but, if it is not made clear, a commercial production company could, for example, use copyright footage for free, purely with the aim of reducing production overheads of TV programmes and with no recompense for the original creator. In essence, parody must be carefully defined so that it cannot be used as an excuse to avoid licensing.

The meaning of the word “pastiche” also needs to be clearly defined. Current definitions, such as that of the OED, which refers to a,

“medley of various ingredients; a hotchpotch, farrago, jumble”,

leave the door wide open to interpretation depending upon one’s perspective and desired use of that intellectual property.

The moral rights of a creator need to be protected. Many will know of the recent case of the Beastie Boys, which is pertinent as advertisers of a toy are using one of their songs, despite the band having a blanket ban on the use of their music in advertisements.

It is critical that we all know what is meant by these terms. I appreciate that it is the task of parliamentary counsel to tackle these very nuanced points, and I urge them, with very great respect, to take on board just how important it is to get this right. Leaving it to the courts to define the scope is somewhat defeatist. I really want to assist my noble friend the Minister in providing certainty and clarity in the first place. In essence, it is the drafting of the proposed exceptions that has to be tight and right.

There are other concerns affecting different parts of the creative industries. For example, will the Government reconsider the education exception, even at this late stage, so that it does not negatively impact the business models of publishers of sheet music, who were previously protected by the requirement that the exception should not cover reprographic copying?

Copyright awareness is key. Consumer and rights holder confusion has to be minimised to ensure that this legislation works in practice. Education is of paramount importance, and I note that the Government are focusing on this now through the IP awareness

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campaign, launched on 23 October, with multiple activities in the pipeline over the next six months to promote awareness and the importance of respecting copyright. I hope and assume that these activities will not only explain the importance of copyright protections but focus on how they are applied. Therefore, can the Minister expand on plans to develop awareness, including from an international perspective? Consumers, academics and commercial enterprises, be the latter a sole trader or a large established user of content for commercial gain, must know what they can and, more importantly, cannot do with works that they have already paid for.

In addition, IPO enforcement activity, including important reform of the Intellectual Property Enterprise Court to bring about more expedient and cost-efficient access to justice, is a critical component of IPO responsibility. Clearly, the Government have a strong focus on this, although minimising the potential for distortive and harmful practices by third parties is the aim here; litigation as a result of these regulations should remain a very last resort. That brings me to my final point.

It would be very helpful if my noble friend could set out an approximate timetable for the next steps through to the introduction of these regulations next year. There is also the question of bundling the statutory instruments. I understand that that lies within the competence of parliamentary counsel, who have the unenviable task of finalising the drafting. All those potentially affected by this legislation, including the academic community, will need to prepare for its introduction.

In conclusion, the Government agreed with Hargreaves that the copyright system had not kept pace with the digital revolution and, in particular, that the current framework means that a great many intuitively acceptable activities are illegal or uncertain because they involve an element of copying. The process of copying is at the heart of many technologies being used by consumers, teachers, academics and researchers in pursuit of entirely legitimate aims. These exceptions must therefore ensure that, in seeking to legitimise private use, imprecise drafting does not inadvertently or vicariously enable third parties—or indeed the consumers themselves—to commercially exploit and undermine the copyright system. I go back to my first point: this package of reforms is about creating value from copyright works. I very much hope that the Minister will be able to achieve this laudable aim.

3.10 pm

Baroness Warwick of Undercliffe (Lab): My Lords, when we consider our copyright regime, it is important that we do not do so in isolation. We should also consider the reasons why we have a system of copyright in the first place. If a system no longer serves those purposes, it ought to be reformed. So what are the purposes of copyright? I believe there is a general consensus that its aim should be to create a fair balance between those who create material and those who use it in order to allow this material to be used and to incentivise the creation of new material, to the benefit of society as a whole. A system with too little protection can result in a lack of incentives to create

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and invest in new material. However, there can also be too much protection—or perhaps, more accurately, inappropriate protection—that places barriers in the way of those who want to make reasonable use of copyrighted material and the information it contains.

Where these protections place restrictions on the use of material for the purposes of education and research, upon which the creation of valuable new material in the future relies, we need to be doubly sure that these restrictions are proportionate and fair. Of course, nobody here today needs persuading of the vital role played by education and research in economic growth, although those wanting a refresh could read the transcript of today’s debate that just finished half an hour ago in the main Chamber. Having said that, I will focus my comments on examples where the scope of current copyright exceptions is placing restrictions on education and research, and where I believe that modernisation will both stimulate the creation of valuable future material and benefit the economy.

The copyright exceptions that are currently on the statute books were largely written in the 1980s. Since then, there has been a revolution in the way in which we work, learn, study, research and communicate. In particular, the exceptions relating to education are out of step with how students learn in today’s universities, colleges and schools. For example, there is a helpful-looking exception that means copying works for the purposes of instruction does not infringe copyright. Unfortunately, it also specifies that this cannot be done through any reprographic process—that is, by photocopier or any digital reproduction such as a PowerPoint presentation or an electronic whiteboard. It is a law written for the age of blackboards, still operating in the age of the iPad. It was never the aim or purpose of this part of copyright legislation to prevent the use of modern technology in our schools and universities, but that has been the result.

The Government’s intention to reform this exception is very welcome. They intend to do this by bringing forward a general “fair dealing” exception. This will allow the law to catch up with current practice. Because it is technology-neutral, it also means that the law will be flexible enough to deal with tomorrow’s teaching methods. However, the Government are also maintaining a far more limited exception for reprographic copying for cases that are beyond “fair dealing” of the work. This is fair, but I would be grateful if the Minister could make clear that the exception for instruction that the Government intend to bring forward will not exclude all copying by reprographic means.

Another area where the current copyright laws are out of date as a result of technological advance is that of so-called “text and data mining”. This is a process whereby large volumes of material are automatically read in order that overarching trends can be identified in a highly efficient manner. Assuming the researcher has the necessary licences to access this material, the process is in theory entirely legal. After all, it is not facts about the world that are protected by copyright, but the way in which they are expressed. However, because this method of research involves the automatic creation of a transitory copy of works, specific licences are currently required. This is not the case in other

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countries such as the USA, where text and data mining is considered fair use of a copyrighted work; so in this country, the current lack of an exception for text and data mining is holding back research. Given the economic importance of the UK’s research sector, it is also holding back economic growth. I should be grateful if the Minister would confirm when he expects an exception for these purposes to be in place.

After my brief contribution, I conclude by saying that we should never allow the protection and enforcement of intellectual property rights to be our only consideration in these debates. If our copyright regime is to benefit our society and our economy, we need to make sure that it does not place unnecessary barriers in the way of education and research. The Government’s plans to reform copyright exceptions are welcome steps towards removing these unnecessary barriers.

3.15 pm

Lord Clement-Jones (LD): My Lords, I welcome this opportunity for the Committee to consider the proposed copyright exceptions before they are introduced, and thank my noble friend Lady Buscombe for securing it. My noble friend the Minister is only too well aware that the creative industries sector is very exercised by the potential negative impact that some aspects of these draft exceptions could have.

As I said last July during the passage of the IP Bill, copyright exceptions should be adopted only in response to both well defined public policy objectives and market failure. In this regard, what advice have the Government received that their proposed exceptions meet the requirements of the Berne convention and the three-step test?

The proposals take no account of developments in licensing both during and after the Hargreaves process. Digital market-based solutions are being found through a combination of improvements to licensing and technology, not least through the copyright hub. My noble friend Lady Buscombe asked about impact assessments. Does the Minister still stand by the statement on page 3 of Modernising Copyright, the Government’s response to the consultation on copyright exceptions published this time last year, that,

“these measures could contribute over £500m to the UK economy over 10 years on a conservative view, with likely additional benefits of around £290m each year”.?

In its recent report on supporting the creative economy, the Culture, Media and Sport Committee was highly sceptical of these impact assessments. It said,

“We are not persuaded that the introduction of new copyright exceptions will bring the benefits claimed and believe that generally the existing law works well”.

Dr George Baker of University College London recently carried out an analysis for the MPA and concluded that,

“the evidence relied upon is being misinterpreted by the Government”.

Have new economic impact assessments been conducted, or the current ones revised, to take account of the many developments in the licensing markets?

The draft data analysis exception is a particular example of this. Most recently, the International Association of Scientific, Technical and Medical Publishers produced a commitment by publishers

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to enable text and data mining for non-commercial scientific research. Likewise, as regards consumers, a private copying exception should not apply where a commercially available alternative exists. Nowhere is that clearer than in the audiovisual sector. Products such as iTunes and UltraViolet allow legal and secure access to that content through the cloud among six family members for up to 12 personal devices, thereby enabling format-shifting. At the same time, a multitude of new digital audiovisual services has occurred under the existing legal framework.

It could not be clearer that there is no market failure that needs addressing here. The same is true for the quotation exception, where publishers are already addressing the market via large-scale and low-cost licensing technologies. Far from incentivising the market to continue innovating in the interests of the consumer, it may well be that the exceptions proposed will undermine the thriving market for new and innovative digital content services.

As regards business-to-business or institutions, each of the exceptions include a provision that would render unenforceable contracts which seek to restrict or prevent the relevant exception. Another new and untested concept in UK copyright law, this has not received nearly enough examination and consultation. From conversations I have had with industry representatives, it is clear that at no point has any substantial discussion been held. Even though the attendees of various forums were led to believe that separate sessions would be held on this issue, this did not transpire. Given their importance to all the proposed SIs, why have the proposed contract override provisions not been subject to a separate consultation and discussion? Override of contract is not required by the copyright directive. Indeed, Article 9 states that the directive should be without prejudice to the law of contract. It is unclear how the proposed provisions sit alongside these or why it is felt to be necessary. There is also the question, which I hope the Minister will answer, of why wording already in place within Section 50 of the CDPA cannot be used to address the apparent concern.

The IPO has failed to set out a compelling case for why the provisions are required and exactly what problems they solve. Rather than encourage innovation, these provisions will encourage challenge and breach of existing licensing terms put in place for users of copyright works. The Publishers Association makes the important point that British creators will now be put at a significant competitive disadvantage as investors turn away from the UK and invest in content made in other jurisdictions. Has the Minister undertaken any analysis of the impact of this on the UK’s competitive position? The proposed exceptions potentially run into conflict with the ability of rights holders to ensure the enforceability of technical protection measures. It is unclear from the current drafting how this will interact with the proposed provisions on contract override. The most probable outcome is consumer, business and rights holder confusion.

These are all substantial objections. In the ordinary way these fundamental amendments to sections of the CDPA would be dealt with by discussion in a normal parliamentary process, in both Houses, with amendments

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being debated. Why is such a fundamental change to the application of UK contract and copyright law being made by secondary legislation?

Finally, on the broad objections to the exceptions, it seems that some exceptions may not even comply with EU law. The private copying exception, as currently proposed, would not provide any compensation to rights holders for harm that private copying might inflict on them. How confident are the Government that this will survive legal challenge? Why have the Government chosen to ignore the ruling in the Padawan case, which makes it clear that member states must, when introducing a private copying exception, include a mechanism for calculating compensation, even if the subsequent calculation is that that compensation is zero? How does the private copying exception square with the fact that the software directive excludes private copying from the scope of permissible exceptions?

I have dealt with the very broad objections. There are a host of drafting objections to the individual exceptions that I am unable to cover today but many of them have been dealt with by my noble friend Lady Buscombe. ITV rightly points out that this whole exercise is fraught with the risk of unintended consequences. Have the Government really thought things through properly?

3.22 pm

Lord Berkeley of Knighton (CB): My Lords, I am very grateful to the noble Baroness, Lady Buscombe, for initiating this important and timely debate. Personally, and speaking as a composer, I am always touched and flattered that people want to listen to my music and even to copy it. Sadly, though, I and my colleagues and the people who play, publish and record our music cannot live on flattery. If we were shopkeepers, it would be like allowing the public to come into our shop and help themselves to items without paying. Whenever we point this out, we are told that new methods will be adopted to recompense us. Historically, change has inevitably led to a cut in income. The creative industries are projected to be worth around £36 billion to the UK economy. They have withstood our recent economic problems and are well placed to contribute to UK growth. I regret that this contribution could be threatened by some of the less well thought out proposals to modernise copyright exceptions that we are considering today.

I would like to focus my remarks on two of the proposed exceptions and demonstrate how they could have a detrimental impact on our music industry. The UK music industry is one of only three net exporters of music content in the world. We are world leaders in the number of licensed digital services, providing fans and consumers with many ways to enjoy music. Intellectual property is the framework that underpins success for the music industry and copyright is the currency of that framework. Copyright provides businesses with an incentive to invest in music and allows musicians and composers to derive an income from their creativity.

However, it is a fact that some 78% of the sector earn less than £20,000 a year. It is very hard for young musicians and composers to get a foothold in the industry. Any loss of income from losing the right to

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be compensated for the copying of one’s work will be incrementally more damaging in today’s environment for musicians and composers and makes such careers less feasible. Research conducted by music industry body UK Music concluded that consumers ascribe between 32% and 53% of the value of an MP3 player to its ability to copy music. Yet music rights holders never see any of this value, as the exception and compensations are not in place here.

The Government justify their intention not to provide compensation under this exception on two grounds. First, they argue that rights holders are pricing in the ability to private copy at the point of sale. That argument is, however, undermined by the Intellectual Property Office’s own research produced to support that policy. In the case of music, the research said:

“We did not find any evidence in support of a widely-held view that stores are including in their price the permission to copy.”

Similarly, the Commons Culture, Media and Sport Committee recently concluded that it does not share the Government’s acceptance that a facility for private copying is factored into the purchase either of music or devices that store, play or copy it.

The second argument the Government put forward is that there will be no harm as the exception is narrow. Will the Government tell us just how narrow this exception is compared with other countries with an exception? Prompted by a question from Kerry McCarthy MP in the other place in October 2013, the Government provided evidence published in 2007 on different exceptions across the world. From this information it appears that only Poland and the Czech Republic have wider exceptions than the Government’s draft. Other countries have exceptions that are just as narrow as the one proposed in the UK, yet they are all accompanied by compensatory schemes. Do the Government have any up-to-date information that they can share with the Committee? How will we be compensated?

There does need to be a change in the law to reflect what consumers are doing with music that they have legitimately purchased for their own personal use. However, to progress with this policy, the Government have to take two steps. First, there needs to be a specific provision for a compensatory scheme. Secondly, the exception should be redrafted in such a way that it is narrower, applying only to the copying of a physical copy and not interfering with the licensing of the potentially valuable cloud services market. To proceed with the exception as currently understood would be a grave mistake. It would undermine the system across Europe and exclude us from being involved in the reform of the levy system there.

The second and final exception I want to discuss concerns the important subject of education. For publishers of sheet music, “fair dealing” is a vague term unlikely to be understood by consumers, the vast majority of whom are self-employed music teachers and students. This term will cause massive uncertainty. Music publishers have neither the financial resources nor the inclination to take individual music teachers or students to court to have this clarified. The Government should reconsider this exception in light of the detrimental impact it could have on this culturally significant

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business. What safeguards do the Government propose to put in place to protect providers of specialist material who are dependent on teachers purchasing it?

In conclusion, we have a music industry to be proud of. It generates significant revenues, provides jobs, invests in talent and exports globally. When industries are as successful as this one is, it is easy to take them for granted. However, I firmly believe that this industry deserves to be respected and congratulated, just like all the others that succeed. The negative impacts for the music industry that I have outlined need to be addressed before the exceptions are introduced into law.

3.30 pm

Lord Stoneham of Droxford (LD): My Lords, I congratulate my noble friend Lady Buscombe on initiating this debate and welcome the Government’s ongoing initiative to modernise and try to simplify our copyright provisions. We clearly need to update the law in line with technological developments. There is some evidence that we have been falling behind our competitors and have not made much progress, as we should have done, since the European copyright directive was introduced more than 10 years ago. It is yet another area where the European Union dimension illustrates that we can achieve little on our own as one country. We have to develop our practice in line with other nations to protect our businesses and to counter the power of international companies which seek to ignore and override national legislation and, indeed, taxation policies.

It is a big responsibility to protect our own creative sector. There is huge potential to benefit from our very competitive creative arts sector. The European digital music market alone has grown from €200 million in 2004 to €1.2 billion in 2012. The existing copyright framework and efforts within the European Union to improve cross-border access to licensed content on a pan-European basis have enabled this to be possible and for UK music creators and companies to be a fundamental part of this successful development. However, on 10 October 2013, Maria Martin-Prat, head of the copyright unit in the European Commission internal market directorate-general, warned that if we get the copyright framework wrong, we risk undermining the economy.

There are a number of reasons for reform. First, we have to ensure respect for copyright, which modern copyright legislation must do, reflecting the application of modern technology and consumer expectation. It clearly makes sense, as the noble Baroness, Lady Warwick, said, to allow a teacher to use a quotation on an interactive whiteboard or to allow a museum to copy a photograph or film digitally to preserve it.

Secondly, we need to give consumers choice. We should value and encourage the consumer who obtains content legally and should break down barriers to competition, which discourage market delivery and choice. A greater freedom of choice for consumers to use appropriate technology must be encouraged. While clear and fair costs should be appropriate, we should discourage excessive charging or levies.

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Thirdly, we need to keep the UK competitive. Improving copyright law must fundamentally improve the health of UK technology and creative arts businesses. Allowing copying for personal use will make it easier for businesses to provide new technology without being held liable for how consumers use their products. Allowing limited use of copyright material for parody will widen the resources for programmers and broadcasters, further enriching our cultural output. I sense that the Government have the right formula on parody as they seem to have the support of our principal broadcasters, which want greater freedom to use material for parody, while they have an interest in protecting their own content and archives.

Fourthly, we should be pioneering research. New technologies can assist significant advances in research. The text and data-mining exception will allow the United Kingdom’s world-leading scientific and academic communities to deliver new advances in medical technology and research.

I will make a few remarks on the detail of the proposed draft exceptions. I expect that there is little dispute over the disability exception or, indeed, over the research libraries and archives exception, which needs simplification to preserve content and improve access. The provision for education seeks to modernise legislation, but the problem for the future is that education is not simply a public good. It has strong commercial potential as well. We have a highly competitive advantage in higher education. Licensing is required to protect teaching content, particularly as it becomes more digitally sourced and with the growth of distance learning.

On private copying, most people accept the need for an individual to be allowed to copy copyright work for their own further use, provided it is not for commercial use. However, as we have heard, the music industry in particular is concerned about revenues that it has already lost in the digital economy and about the development of cloud services. This exception could provide a further threat to copyright music. It has to be made absolutely clear that making a copy for another person or entity would infringe copyright. The scope of an exception should be only for private and personal storage without additional functionality. Within this clarification, the music industry’s ability to license innovative value-added services, such as “scan and match” services in the cloud, would be seriously circumscribed. I hope that the Minister will confirm that he will look further at the music industry’s concerns about the need for further clarification and the whole impact of cloud services.

I return to my home ground of news content and the exception on quotations. Media providers are concerned about Google seeking to widen the exception on quotations, which could increase the likelihood of copyright infringement. It would be preferable for the quotation exception to be cast as a list of specific permitted purpose-based activities. Explicit exception for criticism and reviews should be retained as an exception in its own right. However, there is great concern that the quotation exception could include the principle of temporary copies made for the purpose of browsing by an unlicensed end-use, something that

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would be further complicated by cloud-based services. I hope that the Minister will be able to reassure us on these points in his summing up.

In conclusion, change, modernisation and simplification are inevitable. Copyright has to adapt to technology of the present and the future. We have to adjust to allow businesses to develop, but we must protect the competitive advantage of our creative businesses while seeking to simplify regulation, if we can. The Government are treading a difficult, even-handed path across a minefield. Provided that they ensure the fine print of the exceptions and reassure our key creative art providers, particularly in music and news content, about their worries their reforms are to be welcomed.

3.36 pm

Baroness O'Neill of Bengarve (CB): My Lords, with the leave of the Committee, I shall speak briefly in the gap. I had my name down for the debate but, apparently, it did not arrive. I wish to make just one point. I declare an interest as someone who, 40 years ago, had a royalty income, but who now has 10 times as much in print and only a vestigial royalty income. Why has that happened? There are many reasons for that but, above all, it illustrates the point that copyright holders and creators are no longer the same people. We should not fantasise that we are protecting creators when we protect copyright holders. Publishers have been wiser and have taken wider and wider rights over other people’s work. That means that protecting copyright owners will not incentivise new creation because we are pointing in the wrong direction.

In the area of academic work, where I work, publications in STEM subjects are grant funded and they may be viewed as fully funded from the public purse. Beyond the STEM subjects, this is rare. Research in other areas is not grant funded. I hope that the Minister can tell us a little about what incentive will remain for creators who survive and are faced with the new exceptions.

3.37 pm

Lord Stevenson of Balmacara (Lab): My Lords, I thank the noble Baroness, Lady Buscombe, for securing this debate and congratulate her on her very lucid introduction to the issues. I do not think this debate was quite what the Minister meant when he offered us a chance to have what I think he called in essence a Second Reading debate around the batch of exceptions that are being brought forward. None the less, it is welcome and I thank all noble Lords for their contributions.

As happens when you talk about intellectual property, we have also had a veritable raft of submissions from those outside. As I am sure the Minister is aware, this area is extremely well watched out there. Those of us who dare to put our heads above the parapet to speak about it tend to get a deluge of papers and material which make for interesting, but rather long, reading. However, that shows that this is a really important issue.

What problem are the Government trying to solve? As the noble Baroness, Lady O’Neill, has just said, the issue here is trying to find the right balance—that is,

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the link— between a premium for innovation and an assurance that there will be access to material, or, as my noble friend Lady Warwick said, between allowing material to be used while not losing the incentive to create. This is compounded by what many people call a rather too prescriptive European and international legislative framework, where the only margin of appreciation to reflect local interests or local markets is to take action through exceptions. This is why Professor Hargreaves called for a broader and deeper review of this whole area in his report. Sadly, that has not yet happened, and I think that we will have to return to it.

Underlying some of the concern out there in the real world is the worry about exactly what timetable and process we have to go through. I would be grateful if the Minister will say when the Government intend to lay the SIs, whether the exceptions will be bundled when they are laid before Parliament and, if not, whether they will be laid all at once or in stages. Do the Government still expect all of them to come into force on one date? Is that date April 2014? Will further impact assessments—several noble Lords have mentioned this—be prepared and be ready for the House to consider when the SIs are laid?

I take from this debate that, while some of the exceptions that have been proposed—some noble Lords have mentioned them—are good and supported and will not cause difficulty when they are implemented, some are so hampered by the quality of the current drafting or because of their inability to deal with some of the technological issues that have been raised that more work will still need to be done to get them right. In particular, I think that the text and data-mining exception, mentioned by several noble Lords and particularly by the noble Baroness, Lady Buscombe, needs to be re-examined carefully. The parody and pastiche exception seems to many people to be underdeveloped, and it needs further work. I do not think that people are against the idea of there being such an exception, particularly given the specifics of British humour, but it is important that, if it is there, it is defined properly.

We had several contributions on the education exception. It is clear that there is a need for change here in order that the exception, or indeed the practice, in the world of education is made internet-ready. Of course, if we are still in the age of blackboards then we need to move on that and make sure that we deal with all the points, including those about reprographics.

On private copying and remuneration, the noble Lord, Lord Berkeley of Knighton, made a very powerful plea for further consideration of whether the remuneration cycle has been lost in the process of bringing forward the exception. The noble Lord, Lord Stoneham, mentioned quotations and the concerns in that regard in regional and other presses. Again, I think that that should be looked at.

Other than that, we think that these things are broadly in the right place, except that there are some cross-cutting issues, including the very important point about the contract override. I think that what the Government are intending to do there is clear but the current drafting does not provide the necessary assurance.

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What will kill this process is a combination of failure to listen carefully to what people who work in the industry are saying and imprecise drafting. The noble Baroness, Lady Buscombe, said that it should be “tight and right”, and I agree with her. There will be an awful lot of problems if we do not get this right and, of course, the downside of even getting it right may well be that there are unintended consequences that need to be brought through.

Another thought to bear in mind is that, in focusing hard on the wording that we currently have and thinking through where it might end up, we also have to think hard about where the public are on this issue. There is an element of a need for common sense on this point. The submission received from Which? a few days ago was very good on this. It tried to outline where the public are in their perception of what copyright does and does not permit in relation to private copying. The problem which it did not specifically raise, but which I think still exists, is that, if the Government are unable to provide the right framework for the legislation, there is a real danger that people will simply ignore it, and nobody will win on that basis.

It seems to me that what the Minister has to do now is to offer a further round of discussions on the current drafts. That should be possible and there is time for such discussions. That would give us a chance to make sure that the wording that is causing such concern at the moment is looked at once more. Given that the Secretary of State apparently held a meeting on these issues as recently as this week, it seems that the door is still open, and I hope that the Minister will confirm that that is the case.

3.43 pm

The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Viscount Younger of Leckie) (Con): My Lords, I am most grateful to my noble friend Lady Buscombe for initiating this debate. Of course, I have had the pleasure of debating copyright issues with her on a number of occasions, most recently on the Enterprise and Regulatory Reform Bill. Although we have not always been able to agree on some points, I have always found her interventions to be thoughtful and considered, and today was no different.

The Government have done much to ensure that interested parties have their say. Copyright is important for the creative industries and for the country—a point made by many noble Lords, particularly my noble friend Lord Stoneham. Copyright exceptions are no different, so the Government are taking proper account of rights holders’ concerns.

The Hargreaves process has been about listening, and listening carefully. Professor Hargreaves himself sought and received a wide range of views that informed his proposals. The Government then consulted fully on their own proposals, and these built on the work of Professor Hargreaves.

The Government considered the responses carefully and made changes before setting out their policy. The digital copyright exchange concept, for example, was further refined. The policy on exceptions was set out in December 2012. The Government then consulted

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interested parties on the draft regulations through its technical review and have continued to listen. However, the process has to conclude at some point. The Government cannot consult endlessly, but I continue to listen today.

My noble friend Lady Buscombe commented on the number of meetings that the Government have held with stakeholders over the past 18 months. Over the course of the year, I have had detailed discussions with creative industry representative bodies, creators, broadcasters, research institutions and others on this important topic. I have also been keen for Parliament to debate these issues, and I am glad that we have heard a number of viewpoints today.

A number of questions were put to me during the debate and I will, as ever, try to respond to all the issues raised. To begin, I would like to make a few general points. The Government know that in this area views are divided and that not everyone will be pleased all the time. The focus must continue to be on what we believe is good for industry, consumers and growth. The copyright system supports growth by offering incentives to creators and investors. This serves the public interest by stimulating the creation of new copyright works. At the same time, the system needs to serve the reasonable needs of the whole range of businesses and individuals affected by it. Everyone has an interest here, and the Government have done their best to hear everyone’s views.

The creative industries are a vital part of the UK economy and its culture. We have heard today about some of their concerns. The exceptions we will ask Parliament to approve are designed not to undermine business-to-business licensing. They will not harm the ability of content-owners to provide additional services to consumers in new and exciting ways. For example, the licensing of services such as UltraViolet and Tune Match will be unaffected.

What we have heard suggests that the copyright system has simply not kept pace with the digital revolution. My noble friend Lady Buscombe mentioned this. Copying is at the heart of many new technologies being used by consumers, teachers, academics, curators and researchers. As a result, a great many innocent, reasonable activities are illegal or questionably legal, simply because they involve some element of copying. The law needs to change. For example, a teacher should be able to put a quote on an interactive whiteboard in order to illustrate a point to the class; a museum should be able to make a copy of a film in order to preserve it for posterity; and somebody who has bought a CD should be able to copy it to their MP3 player in order to listen to their music in the gym. Changes are needed if users and creative industries alike are to make the most of technology. The Government have proposed relatively small but important changes that will apply to all technologies, including technology yet to be invented. We do not want out-of-date laws to restrict people’s use of new technologies and services.

We have also listened to concerns about complex copyright law. The proposed changes will remove up to 45 pages of unnecessary rules and regulations from the statute book while maintaining the essential protections that creative industries need and want. These changes

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should make copyright works more valuable to all by giving users clarity about their rights and building respect for copyright in the process. Creators stand to gain from these changes, particularly where they are innovating. Users will have new de minimis rights, but if they want to do more than those rights allow, they will need a licence.

We believe these are modest changes that together would contribute more than £500 million to the UK economy over 10 years. Additional benefits of around £290 million are predicted, along with positive effects on innovation, competition, education, research and, of course, respect for copyright law.

Let me now move to address the main points made and questions raised during the debate. I shall start by answering a question asked by my noble friend Lady Buscombe and the noble Lord, Lord Stevenson, on the timetable and the next steps. Following the technical review, the next iteration of the regulations is with parliamentary counsel, which is where we are now. They will then be subject to approval by me and the Secretary of State Vince Cable. The Government’s aim is to lay regulations in time for the common commencement date in April 2014. This means that it is likely that regulations will be laid before Parliament in February 2014. The noble Baroness, Lady Warwick, asked when the exception for text and data mining will be in place. On that question of timing, as with the rest of the package, the Government intend to put this exception in place in 2014.

I turn now to the issue of contract override.

Lord Stevenson of Balmacara: Can the Minister confirm whether he has yet decided how many individual exceptions will be introduced and if they are to be bundled in more than one group or separately?

Viscount Younger of Leckie: The noble Lord makes a good point about bundling. We are not in a position yet to be able to give an indication on that. I have indicated on several occasions how I would like to have as many of the SIs as possible unbundled, to allow further debate; but I am not in a position to give a full answer.

On the question of contract override, the Government want to see these benefits delivered in full. This is why they believe that, where a copyright exception has been established, restrictions should not be reimposed by contracts. My noble friend Lady Buscombe raised this subject, asking why the contract override provisions had not been subject to their own separate consultation and discussion. The contract override provisions were initially proposed in the Hargreaves review, and were subsequently consulted on explicitly by the Government’s copyright consultation which ran, as I mentioned earlier, between December 2011 and March 2012. Following that process, the contract override provisions were also discussed at each of the open meetings held during the technical review period. Given the attention and consideration that has been given to these provisions—in multiple sessions and consultations—the Government believe that this element of policy has been properly and thoroughly discussed.

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My noble friend Lord Clement-Jones asked why the existing wording in Section 50 of the CDPA was not used. The existing wording in Section 50A, which must be read together with Section 296A, allows the making of backup copies of computer programmes. This provision declares void any contract terms that seek to prevent this activity. Our approach to this issue in the present context is slightly different. It does not void contract terms, but instead renders the terms unenforceable and only does so to the extent that they restrict a permitted act. Taking the approach from Section 50A of rendering the term void would be a disproportionate measure in many cases, and we believe is unnecessary here.

My noble friend Lord Clement-Jones also asked whether I was confident that the proposed contract override provisions were fully consistent with the Government’s obligations under the information society directive. The answer to that is in the affirmative; the directive is clear that the ability of member states to implement domestic provisions affecting contract law is unrestricted. My noble friend Lord Clement-Jones also asked in the same context why such a fundamental change to the application of UK contract law was being made by secondary legislation. This is not a new concept in British copyright law: contract override clauses exist already in relation to a number of exceptions and we believe that this is a sensible and proportionate approach that has no broader impact beyond allowing the use of these copyright exceptions by their intended audience.

I now turn to the important subject of impact assessments. The Government have worked hard to ensure that the proposed changes were based on evidence. The impact assessments were based on the best evidence available and were reviewed and validated by the independent Regulatory Policy Committee. My noble friend Lord Clement-Jones asked whether I stood by the proposed benefits of the exceptions, and the headline figure in Hargreaves included patents and the digital copyright exchange, which has been misunderstood in some criticisms.

On the numbers relating to exceptions, the Government have refined them to take into account further evidence, which is explained in the impact assessments. We stand by the estimates that are in the impact assessments, and these assessments have been validated, as I say, by an independent body.

I move on quickly to the important subject of private copying, which was raised by a number of noble Lords, including the noble Lord, Lord Berkeley. The noble Lord asked for clarification about the exception for private copying for personal use. This measure will give consumers greater freedom to enjoy creative content that they have bought, by allowing them to make copies for their own use. We believe it is a commonsense change which is widely supported by consumers and aims to build public confidence in the copyright system.

The noble Lord, Lord Berkeley, and my noble friend Lord Stoneham suggested that the private copying exception should not extend to cloud storage, and that that would be “a step too far”, I think was the expression used. We say that this is intended to be a technology-neutral measure and that it should be fit for the future.

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Consumers make little distinction between local and remote storage, and it makes little sense to do so in this legislation.

Briefly, in my final minutes, the important matter of text and data mining was raised, not least by my noble friend Lady Buscombe, who asked in this context about the meaning of the term “lawful access”. It is access that is legitimate based on a proper application of the UK’s legal framework law and, where applicable, relevant contract terms.

I fear that there are many other questions I have not had time to answer, and I pledge to write to noble Lords on their questions, and particularly on this important subject. To conclude, I reiterate that the UK Government—as noble Lords will already know—is committed to maintaining the incentives that copyright offers to all types of creator. These changes will achieve that, while also allowing consumers, researchers and many others to make reasonable use of the copyright works they have paid for.

3.57 pm

Sitting suspended.

Prisoners: Accommodation on Leaving Prison

Question for Short Debate

Asked by Baroness Rendell of Babergh

4 pm

To ask Her Majesty’s Government what assessment they have made of the impact on reoffending rates of providing stable accommodation for those leaving prison.

Baroness Rendell of Babergh (Lab): My Lords, I declare an interest as a vice-president of Shelter, the homelessness charity. On release from prison, finding a home may be the biggest problem facing ex-offenders. Fewer social rented homes are available to meet demand and, with deposits for mortgages out of reach of those on low incomes, private renting may be the only option.

In 2011, the prison population in England and Wales reached a record high of 88,000. Ex-offenders are more likely to be male, young and have children under 18 when they enter prison compared to 38% of the general population. They are also likely to be socially excluded, economically disadvantaged and much more likely than the general population to have a mental health problem. They are likely to have grown up in care or in a disadvantaged family. Around half were found to have a history of debt problems. Four in 10 offenders lack financial services such as bank accounts.

Before going to prison, 11% of ex-offenders owned a home, while just over one-third rented; 16% were homeless, either sleeping rough or in temporary accommodation; and others were living rent free with a friend, paying board in someone else’s home, or living with family and in shared ownership housing. Offenders are less likely than the general population to have a home before entering prison and it is often not

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clear where they will go when they leave. A 2008 study by the Ministry of Justice surveyed nearly 5,000 offenders and combined the results with reoffending records over a number of years. The study concluded that ex-offenders were more likely to reoffend when they had a problem with both employment and housing. Figures also show that offenders who are homeless upon entering prison have a much higher reconviction rate within one year of release, more than three-quarters being reconvicted. Ex-offenders themselves report that homelessness is a principal cause of reoffending, and the St Giles Trust in its through-the-gate advice service identified homelessness as often being a key factor in reoffending. There is evidence that prisoners who have accommodation arranged on release are four times more likely to have employment, education or training arranged once they leave prison than those who do not have accommodation in place.

What sort of housing advice do ex-offenders receive? It seems that housing needs assessments are not conducted in a consistent way because they are carried out by a diverse range of people, including prison officers, probation officers and voluntary sector staff. A survey found that just one in five initial assessments is carried out by housing specialists. A recent Homeless Link study revealed a big variation in support received by those in different parts of the country. A number of organisations provide housing advice within prisons. Shelter has developed its prison advice services with a peer mentor model, meaning that existing prisoners are given skills and responsibilities alongside professional housing advisers. Some housing and support providers, such as Stonham, provide their own supported accommodation for ex-offenders. Once offenders have left prison, they will also have access to a range of housing advice available to the general public, through Citizens Advice or the Shelter helpline. In the year to October 2012, Shelter services outside prison were contacted by at least 920 ex-offenders.

Evidence from Homeless Link suggests that housing advice is most effective when advisers work closely with probation staff, local authority contacts and other advisers. Evidence from the St Giles Trust shows that ex-offenders value being met at the prison gates by service staff to help sort out immediate accommodation issues. However, many barriers are faced by ex-offenders in finding or retaining an existing home on release from prison, such as shortage of housing with support needs, not meeting the criteria for local authority support through homeless legislation, difficulties in accessing the private rented sector, often due to affordability, and the prejudice of landlords against ex-offenders and benefit claimants.

Those leaving prison after serving a short sentence may be able to prevent eviction by continuing to communicate with their landlord or bank. Failure to do this is a major cause of ex-offenders losing their home while in prison. Advisers can make this contact to prevent the loss of a tenancy or to terminate a tenancy to prevent a build-up of rent arrears.

So what of the future? Ex-offenders in general are younger and poorer than the general population and much less likely to own a home. More than half are reliant on welfare to support their income. They can

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lose their secure social homes when in prison if they build up rent arrears or have been convicted of certain related offences. The Prevention of Social Housing Fraud Act 2012 could prevent social tenants in prison sub-letting their homes to avoid rent arrears. Secure social tenancies are of particular value to more vulnerable people in helping them to rebuild their lives. Some councils are already introducing two-year contracts for young people and suggesting that people with convictions could be excluded from social housing altogether.

Private renting is fast becoming the only realistic option for ex-offenders, especially in London and the south-east. Evidence collected by Shelter and Crisis shows that some ex-offenders value the chance to move away from their old networks as this can help them to avoid offending and substance misuse. Evidence from Homeless Link suggests that ex-offenders can struggle to maintain private rented tenancies due to landlords’ attitudes, while the cost of starting a tenancy can be well over £1,000.

Sweeping changes to welfare and a reduction in the number of rented homes will affect many people. It is vital that housing advice services for prisoners and those commissioning them respond to the challenges. Prison Service commissioners must make best use of the evidence on housing and reoffending when making the decisions, particularly bearing in mind how stable accommodation reduces reoffending. Housing for Women’s Re-Unite project has found that 38% of women prisoners expect to be homeless on release. Access to support for them is rarely available, but without it the 1,700 children separated from their mothers due to imprisonment will often remain in care.

Commissioners should consider what sort of housing advice is available in each prison and who is providing it. The outcomes and effectiveness of the initial housing needs assessment that each prisoner is given should be considered. Shelter services have discovered that including other prisoners to help deliver a service can encourage greater participation from new prisoners. This happens in Sweden, a country with a population that is a fraction of ours, where prisoners share in the running of prisons and help in finding post-prison accommodation as a matter of course. In the UK, those prisoners helping in the service benefit as well in that they develop new skills and build self-esteem. Evidence from Homeless Link suggests an integrated approach to advice—for instance, by addressing mental health problems along with housing difficulties.

4.08 pm

Baroness Linklater of Butterstone (LD): My Lords, I am most grateful to the noble Baroness, Lady Rendell, for tabling this short debate on an issue of real concern to those of us who take an interest in the effective management and resettlement of offenders. “A roof, a relationship and a job: the key goals in future planning” is the old jingle I used to hear in this context when I was a social worker and the release of prisoners was being discussed. All three are equally important and interdependent but are difficult and often illusive when you are at that difficult sharp end, either as the soon-to-be

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ex-prisoner or the service provider. Turning hopes and plans into reality on which so much depends can be an unnerving process at best and if not realised can result in a return journey to jail.

The question today focuses on accommodation as the key element in the triad of issues. Finding a job when you have nowhere to go is a crucial and sometimes desperate process. Where are you going to live? Without a job, how do you pay the rent? How do you get a job without an address? You often have to do this without a partner, or with one who does not want you.

An MoJ study in 2012 found that 15% of prisoners were homeless before custody. Of these, the majority stated that they would need help to find somewhere to live, but 79% of this group were reconvicted within a year of release compared with 47% of those with accommodation before custody. The key fact is that prisoners who have accommodation arranged for them on release are four times more likely to get employment, education or training than those who do not. The NOMS annual report last year showed that 12% of prisoners released from custody had no settled accommodation. That is likely to be an underestimate as the arrangements made for them have often turned out to be very fragile or temporary. The link between homelessness and further reoffending is clear but, with accommodation in place, the reduction in reoffending is also clear.

The trouble is that there is no statutory provision of resettlement support or housing advice in prisons. I have been in prisons where such support or advice is locally organised or some voluntary organisation has a presence and can give advice, but it falls to the individual prisons and the right personnel, which might include prison resettlement workers and sometimes prisoners trained to give housing advice. However, it seems to be a case of pot luck. NOMS does not keep a central body of information. Services may be locally and/or regionally commissioned, but affordable suitable housing, including hostels, which are often oversubscribed, is hard to come by, even with professional help. Although local councils have a duty to provide information about local housing options, what is on offer is often no more than bed and breakfast. Social housing requires proof of a local connection, which is often very difficult to demonstrate, and proof of need over non-ex-offenders is equally hard. At each stage of the journey where things are difficult and unstable, so the risk of reoffending is high.

The other crucial issue for an ex-prisoner is a job, and that is extremely difficult without an address. Citizens Advice found that one-quarter of employers would not consider employing a homeless person. Accessing benefits or registering with a GP is equally hard. There are localised beacons of hope, of course, and these were referred to by the noble Baroness, Lady Rendell. The St Giles Trust is one such organisation. It runs a through-the-gate programme of intensive help, with trained caseworkers who are often ex-prisoners. They provide expert help with impressive outcomes, cutting the reoffending rate by 40%. The London Probation Trust offers a similar service. The roof and job aspects of the jingle, if not necessarily the relationship

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part, are being realised by these organisations, and we know that the Government plan to provide more through-the-gate help in the future.

However, I remind the Minister that, with its planned and imminent decimation, the role of the probation service will be reduced to three specific areas, which do not include the complex task of the rehabilitation of the homeless and jobless ex-offenders whom we are discussing. This job involves knowledge, expertise and protocols in working with local authorities. Can he tell the Committee how the new community rehabilitation companies, which have not yet given any information on how they will work with local authorities over their ongoing rehabilitation and housing aims, can take over this role? How can he ensure that the challenging accommodation and rehabilitation needs of this particular vulnerable group of ex-prisoners will be properly and effectively met in the future? I look forward to his reply.

4.13 pm

Baroness Massey of Darwen (Lab): My Lords, I thank my noble friend Lady Rendell of Babergh for introducing this debate and for her commitment to issues of housing, homelessness and offending. I shall approach these important issues partly through the experience that I gained of drug and alcohol-related offending when I was chair of the National Treatment Agency for Substance Misuse.

As has been said, it is well known that most offenders have multiple problems: illiteracy, mental health and substance misuse issues, for example. We also know that the percentage of those reoffending after being in prison is unacceptably high. Many factors contribute to this, and, as we have heard, accommodation is one of them.

Recent research by the Third Sector Research Centre at the University of Southampton reminds us that about a third of offenders are homeless before or after imprisonment, and that housing is a key factor in reoffending rates. The research recommends that strong relationships between housing advice agencies and local authorities should be built. Some prisons do now have links with third sector organisations, and some have a dedicated housing adviser. There are problems. Sometimes local authorities put up barriers to prisoner resettlement. They may judge ex-offenders ineligible for housing because they are said to be “intentionally homeless”, or they fail to inform their landlord of a sentence or they commit an offence. They may be considered ineligible due to unacceptable behaviour and may not be judged a priority. Prisoners can be moved to any area in the country but are eligible for housing only in their own area. Moving people around can cause multiple and severe problems. For example, a substance misuser’s record of treatment may not always follow that person immediately; the system becomes clogged up. I know that this system has become somewhat more efficient—and I shall say more in a minute about integrated services—but a prisoner with special needs, such as substance misuse, should surely be monitored as a priority, and an intervention plan should follow him or her.

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Recent policy developments may make matters worse. Welfare reform will affect housing benefit, and funding cuts to the criminal justice system may reduce housing support in prisons. The Localism Act 2011 gives local authorities more permission to exclude new applicants. The removal of ring-fencing for the Supporting People budget could limit pathway programmes for those with multiple needs and could affect help with services, with supported accommodation and towards independent living. Will the Minister comment on this?

With regard to substance misuse, there are now a range of substance misuse residential treatment providers who are ready, willing and able to provide treatment and accommodation as an alternative to a custody package. Several of these providers have been developing their expertise in this area over the past few years and are now expert in the rehabilitation of offenders who are also substance misusers. The staff teams of such providers are generally made up of people who have been in prison and/or are substance misusers themselves. As such, they can show that recovery is possible and lives can be turned around. Accommodation such as this is more effective than hostels, where recovery is impossible if the residents are chaotic and still drinking or using drugs. The 2012 drug strategy set out a plan to focus on recovery for addicts and this was reflected in the guidelines issued to prisons in 2010, which stated that prisoners sentenced to more than six months should work towards becoming drug free. Prisoners were asked what worked. Integrated services in prison involving treatment, relationships, employment and housing were given as reasons for recovery and for reducing reoffending.

The Labour Government’s public service agreement 16 —PSA 16—aimed to ensure that such socially excluded adults were given a chance to improve their lives by increasing settled accommodation and employment, education and training. It stated that a home and a job are the core foundations of normal, everyday life. Rehabilitation following custody is complex, but unless a determined effort is made to rehabilitate these men and women with severe problems, reoffending and the revolving door syndrome are likely to be expensive and disruptive for those involved, and for society.

4.18 pm

The Lord Bishop of Derby: My Lords, I, too, congratulate the noble Baroness, Lady Rendell, on securing this debate. I begin with a local perspective. I work in the city of Derby, and this time last year I organised the Redfern Commission, which brought people together to look at how citizens can help each other improve and develop the quality of life as the welfare state begins to recede. One of the sessions we had was about the police and the probation services. Some of the local statistics develop some of the insights already offered. Offenders, we were told, were more likely to have been in care, be unemployed, have been a truant, have family members convicted of crime, have writing and numeracy skills below that of an 11 year-old, be a drug user or have two or more mental disorders. That is a very complex set of issues for any person to deal with. The key thing for somebody like that is stability, and accommodation is at the root of stability of place and stability of relationship.

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We were told that locally 60% of short-term prisoners and 50% of all prisoners reoffended, but only 35% of those who did community service did. That again says something about stability, relationships and putting the person in a bigger context than just being left to their own devices. In Derby, there is an organisation I am proud to be associated with called Derventio. It works with the homeless, especially ex-offenders. I want to read from a letter from a young woman who has been helped by this organisation. She wrote:

“You know about my difficult relationships and the domestic violence that led me to self-harm. You know that I was often in prison and didn’t care but I’d like you to know that the opportunity of accommodation has been a godsend”.

She goes on to say that she now feels secure and hopeful and she ends the letter saying:

“I want my life to improve”.

The stability in place and relationships has given her the confidence and the extra resource to begin to overcome that complex of handicap.

I want to name four or five issues that the Minister might like to comment on as we look at this issue in more detail. How do we get better liaison between those giving housing advice in prison and those who organise local government housing allocation? How do we get a better dialogue and joined-up thinking, not least with all the different policies that local authorities have? In my experience, and I visit a couple of prisons locally, too many prisoners lack information and too many people who might try to help them on the outside do not really know the extent of prisoners’ vulnerability and the problems they face. I echo the comments from the noble Baroness, Lady Linklater, about how that is going to be delivered with the changes in the probation service. How are we going to assess prisoners’ vulnerability better and how are we give them better advice when in prison and as they come out about housing?

As we know, benefits are stopped when somebody is in prison. Would it not be much better to suspend them? In the crucial time after somebody leaves prison, having to get re-established to claim benefits means that without support, particularly with accommodation, they are susceptible to falling into bad ways. There could also be much better training in prison about the management of money and the responsibilities of being a tenant. These are basic things that, in my experience, people are not up to speed with. Prisoners often have no deposit to enter the private rental sector which, as we have heard, may be one of the few places open to them. Could there be a targeted grant scheme with a negotiation about who would receive the grant and what they would give in return? Quite frankly, that small investment would be much better than the colossal expenditure if people reoffend and go back into the system.

Some local churches offer support to some of the prisoners I meet when I visit. It reminds me that we need to be more proactive in linking with agencies with expertise in housing and accommodation. It seems to me that the connection between housing and a lower reoffending rate is clear and it would be in the interests of government, society and prisoners if we could maximise the enabling of people leaving prison to be housed, giving stability of place and of relationship.

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4.24 pm

Lord Judd (Lab): My Lords, I also thank my noble friend Lady Rendell for introducing this vital debate. It always seems to me that if we were starting with a plain sheet of paper for policy we would have a penal system that looked nothing like the one we have at the moment. I believe that it would also be much more economic to operate. As we have heard, many prisoners have mental health problems, come from dysfunctional families or have been in the company of the worst elements of society. They have lived a nightmare, after which it would be quite difficult to imagine them ending up anywhere but in prison.

Their release from prison, when it comes, is a very crucial and sensitive area, as we have been hearing. Accommodation is vital, but they also desperately need human relationships—people who will take their hands and walk back with them into rehabilitation. This is a vital issue. Surely, rehabilitation must be central to our penal system. It matters not just for the individuals but economically for society. It certainly matters for the well-being, security and living conditions of ordinary people in their own society. We want fewer criminals around, so we want the rehabilitation process to be successful.

I follow closely the research and advice provided by that excellent organisation the Howard League. I hope that the Government follow it as closely as I do. I found its recent report particularly interesting, and I draw some of its points to the attention of the Minister.

The report recognised that men and women released from prison with no home could be temporarily accommodated in hostels. However, many men interviewed in the study found hostels unduly restrictive and disempowering, because of stringent terms and conditions, especially those which exclude them from employment. They said they would rather spend their sentence in prison. While the women in the research sample said that they felt safe and looked after in hostel accommodation, they were nevertheless frequently moved away from existing family networks to be accommodated, due to the poor geographic spread of hostels.

Is it not important, as the Howard League argues, for routine inspections of approved premises to take place, on the model developed for inspecting prisons? Inspections should consider capacity, overcrowding, communal facilities, privacy and bedrooms, as well as the hostel’s regime.

The report points out that sentenced prisoners are often released with no accommodation and no job. The Government announced, in the comprehensive spending review, that JSA payments would be delayed for seven days. Prisoners rarely have previous wages to draw on. So the discharge grant of £46 will have to last for at least a week, often longer, if their benefits have not been arranged prior to release. Remand prisoners, who are released direct from court, receive no discharge grant and no resettlement help. Government plans to impose at least one year’s supervision on short sentence prisoners will not help prisoners on remand who are either found not guilty or given a community sentence that does not involve supervision.

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There is a sad lack of authoritative national statistics on the number of people who are homeless and are remanded or sentenced to prison. The Howard League, in its research, recommends that both prisons and local authorities should be required to record the number of prisoners making homeless applications to their local authority.

In the age when we look for joined-up government, let us note another finding: that the bedroom tax will have a negative impact on the availability of accommodation for those leaving prison. The majority of homeless people who have been in contact with the criminal justice system are single and need to be housed in smaller properties. Increased demand for these properties caused by the underoccupancy charge will make it more difficult to find suitable housing.

I sometimes wonder when I look at the reality of how it is all operating, whether we speak about rehabilitation but have a secret plot to ensure that it is as unlikely as possible to succeed. Either we believe in rehabilitation or we do not. If we do, we need to make sure that the provision of services, the arrangements, for individuals—they are all individuals with different needs—are in place.

4.29 pm

Lord Ramsbotham (CB): My Lords, in his seminal report on the riots in Strangeways and other prisons in 1990, my noble and learned friend Lord Woolf opined that the three factors that were most likely to prevent a released prisoner reoffending were a home, a job and a family or stable relationship—all of which were put at risk by imprisonment. He advocated, so far unsuccessfully—although I have to acknowledge the intent behind the recent recategorising of 70 prisons as resettlement prisons—that prisons should be grouped into what he called “community clusters”, which today would be defined as regional clusters, so that this damage could be mitigated by holding prisoners as close to home as possible, thereby enabling local organisations to be involved in the rehabilitation of their own local prisoners. He said that evidence showed that local ownership of a problem resulted in much greater commitment to finding a solution.

I am very glad that Matthew Purvis’s excellent Library briefing for this debate, for which I am extremely grateful, includes three important non-governmental documents. These are Vision Housing and Interserve’s First Home, Second Chance; Shelter’s Unlocking Stable Homes; and Homeless Link’s Preventing Reoffending and Homelessness.They spell out many of the questions that I had hoped would have been answered in the Ministry of Justice’s May 2013 strategy, Transforming Rehabilitation. This is being implemented without debate in either House. Had today’s debate been held in two weeks’ time, noble Lords would also have had the benefit of another important non-governmental report, No Fixed Abode: TheImplications For Homeless People In The Criminal Justice System. This has just been quoted by the noble Lord, Lord Judd, and will be published by the Howard League, as he said, which has allowed me to quote from it.

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While the Government’s strategy appears to be strong in intent, it is by no means so strong on detail, suggesting that, rather than lay down what is to be done, they prefer to refer to what they call,

“the broader life management issues that often lead offenders back to crime”,

without specifying what they are.